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

Download as PDF 30026 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations DEPARTMENT OF EDUCATION 34 CFR Part 106 [Docket ID ED–2018–OCR–0064] RIN 1870–AA14 Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance Office for Civil Rights, Department of Education. ACTION: Final rule. AGENCY: The Secretary of Education amends the regulations implementing Title IX of the Education Amendments of 1972 (Title IX). The final regulations specify how recipients of Federal financial assistance covered by Title IX, including elementary and secondary schools as well as postsecondary institutions, (hereinafter collectively referred to as ‘‘recipients’’ or ‘‘schools’’), must respond to allegations of sexual harassment consistent with Title IX’s prohibition against sex discrimination. These regulations are intended to effectuate Title IX’s prohibition against sex discrimination by requiring recipients to address sexual harassment as a form of sex discrimination in education programs or activities. The final regulations obligate recipients to respond promptly and supportively to persons alleged to be victimized by sexual harassment, resolve allegations of sexual harassment promptly and accurately under a predictable, fair grievance process that provides due process protections to alleged victims and alleged perpetrators of sexual harassment, and effectively implement remedies for victims. The final regulations also clarify and modify Title IX regulatory requirements regarding remedies the Department may impose on recipients for Title IX violations, the intersection between Title IX, Constitutional protections, and other laws, the designation by each recipient of a Title IX Coordinator to address sex discrimination including sexual harassment, the dissemination of a recipient’s non-discrimination policy and contact information for a Title IX Coordinator, the adoption by recipients of grievance procedures and a grievance process, how a recipient may claim a religious exemption, and prohibition of retaliation for exercise of rights under Title IX. DATES: These regulations are effective August 14, 2020. FOR FURTHER INFORMATION CONTACT: Alejandro Reyes, U.S. Department of Education, 400 Maryland Avenue SW, SUMMARY: VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Room 4E308, Washington, DC 20202. Telephone: (202) 453–6639. Email: Alejandro.Reyes@ed.gov. If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free at 1–800–877– 8339. SUPPLEMENTARY INFORMATION: Table of Contents Effective Date Executive Summary Purpose of This Regulatory Action Summary of the Major Provisions of This Regulatory Action Timing, Comments, and Changes Adoption and Adaption of the Supreme Court’s Framework To Address Sexual Harassment Differences Between Standards in Department Guidance and These Final Regulations Definition of Sexual Harassment Actual Knowledge Deliberate Indifference Role of Due Process in the Grievance Process Due Process Principles Summary of § 106.45 Similarities and Differences Between the § 106.45 Grievance Process and Department Guidance Public Comment Analysis of Comments and Changes Personal Stories Notice and Comment Rulemaking Rather Than Guidance General Support and Opposition Commonly Cited Sources Data—Overview Prevalence Data—Elementary and Secondary Schools Prevalence Data—Postsecondary Institutions Prevalence Data—Women Prevalence Data—Men Prevalence Data—LGBTQ Persons Prevalence Data—Persons of Color Prevalence Data—Individuals With Disabilities Prevalence Data—Immigrants Impact Data Cost Data Reporting Data Stereotypes/Punishment for ‘‘Lying’’ False Allegations General Support and Opposition for Supreme Court Framework Adopted in § 106.44(a) General Support and Opposition for the Grievance Process in § 106.45 Section 106.30 Definitions Actual Knowledge Support for Actual Knowledge Requirement and General Safety Concerns Student Populations Facing Additional Barriers to Reporting Chilling Reporting Generally Burdening Complainants Employees’ Obligations Elementary and Secondary Schools Large Schools Miscellaneous Comments and Questions Complainant Consent PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 Elementary and Secondary Schools Formal Complaint Support for Formal Complaint Definition No Formal Complaint Required To Report Sexual Harassment Burden on Complainants To File a Formal Complaint Anonymous Reporting and Anonymous Filing of Formal Complaints Officials Other Than the Title IX Coordinator Filing a Formal Complaint Complexity of a Document Labeled ‘‘Formal Complaint’’ Parents’ and Guardians’ Rights To File a Formal Complaint Methods of Reporting and Methods of Filing a Formal Complaint Miscellaneous Concerns About the Formal Complaint Definition Postsecondary Institution Respondent Sexual Harassment Overall Support and Opposition for the § 106.30 Sexual Harassment Definition Prong (1) Quid pro quo Prong (2) Davis standard Davis Standard Generally So Severe And Pervasive Objectively Offensive Effectively Denies Equal Access Prong (3) Sexual Assault, Dating Violence, Domestic Violence, Stalking Gender-Based Harassment Supportive Measures Overall Support and Opposition No-Contact Orders Other Language/Terminology Comments Section 106.44 Recipient’s Response to Sexual Harassment, Generally Section 106.44(a) ‘‘Actual Knowledge’’ The Recipient’s Self-Interest Burdening the Complainant Elementary and Secondary Schools Confusion for Employees Intersection Between Actual Knowledge and Deliberate Indifference Modeling Reporting on the Military System Section 106.44(a) ‘‘education program or activity’’ General Support and Opposition for ‘‘Education Program or Activity’’ as a Jurisdictional Condition Online Sexual Harassment Consistency With Title IX Statutory Text Constitutional Equal Protection Institutional Autonomy and Litigation Risk Requests for Clarification Section 106.44(a) ‘‘Against a Person in the U.S.’’ Impact on Study Abroad Participants Consistency With Federal Law and Departmental Practice Constitutional Equal Protection Impact on International or Foreign Exchange Students in the U.S. Section 106.44(a) Deliberate Indifference Standard Recipient’s Response in Specific Circumstances Section 106.44(b) Proposed ‘‘Safe Harbors,’’ Generally Section 106.44(b)(1) Mandate To Investigate Formal Complaints and Safe Harbor Proposed § 106.44(b)(2) Reports by Multiple Complainants of Conduct by E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Same Respondent [Removed in Final Regulations] Proposed § 106.44(b)(3) Supportive Measures Safe Harbor in Absence of a Formal Complaint [removed in final regulations] Section 106.44(b)(2) OCR Will Not ReWeigh the Evidence Additional Rules Governing Recipients’ Responses to Sexual Harassment Section 106.44(c) Emergency Removal Overall Support and Opposition to Emergency Removals Intersection With the IDEA, Section 504, and ADA Post-Removal Challenges No Stated Time Limitation for the Emergency Removal ‘‘Removal’’ ‘‘Individualized Safety and Risk Analysis’’ ‘‘Provides the Respondent With Notice and an Opportunity To Challenge the Decision Immediately Following the Removal’’ How OCR Will Enforce the Provision Section 106.44(d) Administrative Leave Section 106.45 Recipient’s Response to Formal Complaints General Requirements for § 106.45 Grievance Process Section 106.45(a) Treatment of Complainants or Respondents Can Violate Title IX Section 106.45(b)(1)(i) Equitable Treatment of Complainants and Respondents Section 106.45(b)(1)(ii) Objective Evaluation of All Relevant Evidence Section 106.45(b)(1)(iii) Impartiality and Mandatory Training of Title IX Personnel; Directed Question 4 (Training) Section 106.45(b)(1)(iv) Presumption of Non-Responsibility Purpose of the Presumption Students of Color, LGBTQ Students, and Individuals With Disabilities The Complainant’s Right to Due Process Protections False Allegations Inaccurate Findings of Non-Responsibility Recipients Should Apply Dual Presumptions or No Presumption The Adversarial Nature of the Grievance Process Supportive Measures Miscellaneous Concerns Section 106.45(b)(1)(v) Reasonably Prompt Time Frames Support Opposition—Lack of Specified Time Limit Effects on Recipients Concerns Regarding Concurrent Law Enforcement Activity Alternative Proposals Clarification Requests Section 106.45(b)(1)(vi) Describe Range or List of Possible Sanctions and Remedies Section 106.45(b)(1)(vii) Describe Standard of Evidence Section 106.45(b)(1)(viii) Procedures and Bases for Appeal Section 106.45(b)(1)(ix) Describe Range of Supportive Measures Section 106.45(b)(1)(x) Privileged Information Written Notice of Allegations VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Section 106.45(b)(2) Written Notice of Allegations Retaliation Warning Against False Statements Investigative Process Administrative Burden on Schools Elementary and Secondary Schools Confidentiality and Anonymity for Complainants General Modification Suggestions General Clarification Requests Dismissal and Consolidation of Formal Complaints Section 106.45(b)(3)(i) Mandatory Dismissal of Formal Complaints Section 106.45(b)(3)(ii)–(iii) Discretionary Dismissals/Notice of Dismissal Section 106.45(b)(4) Consolidation of Formal Complaints Investigation Section 106.45(b)(5)(i) Burdens of Proof and Gathering Evidence Rest on the Recipient Section 106.45(b)(5)(ii) Equal Opportunity To Present Witnesses and Other Inculpatory/Exculpatory Evidence Section 106.45(b)(5)(iii) Recipients Must Not Restrict Ability of Either Party To Discuss Allegations or Gather and Present Relevant Evidence Section 106.45(b)(5)(iv) Advisors of Choice Supporting Presence and Participation of Advisors Fairness Considerations Conflicts of Interest, Confidentiality, and Union Issues Modification Requests Section 106.45(b)(5)(v) Written Notice of Hearings, Meetings, and Interviews Section 106.45(b)(5)(vi) Inspection and Review of Evidence Directly Related to the Allegations, and Directed Question 7 Section 106.45(b)(5)(vii) An Investigative Report that Fairly Summarizes Relevant Evidence Hearings Cross-Examination Generally Support for Cross-Examination Retraumatizing Complainants Reducing Truth-Seeking Demeanor Evaluation Is Unreliable Trauma Responses Reliance on Rape Myths Cross-Examination as a Due Process Requirement Discourages Participation Financial Inequities Changes the Nature of the Grievance Process Section 106.45(b)(6)(ii) Should Apply to Postsecondary Institutions False Accusations Occur Infrequently Excluding Cross-Examination Questions Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live Hearing With Cross-Examination Self-Representation Versus CrossExamination Conducted by Advisors Explain Decision to Exclude Questions No Reliance on Statements of a Party Who Does Not Submit to Cross-Examination Rape Shield Protections Separate Rooms for Cross-Examination Facilitated by Technology; Directed Question 9 Discretion To Hold Live Hearings and Control Conduct of Hearings PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 30027 Section 106.45(b)(6)(ii) Elementary and Secondary School Recipients May Require Hearing and Must Have Opportunity To Submit Written Questions Determinations Regarding Responsibility Section 106.45(b)(7)(i) Single Investigator Model Prohibited Benefits of Ending the Single Investigator Model Consistency with Case Law Alternative Approaches to Ending Single Investigator Model Chilling Reporting and Other Harmful Effects Respecting the Roles of Title IX Coordinators and Investigators Preserving Recipient Autonomy Consistency With Federal Law and Employment Practices Limiting the Prohibition of the Single Investigator Model Requests for Clarification Section 106.45(b)(7)(i) Standard of Evidence and Directed Question 6 Mandating a Higher Standard of Evidence Supporting § 106.45(b)(7)(i) One-Sided Condition on Choice of Evidentiary Standard Same Evidentiary Standard in Student and Faculty Cases Requiring the Preponderance of the Evidence Standard Improving Accuracy of Outcomes Safety Concerns Consistency of Standards of Evidence Across Recipients Standards of Evidence Below the Preponderance of the Evidence Questioning the Department’s Legal Authority Alternative Approaches and Clarification Requests Section 106.45(b)(7)(ii) Written Determination Regarding Responsibility Must Include Certain Details Section 106.45(b)(7)(iii) Timing of When the Decision Becomes Final [§ 106.45(b)(7)(iv) Title IX Coordinator Responsible for Effective Implementation of Remedies: Addressed Under § 106.45(b)(7)(iii)] Transcript Notations Appeals Section 106.45(b)(8) Appeals Informal Resolution Section 106.45(b)(9) Informal Resolution Supporting and Expanding Informal Resolution Terminology Clarifications Written Notice Implications Voluntary Consent Safety Concerns Based on Confidentiality Consistency With Other Law and Practice Training Requirements Non-Binding Informal Resolution Survivor-Oriented Protections Restorative Justice Avoiding Formal Process Electronic Disclosures Expulsion Through Informal Resolution Clarification Requests Recordkeeping Section 106.45(b)(10) Recordkeeping and Directed Question 8 Clarifying Amendments to Existing Regulations E:\FR\FM\19MYR2.SGM 19MYR2 30028 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Section 106.3(a) Remedial Action Section 106.6(d)(1) First Amendment Section 106.6(d)(2) Due Process Section 106.6(d)(3) Other Constitutional Rights Section 106.6(e) FERPA Background Comments, Discussion, and Changes Section 106.6(f) Title VII and Directed Question 3 (Application to Employees) Section 106.6(g) Exercise of Rights by Parents/Guardians Section 106.6(h) Preemptive Effect Section 106.8(a) Designation of Coordinator Section 106.8(b) Dissemination of Policy Removal of 34 CFR 106.9(c) List of Publications Professional Organizations Parents of Elementary and Secondary School Students Subjectivity in Publications’ Implication of Discrimination Judicial Requirements for Sex Discrimination Implicit Forms of Sex Discrimination Analogous Provisions in Other Laws Suggested Modifications Section 106.8(c) Adoption and Publication of Grievance Procedures Section 106.8(d) Application Outside the United States Section 106.12 Educational Institutions Controlled by a Religious Organization Directed Questions Directed Question 1: Application to Elementary and Secondary Schools Directed Question 2: Application Based on Type of Recipient or Age of Parties Directed Question 5: Individuals With Disabilities Miscellaneous Executive Orders and Other Requirements Length of Public Comment Period/Requests for Extension Conflicts With First Amendment, Constitutional Confirmation, International Law Clery Act Background Comments, Discussion, and Changes Different Standards for Other Harassment Spending Clause Litigation Risk Effective Date Retaliation Section 106.71 Retaliation Prohibited Severability Regulatory Impact Analysis (RIA) Costs of Sexual Harassment and Assault Overall Net Effects/Characterization of Savings Motivation for Rulemaking The Department’s Model and Baseline Assumptions Data Sources Other Section 106.44(a) Supportive Measures Section 106.45(b)(1)(iii) Title IX Coordinators, Investigators, and Decision-Makers Must Be Properly Trained Section 106.45(b)(5) Investigation of Formal Complaints Section 106.45(b)(6) Hearings Section 106.45(b)(7) Determinations Regarding Responsibility VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Section 106.45(b)(8) Appeals Section 106.45(b)(9) Informal Resolution Executive Orders 12866, 13563, and 13771 Regulatory Impact Analysis Need for Regulatory Action Discussion of Costs, Benefits, and Transfers Regulatory Alternatives Considered Accounting Statement Regulatory Flexibility Act Paperwork Reduction Act of 1995 Accessible Format Electronic Access to This Document Effective Date On March 13, 2020, the President of the United States declared that a national emergency concerning the novel coronavirus disease (COVID–19) outbreak began on March 1, 2020, as stated in ‘‘Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID–19) Outbreak,’’ Proclamation 9994 of March 13, 2020, Federal Register Vol. 85, No. 53 at 15337–38. The Department appreciates that exigent circumstances exist as a result of the COVID–19 national emergency, and that these exigent circumstances require great attention and care on the part of States, local governments, and recipients of Federal financial assistance. The Department recognizes the practical necessity of allowing recipients of Federal financial assistance time to plan for implementing these final regulations, including to the extent necessary, time to amend their policies and procedures necessary to comply. Taking into account this national emergency, as well as consideration of public comments about an effective date as discussed in the ‘‘Effective Date’’ subsection of the ‘‘Miscellaneous’’ section of this preamble, the Department has determined that these final regulations are effective August 14, 2020. Executive Summary Purpose of This Regulatory Action Enacted in 1972, Title IX prohibits discrimination on the basis of sex in education programs and activities that receive Federal financial assistance.1 In its 1979 opinion Cannon v. University of Chicago,2 the Supreme Court stated that the objectives of Title IX are two-fold: first, to ‘‘avoid the use of Federal resources to support discriminatory practices’’ and second, to ‘‘provide individual citizens effective protection 1 20 U.S.C. 1681 (‘‘No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .’’). 2 441 U.S. 677 (1979). PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 against those practices.’’ 3 The U.S. Department of Education (the ‘‘Department’’ or ‘‘we’’) may issue rules effectuating the dual purposes of Title IX.4 We refer herein to Title IX’s prohibition on sex discrimination and purposes as described by the Supreme Court as Title IX’s non-discrimination mandate. The Department’s predecessor, the Department of Health, Education, and Welfare (HEW), first promulgated regulations under Title IX, effective in 1975.5 Those regulations reinforced Title IX’s non-discrimination mandate, addressing prohibition of sex discrimination in hiring, admissions, athletics, and other aspects of recipients’ education programs or activities. The 1975 regulations also required recipients to designate an employee to coordinate the recipient’s efforts to comply with Title IX and to adopt and publish grievance procedures providing for prompt and equitable resolution of complaints that a recipient is discriminating based on sex. When HEW issued its regulations in 1975, the Federal courts had not yet addressed recipients’ Title IX obligations with respect to sexual harassment as a form of sex discrimination. In the decades since HEW issued the 1975 regulations, the Department has not promulgated any Title IX regulations to address sexual harassment as a form of sex discrimination. Beginning in 1997, the Department addressed this subject through a series of guidance documents, most notably the 2001 Guidance 6 3 Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979). 4 20 U.S.C. 1682 (‘‘Each Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity . . . is authorized and directed to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.’’). 5 40 FR 24128 (June 4, 1975) (codified at 45 CFR part 86). In 1980, Congress created the United States Department of Education. Public Law 96–88, sec. 201, 93 Stat. 669, 671 (1979); Exec. Order No. 12212, 45 FR 29557 (May 2, 1980). By operation of law, all of HEW’s determinations, rules, and regulations continued in effect and all functions of HEW’s Office for Civil Rights, with respect to educational programs, were transferred to the Secretary of Education. 20 U.S.C. 3441(a)(3). The regulations implementing Title IX were recodified without substantive change in 34 CFR part 106. 45 FR 30802, 30955–65 (May 9, 1980). 6 U.S. Dep’t. of Education, Office for Civil Rights, Revised Guidance on Sexual Harassment: Harassment of Students by School Employees, Other Students, or Third Parties (Jan. 19, 2001) (hereinafter, ‘‘2001 Guidance’’), https:// www2.ed.gov/about/offices/list/ocr/docs/ shguide.pdf. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations (which revised similar guidance issued in 1997 7), the withdrawn 2011 Dear Colleague Letter,8 the withdrawn 2014 Q&A,9 and the 2017 Q&A.10 The Department understands that agency guidance is not intended to represent legal obligations; however, we also acknowledge that in part because the Title IX statute and the Department’s implementing regulations have (until these final regulations) not addressed sexual harassment, recipients and the Department have relied on the Department’s guidance to set expectations about how recipients should respond to sexual harassment and how the Department investigates recipients for possible Title IX violations with respect to responding to sexual harassment.11 These final 7 U.S. Dep’t. of Education, Office for Civil Rights, Sexual Harassment Guidance: Harassment of Students By School Employees, Other Students, or Third Parties, 62 FR 12034 (Mar. 13, 1997) (hereinafter, ‘‘1997 Guidance’’), https:// www2.ed.gov/about/offices/list/ocr/docs/ sexhar01.html#skipnav2. 8 U.S. Dep’t. of Education, Office for Civil Rights, Dear Colleague Letter: Sexual Violence (April 4, 2011) (hereinafter ‘‘2011 Dear Colleague Letter’’), https://www2.ed.gov/about/offices/list/ocr/letters/ colleague-201104.pdf, withdrawn by, U.S. Dep’t. of Education, Office for Civil Rights, Dear Colleague Letter (Sept. 22, 2017), https://www2.ed.gov/about/ offices/list/ocr/letters/colleague-title-ix-201709.pdf. 9 U.S. Dep’t. of Education, Office for Civil Rights, Questions and Answers on Title IX and Sexual Violence (April 29, 2014) (hereinafter ‘‘2014 Q&A’’), https://www2.ed.gov/about/offices/list/ocr/docs/qa201404-title-ix.pdf, withdrawn by, U.S. Dep’t. of Education, Office for Civil Rights, Dear Colleague Letter (Sept. 22, 2017), https://www2.ed.gov/about/ offices/list/ocr/letters/colleague-title-ix-201709.pdf. 10 U.S. Dep’t. of Education, Office for Civil Rights, Q&A on Campus Sexual Misconduct (Sept. 22, 2017) (hereinafter, ‘‘2017 Q&A’’), https:// www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix201709.pdf. 11 For example, OCR found numerous institutions in violation of Title IX for failing to adopt the preponderance of the evidence standard in its investigations of sexual harassment, even though the notion that the preponderance of the evidence standard is the only standard that might be applied under Title IX is set forth in the 2011 Dear Colleague Letter and not in the Title IX statute, current regulations, or other guidance. E.g., U.S. Dep’t. of Education, Office for Civil Rights, Letter of Findings to Harvard Law School 7 (Dec. 10, 2014) (‘‘Harvard Law Letter’’), https://www2.ed.gov/ documents/press-releases/harvard-law-letter.pdf (‘‘[I]n order for a recipient’s grievance procedures to be consistent with the Title IX evidentiary standard, the recipient must use a preponderance of the evidence standard for investigating allegations of sexual harassment, including sexual assault/violence.’’) OCR in its letter of findings against Harvard Law School noted that Harvard’s procedures provide that ‘‘formal disciplinary sanctions shall be imposed only upon clear and convincing evidence.’’ Harvard Law Letter at 10. OCR found the following: ‘‘This higher standard of proof was inconsistent with the preponderance of the evidence standard required by Title IX for investigating allegations of sexual harassment or violence.’’ Id.; see also U.S. Dep’t. of Education, Office for Civil Rights, Letter of Findings to S. Methodist Univ. 4 (Dec. 11, 2014), https:// www2.ed.gov/documents/press-releases/southern- VerDate Sep<11>2014 20:34 May 18, 2020 Jkt 250001 regulations impose, for the first time, legally binding rules on recipients with respect to responding to sexual harassment, and the nature of the legal obligations imposed under these final regulations is similar in some ways, and different in some ways, to the way the Department approached this subject in its guidance documents. Those similarities and differences are explained throughout this preamble, including in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ and ‘‘Role of Due Process in the Grievance Process’’ sections of this preamble. Prior to these final regulations, the Department’s last policy statement on Title IX sexual harassment was its withdrawal of the 2011 Dear Colleague Letter 12 and concomitant issuance of the 2017 Q&A. The 2017 Q&A along with the 2001 Guidance represent the ‘‘status quo’’ or ‘‘baseline’’ against methodist-university-letter.pdf; U.S. Dep’t. of Education, Office for Civil Rights, Letter of Findings to Princeton Univ. 6, 11, 18 (Nov. 5, 2014), https:// www2.ed.gov/documents/press-releases/princetonletter.pdf; U.S. Dep’t. of Education, Office for Civil Rights, Letter of Findings to Tufts Univ. 5 (Apr. 28, 2014), https://www2.ed.gov/about/offices/list/ocr/ docs/investigations/more/01102089-a.pdf; U.S. Dep’t. of Education, Office for Civil Rights, Letter of Findings to Yale Univ. 4–5 (June 15, 2012), https://www2.ed.gov/about/offices/list/ocr/docs/ investigations/01112027-a.pdf. Many recipients changed their Title IX policies and procedures to conform to the 2001 Guidance, and then to the 2011 Dear Colleague Letter, in part based on OCR enforcement actions that found recipients in violation for failing to comport with interpretations of Title IX found only in guidance. E.g., Blair A. Baker, When Campus Sexual Misconduct Policies Violate Due Process Rights, 26 Cornell J. of Law & Pub. Pol’y 533, 542 (2016) (The 2011 Dear Colleague Letter has ‘‘forced universities to change their former policies drastically, with regards to their specific procedures as well as the standard of proof, out of fear that the Department of Education will pursue their school for a violation of Title IX. In sum, the Dear Colleague Letter applied pressure on colleges to maintain a victim-friendly environment, which is admirable and necessary, but in turn has created a situation that can be insensitive to the accused and ‘tilted in favor of the alleged victim.’ These situations do not have to be mutually exclusive; and there must be a solution in which victim-friendly is not synonymous with procedurally adverse to respondents.’’) (internal citations omitted); Lauren P. Schroeder, Cracks in the Ivory Tower: How the Campus Sexual Violence Elimination Act Can Protect Students from Sexual Assault, 45 Loy. Univ. Chi. L. J. 1195, 1202 (2014) (‘‘[Because] Title IX is such a short statute with little direction, schools look to specific guidance materials provided by the Department of Education to determine the specific requirements of Title IX.’’). 12 The 2014 Q&A (withdrawn at the same time as the 2011 Dear Colleague Letter was withdrawn) expounded on the same approach taken by the Department in the withdrawn 2011 Dear Colleague Letter; throughout this preamble, references to and discussion of the 2011 Dear Colleague Letter may be understood to assume that the same or similar approach was taken in the 2014 Q&A unless otherwise noted. PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 30029 which these final regulations make further changes to the Department’s enforcement of Title IX obligations.13 However, the withdrawal of the 2011 Dear Colleague Letter and issuance of the 2017 Q&A did not require or result in wholesale changes to the set of expectations guiding recipients’ responses to sexual harassment or to many recipients’ Title IX policies and procedures. The Department understands from public comments and media reports that many (if not most) recipients chose not to change their Title IX policies and procedures following the withdrawal of the 2011 Dear Colleague Letter and issuance of the 2017 Q&A.14 This lack of change by recipients is a reasonable response to the following facts: Guidance is not legally enforceable; 15 the 2017 Q&A expressly stated to recipients that the 2017 Q&A was issued as an interim, non-binding interpretation of Title IX sexual harassment responsibilities while the Department conducted rulemaking to arrive at legally binding regulations addressing this subject; 16 and both the 2017 Q&A and the withdrawn 2011 Dear Colleague Letter relied heavily on the 2001 Guidance.17 The 2017 Q&A along with the 2001 Guidance, and not the withdrawn 2011 Dear Colleague Letter, remain the baseline against which these final regulations make further changes to enforcement of Title IX obligations. These final regulations largely address the same topics addressed in the Department’s current and past guidance, including withdrawn guidance. Throughout this preamble we explain points of difference, and similarity, between these final regulations, and the Department’s guidance. As such discussion makes clear, some of the Title IX policies and procedures that 13 2017 Q&A at 1 (‘‘[T]hese questions and answers—along with the [2001 Guidance] previously issued by the Office for Civil Rights— provide information about how OCR will assess a school’s compliance with Title IX’’ in ‘‘the interim’’ while the Department ‘‘engage[s] in rulemaking on the topic of schools’ Title IX responsibilities concerning complaints of sexual misconduct, including peer-on-peer sexual harassment and sexual violence.’’). 14 E.g., Alice B. Lloyd, Colleges Stick With Obama-Era Title IX Guidance, Washington Examiner (Aug. 2, 2018) (describing the 2017 Q&A and withdrawal of the 2011 Dear Colleague Letter as giving recipients ‘‘the option to adjust their procedures’’ for example with respect to which standard of evidence to use in sexual harassment cases, and designating a longer investigation time frame than the 60 calendar day time frame specified in the 2011 Dear Colleague Letter, and describing reasons why most recipients have chosen not to change Title IX policies and procedures). 15 Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 96–98 (2015). 16 2017 Q&A at 1. 17 Compare 2017 Q&A at 1–4, 6–7 with 2011 Dear Colleague Letter at 2, 3–9, 11, 13. E:\FR\FM\19MYR2.SGM 19MYR2 30030 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recipients have in place due to following the 2001 Guidance and the withdrawn 2011 Dear Colleague Letter remain viable policies and procedures for recipients to adopt while complying with these final regulations. Because these final regulations represent the Department’s interpretation of a recipient’s legally binding obligations, rather than best practices, recommendations, or guidance, these final regulations focus on precise legal compliance requirements governing recipients. In many regards, as discussed throughout this preamble, these final regulations leave recipients the flexibility to choose to follow best practices and recommendations contained in the Department’s guidance or, similarly, best practices and recommendations made by nonDepartment sources, such as Title IX consultancy firms, legal and social science scholars, victim advocacy organizations, civil libertarians and due process advocates, and other experts. Based on extensive review of the critical issues addressed in this rulemaking, the Department has determined that current regulations do not provide clear direction for how recipients must respond to allegations of sexual harassment because current regulations do not reference sexual harassment at all. Similarly, the Department has determined that Department guidance is insufficient to provide clear direction on this subject because it is not legally enforceable,18 has created confusion and uncertainty among recipients,19 and has not 18 For further discussion, see the ‘‘Notice and Comment Rulemaking Rather Than Guidance’’ section of this preamble. 19 Janet Napolitano, ‘‘Only Yes Means Yes’’: An Essay on University Policies Regarding Sexual Violence and Sexual Assault, 33 Yale L. & Pol’y Rev. 387, 393–97 (2015) (The Honorable Janet Napolitano, the President of the University of California, who is a former Governor and Attorney General of Arizona and a former United States Secretary of Homeland Security, writing that OCR’s guidance documents ‘‘left [campuses] with significant uncertainty and confusion about how to appropriately comply after they were implemented’’ and specifically noted that the ‘‘2011 Dear Colleague Letter generated significant compliance questions for campuses.’’); see also Task Force on Fed. Regulation of Higher Education, Recalibrating Regulation of Colleges and Universities at 12 (2015) (the Task Force on Federal Regulation of Higher Education, appointed by a bipartisan group of U.S. Senators, noting: ‘‘[A] guidance document meant to clarify uncertainty only led to more confusion. A 2011 ‘Dear Colleague’ letter on Title IX responsibilities regarding sexual harassment contained complex mandates and raised a number of questions for institutions. As a result, the Department was compelled to issue further guidance clarifying its letter. This took the form of a 53-page ‘Questions and Answers’ document [the withdrawn 2014 Q&A] that took three years to complete. Still, that guidance has raised further questions. Complexity begets more complexity.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 adequately advised recipients as to how to uphold Title IX’s non-discrimination mandate while at the same time meeting requirements of constitutional due process and fundamental fairness.20 Therefore, the Department issues these final regulations addressing sexual harassment, to better align the Department’s Title IX regulations with the text and purpose of Title IX, the U.S. Constitution, Supreme Court precedent and other case law, and to address the practical challenges facing students, employees, and recipients with respect to sexual harassment allegations in education programs and activities. The final regulations define and apply the following terms, as discussed in the ‘‘Section 106.30 Definitions’’ section of this preamble: ‘‘actual knowledge,’’ ‘‘complainant,’’ ‘‘elementary and secondary schools,’’ ‘‘formal complaint,’’ ‘‘postsecondary institution,’’ ‘‘respondent,’’ ‘‘sexual harassment,’’ and ‘‘supportive measures’’; each term has a specific meaning under these final regulations. For clarity of understanding when reading this preamble, ‘‘complainant’’ means any individual who is alleged to be the victim of sexual harassment, and ‘‘respondent’’ means any individual who is reported to be the perpetrator of sexual harassment. A person may be a complainant, or a respondent, even where no formal complaint has been filed and no grievance process is pending. A ‘‘formal complaint’’ is a document that initiates a recipient’s grievance process, but a formal complaint is not required in order for a recipient to have actual knowledge of sexual harassment, or allegations of sexual harassment, that activates the recipient’s legal obligation to respond promptly, including by offering supportive measures to a complainant. References in this preamble to a complainant, respondent, or other individual with respect to exercise of rights under Title IX should be understood to include situations in which a parent or guardian has the legal right to act on behalf of the individual.21 Alleged victims of sexual harassment often have options to pursue legal action through civil litigation or by pressing criminal charges. Title IX does not replace civil or criminal justice systems. However, the way in which a school, college, or university responds to allegations of sexual harassment in an education program or activity has 20 See the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. 21 For further discussion see the ‘‘Section 106.6(g) Exercise of Rights by Parents/Guardians’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 serious consequences for the equal educational access of complainants and respondents. These final regulations require recipients to offer supportive measures to every complainant, irrespective of whether the complainant files a formal complaint. Recipients may not treat a respondent as responsible for sexual harassment without providing due process protections. When a recipient determines a respondent to be responsible for sexual harassment after following a fair grievance process that gives clear procedural rights to both parties, the recipient must provide remedies to the complainant. Summary of the Major Provisions of This Regulatory Action These final regulations are premised on setting forth clear legal obligations that require recipients to: Promptly respond to individuals who are alleged to be victims of sexual harassment by offering supportive measures; follow a fair grievance process to resolve sexual harassment allegations when a complainant requests an investigation or a Title IX Coordinator decides on the recipient’s behalf that an investigation is necessary; and provide remedies to victims of sexual harassment. Regarding sexual harassment, the final regulations: D Define the conduct constituting sexual harassment for Title IX purposes; D Specify the conditions that activate a recipient’s obligation to respond to allegations of sexual harassment and impose a general standard for the sufficiency of a recipient’s response, and specify requirements that such a response much include, such as offering supportive measures in response to a report or formal complaint of sexual harassment; D Specify conditions that require a recipient to initiate a grievance process to investigate and adjudicate allegations of sexual harassment; and D Establish procedural due process protections that must be incorporated into a recipient’s grievance process to ensure a fair and reliable factual determination when a recipient investigates and adjudicates a formal complaint of sexual harassment. Additionally, the final regulations: Affirm that the Department’s Office for Civil Rights (‘‘OCR’’) may require recipients to take remedial action for discriminating on the basis of sex or otherwise violating the Department’s regulations implementing Title IX, consistent with 20 U.S.C. 1682; clarify that in responding to any claim of sex discrimination under Title IX, recipients are not required to deprive an individual of rights guaranteed under E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the U.S. Constitution; acknowledge the intersection of Title IX, Title VII, and FERPA, as well as the legal rights of parents or guardians to act on behalf of individuals with respect to Title IX rights; update the requirements for recipients to designate a Title IX Coordinator, disseminate the recipient’s non-discrimination policy and the Title IX Coordinator’s contact information, and notify students, employees, and others of the recipient’s grievance procedures and grievance process for handling reports and complaints of sex discrimination, including sexual harassment; eliminate the requirement that religious institutions submit a written statement to the Assistant Secretary for Civil Rights to qualify for the Title IX religious exemption; and expressly prohibit retaliation against individuals for exercising rights under Title IX. Timing, Comments, and Changes On November 29, 2018, the Secretary published a notice of proposed rulemaking (NPRM) for these parts in the Federal Register.22 The final regulations contain changes from the NPRM (interchangeably referred to in this preamble as the ‘‘NPRM,’’ the ‘‘proposed rules,’’ or the ‘‘proposed regulations’’), and these changes are fully explained in the ‘‘Analysis of Comments and Changes’’ and other sections of this preamble. Throughout this preamble, the Department uses the terms ‘‘institutions of higher education’’ (or ‘‘IHEs’’) interchangeably with ‘‘postsecondary institutions’’ (or ‘‘PSEs’’). The Department uses the phrase ‘‘elementary and secondary schools’’ (or ‘‘ESEs’’) interchangeably with ‘‘local educational agencies’’ (or ‘‘LEAs’’ or ‘‘K–12’’). Throughout this preamble, the Department refers to Title IX of the Education Amendments of 1972, as amended, as ‘‘Title IX,’’ 23 to the Individuals with Disabilities Education Act as the ‘‘IDEA,’’ 24 to Section 504 of the Rehabilitation Act of 1973 as ‘‘Section 504,’’ 25 to the Americans with Disabilities Act as the ‘‘ADA,’’ 26 to Title VI of the 1964 Civil Rights Act as ‘‘Title VI,’’ 27 to Title VII of the 1964 Civil Rights Act as ‘‘Title VII,’’ 28 to section 444 of the General Education Provisions Act (GEPA), which is commonly referred to as the Family Educational 22 83 FR 61462 (Nov. 29, 2018) (to be codified at 34 CFR pt. 106). 23 20 U.S.C. 1681 et seq. 24 20 U.S.C. 1400 et seq. 25 29 U.S.C. 701 et seq. 26 42 U.S.C. 12101 et seq. 27 42 U.S.C. 2000d et seq. 28 42 U.S.C. 2000e et seq. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Rights and Privacy Act of 1974, as ‘‘FERPA,’’ 29 to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act as the ‘‘Clery Act,’’ 30 and to the Violence Against Women Reauthorization Act of 2013 as ‘‘VAWA.’’ 31 The Department uses the phrase ‘‘Title IX sexual harassment’’ to refer to the conduct defined in § 106.30 to be sexual harassment as well as the conditions described in § 106.44(a) that require a recipient to respond to sexual harassment under Title IX and these final regulations.32 When the Department uses the term ‘‘victim’’ (or ‘‘survivor’’) or ‘‘perpetrator’’ to discuss these final regulations, the Department assumes that a reliable process, namely the grievance process described in § 106.45, has resulted in a determination of responsibility, meaning the recipient has found a respondent responsible for perpetrating sexual harassment against a complainant.33 Throughout the preamble, the Department references and summarizes statistics, data, research, and studies that commenters submitted. The Department’s reference to or summarization of these items, however, does not speak to their level of accuracy. Whether specifically cited or not, we considered all relevant information submitted to us in our analysis and promulgation of these final regulations. The Department references statistics, data, research, and studies throughout this preamble. Such reference to or summarization of these items does not indicate that the Department independently has determined that the entirety of each item is accurate. Many commenters referenced the impact of sexual harassment or the proposed rules on individuals who belong to, or identify with, certain demographic groups, and used a variety of acronyms and phrases to describe such individuals; for example, various commenters referred to ‘‘LGBT’’ or ‘‘LGBTQ+’’ and ‘‘persons of color’’ or ‘‘racial minorities.’’ For consistency, throughout this preamble we use the acronym ‘‘LGBTQ’’ while recognizing 29 20 U.S.C. 1232g. U.S.C. 1092(f). 31 34 U.S.C. 12291 et seq. (formerly codified at 42 U.S.C. 13925). 32 Section 106.44(a) requires a recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States to respond promptly in a manner that is not deliberately indifferent, meaning not clearly unreasonable in light of the known circumstances. 33 As noted in the ‘‘Executive Summary’’ section of this preamble, ‘‘respondent,’’ ‘‘sexual harassment,’’ and ‘‘complainant’’ are defined terms in § 106.30. 30 20 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 30031 that other terminology may be used or preferred by certain groups or individuals, and our use of ‘‘LGBTQ’’ should be understood to include lesbian, gay, bisexual, transgender, queer, questioning, asexual, intersex, nonbinary, and other sexual orientation or gender identity communities. We use the phrase ‘‘persons of color’’ to refer to individuals whose race or ethnicity is not white or Caucasian. We emphasize that every person, regardless of demographic or personal characteristics or identity, is entitled to the same protections against sexual harassment under these final regulations, and that every individual should be treated with equal dignity and respect. Finally, several provisions in the NPRM have been renumbered in the final regulations.34 In response to commenters who asked for clarification as to whether the definitions in § 106.30 apply to a term in a specific regulatory provision, some of the regulatory provisions specifically refer to a term ‘‘as defined in § 106.30’’ to provide additional clarity.35 Notwithstanding these points of additional clarification in certain regulatory provisions, the definitions in § 106.30 apply to the entirety of 34 CFR part 106. For consistency, references in this preamble are to the provisions as numbered in the final, and not the proposed, regulations. 34 Provisions proposed in the NPRM, as renumbered in these final regulations, are: Proposed § 106.44(b)(2) eliminated in the final regulations. Proposed § 106.44(b)(3) eliminated in the final regulations. Proposed § 106.44(b)(4) eliminated in the final regulations. Proposed § 106.44(b)(5) in the final regulations as § 106.44(b)(2). Proposed § 106.45(b)(3)(i) in the final regulations as § 106.45(b)(5)(i). Proposed § 106.45(b)(3)(ii) in the final regulations as § 106.45(b)(5)(ii). Proposed § 106.45(b)(3)(iii) in the final regulations as § 106.45(b)(5)(iii). Proposed § 106.45(b)(3)(iv) in the final regulations as § 106.45(b)(5)(iv). Proposed § 106.45(b)(3)(v) in the final regulations as § 106.45(b)(5)(v). Proposed § 106.45(b)(3)(vi) in the final regulations as § 106.45(b)(6)(ii). Proposed § 106.45(b)(3)(vii) in the final regulations as § 106.45(b)(6)(i). Proposed § 106.45(b)(3)(viii) in the final regulations as § 106.45(b)(5)(vi). Proposed § 106.45(b)(3)(ix) in the final regulations as § 106.45(b)(5)(vii). Proposed § 106.45(b)(4) in the final regulations as § 106.45(b)(7). Proposed § 106.45(b)(5) in the final regulations as § 106.45(b)(8). Proposed § 106.45(b)(6) in the final regulations as § 106.45(b)(9). Proposed § 106.45(b)(7) in the final regulations as § 106.45(b)(10). 35 E.g., §§ 106.8(c), 106.44(a), 106.45(b) (introductory sentence), 106.45(b)(1)(i), 106.45(b)(2), 106.45(b)(3)(i), 106.45(b)(7). E:\FR\FM\19MYR2.SGM 19MYR2 30032 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Citations to ‘‘34 CFR 106.__’’ in the body of the preamble and the footnotes are citations to the Department’s current regulations and not the final regulations. Adoption and Adaption of the Supreme Court’s Framework To Address Sexual Harassment Seven years after the passage of Title IX, the Supreme Court in Cannon v. University of Chicago 36 held that a judicially implied private right of action exists under Title IX. Thirteen years after that, in Franklin v. Gwinnett County Public Schools 37 the Supreme Court held that money damages are an available remedy in a private lawsuit alleging a school’s intentional discrimination in violation of Title IX. The Cannon Court explained that Title IX has two primary objectives: Avoiding use of Federal funds to support discriminatory practices and providing individuals with effective protection against discriminatory practices.38 Those two purposes are enforced both by administrative agencies that disburse Federal financial assistance to recipients, and by courts in private litigation. These two avenues of enforcement (administrative enforcement by agencies, and judicial enforcement by courts) have different features: For instance, administrative enforcement places a recipient’s Federal funding at risk,39 while judicial enforcement does not.40 But the goal of both avenues of enforcement (administrative and judicial) is the same: To further the non-discrimination mandate of Title IX. In deciding whether to recognize a judicially implied right of private action, the Cannon Court considered whether doing so would conflict with administrative enforcement of Title IX. The Cannon Court concluded that far from conflicting with administrative enforcement, judicial enforcement would complement administrative enforcement because some violations of Title IX may lend themselves to the administrative remedy of terminating Federal financial assistance, while other violations may lend themselves to a judicial remedy in private litigation.41 The Cannon Court recognized that 36 441 U.S. 677, 717 (1979). U.S. 60, 76 (1992). 38 Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979) (‘‘Title IX, like its model Title VI, sought to accomplish two related, but nevertheless somewhat different, objectives. First, Congress wanted to avoid the use of federal resources to support discriminatory practices; second, it wanted to provide individual citizens effective protection against those practices.’’). 39 20 U.S.C. 1682. 40 Franklin, 503 U.S. at 76. 41 Cannon, 441 U.S. at 704–06. 37 503 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 judicial and administrative enforcement both help ensure ‘‘the orderly enforcement of the statute’’ to achieve Title IX’s purposes.42 In Franklin, the Supreme Court acknowledged that sexual harassment and sexual abuse of a student by a teacher may mean the school itself engaged in intentional sex discrimination.43 The Franklin Court held that money damages is an available remedy in a private lawsuit under Title IX, reasoning that even though Title IX is a Spending Clause statute, schools have been on notice since enactment of Title IX that intentional sex discrimination is prohibited under Title IX.44 In 1998, six years after Franklin, in Gebser v. Lago Vista Independent School District 45 the Supreme Court analyzed the conditions under which a school district will be liable for money damages for an employee sexually harassing a student. The Gebser Court began its analysis by stating that while Franklin acknowledged that a school employee sexually harassing a student may constitute the school itself committing intentional discrimination on the basis of sex, it was necessary to craft standards defining ‘‘the contours of that liability.’’ 46 The Gebser Court held that where a school has actual knowledge of an employee sexually harassing a student but responds with deliberate indifference to such knowledge, the school itself has engaged in discrimination, subjecting the school to money damages in a private lawsuit under Title IX.47 The following year, in 1999, in Davis v. Monroe County Board 42 Id. at 705–06 (‘‘The award of individual relief to a private litigant who has prosecuted her own suit is not only sensible but is also fully consistent with—and in some cases even necessary to—the orderly enforcement of the statute.’’); see also id. at 707 (‘‘the individual remedy will provide effective assistance to achieving the statutory purposes.’’). 43 Franklin, 503 U.S. at 74–75 (holding intentional discrimination by the school is alleged where the school’s employee sexually harassed a student). 44 Id. at 74 (noting that under Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981), monetary damages may be appropriate to remedy an intentional violation of a Spending Clause statute because entities subject to the statute are on notice that intentional violations of a statute may subject the entity to monetary damages); see also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281 (1998) (noting that in Franklin, the plaintiff alleged that ‘‘school administrators knew about the harassment but took no action, even to the point of dissuading her from initiating charges’’). 45 524 U.S. 274 (1998). 46 Id. at 281 (‘‘Franklin thereby establishes that a school district can be held liable in damages in cases involving a teacher’s sexual harassment of a student; the decision, however, does not purport to define the contours of that liability. We face that issue squarely in this case.’’). 47 Id. at 290. PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 of Education,48 the Supreme Court held that where sexual harassment is committed by a peer rather than an employee, the same standards of actual knowledge and deliberate indifference apply.49 The Davis Court additionally crafted a definition of when sex-based conduct becomes actionable sexual harassment, defining the conduct as ‘‘so severe, pervasive, and objectively offensive’’ that it denies its victims equal access to education.50 The Supreme Court’s Gebser and Davis cases built upon the Supreme Court’s previous Title IX decisions in Cannon and Franklin to establish a three-part framework describing when a school’s response to sexual harassment constitutes the school itself committing discrimination. The three parts of this framework are: Conditions that must exist to trigger a school’s response obligations (actionable sexual harassment, and the school’s actual knowledge) and the deliberate indifference liability standard evaluating the sufficiency of the school’s response. We refer herein to the ‘‘Gebser/Davis framework,’’ consisting of a definition of actionable sexual harassment, the school’s actual knowledge, and the school’s deliberate indifference. The Gebser/Davis framework is the appropriate starting point for ensuring that the Department’s Title IX regulations recognize the conditions under which a school’s response to sexual harassment violates Title IX. Whether the available remedy is money damages (in private litigation) or termination of Federal financial assistance (in administrative enforcement), the Department’s regulations must acknowledge that when a school itself commits sex discrimination, the school has violated Title IX. In crafting the Gebser/Davis framework, the Supreme Court emphasized that because a private lawsuit under Title IX subjects a school to money damages, it was important for the Court to set standards for a school’s liability premised on the school’s knowledge and deliberate choice to permit sexual harassment, analogous to the way that the Title IX statute provides that a school’s Federal 48 526 U.S. 629 (1999). at 650 (holding that ‘‘funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.’’). 50 See id. 49 Id. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations financial assistance is terminated by the Department only after the Department first advises the school of a Title IX violation, attempts to secure voluntary compliance, and the school refuses to come into compliance.51 Nothing in Gebser or Davis purports to restrict the Gebser/Davis framework only to private lawsuits for money damages.52 Rather, the Supreme Court justified that framework as appropriate for recognizing when a school’s response to sexual harassment constitutes intentional discrimination by the school, warranting exposure to money damages in a private Title IX lawsuit. Neither Gebser nor Davis opined as to what the appropriate conditions (e.g., definition of sexual harassment, actual knowledge) and liability standard (e.g., deliberate indifference) must or should be for the Department’s administrative enforcement. The Department has regulatory authority to select conditions and a liability standard different from those used in the Gebser/Davis framework, because the Department has authority to issue rules that require recipients to take administrative actions to effectuate Title IX’s non-discrimination mandate. For example, longstanding Department regulations require recipients to designate an employee to coordinate the recipient’s efforts to comply with Title 51 See, e.g., Gebser, 524 U.S. at 288–90 (examining the administrative enforcement scheme set forth in the Title IX statute, 20 U.S.C. 1682, and concluding that ‘‘[b]ecause the express remedial scheme under Title IX is predicated upon notice to an ‘appropriate person’ and an opportunity to rectify any violation, 20 U.S.C. 1682, we conclude, in the absence of further direction from Congress, that the implied damages remedy should be fashioned along the same lines’’ and adopting the actual knowledge and deliberate indifference standards). 52 The Department notes that courts also have used the Gebser/Davis framework in awarding injunctive relief, not only in awarding monetary damages. E.g., Fitzgerald v. Barnstable Sch. Dist., 555 U.S. 246, 255 (2009) (‘‘In addition, this Court has recognized an implied private right of action . . . In a suit brought pursuant to this private right, both injunctive relief and damages are available.’’) (internal citations omitted; emphasis added); Hill v. Cundiff, 797 F.3d 948, 972–73 (11th Cir. 2015) (reversing summary judgment against plaintiff’s claims for injunctive relief because a jury could find that the alleged conduct was ‘‘severe, pervasive, and objectively offensive’’ under Davis); B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293, 322– 23 (3d Cir. 2013) (upholding preliminary injunction against school for banning students from wearing bracelets because the school failed to show that the ‘‘bracelets would breed an environment of pervasive and severe harassment’’ under Davis); Haidak v. Univ. of Mass. at Amherst, 299 F. Supp. 3d 242, 270 (D. Mass. 2018) (denying plaintiff’s request for a preliminary injunction because he failed to show that the school was deliberately indifferent to an environment of severe and pervasive discriminatory conduct under Davis), aff’d in part, vacated in part, remanded by Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56 (1st Cir. 2019). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 IX,53 to file an assurance of compliance with the Department,54 and to adopt and publish grievance procedures for handling complaints of sex discrimination.55 Failure to do any of the foregoing does not, by itself, mean the school has committed sex discrimination, but the Department lawfully may enforce such administrative requirements because the Department has authority to issue and enforce rules that effectuate the purpose of Title IX.56 These final regulations begin with the Gebser/Davis framework, so that when a school itself commits sex discrimination by subjecting its students or employees to sexual harassment, that form of discrimination is clearly prohibited by these final regulations. The Department adopts the Gebser/Davis framework in these final regulations by defining ‘‘sexual harassment,’’ defining ‘‘actual knowledge,’’ and describing ‘‘deliberate indifference,’’ consistent with Gebser and Davis. The Department does not simply codify the Gebser/Davis framework. Under the Department’s statutory authority to issue rules to effectuate the purpose of Title IX, the Department reasonably expands the definitions of sexual harassment and actual knowledge, and the deliberate indifference standard, to tailor the Gebser/Davis framework to the administrative enforcement context. The Department believes that adapting the Gebser/Davis framework is appropriate for administrative enforcement, because the adapted conditions (definitions of sexual harassment and actual knowledge) and liability standard (deliberate indifference) reflected in these final regulations promote important policy objectives with respect to a recipient’s legal obligations to respond to sexual harassment. As explained in more detail 53 34 CFR 106.8(a). CFR 106.4(a). 55 34 CFR 106.8(b). 56 See, e.g., Gebser, 524 U.S. at 292 (‘‘And in any event, the failure to promulgate a grievance procedure does not itself constitute ‘discrimination’ under Title IX. Of course, the Department of Education could enforce the requirement administratively: Agencies generally have authority to promulgate and enforce requirements that effectuate the statute’s non-discrimination mandate, 20 U.S.C. 1682, even if those requirements do not purport to represent a definition of discrimination under the statute. E.g., Grove City [v. Bell, 465 U.S. 555, 574–575 (1984), superseded by statute on a different point by the Civil Rights Restoration Act of 1987] (permitting administrative enforcement of regulation requiring college to execute an ‘Assurance of Compliance’ with Title IX). We have never held, however, that the implied private right of action under Title IX allows recovery in damages for violation of those sorts of administrative requirements.’’). 54 34 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 30033 in the ‘‘Actual Knowledge’’ and ‘‘Sexual Harassment’’ subsections of the ‘‘Section 106.30 Definitions’’ section of this preamble, and the ‘‘Section 106.44(a) Deliberate Indifference Standard’’ subsection of the ‘‘Section 106.44(a) Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble, the Department believes that: • Including the Davis definition of sexual harassment for Title IX purposes as ‘‘severe, pervasive, and objectively offensive’’ conduct that effectively denies a person equal educational access helps ensure that Title IX is enforced consistent with the First Amendment. At the same time, the Department adapts the Davis definition of sexual harassment in these final regulations by also expressly including quid pro quo harassment and Clery Act/ VAWA sex offenses. This expanded definition of sexual harassment 57 ensures that quid pro quo harassment and Clery Act/VAWA sex offenses trigger a recipient’s response obligations, without needing to be evaluated for severity, pervasiveness, offensiveness, or denial of equal access, because prohibiting such conduct presents no First Amendment concerns and such serious misconduct causes denial of equal educational access; • Using the Gebser/Davis concept of actual knowledge, adapted in these final regulations by including notice to any recipient’s Title IX Coordinator,58 or notice to any elementary and secondary school employee,59 furthers the Department’s policy goals of ensuring that elementary and secondary schools 57 The final regulations define sexual harassment in § 106.30 as follows: Sexual harassment means conduct on the basis of sex that satisfies one or more of the following: (1) An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct; (2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or (3) ‘‘Sexual assault’’ as defined in 20 U.S.C. 1092(f)(6)(A)(v), ‘‘dating violence’’ as defined in 34 U.S.C. 12291(a)(10), ‘‘domestic violence’’ as defined in 34 U.S.C. 12291(a)(8), or ‘‘stalking’’ as defined in 34 U.S.C. 12291(a)(30). 58 As discussed throughout this preamble, the final regulations ensure that every recipient gives its educational community clear, accessible options for reporting sexual harassment to the recipient’s Title IX Coordinator. See, e.g., § 106.8. 59 The final regulations define ‘‘actual knowledge’’ in § 106.30 as notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary or secondary school. E:\FR\FM\19MYR2.SGM 19MYR2 30034 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations respond whenever a school employee knows of sexual harassment or allegations of sexual harassment, while respecting the autonomy of students at postsecondary institutions to decide whether or when to report sexual harassment; and • Using the deliberate indifference standard, adapted in these final regulations by specifying actions that every recipient must take in response to every instance of actual knowledge of sexual harassment,60 ensures that recipients respond to sexual harassment by offering supportive measures designed to restore or preserve a complainant’s equal educational access without treating a respondent as responsible until after a fair grievance process. The deliberate indifference standard achieves these aims without unnecessarily second guessing a recipient’s decisions with respect to appropriate supportive measures, disciplinary sanctions, and remedies when the recipient responds to sexual harassment incidents, which inherently present fact-specific circumstances.61 The Department chooses to build these final regulations upon the foundation established by the Supreme Court, to provide consistency between the rubrics for judicial and administrative enforcement of Title IX, while adapting that foundation for the administrative process, in a manner that achieves important policy objectives unique to sexual harassment in education programs or activities. Differences Between Standards in Department Guidance and These Final Regulations The Department’s guidance on schools’ responses to sexual harassment recommended conditions triggering a school’s response obligations, and a liability standard, that differed in 60 The final regulations require recipients to respond promptly by: offering supportive measures to every complainant (i.e., an individual who is alleged to be the victim of sexual harassment); refraining from imposing disciplinary sanctions on a respondent without first following a prescribed grievance process; investigating every formal complaint filed by a complainant or signed by a Title IX Coordinator; and effectively implementing remedies designed to restore or preserve a complainant’s equal educational access any time a respondent is found responsible for sexual harassment. § 106.44(a); § 106.44(b)(1); § 106.45(b)(3)(i); § 106.45(b)(1)(i); § 106.45(b)(7)(iv). 61 As explained below in the ‘‘Deliberate Indifference’’ subsection of the preamble, the final regulations apply a deliberate indifference standard for evaluating a recipient’s decisions with respect to selection of supportive measures and remedies, and these final regulations do not mandate or scrutinize a recipient’s decisions with respect to disciplinary sanctions imposed on a respondent after a respondent has been found responsible for sexual harassment. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 significant ways from the Gebser/Davis framework and from the approach taken in these final regulations. With respect to the three-part Gebser/Davis framework (i.e., a definition of sexual harassment, actual knowledge condition, and deliberate indifference standard), the Department’s guidance recommended a broader definition of actionable sexual harassment, a constructive notice condition, and a standard closer to strict liability than to deliberate indifference. The Department’s 1997 Guidance used a definition of sexual harassment described as ‘‘sexually harassing conduct (which can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature) by an employee, by another student, or by a third party’’ and indicated that a school’s response was necessary whenever sexual harassment became ‘‘sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment.’’ 62 The 1997 Guidance recommended that schools take action on the basis of constructive notice rather than actual knowledge.63 Instead of a deliberate indifference standard, the 1997 Guidance indicated that the Department would find a school in violation where the school’s response failed to stop the harassment and prevent its recurrence.64 The 2001 Guidance acknowledged that in the time period between the Department issuing the 1997 Guidance and the 2001 Guidance, the Supreme Court’s Gebser and Davis cases addressed the subject of school responses to sexual harassment under Title IX.65 The 2001 Guidance reasoned that because those Supreme Court cases were decided in the context of private lawsuits for money damages under Title IX, the Department was not obligated to adopt the same standards for administrative enforcement.66 The 2001 Guidance noted that the Gebser and Davis decisions analogized to Title IX’s statutory administrative enforcement scheme, which provides that a school receives notice and an opportunity to correct a violation before an agency terminates Federal financial assistance.67 The 2001 Guidance reasoned that because a school always receives notice of a violation and opportunity to voluntarily correct a violation before the Department may terminate Federal financial assistance, the Department was not required to use the actual knowledge condition or deliberate indifference standard, and the 2001 Guidance continued the 1997 Guidance’s approach to constructive notice and strict liability.68 The 2001 Guidance nonetheless asserted that consistency between the judicial and administrative rubrics was desirable, and with respect to a definition of sexual harassment, the 2001 Guidance stated that a multiplicity of definitions (i.e., one definition for private lawsuits and another for administrative enforcement) would not serve the purpose of consistency between judicial and administrative enforcement.69 The 2001 Guidance asserted that the Davis definition of actionable sexual harassment used different words (i.e., severe, pervasive, and objectively offensive) but was consistent with the definition of sexual harassment used in the 1997 Guidance (i.e., severe, persistent, or pervasive).70 65 2001 62 1997 Guidance (‘‘Sexually harassing conduct (which can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature) by an employee, by another student, or by a third party that is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment.’’). 63 1997 Guidance (‘‘[A] school will always be liable for even one instance of quid pro quo harassment by a school employee . . . whether or not it knew, should have known, or approved of the harassment at issue.’’); id. (‘‘a school will be liable under Title IX if its students sexually harass other students if . . . the school knows or should have known of the harassment’’). 64 1997 Guidance (‘‘Once a school has notice of possible sexual harassment of students—whether carried out by employees, other students, or third parties—it should take immediate and appropriate steps to investigate or otherwise determine what occurred and take steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again.’’). PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 Guidance at iii–iv. at ii, iv. 67 Id. at iii–iv (‘‘The Gebser Court recognized and contrasted lawsuits for money damages with the incremental nature of administrative enforcement of Title IX. In Gebser, the Court was concerned with the possibility of a money damages award against a school for harassment about which it had not known. In contrast, the process of administrative enforcement requires enforcement agencies such as OCR to make schools aware of potential Title IX violations and to seek voluntary corrective action before pursuing fund termination or other enforcement mechanisms.’’). 68 Id. at 10 (a ‘‘school has notice of harassment if a responsible school employee actually knew or, in the exercise of reasonable care, should have known about the harassment.’’) (‘‘Schools are responsible for taking prompt and effective action to stop the harassment and prevent its recurrence’’ and the recipient is ‘‘also responsible for remedying any effects of the harassment on the victim . . . .’’). 69 Id. at vi (‘‘schools benefit from consistency and simplicity in understanding what is sexual harassment for which the school must take responsive action. A multiplicity of definitions would not serve this purpose.’’). 70 Id. at v–vi. 66 Id. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations The 2001 Guidance proceeded to describe sexual harassment as ‘‘unwelcome conduct of a sexual nature’’ 71 that is ‘‘severe, persistent, or pervasive’’ 72 and asserted that this definition was consistent with the Davis definition because both definitions ‘‘are contextual descriptions intended to capture the same concept—that under Title IX, the conduct must be sufficiently serious that it adversely affects a student’s ability to participate in or benefit from the school’s program.’’ 73 The withdrawn 2011 Dear Colleague Letter continued to define sexual harassment as ‘‘unwelcome conduct of a sexual nature’’ and added that ‘‘[s]exual violence is a form of sexual harassment prohibited by Title IX’’ without defining sexual violence.74 The withdrawn 2011 Dear Colleague Letter continued the approach from the 2001 Guidance that sexual harassment must be ‘‘sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program’’ but omitted the description of actionable sexual harassment as ‘‘severe, persistent, or pervasive’’ that had been utilized in the 1997 Guidance and the 2001 Guidance.75 The withdrawn 2011 Dear Colleague Letter continued to recommend that schools act upon constructive notice (rather than actual knowledge) and to hold schools accountable under a strict liability standard rather than deliberate indifference.76 71 2001 Guidance at 2. The 2001 Guidance, like the 1997 Guidance, emphasized that sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, by an employee, student, or third party. Similarly, ‘‘sexual harassment’’ defined in these final regulations in § 106.30, includes the foregoing conduct of a sexual nature, as well as other unwelcome conduct ‘‘on the basis of sex’’ even if the conduct is devoid of sexual content. 72 2001 Guidance at vi. 73 Id. 74 2011 Dear Colleague Letter at 3. 75 2011 Dear Colleague Letter at 3 (‘‘As explained in OCR’s 2001 Guidance, when a student sexually harasses another student, the harassing conduct creates a hostile environment if the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the harassment is physical. Indeed, a single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe. For instance, a single instance of rape is sufficiently severe to create a hostile environment.’’). 76 2011 Dear Colleague Letter at 4 (‘‘If a school knows or reasonably should know about studenton-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.’’); id. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 The 2017 Q&A used the definition of actionable sexual harassment as described in the 2001 Guidance, stating that ‘‘when sexual misconduct is so severe, persistent, or pervasive as to deny or limit a student’s ability to participate in or benefit from the school’s programs or activities, a hostile environment exists and the school must respond.’’ 77 The 2017 Q&A relied on the 2001 Guidance’s condition of constructive notice rather than actual knowledge.78 Although the 2017 Q&A did not expressly address the deliberate indifference versus strict liability standard, it directed recipients to the 2001 Guidance for topics not addressed in the 2017 Q&A,79 including what it means for a school to ‘‘respond appropriately’’ when the school ‘‘knows or reasonably should know’’ 80 of a sexual misconduct incident, thereby retaining the 2001 Guidance’s reliance on constructive notice and strict liability. To the extent that the Department intended for schools to understand the 1997 Guidance, the 2001 Guidance, the withdrawn 2011 Dear Colleague Letter, or the 2017 Q&A as descriptions of a school’s legal obligations under Title IX, those guidance documents directed schools to apply standards that failed to adequately address the unique challenges presented by sexual harassment incidents in a school’s education program or activity. The Department believes that sexual harassment affects ‘‘the equal access to education that Title IX is designed to protect’’ 81 and this problem warrants legally binding regulations addressing sexual harassment as a form of sex discrimination under Title IX, instead of at 4 fn. 12 (‘‘This is the standard for administrative enforcement of Title IX and in court cases where plaintiffs are seeking injunctive relief. . . . The standard in private lawsuits for monetary damages is actual knowledge and deliberate indifference. See Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643, 648 (1999).’’). 77 2017 Q&A at 1. 78 2017 Q&A at 2 (citing to the 2001 Guidance for the proposition that ‘‘where the school knows or reasonably should know of an incident of sexual misconduct, the school must take steps to understand what occurred and to respond appropriately’’) (emphasis added). 79 See 2017 Q&A at 1 (‘‘The Department of Education intends to engage in rulemaking on the topic of schools’ Title IX responsibilities concerning complaints of sexual misconduct, including peeron-peer sexual harassment and sexual violence. The Department will solicit input from stakeholders and the public during that rulemaking process. In the interim, these questions and answers—along with the [2001] Revised Sexual Harassment Guidance previously issued by the Office for Civil Rights— provide information about how OCR will assess a school’s compliance with Title IX.’’) (emphasis added). 80 Id. 81 Davis, 526 U.S. at 652. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 30035 mere guidance documents which are not binding and do not have the force and effect of law.82 The starting place for describing such legal obligations is adoption of the Gebser/Davis framework because that framework describes when sexual harassment constitutes a school itself discriminating on the basis of sex in violation of Title IX. At the same time, the Department adapts the threepart Gebser/Davis framework to further the purposes of Title IX in the context of administrative enforcement, holding schools responsible for taking more actions than what the Gebser/Davis framework requires. The Department’s adaptions of the three-part Gebser/Davis framework achieve important policy objectives that arise in the context of a school’s response to reports, allegations, or incidents of sexual harassment in a school’s education program or activity, including respect for freedom of speech and academic freedom,83 respect for complainants’ autonomy,84 protection of complainants’ equal educational access while respecting the decisions of State and local educators to determine appropriate supportive measures, remedies, and disciplinary sanctions,85 consistency with constitutional due process and fundamental fairness, and clear legal obligations that enable robust administrative enforcement of Title IX violations.86 The adaptions of the Gebser/Davis framework in these final regulations do not codify the Department’s guidance yet provide recipients with flexibility, subject to the legal requirements in these final regulations, to respond to a greater range of misconduct, operate on a condition of constructive notice, or respond under a strict liability standard, if the recipient chooses to adopt those guidance-based standards for itself, or if the recipient is 82 Perez v. Mortgage Bankers’ Ass’n, 575 U.S. 92, 97 (2015). 83 For further discussion see the ‘‘Sexual Harassment’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble. 84 For discussion of the way that an actual knowledge standard, and a requirement for recipients to investigate upon receipt of a formal complaint, respect complainant’s autonomy, see the ‘‘Actual Knowledge’’ and ‘‘Formal Complaint’’ subsections of the ‘‘Section 106.30 Definitions’’ section of this preamble. 85 For further discussion, see the ‘‘Deliberate Indifference’’ subsection of this ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section and the ‘‘Section 106.44(a) Deliberate Indifference Standard’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble. 86 For further discussion, see the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30036 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations required under State or other laws to adopt those standards. Definition of Sexual Harassment Importantly, the final regulations continue the 1997 Guidance and 2001 Guidance approach of including as sexual harassment unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature by an employee, by another student, or by a third party.87 Section 106.30 provides that ‘‘sexual harassment’’ is conduct ‘‘on the basis of sex’’ including ‘‘unwelcome conduct.’’ This definition therefore includes unwelcome conduct of a sexual nature, or other unwelcome conduct on the basis of sex, consistent with Department guidance. Equally as important is recognizing that these final regulations continue the withdrawn 2011 Dear Colleague Letter’s express acknowledgment that sexual violence is a type of sexual harassment; the difference is that these final regulations expressly define sex-based violence, by reference to the Clery Act and VAWA. The way in which these final regulations differ from guidance in defining actionable sexual harassment is by returning to the 2001 Guidance’s premise that a consistent definition of sexual harassment used in both judicial and administrative enforcement is appropriate. Despite the 2001 Guidance’s assertion that using ‘‘different words’’ from the Davis definition of actionable sexual harassment did not result in inconsistent definitions for use in judicial and administrative enforcement, the Department has reconsidered that assertion because that assertion did not bear out over time.88 These final regulations thus use (as one of three categories of conduct that constitutes sexual harassment) the Davis Court’s phrasing verbatim: unwelcome conduct that a reasonable person would determine is ‘‘so severe, pervasive, and objectively offensive’’ that it effectively denies a person equal access to education.89 The Department chooses to 87 2001 Guidance at 2; 1997 Guidance. ‘‘Sexual Harassment’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble discusses in greater detail how the Davis definition of sexual harassment as ‘‘severe, pervasive, and objectively offensive’’ comports with First Amendment protections, and the way in which a broader definition, such as severe, persistent, or pervasive (as used in the 1997 Guidance and 2001 Guidance), has led to infringement of rights of free speech and academic freedom of students and faculty. 89 Davis, 526 U.S. at 650 (‘‘We thus conclude that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, 88 The VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 return to the premise expressed in the 2001 Guidance: The Department has an interest in providing recipients with ‘‘consistency and simplicity in understanding what is sexual harassment for which the school must take responsive action. A multiplicity of definitions would not serve this purpose.’’ 90 In addition to using the Davis definition verbatim (i.e., conduct that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education), the proposed regulations defined ‘‘sexual harassment’’ to also include sexual assault as defined in the Clery Act. In these final regulations, the Department retains reference to sexual assault under the Clery Act, and additionally incorporates the definitions of dating violence, domestic violence, and stalking in the Clery Act as amended by VAWA.91 Incorporating these four Clery Act/VAWA offenses clarifies that sexual harassment includes a single instance of sexual assault, dating violence, domestic violence, or stalking. Such incorporation is consistent with the Supreme Court’s observation in Davis that a single instance of sufficiently severe harassment on the basis of sex may have the systemic effect of denying the victim equal access to an education program or activity.92 However, the Department’s inclusion of sexual assault, dating violence, domestic violence, and stalking in the § 106.30 definition of sexual harassment, without requiring those sex offenses to meet the Davis elements of severity, pervasiveness, and objective and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.’’); § 106.30 (defining ‘‘sexual harassment’’ to include conduct ‘‘on the basis of sex’’ including ‘‘unwelcome conduct’’ that a reasonable person would determine to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity). 90 2001 Guidance at vi. 91 Section 106.30 (defining ‘‘sexual harassment’’ to include sexual assault, dating violence, domestic violence or stalking as defined in the Clery Act and VAWA statutes). 92 See Davis, 526 U.S. at 652–53 (noting that with respect to ‘‘severe, gender-based mistreatment’’ even ‘‘a single instance of sufficiently severe oneon-one peer harassment could be said to’’ have ‘‘the systemic effect of denying the victim equal access to an educational program or activity.’’). Although the withdrawn 2011 Dear Colleague Letter expressly disclaimed reliance on Davis, that guidance also stated that ‘‘The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the harassment is physical. Indeed, a single or isolated incident of sexual harassment may create a hostile environment if the incident is sufficiently severe. For instance, a single instance of rape is sufficiently severe to create a hostile environment.’’ 2011 Dear Colleague Letter at 3. PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 offensiveness, appropriately guards against, for instance, some sexual assaults or incidents of dating violence or domestic violence being covered under Title IX while other sexual assaults or incidents of dating violence or domestic violence are deemed not to be ‘‘pervasive’’ enough to meet the Davis standard. Similarly, this approach guards against a pattern of sex-based stalking being deemed ‘‘not severe’’ even though the pattern of behavior is ‘‘pervasive.’’ Such incorporation also provides consistency and clarity with respect to the intersection among Title IX, the Clery Act, and VAWA.93 The final regulations retain the proposed rules’ definition of ‘‘quid pro quo’’ harassment in the definition of sexual harassment.94 The Department recognized quid pro quo sexual harassment in its 1997 Guidance and 2001 Guidance, and cited to court cases that recognized quid pro quo sexual harassment under Title IX.95 93 Although elementary and secondary schools are not subject to the Clery Act, elementary and secondary school recipients must look to the definitions of sexual assault, dating violence, domestic violence, and stalking as defined in the Clery Act and VAWA in order to address those forms of sexual harassment under Title IX. These final regulations do not, however, alter the regulations implemented under the Clery Act or an institution of higher education’s obligations, if any, under regulations implementing the Clery Act. 94 Section 106.30 defines ‘‘sexual harassment’’ to include: An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on the individual’s participation in unwelcome sexual conduct. This type of harassment is commonly referred to as quid pro quo sexual harassment. 95 See, e.g., 2001 Guidance at 5, 10 (citing Alexander v. Yale University, 459 F. Supp. 1, 4 (D. Conn. 1977), aff’d, 631 F.2d 178 (2d Cir. 1980) (stating that a claim ‘‘that academic advancement was conditioned upon submission to sexual demands constitutes [a claim of] sex discrimination in education . . .’’)); see also Crandell v. New York Coll., Osteopathic Med., 87 F. Supp. 2d 304, 318 (S.D.N.Y. 2000) (finding that allegations that a supervisory physician demanded that a student physician spend time with him and have lunch with him or receive a poor evaluation, in light of the totality of his alleged sexual comments and other inappropriate behavior, constituted a claim of quid pro quo harassment); Kadiki v. Va. Commonwealth Univ., 892 F. Supp. 746, 752 (E.D. Va. 1995). The 2011 Dear Colleague Letter focused on peer harassment but expressly referred to the 2001 Guidance for the appropriate approach to sexual harassment by employees (i.e., quid pro quo harassment). 2011 Dear Colleague Letter at 2, fn. 8 (‘‘This letter focuses on peer sexual harassment and violence. Schools’ obligations and the appropriate response to sexual harassment and violence committed by employees may be different from those described in this letter. Recipients should refer to the 2001 Guidance for further information about employee harassment of students.’’); see also 2017 Q&A at 1 (not referencing quid pro quo sexual harassment, but directing recipients to look to the 2001 Guidance regarding matters not specifically addressed in the 2017 Q&A). Quid pro quo sexual harassment also is recognized under Title VII. E.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752– 53 (1998). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations The Honorable Janet Napolitano, the President of the University of California, who is a former Governor and Attorney General of Arizona and a former United States Secretary of Homeland Security, observed that under the Department’s guidance recipients had to grapple with ‘‘a broad continuum of conduct, from offensive statements to gang rape’’ 96 and the Department’s guidance, especially after the 2001 Guidance was supplemented and altered by the withdrawn 2011 Dear Colleague Letter, caused recipients ‘‘uncertainty and confusion about how to appropriately comply.’’ 97 By utilizing precise definitions of conduct that constitutes sexual harassment, the Department aims to reduce uncertainty and confusion for recipients, students, and employees, while ensuring conduct that jeopardizes equal educational access remains conduct to which a recipient must respond under Title IX. Some commenters requested that the Department more closely align its definition of actionable sexual harassment with the definition that the Supreme Court uses in the context of discrimination because of sex in the workplace under Title VII. Specifically, commenters urged the Department to use a definition of sexual harassment that is ‘‘severe or pervasive’’ because that definition is used under Title VII 98 and the 1997 Guidance and 2001 Guidance relied on Title VII case law in using the definition of sexual harassment that is ‘‘severe, persistent, or pervasive.’’ 99 However, in Davis, a case concerning sexual harassment of a fifthgrade student by another student, the Supreme Court did not adopt the Title VII definition of sexual harassment for use under Title IX, defining actionable sexual harassment for Title IX purposes as conduct that is ‘‘severe, pervasive, and objectively offensive.’’ 100 The Department is persuaded by the Supreme Court’s reasoning that 96 Janet Napolitano, ‘‘Only Yes Means Yes’’: An Essay on University Policies Regarding Sexual Violence and Sexual Assault, 33 Yale L. & Pol’y Rev. 387, 388 (2015). 97 Id. 98 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (‘‘For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.’’) (internal quotation marks and citation omitted) (emphasis added). 99 2001 Guidance at vi (stating that ‘‘the definition of hostile environment sexual harassment found in OCR’s 1997 guidance . . . derives from Title VII caselaw’’). 100 Davis, 526 U.S. at 652 (‘‘Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.’’) (emphasis added). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 elementary and secondary ‘‘schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults.’’ 101 These final regulations also are consistent with the Equal Access Act, requiring that public secondary schools provide equal access to limited public forums without discriminating against the students ‘‘on the basis of the religious, political, philosophical, or other content of speech.’’ 102 Similarly, an institution of higher education differs from the workplace. In this regard, these final regulations are consistent with the sense of Congress in the Higher Education Act of 1965, as amended, that ‘‘an institution of higher education should facilitate the free and open exchange of ideas.’’ 103 The sense of Congress is that institutions of higher education should facilitate the free and robust exchange of ideas,104 but such an exchange may prove disruptive, undesirable, or impermissible in the workplace. Moreover, workplaces are generally expected to be free from conduct and conversation of a sexual nature, and it is common for employers to prohibit or discourage employees from engaging in romantic interactions at work.105 By contrast, it has become expected that college and university students enjoy personal freedom during their higher education experience,106 101 Davis, 526 U.S. at 651–52 (citing Meritor, 477 U.S. at 67). 102 20 U.S.C. 4071(a). 103 20 U.S.C. 1101a(a)(2)(C). 104 20 U.S.C. 1101a(a)(2)(C). 105 See, e.g., Vicki Schultz, The Sanitized Workplace, 112 Yale L. J. 2061, 2191 (2003) (examining the trend through the twentieth century toward a societal expectation that workplaces must be rational environments ‘‘devoid of sexuality and other distracting passions’’ in which employers ‘‘increasingly ban or discourage employee romance’’ and observing that both feminist theory and classical-management theory supported this trend, the former on equality grounds and the latter on efficiency grounds, but arguing that workplaces should instead focus on sex equality without ‘‘chilling intimacy and solidarity among employees of both a sexual and nonsexual variety.’’); cf. Rebecca K. Lee, The Organization as a Gendered Entity: A Response to Professor Schultz’s ‘‘The Sanitized Workplace’’, 15 Columbia J. of Gender & Law 609 (2006) (rebutting the notion that a sexualized workplace culture would be beneficial for sex equality, arguing that the ‘‘probable harms’’ would ‘‘outweigh the possible benefits of allowing sexuality to prosper in the work organization’’ and defending the ‘‘sexuality-constrained organizational paradigm in light of concerns regarding the role of work, on-the-job expectations, and larger workplace dynamics.’’). 106 Kristen Peters, Protecting the Millennial College Student, 16 S. Cal. Rev. of L. & Social Justice 431, 437 (2007) (noting that the doctrine of in loco parentis in the higher education context diminished in the 1960s and ‘‘[b]y the early 1970s, college students had successfully vindicated their contractual and civil rights, redefining the collegestudent relationship to emphasize student freedom PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 30037 and it is not common for an institution to prohibit or discourage students from engaging in romantic interactions in the college environment.107 The Department does not wish to apply the same definition of actionable sexual harassment under Title VII to Title IX because such an application would equate workplaces with educational environments, whereas both the Supreme Court and Congress have noted the unique differences of educational environments from workplaces and the importance of respecting the unique nature and purpose of educational environments. As discussed further in the ‘‘Sexual Harassment’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, applying the same definition of actionable sexual harassment under Title VII to Title IX may continue to cause recipients to chill and infringe upon the First Amendment freedoms of students, teachers, and faculty by broadening the scope of prohibited speech and expression. The Department’s use of the Davis definition of sexual harassment in these final regulations returns to the Department’s intent stated in the 2001 Guidance: That the Department’s definition of sexual harassment should be consistent with the definition of sexual harassment in Davis. The Davis definition of sexual harassment adopted in these final regulations, adapted by the Department’s inclusion of quid pro quo harassment and the four Clery Act/ VAWA offenses, will help prevent infringement of First Amendment freedoms, clarify confusion by precisely defining sexual violence independent from the Davis definition, clarify the intersection among Title IX, the Clery Act, and VAWA with respect to sexbased offenses, and ensure that recipients must respond to students and employees victimized by sexual harassment that jeopardizes a person’s equal educational access. Recipients may continue to address harassing conduct that does not meet the § 106.30 definition of sexual harassment, as acknowledged by the Department’s change to § 106.45(b)(3)(i) and abrogate college authority.’’) (internal citations omitted). 107 Justin Neidig, Sex, Booze, and Clarity: Defining Sexual Assault on a College Campus, 16 William & Mary J. of Women & the L. 179, 180–81 (2009) (‘‘College is an exciting and often confusing time for students. This new experience is defined by coed dorms, near constant socializing that often involves alcohol, and the ability to retreat to a private room with no adult supervision. The environment creates a socialization process where appropriate behavior is defined by the actions of peers, particularly when it comes to sexual behavior.’’) (internal citations omitted). E:\FR\FM\19MYR2.SGM 19MYR2 30038 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations to clarify that dismissal of a formal complaint because the allegations do not meet the Title IX definition of sexual harassment, does not preclude a recipient from addressing the alleged misconduct under other provisions of the recipient’s own code of conduct.108 Actual Knowledge The Department adopts and adapts the Gebser/Davis framework’s condition of ‘‘actual knowledge.’’ 109 The Supreme Court held that a recipient with actual knowledge of sexual harassment commits intentional discrimination (if the recipient responds in a deliberately indifferent manner).110 Because Title IX is a statute ‘‘designed primarily to prevent recipients of Federal financial assistance from using the funds in a discriminatory manner,’’ 111 it is a recipient’s own misconduct—not the sexually harassing behavior of employees, students, or other third parties—that subjects the recipient to liability in a private lawsuit under Title IX, and the recipient cannot commit its own misconduct unless the recipient first knows of the sexual harassment that needs to be addressed.112 Because Congress enacted Title IX under its Spending Clause authority, the obligations it imposes on recipients are in the nature of a contract.113 The Supreme Court held that ‘‘a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute 108 Section 106.45(b)(3). Similarly, nothing in these final regulations prevents a recipient from addressing conduct that is outside the Department’s jurisdiction due to the conduct constituting sexual harassment occurring outside the recipient’s education program or activity, or occurring against a person who is not located in the United States. 109 Davis, 526 U.S. at 642 (stating that actual knowledge ensures that liability arises from ‘‘an official decision by the recipient not to remedy the violation’’) (citing Gebser, 524 U.S. at 290) (internal quotation marks omitted). 110 Gebser, 524 U.S. at 287–88 (‘‘If a school district’s liability for a teacher’s sexual harassment rests on principles of constructive notice or respondeat superior, it will likewise be the case that the recipient of funds was unaware of the discrimination. It is sensible to assume that Congress did not envision a recipient’s liability in damages in that situation.’’). 111 Gebser, 524 U.S. at 292; Cannon, 441 U.S. at 704 (noting that the primary congressional purposes behind Title IX were ‘‘to avoid the use of Federal resources to support discriminatory practices’’ and to ‘‘provide individual citizens effective protection against those practices.’’). 112 E.g., Julie Davies, Assessing Institutional Responsibility for Sexual Harassment in Education, 77 Tulane L. Rev. 387, 402 (2002) (analyzing the Gebser/Davis framework and noting, ‘‘The Court concluded that a funding recipient’s contract with the federal government encompassed only a promise not to discriminate, not an agreement to be held liable when employees discriminate.’’). 113 Gebser, 524 U.S. at 286; Davis, 526 U.S. at 640. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.’’ 114 The Supreme Court reasoned that it would be ‘‘unsound’’ for the Court to allow a private lawsuit (with the potential for money damages) against a recipient when the statute’s administrative enforcement scheme imposes a requirement that before an agency may terminate Federal funds the agency must give notice to ‘‘an appropriate person’’ with the recipient who then may decide to voluntarily take corrective action to remedy the violation.115 The Supreme Court reasoned that a ‘‘central purpose of requiring notice of the violation ‘to the appropriate person’ and an opportunity for voluntary compliance before administrative enforcement proceedings can commence is to avoid diverting education funding from beneficial uses where a recipient was unaware of discrimination in its programs and is willing to institute prompt corrective measures.’’ 116 The Supreme Court thus rejected theories of vicarious liability (e.g., respondeat superior) and constructive notice as the basis for a recipient’s Title IX liability in private Title IX lawsuits.117 The Supreme Court noted that the Department’s 1997 Guidance held schools responsible under vicarious liability and constructive notice theories.118 Neither Gebser nor Davis indicated whether the Department’s administrative enforcement of Title IX should continue to rely on vicarious liability and constructive notice as conditions triggering a recipient’s response obligations. These final regulations adopt the actual knowledge condition from the 114 Gebser, 524 U.S. at 290. at 289–90 (‘‘Because the express remedial scheme under Title IX is predicated upon notice to an ‘appropriate person’ and an opportunity to rectify any violation, 20 U.S.C. 1682, we conclude, in the absence of further direction from Congress, that the implied damages remedy should be fashioned along the same lines. An ‘appropriate person’ under § 1682 is, at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination.’’). 116 Id. at 289. The Court continued, ‘‘When a teacher’s sexual harassment is imputed to a school district or when a school district is deemed to have ‘constructively’ known of the teacher’s harassment, by assumption the district had no actual knowledge of the teacher’s conduct. Nor, of course, did the district have an opportunity to take action to end the harassment or to limit further harassment.’’ Id. 117 Id.; Davis, 526 U.S. at 650. 118 Gebser, 524 U.S. at 282 (plaintiffs in Gebser advocated for private lawsuit liability based on vicarious liability and constructive notice in part by looking at the Department’s 1997 Guidance which relied on both theories). 115 Id. PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 Gebser/Davis framework so that these final regulations clearly prohibit a recipient’s own intentional discrimination,119 but adapt the Gebser/ Davis condition of actual knowledge to include notice to more recipient employees than what is required under the Gebser/Davis framework,120 in a way that takes into account the different needs and expectations of students in elementary and secondary schools, and in postsecondary institutions, with respect to sexual harassment and sexual harassment allegations.121 These final regulations apply an adapted condition of actual knowledge in ways that are similar to, and different from, the Department’s approach in guidance as to when notice of sexual harassment triggers a recipient’s response obligations. In other words, we tailor the Supreme Court’s condition of actual knowledge to the unique context of administrative enforcement. The Department’s guidance used a ‘‘responsible employees’’ rubric to describe the pool of employees to whom notice triggered the recipient’s response obligations. The ‘‘responsible employees’’ rubric in guidance did not differentiate between elementary and secondary schools, and postsecondary institutions. For all recipients, Department guidance stated that a ‘‘responsible employee’’ was an employee who ‘‘has the authority to take action to redress the harassment,’’ or ‘‘who has the duty to report to appropriate school officials sexual harassment or any other misconduct by students or employees,’’ or an individual ‘‘who a student could reasonably believe has this authority or responsibility.’’ 122 Under the 119 Section 106.30 (defining ‘‘actual knowledge’’ to include notice to any recipient’s officials with authority to institute corrective measures on behalf of the recipient, thereby mirroring the Gebser/Davis condition of actual knowledge). 120 Section 106.30 (defining ‘‘actual knowledge’’ to include notice to any recipient’s Title IX Coordinator, a position each recipient must designate and authorize for the express purpose of coordinating a recipient’s compliance with Title IX obligations, including specialized training for the Title IX Coordinator, requirements not found in the Gebser/Davis framework); § 106.8(a); § 106.45(b)(1)(iii). 121 Section 106.30 (defining ‘‘actual knowledge’’ to include notice to ‘‘any employee’’ in an elementary and secondary school, a condition not found in the Gebser/Davis framework). 122 2001 Guidance at 13–14; 1997 Guidance (while not using the same three-part definition of ‘‘responsible employees’’ as the 2001 Guidance, giving examples of a ‘‘responsible employee’’ to include ‘‘a principal, campus security, bus driver, teacher, an affirmative action officer, or staff in the office of student affairs’’); 2011 Dear Colleague Letter at 4 (while not using the term ‘‘responsible employees,’’ stating that a school must respond whenever it ‘‘knows or reasonably should know’’ about sexual harassment); id. at 2 (stating that ‘‘This E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations responsible employees rubric in guidance, the recipient was liable when a responsible employee ‘‘knew,’’ or when a responsible employee ‘‘should have known,’’ about possible harassment.123 For reasons discussed below, these final regulations do not use the ‘‘responsible employees’’ rubric, although these final regulations essentially retain the first of the three categories of the way guidance described ‘‘responsible employees.’’ 124 As discussed below, these final regulations depart from the ‘‘should have known’’ condition that guidance indicated would trigger a recipient’s response obligations. Rather than using the phrase ‘‘responsible employees,’’ these final regulations describe the pool of employees to whom notice triggers the recipient’s response obligations. That pool of employees is different in elementary and secondary schools than in postsecondary institutions. For all recipients, notice to the recipient’s Title IX Coordinator or to ‘‘any official of the letter supplements the 2001 Guidance by providing additional guidance and practical examples regarding the Title IX requirements as they relate to sexual violence’’ thus indicating that the 2011 Dear Colleague Letter did not alter the 2001 Guidance’s approach to responsible employees); 2014 Q&A at 14 (‘‘According to OCR’s 2001 Guidance, a responsible employee includes any employee: who has the authority to take action to redress sexual violence; who has been given the duty of reporting incidents of sexual violence or any other misconduct by students to the Title IX coordinator or other appropriate school designee; or whom a student could reasonably believe has this authority or duty.’’); 2017 Q&A 1–2 (citing to the 2001 Guidance for the proposition that a school must respond whenever the school ‘‘knows or reasonably should know’’ of a sexual misconduct incident and that in addition to a Title IX Coordinator other employees ‘‘may be responsible employees’’). 123 1997 Guidance (a school is liable where it ‘‘knows or should have known’’); 2001 Guidance at 13 (‘‘A school has notice if a responsible employee knew, or in the exercise of reasonable care should have known, about the harassment.’’) (internal quotation marks omitted); 2011 Dear Colleague Letter at 4; 2014 Q&A at 2 (‘‘OCR deems a school to have notice of student-on-student sexual violence if a responsible employee knew, or in the exercise of reasonable care should have known, about the sexual violence.’’); 2017 Q&A at 1. 124 The § 106.30 definition of ‘‘actual knowledge’’ including notice to ‘‘any official of the recipient who has authority to institute corrective measures on behalf of the recipient’’ is the equivalent of the first portion of the definition of ‘‘responsible employees’’ in Department guidance (e.g., 2001 Guidance at 13), that included any employee who ‘‘has the authority to take action to redress the harassment.’’ See also Merle H. Weiner, A Principled and Legal Approach to Title IX Reporting, 85 Tenn. L. Rev. 71, 140 (2017) (‘‘The Supreme Court’s definition of an ‘appropriate person’ ’’ as an ‘official who at a minimum has authority to address the alleged discrimination and to institute corrective measures’ is ‘‘very close to the first category [of responsible employees] in OCR’s guidance.’’) (citing Gebser, 524 U.S. at 290). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 recipient who has authority to institute corrective measures on behalf of the recipient’’ (referred to herein as ‘‘officials with authority’’) conveys actual knowledge to the recipient and triggers the recipient’s response obligations. Determining whether an individual is an ‘‘official with authority’’ is a legal determination that depends on the specific facts relating to a recipient’s administrative structure and the roles and duties held by officials in the recipient’s own operations. The Supreme Court viewed this category of officials as the equivalent of what 20 U.S.C. 1682 calls an ‘‘appropriate person’’ for purposes of the Department’s resolution of Title IX violations with a recipient.125 Lower Federal courts applying the Gebser/ Davis actual knowledge condition have reached various results with respect to whether certain employees in an elementary and secondary school, or in a postsecondary institution, are officials with authority to whom notice conveys actual knowledge to the recipient.126 Because these final regulations adopt the Gebser/Davis condition describing a recipient’s actual knowledge as resulting from notice to an official with authority, but also include the recipient’s Title IX Coordinator and any elementary and secondary school employee, the fact-specific nature of whether certain officials of the recipient qualify as officials with authority does not present a barrier to reporting sexual harassment and requiring schools, colleges, and universities to respond promptly. Under these final regulations, in elementary and secondary schools, 125 Gebser, 524 U.S. at 290 (‘‘Because the express remedial scheme under Title IX is predicated upon notice to an ‘appropriate person’ and an opportunity to rectify any violation, 20 U.S.C. 1682, we conclude, in the absence of further direction from Congress, that the implied damages remedy should be fashioned along the same lines. An ‘appropriate person’ under § 1682 is, at a minimum, an official of the recipient entity with authority to take corrective action to end the discrimination.’’). 126 With respect to elementary and secondary schools, see Julie Davies, Assessing Institutional Responsibility for Sexual Harassment in Education, 77 Tulane L. Rev. 387, 398, 424–26 (2002) (reviewing cases decided under the Gebser/Davis framework and noting that courts reached different results regarding teachers, principals, school boards, and superintendents, and concluding that ‘‘The legal authority of individuals to receive notice is clearly relevant and a basis for their inclusion as parties to whom notice may be given, but courts must also evaluate the factual reality.’’) With respect to postsecondary institutions, see Merle H. Weiner, A Principled and Legal Approach to Title IX Reporting, 85 Tenn. L. Rev. 71, 139 (2017) (‘‘Overall, this category is rather narrow and the identity of the relevant employees rests on an institution’s own policies regarding who has the authority to take action to redress sexual violence.’’). PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 30039 notice to ‘‘any employee’’ (in addition to notice to the Title IX Coordinator or to any official with authority) triggers the recipient’s response obligations, so there is no longer a need to use the responsible employees rubric. Under these final regulations, an elementary and secondary school must respond whenever any employee has notice of sexual harassment or allegations of sexual harassment, so there is no need to distinguish among employees who have ‘‘authority to redress the harassment,’’ have the ‘‘duty to report’’ misconduct to appropriate school officials, or employees who ‘‘a student could reasonably believe’’ have that authority or duty.127 In the elementary and secondary school setting where school administrators, teachers, and other employees exercise a considerable degree of control and supervision over their students, the Department believes that requiring a school district to respond when its employees know of sexual harassment (including reports or allegations of sexual harassment) furthers Title IX’s non-discrimination mandate in a manner that best serves the needs and expectations of students.128 The Department is persuaded by commenters who asserted that students in elementary and secondary schools often talk about sexual harassment experiences with someone other than their teacher, and that it is unreasonable to expect young students to differentiate among employees for the purpose of which employees’ knowledge triggers the school’s response obligations and which do not. Elementary and secondary schools generally operate under the doctrine of in loco parentis, under which the school stands ‘‘in the place of’’ a parent with respect to certain authority over, and responsibility for, its students.129 Further, employees at 127 See 2001 Guidance at 13. 526 U.S. at 646 (noting that a public school’s power over its students is ‘‘custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults’’) (citing Veronica Sch. Dist. v. Acton, 515 U.S. 646, 655 (1995)). 129 Todd A. Demitchell, The Duty to Protect: Blackstone’s Doctrine of In Loco Parentis: A Lens for Viewing the Sexual Abuse of Students, 2002 BYU Educ. & L. J. 17, 19–20 (2002) (‘‘Acting in the place of parents is an accepted and expected role assumed by educators and their schools. This doctrine has been recognized in state statutes and court cases. For example, the United States Supreme Court noted that there exists an ‘obvious concern on the part of parents, and school authorities acting in loco parentis, to protect children—especially in a captive audience—from exposure to sexually explicit, indecent, or lewd speech. [Citing to Bethel Sch. Dist. No. 403 v. Fraser ex rel. Fraser, 478 U.S. 675, 684 (1986).] According to the Supreme Court, school officials have 128 Davis, E:\FR\FM\19MYR2.SGM Continued 19MYR2 30040 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations elementary and secondary schools typically are mandatory reporters of child abuse under State laws for purposes of child protective services.130 The Department is persuaded that employees at elementary and secondary schools stand in a unique position with respect to students and that a school district should be held accountable for responding to sexual harassment under Title IX when the school district’s employees have notice of sexual harassment or sexual harassment allegations. In postsecondary institutions, where in loco parentis does not apply,131 notice to the Title IX Coordinator or any official with authority conveys actual knowledge to the recipient. Triggering a recipient’s response obligations only when the Title IX Coordinator or an official with authority has notice authority over students by virtue of in loco parentis and a concomitant duty of protection. It has been asserted that in loco parentis is a sub-set of government’s broad common law power of parens patriae.’’) (internal citations omitted). 130 See Ala. Code § 26–14–3; Alaska Stat. § 47.17.020; Ariz. Rev. Stat. § 13–3620; Ark. Code Ann. § 12–18–402; Cal. Penal Code § 11165.7; Colo. Rev. Stat. § 19–3–304; Conn. Gen. Stat. § 17a–101; Del. Code Ann. tit. 16, § 903; DC Code § 4–1321.02; Fla. Stat. § 39.201; Ga. Code Ann. § 19–7–5; Haw. Rev. Stat. § 350–1.1; Idaho Code Ann. § 16–1605; 325 Ill. Comp. Stat. § 5/4; Ind. Code § 31–33–5–1; Iowa Code § 232.69; Kan. Stat. Ann. § 38–2223; Ky. Rev. Stat. Ann. § 620.030; La. Child Code Ann. art. 603(17); Me. Rev. Stat. tit. 22, § 4011–A; Md. Code Ann., Fam. Law § 5–704; Mass. Gen. Laws ch. 119, § 21; Mich. Comp. Laws § 722.623; Minn. Stat. § 626.556; Miss. Code. Ann. § 43–21–353; Mo. Ann Stat. § 210.115; Mont. Code Ann. § 41–3–201; Neb. Rev. Stat. § 28–711; Nev. Rev. Stat. § 432B.220; N.H. Rev. Stat. Ann. § 169–C:29; N.J. Stat. Ann. § 9:6– 8.10; N.M. Stat. Ann. § 32A–4–3; N.Y. Soc. Serv. Law § 413; N.C. Gen. Stat. Ann. § 7B–301; N.D. Cent. Code Ann. § 50–25.1–03; Ohio Rev. Code Ann. § 2151.421; Okla. Stat. tit. 10A, § 1–2–101; Or. Rev. Stat. § 419B.010; 23 Pa. Cons. Stat. Ann § 6311; R.I. Gen. Laws § 40–11–3(a); S.C. Code Ann. § 63– 7–310; S.D. Codified Laws § 26–8A–3; Tenn. Code Ann. § 37–1–403; Tex. Fam. Code § 261.101; Utah Code Ann. § 62A–4a–403; Vt. Stat. Ann. tit. 33, § 4913; Va. Code Ann. § 63.2–1509; Wash. Rev. Code § 26.44.030; W. Va. Code § 49–2–803; Wis. Stat. § 48.981; Wyo. Stat. Ann. § 14–3–205. 131 E.g., Wagner v. Holtzapple, 101 F. Supp. 3d 462, 472–73 (M.D. Penn. 2015) (noting that ‘‘the law surrounding the student-university relationship has changed considerably in a relatively short period of time. ‘The early period of American higher education, prior to the 1960s, was exclusively associated with the doctrine of in loco parentis.’ ’’) (citing to Jason A. Zwara, Student Privacy, Campus Safety, and Reconsidering the Modern StudentUniversity Relationship, 38 Journal of Coll. & Univ. L. 419, 432–33, 436 (2012) (‘‘In loco parentis was applied in the early period of higher education law to prevent courts or legislatures from intervening in the student-university relationship, thus insulating the institution from criminal or civil liability or regulation . . . . Courts began to shift away from in loco parentis beginning in the civil rights era of the 1960s through a number of cases addressing student claims for constitutional rights, in particular due process rights and free speech’’ and courts now generally view the student-university relationship as one governed by contract) (internal quotation marks and citations omitted)). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 respects the autonomy of a complainant in a postsecondary institution better than the responsible employee rubric in guidance. As discussed below, the approach in these final regulations allows postsecondary institutions to decide which of their employees must, may, or must only with a student’s consent, report sexual harassment to the recipient’s Title IX Coordinator (a report to whom always triggers the recipient’s response obligations, no matter who makes the report). Postsecondary institutions ultimately decide which officials to authorize to institute corrective measures on behalf of the recipient. The Title IX Coordinator and officials with authority to institute corrective measures on behalf of the recipient fall into the same category as employees whom guidance described as having ‘‘authority to redress the sexual harassment.’’ 132 In this manner, in the postsecondary institution context these final regulations continue to use one of the three categories of ‘‘responsible employees’’ described in guidance. With respect to postsecondary institutions, these final regulations depart from using the other two categories of ‘‘responsible employees’’ described in guidance (those who have a ‘‘duty to report’’ misconduct, and those whom a ‘‘student could reasonably believe’’ have the requisite authority or duty). As discussed below, in the postsecondary institution context, requiring the latter two categories of employees to be mandatory reporters (as Department guidance has) may have resulted in college and university policies that have unintentionally discouraged disclosures or reports of sexual harassment by leaving complainants with too few options for disclosing sexual harassment to an employee without automatically triggering a recipient’s response. Elementary and secondary school students cannot be expected to distinguish among employees to whom disclosing sexual harassment results in a mandatory school response, but students at postsecondary institutions 132 The § 106.30 definition of ‘‘actual knowledge’’ as including notice to ‘‘any official of the recipient who has authority to institute corrective measures on behalf of the recipient’’ is the equivalent of the portion of the definition of ‘‘responsible employees’’ in Department guidance (e.g., 2001 Guidance at 13) that included any employee who ‘‘has the authority to take action to redress the harassment.’’ See also Merle H. Weiner, A Principled and Legal Approach to Title IX Reporting, 85 Tenn. L. Rev. 71, 140 (2017) (‘‘The Supreme Court’s definition of an ‘appropriate person’’’ as an ‘official who at a minimum has authority to address the alleged discrimination and to institute corrective measures’ is ‘‘very close to the first category [of responsible employees] in OCR’s guidance.’’) (citing Gebser, 524 U.S. at 290). PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 may benefit from having options to disclose sexual harassment to college and university employees who may keep the disclosure confidential. These final regulations ensure that all students and employees are notified of the contact information for the Title IX Coordinator and how to report sexual harassment for purposes of triggering a recipient’s response obligations, and the Department believes that students at postsecondary institutions benefit from retaining control over whether, and when, the complainant wants the recipient to respond to the sexual harassment that the complainant experienced. In both the elementary and secondary school context and the postsecondary institution context, the final regulations use the same broad conception of what might constitute ‘‘notice’’ as the Department’s guidance used. Notice results whenever any elementary and secondary school employee, any Title IX Coordinator, or any official with authority: Witnesses sexual harassment; hears about sexual harassment or sexual harassment allegations from a complainant (i.e., a person alleged to be the victim) or a third party (e.g., the complainant’s parent, friend, or peer); receives a written or verbal complaint about sexual harassment or sexual harassment allegations; or by any other means.133 These final regulations emphasize that any person may always trigger a recipient’s response obligations by reporting sexual harassment to the Title IX Coordinator using contact information that the recipient must post on the recipient’s website.134 The person who reports does not need to be the complainant (i.e., the person alleged to be the victim); a report may be made by ‘‘any person’’ 135 who believes that sexual harassment may have occurred and requires a recipient’s response. The final regulations depart from the constructive notice condition described in Department guidance that stated that 133 E.g., 2001 Guidance at 13. 106.30 (defining ‘‘actual knowledge’’ to mean notice, where ‘‘notice’’ includes but is not limited to a report to the Title IX Coordinator as described in § 106.8(a)); § 106.8(b) (requiring the Title IX Coordinator’s contact information to be displayed prominently on the recipient’s website); § 106.8(a) (stating that any person may report sexual harassment (whether or not the person reporting is the person alleged to be the victim) using the contact information listed for the Title IX Coordinator or any other means that results in the Title IX Coordinator receiving the person’s verbal or written report, and that a report may be made at any time, including during non-business hours, by using the listed telephone number or email address, or by mail to the listed office address, for the Title IX Coordinator). 135 Section 106.8(a) (specifying that ‘‘any person may report’’ sexual harassment). 134 Section E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations a recipient must respond if a recipient’s responsible employees ‘‘should have known’’ about sexual harassment. The Department’s guidance gave only the following examples of circumstances under which a recipient ‘‘should have known’’ about sexual harassment: When ‘‘known incidents should have triggered an investigation that would have led to discovery of [ ] additional incidents,’’ or when ‘‘the pervasiveness’’ of the harassment leads to the conclusion that the recipient ‘‘should have known’’ of a hostile environment.136 The Department has reconsidered the position that a recipient’s response obligations are triggered whenever employees ‘‘should have known’’ because known incidents ‘‘should have triggered an investigation that would have led to discovery’’ of additional incidents.137 The final regulations impose clear obligations as to when a recipient must investigate allegations. Unlike the Department’s guidance, which did not specify the circumstances under which a recipient must investigate and adjudicate sexual harassment allegations, the final regulations clearly obligate a recipient to investigate and adjudicate whenever a complainant files, or a Title IX Coordinator signs, a formal complaint.138 The Department will hold recipients responsible for a recipient’s failure or refusal to investigate a formal complaint.139 However, the Department does not believe it is feasible or 136 2001 Guidance at 13–14 (‘‘[A] school has a duty to respond to harassment about which it reasonably should have known, i.e., if it would have learned of the harassment if it had exercised reasonable care or made a reasonably diligent inquiry. For example, in some situations if the school knows of incidents of harassment, the exercise of reasonable care should trigger an investigation that would lead to a discovery of additional incidents. In other cases, the pervasiveness of the harassment may be enough to conclude that the school should have known of the hostile environment—if the harassment is widespread, openly practiced, or well-known to students and staff (such as sexual harassment occurring in the hallways, graffiti in public areas, or harassment occurring during recess under a teacher’s supervision.’’) (internal citations omitted); 1997 Guidance (same); 2014 Q&A at 2 (same). The 2011 Dear Colleague Letter at 1–2, and the 2017 Q&A at 1, did not describe the circumstances under which a school ‘‘should have known’’ but referenced the 2001 Guidance on this topic. 137 2001 Guidance at 13. 138 Section 106.44(b)(1) (stating a recipient must investigate in response to a formal complaint); § 106.30 (defining ‘‘formal complaint’’ as a written document filed by a complainant or signed by a Title IX Coordinator requesting that the recipient investigate allegations of sexual harassment against a respondent, where ‘‘document filed by a complainant’’ also includes an electronic submission such as an email or use of an online portal if the recipient provides one for filing formal complaints). 139 Section 106.44(b)(1). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 necessary to speculate on what an investigation ‘‘would have’’ revealed if the investigation had been conducted. Even if there are additional incidents of which a recipient ‘‘would have’’ known had the recipient conducted an investigation into a known incident, each of the additional incidents involve complainants who also have the clear option and right under these final regulations to file a formal complaint that requires the recipient to investigate, or to report the sexual harassment and trigger the recipient’s obligation to respond by offering supportive measures (and explaining to the complainant the option of filing a formal complaint).140 If a recipient fails to meet its Title IX obligations with respect to any complainant, the Department will hold the recipient liable under these final regulations, and doing so does not necessitate speculating about what an investigation ‘‘would have’’ revealed. The Department has reconsidered the position that a recipient’s response obligations are triggered whenever employees ‘‘should have known’’ due to the ‘‘pervasiveness’’ of sexual harassment.141 In elementary and secondary schools, the final regulations charge a recipient with actual knowledge whenever any employee has notice. Thus, if sexual harassment is ‘‘so pervasive’’ that some employee ‘‘should have known’’ about it (e.g., sexualized graffiti scrawled across lockers that meets the definition of sexual harassment in § 106.30), it is highly likely that at least one employee did know about it and the school is charged with actual knowledge. There is no reason to retain a separate ‘‘should have known’’ standard to cover situations that are ‘‘so pervasive’’ in elementary and secondary schools. In postsecondary institutions, when sexual harassment is ‘‘so pervasive’’ that some employees ‘‘should have known’’ it is highly likely that at least one employee did know about it. However, in postsecondary institutions, for reasons discussed below, the Department believes that complainants will be better served by allowing the postsecondary institution recipient to craft and apply 140 Section 106.8(a) (stating any person may report sexual harassment using the Title IX Coordinator’s listed contact information); § 106.8(b) (stating recipients must prominently display the Title IX Coordinator’s contact information on their websites); § 106.44(a) (stating recipients must respond promptly to actual knowledge of sexual harassment by, among other things, offering supportive measures to the complainant regardless of whether a formal complaint is filed, and by explaining to the complainant the process for filing a formal complaint). 141 2001 Guidance at 13–14. PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 30041 the recipient’s own policy with respect to which employees must, may, or must only with a complainant’s consent, report sexual harassment and sexual harassment allegations to the Title IX Coordinator. With respect to whether a Title IX Coordinator or official with authority in a postsecondary institution ‘‘should have known’’ of sexual harassment, the Department believes that imposing a ‘‘should have known’’ standard unintentionally creates a negative incentive for Title IX Coordinators and officials with authority to inquire about possible sexual harassment in ways that invade the privacy and autonomy of students and employees at postsecondary institutions, and such a negative consequence is not necessary because the final regulations provide every student, employee, and third party with clear, accessible channels for reporting to the Title IX Coordinator,142 which gives the Title IX Coordinator notice and triggers the recipients’ response obligations,143 without the need to require Title IX Coordinators and officials with authority to potentially invade student and employee privacy or autonomy.144 142 Section 106.8(a) (requiring every recipient to list the office address, telephone number, and email address for the Title IX Coordinator and stating that any person may report sexual harassment by using the listed contact information, and that a report may be made at any time (including during non-business hours) by using the telephone number or email address, or by mail to the office address, listed for the Title IX Coordinator); § 106.8(b) (requiring recipients to list the Title IX Coordinator’s contact information on recipient websites). 143 Section 106.30 (defining ‘‘actual knowledge’’ to mean notice to the Title IX Coordinator and stating that ‘‘notice’’ includes but is not limited to a report to the Title IX Coordinator as described in § 106.8(a)). 144 The 2014 Q&A acknowledged one of the drawbacks of a condition that triggers a postsecondary institution’s response obligations whenever a Title IX Coordinator or official with authority ‘‘should have known’’ about a student’s disclosure of sexual harassment: Under such a condition, whenever the Title IX Coordinator or other officials with authority know about public awareness events (such as ‘‘Take Back the Night’’ events) where survivors are encouraged to safely talk about their sexual assault experiences, those recipient officials would be obligated to (a) attend such events and (b) respond to any sexual harassment disclosed at such an event by contacting each survivor, offering them supportive measures, documenting the institution’s response to the disclosure, and all other recipient’s response obligations, including an investigation. 2014 Q&A at 24. Failure to do so would be avoiding having learned about campus sexual assault incidents that could have been discovered with due diligence (i.e., the Title IX Coordinator and other university officials ‘‘should have known’’ about the experiences disclosed by survivors at such events). Id. Understanding the drawbacks of this kind of rule, the 2014 Q&A carved out an exception, but without explaining how or why the exception would apply only to ‘‘public awareness events’’ and E:\FR\FM\19MYR2.SGM Continued 19MYR2 30042 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations The Department’s guidance did not use the term ‘‘mandatory reporters’’ but the 2001 Guidance expected responsible employees to report sexual harassment to ‘‘appropriate school officials’’ 145 and the withdrawn 2014 Q&A specified that responsible employees must report to the Title IX Coordinator.146 As of 2017 many (if not most) postsecondary institutions had policies designating nearly all their employees as ‘‘responsible employees’’ and ‘‘mandatory reporters.’’ 147 The ‘‘explosion’’ in postsecondary institution policies making nearly all employees mandatory reporters (sometimes referred to as ‘‘wide-net’’ or universal mandatory reporting) was due in part to the broad, vague way that ‘‘responsible employees’’ were defined in Department guidance.148 The extent not, for example, also extend to Title IX Coordinators and other postsecondary institution officials with authority needing to inquire into students’ (and employees’) private affairs whenever there was any indication that a student or employee may be suffering the impact of sexual harassment. Id. (‘‘OCR wants students to feel free to participate in preventive education programs and access resources for survivors. Therefore, public awareness events such as ‘Take Back the Night’ or other forums at which students disclose experiences with sexual violence are not considered notice to the school for the purpose of triggering an individual investigation unless the survivor initiates a complaint.’’). 145 2001 Guidance at 13. 146 2014 Q&A at 14; cf. id. at 22 (exempting responsible employees who have counseling roles from being obligated to report sexual harassment to the Title IX Coordinator in a way that identifies the student). 147 Merle H. Weiner, A Principled and Legal Approach to Title IX Reporting, 85 Tenn. L. Rev. 71, 77–78 (2017) (‘‘Today the overwhelming majority of institutions of higher education designate virtually all of their employees as responsible employees and exempt only a small number of ‘confidential’ employees. Kathryn Holland, Lilia Cortina, and Jennifer Freyd recently examined reporting policies at 150 campuses and found that policies at 69 percent of the institutions made all employees mandatory reporters, policies at 19 percent of the institutions designated nearly all employees as mandatory reporters, and only 4 percent of institutional policies named a limited list of reporters. The authors concluded, ‘[T]hese findings suggest that the great majority of U.S. colleges and universities—regardless of size or public vs. private nature—have developed policies designating most if not all employees (including faculty, staff, and student employees) as mandatory reporters of sexual assault.’ At some institutions, these reporting obligations have even been incorporated into employees’ contracts.’’) (citing an ‘‘accepted for publication’’ version of Kathryn Holland et al., Compelled disclosure of college sexual assault, 73 Am. Psychologist 3, 256 (2018)). 148 Merle H. Weiner, A Principled and Legal Approach to Title IX Reporting, 85 Tenn. L. Rev. 71, 79–80 (2017) (analyzing the ‘‘explosion’’ of universal or near-universal mandatory reporting policies, which the author calls ‘‘wide-net reporting policies’’ and finding a root of that trend in Department guidance: ‘‘The question was raised whether this language [in Department guidance] meant all employees had to be made responsible employees. For example, John Gaal and Laura Harshbarger, writing in the Higher Education Law VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 to which a wide-net or universal mandatory reporting system for employees in postsecondary institutions is beneficial, or detrimental, to complainants, is difficult to determine,149 and research (to date) is inconclusive.150 What research does Report asked, ‘And does OCR really mean that any employee who has any ‘misconduct’ reporting duty is a ‘responsible employee’ ? . . . We simply do not know.’ Administrators started concluding, erroneously, that any employee who has an obligation to report any other misconduct at the institution must be labeled a responsible employee. Several OCR resolution letters issued at the end of 2016 bolstered this broad interpretation.’’) (internal citations omitted; ellipses in original). 149 Merle H. Weiner, A Principled and Legal Approach to Title IX Reporting, 85 Tenn. L. Rev. 71, 82–83 (2017) (stating institutions with ‘‘widenet reporting policies’’ defend such policies by ‘‘claiming that they are best for survivors’’ for reasons such as enabling institutions to ‘‘identify victims in order to offer them resources and support’’ and allowing institutions ‘‘to collect data on the prevalence of sexual assault and to ensure that perpetrators are identified and disciplined.’’) (internal citations omitted); cf. id. at 83–84 (stating institutional justifications ‘‘make wide-net reporting policies appear consistent with the spirit of Title IX, insofar as they seem consistent with institutional commitments to reduce campus sexual violence . . . . Even if wide-net policies were once thought beneficial to help break a culture of silence around sexual violence in the university setting, the utilitarian calculus has now changed and these policies do more harm than good.’’) (internal citations omitted); id. at 84 (summarizing the ‘‘harm survivors experience when they are involuntarily thrust into a system designed to address their victimization’’ and arguing that ‘‘wide-net’’ mandatory reporting policies ‘‘undermine [survivors’] autonomy and sense of institutional support, aggravating survivors’ psychological and physical harm. These effects can impede survivors’ healing, directly undermining Title IX’s objective of ensuring equal access to educational opportunities and benefits regardless of gender. In addition, . . . because of the negative consequences of reporting, wide-net reporting policies discourage students from talking to any faculty or staff on campus. Fewer disclosures result in fewer survivors being connected to services and fewer offenders being held accountable for their acts. Holding perpetrators accountable is critical for creating a climate that deters acts of violence. Because wide-net policies chill reporting, these policies violate the spirit of Title IX.’’) (internal citations omitted). 150 Merle H. Weiner, A Principled and Legal Approach to Title IX Reporting, 85 Tenn. L. Rev. 71, 78–79 (2017) (‘‘The number of institutions with broad policies, sometimes known as universal mandatory reporting or required reporting, and hereafter called ‘wide-net’ reporting policies, has grown over time. Approximately fifteen years ago, in 2002, only 45 percent of schools identified some mandatory reporters on their campuses, and these schools did not necessarily categorize almost every employee in that manner. The trend since then is notable, particularly because it contravenes the advice from a [study published in 2002 using funds provided by the National Institute of Justice, Heather M. Karjane et al., Campus Sexual Assault: How America’s Institutions of Higher Education Respond 120, Final Report, NIJ Grant #1999–WA– VX–0008 (Education Development Center, Inc. 2002)]. The authors of that study suggested that wide-net reporting policies were unwise. After examining almost 2,500 institutions of higher education, they warned: ‘Any policy or procedure that compromises, or worse, eliminates the student victim’s ability to make her or his own informed PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 demonstrate is that respecting an alleged victim’s autonomy,151 giving alleged victims control over how official systems respond to an alleged victim,152 choices about proceeding through the reporting and adjudication process—such as mandatory reporting requirements that do not include an anonymous reporting option or require the victim to participate in the adjudication process if the report is filed— not only reduces reporting rates but may be counterproductive to the victim’s healing process.’’’) (internal citations omitted); id. at 102 (concluding that wide-net reporting policies ‘‘clearly inhibit the willingness of some students to talk to a university employee about an unwanted sexual experience. This effect is not surprising in light of studies on the effect of mandatory reporting in other contexts. Studies document that women sometimes refuse to seek medical care when their doctors are mandatory reporters, or forego calling the police when a state has a mandatory arrest law.’’) (internal citations omitted); id. at 104–05 (citing to ‘‘conflicting research’’ about whether college and university mandatory reporting policies chill reporting, concluding that available research has not empirically demonstrated the alleged benefits of mandatory reporting policies in colleges and universities, and arguing that without further research, colleges and universities should carefully design reporting policies that ‘‘can accommodate both the students who would be more inclined and less inclined to report with a mandatory reporting policy.’’) (internal citations omitted). 151 Margaret Garvin & Douglas E. Beloof, Crime Victim Agency: Independent Lawyers for Sexual Assault Victims, 13 Ohio St. J. of Crim. Law 67, 69– 70 (2015) (explaining that ‘‘autonomy’’ has come to mean ‘‘the capacity of an individual for selfgovernance combined with the actual condition of self-governance in an absolute state of freedom to choose unconstrained by external influence’’ and the related concept of ‘‘agency’’ has emerged to mean ‘‘self-definition’’ (‘‘fundamental determination of how one conceives of oneself both as an individual and as a community member’’) and ‘‘self-direction’’ (‘‘the charting of one’s direction in life’’)) (internal citations omitted); id. at 71–72 (agency ‘‘is critically important for crime victims. Research reveals that for some victims who interact with the criminal justice system, participation is beneficial. It can allow them to experience improvement in depression and quality of life, provide a sense of safety and protection, and validate the harm done by the offender. For other victims, interaction with the criminal justice system leads to a harm beyond that of the original crime, a harm that is often referred to as ‘secondary victimization’ and which is recognized to have significant negative impacts on victims. . . . A significant part of what accounts for the difference in experience is whether victims have the ability to meaningfully choose whether, when, how, and to what extent to meaningfully participate in the system and exercise their rights. In short, the difference in experience is explained by the existence—or lack of—agency.’’) (internal citations omitted). 152 E.g., Patricia A. Frazier et al., Coping Strategies as Mediators of the Relations Among Perceived Control and Distress in Sexual Assault Survivors, 52 Journal of Counseling Psychol. 3 (2005) (control over the recovery process was associated with less emotional distress for sexual assault victims, partly because that kind of ‘‘present control’’ was associated with less social withdrawal and more cognitive restructuring.); Ryan M. Walsh & Steven E. Bruce, The Relationships Between Perceived Levels of Control, Psychological Distress, and Legal System Variables in a Sample of Sexual Assault Survivors, 17 Violence Against Women 603, 611 (2011) (finding that ‘‘a perception by victims that they are in control of their recovery process’’ is an ‘‘important factor’’ reducing post-traumatic stress and depression). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations and offering clear options to alleged victims 153 are critical aspects of helping an alleged victim recover from sexual harassment. Unsupportive institutional responses increase the effects of trauma on complainants,154 and institutional betrayal may occur when an institution’s mandatory reporting policies require a complainant’s intended private conversation about sexual assault to result in a report to the Title IX Coordinator.155 Throughout these final regulations the Department aims to respect the autonomy of complainants and to recognize the importance of a complainant retaining as much control as possible over their own circumstances following a sexual harassment experience, while also ensuring that complainants have clear information about how to access the supportive measures a recipient has available (and how to file a formal complaint initiating a grievance process against a respondent if the complainant chooses to do so) if and when the complainant desires for a recipient to respond to the complainant’s situation.156 The Department recognizes the complexity involved in determining best practices with respect to which employees of postsecondary institutions should be mandatory reporters versus 153 E.g., Nancy Chi Cantalupo, For the Title IX Civil Rights Movement: Congratulations and Cautions, 125 Yale J. of L. & Feminism. 281, 291 (2016) (arguing against State law proposals that would require mandatory referral to law enforcement of campus sexual assault incidents in part because such laws would limit ‘‘the number and diversity of reporting options that victims can use’’); Merle H. Weiner, A Principled and Legal Approach to Title IX Reporting, 85 Tenn. L. Rev. 71, 117 (2017) (‘‘Schools expose survivors to harm when they turn a disclosure into either an involuntary report to law enforcement or an involuntary report to the Title IX office.’’). 154 Lindsey L. Monteith et al., Perceptions of Institutional Betrayal Predict Suicidal Self-Directed Violence Among Veterans Exposed to Military Sexual Trauma, 72 J. of Clinical Psychol. 743, 750 (2016); see also Rebecca Campbell et al., An Ecological Model of the Impact of Sexual Assault on Women’s Mental Health, 10 Trauma, Violence & Abuse 225, 234 (2009) (survivors of sexual violence already feel powerless, and policies that increase a survivor’s lack of power over their situation contribute to the trauma they have already experienced). 155 Merle H. Weiner, Legal Counsel for Survivors of Campus Sexual Violence, 29 Yale J. of L. & Feminism 123, 140–141 (2017) (identifying one type of institutional betrayal as the harm that occurs when ‘‘the survivor thinks she is speaking to a confidential resource, but then finds out the advocate cannot keep their conversations private’’); Michael A. Rodriguez, Mandatory Reporting Does Not Guarantee Safety, 173 W. J. of Med. 225, 225 (2000) (mandatory reporting by doctors of patient intimate partner abuse may negatively impact victims by making them less likely to seek medical care and compromising the patient’s autonomy). 156 Section 106.44(a) (describing a recipient’s general response obligations). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 which employees of postsecondary institutions should remain resources in whom students may confide without automatically triggering a report of the student’s sexual harassment situation to the Title IX Coordinator or other college or university officials.157 Through the actual knowledge condition as defined and applied in these final regulations, the Department intends to ensure that every complainant in a postsecondary institution knows that if or when the complainant desires for the recipient to respond to a sexual harassment experience (by offering supportive measures, by investigating allegations, or both), the complainant has clear, accessible channels by which to report and/or file a formal complaint.158 The Department also intends to leave postsecondary institutions wide discretion to craft and implement the recipient’s own employee reporting policy to decide (as to employees who are not the Title IX Coordinator and not officials with authority) which employees are mandatory reporters (i.e., employees who must report sexual harassment to the Title IX Coordinator), which employees may listen to a student’s or employee’s disclosure of sexual harassment without being required to report it to the Title IX Coordinator, and/or which employees must report sexual harassment to the Title IX Coordinator but only with the complainant’s consent. No matter how a college or university designates its employees with respect to mandatory 157 E.g., Merle H. Weiner, A Principled and Legal Approach to Title IX Reporting, 85 Tenn. L. Rev. 71, 188 (2017) (‘‘The classification of employees as [mandatory] reporters should include those who students expect to have the authority to redress the violence or the obligation to report it, and should exclude those who students turn to for support instead of for reporting. Faculty should not be designated reporters, but high-level administrators should be. Schools should carefully consider how to classify employees who are resident assistants, campus police, coaches, campus security authorities, and employment supervisors. A wellcrafted policy will be the product of thoughtful conversations about online reporting, anonymous reporting, third-party reports, and necessary exceptions for situations involving minors and imminent risks of serious harm.’’). 158 Section 106.8(a) (requiring recipients to notify students, employees, and others of the contact information for their Title IX Coordinators and stating that any person may report sexual harassment by using that contact information, and that reports can be made during non-business hours by mail to the listed office address or by using the listed telephone number or email address); § 106.8(b) (requiring a recipient to post the Title IX Coordinator’s contact information on the recipient’s website); § 106.30 (defining ‘‘formal complaint’’ and providing that any complainant may file a formal complaint by using the email address, or by mail to the office address, listed for the Title IX Coordinator, or by any additional method designated by the recipient). PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 30043 reporting to the Title IX Coordinator, the final regulations ensure that students at postsecondary institutions, as well as employees, are notified of the Title IX Coordinator’s contact information and have clear reporting channels, including options accessible even during nonbusiness hours,159 for reporting sexual harassment in order to trigger the postsecondary institution’s response obligations. As to all recipients, these final regulations provide that the mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual (such as a volunteer parent, or alumnus) as an official with authority to institute corrective measures on behalf of the recipient.160 The Department does not wish to discourage recipients from training individuals who interact with the recipient’s students about how to report sexual harassment, including informing students about how to report sexual harassment. Accordingly, the Department will not assume that a person is an official with authority solely based on the fact that the person has received training on how to report sexual harassment or has the ability or obligation to report sexual harassment. Similarly, the Department will not conclude that volunteers and independent contractors are officials with authority, unless the recipient has granted the volunteers or independent contractors authority to institute corrective measures on behalf of the recipient. Deliberate Indifference Once a recipient is charged with actual knowledge of sexual harassment in its education program or activity, it becomes necessary to evaluate the recipient’s response. Although the Department is not required to adopt the deliberate indifference standard articulated in the Gebser/Davis framework, we believe that deliberate indifference, with adaptions for administrative enforcement, constitutes the best policy approach to further Title IX’s non-discrimination mandate. As the Supreme Court explained in Davis, a recipient acts with deliberate indifference only when it responds to 159 Section 106.8 (stating that a report of sexual harassment may be made at any time, including during non-business hours, by using the telephone number or email address, or by mail to the office address, listed for the Title IX Coordinator, and requiring recipients to prominently display the Title IX Coordinator’s contact information on the recipient’s website). 160 Section 106.30 (defining ‘‘actual knowledge’’). E:\FR\FM\19MYR2.SGM 19MYR2 30044 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations sexual harassment in a manner that is ‘‘clearly unreasonable in light of the known circumstances’’ 161 because for a recipient with actual knowledge to respond in a clearly unreasonable manner constitutes the recipient committing intentional discrimination.162 The deliberate indifference standard under the Gebser/ Davis framework is the starting point under these final regulations, so that the Department’s regulations clearly prohibit instances when the recipient chooses to permit discrimination. The Department tailors this standard for administrative enforcement, to hold recipients accountable for responding meaningfully every time the recipient has actual knowledge of sexual harassment through a general obligation to not act clearly unreasonably in light of the known circumstances, and specific obligations that each recipient must meet as part of its response to sexual harassment. Based on consideration of the text and purpose of Title IX, the reasoning underlying the Supreme Court’s decisions in Gebser and Davis, and more than 124,000 public comments on the proposed regulations, the Department adopts, but adapts, the deliberate indifference standard in a manner that imposes mandatory, specific obligations on recipients that are not required under the Gebser/Davis framework. The Department developed these requirements in response to commenters’ concerns that the standard of deliberate indifference gives recipients too much leeway in responding to sexual harassment, and in response to commenters who requested greater clarity about how the Department will apply the deliberate indifference standard. The Department revises § 106.44(a) to specify that a recipient’s response: must be prompt; must consist of offering supportive measures to a complainant; 163 must ensure that the 161 Davis, 526 U.S. at 648–49. 524 U.S. at 290 (deliberate indifference ensures that the recipient is liable for ‘‘its own official decision’’ to permit discrimination). 163 Under § 106.44(a) the recipient must respond in a manner that is not clearly unreasonable in light of the known circumstances, and under § 106.30 defining ‘‘supportive measures,’’ the Title IX Coordinator is responsible for the effective implementation of supportive measures. Thus, a recipient must provide supportive measures (that meet the definition in § 106.30) unless, for example, a complainant does not wish to receive supportive measures. Under § 106.45(b)(10) a recipient must document the reasons why the recipient’s response was not deliberately indifferent and specifically, if a recipient does not provide a complainant with supportive measures, the recipient must document the reasons why such a response was not clearly unreasonable in light of the known circumstances. 162 Gebser, VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Title IX Coordinator contacts each complainant (i.e., person who is alleged to be the victim of sexual harassment) to discuss supportive measures, consider the complainant’s wishes regarding supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. This mandatory, proactive, and interactive process helps ensure that complainants receive the response that will most effectively address the complainant’s needs in each circumstance. Additionally, revised § 106.44(a) specifies that the recipient’s response must treat complainants and respondents equitably, meaning that for a complainant, the recipient must offer supportive measures, and for a respondent, the recipient must follow a grievance process that complies with § 106.45 before imposing disciplinary sanctions. If a respondent is found to be responsible for sexual harassment, the recipient must effectively implement remedies for the complainant, designed to restore or preserve the complainant’s equal educational access, and may impose disciplinary sanctions on the respondent.164 These final regulations thus hold recipients accountable for responses to sexual harassment designed to protect complainants’ equal educational access, and provide due process protections to both parties before restricting a respondent’s educational access. By using a deliberate indifference standard to evaluate a recipient’s selection of supportive measures and remedies, and refraining from second guessing a recipient’s disciplinary decisions, these final regulations leave recipients legitimate and necessary flexibility to make decisions regarding the supportive measures, remedies, and discipline that best address each sexual harassment incident. Sexual harassment allegations present context-driven, fact-specific, needs and concerns for each complainant, and like the Supreme Court, the Department believes that 164 Section 106.45(b)(1)(i); see also Brian Bardwell, No One is an Inappropriate Person: The Mistaken Application of Gebser’s ‘‘Appropriate Person’’ Test to Title IX Peer-Harassment Cases, 68 Case W. Res. L. Rev. 1343, 1364–65 (2018) (‘‘Title IX certainly does not suggest that offenders should not be punished for creating a hostile environment, but its implementation has consistently focused more heavily on taking actions on behalf of the students whom that environment has denied the benefit of their education.’’). The Department’s focus in these final regulations is on ensuring that recipients take action to restore and preserve a complainant’s equal educational access, leaving recipients discretion to make disciplinary decisions when a respondent is found responsible. PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 recipients have unique knowledge of their own educational environment and student body, and are best positioned to make decisions about which supportive measures and remedies meet each complainant’s need to restore or preserve the right to equal access to education, and which disciplinary sanctions are appropriate against a respondent who is found responsible for sexual harassment. The Department’s guidance set forth a liability standard more like reasonableness, or even strict liability,165 instead of deliberate indifference, to evaluate a recipient’s response to sexual harassment. The 2001 Guidance, withdrawn 2011 Dear Colleague Letter, and 2017 Q&A, took the position that a recipient’s response to sexual harassment must effectively stop harassment and prevent its recurrence.166 The Department’s guidance did not distinguish between an ‘‘investigation’’ to determine how to appropriately respond to the complainant (for instance, by providing supportive measures) and an 165 2001 Guidance at iv, vi (in response to public comment concerned that requiring an ‘‘effective’’ response by the school, with respect to stopping and preventing recurrence of harassment, meant a school would have to be ‘‘omniscient,’’ the 2001 Guidance in its preamble insisted that ‘‘Effectiveness is measured based on a reasonableness standard. Schools do not have to know beforehand that their response will be effective.’’). Nonetheless, the 2001 Guidance stated the liability standard as requiring ‘‘effective corrective actions to stop the harassment [and] prevent its recurrence,’’ which ostensibly holds a recipient strictly liable to ‘‘stop’’ and ‘‘prevent’’ sexual harassment. 2001 Guidance at 10, 12. Whether or not the liability standard set forth in Department guidance is characterized as one of ‘‘reasonableness’’ or ‘‘strict liability,’’ in these final regulations the Department desires to utilize a ‘‘not clearly unreasonable in light of the known circumstances’’ liability standard (i.e., deliberate indifference) as the general standard for a school’s response, so that schools must comply with all the specific requirements set forth in these final regulations, and a school’s actions with respect to matters that are not specifically set forth are measured under a liability standard that preserves the discretion of schools to take into account the unique factual circumstances of sexual harassment situations that affect a school’s students and employees. 166 2001 Guidance at 15 (stating recipients ‘‘should take immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again’’); id. at 10 (‘‘Schools are responsible for taking prompt and effective action to stop the harassment and prevent its recurrence.’’); id. at 12 (a recipient ‘‘is responsible for taking immediate effective action to eliminate the hostile environment and prevent its recurrence.’’); 2011 Dear Colleague Letter at 4 (recipients must ‘‘take immediate action to eliminate the harassment [and] prevent its recurrence’’); 2017 Q&A at 3 (referencing the 2001 Guidance’s approach to preventing recurrence of sexual misconduct). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations investigation for the purpose of potentially punishing a respondent.167 Similarly, the 2001 Guidance, withdrawn 2011 Dear Colleague Letter, and 2017 Q&A used the phrases ‘‘interim measures’’ or ‘‘interim steps’’ to describe measures to help a complainant maintain equal educational access.168 However, unlike these final regulations’ definition of ‘‘supportive measures’’ in § 106.30, the Department guidance implied that such measures were only available during the pendency of an investigation (i.e., during an ‘‘interim’’ period), did not mandate offering supportive measures, did not clarify whether respondents also may receive supportive measures,169 and did not specify that supportive measures should not be punitive, disciplinary, or unreasonably burden the other party. The Department’s guidance recommended remedies for 167 2001 Guidance at 15 (‘‘Regardless of whether the student who was harassed, or his or her parent, decides to file a formal complaint or otherwise request action on the student’s behalf . . . the school must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation. The specific steps in an investigation will vary depending upon the nature of the allegations, the source of the complaint, the age of the student or students involved, the size and administrative structure of the school, and other factors. However, in all cases the inquiry must be prompt, thorough, and impartial.’’); 2011 Dear Colleague Letter at 4–5. 168 Compare § 106.30 (defining ‘‘supportive measures’’ as individualized services provided to a complainant or respondent that are non-punitive, non-disciplinary, and do not unreasonably burden the other party yet are designed to restore or preserve a person’s equal access to education) with 2001 Guidance at 16 (‘‘It may be appropriate for a school to take interim measures during the investigation of a complaint. For instance, if a student alleges that he or she has been sexually assaulted by another student, the school may decide to place the students immediately in separate classes or in different housing arrangements on a campus, pending the results of the school’s investigation) (emphasis added). 2011 Dear Colleague Letter at 16 (‘‘Title IX requires a school to take steps to protect the complainant as necessary, including taking interim steps before the final outcome of the investigation. . . . The school should notify the complainant of his or her options to avoid contact with the alleged perpetrator and allow students to change academic or living situations as appropriate.’’) (emphasis added); 2017 Q&A at 2–3 (‘‘It may be appropriate for a school to take interim measures during the investigation of a complaint’’ and insisting that schools not make such measures available only to one party) (emphasis added). Describing such individualized services in § 106.30 as ‘‘supportive measures’’ rather than as ‘‘interim’’ measures or ‘‘interim’’ steps reinforces that supportive measures must be offered to a complainant whether or not a grievance process is pending, and reinforces that the final regulations authorize initiation of a grievance process only where the complainant has filed, or the Title IX Coordinator has signed, a formal complaint. § 106.44(a); § 106.44(b)(1); § 106.30 (defining ‘‘formal complaint’’). 169 See, e.g., 2017 Q&A at 3 (providing that schools must not make interim measures available only to one party). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 victims 170 and disciplinary sanctions against harassers 171 but did not specify that remedies are mandatory for complainants, and disciplinary sanctions cannot be imposed on a respondent without following a fair investigation and adjudication process, thereby lacking clarity as to whether interim punitive or disciplinary action is appropriate. These final regulations clarify that supportive measures cannot be punitive or disciplinary against any party and that disciplinary sanctions cannot be imposed against a respondent unless the recipient follows a grievance process that complies with § 106.45.172 The Department’s guidance instructed recipients to investigate even when the complainant did not want the recipient to investigate,173 and directed recipients to honor a complainant’s request for the complainant’s identity to remain undisclosed from the respondent, unless a public institution owed constitutional due process obligations that would require that the respondent know the complainant’s identity.174 These final 170 2001 Guidance at 10 (‘‘The recipient is, therefore, also responsible for remedying any effects of the harassment on the victim, as well as for ending the harassment and preventing its recurrence. This is true whether or not the recipient has ‘notice’ of the harassment.’’); id. at 16–17. The 2011 Dear Colleague Letter took a similar approach, requiring schools to ‘‘take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.’’ 2011 Dear Colleague Letter at 4; see also id. at 15 (‘‘effective corrective action may require remedies for the complainant’’). 171 See 2001 Guidance at 16 (‘‘Appropriate steps should be taken to end the harassment. For example, school personnel may need to counsel, warn, or take disciplinary action against the harasser, based on the severity of the harassment or any record of prior incidents or both.’’); 2011 Dear Colleague Letter at 15 (addressing sexual harassment may necessitate ‘‘counseling or taking disciplinary action against the harasser’’); 2017 Q&A at 6 (‘‘Disciplinary sanction decisions must be made for the purpose of deciding how best to enforce the school’s code of student conduct while considering the impact of separating a student from her or his education. Any disciplinary decision must be made as a proportionate response to the violation.’’). 172 Section 106.30 (defining ‘‘supportive measures’’); § 106.44(a); § 106.45(b)(1). 173 2001 Guidance at 15 (‘‘Regardless of whether the student who was harassed, or his or her parent, decides to file a formal complaint or otherwise request action on the student’s behalf (including in cases involving direct observation by a responsible employee), the school must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation.’’); 2011 Dear Colleague Letter at 4. 174 2001 Guidance at 17–18 (if the complainant desires that the complainant’s identity not be disclosed to the alleged harasser, but constitutional due process owed by a public school means that ‘‘the alleged harasser could not respond to the charges of sexual harassment without that information’’ then ‘‘in evaluating the school’s response, OCR would not expect disciplinary action against an alleged harasser.’’); 2011 Dear Colleague Letter at 5 (‘‘If the complainant requests confidentiality or asks that the complaint not be PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 30045 regulations obligate a recipient to initiate a grievance process when a complainant files, or a Title IX Coordinator signs, a formal complaint,175 so that the Title IX Coordinator takes into account the wishes of a complainant and only initiates a grievance process against the complainant’s wishes if doing so is not clearly unreasonable in light of the known circumstances. Unlike the Department’s guidance, these final regulations prescribe that the only recipient official who is authorized to initiate a grievance process against a respondent is the Title IX Coordinator (by signing a formal complaint). As discussed in the ‘‘Formal Complaint’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, the Department believes this restriction will better ensure that a complainant’s desire not to be involved in a grievance process or desire to keep the complainant’s identity undisclosed to the respondent will be overridden only by a trained individual (i.e., the Title IX Coordinator) and only when specific circumstances justify that action. These final regulations clarify that the recipient’s decision not to investigate when the complainant does not wish to file a formal complaint will be evaluated by the Department under the deliberate indifference standard; that is, whether that decision was clearly unreasonable in light of the known circumstances.176 Similarly, a Title IX Coordinator’s decision to sign a formal complaint initiating a grievance process against the complainant’s wishes 177 also will be pursued, the school should take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation. If a complainant insists that his or her name or other identifiable information not be disclosed to the alleged perpetrator, the school should inform the complainant that its ability to respond may be limited’’ if due process owed by a public institution requires disclosure of the complainant’s identity to the respondent.); 2014 Q&A at 21–22 (‘‘When weighing a student’s request for confidentiality that could preclude a meaningful investigation or potential discipline of the alleged perpetrator, a school should consider a range of factors. . . . A school should take requests for confidentiality seriously, while at the same time considering its responsibility to provide a safe and nondiscriminatory environment for all students, including the student who reported the sexual violence.’’). 175 Section 106.44(b)(1); § 106.45(b)(3)(i); § 106.30 (defining ‘‘formal complaint’’). 176 Section 106.44(a); § 106.45(b)(10)(ii) (requiring a recipient to document its reasons why it believes its response to a sexual harassment incident was not deliberately indifferent). 177 Complainants may not wish for a recipient to investigate allegations for a number of legitimate reasons. The Department understands that a recipient may, under some circumstances, reach the conclusion that initiating a grievance process when E:\FR\FM\19MYR2.SGM Continued 19MYR2 30046 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations considered under the deliberate indifference standard. At the same time, these final regulations ensure that a recipient must offer supportive measures to a complainant, regardless of whether the complainant decides to file, or the Title IX Coordinator decides to sign, a formal complaint.178 With or without a grievance process that determines a respondent’s responsibility, these final regulations require a recipient to offer supportive measures to a complainant, tailored to each complainant’s unique circumstances,179 similar to the Department’s 2001 Guidance that directed a recipient to take timely, ageappropriate action, ‘‘tailored to the specific situation’’ with respect to providing ‘‘interim’’ measures to help a complainant.180 These final regulations, however, clarify that supportive measures must be offered not only in an ‘‘interim’’ period during an investigation, but regardless of whether an investigation is pending or ever occurs. While the Department’s guidance did not address emergency situations arising out of sexual harassment allegations, these final regulations expressly authorize recipients to remove a respondent from the recipient’s education programs or activities on an emergency basis, with or without a grievance process pending, as long as post-deprivation notice and opportunity to challenge the removal is given to the respondent.181 A recipient’s decision to initiate an emergency removal will also be evaluated under the deliberate indifference standard. These final regulations impose specific requirements on recipients responding to sexual harassment, and failure to comply constitutes a violation of these Title IX regulations and, potentially, discrimination under Title IX. In addition to the specific requirements imposed by these final a complainant does not wish to participate is necessary, but endeavors through these final regulations to respect a complainant’s autonomy with respect to how a recipient responds to a complainant’s individual situation by, for example, requiring such a conclusion to be reached by the specially trained Title IX Coordinator (whose obligations include having communicated with the complainant about the complainant’s wishes) and requiring the recipient to document the reasons why the recipient believes that its response was not deliberately indifferent. § 106.44(a); § 106.45(b)(10). 178 Section 106.44(a). 179 Section 106.44(a) (requiring the recipient to offer supportive measures to a complainant, and requiring the Title IX Coordinator to discuss supportive measures with a complainant and consider the complainant’s wishes regarding supportive measures); § 106.30 (defining ‘‘supportive measures’’ as ‘‘individualized services’’). 180 2001 Guidance at 16. 181 Section 106.44(c). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 regulations, all other aspects of a recipient’s response to sexual harassment are evaluated by what was not clearly unreasonable in light of the known circumstances.182 Recipients must also document their reasons why each response to sexual harassment was not deliberately indifferent.183 In this manner, the Department believes that these final regulations create clear legal obligations that facilitate the Department’s robust enforcement of a recipient’s Title IX responsibilities. The mandatory obligations imposed on recipients under these final regulations share the same aim as the Department’s guidance (i.e., ensuring that recipients take actions in response to sexual harassment that are reasonably calculated to stop harassment and prevent recurrence of harassment); however, these final regulations do not unrealistically hold recipients responsible where the recipient took all steps required under these final regulations, took other actions that were not clearly unreasonable in light of the known circumstances, and a perpetrator of harassment reoffends. Recipients cannot be guarantors that sexual harassment will never occur in education programs or activities,184 but recipients can and will, under these final regulations, be held accountable for responding to sexual harassment in ways designed to ensure complainants’ equal access to education without depriving any party 182 Section 106.44(b)(2) (providing that recipient responses to sexual harassment must be nondeliberately indifferent, meaning not clearly unreasonable in light of the known circumstances, and must comply with all the specific requirements in § 106.44(a), regardless of whether a formal complaint is ever filed). 183 Section 106.45(b)(10). As revised, this provision states that if a recipient does not provide supportive measures as part of its response to sexual harassment, the recipient specifically must document why that response was not clearly unreasonable in light of the known circumstances (for example, perhaps the complainant did not want any supportive measures). 184 Under the liability standard set forth in Department guidance, recipients were expected to take actions that ‘‘stop the harassment and prevent its recurrence.’’ See, e.g., 2001 Guidance at 12. Even if a recipient expelled a respondent, issued a notrespass order against the respondent, and took all other conceivable measures to try to eliminate and prevent the recurrence of the sexual harassment, under that liability standard the recipient was still responsible for any unforeseen and unexpected recurrence of sexual harassment. The Department believes the preferable way of ensuring that recipients remedy sexual harassment in its education programs or activities is set forth in these final regulations, whereby a recipient must take specified actions, and a recipients’ decisions with respect to discretionary actions are evaluated in light of the known circumstances. PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 of educational access without due process or fundamental fairness.185 Additionally, the Department clarifies in § 106.44(a) that the Department may not require a recipient to restrict rights protected under the U.S. Constitution, including the First Amendment, the Fifth Amendment, and the Fourteenth Amendment, to satisfy the recipient’s duty to not be deliberately indifferent under this part. This language incorporates principles articulated in the 2001 Guidance 186 and mirrors § 106.6(d) in the NPRM, which remains the same in these final regulations and states that nothing in Part 106 of Title 34 of the Code of Federal Regulations, which includes these final regulations, requires a recipient to restrict rights protected under the U.S. Constitution. With this revision in § 106.44(a) the Department reinforces the premise of § 106.6(d), cautioning recipients not to view restrictions of constitutional rights as a means of satisfying the duty not to be deliberately indifferent to sexual harassment under Title IX. Role of Due Process in the Grievance Process As discussed above in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Supreme Court has held that sexual harassment is a form of sex discrimination under Title IX, and that a recipient commits intentional sex discrimination when the recipient knows of conduct that could constitute actionable sexual harassment and responds in a manner that is deliberately indifferent.187 However, the Supreme Court’s Title IX cases have not specified conditions under which a recipient must initiate disciplinary proceedings against a person accused of sexual harassment, or what procedures must apply in any such disciplinary proceedings, as part of a recipient’s nondeliberately indifferent response to sexual harassment.188 Similarly, the 185 As discussed in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, implementing remedies and sanctions without due process protections sometimes resulted in the denial of another party’s equal access to the recipient’s education programs or activities because the other party was not afforded notice and a meaningful opportunity to respond to the allegations of sexual harassment. 186 2001 Guidance at 22. 187 See the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble. 188 See, e.g., Davis, 526 U.S. at 654 (holding that plaintiff’s complaint should not be dismissed as a matter of law because plaintiff ‘‘may be able to show both actual knowledge and deliberate indifference on the part of the Board, which made no effort whatsoever either to investigate or to put E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Supreme Court has not addressed procedures that a recipient must use in a disciplinary proceeding resolving sexual harassment allegations under Title IX in order to meet constitutional due process of law requirements (for recipients who are State actors), or requirements of fundamental fairness (for recipients who are not State actors). At the time initial regulations implementing Title IX were issued by HEW in 1975, the Federal courts had not yet addressed recipients’ Title IX obligations to address sexual harassment as a form of sex discrimination; thus, the equitable grievance procedures required in the 1975 rule did not contemplate the unique circumstances that sexual harassment allegations present, where through an equitable grievance process a recipient often must weigh competing narratives about a particular incident between two (or more) individuals and arrive at a factual determination in order to then decide whether, or what kind of, actions are appropriate to ensure that no person is denied educational opportunities on the basis of sex. The Department’s guidance since 1997 has acknowledged that recipients have an obligation to respond to sexual harassment that constitutes sex discrimination under Title IX by applying the ‘‘prompt and equitable’’ grievance procedures in place for resolution of complaints of sex discrimination required under the Department’s regulations.189 With respect to what constitutes equitable grievance procedures, the 2001 Guidance (which revised but largely retained the same recommendations as the 1997 Guidance) interpreted 34 CFR 106.8 (requiring recipients to adopt and publish equitable grievance procedures) to mean procedures that provide for: ‘‘Adequate, reliable, and impartial an end to the harassment’’ without indication as to whether an investigation was required, or what due process procedures must be applied during such an investigation); see also Grayson Sang Walker, The Evolution and Limits of Title IX Doctrine on Peer Sexual Assault, 45 Harv. C.R.–C.L. L. Rev. 95, fn. 139 (2010) (‘‘Davis was silent on the scope, thoroughness, and timeliness of any investigation that a school may undertake and the procedures that should apply at a grievance hearing. To the extent that Davis can be interpreted as a call for some type of investigation and adjudication of sexual harassment complaints, the instruction represents the triumph of form over substance.’’). 189 1997 Guidance (‘‘Schools are required by the Title IX regulations to have grievance procedures through which students can complain of alleged sex discrimination, including sexual harassment.’’); 2001 Guidance at 19; 2011 Dear Colleague Letter at 6; 2017 Q&A at 3; 34 CFR 106.8(b) (‘‘A recipient shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited by this part.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 investigation of complaints [of sexual harassment], including the opportunity to present witnesses and other evidence.’’ 190 The 2001 Guidance advised, ‘‘The specific steps in an investigation will vary depending upon the nature of the allegations, the source of the complaint, the age of the student or students involved, the size and administrative structure of the school, and other factors. However, in all cases the inquiry must be prompt, thorough, and impartial.’’ 191 The 2001 Guidance advised: ‘‘The rights established under Title IX must be interpreted consistent with any federally guaranteed due process rights involved in a complaint proceeding’’ and ‘‘Procedures that ensure the Title IX rights of the complainant, while at the same time according due process to both parties involved, will lead to sound and supportable decisions.’’192 The withdrawn 2011 Dear Colleague Letter mentioned due process only with respect to recipients that are State actors (i.e., public institutions), implied that 190 2001 Guidance at 20 (also specifying that equitable grievance procedures must provide for ‘‘[d]esignated and reasonably prompt time frames for the major stages of the complaint process’’ and ‘‘[n]otice to the parties of the outcome of the complaint’’); 2011 Dear Colleague Letter at 8 (‘‘Any procedures used to adjudicate complaints of sexual harassment or sexual violence, including disciplinary procedures, however, must meet the Title IX requirement of affording a complainant a prompt and equitable resolution.’’); id. at 9–10 (citing to the 2001 Guidance for the requirements that equitable grievance procedures must include ‘‘[a]dequate, reliable, and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence,’’ ‘‘[d]esignated and reasonably prompt time frames for the major stages of the complaint process,’’ and ‘‘[n]otice to parties of the outcome of the complaint’’ and unlike the 2001 Guidance, which was silent on what standard of evidence to apply, the 2011 Dear Colleague Letter took the position that recipients must use only the preponderance of the evidence standard for sexual harassment complaints); id. at 11, fn. 29 (adding that in an equitable grievance process ‘‘[t]he complainant and the alleged perpetrator must be afforded similar and timely access to any information that will be used at the hearing’’ consistent with FERPA and while protecting privileged information and withholding from the alleged perpetrator information about the complainant’s sexual history). 191 2001 Guidance at 15; see also id. at 20 (‘‘Procedures adopted by schools will vary considerably in detail, specificity, and components, reflecting differences in audiences, school sizes and administrative structures, State or local legal requirements, and past experience.’’) As explained further in the ‘‘Similarities and Differences Between the § 106.45 Grievance Process and Department Guidance’’ subsection below in this section of the preamble, and throughout this preamble, the 2011 Dear Colleague Letter and 2017 Q&A took additional positions with respect to procedures that should be part of ‘‘prompt and equitable’’ grievance procedures; however, Department guidance has not set forth specific procedures necessary to ensure that grievance procedures are ‘‘adequate, reliable, and impartial’’ while also complying with due process. 192 2001 Guidance at 22. PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 30047 due process only benefits respondents, and implied that due process may need to yield to protect complainants: ‘‘Public and state-supported schools must provide due process to the alleged perpetrator. However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant.’’ 193 The 2017 Q&A did not expressly reference the need for constitutional due process but directed recipients to look to the 2001 Guidance as to matters not addressed in the 2017 Q&A.194 These final regulations build on a premise of the 2001 Guidance and withdrawn 2011 Dear Colleague Letter— that Title IX cannot be interpreted in a manner that denies any person due process of law under the U.S. Constitution. These final regulations reaffirm the premise expressed in the 2001 Guidance—that due process protections are important for both complainants and respondents, do not exist solely to protect respondents, and result in ‘‘sound and supportable’’ decisions in sexual harassment cases.195 These final regulations, however, provide recipients with prescribed procedures that ensure that Title IX is enforced consistent with both constitutional due process, and fundamental fairness, so that whether a student attends a public or private institution, the student has the benefit of a consistent, transparent grievance process with strong procedural protections regardless of whether the student is a complainant or respondent. Neither the 2001 Guidance, nor the withdrawn 2011 Dear Colleague Letter, nor the 2017 Q&A, informed recipients of what procedures might be necessary to ensure that a grievance process is both ‘‘adequate, fair, and reliable’’ and consistent with constitutional due process. While the Department’s guidance appropriately and beneficially drew recipients’ attention to the need to take sexual harassment seriously under Title IX, the lack of specificity in how 193 2011 Dear Colleague Letter at 12. The withdrawn 2014 Q&A combined the due process positions of the 2001 Guidance and withdrawn 2011 Dear Colleague Letter: ‘‘The rights established under Title IX must be interpreted consistently with any federally guaranteed due process rights. Procedures that ensure the Title IX rights of the complainant, while at the same time according any federally guaranteed due process to both parties involved, will lead to sound and supportable decisions. Of course, a school should ensure that steps to accord any due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant.’’ 2014 Q&A at 13. 194 2017 Q&A at 1. 195 2001 Guidance at 22. E:\FR\FM\19MYR2.SGM 19MYR2 30048 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations to meet Title IX obligations while ensuring due process protections for complainants and respondents,196 has led to increasing numbers of lawsuits 197 and OCR complaints 198 against 196 E.g., Matthew R. Triplett, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection, 62 Duke L. J. 487, 489–90 (2012) (‘‘Many colleges and universities responded to the April 4, 2011 Dear Colleague Letter . . . by amending their procedures for adjudicating allegations of sexual assault. Meanwhile, the letter itself has sparked a debate about the appropriate balance between protecting victims of assault and ensuring adequate due process for the accused in the context of campus adjudications. . . . [T]he Dear Colleague Letter suffers from a fatally inadequate discussion of the appropriate balance between victim protection and due process. Specifically, the document has raised more questions than it has answered, leaving the interests of both victims and accused students in flux. Because institutions simultaneously face statutory duties to respond properly to victims’ claims of assault and constitutional or contractual obligations to provide due process to the accused, better-defined policies . . . are needed. Without such guidance, institutions are left with a choice. They may closely follow the OCR’s guidelines on victim protection, thereby risking possible due-process claims from alleged perpetrators, or they may independently attempt to balance victim-protection and dueprocess interests and risk Title IX violations for inadequate victim protection. Under either approach, institutions face potential liability, and both victims and alleged perpetrators may be insufficiently protected.’’) (internal citations omitted); Sara Ganim & Nelli Black, An Imperfect Process: How Campuses Deal with Sexual Assault, CNN.com (Dec. 21, 2015) (Alison Kiss, then-leader of the Clery Center for Security on Campus explained that ‘‘schools were so eager to reverse years of mistreatment of victims . . . that some put procedures into place that led to an unfair process.’’ Kiss stated: ‘‘We want to see [college sexual assault disciplinary hearings] informed by trauma, and understand the dynamics that some of these crimes have. But they certainly have to be a hearing that’s fair and that’s impartial.’’); Emily D. Safko, Are Campus Sexual Assault Tribunals Fair?: The Need for Judicial Review and Additional Due Process Protections in Light of New Case Law, 84 Fordham L. Rev. 2289, 2293 (2016) (observing that prior to Federal policy calling attention to campus sexual assault, ‘‘[m]any have argued that schools have systematically failed to hold students accountable for their actions. These shortcomings, coupled with the prevalence of sexual misconduct on college campuses, provoked national debate and spurred colleges, Congress, and the White House to act. Colleges have begun to reform their policies, especially in light of an April 2011 ‘Dear Colleague’ letter addressed to all Title IX institutions from [OCR]. Over time, however, these reforms have drawn criticism for ‘overcorrecting’ the problem by overlooking the important and legally mandated protection of the interests and rights of those accused of misconduct.’’) (internal citations omitted). 197 E.g., Taylor Mooney, How Betsy DeVos plans to change the rules for handling sexual misconduct on campus, CBS News (Nov. 24, 2019) (‘‘Prior to 2011, the number of lawsuits filed against universities for failing to provide due process in Title IX cases averaged one per year. It is expected there will be over 100 such lawsuits filed in 2019 alone.’’). 198 E.g., Chronicle of Higher Education, Title IX: Tracking Sexual Assault Investigations (graph showing significant increase in number OCR Title IX investigations following the 2011 Dear Colleague Letter). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 recipients since issuance of the nowwithdrawn 2011 Dear Colleague Letter, alleging that recipients have mishandled Title IX sexual harassment cases resulting in injustice for complainants and for respondents. Public debates have emerged questioning whether recipients should leave criminal matters like sexual assault to the criminal justice system,199 or whether Title IX requires recipients to ‘‘do both’’— respond meaningfully to allegations of sexual harassment (including sexual assault) on campuses, while also providing due process protections for both parties.200 The Department 199 E.g., Sarah L. Swan, Between Title IX and the Criminal Law: Bringing Tort Law to the Campus Sexual Assault Debate, 64 Univ. Kan. L. Rev. 963, 963 (2016) (‘‘In a recent televised debate, four law professors partnered up to argue for, or against, the following proposition: ‘Courts, not campuses, should decide sexual assault cases.’ Their staged debate reflected the heated discussion occurring in society more broadly over the most appropriate forum and method for addressing campus sexual assault. As campus sexual assault has finally ascended to the status of a national concern, attracting the attention of even the White House, two main camps have emerged: those who believe campus sexual assault is a crime, and thus best dealt with in the criminal courts, using criminal law tools; and those who believe campus sexual assault is a civil rights violation, and thus best dealt with through university disciplinary proceedings, using Title IX.’’) (internal citation omitted); Alexandra Brodsky, Against Taking Rape ‘‘Seriously’’: The Case Against Mandatory Referral Laws for Campus Gender Violence, 53 Harv. C.R.– C.L. L. Rev. 131, 131 (2018) (analyzing State laws proposed in recent years that would mandate referral of campus sexual assault incidents to law enforcement and arguing that mandatory referral laws would decrease victim well-being and reduce the already-low number of victims willing to report sexual assault to campus Title IX offices). 200 E.g., Association of Title IX Administrators (ATIXA), ATIXA Position Statement: Why Colleges Are in the Business of Addressing Sexual Violence 3–4 (Feb. 17, 2017) (noting that instances of recipients’ failure to provide due process has led to public debate over whether Title IX should even cover criminal conduct such as sexual assault; observing that courts have recently begun doing a good job ‘‘scolding’’ recipients who do not provide due process and that OCR cases have included reprimanding recipients who failed to provide due process to the accused; and opining that ‘‘Some are genuinely concerned that colleges don’t afford adequate due process to accused students. ATIXA shares these due process concerns. Unlike Title IX opponents however, we do not view this as a zero sum game, where providing for the needs of victims/survivors must inherently compromise the rights that attach to those who are accused of sexual violence. In fact, colleges must do both, and must do both better.’’); Erin E. Buzuvis, Title IX and Procedural Fairness: Why Disciplined-Student Litigation Does Not Undermine the Role of Title IX in Campus Sexual Assault, 78 Mont. L. Rev. 71, 71– 72 (2017) (‘‘In the last five years, the Department of Education has increased its efforts to enforce [Title IX], both resulting from and contributing to increased public attention to the widespread problem of sexual assault among students, particularly in higher education. The increase in both enforcement and public attention has motivated colleges and universities to improve their policies and practices for addressing sexual assault, including their disciplinary processes. . . . In PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 believes that recipients can and must ‘‘do both,’’ because sexual harassment impedes the equal educational access that Title IX is designed to protect and because no person’s constitutional rights or right to fundamental fairness should be denied. These final regulations help recipients achieve both. Beginning in mid-2017 when the Department started to examine how schools, colleges, and universities were applying Title IX to sexual harassment under then-applicable guidance (e.g., the 2001 Guidance and the nowwithdrawn 2011 Dear Colleague Letter), one of the themes brought to the Department’s attention during listening sessions and discussions with stakeholders 201 was that, in the absence of regulations explaining what fair, equitable procedures compliant with constitutional due process consist of, recipients have interpreted and applied the concept of equitable grievance procedures in the sexual harassment context unevenly across schools, colleges, and universities, at times employing procedures incompatible with constitutionally guaranteed due process 202 and principles of fundamental fairness, and lacking impartiality and reliability.203 As noted some cases, disciplined-student plaintiffs have prevailed in overturning their punishment, causing many to suggest that colleges and universities are ‘overcorrecting’ for earlier deficiencies in their procedures that lead to under-enforcement of campus policies banning sexual misconduct. Much of this rhetoric places blame on Title IX for universities’ problems with compliance and calls, either implicitly or expressly, for repeal of Title IX’s application to sexual assault.’’) (internal citations omitted). 201 The Department met with stakeholders expressing a variety of positions for and against the then-applicable Department guidance documents, including advocates for survivors of sexual violence; advocates for accused students; organizations representing schools and colleges; attorneys representing survivors, the accused, and institutions; Title IX Coordinators and other school and college administrators; child and sex abuse prosecutors; scholars and experts in law, psychology, and neuroscience; and numerous individuals who have experienced school-level Title IX proceedings as a complainant or respondent. 202 E.g., Blair A. Baker, When Campus Sexual Misconduct Policies Violate Due Process Rights, 26 Cornell J. of Law & Pub. Pol’y 533, 550–51 (2016) (‘‘Since the 2011 Dear Colleague Letter, many students have sued their schools for procedural due process violations, alleging they had been found wrongfully responsible for sexual misconduct. In these cases, courts have begun to recognize the precarious factors of various universities’ disciplinary procedures when evaluating whether or not a school violated a student’s due process rights. As discussed, these factors include, but are not limited to, whether the school provided the student with adequate notice of the charges against him or her, afforded the student the right to confront, and provided the student with a right to counsel.’’) (internal citations omitted). 203 E.g., Association of Title IX Administrators (ATIXA), ATIXA Position Statement: Why Colleges E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations throughout this preamble including in the ‘‘Personal Stories’’ section, commenters described how grievance procedures applied under the 2001 Guidance and withdrawn 2011 Dear Colleague Letter have lacked basic procedural protections for complainants and respondents and have appeared biased for or against complainants, or respondents.204 The result has been unpredictable Title IX adjudication systems under which complainants and respondents too often have been thrust into inconsistent, biased proceedings that deprive one or both parties of a fair process 205 and have resulted in some Are in the Business of Addressing Sexual Violence 3–4 (Feb. 17, 2017) (acknowledging that due process has been denied in some recipients’ Title IX proceedings but insisting that ‘‘Title IX isn’t the reason why due process is being compromised . . . . Due process is at risk because of the small pockets of administrative corruption . . . and because of the inadequate level of training currently afforded to administrators. College administrators need to know more about sufficient due process protections and how to provide these protections in practice.’’) (emphasis added). The Department agrees that recipients need to know more about sufficient due process protections and what such protections need to look like in practice, and this belief underlies the Department’s approach to the § 106.45 grievance process which prescribes specific procedural features instead of simply directing recipients to provide due process protections, or be fair, for complainants and respondents. Edward N. Stoner II & John Wesley Lowery, Navigating Past the ‘‘Spirit Of Insubordination’’: A Twenty-First Century Model Student Conduct Code With a Model Hearing Script, 31 Journal of Coll. & Univ. L. 1, 10–11 (2004) (noting that the trend among colleges and universities has been to put into place written student disciplinary codes but, whether an institution is public or private, a ‘‘better practice’’ is to describe in the written disciplinary code exactly what process will be followed rather than making broad statements about ‘‘due process’’ or ‘‘fundamental fairness’’). The Department agrees that it is more instructive and effective for the Department to describe what procedures a process must follow, rather than leaving recipients to translate broad concepts like ‘‘due process’’ and ‘‘fundamental fairness’’ into Title IX sexual harassment grievance processes, and unlike the NPRM the final regulations do not reference ‘‘due process’’ but rather prescribe specific procedural features that a grievance process must contain and apply. 204 As noted in the ‘‘Executive Summary’’ section of this preamble, withdrawal of the 2011 Dear Colleague Letter and issuance of the 2017 Q&A as interim guidance has not resulted in very many recipients changing their Title IX policies and procedures; thus, the grievance processes that serve as commenters’ examples of biased or unfair proceedings are largely processes established in response to the 2001 Guidance or withdrawn 2011 Dear Colleague Letter, and not in response to the 2017 Q&A. Without the legally binding nature of these final regulations, the Department does not believe that recipients will modify their Title IX policies and procedures in a way that consistently ensures meaningful responses to sexual harassment and protection of due process for complainants and respondents. 205 E.g., Diane Heckman, The Assembly Line of Title IX Mishandling Cases Concerning Sexual Violence on College Campuses, 336 West’s Educ. L. Reporter 619, 631 (2016) (stating that since 2014 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 determinations regarding responsibility viewed as unjust and unfair to complainants, and other determinations regarding responsibility viewed as unjust and unfair to respondents.206 Compelling stories of complainants whose allegations of sexual assault go ‘‘unheeded by the institutions they attend and whose education suffers as a consequence’’ 207 and of respondents who have been ‘‘found responsible and harshly punished for [sexual assault] in sketchy campus procedures’’ 208 have led to debate around the issue of how recipients investigate and adjudicate sexual harassment (especially sexual assault) under Title IX, and the ‘‘challenge is to find a way to engage the stories from these different perspectives’’ because ‘‘federal regulators and regulated institutions could do better.’’ 209 ‘‘there has been an influx of lawsuits contending post-secondary schools have violated Title IX due to their failure to properly handle sexual assault claims. What is unusual is that both sexes are bringing such Title IX mishandling cases due to lack of or failure to follow proper process and due process from each party’s perspective. A staggering number of cases involve incidents of alcohol or drug usage or intoxication triggering the issue of the negating a voluntary consent between the participants.’’) (internal citations omitted). 206 Examples of college Title IX sexual assault cases applying seemingly flawed and biased processes to reach decisions viewed as unjust, leading to claims that such situations are occurring with regularity across the country to the detriment of complainants and respondents, include: Nicolo Taormina, Not Yet Enough: Why New York’s Sexual Assault Law Does Not Provide Enough Protection to Complainants or Defendants, 24 Journal of L. & Pol’y 595, 595–600 (2016) (detailing the case of a college student where medical evidence showed violent rape of the complainant by multiple respondents yet a college hearing panel reached a determination of non-responsibility in a seemingly biased, non-objective process; arguing that such a story is not unique and that New York’s ‘‘Enough is Enough’’ law, as well as Federal Title IX guidance, ‘‘lack [ ] strict requirements’’ mandating a consistent grievance process and this ‘‘can lead to unfairness and injustice.’’); Cory J. Schoonmaker, An ‘‘F’’ in Due Process: How Colleges Fail When Handling Sexual Assault, 66 Syracuse L. Rev. 213, 213–15 (2016) (detailing the case of a college student expelled from college after being found responsible following allegations of sexual assault by the respondent’s ex-girlfriend, under a seemingly biased, non-objective process and where a criminal grand jury returned a ‘‘no charge’’ decision indicating there was not enough evidence to sustain the complainant’s allegations even using a standard lower than preponderance of the evidence; arguing that such a story is not unique and that ‘‘campus authorities are not equipped, nor are they capable, of effectively investigating and punishing accusations of sexual assault.’’). 207 Deborah L. Brakeman, The Trouble With ‘‘Bureaucracy,’’ 7 Cal. L. Rev. Online 66, 67, 77 (2016) (providing ‘‘counterpoints’’ to the points raised in Jacob E. Gersen & Jeannie Suk Gersen, The Sex Bureaucracy, 104 Calif. L. Rev. 881 (2016), as part of the ‘‘productive conversation our nation has been having about campus sexual assault, its pervasiveness, and the balance struck by the public policies addressing it’’). 208 Id. at 67. 209 Id. at 77. PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 30049 The Department believes that the Federal courts’ recognition of sexual harassment (including sexual assault) as sex discrimination under Title IX, the Department’s guidance advising recipients on how to respond to allegations of sexual harassment, and these final regulations, represent critical efforts to promote Title IX’s nondiscrimination mandate. With respect to grievance procedures (referred to in these final regulations as a ‘‘grievance process’’ recipients must use for responding to formal complaints of sexual harassment), these final regulations build upon the foundation set forth in the Department’s guidance, yet provide the additional clarity and instruction missing from the Department’s guidance as to how recipients must provide for the needs of complainants, with strong procedural rights that ensure due process protections for both complainants and respondents. These procedural rights reflect the very serious nature of sexual harassment and the life-altering consequences that may follow a determination regarding responsibility for such conduct. We believe that the procedures in the § 106.45 grievance process will ensure that recipients apply a fair, truth-seeking process that furthers the interests of complainants, respondents, and recipients in accurately resolving sexual harassment allegations.210 The § 106.45 grievance process does not codify current Department guidance but does build upon the principles recommended in guidance, while prescribing specific procedures to be consistently applied by recipients to improve the perception and reality that recipients are reaching determinations regarding responsibility that represent just outcomes. At least one State recently considered codifying the 210 E.g., Ashley Hartmann, Reworking Sexual Assault Response on University Campuses: Creating a Rights-Based Empowerment Model to Minimize Institutional Liability, 48 Wash. Univ. J. of L. & Pol’y 287, 313 (2015) (‘‘As students file complaints with the Department of Education, bring Title IX suits with increasing frequency, and turn to the media for resolution in the court of public opinion, universities are often forced to prioritize complaints that have the potential to be most costly to the institution. This forced choice is often the result of sexual assault response procedures that focus too narrowly on the rights of either the victim or the accused student. Failing to create sexual assault response that respects the rights and needs of both the victim and the accused student has the potential to leave one student feeling powerless. This disenfranchisement opens the university to liability from either perspective, creating a zero-sum game in which university response caters to the student who has more social, political, or economic capital. A reformed process of how universities respond to sexual assault should work to meet the needs of all students while minimizing university liability.’’) (internal citation omitted). E:\FR\FM\19MYR2.SGM 19MYR2 30050 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations withdrawn 2011 Dear Colleague Letter, and decided instead that an approach much like what these final regulations set forth would be advisable. The Honorable Edmund G. Brown, Jr., former Governor of California, vetoed a California bill in 2017 that would have codified parts of the withdrawn 2011 Dear Colleague Letter, and Governor Brown’s veto statement asserted: Sexual harassment and sexual violence are serious and complicated matters for colleges to resolve. On the one side are complainants who come forward to seek justice and protection; on the other side stand accused students, who, guilty or not, must be treated fairly and with the presumption of innocence until the facts speak otherwise. Then, as we know, there are victims who never come forward, and perpetrators who walk free. Justice does not come easily in this environment. . . . [T]houghtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault—wellintentioned as they are—have also unintentionally resulted in some colleges’ failure to uphold due process for accused students. Depriving any student of higher education opportunities should not be done lightly, or out of fear of losing state or federal funding.211 Governor Brown then convened a task force, or working group, to make recommendations about how California institutions of higher education should address allegations of sexual misconduct. That working group released a memorandum detailing those recommendations,212 and many of these recommendations are consistent with the approach taken in these final regulations as to how postsecondary institutions should respond to sexual harassment allegations.213 211 Edmund G. Brown, Jr., Governor’s Veto Message (Oct. 15, 2017) (responding to California Senate Bill 169). 212 Governor Edmund G. Brown, Jr.’s Working Group to Address Allegations of Student Sexual Misconduct on College and University Campuses in California, Recommendations of the Post-SB 169 Working Group (Nov. 14, 2018) (referred to hereinafter as ‘‘Recommendations of the Post-SB 169 Working Group,’’ (Nov. 14, 2018)). The Post-SB 169 Working Group was comprised of three members: a senior administrator and professor at UC Berkeley, an Assistant Dean at UCLA School of Law, and a retired California Supreme Court justice. The Post-SB 169 Working Group spent over a year reviewing California State law, current and prior Federal Title IX guidance, the American Bar Association Task Force recommendations, and legal scholarship on the topic of institutional responses to sexual misconduct before reaching its consensus recommendations. 213 See id. It is notable that of the 21 separate topics covered by the Post-SB 169 Working Group, 20 of those topics reached recommendations consistent with the provisions in these final regulations. Only one topic reached a recommendation that would be precluded under the final regulations: The Post-SB 169 Working Group recommends that cross-examination at a live hearing occur by the parties submitting questions VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Due Process Principles Whether due process is conceived in terms of constitutional due process of law owed by State actors, or as principles of fundamental fairness owed by private actors, the final regulations prescribe a grievance process grounded in principles of due process for the benefit of both complainants and respondents, seeking justice in each sexual harassment situation that arises in a recipient’s education program or activity. ‘‘Due process describes a procedure that justifies outcome; it provides reasons for asserting that the treatment a person receives is the treatment he [or she] deserves.’’ 214 ‘‘Due process is a fundamental constitutional principle in American jurisprudence. It appears in criminal law, civil law, and administrative law . . . . [D]ue process is a peculiarly American phenomenon: no other legal system has anything quite like it. Due process is a legal principle which has been shaped and developed through the process of applying and interpreting a written constitution.’’ 215 Due process is ‘‘a principle which is used to generate a number of specific rights, procedures, and practices.’’ 216 Due process ‘‘may be thought of as a demand that a procedure conform to the requirements of formal justice, and formal justice is a basic feature of our idea of the rule of law.’’ 217 ‘‘Research demonstrates that people’s views about their outcomes are shaped not solely by how fair or favorable an outcome appears to be but also by the fairness of the process through which the decision was reached. A fair process provided by a third party leads to higher perceptions of legitimacy; in turn, legitimacy leads to increased compliance with the law.’’ 218 ‘‘Fair process’’ or ‘‘procedural justice’’ increases outcome legitimacy and thus increased compliance because it is likely to lead to an accurate outcome, and sends a signal about an individual’s value and worth with through the decision-maker(s), while the final regulations, § 106.45(b)(6)(i), require that the parties’ advisors conduct the cross-examination. Every other recommendation reached by the Working Group is either required by, or permitted under, these final regulations. For further discussion of live hearings and cross-examination in postsecondary institution adjudications, see the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. 214 David Resnick, Due Process and Procedural Justice, Nomos XVIII 214 (1977). 215 Id. at 206–207. 216 Id. at 208. 217 Id. at 209. 218 Rebecca Holland-Blumoff, Fairness Beyond the Adversary System: Procedural Justice Norms for Legal Negotiation, 85 Fordham L. Rev. 2081, 2084 (2017) (internal citations omitted). PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 respect to society in general.219 The grievance process prescribed in these final regulations provides a fair process rooted in due process protections that improves the accuracy and legitimacy of the outcome for the benefit of both parties. In Rochin v. California,220 the Supreme Court reasoned that deciding whether proceedings in a particular context (there, State criminal charges against a defendant) met the constitutional guarantee of due process of law meant ascertaining whether the proceedings ‘‘offend those canons of decency and fairness which express the notions of justice . . . even toward those charged with the most heinous offenses.’’ 221 Such ‘‘standards of justice are not authoritatively formulated anywhere as though they were specifics’’ yet are those standards ‘‘so rooted in the traditions and conscience of our people as to be ranked as fundamental’’ or are ‘‘implicit in the concept of ordered liberty.’’ 222 Sexual harassment (defined in these final regulations to include sexual assault) qualifies as one of ‘‘the most heinous offenses’’ that one individual may perpetrate against another. Perpetration of sexual harassment impedes the equal educational access that Title IX was enacted to protect. These final regulations aim to ensure that a determination that a respondent committed sexual harassment is a ‘‘sound and supportable’’ 223 determination so that recipients remedy sexual harassment committed in education programs or activities. Because sexual harassment is a ‘‘heinous offense[ ],’’ these final regulations rely on and incorporate ‘‘standards of justice’’ fundamental to notions of ‘‘decency and fairness’’ 224 so that recipients, parties, and the public view recipients’ determinations regarding responsibility as just and warranted, while recognizing that Title IX grievance processes are not criminal proceedings and the constitutional protections granted to criminal defendants do not apply.225 219 See id. U.S. 165 (1952). 221 Id. at 169 (internal quotation marks and citations omitted). 222 Id. (internal quotation marks and citations omitted). 223 See 2001 Guidance at 22. 224 Rochin v. California, 342 U.S. 165, 169 (1952). As discussed throughout this preamble, due process of law is not confined to the criminal law context; due process of law applies in civil and administrative proceedings as well, even though the precise procedures that are due differ outside the criminal context. 225 For example, these final regulations do not permit application of the criminal standard of 220 342 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations The Department, as an agency of the Federal government, is subject to the U.S. Constitution, including the Fifth Amendment, and will not interpret Title IX to compel a recipient, whether public or private, to deprive a person of due process rights.226 ‘‘ ‘Once it is determined that due process applies, the question remains what process is due.’ ’’ 227 Procedural due process of law requires at a minimum notice and a meaningful opportunity to be heard.228 Due process ‘‘ ‘is not a technical conception with a fixed content unrelated to time, place and circumstances.’ ’’ 229 Instead, due process ‘‘‘is flexible and calls for such procedural protections as the particular situation demands.’’230 ‘‘The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ’’ 231 The Department recognizes that the Supreme Court has not ruled on what constitutional due process looks like in the ‘‘particular situation’’ 232 of Title IX sexual harassment adjudications, and that Federal appellate courts have taken different approaches to which specific procedures are constitutionally required under the general proposition that due process in the educational discipline context requires some kind of notice and some kind of opportunity to be heard,233 and for private institutions not evidence (beyond a reasonable doubt), do not grant respondents a right of self-representation with respect to confronting witnesses, do not grant respondents a right to effective assistance of counsel, and do not purport to protect respondents from ‘‘double jeopardy’’ (i.e., by preventing a complainant from appealing a determination of non-responsibility). 226 83 FR 61480–81; see, e.g., Peterson v. City of Greenville, 373 U.S. 244 (1963); Truax v. Raich, 239 U.S. 33, 38 (1915); 2001 Guidance at 22 (‘‘The rights established under Title IX must be interpreted consistent with any federally guaranteed due process rights involved in a complaint proceeding’’). 227 Goss v. Lopez, 419 U.S. 565, 577 (quoting Morrissey, 408 U.S. at 481). 228 Goss, 419 U.S. at 580 (‘‘At the very minimum, therefore, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing.’’); Mathews v. Eldridge, 424 U.S. 319, 333 (1976). 229 Mathews, 424 U.S. at 334 (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)). 230 Mathews, 424 U.S. at 334 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (internal quotation marks omitted)). 231 Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). 232 Mathews, 424 U.S. at 334 (internal quotation marks and citations omitted). 233 See Goss, 419 U.S. at 578–79 (holding that in the public school context ‘‘the interpretation and application of the Due Process Clause are intensely practical matters’’ that require at a minimum notice and ‘‘opportunity for hearing appropriate to the nature of the case’’) (internal quotation marks and VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 subject to constitutional requirements, which specific procedures are required to comport with fundamental fairness.234 In these final regulations, the Department deliberately declines to adopt wholesale the procedural rules that govern, for example, Federal civil lawsuits, Federal criminal proceedings, or proceedings before administrative law judges. Understanding that schools, colleges, and universities exist first and foremost to provide educational services to students, are not courts of law, and are not staffed with judges and attorneys or vested with subpoena powers, the standardized Title IX sexual harassment grievance process in § 106.45 contains procedural requirements, rights, and protections that the Department believes are reasonably designed for implementation in the setting of an education program or activity. While due process of law in some contexts (for example, criminal proceedings) is especially concerned with protecting the rights of accused defendants, the Department views due process protections as a critical part of a Title IX grievance process for the benefit of both complainants and respondents, as well as recipients. Both parties benefit from equal opportunities to participate by putting forward the party’s own view of the allegations. Both parties, as well as recipients, benefit from a process geared toward reaching factually accurate outcomes. The § 106.45 grievance process prescribed in the final regulations is consistent with constitutional due process guarantees 235 and conceptions citations omitted); see also, e.g., Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018) (holding that where university Title IX sexual misconduct proceeding turned on credibility of parties, the university must provide a hearing with opportunity for parties to cross-examine each other); cf. Haidak v. Univ. of Massachusetts-Amherst, 933 F.3d 56, 70 (1st Cir. 2019) (declining to require the same opportunity for cross-examination as required by the Sixth Circuit but requiring university to conduct ‘‘reasonably adequate questioning’’ designed to ferret out the truth, if the university declined to grant students the right to cross-examine at a hearing); see also, e.g., Doe v. Trustees of Boston Coll., 942 F.3d 527 (1st Cir. 2019) (interpreting State law guarantee of ‘‘basic fairness’’ in a private college’s sexual misconduct disciplinary proceeding). 234 Lisa Tenerowicz, Student Misconduct at Private Colleges and Universities: A Roadmap for ‘‘Fundamental Fairness’’ in Disciplinary Proceedings, 42 Boston Coll. L. Rev. 653 (2001) (‘‘In the absence of constitutional protections, courts generally have required that private school disciplinary procedures adhere to a ‘fundamental’ or ‘basic’ fairness standard and not be arbitrary or capricious. More precisely, state and federal courts have often held that a private school’s disciplinary decisions are fundamentally fair if they comport with the rules and procedures that the school itself has promulgated.’’) (internal citation omitted.) 235 See Goss v. Lopez, 419 U.S. 565, 583–84 (1975) (‘‘On the other hand, requiring effective notice and informal hearing permitting the student PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 30051 of fundamental fairness,236 in a manner designed to accomplish the critical goals of ensuring that recipients resolve sexual harassment allegations to improve parties’ sense of fairness and lead to reliable outcomes, while lessening the risk that sex-based bias will improperly affect outcomes.237 In the words of the Honorable Ruth Bader Ginsburg, Associate Justice, discussing the #MeToo movement and the search for balance between sex equality and due process, ‘‘It’s not one or the other. It’s both. We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally.’’ 238 to give his [or her] version of the events will provide a meaningful hedge against erroneous action. At least the disciplinarian will be alerted to the existence of disputes about facts and arguments about cause and effect. He may then determine himself to summon the accuser, permit crossexamination, and allow the student to present his own witnesses. In more difficult cases, he may permit counsel. In any event, his discretion will be more informed and we think the risk of error substantially reduced.’’); Nicola A. Boothe-Perry, Enforcement of Law Schools’ Non-Academic Honor Codes: A Necessary Step Towards Professionalism?, 89 Neb. L. Rev. 634, 662–63 (2012) (‘‘Thus, while well-settled that there is no specific procedure required for due process in school disciplinary proceedings, the cases establish the bare minimum requirements of: (1) Adequate notice of the charges; (2) reasonable opportunity to prepare for and meet them; (3) an orderly hearing adapted to the nature of the case; and (4) a fair and impartial decision . . . . Where disciplinary measures are imposed pursuant to non-academic reasons (e.g., fraudulent conduct), as opposed to purely academic reasons, the courts are inclined to reverse decisions made by the institutions without these minimal procedural safeguards.’’) (internal citations omitted). 236 E.g., Kathryn M. Reardon, Acquaintance Rape at Private Colleges and Universities: Providing for Victims’ Educational and Civil Rights, 38 Suffolk Univ. L. Rev. 395, 406–07 (2005) (‘‘Courts around the nation have taken a relatively consistent stance on what type of process private colleges and universities owe to their students. . . . Courts expect that schools will adhere to basic concepts of fairness in dealing with students in disciplinary matters. Schools must employ the procedures set out in their own policies, and those policies must not be offensive to fundamental notions of fairness.’’). 237 For discussion of sex-based bias in Title IX grievance proceedings, the ‘‘Section 106.45(a) Treatment of Complainants or Respondents Can Violate Title IX’’ subsection of the ‘‘General Requirements for § 106.45 Grievance Process’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. 238 Jeffrey Rosen, Ruth Bader Ginsburg Opens Up About #MeToo, Voting Rights, and Millennials, The Atlantic (Feb. 15, 2018) (‘‘Rosen: What about due process for the accused? Ginsburg: Well, that must not be ignored and it goes beyond sexual harassment. The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing. Rosen: Are some of those criticisms of the E:\FR\FM\19MYR2.SGM Continued 19MYR2 30052 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations The final regulations seek to apply fundamental principles of due process to the ‘‘particular situation’’ 239 of Title IX sexual harassment allegations. We believe the framework of the § 106.45 grievance process furthers Title IX’s non-discrimination mandate consistent with constitutional guarantees of due process of law and conceptions of fundamental fairness. Precisely because due process is a ‘‘flexible’’ concept dictated by the demands of a ‘‘particular situation,’’ 240 the Department recognizes, and these final regulations reflect, that due process protections in the ‘‘particular situation’’ of a recipient’s response to sexual harassment may dictate different procedures than what might be appropriate in other situations (e.g., the noneducational context of a criminal trial 241 or the administrative context of a government agency’s determination of eligibility for public benefits,242 or the educational context involving allegations of student academic misconduct 243). Allegations of sexual harassment in an educational environment present unique challenges for the individuals involved, and for the recipient, with respect to how to best ensure that parties are treated fairly and accurate outcomes result. college codes valid? Ginsburg: Do I think they are? Yes. Rosen: I think people are hungry for your thoughts about how to balance the values of due process against the need for increased gender equality. Ginsburg: It’s not one or the other. It’s both. We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally.’’). 239 Mathews, 424 U.S. at 334 (internal quotation marks and citations omitted). 240 Id. 241 For instance, in the criminal context, the U.S. Constitution imposes specific due process of law requirements that the Supreme Court has not required to be given to defendants in noncriminal matters, such as the right to be provided with effective assistance of counsel, the right to personally confront witnesses, and the right to have guilt determined under a standard of evidence described as ‘‘beyond a reasonable doubt.’’ See, e.g., I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (‘‘Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing.’’). 242 E.g., Mathews, 424 U.S. at 348 (‘‘The ultimate balance [of due process owed] involves a determination as to when, under our constitutional system, judicial-type procedures must be imposed upon administrative action to assure fairness.’’). 243 The Supreme Court has distinguished between the level of deference courts should give schools with respect to student discipline resulting from academic misconduct or academic failure, and other types of student misconduct. E.g., Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 86 (1978) (stating that the Court will grant greater deference to public schools in decision making in academic, as opposed to disciplinary, dismissals and, would require more stringent procedural requirements in dismissals based upon purely disciplinary matters). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Furthermore, due process protections in the ‘‘particular situation’’ 244 of elementary and secondary schools may differ from protections necessitated by the ‘‘particular situation’’ of postsecondary institutions. Thus, some procedural rules in the § 106.45 grievance process apply only to postsecondary institution recipients,245 in recognition that postsecondary institutions present a different situation than elementary and secondary schools because, for instance, most students in elementary and secondary schools tend to be under the age of majority such that certain procedural rights generally cannot be exercised effectively (even by a parent acting on behalf of a minor 246). For example, unlike postsecondary institutions, elementary and secondary schools are not required to hold a hearing under these final regulations.247 The final regulations aim to accomplish the objective of a consistent, predictable Title IX grievance process while respecting the fact that elementary and secondary schools differ from postsecondary institutions. However, the Department does not believe that the public or private status of a recipient, or the size of the recipient’s student body, constitutes a different ‘‘particular situation’’ 248 that necessitates or advises different procedural protections. The Department recognizes that some recipients are State actors with responsibilities to provide due process of law to students and employees under the U.S. Constitution, including the Fourteenth Amendment, while other recipients are private institutions that do not have constitutional obligations to their students and employees. As previously explained, the Department, as an agency of the Federal government, will not interpret or enforce Title IX in a manner that would require any recipient, including a private recipient, to deprive a person of constitutional due process rights.249 As a matter of policy, the 244 Mathews, 424 U.S. at 334 (internal quotation marks and citations omitted). 245 Section 106.45(b)(6)(i) requires postsecondary institutions to use a live hearing model to adjudicate formal complaints, while § 106.45(b)(6)(ii) does not require elementary or secondary schools to hold any kind of hearing to adjudicate formal complaints. 246 The final regulations expressly recognize legal rights of parents and guardians to act on behalf of an individual with respect to exercising Title IX rights. § 106.6(g). 247 Section 106.45(b)(6)(i)-(ii). 248 Mathews, 424 U.S. at 334 (internal quotation marks and citations omitted). 249 The Department also cannot interpret Title IX to compel a private recipient to deprive a person of their due process rights because the Department, as an agency of the Federal government, is subject to the U.S. Constitution. In Peterson v. City of PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 Department cannot justify requiring a different grievance process for complainants and respondents based on whether the recipient is a public or private entity, or based on whether the recipient enrolls a large number or small number of students. Additionally, many private schools owe students and employees fundamental fairness, often recognized by contract and under State laws 250 and while conceptions of fundamental fairness may not always equate to constitutional due process requirements, there is conceptual and practical overlap between the two.251 Title IX applies to all recipients of Federal financial assistance, whether the recipient is a public or private entity and regardless of the size of the recipient’s student body. Fair, reliable procedures that best promote the purposes of Title IX are as important in public schools, colleges, and universities as in private ones, and are as important in large institutions as in small ones. The final regulations therefore prescribe a consistent grievance process for application by all recipients without distinction as to public or private status, or the size of the institution.252 Greenville, 373 U.S. 244, 247–48 (1963), the U.S. Supreme Court held that the City of Greenville through an ordinance could not compel a private restaurant to operate in a manner that treated patrons differently on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment. Similarly, in Truax v. Raich, 239 U.S. 33, 38 (1915), the Supreme Court held that Arizona cannot use a State statute to compel private entities to employ a specific percentage of native-born Americans as employees in violation of the Equal Protection Clause of the Fourteenth Amendment. Like the City of Greenville and the State of Arizona, the Department cannot compel private schools to comply with Title IX in a manner that would require the private recipient to violate a person’s due process rights. 250 E.g., Doe v. College of Wooster, 243 F. Supp. 3d 875, 890–91 (N.D. Ohio 2017) (‘‘[C]ourts consider whether the disciplinary process afforded by the [private] academic institution was ‘conducted with notions of basic fairness’ ’’); Psi Upsilon of Pa. v. Univ. of Pa., 591 A.2d 755, 758 (Pa. 1991) (holding that ‘‘disciplinary procedures established by the [private] institution must be fundamentally fair’’). 251 See Holly Hogan, The Real Choice in a Perceived ‘‘Catch-22’’: Providing Fairness to Both the Accused and Complaining Students in College Sexual Assault Disciplinary Proceedings, 38 Journal of L. & Educ. 27 (2009) (‘‘Even when the due process clause does not apply to a private university’s disciplinary proceedings, a private university must nevertheless comply with its own procedural rules. . . . Because private higher education institutions often model their disciplinary proceedings on due process requirements, as a practical matter’’ the same principles apply to both private and public institutions) (internal citations omitted). 252 As discussed in the ‘‘Regulatory Impact Analysis’’ section of this preamble, the Department considered the impact of these final regulations on small entities, but as a policy matter, does not believe that different procedures should apply E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations The grievance process prescribed in the final regulations is important for effective enforcement of Title IX and is consistent with constitutional due process and conceptions of fundamental fairness. The § 106.45 grievance process is designed for the particular ‘‘practical matters’’ 253 presented by allegations of sexual harassment in the educational context. The Department acknowledges that constitutional due process does not require the specific procedures included in the § 106.45 grievance process. However, the § 106.45 grievance process is consistent with the constitutional requirement to provide notice and a meaningful opportunity to be heard, and does so for the benefit of complainants and respondents, to address policy considerations unique to sex discrimination in the form of sexual harassment in education programs and activities. For example, if a recipient dismisses a formal complaint or any allegations in the formal complaint, the complainant should know why any of the complainant’s allegations were dismissed and should also be able to challenge such a dismissal by appealing on certain grounds.254 Even though constitutional due process may not require the specific procedure of a written notice of the dismissal stating the reasons for the dismissal, or the right to appeal the dismissal, such strong due process protections help ensure that a recipient is not erroneously dismissing an allegation due to a procedural irregularity, lack of knowledge of newly discovered evidence, or a conflict of interest or bias.255 As discussed throughout this preamble and especially in the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section, each of the procedural requirements in § 106.45 is prescribed because the Department views the requirement as important to ensuring a fair process for both parties rooted in the fundamental due process principles of notice and meaningful opportunities to be heard.256 In issuing these final regulations with a standardized grievance process for Title IX sexual harassment, the Department has carefully considered the public comments on the NPRM. The public comments have been crucial in based on the size of a recipient’s student body or the amount of a recipient’s revenues. 253 See Goss, 419 U.S. at 578–79. 254 See § 106.45(b)(3); § 106.45(b)(8)(i). 255 Id. 256 See Goss, 419 U.S. at 578–79 (holding that in the public school context ‘‘the interpretation and application of the Due Process Clause are intensely practical matters’’ that require at a minimum notice and ‘‘opportunity for hearing appropriate to the nature of the case’’) (internal quotation marks and citations omitted). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 promulgating the procedures that are most needed to (i) improve perceptions that Title IX sexual harassment allegations are resolved fairly and reliably, (ii) avoid intentional or unintentional injection of sex-based biases and stereotypes into proceedings that too often have been biased for or against parties on the basis of sex, mostly because the underlying allegations at issue involve issues of sex-based conduct, and (iii) promote accurate, reliable outcomes so that victims of sexual harassment receive remedies restoring and preserving equal educational opportunities and respondents are not treated as responsible unless a determination of responsibility is factually reliable. Summary of § 106.45 As a whole, § 106.45 contains ten groups of provisions 257 that together are intended to provide a standardized framework that governs recipients’ responses to formal complaints of sexual harassment under Title IX: (1) Section 106.45(a) acknowledges that a recipient’s treatment of a complainant, or a respondent, could constitute sex discrimination prohibited under Title IX. (2) Section 106.45(b)(1)(i)–(x) requires recipients to adopt a grievance process that: • Treats complainants and respondents equitably by recognizing the need for complainants to receive remedies where a respondent is determined responsible and for respondents to face disciplinary sanctions only after a fair process determines responsibility; • objectively evaluates all relevant evidence both inculpatory and exculpatory, and ensures that rules voluntarily adopted by a recipient treat the parties equally; • requires Title IX Coordinators, investigators, decision-makers, and persons who facilitate informal resolutions to be free from conflicts of interest and bias and trained to serve impartially without prejudging the facts at issue; • presumes the non-responsibility of respondents until conclusion of the grievance process; • includes reasonably prompt time frames for the grievance process; • informs all parties of critical information about the recipient’s procedures including the range of 257 Although not located in § 106.45, the final regulations also add § 106.71 to expressly prohibit retaliation against any individual exercising rights under Title IX, specifically protecting any individual’s right to participate or refuse to participate in a Title IX grievance process. PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 30053 remedies and disciplinary sanctions a recipient may impose, the standard of evidence applied by the recipient to all formal complaints of sexual harassment under Title IX (which must be either the preponderance of the evidence standard, or the clear and convincing evidence standard), the recipient’s appeal procedures, and the range of supportive measures available to both parties; and • protects any legally recognized privilege from being pierced during a grievance process. (3) Section 106.45(b)(2) requires written notice of the allegations to both parties, including informing the parties of the right to select an advisor of choice. (4) Sections 106.45(b)(3)–(b)(4) require recipients to investigate formal complaints, describe when a formal complaint is subject to mandatory or discretionary dismissal, require the recipient to notify the parties of any dismissal, and authorize discretionary consolidation of formal complaints when allegations of sexual harassment arise out of the same facts or circumstances. (5) Section 106.45(b)(5)(i)–(vii) requires recipients to investigate formal complaints in a manner that: • keeps the burden of proof and burden of gathering evidence on the recipient while protecting every party’s right to consent to the use of the party’s own medical, psychological, and similar treatment records; • provides the parties equal opportunity to present fact and expert witnesses and other inculpatory and exculpatory evidence; • does not restrict the parties from discussing the allegations or gathering evidence; • gives the parties equal opportunity to select an advisor of the party’s choice (who may be, but does not need to be, an attorney); • requires written notice when a party’s participation is invited or expected for an interview, meeting, or hearing; • provides both parties equal opportunity to review and respond to the evidence gathered during the investigation; and • sends both parties the recipient’s investigative report summarizing the relevant evidence, prior to reaching a determination regarding responsibility. (6) Section 106.45(b)(6) requires a live hearing with cross-examination conducted by the parties’ advisors at postsecondary institutions, while making hearings optional for elementary and secondary schools (and other recipients that are not postsecondary E:\FR\FM\19MYR2.SGM 19MYR2 30054 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations institutions) so long as the parties have equal opportunity to submit written questions for the other parties and witnesses to answer before a determination regarding responsibility is reached. (7) Section 106.45(b)(7) requires a decision-maker who is not the same person as the Title IX Coordinator or the investigator to reach a determination regarding responsibility by applying the standard of evidence the recipient has designated in the recipient’s grievance process for use in all formal complaints of sexual harassment (which must be either the preponderance of the evidence standard or the clear and convincing evidence standard), and the recipient must simultaneously send the parties a written determination explaining the reasons for the outcome. (8) Section 106.45(b)(8) requires recipients to offer appeals equally to both parties, on the bases that procedural deficiencies, newly discovered evidence, or bias or conflict of interest affected the outcome. (9) Section 106.45(b)(9) allows recipients to offer and facilitate informal resolution processes, within certain parameters to ensure such informal resolution only occurs with the voluntary, written consent of both parties; informal resolution is not permitted to resolve allegations that an employee sexually harassed a student. (10) Section 106.45(b)(10) requires recipients to maintain records and documentation concerning sexual harassment reports, formal complaints, investigations, and adjudications; and to publish materials used for training Title IX Coordinators, investigators, decisionmakers, and persons who facilitate informal resolutions on the recipient’s website or make these materials available upon request for inspection by members of the public. The Department has concluded that the above provisions, rooted in due process principles of notice and a meaningful opportunity to be heard and the importance of an impartial process before unbiased officials, set forth the procedures adapted for the practical realities of sexual harassment allegations in an educational context that are most needed to (i) improve perceptions that Title IX sexual harassment allegations are resolved fairly and reliably, (ii) avoid intentional or unintentional injection of sex-based biases and stereotypes into Title IX proceedings, and (iii) promote accurate, reliable outcomes, all of which effectuate the purpose of Title IX to provide individuals with effective protection from discriminatory practices. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Similarities and Differences Between the § 106.45 Grievance Process and Department Guidance The Department’s guidance in 1997, 2001, 2011, and 2017 has interpreted the Department’s regulatory requirement in 34 CFR 106.8(b) for recipients to ‘‘adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action which would be prohibited by this part’’ as applying to complaints of sexual harassment.258 The § 106.45 grievance process, and the Department’s guidance, largely address the same topics related to an ‘‘equitable’’ grievance process, and the final regulations are in many respects consistent with the Department’s guidance. For example, these final regulations and the Department’s guidance all address equal opportunity for both parties to present witnesses and evidence.259 The Department’s guidance has always stated that grievance procedures must provide for ‘‘adequate, reliable, and impartial investigation of complaints,’’ 260 and these final regulations adopt that premise and explicitly instruct recipients to investigate and adjudicate in a manner that is (and ensure that Title IX personnel receive training to be) impartial and unbiased,261 and to objectively evaluate all relevant evidence, including inculpatory and exculpatory evidence.262 These final regulations also expressly protect information protected by legally 258 1997 Guidance (recipients are required by regulations to adopt and publish grievance procedures providing for the ‘‘prompt and equitable’’ resolution of sex discrimination complaints and these procedures apply to complaints of sexual harassment); 2001 Guidance at 19; 2011 Dear Colleague Letter at 8; 2017 Q&A at 3. 259 1997 Guidance (to be ‘‘equitable’’ grievance procedures should provide for ‘‘the opportunity to present witnesses and other evidence’’); 2001 Guidance at 20; 2011 Dear Colleague Letter at 9; 2017 Q&A at 3; see also § 106.45(b)(5)(ii) (grievance process must give both parties equal opportunity to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence); § 106.45(b)(5)(iii) (recipients may not restrict the ability of parties to gather evidence). 260 1997 Guidance (grievance procedures must provide for ‘‘adequate, reliable, and impartial investigation of complaints’’); 2001 Guidance at 20; 2011 Dear Colleague Letter at 9; 2017 Q&A at 3; 2017 Q&A at 4 (adding that an ‘‘equitable’’ investigation should include using a trained investigator to ‘‘objectively evaluate the credibility of parties and witnesses, synthesize all available evidence—including both inculpatory and exculpatory evidence—and take into account the unique and complex circumstances of each case.’’). 261 Section 106.45(b)(1)(iii). 262 Section 106.45(b)(1)(ii); § 106.45(b)(5)(vii); § 106.45(b)(6). PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 recognized privileges,263 ensure that a party’s treatment records are not used in a grievance process without the party’s voluntary, written consent,264 require that both parties receive copies of evidence gathered during the investigation that is ‘‘directly related to the allegations’’ in the formal complaint,265 require that both parties be sent a copy of the recipient’s investigative report that summarizes all relevant evidence including inculpatory and exculpatory evidence,266 and deem questions and evidence about a complainant’s prior sexual behavior to be irrelevant (with two limited exceptions).267 The Department believes that these requirements build upon the expectation set forth in prior guidance, that grievance procedures must provide for the ‘‘adequate, reliable, and impartial investigation of complaints.’’ 268 Some provisions in § 106.45 address topics by requiring procedures that Department guidance did not address, or addressed as a recommendation. For instance, § 106.45(b)(2) requires written notice of the allegations with sufficient details to permit parties to prepare for an initial interview, which the recipient must send to both parties ‘‘upon receipt of a formal complaint,’’ and § 106.45(b)(5)(v) requires written notice to the parties in advance of any meeting, interview, or hearing conducted as part of the investigation or adjudication. The 1997 Guidance, 2001 Guidance, and withdrawn 2011 Dear Colleague Letter were silent on the need for written notice. The 2017 Q&A stated that recipients ‘‘should’’ send written notice of allegations at the start of an investigation, but only ‘‘to the responding party’’ and stated that both parties ‘‘should’’ receive written notice to enable meaningful participation in any interview or hearing.269 The final regulations make these written notices mandatory, for the benefit of both parties. As a further example, the 1997 Guidance, 2001 Guidance, and 2017 Q&A did not require any specific adjudicatory model, and while the withdrawn 2011 Dear Colleague Letter referred to ‘‘the hearing’’ 270 (thus presuming that adjudications take place after a hearing), no guidance document specifically addressed whether or not recipients should, or must, hold live 263 Section 106.45(b)(1)(x). 106.45(b)(5)(i). 265 Section 106.45(b)(5)(vi). 266 Section 106.45(b)(5)(vii). 267 Section 106.45(b)(6). 268 2001 Guidance at 20. 269 2017 Q&A at 4. 270 2011 Dear Colleague Letter at 12. 264 Section E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations hearings. Section 106.45(b)(6) clarifies that only postsecondary institutions must hold live hearings; other recipients (including elementary and secondary schools) may use a hearing or nonhearing model for adjudication. Similarly, the 1997 Guidance, 2001 Guidance, and 2017 Q&A did not address whether the parties have rights to confront or cross-examine other parties and witnesses,271 and while the withdrawn 2011 Dear Colleague Letter ‘‘strongly discourage[d]’’ recipients ‘‘from allowing the parties personally to question or cross-examine each other during the hearing’’ 272 the withdrawn 2011 Dear Colleague Letter did not discourage or prohibit crossexamination by the parties’ advisors, as required for postsecondary institutions under § 106.45(b)(6)(i). In some significant respects, § 106.45 departs from positions taken in the Department’s guidance by allowing recipients flexibility or discretion in a manner discouraged by guidance. For example, § 106.45(b)(1)(v) permits recipients to designate the recipient’s own ‘‘reasonably prompt time frames’’ for conclusion of a grievance process. While the 1997 Guidance 273 and 2001 Guidance 274 were silent on what ‘‘prompt’’ resolution of complaints meant, the withdrawn 2011 Dear Colleague Letter recommended a 60 calendar day time frame.275 The 2017 Q&A did not recommend a particular time frame for ‘‘prompt’’ resolution and referenced the 2001 Guidance approach on this subject.276 Similarly, § 106.45(b)(1)(vii) and § 106.45(b)(7)(i) permit each recipient to select between one of two standards of evidence to use in resolving formal complaints of sexual harassment. While the 1997 Guidance and 2001 Guidance were silent on the appropriate standard of evidence, the withdrawn 2011 Dear Colleague Letter acknowledged that at the time, many 271 The 2017 Q&A did not require a hearing or cross-examination, but stated that any rights regarding procedures such as cross-examination must be given equally to both parties. 2017 Q&A at 5. 272 2011 Dear Colleague Letter at 12. 273 1997 Guidance (a recipient’s grievance procedures should provide for ‘‘designated and reasonably prompt timeframes for the major stages of the complaint process’’). 274 2001 Guidance at 20 (recipients’ grievance procedures should provide for ‘‘designated and reasonably prompt timeframes for the major stages of the complaint process’’). 275 2011 Dear Colleague Letter at 12 (‘‘Based on OCR experience, a typical investigation takes approximately 60 calendar days following receipt of the complaint. Whether OCR considers complaint resolutions to be timely, however, will vary depending on the complexity of the investigation and the severity and extent of the harassment.’’). 276 2017 Q&A at 3. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 recipients used the preponderance of the evidence standard, some recipients used the clear and convincing evidence standard, and took the position that only the preponderance of the evidence standard could be consistent with Title IX’s non-discrimination mandate.277 The 2017 Q&A approved of using either the preponderance of the evidence standard or the clear and convincing evidence standard but cautioned recipients not to apply the preponderance of the evidence standard unless the recipient also used that standard for non-sexual misconduct proceedings.278 Finally, § 106.45(b)(9) allows recipients the option of facilitating informal resolution processes (except as to allegations that an employee sexually harassed a student) so long as both parties voluntarily agree to attempt an informal resolution. Both the 2001 Guidance 279 and withdrawn 2011 Dear Colleague Letter 280 discouraged schools from using mediation (or other informal resolution) to resolve sexual assault allegations. The 2017 Q&A allowed informal resolution 281 but unlike § 106.45(b)(9)(iii), did not prohibit informal resolution of allegations that an employee sexually harassed a student. For the purpose of ensuring that recipients reach accurate determinations regarding responsibility so that victims of sexual harassment receive remedies in furtherance of Title IX’s nondiscrimination mandate in a manner consistent with constitutional due process and fundamental fairness, the § 106.45 grievance process prescribes more detailed procedural requirements than set forth in the Department’s guidance in some respects, and leaves recipients with greater flexibility than guidance in other respects. Public Comment In response to our invitation in the NPRM, we received more than 124,000 comments on the proposed regulations. We discuss substantive issues under topical headings, and by the sections of the final regulations to which they pertain. 277 2011 Dear Colleague Letter at 11 (‘‘Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard.’’). 278 2017 Q&A at 5, fn. 19. 279 2001 Guidance at 21 (‘‘In some cases, such as alleged sexual assaults, mediation will not be appropriate even on a voluntary basis.’’). 280 2011 Dear Colleague Letter at 8 (‘‘Moreover, in cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis.’’). 281 2017 Q&A at 4. PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 30055 Analysis of Comments and Changes An analysis of the public comments and changes in the final regulations since the publication of the NPRM follows. Personal Stories Comments: Numerous commenters shared with the Department experiences they have had as complainants or respondents, or people supporting complainants or respondents. Relating to complainants, such personal experiences included the following: • A wide variety of individuals shared their stories identifying as survivors or victims, whether or not they were also involved as complainants in Title IX proceedings. These included females, males, LGBTQ individuals, individuals with disabilities, persons of color, individuals who grew up in both rural and urban settings, veterans who were assaulted in the military, and individuals who described being sexually assaulted or harassed more than 50 years ago. The personal stories recounted sexual harassment and assault incidents occurring at all stages in life, including elementary school students, high school students, undergraduate students at public and private universities, graduate students at public and private universities, faculty at public and private universities, and other university employees. • Commenters shared stories as individuals who knew victims and witnessed the aftermath of trauma. These individuals included parents and grandparents of students who had been assaulted, classmates and friends of victims, teachers at all levels, professors, counselors, coaches, Title IX Coordinators, rape crisis advocates, graduate students and teaching assistants, resident advisors, social workers, and health care professionals. • The Department received comments from individuals who described harassment or assault by a wide variety of individuals. These included stalkers, intimate partners and ex-partners, friends, classmates, coaches, teachers and professors, non-students or nonemployees on campus, and parents or family members. • The Department received comments from individuals who described harassment or assault from before Title IX existed, after Title IX was enacted, prior to and after the Department’s withdrawn 2011 Dear Colleague Letter and withdrawn 2014 Q&A, and prior to and after the Department’s 2017 Q&A. We heard from individuals who described harassment or assault in a E:\FR\FM\19MYR2.SGM 19MYR2 30056 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations wide variety of locations, including on campuses of postsecondary institutions in locations such as student housing, classrooms, and, libraries, on elementary and secondary school grounds, locker rooms, off-campus housing and parties, while commuting to and from school, school-sponsored events, bars and parking lots, and study abroad programs. • The Department received comments from individuals who described a range of traumatic incidents. Some commenters described inappropriate comments, inappropriate text messages or social media communication, and inappropriate touching. Other commenters recounted incidents of rape or attempted rape, gang rape, or forcible rape. Some commenters described being raped while they were passed out, while others described being drugged and raped, waking up with no memory but suffering symptoms of rape, or being pressured or intimidated into consenting to sex. • The Department received comments from individuals who did not report their experiences for various reasons, including fearing that no one would believe them, not knowing who to report to or the process for reporting, feeling too ashamed to report, or not wanting to relive the trauma and wanting to put the incident behind them. • The Department received comments from individuals about many detrimental effects that sexual harassment and assault can have on victims. Individuals described what it is like to be raped, sexually assaulted, and sexually harassed, what they felt during the attack, and what they felt afterward. Commenters told the Department that rape and sexual assault, in particular, changed their lives forever, and has severe consequences emotionally, physically, academically, and professionally. Commenters also told us about severe post-traumatic stress disorder (PTSD) following sexual assault, about developing disabling physical or mental conditions due to rape, about pregnancy and sexually transmitted diseases resulting from rape, and about the lasting impact on their personal lives. Individuals told us about negative consequences they experienced in the aftermath of sexual assault, including nightmares, emotional breakdowns, lack of sleep, inability to focus or concentrate, changed eating habits, loss of confidence and selfesteem, stress, immense shame, lack of trust, and loneliness. • Commenters described carrying the pain of victimization with them for life, even after more than half a century. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Some commenters shared that they constantly live in fear of seeing their attacker again. Some commenters told us that their experiences affected future relationships and caused them to have trust issues for long periods of time, sometimes for life. Some commenters told us their assaults led to drug and alcohol abuse. • Some commenters shared stories of friends or loved ones who committed suicide following sexual harassment or assault. Other commenters told us personally about suicidal thoughts and attempted suicide. We heard from some individuals who described still feeling unsafe once the complaint process began and individuals who suffered increased trauma from having to see their attackers on campus or at a disciplinary proceeding. • Individuals shared the severe impact of sexual harassment or assault on their educational experience, including the ability to learn and balance pressures of life. Commenters shared that sexual assault or harassment caused them to fail at school, or withdraw or drop out. Some commenters described the lifetime financial costs of dealing with the aftermath of sexual assault including legal and medical costs that exceeded $200,000, and lost income as a result of dropping out of school. • The Department also received stories from individuals about the dynamics of sexual assault and harassment. Commenters told us that sexual abuse is based on power and inequity and that women are victims of male privilege. Several commenters shared personal stories about how serial offenders keep offending due to the power dynamic. Several commenters shared personal stories describing how sexual harassment by professors at schools was well known, but the schools did nothing. • The Department also received stories from many individuals about how the current system was inadequate to protect victims of sexual assault or deliver justice. Commenters shared that they did not press charges or report because they had no confidence in the school system or criminal justice system. Commenters told us that they believed their institution was hiding the true numbers of campus rapes. Commenters told us that many Title IX reports are ignored by schools and by police officers. One individual told us that when the individual reported, city police told the individual it was a campus police issue, while campus police refused to take action because the individual had not reported while being raped, leaving the individual to be PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 raped many more times by the same perpetrator while the authorities did nothing. Individuals told us that perpetrators bully victims into keeping quiet, telling them no one will believe them. • Individuals shared stories about how their institutions failed them. Some were told by their institutions or teachers that no one would believe them or told not to file a complaint. Some commenters shared that complaints were not taken seriously by school officials and that lack of action caused them to drop out of school to avoid their attacker. Commenters described experiences as complainants and told us that the Title IX Coordinator seemed more interested in proving the respondent innocent than helping the complainant. • Several complainants told us they were blamed and shamed by authority figures including having their clothing choices questioned, decisions questioned, intelligence questioned, motives questioned, and being told they should have resisted more or been louder in saying ‘‘no.’’ • Individuals shared their experiences showing that it is difficult to prove rape in ‘‘he said/she said’’ situations. Individuals told us that respondents were found to not be at fault by hearing panels, including in instances where insufficient evidence was found despite multiple complainants reporting against the same respondent. • Several individuals told us the current process took too long, sometimes nine months to over a year or more to get a resolution. One commenter described reporting sexual harassment at a university, along with other women who had reported the same harassing faculty member, but the university’s process took so long and was so painful that the commenter left the university without finishing her degree, abandoning her career in a STEM (science, technology, engineering, medicine) field and resulting in $75,000 lost to taxpayers, wasted on funding a degree she did not finish. • Individuals told us that respondents were given minimal punishment that did not fit the severity of the offense, or that victims were forced to encounter their perpetrators even after the respondents were found responsible. They told us that their perpetrators were well respected students or athletes in school, or prominent professors at universities, which caused the perpetrators to receive light punishments or no punishment at all. They told us they could not get attackers banned from their dorms or classes. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations • We also heard from individuals who faced retaliation for filing complaints. These individuals faced continued harassment by respondents, received lower grades from professors reported as harassers, or lost scholarships due to rebuffing sexual advances from teachers. • We also heard from several commenters about how the Title IX system was able to deliver justice for them in the aftermath of sexual harassment or assault, including commenters who believed that the withdrawn 2011 Dear Colleague Letter was the reason why their school responded appropriately to help them after they had been sexually assaulted. They told us that the counselors and resources available to help victims were the only reason they could survive the trauma or the Title IX process. They told us that the Title IX Coordinator was able to help them in ways that allowed them to stay in school. They also told us of instances where the campus system was finally able to remove a serial sexual predator. The father of a stalked student told us that he feared participation in a Title IX proceeding, but that because of Title IX, the stalker was excluded, and the campus is a safer place. One student stated a college made necessary changes after the student filed a Title IX complaint. • A number of individuals told us that the proposed regulations would not be adequate to help victims, based on their own experiences with the Title IX process. Commenters expressed concern that the proposed rules would cause students to drop out of school and lose scholarships. Other commenters asserted the proposed rules would enable serial rapists and harassers. • Some individuals told us they never would have reported under the proposed rules because of the crossexamination requirement. Individuals who went through cross-examination in the criminal context told us how they suffered to get justice and that it is a traumatic experience that led to PTSD and more therapy. Several of these individuals told us defense attorneys badgered or humiliated them. • One commenter expressed concern that, under the proposed rules’ definition of sexual harassment, it could be argued that the rape that a friend endured was not a sufficiently severe impairment to the friend’s educational access to be covered by Title IX. • One commenter, who was a professor, told us that years ago a professor from another school who was interviewing for a position at the commenter’s institution molested the commenter during an off-campus VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 dinner. The commenter believed that under that institution’s current policies, the commenter had a clear-cut reporting line, and the offender would, at a minimum, have received no further consideration for this job. This commenter claimed, however, that under the Department’s proposed rules, even as a faculty member the commenter would not be protected. • Commenters were also concerned about confidentiality. Several individuals stated they told a trusted coach or teacher, who was forced under current rules to report even though the individuals wanted the conversation to remain confidential. Other individuals stated they would not have reported under the proposed rules due to fear of backlash because of the public nature of reports or proceedings. One commenter recounted a friend’s experience and stated that because the commenter’s friend’s name was not kept confidential during Title IX proceedings, the commenter’s friend quit playing school basketball and dropped out of school to get mental health counseling, due to the public embarrassment from the Title IX proceeding. Relating to respondents, such personal experiences included the following: • A wide variety of individuals submitted personal stories of respondents. These included studentrespondents in past or present Title IX proceedings, individuals with disabilities such as autism, male and female respondents, respondents of color, faculty-respondents, and graduate-student respondents. We also heard from individuals who were associated with respondents such as friends and classmates, parents and family members, including parents of both males and females and parents of respondents with disabilities, such as OCD (obsessive-compulsive disorder) and autism. Some personal stories came from professors and teachers who had seen the system in action. Some personal stories came from selfproclaimed liberals, Democrats, feminists, attorneys of respondents, and a religious leader. • A number of the personal stories shared in comments explained the devastating effects that an allegation of sexual assault or harassment can have on a respondent, even if the respondent is never formally disciplined. Commenters contended that one false accusation can ruin someone’s life, and told us that the consequences follow respondents for life. Other commenters stated that false allegations, and resulting Title IX processes, destroyed the futures of respondents and kept PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 30057 them from becoming lawyers, doctors, military officers, academics, and resulted in loss of other career opportunities. • Many commenters told us that false allegations and the Title IX process caused severe emotional distress for respondents and their families. This included several stories of respondents attempting suicide after allegedly false allegations, several stories of respondents suffering from severe trauma, including anxiety disorders, stress, and PTSD, several stories of respondents suffering clinical depression, and several stories of respondents suffering from lack of sleep and changed eating habits. • Several commenters told us that, as to respondents who were allowed to stay in school, being falsely accused of sexual misconduct affected their grades and academic performance, and ability to concentrate. Several commenters described the immense public shame and ridicule that resulted from a false allegation of sexual assault. • Several professors commented that their academic freedom was curtailed due to unfair anti-sexual harassment policies. • Several commenters described severe financial consequences to respondents and their families due to needing to hire legal representation to defend against allegedly false allegations. Commenters described incurring costs that ranged from $10,000 in legal fees to over $100,000 in legal and medical bills, including psychological treatment, to complete the process of clearing a respondent’s name in the wake of a Title IX complaint. One comment was from parents who described feeling forced to put their house up for sale to pay to exonerate their child from baseless allegations. • Several commenters stated that the status quo system disproportionately affects certain groups of respondents, including males, males of color, males of lower socioeconomic status, and students with disabilities. One commenter argued that the system is tilted in favor of females of means who are connected to the school’s donor base. • A number of respondents or other commenters described respondents being falsely accused and/or unfairly treated by their school in the Title IX process. Commenters shared numerous situations where there was an abundance of evidence indicating consent from both parties, but the respondent either was still found responsible for sexual assault or was forced to endure an expensive and E:\FR\FM\19MYR2.SGM 19MYR2 30058 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations traumatic process before being found non-responsible. • Several commenters told us stories where complainants were ex-intimate partners who did not report sexual assault allegations until weeks or months after a breakup, usually coinciding with the respondent finding a new intimate partner, under circumstances that the commenters believed showed that the complainant’s motive was jealousy. • Commenters shared stories of situations where two students engaged in sexual activity and allegations disputed over consent where both parties had been drinking, and commenters believed that many schools treated any intoxication as making a male respondent automatically liable for sexual assault even when neither party had been drinking so much that they were incapacitated. • Commenters shared stories of situations where respondents were accused by complainants whom respondents had never met or did not recognize. Commenters shared stories of situations where respondents had befriended or comforted individuals who had experienced trauma and eventually found themselves being accused of sexual assault, harassment, or stalking. • Commenters described their experiences with Title IX cases using negative terms to portray unfairness such as ‘‘Kafka-esque,’’ ‘‘1984-like,’’ ‘‘McCarthy-esque,’’ and ‘‘medieval star chamber.’’ • We heard from several commenters who specifically argued that the withdrawn 2011 Dear Colleague Letter was the cause of the unfair Title IX process for respondents. One commenter expressed that the withdrawn 2011 Dear Colleague Letter destroyed the commenter’s family. • Many commenters opined that various parts of the proposed regulations would have helped prove their innocence or avoided or lessened the emotional, reputational, and financial hardships they experienced due to false accusations. • A number of commenters expressed that they believed that Title IX investigations were biased in favor of the complainant and gave examples such as allowing only evidence in the complainant’s favor, failing to give the hearing panel any opportunity to gauge the complainant’s credibility, disallowing the respondent’s witnesses from testifying but allowing testimony from all of the complainant’s witnesses, and giving the complainant more time to prepare for a hearing or access to VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 more evidentiary materials than the respondent was given. • A number of commenters discussed the lack of due process protections in their experience with Title IX proceedings. Several students and professors detailed how they were expelled or fired without being permitted to give their side of the story. Several commenters described cases where respondents were suspended indefinitely from college without due process over an allegedly unprovable and false accusation of sexual harassment. Several commenters expressed how institutions took unilateral disciplinary action against respondents with no investigation. Two commenters noted that respondents’ requests for autism accommodations were denied or appropriate disability accommodations were never offered. • A number of commenters discussed how respondents were not allowed to have representation present when they met with the Title IX investigator or during their hearing. Several commenters stated that their advisor or lawyer was not allowed to speak during the hearing. • A number of commenters described a lack of notice of the charges against them, of the details of the offenses they had allegedly committed, or of the evidence being used against them. Several commenters noted that the Title IX investigation produced a report describing evidence that respondents were not shown until after the opportunity to respond had passed. Several commenters complained that respondents were given no access to investigation documents. • A number of commenters wrote that respondents felt like they were presumed guilty from the beginning by their institution. Several commenters expressed that they felt like the burden of proof rested completely on the respondent to prove innocence and they felt this was both unfair and unAmerican. • A number of commenters described cases where respondents were denied the ability to cross-examine complainants, and even when the institution asked the complainant some questions, the institution refused to ask follow up questions during the hearing. Several commenters recounted cases where investigators did not ask the complainant follow up questions even though there were inconsistencies in the complainant’s story. • Several commenters told us that the university’s Title IX decision-maker did not ask the questions that respondents submitted during the hearing. One commenter described a case where a PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 respondent was not allowed to ask the complainant any questions at all; the respondent had to submit any questions ahead of time to a committee chairperson who, in turn, chose which questions to ask the complainant, and chose not to ask the complainant questions that the commenter had wanted asked. • One attorney of a respondent described a situation where both the respondent and the complainant were allowed to submit only a written statement before the Title IX office made the final determination. The complainant stated that the conduct at issue between the two was, at least initially, consensual. But due to the absence of cross-examination, the respondent’s attorney was never allowed to ask the complainant how the respondent was supposed to know when the conduct became nonconsensual. • One commenter stated that the respondent was told by the institution that ‘‘hearsay was absolutely admissible’’ yet the respondent had no opportunity to cross-examine witnesses making hearsay statements. • Several commenters discussed that it took six to 12 months to clear their names from allegedly false accusations. One commenter stated the process took eight months to clear the respondent’s name and the respondent was banned from school during that time. • Several commenters were fearful of retaliation from institutions because they believed their school was biased in favor of complainants. Several commenters stated that their university invented new charges once the original charges against a respondent fell apart. • Several commenters contended that a broad definition of sexual harassment led to nonsensical outcomes. One commenter shared that a high school boy was charged with creating a hostile environment on the basis of gender after a group of girls accessed his private social media account and took screen shots of comments that the girls found offensive. Another commenter described how a dedicated young professor, who was very popular with students, was forced to take anger management courses at his own expense and then denied continued employment because a female college student reported him to the Title IX office for making a passionate argument in favor of a local issue of workplace politics. One parent shared a story about their daughter, who was accused of sexual exploitation on her campus, put through a hearing process, and given sanctions, for posting (to a private account) a video clip of herself walking down a common space E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations hallway when someone was having loud sex in the background. One commenter mentioned an incident where a professor was investigated under Title IX just for disagreeing about another professor’s Title IX investigation. • One respondent, who also identified as a sexual assault survivor, stated that, before her own personal experience told her otherwise, she believed that false or wrongful accusations were unimaginable and rare, but that her personal experience as a respondent showed her that false or wrongful accusations of sexual misconduct are much more common than the general population knows or would believe. Discussion: The Department has thoughtfully and respectfully considered the personal experiences of the many individuals who have experienced sexual harassment; been accused of it; have looked to their schools, colleges, and universities for supportive, fair responses; and have made the sacrifice in time and mental and emotional effort to convey their experiences and perspectives to the Department through public comment. Many of the themes in these comments echo those raised with the Department in listening sessions with stakeholders, leading to the Secretary of Education’s speech in September 2017 282 in which she emphasized the importance of Title IX and the high stakes of sexual misconduct. The Secretary observed, after having personally spoken with survivors, accused students, and school administrators, that ‘‘the system established by the prior administration has failed too many students.’’ 283 In the Secretary’s words, ‘‘One rape is one too many. One assault is one too many. One aggressive act of harassment is one too many. One person denied due process is one too many.’’ 284 The Secretary stated that in endeavoring to find a ‘‘better way forward’’ that works for all students, ‘‘non-negotiable principles’’ include the right of every survivor to be taken seriously and the right of every person accused to know that guilt is not predetermined.285 It is with those principles in mind that the Department prepared the NPRM, and because of robust public comment including from individuals personally affected by these 282 Betsy DeVos, U.S. Sec’y of Education, Prepared Remarks on Title IX Enforcement (Sept. 7, 2017), https://www.ed.gov/news/speeches/ secretary-devos-prepared-remarks-title-ixenforcement. 283 Id. 284 Id. 285 Id. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 issues, these final regulations even better reflect those principles. Changes: In response to the personal stories shared by individuals affected by sexual harassment, the final regulations ensure that recipients offer supportive measures to complainants regardless of participation in a grievance process, and that respondents cannot be punished until the completion of a grievance process,286 in addition to numerous changes throughout the final regulations discussed in various sections of this preamble. Notice and Comment Rulemaking Rather Than Guidance Comments: Many commenters, including some who supported the substance of the proposed rules and others who opposed the substance, commended the Department for following formal rulemaking procedures to implement Title IX reforms instead of imposing rules through sub-regulatory guidance. Many commenters asserted that the notice-and-comment rulemaking process is critical for gathering informed feedback from all stakeholders and strengthening the rule of law, and leads to legal clarity and certainty for institutions and students. Several commenters stated that because the new regulations will be mandatory, they will provide a transparent standard that colleges must meet and a clear standard under which complainants can hold their institutions accountable. One commenter described the public comment process as demonstrating the values of transparency, fairness, and public dialogue, and appreciated the Department exhibiting those values with this process. One commenter called notice-and-comment a ‘‘beautiful tool’’ which helps Americans participate in the democracy and freedom our land offers; another called it an important step that helps the public have confidence in the Department’s rules. One commenter thanked the Department for taking time to solicit public comment instead of rushing to impose rules through guidance because public comment leads to rules that are carefully thought out to ensure that 286 Section 106.44(a). As discussed throughout this preamble, there are exceptions to this premise: Any respondent may be removed from an education program or activity on an emergency basis under § 106.44(c); a non-student employee-respondent may be placed on administrative leave during pendency of a grievance process under § 106.44(d); an informal resolution process, in which the parties voluntarily participate, may end in an agreement under which the respondent agrees to a disciplinary sanction or other adverse consequence, without the recipient completing a grievance process, under § 106.45(b)(9). PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 30059 there are not loopholes or irregularities in the process that is adopted. Another commenter opined that having codified rules will make it easier for colleges and universities to comply with Title IX and will ensure that sexual harassment policies are consistent, making policies and processes related to Title IX sexual harassment investigations more transparent to students, faculty and staff, and the public at large. One commenter, a student conduct practitioner, stated that the management of Title IX cases has felt like a rollercoaster for many years, and having clear regulations will be beneficial for the commenter’s profession and the students served by that profession. Several commenters noted that previous sub-regulatory guidance did not give interested stakeholders the opportunity to provide feedback. One commenter opined that although prior administrations acted in good faith by issuing a series of Title IX guidance documents, prior administrations missed a critical opportunity by denying stakeholders the opportunity to publicly comment, resulting in many institutions of higher education lacking a clear understanding of their legal obligations; the commenter asserted that public comment reduces confusion for many administrators, Title IX Coordinators, respondents, and complainants, and avoids needless litigation. One commenter stated that by opening this issue up to the public, the Department has demonstrated sincerity in constructing rules that fully consider the issues and concerns regularly seen by practitioners in the field; the commenter thanked the Department for the time and effort put into clarifying and modifying Title IX regulatory requirements to be relevant and effective for today’s issues. One commenter asserted that the proposed regulations address the inherent problem with ‘‘Dear Colleague’’ letters not being a ‘‘regulation.’’ One commenter argued that no administration should have the ability to rewrite the boundaries of statutory law with a mere ‘‘Dear Colleague’’ letter. One commenter applauded the use of the rulemaking process for regulating in this area and encouraged the abandonment of ‘‘regulation through guidance.’’ This commenter reasoned that institutions that comply with regulations are afforded certain safe harbors from liability as a matter of law, but institutions that complied with the Department’s Title IX guidance were still subjected to litigation. This commenter asserted that recipients were left in a ‘‘Catch 22’’ because Title IX E:\FR\FM\19MYR2.SGM 19MYR2 30060 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations participants’ attorneys freely second guessed the Department’s Title IX guidance, forcing institutions to choose to follow the Department’s guidance yet subject themselves to liability (or at least the prospect of an expensive litigation defense) from parties who had their own theories about discriminatory practices at odds with the Department’s guidance, or else follow a nondiscriminatory process different from the Department’s guidance and thereby invite enforcement actions from OCR under threat of loss of Federal funds. Another commenter expressed appreciation that the Department seeks to provide further clarity to a complicated area of civil rights law and contended that since 2001 the Department has made numerous policy pronouncements, some of which have been helpful and others that have caused unnecessary confusion; that the 2001 Guidance was meant to ensure that cases of sexual violence are treated as cases of sexual harassment; that the withdrawn 2011 Dear Colleague Letter rightly addressed the failure of many institutions to address the needs of reporting parties; but by relying on guidance instead of regulations the Department’s ability to provide technical assistance to institutions was undermined, and the guidance created further confusion. One commenter opposed the proposed rules and opined that changing the 1975 Title IX regulations is very serious and change should only be made based on substantial consensus and evidence that any changes are critically needed and cannot be accomplished by traditionally effective guidance such as previous letters and helpful Q&As from the Department. Another commenter opined that under our system of checks and balances, because Congress passed Title IX, Congress should have to approve a regulation like this, issued under Title IX. Discussion: The Department agrees with the many commenters who acknowledged the importance of prescribing rules for Title IX sexual harassment only after following noticeand-comment rulemaking procedures required by the Administrative Procedure Act (‘‘APA’’), 5 U.S.C. 701 et seq., instead of relying on non-binding sub-regulatory guidance. The Department believes that sex discrimination in the form of sexual harassment is a serious subject that deserves this serious rulemaking process. Moreover, the Department believes that sub-regulatory guidance cannot achieve the goal of enforcing Title IX with respect to sexual VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 harassment because this particular form of sex discrimination requires a unique response from a recipient, and only law and regulation can hold recipients accountable. The Department acknowledges that Congress could address Title IX sexual harassment through legislation, but Congress has not yet done so. Congress has, however, granted the Department the authority and direction to effectuate Title IX’s non-discrimination mandate,287 and the Department is persuaded that the problem of sexual harassment and how recipients respond to it presents a need for the Department to exercise its authority by issuing these final regulations.288 Changes: None. General Support and Opposition Comments: Many commenters expressed overall support for the proposed rules. One commenter stated that the proposed rules are a reasonable means by which the Department can ensure that colleges and universities do not engage in unlawful discrimination. One commenter supported the proposed rules because they clearly address the problem of sex discrimination, gender bias, and gender stereotyping and asserted that there is widespread public support for the proposed rules based on public polling, opinion editorials, and media articles. Some commenters supported the proposed rules because they protect all students, including LGBTQ students and male students. One commenter expressed general support for the proposed rules, but was concerned that changing the rules still will not help victims who are afraid to speak up. Some commenters expressed support for the proposed rules because they provide clarity and flexibility to institutions of higher education, and some asserted that the proposed rules appropriately establish firm boundaries regarding student safety and protections, while granting institutions flexibility to customize responses based on an institution’s unique attributes. These commenters believed the proposed rules included a number of 287 20 U.S.C. 1682 (‘‘Each Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity . . . is authorized and directed to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.’’). 288 The Department notes that the Congress has the opportunity to review these final regulations under the Congressional Review Act, 5 U.S.C. 801 et seq. PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 improvements that will assist institutions in advancing these goals. One commenter expressed support for the alignment between the proposed rules and the Clery Act because that will help institutions comply with all regulations and ensure a fair process. One commenter supported the clarity and flexibility in the proposed rules regarding the standards by which schools will be judged in implementing Title IX, the circumstances that require a Title IX response, and the amount of time schools have to resolve a sexual harassment proceeding. One commenter supported the clear directives in the proposed rules regarding how investigations must proceed and the written notice that must be provided to both parties, the opportunity for schools to use a higher evidentiary standard, the definition of sexual harassment, and the discussion of supportive measures. Another commenter characterized the proposed rules as containing several changes to when and where Title IX applies that offer welcome clarification to regulated entities by limiting subjective agency discretion, rolling back previous overreach, and creating certainty by substituting formal rules for nebulous guidance. Some commenters expressed support for the proposed rules because they represent a return to fairness and due process for both parties, which will benefit everyone. Some of these commenters referenced personal stories in their comments and expressed their opinions that many accusations are false and lives are being ruined. Some of these commenters also criticized withdrawn Department guidance for not providing adequate due process and for being punitive. One such commenter also criticized the prior Administration for not meeting with organizations or groups advocating for due process or fairness to the accused. Other commenters criticized the status quo system as being arbitrary and capricious, and biased, and stated that decision-makers often do not have the professional autonomy to render decisions incompatible with institutional interests. Some commenters asserted that the proposed rules would assist victims by ensuring that they are better informed and able to have input in the way their case is handled. Some commenters stated that the proposed rules are important for defining the minimum requirements for campus due process and will help ensure consistency among schools. One commenter asserted that the proposed rules take a crucial step toward addressing systemic bias in favor of complainants who are almost always E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations female and against respondents who are almost always male. The commenter stated that such bias is illustrated by schools that adopt pro-victim processes while claiming that favoring alleged victims is not sex discrimination. One commenter contended that men’s rights are under attack and advocacy groups have hijacked Title IX enforcement to engineer cultural change not authorized by the law, engendering hostile relationships and mistrust on campuses between men and women, and contended that current codes of conduct are unconstitutional because of their disparate impact on men. A number of commenters expressed general support for the proposed rules and suggested additional modifications. Some of these commenters recommended that the Department make the proposed rules retroactive for students who were disciplined unfairly under the previous rules, including requiring schools to reopen and reexamine old cases and then apply these new rules, if requested to do so by a party involved in the old case. Some commenters stated that colleges should only be responsible for sexual assault or harassment perpetrated by employees of the school, and student-on-student sexual misconduct should not be the school’s responsibility because it is outside the scope of Title IX. One of these commenters stated that it would be even better if the Department stopped enforcing Title IX. This commenter asserted that Title IX was passed to ensure that schools do not discriminate against females and it has achieved that objective, and the Department has the right to adopt the minority view in Davis,289 that schools should not be held accountable for student-on-student sexual harassment. One commenter expressed concern that some education systems are not covered by Title IX even though they receive Federal funding; this commenter specifically referenced fraternities and sororities and stated that this lack of Title IX coverage of Greek life should be reevaluated. One commenter suggested that the Department establish a procedure for the accused to file a complaint with the U.S. Secretary of Education. This commenter also suggested that there be a review board for Title IX accusations, the members of 289 Commenter cited: Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 661–62 (1999) (Kennedy, J., dissenting) (‘‘Discrimination by one student against another therefore cannot be ‘under’ the school’s program or activity as required by Title IX. The majority’s imposition of liability for peer sexual harassment thus conflicts with the most natural interpretation of Title IX’s ‘under a program or activity’ limitation on school liability.’’) (internal citations omitted). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 which are detached from the administration of the school. One commenter expressed concern that schools may not comply with the proposed rules and argued that the only lever that will work is a credible threat to cut off Federal funding for lack of compliance. One commenter expressed concern about funds from the U.S. Department of Justice’s Office on Violence Against Women (OVW), which the commenter claimed funds studies that are being written only by those who support victims’ rights; the commenter asserted that OVW funds are being used by campus Title IX offices to investigate and adjudicate allegations of campus sexual assault. This commenter recommended that the Department specify that OVW-funded programs must comply with the new Title IX regulations. One commenter expressed concern over the costs students faced to defend themselves in a Title IX process under the previous rules and suggested that OCR may want to undertake a study on to what extent OCR’s previous policies resulted in a serious adverse impact on lower- and moderate-income students and/or students of color since these students likely had fewer resources to pay for their defense. Discussion: The Department appreciates commenters’ variety of reasons expressing support for the Department’s approach. The Department agrees that the final regulations will promote protection of all students and employees from sex discrimination, provide clarity as to what Title IX requires of schools, colleges, and universities, help align Title IX and Clery Act obligations, provide consistency while leaving flexibility for recipients, benefit all parties to a grievance process by focusing on a fair, impartial process, and require recipients to offer supportive measures to complainants as part of a response to sexual harassment. The Department understands commenters’ desire to require recipients who have previously conducted grievance processes in a way that the commenters view as unfair to reopen the determinations reached under such processes. However, the Department will not enforce these final regulations retroactively.290 290 Federal agencies authorized by statute to promulgate rules may only create rules with retroactive effect where the authorizing statute has expressly granted such authority. See 5 U.S.C. 551 (referring to a ‘‘rule’’ as agency action with ‘‘future effects’’ in the Administrative Procedure Act); Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (‘‘Retroactivity is not favored in the law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result.’’). PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 30061 The Department will continue to recognize, as has the Supreme Court, that sexual harassment, including peeron-peer sexual harassment, is a form of sex discrimination prohibited under Title IX, and will continue vigorously to enforce Title IX with respect to all forms of sex discrimination. Commenters questioning whether specific organizations receiving Federal financial assistance (including programs funded through OVW) are covered by Title IX may direct inquiries to the organization’s Title IX Coordinator or to the Assistant Secretary, or both, pursuant to § 106.8(b)(1). Complaints alleging that a recipient has failed to comply with Title IX will continue to be evaluated and investigated by the Department. Section 106.45(b)(8) requires appeals from determinations regarding responsibility to be decided by decision-makers who are free from conflicts of interest. Recipients are subject to Title IX obligations, including these final regulations, with respect to all of the recipient’s education programs or activities; there is no exemption from Title IX coverage for fraternities and sororities, and in fact these final regulations specify in § 106.44(a) that the education program or activity of a postsecondary institution includes any building owned or controlled by a student organization officially recognized by the postsecondary institution. The Department appreciates commenters’ concerns about the impact of Title IX grievance procedures implemented under withdrawn Department guidance or under status quo policies that commenters believed were unfair. While the Department did not commission a formal study into the impact of previous guidance, the Department conducted extensive stakeholder outreach prior to issuing the proposed rules and has received extensive input through public comment on the NPRM, and believes that the final regulations will promote Title IX enforcement more aligned with the scope and purpose of Title IX (while respecting every person’s constitutional due process rights and right to fundamental fairness) than the Department’s guidance has achieved. Changes: None. Comments: Numerous commenters, including physicians, parents, students, State coalitions against rape, advocacy groups, sexual assault survivors, ministers, mental health therapists, social workers, and employees at educational institutions expressed general opposition to the proposed rules. A number of commenters emphasized the critical progress spurred E:\FR\FM\19MYR2.SGM 19MYR2 30062 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations on by Title IX. Some commenters emphasized how Title IX has broken down barriers and improved educational access for millions of students for decades, especially for girls and women, including increasing access to higher education, promoting gender equity in athletics, and protecting against sexual harassment. Many of these commenters expressed concern that the proposed rules would undermine this progress towards sex equality and combating sexual harassment when protections are still greatly needed. Some argued that the proposed rules would weaken protections for young women at the very time when the #MeToo movement has shown the pervasiveness of sexual harassment and how much protections are still needed. Other commenters asserted that women and girls still depend on Title IX to ensure equal access in all aspects of education. A few commenters asserted that the proposed rules violate Christian or Jewish teachings or expressed the view that the proposed rules are immoral, unethical, or regressive. Commenters described the proposed rules using a variety of terms, such as disgusting, unfair, indecent, dishonorable, unChristian, lacking compassion, callous, sickening, morally bankrupt, cruel, regressive, dangerous, or misguided. Other commenters expressed concern that the proposed rules would ‘‘turn back the clock’’ to a time when schools ignored sexual assault, excused male misbehavior as ‘‘boys will be boys,’’ and treated sexual harassment as acceptable. Many commenters asserted that the prior Administration’s protections for victims of sexual assault should not be rolled back. Some commenters expressed the belief that the proposed rules are inconsistent with the purpose and intent of Title IX because they would allow unfair treatment of women, force women to choose between their safety and education, increase the cultural tolerance of sexual assault and predatory behaviors, make it harder for young women to complete their education without suffering the harms of sex-based harassment, and obstruct Title IX’s purpose to protect and empower students experiencing sex discrimination. A few commenters expressed concern that the proposed rules would harm graduate students, who suffer sexual harassment at high rates. Some commenters expressed the belief that the proposed rules are contrary to sex equality. Commenters asserted that Title IX protects all people from sexual assault, benefits both VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 women and men, and that all students deserve equality and protection from sex discrimination and sexual harassment. Commenters expressed belief that: Sexism hurts everyone, including men; men are far more likely to be sexually assaulted than falsely accused of it; both men and women are victims of rape and deserve protection; men on campus are not under attack and need protection as victims more than as falsely accused respondents; and the proposed rules were written to protect males or to protect males more than females, but should protect male and female students equally. Other commenters characterized the proposed rules as part of a broader effort by this Administration to dismantle protections for women and other marginalized groups. One commenter argued that the Department should spend more time interviewing victims of sexual assault than worrying about whether the accused’s life will be ruined. Other commenters stated that Title IX should be protected and left alone. One commenter stated that any legislation that limits the rights of the victim in favor of the accused should be scrutinized for intent. One commenter stated that the proposed rules only cater to the Department and its financial bottom line. One commenter supported protecting Title IX and giving girls’ sports a future. One commenter asserted that we are losing female STEM (science, technology, engineering, math) leaders that the Nation needs right now. One commenter urged the Department to create rules that protect survivors, prevent violence and sexual harassment and punish offenders, teach about boundaries and sexuality, and provide counseling and mental health resources to students. One commenter suggested that the Department should use more resources to educate about sexual consent communication, monitor drinking, and provide sexual education because this will protect both male and female students. Some commenters suggested alternate practices to the approaches advanced in the proposed rules, such as: behavioral therapy for offenders and bystander intervention training; best practices for supporting survivors in schools; community-based restorative justice programs; and independent State investigatory bodies independent of school systems with trained investigators. Some commenters expressed concern that the proposed rules ignore efforts to prevent sexual harassment or to address its root causes. Discussion: The Department appreciates that many commenters with a range of personal and professional PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 experiences expressed opposition to the proposed regulations. The Department agrees that Title IX has improved educational access for millions of students since its enactment decades ago and believes that these final regulations continue our national effort to make Title IX’s non-discrimination mandate a meaningful reality for all students. The Department notes that although some commenters formed opinions of the proposed rules based on Christian or Jewish teachings or other religious views, the Department does not evaluate legal or policy approaches on that basis. The Department believes that the final regulations mark progress under Title IX, not regression, by treating sexual harassment under Title IX as a matter deserving of legally binding regulatory requirements for when and how recipients must respond. In no way do the final regulations permit recipients to ‘‘turn back the clock’’ to ignore sexual assault or excuse sexual harassment as ‘‘boys will be boys’’ behavior; rather, the final regulations obligate recipients to respond promptly and supportively to complainants and provide a grievance process fair to both parties before determining remedies and disciplinary sanctions. The Department disagrees that changing the status quo approach to Title IX will negatively impact women, children, students of color, or LGBTQ individuals, because the final regulations define the scope of Title IX and recipients’ legal obligations under Title IX without regard to the race, ethnicity, sexual orientation, age, or other characteristic of a person. The Department is committed to the rule of law and robust enforcement of Title IX’s non-discrimination mandate for the benefit of individuals in protected classes designated by Congress in Federal civil rights laws such as Title IX. Contrary to a commenter’s assertion, the Department is acutely concerned about the way that sexual harassment—and recipients’ responses to it—have ruined lives and deprived students of educational opportunities. The Department aims through these final regulations to create legally enforceable requirements for the benefit of all persons participating in education programs or activities, including graduate students, for whom commenters asserted that sexual harassment is especially prevalent. The Department understands that some commenters opposed the proposed regulations because they want Title IX to be protected and left alone. For reasons explained in the ‘‘Notice and Comment Rulemaking Rather Than E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Guidance’’ and ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ sections of this preamble, the Department believes that the final regulations create a framework for responding to Title IX sexual harassment that effectuates the Title IX non-discrimination mandate better than the status quo under the Department’s guidance documents. The Department disagrees that the proposed regulations in any manner limit the rights of alleged victims in favor of the accused; rather, for reasons explained in the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, the prescribed grievance process gives complainants and respondents equally strong, clear procedural rights during a grievance process.291 Those procedural rights reflect the seriousness of sexual harassment, the life-altering consequences that flow from a determination regarding responsibility, and the need for each determination to be factually accurate. The Department’s intent is to promulgate Title IX regulations that further the dual purposes of Title IX: preventing Federal funds from supporting discriminatory practices, and providing individuals with protections against discriminatory practices. The final regulations in no way cater to the Department or the Department’s financial bottom line and the Department will enforce the final regulations vigorously to protect the civil rights of students and employees. While the proposed regulations mainly address sex discrimination in the form of sexual harassment, the Department will also continue to enforce Title IX in non-sexual harassment contexts including athletics and equal access to areas of study such as STEM fields. The Department believes that the final regulations protect survivors of sexual violence by requiring recipients to respond promptly to complainants in a non-deliberately indifferent manner with or without the complainant’s participation in a grievance process, including offering supportive measures to complainants, and requiring remedies for complainants when respondents are found responsible. For reasons discussed in the ‘‘Deliberate Indifference’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Department does not require or prescribe disciplinary sanctions and leaves those decisions to 291 See also the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the discretion of recipients, but recipients must effectively implement remedies designed to restore or preserve a complainant’s equal educational access if a respondent is found responsible for sexual harassment following a grievance process that complies with § 106.45. The Department understands commenters’ beliefs that the Department should create rules that monitor drinking, teach about interpersonal boundaries, sexuality, bystander intervention, and sexual consent communication, and provide counseling and mental health resources to students. The final regulations do not preclude recipients from offering counseling and mental health services, and while the Department does not mandate educational curricula, nothing in the final regulations impedes recipients’ discretion to provide students (or employees) with educational information. While these final regulations are concerned with setting forth requirements for recipients’ responses to sexual harassment, the Department agrees with commenters that educators, experts, students, and employees should also endeavor to prevent sexual harassment from occurring in the first place. The 2001 Guidance took a similar position on prevention of sexual harassment.292 The Department appreciates and has considered the many alternative approaches proposed by commenters, including that the Department should require behavioral therapy for offenders, establish best practices for supporting survivors, require restorative justice programs, require that State investigatory bodies independent of school systems conduct Title IX investigations, and address the root causes of sexual harassment. The Department does not require particular sanctions—or therapeutic interventions—for respondents who are found responsible for sexual harassment, and leaves those decisions in the sound discretion of State and local educators. Under the final regulations, recipients and States remain free to consider alternate investigation and adjudication models, including regional centers that outsource the investigation and adjudication responsibilities of recipients to highly trained, interdisciplinary experts. Some regional 292 The 2001 Guidance under the heading ‘‘Prevention’’ states: ‘‘Further, training for administrators, teachers, and staff and ageappropriate classroom information for students can help to ensure that they understand what types of conduct can cause sexual harassment and that they know how to respond.’’ 2001 Guidance at 19. PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 30063 center models proposed by commenters and by Title IX experts rely on recipients to form voluntary cooperative organizations to accomplish this purpose, while other, similar models involve independent, professional investigators and adjudicators who operate under the auspices of State governments. The Department will offer technical assistance to recipients with respect to pursuing a regional center model for meeting obligations to investigate and adjudicate sexual harassment allegations under Title IX. Similarly, recipients remain free to adopt best practices for supporting survivors and standards of competence for conducting impartial grievance processes, while meeting obligations imposed under the final regulations. The final regulations address recipients’ required responses to sexual harassment incidents; identifying the root causes and reducing the prevalence of sexual harassment in our Nation’s schools remains within the province of schools, colleges, universities, advocates, and experts. Changes: None. Comments: Some commenters contended that the proposed rules would have a negative impact on specific populations, including women, persons of color, children, and LGBTQ individuals, and supported keeping Title IX as-is. One commenter believed that many people hold an inaccurate stereotype that sexual assault does not happen at all-women’s colleges and felt that the proposed rules would make it harder for students in such environments to get justice or to feel safe in their own dorms. Some commenters were concerned about the negative impact of the proposed rules on victims and the message the proposed rules send to the public. Commenters asserted that the proposed rules perpetuate the acceptance of sexual assault and harassment and will result in people not believing victims despite how difficult it is to come forward. Commenters expressed concern that the proposed rules will place an additional burden on victims and make it less likely victims will come forward, allowing perpetrators to go unpunished. One commenter asserted that the proposed rules signal to the public and potential sexual harassers and assaulters that their actions will be excused by the Department and not sufficiently investigated by their campuses. Some commenters contended that the proposed rules, if enacted, would: Protect abusers and those accused of assault; insulate harassers from punishment or make them feel like they E:\FR\FM\19MYR2.SGM 19MYR2 30064 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations can sexually harass others without consequence; give boys and young men who behave badly or have a sense of entitlement a free pass when it comes to their actions against girls, rather than teaching men to respect women; make it easier for harassers to get away with it rather than ensuring accountability; allow rapists to escape consequences; continue a culture of impunity; strengthen rape culture; perpetuate systemic gender oppression; undermine efforts to ensure young people understand consent; disempower survivors and reinforce myths that they are at fault for being assaulted; prevent deterrence of sexual abuse; and be designed to protect rich and privileged boys. Many commenters expressed general concern that the proposed rules would make schools less safe for all students, including LGBTQ students. Commenters identified an array of harms they believed the proposed rules would impose on victims. Commenters argued the proposed rules would: Make it less likely victims will be protected, believed, or supported; make it harder for survivors to report their sexual assaults, to get their cases heard, to prove their claims, and to receive justice, despite a process that is already difficult, painful, convoluted, confusing, and lacking in resources, and in which victims fear coming forward; attack survivors in ways that make it harder for them to get help; restrict their rights and harm them academically and psychologically (e.g., dropping out of school, trauma, post-traumatic stress disorder, institutional betrayal, suicide). Commenters argued that the proposed rules would: discourage survivors from coming forward and subject them to retraumatizing experiences in order to seek redress; make schools dangerous by making it easier for perpetrators to get away with heinous acts of gender-based violence; encourage sexually predatory behavior; fail to prioritize the safety of survivors and students; make students feel less safe at school and on campus; jeopardize students’ well-being; increase the helplessness survivors feel; and leave victims without recourse. Commenters argued that the proposed rules: Put victims at greater risk of retaliation by schools eager to hide misconduct from the public; treat some people as less than others based on gender; signal that survivors do not matter and that sexual assault can be ignored; hurt real women or show disdain for women and girls; and deny victims due process. Commenters believed that the proposed rules were antithetical to bodily autonomy and VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 reproductive justice values, fail to advance the goal of stopping sexual violence, and shift the costs and burdens to those already suffering from trauma. Discussion: The Department disagrees that the proposed regulations will negatively impact women, people of color, LGBTQ individuals, or any other population. The proposed regulations are designed to provide supportive measures for all complainants and remedies for a complainant when a respondent is found responsible for sexual harassment, and the Department believes that, contrary to commenters’ assertions, the final regulations will help protect against sex discrimination regardless of a person’s race or ethnicity, age, sexual orientation, or gender identity and will give complainants greater autonomy to receive the kind of school-level response to a reported incident of sexual harassment that will best help the complainant overcome the effects of sexual harassment and retain educational access. The Department notes that the final regulations do not differentiate between sexual assault occurring at an all-women’s college and sexual assault occurring at a college enrolling women and men. The Department believes that students, employees, recipients, and the public will benefit from the clarity, consistency, and predictability of legally enforceable rules for responding to sexual harassment set forth in the final regulations, and believes that the final regulations will communicate and incentivize these goals, contrary to some commenters’ assertions that the final regulations will communicate negative messages to the public. The final regulations, including the § 106.45 grievance process, are motivated by fair treatment of both parties in order to avoid sex discrimination in the way either party is treated and to reach reliable determinations so that victims receive remedies that restore or preserve access to education after suffering sex discrimination in the form of sexual harassment. The Department recognizes that anyone can be a victim, and anyone can be a perpetrator, of sexual harassment, and that each individual deserves a fair process designed to accurately resolve the truth of allegations. The Department disagrees that the proposed regulations perpetuate acceptance of sexual harassment, rape culture, or systemic sex inequality; continue a culture of impunity; will result in people not believing victims; will disempower survivors or increase victim blaming, are designed to protect PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 rich, privileged boys; or will make schools less safe. The Department recognizes that reporting a sexual harassment incident is difficult for many complainants for a variety of reasons, including fear of being blamed, not believed, or retaliated against, and fear that the authorities to whom an incident is reported will ignore the situation or fail or refuse to respond in a meaningful way, perhaps due to negative stereotypes that make women feel shamed in the aftermath of sexual violence. The final regulations require recipients to respond promptly to every complainant in a manner that is not clearly unreasonable in light of the known circumstances, including by offering supportive measures (irrespective of whether a formal complaint is filed) and explaining to the complainant options for filing a formal complaint. The final regulations impose duties on recipients and their Title IX personnel to maintain impartiality and avoid bias and conflicts of interest, so that no complainant or respondent is automatically believed or not believed. Complainants must be offered supportive measures, and respondents may receive supportive measures, whether or not a formal complaint has been filed or a determination regarding responsibility has been made. The Department is sensitive to the effects of trauma on sexual harassment victims and appreciates that choosing to make a report, file a formal complaint, communicate with a Title IX Coordinator to arrange supportive measures, or participate in a grievance process are often difficult steps to navigate in the wake of victimization. The Department disagrees, however, that the final regulations place additional burdens on victims or make it more difficult for victims to come forward. Rather, the final regulations place burdens on recipients to promptly respond to a complainant in a nondeliberately indifferent manner. The Department disagrees that the final regulations will excuse sexual harassment or result in insufficient investigations of sexual harassment allegations. Section 106.44(a) obligates recipients to respond by offering supportive measures to complainants, and § 106.45 obligates recipients to conduct investigations and provide remedies to complainants when respondents are found responsible. Thus, a recipient is not permitted under the final regulations to excuse or ignore sexual harassment, nor to avoid investigating where a formal complaint is filed. Changes: We have revised § 106.44(a) to state that as part of a recipient’s E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations response to a complainant, the recipient must offer the complainant supportive measures, irrespective of whether a complainant files a formal complaint, and the Title IX Coordinator must contact the complainant to discuss availability of supportive measures, consider the complainant’s wishes regarding supportive measures, and explain to the complainant the process for filing a formal complaint. Comments: One commenter asked what statistics the proposed rules were based on and stated that the proposed rules seem to not have been thought through. A number of commenters expressed concerns that the proposed rules are not based on sufficient facts, evidence, or research, lack adequate justification, or demonstrate a lack of competence, knowledge, background, and awareness. A number of these commenters suggested gathering further evidence, best practices, and input from students, educators, administrators, advocates, survivors, and others. One commenter stated that the way to make American life and society safer was to address domestic violence on campuses. Some commenters expressed concerns that the proposed rules would reduce reporting and investigations of sexual assault. Some commenters argued that many elements of the proposed rules are based on the misleading claim that those accused of sexual misconduct should be protected against false accusations even though research shows that false accusations are rare. Several commenters contended that women are more likely to be sexually assaulted than a man is to be falsely accused and similarly, a man is more likely to be sexually assaulted than to be falsely accused of sexual assault. One commenter stated that the proposed rules would create a twotiered system to deal with sexual assault cases and would put undue financial burden on the marginalized to pay for representation in an already flawed reporting system. One commenter stated that Title IX should protect all female students from rape, and they should be believed until facts prove them wrong. Some commenters expressed opposition because the proposed rules protect institutions. Some of these commenters contended that the proposed rules would allow schools to avoid dealing with cases of sexual misconduct and abdicate their responsibility to take accusations seriously. One of these commenters argued it was the Department’s job to protect the civil rights of students, not to help shield schools from accountability. One commenter argued that the proposed regulations had been VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 pushed for by education lobbyists. Some commenters expressed concerns about reducing schools’ Title IX obligations noting that schools have a long history of not adequately addressing sexual misconduct, have reputational, financial, and other incentives not to fully confront such behavior, and need to be kept accountable under Title IX. A few commenters felt that the proposed regulations would give school officials too much discretion and that the proposed regulations would result in inconsistencies among institutions in handling cases and in the support provided to students. A number of commenters felt that the proposed rules prioritize the interests of schools, by narrowing their liability and saving them money, over protections for students. One commenter stated that universities that discriminate on the basis of sex should get no Federal money. One commenter was concerned that the proposed rules would create an environment in which institutions will refuse to take responsibility to avoid the financial aspect of having to make restitution rather than focusing on the well-being of victims. One commenter contended that the proposed rules enable school administrators to sexually abuse students by reducing a school’s current Title IX responsibilities. One commenter stated that the proposed rules would hurt victims and perpetrators and leave institutions vulnerable to lawsuits. Other commenters expressed a belief that the changes may violate constitutional safeguards, such as the rights to equal protection and to life and liberty. Some commenters believed that the proposed rules are in line with regressive laws regarding rape, sexual assault, and women’s rights in less democratic countries. A few commenters felt that the proposed rules would signal an increased tolerance internationally for sexual violence, cause international students to avoid U.S. colleges where sexual assault is more prevalent, or compromise the country’s ability to compete internationally in STEM fields where U.S. women are reluctant to focus given the prevalence of sexual harassment. Discussion: The final regulations reflect the Department’s legal and policy decisions of how to best effectuate the non-discrimination mandate of Title IX, after extensive internal deliberation, stakeholder engagement, and public comment. The Department is aware of statistics that describe the prevalence of sexual harassment in educational environments and appreciates the many commenters who directed the Department’s attention to such PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 30065 statistics.293 The Department believes that these final regulations are needed precisely because statistics support the numerous personal accounts the Department has heard and that commenters have described regarding the problem of sexual harassment. The perspectives of survivors of sexual violence have been prominent in the public comments considered by the Department throughout the process of promulgating these final regulations. In response to commenters concerned about addressing domestic violence, the Department has revised the definition of ‘‘sexual harassment’’ in § 106.30 to expressly include domestic violence (and dating violence, and stalking) as those offenses are defined under VAWA, amending the Clery Act. The Department does not believe the final regulations will reduce reporting or investigations of conduct that falls under the purview of Title IX. Section 106.44(a) requires recipients to respond supportively to complainants regardless of whether a complainant also wants to file a formal complaint. When a formal complaint is filed, the § 106.45 grievance process prescribes a consistent framework, fair to both complainants and respondents, with respect to the investigation and adjudication of Title IX sexual harassment allegations. Thus, both complainants and respondents receive due process protections, and where a § 106.45 grievance process concludes with a determination that a respondent is responsible, the complainant is entitled to remedies. Whether false accusations of sexual harassment occur frequently or infrequently, the § 106.45 grievance process requires allegations to be investigated and adjudicated impartially, without bias, based on objective evaluation of the evidence relevant to each situation. As to all sexual harassment covered by Title IX, including sexual assault, the final regulations obligate recipients to respond and prescribe a consistent, predictable grievance process for resolution of formal complaints. Nothing in the final regulations precludes a recipient from applying the § 106.45 grievance process to address sexual assaults that the recipient is not required to address under Title IX. The Department disagrees that the proposed regulations put undue financial burden on marginalized individuals to pay for representation. Contrary to the commenter’s assertions, 293 Many such statistics are referenced in the ‘‘Commonly Cited Sources’’ and ‘‘Data—Overview’’ subsections of this ‘‘General Support and Opposition’’ section of the preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30066 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations § 106.45(b)(5)(iv) gives each party the right to choose an advisor to assist the party, but does not require that the advisor be an attorney (or other advisor who may charge the party a fee for their representation).294 The Department believes that schools, colleges, and universities desire to maintain a safe environment and that many have applied substantial effort and resources to address sexual harassment in particular; however, the Department acknowledges that reputational and financial interests have also influenced recipients’ approaches to sexual violence problems. Contrary to some commenters’ assertions, the proposed regulations neither ‘‘protect institutions’’ nor shield them from liability, but rather impose clear legal obligations on recipients to protect students’ civil rights. The Department disagrees that the proposed regulations give recipients too much discretion; instead, the Department believes that the deliberate indifference standard requiring a response that is not clearly unreasonable in the light of known circumstances, combined with particular requirements for a prompt response that includes offering supportive measures to complainants, strikes an appropriate balance between requiring all recipients to respond meaningfully to each report, while permitting recipients sufficient flexibility and discretion to address the unique needs of each complainant. While the Department is required to estimate costs and cost savings associated with the final regulations, cost considerations have not driven the Department’s legal and policy approach as to how best to ensure that the benefits of Title IX extend to all persons participating in education programs or activities. With respect to sexual harassment covered by Title IX, the final regulations require recipients to take accusations seriously and deal with cases of sexual misconduct, not avoid them. Regardless of whether a recipient wishes to dodge responsibility (to avoid reputational, financial, or other perceived institutional harms), recipients are obligated to comply with all Title IX regulations and the Department will vigorously enforce 294 The Department also notes that where crossexamination is required at a live hearing (for postsecondary institutions), the cross-examination must be conducted by an advisor (parties must never personally question each other), and if a party does not have their own advisor of choice at the live hearing, the postsecondary institution must provide that party (at no fee or charge) with an advisor of the recipient’s choice, for the purpose of conducting cross-examination, and such a provided advisor may be, but does not need to be, an attorney. § 106.45(b)(6)(i). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Title IX obligations. The Department disagrees with a commenter’s contention that the final regulations enable school administrators to sexually abuse students; § 106.30 defines Title IX sexual harassment to include quid pro quo harassment by any recipient’s employee, and includes sexual assault perpetrated by any individual whether the perpetrator is an employee or not. Indeed, if a school administrator engages in any conduct on the basis of sex that is described in § 106.30, then the recipient must respond promptly whenever any elementary or secondary school employee (or any school, college, or university Title IX Coordinator) has notice of the conduct. The Department believes that the framework in these final regulations for responding to Title IX sexual harassment effectuates the nondiscrimination mandate of Title IX for the protection and benefit of all persons in recipients’ education programs and activities and disagrees that the final regulations leave institutions vulnerable to lawsuits. A judicially implied right of private action exists under Title IX, and other Federal and State laws permit lawsuits against schools, but the Department’s charge and focus is to administratively enforce Title IX, not to address the potential for lawsuits against institutions. However, by adapting for administrative purposes the general framework used by the Supreme Court for addressing Title IX sexual harassment (while adapting that framework for administrative enforcement) and prescribing a grievance process rooted in due process principles for resolving allegations, the Department believes that these final regulations may have the ancillary benefit of decreasing litigation. The Department notes that § 106.6(d) expressly addresses the intersection between the final regulations and constitutional rights, stating that nothing in these final regulations requires a recipient to restrict rights guaranteed under the U.S. Constitution. This would include the rights to equal protection and substantive due process referenced by commenters concerned that the proposed rules violate those constitutional safeguards. The Department does not rely on the laws regarding rape and women’s rights in other countries to inform the Department’s Title IX regulations, but believes that Title IX’s guarantee of nondiscrimination on the basis of sex in education programs or activities represents a powerful statement of the importance of sex equality in the United States, and that these final regulations effectuate and advance Title IX’s non- PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 discrimination mandate by recognizing for the first time in the Department’s regulations sexual harassment as a form of sex discrimination. Changes: We have revised the definition of ‘‘sexual harassment’’ in § 106.30 to include dating violence, domestic violence, and stalking as those offenses are defined under VAWA, amending the Clery Act. We have revised § 106.44(a) to require recipients to offer supportive measures to each complainant. Comments: A few commenters argued that any use of personal blogs as a citation or source in Federal regulation is inappropriate and that using a blog as a source in a footnote in the NPRM (for example, a blog maintained by K.C. Johnson, co-author of the book Campus Rape Frenzy), is inappropriate and unprofessional; one commenter contested the accuracy of Professor Johnson’s compilation on that blog of information regarding lawsuits filed against institutions relating to Title IX campus proceedings. Commenters argued that although people’s personal experiences can be highly valuable, using a blog as a citation in rulemaking does not reflect evidence-based practice. Similarly, a few commenters criticized the Department’s footnote reference in the NPRM to Laura Kipnis’s book Unwanted Advances as, among things, evidence that the Department’s sources listed in the NPRM suggest undue engagement with materials that promote pernicious gender stereotypes. A few commenters referenced media reports of statements made by President Trump, Secretary DeVos, and former Acting Assistant Secretary for Civil Rights Candice Jackson as indications that the Department approached the NPRM with a motive of gender bias against women. A few commenters asserted that the Department’s footnote citations in the NPRM suggest systematic inattention to the intersection of race and gender relating to Title IX and urged the Department to adopt an intersectional approach because failure to pay attention to how gender interacts with other social identities will result in a failure to effectively meet the Department’s goal that all students are able to pursue their educations in federally-funded institutions free from sex discrimination. Discussion: The source citations in the NPRM demonstrate a range of perspectives about Title IX sexual harassment and proceedings including views both supportive and critical of the status quo approach to campus sexual harassment, all of which the Department considered in preparing the NPRM. The E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Department believes that whether commenters are correct or not in characterizing certain NPRM footnoted references as personal opinions instead of case studies, the views expressed in the NPRM references warranted consideration. Similarly, the Department has reviewed and considered the views, perspectives, experiences, opinions, information, analyses, and data expressed in public comments, and the wide range of feedback is beneficial as the Department considers the most appropriate ways in which to regulate recipients’ responses to sexual harassment under Title IX in schools, colleges, and universities. The Department maintains that no reported statement on the part of the President, Secretary, or former Acting Assistant Secretary for Civil Rights suggests bias against women. The Department proceeded with the NPRM, and the final regulations, motivated by the commitment to the ‘‘non-negotiable principles’’ of Title IX regulations that Secretary DeVos stated in a speech about Title IX: The right of every survivor to be taken seriously and the right of every person accused to know that guilt is not predetermined.295 The Department appreciates that some commenters made assertions that the impact of sexual harassment, and the impact of lack of due process procedures, may differ across demographic groups based on sex, race, and the intersection of sex and race (as well as other characteristics such as disability status, sexual orientation, and gender identity). The Department emphasizes that these final regulations apply to all individuals reporting, or accused of, Title IX sexual harassment, irrespective of race or other demographic characteristics. The Department believes that these final regulations provide the best balance to supportively, fairly, and accurately address allegations of sexual harassment for the benefit of every individual. Changes: None. Comments: Some commenters argued that the proposed regulations will cause social discord and make campuses unsafe because survivors will underreport and rates of sexual harassment will increase. Many commenters expressed concern that the proposed rules will discourage or have a chilling effect on reporting sexual harassment and violence, that reporting rates are already low, that the proposed rules would make things worse, and that 295 Betsy DeVos, U.S. Sec’y of Education, Prepared Remarks on Title IX Enforcement (Sept. 7, 2017), https://www.ed.gov/news/speeches/ secretary-devos-prepared-remarks-title-ixenforcement. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 schools could use the proposed rules to discourage students from reporting against faculty or staff in order to maintain the school’s reputation. Commenters contended that this will adversely impact the ability of victims, especially from marginalized populations, to access their education. Discussion: The Department disagrees that these final regulations will cause social discord or make campuses unsafe, because a predictable, consistent set of rules for when and how a recipient must respond to sexual harassment increases the likelihood that students and employees know that sexual harassment allegations will be responded to promptly, supportively, and fairly. The Department acknowledges data showing that reporting rates are lower than prevalence rates with respect to sexual harassment, including sexual violence, but disagrees that the final regulations will discourage or chill reporting. In response to commenters’ concerns that students need greater clarity and ease of reporting, the final regulations provide that a report to any Title IX Coordinator, or any elementary or secondary school employee, will obligate the school to respond,296 require recipients to prominently display the contact information for the Title IX Coordinator on recipients’ websites,297 and specify that any person (i.e., the complainant or any third party) may report sexual harassment by using the Title IX Coordinator’s listed contact information, and that a report may be made at any time (including during non-business hours) by using the listed telephone number or email address (or by mail to the listed office address).298 Recipients must respond by offering the complainant supportive measures, regardless of whether the complainant also files a formal complaint or otherwise participates in a grievance process.299 Such supportive measures are designed precisely to help complainants preserve equal access to their education. Changes: The Department has expanded the definition of ‘‘actual knowledge’’ in § 106.30 to include reports to any elementary or secondary school employee. We have revised § 106.8 to require recipients to prominently display on recipient websites the contact information for the recipient’s Title IX Coordinator, and to state that any person may report sexual harassment by using the Title IX Coordinator’s listed contact information, 296 Section 106.30 (defining ‘‘actual knowledge’’). 297 Section 106.8(b). 298 Section 106.8(a). 299 Section 106.44(a). PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 30067 and that reports may be made at any time (including during non-business hours) by using the telephone number or email address, or by mailing to the office address, listed for the Title IX Coordinator. We have revised § 106.44(a) to require recipients to offer supportive measures to every complainant whether or not a formal complaint is filed. Comments: Many commenters stated that student survivors often rely on their academic institutions to allow them some justice and protection from their assailant and that the provisions provided by Title IX, as enforced under the Department’s withdrawn 2011 Dear Colleague Letter and withdrawn 2014 Q&A, are important for the continued safety of student victims during and after assault and harassment investigations. One commenter shared the commenter’s own research showing that one of the benefits of the post-2011 Dear Colleague Letter era is that campuses have prioritized fairness and due process, creating more robust investigative and adjudicative procedures that value neutrality and balance the rights of claimants and respondents. Overall, campus administrators that this commenter has interviewed and surveyed say that the attention to Title IX has led to vast improvements on their campuses. Some commenters urged the Department to codify the withdrawn 2011 Dear Colleague Letter. Other commenters asserted that research suggests that few accused students face serious sanctions like expulsion. Commenters referred to a study that found up to 25 percent of respondents were expelled for being found responsible of sexual assault prior to the withdrawn 2011 Dear Colleague Letter,300 while a media outlet reported that data obtained under the Freedom of Information Act showed that among 100 institutions of higher education and 478 sanctions for sexual assault issued between 2012 and 2013, only 12 percent of those sanctions were expulsions.301 Commenters argued that studies suggest that campuses with strong protections for victims also have the strongest protections for due process, such that campuses that have devoted the most time and resources to addressing campus sexual assault are, in fact, protecting due process. Inconsistent 300 Commenters cited: Kristen Lombardi, A Lack of Consequences for Sexual Assault, The Center for Public Integrity (Feb. 24, 2010). 301 Commenters cited: Nick Anderson, Colleges often reluctant to expel for sexual violence, The Washington Post (Dec. 15, 2014). E:\FR\FM\19MYR2.SGM 19MYR2 30068 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations implementation, commenters argued, is not a reason to change the regulations. Other commenters argued that there is insufficient factual support for the Department’s claim that educational institutions were confused about their legal obligations under previous guidance. They noted that the Department did not commission any research or study to specifically analyze schools’ understanding of their legal obligation or determine whether there were any areas in which administrators were confused about their responsibilities. Commenters argued that under the withdrawn 2011 Dear Colleague Letter, compliance with expectations under Title IX significantly increased in nearly every major category including compliance with important aspects of due process, such as providing notice and procedural information to students participating in campus sexual violence proceedings. Commenters stated that under the prior administration, the pendulum did not swing ‘‘too far’’ in favor of victims, but instead was placed exactly where it should have been for a population that had previously been dismissed, ignored, and disenfranchised. Commenters argued that any issues with the Title IX grievance process are the result of individual colleges or Title IX Coordinators not following the process correctly and not due to issues with the process itself. Commenters argued that the solution should be additional resources and training for colleges rather than revising the process to favor respondents and make it more difficult for victims to report thereby increasing the already abysmal rate of under reporting. Commenters asserted that the current Title IX regulations and withdrawn guidance have been supported by universities and the public. Commenters pointed out that when the Department called for public comment on Department regulations in 2017 before withdrawing the 2011 Dear Colleague Letter, 12,035 comments were filed: 99 Percent (11,893) were in support of Title IX and 96 percent of them explicitly supported the 2011 Dear Colleague Letter. When all of the individual comments as well as the petitions and jointly-signed comments are included, commenters stated that 60,796 expressions of support were filed by the public, and 137 comments were in opposition. Commenters requested that the Department build off the framework of the 2011 Dear Colleague Letter for a fair and compassionate method of reporting and adjudication so that both the victims and the accused are treated justly. Many of these commenters VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 argued that due process is important, yet due process rights were always important in previous Department guidance and certainly are best practice. If the Department moves forward with its plans to revise the regulations regarding sexual assault and harassment, commenters argued the Department would be knowingly encouraging a continued culture of rape on campuses all across our country. Discussion: The Department agrees with commenters who noted that many student survivors rely on their academic institutions to provide justice and protection from their assailant; for these reasons, the final regulations require recipients to offer supportive measures to every complainant whether or not a grievance process is pending, and prescribe a grievance process under which complainants and respondents are treated fairly and under which a victim of sexual harassment must be provided with remedies designed to restore or preserve the victim’s equal access to education. The Department recognizes that educational institutions largely have strived in good faith over the last several years to provide meaningful support for complainants while applying grievance procedures fairly and that many institutions have made improvements in their Title IX compliance over the past several years. However, the Department disagrees with commenters’ assertions that the only deficiency with Department guidance (including withdrawn guidance such as the 2011 Dear Colleague Letter and current guidance such as the 2001 Guidance) was inconsistent implementation. Because guidance documents do not have the force and effect of law, the Department’s Title IX guidance could not impose legally binding obligations on recipients. By following the regulatory process, the Department through these final regulations ensures that students and employees can better hold their schools, colleges, and universities responsible for legally binding obligations with respect to sexual harassment allegations. The Department appreciates that members of the public expressed support for the 2011 Dear Colleague Letter in 2017; however, the need for regulations to replace mere guidance on a subject as serious as sexual harassment weighed in favor of undertaking the rulemaking process to develop these final regulations. The Department believes that issuing regulations rather than guidance brings clarity, permanence, and accountability to Title IX enforcement. As discussed in the ‘‘Adoption and Adaption of the PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 Supreme Court’s Framework to Address Sexual Harassment’’ section and the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, the approach in these final regulations is similar in some ways, and different in other ways, from Department guidance, including the 1997 Guidance, the 2001 Guidance, the withdrawn 2011 Dear Colleague Letter, the withdrawn 2014 Q&A, and the 2017 Q&A. The Department believes that these final regulations provide protections for complainants while ensuring that investigations and adjudications of sexual harassment are handled in a grievance process designed to impartially evaluate all relevant evidence so that determinations regarding responsibility are accurate and reliable, ensuring that victims of sexual harassment receive justice in the form of remedies. The Department disputes that the approach in these final regulations governing recipient responses to sexual harassment in any way encourages a culture of rape; to the contrary, the Department specifically included sexual assault in the definition of Title IX sexual harassment to ensure no confusion would exist as to whether even a single instance of rape is tolerable under Title IX. Changes: None. Comments: The Department received many comments opposing the proposed rules, including personal experiences shared by: Survivors; parents, relatives, and friends of survivors; students; educators (current and retired); medical and mental health professionals who treat and work with sexual assault victims; Title IX college officials; law enforcement officials; business owners; religious figures; and commenters who have been accused of sexual assault, who recounted the devastating effects of sexual assault on survivors, stated their opposition to the proposed rules, and affirmed their belief the proposed rules will retraumatize victims, worsen Title IX protections, and embolden predators by making schools less safe. Some commenters believed that if a student is being harassed in the classroom, the proposed rules would lessen the teacher’s ability to protect the class effectively. Commenters also stated that the proposed rules failed to acknowledge how traumatic experiences like sexual violence can impact an individual’s neurobiological and physiological functioning. Such commenters asserted that the brain processes traumatic experiences differently than day-to-day, non-threatening experiences; often physiological reactions, emotional E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations responses, and somatic memories react at different times in different parts of the brain, resulting in a non-linear recall (or lack of recall at all) of the traumatic event. Other commenters argued that trauma-informed approaches result in sexual harassment investigations and adjudications that prejudge the facts and bias proceedings in favor of complainants. Commenters viewed the proposed rules as allowing schools to intervene only when they deem the abuse is pervasive and severe enough, leaving many survivors in the position to prove their abuse is worthy of their school’s attention and action. These commenters asserted that Title IX needs reformation and greater enforcement so that survivors have more recourse in their healing experiences, in addition to preventing these incidents from occurring in the first place, as this is a deeply cultural and systemic problem. Some commenters asserted that those who start these harassing behaviors at a young age will escalate such behaviors in future years, and, as such, the proposed rules would negatively impact the behaviors of our future generations by curtailing punishment and reporting at an early age. Some commenters stated that, through the proposed rules, many sexual assaults would not be covered by Title IX, and survivors, especially students of color, would not feel protected against possible discrimination and retaliation should they consider disclosure of sexual crimes against them. These commenters argued this would impact all future statistical reporting on nationwide sexual assaults and harassment, thereby affecting funding sources that support survivors of sexual assault that rely on accurate data collection. Another commenter asserted that the Centers for Disease Control and Prevention has concluded that while risk factors do not cause sexual violence they are associated with a greater likelihood of perpetration, and that ‘‘weak community sanctions against sexual violence perpetrators’’ was a risk factor at the community level while ‘‘weak laws and policies related to sexual violence and gender equity’’ is a risk factor at the societal level.302 The 302 Commenters cited: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Division of Violence Prevention, Sexual Violence, Risk and Protective Factors, https://www.cdc.gov/violenceprevention/ sexualviolence/riskprotectivefactors.html (last reviewed by the CDC on Jan. 17, 2020); Jenny Dills et al., Continuing the Dialogue: Learning from the Past and Looking to the Future of Intimate Partner Violence and Sexual Violence Prevention, National VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 commenter argued that the perception and reality is that the proposed rules will weaken efforts to hold perpetrators accountable and increase the likelihood of sexual violence perpetration. Discussion: The Department appreciates that commenters of myriad backgrounds and experiences emphasized the devastating effects of sexual assault on survivors and the need for strong Title IX protections that do not retraumatize victims. The Department believes that the final regulations provide victims with strong protections from sexual harassment under Title IX and set clear expectations for when and how a school must respond to restore or preserve complainants’ equal educational access. Nothing in the final regulations reduces or limits the ability of a teacher to respond to classroom behavior. If the inclass behavior constitutes Title IX sexual harassment, the school is responsible for responding promptly without deliberate indifference, including offering appropriate supportive measures to the complainant, which may include separating the complainant from the respondent, counseling the respondent about appropriate behavior, and taking other actions that meet the § 106.30 definition of ‘‘supportive measures’’ while a grievance process resolves any factual issues about the sexual harassment incident. If the in-class behavior does not constitute Title IX sexual harassment (for example, because the conduct is not severe, or is not pervasive), then the final regulations do not apply and do not affect a decision made by the teacher as to how best to discipline the offending student or keep order in the classroom. The Department understands from anecdotal evidence and research studies that sexual violence is a traumatic experience for survivors. The Department is aware that the neurobiology of trauma and the impact of trauma on a survivor’s neurobiological functioning is a developing field of study with application to the way in which investigators of sexual violence offenses interact with victims in criminal justice systems and campus sexual misconduct proceedings.303 The final regulations Center for Injury Prevention and Control, Centers for Disease Control and Prevention (2019). 303 E.g., Jeffrey J. Nolan, Fair, Equitable TraumaInformed Investigation Training (Holland & Knight updated July 19, 2019) (white paper summarizing trauma-informed approaches to sexual misconduct investigations, identifying scientific and media support and opposition to such approaches, and cautioning institutions to apply trauma-informed approaches carefully to ensure impartial investigations). PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 30069 require impartiality in investigations and emphasize the truth-seeking function of a grievance process. The Department wishes to emphasize that treating all parties with dignity, respect, and sensitivity without bias, prejudice, or stereotypes infecting interactions with parties fosters impartiality and truth-seeking. Further, the final regulations contain provisions specifically intended to take into account that complainants may be suffering results of trauma; for instance, § 106.44(a) has been revised to require that recipients promptly offer supportive measures in response to each complainant and inform each complainant of the availability of supportive measures with or without filing a formal complaint. To protect traumatized complainants from facing the respondent in person, crossexamination in live hearings held by postsecondary institutions must never involve parties personally questioning each other, and at a party’s request, the live hearing must occur with the parties in separate rooms with technology enabling participants to see and hear each other.304 The Department disagrees that the final regulations make survivors prove their abuse is worthy of attention or action, because the § 106.30 definition of sexual harassment includes sexual assault, domestic violence, dating violence, and stalking. Such abuse jeopardizes a complainant’s equal educational access and is not subject to scrutiny or question as to whether such abuse is worthy of a recipient’s response. Title IX coverage of sexual assault requires that the recipient have actual knowledge that the incident occurred in the recipient’s education program or activity against a person in the United States. We have revised the § 106.30 definition of ‘‘actual knowledge’’ to include notice to any elementary and secondary school employee, and to expressly include a report to the Title IX Coordinator as described in § 106.8(a) (which, in turn, requires a recipient to notify its educational community of the contact information for the Title IX Coordinator and allows any person to report using that contact information, whether or not the person who reports is the alleged victim or a third party). We have revised the § 106.30 definition of ‘‘complainant’’ to mean any individual ‘‘who is alleged to be the victim’’ of sexual harassment, to clarify that a recipient must offer supportive measures to any person alleged to be the victim, even if the complainant is not the person who 304 Section E:\FR\FM\19MYR2.SGM 106.45(b)(6)(i). 19MYR2 30070 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations made the report of sexual harassment. We have revised § 106.44(a) to require the Title IX Coordinator promptly to contact a complainant to discuss supportive measures, consider the complainant’s wishes with respect to supportive measures, and explain to the complainant the process and option of filing a formal complaint. Within the scope of Title IX’s reach, no sexual assault needs to remain unaddressed. The Department understands that sexual harassment occurs throughout society and not just in educational environments, that data support the proposition that harassing behavior can escalate if left unaddressed, and that prevention of sexual harassment incidents before they occur is a worthy and desirable goal. The final regulations describe the Title IX legal obligations to which the Department will vigorously hold schools, colleges, and universities accountable in responding to sexual harassment incidents. Identifying the root causes and reducing the prevalence of sexual harassment across our Nation’s schools and campuses remains within the province of schools, colleges, universities, advocates, and experts. In response to commenters’ concerns that many complainants fear retaliation for reporting sexual crimes, the final regulations add § 106.71 expressly prohibiting retaliation, which protects complainants (and respondents and witnesses) regardless of race, ethnicity, or other characteristic. The Department intends for complainants to understand that their right to report under Title IX (including the right to participate or refuse to participate in a grievance process) is protected against retaliation. The Department is aware that nationwide data regarding the prevalence and reporting rates of sexual assault is challenging to assess, but does not believe that these final regulations will impact the accuracy of such data collection efforts. The Department does not dispute the proposition that weak sanctions against sexual violence perpetrators and weak laws and policies related to sexual violence and sex equality are associated with a greater likelihood of perpetration. The Department believes that Title IX is a strong law, and that these final regulations constitute strong policy, standing against sexual violence and aiming to remedy the effects of sexual violence in education programs and activities. Because Title IX is a civil rights law concerned with equal educational access, these final regulations do not require or prescribe disciplinary sanctions. The Department’s charge under Title IX is to preserve victims’ equal access to access, VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 leaving discipline decisions within the discretion of recipients. Changes: We have revised the § 106.30 definition of ‘‘actual knowledge’’ to include notice to any elementary and secondary school employee, and to expressly include a report to the Title IX Coordinator as described in § 106.8(a). We have revised § 106.8(a) to expressly allow any person (whether the alleged victim, or a third party) to report sexual harassment using the contact information that must be listed for the Title IX Coordinator. We have revised the § 106.30 definition of ‘‘complainant’’ to mean any individual ‘‘who is alleged to be the victim’’ of sexual harassment. We have revised § 106.44(a) to require the Title IX Coordinator promptly to contact a complainant to discuss supportive measures, consider the complainant’s wishes with respect to supportive measures, and explain to the complainant the process and option of filing a formal complaint. We have also added § 106.71, prohibiting retaliation against individuals exercising rights under Title IX including participating or refusing to participate in a Title IX grievance process. Comments: Some commenters suggested alternate approaches to the proposed rules or offered alternative practices. For example, commenters suggested: Zero-tolerance policies; requiring schools to install cameras in public or shared spaces on campus to discourage sexual harassment, provide proof and greater fairness for all parties involved, and decrease the cost and time spent in such cases; requiring recipients to provide an accounting of all funds used to comply with Title IX; creating Federal or State-individualized written protocols with directions on interviewing parties in Title IX investigations; requiring schools to adopt broader harassment policies that allow complaints to be addressed by an independent board with parent, educational, medical or law enforcement professionals, and peers with appeal to a second board; providing increased funding and staff for Title IX programs; third-party monitoring of Title IX compliance; and requiring universities to provide more thorough reports on gender-based violence in their systems. Some commenters emphasized the importance of prevention practices, suggesting various approaches such as: Adopting the prevention measures in the withdrawn 2011 Dear Colleague Letter; setting incentives to reward schools for fewer Title IX cases; and curtailing schools’ use of confidential sexual harassment settlement payments that PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 hide or erase evidence of harassment and protect predatory behavior. Other commenters requested more training for organizations such as fraternities, arguing that sexual assault statistics would improve by enforcing better standards of behavior at fraternities. Commenters proposed the Department should rate schools on their compliance to Title IX standards similar to FIRE’s ‘‘Spotlight on Due Process’’ 305 or the Human Rights Campaign’s Equality Index.306 Commenters proposed that any new rule should build upon, rather than abrogate, the requirements of the Campus Sex Crimes Prevention Act of 2000, which requires institutions of higher education to advise the campus community where it can obtain information about sex offenders provided by the State. One commenter urged the Department to add into the final regulations the statutory exemptions from the Title IX nondiscrimination mandate found in the Title IX statute including Boys State/ Nation or Girls State/Nation conferences (20 U.S.C. 1681(a)(7)); father-son or mother-daughter activities at educational institutions (20 U.S.C. 1681(a)(8)); and institution of higher education scholarship awards in ‘‘beauty’’ pageants (20 U.S.C. 1681(a)(9)). Another commenter requested that the final regulations commit to ensuring culturally-sensitive services for students of color, who experience higher rates of sexual violence and more barriers to reporting, to help make prevention and support more effective. Commenters proposed to have each educational institution follow a guideline when employing staff from ‘‘Women Centers’’ as Title IX Coordinators and staff in Title IX offices, and as student residence hall directors, to ensure that there is fair judgment in every case of sexual misconduct that occurs. Commenters argued that justice for all could be served by less press coverage of highprofile incidents and that investigations should be kept private until all facts are gathered, preserving the reputation of all involved. Discussion: The Department appreciates and has considered the numerous approaches suggested by commenters, some of whom urged the 305 Commenters cited: Foundation for Individual Rights in Education (FIRE), Spotlight on Due Process 2018 (2018), https://www.thefire.org/ resources/spotlight/due-process-reports/dueprocess-report-2018/#top. 306 Commenters referenced how the Human Rights Campaign (HRC) rates workplaces and health care providers on an Equality Index, for example the Corporate Equality Index Archive, https:// www.hrc.org/resources/corporate-equality-indexarchives. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Department to take additional measures and others who desired alternatives to the proposed rules. The Department has determined, in light of the Supreme Court’s framework for responding to Title IX sexual harassment and extensive stakeholder feedback concerning those procedures most needed to improve the consistency, fairness, and accuracy of Title IX investigations and adjudications, that the final regulations reasonably and appropriately obligate recipients to respond supportively and resolve allegations fairly without encroaching on recipients’ discretion to control their internal affairs (including academic, administrative, and disciplinary decisions). Many of the commenters’ suggestions for additions or alternatives to the final regulations concern subjects that lie within recipients’ discretion and it may be possible for recipients to adopt them while also complying with these final regulations. To the extent that the commenters’ suggestions require action by the Department, we decline to implement or require those practices, in the interest of preserving recipients’ flexibility and retaining the focus of these regulations on prescribing recipient responses to Title IX sexual harassment. The Department cannot enforce Title IX in a manner that requires recipients to restrict any rights protected under the First Amendment, including freedom of the press.307 We have added § 106.71 which prohibits retaliation against an individual for the purpose of interfering with the exercise of Title IX rights. Section 106.71(a) requires recipients to keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness (unless permitted by FERPA, or required under law, or as necessary to conduct proceedings under Title IX), and § 106.71(b) states that exercise of rights protected by the First Amendment is not retaliation. Section 106.30 defining ‘‘supportive measures’’ instructs recipients to keep confidential the provision of supportive measures except as necessary to provide the supportive measures. These provisions are intended to protect the confidentiality of complainants, respondents, and 307 See Peterson v. City of Greenville, 373 U.S. 244 (1963); Truax v. Raich, 239 U.S. 33, 38 (1915); § 106.6(d)(1). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 witnesses during a Title IX process, subject to the recipient’s ability to meet its Title IX obligations consistent with constitutional protections. The statutory exceptions to Title IX mentioned by at least one commenter (i.e., Boys State or Girls’ State conferences, father-son or motherdaughter activities, certain ‘‘beauty’’ pageant scholarships) have full force and effect by virtue of their express inclusion in 20 U.S.C. 1681(a), and the Department declines to repeat those exemptions in these final regulations, which mainly address a recipient’s response to sexual harassment. Changes: We have added § 106.71 which prohibits retaliation against an individual for the purpose of interfering with the exercise of Title IX rights. Section 106.71(a) requires recipients to keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness (unless permitted by FERPA, or required under law, or as necessary to conduct proceedings under Title IX), and § 106.71(b) states that exercise of rights protected by the First Amendment is not retaliation. Comments: Some commenters suggested broadening the scope of the proposed rules to address other issues, for example: Providing guidance on pregnancy and parenting obligations under Title IX; evaluating coverage of fraternities and sororities under Title IX; funding to protect women and young adults on campus; girls losing access to sports, academic, and vocational programs as schools choose to save money by cutting girls’ programs; investigating whether speech and conduct codes impose a disparate impact on men; covering other forms of harassment (e.g., race, age, national origin). A few commenters expressed concern about the lack of clarity for cases alleging harassment on multiple grounds, such as whether the proposed provisions regarding mandatory dismissal, the clear and convincing evidence standard, interim remedies, and cross-examination would apply to the non-sex allegations. A few commenters requested that the final regulations address student harassment of staff and faculty by changing ‘‘employee’’ or ‘‘student’’ to ‘‘member’’ in the final regulations. Discussion: The NPRM focused on the problem of recipient responses to sexual PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 30071 harassment, and the scope of matters addressed by the final regulations is defined by the subjects presented in the NPRM. Therefore, the Department declines to address other topics outside of this original scope, such as pregnancy, parenting, or athletics under Title IX, coverage of Title IX to fraternities and sororities, whether speech codes discriminate based on sex, funding intended to protect women or young adults on campus, funding cuts to girls’ programs by recipients, or forms of harassment other than sexual harassment. The Department notes that inquiries about the application of Title IX to particular organizations may be referred to the organization’s Title IX Coordinator or to the Assistant Secretary as indicated in § 106.8(b)(1), and that complaints alleging sex discrimination that does not constitute sexual harassment may be referred to the recipient’s Title IX Coordinator for handling under the equitable grievance procedures that recipients must adopt under § 106.8(c). The Department appreciates commenters’ questions regarding the handling of allegations that involve sexual harassment as well as harassment based on race (or on a basis other than sex) and appreciates the opportunity to clarify that the response obligations in § 106.44 and the grievance process in § 106.45 apply only to allegations of Title IX sexual harassment; the final regulations impose no new obligations or requirements with respect to nonTitle IX sexual harassment and do not alter existing regulations under civil rights laws such as Title VI (discrimination on the basis of race, color, or national origin) or regulations under disability laws such as IDEA, Section 504, or ADA. The Department will continue to enforce regulations under those laws and recipients must comply with all regulations that apply to a particular allegation of discrimination (including allegations of harassment on multiple bases) accordingly. The Department declines to change the words ‘‘students’’ and ‘‘employees’’ to ‘‘members’’ in the final regulations, because doing so could create inconsistencies with the current regulations, and the meaning of the term ‘‘member’’ is not readily understood by reference to other State and Federal laws, in the way that ‘‘employee’’ is. However, the Department appreciates the opportunity to reiterate that the E:\FR\FM\19MYR2.SGM 19MYR2 30072 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations definitions of ‘‘complainant’’ 308 and ‘‘respondent’’ 309 do not restrict either party to being a student or employee, and, therefore, the final regulations do apply to allegations that an employee was sexually harassed by a student. Changes: None. Comments: Commenters expressed concern that there is no point in revising a rule without enforcement and proposed that the Department should use its enforcement authority to sanction non-compliance of Title IX, since no school has ever had its funding withdrawn. Other commenters asked the Department to disallow private rights of action and the payment of attorney fees, damages, or costs. Other commenters proposed that the Department revise OCR’s existing Case Processing Manual to: Eliminate biases toward specific groups when handling charges of rape, sexual harassment, and assault; protect undocumented students who file Title IX complaints with OCR so they do not have to fear doing so would lead to their deportation; avoid psychological bias by OCR investigators; and revise the 180-day complaint timeliness requirement to allow for complaints to be filed after the 180-day filing time frame with OCR for allegations involving sexual misconduct, under certain conditions. Other commenters proposed adding a provision that expressly releases institutions that are currently subject to settlement agreements with the Department from provisions that set forth ongoing obligations that are inconsistent with the new regulations. Discussion: The Department agrees with commenters who asserted that administrative enforcement of Title IX obligations is vital to the protection of students’ and employees’ civil rights, and the Department will vigorously enforce the final regulations. Nothing in these final regulations alters the existing statutory and regulatory framework under which the Department exercises its administrative authority to take enforcement actions against recipients for non-compliance with Title IX including the circumstances under which a recipient’s Federal financial assistance may be terminated. The Department does not have authority or ability to affect the existence of judicially-implied private rights of action under Title IX or the remedies available through such private lawsuits. 308 Section 106.30 (Complainant ‘‘means an individual who is alleged to be the victim of conduct that could constitute sexual harassment.’’). 309 Section 106.30 (Respondent ‘‘means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Changes to OCR’s Case Processing Manual are outside the scope of this rulemaking process. The Department will not enforce the final regulations retroactively; whether prospective enforcement of the final regulations will impact any existing resolution agreements between recipients and OCR requires examination of the circumstances of those resolution agreements. The Department will provide technical assistance to recipients with questions about the enforceability of existing resolution agreements. Changes: None. Comments: Some commenters expressed general support for Title IX without reference to sexual misconduct or the proposed rules, for example, asserting: That Title IX is important to rebuilding the country’s education system; that Title IX has made great strides for equality in girls’ sports; and that Title IX has helped equalize the power imbalance between women and men. Other commenters expressed opposition to Title IX generally, for example, arguing: That Title IX has become a war on men, is biased against men, has set up kangaroo courts against males, and has fed into destructive identity politics; that women and men are different and men need to be men; and that Title IX is no longer needed because women outperform men in several areas (e.g., college admissions). A number of commenters expressed support for equality and nondiscrimination, or support for safe schools, public education, environments conducive to learning, schools operating in loco parentis, the well-being of children, protection of sex workers, fighting rape culture, respect for everyone’s feelings, or anti-bullying, without expressing a position on the proposed rules. Without expressing a view about the proposed rules, some commenters expressed concern about a young woman murdered at a prominent university, and others expressed concern that it is too easy to get away with rape already due to ‘‘date rape’’ drugs, online dating sites, and powerful networks of people with bad intentions helping cover up incidents. A few commenters asked rhetorical questions such as: Does the government as ‘‘Protector of Citizens’’ devalue sexual assaults in educational institutions? Three million college students will be sexually assaulted this year: What are you going to do about it? What if something happened to your child? A few commenters suggested changes to other agencies’ rules, such as one suggestion that the Department of Labor employment discrimination rules PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 should address the loss of jobs for female coaches due to gender-separate sports teams. Discussion: The Department appreciates the range of opinions expressed by commenters on the general impact of Title IX. The Department believes that Title IX has improved educational access for millions of students since its enactment decades ago, and believes that these final regulations continue the national effort to make Title IX’s non-discrimination mandate a meaningful reality for all students. The Department also appreciates commenters’ viewpoints about topics related to gender equality and sexual abuse unrelated to the proposed rules. As an executive branch agency of the Federal government charged with enforcing Title IX, the Department believes that sexual assaults in education programs or activities warrant the extensive attention and concern demonstrated by the obligations set forth in these final regulations and that these final regulations will provide millions of college (and elementary and secondary school) students with clarity about what to expect from their educational institutions in response to any incident of sexual assault or other sexual harassment that constitutes sex discrimination under Title IX. Comments regarding other agencies’ regulations are outside the scope of this rulemaking process and the Department’s jurisdiction. The Department notes that for comments submitted with no substantive text, names of survivor advocacy organizations, or pictures or graphics depicting, e.g., feminist icons, protest marches featuring cardboard signs with slogans such as ‘‘We Stand With Survivors’’ or ‘‘Hands Off IX,’’ and similar depictions, the Department has considered the viewpoints that such pictures, graphics, and slogans appear to convey. Changes: None. Commonly Cited Sources In explaining opposition to many provisions of the NPRM (most commonly, use of the Supreme Court’s framework to address sexual harassment, i.e., the definition of sexual harassment, the actual knowledge requirement, the deliberate indifference standard, the education program or activity and ‘‘against a person in the U.S.’’ jurisdictional limitations, and aspects of the grievance process, e.g., permitting a clear and convincing evidence standard, live hearings with cross-examination in postsecondary institutions, presumption of the respondent’s non-responsibility, E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations permitting informal resolution processes such as mediation) commenters urged the Department to consult works in the literature concerning the prevalence and impact of sexual harassment, dynamics of sexual violence, sexual abuse, and violence against women, institutional betrayal, rates of reporting, and reasons why victims do not report sexual harassment. These sources included: • W. David Allen, The Reporting and Underreporting of Rape, 73 S. Econ. J. 3 (2007). • The Association of American Universities, Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct (Westat 2015) (commonly referred to as ‘‘AAU/Westat Report’’ or ‘‘AAU Survey’’). • American Association of University Women, Crossing the Line: Sexual Harassment at School (2011). • American Association of University Women Educational Foundation, Drawing the Line: Sexual Harassment on Campus (2005). • Elizabeth A. Armstrong et al., Silence, Power, and Inequality: An Intersectional Approach to Sexual Violence, 44 Ann. Rev. of Sociology 99 (2018). • Claudia Avina & William O’Donohue, Sexual harassment and PTSD: Is sexual harassment diagnosable trauma?, 15 Journal of Traumatic Stress 1 (2002). • Victoria Banyard et al., Academic Correlates of Unwanted Sexual Contact, Intercourse, Stalking, and Intimate Partner Violence: An Understudied but Important Consequence for College Students, Journal of Interpersonal Violence (2017). • Kelly Alison Behre, Ensuring Choice and Voice for Campus Sexual Assault Victims: A Call for Victims’ Attorneys, 65 Drake L. Rev. 293 (2017). • Joseph H. Beitchman et al., A review of the long-term effects of child sexual abuse, 16 Child Abuse & Neglect 1 (1992). • Jennifer J. Berdahl, Harassment based on sex: Protecting social status in the context of gender hierarchy, 32 Acad. of Mgmt. Rev. 641 (2007). • Jennifer J. Berdahl & Jana Raver, ‘‘Sexual harassment,’’ in APA Handbook of Indus. and Organizational Psychol. (Sheldon Zedeck ed., 2010). • Linda L. Berger et al., Using Feminist Theory to Advance Equal Justice under Law, 17 Nev. L. J. 539 (2017). • Dana Bolger, Gender Violence Costs: Schools’ Financial Obligations Under Title IX, 125 Yale L. J. 2106 (2016). • Kimberly H. Breitenbecher, Sexual assault on college campuses: Is an ounce of prevention enough?, 9 Applied & Preventive Psychol. 1 (2000). • Rebecca Campbell & Sheela Raja, The Sexual Assault and Secondary Victimization of Female Veterans: HelpSeeking Experiences with Military and Civilian Social Systems, 29 Psychol. of Women Quarterly 1 (2005). • Rebecca Campbell, What Really Happened? A Validation Study of Survivors’ Help-Seeking Experiences VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 • • • • • • • • • • • • • • • with the Legal and Medical Systems, 20 Violence & Victims 1 (2005). Rebecca Campbell, The psychological impact of rape victims’ experiences with the legal, medical and mental health systems, 63 Am. Psychol. 8 (2008). Nancy Chi Cantalupo, Burying Our Heads in the Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence, 43 Loy. Univ. Chi. L. J. 205 (2011). Nancy Chi Cantalupo & William C. Kidder, A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty, 2018 Utah L. Rev. 671 (2018). Amy Chmielewski, Defending the Preponderance of the Evidence Standard in College Adjudications of Sexual Assault, 2013 BYU Educ. & L. J. 143 (2013). Colleen Cleere & Steven Jay Lynn, Acknowledged Versus Unacknowledged Sexual Assault Among College Women, 28 Journal of Interpersonal Violence 12 (2013). Samantha Craven et al., Sexual grooming of children: Review of literature and theoretical considerations, 12 Journal of Sexual Aggression 3 (2006). Andrea Anne Curcio, Institutional Failure, Campus Sexual Assault and Danger in the Dorms: Regulatory Limits and the Promise of Tort Law, 78 Mont. L. Rev. 31 (2017). David DeMatteo et al., Sexual Assault on College Campuses: A 50-State Survey of Criminal Sexual Assault Statutes and Their Relevance to Campus Sexual Assault, 21 Psychol., Pub. Pol’y, & L. 3 (2015). Dorothy Espelage et al., Longitudinal Associations Among Bullying, Homophobic Teasing, and Sexual Violence Perpetration Among Middle School Students, 30 Journal of Interpersonal Violence 14 (2014). Lisa Fedina et al., Campus Sexual Assault: A Systematic Review of Prevalence Research From 2000 to 2015, 19 Trauma, Violence, & Abuse 1 (2018). Louise F. Fitzgerald et al., Measuring sexual harassment: Theoretical and psychometric advances, 17 Basic & Applied Social Psychol. 4 (1995). Louise F. Fitzgerald et al., The incidence and dimensions of sexual harassment in academia and the workplace, 32 Journal of Vocational Behavior 2 (1988). Rachel E. Gartner & Paul R. Sterzing, Gender Microaggressions as a Gateway to Sexual Harassment and Sexual Assault: Expanding the Conceptualization of Youth Sexual Violence, 31 Affilia: J. of Women & Social Work 4 (2016). Suzanne B. Goldberg, Keep Crossexamination Out of College SexualAssault Cases, Chronicle of Higher Education (Jan. 10, 2019). Joanne L. Grossman & Deborah L. Brake, A Sharp Backward Turn: Department of Education Proposes to Protect Schools, Not Students, in Cases of Sexual Violence, Verdict (Nov. 29, 2018). PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 30073 • Sarah Harsey et al., Perpetrator Responses to Victim Confrontation: DARVO and Victim Self-Blame, 26 Journal of Aggression, Maltreatment & Trauma 6 (2017). • Judith Lewis Herman, The mental health of crime victims: impact of legal intervention, 16 Journal of Traumatic Stress 2 (2003). • Heather R. Hlavka, Normalizing Sexual Violence: Young Women Account for Harassment and Abuse, 28 Gender & Soc’y 3 (2014). • Ivy K. Ho et al., Sexual Harassment and Posttraumatic Stress Symptoms among Asian and White Women, 21 Journal of Aggression, Maltreatment & Trauma 1 (2012). • Kathryn J. Holland & Lilia M. Cortina, ‘‘It happens to girls all the time’’: Examining sexual assault survivors’ reasons for not using campus supports, 59 Am. J. of Community Psychol. 1–2 (2017). • Kathryn J. Holland & Lilia M. Cortina, The evolving landscape of Title IX: Predicting mandatory reporters’ responses to sexual assault disclosures, 41 Law & Hum. Behavior 5 (2017). • Wendy Adele Humphrey, ‘‘Let’s Talk About Sex’’: Legislating and Educating on the Affirmative Consent Standard, 50 Univ. of S.F. L. Rev. 1 (2016). • Irina Iles et al., The unintended consequences of rape disclosure: The effects of disclosure content, listener gender, and year in college on listener’s reactions, Journal of Interpersonal Violence (2018). • Jeffrey S. Jones et al., Why women don’t report sexual assault to the police: The influence of psychosocial variables and traumatic injury, 36 Journal of Emergency Med. 4 (2009). • Carol E. Jordan et al., An Exploration of Sexual Victimization and Academic Performance Among College Women, 15 Trauma, Violence, & Abuse 3 (2014). • Kaiser Family Foundation & The Washington Post, Survey of Current and Recent College Students on Sexual Assault (2015). • Shamus Khan et al., ‘‘I Didn’t Want to Be ‘That Girl’’’: The Social Risks of Labeling, Telling, and Reporting Sexual Assault, 5 Sociological Sci. 432 (2018). • National Victim Center and Crime Victims Research and Treatment Center, Rape in America: A Report to the Nation (1992). • Gay, Lesbian and Straight Education Network (GLSEN), The 2017 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth in Our Nation’s Schools (2018). • Mary P. Koss, The Scope of Rape: Incidence and Prevalence of Sexual Aggression and Victimization in a National Sample of Higher Education Students, 55 Journal of Consulting & Clinical Psychol. 2 (1987). • Mary P. Koss, ‘‘Hidden Rape: Sexual Aggression and Victimization in a National Sample of Students in Higher Education,’’ in Confronting Rape and Sexual Assault 51–69 (M.E. Odom & J. Clay-Warner eds., 1998). E:\FR\FM\19MYR2.SGM 19MYR2 30074 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations • Christopher Krebs et al., Bureau of Justice Statistics Research and Development Series: Campus Climate Survey Validation Study Final Technical Report (2016). • Christopher Krebs et al., College Women’s Experiences with Physically Forced, Alcohol- or Other Drug-Enabled, and Drug-Facilitated Sexual Assault Before and Since Entering College, 57 Journal of Am. Coll. Health 6 (2009). • Emily Leskinen et al., Gender harassment: Broadening our understanding of sexbased harassment at work, 35 Law & Hum. Behavior 1 (2011). • David Lisak & Paul Miller, Repeat Rape and Multiple Offending Among Undetected Rapists, 17 Violence & Victims 1 (2002). • David Lisak et al., False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases, 16 Violence Against Women 12 (2010). • Kimberly A. Lonsway et al., False reports: Moving beyond the issue to successfully investigate and prosecute non-stranger sexual assault, 3 The Voice 1 (2009). • Kimberly A. Lonsway & Joanne Archambault, The ‘‘justice gap’’ for sexual assault cases: Future directions for research and reform, 18 Violence Against Women 2 (2012). • Catharine A. MacKinnon, In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education, 125 Yale L. J. 2038 (2016). • Shana L. Maier, ‘‘I have heard horrible stories . . .’’: rape victim advocates’ perceptions of the revictimization of rape victims by the police and medical system, 14 Violence Against Women 7 (2008). • Shana L. Maier, The emotional challenges faced by Sexual Assault Nurse Examiners: ‘‘ER nursing is stressful on a good day without rape victims’’, 7 Journal of Forensic Nursing 4 (2011). • Patricia Yancey Martin, Rape Work: Victims, Gender, and Emotions in Organization and Community Context (Taylor & Francis Group 2005). • Patricia Yancey Martin, The Rape Prone Culture of Academic Contexts: Fraternities and Athletics, 30 Gender & Soc’y 1 (2016). • Anne-Marie Mcalinden, Setting ’Em Up’: Personal, Familial and Institutional Grooming in the Sexual Abuse of Children, 15 Social & Legal Stud. 3 (2006). • Elizabeth McDonald & Yvette Tinsley, Use of Alternative Ways of Giving Evidence by Vulnerable Witnesses: Current Proposals, Issues and Challenges, Victoria Univ. of Wellington L. Rev. (July 2, 2012) (forthcoming Victoria University of Wellington Legal Research Paper No. 2/2011). • Sarah McMahon et al., Measuring Bystander Attitudes and Behavior to Prevent Sexual Violence, 62 Journal of Am. Coll. Health 1 (2014). • Cecilia Mengo & Beverly M. Black, Violence Victimization on a College Campus: Impact on GPA and School Dropout, 18 Journal of Coll. Student VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 • • • • • • • • • • • • • • • • • Retention: Research, Theory & Practice 2 (2015). Audrey Miller et al., Stigma-Threat motivated nondisclosure of sexual assault and sexual revictimization: A prospective analysis, 35 Psychol. of Women Quarterly 1 (2011). Ted R. Miller et al., Victim Costs of Violent Crime and Resulting Injuries, 12 Health Affairs 4 (1993). Emma Millon et al., Stressful Life Memories Relate to Ruminative Thoughts in Women with Sexual Violence History, Irrespective of PTSD, Frontiers in Psychiatry (Sept. 5, 2018). National Association of Student Affairs Administrators in Higher Education (NASPA) & Education Commission of the States, State Legislative Developments on Campus Sexual Violence: Issues in the Context of Safety (2015). Charlene L. Muehlenhard, et al., Evaluating the One-in-Five Statistic: Women’s Risk of Sexual Assault While in College, 54 The J. of Sex Research 4–5 (2017). National Academies of Science, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine (Frasier F. Benya et al. eds., 2018). Jim Parsons & Tiffany Bergin, The impact of criminal justice involvement on victims’ mental health, 23 Journal of Traumatic Stress 2 (2010). Debra Patterson & Rebecca Campbell, Why rape survivors participate in the criminal justice system, 38 Journal of Community Psychol. 2 (2010). Cora Peterson et al., Lifetime Economic Burden of Rape Among U.S. Adults, 52 Am. J. of Preventive Med. 6 (2017). Melissa Platt et al., ‘‘A Betrayal Trauma Perspective on Domestic Violence,’’ in Violence Against Women in Families and Relationships 185–207 (Evan Stark & Eve S. Buzawa eds., Greenwood Press 2009). Sharyn Potter et al., Long-term impacts of college sexual assaults on women survivors’ educational and career attainments, 66 Journal of Am. Coll. Health 6 (2018). Elizabeth Quinlan et al., Enhancing Care and Advocacy for Sexual Assault Survivors on Canadian Campuses, 46 Canadian J. of Higher Education 2 (2016). Andrea J. Ritchie, Invisible No More: Police Violence against Black Women and Women of Color (Beacon Press 2017). Andrea Roberts et al., Pervasive trauma exposure among US sexual orientation minority adults and risk of posttraumatic stress disorder, 100 Am. J. of Pub. Health 12 (2010). Emily A. Robey-Phillips, Federalism in Campus Sexual Violence: How States Can Protect Their Students When a Trump Administration Will Not, 29 Yale J. of L. & Feminism 373 (2018). Marina N. Rosenthal et al., Still second class: Sexual harassment of graduate students, 40 Psychol. of Women Quarterly 3 (2016). Maria Rotundo et al., A Meta-Analytic Review of Gender Differences in PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 • • • • • • • • • • • • • • • • • Perceptions of Sexual Harassment, 86 Journal of Applied Psychol. 5 (2001). Chaira Sabina & Lavina Ho, Campus and college victim responses to sexual assault and dating violence: Disclosure, service utilization, and service provision, 15 Trauma, Violence, & Abuse 3 (2014). Marjorie R. Sable et al., Barriers to Reporting Sexual Assault for Women and Men: Perspectives of College Students, 55 Am. Coll. Health 3 (2006). Lauren Schroeder, Cracks in the Ivory Tower: How the Campus Sexual Violence Elimination Act Can Protect Students from Sexual Assault, 45 Loy. Univ. Chi. L. J. 1195 (2014). Diana Scully & Joseph Marolla, Convicted rapists’ vocabulary of motive: Excuses and justifications, 31 Social Problems 5 (1984). Charol Shakeshaft, Educator Sexual Misconduct: A Synthesis of Existing Literature (2004) (prepared for the U.S. Dep’t. of Education). Tracey J. Shors & Emma Millon, Sexual trauma and the female brain, 41 Frontiers in Neuroendocrinology 87 (2016). Carly Parnitzke Smith & Jennifer J. Freyd, Dangerous Safe Havens: Institutional Betrayal Exacerbates Sexual Trauma, 26 Journal of Traumatic Stress 1 (2013). Carly Parnitzke Smith & Jennifer J. Freyd, Institutional betrayal, 69 Am. Psychol. 6 (2014). Carly Parnitzke Smith & Jennifer J. Freyd, Insult, then injury: Interpersonal and institutional betrayal linked to health and dissociation, 26 Journal of Aggression, Maltreatment & Trauma 10 (2017). Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, The National Intimate Partner and Sexual Violence Survey (NISVS): 2010–2012 State Report (2017). Kathryn M. Stanchi & Jan M. Levine, Gender and Legal Writing: Law Schools’ Dirty Little Secrets, 16 Berkeley Women’s L. J. 3 (2001). Kathryn M. Stanchi & Linda L. Berger, ‘‘Gender Justice: The Role of Stories and Images,’’ in Metaphor, Narrative and the Law (Michael Hanne & Robert Weisberg eds., Cambridge Univ. Press 2018). Kathryn M. Stanchi, Feminist Legal Writing, 39 San Diego L. Rev. 387 (2002). Kathryn M. Stanchi, Who Next, the Janitors? A Socio-Feminist Critique of the Status Hierarchy of Law Professors, 73 Univ. of Missouri-Kansas L. Rev. 2 (2004). Tara K. Streng & Akiko Kamimura, Sexual Assault Prevention and Reporting on College Campuses in the US: A Review of Policies and Recommendations, 6 Journal of Education & Practice 3 (2015). Janet K. Swim et al., Everyday sexism: Evidence for its incidence, nature, and psychological impact from three daily diary studies, 57 Journal of Social Issues 1 (2001). John F. Tedesco & Steven V. Schnell, Children’s reactions to sex abuse investigation and litigation, 11 Child Abuse & Neglect 2 (1987). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations • Bessel A. van der Kolk & Rita Fisler, Dissociation & the fragmentary nature of traumatic memories: Overview & exploratory study, 8 Journal of Traumatic Stress 4 (1995). • Bessel A Van Der Kolk, The Body Keeps the Score: Brain, Mind, and Body in the Healing of Trauma (Penguin Books 2014). • Erica van Roosmalen & Susan A. McDaniel, Sexual harassment in academia: A hazard to women’s health, 28 Women & Health 2 (1999). • Grayson S. Walker, The Evolution and Limits of Title IX Doctrine on Peer Sexual Assault, 45 Harv. C.R.-C.L. L. Rev. 95 (2010). • Wendy Walsh et al., Disclosure and Service Use on a College Campus After an Unwanted Sexual Experience, 11 Journal of Trauma & Dissociation 2 (2010). • Lavinia M. Weizel, The Process That is Due: Preponderance of the Evidence as the Standard of Proof for University Adjudications of Student-on-Student Sexual Assault Complaints, 53 Boston Coll. L. Rev. 1613 (2012). • Nicole Westmarland & Sue Alderson, The Health, Mental Health, and Well-Being Benefits of Rape Crisis Counseling, 28 Journal of Interpersonal Violence 17 (2013). • Jacqueline M. Wheatcroft et al., Revictimizing the Victim? How Rape Victims Experience the UK Legal System, 4 Victims & Offenders 3 (2009). • Helen Whittle et al., A Comparison of Victim and Offender Perspectives of Grooming and Sexual Abuse, 36 Deviant Behavior 7 (2015). • Jacquelyn D. Wiersma-Mosley & James DiLoreto, The Role of Title IX Coordinators on College and University Campuses, 8 Behavioral Sci. 4 (2018). • Joyce E. Williams & Karen A. Holmes, The Second Assault: Rape and Public Attitudes (Praeger Publishers 1981). • Laura C. Wilson & Katherine E. Miller, Meta-Analysis of the Prevalence of Unacknowledged Rape, 17 Trauma, Violence, & Abuse 2 (2016). • Kate B Wolitzky-Taylor et al., Reporting rape in a national sample of college women, 59 Journal of Am. Coll. Health 7 (2011). • Anne B. Woods et al., The mediation effect of posttraumatic stress disorder symptoms on the relationship of intimate partner violence and IFN-g levels, 36 Am. J. of Community Psychol. 1–2 (2005). • Corey R. Yung, Concealing Campus Sexual Assault: An Empirical Examination, 21 Psychol., Pub. Pol’y, & L. 1 (2015). • Sarah Zydervelt et al., Lawyers’ Strategies for Cross-examining Rape Complainants: Have we Moved Beyond the 1950s?, 57 British J. of Criminology 3 (2016). The Department has considered the sources cited to by commenters. For reasons described in this preamble, the Department believes that the final regulations create a predictable framework governing recipients’ responses to allegations of sexual VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 harassment in furtherance of Title IX’s non-discrimination mandate. Data—Overview Many commenters referred the Department to statistics, data, research, and studies about the prevalence of sexual harassment, the impact of sexual harassment, the cost to victims of sexual harassment, underreporting of sexual harassment, problematic patterns of survivors facing negative stereotypes or being accused of ‘‘lying’’ when reporting sexual harassment, and rates of false accusations. Many commenters pointed to such data and information as part of general opposition to the proposed rules, expressing concern that the proposed rules as a whole would exacerbate the prevalence and negative impact of sexual harassment for all victims and with respect to specific demographic groups. Many commenters cited to such data and information in opposition to specific parts of the proposed rules, most commonly: Use of the Supreme Court’s framework to address sexual harassment (i.e., the definition of sexual harassment, the actual knowledge requirement, the deliberate indifference standard), the education program or activity and ‘‘against a person in the U.S.’’ jurisdictional limitations, and aspects of the grievance process (e.g., permitting a clear and convincing evidence standard, live hearings with cross-examination in postsecondary institutions, presumption of the respondent’s non-responsibility, permitting informal resolution processes such as mediation). The Department has carefully considered the data and information presented by commenters with respect to the aforementioned aspects of the final regulations and with respect to the overall approach and framework of the final regulations. Prevalence Data—Elementary and Secondary Schools Comments: Many commenters referred the Department to statistics, data, research, and studies showing the prevalence of sexual harassment against children and adolescents, and in elementary and secondary schools, including as follows: • Data show that sexual assault is most prevalent among adolescents as compared to any other group. School was reported as the most common location for this peer-on-peer victimization to occur. Fifty-one percent of high school girls and 26 percent of high school boys experienced PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 30075 adolescent peer-on-peer sexual assault victimization.310 • One in four young women experiences sexual assault before the age of 18.311 • One study found that ten percent of children were targets of educator sexual misconduct by the time they graduated from high school.312 • Nearly half (48 percent) of U.S. students are subject to sexual harassment or assault at school before they graduate high school (56 percent of girls and 40 percent of boys).313 There were at least 17,000 official reports of sexual assaults of K–12 students by their peers between 2011 and 2015.314 A longitudinal study found that 68 percent of girls and 55 percent of boys surveyed had at least one sexual harassment victimization experience in high school.315 A survey of 2,064 students in grades eight through11 indicated: 83 percent of girls have been sexually harassed; 78 percent of boys have been sexually harassed; 38 percent of the students were harassed by teachers or school employees; 36 percent of school employees or teachers were harassed by students; and 42 percent of school employees or teachers had been harassed by each other.316 • One sexual assault study surveyed 18,030 high school students and found that 18.5 percent reported victimization and eight percent reported perpetration in the past year; although females were more likely to report unwanted sexual activities due to feeling pressured, there were no significant sex differences among those reporting physical force or unwanted sexual activities due to 310 Commenters cited: Amy M. Young et al., Adolescents’ Experiences of Sexual Assault by Peers: Prevalence and Nature of Victimization Occurring Within and Outside of School, 38 Journal of Youth & Adolescence 1072 (2009). 311 Commenters cited: Girls, Inc., 2018 Strong, Smart, and Bold outcomes survey report (2018) (citing David Finklehor et al., The lifetime prevalence of child sexual abuse and sexual assault assessed in late adolescence, 55 Journal of Adolescent Health 3 (2014)). 312 Commenters cited: Charol Shakeshaft, Educator Sexual Misconduct: A Synthesis of Existing Literature (2004) (prepared for the U.S. Dep’t. of Education). 313 Commenters cited: American Association of University Women, Crossing the Line: Sexual Harassment at School (2011). 314 Commenters cited: Robin McDowell et al., Hidden Horror of school sex assaults revealed by AP, Associated Press (May 1, 2017). 315 Commenters cited: Dorothy Espelage et al., Longitudinal Associations Among Bullying, Homophobic Teasing, and Sexual Violence Perpetration Among Middle School Students, 30 Journal of Interpersonal Violence 14 (2014). 316 Commenters cited: American Association of University Women Educational Foundation, Hostile Hallways: Bullying Teasing, and Sexual Harassment in School (2001). E:\FR\FM\19MYR2.SGM 19MYR2 30076 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations alcohol or drug use.317 In another study in which 18,090 high school students completed a survey, 30 percent disclosed sexual harassment victimization (37 percent of females, 21 percent of males) and 8.5 percent reported perpetration (five percent of females, 12 percent of males).318 • In one study designed to examine sexual harassment victimization among American middle school youth (grades five through eight), verbal victimization was more frequent than physical victimization and sexual assault; the types of sexual harassment experienced and the perpetrators varied by sex, race, and grade level; nearly half (43 percent) of middle school students experienced verbal sexual harassment the previous year; 21 percent of middle school students reported having been pinched, touched, or grabbed in a sexual way, 14 percent reported having been the target of sexual rumors, and nine percent had been victimized with sexually explicit graffiti in school locker rooms or bathrooms.319 • One study’s data reveal that, while boys’ violence towards girls comprises a substantial proportion of sexual violence in the middle school population, same-sex violence and girls’ violence towards boys are also prevalent.320 • In the 2010–2011 school year, 36 percent of girls, 24 percent of boys, and 30 percent of all students in grades seven through 12 experienced sexual harassment online.321 • Analysis of the Civil Rights Data Collection for 2015–16, with data from 96,000 public and public charter P–12 educational institutions including magnet schools, special education schools, alternative schools, and juvenile justice facilities showed that: More than three-fourths (79 percent) of the 48,000 public schools with students in grades seven through 12 disclosed zero reported allegations of harassment 317 Commenters cited: Corrine M. Williams et. al., Victimization and Perpetration of Unwanted Sexual Activities Among High School Students: Frequency and Correlates, 20 Violence Against Women 10 (2014). 318 Commenters cited: Emily R. Clear et al., Sexual Harassment Victimization and Perpetration Among High School Students, 20 Violence Against Women 10 (2014). 319 Commenters cited: Dorothy L. Espelage et al., Understanding types, locations, & perpetrators of peer-to-peer sexual harassment in U.S. middle schools: A focus on sex, racial, and grade differences, 71 Children & Youth Serv. Rev. 174 (2016). 320 Commenters cited: Ethan Levin, Sexual Violence Among Middle School Students: The Effects of Gender and Dating Experience, 32 Journal of Interpersonal Violence 14 (2015). 321 Commenters cited: American Association of University Women, Crossing the Line: Sexual Harassment at School (2011). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 or bullying on the basis of sex, showing that students experience far more sexual harassment than schools report.322 Discussion: The data referred to by commenters, among other data, indicates that sexual harassment affects children, adolescents, and students throughout elementary and secondary schools across the country. When sexual harassment constitutes sex discrimination covered by Title IX, the final regulations hold schools accountable for responding in ways that restore or preserve a complainant’s equal access to education. Changes: None. Prevalence Data—Postsecondary Institutions Comments: Many commenters referred the Department to statistics, data, research, and studies showing the prevalence of sexual harassment in postsecondary institutions, including as follows: • One in five college women experience attempted or completed sexual assault in college; 323 some studies state one in four.324 One in 16 men are sexually assaulted while in college.325 One poll reported that 20 percent of women, and five percent of men, are sexually assaulted in college.326 • 62 percent of women and 61 percent of men experience sexual harassment during college.327 • Among undergraduate students, 23.1 percent of females and 5.4 percent of males experience rape or sexual assault; among graduate and undergraduate students 11.2 percent experience rape or sexual assault through physical force, violence, or incapacitation; 4.2 percent have 322 Commenters cited: American Association of University Women, Schools are Still Underreporting Sexual Harassment and Assault (Nov. 2, 2018), https://www.aauw.org/article/ schools-still-underreporting-sexual-harassmentand-assault/. 323 Commenters cited: Christopher Krebs et al., Bureau of Justice Statistics Research and Development Series: Campus Climate Survey Validation Study Final Technical Report (2016); Lisa Wade, American Hookup: The New Culture of Sex on Campus (W.W. Norton & Co. 2016). 324 Commenters cited: The Association of American Universities, Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct (Westat 2015). 325 Commenters cited: National Sexual Violence Resource Center: Info and Stats for Journalists, Statistics About Sexual Violence (2015) (citing National Institute of Justice, The Campus Sexual Assault (CSA) Study: Final Report (2007)). 326 Commenters cited: Kaiser Family Foundation & The Washington Post, Survey of Current and Recent College Students on Sexual Assault (2015). 327 Commenters cited: American Association of University Women Educational Foundation, Drawing the Line: Sexual Harassment on Campus (2005). PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 experienced stalking since entering college.328 • More than 50 percent of college sexual assaults occur in August, September, October, or November, and students are at an increased risk during the first few months of their first and second semesters in college; 84 percent of the women who reported sexually coercive experiences experienced the incident during their first four semesters on campus.329 • Seven out of ten rapes are committed by someone known to the victim; 330 for most women victimized by attempted or completed rape, the perpetrator was a boyfriend, exboyfriend, classmate, friend, acquaintance, or coworker.331 • A study showed that 63.3 percent of men at one university who self-reported acts qualifying as rape or attempted rape admitted to committing repeat rapes.332 • Of college students in fraternity and sorority life, 48.1 percent of females and 23.6 percent of males have experienced nonconsensual sexual contact, compared with 33.1 percent of females and 7.9 percent of males not in fraternity and sorority life.333 • Fifty-eight percent of female academic faculty and staff experienced sexual harassment across all U.S. colleges and universities, and one in ten female graduate students at most major research universities reports being sexually harassed by a faculty member.334 • Twenty-one to 38 percent of college students experience faculty/staffperpetrated sexual harassment and 39 to 64.5 percent experience student328 Commenters cited: Rape, Abuse & Incest National Network (RAINN), Campus Sexual Violence: Statistics, https://www.rainn.org/ statistics/campus-sexual-violence. 329 Commenters cited: Matthew Kimble et al., Risk of Unwanted Sex for College Women: Evidence for a Red Zone, 57 Journal of Am. Coll. Health 3 (2010). 330 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics, National Crime Victimization Survey (2015). 331 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, National Institute of Justice, Research Report: The Sexual Victimization of College Women (2000). 332 Commenters cited: David Lisak & Paul Miller, Repeat Rape and Multiple Offending Among Undetected Rapists, 17 Violence & Victims 1 (2002). 333 Commenters cited: Jennifer J. Freyd, The UO Sexual Violence and Institutional Betrayal Surveys: 2014, 2015, and 2015–2016, https:// dynamic.uoregon.edu/jjf/campus/. 334 Commenters cited: National Academies of Science, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine (Frasier F. Benya et al. eds., 2018). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations perpetrated sexual harassment during their time at their university.335 Discussion: The data referred to by commenters, among other data, indicates that sexual harassment affects students and employees in postsecondary institutions across the country. When sexual harassment constitutes sex discrimination covered by Title IX, the final regulations hold colleges and universities accountable for responding in ways that restore or preserve a complainant’s equal access to education. Changes: None. Prevalence Data—Women Comments: Many commenters referred the Department to statistics, data, research, and studies showing the prevalence of sexual harassment against girls and women, including as follows: • Sexual assault disproportionately harms women; 84 percent of sexual assault and rape victims are female.336 Among females, the highest rate of domestic abuse victimization occurs between the ages of 16–24, ages when someone is most likely to be a high school or college student.337 Among college-aged female homicide victims, 42.9 percent were killed by an intimate partner.338 • One out of every six American women has been the victim of an attempted or completed rape in her lifetime (14.8 percent completed rape, 2.8 percent attempted rape for a total of 17.6 percent).339 The national raperelated pregnancy rate is five percent among victims of reproductive age (aged 12 to 45); among adult women an estimated 32,101 pregnancies result from rape each year.340 Fifty-six percent of girls ages 14–18 who are pregnant or parenting are kissed or touched without their consent.341 335 Commenters cited: Marina N. Rosenthal et al., Still second class: Sexual harassment of graduate students, 40 Psychol. of Women Quarterly 3 (2016). 336 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics, National Crime Victimization Survey (2017). 337 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics Factbook: Violence by Intimates (1998). 338 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Homicide Trends in the United States: 1980–2008: Annual Rates for 2009 and 2010 (2011). 339 Commenters cited: Rape, Abuse & Incest National Network (RAINN), Campus Sexual Violence: Statistics, https://www.rainn.org/ statistics/campus-sexual-violence. 340 Commenters cited: Melissa M. Holmes, Raperelated pregnancy: Estimates and descriptive characteristics from a national sample of women, 17 Am. J. of Obstetrics & Gynecology 2 (1996). 341 Commenters cited: National Women’s Law Center (NWLC), Let Her Learn: Stopping Push Out for Girls who are Pregnant or Parenting (2017). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 • A few commenters argued that the prevalence rate for sexual assault against college-age women is lower than shown by the above data, with the rate of rape and sexual assault being lower for female college students (6.1 per 1,000) than for female college-age nonstudents (7.6 per 1,000).342 Discussion: The data referred to by commenters, among other data, indicates that sexual harassment affects girls and women in significant numbers. When sexual harassment constitutes sex discrimination covered by Title IX, the final regulations hold schools accountable for responding in ways that restore or preserve a complainant’s equal access to education. Changes: None. Prevalence Data—Men Comments: Many commenters referred the Department to statistics, data, research, and studies showing the prevalence of sexual harassment against boys and men, including as follows: • Approximately one in six men have experienced some form of sexual violence in their lifetime.343 Sixteen percent of men were sexually assaulted by the age of 18.344 Approximately one in 33 American men has experienced an attempted or completed rape in their lifetime.345 • College-age male victims accounted for 17 percent of rape and sexual assault victimizations against students and four percent against nonstudents.346 Approximately 15 percent of college men are victims of forced sex during their time in college.347 • Approximately 26 percent of gay men, and 37 percent of bisexual men, experience rape, physical violence, or stalking by an intimate partner.348 342 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics Special Report: Rape and Sexual Assault Victimization Among College-Age Females, 1995– 2013 (2014). 343 Commenters cited: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report (Nov. 2011). 344 Commenters cited: Shanta R. Dube, Long-term consequences of childhood sexual abuse by gender of victim, 28 Am. J. of Preventive Med. 5 (2005). 345 Commenters cited: Rape, Abuse, & Incest National Network (RAINN), Scope of the Problem: Statistics, https://www.rainn.org/statistics/scopeproblem. 346 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Special Report: Rape and Sexual Assault Victimization Among College-Age Females, 1995– 2013 (2014). 347 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, National Institute of Justice, Research Report: The Sexual Victimization of College Women (2000). 348 Commenters cited: Human Rights Campaign, Sexual Assault and the LGBTQ Community, https:// PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 30077 • Men are more likely to be assaulted than falsely accused of assault.349 Discussion: The data referred to by commenters, among other data, indicates that sexual harassment affects boys and men in significant numbers. When sexual harassment constitutes sex discrimination covered by Title IX, the final regulations hold schools accountable for responding in ways that restore or preserve a complainant’s equal access to education. Changes: None. Prevalence Data—LGBTQ Persons Comments: Many commenters referred the Department to statistics, data, research, and studies showing the prevalence of sexual harassment against LGBTQ individuals, including as follows: • A 2015 survey found that 47 percent of transgender people are sexually assaulted at some point in their lifetime: Transgender women have been sexually assaulted at a rate of 37 percent; nonbinary people assigned male at birth have been sexually assaulted at a rate of 41 percent; transgender men have been sexually assaulted at a rate of 51 percent; and nonbinary people assigned female at birth have been sexually assaulted at a rate of 58 percent.350 Another study, which drew from interviews of over 16,500 adults, indicated that gay and bisexual individuals experienced a higher lifetime prevalence of sexual violence than their heterosexual counterparts.351 • A study found that transgender students, who represented 1.8 percent of high school respondents to a survey, faced far higher rates of assault and harassment than their peers: 24 percent of transgender students had been forced to have sexual intercourse, compared to four percent of male cisgender students and 11 percent of female cisgender students; 23 percent of transgender students experienced sexual dating www.hrc.org/resources/sexual-assault-and-the-lgbtcommunity; Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, The National Intimate Partner and Sexual Violence Survey (NISVS): An Overview of 2010 Findings on Victimization by Sexual Orientation. 349 Commenters cited: Tyler Kingkade, Males are More Likely to Suffer Sexual Assault Than to be Falsely Accused of it, The Huffington Post (Dec. 8, 2014). 350 Commenters cited: National Center for Transgender Equality, The Report of the 2015 U.S. Transgender Survey (Dec. 2016). 351 Commenters cited: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, The National Intimate Partner and Sexual Violence Survey (NISVS): An Overview of 2010 Findings on Victimization by Sexual Orientation. E:\FR\FM\19MYR2.SGM 19MYR2 30078 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations violence, compared to four percent of male cisgender students and 12 percent of female cisgender students; more than one-quarter (26 percent) experienced physical dating violence, compared to six percent of male cisgender students and nine percent of female cisgender students; transgender students were more likely to face bullying and violence in school overall compared to cisgender students.352 • Lesbian, gay, and bisexual students are more likely to experience nonconsensual sexual contact by physical force or incapacitation than heterosexual students: 14 percent of gay or lesbian students and 25 percent of bisexual students reported experiencing nonconsensual sexual contact while in college or graduate school compared to 11 percent of heterosexual students.353 • A 2018 study found that 57.3 percent of LGBTQ students were sexually harassed at school during the past year.354 Another survey showed that 38 percent of LGBTQ girls had been kissed or touched without their consent.355 Eighty-six percent of high school transgender individuals had experienced a form of sexual violence due to their gender identity, often perpetrated by other students.356 Nearly 25 percent of transgender, genderqueer, and gender nonconforming or questioning students experience sexual violence during their undergraduate education.357 • Twenty-two percent of lesbian, gay, and bisexual youth have experienced sexual violence, more than double the rate reported by heterosexual youth.358 According to another survey: 44 percent 352 Commenters cited: Michelle M. Johns et al., Transgender Identity and Experiences of Violence Victimization, Substance Use, Suicide Risk, and Sexual Risk Behaviors Among High School Students—19 States and Large Urban School Districts, 2017, 68 Morbidity & Mortality Weekly Report 3 (Jan. 25, 2019). 353 Commenters cited: The Association of American Universities, Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct (Westat 2015). 354 Commenters cited: Gay, Lesbian and Straight Education Network (GLSEN), The 2017 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth in Our Nation’s Schools (2018). 355 Commenters cited: National Women’s Law Center (NWLC), Let Her Learn: Stopping Push Out for Girls who are Pregnant or Parenting (2017). 356 Commenters cited: Rebecca L. Stotzer, Violence Against Transgender People: A Review of United States Data, 14 Aggression & Violent Behavior 3 (2009). 357 Commenters cited: The Association of American Universities, Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct (Westat 2015). 358 Commenters cited: Centers for Disease Control & Prevention, Division of Adolescent & School Health, Youth Risk Behavior Survey Data Summary and Trends Report: 2007–2017 (2018). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 of lesbians and 61 percent of bisexual women experience rape, physical violence, or stalking by an intimate partner, compared to 35 percent of heterosexual women; 26 percent of gay men and 37 percent of bisexual men experience rape, physical violence, or stalking by an intimate partner, compared to 29 percent of heterosexual men; 46 percent of bisexual women have been raped, compared to 17 percent of heterosexual women; 13 percent of lesbians and 22 percent of bisexual women have been raped by an intimate partner, compared to nine percent of heterosexual women; 40 percent of gay men and 47 percent of bisexual men have experienced sexual violence other than rape, compared to 21 percent of heterosexual men; and 46.4 percent of lesbians, 74.9 percent of bisexual women, and 43.3 percent of heterosexual women, reported sexual violence other than rape during their lifetimes, while 40.2 percent of gay men, 47.4 percent of bisexual men, and 20.8 percent of heterosexual men reported sexual violence other than rape during their lifetimes.359 • More than eight in ten LGBTQ students experienced harassment or assault at school and more than half (57 percent) were sexually harassed at school; 70 percent of LGBTQ students said that they were verbally harassed, 29 percent said that they were physically harassed, and 12 percent said that they were physically assaulted because of their sexual orientation; 60 percent of LGBTQ students said that they were verbally harassed, 24 percent said that they were physically harassed, and 11 percent said that they were physically assaulted because of their gender expression.360 • A survey of students in grades nine through 12 found that lesbian, gay, and bisexual (‘‘LGB’’) students were more likely to say that they experienced bullying than heterosexual students: One-third of LGB students said that they had been bullied on school property in the past year compared to 17 percent of heterosexual students; 27 percent of LGB students reported that they had been electronically bullied in the past year compared to 13 percent of heterosexual students; nearly half of middle and high school students report 359 Commenters cited: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, The National Intimate Partner and Sexual Violence Survey (NISVS): An Overview of 2010 Findings on Victimization by Sexual Orientation. 360 Commenters cited: Gay, Lesbian and Straight Education Network (GLSEN), The 2017 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth in Our Nation’s Schools (2018). PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 being sexually harassed, with harassment especially extensive among LGBTQ students, causing nearly onethird to say that they felt unsafe or uncomfortable enough to miss school.361 • Seventy-three percent of LGBTQ college students have been sexually harassed, compared to 61 percent of non-LGBTQ students; 362 75.2 percent of undergraduate and 69.4 percent of graduate/professional students who identify as transgender, queer, and gender nonconforming reported being sexually harassed, compared with 62 percent of cisgender female undergraduates, 43 percent of cisgender male undergraduates, 44 percent of cisgender female graduate students, and 30 percent of cisgender male graduate students.363 Discussion: The data referred to by commenters, among other data, indicates that sexual harassment affects LGBTQ individuals in significant numbers. When sexual harassment constitutes sex discrimination covered by Title IX, the final regulations hold schools accountable for responding in ways that restore or preserve a complainant’s equal access to education. Changes: None. Prevalence Data—Persons of Color Comments: Many commenters referred the Department to statistics, data, research, and studies showing the prevalence of sexual harassment against persons of color, including as follows: • Women who have intersecting identities, for example women who are women of color and LGBTQ, experience certain types of harassment, including gender and sexual harassment, at even greater rates than other women, and often experience sexual harassment as a manifestation of both gender and other kinds of discrimination.364 A survey of 1,003 girls between the ages of 14 and 18, with a focus on Black, Latina, Asian, Native American, and LGBTQ individuals, found that 31 percent had 361 Commenters cited: Laura Kann et al., Youth Risk Behavior Surveillance—United States, 2017, 67 Morbidity & Mortality Weekly Report 8 (Jun. 15, 2018). 362 Commenters cited: American Association of University Women Educational Foundation, Drawing the Line: Sexual Harassment on Campus (2005). 363 Commenters cited: The Association of American Universities, Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct (Westat 2015). 364 Commenters cited: National Academies of Science, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine (Frasier F. Benya et al. eds., 2018). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations survived sexual assault.365 Of women who identify as multiracial, 32.3 percent are sexually assaulted.366 • Of Black women in school, 16.5 percent reported being raped in high school and 36 percent were raped in college.367 Among Black women, 21.2 percent are survivors of sexual assault.368 Sixty percent of Black girls are sexually harassed before the age of 18.369 • Among Hispanic women, 13.6 percent are survivors of sexual assault.370 • In a 2015 study of 313 participants of Korean, Chinese, Filipino, and other Asian backgrounds: 53.5 percent of female participants reported experiencing sexual violence, including forced sexual relations (12.4 percent), sexual harassment (17.3 percent), unwanted touching (31.7 percent), or pressure to have unwanted sex (25.2 percent); out of all participants, 38.7 percent said they knew someone who had experienced sexual violence, and, of those, 70 percent said they knew two or more survivors. Of male participants, 8.1 percent reported experiencing sexual violence; 56.1 percent of the survivors first experienced sexual violence when they were ten to 19 years old and 26.3 percent when they were in their twenties.371 • Of Asian Pacific Islander women, 23 percent experienced sexual violence. Of Asian Pacific Islander men, nine percent experienced sexual violence.372 365 Commenters cited: National Women’s Law Center (NWLC), Let Her Learn: Stopping Push Out for Girls who are Pregnant or Parenting (2017). 366 Commenters cited: Matthew J. Breiding et al., Prevalence and Characteristics of Sexual Violence, Stalking, and Intimate Partner Violence Victimization—National Intimate Partner and Sexual Violence Survey, United States, 2011, 63 Morbidity & Mortality Weekly Report 8 (Sept. 5, 2014). 367 Commenters cited: Carolyn M. West & Kalimah Johnson, Sexual Violence in the Lives of African American Women: Risk, Response, and Resilience, VAWnet.org: National Online Resource Center on Domestic Violence (2013). 368 Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, STOP SV: A Technical Package to Prevent Sexual Violence (2016). 369 Commenters cited: Hannah Giorgis, Many women of color don’t go to the police after sexual assault for a reason, The Guardian (Mar. 25, 2015). 370 Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, STOP SV: A Technical Package to Prevent Sexual Violence (2016). 371 Commenters cited: KAN–WIN, Community Survey Report on Sexual Violence in the Asian American/Immigrant Community (2017), https:// www.kanwin.org/downloads/sareport.pdf. 372 Commenters cited: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, The National Intimate Partner and Sexual Violence Survey (NISVS): 2010– 2012 State Report (2017). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 • Of women who identify as American Indian or Alaska Native, over one-quarter have experienced rape and 56 percent have experienced rape, physical violence, or stalking by an intimate partner in their lifetime.373 Seven out of every 1,000 American Indian (including Alaska Native) women experience rape or sexual assault, compared to two out of every 1,000 women of all races.374 Discussion: The data referred to by commenters, among other data, indicates that sexual harassment affects persons of color, particularly girls and women of color and persons with intersecting identities, in significant numbers. When sexual harassment constitutes sex discrimination covered by Title IX, the final regulations hold schools accountable for responding in ways that restore or preserve a complainant’s equal access to education. Changes: None. Prevalence Data—Individuals With Disabilities Comments: Many commenters referred the Department to statistics, data, research, and studies showing the prevalence of sexual harassment against individuals with disabilities, including as follows: • Students with disabilities are 2.9 times more likely than their peers to be sexually assaulted.375 As many as 40 percent of women with disabilities experience sexual assault or physical violence in their lifetimes.376 Almost 20 percent of women with disabilities will have undesired sex with an intimate partner.377 • An exploratory study conducted to learn the rates of abuse among university students who have identified as having a disability found: 22 Percent of participants reported some form of abuse over the last year and nearly 62 percent had experienced some form of physical or sexual abuse before the age of 17; only 27 percent reported the 373 Commenters cited: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report (Nov. 2011). 374 Commenters cited: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, American Indians and Crime (1999). 375 Commenters cited: National Women’s Law Center (NWLC), Let Her Learn: Stopping Push Out for Girls who are Pregnant or Parenting (2017). 376 Commenters cited: University of Michigan Sexual Assault Awareness and Prevention Center, Sexual Assault and Survivors with Disabilities, https://sapac.umich.edu/article/56. 377 Commenters cited: Disabled World, People with Disabilities and Sexual Assault (2012), https:// www.disabled-world.com/disability/sexuality/ assaults.php. PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 30079 incident, and 40 percent of students with disabilities who reported abuse in the past year said they had little or no knowledge of abuse-related resources.378 • More than 90 percent of all people with developmental disabilities will experience sexual assault.379 Forty-nine percent of people with developmental disabilities who are victims of sexual violence will experience ten or more abusive incidents.380 Thirty percent of men and 80 percent of women with intellectual disabilities have been sexually assaulted.381 • Individuals with intellectual disabilities are sexually assaulted and raped at more than seven times the rate of individuals without disabilities; women with intellectual disabilities are 12 times more likely to be sexually assaulted or raped than women without disabilities.382 • Fifty-four percent of boys who are deaf and 25 percent of girls who are deaf, have been sexually assaulted, compared to ten percent of boys who are hearing and 25 percent of girls who are hearing.383 Discussion: The data referred to by commenters, among other data, indicates that sexual harassment affects individuals with disabilities in significant numbers. When sexual harassment constitutes sex discrimination covered by Title IX, the final regulations hold schools accountable for responding in ways that restore or preserve a complainant’s equal access to education. Changes: None. Prevalence Data—Immigrants Comments: Commenters referred the Department to data showing that immigrant girls and young women are almost twice as likely as their non378 Commenters cited: Patricia A. Findley et al., Exploring the experiences of abuse of college students with disabilities, 31 Journal of Interpersonal Violence 17 (2015). 379 Commenters cited: University of Michigan Sexual Assault Awareness and Prevention Center, Sexual Assault and Survivors with Disabilities, https://sapac.umich.edu/article/56. 380 Commenters cited: Valenti-Hein & Schwartz, The Sexual Abuse Interview for Those with Developmental Disabilities (James Stanfield Co. 1995). 381 Commenters cited: Disabled World, People with Disabilities and Sexual Assault (2012), https:// www.disabled-world.com/disability/sexuality/ assaults.php. 382 Commenters cited: Joseph Shapiro, The Sexual Assault Epidemic No One Talks About, NPR (Jan. 8, 2018). 383 Commenters cited: Disabled World, People with Disabilities and Sexual Assault (2012), https:// www.disabled-world.com/disability/sexuality/ assaults.php. E:\FR\FM\19MYR2.SGM 19MYR2 30080 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations immigrant peers to have experienced incidents of sexual assault.384 Discussion: The data referred to by commenters, among other data, indicates that sexual harassment affects immigrant girls and women in significant numbers. When sexual harassment constitutes sex discrimination covered by Title IX, the final regulations hold schools accountable for responding in ways that restore or preserve a complainant’s equal access to education. Changes: None. Impact Data Comments: Many commenters referred the Department to statistics, data, research, and studies showing the impact of sexual harassment on victims, including as follows: • Among students who are harassed, a vast majority of students (87 percent) report that the harassment had a negative effect on them, causing 37 percent of girls to not want to go to school, versus 25 percent of boys; female students were more likely in every case to say they continued to feel detrimental effects for ‘‘quite a while’’ compared with male students.385 • Approximately half of LGBTQ students who said that they experienced frequent or severe verbal harassment because of their sexual orientation or gender identity missed school at least once a month, and about 70 percent who said they experienced frequent or severe physical harassment missed school more than once a month.386 • In one study of transgender students, of those who faced harassment, 16 percent left college or vocational school because of the severity of the mistreatment they faced; and 17 percent of people who were out as transgender when they were K–12 students said that they experienced such severe harassment as a student that they had to leave school as a result.387 384 Commenters cited: National Immigrant Women’s Advocacy Project, Empowering Survivors: Legal Rights of Immigrant Victims of Sexual Assault (Leslye Orloff ed., 2013), https://www.evawintl.org/ library/documentlibraryhandler.ashx?id=456 (using the term ‘‘immigrant’’ to include documented persons, refugees and migrants, others present in the United States on temporary visas, such as visitors, students, temporary workers, as well as undocumented individuals.). 385 Commenters cited: American Association of University Women, Crossing the Line: Sexual Harassment at School (2011). 386 Commenters cited: Gay, Lesbian and Straight Education Network (GLSEN), The 2017 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth in Our Nation’s Schools (2018). 387 Commenters cited: National Center for Transgender Equality, The Report of the 2015 U.S. Transgender Survey (Dec. 2016). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 • The negative emotional effects of sexual harassment take a toll on girls’ education, resulting in decreased productivity and increased absenteeism from school; in the 2010–2011 school year, 18 percent of abused children and teens did not want to go to school, 13 percent found it hard to study, 17 percent had trouble sleeping, and eight percent stayed home from school.388 • The impact of sexual harassment on students occurs at all grade levels and includes lowered motivation to attend class, paying less attention in class, lower grades, avoiding teachers with a reputation for engaging in harassment, dropping classes, changing majors, changing advisors, avoiding informal activities that enhance the educational experience, feeling less safe on campus, and dropping out of school.389 • Twenty percent of children and youth in schools have an identified mental health problem; 390 bullying, sexual harassment, and sexual assault contribute to mental health challenges for individuals when left unreported. • Adverse childhood experiences can contribute significantly to negative adult physical and mental health outcomes and affect more than 60 percent of adults; every instance of sexual harassment against women undermines their potential for long-term economic productivity and, by extension, the productivity of their family, their community, and the United States.391 • Secondary victimization and institutional betrayal have been shown to exacerbate trauma symptoms following a sexual assault, including increased anxiety, and more than 40 percent of college students who were sexually victimized reported experiences of institutional betrayal.392 • Being a victim of sexual assault can cause both immediate and long-term 388 Commenters cited: American Association of University Women, Crossing the Line: Sexual Harassment at School (2011). 389 Commenters cited: National Academies of Science, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine (Frasier F. Benya et al. eds., 2018). 390 Commenters cited: Amy J. Houtrow & Megumi J. Okumura, Pediatric Mental Health Problems and Associated Burden on Families, 6 Vulnerable Children & Youth Studies 3 (2011). 391 Commenters cited: American Academy of Pediatrics, Adverse Childhood Experiences and the Lifelong Consequences of Trauma (2014), https:// www.aap.org/en-us/Documents/ttb_aces_ consequences.pdf. 392 Commenters cited: Carly Parnitzke Smith & Jennifer J. Freyd, Dangerous Safe Havens: Institutional Betrayal Exacerbates Sexual Trauma, 26 Journal of Traumatic Stress 1 (2013); John Briere & Carol E. Jordan, Violence Against Women: Outcome Complexity and Implications for Assessment and Treatment, 19 Journal of Interpersonal Violence 11 (2004). PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 physical and mental health consequences; at least 89 percent of victims face emotional and physical consequences.393 Approximately 70 percent of rape or sexual assault victims experience moderate to severe distress, a larger percentage than for any other violent crime.394 The dropout rate of sexual harassment victims is much higher than percentage of college students who drop out of school; 34 percent of victims dropout of college.395 Many schools have expelled survivors when their grades suffer as a result of trauma.396 • Eighty-one percent of women and 35 percent of men report significant short- or long-term impacts of sexual assault, such as post-traumatic stress disorder (PTSD); women who are sexually assaulted or abused are over twice as likely to have PTSD, depression, and chronic pain following the violence compared to non-abused women.397 Thirty percent of the college women who said they had been raped contemplated suicide after the incident.398 Male victims of sexual abuse experience problems such as depression, suicidal ideation, anxiety, sexual dysfunction, loss of self-esteem, and long-term relationship difficulties.399 • Rape victims suffer long-term negative outcomes including PTSD, depression, generalized anxiety, eating disorders, sexual dysfunction, alcohol and illicit drug use, nonfatal suicidal behavior and suicidal threats, attempted and completed suicide, physical symptoms in the absence of medical conditions, low self-esteem, self-blame, and severe preoccupations with physical appearances; short-term negative impacts include shock, denial, 393 Commenters cited: Andrew Van Dam, Less than 1% of rapes lead to felony convictions. At least 89% of victims face emotional and physical consequences, The Washington Post (Oct. 6, 2018). 394 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Special Report: Socio-emotional impact of violent crime (2014). 395 Commenters cited: Cecilia Mengo & Beverly M. Black, Violence Victimization on a College Campus: Impact on GPA and School Dropout, 18 Journal of Coll. Student Retention: Research, Theory & Practice 2 (2015). 396 Commenters cited: Alexandra Brodsky, How much does sexual assault cost college students every year, The Washington Post (Nov. 18, 2014). 397 Commenters cited: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report (Nov. 2011). 398 Commenters cited: National Victim Center and Crime Victims Research and Treatment Center, Rape in America: A Report to the Nation (1992). 399 Commenters cited: Lara Stemple, The Sexual Victimization of Men in America: New Data Challenge Old Assumptions, 104 Am. J. of Pub. Health 6 (2014). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations fear, confusion, anxiety, withdrawal, shame or guilt, nervousness, distrust of others, symptoms of PTSD, emotional detachment, sleep disturbances, flashbacks, and mental replay of the assault.400 • If a sexual assault survivor ends up dropping out of high school, the survivor will earn 84 percent less than a typical graduate from a four-year college; student debt is a greater burden for low income students who drop out, as those students will earn significantly less; and dropping out can have dire consequences as the lack of a high school diploma or General Equivalency Diploma (GED) directly correlates with higher risks of experiencing homelessness.401 Discussion: The data referred to by commenters, among other data, indicate that many sexual harassment victims suffer serious, negative consequences. Because sexual harassment causes serious detriment to victims, when sex discrimination covered by Title IX takes the form of sexual harassment, the final regulations require recipients to respond to complainants by offering supportive measures (irrespective of whether the complainant files a formal complaint), and when a complainant chooses to file a formal complaint, requiring remedies for a complainant when a respondent is found responsible. Supportive measures, and remedies, are designed to restore or preserve equal access to education. Recognizing that Title IX governs the conduct of recipients themselves, the Department believes that the final regulations appropriately prescribe the actions recipients must take in response to reports and formal complaints of sexual harassment, so that complainants are not faced with institutional betrayal from a recipient’s refusal to respond, or non-supportive response. Changes: None. Cost Data Comments: Many commenters referred to data showing that rape and 400 Commenters cited: Nicole P. Yuan, The Psychological Consequences of Sexual Trauma, VAWnet.org: National Resource Center on Domestic Violence (2006); Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Division of Violence Prevention, Preventing Sexual Violence (last reviewed by the CDC on Jan. 17, 2020), https://www.cdc.gov/ violenceprevention/sexualviolence/fastfact.html? CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov %2Fviolenceprevention%2Fsexualviolence %2Fconsequences.html; Rape, Abuse, & Incest National Network (RAINN), Victims of Sexual Violence: Statistics, https://www.rainn.org/ statistics/victims-sexual-violence. 401 Commenters cited: Eduardo Porter, Dropping Out of College, and Paying the Price, The New York Times (June 26, 2013). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 sexual assault survivors often incur significant financial costs such as medical and psychological treatment, lost time at work, and leaves of absence from school, including as follows: • The average lifetime cost of being a rape victim is estimated at $122,461, which calculates to roughly $3.1 trillion of lifetime costs across the 25 million reported victims in the United States.402 A single rape costs a victim between $87,000 to $240,776.403 • More than one-fifth of intimate partner rape survivors lose an average of eight days of paid work per assault, and that does not include the subsequent job loss, psychological trauma, and cost (of treatment and to society at large).404 Many commenters asserted that the proposed rules would exacerbate the economic costs suffered by sexual assault survivors. Discussion: The Department understands that sexual assault survivors often incur significant financial costs, both in the short-term and long-term. The final regulations require recipients to offer supportive measures to complainants and provide remedies to complainants when a fair grievance process has determined that a respondent is responsible for sexual harassment. Supportive measures and remedies are designed to restore or preserve equal access to education. The Department believes these responses by recipients will help complainants avoid costs that flow from loss of educational opportunities. Changes: None. Reporting Data Comments: Many commenters referred the Department to statistics, data, research, and studies regarding rates of reporting of sexual harassment and sexual violence, and reasons why some victims do not report their victimization to authorities, including as follows: • Only about half of all adolescent victims of peer-on-peer sexual assault will tell anyone about having been sexually harassed or assaulted and only six percent will actually report the incident to an official who might be able help them. Such underreporting may be due to individual student fears of reporting to school authorities or law 402 Commenters cited: Cora Peterson et al., Lifetime Economic Burden of Rape Among U.S. Adults, 52 Am. J. Preventive Med. 6 (2017). 403 Commenters cited: Ted R. Miller et al., Victim Costs of Violent Crime and Resulting Injuries, 12 Health Affairs 4 (1993). 404 Commenters cited: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Costs of Intimate Partner Violence Against Women in the United States (2003). PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 30081 enforcement; procedural gaps in how institutions record or respond to incidents; a reluctance on the part of institutions to be associated with these problems; or a combination of these factors.405 • At least 35 percent of college students who experience sexual harassment do not report it 406 because shame, fear of retaliation, and fear of not being believed prevent victims from coming forward. Only five to 28 percent of sexual harassment incidents are reported to Title IX offices; less than 30 percent of the most serious incidents of nonconsensual sexual contact are reported to an organization or agency like a university’s Title IX office or law enforcement; the most common reason for not reporting was the victim did not consider the incident serious enough, while other reasons included embarrassment, shame, feeling it would be too emotionally difficult, and lack of confidence that anything would be done about it.407 • Survivors often do not report cases of sexual violence to their schools because they do not know how to report on their campus, because of fear of being disbelieved, or because of fear of having their assault not taken seriously.408 Some survivors choose not to report sexual violence to authorities for a multitude of reasons, one of which is a fear that their perpetrator will retaliate or escalate the violence.409 • Research shows that students are deterred from reporting sexual harassment and assault for the following reasons: Policies that compromise or restrict the victim’s ability to make informed choices about how to proceed; concerns about confidentiality; a desire to avoid public disclosure; uncertainty 405 Commenters cited: Amy M. Young et al., Adolescents’ Experiences of Sexual Assault by Peers: Prevalence and Nature of Victimization Occurring Within and Outside of School, 38 Journal of Youth & Adolescence 1072 (2009). 406 Commenters cited: American Association of University Women Educational Foundation, Drawing the Line: Sexual Harassment on Campus (2005). 407 Commenters cited: The Association of American Universities, Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct (Westat 2015). 408 Commenters cited: Kathryn J. Holland & Lilia M. Cortina, ‘‘It happens to girls all the time’’: Examining sexual assault survivors’ reasons for not using campus supports, 59 Am. J. of Community Psychol. 1–2 (2017). 409 Commenters cited: Marjorie R. Sable et al., Barriers to Reporting Sexual Assault for Women and Men: Perspectives of College Students, 55 Journal of Am. Coll. Health 3 (2006); Ruth E. Fleury et al., When Ending the Relationship Does Not End the Violence, 6 Violence Against Women 12 (2000); T.K. Logan & Robert Walker, Stalking: A Multidimensional Framework for Assessment and Safety Planning, 18 Trauma, Violence, & Abuse 2 (2017). E:\FR\FM\19MYR2.SGM 19MYR2 30082 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations as to whether they can prove the sexual violence or whether the perpetrator will be punished; campus policies on drug and alcohol use; policies requiring victims to participate in adjudication; trauma response; the desire to avoid the perceived or real stigma of having been victimized.410 • According to one study, 20 percent of students ages 18–24 did not report assault because they feared reprisal, nine percent believed the police would not or could not do anything to help, and four percent reported, but not to police.411 • One national survey found that of 770 rapes on campus during the 2014– 2015 academic year, only 40 were reported to authorities under the Clery Act guidelines.412 • Campus sexual assault is grossly underreported with only two percent of incapacitated sexual assault survivors and 13 percent of forcible rape survivors reporting to crisis or healthcare centers and even fewer to law enforcement.413 About 65 percent of surveyed rape victims reported the incident to a friend, a family member, or roommate but only ten percent reported to police or campus officials.414 • Male victims often resist reporting due to contemporary social narratives, including jokes about prison rape, the notion that ‘‘real men’’ can protect themselves, the fallacy that gay male victims likely ‘‘asked for it,’’ and the belief that reporting itself is ‘‘unmasculine.’’ 415 • Some students—especially students of color, undocumented students, LGBTQ students, and students with disabilities—are less likely than their peers to report sexual assault to the police due to increased risk of being subjected to police violence or 410 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, National Institute of Justice, Sexual Assault on Campus: What Colleges and Universities Are Doing About It (2005). 411 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Special Report: Rape and Sexual Assault Victimization Among College-Age Females, 1995– 2013 (2014). 412 Commenters cited: New Jersey Task Force on Campus Sexual Assault, 2017 Report and Recommendations (June 2017). 413 Commenters cited: National Sexual Violence Resource Center: Info and Stats for Journalists, Statistics About Sexual Violence (2015) (citing National Institute of Justice, The Campus Sexual Assault (CSA) Study: Final Report (2007)). 414 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, Office for Victims of Crime, 2017 National Crime Victims’ Rights Week Resource Guide: Crime and Victimization Fact Sheets (2017). 415 Commenters cited: Lara Stemple, The Sexual Victimization of Men in America: New Data Challenge Old Assumptions, 104 Am. J. of Pub. Health 6 (2014). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 deportation.416 Survivors of color may not want to report to the police and add to the criminalization of men and boys of color; for these students, schools are often the only avenue for relief. Many LGBTQ students and students of color may feel mistrustful, unwelcomed, invisible, or discriminated against, which makes reporting their experience of sexual assault even more difficult.417 • LGBTQ students also experience unique barriers that prevent them from reporting these incidents: 418 The most common reason students gave for their failure to report were doubts that the school staff would do anything about the harassment; almost two-thirds (60 percent) of students who did report their harassment said that school staff did nothing in response or just told the students to ignore the harassment; and more than one in five students were told to change their behavior to avoid harassment, such as changing the way they dress or acting less ‘‘gay.’’ Another reason LGBTQ students gave for not reporting was fear they would be ‘‘outed’’ to the school staff or their families, or face additional violence from their harasser. Over 40 percent of LGBTQ students stated that they did not report because they were not comfortable with school staff, often because of the belief that staff was discriminatory or complicit in the harassment. • Sixty-nine percent of sexual abuse survivors said that police officers discouraged them from filing a report and one-third of survivors had police refuse to take their report; 80 percent of sexual assault survivors are reluctant to seek help and 91 percent report feeling depressed after their interaction with law enforcement.419 • Native American women are reluctant to report crimes because of the belief that nothing will be done; according to a 2010 study, the government declined to prosecute 67 percent of sexual abuse, homicide, and 416 Commenters cited: Jennifer Medina, Too Scared to Report Sexual Abuse. The Fear: Deportation, The New York Times (April 30, 2017); National Center for Transgender Equality, The Report of the 2015 U.S. Transgender Survey (Dec. 2016); Audrey Chu, I Dropped Out of College Because I Couldn’t Bear to See My Rapist on Campus, Vice (Sept. 26, 2017). 417 Commenters cited: L. Ebony Boulware, Race and trust in the health care system, 118 Pub. Health Reports 4 (2003). 418 Commenters cited: Gay, Lesbian and Straight Education Network (GLSEN), The 2017 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth in Our Nation’s Schools (2018). 419 Commenters cited: Rebecca Campbell, Survivors’ Help-Seeking Experiences with the Legal and Medical Systems, 20 Violence & Victims 1 (2005). PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 other violent crimes against Native American women.420 • Students with disabilities are less likely to be believed when they report sexual harassment experiences and often have greater difficulty describing the harassment they experience, because of stereotypes that people with disabilities are less credible or because they may have greater difficulty describing or communicating about the harassment they experienced, particularly if they have a cognitive or developmental disability.421 Discussion: The Department appreciates commenters’ concerns that sexual harassment is underreported and references to data explaining the variety of factors that contribute to complainants choosing not to report incidents of sexual harassment. We have revised the final regulations in several ways in order to provide students, employees, and third parties with clear, accessible reporting channels, predictability as to how a recipient must respond to a report, informed options on how a complainant may choose to proceed, and requirements that Title IX personnel serve impartially, free from bias. Under the final regulations, any person may report sexual harassment to trigger the recipient’s response obligations, and the complainant (i.e., the person alleged to be the victim) retains the right to receive available supportive measures irrespective of whether the complainant also decides to file a formal complaint that initiates a grievance process. To emphasize that any person may report sexual harassment (not just the complainant), we have revised § 106.8 to state that any person may report sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sexual harassment) using the contact information listed for the Title IX Coordinator, which must include an office address, telephone number, and email address, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report. In elementary and secondary schools, § 106.30 defining ‘‘actual knowledge’’ now provides that notice of sexual harassment to any employee triggers the recipient’s response 420 Commenters cited: Gender Based Violence and Intersecting Challenges Impacting Native American & Alaskan Village Communities, VAWnet.org: National Online Resource Center on Domestic Violence (2016), https://vawnet.org/sc/ gender-based-violence-and-intersecting-challengesimpacting-native-american-alaskan-village. 421 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, National Institute for Justice, The Many Challenges Facing Sexual Assault Survivors with Disabilities (2017). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations obligations, and in postsecondary institutions, students retain more autonomy and control over deciding whether, when, or to whom to disclose a sexual harassment experience without automatically triggering a report to the Title IX office.422 The Department therefore aims to give every complainant (i.e., person alleged to be the victim) and all third parties clear reporting channels (which differ for postsecondary institution students than for elementary and secondary school students), and predictability as to the recipient’s response obligations (i.e., under revised § 106.44(a) the Title IX Coordinator must contact the complainant to discuss supportive measures, consider the complainant’s wishes with respect to supportive measures, and explain the option for filing a formal complaint). Every Title IX Coordinator must be free from conflicts of interest and bias and, under revised § 106.45(b)(1)(iii), trained in how to serve impartially and avoid prejudgment of the facts at issue. No recipient is permitted to ignore a sexual harassment report, regardless of the identity of the person alleged to have been victimized, and whether or not a school administrator might be inclined to apply harmful stereotypes against believing complainants generally or based on the complainant’s personal characteristics or identity. The Department will enforce the final regulations vigorously to ensure that each complainant receives the response owed to them by the recipient. We have added § 106.71 prohibiting retaliation against any individual exercising Title IX rights (including the right to refuse to participate in a grievance process). When complainants do decide to initiate a grievance process, or participate in a grievance process, recipients also may choose to offer informal resolution processes as alternatives to a full investigation and adjudication of the formal complaint, with the voluntary consent of both the complainant and respondent, which may encourage some complainants to file a formal complaint where they may have been reluctant to do so if a full investigation and adjudication was the only option. Where a respondent is found responsible for sexual harassment as defined in § 106.30, the recipient must provide remedies to the complainant designed to restore or preserve the complainant’s equal access to education. In response to comments 422 See discussion in the ‘‘Actual Knowledge’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 concerned that such remedies may not be effective, the final regulations expressly require the Title IX Coordinator to be responsible for the effective implementation of remedies. The final regulations present a consistent, predictable framework for when and how a recipient must respond to Title IX sexual harassment. Although reporting sexual harassment is often inherently difficult, complainants who desire supportive measures, or factual investigation and adjudication, or both, may expect prompt, meaningful responses from their schools, colleges, or universities. Changes: We have revised § 106.8 to state that any person may report sexual harassment (whether or not the person reporting is the person alleged to be the victim of sexual harassment) by using the contact information listed for the Title IX Coordinator, which must include an office address, telephone number, and email address; reports may be made at any time, including during non-business hours, by using the telephone number or email address or by mailing to the office address. We have revised § 106.30 defining ‘‘actual knowledge’’ to provide that notice of sexual harassment to any elementary and secondary school employee constitutes actual knowledge to the recipient, and to state that ‘‘notice’’ includes but is not limited to reporting to the Title IX Coordinator as described in § 106.8(a). We have revised § 106.44(a) to specifically require the Title IX Coordinator to contact the complainant to discuss supportive measures, consider the complainant’s wishes with respect to supportive measures, and explain the process for filing a formal complaint. We have revised § 106.45(b)(1)(iii) to require that Title IX personnel be trained on how to serve impartially, without prejudgment of the facts. We have added § 106.71 prohibiting retaliation against any person exercising rights under Title IX, and § 106.45(b)(7)(iv) requiring Title IX Coordinators to be responsible for effective implementation of any remedies. Stereotypes/Punishment for ‘‘Lying’’ Comments: Some commenters asserted that the proposed rules will be particularly harmful to women and girls of color, who experience explicit and implicit bias in the investigation of claims of sexual harassment and assault. Commenters argued that due to harmful race and sex stereotypes that label women of color as ‘‘promiscuous,’’ schools are more likely to ignore, blame, and punish women and girls of color PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 30083 who report sexual harassment.423 Student concerns about reporting are especially common among members of historically marginalized communities, who are often more likely to be disbelieved or even punished by schools for reporting sexual assault. Commenters stated that Black women and girls are commonly stereotyped as ‘‘Jezebels,’’ Latina women and girls as ‘‘hot-blooded,’’ Asian American and Asian Pacific Islander women and girls as ‘‘submissive, and naturally erotic,’’ Native American women and girls as ‘‘sexually violable as a tool of war and colonization,’’ and multiracial women and girls as ‘‘tragic and vulnerable, historically, products of sexual and racial domination.’’ Commenters stated that schools are also more likely to punish Black women and girls by labeling them as aggressors based on stereotypes that they are ‘‘angry’’ and ‘‘aggressive.’’ Commenters pointed out that the Department’s 2013–14 Civil Rights Data Collection shows that Black girls are five times more likely than white girls to be suspended in K–12, and that while Black girls represented 20 percent of all preschool enrolled students, they were 54 percent of preschool students who were suspended. Commenters argued that schools should require all officials involved in Title IX proceedings to attend implicit bias trainings. One commenter argued that the negative effects of harmful stereotypes are exacerbated by the fact that the proposed rules would allow schools to punish students whom the school believes are lying, and this could have a significant effect on survivors of color. Commenters asserted that many Black girls who defend themselves against perpetrators are often misidentified as the aggressors. Similarly, commenters asserted that the proposed rules would allow a school to punish any person, including a witness, who ‘‘knowingly provides false information’’ to the school, which makes it even easier for schools to punish girls and women of color who report sexual harassment for ‘‘lying’’ about it, when such a conclusion by the school is often based 423 Commenters cited: Nancy Chi Cantalupo, And Even More of Us Are Brave: Intersectionality & Sexual Harassment of Women Students of Color, 42 Harv. J. of L. & Gender 1 (2018); National Women’s Law Center & Girls for Gender Equity, Listening Session on the Needs of Young Women of Color (2015); Sonja C. Tonnesen, Commentary: ‘‘Hit It and Quit It’’: Responses to Black Girls’ Victimization in School, 28 Berkeley J. of Gender, L. & Justice 1 (2013); NAACP Legal Defense and Educational Fund, Inc. & National Women’s Law Center, Unlocking Opportunity for African American Girls: A Call to Action for Educational Equity (2014). E:\FR\FM\19MYR2.SGM 19MYR2 30084 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations on negative stereotypes rather than the truth. Commenters also expressed concern that many students who report sexual assault and other forms of sexual harassment to their school face discipline instead of support: For example, schools punish complainants for engaging in so-called ‘‘consensual’’ sexual activity; for engaging in premarital sex; for defending themselves against their harassers; or for merely talking about their assault with other students in violation of a ‘‘gag order’’ or nondisclosure agreement imposed by their school. Discussion: The Department shares the concerns of commenters who asserted, and cited to data and articles showing, that some complainants, including or especially girls of color, face school-level responses to their reports of sexual harassment infected by bias, prejudice, or stereotypes. In response to such concerns, the Department adds to § 106.45(b)(1)(iii), prohibiting Title IX Coordinators, investigators, and decision-makers, and persons who facilitate informal resolution processes from having conflicts of interest or bias against complainants or respondents generally, or against an individual complainant or respondent, training that also includes ‘‘how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.’’ No complainant reporting Title IX sexual harassment or respondent defending against allegations of sexual harassment should be ignored or be met with prejudgment, and the final regulations require recipients to meet response obligations impartially and free from bias. The Department will vigorously enforce the final regulations in a manner that holds recipients responsible for responding to complainants, and treating all parties during any § 106.45 grievance process, impartially without prejudgment of the facts at issue or bias, including bias against an individual’s sex, race, ethnicity, sexual orientation, gender identity, disability or immigration status, financial ability, or other characteristic. Any person can be a complainant, and any person can be a respondent, and every individual is entitled to impartial, unbiased treatment regardless of personal characteristics. The Department declines to specify that training of Title IX personnel must include implicit bias training; the nature of the training required under § 106.45(b)(1)(iii) is left to the recipient’s discretion so long as it achieves the provision’s directive that such training provide instruction on how to serve impartially and avoid VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 prejudgment of the facts at issue, conflicts of interest, and bias, and that materials used in such training avoid sex stereotypes. In response to commenters’ concerns that biases and stereotypes may lead a recipient to punish students reporting sexual harassment allegations, the Department adds § 106.71(a) to expressly prohibit retaliation and specifically state that intimidation, threats, coercion, discrimination, or charging an individual with a code of conduct violation, arising out of the same facts or circumstances as a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX, constitutes retaliation. This provision draws recipients’ attention to the fact that punishing a complainant with nonsexual harassment conduct code violations (e.g., ‘‘consensual’’ sexual activity when the complainant has reported the activity to be nonconsensual, or underage drinking, or fighting back against physical aggression) is retaliation when done for the purpose of deterring the complainant from pursuing rights under Title IX. The Department notes that this section applies to respondents as well. In further response to commenters’ concerns about parties being unfairly punished for lying, § 106.71(b)(2) provides that charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding does not constitute retaliation but a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith. This provision leaves open the possibility that punishment for lying or making false statements might be retaliation, unless the recipient has concluded that the party made a materially false statement in bad faith (and that conclusion cannot be based solely on the outcome of the case). While commenters are correct that § 106.45(b)(2) requires the written notice of allegations to inform the parties of any provision in the recipient’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process, this provision appropriately alerts parties where the recipient’s own code of conduct has a policy against making false statements during a disciplinary proceeding so that both parties understand that risk. Section 106.71 protects complainants— and respondents and witnesses—from being charged with code of conduct PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 violations arising from the same facts or circumstances as sexual harassment allegations if such a charge is brought for the purpose of curtailing rights or privileges secured by Title IX or these final regulations, and leaves open the possibility that punishment for lying might be retaliation unless the disciplined party made a materially false statement in bad faith. The Department notes that commenters’ concerns that complainants are sometimes punished unfairly for merely talking about their assault with fellow students in violation of a school-imposed ‘‘gag order’’ is addressed by § 106.45(b)(5)(iii). Changes: The Department has revised § 106.45(b)(1)(iii) to include in the required training how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. We have added § 106.71(a), which prohibits retaliation and states that charging an individual with a code of conduct violation that does not involve sexual harassment but arises out of the same facts or circumstances as sexual harassment allegations, for the purpose of interfering with rights under Title IX, constitutes retaliation. The Department has also added § 106.71(b)(2) to provide that charging an individual with a code of conduct violation for making a materially false statement in bad faith does not constitute retaliation, provided that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a such a false statement. False Allegations Comments: A number of commenters referred the Department to statistics, data, research, and studies relating to the frequency of false accusations of sexual misconduct. Most commenters who raised the issue of false allegations cited data for the proposition that somewhere between two to ten percent of sexual assault reports are false or unfounded.424 Commenters asserted that despite the low frequency of false allegations, police officers tend to believe false allegations of rape are much more common than they actually 424 Commenters cited: National Sexual Violence Resource Center, False Reporting: Overview (2012); David Lisak et al., False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases, 16 Violence Against Women 12 (2010); Kimberly A. Lonsway, et al., False reports: moving beyond the issue, 3 The Voice 1 (2009); U.S. Dep’t. of Justice, Federal Bureau of Investigation, Crime in the United States: 1996 Uniform Crime Reports (1997); State of Victoria, Office of Women’s Policy, Study of Reported Rapes in Victoria 2000–2003: Summary Research Report (2006). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations are,425 reflecting a society-wide misconception about women falsely alleging rape. Many commenters concluded that such data shows that nationwide, overreporting and false allegations are not nearly as concerning as underreporting and perpetrators ‘‘getting away with it,’’ and thus protection of respondents from false allegations should not be the motive or purpose of Title IX rules. Other commenters argued that whether the rate of false allegations is as low as two to ten percent or somewhat higher, the reality is that some complainants do bring false or unfounded accusations for a variety of reasons.426 A few commenters referred to the Duke lacrosse rape case and the University of Virginia gang rape situation as specific instances where rape accusations were revealed to be false only after prejudgment of the facts in favor of the complainants had led to unfair penalization of the accused students. One commenter referred to a 2017 National Center for Higher Education Risk Management (NCHERM) report that noted that the recent trend of increased reports ‘‘brings allegations of all kinds out of the woodwork, some based strongly in fact, others that are baseless, and most that are somewhere in between.’’ 427 425 Commenters cited: David Lisak et al., False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases, 16 Violence Against Women 12 (2010). 426 Commenters cited, e.g., Cassia Spohn & Katharine Tellis, Policing and Prosecuting Sexual Assault in Los Angeles City and County: A Collaborative Study in Partnership with the Los Angeles Police Department, the Los Angeles County Sheriff’s Department, and the Los Angeles County District Attorney’s Office (2012) (‘‘Complainants’ motivations for filing false reports, which fell into five overlapping categories, included a desire to avoid trouble or a need for an alibi for consensual sex with someone other than a current partner, a desire to retaliate against a current or former partner, a need for attention or sympathy, and guilt or remorse as a result of consensual sexual activity. Many complainants in the unfounded cases also had mental health issues that made it difficult for them to separate fact from fantasy.’’). 427 Commenters cited: National Center for Higher Education Risk Management (NCHERM), The 2017 NCHERM Group Whitepaper: Due Process and the Sex Police 15 (2017) (‘‘What is needed for all of our students is a balanced process that centers on their respective rights while showing favoritism to neither. Not only is that best, it is required by law. Title IX Coordinators write to us, worried that their annual summaries show that they are finding no violation of policy 60% of the time in their total case decisions. They feel like somehow that is wrong, or not as it should be, as if there is some proper ratio of findings that we are supposed to be reaching. . . . With all the training and education being directed at students, more are coming forward, and that education brings allegations of all kinds out of the woodwork, some based strongly in fact, others that are baseless, and most that are somewhere in between.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 One commenter, on behalf of an organization representing student affairs professionals in higher education, described campus sexual assault proceedings as complicated under the best of circumstances because these cases involve navigating allegations that frequently involve different personal recollections of what happened, with few or no witnesses or physical evidence, and possibly colored by alcohol use by one or both parties. Commenters argued that just because a victim does not have corroborating evidence does not mean that a sexual assault claim is false. Discussion: Under the final regulations, recipients must offer supportive measures to a complainant; the final regulations make this an explicit part of a recipient’s prompt, non-deliberately indifferent response.428 Such a requirement advances the nondiscrimination mandate of Title IX by imposing an obligation on recipients to support complainants even without a factual determination regarding the allegations. In order to determine that a complainant has been victimized and is entitled to remedies (which, unlike supportive measures, need not avoid burdening a respondent),429 allegations of Title IX sexual harassment must be resolved through the § 106.45 grievance process, designed to reach reliable factual determinations. This approach is necessary to promote accurate resolution of allegations in each situation presented in a formal complaint, regardless of how frequently or infrequently false accusations statistically occur. The Department disputes that a choice must be made between caring about underreporting and caring about overreporting, or prioritizing protection of complainants’ right to receive support and remedies, over protection of respondents from unfounded accusations. The Department understands that false allegations may occur infrequently, but believes that in every case in which Title IX sexual harassment is alleged, the facts must be resolved accurately to further the nondiscrimination mandate of Title IX, including providing remedies to victims and ensuring that no party is treated differently based on sex. Under the final regulations, complainants are entitled to 428 Section 106.44(a). final regulations revise § 106.45(b)(1)(i) to expressly state that remedies, unlike supportive measures, may be punitive or disciplinary and need not avoid burdening the respondent. This distinction between supportive measures and remedies is because remedies are required after a respondent has been determined responsible under a grievance process that complies with § 106.45. 429 The PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 30085 a prompt response that is not clearly unreasonable under the known circumstances, which response must include offering supportive measures even in the absence of factual investigation into the allegations. Complainants and respondents are owed an impartial grievance process that reaches reliable factual determinations of the allegations before remedies are owed to a victim or disciplinary sanctions are imposed on the respondent. Such an approach protects the interests of complainants and respondents in each unique situation, without assuming the truth or falsity of particular allegations based on statistical information about the prevalence or reasons for false accusations. The Department appreciates the commenters who described campus sexual assault proceedings as difficult to navigate and complex because they nearly always involve different personal recollections about what happened, with few or no witnesses or physical evidence, possibly influenced by alcohol use by one or both parties. Some commenters emphasized, and the Department agrees, that the difficult, complex nature of Title IX sexual harassment situations cautions against concluding that allegations are ‘‘false’’ based solely on the outcome of the case, because lack of evidence sufficient to conclude responsibility does not necessarily imply that the allegations were unfounded or false. In response to commenters addressing this topic, these final regulations contain a provision expressly prohibiting retaliation 430 and specifying that charging an individual with a code of conduct violation for making a materially false statement in bad faith does not constitute retaliation, but a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith. This provision cautions recipients to avoid stating or implying to complainants whose formal complaints end in a determination of nonresponsibility that the determination, alone, means that the complainant’s allegations were false or show bad faith on the part of the complainant, because such statements or implications may constitute retaliation. The Department further notes that the new provision in § 106.71(b)(2) applies equally to respondents and complainants, such that a determination of responsibility against a respondent, alone, is insufficient to justify punishing the respondent for making a materially false 430 Section E:\FR\FM\19MYR2.SGM 106.71. 19MYR2 30086 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations statement in bad faith. The Department agrees with commenters who asserted that a complainant’s allegations may be determined to be accurate and valid even if there is no evidence corroborating the complainant’s statements. The final regulations are designed to result in accurate outcomes regardless of the type of evidence available in particular cases. Changes: The Department has added § 106.71(b)(2), which provides that charging an individual with a code of conduct violation for making a materially false statement in bad faith does not constitute retaliation, provided that a determination regarding responsibility, alone, is not sufficient to conclude that such a false statement was made. General Support and Opposition for Supreme Court Framework Adopted in § 106.44(a) Comments: A number of commenters expressed general support for § 106.44(a). Several commenters supported the provision because they believed it was fair and thoughtful or made common sense. Commenters stated that this provision brings clarity and accountability. One commenter opined that the proposed rules would restore public confidence in these proceedings. Other commenters expressed satisfaction that the provisions in § 106.44(a) are consistent with basic constitutional principles and operative practices in our criminal justice system. A number of commenters argued that the proposed rules were necessary because the processes under previous rules have been inadequate. Some commenters argued that this provision is necessary because there needs to be more due process provided after the withdrawn 2011 Dear Colleague Letter. Commenters expressed concern the previous approach in guidance lacked protections for the accused, and the proposed rules balance protection for the accused with justice for victims. Commenters asserted the proposed rules bring back the rule of law to these proceedings. Other commenters expressed concern that past Department guidance has led to violations of students’ free speech rights. Another commenter asserted that by nature, universities are ill-equipped to handle criminal assault charges and asserted that if universities are going to deal with serious charges like sexual assault, it is critical that the sanctions they wield, which often can have significant consequences, are applied only after a fair process to determine facts and guilt; VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the commenter supported the process that the proposed regulations provide. Commenters expressed support for the Department’s general approach because it is flexible. Commenters supported the ‘‘not clearly unreasonable standard’’ in particular for this reason. Commenters also expressed support for this approach because it brings clarity to a very confusing and complicated issue. Some commenters expressed support for the proposed rules because they are prowomen. Other commenters asserted that the proposed rules add needed clarity to what is required by recipients under Title IX. Some commenters also stated that responding to sexual harassment is a uniquely difficult challenge because, unlike sexual assault, it is intertwined with free speech. Commenters also expressed support for the Department’s choice to respect survivors’ autonomy in deciding whether to initiate a grievance process in the higher education setting. Some commenters suggested expanding the deliberately indifferent standard to include the respondent so that recipients must respond in a manner that is not deliberately indifferent toward a complainant or respondent. Other commenters asserted that not all cases of sexual harassment warrant discipline because sometimes a reporting party just wants the respondent to understand why what they did was wrong. Some commenters suggested adding a statute of limitations requirement in the filing of a complaint that aligns to that jurisdiction so as to preserve evidence and protect both parties. Other commenters expressed disapproval of the notion of third-party reporting and bystander intervention because posters plastered all over campuses that command students to make reporting a habit have a totalitarian feel. Other commenters asked if the Department would consider encouraging schools to inquire into anonymous and third-party reports as a means of preventing harassment from worsening. Discussion: The Department appreciates the comments in support of the deliberate indifference standard in § 106.44(a). The deliberate indifference standard provides consistency with the Title IX rubric for judicial and administrative enforcement and gives a recipient sufficient flexibility and discretion to address sexual harassment. At the same time, for reasons explained in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Department has tailored a deliberate indifference standard for PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 administrative enforcement purposes by adding specific obligations that every recipient must meet as part of every response to sexual harassment, including offering supportive measures to complainants through the Title IX Coordinator engaging in an interactive discussion with the complainant about the complainant’s wishes, and explaining to the complainant the option and process for filing a formal complaint. The Department acknowledges that some commenters think that these final regulations are pro-women while others think that these final regulations are pro-men. The final regulations are structured to avoid any favoritism on the basis of sex, and the Department will enforce them in a manner that does not discriminate on the basis of sex. The Department appreciates the commenters who would like the Department to make it clear that the deliberate indifference standard applies to both complainants and respondents. To address this concern, the Department is revising § 106.44(a) to clarify that a recipient must treat complainants and respondents equitably, which for a respondent means following a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30. We also appreciate commenters who would like us to respect the autonomy of the complainant. A complainant may only want supportive measures, may wish to go through an informal process, or may want to file a formal complaint. The Department revised § 106.44(a) to clarify that an equitable response for a complainant means offering supportive measures irrespective of whether the complainant also chooses to file a formal complaint. Additionally, a recipient may choose to offer an informal resolution process under § 106.45(b)(9) (except as to allegations that an employee sexually harassed a student). These final regulations thus respect a complainant’s autonomy in determining how the complainant would like to proceed after a recipient becomes aware (through the complainant’s own report, or any third party reporting the complainant’s alleged victimization) that a complainant has allegedly suffered from sexual harassment. The Department does not wish to impose a statute of limitations for filing a formal complaint of sexual harassment under Title IX. Each State may have a different statute of limitations for filing a complaint, which goes against the Department’s objective of creating E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations uniformity and consistency. Additionally, a State’s statute of limitations for each category of sexual harassment may be different as jurisdictions may have a different statute of limitations for criminal offenses versus civil torts, adding yet another level of complexity to a recipient’s response. The Department notes that a complainant must be participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed as provided in the revised definition of ‘‘formal complaint’’ in § 106.30; this provision tethers a recipient’s obligation to investigate a complainant’s formal complaint to the complainant’s involvement (or desire to be involved) in the recipient’s education program or activity so that recipients are not required to investigate and adjudicate allegations where the complainant no longer has any involvement with the recipient while recognizing that complainants may be affiliated with a recipient over the course of many years and sometimes complainants choose not to pursue remedial action in the immediate aftermath of a sexual harassment incident. The Department believes that applying a statute of limitations may result in arbitrarily denying remedies to sexual harassment victims. At the same time, the § 106.45 grievance process contains procedures designed to take into account the effect of passage of time on a recipient’s ability to resolve allegations of sexual harassment. For example, if a formal complaint of sexual harassment is made several years after the sexual harassment allegedly occurred, § 106.45(b)(3)(ii) provides that if the respondent is no longer enrolled or employed by the recipient, or if specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein, then the recipient has the discretion to dismiss the formal complaint or any allegations therein. Similarly, the Department does not take a position in the NPRM or these final regulations on whether recipients should encourage anonymous reports of sexual harassment, but we have revised § 106.8(a) and § 106.30 defining ‘‘actual knowledge’’ to emphasize that third party (including ‘‘bystander’’) reporting, as well as anonymous reporting (by the complainant or by a third party) is a permissible manner of triggering a recipient’s response obligations.431 431 Section 106.8(a) states that any person may report sexual harassment (whether or not the person VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Irrespective of whether a report of sexual harassment is anonymous, a recipient with actual knowledge of sexual harassment or allegations of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent generally and must meet the specific obligations set forth in revised § 106.44(a). On the other hand, if a recipient cannot identify any of the parties involved in the alleged sexual harassment based on the anonymous report, then a response that is not clearly unreasonable under light of these known circumstances will differ from a response under circumstances where the recipient knows the identity of the parties involved in the alleged harassment, and the recipient may not be able to meet its obligation to, for instance, offer supportive measures to the unknown complainant. Changes: The Department revised § 106.44(a) to require recipients to respond promptly in a manner that is not deliberately indifferent. We also added to that paragraph: A recipient’s response must treat complainants and respondents equitably by offering supportive measures as defined in § 106.30 to a complainant, and by following a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent. The Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. The Department also has revised § 106.45(b)(3)(ii) to state that if a respondent is no longer enrolled or employed by a recipient, or if specific circumstances prevent the recipient from gathering evidence sufficient to reporting is the person alleged to be the victim of sexual harassment) by using the contact information listed for the Title IX Coordinator, and that such a report may be made ‘‘at any time (including during non-business hours)’’ by using the listed telephone number or email address, or by mail to the listed office address. Section 106.30 defines ‘‘actual knowledge’’ and includes a statement that ‘‘notice’’ charging a recipient with actual knowledge includes a report to the Title IX Coordinator as described in § 106.8(a). See also discussion of anonymous reporting in the ‘‘Formal Complaint’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble. PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 30087 reach a determination as to the formal complaint or allegations therein, then the recipient may dismiss the formal complaint or any allegations therein. We have also revised § 106.8(a) and § 106.30 defining ‘‘actual knowledge’’ to expressly state that any person may report sexual harassment in person, by mail, telephone, or email, by using the contact information required to be listed for the Title IX Coordinator. Comments: A number of commenters asserted that § 106.44(a) does not adequately protect students in both elementary and secondary and postsecondary education. Some commenters stated that no harassment at all should be tolerated under Title IX. Other commenters asserted that the provision would hinder Title IX enforcement. Still other commenters opined that the provision creates a situation in which systematic sexual harassment and misconduct can continue. Other commenters gave examples of the need to protect students evidenced by high-profile sexual abuse scandals at postsecondary institutions. Some commenters asserted that the proposed rules change schools’ current responsibilities to take prompt and effective steps to end harassment, arguing that the current standard is more protective of students than the new deliberate indifference standard. Other commenters stated that the provision allows schools to ‘‘check boxes’’ in investigating complaints of sexual misconduct and will lead to a less prompt, less equitable response. Commenters stated the proposed rules would require schools to ignore all sexual harassment unless the student has been denied equal access to education, even if the student has to sit next to their harasser or rapist in class every day, which creates a hostile environment for victims and negatively affects victims’ ability to proceed with their education. Commenters argued schools will become more dangerous because the proposed rules perpetuate rape culture. Discussion: The Department agrees with commenters inasmuch as proposed § 106.44(a), in conjunction with the way that actual knowledge was defined in § 106.30, did not adequately protect students in the elementary and secondary context. As discussed in the ‘‘Actual Knowledge’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, we have revised § 106.30 defining actual knowledge to include notice to any elementary and secondary school employee. E:\FR\FM\19MYR2.SGM 19MYR2 30088 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations We also agree with commenters to the extent that proposed § 106.44(a) did not impose sufficient specific, mandatory requirements as to what a recipient’s non-deliberately indifferent response must consist of in order to protect complainants and be fair to respondents, in the context of elementary and secondary schools as well as the postsecondary institution context. As revised, § 106.44(a) requires all recipients to treat complainants and respondents equitably when responding to a report or formal complaint of sexual harassment (by offering supportive measures to complainants, and by disciplining respondents only after applying a grievance process that complies with § 106.45). When a recipient has actual knowledge of sexual harassment in its education program or activity, the Department will not tolerate, and the final regulations do not allow recipients to tolerate, sexual harassment, including systematic sexual harassment or the perpetuation of a rape culture. Contrary to commenters’ assertions, recipients will not be allowed to ignore sexual harassment until it leads to the denial of equal access to education and must respond to every report of sexual harassment by offering supportive measures by engaging in an interactive discussion with the complainant to consider the complainant’s wishes regarding available supportive measures, with or without the filing of a formal complaint. Supportive measures for complainants may include a different seating assignment or other accommodation so that the complainant does not need to sit next to the respondent in class every day. By requiring a recipient to offer supportive measures, these final regulations do not create or further a hostile environment and expressly require recipients to provide measures designed to restore or preserve a complainant’s equal access to education. In response to comments, the Department also revised § 106.44(a) to clarify that a recipient must respond promptly in a manner that is not deliberately indifferent. This clarifies that whether or not a formal complaint triggers a grievance process, the recipient must promptly offer supportive measures to the complainant. Where a formal complaint does trigger a grievance process, § 106.45(b)(1)(v) requires recipients to have a reasonably prompt time frame for the conclusion of the grievance process, including any appeals or informal resolution process. Changes: As previously noted, the Department revised § 106.44(a) to VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 require that the recipient respond promptly, and by offering supportive measures to complainants while refraining from punishing a respondent without following the § 106.45 grievance process. Comments: Commenters expressed concern that the trauma suffered by victims is too great to hold schools to the deliberate indifference standard, which commenters characterized as too low a standard. Commenters noted the severe long-term effects of sexual assault and harassment on victims, including depression and suicide. Commenters expressed concern with the ‘‘clearly unreasonable’’ standard because false reporting is much less likely to happen than actual rape. Commenters stated the proposed rules promote the misconception that survivors are making false accusations of sexual assault. Commenters expressed concern that the proposed rules allow perpetrators in positions of authority to abuse the system. Commenters stated that by allowing institutions to create complex and opaque systems for reporting sexual harassment or sexual assault, perpetrators in positions of authority can continue to victimize students over long periods. Discussion: The Department disagrees that the deliberate indifference standard in § 106.44(a) is too low of a standard to protect complainants and hold schools, colleges, and universities responsible for responding to sexual harassment in education programs or activities. As adapted from the Gebser/ Davis framework and revised in these final regulations, this standard requires recipients to offer supportive measures to a complainant through an interactive process whereby the Title IX Coordinator must contact the complainant to discuss availability of supportive measures (with or without the filing of a formal complaint), consider the complainant’s wishes regarding supportive measures, and explain to the complainant the process for filing a formal complaint. The Department has not previously imposed a legally binding requirement on recipients to offer supportive measures to a complainant in response to a report of sexual harassment. The Department acknowledges that sexual assault and sexual harassment may have severe, long-term consequences, which is why the Department requires recipients to respond promptly and to offer a complainant supportive measures. The final regulations’ emphasis on supportive measures recognizes that educational institutions are uniquely positioned to take prompt action to PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 protect complainants’ equal access to education when the educational institution is made aware of sexual harassment in its education program or activity, often in ways that even a courtissued restraining order or criminal prosecution of the respondent would not accomplish (e.g., approving a leave of absence for a complainant healing from trauma, or accommodating the retaking of an examination missed in the aftermath of sexual violence, or arranging for counseling or mental health therapy for a sexual harassment victim experiencing PTSD symptoms). While we recognize that the range of supportive measures (defined in § 106.30 as individualized services, reasonably available, without fee or charge to the party) will vary among recipients, we believe that every recipient has the ability to consider, offer, and provide some kind of individualized services reasonably available, designed to meet the needs of a particular complainant to help the complainant stay in school and on track academically and with respect to the complainant’s educational benefits and opportunities, as well as to protect parties’ safety or deter sexual harassment. These final regulations impose on recipients a legal obligation to do what recipient educational institutions have the ability and responsibility to do to respond promptly and supportively to help complainants, while treating respondents fairly. Commenters erroneously asserted that the Department is adopting the standard in § 106.44(a) because of a belief that false reporting occurs more frequently than rape; these final regulations are not premised on, and do not promote, this notion. As explained previously, the Department is adopting this standard to require recipients to respond promptly and in a manner that provides a complainant with supportive measures and presents the complainant with more control over the process by which the recipient will respond to the report of sexual harassment. This standard will not allow perpetrators in positions of authority to abuse the system or to continue to victimize students over long periods of time. Contrary to the commenters’ assertions, these final regulations do not allow institutions to create complex and opaque systems for reporting sexual harassment or sexual assault. These final regulations require recipients to notify all students and employees (and parents and guardians of elementary and secondary school students) of the name or title, office address, electronic mail address, and telephone number of the employee or employees designated E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations as the Title IX Coordinator pursuant to § 106.8(a) so that students and employees will know to whom they may report sexual harassment and how to make such a report, including options for reporting during non-business hours. Each recipient also must prominently display the contact information required to be listed for the Title IX Coordinator on its website, if any, and in each handbook or catalog that it makes available to applicants for admission and employment, students, parents or legal guardians of elementary and secondary school students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient, pursuant to § 106.8(c). Additionally, a recipient must respond when the recipient has actual knowledge of sexual harassment, even if the complainant (i.e., the person alleged to be the victim) is not the person who reports the sexual harassment. As explained above, ‘‘actual knowledge’’ is defined in § 106.30 as notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary and secondary school. Far from being complex or opaque, the final regulations ensure that recipients and their educational communities (including their students, employees, and parents of elementary and secondary school students) understand how to report sexual harassment and what the recipient’s response will be. Regardless of whether a recipient desires to absolve itself of actual knowledge of sexual harassment, a recipient cannot avoid actual knowledge triggering prompt response obligations, because any person (not only the complainant—i.e., the alleged victim—but any third party) may report sexual harassment allegations to the Title IX Coordinator, to an official with authority to take corrective action, or to any elementary or secondary school employee.432 The final regulations require recipients to post on their websites the contact information for the recipient’s Title IX Coordinator and to send notice to every student, employee, and parent of every elementary and secondary school student of the Title IX Coordinator’s 432 See § 106.30 defining ‘‘actual knowledge’’ and § 106.44(a) requiring a prompt response to actual knowledge of sexual harassment in a recipient’s program or activity against a person in the United States. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 contact information.433 The final regulations thus create clear, accessible channels for any person to report sexual harassment in a way that triggers a recipient’s response obligations. A recipient must promptly respond if it has actual knowledge that any person, including someone in a position of authority, is sexually harassing or assaulting students; failure to do so violates these final regulations. As previously stated, the deliberate indifference standard is flexible and may require a different response depending on the unique circumstances of each report of sexual harassment. If a recipient has actual knowledge of a pattern of alleged sexual harassment by a perpetrator in a position of authority, then a response that is not deliberately indifferent or clearly unreasonable may require the recipient’s Title IX Coordinator to sign a formal complaint obligating the recipient to investigate in accordance with § 106.45, even if the complainant (i.e., the person alleged to be the victim) does not wish to file a formal complaint or participate in a grievance process. Changes: None. Comments: A number of commenters expressed concern that the proposed rules create more obstacles for survivors. Commenters stated that the proposed rules are not based in science and that reducing existing standards by not providing support and services to survivors of sexual assault and harassment is harmful and out of step with data and research. Other commenters expressed concern that the proposed rules prevent survivors from coming forward by cutting off their access to resources. Commenters expressed concern that the proposed rules are unfair to, unreasonable, or indifferent toward survivors and allows schools to do very little to help survivors. Commenters stated the proposed rules make it impossible for survivors to seek meaningful redress from their schools after having experienced sexual harassment. Some commenters expressed concern that the standard for opening an investigation is too high. Other commenters suggested that the standard for opening an investigation into an 433 Section 106.8 (expressly stating that any person may report sexual harassment by using the contact information required to be listed for the Title IX Coordinator or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report; requiring the contact information to be prominently displayed on recipients’ websites; and stating that reports may be made at any time including during non-business hours by using the listed telephone number or email address or by mail to the listed office address). PO 00000 Frm 00065 Fmt 4701 Sfmt 4700 30089 individual student’s complaint of harassment should not be as high as the standard for actually holding a school liable as an institution. Commenters stated that the Title IX Coordinator determining if a complaint meets certain criteria is an unnecessary obstacle. Commenters argued that requiring a formal complaint places additional burdens on the individual who has experienced trauma. Commenters stated the process could retraumatize the survivor and discourage others from coming forward. Commenters stated a plaintiff would normally be able to access equitable relief to remedy unintentional discrimination through a court order, but the Department would not attempt to secure a remedy on the same facts. Discussion: Contrary to commenters’ assertions, these final regulations remove obstacles for complainants by clearly requiring recipients to offer supportive measures irrespective of whether the complainant files a formal complaint and without any showing of proof of the complainant’s allegations. The final regulations provide greater choice and control for complainants. Complainants may choose whether to receive supportive measures without filing a formal complaint, may choose to receive supportive measures and file a formal complaint, or may choose to receive supportive measures and request any informal resolution process that the recipient may offer. Accordingly, these final regulations respect complainants’ autonomy and require recipients to consider the wishes of each complainant with respect to the type of response that best suits a complainant’s particular needs.434 We disagree that the standard for opening an investigation is the same standard for holding a recipient liable and that this standard is too high. If a recipient has actual knowledge of sexual harassment (or allegations of sexual harassment) in its education program or activity against a person in the United States, then it must begin an investigation as soon as the complainant requests an investigation by filing a formal complaint (or when the Title IX Coordinator determines that circumstances require or justify signing a formal complaint). The actual knowledge standard is discussed in 434 While the final regulations at § 106.30 (defining ‘‘formal complaint’’) give Title IX Coordinators discretion to sign a formal complaint even where the complainant does not wish to participate in a grievance process, the final regulations also protect every complainant’s right not to participate. § 106.71 (prohibiting retaliation against any person exercising rights under Title IX, including participation or refusal to participate in any grievance process). E:\FR\FM\19MYR2.SGM 19MYR2 30090 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations greater depth under the ‘‘Actual Knowledge’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble. Title IX Coordinators have always had to consider whether a report satisfies the criteria in the recipient’s policy, and these final regulations are not creating new obstacles in that regard. The criteria that the Title IX Coordinator must consider are statutory criteria under Title IX or criteria under case law interpreting Title IX’s nondiscrimination mandate with respect to discrimination on the basis of sex in the recipient’s education program or activity against a person in the United States, tailored for administrative enforcement.435 Additionally, these final regulations do not preclude action under another provision of the recipient’s code of conduct, as clearly stated in revised § 106.45(b)(3)(i), if the conduct alleged does not meet the definition of Title IX sexual harassment. The Department understands commenters’ concerns that requiring complainants to go through a formal complaint process may cause further trauma, which is why the Department’s final regulations provide that a recipient must offer supportive measures even if the complainant does not choose to file a formal complaint. We do not think that giving a complainant the choice to file a formal complaint will further traumatize the complainant. Giving complainants the option to choose a formal complaint process rather than mandating such a process gives complainants more autonomy and control over their circumstances, which survivor advocates have emphasized is crucial to supporting survivors, and may make more complainants feel comfortable enough to report allegations of sexual harassment. Where a complainant does file a formal complaint raising allegations of sexual harassment, both parties must have full and fair opportunity to participate in a fair grievance process designed to reach an accurate outcome. The final regulations endeavor to take into account the fact that navigating a formal process can be difficult for both complainants and respondents.436 The Department does not understand the comment that these final regulations do not require recipients to address unintentional discrimination that a court would address. These final regulations require a recipient to 435 See the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble. 436 E.g., § 106.45(b)(5)(iv) gives both parties equal opportunity to be assisted by an advisor of choice. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 respond to allegations of sexual harassment as defined in § 106.30, irrespective of whether the alleged conduct was intentional or unintentional on the part of the respondent 437 and similarly, a recipient’s response obligations will be enforced without any regard for whether a recipient ‘‘intentionally’’ violated these final regulations. If a complainant received a court order remedying unintentional discrimination, the recipient would have to follow any court order that by its terms applied to that recipient. Changes: We have revised § 106.44(a) to require recipients to treat complainants and respondents equitably meaning offering supportive measures to a complainant and refraining from disciplining a respondent with following the § 106.45 grievance process; specifically, a recipient’s Title IX Coordinator must contact the complainant to discuss the availability of supportive measures (with or without the filing of a formal complaint), consider the complainant’s wishes with respect to supportive measures, and explain to the complainant the process for filing a formal complaint. Comments: Some commenters argued that the proposed rules would allow a school to treat survivors poorly and impose little or no sanctions for rapists. Other commenters stated the proposed rules would dissolve free speech for survivors. Some commenters expressed concern that the proposed rules allow schools to evade responsibility and accountability. Other commenters expressed concern that the proposed rules give too much deference to school districts. At least one commenter expressed concern that the Department’s decision to adopt the deliberate indifference standard essentially negates the Department’s ability to perform regulatory oversight, one of its primary functions. Commenters argued that deferring to a school district’s determination is not always appropriate, and accountability 437 Section 106.30 defining ‘‘sexual harassment’’ does not impose an independent intent or mens rea requirement on conduct that constitutes sexual harassment; however, the Department notes that the sexual offense of ‘‘fondling,’’ which is an offense under ‘‘sexual assault’’ as defined under the Clery Act and made part of Title IX sexual harassment under § 106.30, includes as an element of fondling touching ‘‘for the purpose of sexual gratification.’’ Courts have interpreted similar ‘‘purpose of’’ elements in sex offense legislation as an intent requirement, and recipients should take care to apply that intent requirement to incidents of alleged fondling so that, for example, unwanted touching committed by young children—with no sexualized intent or purpose—is distinguished from Title IX sexual harassment and can be addressed by a recipient outside these final regulations. PO 00000 Frm 00066 Fmt 4701 Sfmt 4700 is necessary to ensure schools are free of sexual harassment. Other commenters expressed concern that universities can expediently reduce liability by simply checking boxes and doing nothing. Commenters argued that the responsibilities of university administrators and educators extend beyond the minimal standard set by the rule. Commenters expressed concern that the proposed rules allow the Department to defer to local leaders rather than ensuring universally agreedupon standards. Other commenters argued that institutions need to be labeled publicly as offenders. Discussion: As previously noted, the recipient cannot ignore a complainant’s report of sexual harassment, and these final regulations do not prevent punishment of perpetrators of sexual assault; the recipient must offer supportive measures to the complainant under § 106.44(a) and Title IX Coordinators must be trained to serve impartially, without prejudgment of the facts and without bias, under § 106.45(b)(1)(iii). A recipient may impose disciplinary sanctions upon a respondent after a grievance process that complies with § 106.45. Requiring recipients to offer supportive measures to the complainant and follow a grievance process under § 106.45 prior to disciplining the respondent helps ensure that a recipient’s response treats complainants and respondents fairly. Moreover, the final regulations add § 106.71 to assure complainants and respondents that the recipient cannot retaliate against any party. Contrary to commenters’ assertions, these final regulations do not dissolve free speech for complainants. The Department revised § 106.44(a) to clarify that no recipient is required to restrict a person’s rights under the U.S. Constitution, including the First Amendment, to satisfy its obligation not to be deliberately indifferent in response to sexual harassment. Although this premise is expressed in § 106.6(d), which applies to the entirety of Part 106 of Title 34 of the Code of Federal Regulations, in recognition of commenters’ concerns that a recipient subject to constitutional restraints may believe that the recipient must restrict constitutional rights in order to comply with the recipient’s obligation to respond to a Title IX sexual harassment incident, the Department reinforces in § 106.44(a) that responding in a nondeliberately indifferent manner to a complainant does not require restricting constitutional rights.438 438 Similarly, the Department emphasizes the purpose of § 106.6(d) in new § 106.71(b) E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations The Department is not negating its duties or unduly deferring to a recipient with respect to compliance with Title IX. The Department is clarifying the recipient’s legally enforceable obligations through these final regulations and providing greater consistency. Every complainant who reports sexual harassment, as defined in § 106.30, will know that the recipient must offer supportive measures in response to such a report, and every respondent will know that a recipient must provide a grievance process under § 106.45 prior to imposing disciplinary sanctions. The Department will continue to exercise regulatory oversight in enforcing these final regulations. Recipients, including universities, will not be able to simply check off boxes without doing anything. Recipients will need to engage in the detailed and thoughtful work of informing a complainant of options, offering supportive measures to complainants through an interactive process described in revised § 106.44(a), and providing a formal complaint process with robust due process protections beneficial to both parties as described in § 106.45. Where a formal complaint triggers a grievance process, § 106.45 requires recipients to do much more than simply have a process ‘‘on paper’’ or ‘‘check off boxes.’’ These final regulations require a recipient to investigate and adjudicate a complaint in a way that gives both parties a meaningful opportunity to participate, including by requiring the recipient to objectively evaluate relevant evidence, permitting parties to inspect and review evidence, and providing the parties a copy of an investigative report prior to any hearing or other determination regarding responsibility. These procedures, and all the provisions in § 106.45, must be followed by the recipient using personnel who are free from bias and conflicts of interest and who are trained to serve impartially. With respect to commenters who asserted that recipients should have greater obligations than those imposed under these final regulations, the Department notes that nothing in these final regulations precludes action under another provision of the recipient’s code of conduct that these final regulations do not address. For example, a recipient may choose to address conduct outside of or not in its ‘‘education program or activity,’’ even though Title IX does not require a recipient to do so. The (prohibiting retaliation) to remind recipients that in the context of deciding if conduct constitutes retaliation, the Department will interpret the retaliation prohibition in a manner consistent with constitutional rights such as rights under the First Amendment. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Department believes that these final regulations hold recipients to appropriately high, legally enforceable standards of compliance to effectuate Title IX’s non-discrimination mandate. The Department disagrees that all institutions should be labeled publicly as offenders for violating Title IX. The Department will make findings against recipients that violate these final regulations and will continue to make such letters of findings publicly available. Changes: The Department revised § 106.44(a) to clarify that the Department will not deem a recipient not deliberately indifferent based on the recipient’s restriction of rights protected under the U.S. Constitution, including the First Amendment, the Fifth Amendment, and the Fourteenth Amendment. Comments: A number of commenters argued that the 2011 Dear Colleague Letter was better for protecting survivors and was fair to both sides. One commenter urged the Department to reject the NPRM and to reinstate the 2011 Dear Colleague Letter and 2014 Q&A to keep students safe. This commenter argued that Title IX is a critical safety net because applicable State laws and school policies may vary widely and leave students unprotected. The commenter also cited studies showing a widespread problem of educator sexual misconduct against students.439 Another commenter suggested that the proposed rules should be replaced with affirmative obligations from the 2011 Dear Colleague Letter requiring the recipient to take immediate action to eliminate the harassment, prevent its reoccurrence, and address its effects. A number of commenters argued that the 2001 Guidance was adequate and protected survivors. Commenters asserted that the 2001 Guidance standards were superior to the Gebser/ Davis standards. Other commenters expressed concern that even under the 2001 Guidance standards, schools failed to adopt policies that would develop responses to sexual harassment designed to reduce occurrence and remedy effects. Similarly, commenters expressed concern that many cases demonstrate that even when students and parents were well informed on the 2001 Guidance standards, and brought 439 Commenters cited, e.g.: Magnolia Consulting, Characteristics of School Employee Sexual Misconduct: What We Know from a 2014 Sample (Feb. 1, 2018), https://magnoliaconsulting.org/ news/2018/02/characteristics-school-employeesexual-misconduct (noting one in three employeerespondents in elementary and secondary schools sexually abuse multiple student victims). PO 00000 Frm 00067 Fmt 4701 Sfmt 4700 30091 legitimate concerns directly to institutions, institutions continued to fail students. Commenters argued that schools conducted an in-name-only investigation and refused to discipline respondents, resulting in escalating sexual harassment, in some cases leading to rape. A number of commenters opposed the use of the Gebser/Davis standards. Commenters disapproved of the use of the higher bar erected by the U.S. Supreme Court in the very specific and narrow context of a civil Title IX lawsuit seeking monetary damages against a school due to its response (or lack thereof) to actual notice of sexual harassment. Commenters argued these standards have no place in the far different context of administrative enforcement with its iterative process and focus on voluntary corrective action by schools. Other commenters argued that the 2001 Guidance directly addressed this precedent, concluding that it was inappropriate for the Department to limit its enforcement activities by applying the more stringent standard, stating that the Department would continue to enforce the broader protections provided under Title IX, and noting that the Department acknowledges that it is ‘‘not required to adopt the liability standards applied by the Supreme Court in private suits for money damages.’’ Other commenters expressed concern about the Davis progeny, where Federal courts have determined that only the most severe cases can meet the deliberate indifference standard. Other commenters suggested that the liability standard should be higher than what was set by the Supreme Court, and that recipients must be on clear notice of what conduct is prohibited and that recipients must be held liable only for conduct over which they have control. Discussion: Although the Department is not required to adopt the deliberate indifference standard articulated by the Supreme Court, we are persuaded by the rationales relied on by the Supreme Court and believe that the deliberate indifference standard represents the best policy approach. As the Supreme Court reasoned in Davis, a recipient acts with deliberate indifference only when it responds to sexual harassment in a manner that is ‘‘clearly unreasonable in light of the known circumstances.’’ 440 The Department believes this standard holds recipients accountable for providing a meaningful response to every report, without depriving recipients of legitimate and necessary 440 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648–49 (1999). E:\FR\FM\19MYR2.SGM 19MYR2 30092 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations flexibility to make disciplinary decisions and provide supportive measures that best respond to particular incidents of sexual harassment. Sexual harassment incidents present contextdriven, fact-specific needs and concerns for each complainant, and the Department believes that teachers and local school leaders with unique knowledge of the school climate and student body are best positioned to make decisions about supportive measures and potential disciplinary measures; thus, unless the recipient’s response to sexual harassment is clearly unreasonable in light of the known circumstances, the Department will not second guess such decisions.441 In response to commenters’ concerns that the liability standard of deliberate indifference gives recipients too much leeway to respond to the sexual harassment ineffectively, the Department has specified certain steps a recipient must take in all circumstances. For example, a response that is not deliberately indifferent must include promptly informing each complainant of the method for filing a formal complaint, offering supportive measures for that complainant, and imposing discipline on a respondent only after complying with the grievance process set forth in § 106.45. Where a respondent has been found responsible for sexual harassment, any disciplinary sanction decision rests within the discretion of the recipient, and the Department’s concern under Title IX is to mandate that the recipient provide remedies, as appropriate, to the victim, designed to restore or preserve the victim’s equal educational access.442 The Department acknowledges that the deliberate indifference standard in § 106.44(a) departs from standards set forth in prior guidance and applied in OCR enforcement of Title IX. In its previous guidance and enforcement practices, the Department took the position that constructive notice—as opposed to actual knowledge—triggered a recipient’s duty to respond to sexual harassment; that recipients had a duty to respond to a broader range of sex441 Id. Indeed, the Supreme Court observed in Davis that courts must not second guess recipients’ disciplinary decisions. As a matter of policy, the Department believes that the Department should not second guess recipients’ disciplinary decisions through the administrative enforcement process. When a recipient finds a respondent responsible for Title IX sexual harassment, the Department requires the recipient to effectively implement remedies for the complainant, and will not second guess the recipient’s determination of responsibility solely based on the fact that the Department would have weighed the evidence in the case differently than the recipient’s decision-maker did. §§ 106.45(b)(1)(i), 106.45(b)(7)(iv), 106.44(b)(2). 442 Section 106.45(b)(1)(i). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 based misconduct than the sexual harassment defined in the proposed rules; and that recipients’ response to sexual harassment should be effective and should be judged under a reasonableness or even strict liability standard, rather than under the deliberate indifference standard.443 Based on its consideration of the text and purpose of Title IX, of the reasoning underlying the Court’s decisions in Gebser and Davis, and over 124,000 comments, the Department departs from its prior guidance that set forth a standard different from the deliberate indifference standard. We discuss the reasons for the ways in which we have adopted, but tailored, the three-part Gebser/Davis framework in these final regulations, in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, including the ways in which these final regulations are similar to, and different from, Department guidance. In response to commenters who asserted that recipients should only be liable for conduct over which they have control, the Department agrees with that statement and, in response, adds to § 106.44(a) the statement that ‘‘education program or activity’’ includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs. The Department derives this language from the holding in Davis that a recipient should be held liable for ‘‘circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.’’ 444 Accordingly, the Department does not need to adopt a higher standard than what the Gebser/ Davis framework set forth in order to hold a recipient responsible for circumstances under the recipient’s control. These final regulations apply to employees who sexually harass a student and will provide uniformity and consistency with respect to how a recipient responds to employee-onstudent sexual harassment. The Department acknowledges that some recipients failed to satisfy the requirements in the Department’s past guidance and does not believe that the past failures of these recipients require the Department to adopt a different standard. The standards we adopt cannot ensure recipients’ compliance in every instance. Any failure to comply would be handled as an enforcement 443 2001 Guidance at iv, vi. 526 U.S. at 645. 444 Davis, PO 00000 Frm 00068 Fmt 4701 Sfmt 4700 matter, but such failure to comply, alone, does not warrant changing the standard. Changes: In addition to the changes previously noted, § 106.44(a) now includes a statement that ‘‘education program or activity’’ includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs. Comments: Commenters expressed concern that the proposed rules would result in less predictable outcomes for schools. Commenters reasoned that if the Department applies a standard for monetary damages to its administrative enforcement scheme, plaintiffs will ask the courts to play the role that the Department abdicated. Commenters expressed concern that the proposed rules will cause a massive increase in lawsuits against colleges because individuals who would have filed administrative complaints with the Department will instead file court actions for equitable relief against recipients of Federal funds thus depriving schools of an opportunity to comply voluntarily. Commenters asserted that such a system would be both less efficient and far slower than the status quo, because the costs of litigation would dwarf the costs of negotiating a voluntary resolution agreement and recipients of Federal funds would be unable to engage in informal negotiations with the court over the extent of the remedy. Commenters argued that if the Department adopts the same standards as the Court adopted for monetary damages, students with viable claims will likely bypass the Department altogether, undercutting the Department’s efforts to promote systemic reforms that would benefit individuals without the means to engage in litigation. Commenters expressed concern that the Department is the wrong entity to enact Title IX reforms and that survivors should be the ones who create or enact these regulations. Commenters likened the proposed rules to laws restricting abortions inasmuch as people who are not women should not dictate how a woman’s body is treated, with respect to having an abortion or how a school responds to the sexual assault of a woman’s body. Discussion: The Department respectfully disagrees that the proposed rules or these final regulations would result in less predictable outcomes for schools. As previously explained, the Department revised § 106.44(a) to specify that a recipient must offer supportive measures to a complainant, E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations and must include a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30. Additionally, as explained in more detail below, the Department has revised § 106.44(b) to remove the safe harbors that were proposed in the NPRM, replacing the concept of safe harbors with more specific obligations: Mandatory steps that a recipient must take as part of every response to sexual harassment, in § 106.44(a); and a requirement to investigate and adjudicate in accordance with § 106.45 in response to a formal complaint, in § 106.44(b). The Department disagrees that it is abdicating its role to courts and that litigation will significantly increase as a result of these final regulations. The Department recognizes that its approach to Title IX enforcement may have caused much litigation in the past, as recipients that complied with the Department’s recommendations in past guidance may have risked not providing adequate due process protections, resulting in litigation. Going forward, the Department believes that the balanced approach in these final regulations will provide complainants with supportive, meaningful responses to all reports, and provide both parties with due process protections during investigations and adjudications, which may result in decreased litigation against recipients by complainants and respondents. The Department will be the arbiter of whether a recipient complies with the requirements of these final regulations. Additionally, failure to comply with the Department’s regulations may not always result in legal liability before a court. For example, although the final regulations require that a recipient must offer supportive measures to a complainant, a court may determine that a recipient was not deliberately indifferent even though that recipient did not offer supportive measures. If a recipient complies with the Department’s regulations and offers supportive measures in response to a complaint of sexual harassment, then such action may persuade a court that the recipient was not deliberately indifferent. Accordingly, the Department retains its proper role as the enforcer of its regulations, and these final regulations may help decrease litigation. Congress charged the Department with the responsibility to administer Title IX, and the Department has carefully considered the input of survivors as well as other communities through the notice-and-comment VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 rulemaking process before issuing these final regulations. The Department is sensitive to the unique trauma that sexual violence often inflicts on women (as well as men, and LGBTQ individuals); while the Department disagrees with a commenter’s assertion that these regulations are similar to laws restricting abortions, we endeavor in these final regulations to give each complainant (regardless of sex) more control over the response of the complainant’s school, college, or university in the wake of sexual harassment that violates a woman or other complainant’s physical and emotional dignity and autonomy. Changes: We have removed the ‘‘safe harbor’’ provisions in proposed § 106.44(b). Comments: Commenters expressed concern that new sets of formal relationships between faculty members and students are established every four months, when students enroll in new courses each academic term and that any given student may not currently be under the supervision of a particular faculty member, but that situation could change in a matter of a few weeks. Such reconfigurations every semester add to the difficulty of determining whether a particular circumstance is or is not within the scope of Title IX pursuant to § 106.44(a). Discussion: The Department is aware that students will change classes and also have different instructors throughout their education, and these final regulations provide the same clarity and consistency in case law under the Supreme Court’s rubric in Gebser/Davis. The Department notes that ‘‘program or activity’’ has been defined in detail by Congress 445 and is reflected in existing Department regulations.446 The Department will interpret a recipient’s education ‘‘program or activity’’ in accordance with the Title IX statute and its implementing regulations, which generally provide that an educational institution’s program or activity includes ‘‘all of the operations of’’ a postsecondary institution or elementary and secondary school. For instance, incidents that occur in housing that is part of a recipient’s operations such as dormitories that a recipient provides for students or employees whether on or off campus are part of the recipient’s education program or activity. For example, a recipient must respond to an alleged of sexual harassment between two students in one student’s dormitory room provided by the recipient. In order 445 20 446 34 PO 00000 U.S.C. 1687. CFR 106.2(h). Frm 00069 Fmt 4701 Sfmt 4700 30093 to clarify that a recipient’s ‘‘education program or activity’’ may also include situations that occur off campus, the Department adds to § 106.44(a) the statement that ‘‘education program or activity’’ includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs. This helps clarify that even if a situation arises off campus, it may still be part of the recipient’s education program or activity if the recipient exercised substantial control over the context and the alleged harasser. While such situations may be fact specific, recipients must consider whether, for example, a sexual harassment incident between two students that occurs in an off-campus apartment (i.e., not a dorm room provided by the recipient) is a situation over which the recipient exercised substantial control; if so, the recipient must respond to notice of sexual harassment that occurred there. The Department has also revised § 106.45(b)(1)(iii) to specifically require recipients to provide Title IX personnel with training about the scope of the recipient’s education program or activity, so that recipients accurately identify situations that require a response under Title IX. We further note that we have revised § 106.45(b)(3) to clarify that even if alleged sexual harassment did not occur in the recipient’s education program or activity, dismissal of a formal complaint for Title IX purposes does not preclude the recipient from addressing that alleged sexual harassment under the recipient’s own code of conduct. Recipients may also choose to provide supportive measures to any complainant, regardless of whether the alleged sexual harassment is covered under Title IX. The Department is revising the definition of ‘‘formal complaint’’ in § 106.30 to make it clear that the student must be participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed; no similar condition exists with respect to reporting sexual harassment.447 Changing classes or changing instructors does not necessarily mean that a student 447 We have revised § 106.8(a) to clarify that any person may report sexual harassment (whether or not the person reporting is also the person who is alleged to be the victim of sexual harassment) by using any of the listed contact information for the Title IX Coordinator, and a report can be made at any time (including during non-business hours) by using the telephone number or email address, or by mail to the office address, listed for the Title IX Coordinator. E:\FR\FM\19MYR2.SGM 19MYR2 30094 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations is not participating or attempting to participate in a recipient’s education program or activity. To the extent that a recipient needs further clarity in this regard, the Department will be relying on statutory and regulatory definitions of a recipient’s education ‘‘program or activity.’’ 448 Changes: The Department has revised § 106.44(a) to state that ‘‘education program or activity’’ includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs. Comments: Commenters stated the proposed rules constitute clear violations of the purpose of Title IX. Commenters expressed concern that the proposed regulations will eliminate the Department’s enforcement of Title IX or hurt Title IX, or are contrary to the congressional purpose of Title IX. Commenters expressed concern that OCR would not be able to investigate a school or begin the processes required for enforcement unless a school’s actions already reached the levels necessary for enforcement, effectively eliminating OCR’s ability to seek the informal means of enforcement built into the statute, such as resolution agreements with schools. Discussion: These final regulations adhere closely to both the plain meaning of Title IX and to Federal case law interpreting Title IX; therefore, they are not a violation of the text or purpose of Title IX. These final regulations provide greater clarity for recipients, as recipients will know how the Department requires recipients to respond to reports of sexual harassment. OCR will continue to vigorously enforce Title IX to achieve recipients’ compliance, including by reaching voluntary resolution agreements. Nothing in these final regulations prevents the Department from carrying out its enforcement obligations under Title IX. For example, if the Department receives a complaint that a recipient did not offer supportive measures in response to a report of sexual harassment, the Department may enter into a resolution agreement with the recipient in which the recipient agrees to offer supportive measures for that complainant and for other complainants prospectively. Changes: None. Comments: Commenters suggested the final regulations should abolish or limit peer harassment liability for schools. 448 For further discussion, see the ‘‘Section 106.44(a) ‘education program or activity’ ’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Commenters argued that the Davis decision applying peer harassment liability does not prevent the Department from abolishing such liability as long as there are informed reasons for doing so. Commenters asserted that courts will defer to agency reinterpretations of statutes when the agency supplies a reasoned explanation for its decision, under Chevron deference.449 Discussion: The Department acknowledged in the NPRM that it is not required to adopt the deliberate indifference standard articulated by the Supreme Court.450 As explained in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Department is persuaded by the policy rationales relied on by the Court and continues to believe that the Supreme Court’s rubric for addressing sexual harassment—including peer sexual harassment—is the best policy approach, with the adaptions made in these final regulations for administrative enforcement. Changes: None. General Support and Opposition for the Grievance Process in § 106.45 Comments: Many commenters favored the § 106.45 grievance process on grounds that it would provide greater clarity, bring fairness to all parties, increase public confidence in schoollevel Title IX proceedings, and decrease the likelihood that recipients will be sued in court for mishandling Title IX sexual harassment cases. Several commenters expressed support for § 106.45 on the ground that whether false accusations occur at a low rate or a higher rate, false accusations against accused students and employees, and their support networks of family and friends, have devastating consequences. Several commenters included personal stories of being falsely accused, or having family members falsely accused, including where the complainant recanted the allegations after the commenter’s loved one had committed suicide. One commenter asserted that 449 Commenters cited: Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 844–45 (1984) (holding that ‘‘considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer’’). 450 83 FR 61468. For discussion of the way these final regulations adopt the Supreme Court’s deliberate indifference liability standard, but tailor that standard to achieve policy aims of administrative enforcement of Title IX’s nondiscrimination mandate, see the ‘‘Deliberate Indifference’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble. PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 the ‘‘fraud triangle’’ theory that explains the dynamics around fraud-related offenses can also illustrate the importance of due process protections in the sexual misconduct context, because rationalization is one of the three legs of the triangle (the other two being pressure and opportunity), and due process protections serve to discourage people from rationalizing dishonesty by ensuring that allegations are investigated before being acted upon. Some commenters believed that § 106.45 will rectify sex discrimination against men, and some believed that it will correct sex discrimination against women. A few commenters supported the due process protections in § 106.45 on the ground that lack of due process in any system, whether courts of law or educational institution tribunals, often results in persons of color and persons of low socioeconomic status being wrongly or falsely convicted or punished. Several commenters asserted that men of color are more likely than white men to be accused of sexual misconduct and a system that lacks due process thus results in men of color being unfairly denied educational opportunities. One commenter asserted that due process exists not only to protect all individuals irrespective of sex, race, or ethnicity from persecution by those in power but also exists to ensure those in authority are enacting real justice, and that when due process is abandoned it is always the most marginalized and vulnerable who suffer; other commenters echoed that theme. A few commenters claimed that innocent people do not need due process, or that due process only helps those who are guilty. Several commenters noted that principles of due process developed over centuries of Western legal history, while imperfect, are most apt to find truth in matters involving high-stakes factual disputes, and that no cause or movement justifies abandoning such principles to equate an accusation with a determination of responsibility. A few commenters expressed support for the due process protections in § 106.45 by noting that Supreme Court Justice Ruth Bader Ginsburg has expressed public support for enhancing campus due process, and that public opinion polls have shown public support for due process on college campuses. Some commenters supported § 106.45 because Title IX sexual harassment proceedings often involve contested proceedings with plausible competing narratives and a lack of disinterested witnesses, and the proposed rules do not give an advantage to either E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations complainants or respondents, but rather provide a web of protections for both sides formulated to ensure as fair and unbiased a result as possible. One commenter recounted a personal experience managing a university’s sexual assault response program and opined that because that university’s process was widely viewed as fair and impartial to both sides, the program held students responsible where the evidence showed responsibility, including against star athletes; the commenter believed that due process was essential to the program’s credibility.451 At least one commenter supported the § 106.45 grievance process as a lawful method of implementing Title IX’s directive that the Department ‘‘effectuate the provisions of’’ Title IX, citing 20 U.S.C. 1681 and 1682, arguing that the Department’s proposed grievance process: Adopts procedures designed to reduce or eliminate sex discrimination; prevents violations of substantive non-discrimination mandates; and constitutes a reasonable means of guarding against sex discrimination and unlawful retaliation, particularly because the § 106.45 requirements are sex neutral and narrowly tailored to prevent sex discrimination. One commenter asserted with approval that the § 106.45 grievance process not only expressly prohibits bias and conflicts of interest, but also promotes full and fair adversarial procedures and requires decision-makers to give reasons that explain their decisions—all of which have been shown to prevent biased outcomes. One commenter suggested improving § 106.45 by clarifying whether the procedures in the ‘‘investigations’’ section apply throughout the entire grievance process or only to the investigation portion of a grievance process. Another commenter expressed concern that recipients wishing to avoid applying the § 106.45 grievance process will process complaints about sexual misconduct outside their Title IX offices under non-Title IX code of conduct provisions and suggested the Department take action to ensure that recipients cannot circumvent § 106.45 by charging students with non-Title IX student conduct code violations. One 451 Commenters cited: Gary Pavela & Gregory Pavela, The Ethical and Educational Imperative of Due Process, 38 Journal of Coll. & Univ. L. 567 (2012) (arguing that ‘‘due process—broadly defined as an inclusive mechanism for disciplined and impartial decision making—is essential to the educational aims of contemporary higher education and to fostering a sense of legitimacy in college and university policies.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 commenter asked the Department to clarify whether § 106.45 applies to nonsexual harassment sex discrimination complaints. Discussion: The Department appreciates the variety of reasons for which commenters expressed support for the § 106.45 grievance process. The provisions in § 106.45 are grounded in principles of due process to promote equitable treatment of complainants and respondents and protect each individual involved in a grievance process without bias against an individual’s sex, race, ethnicity, socioeconomic status, or other characteristics, by focusing the proceeding on unbiased, impartial determinations of fact based on relevant evidence. The Department understands that some commenters believe § 106.45 primarily benefits women and others believe such provisions primarily benefit men; however, the Department agrees with still other commenters who support § 106.45 because its procedural protections provide all complainants and respondents with a consistent, reliable process without regard to sex. The Department will enforce § 106.45 in a manner that does not discriminate based on sex. The Department agrees that due process of law exists to protect all individuals, and disagrees with commenters who claim that only guilty people need due process protections; the evolution of the American concept of due process of law has revolved around recognition that for justice to be done, procedural protections must be offered to those accused of even the most heinous offenses—precisely because only through a fair process can a just conclusion of responsibility be made. Further, the § 106.45 grievance process grants procedural rights to complainants and respondents so that both parties benefit from strong, clear due process protections. In response to a commenter’s request, the final regulations include two changes to clarify that procedures and requirements listed in § 106.45 apply throughout the entirety of a grievance process. First, the Department uses the phrase ‘‘grievance process’’ and ‘‘a grievance process that complies with § 106.45’’ throughout the final regulations rather than ‘‘grievance procedures’’ or ‘‘due process protections’’ to reinforce that the entirety of § 106.45 applies when a formal complaint necessitates a grievance process. Second, and in particular response to the commenter’s concern, the final regulations revise the investigation portion of § 106.45 to begin with the phrase ‘‘When investigating a formal complaint, and throughout the grievance process, a PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 30095 recipient must . . .’’ (emphasis added) to clarify that the procedures and protections in § 106.45(b)(5) apply to investigations but also throughout the grievance process. The Department appreciates the commenter’s concern that § 106.45 not be circumvented by processing sexual harassment complaints under non-Title IX provisions of a recipient’s code of conduct. The definition of ‘‘sexual harassment’’ in § 106.30 constitutes the conduct that these final regulations, implementing Title IX, address. Allegations of conduct that do not meet the definition of ‘‘sexual harassment’’ in § 106.30 may be addressed by the recipient under other provisions of the recipient’s code of conduct, and we have revised § 106.45(b)(3) to clarify that intent; however, where a formal complaint alleges conduct that meets the Title IX definition of ‘‘sexual harassment,’’ a recipient must comply with § 106.45.452 In response to a commenter’s request for clarification, § 106.45 applies to formal complaints alleging sexual harassment under Title IX, but not to complaints alleging sex discrimination that does not constitute sexual harassment (‘‘non-sexual harassment sex discrimination’’). Complaints of non-sexual harassment sex discrimination may be filed with a recipient’s Title IX Coordinator for handling under the ‘‘prompt and equitable’’ grievance procedures that recipients must adopt and publish pursuant to § 106.8(c). Changes: To clarify that the ten groups of provisions that comprise § 106.45 453 apply as a cohesive whole to the handling of a formal complaint of sexual harassment, the Department has changed terminology throughout the final regulations to refer to ‘‘a grievance process complying with § 106.45’’ (for example, in § 106.44(a)), and uses the phrase ‘‘grievance process’’ rather than ‘‘grievance procedures’’ within § 106.45. Additionally, § 106.45(b)(5) now clarifies that the procedures a recipient must follow during investigation of a formal complaint also must apply throughout the entire grievance process. Comments: Two commenters representing trade associations of men’s fraternities and women’s sororities requested that the Department specify that an individual’s Title IX sexual harassment violation must be 452 Section 106.45(b) (‘‘For the purpose of addressing formal complaints of sexual harassment, a recipient’s grievance process must comply with the requirements of this section.’’). 453 See the ‘‘Summary of § 106.45’’ subsection of the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30096 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations adjudicated as an individual case unless specific evidence clearly implicates group responsibility, in which case the recipient must apply a separate grievance process (with the same due process protections contained in § 106.45) to adjudicate group or organizational responsibility. These commenters asserted that in the past few years more than 20 postsecondary institutions have suspended entire systems of fraternities and sororities upon reports of a group member sexually harassing a complainant, and that such action chills and deters victims from reporting sexual harassment because some victims do not wish to see broad groups of people punished for the wrongdoing of an individual perpetrator. One commenter supported § 106.45 but asked the Department to require recipients to punish individuals who make false accusations. Discussion: The final regulations address recipients’ obligations to respond to sexual harassment, and § 106.45 obligates a recipient to follow a consistent grievance process to investigate and adjudicate allegations of sexual harassment. In § 106.30, ‘‘respondent’’ is defined as ‘‘an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.’’ The § 106.45 grievance process, therefore, contemplates a proceeding against an individual respondent to determine responsibility for sexual harassment.454 The Department declines to require recipients to apply § 106.45 to groups or organizations against whom a recipient wishes to impose sanctions arising from a group member being accused of sexual harassment because such potential sanctions by the recipient against the group do not involve determining responsibility for perpetrating Title IX sexual harassment but rather involve determination of whether the group violated the recipient’s code of conduct. Application of non-Title IX provisions of a recipient’s code of conduct lies outside the Department’s authority under Title IX. For the same reason, the Department declines to require a recipient to punish individuals who make false accusations, even if the 454 As discussed in the ‘‘Dismissal and Consolidation of Formal Complaints’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, § 106.45(b)(4) gives recipients the discretion to consolidate formal complaints involving multiple parties where the allegations of sexual harassment arise from the same facts or circumstances; in such consolidated matters, the grievance process applies to more than one complainant and/or more than one respondent, but each party is still an ‘‘individual’’ and not a group or organization. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 accusations involve sexual harassment. An individual, or group of individuals, who believe a recipient has treated them differently on the basis of sex in a manner prohibited under Title IX may file a complaint of sex discrimination with the recipient’s Title IX Coordinator for handling under the ‘‘prompt and equitable’’ grievance procedures recipients must adopt and publish pursuant to § 106.8(c). Changes: None. Comments: Many commenters expressed concern that the § 106.45 grievance process unduly restricts recipients’ flexibility and discretion in structuring and applying recipients’ codes of conduct and that it ignores unique needs of the wide array of schools, colleges, and universities that differ in size, location, mission, public or private status, and resources, and imposes a Federal one-size-fits-all mandate on recipients. In support of granting flexibility and discretion to recipients, several commenters pointed the Department to Federal and State court opinions for the proposition that the internal decisions of colleges and universities, including academic and disciplinary matters, are given considerable deference by courts.455 Many commenters expressed concerns that the § 106.45 grievance process is too quasi-judicial to be applied in a setting where schools and colleges are not courts of law and that it ignores the educational purpose of school discipline. A few commenters requested that the Department incorporate more features of legal and court systems into § 106.45, including importing the Federal Rules of Evidence, the Federal Rules of Civil Procedure, and the Federal Rules of Criminal Procedure, and some of the rights afforded to criminal defendants under the U.S. Constitution such as protection against double jeopardy, protection against self-incrimination, and provision of public defenders (or provision of attorneys for both parties in a school-level Title IX proceeding). Many commenters objected to § 106.45 on the ground that it will be burdensome and costly for many recipients to adopt and implement. Some commenters believed that § 106.45 heightens the adversarial aspects of a grievance process, and others asserted that increasing the adversarial nature of the process undermines Title IX as a civil rights mechanism. Some commenters asserted 455 Commenters cited, e.g.: Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985); New Jersey v. T.L.O., 469 U.S. 325 (1985); Doe v. Hamilton Cnty. Bd. of Educ., 329 F. Supp. 3d 543, 470 (E.D. Tenn. 2018). PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 that adversarial proceedings advantage students with greater financial resources who can afford to hire an attorney over socioeconomically disadvantaged students. Discussion: The Department acknowledges the vast diversity among schools, colleges, and universities, the variety of systems historically used to enforce codes of conduct, and the desirability of each recipient retaining flexibility and discretion to manage its own affairs. With respect to Title IX sexual harassment, however, recipients are not simply enforcing their own codes of conduct; rather, they are complying with a Federal civil rights law, the protections and benefits of which extend uniformly to every person in the education program or activity of a recipient of Federal financial assistance. The need for Title IX to be consistently, predictably enforced weighs in favor of Federal rules standardizing the investigation and adjudication of sexual harassment allegations under these final regulations, implementing Title IX. The Department agrees with commenters that numerous Federal and State court opinions confirm the proposition that schools, colleges, and universities deserve considerable deference as to their internal affairs including academic and disciplinary decisions. The final regulations respect the right of recipients to make such decisions without being second guessed by the Department. The final regulations do not address recipients’ academic decisions (including curricula, or dismissals for failure to meet academic standards), and do not second guess disciplinary decisions. The Department does not require disciplinary sanctions after a determination of responsibility, and does not prescribe any particular form of sanctions.456 Rather, § 106.45 prescribes a grievance process focused on reaching an accurate determination regarding responsibility so that recipients and the Department can 456 The Department acknowledges that this approach departs from the 2001 Guidance, which stated that where a school has determined that sexual harassment occurred, effective corrective action ‘‘tailored to the specific situation’’ may include particular sanctions against the respondent, such as counseling, warning, disciplinary action, or escalating consequences. 2001 Guidance at 16. For reasons described throughout this preamble, the final regulations modify this approach to focus on remedies for the complainant who was victimized rather than on second guessing the recipient’s disciplinary sanction decisions with respect to the respondent. However, the final regulations are consistent with the 2001 Guidance’s approach inasmuch as § 106.45(b)(1)(i) clarifies that ‘‘remedies’’ may consist of individualized services similar to those described in § 106.30 as ‘‘supportive measures’’ except that remedies need not avoid disciplining or burdening the respondent. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations ensure that victims of sexual harassment receive remedies designed to restore or preserve a victim’s equal access to the recipient’s education program or activity. Because § 106.45 provides a grievance process designed to effectuate the purpose of Title IX, a Federal civil rights statute, the Title IX grievance process is not purely an internal decision of the recipient. The Department believes that the § 106.45 grievance process will promote consistency, transparency, and predictability for students, employees, and recipients, ensuring that enforcement of Title IX sexual harassment rules does not vary needlessly from school to school or college to college. The Department notes that courts have traditionally distinguished between student dismissal for misconduct, where more due process is required, and dismissal for academic failure, where less due process is owed, because of the subjectivity of a school’s conclusion that a student has failed to meet academic standards. Where misconduct is at issue, however, conclusions about whether the misconduct took place involve objective factual determinations rather than subjective academic judgments, and procedures rooted in fundamental due process principles can ‘‘safeguard’’ the accuracy of determinations about misconduct.457 Within the standardized § 106.45 grievance process, recipients retain significant flexibility and discretion, including decisions to: Designate the reasonable time frames that will apply to the grievance process; use a recipient’s own employees as investigators and decision-makers or outsource those functions to contractors; determine whether a party’s advisor of choice may actively participate in the grievance process; select the standard of evidence to apply in reaching determinations regarding responsibility; use an individual decision-maker or a 457 Lisa L. Swem, Due Process Rights in Student Disciplinary Matters, 14 Journal of Coll. & Univ. L. 359, 361–62 (1987) (citing Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78 (1978) where the Supreme Court held that procedures leading to medical student’s dismissal for failing to meet academic standards did not violate due process of law under the Fourteenth Amendment) (noting that courts often distinguish between student dismissal for misconduct, where more due process is required, and dismissal for academic failure, where less due process is owed, because of the subjectivity of a school’s conclusion that a student has failed to meet academic standards); Horowitz, 435 U.S. at 95 fn. 5 (Powell, J., concurring) (‘‘A decision relating to the misconduct of a student requires a factual determination as to whether the conduct took place or not. The accuracy of that determination can be safeguarded by the sorts of procedural protections traditionally imposed under the Due Process Clause.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 panel of decision-makers; offer informal resolution options; impose disciplinary sanctions against a respondent following a determination of responsibility; and select procedures to use for appeals. The Department agrees with commenters that schools, colleges, and universities are educational institutions and not courts of law. The § 106.45 grievance process does not attempt to transform schools into courts; rather, the prescribed framework provides a structure by which schools reach the factual determinations needed to discern when victims of sexual harassment are entitled to remedies. The Department declines to import into § 106.45 comprehensive rules of evidence, rules of civil or criminal procedure, or constitutional protections available to criminal defendants. The Department recognizes that schools are neither civil nor criminal courts, and acknowledges that the purpose of the § 106.45 grievance process is to resolve formal complaints of sexual harassment in an education program or activity, which is a different purpose carried out in a different forum from private lawsuits in civil courts or criminal charges prosecuted by the government in criminal courts. The Department believes that the final regulations prescribe a grievance process with procedures fundamental to a truthseeking process reasonably adapted for implementation in an education program or activity. The Department understands commenters’ objections that § 106.45 will be burdensome and costly for many recipients to adopt and implement. The Department also appreciates that many of these commenters, and additional commenters, recognized that receipt of Federal financial assistance requires recipients to comply with regulations effectuating Title IX’s nondiscrimination mandate and that the benefits of protecting civil rights outweigh the monetary costs of compliance. While the Department is required to estimate the benefits and costs of every regulation, and has considered those benefits and costs for these final regulations, our decisions regarding the final regulations rely on legal and policy considerations designed to effectuate Title IX’s civil rights objectives, and not on the estimated cost likely to result from these final regulations. The Department further acknowledges commenters’ concerns that schools, colleges, and universities exist primarily to educate, and are not courts with a primary purpose, focus, or expertise in administering proceedings to resolve PO 00000 Frm 00073 Fmt 4701 Sfmt 4700 30097 factual disputes. Many commenters expressed a similar concern, that recipients may view a recipient’s code of conduct as an educational process rather than a punitive process, and these recipients are thus uncomfortable with a grievance process premised on adversarial aspects of resolving the truth of factual allegations. With respect to Title IX sexual harassment, however, in order to carry out a recipient’s responsibility to provide appropriate remedies to victims suffering from that form of sex discrimination, the recipient must administer a grievance process designed to reach reliable factual determinations and do so in a manner free from sex-based bias. In the context of sexual harassment that process is often inescapably adversarial in nature where contested allegations of serious misconduct carry high stakes for all participants. The standardized framework of the § 106.45 grievance process will thus assist recipients in complying with the recipients’ Title IX obligation to provide remedies for sexual harassment victims when a respondent is found responsible for sexual harassment, by providing recipients with a prescribed structure for resolving highly contested factual disputes between members of the recipient’s own community consistent with due process principles, in recognition that recipients may not already have such a structure in place. Recipients retain the right and ability to use the disciplinary process as an educational tool rather than a punitive tool because the § 106.45 grievance process leaves recipients with wide discretion to utilize informal resolution processes 458 and does not mandate or second guess disciplinary sanctions.459 Rather, the § 106.45 grievance process focuses on the purpose of Title IX: To give individuals protections against discriminatory practices and ensure that recipients provide victims of sexual harassment with remedies to help overcome the denial of equal access to education caused by sex discrimination in the form of sexual harassment.460 The Department disagrees with commenters who believe that § 106.45 458 Section 106.45(b)(9). 106.44(b)(2). 460 As discussed throughout this preamble, including in the ‘‘Section 106.44(a) Deliberate Indifference Standard’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble, the final regulations also mandate that recipients offer supportive measures to complainants with or without a formal complaint so that complainants receive meaningful assistance from their school in restoring or preserving equal access to education even in situations that do not result in an investigation and adjudication under § 106.45. 459 Section E:\FR\FM\19MYR2.SGM 19MYR2 30098 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations heightens the adversarial nature of the grievance process. The Department believes that sexual harassment allegations inherently present an adversarial situation; as some commenters pointed out, campus sexual misconduct situations often present plausible competing narratives under circumstances that pose challenges to reaching accurate factual determinations.461 A grievance process that standardizes procedures by which parties participate equally serves the purpose of reaching reliable determinations resolving factual disputes presented in formal complaints alleging sexual harassment, in a manner free from sex-based bias, and increasing confidence in the outcomes of such cases. Acknowledging that sexual harassment allegations present adversarial circumstances and that parties may benefit from guidance, advice, and assistance in such a setting, the Department requires recipients to allow the parties to select advisors of choice to assist each party throughout the grievance process.462 In recognition that Title IX governs recipients, not parties, the Department obligates the recipient to carry both the burden of proof and the burden of collecting evidence sufficient to reach a determination regarding responsibility, while also providing parties equal opportunity (but not the burden or obligation) to gather and present witnesses and other evidence, review and challenge the evidence collected, and question other parties and witnesses.463 461 See, e.g., EduRisk by United Educators, Confronting Campus Sexual Assault: An Examination of Higher Education Claims 1 (2015) (‘‘Recent legal and regulatory mandates require virtually all colleges and universities to investigate and adjudicate reports of sexual assault. An analysis of claims reported to United Educators (UE) reveals that institutions respond to cases of sexual assault that the criminal justice system often considers too difficult to succeed at trial and obtain a conviction. Our data indicates these challenging cases involve little or no forensic evidence, delays in reporting, use of alcohol, and differing accounts of consent.’’). 462 Section 106.45(b)(5)(iv). 463 Section 106.45(b)(5)(i) through (vii); § 106.45(b)(6). We also note that § 106.45(b)(9) gives recipients the discretion to offer and facilitate informal resolution processes, such as mediation or restorative justice, subject to each party voluntarily agreeing after giving informed, written consent. Informal resolution may present a way to resolve sexual harassment allegations in a less adversarial manner than the investigation and adjudication procedures that comprise the § 106.45 grievance process. Informal resolution may only be offered after a formal complaint has been filed, so that the parties understand what the grievance process entails and can decide whether to voluntarily attempt informal resolution as an alternative. Recipients may never require any person to participate in information resolution, and may never condition enrollment, employment, or VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 The Department does not agree that an adversarial process runs contrary to Title IX as a civil rights mechanism. To the extent that commenters raising this concern believe that adversarial systems, historically or generally, disadvantage people already marginalized due to sex, race, ethnicity, and other characteristics, the Department will enforce all provisions of § 106.45 without regard to any party’s sex, race, ethnicity, or other characteristic, and expects recipients to implement § 106.45 without bias of any kind. The Department further notes that the § 106.45 grievance process is one particular part of a recipient’s response to a formal complaint; § 106.44(a) obligates a recipient to provide a prompt, non-deliberately indifferent response to each complainant including offering supportive measures, whether or not the complainant files a formal complaint or participates in a § 106.45 grievance process. The Department believes that § 106.45 serves the important purpose of effectuating Title IX as a civil rights non-discrimination mandate, and the final regulations provide for complainants to receive supportive measures to preserve or restore equal access to education even where a complainant does not wish to participate in the adversarial aspects of a § 106.45 grievance process. The Department acknowledges that a party’s choice of advisor may be limited by whether the party can afford to hire an advisor or must rely on an advisor to assist the party without fee or charge. The Department wishes to emphasize that the status of any party’s advisor (i.e., whether a party’s advisor is an attorney or not), the financial resources of any party, and the potential of any party to yield financial benefits to a recipient, must not affect the recipient’s compliance with § 106.45, including the obligation to objectively evaluate relevant evidence and use investigators and decision-makers free from bias or conflicts of interest. Changes: In response to comments concerning specific topics addressed in § 106.45, the Department has made changes in the final regulations that increase recipients’ flexibility and discretion while preserving the benefits of a standardized grievance process that promotes reliable fact-finding.464 enjoyment of any other right or privilege upon agreeing to informal resolution. Informal resolution is not an option to resolve allegations that an employee sexually harassed a student. 464 See, e.g., the discussion in the ‘‘Other Language/Terminology Comments’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble (noting that recipients may decide whether to calculate time frames using calendar PO 00000 Frm 00074 Fmt 4701 Sfmt 4700 Comments: Some commenters argued that educational institutions should not have the authority to adjudicate criminal accusations, that sexual assault and harassment should be treated like a crime, and that investigations into sex crimes should be solely in the hands of law enforcement (such as the police, district attorneys, State attorney’s offices, or U.S. Department of Justice). Some commenters believed the alleged victim should be required to report directly to law enforcement and schools should facilitate survivors’ access to the appropriate authorities. Some commenters expressed concern that the proposed rules exclude law enforcement from the investigation process. Several commenters concluded that student conduct hearings are too different from criminal trials to be capable of addressing criminal allegations. One commenter believed that universities are incapable of fair assessment in criminal sex offense matters because universities have a strong desire to be seen as advocates for social change; another commenter believed schools have already made a mockery out of campus sexual assault proceedings shown by a practice the commenter characterized as ‘‘the first to accuse wins’’ that has led to an epidemic of false allegations. One commenter argued that the Department must decide if recipients can defer completely to the criminal justice system regarding sexual assault, or else require recipients to implement procedures that are fair, transparent, and adhere to constitutional protections. One commenter believed that alleged assailants should be held responsible in a court of law and that victims should have the right to pursue court action at any point in time. Some commenters argued that the proposed rules are too similar to criminal court procedures that should not apply to Title IX proceedings because a university disciplinary proceeding does not result in loss of life or liberty for the respondent. Other commenters expressed support for the proposed rules on the belief that the proposed rules require many due process protections existing in criminal proceedings, which these commenters supported because the high days, school days, or other method); § 106.45(b)(6)(i) (allowing, but not requiring, live hearings to be held virtually through use of technology); § 106.45(b)(5)(vi) (removing the requirement that evidence in the investigation be provided to the parties using a file-sharing platform); § 106.45(b)(7)(i) (removing the requirement that the preponderance of the evidence standard may be used only if that standard is also used for recipients’ non-sexual harassment code of conduct violations). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations consequences in Title IX cases justify procedural safeguards similar to those in court systems. One commenter suggested that before resorting to the formal ‘‘court-like’’ proceedings in the proposed rules, parties to a sexual assault allegation should always first attempt mediation. Several commenters suggested that the Department establish ‘‘regional centers’’ for investigation and adjudication of Title IX sexual harassment (or at least as to sexual assault), or at least advise colleges and universities that such recipients can join with other similar institutions in their geographic area to form regional centers charged with conducting the investigations and adjudications required under the proposed rules. These commenters asserted using such a regional center model may benefit recipients because instead of performing investigations and conducting hearings with recipients’ own personnel (who may not have sufficient training and experience, and who have inherent potential conflicts of interest), recipients could outsource these functions to centers employing personnel with sufficient expertise and experience to perform investigations and adjudications without conflicts of interest, impartially, and in compliance with the final regulations. One commenter examined variations on potential models for such regional centers, noting that one model might involve a consortium of institutions forming independent 501(c)(3) organizations to cooperatively handle member institutions’ needs for investigation and adjudication of Title IX sexual harassment, and a variation of that model would involve those functions handled under the auspices of State government (such as a State attorney general’s office); this commenter urged the Department to remind recipients that such models exist as possible methods for better handling obligations under these final regulations, contended that suggesting such models without mandating them is consistent with the Department’s overall approach of not dictating specific details more than might be reasonably necessary, and expressed the belief that different types of regional centers with different structures can be tried out and continually improved and refined for what works best in practice for different types of institutions, thus innovating better ways for recipients to competently handle Title IX sexual harassment allegations. Discussion: The Department understands the concerns of some commenters who believe that VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 educational institutions should not have authority to adjudicate criminal accusations and that law enforcement and criminal justice systems are the appropriate bodies to investigate, prosecute, and penalize criminal charges. However, the Supreme Court has held that sexual misconduct that constitutes a crime under State law may also constitute sex discrimination under Title IX, and the Department has the responsibility of enforcing Title IX.465 The Department is not regulating sex crimes, per se, but rather is addressing a type of discrimination based on sex. That some Title IX sexual harassment might constitute criminal conduct does not alter the importance of identifying and responding to sex discrimination that is prohibited by Title IX. By requiring recipients to address sex discrimination that takes the form of sexual harassment in a recipient’s education program or activity, the Department is not requiring recipients to adjudicate criminal charges or replace the criminal justice system. Rather, the Department is requiring recipients to adjudicate allegations that sex-based conduct has deprived a complainant of equal access to education and remedy such situations to further Title IX’s nondiscrimination mandate. The Department recognizes that some Title IX sexual harassment also constitutes criminal conduct under a variety of State laws and that the potential exists for the same set of allegations to result in proceedings under both § 106.45 and criminal laws. Where appropriate, the final regulations acknowledge this intersection; 466 465 See, e.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 278, 292 (1998) (holding that a sex offense by a teacher against a student—and noting that the offense was one for which the teacher had been arrested—constituted sex discrimination prohibited under Title IX). 466 Section 106.45(b)(1)(v) provides that the recipient’s designated reasonably prompt time frame for completion of a grievance process is subject to temporary delay or limited extension for good cause, which may include concurrent law enforcement activity. Section 106.45(b)(6)(i) provides that the decision-maker cannot draw any inference about the responsibility or nonresponsibility of the respondent solely based on a party’s failure to appear or answer crossexamination questions at a hearing; this provision applies to situations where, for example, a respondent is concurrently facing criminal charges and chooses not to appear or answer questions to avoid self-incrimination that could be used against the respondent in the criminal proceeding. Further, subject to the requirements in § 106.45 such as that evidence sent to the parties for inspection and review must be directly related to the allegations under investigation, and that a grievance process must provide for objective evaluation of all relevant evidence, inculpatory and exculpatory, nothing in the final regulations precludes a recipient from using evidence obtained from law enforcement in a § 106.45 grievance process. § 106.45(b)(5)(vi) (specifying that the evidence directly related to the PO 00000 Frm 00075 Fmt 4701 Sfmt 4700 30099 however, a recipient cannot discharge its legal obligation to provide education programs or activities free from sex discrimination by referring Title IX sexual harassment allegations to law enforcement (or requiring or advising complainants to do so),467 because the purpose of law enforcement differs from the purpose of a recipient offering education programs or activities free from sex discrimination. Whether or not particular allegations of Title IX sexual harassment also meet definitions of criminal offenses, the recipient’s obligation is to respond supportively to the complainant and provide remedies where appropriate, to ensure that sex discrimination does not deny any person equal access to educational opportunities. Nothing in the final regulations prohibits or discourages a complainant from pursuing criminal charges in addition to a § 106.45 grievance process. The Department disagrees with commenters who argued that recipients are not capable of addressing Title IX sexual harassment allegations when such allegations also constitute allegations of criminal activity. The Department has carefully constructed the § 106.45 grievance process for application by a recipient in an education program or activity keeping in mind that schools, colleges, and universities exist first and foremost to educate and do not function as courts of law. The Department understands commenters’ assertions that some recipients desire to advocate social change and that some have conducted unfair, biased sexual misconduct proceedings; however, the Department believes that the § 106.45 grievance process reflects a standardized framework that recipients are capable of applying to reach fair, unbiased determinations about sex discrimination in the form of sexual harassment in recipients’ education programs or activities. The procedures required under § 106.45 are those the Department has determined are most likely to lead to reliable outcomes in the context of Title IX sexual harassment. The § 106.45 allegations may have been gathered by the recipient ‘‘from a party or other source’’ which could include evidence obtained by the recipient from law enforcement) (emphasis added); § 106.45(b)(1)(ii). 467 The 2001 Guidance takes a similar position: ‘‘In some instances, a complainant may allege harassing conduct that constitutes both sex discrimination and possible criminal conduct. Police investigations or reports may be useful in terms of fact gathering. However, because legal standards for criminal investigations are different, police investigations or reports may not be determinative of whether harassment occurred under Title IX and do not relieve the school of its duty to respond promptly and effectively.’’ 2001 Guidance at 22. E:\FR\FM\19MYR2.SGM 19MYR2 30100 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations grievance process is inspired by principles of due process; however, the final regulations do not incorporate by reference constitutional due process required for criminal defendants, precisely because recipients are reaching conclusions about sex discrimination in a very different context than criminal courts reaching conclusions about defendants’ guilt or innocence of criminal charges. While the final regulations permit recipients wide discretion to facilitate informal resolution of formal complaints of sexual harassment,468 the Department declines to require parties to attempt mediation before initiating the formal grievance process. Every party should know that a formal, impartial, fair process is available to resolve Title IX sexual harassment allegations; where a recipient believes that parties may benefit from mediation or other informal resolution process as an alternative to the formal grievance process, the decision to attempt mediation or other form of informal resolution should remain with each party. The Department appreciates commenters’ recommendations for using regional center models and similar models involving voluntary, cooperative efforts among recipients to outsource the investigation and adjudication functions required under the final regulations. The Department believes these models represent the potential for innovation with respect to how recipients might best fulfill the obligation to impartially reach accurate factual determinations while treating both parties fairly. The Department encourages recipients to consider innovative solutions to the challenges presented by the legal obligation for recipients to fairly and impartially investigate and adjudicate these difficult cases, and the Department will provide technical assistance for recipients with questions about pursuing regional center models. Changes: None. Comments: Several commenters challenged the Department’s legal authority to prescribe a standardized grievance process on the ground that the Department’s charge under Title IX is to prevent sex discrimination, not to enforce constitutional due process or ensure that respondents are disciplined fairly. These commenters pointed to Federal court opinions holding that unfair discipline in a sexual harassment proceeding does not, by itself, demonstrate that a respondent was subjected to discrimination on the basis of sex, and Federal court opinions holding that a university using a ‘‘victim-centered approach,’’ or otherwise allegedly favoring sexual assault complainants over respondents, is not necessarily discriminating against respondents based on sex.469 These commenters argued that the Department cannot therefore prescribe a grievance process premised on the fairness of discipline as a way of furthering Title IX’s prohibition against sex discrimination. At least one commenter argued that the Supreme Court held in Gebser that a school’s failure to adopt grievance procedures for resolving sexual harassment does not itself constitute discrimination under Title IX, and the commenter argued that this shows that failure to have any grievance procedures at all, much less a grievance process with specific procedural protections, does not violate Title IX absent a showing that such a failure was motivated by a student’s sex. Several commenters opposed § 106.45 by noting that Federal courts have not required the particular procedures required under § 106.45, and challenging the Department’s rationale for prescribing a grievance process that provides more procedural protections than the Supreme Court has required under constitutional due process. Some commenters argued that the Department’s authority under Title IX permits the Department to regulate recipients’ grievance procedures only to ensure that the formal complaint process does not discriminate against any party based on sex. Several commenters requested that the Department reserve the ‘‘stringent’’ grievance process required under § 106.45 only for complaints that allege sexual assault, involve allegations of violence, or otherwise subject a respondent to a potential sanction of expulsion. A few commenters asserted that to the extent that bias and lack of impartiality in school-level Title IX proceedings have resulted in sex discrimination sometimes against women and other times against men, the provisions in § 106.45 prohibiting bias, conflicts of interest, and sex stereotypes used in 468 Section 106.45(b)(9) allows informal resolution processes, but only with the written, voluntary consent of both parties, notice to the parties about ramifications of such processes, and with the exception that no such informal resolution may be offered with respect to allegations that an employee sexually harassed a student. 469 See, e.g., cases cited by commenters referenced in the ‘‘Section 106.45(a) Treatment of Complainants or Respondents Can Violate Title IX’’ subsection of the ‘‘General Requirements for § 106.45 Grievance Process’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 PO 00000 Frm 00076 Fmt 4701 Sfmt 4700 training materials, and requiring objective evaluation of all relevant evidence and equal opportunity for the parties to present, review, and challenge testimony and other evidence, will reduce the likelihood that sex discrimination will occur in Title IX proceedings because even if school officials harbor intentional or unintentional sex-based biases or prejudices, such improper biases and prejudices are less likely to affect the handling of the matter when the process requires application of procedures grounded in principles of due process. Some commenters objected to the use of the words ‘‘due process’’ and ‘‘due process protections’’ in § 106.45, believing that using the term ‘‘due process’’ blurs the line between constitutional due process owed by recipients that are State actors, and a ‘‘fair process’’ that all recipients, including private institutions, generally owe by contract with students and employees. These commenters believe that using the term ‘‘due process’’ in § 106.45 will lead to confusion and misplaced expectations for students, and possibly lead to increased litigation as students try to enforce constitutional due process against private institutions that do not owe constitutional protections. These commenters suggested that the phrase ‘‘fair process’’ replace ‘‘due process’’ in § 106.45. Discussion: The § 106.45 grievance process prescribed by the final regulations directly serves the purposes of Title IX by providing a framework under which recipients reliably determine the facts of sexual harassment allegations in order to provide appropriate remedies for victims of sexual harassment when the recipient has determined the respondent is responsible. The Department recognizes that some recipients are State actors with responsibilities to provide due process of law to students and employees under the U.S. Constitution, while other recipients are private institutions that do not have constitutional obligations to their students and employees. The Department believes that conforming to the § 106.45 grievance process likely will meet constitutional due process obligations in Title IX sexual harassment proceedings, and as the Department has recognized in guidance for nearly 20 years, Title IX rights must be interpreted consistent with due process guarantees.470 However, independent of constitutional due process, the purpose of the § 106.45 grievance process is to provide 470 2001 E:\FR\FM\19MYR2.SGM Guidance at 22. 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations individuals with effective protection from discriminatory practices, including remedies for sexual harassment victims, by consistent application of procedures that improve perceptions that Title IX sexual harassment allegations are resolved fairly, avoid injection of sexbased biases and stereotypes into Title IX proceedings, and promote reliable outcomes. The Department agrees with commenters who asserted that unfair imposition of discipline, even in a way that violates constitutional due process rights, does not necessarily equate to sex discrimination prohibited by Title IX, and this is reflected in the final regulations. Section 106.45(a), for example, states that a recipient’s treatment of a respondent ‘‘may also constitute discrimination on the basis of sex under title IX’’ (emphasis added). The § 106.45 grievance process aims to provide both parties with equal rights and opportunities to participate in the process, and to promote impartiality without favor to complainants or respondents, both because treating a complainant or respondent differently based on sex would violate Title IX, and because a process lacking principles of due process risks bias that in the context of sexual harassment allegations is likely to involve bias based on stereotypes and generalizations on the basis of sex. To the extent that the Supreme Court has not held that the specific procedures required under § 106.45 are required under constitutional due process, § 106.45 is both consistent with constitutional due process, and an appropriate exercise of the Department’s authority to prescribe a consistent framework for handling the unique circumstances presented by sexual harassment allegations.471 For reasons discussed in this preamble with respect to each provision in § 106.45, the Department believes that each provision appropriately incorporates principles of due process that provide individuals with effective protection from discriminatory practices, including remedies for sexual harassment victims, by improving perceptions that Title IX sexual harassment allegations are resolved fairly, avoiding injection of sex-based biases and stereotypes into Title IX proceedings, and promoting reliable outcomes. While commenters correctly observe that the Supreme Court’s Title IX opinions do not equate failure to adopt a grievance procedure with sex 471 See discussion in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 discrimination under Title IX,472 the Supreme Court has also acknowledged that the Department, under its administrative authority to enforce Title IX, may impose regulatory requirements (such as adoption and publication of grievance procedures) that further the purpose of Title IX to prevent recipients of Federal financial assistance from engaging in sex discriminatory practices and provide individuals with effective protection against sex discriminatory practices.473 The Department believes that § 106.45 not only incorporates basic principles of due process appropriately translated into the particular context of sexual harassment in education programs and activities but also serves to prevent, reduce, and root out sexbased bias that might otherwise cause recipients to favor one party over the other. The Department appreciates commenters’ recognition that many provisions of § 106.45, which serve the purpose of increasing the reliability of fact-finding, also decrease the likelihood that sex-based biases, prejudices, or stereotypes will affect the investigation and adjudication process in violation of Title IX’s prohibition against sex discrimination. The § 106.45 grievance process effectuates Title IX’s nondiscrimination mandate both by reducing the opportunity for sex discrimination to impact investigation and adjudication procedures through the recipient’s own actions during the handling of a complaint, and by promoting a reliable fact-finding process so that recipients are held liable for providing remedies to victims of sex discrimination in the form of sexual harassment perpetrated in the recipient’s education program or activity. While the Department believes that the § 106.45 grievance process provides an appropriately fair framework for many types of school disciplinary matters, the Department is authorized to prescribe § 106.45 for resolution of formal complaints of Title IX sexual harassment because consistent processes reaching reliable factual determinations are needed in order to provide remedies to sexual harassment victims (to further Title IX’s purpose) and because Title IX sexual harassment allegations inherently invite intentional or unintentional application of sexbased assumptions, generalizations, and 472 See, e.g., Gebser, 524 U.S. at 291–92. at 292 (‘‘Agencies generally have authority to promulgate and enforce requirements that effectuate the statute’s non-discrimination mandate, 20 U.S.C. 1682, even if those requirements do not purport to represent a definition of discrimination under the statute.’’). 473 Id. PO 00000 Frm 00077 Fmt 4701 Sfmt 4700 30101 stereotypes (which violate Title IX’s non-discrimination mandate). The Department declines to apply the § 106.45 grievance process only to formal complaints alleging sexual assault, involving allegations of violence, or otherwise subjecting a respondent to expulsion. As discussed under § 106.44(a) and § 106.30, the Department has defined sexual harassment to include three categories of misconduct on the basis of sex (quid pro quo harassment by an employee; severe, pervasive, and objectively offensive unwelcome conduct; and sexual assault, dating violence, domestic violence, or stalking as defined under the Clery Act and VAWA). Each of these categories of misconduct is a serious violation that jeopardizes a victim’s equal access to education. Formal complaints alleging any type of sexual harassment, as defined in § 106.30, must be handled under a process designed to reliably determine the facts surrounding each allegation so that recipients provide remedies to victims subjected to that serious misconduct. The final regulations do not prescribe any particular form of disciplinary sanction for sexual harassment. Therefore, the Department declines to apply § 106.45 only when a respondent faces expulsion; rather, § 106.45 applies to formal complaints alleging Title IX sexual harassment regardless of what potential discipline a recipient may impose on a respondent who is found responsible. In response to commenters concerned that the term ‘‘due process’’ or ‘‘due process protections’’ needlessly confuses whether the Department is referring to a fair process that applies equally to both public and private institutions, or constitutional due process that only public institutions are required to provide, the final regulations use the phrase ‘‘grievance process that complies with § 106.45’’ instead of ‘‘due process’’ or ‘‘due process protections.’’ 474 In this way, the Department clarifies that all recipients must, where indicated, apply the § 106.45 grievance process, which requires procedures the Department believes draw from principles of due process but remain distinct from constitutional due process owed by public institutions. Changes: The final regulations use the phrase ‘‘grievance process that complies with § 106.45’’ instead of ‘‘due process’’ or ‘‘due process protections.’’ Comments: A few commenters noted that existing Title IX regulations provide 474 E.g., E:\FR\FM\19MYR2.SGM § 106.8(c); § 106.44(a); § 106.45(b)(1)(i). 19MYR2 30102 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations for prompt and equitable grievance procedures to resolve complaints of sex discrimination, and argued that existing regulations and the 2001 Guidance advising that an equitable grievance procedure means ensuring adequate, reliable, and impartial investigations of complaints, have long provided adequate due process protections for all parties, and thus the more detailed procedural requirements in § 106.45 are unnecessary and only serve to protect respondents at the expense of complainants. A few commenters pointed out that at least two of the Department’s Title IX enforcement actions in 2015 and 2016 concluded under then-applicable guidance that university complaint resolution processes were inequitable for complainants, respondents, or both. These commenters argued that this shows that the Department’s guidance has sufficiently protected each party’s right to a fair process. Discussion: As discussed in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, the Department in its guidance has interpreted the regulatory requirement for recipients to adopt equitable grievance procedures to mean such procedures must ensure adequate, reliable, and impartial investigations of complaints. While the Department still believes that adequate, reliable, and impartial investigation of complaints is necessary for the handling of sexual harassment complaints under Title IX, setting forth that interpretation of equitable grievance procedures in guidance lacks the force and effect of law. Furthermore, the Department does not believe that codifying the ‘‘adequate, reliable, and impartial investigation of complaints’’ standard into the final regulations would sufficiently promote consistency and reliability because such a conclusory standard does not helpfully interpret for recipients what procedures rooted in principles of due process are needed to achieve fairness and factual reliability in the context of Title IX sexual harassment allegations. To the extent that the Department has in the past used enforcement actions to identify particular ways in which a recipient’s grievance process failed to ensure ‘‘adequate, reliable, and impartial investigations,’’ the enforcement actions and resulting letters of finding and resolution agreements apply only to the particular recipient under investigation and do not substitute for the transparency of regulations that specify the actions required of all recipients. Through these final regulations, we seek to provide with more certainty that recipients’ VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 investigations will be held to consistent standards of adequacy, reliability, and impartiality. Changes: None. Comments: One commenter characterized the requirements of § 106.45 as elaborate and multitudinous, predicted that many recipients will fail to comply with every requirement, and asked the Department to answer (i) whether the Department will find a recipient in violation of § 106.45 only if the recipient violated a provision with deliberate indifference? (ii) Will the Department require parties to preserve objections based on a recipient’s failure to follow § 106.45 by raising the objection before the decision-maker and on appeal? (iii) Will any violation of § 106.45 result in the Department requiring the recipient to set aside its determination regarding responsibility and hold a new hearing, or only if the violation of § 106.45 affected the outcome? Discussion: In response to the commenter’s questions, the Department will enforce § 106.45 by holding recipients responsible for compliance regardless of any intent on the part of the recipient to violate § 106.45. The Department notes that under existing regulations and OCR enforcement practice, the Department does not pursue termination of Federal financial assistance unless a recipient refuses to correct a violation after the Department has notified the recipient of the violation. The Department will not impose on parties a requirement to preserve objections based on a recipient’s failure to comply with § 106.45, because the recipient’s obligation to comply exists whether or not the recipient is informed of the violation by a party. The corrective action a recipient must take after the Department identifies violations of statutory or regulatory requirements depends on the facts of each particular enforcement action, and the Department cannot predict every circumstance that may present itself in the future and, thus, declines to state under which circumstances a § 106.45 violation may require a recipient to set aside a determination regarding responsibility. Changes: None. Comments: Many commenters believe that due process protections unfairly favor respondents over complainants, and expressed concern that the proposed rules will cause sexual harassment victims to suffer additional trauma because investigations will be biased against complainants, will favor harassers over victims, and retraumatize survivors of sexual violence. A few commenters shared personal stories of PO 00000 Frm 00078 Fmt 4701 Sfmt 4700 feeling deterred from filing a sexual assault complaint because the legal process, including the Title IX campus process, would be harrowing or intimidating. Some commenters asserted that because complainants are disproportionately female, due process that benefits respondents constitutes sex discrimination against women. Some commenters asserted that treating complainants and respondents equally is insufficient to address the reality that sexual violence is prevalent throughout American society and because women historically have faced biased responses when women report being victims of sexual violence, equity under Title IX requires procedures that favor complainants. At least one commenter asserted that Title IX exists to address systemic gender inequality in education and was not enacted from a place of neutrality. A few commenters asserted that because rape victims often face blame and disbelief when they try to report being raped, and only approximately five in every 1,000 perpetrators of rape will face criminal conviction,475 the system is already tilted in favor of perpetrators and Title IX needs to provide complainants with more protections than respondents. Several commenters asserted that because studies have shown the rate of false reports of sexual assault to be low and because rates of sexual assault are high, Title IX must offer protections to complainants rather than seek to protect rights of respondents. Other commenters asserted that the rate of false or unfounded accusations of sexual misconduct may be higher than ten percent, and others disputed that the prevalence of campus sexual assault is as high as 20 percent. Other commenters argued that relatively few respondents found responsible for sexual misconduct are actually expelled,476 showing that the scales are not tipped in favor of complainants because even when found responsible, perpetrators are not receiving harsh sanctions. Commenters asserted that a regulation concerned with avoiding violations of respondents’ due process rights ignores the way complainants are still being pushed out of school due to inadequate, 475 Commenters cited: Rape, Abuse & Incest National Network (RAINN), Campus Sexual Violence: Statistics, https://www.rainn.org/ statistics/campus-sexual-violence. 476 Commenters cited: Kristen Lombardi, A Lack of Consequences for Sexual Assault, The Center for Public Integrity (Feb. 24, 2010) (noting that up to 25 percent of respondents are expelled); Nick Anderson, Colleges often reluctant to expel for sexual violence, The Washington Post (Dec. 15, 2014) (noting that only 12 percent of sanctions against respondents were expulsions). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations unfair responses to their reports of sexual harassment. Several commenters described retaliatory, punitive school and college responses to girls and women who reported suffering sexual harassment. At least one commenter asserted that while data show that boys of color are not disciplined in elementary and secondary schools for sexual harassment at rates much higher than white boys, data show that girls of color not only suffer sexual harassment at higher rates than white girls, but also are more likely to have their reports of sexual harassment ignored or be blamed or punished for reporting. Discussion: The Department disagrees that due process protections generally, and the procedures drawn from due process principles in § 106.45 particularly, unfairly favor respondents over complainants or sexual harassment perpetrators over victims, or that § 106.45 is biased against complainants, victims, or women. Section 106.45(a) states that a recipient’s treatment of a complainant, or a respondent, may constitute sex discrimination prohibited by Title IX. Section 106.45(b)(1)(iii) requires Title IX Coordinators, investigators, decision-makers, and individuals who facilitate any informal resolution process to be free of bias or conflicts of interest for or against complainants or respondents and to be trained on how to serve impartially. Section 106.45(b)(1)(ii) precludes credibility determinations based on a person’s status as a complainant, respondent, or witness. With the exceptions noted below, the other provisions of § 106.45 also apply equally to both parties. The exceptions are three provisions that distinguish between complainants and respondents; each exception results from the need to take into account the party’s position as a complainant or respondent specifically in the context of Title IX sexual harassment, to reasonably promote truth-seeking in a grievance process particular to sexual harassment allegations. Thus, § 106.45(b)(1)(i) requires recipients to treat complainants and respondents equitably by providing remedies for a complainant where a respondent has been found responsible, and by imposing disciplinary sanctions on a respondent only after following a § 106.45 grievance process; because remedies concern a complainant and disciplinary sanctions concern a respondent, this provision requires equitable treatment rather than strictly equal treatment. Section 106.45(b)(1)(iv) requires recipients to presume the respondent is not responsible until conclusion of the grievance process, VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 because such a presumption reinforces that the burden of proof remains on recipients (not on the respondent, or the complainant) and reinforces correct application of the standard of evidence. Section 106.45(b)(6)(i)-(ii) protects complainants (but not respondents) from questions or evidence about the complainant’s prior sexual behavior or sexual predisposition, mirroring rape shield protections applied in Federal courts. The § 106.45 grievance process, therefore, treats complainants and respondents equally in nearly every regard, with three exceptions (one imposing equitable treatment for both parties, one applicable only to respondents, and one applicable only to complainants). The Department disagrees with commenters who argued that any provision conferring a right or protection only to respondents treats complainants inequitably or constitutes sex discrimination against women. The sole provision that applies only to respondents (§ 106.45(b)(1)(iv)) does not treat complainants inequitably because the provision helps ensure that the burden of proof remains on the recipient, not on the complainant (or respondent), and the presumption serves to reinforce correct application of whichever standard of evidence the recipient has selected. The Department also notes that any person regardless of sex may be a complainant or a respondent, and, thus, provisions that treat complainants and respondents equitably based on party status or apply only to complainants or only to respondents for the purpose of fostering truth-seeking, do not discriminate based on sex but rather distinguish interests unique to a person’s party status. The Department is sensitive to the concerns from commenters that the experience of a grievance process may indeed feel traumatizing or intimidating to complainants,477 yet the facts surrounding sexual harassment incidents must be reliably determined in order to provide remedies to a victim. In deference to the autonomy of each complainant to decide whether to participate in a grievance process, the 477 The Department does not equate the trauma experienced by a sexual harassment victim with the experience of a perpetrator of sexual harassment or the experience of a person accused of sexual harassment. Nonetheless, the Department acknowledges that a grievance process may be difficult and stressful for both parties. Further, supportive measures may be offered to complainants and respondents (see § 106.30 defining ‘‘supportive measures’’), and § 106.45(b)(5)(iv) requires recipients to provide both parties the same opportunity to select an advisor of the party’s choice. These provisions recognize that the stress of participating in a grievance process affects both complainants and respondents and may necessitate support and assistance for both parties. PO 00000 Frm 00079 Fmt 4701 Sfmt 4700 30103 final regulations require recipients to offer supportive measures to each complainant whether or not the complainant files a formal complaint or otherwise participates in a grievance process.478 The Department disagrees that the historical or general societal bias against women or against victims of sexual harassment requires or justifies a grievance process designed to favor women or complainants. Title IX protects every ‘‘person’’ (20 U.S.C. 1681) without regard for the person’s sex or status as a complainant or respondent; the statute’s use of the word ‘‘person’’ and not ‘‘female’’ or ‘‘woman’’ indicates that contrary to a commenter’s assertion otherwise, Title IX was designed to operate neutrally with respect to the sex of persons protected by the nondiscrimination mandate. Whether or not commenters correctly describe the criminal justice system as ‘‘tilted in favor of perpetrators’’ demonstrated by data showing that only five in every 1,000 perpetrators of rape face criminal conviction, the grievance process under Title IX protects against, and through enforcement the Department will not tolerate, blaming or shaming women or any person pursuing a formal complaint of sexual harassment. Section 106.45 is premised on the principle that an accurate resolution of each allegation of sexual harassment requires objective evaluation of all relevant evidence without bias and without prejudgment of the facts. Under § 106.45, neither complainants nor respondents are automatically or prematurely believed or disbelieved, until and unless credibility determinations are made as part of the grievance process.479 Implementation of the § 106.45 grievance process will increase the likelihood that whatever biases and prejudices exist in criminal justice systems will not affect Title IX grievance processes because Title IX Coordinators, investigators, decisionmakers and any person who facilitates an informal resolution process must receive training on how to serve impartially, including by avoiding prejudgment of the facts at issue, 478 Section 106.44(a); § 106.30 (defining ‘‘supportive measures’’). 479 Contrary to many commenters’ assertions, the presumption of non-responsibility does not permit (much less require) recipients automatically or prematurely to ‘‘believe respondents’’ or ‘‘disbelieve complainants.’’ See discussion in the ‘‘Section 106.45(b)(1)(iv) Presumption of NonResponsibility’’ subsection of the ‘‘General Requirements for § 106.45 Grievance Process’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30104 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations conflicts of interest, and bias under § 106.45(b)(1)(iii). Additionally, either party may file an appeal on the ground that the Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias for or against complainants or respondents generally, or the individual complainant or respondent, that affected the outcome of the matter, under § 106.45(b)(8). Accordingly, proceedings to investigate and adjudicate a formal complaint of sexual harassment under these final regulations are designed to reach accurate determinations regarding responsibility so that students and employees are protected from sex discrimination in the form of sexual harassment. The Department believes that § 106.45 serves the purposes of Title IX by focusing on accurate factual determinations regardless of whether the rate of campus sexual assault, and the rate of false or unfounded accusations, is as high as some commenters stated or as low as other commenters stated. Every complainant and every respondent deserve an impartial, truth-seeking process to resolve the allegations in each particular situation, regardless of the frequency or infrequency of victimization and false accusations. Similarly, every allegation warrants an accurate factual resolution regardless of how many recipients decide that expulsion is the appropriate sanction against respondents found responsible for sexual harassment. No matter what decision a recipient makes with respect to disciplinary sanctions, Title IX requires recipients to provide victims with remedies designed to restore or preserve the victim’s access to education, and that obligation can be met only after a reliable determination regarding responsibility. In response to commenters’ concerns that girls and women who report sexual harassment are sometimes ignored or retaliated against by their school, the Department does not believe that such wrongful acts and omissions by recipients justify a grievance process that favors complainants over respondents. The final regulations require recipients to respond promptly to every report of sexual harassment (of which the recipient has actual knowledge, and that occurs in the recipient’s education program or activity, against a person in the United States) in a non-deliberately indifferent manner, and, thus, any recipient ignoring a complainant’s report of sexual harassment would violate the final regulations, and the Department will vigorously enforce recipients’ obligations. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 In response to many commenters concerned about retaliation, the final regulations include § 106.71 stating retaliation against any individual making a report, filing a complaint, or participating in a Title IX investigation or proceeding is prohibited. Whether or not the commenter correctly asserted that boys of color are not punished for sexual harassment at much higher rates than white boys but that girls of color are ignored and retaliated against at rates higher than white girls, the protections extended to complainants and respondents under the final regulations apply without bias against an individual’s sex, race, ethnicity, or other characteristic of the complainant or respondent. Changes: Section 106.71 prohibits retaliation against any individual making a report, filing a complaint, or participating in a Title IX investigation or proceeding. Comments: Some commenters suggested that the Department should proactively intervene and monitor the recipient’s disciplinary practices to ensure they are fair, proportionate, and not discriminatory. Some commenters wanted § 106.45 to specifically address topics such as the quality of the information gathered during the investigation, the candid participation of parties and witnesses, and the skills and experience (as well as the content of training) of Title IX Coordinators, investigators, and decision-makers, arguing that § 106.45 leaves too much discretion to recipients to devise their own strategies and approaches for the grievance process that may run contrary to improving the reliability of outcomes for the parties. Some commenters proposed adding a provision clarifying that nothing in these regulations shall be interpreted to prevent the accused student from choosing to have their case adjudicated in an administrative law setting, provided that the institution advises the accused student in writing that it is the accused student’s sole choice as to whether to have their case decided under those procedures or those offered on campus. Some commenters proposed that a case should not be adjudicated unless there is quantifiable evidence to determine reasonable cause and suggested forming a compliance team to review the complaint and response from the accused to assess the validity of the accusation. Other commenters asserted that recipients have limited resources and should triage cases with priority based on severity of the conduct alleged. One commenter requested a requirement that attorneys working on PO 00000 Frm 00080 Fmt 4701 Sfmt 4700 these tribunals must have passed the State bar exam of the university’s host State(s) and be a current member of the bar. Some commenters expressed concern about the power imbalance between students and professors, asserting that this power imbalance is already a deterrent to reporting an incident. Some postsecondary institutions commented that their institution already follows most of the procedures in § 106.45. Several commenters supported adopting the grievance procedures already in use by specific institutions, published by advocacy organizations, or under Federal laws applicable to Native American Institutions. Discussion: The Department understands commenters’ requests for intervention in and monitoring of the fairness, proportionality, and prevention of any discrimination in disciplinary sanctions that recipients impose at the conclusion of a § 106.45 grievance process. The grievance process for Title IX sexual harassment is intended and designed to ensure that recipients reach reliable outcomes and provide remedies to victims of sexual harassment. The Department does not prescribe whether disciplinary sanctions must be imposed, nor restrict recipient’s discretion in that regard. As the Supreme Court noted, Federal courts should not second guess schools’ disciplinary decisions,480 and the Department likewise believes that disciplinary decisions are best left to the sound discretion of recipients. The Department believes that a standardized framework for resolution of Title IX sexual harassment allegations provides needed consistency in how recipients reach reliable outcomes. The Department’s authority to effectuate the purposes of Title IX justifies the Department’s concern for reaching reliable outcomes, so that sexual harassment victims receive appropriate remedies, but the Department does not believe that prescribing Federal rules about disciplinary decisions is necessary in order to further Title IX’s non-discrimination mandate. The Department notes that while Title IX does not give the Department a basis to impose a Federal standard of fairness or proportionality onto disciplinary decisions, Title IX does, of course, require that actions taken by a recipient must not constitute sex discrimination; Title IX’s non-discrimination mandate applies as much to a recipient’s disciplinary actions as to any other action taken by a recipient with respect to its education programs or activities. 480 Davis, E:\FR\FM\19MYR2.SGM 526 U.S. at 648–49. 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations The Department understands that some commenters would like the Department to issue more specific requirements to address topics such as the quality of information or evidence gathered during investigation, the candid participation of parties and witnesses, and the skills, experience, and type of training, of Title IX Coordinators, investigators, and decision-makers. We believe, however, that § 106.45 strikes an appropriate balance between prescribing procedures specific enough to result in a standardized Title IX sexual harassment grievance process that promotes impartiality and avoidance of bias, while leaving flexibility for recipients to make reasonable decisions about how to implement a § 106.45-compliant grievance process. For example, while § 106.45 does not set parameters around the ‘‘quality’’ of evidence that can be relied on, § 106.45 does prescribe that all relevant evidence, inculpatory and exculpatory, whether obtained by the recipient from a party or from another source, must be objectively evaluated by investigators and decision-makers free from conflicts of interest or bias and who have been trained in (among other matters) how to serve impartially. The Department appreciates the commenters’ request that the Department provide for alternatives to a § 106.45 grievance process including, for example, adjudication in a State administrative law setting. The Department has tailored the § 106.45 grievance process to provide the procedures and protections we have determined are most needed to promote reliable outcomes resolving Title IX sexual harassment allegations in the context of education programs or activities that receive Federal financial assistance. While the Department does not dispute that other administrative proceedings could provide similarly reliable outcomes, for purposes of enforcing Title IX, a Federal civil rights statute, § 106.45 provides a standardized framework. The Department notes that nothing in the final regulations precludes a recipient from carrying out its responsibilities under § 106.45 by outsourcing such responsibilities to professionally trained investigators and adjudicators outside the recipient’s own operations. The Department declines to impose a requirement that Title IX Coordinators, investigators, or decisionmakers be licensed attorneys (or otherwise to specify the qualifications or experience needed for a recipient to fill such positions), because leaving recipients as much flexibility as possible to fulfill the obligations that VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 must be performed by such individuals will make it more likely that all recipients reasonably can meet their Title IX responsibilities. The Department declines to add a reasonable cause threshold into § 106.45. The very purpose of the § 106.45 grievance process is to ensure that accurate determinations regarding responsibility are reached, impartially and based on objective evaluation of relevant evidence; the Department believes that goal could be impeded if a recipient’s administrators were to pass judgment on the sufficiency of evidence to decide if reasonable or probable cause justifies completing an investigation. In response to commenters’ concerns that the proposed rules did not permit reasonable discretion to dismiss allegations where an adjudication seemed futile, the final regulations add § 106.45(b)(3)(ii), allowing the recipient, in its discretion, to dismiss a formal complaint, if the complainant notifies the Title IX Coordinator in writing that the complainant wishes to withdraw it, if the respondent is no longer enrolled or employed by the recipient, or if specific circumstances prevent the recipient from collecting evidence sufficient to reach a determination (for example, where the complainant has ceased participating in the process). The Department rejects the notion that Title IX sexual harassment cases can or should be ‘‘triaged’’ or treated differently based on a purported effort to distinguish them based on severity. The Department has defined Title IX sexual harassment as any of three categories of sex-based conduct each of which constitutes serious behavior likely to effectively deny a victim equal access to education, and thus any type of sexual harassment as defined in § 106.30 warrants the § 106.45 grievance process. The Department appreciates that some commenters on behalf of certain postsecondary institutions believed that their institution’s policies already embody most or many of the requirements of § 106.45. The Department has reviewed and considered the grievance procedures utilized in the codes of conduct in use by many different recipients, as well as the recommended fair procedures set forth by advocacy organizations, and the Federal laws applicable to Native American Institutions with respect to student misconduct proceedings, as referenced by commenters. While the Department declines to adopt wholesale the procedures used or recommended by any particular institution or organization, the Department notes that § 106.45 contains provisions that some PO 00000 Frm 00081 Fmt 4701 Sfmt 4700 30105 commenters, including submissions on behalf of institutions and organizations, described or recommended in their comments. Changes: Section 106.45(b)(3)(ii) allows the recipient, in its discretion, to dismiss a formal complaint if the complainant notifies the Title IX Coordinator in writing that the complainant wishes to withdraw it, if the respondent is no longer enrolled or employed by the recipient, or if specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination. Section 106.30 Definitions 481 Actual Knowledge Support for Actual Knowledge Requirement and General Safety Concerns Comments: Several commenters who supported the definition of actual knowledge in § 106.30 and the actual knowledge requirement in § 106.44(a) stated that using an actual knowledge requirement empowers victims of sexual harassment to choose when and to whom to report sexual misconduct, which commenters believed would help facilitate building more trusting relationships between students and school administrators. Multiple commenters also supported the way that the proposed regulations allow recipients to design internal reporting processes as recipients see fit, including mandatory reporting by all employees to the Title IX Coordinator or others with 481 The NPRM proposed that the definitions in § 106.30 apply only to Subpart D, Part 106 of Title 34 of the Code of Federal Regulations. 83 FR 61496. Aside from the words ‘‘elementary and secondary school’’ and ‘‘postsecondary institution,’’ the words that are defined in § 106.30 do not appear elsewhere in Part 106 of Title 34 of the Code of Federal Regulations. Upon further consideration and for the reasons articulated in this preamble, including in the ‘‘Section 106.6(f) Title VII and Directed Question 3 (Application to Employees)’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble, the Department believes that the definitions in § 106.30 should apply to Part 106 of Title 34 of the Code of Federal Regulations, except for the definitions of the words ‘‘elementary and secondary school’’ and ‘‘postsecondary institution.’’ The definitions of ‘‘elementary and secondary school’’ and ‘‘postsecondary institution’’ in § 106.30 will apply only to §§ 106.44 and 106.45. This revision is not a substantive revision because this revision does not change the definitions or meaning of existing words in Part 106 of Title 34 of the Code of Federal Regulations. Ensuring that the definitions in § 106.30 apply throughout Part 106 of Title 34 of the Code of Federal Regulations will provide clarity and consistency for future application. We also have clarified in § 106.81 that the definitions in § 106.30 do not apply to 34 CFR 100.6–100.11 and 34 CFR part 101, which are procedural provisions applicable to Title VI. Section 106.81 incorporates these procedural provisions by reference into Part 106 of Title 34 of the Code of Federal Regulations. E:\FR\FM\19MYR2.SGM 19MYR2 30106 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the authority to institute corrective measures on the recipient’s behalf. One commenter cited the Supreme Court’s Davis decision and stated that, while the commenter supported the Department’s actual knowledge requirement, institutions should publicize a list of the officials who have authority to institute corrective measures, in a location easily accessible and known to the student body, so that those who wish to file complaints know how to do so. Some commenters referred to the constructive notice standard set forth in Department guidance as a ‘‘mandatory reporting’’ system. Some commenters supported replacing constructive notice with actual knowledge, arguing that the mandatory reporting system recommended by Department guidance has resulted in requiring college and university employees to report allegations of sexual harassment and sexual violence even when a victim reported to an employee in confidence and even when the victim expressed no interest in an investigation. Other commenters objected to the Department removing ‘‘mandatory reporter’’ requirements and replacing constructive notice with actual knowledge. Several commenters asserted that the actual knowledge definition in § 106.30 and actual knowledge requirement in § 106.44(a) will harm survivors, especially women, by allowing ‘‘lower level employees’’ to intentionally bury reports of sexual harassment against serial perpetrators. Those commenters expressed concern that Title IX Coordinators will be less informed, which will make campuses more dangerous for students. Several commenters asserted that survivors of campus assault have frequently experienced Title IX personnel being more concerned with protecting the recipient’s institutional interests than with the welfare of victims. Commenters who work in postsecondary institutions, or for corporations, asserted that they are familiar with this dynamic in the context of human resources departments. Many commenters stated that the longstanding constructive notice standard (requiring a school to respond if a responsible employee knew or should have known of sexual harassment) was sufficient to ensure that employees would be held accountable for purposefully turning their backs on students who seek to report sexual harassment. Commenters asserted that employees at a particular university failed to take any action after students disclosed another employee’s abuse to them, which resulted in a serial sexual perpetrator victimizing many VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 people. Commenters expressed concern that the actual knowledge requirement requires the Department to be too trusting of recipients, and cited incidents of coaches and employees mishandling reports of sexual harassment at a number of institutions of higher education. Discussion: The Department appreciates commenters’ support for the § 106.30 definition of ‘‘actual knowledge’’ and the requirement in § 106.44(a) that recipients respond to sexual harassment when the recipient has actual knowledge. As explained in the ‘‘Actual Knowledge’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ we have revised the § 106.30 definition of ‘‘actual knowledge’’ to differentiate between elementary and secondary schools, and postsecondary institutions, with respect to which school or college employees who have ‘‘notice’’ of sexual harassment require the school or college to respond. Under revised § 106.30, notice to ‘‘any employee’’ of an elementary or secondary school charges the recipient with actual knowledge. The Department disagrees with commenters that the actual knowledge requirement, as adopted from the Gebser/Davis framework and adapted in these final regulations for administrative enforcement, will result in recipients being less informed about, or less responsive to, patterns of sexual harassment and threats to students. With respect to postsecondary institutions, notice of sexual harassment or allegations of sexual harassment to the recipient’s Title IX Coordinator or to an official with authority to institute corrective measures on behalf of the recipient (herein, ‘‘officials with authority’’) will trigger the recipient’s obligation to respond. Postsecondary institution students have a clear channel through the Title IX Coordinator to report sexual harassment, and § 106.8(a) requires recipients to notify all students and employees (and others) of the Title IX Coordinator’s contact information, so that ‘‘any person’’ may report sexual harassment in person, by mail, telephone, or email (or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report), and specifies that a report may be made at any time (including during non-business hours) by mail to the Title IX Coordinator’s office address or by using the listed telephone number or email address. In the postsecondary institution context, the Department believes that making sure that complainants and third parties have clear, accessible ways to report to PO 00000 Frm 00082 Fmt 4701 Sfmt 4700 the Title IX Coordinator rather than requiring the recipient to respond each time any postsecondary institution employee has notice, better respects the autonomy of postsecondary school students (and employees) to choose whether and when to report sexual harassment.482 482 The Department recognizes the many examples pointed to by commenters, of postsecondary institutions failing to respond appropriately to notice of sexual harassment allegations when at least some university employees knew of the alleged sexual harassment, resulting in some situations where serial predators victimized many people. We note that such failures by institutions occurred under the status quo; that is, under the Department’s approach to notice in the Department’s guidance. In these final regulations, the Department aims to respect the autonomy of students at postsecondary institutions, while ensuring that such students (and employees) clearly understand how to report sexual harassment. We believe that the best way to avoid reports ‘‘falling through the cracks’’ or successfully being ‘‘swept under the rug’’ by postsecondary institutions, is not to continue (as Department guidance did) to insist that all postsecondary institutions must have universal or near-universal mandatory reporting. As discussed in the ‘‘Actual Knowledge’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, whether universal mandatory reporting for postsecondary institutions benefits victims or harms victims is a complicated issue as to which research is conflicting. We believe that allowing each postsecondary institution to implement its own policy regarding which employees must report sexual harassment to the Title IX Coordinator (and which may remain confidential resources for students at postsecondary institutions) is a better approach than requiring universal mandatory reporting. The benefits of universal mandatory reporting policies may not outweigh the negative impact of such policies, in terms of helping victims. Allowing postsecondary institutions to choose for themselves what kind of mandatory reporting policies to have is only beneficial if combined (as in these final regulations) with strong requirements that every postsecondary institution inform students and employees about how to report to the Title IX Coordinator and that every institution has in place accessible options for any person to report to the Title IX Coordinator. This is the approach taken in these final regulations, so that, for example, if an alleged victim discloses sexual harassment to a university ‘‘low-level’’ employee and the school does not respond by reaching out to the alleged victim (called ‘‘the complainant’’ in these final regulations) then the alleged victim also knows how to contact the Title IX Coordinator, a specially trained employee who must respond promptly to the alleged victim by offering supportive measures and confidentially discussing with the alleged victim the option of filing a formal complaint. A report to the Title IX Coordinator may also be made by any third party, such as the alleged victim’s parent or friend. Thus, whether or not the ‘‘low level’’ employee to whom an alleged victim disclosed sexual harassment appropriately kept that disclosure confidential, or wrongfully violated the institution’s mandatory reporting policy, the alleged victim is not left without recourse or options and the institution is not able to avoid responding to the alleged victim, because the alleged victim knows that any report made to the Title IX Coordinator, via any of several accessible options (e.g., email or phone, which information must be prominently displayed on recipients’ websites) that can be used day or night, will trigger the institution’s prompt response obligations. § 106.8; § 106.30 (defining E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations With respect to elementary and secondary schools, the Department is persuaded by commenters’ concerns that it is not reasonable to expect young students to report to specific school employees or to distinguish between a desire to disclose sexual harassment confidentially to a school employee, versus a desire to report sexual harassment for the purpose of triggering the school’s response obligations. We have revised the § 106.30 definition of actual knowledge to specifically state that notice to any employee of an elementary or secondary school charges the recipient with actual knowledge, triggering the recipient’s obligation to respond to sexual harassment (including promptly offering supportive measures to the complainant). Accordingly, students in elementary and secondary schools do not need to report allegations of sexual harassment to a specific employee such as a Title IX Coordinator to trigger a recipient’s obligation to respond to such allegations. A student in an elementary or secondary school may report sexual harassment to any employee. Similarly, if an employee of an elementary or secondary school personally observes sexual harassment,483 then the elementary or secondary school recipient must respond to and address the sexual harassment in accordance with these final regulations. As previously noted in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment,’’ elementary and secondary schools operate under the doctrine of in loco parentis, and employees at elementary and secondary schools typically are mandatory reporters of child abuse under State laws for purposes of child protective ‘‘actual knowledge’’ to include, but not be limited to, a report to the Title IX Coordinator). 483 Section 106.30 defines ‘‘complainant’’ to mean ‘‘an individual who is alleged to be the victim of conduct that could constitute sexual harassment’’ and therefore, an employee witnessing or hearing about conduct that ‘‘could constitute’’ sexual harassment defined in § 106.30 triggers the elementary and secondary school recipient’s response obligations, including having the Title IX Coordinator contact the complainant (and, where appropriate, the complainant’s parent or legal guardian) to confidentially discuss the availability of supportive measures. Section 106.44(a). In other words, if an elementary or secondary school employee witnesses conduct but does not know ‘‘on the spot’’ whether the conduct meets the § 106.30 definition of sexual harassment (for example, because the employee cannot discern whether the conduct amounted to a sexual assault, or whether the conduct was ‘‘unwelcome’’ subjectively to the complainant, or whether non-quid pro quo, nonsexual assault conduct was ‘‘severe’’), the person victimized by the conduct is a ‘‘complainant’’ entitled to the school’s prompt response if the conduct ‘‘could’’ constitute sexual harassment. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 services.484 In addition to any obligations imposed on school employees under State child abuse laws, these final regulations require the recipient to respond to allegations of sexual harassment by offering supporting measures to any person alleged to be the victim of sexual harassment and taking the other actions required under § 106.44(a). The Department agrees with commenters who noted that nothing in the proposed or final regulations prevents recipients (including postsecondary institutions) from instituting their own policies to require professors, instructors, or all employees to report to the Title IX Coordinator every incident and report of sexual harassment. A recipient also may empower as many officials as it wishes with the requisite authority to institute corrective measures on the recipient’s behalf, and notice to these officials with authority constitutes the recipient’s actual knowledge and triggers the recipient’s response obligations. Recipients may also publicize lists of officials with authority. We have revised § 106.8 to require recipients to notify students, employees, and parents of elementary and secondary school students (among others) of the contact information for the recipient’s Title IX Coordinator, to specify that any person may report sexual harassment in person, by mail, telephone, or email using the Title IX Coordinator’s contact information (or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report), to state that reports may be made at any time (including during nonbusiness hours) by using the listed 484 See Ala. Code § 26–14–3; Alaska Stat. § 47.17.020; Ariz. Rev. Stat. § 13–3620; Ark. Code Ann. § 12–18–402; Cal. Penal Code § 11165.7; Colo. Rev. Stat. § 19–3–304; Conn. Gen. Stat. § 17a-101; Del. Code Ann. tit. 16, § 903; DC Code § 4–1321.02; Fla. Stat. § 39.201; Ga. Code Ann. § 19–7–5; Haw. Rev. Stat. § 350–1.1; Idaho Code Ann. § 16–1605; 325 Ill. Comp. Stat. § 5/4; Ind. Code § 31–33–5–1; Iowa Code § 232.69; Kan. Stat. Ann. § 38–2223; Ky. Rev. Stat. Ann. § 620.030; La. Child Code Ann. art. 603(17); Me. Rev. Stat. tit. 22, § 4011–A; Md. Code Ann., Fam. Law § 5–704; Mass. Gen. Laws ch. 119, § 21; Mich. Comp. Laws § 722.623; Minn. Stat. § 626.556; Miss. Code. Ann. § 43–21–353; Mo. Ann Stat. § 210.115; Mont. Code Ann. § 41–3–201; Neb. Rev. Stat. § 28–711; Nev. Rev. Stat. § 432B.220; N.H. Rev. Stat. Ann. § 169–C:29; N.J. Stat. Ann. § 9:6– 8.10; N.M. Stat. Ann. § 32A–4–3; N.Y. Soc. Serv. Law § 413; N.C. Gen. Stat. Ann. § 7B–301; N.D. Cent. Code Ann. § 50–25.1–03; Ohio Rev. Code Ann. § 2151.421; Okla. Stat. tit. 10A, § 1–2–101; Or. Rev. Stat. § 419B.010; 23 Pa. Cons. Stat. Ann § 6311; R.I. Gen. Laws § 40–11–3(a); S.C. Code Ann. § 63– 7–310; S.D. Codified Laws § 26–8A–3; Tenn. Code Ann. § 37–1–403; Tex. Fam. Code § 261.101; Utah Code Ann. § 62A–4a–403; Vt. Stat. Ann. tit. 33, § 4913; Va. Code Ann. § 63.2–1509; Wash. Rev. Code § 26.44.030; W. Va. Code § 49–2–803; Wis. Stat. § 48.981; Wyo. Stat. Ann. § 14–3–205. PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 30107 telephone number or email address, and to require a recipient to post the Title IX Coordinator’s contact information on the recipient’s website. The Department appreciates commenters’ concerns about recipients purposely ignoring reports of sexual harassment. As the Department has acknowledged through guidance documents since 1997, schools, colleges, and universities have too often ignored sexual harassment affecting students’ and employees’ equal access to education. These final regulations ensure that every recipient is legally obligated to respond to sexual harassment (or allegations of sexual harassment) of which the recipient has notice. The final regulations use a definition of actual knowledge to address the unintended consequences that the constructive notice standard created for both recipients and students. As explained more fully in the ‘‘Actual Knowledge’’ subsection in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Department believes that the approach in these final regulations regarding notice of sexual harassment that triggers a recipient’s response obligations is preferable to the constructive notice standard set forth in Department guidance. Additionally, as some commenters noted, the constructive notice standard coupled with the Department’s mandate to investigate all allegations of sexual harassment 485 may have actually chilled reporting. Investigations almost always require some intrusion into the complainant’s privacy, and some complainants simply wanted supportive measures but were not ready or did not desire to participate in a grievance process. These final regulations provide complainants with more control over whether or when to report sexual harassment,486 and clearly obligate a 485 2011 Dear Colleague Letter at 4–5; 2001 Guidance at 15. 486 As noted previously, these final regulations ensure that reporting or disclosing sexual harassment to any elementary or secondary school employee triggers the recipient’s response obligations, while postsecondary institutions are permitted to choose which of their employees must be mandatory reporters. This broader definition of ‘‘actual knowledge’’ for elementary and secondary schools does not reflect that the Department values the autonomy of elementary and secondary school students less than the autonomy of students at postsecondary institutions. The final regulations respect the autonomy of all complainants. However, recognizing the general differences between adults in postsecondary institutions, versus young students in elementary and secondary schools, we believe the better policy is to ensure that an elementary or secondary school responds promptly whenever any employee has notice of sexual E:\FR\FM\19MYR2.SGM Continued 19MYR2 30108 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recipient to offer supportive measures to a complainant with or without a formal complaint ever being filed. With respect to commenters’ concerns that recipients have knowingly ignored reports of sexual harassment in the past, and may continue to do so in the future, such action constitutes deliberate indifference, if the other requirements of § 106.44(a) are met. When a recipient with actual knowledge of sexual harassment in its education program or activity refuses to respond to sexual harassment or a report of sexual harassment, such a refusal is clearly unreasonable under § 106.44(a) and constitutes a violation of these final regulations. Changes: The Department expands the definition of actual knowledge in § 106.30 to include notice to ‘‘any employee of an elementary and secondary school’’ with respect to recipients that are elementary and secondary schools. We have also revised § 106.8 to require that recipients must prominently display the Title IX Coordinator’s contact information on the recipient’s website, and to state that any person may report sexual harassment in person, by mail, by telephone, or by email using that contact information (or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report), and that a report may be made at any time (including during non-business hours) by using the telephone number or email address, or by mail to the office address, listed for the Title IX Coordinator. harassment, while a postsecondary institution must respond promptly whenever a Title IX Coordinator or official with authority has notice of sexual harassment. This approach does not give as much control to a younger student over whether disclosure of sexual harassment results in a response from the Title IX Coordinator, compared to the control retained by a student at a postsecondary institution to disclose sexual harassment without automatically triggering a report to the Title IX Coordinator. However, the final regulations respect the autonomy of, and give options and control to, all complainants, by protecting each complainant’s right to choose, for example, how to respond to the Title IX Coordinator’s discussion of available supportive measures and whether to file a formal complaint asking the school to investigate the sexual harassment allegations. This approach ensures that an elementary or secondary school student is, for example, considering supportive measures and the option of filing a formal complaint with the Title IX Coordinator, who can involve the student’s parent or legal guardian as appropriate. Thus, the final regulations respect the autonomy of all complainants and aim to give all complainants options and control over how a school responds to their sexual harassment experience, yet achieves these aims differently for elementary and secondary school students, than for students at postsecondary institutions. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Student Populations Facing Additional Barriers to Reporting Comments: Several commenters asserted that designating a single individual as the person to whom notice triggers a recipient’s obligation to respond creates significant hurdles to reporting for certain populations of students, including students with disabilities, immigrant students, international students, transgender students, and homeless students. Numerous commenters noted that students with disabilities are more vulnerable to sexual abuse than their peers without disabilities, are less likely to report experiences of abuse, and are less likely to have access to school officials who have the requisite authority to implement corrective measures under § 106.30. One commenter asserted that, while the actual knowledge requirement favors the rights and needs of students with disabilities who are accused of sexual harassment, this requirement disfavors students with disabilities who are victims of sexual harassment. The commenter expressed concern that students with disabilities may only be comfortable communicating sensitive issues to their own teachers, and in some cases may only be able to communicate with appropriately trained special education staff. One commenter stated that, because immigrant students are even less likely to know to whom they should report, members of immigrant communities are disadvantaged by the actual knowledge requirement. Another commenter asserted that international students are more likely to confide in a teacher or advisor with whom they have close contact, because cultural and linguistic barriers may make it difficult for international students to navigate official administrative channels. Several commenters noted that transgender students, as well as nonbinary students and students who identify with other gender identity communities, are less likely to report or seek services than students from other demographics. Commenters argued that replacing the constructive notice standard with the actual knowledge standard will reduce the services and support received by transgender students and students who identify with other gender identity communities. One commenter asserted that the actual knowledge requirement disadvantages students who are homeless, students from economically disadvantaged backgrounds, or students from dysfunctional families; the commenter described having seen PO 00000 Frm 00084 Fmt 4701 Sfmt 4700 bruises, cuts, and left-over tape residue from when a student was hospitalized after getting into the student’s parents’ crystal methamphetamine. The commenter asserted that, under the proposed rules, students will lose support from teachers, placing students in greater danger. The commenter argued that it is imperative that all elementary and secondary school teachers be mandatory reporters. Discussion: The Department requires all recipients to address sex discrimination against all students, including students in vulnerable populations. The revised definition of ‘‘actual knowledge’’ in § 106.30 includes notice to any elementary and secondary school employee, addressing the concerns raised by commenters that in the elementary and secondary school context, students with disabilities, LGBTQ students, students who are immigrants, and others, face barriers to reporting sexual harassment only to certain employees or officials. We have also revised § 106.8 to ensure that all students and employees are notified of the Title IX Coordinator’s contact information, to require that contact information to be prominently displayed on the recipient’s website, and to clearly state that any person may report sexual harassment to the Title IX Coordinator using any of several accessible options, including by phone or email at any time of day or night. Thus, as to students at postsecondary institutions, clear, accessible reporting options are available for any student (or third party, such as an alleged victim’s friend or a bystander witness to sexual harassment) to contact the Title IX Coordinator and trigger the postsecondary institution’s mandatory response obligations. We believe that the final regulations thus provide all students, including students with disabilities, LGBTQ students, students who are immigrants, and others, with accessible ways of reporting, and do not leave any student facing barriers or challenges with respect to how to report to the Title IX Coordinator.487 487 Section 106.8(a) (‘‘Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator [which, under § 106.8(b) must be posted on the recipient’s website], or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report. Such a report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address, listed for the Title IX Coordinator.’’) (emphasis added). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations With respect to commenters who assert that the Department is removing a ‘‘mandatory reporting’’ requirement or eliminating ‘‘mandatory reporters,’’ as discussed in the ‘‘Actual Knowledge’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the adapted actual knowledge requirement in these final regulations distinguishes between elementary and secondary schools (where notice to any employee now triggers the recipient’s response obligations) and postsecondary institutions (where notice to the Title IX Coordinator and officials with authority triggers the recipient’s response obligations, but postsecondary institution recipients have discretion to determine which of their employees should be mandatory reporters, and which employees may keep a postsecondary student’s disclosure about sexual harassment confidential). In response to commenters’ concerns, in elementary and secondary schools, all students (including those in vulnerable populations) can report sexual harassment to any school employee to trigger the recipient’s obligation to respond. While the imputation of knowledge based solely on the theories of vicarious liability 488 or constructive notice is insufficient, notice to any elementary and secondary school employee—including a teacher, teacher’s aide, bus driver, cafeteria worker, counselor, school resource officer, maintenance staff worker, or other school employee—charges the recipient with actual knowledge, triggering the recipient’s response obligations. This expanded definition of actual knowledge in elementary and secondary schools gives all students, including those with disabilities who may face challenges communicating, a wide pool of trusted employees of elementary and secondary schools (i.e., any employee) to whom the student can report. As to all recipients, § 106.30 defining ‘‘actual knowledge’’ is also revised to expressly state that ‘‘notice’’ includes a report to the Title IX Coordinator as described in § 106.8(a).489 These final regulations 488 The Department has revised the § 106.30 definition of actual knowledge by replacing ‘‘respondeat superior’’ with ‘‘vicarious liability.’’ ‘‘Vicarious liability’’ conveys the same meaning as ‘‘respondeat superior,’’ but ‘‘vicarious liability’’ is more colloquial and is less likely to be confused with the word ‘‘respondent’’ used throughout these final regulations. 489 We have revised § 106.8(a) to expressly state that any person may report sexual harassment using the contact information required to be listed for the Title IX Coordinator (which must include an office address, telephone number, and email address), or VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 thus ensure that all students and employees have clear, accessible reporting channels, and ensure that elementary and secondary school students can disclose sexual harassment to any school employee and the recipient will be obligated to respond promptly and supportively in accordance with § 106.44(a). While the Department acknowledges commenters’ concerns about actual knowledge introducing an additional hurdle to the reporting process for certain students at postsecondary institutions, the Department believes the actual knowledge requirement will bring benefits to students that outweigh potential concerns. Under these final regulations, the recipient must notify and inform students of the right to report sexual harassment to the Title IX Coordinator, a trained professional who is well positioned to contact the complainant to confidentially discuss the complainant’s wishes regarding supportive measures (which must be offered regardless of whether the complainant also chooses to file a formal complaint), and explain the process of filing a formal complaint. Students may choose to confide in postsecondary institution employees to whom notice does not trigger the recipient’s response obligations, without such confidential conversations necessarily resulting in the student being contacted by the Title IX Coordinator. This results in greater respect for the autonomy of a college student over what kind of institutional response will best serve the student’s needs and wishes. This gives students at postsecondary institutions greater control over whether or when to report than does a requirement of universal mandatory reporting. The Department understands commenters’ concerns that some students may not feel comfortable discussing a sexual harassment experience with a stranger. Partly in response to such concerns, the final regulations designate any school employee as someone with whom an elementary or secondary school student can share a report and know that the recipient is then responsible for responding promptly. The Department believes it is reasonable to expect students at a university or college to communicate with the Title IX Coordinator or other official with authority, as students would with other by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report, and that a report may be made at any time (including during non-business hours) by using the listed telephone number or email address, or by mail to the listed office address. PO 00000 Frm 00085 Fmt 4701 Sfmt 4700 30109 professionals, including doctors, therapists, and attorneys, many of whom college students do not know personally when they first seek assistance with sensitive, personal issues. At the same time, these final regulations permit each postsecondary institution to decide whether or not to implement a universal mandatory reporting policy. As discussed in the ‘‘Actual Knowledge’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, there is conflicting research about whether universal mandatory reporting policies for postsecondary institutions benefit victims, or harm victims. Although these final regulations do not expressly require recipients to allow complainants to bring a supportive friend to an initial meeting with the Title IX Coordinator, nothing in these final regulations prohibits complainants from doing so. Indeed, many people bring a friend or family member to doctors’ visits for extra support, whether to assist a person with a disability or for emotional support, and the same would be true for a complainant reporting to a Title IX Coordinator. Once a grievance process has been initiated, these final regulations require recipients to provide the parties with written notice of each party’s right to select an advisor of choice, and nothing precludes a party from choosing a friend to serve as that advisor of choice.490 The Department agrees with the commenter who asserted that recipients should publish information to help students locate the Title IX Coordinator and other staff to whom notice conveys actual knowledge on the recipient. These final regulations in § 106.8 require recipients to designate and authorize a Title IX Coordinator, notify all students and employees of the name or title, office address, electronic mail address, and telephone number of the Title IX Coordinator, and prominently display the contact information for the Title IX Coordinator on recipients’ websites. The Department disagrees that the actual knowledge requirement favors respondents over complainants. The final regulations’ approach to designating Title IX Coordinators, officials with authority, and elementary and secondary school employees as persons to whom notice triggers the recipients’ response obligations, is designed to ensure that recipients are held responsible for meaningful responses to known incidents of sexual 490 Section E:\FR\FM\19MYR2.SGM 106.45(b)(2); § 106.45(b)(5)(iv). 19MYR2 30110 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations harassment, including by providing equitable responses to the complainant and respondent,491 while taking into account the different needs and expectations of elementary and secondary school students, and postsecondary institution students. In elementary and secondary schools the recipient must respond to sexual harassment when notice is given to any school employee; in postsecondary institutions where complainants are more capable of exercising autonomy over when to report and seek institutional assistance, the complainant (or any third party) may report to a Title IX Coordinator or official with authority. We reiterate that ‘‘notice’’ may come to a Title IX Coordinator, an official with authority, or an elementary and secondary school employee, from any source (i.e., from the person alleged to be the victim of sexual harassment, from any third party such as a friend, parent, or witness to sexual harassment, or from the employee’s or official’s firsthand observation of conduct that could constitute sexual harassment). Changes: The Department has revised the § 106.30 definition of ‘‘actual knowledge’’ to specify that actual knowledge includes notice of sexual harassment to ‘‘any employee’’ in an elementary and secondary school. The Department revised the § 106.30 definition of ‘‘actual knowledge’’ by replacing ‘‘respondeat superior’’ with ‘‘vicarious liability.’’ Chilling Reporting Comments: Many commenters asserted that sexual assault is chronically underreported, and that an actual knowledge requirement would create an additional barrier to reporting and chill victims’ willingness to try to report sexual harassment. Several commenters noted that studies show that, although only five percent of rapes are reported to officials, nearly twothirds of victims tell someone about their experience (e.g., friends or family),492 and commenters argued that limiting the employees who are mandatory reporters will result in the Title IX Coordinator knowing about even fewer incidents and helping even fewer victims, whereas the current system centralizes reporting so that fewer victims fall through the cracks. 491 Section 106.44(a) (requiring the recipient to respond equitably by offering supportive measures to a complainant and by refraining from taking disciplinary action against a respondent without first following a grievance process that complies with § 106.45). 492 Commenters cited: Massachusetts Institute of Technology, Survey Results: 2014 Community Attitudes on Sexual Assault (2014). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Numerous commenters asserted that sexual harassment and assault is a sensitive issue that many individuals only feel comfortable discussing within a trusted relationship, if they feel bold enough to discuss it at all. Another commenter characterized the proposed rules’ definition of actual knowledge in § 106.30 as ‘‘loose.’’ According to this commenter, the proposed rules’ definition of actual knowledge would allow for a situation where a student reports to an agent whom the student trusts and thinks that the report has been conveyed to the recipient, but for some reason, that agent does not properly report the incident. The commenter contended that in this situation the school can claim that it did not have actual knowledge of the incident and therefore the school cannot be held accountable for inaction. Multiple commenters stated that complainants should be able to go to any school official with whom the student feels comfortable, to report sexual harassment, and that complainants should not be forced to go to a few specific people within the school. Several commenters opposed the actual knowledge definition in § 106.30, asserting that most students do not know which employees have the authority to redress sexual harassment and would not even know who to contact. Also, multiple commenters cited a study that found that survivors often do not report their sexual assaults because of fear of being disbelieved or fear that their assault will not taken seriously,493 and many commenters argued that the actual knowledge requirement will exacerbate these fears, thereby resulting in even less reporting of sexual harassment. Commenters argued that narrowing the scope of trusted adults to whom survivors of sexual assault can speak to receive support is an unjust violation of their right to safety. Numerous commenters asserted that giving complainants greater control over whether and when to report will encourage more people to come forward to report sexual misconduct. A few commenters stated that the actual knowledge requirement pushes back against mandatory reporting policies that undermine a student’s trust in professors and university employees. Commenters argued that because recipients often require employees to report allegations of sexual harassment to the Title IX office even when disclosures are made to employees in confidence, including in instances in which the complainant expresses no interest in an investigation, and the proposed rules would not require recipients to have these mandatory reporting policies, the actual knowledge requirement would encourage more complainants to report sexual harassment because the complainants have greater control over what action a school takes in response to each situation, including whether the report will proceed to an investigation without the complainant’s permission. One commenter asserted that mandatory reporter policies frequently serves as a deterrent to complainants who are seeking resources rather than adjudication. The commenter stated that mandatory reporting enhances the risks of revictimization and penalizes students who wish to come forward and seek services rather than a grievance process. Another commenter asserted that postsecondary institution recipients should have to require that any employee to whom a student discloses sexual harassment provide the student with information about how to report to the Title IX office, the option of reporting, and the availability of supportive services. The commenter argued that a student should be told (by any employee in whom a student confides a sexual harassment experience) that unless the student makes a report, the institution will not know of the incident and will therefore do nothing about it. Several commenters supporting § 106.30 asserted that the final regulations should allow complainants to meet directly with the Title IX Coordinator who can provide the array of options available to them before deciding to file a formal complaint. One commenter expressed support of the proposed rules’ allowance of greater informality in adjudications, because research shows that victims want more informal options, with less mandatory reporting.494 Discussion: As discussed above, the final regulations revise the definition of actual knowledge to include notice to any elementary and secondary school employee, thus alleviating many commenters’ concerns about requiring young students to both know how, and be willing to, report sexual harassment incidents to a particular school official 493 Commenters cited: Kathryn J. Holland & Lilia M. Cortina, ‘‘It happens to girls all the time’’: Examining sexual assault survivors’ reasons for not using campus supports, 59 Am. J. of Community Psychol. 1–2 (2017). 494 Commenters cited: National Academies of Science, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine (Frasier F. Benya et al. eds., 2018). PO 00000 Frm 00086 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations or to the Title IX Coordinator. As discussed above, the actual knowledge requirement in the postsecondary institution context means notice to the Title IX Coordinator or an official with authority, and the Department believes this approach respects a postsecondary institution complainant’s autonomy and choice over whether or when to report sexual harassment, while still ensuring that complainants and third parties have clear, accessible ways of reporting sexual harassment. The Department agrees with commenters who pointed out that the actual knowledge requirement in the postsecondary institution context appropriately gives more control and autonomy to each complainant to choose to discuss a private incident confidentially (for example, with a trusted professor or resident advisor), or to report the incident in order to seek supportive measures or a grievance process against the respondent. Numerous commenters asserted that preserving a survivor’s autonomy and control in the aftermath of a traumatic experience of sexual violence can be crucial to the survivor’s ability to heal and recover.495 The Department agrees with commenters who asserted that victims want more informal options with less mandatory reporting because mandatory reporting policies may have the unintended consequence of penalizing complainants who wish to come forward and seek supportive measures, by subjecting complainants to contact with the Title IX office, (which can lead to a formal grievance process even without the complainant choosing to file a formal complaint),496 when that 495 E.g., Carly Parnitzke Smith & Jennifer J. Freyd, Dangerous Safe Havens: Institutional Betrayal Exacerbates Sexual Trauma, 26 Journal of Traumatic Stress 1, 120 (2013) (describing ‘‘institutional betrayal’’ as when an important institution, or a segment of it, acts in a way that betrays its member’s trust); Merle H. Weiner, Legal Counsel for Survivors of Campus Sexual Violence, 29 Yale J. of L. & Feminism 123, 140–141 (2017) (identifying one type of institutional betrayal as the harm that occurs when ‘‘the survivor thinks she is speaking to a confidential resource, but then finds out the advocate cannot keep their conversations private’’). 496 Under the final regulations, a complainant always retains the option of initiating a grievance process (by filing a formal complaint) and is never required to file a formal complaint in order to receive supportive measures. § 106.44(a); § 106.44(b)(1); § 106.30 (defining ‘‘formal complaint’’). However, a Title IX Coordinator may, when it is not clearly unreasonable in light of the known circumstances, sign a formal complaint that initiates a grievance process against a respondent even when that is not what the complainant wished to have happen. § 106.30 (defining ‘‘formal complaint’’); § 106.44(a). Thus, universal mandatory reporting policies may sometimes result in involving a complainant in a grievance process when that is not what the complainant wanted, and VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 was not what some complainants desired.497 Therefore, the Department believes the actual knowledge requirement may benefit complainants at postsecondary institutions whose reports were chilled under a system of constructive notice. In the postsecondary institution context, the final regulations respect a complainant’s decision about whether or when to report, and ensure that a complainant may receive supportive measures irrespective of whether they file a formal complaint of sexual harassment.498 In response to commenters’ concerns that under the proposed rules complainants would have difficulty finding the Title IX Coordinator or that there would be an increased potential for misunderstandings about whether a the final regulations aim to make that less likely in the postsecondary institution context by allowing each postsecondary institution to decide for itself whether to have a universal mandatory reporting policy. 497 E.g., Carmel Deamicis, Which Matters More: Reporting Assault or Respecting a Victim’s Wishes?, The Atlantic (May 20, 2013) (describing a campus ‘‘speak-out’’ event at which sexual violence survivors were supposed to be able to safely share their stories with other but the university’s mandatory reporting policy required any residential advisor who ‘‘recognizes the voice of a speaker’’ to report ‘‘that person’s name and story’’ to the university’s Title IX Coordinator, resulting in many resident advisors choosing to respect victims’ anonymity even knowing that to do so violated campus policy because ‘‘[w]hen a policy doesn’t embody the values it’s supposed to protect, sometimes it’s worth breaking’’); id. (noting that the university’s mandatory reporting policy was a direct result of the Department’s withdrawn 2011 Dear Colleague Letter, describing professors and staff members ‘‘angrily arguing against the new policy’’ because they ‘‘can’t believe the school is asking them to violate their students’ trust,’’ quoting a victim advocate as wondering ‘‘if you want to help victims in their time of need, why not leave it up to the victim?’’ and quoting a student volunteer at the speak-out as stating: ‘‘Sexual harassment or assault is a crime of power . . . . The survivor is stripped of their power and control, and one of the only aspects that remains in their control is if, how, when, and to whom to share their story’’ and mandatory reporting ‘‘removes that last aspect of control that a survivor has.’’); Allie Grasgreen, Mandatory Reporting Perils, Inside Higher Ed (Aug. 30, 2013) (quoting Title IX activist Andrea Pino as stating: ‘‘Mandatory reporting is supposed to alleviate that lack of transparency but putting students in this predicament in which they do not feel like they can trust people for confidentiality is doing the opposite . . . . It’s literally putting students in situations in which they can’t be honest.’’). 498 Section 106.44(a) (requiring a recipient’s response to include informing the complainant of the availability of supportive measures with or without the filing of a formal complaint and explaining to the complainant the option for filing a formal complaint). While elementary and secondary school students retain less control over when disclosure of sexual harassment triggers the school’s mandatory response obligations, these students (with involvement of their parents as appropriate) do retain control over whether to accept supportive measures, and whether to also file a formal complaint. § 106.44(a); § 106.6(g). PO 00000 Frm 00087 Fmt 4701 Sfmt 4700 30111 complainant wanted the school to investigate, the final regulations strengthen existing regulatory requirements that recipients notify students and employees (and parents of elementary and secondary school students) of the contact information for the Title IX Coordinator, post the Title IX Coordinator’s contact information on the recipient’s website, and disseminate information about how to report sexual harassment and file a formal complaint.499 Additionally, revised § 106.44(a) requires the Title IX Coordinator to contact each complainant (which includes a parent or legal guardian, as appropriate) to inform the complainant of the option of filing a formal complaint while assuring the complainant that supportive measures are available irrespective of whether the complainant chooses to file a formal complaint. Under the rubric of actual knowledge, as applied by Federal courts interpreting Supreme Court precedent, whether certain recipient employees are officials with authority is a fact specific inquiry. Accordingly, the final regulations: (1) Continue, as proposed in the NPRM, to ensure that notice to a recipient’s Title IX Coordinator conveys actual knowledge, and (2) broaden the definition of actual knowledge for elementary and secondary schools to include notice to any school employee.500 In this manner, the final regulations ensure that students in elementary and secondary schools can discuss, disclose, or report a sexual harassment incident to any school employee, conveying actual knowledge to the school and requiring the school to respond appropriately, while postsecondary institutions have discretion to offer college and university students options to discuss or disclose sexual harassment experiences with institutional employees for the purpose of emotional support, or for the purpose of receiving supportive measures and/or initiating a grievance process against the respondent. The Department acknowledges that the actual knowledge standard relies on the Title IX Coordinator as an essential component of the process to address sexual harassment, especially in the postsecondary institution context. Recipients have been required to designate a Title IX Coordinator for decades, and the Department believes that these final regulations ensure that all students have clear, accessible options for making reports that convey 499 Section 500 Section E:\FR\FM\19MYR2.SGM 106.8. 106.30 (defining ‘‘actual knowledge’’). 19MYR2 30112 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations actual knowledge to the recipient.501 Nothing in these final regulations prevents a postsecondary institution or any other recipient from requiring employees who are not Title IX Coordinators or officials with authority, to report allegations of sexual harassment to the Title IX Coordinator when such employees become aware of such allegations.502 The Department disagrees that the actual knowledge requirement will chill reports because complainants might worry that the Title IX Coordinator will not believe or take their reports seriously, or that the actual knowledge requirement violates complainants’ ‘‘right to safety.’’ These final regulations require that a recipient’s Title IX Coordinator receives training on how to serve impartially and without bias pursuant to § 106.45(b)(1)(iii), and must offer each complainant information about supportive measures (designed in part to protect the complainant’s safety) and how to file a formal complaint, under § 106.44(a). If a Title IX Coordinator responds to a complainant by not taking a report seriously, or with bias against the complainant, the recipient has violated these final regulations. Changes: Section 106.30 defining ‘‘actual knowledge’’ is revised to include notice to any elementary and secondary school employee. Section 106.44(a) adds specific requirements that the recipient must offer supportive measures to a complainant, and the Title IX Coordinator must contact each complainant to discuss availability of supportive measures with or without the filing of a formal complaint, consider the wishes of the complainant with respect to supportive measures, and explain the process for filing a formal complaint. 501 Section 106.30 defines ‘‘actual knowledge’’ to include notice to any elementary and secondary school employee, or to any Title IX Coordinator, and expressly states that ‘‘notice’’ includes but is not limited to a report to the Title IX Coordinator as described in § 106.8(a) (which, in turn, states that any person may report to the Title IX Coordinator in person or by mail to the office address, by telephone, or by email, using the contact information for the Title IX Coordinator that the recipient must send to students, employees, and parents and guardians of elementary and secondary school students). § 106.8(b) (requiring recipients to prominently display the Title IX Coordinator’s contact information on recipients’ websites). 502 We have also revised § 106.30 defining ‘‘actual knowledge’’ to state that the mere fact that an individual is required to, or has been trained to, report sexual harassment, does not mean that individual is an ‘‘official with authority.’’ We made this revision so that a recipient may require and/ or train contractors, volunteers, or others to report to a Title IX Coordinator (or other appropriate school personnel) without automatically converting any such individual into a person to whom notice charges the recipient with actual knowledge. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Generally Burdening Complainants Comments: Many commenters asserted that the actual knowledge definition and requirement places the burden squarely on victims to report harm. One commenter asserted that under the proposed rules, complainants—rather than recipients— would bear the responsibility to report sexual harassment and assault. Numerous commenters stated that postsecondary students are not yet full adults, and that the proposed regulations unrealistically assume that an 18 year old freshman in college is ready to face the process required by the proposed regulations. Many commenters asserted that eliminating the ‘‘responsible employees’’ rubric used in Department guidance will delay, if not totally hinder, the ability of complainants to get prompt assistance in the aftermath of trauma. Commenters stated that complainants will need to navigate the school’s bureaucracy to locate and contact the Title IX Coordinator, which will take time, and in the meantime this will force complainants to continue to see their perpetrators in classes or dormitories while the complainant navigates the school’s bureaucracy. Another commenter asked why the proposed regulations removed the term ‘‘responsible employees’’ that was used in Department guidance. Discussion: The Department acknowledges that the actual knowledge requirement in the final regulations departs from the constructive notice approach relied on in previous Department guidance, wherein the Department took the position that any ‘‘responsible employee’’ (in both elementary and secondary schools, and postsecondary institutions) who knew or should have known about sexual harassment triggered the recipient’s obligation to address sexual harassment.503 However, we disagree that the actual knowledge definition in § 106.30 (as revised) and the actual knowledge requirement in § 106.44(a), burden complainants or will result in delayed responses to reported sexual harassment. In response to commenters’ concerns that students and employees may not know how to report to the Title IX Coordinator, we have revised § 106.8 to better ensure that students, employees, and others have clear, accessible options for reporting to the Title IX Coordinator (including options that can be utilized during non-business hours), and to emphasize that reports may be made by complainants (i.e., the 503 E.g., PO 00000 2001 Guidance at 13. Frm 00088 Fmt 4701 Sfmt 4700 person alleged to be the victim of sexual harassment) or by any other person. Revised § 106.8 now requires recipients to notify all students, employees, and parents of elementary and secondary school students (and others) of the Title IX Coordinator’s contact information, to post that contact information prominently on the recipient’s website, and specifies that ‘‘any person’’ may report using the listed contact information for the Title IX Coordinator. We appreciate a commenter’s inquiry about the omission of ‘‘responsible employees’’ in these final regulations. There are two ways in which the final regulations alter references to ‘‘responsible employees.’’ First, existing Title IX regulations have long used a heading, ‘‘Designation of responsible employee,’’ preceding 34 CFR 106.8(a); this reference to ‘‘responsible employee’’ has always, in reality, been a reference to the recipient’s Title IX Coordinator, and the Department is revising § 106.8(a) to reflect this reality by using the phrase ‘‘Designation of Title IX Coordinator’’ in the header for § 106.8(a) and specifying in that section that the employee designated and authorized by the recipient to coordinate the recipient’s Title IX responsibilities is known as, and must be referred to as, the ‘‘Title IX Coordinator.’’ Second, the term ‘‘responsible employee’’ appears throughout the Department’s past guidance documents. In the 2001 Guidance, the Department defined a responsible employee as ‘‘any employee who has the authority to take action to redress the harassment, who has the duty to report to appropriate school officials sexual harassment or any other misconduct by students or employees, or an individual who a student could reasonably believe has this authority or responsibility.’’ 504 As explained in the ‘‘Actual Knowledge’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court Framework to Address Sexual Harassment’’ section of this preamble, these final regulations do not use the ‘‘responsible employees’’ rubric that was set forth in Department guidance. In the elementary and secondary school context, there is no need to decide which employees are ‘‘responsible employees’’ because under revised § 106.30 defining ‘‘actual knowledge,’’ notice to any elementary and secondary school employee triggers the recipient’s response obligations. In the postsecondary institution context, these final regulations do not use the responsible employees rubric in its entirety, although the first of the three 504 2001 E:\FR\FM\19MYR2.SGM Guidance at 13. 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations categories described in guidance as ‘‘responsible employees’’ are still used in these final regulations, because notice to an official with authority is the equivalent of the category referred to in guidance as an employee who has the authority to redress the harassment. In the postsecondary institution context, the Department believes that complainants will benefit from allowing postsecondary institutions to decide which of their employees (aside from the Title IX Coordinator, and officials with authority) may listen to a student’s disclosure of sexual harassment without being mandated to report the sexual harassment incident to the Title IX Coordinator. A recipient (including a postsecondary institution recipient) may give authority to as many officials as it wishes to institute corrective measures on behalf of the recipient, and notice to such officials with authority will trigger the recipient’s response obligations. A recipient also may choose to train employees and other individuals, such as parent or alumni volunteers, on how to report or respond to sexual harassment, even if these employees and individuals do not have the authority to take corrective measures on the recipient’s behalf. The Department will not penalize recipients for such training by declaring that having trained people results in notice to those people charging the recipient with actual knowledge. The Department recognizes that recipients may not engage in such training efforts if such efforts may increase the recipient’s liability.505 Accordingly, these final regulations specify in the definition of actual 505 Id. Under the 2001 Guidance and subsequent guidance documents, a recipient was required to ‘‘ensure that employees are trained so that . . . responsible employees know that they are obligated to report harassment to appropriate school officials.’’ 2001 Guidance at 13. Accordingly, training an employee may have increased the recipient’s liability, as such training indicated the recipient’s intention to treat the trained employees as responsible employees. (For reasons explained in this subsection ‘‘Actual Knowledge’’ under the section ‘‘Section 106.30 Definitions’’ as well as the ‘‘Actual Knowledge’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Department no longer adheres to the rubric of ‘‘responsible employees’’ for reasons that differ for elementary and secondary schools, than for postsecondary institutions.) These final regulations require training for Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process. § 106.45(b)(1)(iii). A recipient may train more employees or other persons without fear of creating liability because the ‘‘mere ability or obligation to report sexual harassment or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient,’’ as described in the definition of ‘‘actual knowledge’’ in § 106.30. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 knowledge in § 106.30 that: The ‘‘mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient.’’ The Department disagrees that the actual knowledge requirement will delay implementation of emergency or urgently needed supportive measures compared to policies developed under a constructive notice requirement. In elementary and secondary schools the final regulations provide that reporting to any school employee triggers the school’s prompt response. Once the elementary or secondary school has actual knowledge of sexual harassment, under revised § 106.44(a), the recipient must promptly offer the complainant supportive measures, and the Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. The same obligations to respond promptly are triggered in postsecondary institutions whenever the Title IX Coordinator or an official with authority has notice of sexual harassment. Although commenters asserted that some complainants, even at postsecondary institutions, are too young, immature, or traumatized to contact a Title IX Coordinator, the Department notes that nothing in the final regulations prevents a complainant from first discussing the harassment situation with a trusted mentor or having a supportive friend with them to meet with or otherwise report to the Title IX Coordinator. The Department reiterates that under the final regulations, a complainant may report to the Title IX Coordinator and receive supportive measures without filing a formal complaint or otherwise participating in a grievance process, that reports can be made using any of the contact information for the Title IX Coordinator including office address, telephone number, or email address, and that reports by phone or email may be made at any time, including during non-business hours. Thus, we believe that the final regulations provide clear, accessible reporting options and will not cause delays in the responsibility or ability of a Title IX Coordinator to receive a report and then respond PO 00000 Frm 00089 Fmt 4701 Sfmt 4700 30113 promptly, including by discussing with the complainant services that may be urgently needed to preserve a complainant’s equal educational access, protect the complainant’s safety, and/or deter sexual harassment, offering supportive measures to the complainant, and remaining responsible for effective implementation of the supportive measures.506 Changes: The Department revised the definition of actual knowledge in § 106.30 to add that the mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual, as one who has the authority to institute corrective measures on behalf of the recipient. We have also revised § 106.44(a) to require the recipient promptly to offer the complainant supportive measures and to require the Title IX Coordinator promptly to contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. Employees’ Obligations Comments: Several commenters expressed concern that the definition of actual knowledge means that some employees previously designated as ‘‘responsible employees’’ or mandatory reporters under Department guidance would no longer undergo training about sexual violence on campus. Many commenters believed that under the proposed rules, fewer employees would be mandatory reporters and thus would be untrained when students disclose an incident of sexual harassment. Many commenters asserted that, without mandatory reporting, professors, coaches, resident advisors, or teaching assistants may respond to victims based on personal preferences or biases (perhaps because the employee knows the accused student, or is biased against believing complainants), and argued that this will impact victims’ ability to obtain assistance from unbiased, trained 506 Section 106.30 (defining ‘‘supportive measures’’ in pertinent part to mean individualized services, reasonably available, offered without fee or charge, designed to restore or preserve a complainant’s equal access to the recipient’s education program or activity without unreasonably burdening the other party, and/or designed to protect the complainant’s safety or deter sexual harassment, and stating that the Title IX Coordinator is responsible for effective implementation of supportive measures). E:\FR\FM\19MYR2.SGM 19MYR2 30114 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations personnel. Several commenters argued that this, in turn, will expose recipients to increased litigation for failure to respond to sexual misconduct known by their faculty and staff but not reported to their Title IX offices. Another commenter asked the Department to reexamine existing regulations under the Clery Act to determine whether student employees who are campus security authorities (CSAs) under the Clery Act have conflicting duties under the proposed regulations and the Clery Act regulations. Another commenter asked the Department to clarify why coaches and athletic trainers were not designated in the proposed rules as responsible employees, when this poses a conflict with NCAA (National Collegiate Athletic Association) guidelines. One commenter asked what officials the Department considers to have the ‘‘authority to initiate corrective measures,’’ believing that the language in the proposed rules could be interpreted to limit that role to only the Title IX Coordinator. Relatedly, several commenters requested that the Department provide clarity on what constitutes ‘‘authority to initiate corrective measures’’ and what types of corrective measures would be included; commenters argued that all staff and faculty have at least some ability to initiate some types of corrective measures. At least one commenter asserted that requiring institutions, such as the commenter’s community college, to respond only when the institution has actual notice, is a positive development. The commenter asserted that the commenter’s institution employs parttime and contract employees, and vendors, outside the institution’s direct control with no authority to institute corrective measures. This commenter therefore appreciated the flexibility offered under the proposed rules, for postsecondary institutions to design their own mandatory reporting policies. One commenter, a graduate student instructor, asserted that the actual knowledge definition was helpful to clarify the commenter’s role and asserted that current guidance is unclear. One commenter, a Title IX Coordinator at a university, asserted that the constructive notice standard is difficult to implement. The commenter stated that those not directly involved in Title IX compliance or student conduct, such as full-time faculty, seem to have trouble understanding the complexity of the law in that area, even with training. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Discussion: The 2001 Guidance indicated that responsible employees should be trained to report sexual harassment to appropriate school officials.507 Not all employees, however, were responsible employees and, thus, not all employees had an obligation to report sexual harassment to the Title IX Coordinator or other school officials. With respect to training, the Department in its 2001 Guidance stated: ‘‘Schools need to ensure that employees are trained so that those with authority to address [sexual] harassment know how to respond appropriately, and other responsible employees know that they are obligated to report [sexual] harassment to appropriate officials.’’ 508 Under the 2001 Guidance, such ‘‘[t]raining for employees . . . include[s] practical information about how to identify [sexual] harassment and, as applicable, the person to whom it should be reported.’’ 509 As discussed previously, these final regulations no longer use a responsible employees rubric, and instead define the pool of employees to whom notice triggers a recipient’s response obligations differently for elementary and secondary schools, and for postsecondary institutions. Like the 2001 Guidance, these final regulations incentivize recipients to train their employees; however, rather than mandate training of all employees, these final regulations require robust, specific training of every recipient’s Title IX Coordinator 510 and place specific response obligations on Title IX Coordinators.511 The Department believes that this approach most effectively ensures that recipients meet their Title IX obligations: the Department will hold recipients accountable for meeting Title IX obligations, the Department requires Title IX Coordinators to be well trained, and the Department leaves recipients discretion to determine the kind of training to other employees that will best enable the recipient, and its Title IX Coordinator, to meet Title IX obligations. Accordingly, the Department disagrees with commenters 507 2001 Guidance at 13. 508 2001 Guidance at 13. 509 Id. 510 Section 106.45(b)(1)(iii). 511 E.g., § 106.44(a) (the Title IX Coordinator must promptly contact each person alleged to be the victim of sexual harassment—i.e., each complainant—regardless of who reported the complainant’s sexual harassment victimization, and must discuss with the complainant the availability of supportive measures with or without the filing of a formal complaint, the complainant’s wishes with respect to supportive measures, and the option of filing a formal complaint that initiates a grievance process against a respondent). PO 00000 Frm 00090 Fmt 4701 Sfmt 4700 that removing any ‘‘mandatory reporting’’ requirement or the ‘‘responsible employee’’ rubric allows employees to freely respond to victims out of personal preferences or biases. For example, an elementary or secondary school recipient must promptly offer supportive measures to a complainant under § 106.44(a) whenever one of its employees has notice of sexual harassment, and the Title IX Coordinator specifically must contact the complainant. This ensures that the recipient is responsible for having an employee specially trained in Title IX matters (including the obligation to be free from bias, impartial, and having been trained with materials that do not rely on sex stereotypes) 512 communicates with the complainant. Regardless of the training a recipient gives to employees, the Department will hold the recipient accountable for meeting the recipient’s response obligations under § 106.44(a) and for designating and authorizing a Title IX Coordinator 513 who has been trained to serve free from bias. For reasons discussed previously, including in the ‘‘Actual Knowledge’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Department believes that allowing postsecondary institution recipients to decide how its employees (other than the Title IX Coordinator, and officials with authority) respond to notice of sexual harassment appropriately respects the autonomy of postsecondary students to choose to disclose sexual harassment to employees for the purpose of triggering the postsecondary institution’s Title IX response obligations, or for another purpose (for example, receiving emotional support without desiring to ‘‘officially’’ report). In order to ensure that all students and employees have clear, accessible reporting channels, we have revised § 106.8 to require a recipient to notify its educational community of the contact information for the Title IX Coordinator 514 and post 512 Section 106.45(b)(1)(iii) (describing mandatory training, and requirements to be free from bias, for the Title IX Coordinator). 513 Section 106.8(a). 514 Section 106.8(a) is also revised to require recipients to refer to the employee designated and authorized to coordinate the recipient’s Title IX obligations as ‘‘the Title IX Coordinator,’’ in order to further clarify for students and employees the Title IX Coordinator’s role and function. Thus, for example, a recipient may designate one employee to coordinate multiple types of anti-discrimination and diversity efforts, yet the recipient must use the title ‘‘Title IX Coordinator’’ in its notices to students and employees, on its website, and so forth so that the recipient’s educational community knows who E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations that contact information prominently on the recipient’s website, and to expressly state that ‘‘any person’’ may report sexual harassment at any time, including during non-business hours, by using the telephone number or email address (or by mail to the office address) listed for the Title IX Coordinator, to emphasize that giving the Title IX Coordinator notice of sexual harassment that triggers the recipient’s response obligations does not require scheduling an in-person appointment with the Title IX Coordinator. Additionally, if a postsecondary institution would like to train all employees or require all employees to report sexual harassment to the Title IX Coordinator through policies that these final regulations do not require, then the postsecondary institution may do so without fearing that the Department will hold the postsecondary institution responsible for responding to sexual harassment allegations unless the recipient’s employee actually did give notice to the recipient’s Title IX Coordinator (or to an official with authority).515 The Department revised § 106.30 defining ‘‘actual knowledge’’ to expressly state that the mere ability or obligation to inform a student about how to report sexual harassment or having been trained to do so will not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient. Postsecondary institutions, thus, may train as many employees as they would like or impose mandatory reporting requirements on their employees without violating these final regulations, and may make those training decisions based on what the recipient believes is in the best interest of the recipient’s educational community. A postsecondary institution’s decisions regarding employee training and mandatory reporting for employees may, to contact to report sex discrimination, including sexual harassment. 515 As noted by a commenter on behalf of a community college, this flexibility applies in the postsecondary institution context regarding how the institution decides to train, or have a mandatory reporting policy for, all employees who are not the Title IX Coordinator or an official with authority, such as the institution’s part-time employees or vendors who are independent contractors to whom the institution has not given authority to institute corrective measures on behalf of the institution. In the elementary and secondary school context, this flexibility is more limited, because the final regulations hold the school responsible for responding whenever any employee has notice of sexual harassment. However, this flexibility (to train individuals, or to require individuals to report sexual harassment to the Title IX Coordinator) still applies to elementary and secondary school recipients, for example with respect to independent contractor vendors, or non-employee volunteers who interact with students. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 for example, take into account that students at postsecondary institutions may benefit from knowing they can discuss sexual harassment experiences with a trusted professor, resident advisor, or other recipient employee without such a discussion automatically triggering a report to the Title IX office, or may take into account whether the postsecondary institution has Clery Act obligations that require training on reporting obligations for CSAs, or whether the institution is expected to adhere to NCAA guidelines. With respect to both elementary and secondary schools as well as postsecondary institutions, the Department does not limit the manner in which the recipient may receive notice of sexual harassment. Although imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge, a Title IX Coordinator, an official with authority to institute corrective measures on behalf of the recipient, and any employee of an elementary and secondary school may receive notice through an oral report of sexual harassment by a complainant or anyone else, a written report, through personal observation, through a newspaper article, through an anonymous report, or through various other means. The Department will not permit a recipient to ignore sexual harassment if the recipient has actual knowledge of such sexual harassment in its education program or activity against a person in the U.S., and such a recipient is required to respond to sexual harassment as described in § 106.44(a). The Department disagrees with commenters who are concerned that the actual knowledge requirement would expose recipients to increased litigation. Because the Department developed the actual knowledge requirement on the foundation of the Supreme Court’s Title IX cases, the Department disagrees that recipients will be subject to increased litigation risk by adhering to these final regulations.516 Indeed, if recipients comply with these final regulations, these final regulations may have the effect of decreasing litigation because recipients with actual knowledge would be able to demonstrate that they were not deliberately indifferent in responding to a report of sexual harassment. Recipients would be able to demonstrate that they offered supportive measures in response to a 516 See the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section, and the ‘‘Litigation Risk’’ subsection of the ‘‘Miscellaneous’’ section, of this preamble. PO 00000 Frm 00091 Fmt 4701 Sfmt 4700 30115 report of sexual harassment, irrespective of whether the complainant chose to file a formal complaint, and informed the complainant about how to file such a formal complaint. The Department has examined these final regulations in light of its regulations implementing the Clery Act, and has determined that these final regulations do not create any conflicts with respect to CSAs and their obligations under the regulations implementing the Clery Act. For discussion about these final regulations and the regulations implementing the Clery Act, see the discussion in the ‘‘Clery Act’’ subsection of the ‘‘Miscellaneous’’ section of this preamble. The Department is not under an obligation to conform these final regulations with NCAA compliance guidelines and declines to do so. Any recipient may give coaches and trainers authority to institute corrective measures on behalf of the recipient such that notice to coaches and trainers conveys actual knowledge to the recipient as defined in § 106.30. Additionally, or alternatively, any recipient may train coaches and athletic trainers to report notice of sexual harassment to the recipient’s Title IX Coordinator. We reiterate that as to elementary and secondary schools, notice to a coach or trainer charges the recipient with actual knowledge, if the coach or trainer is an employee. As discussed in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Supreme Court developed the concept of officials with authority to institute corrective measures on behalf of the recipient based on the administrative enforcement requirement in 20 U.S.C. 1682 that an agency must give notice of a Title IX violation to ‘‘an appropriate person’’ affiliated with the recipient before an agency seeks to terminate the recipient’s Federal funding, and that an appropriate official is one who can make a decision to correct the violation. Whether a person constitutes an official of the recipient who has authority to institute corrective measures on behalf of the recipient is a fact-specific determination 517 and the 517 E.g., Julie Davies, Assessing Institutional Responsibility for Sexual Harassment in Education, 77 Tulane L. Rev. 387, 398, 425–26 (2002) (‘‘The requirement of actual notice to a person with corrective authority is more complex than it appears on its face. A person who has corrective authority in one sphere, such as a teacher with regard to students in his class, may lack such authority in other contexts. While one can understand the potential unfairness to educational institutions if liability were imposed for failure to E:\FR\FM\19MYR2.SGM Continued 19MYR2 30116 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Department will look to Federal case law applying the Gebser/Davis framework. Because determining which employees may be officials with authority’’ is fact-specific, the Department focuses administrative enforcement on (1) requiring every recipient to designate a Title IX Coordinator, notice to whom the Department deems as conveying actual knowledge to the recipient, and (2) applying an expanded definition of actual knowledge in the elementary and secondary school context to include notice to any school employee. The Department notes that recipients may, at their discretion, expressly designate specific employees as officials with authority for purposes of Title IX sexual harassment, and may inform students of such designations. Changes: The Department revised § 106.30 to expressly state that the mere ability or obligation to inform a student about how to report sexual harassment or having been trained to do so will not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient. take action when harassing conduct is described in some general manner to someone who is not in a capacity to evaluate, investigate, or intercede in any way, courts cannot rely exclusively on a job description. The legal authority of individuals to receive notice is clearly relevant and a basis for their inclusion as parties to whom notice may be given, but courts must also evaluate the factual reality. Reference to legal power to take the ultimate corrective action gives an incomplete picture of how power is wielded. The Court’s policy goals permit a construction that is broad and flexible, both as to what constitutes notice and who is in a position to take action.’’) (internal citations omitted); Brian Bardwell, No One is an Inappropriate Person: The Mistaken Application of Gebser’s ‘‘Appropriate Person’’ Test to Title IX PeerHarassment Cases, 68 Case W. Res. L. Rev. 1343, 1356–64 (2018) (analyzing case law applying the ‘‘official with authority’’ standard and noting that some courts focus on whether the ‘‘appropriate person’’ to whom sexual harassment was reported had authority to discipline the harasser, or the authority to remediate the situation for the victim, or both types of authority, and arguing that only a broader interpretation of an ‘‘appropriate person’’ serves the goals of Title IX, such that any school employee authorized to ‘‘take action to ensure that a victim continues to enjoy the full benefits of her [or his] education, despite having been harassed or assaulted’’ should be deemed authority to institute ‘‘corrective action’’ and satisfy the Gebser actual knowledge condition). The final regulations essentially take this broader approach in the elementary and secondary school context, where notice to any employee charges the school with actual knowledge, but in the postsecondary institution context leaves institutions flexibility to choose the officials to whom the institution grants authority to institute corrective measures on the recipient’s behalf. Recognizing that case law under the Gebser/Davis framework has taken different approaches to what constitutes ‘‘corrective action’’ the final regulations emphasize a recipient’s obligation to ensure that its entire educational community knows how to readily, accessibly report sexual harassment to the Title IX Coordinator. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Elementary and Secondary Schools Comments: Many commenters expressed concerns about how the § 106.30 definition of ‘‘actual knowledge’’ will apply to students at elementary and secondary schools. Commenters asserted that elementary and secondary school students suffer a particular harm when adult employees prey upon them, and those same adults can pressure those students to stay silent. Some commenters asserted that the proposed rules conflict with robust State laws and regulations that require mandatory reporting of suspected child abuse or domestic violence. Several commenters characterized the actual knowledge requirement as dramatically narrowing the scope of elementary and secondary school employees’ obligation to respond to sexual harassment by using an actual knowledge requirement instead of a constructive notice requirement. These commenters contended that the proposed rules’ actual knowledge requirement would harm children because it would exclude school district personnel who regularly interact with students, including school principals, paraeducators, school counselors, coaches, school bus drivers, and others, from the group of officials to whom notice charges the school with actual knowledge. Discussion: The Department is persuaded that students in elementary and secondary schools who are typically younger than students in postsecondary institutions must be able to report sexual harassment to an employee other than a teacher, Title IX Coordinator, or official with authority, to trigger the school’s mandatory response obligations. We agree that it is unreasonable to expect young children to seek out specific employees for the purpose of disclosing Title IX sexual harassment. Elementary and secondary school employees other than the Title IX Coordinator, teachers, or officials with authority may observe or witness sexual harassment or have notice of sexual harassment through other means such as a third-party report, and we agree that in the elementary and secondary school context such notice must trigger the school’s mandatory response obligations because otherwise, a young complainant may not be offered supportive measures or know of the option to file a formal complaint that initiates a grievance process against the respondent. Further, we recognize that in the elementary and secondary school context, a young student’s ability to make decisions regarding appropriate supportive measures, or about whether to file a formal complaint, would be impeded PO 00000 Frm 00092 Fmt 4701 Sfmt 4700 without the involvement of a parent or guardian who has the legal authority to act on the student’s behalf. Accordingly, the Department expands the definition of actual knowledge in § 106.30 to include ‘‘any employee of an elementary and secondary school’’ and adds § 106.6(g) expressly recognizing the legal rights of parents and guardians to act on behalf of a complainant (or respondent) in any Title IX matter. While the imputation of knowledge based solely on the theories of vicarious liability or constructive notice is insufficient, notice of sexual harassment to elementary and secondary school employees, who may include school principals, teachers, school counselors, coaches, school bus drivers, and all other employees, will obligate the recipient to respond to Title IX sexual harassment. The actual knowledge requirement is not satisfied when the only official or employee of the recipient with actual knowledge of the harassment is the respondent, because the recipient will not have opportunity to appropriately respond if the only official or employee who knows is the respondent. We understand that in some situations, a school employee may perpetrate sexual harassment against a student and then pressure the complainant to stay silent, and that if the complainant does not disclose the misconduct to anyone other than the employee-perpetrator, this provision means that the school is not obligated to respond. However, if the complainant tells another school employee about the misconduct, the school is charged with actual knowledge and must respond. Further, if the complainant tells a parent, or a friend, or a trusted adult in the complainant’s life, that third party has the right to report sexual harassment to the school’s Title IX Coordinator, obligating the school to promptly respond, even if that third party has no affiliation with the school.518 As previously explained in the ‘‘Employees’ Obligations’’ subsection of this ‘‘Actual Knowledge’’ section, the definition of actual knowledge in these final regulations does not necessarily narrow the scope of an elementary or secondary school’s obligation to respond to Title IX sexual harassment as compared to the approach taken in Department guidance. Under the 2001 Guidance, a school had ‘‘notice if a responsible employee ‘knew or in the exercise of reasonable care should have 518 Section 106.8(a) (emphasizing that ‘‘any person’’ may report sexual harassment to the Title IX Coordinator). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations known,’ about the harassment.’’ 519 Responsible employees, however, did not include all employees. Under these final regulations, notice of sexual harassment or allegations of sexual harassment to any employee of an elementary or secondary school charges the recipient with actual knowledge to the elementary or secondary school and triggers the recipient’s obligation to respond. The Department’s revised definition of actual knowledge with respect to elementary and secondary schools, thus, arguably broadens and does not narrow an elementary or secondary school’s obligation to respond to Title IX sexual harassment compared to the approach taken in Department guidance. The Department recognizes that most State laws require elementary and secondary school employees to report sexual harassment when it constitutes a form of child abuse. Even though the Department is not required to align these Federal regulations with mandatory reporter requirements in State laws, the Department chooses to do so in the context of elementary and secondary schools. The Department’s prior guidance did not require an elementary or secondary school to respond to Title IX sexual harassment when any employee had notice of Title IX sexual harassment.520 These final regulations do so. The Department acknowledges that State laws may exceed the requirements in these final regulations as long as State laws do not conflict with these final regulations as explained more fully in the ‘‘Section 106.6(h) Preemptive Effect’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. Commenters have not identified a conflict with respect to the actual knowledge definition in § 106.30, and any State law, in the context of elementary and secondary schools. Changes: The Department revised § 106.30 to specify that notice of sexual harassment to any employee of an elementary and secondary school constitutes actual knowledge to the recipient, and triggers the recipient’s obligation to respond to sexual harassment. Large Schools Comments: Multiple commenters asserted that students at large institutions—such as schools with more than one campus or with enrollments over 5,000 students—are disadvantaged by the actual knowledge requirement because students will be required to 519 2001 Guidance at 13. 520 Id. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 seek out a single administrator (the Title IX Coordinator) whose office may be located on a different campus or in another zip code and who has responsibilities for tens of thousands of other students, faculty, and staff. Several commenters also questioned how the proposed rules, including the actual knowledge definition in § 106.30, will burden Title IX Coordinators. Commenters asserted that the requirement for actual knowledge will significantly burden Title IX Coordinators who must now receive and process all sexual harassment and assault reports. Commenters expressed concern that for larger campuses, this could overwhelm an already overtaxed position on campuses, cause higher turnover rates for the position of Title IX Coordinator, and result in ineffective administration of Title IX. Many commenters argued that the proposed rules, and their focus on the Title IX Coordinator’s responsibilities, would add to schools’ overall administrative burdens. Discussion: The Department’s regulatory authority under Title IX extends to recipients of Federal financial assistance which operate education programs or activities.521 Requirements such as designation of a Title IX Coordinator therefore apply to each ‘‘recipient,’’ for example to a school district, or to a university system, regardless of the recipient’s size in terms of student enrollment or number of schools or campuses. Title IX’s nondiscrimination mandate extends to every recipient’s education programs or activities.522 These final regulations at § 106.8(a), similar to current 34 CFR 106.9, require recipients to designate ‘‘at least one’’ employee to serve as a Title IX Coordinator. As the Department has recognized in guidance documents,523 521 20 U.S.C. 1681(a) (referring to any education program or activity that receives Federal financial assistance); 34 CFR 106.2(i) (defining ‘‘recipient’’ to mean ‘‘any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives such assistance, including any subunit, successor, assignee, or transferee thereof’’). 522 See 20 U.S.C. 1687 (defining ‘‘program or activity’’); 34 CFR 106.2(h) (defining ‘‘program or activity’’). 523 E.g., 2001 Guidance at 21 (‘‘Because it is possible that an employee designated to handle Title IX complaints may himself or herself engage in harassment, a school may want to designate more than one employee to be responsible for handling complaints in order to ensure that students have an effective means of reporting harassment.’’); 2011 Dear Colleague Letter at 7 (stating that each recipient must designate one Title IX Coordinator but may designate more than one). The PO 00000 Frm 00093 Fmt 4701 Sfmt 4700 30117 some recipients serve so many students, or find it administratively convenient for other reasons, that the recipient may need to or wish to designate multiple employees as Title IX Coordinators, or designate a Title IX Coordinator and additional staff to serve as deputy Title IX Coordinators, or take other administrative steps to ensure that the Title IX Coordinator can adequately fulfill the recipient’s Title IX obligations, including all obligations imposed under these final regulations. The Department is sensitive to the financial and resource challenges faced by many recipients, the Department’s responsibility is to regulate in a manner that best effectuates the purposes of Title IX, to prevent recipients that allow discrimination on the basis of sex from receiving Federal financial assistance, and to provide individuals with effective protections against discriminatory practices.524 The Department is aware that many recipients face high turnover rates with respect to the Title IX Coordinator position 525 and that some recipients struggle to understand the critical role that Title IX Coordinators need to have in fulfilling a recipient’s Title IX responsibilities. However, the Department intends through these final regulations to further stress the critical role of each recipient’s Title IX Coordinator, a role that is emphasized Department’s Title IX implementing regulations have, since 1975, required each recipient to designate at least one employee to coordinate the recipient’s efforts to comply with Title IX. 34 CFR 106.8(a). These final regulations are thus consistent with current regulations and with all past Department guidance on this matter, but impose new legal obligations on recipients to, for example, include an email address for the Title IX Coordinator and require all the contact information for the Title IX Coordinator to be posted on the recipient’s website. § 106.8. 524 See, e.g., Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979) (describing the purposes of Title IX). 525 E.g., Sarah Brown, Life Inside the Title IX Pressure Cooker, Chronicle of Higher Education (Sept. 5, 2019) (‘‘Nationwide, the administrators who are in charge of dealing with campus sexual assault and harassment are turning over fast. Many colleges have had three, four, or even five different Title IX coordinators in the recent era of heightened enforcement, which began eight years ago. Twothirds of Title IX coordinators say they’ve been in their jobs for less than three years, according to a 2018 survey by the Association of Title IX Administrators, or ATIXA, the field’s national membership group. One-fifth have held their positions for less than a year.’’); Jacquelyn D. Wiersma-Mosley & James DiLoreto, The Role of Title IX Coordinators on College and University Campuses, 8 Behavioral. Sci. 4 (2018) (finding that most Title IX Coordinators have fewer than three years of experience, and approximately two-thirds are employed in positions in addition to serving as the Title IX Coordinator). E:\FR\FM\19MYR2.SGM 19MYR2 30118 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations throughout the final regulations 526 in ways that the Department is aware will require recipients to carefully ‘‘designate and authorize’’ Title IX Coordinators. The Department revised § 106.8(a) to require a recipient to give the Title IX Coordinator authority (i.e., authorize) to meet specific responsibilities as well as to coordinate the recipient’s overall efforts to comply with Title IX and these final regulations. The Department believes this emphasis on the need for recipients to rely heavily on Title IX Coordinators to fulfill recipient’s obligations will result in more recipients effectively responding to Title IX sexual harassment because recipients will be incentivized to properly train and authorize qualified individuals to serve this important function. The Department understands some commenters’ concerns that Title IX Coordinators will be burdened by, and that recipients will face administrative burdens under, these final regulations, but the Department believes that the obligations in these final regulations are the most effective way to effectuate Title IX’s nondiscrimination mandate, and believes that the function of a Title IX Coordinator is necessary to increase the likelihood that recipients will fulfill those obligations. At the same time, the Department will not impose a requirement on recipients to designate multiple Title IX Coordinators, so that recipients devote their resources in the most effective and efficient manner. If a recipient needs more than one Title IX Coordinator in order to meet the recipient’s Title IX obligations, the recipient will take that administrative step, but the Department declines to 526 E.g., § 106.8(a) (stating recipients now must not only designate, but also ‘‘authorize’’ a Title IX Coordinator, and must notify students and employees (and others) of the Title IX Coordinator’s contact information); § 106.8(b)(2) (requiring a recipient to post contact information for any Title IX Coordinators on the recipient’s website); § 106.30 (defining ‘‘actual knowledge’’ and stating notice to a Title IX Coordinator gives the recipient actual knowledge and ‘‘notice’’ includes but is not limited to a report to the Title IX Coordinator as described in § 106.8(a)); § 106.30 (defining ‘‘formal complaint’’ and stating a Title IX Coordinator may sign a formal complaint initiating a § 106.45 grievance process); § 106.44(a) (stating the Title IX Coordinator must contact each complainant to discuss the availability of supportive measures); § 106.30 (defining ‘‘supportive measures’’ and mandating that Title IX Coordinators are responsible for effective implementation of supportive measures); § 106.45(b)(1)(iii) (stating Title IX Coordinators must be free from conflicts of interest and bias, and must be trained on, among other things, how to serve impartially); § 106.45(b)(3)(ii) (stating a complainant may notify the Title IX Coordinator that the complainant wishes to withdraw a formal complaint); § 106.45(b)(7)(iv) (mandating that Title IX Coordinators are responsible for the effective implementation of remedies). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 assume the conditions under which a recipient needs more than one Title IX Coordinator in order to meet the recipient’s Title IX obligations. Because of the crucial role of Title IX Coordinators, the final regulations update and strengthen the requirements that recipients notify students, employees, parents of elementary and secondary school students, and others, of the Title IX Coordinator’s contact information and about how to make a report or file a formal complaint.527 In further response to commenters’ concerns that students may not know how to contact a Title IX Coordinator, the final regulations require the Title IX Coordinator’s contact information (which must include an office address, telephone number, and email address) to be posted on recipients’ websites,528 expressly state that any person may report sexual harassment using the listed contact information for the Title IX Coordinator or any other means that results in the Title IX Coordinator receiving the person’s verbal or written report, specify that such a report may be made ‘‘at any time (including during non-business hours)’’ using the Title IX Coordinator’s listed telephone number or email address.529 The final regulations also revise the definition of ‘‘formal complaint’’ to specify that a formal complaint may be filed in person, by mail, or by email using the listed contact information for the Title IX Coordinator.530 The Department’s intent is to increase the likelihood that students and employees know how to contact, and receive supportive measures and accurate information from, a trained Title IX Coordinator.531 Requiring the contact information for a Title IX Coordinator to include an office address, email address, and telephone number pursuant to § 106.8(a) obviates some commenters’ concerns that complainants will need to travel to physically report in person or face-toface with a Title IX Coordinator.532 Thus, even if the recipient’s Title IX 527 E.g., § 106.8(a); § 106.8(c). These requirements apply specifically to reports and formal complaints of sexual harassment, but also apply to reports and complaints of non-sexual harassment forms of sex discrimination. 528 Section 106.8(b)(2). 529 Section 106.8(a). 530 Section 106.30 (defining ‘‘formal complaint’’). 531 Section 106.45(b)(1)(iii) (describing required training for Title IX Coordinators and other Title IX personnel). 532 This requirement also mirrors the requirement (updated to include modern communication via email) in the 2001 Guidance that the ‘‘school must notify all of its students and employees of the name, office address, and telephone number of the employee or employees designated’’ to coordinate its efforts to comply with and carry out its Title IX responsibilities. 2001 Guidance at 21. PO 00000 Frm 00094 Fmt 4701 Sfmt 4700 Coordinator is located on a different campus from the student or in an administrative building outside the school building where a student attends classes, any person may report to the Title IX Coordinator using the Title IX Coordinator’s listed contact information, providing accessible reporting options.533 The Department believes these requirements concerning a Title IX Coordinator are sufficient to hold recipients accountable for complying with these final regulations, while leaving recipients flexibility to decide, in a recipient’s discretion, whether designation of multiple Title IX Coordinators, or deputy Title IX Coordinators, might be necessary and where any Title IX office(s) should be located, given a recipient’s needs in terms of enrollment, geographic campus locations, and other factors. Changes: Section 106.8(a) is revised to require that recipients must not only designate, but also ‘‘authorize’’ a Title IX Coordinator to coordinate the recipient’s Title IX obligations. This provision is also revised to require recipients to notify students, employees, parents of elementary and secondary school students, and others, of the Title IX Coordinator’s contact information including office address, telephone number, and electronic mail address and to state that any person may report to the Title IX Coordinator using the contact information listed for the Title IX Coordinator (or any other means that results in the Title IX Coordinator receiving the person’s verbal or written report). This provision is also revised to state that a report may be made at any time (including during non-business hours) by using the telephone number or email address or by mail to the office address, listed for the Title IX Coordinator. Section 106.8(b)(2) is revised to require the contact information for Title IX Coordinator(s) to be prominently displayed on the recipient’s website and in each of the recipient’s handbooks or catalogs. Miscellaneous Comments and Questions Comments: One commenter recommended that the final sentence of § 106.30 be deleted, and that the word ‘‘apparent’’ be inserted before ‘‘authority’’ in the first sentence of the same provision. One commenter asked whether a Title IX Coordinator can initiate a grievance process in the absence of a signed 533 For additional accessibility and ease of reporting, revised § 106.8(a) further states that any person may report at any time (including during non-business hours) by using the telephone number or email address, or by mail to the office address, listed for the Title IX Coordinator. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations complaint (for example, when evidence is readily available and/or an ongoing threat to campus exists). The same commenter also asked whether the Title IX Coordinator may serve as a complainant or whether such a case must proceed outside the Title IX process. Several commenters asked whether the Department would provide training recommendations dedicated to addressing a responsible employee’s obligation to respond to sexual assault reports. Some of these commenters also asked whether the Department would provide guidance on disseminating this information to students. One commenter recommended adding to the final regulations a statement that meeting with confidential resources on campus, such as organizational ombudspersons who comply with industry standards of practice and codes of ethics, does not constitute notice conveying actual knowledge to a recipient. The commenter reasoned that organizational ombudspersons are not ‘‘responsible employees’’ under the Department’s current guidance, and that to ensure that organizational ombudspersons continue to be a valuable resource providing informal, confidential services to complainants and respondents, the final regulations should note that organizational ombudspersons are a confidential resource exempt from the categories of persons to whom notice charges a recipient with actual knowledge. Discussion: The Department declines to follow a commenter’s suggestion to delete the sentence of § 106.30 534 concerning reporting obligations and training, or to insert the word ‘‘apparent’’ before the word ‘‘authority’’ in the first sentence of § 106.30.535 The framework for holding a recipient responsible for the recipient’s response to peer-on-peer or employee-on-student sexual harassment adopted in the final 534 The last sentence of § 106.30 defining ‘‘actual knowledge’’ to which a commenter referred, is now the second to last sentence in that section in the final regulations and provides: ‘‘The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient.’’ (Emphasis added. The italicized portions in this quotation have been added in the final regulations.). 535 The first sentence of § 106.30, defining ‘‘actual knowledge’’ in the final regulations, provides: ‘‘Actual knowledge means notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary and secondary school.’’ (Emphasis added. The italicized portions in this quotation have been added in the final regulations.). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 regulations is the Gebser/Davis condition of actual knowledge, adapted as the Department has deemed reasonable for the administrative enforcement context with differences in elementary and secondary schools, and postsecondary institutions. The sentence of the actual knowledge definition regarding reporting obligations represents a proposition applied by Federal courts under the Supreme Court’s Gebser/Davis framework.536 If an employee’s mere ability or obligation to report ‘‘up’’ the employee’s supervisory chain were sufficient to qualify that employee as an ‘‘official with authority to institute corrective measures,’’ then the rationale underlying actual knowledge would be undercut because virtually every employee might have the ‘‘ability’’ to report ‘‘up.’’ 537 For the reasons described above and in the ‘‘Actual Knowledge’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Department believes that administrative enforcement of Title IX’s non-discrimination mandate is best served by distinguishing between elementary and secondary schools (where notice to any employee triggers a recipient’s response obligations) and postsecondary institutions (where notice to the Title IX Coordinator or officials with authority triggers a recipient’s response obligations). As explained above, the final sentence in § 106.30 does not have as much applicability for recipients that are elementary and secondary schools under the final regulations due to the Department’s expanded definition of actual knowledge in that context to include notice to any school employee. As explained in the ‘‘Employees’ Obligations’’ subsection of this ‘‘Actual Knowledge’’ section, we have revised the final sentence in § 106.30 to expressly state that the mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient. Accordingly, elementary and secondary schools may choose to train non-employees such as volunteers about how to report sexual harassment or require volunteers to do so even though these final requirements do not impose such a requirement, and such schools would not face expanded 536 Davis, 526 U.S. at 646–48, Gebser, 524 U.S. at 289–91. 537 See id. PO 00000 Frm 00095 Fmt 4701 Sfmt 4700 30119 Title IX liability by doing so. Similarly, a postsecondary institution may choose to require all employees to report sexual harassment or to inform a student about how to report sexual harassment, or train all employees to do so, without fearing adverse repercussions from the Department. Recipients might not be willing to engage in training or impose reporting requirements that these final regulations do not impose, if doing so would cause the recipient to incur additional liability. Pursuant to § 106.8, the burden is on the recipient to designate a Title IX Coordinator, and the definition of ‘‘actual knowledge’’ in revised § 106.30 clearly provides that notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator constitutes actual knowledge, which triggers a recipient’s obligation to respond to sexual harassment. The recipient must notify all its students, employees, and others of the name or title, office address, email address, and telephone number of the employee or employees designated as the Title IX Coordinator (and post that contact information on its website), under § 106.8. Accordingly, all students and employees have clear, accessible channels through which to make a report of sexual harassment such that a recipient is obligated to respond to that report. Additionally, notice to other officials who have the authority to institute corrective measures on behalf of the recipient will convey actual knowledge to a recipient, and a recipient may choose to identify such officials by providing a list of such officials to students and employees. The level of authority that a person may have to take corrective measures is generally known to students and employees. For example, employees generally know that a supervisor but not a co-worker has authority to institute corrective measures. Similarly, a student in a postsecondary institution likely understands that deans generally have the authority to institute corrective measures. Students in elementary and secondary schools may report sexual harassment or allegations of sexual harassment to any employee. Students in postsecondary institutions can always report sexual harassment to the Title IX Coordinator. For reasons discussed in the ‘‘Formal Complaint’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, the final regulations retain the discretion of a Title IX Coordinator to sign a formal complaint initiating a grievance process against a respondent, but the final regulations clarify that in such situations, the Title IX Coordinator E:\FR\FM\19MYR2.SGM 19MYR2 30120 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations is not a complainant or otherwise a party to the grievance process.538 The Department believes this preserves the ability of a recipient to utilize the § 106.45 grievance process when safety or similar concerns lead a recipient to conclude that a non-deliberately indifferent response to actual knowledge of Title IX sexual harassment may require the recipient to investigate and potentially sanction a respondent in situations where the complainant does not wish to file a formal complaint. Although the Department recognizes that recipients may desire guidance on training (particularly now that the final regulations in § 106.45(b)(10)(i)(D) require the recipients to publish all training materials on recipient websites), the Department declines to recommend certain training practices or techniques aside from the requirements of § 106.45(b)(1)(iii),539 leaving flexibility to recipients to determine how to meet training requirements in a manner that best fits the recipient’s unique educational community. Regarding the dissemination of information to students, the Department notes that § 106.8 requires recipients to notify students and employees of the recipient’s policy of non-discrimination under Title IX, the Title IX Coordinator’s contact information, and information about how to report and file complaints of sex discrimination and how to report and file formal complaints of sexual harassment. The Department appreciates the opportunity to emphasize that whether a person affiliated with a recipient, such as an organizational ombudsperson, is or is not an ‘‘official with authority to institute corrective measures’’ requires a fact-specific inquiry, and understands the commenter’s assertion that an organizational ombudsperson adhering to industry standards and codes of ethics should be deemed categorically a ‘‘confidential resource’’ and not an official with authority. The Department encourages postsecondary institution recipients to examine campus resources such as organizational ombudspersons and determine whether, given how such ombudspersons work within a particular recipient’s system, such ombudspersons are or are not officials 538 Section 106.30 (defining ‘‘formal complaint’’ by stating that a formal complaint may be filed by a complainant or signed by a Title IX Coordinator, and adding language providing that where a Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or otherwise a party in the grievance process, and must remain free from conflicts of interest and bias). 539 Section 106.45(b)(1)(iii) (requiring training of Title IX Coordinators, investigators, decisionmakers, and any person who facilitates informal resolution processes). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 with authority to take corrective measures so that students and employees know with greater certainty the persons to whom parties can discuss matters confidentially without such discussion triggering a recipient’s obligation to respond to sexual harassment. We note that with respect to elementary and secondary schools, notice to any employee, including an ombudsperson, triggers the recipient’s response obligations. Changes: None. Complainant Comments: A few commenters supported the proposed rules’ definition of ‘‘complainant’’ in § 106.30 as an appropriate, sensible definition. Commenters asserted that using neutral terms like ‘‘complainant’’ and ‘‘respondent’’ avoids injecting bias generated by referring to anyone who makes an allegation as a ‘‘victim.’’ One commenter asserted that labeling an accuser a ‘‘victim’’ before there has been any investigation or adjudication turns the principle of innocent until proven guilty on its head.540 In contrast, many commenters urged the Department to use a term such as ‘‘reporting party’’ instead of ‘‘complainant.’’ Commenters argued that ‘‘complainant’’ suggests that a person is making a complaint (as opposed to reporting), or that the term ‘‘complainant’’ suggests a negative connotation that a person is ‘‘complaining’’ about discrimination which could create a barrier to reporting, and that ‘‘reporting party’’ is current, best practice terminology that better avoids bias and negative implications that a person is ‘‘complaining.’’ One commenter asserted that the Clery Act uses the term ‘‘victim’’ throughout its statute and regulations and asked why the § 106.30 definition of ‘‘complainant’’ uses the word victim without referring to that person as a victim throughout the proposed regulations. Some commenters asserted that the definition of complainant unfairly excluded third parties (non-victims, such as bystanders or witnesses to sexual harassment) from reporting sexual harassment because the definition of complainant referred to an individual ‘‘who has reported being the victim’’ and because the definition also stated that the person to whom the individual has reported must be the Title IX Coordinator or other person to 540 Commenter cited: Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 573 (D. Mass. 2016) (‘‘Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.’’). PO 00000 Frm 00096 Fmt 4701 Sfmt 4700 whom notice constitutes actual knowledge. Commenters argued that in order to further Title IX’s nondiscrimination mandate, a school must be required to respond to sexual harassment regardless of who has reported it and regardless of the school employee to whom a person reports. Commenters argued that if the survivor is the only person who can be a complainant, even fewer sexual assaults will be reported, and that third-party intervention can save lives and educational opportunities.541 Commenters argued that some students are non-verbal due to young age, disability, language barriers, or severe trauma, and the definition of complainant would exclude these students because these students are incapable of being the individual ‘‘who has reported being the victim.’’ Commenters argued that Federal courts have held schools liable for deliberate indifference to third-party reports of sexual harassment and the proposed rules should not set a lower threshold by excusing schools from responding to reports that come from anyone other than the victim.542 Commenters asserted that the definition of complainant should be modified to include parents of minor students, or parents of students with disabilities. A few commenters supported the definition of complainant believing that the definition appropriately excluded third-party reporting; these commenters argued that a school should only respond to alleged sexual harassment where the victim has personally reported the conduct. Some commenters suggested changing the definition of complainant to a person who has reported being ‘‘the victim of sex-based discriminatory conduct’’ instead of a person who has reporting being the victim of ‘‘sexual harassment,’’ arguing that the general public understands sexual harassment to be broader than how ‘‘sexual harassment’’ is defined in § 106.30 and these regulations should only apply to sex discrimination under Title IX. One commenter asserted that the phrase ‘‘or on whose behalf the Title IX Coordinator has filed a formal complaint’’ in the definition of ‘‘complainant’’ created confusion because proposed § 106.44(b)(2) 541 Commenters cited: Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 180 (2005) (‘‘teachers and coaches . . . are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators. Indeed, sometimes adult employees are ‘the only effective adversar[ies]’ of discrimination in schools.’’) (internal citation omitted; brackets in original). 542 Id. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations required a Title IX Coordinator to file a formal complaint upon receiving multiple reports against a respondent, but that proposed provision did not indicate on which complainant’s behalf such a formal complaint would be filed. Discussion: The Department appreciates commenters’ support for the proposed definition of ‘‘complainant’’ in § 106.30 as a sensible, neutral term to describe a person alleged to be the victim of sexual harassment. We appreciate commenters who asserted that ‘‘reporting party’’ would be a preferable term due to concerns that ‘‘complainant’’ suggests that the person has filed a complaint (as opposed to having reported conduct), or that there is a negative connotation to the word ‘‘complainant’’ suggesting that the person is complaining about discrimination. The Department does not disagree that a term such as ‘‘reporting party’’ could be an appropriate equivalent term for ‘‘complainant’’ in terms of neutrality; however, the Department believes that both terms reflect the neutral, impartial intent of describing a person who is an alleged victim but a fair process has not yet factually determined whether the person was victimized. Further, the final regulations ensure that a person must be treated as a ‘‘complainant’’ any time such a person has been alleged to be the victim of sexual harassment; ‘‘reporting party’’ would imply that the alleged victim themselves had to be the person who reported. The Department retains the word ‘‘complainant’’ in these final regulations, instead of using ‘‘reporting party,’’ also to avoid potential confusion with respect to the phrase ‘‘reporting party,’’ and the use throughout the final regulations of the word ‘‘party’’ to refer to either a complainant or respondent, and also to reinforce that a recipient must treat a person as a complainant (i.e., an alleged victim) no matter who reported to the school that the alleged victim may have suffered conduct that may constitute sexual harassment. We believe that the context of the final regulations makes it clear that a ‘‘complainant’’ (as the definition states in the final regulations) is a person who is alleged to be the victim of sexual harassment irrespective of whether a formal complaint has been filed. The Department notes that ‘‘complainant’’ and ‘‘complaint’’ are commonly used terms in various proceedings designed to resolve disputed allegations without pejoratively implying that a person is unjustifiably ‘‘complaining’’ about something but instead neutrally describing that the person has brought VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 allegations or charges of some kind.543 While the definition of ‘‘complainant’’ uses the word ‘‘victim’’ to refer to the complainant as a person alleged to be the victim of sexual harassment, we do not use the word victim throughout the final regulations because the word ‘‘victim’’ suggests a factual determination that a person has been victimized by the conduct alleged, and that conclusion cannot be made unless a fair process has reached that determination. We acknowledge that the Clery Act uses the word ‘‘victim’’ throughout that statute and regulations, but we believe the term ‘‘complainant’’ more neutrally, accurately describes a person who is allegedly a victim without suggesting that the facts of the situation have been prejudged. The proposed definition of complainant did not prevent third-party reporting, and while the final regulations revise the § 106.30 definition of complainant, the final regulations also do not prevent thirdparty reporting. Under both the proposed and final regulations, any person (i.e., the victim of alleged sexual harassment, a bystander, a witness, a friend, or any other person) may report sexual harassment and trigger a recipient’s obligation to respond to the sexual harassment.544 Nothing in the final regulations requires an alleged victim to be the person who reports; any person may report that another person has been sexually harassed. We agree that third party reporting of sexual harassment promotes Title IX’s non-discrimination mandate. In response to commenters’ concerns, we have revised § 106.8(a) to expressly state that ‘‘any person’’ may report sexual harassment ‘‘whether or not the person reporting is the person alleged to be the victim’’ by using the Title IX Coordinator’s listed contact information. Further, such a report may be made at any time including during non-business hours, using the telephone number or 543 For example, OCR refers to a ‘‘complainant’’ as a person who files a ‘‘complaint’’ with OCR, alleging a civil rights law violation. E.g., U.S. Dep’t. of Education, Office for Civil Rights, How the Office for Civil Rights Handles Complaints (Nov. 2018), https://www2.ed.gov/about/offices/list/ocr/ complaints-how.html. 544 Section 106.44(a) (stating that a recipient with actual knowledge of sexual harassment in the recipient’s education program or activity against a person in the United States must respond promptly and in a manner that is not clearly unreasonable in light of the known circumstances, including by offering supportive measures to the complainant, informing the complainant of the availability of supportive measures with or without the filing of a formal complaint, considering the complainant’s wishes with respect to supportive measures, and explaining to the complainant how to file a formal complaint). PO 00000 Frm 00097 Fmt 4701 Sfmt 4700 30121 email address (or by mail to the office address) listed for the Title IX Coordinator. We have also revised § 106.30 defining ‘‘actual knowledge’’ to expressly state that ‘‘notice’’ triggering a recipient’s response obligations includes reporting to the Title IX Coordinator as described in § 106.8(a). The intent of these final regulations is to ensure that any person (whether that person is the alleged victim, or anyone else) has clear, accessible channels for reporting sexual harassment to trigger a recipient’s response obligations (which include promptly offering supportive measures to the person alleged to be the victim). While any person (including third parties) can report, the person to whom notice (i.e., a report) of sexual harassment is given must be the Title IX Coordinator or official with authority to take corrective action, or any employee in the elementary and secondary school context, in order to trigger the recipient’s response obligations—but any person can report.545 The benefits of third-party reporting do not, however, require the third party themselves to become the ‘‘complainant’’ because, for example, supportive measures must be offered to the alleged victim, not to the third party who reported the complainant’s alleged victimization. Similarly, while we agree that where a parent or guardian has a legal right to act on behalf of an individual, the parent or guardian must be allowed to report the individual’s victimization (and to make other decisions on behalf of the individual, such as considering which supportive measures would be 545 For reasons explained in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section, and the ‘‘Actual Knowledge’’ subsection of the ‘‘Section 106.30 Definitions’’ section, of this preamble, the final regulations expand the definition of actual knowledge in the elementary and secondary school context, but the final regulations retain the requirement that a recipient must have actual knowledge of sexual harassment in order to be required to respond. We have revised the definition of actual knowledge to state expressly that notice conveying actual knowledge includes, but is not limited to, reporting sexual harassment to the Title IX Coordinator as described in § 106.8(a). We have revised § 106.8(a) to expressly state that any person may report sexual harassment (whether or not the person reporting is the person alleged to be the victim of sexual harassment, or is a third party) by using the contact information for the Title IX Coordinator (which must include an office address, telephone number, and email address), and stating that a report may be made at any time (including during non-business hours) by using the Title IX Coordinator’s listed telephone number or email address (or by mailing to the listed office address). Thus, any person (including a non-victim third party) may report sexual harassment, but in order to trigger a recipient’s response obligations the report must give notice to a Title IX Coordinator or to an official with authority to institute corrective measures, or to any employee in the elementary and secondary school context. E:\FR\FM\19MYR2.SGM 19MYR2 30122 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations desirable and whether to exercise the option of filing a formal complaint), in such a situation the parent or guardian does not, themselves, become the complainant; rather, the parent or guardian acts on behalf of the complainant (i.e., the individual allegedly victimized by sexual harassment). We have added § 106.6(g) to expressly acknowledge the legal rights of parents or guardians to act on behalf of a complainant (or any other individual with respect to exercising Title IX rights). We agree with commenters that allowing third-party reporting is necessary to further Title IX’s nondiscrimination mandate for a variety of reasons, including, as commenters asserted, that some complainants (i.e., alleged victims) cannot verbalize their own experience or report it (whether verbally or in writing) yet when parents, bystanders, witnesses, teachers, friends, or other third parties report sexual harassment to a person to whom notice charges the recipient with actual knowledge, then the recipient must be obligated to respond. In response to commenters’ confusion as to whether the proposed definition of complainant in § 106.30 allowed or prohibited thirdparty reporting, and in agreement with commenters’ assertions that third-party reporting is a critical part of furthering Title IX’s purposes, we have revised the definition of complainant in the final regulations to state (emphasis added): ‘‘An individual who is alleged to be the victim of conduct that could constitute sexual harassment’’ and removed the sentence in the NPRM that referenced to whom the report of sexual harassment was made. This revision clarifies that the person alleged to be the victim does not need to be the same person who reported the sexual harassment. This revision also ensures that any person reported to be the victim of sexual harassment (whether the report was made by the alleged victim themselves or by a third party) will be treated by the recipient as a ‘‘complainant’’ entitled to, for example, the right to be informed of the availability of supportive measures and of the process for filing a formal complaint, under § 106.44(a). The final regulations, like the proposed rules, draw a distinction between a recipient’s general response to reported incidents of sexual harassment (including offering supportive measures to the complainant), on the one hand, and the circumstances that obligate a recipient to initiate a grievance process, on the other hand. With respect to a grievance process, the final regulations retain the proposed rules’ approach that a VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 recipient is obligated to begin a grievance process against a respondent (that is, to investigate and adjudicate allegations) only where a complainant has filed a formal complaint or a Title IX Coordinator has signed a formal complaint. Other than the Title IX Coordinator (who is in a specially trained position to evaluate whether a grievance process is necessary under particular circumstances even without a complainant desiring to file the formal complaint or participate in the grievance process), a person who does not meet the definition of ‘‘complainant’’ under § 106.30 cannot file a formal complaint requiring the recipient to initiate a grievance process. Other than a Title IX Coordinator, third parties cannot file formal complaints.546 The Department believes the final regulations appropriately delineate between the recipient’s obligation to respond promptly and meaningfully to actual knowledge of sexual harassment in its education program or activity (including where the actual knowledge comes from a third party), with the reality that permitting third parties to file formal complaints would result in situations where a complainant’s autonomy is not respected (i.e., where the complainant does not wish to file a formal complaint or participate in a grievance process),547 and other 546 As discussed above, a parent or guardian with the legal right to act on a complainant’s behalf may file a formal complaint on the complainant’s behalf. § 106.6(g). 547 As one aspect of respect for complainant autonomy, every complainant retains the right to refuse to participate in a grievance process, and the Department has added § 106.71 to the final regulations, prohibiting retaliation generally, and specifically protecting the right of any individual who chooses not to participate in a grievance process. When a grievance process is initiated in situations where the complainant did not wish to file a formal complaint, this results in the complainant being treated as a party throughout the grievance process (e.g., the recipient must send both parties written notice of allegations, a copy of the evidence for inspection and review, written notice of interviews requested, a copy of the investigative report, written notice of any hearing, and a copy of the written determination regarding responsibility). This means that the complainant will receive notifications about the grievance process even where the complainant does not wish to participate in the process. The Department agrees with commenters who urged the Department to recognize the importance of a survivor’s autonomy and control over what occurs in the aftermath of a sexual harassment incident. The Department thus desires to restrict situations where a grievance process is initiated contrary to the wishes of the complainant to situations where the Title IX Coordinator (and not a third party) has determined that signing a formal complaint even without a complainant’s participation is necessary because not initiating a grievance process against the respondent would be clearly unreasonable in light of the known circumstances. Although a complainant who did not wish to file a formal complaint and does not want to participate in a PO 00000 Frm 00098 Fmt 4701 Sfmt 4700 situations where recipients are required to undertake investigations that may be futile in terms of lack of evidence because the complainant does not wish to participate. In response to commenters’ concerns that the definitions of ‘‘complainant’’ and ‘‘formal complaint’’ do not allow for situations where a parent or guardian appropriately must be the person who makes the decision to file a formal complaint on behalf of a minor child or student with a disability, the final regulations add § 106.6(g) acknowledging that nothing about the final regulations may be read in derogation of the legal rights of parents or guardians to act on behalf of any individual in the exercise of rights under Title IX, including filing a formal complaint on a complainant’s behalf. In such a situation, the parent or guardian does not become the ‘‘complainant’’ yet § 106.6(g) clarifies that any parent or guardian may act on behalf of the complainant (i.e., the person alleged to be the victim of sexual harassment). If a parent or guardian has a legal right to act on a person’s behalf, the parent or guardian may always be the one who files a formal complaint for a complainant. This parental or guardianship authority to act on behalf of a party applies throughout all aspects of a Title IX matter, from reporting sexual harassment to considering appropriate and beneficial supportive measures, and from choosing to file a formal complaint to participating in the grievance process.548 We decline commenters’ suggestions to define a complainant as a person reported to be the victim of ‘‘sexdiscriminatory conduct’’ instead of ‘‘conduct that could constitute sexual harassment,’’ because these final regulations specifically address a recipient’s response to allegations of sexual harassment and clearly define grievance process may not want to receive notifications throughout the grievance process, the recipient must treat the complainant as a party by sending required notices, and must not retaliate against the complainant for choosing not to participate. Nothing in the final regulations precludes a recipient from communicating to a nonparticipating complainant that the recipient is required under these final regulations to send the complainant notices throughout the grievance process and that such a requirement is intended to preserve the complainant’s right to choose to participate, not to pressure the complainant into participating. Such a practice adopted by a recipient would need to be applied equally to respondents who choose not to participate in a grievance process; see introductory sentence of § 106.45(b). 548 See discussion in the ‘‘Section 106.6(g) Exercise of Rights by Parents/Guardians’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the term ‘‘sexual harassment’’ in § 106.30. In the response to commenters’ concerns that the phrase ‘‘or on whose behalf the Title IX Coordinator has filed a formal complaint’’ in the proposed definition of § 106.30 created confusion in situations where the Title IX Coordinator would have been required to file a formal complaint upon receiving multiple reports against a respondent,549 we have removed the phrase ‘‘or on whose behalf the Title IX Coordinator has filed a formal complaint’’ from the definition of complainant in § 106.30. Numerous commenters urged the Department to respect the autonomy of survivors, and we have concluded that when a Title IX Coordinator signs a formal complaint, that action is not taken ‘‘on behalf of’’ a complainant (who may not wish to file a formal complaint or participate in a grievance process).550 Removal of this phrase is more consistent with the Department’s goal of ensuring that every complainant receives a prompt, meaningful response when a recipient has actual knowledge of sexual harassment in a manner that better respects a complainant’s autonomy by not implying that a Title IX Coordinator has the ability to act ‘‘on behalf of’’ a complainant when the Title IX Coordinator signs a formal complaint. Removal of this phrase also helps clarify that when a Title IX Coordinator signs a formal complaint, that action does not place the Title IX Coordinator in a position adverse to the respondent; the Title IX Coordinator is initiating an investigation based on allegations of which the Title IX Coordinator has been made aware, but that does not prevent the Title IX Coordinator from being free from bias or conflict of interest with respect to any party. Changes: The final regulations revise the definition of ‘‘complainant’ in § 106.30 by revising this provision to state that complainant means ‘‘an individual who is alleged to be the victim of conduct that could constitute 549 For reasons discussed in the ‘‘Proposed § 106.44(b)(2) [removed in the final regulations]’’ subsection of the ‘‘Recipient’s Response in Specific Circumstances’’ section of this preamble, we have removed the provision in the NPRM that would have required the Title IX Coordinator to file a formal complaint upon receiving multiple reports against a respondent. However, the final regulations still grant a Title IX Coordinator the discretion to decide to sign a formal complaint, and the Title IX Coordinator’s decision will be evaluated based on what was not clearly unreasonable in light of the known circumstances. 550 We have also revised the definition of ‘‘formal complaint’’ in § 106.30 to clarify that signing a formal complaint does not mean the Title IX Coordinator has become a complainant or otherwise a party to the grievance process. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 sexual harassment’’ thereby removing the phrase ‘‘who has reported to be the victim,’’ the phrase ‘‘or on whose behalf the Title IX Coordinator has filed a formal complaint,’’ and the sentence describing to whom a complainant had to make a report. The final regulations add § 106.6(g) addressing ‘‘Exercise of rights by parents or guardians’’ and providing that nothing in the final regulations may be read in derogation of any legal right of a parent or guardian to act on behalf of a ‘‘complainant,’’ ‘‘respondent,’’ ‘‘party,’’ or other individual. Consent Comments: Some commenters supported the proposed rules because the proposed rules did not mandate an ‘‘affirmative consent’’ standard for recipients to use in adjudicating sexual assault allegations. One commenter expressed general support for the proposed rules and asserted that courts across the country are ruling in favor of accused males for reasons including schools’ misuse of affirmative consent policies. One commenter agreed with the fact that the proposed rules do not mandate affirmative consent, arguing that affirmative consent often ends up shifting the burden to the accused to prove innocence. One commenter supported the proposed rules, asserting that under current policies the responsibility to obtain and prove consent is on men, but the commenter believed that under the proposed rules women will speak up and learn to be more assertive. One commenter expressed concern about not defining consent in the proposed rules, asserting that with respect to rape, consent definitions may vary across States and in some States there is no consent element. One commenter discussed the importance of consent because every person at every moment has the right to do whatever they choose with their own body, and argued that sexual consent should be as obvious as other kinds of consent in our society; for example, asserted the commenter, a restaurant does not beg a patron incessantly to finish a burger until the patron feels reluctantly forced to eat. This commenter referenced internet videos sharing personal examples of the results of violations of consent.551 One commenter recommended that language be added requiring the complainant to prove absence of 551 Commenter cited, e.g.: Jennifer Gunsaullus, Sex and The Price of Masculinity: My personal story of consent violation, The Good Men Project (Aug. 8, 2016), https://goodmenproject.com/featuredcontent/sex-and-the-price-of-masculinity-gmp/. PO 00000 Frm 00099 Fmt 4701 Sfmt 4700 30123 consent as opposed to requiring the respondent to prove presence of consent. The commenter asserted that this would make it clear that the burden of proof stays with the complainant (or the school). One commenter urged the Department to adopt the concept of implied consent as a safe harbor against sexual assault claims in dating situations. One commenter advocated a definition of sexual assault that recognizes that consent can be negated by explicit and implicit threats, so that ‘‘coercive sexual violence’’ that ‘‘often includes a layer of nominal and deeply guilt inducing ambiguity’’ (due to a victim verbally expressing consent but only because of fear based on the perpetrator’s threats) would also be covered under Title IX. One commenter stated that some institutions use affirmative consent while others use ‘‘no means no’’ and asked the Department to clarify whether recipients are expected to use a specific definition for consent because sexual assault depends on whether a victim consented. Several commenters stated that universities should strive to provide clear rules with respect to what is considered consensual sexual conduct. Some commenters urged the Department to provide additional clarification for how schools should handle consent in situations where both students were drunk. One commenter suggested that the Department should clarify that Title IX’s non-discrimination language means that when male and female students are both drunk and have sex, the school may not automatically assign blame to the male and victimhood to the female because, the commenter asserted, this approach is based on outdated gender stereotypes and violates Title IX. Another commenter opined that while drunken hookups are never a good idea, colleges must recognize that students do get intoxicated and have sex, as do many non-students, yet a young couple getting married and drinking champagne are not raping each other if they consummate the marriage later that night while their blood alcohol is beyond the legal limit to drive; the commenter asserted that colleges can make their policies stricter than the law, but must make that language clear. A few commenters asserted that schools have often failed to recognize the idea that when school policies states that any sign of intoxication means consent is invalid, that policy should go both ways (i.e., applied equally to men and women). One commenter, a female university student, expressed concern that under E:\FR\FM\19MYR2.SGM 19MYR2 30124 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations current consent rules, being drunk while consenting is often not truly considered consent, and that in situations where both parties could be perceived as assaulting each other— because both had been drinking so that neither party gave valid consent—the woman’s position is usually the only one taken into account, leading the commenter to believe that if a woman has an encounter she regrets, but did not communicate lack of consent at the time, she can report to the school and it will be investigated without getting the partner’s perspective in a fair manner. Another commenter supported treating women and men equally when it comes to drug or alcohol-infused sex. Some commenters provided articles discussing the meaning of consent, including whether the level of intoxication is relevant to the definition of consent. One commenter stated that one of the areas recipients appear to be struggling with is that lack of consent may be based on temporary or permanent mental or physical incapacity of the victim, and the commenter recommended that the Department inform recipients that inebriation is not equivalent to incapacitation. Several commenters were concerned that the proposed rules did not impose an affirmative consent standard. One commenter argued that failing to include affirmative consent buys into rape myths including that silence is consent. One commenter criticized the proposed rules for ignoring the best practice standard of affirmative consent, or the ‘‘yes means yes’’ model for consent to any sexual activity, and the commenter argued that not imposing an affirmative consent standard will do a disservice to people who do not give a clear ‘‘No,’’ who freeze, or revoke consent, and that this will override the important work many institutions have done to get students to understand the value and intricacies of affirmative consent. One commenter stated that affirmative consent policies are not best practices, are often confusing and difficult to enforce in a consistent, nonarbitrary manner, and end up shifting the burden onto a respondent to prove innocence; this commenter cited a law review article noting that affirmative consent policies often require the accused to show clear, unambiguous (and in some policies, ‘‘enthusiastic’’) consent.552 One commenter argued that affirmative consent policies violate Title IX because such policies discriminate 552 Commenter cited: Jacob E. Gerson & Jeannie Suk Gersen, The Sex Bureaucracy, 104 Cal. L. Rev. 881 (2016). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 against men.553 Another commenter asserted that based on personal experience representing respondents in campus Title IX proceedings, many schools require the respondent to prove that there was consent, either by using an affirmative consent standard or by placing undue emphasis on a common provision in institutional policies and practices, that consent to one sexual act does not necessarily imply consent to another sexual act but that in either scenario, institutions often shift the burden of proof to respondents to prove their innocence, which the commenter asserted is inconsistent with centuriesold understandings of due process. One commenter was concerned that the proposed rules do not prevent a school from using an affirmative consent standard and recommended that the Department clarify that an affirmative consent standard violates Title IX because it unfairly shifts the burden of proof to respondents and has a disparate impact on men because, the commenter argued, women are content to let men initiate sexual conduct even when sexual advances turn out to be welcome. One commenter expressed concern about affirmative consent and asserted that college administrators have no right to regulate the private lives of adults when neither person is compelled by threats or force. One commenter opined that while affirmative consent makes sense when gauging overt sexual initiatives between strangers, it is a ridiculous standard to apply to people in sexual relationships, or even to the typical college party situation, because under affirmative consent, waking up a lover with a kiss is sexual assault, as is every thrust if consent is not somehow recommunicated in between. One commenter expressed concern that some sexual assault laws say that ‘‘not saying no’’ can be considered assault. One commenter argued that ‘‘overthinking’’ about sexual consent causes men not to approach women as much, and the commenter stated this is not good for society because it causes educated folks not to approach each other. Another commenter stated that while the idea of affirmative consent sounds good, in practice it seems as if colleges look at this as the responsibility of one person, usually the male; the commenter suggested rebranding 553 Commenter cited: Samantha Harris, University of Miami Law Prof: Affirmative Consent Effectively Shifts Burden of Proof to Accused, Foundation for Individual Rights in Education (FIRE) (Sept. 11, 2015), https://www.thefire.org/university-of-miamilaw-prof-affirmative-consent-effectively-shiftsburden-of-proof-to-accused/. PO 00000 Frm 00100 Fmt 4701 Sfmt 4700 affirmative consent as affirmative communication, and recommended that colleges make clear that both parties have a duty to seek consent, but also that both parties are responsible for communicating discomfort or communicating if they do not want to proceed with sexual activity. One commenter recommended that the Department address training standards for decision-makers, including faculty, to address what commenters believed is shoddy research from dubious sources used in training materials that contributes to unjust decisions. The commenter referenced training around topics such as the amount of inebriation that violates consent and situations in which both parties are too drunk to consent. One commenter expressed concern that the proposed rules would permit the introduction of evidence regarding the complainant’s sexual history, when offered to prove consent. The commenter asserted that by permitting this evidence to prove consent, but not providing a definition of consent, the proposed rules will lead to an increase in ambiguity and the possibility of abuse by the accused in using evidence about a complainant’s sexual history. Discussion: The third prong of the § 106.30 definition of sexual harassment includes ‘‘sexual assault’’ as used in the Clery Act, 20 U.S.C. 1092(f)(6)(A)(v), which, in turn, refers to the FBI’s Uniform Crime Reporting Program (FBI UCR) and includes forcible and nonforcible sex offenses such as rape, fondling, and statutory rape which contain elements of ‘‘without the consent of the victim.’’ The Department acknowledges that the Clery Act, FBI UCR, and these final regulations do not contain a definition of consent. The Department believes that the definition of what constitutes consent for purposes of sexual assault within a recipient’s educational community is a matter best left to the discretion of recipients, many of whom are under State law requirements to apply particular definitions of consent for purposes of campus sexual misconduct policies. The Department’s focus in these final regulations is on recipients’ response to sexual harassment when such conduct constitutes sex discrimination prohibited by Title IX. The Department believes that the definition of sexual assault used by the Federal government for crime reporting purposes appropriately captures conduct that constitutes sex discrimination under Title IX, regardless of whether the ‘‘without the consent’’ element in certain sex offenses is as narrow as some State criminal laws define consent, or E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations broader as some State laws have required for use in campus sexual assault situations. Recipients may consider relevant State laws in adopting a definition of consent. For these reasons, the Department declines to impose a federalized definition of consent for Title IX purposes, notwithstanding commenters who would like the Department to adopt an affirmative consent standard, a ‘‘no means no’’ standard, an implied consent doctrine, or definitions of terms commonly used to indicate the absence or negation of consent (such as coercion, duress, or incapacity). In response to commenters asking for clarification, the Department has revised § 106.30 to include an entry for ‘‘Consent’’ confirming that the Department will not require recipients to adopt a particular definition of consent with respect to sexual assault. The Department agrees that recipients must clearly define consent and must apply that definition consistently, including as between men and women and as between the complainant and respondent in a particular Title IX grievance process because to do otherwise would indicate bias for or against complainants or respondents generally, or for or against an individual complainant or respondent, in contravention of § 106.45(b)(1)(iii), and could potentially be ‘‘treatment of a complainant’’ or ‘‘treatment of a respondent’’ that § 106.45(a) recognizes may constitute sex discrimination in violation of Title IX. We have revised the introductory sentence of § 106.45(b)(3) to state that any rules or practices that a recipient adopts and applies to its grievance process must equally apply to both parties. The Department appreciates the variety of commenters’ views regarding whether intoxication negates consent, whether verbal pressure amounts to coercion negating consent, and whether affirmative consent standards do, or do not, represent a best practice. However, for the reasons discussed above, the Department declines to impose on recipients a particular definition of consent, or terms used to describe the absence or negation of consent (such as coercion or incapacity). The Department disagrees that affirmative consent standards inherently place the burden of proof on a respondent, but agrees with commenters who observed that to the extent recipients ‘‘misuse affirmative consent’’ (or any definition of consent) by applying an instruction that the respondent must prove the existence of consent, such a practice would not be permitted under a § 106.45 grievance VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 process.554 Regardless of how a recipient’s policy defines consent for sexual assault purposes, the burden of proof and the burden of collecting evidence sufficient to reach a determination regarding responsibility, rest on the recipient under § 106.45(b)(5)(i). The final regulations do not permit the recipient to shift that burden to a respondent to prove consent, and do not permit the recipient to shift that burden to a complainant to prove absence of consent. The final regulations require Title IX Coordinators, investigators, decisionmakers, and any person who facilitates an informal resolution, to be trained on how to conduct an investigation and grievance process; this would include how to apply definitions used by the recipient with respect to consent (or the absence or negation of consent) consistently, impartially, and in accordance with the other provisions of § 106.45. Because a recipient’s definition of consent must be consistently applied, the Department does not believe that the reference to consent in the ‘‘rape shield’’ protections contained in § 106.45(b)(6)(i)–(ii) will cause the proceedings contemplated in those provisions to be ambiguous or subject to abuse by a respondent. While the Department declines to impose a definition of consent on recipients, a recipient selecting its own definition of consent must apply such definition consistently both in terms of not varying a definition from one grievance process to the next and as between a complainant and respondent in the same grievance process. The scope of the questions or evidence permitted and excluded under the rape shield language in § 106.45(b)(6)(i)–(ii) will depend in part on the recipient’s definition of consent, but, whatever that definition is, the recipient must apply it consistently and equally to both parties, thereby avoiding the ambiguity feared by the commenter. In further response to the commenter’s concern, we have revised § 106.45(b)(1)(iii) specifically to require investigators and decision-makers to be trained on issues of relevance, including how to apply the rape shield provisions (which deem questions and evidence about a complainant’s prior sexual history to be irrelevant with two limited exceptions). Because a recipient cannot place the burden of proving consent on a respondent (or on a complainant to prove absence of consent), while questions and evidence subject to the rape shield language in 554 Section 106.45(b)(5)(i) (stating burden of proof must rest on the recipient and not on the parties). PO 00000 Frm 00101 Fmt 4701 Sfmt 4700 30125 § 106.45(b)(6)(i)–(ii) may come from a respondent, it is not the respondent’s burden to prove or establish consent; questions and evidence may also be posed or presented by the recipient during the recipient’s investigation and adjudication. Changes: The Department revises § 106.30 to state that the Assistant Secretary will not require recipients to adopt a particular definition of consent with respect to sexual assault. Comments: Some commenters emphasized the need to teach about sexual consent. One commenter supported providing greater consent education to students, including treating both parties equally with respect to situations where both parties were under the influence of alcohol or drugs. One commenter stated that there needs to be more teaching about consent because there is a lot of confusion, and another commenter urged the Department to make it mandatory for every freshman in college to attend a course on bullying, sexual harassment, and consent. One commenter expressed general opposition for the proposed rules, asserting that children should live in a world that takes consent and assault seriously. One commenter, who works as a counselor at a university, expressed opposition to the proposed rules, stating that they would undo the important work of educators to instill in young people an understanding of how consent works. One commenter who works as a prevention educator teaching students about consent argued that the proposed rules paint women as liars, which makes useless the work of teaching students that consent should be celebrated, and ends up failing the young people of our country. One commenter expressed general opposition to the proposed rules and stated ‘‘consent first.’’ One commenter expressed general opposition to the proposed rules and asserted a belief in sex education and teaching consent. One commenter stated that the commenter’s school requires mandatory courses on sexuality and rape prevention that stress the importance of consent, open communication, and bystander intervention. The commenter stated that even with this training the commenter has still been subjected to sexual harassment in college and asserted that the absence of Title IX protections will ruin the commenter’s ability to learn. Discussion: The Department appreciates commenters who expressed a belief in the importance of educating students about consent, healthy relationships and communication, drug E:\FR\FM\19MYR2.SGM 19MYR2 30126 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations and alcohol issues, and sexual assault prevention (as well as bullying and harassment, generally). The Department shares commenters’ beliefs that measures preventing sexual harassment from occurring in the first place are beneficial and desirable. Although the Department does not control school curricula and does not require recipients to provide instruction regarding sexual consent, nothing in these final regulations impedes a recipient’s discretion to provide educational information to students. Changes: None. Elementary and Secondary Schools Comments: At least one commenter requested clarity as to the definition of ‘‘schools.’’ Discussion: In the proposed regulations, the Department referred to recipients that are elementary and secondary schools,555 but did not provide a definition for ‘‘elementary and secondary schools.’’ To provide clarity, the Department adds a definition of ‘‘elementary and secondary schools’’ that aligns with the definition of ‘‘educational institutions’’ in 34 CFR 106.2(k), which is a definition that applies to Part 106 of Title 34 of the Code of Federal Regulations. Section 106.2(k) defines an educational institution in relevant part as a local educational agency as defined in the Elementary and Secondary Education Act of 1965, which has been amended by the Every Student Succeeds Act (hereinafter ‘‘ESEA’’), a preschool, or a private elementary or secondary school. Consistent with the first part of the definition in 34 CFR 106.2(k), the Department includes a definition of ‘‘elementary and secondary schools’’ to mean a local educational agency (LEA), as defined in the ESEA, a preschool, or a private elementary or secondary school. The remainder of the entities described as educational institutions in 34 CFR 106.2(k) constitute postsecondary institutions as explained in the section, below, on the definition of ‘‘postsecondary institutions.’’ The definitions of ‘‘elementary and secondary school’’ and ‘‘postsecondary institution’’ apply only to §§ 106.44 and 106.45 of these final regulations. Changes: The Department includes a definition of elementary and secondary schools as used in §§ 106.44 and 106.45 to mean a LEA as defined in the ESEA, a preschool, or a private elementary or secondary school. 555 83 FR 61498. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Formal Complaint Support for Formal Complaint Definition Comments: Some commenters supported the definition of a ‘‘formal complaint’’ in § 106.30, and asserted that requiring a formal complaint to initiate an investigation is reasonable and appropriate, and will bring clarity to the process of investigating allegations of sexual harassment. Some commenters supported the formal complaint definition as a benefit to complainants by giving complainants control over what happens to their report, and a benefit to institutions by ensuring the institution has written documentation indicating that the complainant wanted an investigation to begin. Commenters supported requiring a formal complaint before an investigation begins because, commenters asserted, complainants may wish for informal discussions to remain confidential and the formal complaint requirement will empower complainants to decide when to report and when to start an investigation. Commenters asserted that the process for filing a formal complaint described in § 106.30 did not seem much different or more burdensome from other formal processes that students are accustomed to following in college, such as registering for classes or applying to study abroad. Commenters asserted that under the withdrawn 2011 Dear Colleague Letter, survivor advocates often worked with survivors who found themselves involved in Title IX processes that the survivor had not wished to initiate, due to disclosing sexual assault to an individual the survivor did not know was required to report to the Title IX Coordinator. Commenters asserted that many survivors choose not to report for a variety of reasons,556 and involuntary participation in a conduct process goes against standard knowledge of trauma and sexual violence recovery that emphasizes the importance of allowing survivors to retain control of their recovery to the extent possible. Commenters argued that when victims are unexpectedly or unwillingly involved in Title IX processes, this contradicts best practices because healing from the trauma of sexual violence is promoted when victims are able to maintain control of their recovery. Commenters argued that implementing a formal complaint 556 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Criminal Victimization: 2016 Revised 5 (2018). PO 00000 Frm 00102 Fmt 4701 Sfmt 4700 process will empower survivors to report to higher education institutions if and when they are ready, and to file a formal complaint to institutions by the victim’s own informed choice, on their own terms, by their own volition. Other commenters supported the formal complaint definition as a benefit to respondents, so that schools begin investigations only after a complainant has signed a document describing the allegations; commenters argued this is important for due process given the serious nature of the accusations at issue and the potential punishment. Commenters asserted that requiring a formal complaint will encourage only complainants with serious accusations to come forward. One commenter expressed support for the formal complaint requirement, but urged the Department to require that formal complaints be filed ‘‘without undue delay’’ because, the commenter asserted, passage of time can prejudice a fair investigation due to memories fading and evidence being lost. Discussion: The Department appreciates the support from commenters for the definition of ‘‘formal complaint’’ in § 106.30 and the requirement that recipients must investigate the allegations in a formal complaint.557 We agree that defining a formal complaint and requiring a recipient to initiate a grievance process in response to a formal complaint brings clarity to the circumstances under which a recipient is required to initiate an investigation into allegations of sexual harassment. The Department believes that complainants, respondents, and recipients benefit from the clarity and transparency of specifying the conditions that trigger the initiation of a grievance process. As explained below, in response to commenters’ concerns and questions we have revised the definition of ‘‘formal complaint’’ 558 and made revisions throughout the final regulations,559 to 557 E.g., § 106.44(b)(1); § 106.45(b)(3)(i). discussed throughout this section of the preamble, we have revised the § 106.30 definition of ‘‘formal complaint’’ to broaden the definition of what constitutes a written, signed document, simplify, clarify, and make more accessible the process for filing, and provide that signing a formal complaint does not mean a Title IX Coordinator becomes a party to a grievance process. 559 For example, we have revised § 106.44(a) to clarify specific steps a recipient must take as part of a prompt, non-deliberately indifferent response, including offering supportive measures with or without the filing of a formal complaint, and explaining to a complainant how to file a formal complaint, so that if a complainant wants to exercise the option of filing, the complainant (including a parent or legal guardian, as appropriate) knows how to do so. We have added § 106.6(g) to acknowledge the legal rights of parents 558 As E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations clarify how a recipient must respond to any report or notice of sexual harassment, versus when a recipient specifically must respond by initiating a grievance process. The Department believes that the final regulations benefit complainants by obligating recipients to offer complainants supportive measures regardless of whether the complainant files a formal complaint, and informing complainants of how to file a formal complaint; obligating recipients to initiate a grievance process if the complainant decides to file a formal complaint; and giving strong due process protections to a complainant who decides to participate in a grievance process. The Department believes that the final regulations benefit respondents by ensuring that recipients do not impose disciplinary sanctions against a respondent without following a grievance process that complies with § 106.45,560 and that the prescribed grievance process gives strong due process protections to both parties. The Department believes that the final regulations benefit recipients by specifying a recipient’s obligation to respond promptly and without deliberate indifference to every complainant (i.e., a person alleged to be the victim of sexual harassment), while clarifying the recipient’s obligation to conduct an investigation and adjudication of allegations of sexual harassment when the complainant files, or the Title IX Coordinator signs, a formal complaint. We do not agree that a formal complaint requirement encourages only complainants with ‘‘serious accusations’’ to come forward. While certain acts of sexual harassment may have even greater traumatic, harmful impact than other such acts, the Department believes that all conduct that constitutes sexual harassment under § 106.30 is serious misconduct or guardians to act on behalf of a complainant, respondent, or other party, including with respect to the filing of a formal complaint. 560 Revised §§ 106.44(a) and 106.45(b)(1)(i) state that a recipient must treat respondents equitably by not imposing disciplinary sanctions or other actions that are not ‘‘supportive measures’’ as defined in § 106.30, against a respondent without first following the § 106.45 grievance process. Exceptions to this prohibition are that any respondent may be removed from an education program or activity on an emergency basis, whether or not a grievance process is pending, under § 106.44(c), and a non-student employee respondent may be placed on administrative leave during the pendency of an investigation, under § 106.44(d), for reasons described in the ‘‘Additional Rules Governing Recipients’ Responses to Sexual Harassment’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 that warrants a serious response. All the conduct defined as ‘‘sexual harassment’’ in § 106.30 is misconduct that is likely to deny a person equal access to education, and recipients must respond promptly and supportively to every known allegation of sexual harassment whether or not a complainant wants to also file a formal complaint.561 Filing a formal complaint is not required for a complainant to receive supportive measures. We decline to impose a requirement that formal complaints be filed ‘‘without undue delay.’’ The Department believes that imposing a statute of limitations or similar time limit on the filing of a formal complaint would be unfair to complainants because, as many commenters noted, for a variety of reasons complainants sometimes wait various periods of time before desiring to pursue a grievance process in the aftermath of sexual harassment, and it would be difficult to discern what ‘‘undue’’ delay means in the context of a particular complainant’s experience. Title IX obligates recipients to operate education programs or activities free from sex discrimination, and we do not believe Title IX’s non-discrimination mandate would be furthered by imposing a time limit on a complainant’s decision to file a formal complaint. The Department does not believe that a statute of limitations or ‘‘without undue delay’’ requirement is needed to safeguard the rights of respondents, because the extensive due process protections afforded under the § 106.45 grievance process appropriately safeguard the fundamental fairness and reliability of Title IX proceedings by requiring procedures that take into account any effect of passage of time on party or witness memories or the availability or quality of other evidence.562 We have, however, revised the § 106.30 definition of formal complaint to state that at the time of filing a formal complaint, the 561 Section 106.44(a) (requiring a prompt, nondeliberately indifferent response any time a recipient has actual knowledge of sexual harassment in the recipient’s education program or activity, against a person in the United States). 562 For example, the final regulations provide both parties equal opportunity to gather, present, and review relevant evidence, such that parties can note whether passage of time has resulted in unavailability of evidence and raise arguments about how the decision-maker should weigh the evidence that remains. Further, the final regulations provide in § 106.45(b)(3)(ii) that a recipient has discretion to dismiss a formal complaint where specific circumstances prevent the recipient from meeting the recipient’s burden to gather sufficient evidence. Passage of time could in certain factspecific circumstances result in the recipient’s inability to gather evidence sufficient to reach a determination regarding responsibility. PO 00000 Frm 00103 Fmt 4701 Sfmt 4700 30127 complainant must be participating in or attempting to participate in the recipient’s education program or activity. This ensures that a recipient is not required to expend resources investigating allegations in circumstances where the complainant has no affiliation with the recipient, yet refrains from imposing a time limit on a complainant’s decision to file a formal complaint. Changes: As discussed in more detail throughout this section of the preamble, we have revised the § 106.30 definition of ‘‘formal complaint’’ to: Broaden the definition of what constitutes a written, signed document, simplify the process for filing, state that at the time of filing the formal complaint the complainant must be participating or attempting to participate in the recipient’s education program or activity, and clarify that signing a formal complaint does not mean a Title IX Coordinator becomes a party to a grievance process. We have revised § 106.44(a) to clarify specific steps a recipient must take as part of a prompt, non-deliberately indifferent response to actual knowledge of any sexual harassment incident (regardless of whether any formal complaint has been filed), including offering supportive measures to the complainant irrespective of whether a formal complaint is filed, and explaining to the complainant how to file a formal complaint. We have added § 106.6(g) to acknowledge the legal rights of parents or guardians to act on behalf of a complainant, respondent, or other party, including with respect to filing a formal complaint. No Formal Complaint Required To Report Sexual Harassment Comments: Several commenters believed that the proposed rules required complainants to file formal complaints in order to report sexual harassment, or that a formal complaint meeting the definition in § 106.30 was required before a school would have to take any action to help a student who reported sexual harassment, including offering supportive measures. Commenters argued that effective reporting systems must be flexible enough to give survivors as much control as possible over how they report sexual harassment and assault, including the option to remain anonymous or to report the crime without pursuing charges. Commenters asserted that when a victim reports shortly after a sexual harassment incident, the victim is often overwhelmed with emotions, and requiring them to provide formal, written, signed documentation would be E:\FR\FM\19MYR2.SGM 19MYR2 30128 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations an enormous emotional task that would cause some victims to question whether reporting is worth it at all. Commenters argued that requiring a formal complaint before a school must respond to notice of sexual harassment would violate the Supreme Court’s standards in Davis, which requires an institutional response without a written or signed complaint. Commenters argued that a ‘‘formal complaint standard’’ imposes a more rigorous notice standard than the Davis standard, contradicts the Department’s stated intent to use the Davis standard, and leaves recipients vulnerable to private litigation. Some commenters believed that the proposed rules would require survivors to file formal complaints such that every report would trigger an investigation; commenters argued that this would violate survivors’ autonomy and reduce the likelihood that survivors would come forward to get help. Commenters argued that formal complaints initiating a grievance process should not be required in order to report sexual assault, because not every survivor wants an investigation after experiencing sexual assault. Commenters argued that requiring survivors to report sexual harassment by filing formal complaints, involving writing down details of a traumatic experience in a signed document, would deter survivors from ever coming forward. Commenters believed that the proposed rules would require a formal complaint in order for the recipient to respond to a report and argued that this would chill reporting of sexual assault, which would affect the number of Clery crime reports and artificially make campuses appear safer than they are. Commenters argued that instead, schools should have to respond to any information about sexual harassment, assess the information, and take appropriate steps to stop the harassment. Commenters believed that the proposed rules created two different ‘‘prompt and equitable’’ grievance systems—one process for a school’s response to a ‘‘formal complaint’’ of sexual harassment, and a different process for a school’s response to an ‘‘informal complaint’’ of sexual harassment. Discussion: Contrary to some commenters’ understanding, neither the proposed rules, nor the final regulations, requires a formal complaint as a condition for any person to report sexual harassment to trigger a recipient’s obligation to respond promptly and meaningfully. Like the proposed rules, the final regulations VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 obligate a recipient to respond 563 in a manner that is not clearly unreasonable in light of the known circumstances, whenever a recipient has actual knowledge of sexual harassment in the recipient’s education program or activity, against a person in the United States.564 The requirement that a recipient must investigate allegations in a formal complaint does not change the fact that a recipient must respond, every time the recipient has actual knowledge, in a way that is not deliberately indifferent—even in the absence of a formal complaint.565 The requirement that a recipient must investigate allegations in a formal complaint provides clarity to complainants, respondents, and recipients as to when a recipient’s response must also consist of investigating allegations. Under the final regulations, a Title IX Coordinator has discretion to sign a formal complaint that initiates a grievance process; thus, if a non-deliberately indifferent response to actual knowledge of sexual harassment necessitates investigating allegations, the recipient (via the Title IX Coordinator) has the authority to take that action. As discussed in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment,’’ the conditions triggering a recipient’s response obligations (i.e., actionable sexual harassment, and actual knowledge) are built on the foundation of the same concepts used in the Gebser/Davis framework. Similarly, the deliberate indifference standard is built on the same concept used in the Gebser/Davis framework, but these final regulations tailor that standard to require the recipient to take actions in response to every instance of actual knowledge of sexual harassment, including specific obligations that are not required under the Gebser/Davis framework. These final regulations clarify that a recipient’s response obligations must always include offering supportive measures to the complainant, and must also include initiating a grievance process against the 563 The final regulations revise § 106.44(a) to require a recipient to respond ‘‘promptly.’’ 564 Revised § 106.44(a) specifies that a recipient’s response must include offering supportive measures to a complainant (i.e., the person alleged to be the victim of conduct that could constitute sexual harassment), and requires the Title IX Coordinator promptly to contact the complainant to discuss the availability of supportive measures with or without the filing of a formal complaint, consider the complainant’s wishes, and explain to the complainant the option of filing a formal complaint. 565 Section 106.44(b)(1) (stating that with or without a formal complaint, a recipient must comply with all the response obligations described in § 106.44(a)). PO 00000 Frm 00104 Fmt 4701 Sfmt 4700 respondent when the complainant files, or the Title IX Coordinator signs, a formal complaint. The formal complaint definition, and the requirement that recipients must investigate formal complaints, therefore comport with the Gebser/Davis framework used in private Title IX lawsuits and do not increase recipients’ vulnerability to legal challenges. While we adopt the Gebser/Davis framework, we adapt that framework by requiring recipients to take certain steps as part of every non-deliberately indifferent response to actual knowledge of sexual harassment, irrespective of whether a formal complaint is filed.566 We have revised § 106.44(a) to specify that a recipient’s prompt, non-deliberately indifferent response must include offering supportive measures to each complainant (i.e., a person who is alleged to be the victim), and specifically having the Title IX Coordinator contact the complainant to discuss the availability of supportive measures with or without the filing of a formal complaint, consider the complainant’s wishes regarding supportive measures, and explain to the complainant the process for filing a formal complaint. We agree with commenters who asserted that requiring a complainant to sign formal documentation describing allegations of sexual harassment in order to report and receive supportive measures would place an unreasonable burden on survivors, and the final regulations obligate recipients to respond promptly and meaningfully— including by offering supportive measures—whenever the recipient has actual knowledge that a person has been allegedly victimized by sexual harassment in the recipient’s education program or activity, regardless of whether the complainant or Title IX Coordinator initiates a grievance process by filing or signing a formal complaint. The manner by which a recipient receives actual knowledge need not be a written statement, much less a formal complaint; actual knowledge may be conveyed on a recipient via ‘‘notice’’ from any person—not only from the complainant (i.e., person alleged to be the victim)—regardless of whether the person who reports does so anonymously.567 The final regulations 566 Section 106.44(b)(1) clarifies that whether or not a formal complaint requiring investigation has also been filed, the recipient must provide the prompt, non-deliberately indifferent response described in § 106.44(a), which includes offering supportive measures to the complainant. 567 Section 106.30 (defining ‘‘actual knowledge’’). Where a person reports anonymously (regardless of E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations thus effectuate the purpose of Title IX’s non-discrimination mandate by requiring recipients to respond to information about sexual harassment in the recipient’s education program or activity, from whatever source that information comes,568 while reserving the specific obligation to respond by investigating and adjudicating allegations to situations where the complainant (i.e., the person alleged to be the victim) or Title IX Coordinator has decided to file a formal complaint. The formal complaint definition thus ensures that complainants retain more autonomy and control over when the complainant’s reported victimization leads to a formal grievance process, and recipients are not forced to expend resources investigating situations over the wishes of a complainant, unless the Title IX Coordinator has determined that such an investigation is necessary. We agree with commenters that not every complainant wants a recipient to respond to reported sexual harassment by initiating a grievance process; some complainants want an investigation, others do not, and some do not initially desire an investigation but later decide they do want to file formal ‘‘charges.’’ The final regulations ensure that every complainant is informed of the option and process for filing a formal complaint, yet never require a complainant to file a formal complaint in order to receive supportive measures. We believe that by respecting complainants’ autonomy the final whether the person is the complainant (i.e., the person alleged to be the victim) or a third party), the nature of the recipient’s non-deliberately indifferent response may depend on whether the report contains information identifying the alleged victim; for example, § 106.44(a) requires a recipient to respond to actual knowledge by offering the complainant supportive measures, but a recipient may not be capable of taking that action if the person who reported refuses to identify the complainant. A recipient’s response is judged on whether the response is clearly unreasonable in light of the known circumstances, which includes what information the recipient received about the identity of the complainant. 568 To ensure that a recipient’s educational community has clear, accessible reporting options, and understands that any person may report sexual harassment to trigger the recipient’s obligation to offer supportive measures and explain the option of filing a formal complaint to a person allegedly victimized by sexual harassment, we have revised § 106.8 to: State that any person may report, using contact information that a recipient must list for the Title IX Coordinator; state that reports may be made in person, by mail, phone, or email, or by any other method that results in a Title IX Coordinator receiving the person’s written or verbal report; and require recipients to post the Title IX Coordinator’s contact information on the recipient’s website. We have also revised § 106.30 (defining ‘‘actual knowledge’’) to provide that notice of sexual harassment allegations to any elementary or secondary school employee triggers the school’s response obligations. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 regulations will not chill reporting of sexual harassment, but instead will provide complainants with clearer options and greater control over the process.569 Contrary to some commenters’ understanding, the final regulations do not create two separate systems of ‘‘prompt and equitable grievance procedures’’ for how a recipient responds to sexual harassment based on whether the recipient receives a formal complaint or informal complaint. Rather, the final regulations obligate the recipient to respond to every known allegation of sexual harassment (regardless of how, or from whom, the recipient receives notice) promptly and non-deliberately indifferently, and obligate the recipient to respond by initiating a grievance process when the recipient receives a formal complaint of sexual harassment. If commenters referred to an ‘‘informal complaint of sexual harassment’’ to describe a report or disclosure of sexual harassment that is not a ‘‘formal complaint’’ as defined in § 106.30, the final regulations require recipients to respond promptly and nondeliberately indifferently (including by offering the complainant supportive measures) to such a report or disclosure, but the recipient need not initiate investigation or adjudication procedures unless the recipient receives a ‘‘formal complaint of sexual harassment.’’ Furthermore, § 106.44(a) precludes recipients from responding to reports, disclosures, or notice of alleged sexual harassment by imposing disciplinary sanctions on a respondent without first following a grievance process that complies with § 106.45. The ‘‘prompt 569 Denying a survivor control over how a disclosure of sexual assault is handled by the survivor’s school can also constitute a harmful form of institutional betrayal, and the final regulations desire to mitigate such harm by giving the complainant a clear, accessible option to file, or not file, a formal complaint (while receiving supportive measures either way) and by protecting the complainant’s right to participate, or choose not to participate, in a grievance process whether the grievance process is initiated by the complainant or by the Title IX Coordinator. See, e.g., Merle H. Weiner, Legal Counsel for Survivors of Campus Sexual Violence, 29 Yale J. of L. & Feminism 123, 140–141 (2017) (identifying one type of institutional betrayal as the harm that occurs when ‘‘the survivor thinks she [or he] is speaking to a confidential resource, but then finds out the advocate cannot keep their conversations private’’); Carly Parnitzke Smith & Jennifer J. Freyd, Dangerous Safe Havens: Institutional Betrayal Exacerbates Sexual Trauma, 26 J. of Traumatic Stress 1, 120 (2013) (describing ‘‘institutional betrayal’’ as when an important institution, or a segment of it, acts in a way that betrays its member’s trust). Where a Title IX Coordinator signs a formal complaint knowing the complainant did not wish to do so, the recipient must respect the complainant’s wishes regarding whether to participate or not in the grievance process. § 106.71 (prohibiting retaliation). PO 00000 Frm 00105 Fmt 4701 Sfmt 4700 30129 and equitable’’ grievance procedures to which commenters referred still must be adopted, published, and used by a recipient to address complaints of nonsexual harassment sex discrimination, under § 106.8(c), while recipients must respond to formal complaints of sexual harassment by following a grievance process that complies with § 106.45. Changes: None. Burden on Complainants To File a Formal Complaint Comments: Commenters argued that requiring a formal complaint in order to begin an investigation places an unfair burden on victims who want an investigation but should not have to comply with specific paperwork and procedures, or because requiring a victim to put their name in writing and flesh out the details of a harrowing experience in a written narrative may be retraumatizing. Commenters argued that many institutions follow a principle that a victim should only have to make a single statement about an incident, and therefore a victim’s written or oral disclosure to a police officer, or to any responsible campus employee, should be sufficient to trigger an investigation. Commenters asserted that some State protocols for sexual assault investigations (for example, in New Hampshire) caution against collecting written statements from victims. Commenters argued that making victims sign a document with a statement of facts is inappropriate due to the potential effect of such a document on any future litigation. Commenters argued that it is unfair to make victims sign a written statement to start an investigation because the written statement could be wrongfully used to discredit a victim during the investigation if the victim’s later statements show any inconsistencies with the formal complaint, and victims in the immediate aftermath of sexual violence may have trouble focusing or recalling details, due to trauma.570 One commenter proposed a detailed alternate process for starting investigations, under which the complainant would orally describe an incident to a compliance team, the compliance team would inform the complainant of the option for signing a written statement initiating an investigation, and the complainant would have 72 hours to decide whether to sign such a written statement. 570 Commenters cited: Russell W. Strand, The Forensic Experiential Trauma Interview (FETI), https://responsesystemspanel.whs.mil/Public/docs/ meetings/20130627/01_Victim_Overview/Rumburg_ FETI_Interview.pdf. E:\FR\FM\19MYR2.SGM 19MYR2 30130 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Commenters argued that any report of a sexual assault, to any school or college employee, whether oral or written, formal or informal, should be sufficient to start an investigation because otherwise a significant number of sexual assaults will go un-investigated, and because schools could ignore openly hostile environments just because no one filed a formal document. Commenters argued there are many ways schools can investigate a report without involving the victim, so victims should never be forced to file complaints but schools should still investigate all credible reports. Commenters argued that the burden of starting an investigation should be on the school, not on the survivor to jump through the hoop of filing a formal complaint. Commenters argued that in order to maintain a safe, nondiscriminatory learning environment, institutions must not be confined by the formalities of signatures on a complaint before they are able to move forward with an investigation. Commenters argued that if schools can ignore known sexual harassment just because no one has filed a formal complaint, institutions of higher education will have even less incentive to try to stop sex abuse scandals by their employees. Commenters argued that it is expecting a student to undergo too much risk to file a written complaint against a faculty member who is sexually abusing the student, so more students will fall prey to serial abuse by faculty. Commenters argued that the § 106.30 definition of ‘‘formal complaint’’ would preclude third parties (such as teachers, witnesses, or school employees other than the Title IX Coordinator) from filing complaints to initiate grievance procedures, representing a departure from past Department guidance and reducing schools’ efforts to redress offending behavior. Other commenters supported restricting third parties from filing formal complaints because confiding in a resident advisor or professor should not trigger an obligation for that employee to file a formal complaint on the victim’s behalf. Some commenters argued that no investigation should be initiated without the consent of the victim because the victim should be the one with the power to initiate a formal process, and victims should be given the opportunity to be educated on the law, process, and rights of victims. Commenters argued that the burden of filing a formal complaint would fall especially hard on K–12 students because the proposed safe harbor in § 106.44(b)(2) only ensured that students in higher education would VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 receive supportive measures in the absence of a formal complaint, so younger students, who may not even be capable of writing down a description of sexual harassment, would get no help at all. Discussion: The Department appreciates commenters’ concerns that requiring complainants who wish to initiate an investigation to sign a written document may seem like an unnecessary ‘‘paperwork’’ procedure, or that a victim may find it retraumatizing to write out details of a sexual harassment experience. However, absent a written document signed by the complainant alleging sexual harassment against a respondent and requesting an investigation,571 the Department believes that complainants and recipients may face confusion about whether an investigation is initiated because the complainant desires it, because the Title IX Coordinator believes it necessary, both, or neither. We reiterate that when a recipient has actual knowledge of sexual harassment, the recipient must offer supportive measures to the complainant whether or not a formal complaint is ever filed. However, a complainant’s decision to initiate a grievance process should be clear, to avoid situations where a recipient involves a complainant in a grievance process when that was neither what the complainant wanted nor what the Title IX Coordinator believed was necessary. A grievance process is a weighty, serious process with consequences that affect the complainant, the respondent, and the recipient. Clarity as to the nature and scope of the investigation necessitates that a formal complaint initiating the grievance process contain allegations of sexual harassment against the respondent, so the recipient may then prepare the written notice of allegations to be sent to both parties (under § 106.45(b)(2)), which advises both parties of essential details of allegations under investigation, and of important rights available to both parties under the grievance process. The Department acknowledges the principle, followed by some institutions and State protocols, that avoids asking victims for written statements or avoids asking victims to recount allegations more than once. We reiterate that a 571 As discussed herein, the final regulations broaden the meaning of a ‘‘document filed by a complainant’’ to include a document or electronic submission (such as an email, or use of an online portal provided for this purpose by the recipient) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. PO 00000 Frm 00106 Fmt 4701 Sfmt 4700 complainant may report (once, and verbally) in order to require a recipient to respond promptly by offering supportive measures. Reports of sexual harassment (whether made by the alleged victim themselves or by any third party) do not need to be in writing, much less in the form of a signed document.572 The final regulations desire to ensure that every complainant receives this prompt, supportive response regardless of whether a grievance process is ever initiated. The formal complaint requirement ensures that a grievance process is the result of an intentional decision on the part of either the complainant or the Title IX Coordinator. A complainant (or a third party) may report sexual harassment to a school for a different purpose than desiring an investigation. Thus, if an investigation is an action the complainant desires, the complainant must file a written document requesting an investigation. No written document is required to put a school on notice (i.e., convey actual knowledge) of sexual harassment triggering the recipient’s response obligations under § 106.44(a). The § 106.30 definition of ‘‘formal complaint’’ requires a document ‘‘alleging sexual harassment against a respondent,’’ but contains no requirement as to a detailed statement of facts. Whether or not statements made during a Title IX grievance process might be used in subsequent litigation, clarity, predictability, and fairness in the Title IX process require both parties, and the recipient, to understand that allegations of sexual harassment have been made against the respondent before initiating a grievance process. We reiterate that no written statement is required in order to receive supportive measures,573 and that there is no time limit on a complainant’s decision to file a formal complaint, so the decision to sign and file a formal complaint need not occur in the immediate aftermath of sexual violence when a survivor may have the greatest difficulty focusing, recalling details, or making decisions. A complainant may disclose or report immediately (if the complainant desires) to receive supportive measures and receive information about the option for filing a formal complaint, and that disclosure or report may be verbal, in writing, or by any other means of giving 572 Section 106.8(a). have revised § 106.8(a) to specify that any person may report sexual harassment using the Title IX Coordinator’s contact information (including during non-business hours by using the listed telephone number or email address) ‘‘or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report.’’ 573 We E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations notice.574 But such a disclosure or report may be entirely separate from a complainant’s later decision to pursue a grievance process by filing a formal complaint. We disagree with a commenter’s suggestion to require a complainant to decide within 72 hours whether to file a formal complaint; even with the detailed steps in such a process suggested by the commenter, for reasons explained above it does not further Title IX’s non-discrimination mandate to impose a time limit on a complainant’s decision to file a formal complaint. The Department disagrees that every report of a sexual assault to any recipient employee should be sufficient to start an investigation. We believe that every allegation of sexual harassment of which the recipient becomes aware 575 must be responded to, promptly and meaningfully, including by offering supportive measures to the person alleged to be the victim of conduct that could constitute sexual harassment.576 However, we believe that complainants should retain as much control as possible 577 over whether a school’s response includes involving the complainant in a grievance process. When a complainant believes that investigation and adjudication of allegations is in the complainant’s best interest, the complainant should be able to require the recipient to initiate a grievance process.578 When a Title IX Coordinator believes that with or without the complainant’s desire to participate in a grievance process, a non-deliberately indifferent response to the allegations requires an investigation, the Title IX Coordinator should have the 574 See § 106.30 defining ‘‘actual knowledge’’ to mean ‘‘notice’’ to the Title IX Coordinator, to any official with authority to take corrective action, or to any elementary or secondary school employee, where ‘‘notice’’ includes (but is not limited to) a report of sexual harassment to the Title IX Coordinator as described in § 106.8(a). 575 As discussed above, a recipient is charged with actual knowledge of sexual harassment when notice is given to a Title IX Coordinator, an official with authority to take corrective action, or any elementary or secondary school employee. § 106.30 (defining ‘‘actual knowledge’’). 576 Section 106.44(a) § 106.30 (defining ‘‘complainant’’). 577 A complainant’s control over a school’s response may be circumscribed by a recipient’s obligations under laws other than these final regulations; for example, State laws mandating schools to report suspected child sexual abuse to law enforcement or child welfare authorities. However, these final regulations protect a complainant against being intimidated, threatened, coerced, or discriminated against for participating, or refusing to participate, in a Title IX grievance process. § 106.71. 578 Section 106.6(g) (acknowledging that where a parent or guardian has the legal right to act on a complainant’s behalf, the parent or guardian may file a formal complaint on behalf of the complainant). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 discretion to initiate a grievance process. Not investigating every report of sexual harassment will not allow schools to ignore complainants or ignore ‘‘openly hostile environments,’’ because § 106.44(a) requires the recipient to respond promptly in a manner that is not unreasonable in light of the known circumstances, to every instance of alleged sexual harassment in the recipient’s education program or activity of which the recipient becomes aware, including offering supportive measures to the complainant with or without a grievance process. Part of whether a decision not to investigate is ‘‘clearly unreasonable’’ may include a Title IX Coordinator’s communication with the complainant to understand the complainant’s desires with respect to a grievance process against the respondent. When a Title IX Coordinator determines that an investigation is necessary even where the complainant (i.e., the person alleged to be the victim) does not want such an investigation, the grievance process can proceed without the complainant’s participation; however, the complainant will still be treated as a party in such a grievance process. The grievance process will therefore impact the complainant even if the complainant refuses to participate. The Department desires to respect a complainant’s autonomy as much as possible and thus, if a grievance process is initiated against the wishes of the complainant, that decision should be reached thoughtfully and intentionally by the Title IX Coordinator, not as an automatic result that occurs any time a recipient has notice that a complainant was allegedly victimized by sexual harassment. We do not believe this places ‘‘the burden’’ of starting an investigation on the complainant. Rather, the final regulations enable a complainant, or the Title IX Coordinator, to initiate an investigation. The final regulations appropriately leave recipients flexibility to investigate allegations even where the complainant does not wish to file a formal complaint where initiating a grievance process is not clearly unreasonable in light of the known circumstances (including the circumstances under which a complainant does not desire an investigation to take place), so that recipients may, for example, pursue a grievance process against a potential serial sexual perpetrator. The recipient is required to document its reasons why its response to sexual harassment was not deliberately indifferent, under § 106.45(b)(10), thereby emphasizing the need for a decision to initiate a PO 00000 Frm 00107 Fmt 4701 Sfmt 4700 30131 grievance process over the wishes of a complainant to be intentionally, carefully made taking into account the circumstances of each situation. The § 106.30 definition of ‘‘formal complaint’’ does preclude third parties from filing formal complaints.579 For the reasons discussed above, we believe that respecting a complainant’s autonomy to the greatest degree possible means that an investigation against a complainant’s wishes or without a complainant’s willingness to participate, should happen only when the Title IX Coordinator has determined that the investigation is necessary under the particular circumstances.580 We reiterate that any person may disclose or report a sexual harassment incident, whether that person is the complainant (i.e., the individual who is alleged to be the victim) or any third party, such as a teacher, witness, parent, or school employee.581 When the disclosure or report gives notice of sexual harassment allegations to a Title IX Coordinator,582 an official with authority to institute corrective measures on the recipient’s behalf, or any elementary and secondary school employee,583 the recipient must respond promptly in a non-deliberately indifferent manner. Thus, even if neither the complainant nor the Title IX Coordinator decides to file a formal complaint, the recipient must still respond to the reported sexual harassment incident by offering supportive measures to the complainant and informing the complainant of the option of filing a formal complaint.584 579 Cf. § 106.6(g). Michelle L. Meloy & Susan L. Miller, The Victimization of Women: Law, Policies, and Politics 147–48 (Oxford University Press 2010) (antiviolence policies must embrace ‘‘notions of victim empowerment for self-protection by allowing victims to drop criminal charges’’). The Title IX equivalent of this premise is that the Department should not require schools to investigate in the absence of a complainant’s consent. The formal complaint definition in § 106.30 ensures that schools must investigate when the complainant desires that action (see also § 106.44(b)(1)), and ensures that a school only overrides a complainant’s desire for the school not to investigate if the Title IX Coordinator has determined on behalf of the recipient that an investigation is needed, and in such circumstances the final regulations protect the complainant’s right to refuse to participate in the grievance process. § 106.71. 581 Section 106.8(a) (expressly stating that any person may report sexual harassment using the listed contact information for the Title IX Coordinator, whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sexual harassment). 582 Section 106.30 (defining ‘‘actual knowledge’’ and expressly stating that ‘‘notice’’ includes a report to the Title IX Coordinator as described in § 106.8(a)). 583 Section 106.30 (defining ‘‘actual knowledge’’). 584 Sections 106.44(a), 106.44(b)(1). 580 See E:\FR\FM\19MYR2.SGM 19MYR2 30132 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations We disagree that no formal complaint should ever be filed without the consent of the victim, because some circumstances may require a recipient (via the Title IX Coordinator) to initiate an investigation and adjudication of sexual harassment allegations in order to protect the recipient’s educational community or otherwise avoid being deliberately indifferent to known sexual harassment. However, we have added § 106.71 to prohibit retaliation against any person exercising rights under Title IX, including the right not to participate in a Title IX grievance process, so that a complainant is protected from being coerced, intimated, threatened, or otherwise discriminated against based on the complainant’s refusal to participate in a grievance process. We agree that complainants should be given the opportunity to be informed of the law, process, and victims’ rights, and the final regulations require recipients to notify students, employees, and parents of elementary and secondary school students (among others) of the recipient’s Title IX non-discrimination policy, contact information for the Title IX Coordinator, how to report sexual harassment, and the recipient’s grievance process for formal complaints of sexual harassment.585 The final regulations further require recipients to offer supportive measures to a complainant, discuss with each individual complainant the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint.586 In response to commenters’ concerns that elementary and secondary school students might not receive supportive measures in the absence of a formal complaint because the supportive measures safe harbor in proposed § 106.44(b)(2) applied only to postsecondary institutions, we have removed the safe harbor in proposed § 106.44(b)(2), and revised § 106.44(a) to require all recipients to offer supportive measures to every complainant, obviating the need for a ‘‘safe harbor’’ that results from providing supportive measures. As to all recipients, the final regulations enable the complainant (i.e., the individual who is alleged to be the victim) or the Title IX Coordinator, to file a formal complainant that initiates a grievance process. As discussed below in this section of the preamble, the final regulations also acknowledge the legal right of a parent to act on behalf of their child, addressing the concern that 585 Section 586 Section 106.8. 106.44(a). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 children are expected to write or sign a formal complaint. Changes: We have removed the supportive measures safe harbor in proposed § 106.44(b)(2) and have revised § 106.44(a) to require all recipients to offer supportive measures to each complainant irrespective of whether a formal complaint is ever filed. We have added § 106.6(g) acknowledging the legal rights of parents or guardians to act on behalf of a complainant, respondent, or other individual, including but not limited to the filing of a formal complaint. We have added § 106.71 to prohibit retaliation against any person exercising rights under Title IX, including the right not to participate in a Title IX grievance process. Anonymous Reporting and Anonymous Filing of Formal Complaints Comments: Commenters requested clarification as to whether the proposed rules discouraged or prohibited anonymous reporting; some commenters asserted that anonymous reports may disclose valid information about openly hostile environments on campus that should be investigated even though the reporting party is anonymous. Commenters argued that disallowing confidential and anonymous reporting would deter reporting because research shows that concern about confidentiality is one reason why victims of sexual crimes do not report.587 Commenters argued that requiring a signed statement may act as a deterrent to reporting, citing to a report finding that several police departments have permitted victims to report anonymously in an effort to allow a victim more options and control over whether to participate in an investigation, and that police find it advantageous because they can learn more about crimes committed in the area, and anonymous reporting may allow them to track a predator who commits multiple offenses.588 Commenters argued that prohibiting victims from filing formal complaints anonymously would conflict with State law (such as in Illinois, and Texas) where institutions are required to provide an option for anonymous reporting and State law (such as Texas) that requires electronic reporting to be an option. 587 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, National Institute of Justice, Sexual Assault on Campus: What Colleges and Universities Are Doing About It (2005). 588 Commenters cited: Human Rights Watch, Improving Police Response to Sexual Assault (2013). PO 00000 Frm 00108 Fmt 4701 Sfmt 4700 Discussion: The Department appreciates the opportunity to clarify that the final regulations do not prohibit recipients from implementing anonymous (sometimes called ‘‘blind’’) reporting options. Anonymous or blind reporting options that have been implemented by law enforcement agencies, for example, may enable the police to gain more information about crimes and may assist in identifying patterns of repeat offenders, while providing victims with ‘‘another option for healing—an option that falls in between not reporting the crime, and being involved in a full criminal investigation.’’ 589 As commenters noted, anonymous reports sometimes disclose valid information about sexual harassment on campus. Under the final regulations, when a recipient has actual knowledge of alleged sexual harassment in the recipient’s education program or activity the final regulations require a recipient to respond in a manner that is not clearly unreasonable in light of the known circumstances. A recipient has actual knowledge whenever notice of sexual harassment is given to the Title IX Coordinator, an official with authority to institute corrective measures, or any elementary and secondary school employee.590 The final regulations do not restrict the form that ‘‘notice’’ might take, so notice conveyed by an anonymous report may convey actual knowledge to the recipient and trigger a recipient’s response obligations. A recipient’s nondeliberately indifferent response must include offering supportive measures to a complainant (i.e., person alleged to be the victim of sexual harassment).591 A recipient’s ability to offer supportive measures to a complainant, or to consider whether to initiate a grievance process against a respondent, will be affected by whether the report disclosed the identity of the complainant or respondent. In order for a recipient to provide supportive measures to a complainant, it is not possible for the complainant to remain anonymous because at least one school official (e.g., the Title IX Coordinator) will need to know the complainant’s identity in order to offer and implement any supportive measures. Section 106.30 defining ‘‘supportive measures’’ directs the recipient to maintain as confidential any supportive measures provided to 589 National Resource Center on Domestic Violence, VAWnet, Introduction to Sabrina Garcia & Margaret Henderson, Blind Reporting of Sexual Violence, 68 FBI Law Enforcement Bulletin 6 (June 1999), https://vawnet.org/material/blind-reportingsexual-violence. 590 Section 106.30 (defining ‘‘actual knowledge’’). 591 Section 106.44(a). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations either a complainant or a respondent, to the extent that maintaining confidentiality does not impair the recipient’s ability to provide the supportive measures. A complainant (or third party) who desires to report sexual harassment without disclosing the complainant’s identity to anyone may do so, but the recipient will be unable to provide supportive measures in response to that report without knowing the complainant’s identity. If a complainant desires supportive measures, the recipient can, and should, keep the complainant’s identity confidential (including from the respondent), unless disclosing the complainant’s identity is necessary to provide supportive measures for the complainant (e.g., where a no-contact order is appropriate and the respondent would need to know the identity of the complainant in order to comply with the no-contact order, or campus security is informed about the no-contact order in order to help enforce its terms). Separate and apart from whether a grievance process is initiated, the final regulations require recipients to respond non-deliberately indifferently even where sexual harassment allegations were conveyed to the recipient via an anonymous report (made by the complainant themselves, or by a third party), including offering the complainant supportive measures if the anonymous report identified a complainant (i.e., person alleged to be a victim of sexual harassment). Nothing in the final regulations precludes a recipient from implementing reporting systems that facilitate or encourage an anonymous or blind reporting option. Thus, recipients who are obligated under State laws to offer anonymous reporting options may not face any conflict with obligations under the final regulations. The final regulations do not preclude recipients from offering electronic reporting systems, so recipients obligated to do so under State laws may not face any conflict with obligations under the final regulations. To ensure that complainants (and third parties, because any person may report sexual harassment) have clear, accessible reporting options, we have revised § 106.8(a) to expressly state that any person may report sexual harassment using the Title IX Coordinator’s listed contact information, and such a report may be made at any time (including during non-business hours) by using the listed telephone number or email address (or by mail to the listed office address) for the Title IX Coordinator. Recipients may VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 additionally offer other types of electronic reporting systems. A formal complaint initiates a grievance process (i.e., an investigation and adjudication of allegations of sexual harassment). A complainant (i.e., a person alleged to be the victim of sexual harassment) cannot file a formal complaint anonymously because § 106.30 defines a formal complaint to mean a document or electronic submission (such as an email or using an online portal provided for this purpose by the recipient) that contains the complainant’s physical or digital signature or otherwise indicates that the complainant is the person filing the formal complaint. The final regulations require a recipient to send written notice of the allegations to both parties upon receiving a formal complaint. The written notice of allegations under § 106.45(b)(2) must include certain details about the allegations, including the identity of the parties, if known. Where a complainant desires to initiate a grievance process, the complainant cannot remain anonymous or prevent the complainant’s identity from being disclosed to the respondent (via the written notice of allegations). Fundamental fairness and due process principles require that a respondent knows the details of the allegations made against the respondent, to the extent the details are known, to provide adequate opportunity for the respondent to respond. The Department does not believe this results in unfairness to a complainant. Bringing claims, charges, or complaints in civil or criminal proceedings generally requires disclosure of a person’s identity for purposes of the proceeding. Even where court rules permit a plaintiff or victim to remain anonymous or pseudonymous, the anonymity relates to identification of the plaintiff or victim in court records that may be disclosed to the public, not to keeping the identity of the plaintiff or victim unknown to the defendant.592 The final regulations ensure that a complainant may obtain supportive measures while keeping the complainant’s identity confidential from 592 See, e.g., Jayne S. Ressler, #WorstPlaintiffEver: Popular Public Shaming and Pseudonymous Plaintiffs, 84 Tenn. L. Rev. 779, 828 (2017) (arguing that Federal and State courts should adopt broader rules allowing plaintiffs to file civil lawsuits anonymously or pseudonymously, and emphasizing that this anonymity relates to whether a plaintiff is named in court records that may be viewed by the public, but does not affect the defendant’s knowledge of the identity of the plaintiff) (‘‘The plaintiff’s anonymity would extend only to court filings and any other documents that would be released to the public. In other words, the defendant would have the same information about the plaintiff had the plaintiff filed the case under her own name.’’). PO 00000 Frm 00109 Fmt 4701 Sfmt 4700 30133 the respondent (to the extent possible while implementing the supportive measure), but in order for a grievance process to accurately resolve allegations that a respondent has perpetrated sexual harassment against a complainant, the complainant’s identity must be disclosed to the respondent, if the complainant’s identity is known. However, the identities of complainants (and respondents, and witnesses) should be kept confidential from anyone not involved in the grievance process, except as permitted by FERPA, required by law, or as necessary to conduct the grievance process, and the final regulations add § 106.71 to impose that expectation on recipients.593 When a formal complaint is signed by a Title IX Coordinator rather than filed by a complainant, the written notice of allegations in § 106.45(b)(2) requires the recipient to send both parties details about the allegations, including the identity of the parties if known, and thus, if the complainant’s identity is known it must be disclosed in the written notice of allegations. However, if the complainant’s identity is unknown (for example, where a third party has reported that a complainant was victimized by sexual harassment but does not reveal the complainant’s identity, or a complainant has reported anonymously), then the grievance process may proceed if the Title IX Coordinator determines it is necessary to sign a formal complaint, even though the written notice of allegations does not include the complainant’s identity.594 593 Section 106.71(a) (prohibiting retaliation and providing in relevant part that the recipient must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness except as may be permitted by FERPA, or required by law, or to the extent necessary to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder). 594 If the complainant’s identity is discovered during the investigation, the recipient would need to send supplemental notice of allegations to the parties and treat the complainant as a party throughout the grievance process. See § 106.45(b)(2)(ii). Without a complainant (i.e., a person alleged to be the victim of sexual harassment) at some point being identified during an investigation, a recipient may find itself unable to meet the recipient’s burden to gather evidence sufficient to reach a determination regarding responsibility. For example, without knowing a complainant’s identity a recipient may not be able to gather evidence necessary to establish elements of conduct defined as ‘‘sexual harassment’’ under § 106.30, such as whether alleged conduct was unwelcome, or without the consent of the victim. In such a situation, the final regulations provide for E:\FR\FM\19MYR2.SGM Continued 19MYR2 30134 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations The Department agrees with commenters that concerns about confidentiality often affect a victim’s willingness to report sexual assault. The final regulations aim to give complainants as much control as possible over: Whether and how to report that the complainant has been victimized by sexual harassment; whether, or what kinds, of supportive measures may help the complainant maintain equal access to education; and whether to initiate a grievance process against the respondent. Each of the foregoing decisions can be made by a complainant with awareness of the implications for the complainant’s anonymity or confidentiality. The final regulations ensure that complainants have any or all of the following options: the ability to report anonymously (though a recipient will be unable to provide supportive measures without knowing the complainant’s identity); the ability to report and receive supportive measures while keeping the complainant’s identity confidential from the respondent (unless the respondent must know the complainant’s identity in order for the recipient to implement a supportive measure); and the right to file a formal complaint against the respondent, realizing that doing so means the respondent will know the complainant’s identity, yet as to people outside the grievance process the complainant’s identity must be kept confidential except as permitted by FERPA, required by law, or as necessary to conduct the grievance process. Changes: We have added § 106.71(a) requiring recipients to keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as permitted by FERPA, required by law, or as necessary to carry out the purposes of 34 CFR part 106 to conduct any investigation, hearing, or judicial proceeding arising thereunder, which includes a grievance process. discretionary dismissal of the formal complaint, or allegations therein. § 106.45(b)(3)(ii). A recipient’s decision (made via the Title IX Coordinator) to initiate a grievance process over the wishes of a complainant, or where the complainant does not wish to participate, or where the complainant’s identity is unknown, is evaluated under the deliberate indifference standard set forth in § 106.44(a). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Officials Other Than the Title IX Coordinator Filing a Formal Complaint Comments: Commenters asked for clarification as to whether ‘‘officials with authority to institute corrective measures on behalf of the recipient’’ are authorized to file a formal complaint, or whether the Title IX Coordinator is the sole employee authorized to file a formal complaint. Commenters requested that § 106.30 be modified so that the complainant, the Title IX Coordinator, or ‘‘any institutional administrator’’ can file a formal complaint; commenters argued that there are many administrators who have a significant interest in ensuring that the recipient investigates potential violations of school policy. Commenters requested clarification as to whether by filing a formal complaint, the Title IX Coordinator becomes a party in the investigation, and if this means that the Title IX Coordinator must be given the rights that the grievance procedures give to complainants, or if not, then commenters wondered who would be treated as the complainant in cases where the victim did not sign the formal complaint. Commenters argued that a Title IX Coordinator who signs a formal complaint initiating grievance procedures against a respondent is no longer neutral or impartial, is biased, and/or has a conflict of interest, especially where the Title IX Coordinator will also be the investigator. Discussion: We appreciate the opportunity to clarify that the final regulations do not permit a formal complaint to be filed or signed by any person other than the complainant (i.e., the person alleged to be the victim of sexual harassment or the alleged victim’s parent or guardian on the alleged victim’s behalf, as appropriate) or the Title IX Coordinator. While it is true that school administrators other than the Title IX Coordinator may have significant interests in ensuring that the recipient investigate potential violations of school policy, for reasons explained above, the decision to initiate a grievance process in situations where the complainant does not want an investigation or where the complainant intends not to participate should be made thoughtfully and intentionally, taking into account the circumstances of the situation including the reasons why the complainant wants or does not want the recipient to investigate. The Title IX Coordinator is trained with special responsibilities that involve interacting with complainants, making the Title IX Coordinator the appropriate person to decide to initiate a grievance process on PO 00000 Frm 00110 Fmt 4701 Sfmt 4700 behalf of the recipient. Other school administrators may report sexual harassment incidents to the Title IX Coordinator, and may express to the Title IX Coordinator reasons why the administrator believes that an investigation is warranted, but the decision to initiate a grievance process is one that the Title IX Coordinator must make.595 The Department does not view a Title IX’s Coordinator decision to sign a formal complaint as being adverse to the respondent. A Title IX Coordinator’s decision to sign a formal complaint is made on behalf of the recipient (for instance, as part of the recipient’s obligation not to be deliberately indifferent to known allegations of sexual harassment), not in support of the complainant or in opposition to the respondent or as an indication of whether the allegations are credible, have merit, or whether there is evidence sufficient to determine responsibility. To clarify this, we have removed the phrase ‘‘or on whose behalf the Title IX Coordinator has filed a formal complaint’’ from the proposed rules’ definition of ‘‘complainant’’ in § 106.30. We have also revised the § 106.30 definition of ‘‘formal complaint’’ to state that when the Title IX Coordinator signs a formal complaint, the Title IX Coordinator does not become a complainant, or otherwise a party, to a grievance process, and must still serve free from bias or conflict of interest for or against any party. In order to ensure that a recipient has discretion to investigate and adjudicate allegations of sexual harassment even without the participation of a complainant, in situations where a grievance process is warranted, the final regulations leave that decision in the discretion of the recipient’s Title IX Coordinator. However, deciding that allegations warrant an investigation does not necessarily show bias or prejudgment of the facts for or against the complainant or respondent. The 595 This does not preclude recipient employees or administrators other than the Title IX Coordinator from implementing supportive measures for the complainant (or for a respondent). The final regulations, § 106.30 defining ‘‘supportive measures,’’ require that the Title IX Coordinator is responsible for the effective implementation of supportive measures; however, this does not preclude other recipient employees or administrators from implementing supportive measures for a complainant (or a respondent) and in fact, effective implementation of most supportive measures requires the Title IX Coordinator to coordinate with administrators, employees, and offices outside the Title IX office (for example, notifying campus security of the terms of a nocontact order, or working with the school registrar to appropriately reflect a complainant’s withdrawal from a class, or communicating with a professor that a complainant needs to re-take an exam). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations definition of conduct that could constitute sexual harassment, and the conditions necessitating a recipient’s response to sexual harassment allegations, are sufficiently clear that a Title IX Coordinator may determine that a fair, impartial investigation is objectively warranted as part of a recipient’s non-deliberately indifferent response, without prejudging whether alleged facts are true or not. Even where the Title IX Coordinator is also the investigator,596 the Title IX Coordinator must be trained to serve impartially,597 and the Title IX Coordinator does not lose impartiality solely due to signing a formal complaint on the recipient’s behalf. Changes: We have revised the § 106.30 definition of ‘‘formal complaint’’ to mean a document ‘‘filed by a complainant or signed by the Title IX Coordinator’’ and clarified that when a Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or otherwise a party during the grievance process, and the Title IX Coordinator must comply with these final regulations including the obligation in § 106.45(b)(1)(iii) to be free from bias or conflict of interest. We have also revised the definition of ‘‘complainant’’ in § 106.30 to remove the phrase ‘‘or on whose behalf the Title IX Coordinator has filed a formal complaint.’’ Complexity of a Document Labeled ‘‘Formal Complaint’’ Comments: Commenters argued that the document initiating a grievance process should be labeled something other than a ‘‘formal complaint’’ because calling it a formal complaint makes it sound as though the survivor is complaining, or whining, about having been assaulted. Commenters argued that requiring signed complaints is one aspect of the proposed rules that would make the Title IX campus system too much like the legal system, and survivors already feel deterred from pursuing justice through criminal and legal systems. Commenters argued that the § 106.30 definition of formal complaint was so legalistic that lawyers would have to get involved in every Title IX matter. Commenters argued that students may think they have triggered a grievance procedure by reporting to the Title IX Coordinator only to find out that no investigation has begun because the 596 Section 106.45(b)(7) specifies that the decision-maker must be a different person from the Title IX Coordinator or investigator, but the final regulations do not preclude a Title IX Coordinator from also serving as the investigator. 597 Section 106.45(b)(1)(iii). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 student did not file a document meeting the requirements of a ‘‘formal complaint.’’ Commenters argued that requiring a complainant to sign a written document with specific language about ‘‘requesting initiation of a grievance procedure’’ would result in some complainants believing they had filed a formal complaint when the exact paperwork was not filled out or signed correctly. Commenters asked whether a recipient would be deliberately indifferent if the recipient failed to tell a complainant who intended to file a formal complaint that the document filed failed to meet the requirements in § 106.30 and thus no grievance procedures had begun. Commenters requested clarification as to how a Title IX Coordinator should treat an ‘‘informal complaint’’ that did not meet the precise definition of a formal complaint. Commenters argued that the definition of ‘‘formal complaint’’ means that a recipient could dismiss a meritorious complaint, or refuse to investigate, solely for immaterial technical reasons, such as the document not being signed or failing to include specific language ‘‘requesting initiation’’ of the grievance procedures. Commenters argued that the definition of ‘‘formal complaint’’ would provide an arbitrary bureaucratic loophole that would excuse recipients for their willful indifference when paperwork is not completed perfectly. Commenters argued that the § 106.30 definition of ‘‘formal complaint’’ would make it difficult or impossible for some students to file a formal complaint. Commenters stated, for example, that young children may not have learned how to write. Commenters stated that, for example, individuals with certain disabilities may have difficulty communicating in writing. Commenters suggested that the definition be modified so that a formal complaint is ‘‘signed (or affirmed via another effective communication modality)’’ because otherwise, a student with a disability—especially with a communication disability or disorder— may be unable to file. Commenters suggested the definition be expanded to accommodate the needs of individuals with disabilities by accepting different communication modalities including oral, manual, AAC (augmentative and alternative communication) techniques, and assistive technologies. Discussion: The final regulations continue to use the phrase ‘‘formal complaint’’ to describe the document that initiates a grievance process resolving sexual harassment allegations. The word ‘‘complaint’’ is commonly used in proceedings designed to resolve PO 00000 Frm 00111 Fmt 4701 Sfmt 4700 30135 disputed allegations, and the word is used neutrally to describe that the person has brought allegations or charges of some kind, not pejoratively to imply that a person is unjustifiably ‘‘complaining’’ or ‘‘whining.’’ 598 ‘‘Formal complaint’’ is a specific term used in these final regulations to describe a document that initiates a grievance process against a respondent alleging Title IX sexual harassment. A grievance process that is consistent, transparent, and fair is necessarily a formal process, and parties should be apprised that initiating a grievance process is a serious matter. This does not necessitate involvement of lawyers or convert a recipient’s Title IX grievance process into a court proceeding. However, we agree with commenters that the way that a formal complaint was described in proposed § 106.30 599 was more restrictive than necessary and did not take into account the common use of electronic or digital transmissions. We have revised and simplified the definition of a ‘‘formal complaint’’ to mean ‘‘a document filed by the complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the recipient investigate the allegation of sexual harassment.’’ The § 106.30 definition of a formal complaint describes the purpose of the document, not requirements for specific language that can be used as a bureaucratic loophole for a recipient to avoid initiating a grievance process. The purpose of the formal complaint is to clarify that the complainant (or Title IX Coordinator) believes that the recipient should investigate allegations of sexual harassment against a respondent. The Department does not assume that recipients will treat complainants attempting to file a formal complaint differently from students who attempt to file similar school paperwork; for example, when a form is missing a signature, recipients generally inquire with the student to correct the paperwork. Recipients are under an obligation under § 106.44(a) to respond promptly in a way that is not clearly unreasonable in light of the known circumstances and this obligation 598 For example, OCR refers to a ‘‘complainant’’ as a person who files a ‘‘complaint’’ with OCR alleging a civil rights law violation. E.g., U.S. Dep’t. of Education, Office for Civil Rights, How the Office for Civil Rights Handles Complaints (Nov. 2018), https://www2.ed.gov/about/offices/list/ocr/ complaints-how.html. 599 Proposed § 106.30 defined ‘‘formal complaint’’ as ‘‘a document signed by a complainant or by the Title IX Coordinator alleging sexual harassment against a respondent and requesting initiation of the recipient’s grievance procedures consistent with § 106.45.’’ E:\FR\FM\19MYR2.SGM 19MYR2 30136 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations extends to the circumstances under which a recipient processes a formal complaint (or a document or communication that purports to be a formal complaint). Under the final regulations, recipients also must document the basis for the recipient’s conclusion that the recipient’s response was not deliberately indifferent; 600 this provides an additional safeguard against a recipient intentionally treating imperfect paperwork as grounds for refusing to take action upon receipt of a document that purports to be a formal complaint. We appreciate commenters’ concerns that some students may be incapable of signing a document (for example, young students who have not learned how to write, or students with certain disabilities). To address these concerns, we have revised the § 106.30 definition of ‘‘formal complaint’’ to describe a ‘‘document signed by a complainant’’ as ‘‘a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by the recipient) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint.’’ We have also added § 106.6(g) recognizing the legal rights of parents and guardians to act on behalf of complainants, including with respect to filing a formal complaint of sexual harassment. Changes: We have revised the § 106.30 definition of ‘‘formal complaint’’ to describe a document, filed by a complainant or signed by a Title IX Coordinator, alleging sexual harassment, against a respondent, and requesting that the recipient investigate the allegation of sexual harassment. We have also revised the § 106.30 definition of ‘‘formal complaint’’ to explain that the phrase ‘‘document filed by a complainant’’ refers to a document or electronic submission (such as an email or through an online portal provided for this purpose by the recipient) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. Parents’ and Guardians’ Rights To File a Formal Complaint Comments: Commenters asserted that the proposed rules did not acknowledge that parents can file formal complaints on behalf of minor students and that the proposed rules therefore expect, for example, a third grade student to write down and sign a complaint document before getting help after experiencing 600 Section 106.45(b)(10)(ii). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 sexual harassment. Commenters asserted that the formal complaint definition would leave minor students who may be incapable of writing and signing a document unprotected unless the Title IX Coordinator chooses to file a formal complaint on the student’s behalf. Commenters argued that it is inappropriate to require a minor to sign any document because minors lack the legal capacity to bind themselves by signature. Commenters wondered what schools must do if a parent later disagrees with their child’s decision to file a formal complaint or if the minor’s parent is not consulted prior to filing. Other commenters wondered how a school must handle a situation where the parent, but not the child, wishes to file a formal complaint. Commenters wondered if the proposed rules would allow a Title IX Coordinator to help a complainant fill out the contents of a formal complaint. Discussion: To address commenters’ concerns that the proposed rules did not contemplate the circumstances under which a parent might have the right to file a formal complaint on their child’s behalf, we have added § 106.6(g), which acknowledges the legal rights of parents and guardians to act on behalf of a complainant, respondent, or other individual with respect to exercise of rights under Title IX, including but not limited to the filing of a formal complaint. Thus, if a parent has the legal right to act on behalf of their child, the parent may act on the student’s behalf by, for example, signing a formal complaint alleging that their child was sexually harassed and asking the recipient to investigate. The parent does not, in that circumstance, become the complainant (because ‘‘complainant’’ is defined as an individual who is alleged to be the victim of sexual harassment) 601 but the final regulations clarify that a parent’s (or guardian’s) legal right to act on behalf of the complainant (or respondent) is not altered by these final regulations. The extent to which a recipient must abide by the wishes of a parent, especially in circumstances where the student is expressing a different wish from what the student’s parent wants, depends on the scope of the parent’s legal right to act on the student’s behalf. Nothing in these final regulations precludes a Title IX Coordinator from assisting a complainant (or parent) from filling out a document intended to serve as a formal complaint; however, a Title 601 Section 106.30 (defining ‘‘complainant’’ to mean an individual ‘‘an individual who is alleged to be the victim of conduct that could constitute sexual harassment’’) (emphasis added). PO 00000 Frm 00112 Fmt 4701 Sfmt 4700 IX Coordinator must take care not to offer such assistance to pressure the complainant (or parent) to file a formal complaint as opposed to simply assisting the complainant (or parent) administratively to carry out the complainant’s (or parent’s) desired intent to file a formal complaint. No person may intimidate, threaten, or coerce any person for the purpose of interfering with a person’s rights under Title IX, which includes the right not to participate in a grievance process.602 Changes: We have added § 106.6(g) to the final regulations, acknowledging the legal rights of parents or guardians to act on behalf of a complainant, respondent, or other individual. We have added § 106.71 prohibiting retaliation and specifically protecting any individual’s right to participate, or not participate, in a grievance process. Methods of Reporting and Methods of Filing a Formal Complaint Comments: Some commenters believed that the proposed rules would require students to report in person to a Title IX Coordinator (which, commenters asserted, is challenging for many students including those in schools that have satellite campuses and a single Title IX Coordinator located on a different campus). Commenters argued that a student who goes through the inconvenience of locating the Title IX Coordinator to make an in-person report, and then later decides to pursue a formal process, would need to once again go meet the Title IX Coordinator in-person to file a formal complaint. These commenters argued that the narrow, formal definition of ‘‘formal complaint’’ proposed in § 106.30 would impose unnecessary barriers for complainants and result in fewer formal complaints being filed. Commenters argued that requiring complainants to file formal complaints only with the Title IX Coordinator—who may be a school official with whom the complainant has no relationship—will make survivors less comfortable with the reporting process, when already only about ten percent of campus sexual assaults are reported.603 Commenters argued that a formal complaint should be allowed to be filed by telephone, email, or in-person, at the complainant’s discretion. Commenters wondered whether Title IX Coordinators 602 Section 106.71 (prohibiting retaliation and specifically protecting any individual’s right to participate or to choose not to participate in a grievance process). 603 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, National Institute of Justice, Research Report: The Sexual Victimization of College Women (2000). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations have the discretion to help a complainant fill out a formal complaint; whether a Title IX Coordinator could write out a complainant’s verbal report and have the complainant sign the document; and whether the complainant’s signature could be an electronic signature. Commenters argued that without clarifying that the complainant may sign electronically, the proposed rules would make it impossible for complainants who are not physically present on campus (for example, due to studying abroad, or being enrolled in an online course) to file formal complaints. Other commenters expressed concern that electronic reporting systems would not be allowed under the proposed regulations. Commenters stated that many recipients (both elementary and secondary schools, and postsecondary institutions) use exclusively online, electronic submission systems; commenters suggested that § 106.30 should specify that a formal complaint may be ‘‘submitted’’ or ‘‘filed’’ (but not ‘‘signed’’) to clarify that electronic submission systems can be used for the Title IX Coordinator to receive a formal complaint. Discussion: Neither the proposed rules, nor the final regulations, required students to report in person to a Title IX Coordinator. However, to address commenters’ concerns in this regard and to clarify that reporting to a Title IX Coordinator, and filing a formal complaint with the Title IX Coordinator, should be as accessible as possible for complainants, we have revised the § 106.30 definition of ‘‘formal complaint’’ to explain that a formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail by using the contact information required to be listed for the Title IX Coordinator under § 106.8(a), and by any additional method designated by the recipient. A formal complaint cannot be filed by telephone, because a formal complaint consists of a written document (or electronic submission, such as an email or use of an online portal provided by the recipient for the purpose of accepting formal complaints); however, ‘‘any additional method designated by the recipient’’ may include an online submission system, and the final regulations now expressly reference the option for recipients to offer online portals for submission of formal complaints. The Department has also revised § 106.8(b) to specify that the contact information required to be listed for the Title IX Coordinator under § 106.8(a) must be prominently VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 displayed on the recipient’s website (if the recipient has a website) and in any of the recipient’s handbooks or catalogs. As discussed above, neither the proposed rules, nor the final regulations, restrict the form in which notice (e.g., a report of alleged sexual harassment) is given to the Title IX Coordinator, an official with authority to institute corrective measures, or an elementary or secondary school employee. Such notice may be given to the Title IX Coordinator via the same contact information listed for the Title IX Coordinator in § 106.8(a) (including in person or by mail at the Title IX Coordinator’s office address, by telephone, or by email), or by other means of communicating with the Title IX Coordinator.604 The final regulations thus ensure that complainants have multiple clear, accessible methods for reporting (e.g., in person, telephone, mail, electronic mail) and multiple methods for filing formal complaints (e.g., in person, mail, electronic mail, any online portal provided by the recipient to allow electronic submissions of formal complaints), to reduce the inconvenience of ‘‘locating’’ the Title IX Coordinator in order to report or to file a formal complaint.605 We understand commenters’ concerns that a student may not have a preexisting relationship with a Title IX Coordinator; however, we reiterate that filing a formal complaint is not necessary in order to report and receive supportive measures. The revisions to § 106.30 defining ‘‘formal complaint’’ give complainants the options of filing 604 Section 106.8(a) (expressly stating that any person may report sexual harassment by using any of the listed contact information for the Title IX Coordinator or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report, and such a report may be made ‘‘at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address, listed for the Title IX Coordinator.’’). 605 We also reiterate that any person may report sexual harassment triggering the recipient’s response obligations, although only a complainant (or Title IX Coordinator) may initiate a grievance process by filing or signing a formal complaint. We have revised § 106.8(a) to emphasize the fact that any person may report sexual harassment, whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sexual harassment, and we have also revised § 106.30, defining ‘‘actual knowledge,’’ to state that ‘‘notice’’ constituting actual knowledge includes, but is not limited to, a report to the Title IX Coordinator as described in § 106.8(a). We have further revised § 106.8 to require recipients to notify all students, employees, parents and guardians of elementary and secondary school students, and others of the Title IX Coordinator’s contact information, including prominently displaying that contact information on the recipient’s website. These provisions ensure that all persons (not only complainants themselves) have a clear, accessible method of reporting sexual harassment. PO 00000 Frm 00113 Fmt 4701 Sfmt 4700 30137 a formal complaint in person, by mail, by email, and ‘‘any additional method designated by the recipient’’ so that the recipient has discretion to designate other methods for a formal complaint to be filed; further, a ‘‘document filed by a complainant’’ is stated to mean a mean a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by the recipient) that contains the complainant’s physical or digital signature or otherwise indicates that the complainant is the person filing the formal complaint. The final regulations therefore authorize a recipient to utilize electronic submission systems, both for reporting and for filing formal complaints. The final regulations do not preclude a Title IX Coordinator from helping a complainant fill out a formal complaint, so long as what the complainant files is a document or electronic submission that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. Changes: We have revised the § 106.30 definition of ‘‘formal complaint’’ to specify that a formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information required to be listed for the Title IX Coordinator under § 106.8(a), and by any additional method designated by the recipient. We have further revised this provision to state that ‘‘document filed by a complainant’’ means a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by the recipient) that contains the complainant’s digital or physical signature, or otherwise indicates that the complainant is the person filing the formal complaint. Miscellaneous Concerns About the Formal Complaint Definition Comments: Commenters wondered whether a complainant can file a formal complaint after having graduated. Commenters wondered whether a formal complaint could be filed against an unknown or unidentified respondent; commenters opined that the formal grievance procedures in § 106.45 seemed ‘‘elaborate’’ for circumstances where the perpetrator was not identified and thus there would be no possibility of punishment through a grievance proceeding. Commenters suggested that complainants should be allowed to make a formal complaint about systemic culture of harassment on a campus, not only against an individual respondent. E:\FR\FM\19MYR2.SGM 19MYR2 30138 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Discussion: The Department appreciates commenters’ questions regarding whether a complainant may file a formal complaint after the complainant has graduated. The definition of ‘‘complainant’’ is any individual alleged to be the victim of conduct that could constitute sexual harassment; there is no requirement that the complainant must be a student, employee, or other designated relationship with the recipient in order to be treated as a ‘‘complainant’’ entitled to a prompt, non-deliberately indifferent response from the recipient. To clarify the circumstances under which a complainant may file a formal complaint (thereby requiring the recipient to investigate sexual harassment allegations) we have revised the § 106.30 definition of ‘‘formal complaint’’ to state that a complainant must be participating in, or attempting to participate in, the recipient’s education program or activity at the time of filing a formal complaint. A complainant who has graduated may still be ‘‘attempting to participate’’ in the recipient’s education program or activity; for example, where the complainant has graduated from one program but intends to apply to a different program, or where the graduated complainant intends to remain involved with a recipient’s alumni programs and activities. Similarly, a complainant who is on a leave of absence may be ‘‘participating or attempting to participate’’ in the recipient’s education program or activity; for example, such a complainant may still be enrolled as a student even while on leave of absence, or may intend to re-apply after a leave of absence and thus is still ‘‘attempting to participate’’ even while on a leave of absence. By way of further example, a complainant who has left school because of sexual harassment, but expresses a desire to re-enroll if the recipient appropriately responds to the sexual harassment, is ‘‘attempting to participate’’ in the recipient’s education program or activity. Because a complainant is entitled under these final regulations to a prompt response that must include offering supportive measures, the Department’s intention is that recipients will promptly implement individualized services designed to restore or preserve the complainant’s equal access to education,606 regardless of whether a complainant files a formal complaint, so that if a complainant later decides to file a formal complaint, the complainant has already been receiving 606 Section 106.44(a); § 106.30 (defining ‘‘supportive measures’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 supportive measures that help a complainant maintain educational access. The § 106.30 definition of ‘‘formal complaint’’ states that a formal complaint is a document that alleges sexual harassment ‘‘against a respondent,’’ but the final regulations do not require a complainant to identify the respondent in a formal complaint. However, § 106.44(a) prohibits a recipient from imposing disciplinary sanctions on a respondent without first following a grievance process that complies with § 106.45.607 Section 106.45(b)(2) requires the recipient to send the parties written notice of allegations including the identities of the parties, if known, ‘‘upon receipt of a formal complaint.’’ Thus, a recipient in receipt of a complainant’s formal complaint, where the complainant has refused to identify the respondent, will be unable to comply with the § 106.45 grievance process and will not be permitted to impose disciplinary sanctions against a respondent. In such a circumstance, the recipient still must promptly respond by offering supportive measures to the complainant, pursuant to §§ 106.44(a) and 106.44(b)(1). Nothing in the final regulations precludes a recipient from responding to a complainant’s request to investigate sexual harassment that allegedly has created a hostile environment on campus; however, a recipient cannot impose disciplinary sanctions against a respondent accused of sexual harassment unless the recipient first follows a grievance process that complies with § 106.45. A complaint filed by a complainant would not constitute a formal complaint triggering a recipient’s obligation to investigate unless it is a document alleging sexual harassment against a respondent, and the recipient would not be able to impose disciplinary sanctions against a respondent unless the respondent’s identity is known so that the recipient follows a grievance process that complies with § 106.45. A recipient must investigate a complainant’s formal complaint even if the complainant does not know the respondent’s identity, because an investigation might reveal the respondent’s identity, at which time the recipient would be obligated to send both parties written notice of the allegations under § 106.45(b)(2) and fulfill all other requirements of the § 106.45 grievance process. Changes: We have revised § 106.30 defining ‘‘formal complaint’’ to provide that at the time of filing a formal 607 See PO 00000 also § 106.45(b)(1)(i). Frm 00114 Fmt 4701 Sfmt 4700 complaint, a complainant must be participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed. Postsecondary Institution Comments: Some commenters assumed that the Department’s use of the term ‘‘institution of higher education’’ in the NPRM means an institution as defined in the Department’s regulations implementing Title IV of the Higher Education Act of 1965, as amended, (‘‘HEA’’) and thus concluded that the Department must undergo negotiated rulemaking in order to promulgate these final regulations. Discussion: The Department’s use of the term ‘‘institution of higher education’’ in the NPRM did not refer to ‘‘institution of higher education’’ as defined in the Department’s regulations implementing Title IV of the HEA. As explained in more detail elsewhere in this preamble including the ‘‘Executive Orders and Other Requirements’’ subsection of the ‘‘Miscellaneous’’ section of this preamble, the Department is promulgating these regulations under Title IX and not under the HEA. Accordingly, the Department is not subject to the requirement of negotiated rulemaking under Title IV of the HEA. To make it exceedingly clear that these final regulations do not refer to ‘‘institutions of higher education’’ in the context of the HEA, the Department revised the final regulations to refer to ‘‘postsecondary institutions’’ instead of ‘‘institutions of higher education.’’ The Department derives its definition of ‘‘postsecondary institution’’ from the existing definitions in Part 106 of Title 34 of the Code of Federal Regulations. The definition of ‘‘educational institution’’ in § 106.2(k) is a definition that applies to Part 106 of Title 34 of the Code of Federal Regulations. Section 106.2(k) defines an educational institution in relevant part as an applicant or recipient of the type defined by paragraph (l), (m), (n), or (o) of § 106.2. Paragraphs (l), (m), (n), and (o) of § 106.2 define an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, respectively. Accordingly, the Department defines a postsecondary institution as an institution of higher education as defined in § 106.2(l), an institution of undergraduate higher education as defined in § 106.2(m), an institution of professional education as defined in § 106.2(n), and an institution of vocational education as defined in E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations § 106.2(o). In this manner, the Department defines the subset of educational institutions as defined in § 106.2(k) that constitute postsecondary institutions as defined in § 106.30. The remainder of the entities described as educational institutions in § 106.2(k) constitute elementary and secondary schools as explained in the section above on the definition of ‘‘elementary and secondary school.’’ The definition of ‘‘postsecondary institution’’ applies only to §§ 106.44 and 106.45 of these final regulations. Changes: The Department revises § 106.30 to define a ‘‘postsecondary institution’’ as used in §§ 106.44 and 106.45 to mean an institution of higher education as defined in § 106.2(l), an institution of undergraduate higher education as defined in § 106.2(m), an institution of professional education as defined in § 106.2(n), and an institution of vocational education as defined in § 106.2(o), and replaces ‘‘institutions of higher education’’ with ‘‘postsecondary institutions’’ throughout the final regulations. Respondent Comments: At least one commenter appreciated that the Department clarified in its proposed definition that only a person in their individual capacity could be subjected to a Title IX investigation rather than an entire organization. Several commenters suggested that the Department alter the language from ‘‘respondent’’ to ‘‘responding party.’’ Other commenters recommended adding the word ‘‘accused’’ instead of the word ‘‘reported’’ in an effort to eliminate bias from the proceedings. One commenter asserted that the word ‘‘reported’’ implies that only a mere accusation exists and the commenter argued that a mere accusation should not make a person a respondent. One commenter requested that the Department clarify that a respondent need not be a student, but may be a faculty or staff member. Another commenter asked for clarification regarding what constitutes a person ‘‘reported to be a perpetrator’’ since schools’ obligations to the parties are only triggered when someone actually becomes a respondent or complainant. Discussion: We acknowledge commenters’ concerns with the language in the § 106.30 definition of ‘‘respondent.’’ However, the Department declines to alter the term ‘‘respondent’’ to ‘‘responding party’’ because the two terms do not vary in a significant way and the term ‘‘respondent’’ is just as neutral as the proposed modification, without introducing potential confusion VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 from use of ‘‘responding party’’ when throughout the final regulations the word ‘‘party’’ is used to refer to either a complainant or a respondent. The Department also disagrees with the specific concern that using the language ‘‘reported’’ as opposed to ‘‘accused’’ to define the respondent, has the potential to bias the proceedings. The Department believes that the term ‘‘reported’’ carries a less negative connotation than the term ‘‘accused’’ without disadvantaging the complainant. We also acknowledge the suggestion that the final regulations clarify that a respondent can be a student, a faculty member, or other employee of the recipient, and the suggestion that the Department clarify whether a formal complaint is required for a party to become a ‘‘respondent.’’ The Department believes that § 106.30 contains sufficiently clear, broad language indicating that any ‘‘individual’’ can be a respondent, whether such individual is a student, faculty member, another employee of the recipient, or other person with or without any affiliation with the recipient. The Department intentionally does not limit a ‘‘respondent’’ to include only individuals against whom a formal complaint has been filed, because even where a grievance process is not initiated, the recipient still has general response obligations under § 106.44(a) that may affect the person alleged to have committed sexual harassment (i.e., the respondent). While the terms ‘‘complainant’’ and ‘‘respondent’’ are commonly used when a formal proceeding is pending, in an effort to eliminate confusion and to promote consistency throughout the final regulations, the Department uses the terms ‘‘complainant’’ and ‘‘respondent’’ to identify the parties in situations where a formal complaint has not been filed as well as where a grievance process is pending. Changes: None. Sexual Harassment Overall Support and Opposition for the § 106.30 Sexual Harassment Definition Comments: Many commenters expressed support for the § 106.30 definition of sexual harassment. One commenter commended the Department’s § 106.30 definition because it makes clear that Title IX governs misconduct by colleges, not students, and addresses the real problem of sexual harassment while acknowledging that not all forms of unwanted sexual behavior— inappropriate and problematic as they may be—rise to the level of a Title IX violation on the part of colleges and PO 00000 Frm 00115 Fmt 4701 Sfmt 4700 30139 universities. One commenter expressed strong support for shifting Title IX regulations to provide a clear, rational, understandable definition of what, precisely, constitutes sexual harassment and assault as opposed to current vague guidelines. One commenter stated that although some misinformed commenters and advocates have claimed the proposed rules would not require a school to respond to allegations of rape, the third prong of the § 106.30 definition clearly prohibits criminal sexual conduct itemized in incorporated regulation 34 CFR 668.46(a) including a single instance of rape. This commenter further expressed support for the second prong of the definition, which is limited to unwelcome conduct that is ‘‘severe, pervasive, and objectively offensive,’’ which, the commenter stated, has proven to be the most controversial prong yet has three advantages: (1) It provides greater clarity and consistency for colleges and universities; (2) it minimizes the risk that federal definitions of sexual harassment will violate academic freedom and the free speech rights of members of the campus community; and (3) it recognizes that the Department’s job is not to write new law. This commenter argued that if stakeholders desire a more expansive definition of sexual harassment, they should direct their concerns to Congress, and stated that the proposed rules clearly leave schools with the discretion to use their own, broader definitions of misconduct that do not fall within the school’s Title IX obligations. Several commenters supported the § 106.30 definition because they asserted that it would protect free speech and academic freedom while still requiring recipients to respond to sexual harassment that constitutes sex discrimination. One commenter argued that Title IX grants the Department authority to impose procedural requirements on schools to effectuate the purpose of Title IX but not to redefine what discrimination is, and when it comes to peer harassment particularly, application of broad definitions modeled on Title VII (which, the commenter asserted, does not require denial of equal access or severity), rather than Title IX’s narrower definition, has led to numerous infringements on student and faculty speech and expression. This commenter stated that based on the Department’s experience observing how a broader definition has been applied, the Department reasonably may wish to adopt a narrower, clearer definition of E:\FR\FM\19MYR2.SGM 19MYR2 30140 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations harassment to avoid free speech problems, citing a Supreme Court case for the proposition that courts will not allow agencies to adopt regulations broadly interpreting a statute in a manner that raises potential constitutional problems.608 This commenter argued that the Department cannot ban all unwelcome verbal conduct (i.e., speech), or even seriously offensive speech, and that correcting an overly broad definition of harassment is an appropriate exercise of an agency’s authority. The commenter argued that a broad definition may result in an agency finding liability that a court later reverses or subjecting a recipient to a lengthy, speech-chilling investigation that courts later view as a free speech violation; 609 thus, an agency needs to define harassment narrowly to avoid free speech problems ex ante rather than try to rely on ad-hoc First Amendment exceptions to a broad definition. Several commenters supported the § 106.30 definition, arguing that the proposed rules correctly defined the harassment a college must respond to as severe, pervasive conduct that denies equal access to an education—not conduct or speech that is merely ‘‘unwelcome,’’ as other commenters would like. One commenter argued that students and faculty must be able to discuss sexual issues, even if that offends some people who hear it, and the fact that speech is deeply offensive to a listener is not a sufficient reason to suppress it.610 One commenter asserted that, contrary to the suggestion of other commenters who have argued that individual instances of unwelcome speech should be suppressed to prevent any possibility of a hostile environment later developing, such a prophylactic rule to prevent harassment would be a sweeping rule, grossly overbroad in violation of the First Amendment.611 The commenter further argued that this First Amendment rule fully applies to colleges because the Supreme Court rejected the idea that ‘‘First Amendment 608 Commenters cited: Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. and Const. Trades Council, 485 U.S. 568, 574–575 (1988) (rejecting agency’s broad interpretation of law because it would raise possible free speech problems); NAACP v. Button, 371 U.S. 415, 438 (1963) (stating broad prophylactic rules in the area of free expression are forbidden because the First Amendment demands precision of regulation). 609 Commenters cited: Rodriguez v. Maricopa Cmty. Coll. Dist., 605 F.3d 703 (9th Cir 2010); White v. Lee, 227 F.3d 1214 (9th Cir. 2000); Lyle v. Warner Bros., 132 P.3d 211, 300 (Cal. 2006) (Chin, J., concurring); Meltebeke v. Bureau of Labor & Indus., 903 P.2d 351 (Or. 1995). 610 Commenters cited: Snyder v. Phelps, 562 U.S. 443 (2011). 611 Commenters cited: NAACP v. Button, 371 U.S. 415, 438 (1963). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ ’’ 612 Thus, the commenter asserted, even vulgar or indecent college speech is protected.613 This commenter argued that because the First Amendment does not permit broad prophylactic rules against harassing speech, for a college to punish speech that is not severe and pervasive is a violation of the First Amendment.614 The commenter further argued that even if speech is severe or pervasive, and thus could otherwise violate Federal employment laws like Title VII, faculty speech that offends co-workers may be protected under academic freedom when it does not target a specific employee based on race or gender 615 and the Supreme Court intentionally has adopted a narrower definition of harassment under Title IX than under Title VII, requiring that conduct be both severe and pervasive enough to deny equal educational access, as opposed to merely fostering a hostile environment through severe or pervasive conduct.616 By contrast to the second prong of the § 106.30 definition, the commenter argued that the Department does have authority to require schools to process claims of groping-based assaults, even if the groping did not by itself deny educational access, as a prophylactic rule to prevent such conduct from recurring and spreading, and potentially causing more harm to the victim that culminates in denial of educational access; according to this commenter, the difference is that because ignoring even a misdemeanor sexual assault creates a high risk that such conduct will persist or spread to the point of denying access and prophylactic rules are constitutionally acceptable when applied to conduct (such as sexual assault), not speech. One commenter asserted that we live in a hypersensitive age in which disagreeable views are considered an assault on students’ emotional safety or health, even though such disagreement 612 Commenters cited: Healy v. James, 408 U.S. 169, 180 (1972). 613 Commenters cited: Papish v. Bd. of Curators, 410 U.S. 667 (1973). 614 Commenters cited: DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008). 615 Commenters cited: Rodriguez v. Maricopa Cmty. Coll. Dist., 605 F.3d 703 (9th Cir. 2010). 616 Commenters cited: Davis v. Monroe Dep’t. of Educ., 526 U.S. 629, 633, 650, 651, 652, 654 (1999) (noting that the Court repeated the severe ‘‘and’’ pervasive formulation five times). PO 00000 Frm 00116 Fmt 4701 Sfmt 4700 is protected by the First Amendment.617 This commenter agreed with the proposed rules’ requirement that speech must interfere with educational ‘‘access’’ and not merely create a hostile environment because from a First Amendment perspective, under schools’ hostile learning environment harassment codes, students and campus newspapers have been charged with racial or sexual harassment for expressing commonplace views about racial or sexual subjects, such as criticizing feminism, affirmative action, sexual harassment regulations, homosexuality, gay marriage, or transgender rights, or discussing the alleged racism of the criminal justice system.618 The commenter argued that to prevent speech on campus about racial or sexual subjects from being unnecessarily chilled or suppressed, a more limited definition of sexual harassment is necessary than the expansive hostile environment concept.619 Another commenter stated that courts have struck down campus racial and gender harassment codes that banned speech that created a hostile environment, but did not cause more tangible harm to students.620 This commenter argued that if a regulation or campus code bans hostile environments created from verbal conduct, without requiring more tangible harm, people can and will file complaints, and bring lawsuits, over constitutionally protected speech that offended them and that including a vague First Amendment exception in such codes or regulations is not enough to protect free speech because when liability or punishment is imposed, the decision-maker doing so will just claim that the penalty is not based on the content of the speech and that any First Amendment exception does not apply. The commenter argued that to protect free speech, the very definition of harassment must include a 617 Commenters cited: Jonathan Haidt & Greg Lukianoff, The Coddling of the American Mind (Penguin Press 2018). 618 Commenters cited: Jerome Woehrle, Free Speech Shrinks Due to Bans on Hostile or Offensive Speech, Liberty Unyielding (Nov. 23, 2017), https:// libertyunyielding.com/2017/11/23/free-speechshrinks-due-bans-hostile-offensive-speech/ (citing various sources including books and articles). 619 Commenters cited: Rodriguez v. Maricopa Cmty. Coll. Dist., 605 F.3d 703 (9th Cir. 2010) (dismissing racial harassment lawsuit over instructor’s racially insensitive emails about immigration based on the First Amendment, even though the emails were offensive to Hispanic employees). 620 Commenters cited: Dambrot v. Cent. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995); UWM Post v. Bd. of Regents of Univ. of Wis. Sys., 774 F. Supp. 1163 (E.D. Wis. 1991). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations requirement that verbal conduct deny access to an education. The commenter argued that the § 106.30 definition of harassment properly requires that verbal conduct be severe, not just pervasive or persistent as prior Department guidance suggested. The commenter asserted that just because offensive ideas are pervasive or persistent on a college campus does not strip the ideas of First Amendment protection and thus, only severe verbal conduct, such as fighting words, threats, and intentional infliction of severe emotional distress, should be prohibited. One commenter similarly argued that the same result is appropriate in the elementary and secondary school context, arguing that the Supreme Court’s Davis decision expressly required that conduct be severe and pervasive for Title IX liability, unlike workplace conduct under Title VII, and that the Court did so precisely because of the inevitability that elementary and secondary school students frequently behave in ways that would be unacceptable among adult workers.621 The commenter surmised that the Davis Court also likely did so to address free speech concerns raised by amici, who discussed serious problems with using the broader workplace severe or pervasive standard for college students’ speech. According to this commenter, college students have broader free speech rights than employees do, and the harassment definition as to their verbal conduct thus needs to be narrower under Title IX than under Title VII. Similarly, another commenter asserted that colleges are not like workplaces where it may be natural to ban offensive speech to maximize efficiency or prevent a hostile or offensive environment; rather, colleges exist for the purpose of exchanging ideas and pursuing the truth even if words and ideas offend listeners.622 Thus, the commenter asserted, schools should not be required to punish speakers unless their speech interferes with access to an education; according to this commenter, discussion of unpleasant sexual realities and unpopular viewpoints should not be silenced. One commenter asserted that the Davis standard, incorporated into the second prong of the § 106.30 definition, allows schools to prohibit sexual violence, to discipline those who 621 Commenters cited: Davis, 526 U.S. 629, 652 (1999). 622 Commenters cited: Dambrot v. Cent. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995) (holding hostile environment harassment code was unconstitutionally vague and overbroad and was not a valid prohibition of fighting words). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 commit it, and to remedy its effects and also allows schools to punish students when they determine that a student has engaged in expression (without accompanying physical or other conduct) that is discriminatory based on sex and that interferes with a student’s access to education because of its severity, pervasiveness, and objective offensiveness.623 This commenter stated it is precisely because expression, and not just physical conduct, may be restricted or punished as harassment that the Supreme Court carefully crafted the Davis standard for Title IX, reiterating it multiple times in its majority opinion and distinguishing it from the employment standard applied under Title VII. One commenter asserted that, to the extent the proposed regulations appear to be a departure from a legally sound approach, as some critics have alleged, that is only because the Departments of Education and Justice have, in recent years, insisted upon an unconstitutionally broad definition of sexual harassment unsupported by statutes, regulations, or case law while the new proposed definition is in fact a welcome return to consistency with the law itself. This commenter further noted that while Davis sets forth constitutional guidelines for what may and may not be punished under Title IX, it does not preclude recipients from addressing conduct that does not meet that standard, in non-punitive ways including for example providing the complainant with supportive measures, responding to the conduct in question with institutional speech, or offering programming designed to foster a welcoming campus climate more generally. One commenter supported the § 106.30 definition based on belief that the Federal government should not 623 Commenters further argued that there is no doubt that First Amendment interests are implicated when expression on public college campuses is regulated; as the Supreme Court has established, ‘‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’’ Texas v. Johnson, 491 U.S. 397, 414 (1989). The Supreme Court has also rejected the idea that ‘‘because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ ’’ Healy v. James, 408 U.S. 169, 180 (1972) (internal citations omitted). Further, these protections apply even to highly offensive speech on campus: ‘‘[T]he mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’ ’’ Papish v. Bd. of Curators, 410 U.S. 667, 670 (1973) (internal citations omitted). PO 00000 Frm 00117 Fmt 4701 Sfmt 4700 30141 make a solution to problems of interpersonal relations (and sometimes intimate relations) a precondition to the receipt of Federal funds because schools do not hold a ‘‘magic bullet’’ to prevent all student relationships from going bad, and university resources should not be diverted to respond to civil rights investigations or litigation based on just a student’s post-hoc, subjective feelings of being harassed or disrespected. Another commenter believed the new definition would stop schools from acting as the ‘‘sex police.’’ This commenter argued that schools have interpreted the current, extremely broad, definition to include asking too many times for sex; nine second stares; fist bumps; and wake up kisses, effectively requiring schools to police the sex lives of students. One commenter supported the § 106.30 definition asserting that harassment definitions should not assume weaknesses or vulnerabilities that the genders have spent decades trying to erase. Other commenters supported the definition believing it would benefit those truly sexually harassed or assaulted and put a stop to false accusations after regretful hookups. One commenter asserted that a clear definition of sexual harassment actionable under Title IX is crucial to ensure that no woman feels ignored or mistreated by a particular investigator or administrator and thus making the definition consistent with Supreme Court precedent is an important advancement for women. Discussion: The Department appreciates commenters’ support for the § 106.30 definition of sexual harassment. The Department agrees that the final regulations utilize a sexual harassment definition appropriate for furthering Title IX’s non-discrimination mandate while acknowledging the unique importance of First Amendment freedoms in the educational context. As described in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the NPRM proposed a three-pronged definition of sexual harassment recognizing quid pro quo harassment by any recipient employee (first prong), unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education (second prong), and sexual assault (third prong). Overall, as revised in these final regulations, this three-part definition in § 106.30 adopts the Supreme Court’s formulation of actionable sexual harassment, yet adapts the formulation E:\FR\FM\19MYR2.SGM 19MYR2 30142 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations for administrative enforcement in furtherance of Title IX’s broad nondiscrimination mandate by adding other categories (quid pro quo; sexual assault and three other Clery Act/VAWA offenses 624) that, unlike the Davis formulation, do not require elements of severity, pervasiveness, or objective offensiveness. The Department assumes that a victim of quid pro quo sexual harassment or the sex offenses included in the Clery Act, as amended by VAWA, has been effectively denied equal access to education. The § 106.30 definition captures categories of misconduct likely to impede educational access while avoiding a chill on free speech and academic freedom. The Department agrees with commenters noting that the Department has a responsibility to enforce Title IX while not interfering with principles of free speech and academic freedom, which apply in elementary and secondary schools as well as postsecondary institutions in a manner that differs from the workplace context where Title VII prohibits sex discrimination. The Department agrees that the Supreme Court carefully and deliberately crafted the Davis standard for when a recipient must respond to sexual harassment in recognition that school environments are unlike workplace environments. Precisely because expressive speech, and not just physical conduct, may be restricted or punished as harassment, it is important to define actionable sexual harassment under Title IX in a manner consistent with respect for First Amendment rights, and principles of free speech and academic freedom, in education programs and activities. Likewise, the Department agrees with the commenter who noted the distinction between a standard for when speech is actionable versus a standard for when physical conduct is actionable; the former requires a narrowly tailored formulation that refrains from effectively applying, or encouraging recipients to apply, prior restraints on speech and expression, while the latter raises no constitutional concerns with respect to application of broader prohibitions. Thus, quid pro quo harassment 625 and the four Clery 624 These final regulations expressly include four Clery Act/VAWA offenses as sexual harassment as defined in § 106.30: Sexual assault, dating violence, domestic violence, and stalking. 625 While quid pro quo harassment by a recipient’s employee involves speech, the speech is, by definition, designed to compel conduct; thus, the Department believes that a broad prohibition against an employee conditioning an educational benefit on participation in unwelcome sexual conduct does not present constitutional concerns with respect to protection of speech and expression. See, e.g., Saxe v. State Coll. Area Sch. Dist., 240 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Act/VAWA offenses constitute per se actionable sexual harassment, while the ‘‘catch-all’’ Davis formulation that covers purely verbal harassment also requires a level of severity, pervasiveness, and objective offensiveness. The ‘‘catch-all’’ Davis formulation is a narrowly tailored standard to ensure that speech and expression are prohibited only when their seriousness and impact avoid First Amendment concerns. The Department does not intend, through these final regulations, to encourage or discourage recipients from governing the sex and dating lives of students, or to opine on whether or not recipients have become the ‘‘sex police;’’ whether such a trend is positive or negative is outside the purview of these final regulations. The Department’s definition of sexual harassment is designed to hold recipients accountable for meaningful, fair responses to sexual harassment that violates a person’s civil right to be free from sex discrimination, not to dictate a recipient’s role in the sex or dating lives of its students. The Department emphasizes that any person can be a victim, and any person can be a perpetrator, of sexual harassment, and like the Title IX statute itself, these final regulations are drafted to be neutral toward the sex of each party.626 Changes: We have revised the § 106.30 definition of sexual harassment in four ways: First, by moving the clause ‘‘on the basis of sex’’ from the second prong to the introductory sentence of the entire definition to align with Title IX’s focus on discrimination ‘‘on the basis of sex’’ for all conduct that constitutes sexual harassment; second, by specifying that the Davis elements in the second prong (severe, pervasive, objectively offensive, denial of equal access) are determined under a reasonable person standard; third, by adding the other three Clery Act/VAWA sex offenses (dating violence, domestic violence, and stalking) to the sexual assault reference in the third prong; and fourth, by referencing the Clery Act and F.3d 200, 207 (3d Cir. 2001) (‘‘government may constitutionally prohibit speech whose nonexpressive qualities promote discrimination. For example, a supervisor’s statement ‘sleep with me or you’re fired’ may be proscribed not on the ground of any expressive idea that the statement communicates, but rather because it facilitates the threat of discriminatory conduct. Despite the purely verbal quality of such a threat, it surely is no more ‘speech’ for First Amendment purposes than the robber’s demand ‘your money or your life.’ ’’) (emphasis in original). 626 Compare 20 U.S.C. 1681(a) (‘‘No person in the United States shall, on the basis of sex, be excluded . . .’’) (emphasis added) with § 106.30 (defining ‘‘complainant’’ to mean ‘‘an individual who is alleged to be the victim . . .’’) (emphasis added). PO 00000 Frm 00118 Fmt 4701 Sfmt 4700 VAWA statutes rather than the Clery Act regulations. Comments: Many commenters opposed the § 106.30 definition of sexual harassment, with some commenters arguing that the definition is unfair, would make schools unsafe and vulnerable and retraumatize survivors, is misogynistic, and promotes a hostile environment. Commenters also stated that it would negatively impact all students, especially LGBTQ students including transgender and non-binary people who are already more reluctant to report for fear of facing bias. Many commenters directed the Department to information and data about prevalence, impact, and other dynamics of sexual harassment that is addressed in the ‘‘General Support and Opposition’’ section of this preamble, arguing that the ‘‘narrowed’’ or ‘‘stringent’’ definition of sexual harassment in the NPRM would increase the prevalence, impact, and costs of sexual harassment on all victims and decrease or chill reporting of sexual harassment including disproportionately negative consequences for particular demographic populations. Many commenters asserted that the proposed definition fails to encompass the wide range of types of sexual harassment that students frequently face. Many commenters argued that requiring schools to only investigate the most serious cases gives a green light to all kinds of inappropriate behavior that should also be investigated. A few commenters contended that screening out harassment claims that do not meet certain thresholds contributes to a society-wide problem where from a young age girls are told in subtle and less subtle ways to be good, nice, and quiet, that girls don’t matter as much as boys, and that speaking up to say something against a boy will not be taken seriously. One commenter asserted that Alexander v. Yale established that sexual harassment and assault in schools is not only a crime, but also impedes equitable access to education.627 Several commenters asserted that any act of rape or assault denies the victim the ability to successfully participate in college and that a person who is raped or assaulted is traumatized, which affects all aspects of college participation and academic performance. Many commenters contended that if enacted, the proposed rules would raise a question for a victim: Was my rape/assault bad enough 627 Commenters cited: Alexander v. Yale Univ., 459 F. Supp. 1 (D. Conn. 1977). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations or severe enough to warrant someone listening to me? Several commenters asserted that by narrowing the definition of sexual harassment, the proposed rules would invalidate the adverse experiences to which victims have been subjected. One commenter argued that while there is no silver bullet to fixing the problem of sexual assault and harassment, narrowing what actions are deemed assault in the realm of Title IX will muddy the waters even further; the commenter argued that what people perceive as vague is necessary to ensure victims are being treated fairly. Several commenters asserted that as all victims of harassment are unique, so are forms of harassment unique and should remain widely defined. Several commenters argued that the definitions of sexual harassment need to be developed further to include cultural differences in sexual harassment and discrimination. Other commenters asserted that the § 106.30 definition of sexual harassment is very limiting compared to what students on campus really feel and experience; further, students may understand an experience differently based on race, sex, and cultural factors leading to misunderstanding as to what sexual assault or sexual harassment is or is not. A few commenters argued that sexual violence or sexual violation would be a better term to use than sexual harassment. At least one commenter asserted that accused students sometimes do not recognize their behavior as violent and wondered how that reality plays into Title IX reform. At least one commenter characterized the use of qualifiers like severe and pervasive in the sexual harassment definition as creating a fact-bound focus on the behavior of the victim, an unfair result given that much of the conduct complained about may also be criminal. Discussion: The Department disagrees that the three-pronged definition of sexual harassment in § 106.30 is unfair, misogynistic, will make schools unsafe, leave students vulnerable, retraumatize survivors, promote a hostile environment, or disadvantage LGBTQ students. As described above, the definition is rooted in Supreme Court Title IX precedent and principles of free speech and academic freedom, applies equally to all persons regardless of sexual orientation or gender identity, provides clear expectations for when schools legally must respond to sexual harassment, and leaves schools discretion to address misconduct that does not meet the Title IX definition. The Department appreciates the data and information commenters referred to VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 regarding the prevalence and impact of sexual harassment on students (and employees) of all ages and characteristics. Precisely because sexual harassment affects so many students in such detrimental ways, the Department has chosen, for the first time, to exercise its authority under Title IX to codify regulations that mandate school responses to assist survivors in the aftermath of sexual harassment. The Department does not disagree with commenters’ characterizations of the Davis standard as ‘‘narrow’’ or even ‘‘stringent,’’ but we contend that as a whole, the range of conduct prohibited under Title IX is adequate to ensure that abuse of authority (i.e., quid pro quo), physical violence, and sexual touching without consent (i.e., the four Clery Act/ VAWA offenses) trigger a school’s obligation to respond without scrutiny into the severity or impact of the conduct, while verbal and expressive conduct crosses into Title IX sex discrimination (in the form of sexual harassment) when such conduct is so serious that it effectively denies a person equal access to education. As a whole, the definition of sexual harassment in § 106.30 is significantly broader than the Davis standard alone,628 and in certain ways broader than the judicial standards applied to workplace sexual harassment under Title VII.629 The final regulations provide students, employees, and recipients clear direction that when incidents of quid pro quo harassment or Clery Act/VAWA offenses are reported to the recipient, the recipient must respond without inquiring into the severity or pervasiveness of such conduct. The Department understands commenters’ concerns that the Davis standard’s elements (severity, pervasiveness, and objective offensiveness) will exclude from Title IX incidents of verbal harassment that do not meet those elements. However, 628 This is because the Davis standard, alone, evaluates even physical assaults and violence through the lens of whether an incident is severe, pervasive, and objectively offensive so as to deny a person equal access; however, under these final regulations these elements do not apply to sexbased incidents of quid pro quo harassment, sexual assault, dating violence, domestic violence, or stalking. 629 Under Title VII, sexual harassment (including quid pro quo, hostile environment, and even sexual assault) must be shown to alter the conditions of employment. See Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986). Under these final regulations, quid pro quo harassment, sexual assault, dating violence, domestic violence, and stalking do not require a showing of alteration of the educational environment. As previously stated, the Department assumes that a victim of quid pro quo sexual harassment or the criminal sex offenses included in the Clery Act, as amended by VAWA, has been effectively denied equal access to education. PO 00000 Frm 00119 Fmt 4701 Sfmt 4700 30143 the Department does not agree that this standard for verbal harassment (and physical conduct that does not constitute a Clery Act/VAWA offense included in these final regulations) will discourage students or employees from reporting harassment, fail to require recipient responses to a wide range of sexual harassment frequently faced by students, or send the message that girls do not matter as much as boys. The Department believes that State and local educators desire a safe, learningconducive environment for students and employees, and that recipients will evaluate incidents under the Davis standard from the perspective of a reasonable person in the shoes of the complainant, such that the ages, abilities, and relative positions of authority of the individuals involved in an incident will be taken into account. To reinforce this, the final regulations revise the second prong of the sexual harassment definition to specify that the Davis elements are ‘‘determined by a reasonable person’’ to be so severe, pervasive, and objectively offensive that a person is effectively denied equal access to education. The Department does not dispute commenters’ characterization that only serious situations will be actionable under this definition, but following the Supreme Court’s reasoning in Davis, that stricture is appropriate in educational environments where younger students are still learning social skills and older students benefit from robust exchange of ideas, opinions, and beliefs. Contrary to commenters’ assertions, neither the Davis standard nor the sexual harassment definition holistically gives a green light to inappropriate behavior. Rather, the three-pronged definition of sexual harassment in § 106.30 provides clear requirements for recipients to respond to sexual harassment that constitutes sex discrimination prohibited under Title IX, while leaving recipients flexibility to address other forms of misconduct to the degree, and in the manner, best suited to each recipient’s unique educational environment. The Department agrees with commenters that for decades, sexual harassment has been a recognized form of sex discrimination that impedes equal access to education, and that rape and assault traumatize victims in ways that negatively affect participation in educational programs and activities. For this reason, contrary to the misunderstanding of many commenters, the Department intentionally included sexual assault as a per se type of sexual harassment rather than leaving sexual assault to be evaluated for severity or E:\FR\FM\19MYR2.SGM 19MYR2 30144 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations pervasiveness under the Davis standard. No student or employee traumatized by sexual assault needs to wonder whether a rape or sexual assault was ‘‘bad enough’’ or severe enough to report and expect a meaningful response from the survivor’s school, college, or university. Far from narrowing what constitutes sexual assault, the Department incorporates the offense of sexual assault used in the Clery Act, which broadly defines sexual assault to include all the sex offenses listed by the FBI’s Uniform Crime Reporting system. The Department agrees that all victims of harassment are unique, and that harassment can take a myriad of unique forms. For this reason, the Department defines sexual harassment to include the four Clery Act/VAWA offenses, leaves the concept of quid pro quo harassment broad and applicable to any recipient employee, and does not limit the endless variety of verbal or other conduct that could meet the Davis standard. While understanding that sexual harassment causes unique harm to victims distinct from the harm caused by other misconduct, the final regulations define sexual harassment similar to the way in which fraud is understood in the legal system, where ‘‘Fraud is a generic term, which embraces all the multifarious means which human ingenuity can devise and which are resorted to by one individual to gain an advantage over another by false suggestions or by the suppression of the truth.’’ 630 Similarly, sexual harassment under § 106.30 is a broad term that encompasses the ‘‘multifarious means which human ingenuity can devise’’ to foist unwelcome sex-based conduct on a victim jeopardizing educational pursuits. Thus, the Department agrees with commenters that some level of open-endedness is necessary to ensure that relevant misconduct is captured. The Department believes that the § 106.30 definition provides standards that are clear enough so that victims, perpetrators, and recipients understand the type of conduct that will be treated as sex discrimination under Title IX, and open-ended enough to not artificially foreclose behaviors that may constitute actionable sexual harassment. The Department understands commenters’ concerns that cultural differences can impact the way that sexual harassment is experienced. Cultural and other personal factors can affect sexual harassment and sexual violence dynamics, and the Department believes the definition of sexual 630 Stapleton v. Holt, 250 P.2d 451, 453–54 (Okla. 1952). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 harassment must remain applicable to all persons, regardless of cultural or other identity characteristics. To the extent that cultural or other personal factors affect a person’s understanding about what constitutes sexual harassment, the Department notes that with one exception,631 no type of sexual harassment depends on the intent or purpose of the perpetrator or victim. Thus, if a perpetrator commits misconduct that meets one or more of the three prongs, any misunderstanding due to cultural or other differences does not negate the commission of a sexual harassment violation. Similarly, a respondent’s lack of comprehension that conduct constituting sexual harassment violates the bodily or emotional autonomy and dignity of a victim does not excuse the misconduct, though genuine lack of understanding may (in a recipient’s discretion) factor into the sanction decision affecting a particular respondent, or a recipient’s willingness to facilitate informal resolution of a formal complaint of sexual harassment. While the Department appreciates commenters’ suggestions that ‘‘sexual violence’’ or ‘‘sexual violations’’ would be preferred terms in place of ‘‘sexual harassment,’’ for clarity and ease of common understanding, the Department uses ‘‘sexual harassment’’ as the Supreme Court used that term when acknowledging that sexual harassment can constitute a form of sex discrimination covered by Title IX. The Department disagrees that the Davis standard inappropriately or unfairly creates a fact-bound focus on the victim’s behavior; rather, elements of severity, pervasiveness, and objective offensiveness focus factually on the nature of the misconduct itself—not on the victim’s response to the misconduct. To reinforce and clarify that position, we have revised § 106.30 defining ‘‘sexual harassment’’ to expressly state that the Davis elements of severity, pervasiveness, objective offensiveness, and effective denial of equal access, are evaluated from the perspective of a ‘‘reasonable person,’’ so that the complainant’s individualized reaction to sexual harassment is not the focus when a recipient is identifying and responding to Title IX sexual harassment incidents or allegations. Changes: We have revised the § 106.30 definition of sexual harassment by specifying that the elements in the Davis standard (severe, pervasive, objectively offensive, and denial of equal access) are determined under a reasonable person standard. Comments: Several commenters asserted that the § 106.30 definition ignores a multitude of objectionable actions thereby excusing large swaths of harassing activity from scrutiny under Title IX. Other commenters objected to the § 106.30 definition on the ground that there are a wide variety of circumstances in which unwelcome conduct on the basis of sex would violate Title IX, but which would fall outside the proposed definition of sexual harassment; several such commenters argued that the net effect of the proposed definition would be to exempt from enforcement by the Department several distinct categories of Title IX violations, and under Title IX the Department has no authority to create such exemptions. A few commenters asserted that some sexual predators engage in grooming behaviors intended to sexualize an abuser’s relationships with children gradually while building a sense of trust with intended victims.632 Commenters asserted that grooming behaviors can include behaviors such as making inappropriate jokes, sharing pornographic photos or videos, inappropriately entering locker rooms when students are undressing, singling out children for gifts, trips or special tasks, and finding times and places to be alone with children. Commenters argued that under the proposed rules, these behaviors might not meet the definition of sexual harassment, yet responding to such behaviors is essential to preventing child sexual abuse. Some commenters expressed concern that the § 106.30 definition discounts certain types of sex-based harassment that, although ostensibly ‘‘less severe,’’ nonetheless adversely affect survivors’ participation in educational programs. A few such commenters categorized types of sex-based harassment 633 as: (i) 631 The one exception is the offense of ‘‘fondling,’’ included in the Clery Act under the term ‘‘sexual assault.’’ Under the Clery Act (referring to the FBI’s Uniform Crime Reporting system), fondling is a sex offense that means the ‘‘touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim[.]’’ E.g., U.S. Dep’t. of Education, Office of Postsecondary Education, The Handbook for Campus Safety and Security Reporting 3–6 (2016), https://www2.ed.gov/admins/lead/safety/ handbook.pdf. (emphasis added). 632 Commenters cited: Helen C. Whittle et al., A Comparison of Victim and Offender Perspectives of Grooming and Sexual Abuse, 36 Deviant Behavior 7 (2015). 633 Commenters cited: Louise Fitzgerald et al., Measuring sexual harassment: Theoretical and psychometric advances, 17 Basic & Applied Social Psychol. 4 (1995); Jennifer L. Berdahl, Harassment based on sex: Protecting social status in the context of gender hierarchy, 32 Acad. of Mgmt. Rev. 641 (2007); Emily Leskinen et al., Gender harassment: Broadening our understanding of sex-based PO 00000 Frm 00120 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations ‘‘Sexual assault’’ defined as involving any unwelcome sexual contact, which the commenters stated is covered by the proposed rules’ definition of harassment; (ii) ‘‘sex-based harassment’’ as an umbrella term to mean behavior that derogates, demeans, or humiliates an individual based on that individual’s sex but does not involve physical contact, and which comes in three forms: ‘‘Sexual coercion’’ or quid pro quo involving bribes or threats that make an important outcome contingent on the victim’s sexual cooperation; ‘‘unwanted sexual attention’’ involving expressions of romantic or sexual interest that are unwelcome, unreciprocated, and offensive to the recipient; and ‘‘gender harassment’’ encompassing verbal and nonverbal behaviors not aimed at sexual cooperation but that convey insulting, hostile, and degrading attitudes about one sex (though devoid of sexual content). These commenters asserted that while sexual coercion remains covered under the § 106.30 definition (under the first prong regarding quid pro quo harassment), unwanted sexual attention is covered only if it is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education, and gender harassment is not covered at all by the regulatory definition even though it is the most common type of sex-based harassment in academia as well as the workplace. These commenters also asserted that research shows that gender harassment that is either severe or occurs frequently over a period of time can result in the same level of negative professional, academic, and psychological outcomes as isolated incidents of sexual coercion.634 These commenters concluded that the only way to truly combat sexual harassment is to enact policies that address and prevent the most common form of sexual harassment (i.e., gender harassment). Several commenters expressed concern that the proposed rules do not expressly address how technology has changed in the decades since Title IX was enacted (e.g., email, the internet) harassment at work, 35 Law & Hum. Behavior 1 (2011); National Academies of Science, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine (Frasier F. Benya et al. eds., 2018). 634 Commenters cited: National Academies of Science, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine 69 (Frasier F. Benya et al. eds., 2018). Commenters further noted that sexual minorities experience gender harassment at more than double the rates of heterosexuals. Id. at 46. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 and asserted that the final regulations must squarely address cyber-harassment on the basis of sex, which commenters stated is a severe and growing trend for students.635 In addition to asking that online or cyber-harassment be explicitly referenced, several of these commenters also asserted that the appropriate standard for judging whether cyberharassment must be responded to is whether such harassment meets the description of harassment set forth in the Department’s 2001 Guidance. Several commenters asserted that school boards in elementary and secondary schools will encounter confusion among the proposed Title IX sexual harassment regulatory definition, State laws governing bullying, abuse, or crimes that mandate reports to law enforcement or child welfare agencies, and school discipline violations, each of which has its own procedures that must be followed. Similarly, several commenters asserted that postsecondary institutions will encounter confusion due to differences between the § 106.30 definition of sexual harassment and various State laws that define sexual harassment or sexual misconduct more broadly; these commenters referenced laws in states such as California, New York, New Jersey, Illinois, and others. At least one commenter asserted that the requirement that any of the conduct defined as sexual harassment under § 106.30 must be ‘‘on the basis of sex’’ lacks guidance as to how that element must be applied; one commenter wondered if this element means that a complainant must try to prove the respondent’s state of mind when most respondents would simply deny acting on the basis of the victim’s sex and insist that the action was based on romance, anger, emotion, etc., or whether a complainant would need to provide statistics to show a disparate impact on people of the victim’s sex in order to show that the respondent’s conduct was ‘‘on the basis of sex.’’ At least one commenter urged the Department to seek input from 635 Commenters cited: American Association of University Women, Crossing the Line: Sexual Harassment at School (2011), for the proposition that: In the 2010–2011 school year, 36 percent of girls, 24 percent of boys, and 30 percent of all students who took the survey in grades seven through 12 experienced sexual harassment online; 18 percent of these students did not want to go to school, 13 percent found it hard to study, 17 percent had trouble sleeping, and eight percent wanted to stay home from school. Commenters also asserted that college students, too, face online sexual harassment, and in support of this assertion, some commenters cited to: David Goldman, Campus Uproar Over Yik Yak App After Sex, Harassment, Murder, CNN.com (May 7, 2015), https://money.cnn.com/2015/05/07/technology/yikyak-university-of-mary-washington/. PO 00000 Frm 00121 Fmt 4701 Sfmt 4700 30145 stakeholders, including education leaders, on what types of technical assistance would be most helpful to school districts seeking to implement the regulatory definition. Discussion: The Department acknowledges that not every instance of subjectively unwelcome conduct is captured under the three-pronged definition of sexual harassment in § 106.30. However, the Department believes that the conduct captured as actionable under Title IX constitutes precisely the sex-based conduct that the Supreme Court has indicated amounts to sex discrimination under Title IX, as well as physical conduct that might not meet the Davis definition (e.g., a single instance of rape, or a single instance of quid pro quo harassment). The Department disagrees that it is exempting categories of Title IX violations from coverage under Title IX; to the contrary, the § 106.30 definition ensures that sex discrimination in the form of sexual harassment clearly falls under recipients’ Title IX obligations to operate education programs and activities free from sex discrimination. The Department appreciates commenters’ concerns regarding grooming behaviors, which can facilitate sexual abuse. While the sexual harassment definition does not identify ‘‘grooming behaviors’’ as a distinct category of misconduct, some of the conduct identified by commenters and experts as constituting grooming behaviors may constitute § 106.30 sexual harassment, and behaviors that do not constitute sexual harassment may still be recognized as suspect or inappropriate and addressed by recipients outside Title IX obligations. Similarly, the Department understands commenters’ and experts’ assertions that unwelcome conduct that is not ‘‘severe’’ can still adversely impact students and employees. The 2018 comprehensive report on ‘‘Sexual Harassment of Women’’ by the National Academies of Sciences, Engineering, and Medicine (NASEM) 636 helpfully synthesizes decades of sexual harassment research and analysis to classify sex-based harassment as either sexual assault, or any of three types of sex-based harassment (sexual coercion, unwanted sexual attention, or gender harassment). The Department agrees with commenters’ assertions that sexual 636 Commenters cited: National Academies of Science, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine (Frasier F. Benya et al. eds., 2018). E:\FR\FM\19MYR2.SGM 19MYR2 30146 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations assault and sexual coercion 637 are covered under the regulatory definition, and agrees that unwanted sexual attention is covered if such conduct meets the second prong (the Davis standard), but the Department disagrees with commenters’ assertion that what NASEM and others label as ‘‘gender harassment’’ is not covered under § 106.30. What the Department understands NASEM and commenters to mean by gender harassment is verbal and nonverbal behaviors, devoid of sexual content, that convey insulting, hostile, degrading attitudes about a particular sex. The language of the second prong of the § 106.30 definition describes conduct on the basis of sex that is unwelcome, determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education. That description encompasses what commenters label as ‘‘gender harassment’’ (as well as what commenters label ‘‘unwanted sexual attention’’) where the verbal or other conduct meets the Davis elements. Thus, the § 106.30 definition appropriately covers what NASEM and commenters describe as the most common type of sex-based harassment in academia and the workplace, as well as other types of sexual harassment identified by such commenters and experts. The Department appreciates the efforts made by NASEM and others to analyze the prevalence of sexual harassment within academia and to recommend approaches to reduce that prevalence, and believes that these final regulations appropriately regulate sexual harassment as a form of Title IX sex discrimination, while respecting the Department’s legal obligations to enforce the civil rights statute as passed by Congress, and apply statutory interpretations consistent with First Amendment and other constitutional protections. The Department understands that research demonstrates that the negative impact of persistent (though not severe) harassment may be similar to the impact of a single instance of severe harassment. However, guided by the Supreme Court’s Davis opinion, the Department believes that unwelcome conduct (that does not constitute quid pro quo harassment or a Clery Act/VAWA offense included in § 106.30) rises to a civil rights violation where the seriousness (determined by a reasonable person to be so severe, pervasive, objectively offensive, that it negatively impacts equal access) jeopardizes educational opportunities. 637 Commenters referred to ‘‘sexual coercion’’ as quid pro quo harassment. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 While non-severe instances of unwelcome harassment may negatively impact a person, and recipients retain authority to address such instances, Title IX is focused on sex discrimination that jeopardizes educational access. The Department understands that technology has evolved in the decades since Title IX was enacted, and that the means for perpetrating sexual harassment in modern society may include use of electronic, digital, and similar methods. The § 106.30 sexual harassment definition does not make sexual harassment dependent on the method by which the harassment is carried out; use of email, the internet, or other technologies may constitute sexual harassment as much as use of inperson, postal mail, handwritten, or other communications. For reasons described throughout this section of the preamble, and in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Department believes that the § 106.30 definition is superior to the definition of sexual harassment in the 2001 Guidance. The Department acknowledges that a myriad of State and Federal laws overlap in addressing misconduct, some of which may be criminal, violative of State civil rights laws, or safety-related (such as anti-bullying legislation), and that elementary and secondary schools, as well as postsecondary institutions, face challenges in meeting obligations under various laws, as well as recipients’ own policies. The Department notes that a recipient’s agreement to accept Federal financial assistance obligates the recipient to comply with Title IX with respect to education programs or activities, and that compliance with Title IX does not obviate the need for a recipient also to comply with other laws. The Department does not view a difference between how ‘‘sexual harassment’’ is defined under these final regulations and a different or broader definition of sexual harassment under various State laws as creating undue confusion for recipients or a conflict as to how recipients must comply with Title IX and other laws. While Federal Title IX regulations require a recipient to respond to sexual harassment as defined in § 106.30, a recipient may also need to respond to misconduct that does not meet that definition, pursuant to a State law. The Department more thoroughly discusses the interaction between these final regulations and State laws in the ‘‘Section 106.6(h) Preemptive Effect’’ subsection of the ‘‘Clarifying PO 00000 Frm 00122 Fmt 4701 Sfmt 4700 Amendments to Existing Regulations’’ section. The Department appreciates commenters’ concerns about how to apply the prerequisite element that sexual harassment is conduct ‘‘on the basis of sex.’’ The Department notes that the Title IX statute prohibits exclusion, denial of benefits, and subjection to discrimination ‘‘on the basis of sex,’’ and the Department cannot remove that qualifier in describing conduct prohibited under Title IX because Congress intended for Title IX to provide individuals with effective protections against discriminatory practices 638 ‘‘on the basis of sex.’’ 639 Discriminatory practices on other bases or protected characteristics are not part of Title IX’s non-discrimination mandate. To clarify that all the conduct defined as sexual harassment must be ‘‘on the basis of sex,’’ the final regulations revise § 106.30 by removing that phrase from the second prong, and inserting it into the introductory sentence that now begins ‘‘Sexual harassment means conduct on the basis of sex that satisfies one or more of the following’’ and then goes on to list the three prongs of the definition. The Department appreciates the opportunity to clarify that whether conduct is ‘‘on the basis of sex’’ does not require probing the subjective motive of the respondent (e.g., whether a respondent subjectively targeted a complainant because of the complainant’s or the respondent’s actual or perceived sex, as opposed to because of anger or romantic feelings). Where conduct is sexual in nature, or where conduct references one sex or another, that suffices to constitute conduct ‘‘on the basis of sex.’’ In Gebser and again in Davis, the Supreme Court accepted sexual harassment as a form of sex discrimination without inquiring into the subjective motive of the perpetrator (a teacher in Gebser and a student in Davis).640 The Department follows the 638 See Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979). 639 20 U.S.C. 1681(a). 640 See, e.g., Davis, 526 U.S. at 643 (assuming without analysis that sexual harassment constitutes sex discrimination, in stating that Gebser recognized that ‘‘whether viewed as discrimination or subjecting students to discrimination, Title IX unquestionably . . . placed on [the Board] the duty not to permit teacher-student harassment in its schools’’) (internal quotation marks and citation omitted); id. at 650 (‘‘having previously determined that ‘sexual harassment’ is ‘discrimination’ in the school context under Title IX, we are constrained to conclude that student-on-student sexual harassment, if sufficiently severe, can likewise rise to the level of discrimination actionable under the statute.’’); id. at 650–51 (equating physical threats directed at female students, not of a sexual nature, with sexual harassment and thereby sex E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Supreme Court’s approach in interpreting conduct ‘‘on the basis of sex’’ to include conduct of a sexual nature, or conduct referencing or aimed at a particular sex.641 The Department appreciates a commenter’s recommendation to seek input from stakeholders on what types of technical assistance would be most helpful to school districts in implementing the final regulations, and the Department will act on that recommendation by seeking such input from school districts and other recipients with respect to robust technical assistance to help recipients implement the § 106.30 definition and other provisions of the final regulations. Changes: We have revised § 106.30 defining ‘‘sexual harassment’’ by moving the phrase ‘‘on the basis of sex’’ from the second prong to the introductory sentence applying to all three prongs of the definition of sexual harassment, such that any of the conduct defined as ‘‘sexual harassment’’ must be ‘‘on the basis of sex.’’ Prong (1) Quid Pro Quo Comments: At least two commenters questioned whether the quid pro quo prong of the § 106.30 definition would apply only if the employee’s conditioning of an educational benefit was express (as opposed to implied, or reasonably perceived by the victim as a discrimination by stating: ‘‘The most obvious example of student-on-student sexual harassment . . . would thus involve the overt, physical deprivation of access to school resources. Consider, for example, a case in which male students physically threaten their female peers every day, successfully preventing the female students from using a particular school resource—an athletic field or a computer lab, for instance.’’). 641 This approach finds analytic support in works such as Kathleen M. Franke, What’s Wrong with Sexual Harassment?, 49 Stan. L. Rev. 691, 771–72 (1997), noting that ‘‘to date, the Supreme Court has been disinclined to do more than summarily conclude that sexual harassment is a form of sex discrimination’’ under Title VII and supporting an approach to ‘‘because of sex’’ that focuses on the conduct, not the perpetrator’s motive, but arguing that a theoretical justification for why sexual harassment constitutes sex discrimination that justifies such ‘‘evidentiary short cuts’’ should rely on recognition that sexual harassment is a ‘‘tool or instrument of gender regulation,’’ undertaken ‘‘in the service of hetero-patriarchal norms’’ that are ‘‘punitive in nature [and] produce gendered subjects: Feminine women as sex objects and masculine men as sex subjects’’ making sexual harassment a form of sex discrimination ‘‘precisely because its use and effect police hetero-patriarchal gender norms[.]’’ With a theoretical understanding of why sexual harassment might constitute sex discrimination as a backdrop, sex discrimination can be inferred in individual cases from the existence of sexual harassment, justifiably obviating a need to require ‘‘proof’’ that a particular plaintiff experienced sexual harassment on the basis of, or because of, the plaintiff’s and/or defendant’s sex, instead keeping the focus of each case on the misconduct itself. Id. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 threat to withhold a benefit), and if this prong required a subjective intent on the part of the recipient’s employee to deny the aid or benefit even if such intent was not communicated when the harassment occurred. One such commenter asserted that it is important for potential harassers and potential victims to understand what conduct is prohibited and thus the final regulations need to specify whether the quid pro quo nature of the harassment must be expressly communicated, or may be implied by the circumstances; this commenter stated that even courts do not require that a harasser explicitly articulate all the terms and conditions of the ‘‘bargain of exchange’’ being proposed in a quid pro quo harassment situation. At least one commenter asserted that the final regulations need to clarify that ‘‘consenting’’ to unwelcome sexual conduct, or avoiding potential adverse consequences without providing the requested sexual favors, does not mean that quid pro quo harassment did not occur. One commenter believed that quid pro quo harassment needs to also be severe, pervasive, and objectively offensive. A few commenters asserted that the quid pro quo prong of the sexual harassment definition should be expanded to include more persons than just ‘‘employees’’ of the recipient, because students may also hold positions of authority over other students (for example, team captains, club presidents, graduate assistants, resident advisors) and non-employees often have regular, recipient-approved contact with students and function as agents of the recipient (for example, people supervising internships or clinical experiences, employees of vendors or contracted service providers, volunteers who regularly participate in programs or activities, or board of trustees members who serve as unpaid volunteers). One such commenter argued that the quid pro quo prong is too narrow because all people (not just employees) providing any services as part of a recipient’s business should not condition services on sexual favors but also should not perpetrate any unwelcome sexual conduct or create a hostile environment. One commenter urged the Department to clarify that in the elementary and secondary school context, even a consensual, welcome sexual relationship between a student and teacher counts as sexual harassment because such a relationship is an abuse of the teacher’s power over the student; the commenter asserted that the teacher- PO 00000 Frm 00123 Fmt 4701 Sfmt 4700 30147 student relationship in Gebser may have been consensual but was still sexual harassment. Discussion: The Department appreciates the opportunity to clarify that the first prong of the § 106.30 definition, describing quid pro quo harassment, applies whether the ‘‘bargain’’ proposed by the recipient’s employee is communicated expressly or impliedly. Making educational benefits or opportunities contingent on a person’s participation in unwelcome conduct on the basis of sex strikes at the heart of Title IX’s mandate that education programs and activities remain free from sex discrimination; thus, the Department interprets the quid pro quo harassment description broadly to encompass situations where the quid pro quo nature of the incident is implied from the circumstances.642 For the same reason, the Department declines to require that quid pro quo harassment be severe and pervasive; abuse of authority in the form of even a single instance of quid pro quo harassment (where the conduct is not ‘‘pervasive’’) is inherently offensive and serious enough to jeopardize equal educational access,643 and although 642 As the Davis Court recognized, the relationship between a teacher and student makes it even more likely than with peer harassment that sexual harassment threatens the equal educational access guaranteed by Title IX. See Davis, 526 U.S. at 653 (‘‘The fact that it was a teacher who engaged in harassment in Franklin and Gebser is relevant. The relationship between the harasser and the victim necessarily affects the extent to which the misconduct can be said to breach Title IX’s guarantee of equal access to educational benefits and to have a systemic effect on a program or activity. Peer harassment, in particular, is less likely to satisfy these requirements than is teacher-student harassment.’’). 643 Similarly, where quid pro quo harassment may not be ‘‘severe’’ (for example, where the unwelcome sexual conduct consists of rubbing student’s back or other conduct that may not meet the ‘‘severity’’ element and would not constitute sexual assault but does consist of unwelcome conduct of a sexual nature), quid pro quo harassment is inherently serious enough to jeopardize equal educational access. Thus, quid pro quo harassment constitutes sexual harassment under § 106.30, without being evaluated for severity, pervasiveness, and objective offensiveness. Determining whether unwelcome sexual conduct is proposed, suggested, or directed at a complainant, by a recipient’s employee, as part of the employee ‘‘conditioning’’ an educational benefit on participation in the unwelcome conduct, does not require the employee to expressly tell the complainant that such a bargain is being proposed, and the age and position of the complainant is relevant to this determination. For example, elementary and secondary school students are generally expected to submit to the instructions and directions of teachers, such that if a teacher makes a student feel uncomfortable through sex-based or other sexual conduct (e.g., back rubs or touching students’ shoulders or thighs), it is likely that elementary and secondary school students will interpret that conduct as implying that the student E:\FR\FM\19MYR2.SGM Continued 19MYR2 30148 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations such harassment may involve verbal conduct there is no risk of chilling protected speech or academic freedom by broadly prohibiting quid pro quo harassment because such verbal conduct by definition is aimed at compelling a person to submit to unwelcome conduct as a condition of maintaining educational benefits.644 The Department notes that when a complainant acquiesces to unwelcome conduct in a quid pro quo context to avoid potential negative consequences, such ‘‘consent’’ does not necessarily mean that the sexual conduct was not ‘‘unwelcome’’ or that prohibited quid pro quo harassment did not occur.645 The Department believes that the quid pro quo harassment description is appropriately and sufficiently broad because it applies to all of a recipient’s employees, so that it includes situations where, for instance, a teacher, faculty member, or coach holds authority and control over a student’s success or failure in a class or extracurricular activity, and the Department declines to expand the description to include nonemployee students, volunteers, or others must submit to the conduct in order to maintain educational benefits (e.g., not getting in trouble, or continuing to please the teacher and earn good grades). This approach to sexual harassment by a recipient’s employees is in line with the Gebser/ Davis framework, where the Supreme Court noted that any sexual harassment by a teacher or school employee likely deprives a student of equal educational opportunities. See Davis, 526 U.S. at 653. In situations where an employee did not intend to commit quid pro quo harassment (for instance, where the teacher did not realize that what the teacher believed were friendly back rubs had sexual overtones and made students feel uncomfortable), the recipient may take the specific factual circumstances into account in deciding what remedies are appropriate for the complainants and what disciplinary sanctions are appropriate for the respondent. 644 Quid pro quo harassment should be interpreted broadly in part because although a teacher, coach, or other employee perpetrating a quid pro quo conditioning of benefits may use speech in proposing or inflicting such a Hobson’s choice on a student, that speech is incidental to the conduct (sex discriminatory abuse of authority) and a broad rule prohibiting such conduct raises no constitutional concerns. See, e.g., Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 207 (3d Cir. 2001) (‘‘government may constitutionally prohibit speech whose non-expressive qualities promote discrimination. For example, a supervisor’s statement ‘sleep with me or you’re fired’ may be proscribed not on the ground of any expressive idea that the statement communicates, but rather because it facilitates the threat of discriminatory conduct. Despite the purely verbal quality of such a threat, it surely is no more ‘speech’ for First Amendment purposes than the robber’s demand ‘your money or your life.’ ’’) (emphasis in original). 645 The approach in these final regulations to quid pro quo harassment is consistent with the 2001 Guidance at 5 (stating that quid pro quo harassment does not depend on whether ‘‘the student resists and suffers the threatened harm or submits and avoids the threatened harm’’ and that a prohibited quid pro quo bargain may occur ‘‘explicitly or implicitly’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 not deemed to be a recipient’s employee. The Department understands commenters’ concerns that nonemployees are sometimes in positions sanctioned by the recipient to exercise control over students (or employees) or to distribute benefits on behalf of the recipient. However, the Department is persuaded by the Supreme Court’s rationale in Gebser that Title IX and Title VII differ with respect to statutory reliance on agency principles.646 The Department believes that the § 106.30 quid pro quo harassment prong reasonably holds recipients responsible for the conduct of the recipient’s employees without expanding that liability to all agents of a recipient. However, the unwelcome conduct of a non-employee individual may constitute sexual harassment under the second or third prongs of the § 106.30 definition. In response to a commenter’s request that the final regulations state that sexual conduct between a teacher and student counts as sexual harassment even where the conduct is consensual and welcome from the student’s viewpoint, the third prong of the § 106.30 definition refers to ‘‘sexual assault’’ as described in the Clery Act, which in turn references sex offenses under the FBI’s Uniform Crime Reporting system, including statutory rape (that is, sex with a person who is under the statutory age of consent).647 With respect to students who are underage in their jurisdiction, a sexual relationship like that in Gebser between a teacher and student 648 would therefore count as sexual harassment under § 106.30, regardless of whether the victim nominally consented or welcomed the sexual activity. Furthermore, the Department interprets ‘‘unwelcome’’ as used in the first and second prongs of the § 106.30 definition of sexual harassment as a subjective element; thus, even if a complainant in a quid pro quo situation pretended to welcome the conduct (for instance, due to fear of negative consequences for objecting to the employee’s suggestions or advances in the moment), the 646 Gebser, 524 U.S. at 283 (‘‘Moreover, Meritor’s rationale for concluding that agency principles guide the liability inquiry under Title VII rests on an aspect of that statute not found in Title IX: Title VII, in which the prohibition against employment discrimination runs against ‘an employer,’ 42 U.S.C. 2000e–2(a), explicitly defines ‘employer’ to include ‘any agent,’ § 2000e(b). . . . Title IX contains no comparable reference to an educational institution’s ‘agents,’ and so does not expressly call for application of agency principles.’’). 647 20 U.S.C. 1092(f)(6)(A)(v). 648 Gebser, 524 U.S. at 278 (describing the relationship between the teacher and student in that case as involving sexual intercourse). PO 00000 Frm 00124 Fmt 4701 Sfmt 4700 complainant’s subjective statement that the complainant found the conduct to be unwelcome suffices to meet the ‘‘unwelcome’’ element. Changes: None. Prong (2) Davis Standard Davis Standard Generally Comments: Several commenters supported the second prong of the § 106.30 definition of sexual harassment, which is derived from the Supreme Court’s Davis opinion. One commenter stated that previous Department guidance changed the ‘‘and’’ to ‘‘or’’ in the ‘‘severe, pervasive, and objectively offensive’’ formulation and asserted that this resulted in overenforcement and sparked criticism from experts and law professors, including the Association of Title IX Administrators (ATIXA).649 This commenter argued that while victim advocates have argued that the Davis standard should apply only to private lawsuits against schools, it seems illogical to subject schools to two separate standards of responsibility concerning the same conduct, and the Davis standard does not let schools ‘‘off the hook.’’ On the contrary, many commenters opposed the second prong of the § 106.30 definition because it uses a standard designed to award money damages in private litigation, not administrative enforcement designed to promote equal educational opportunity. Some commenters argued that Gebser does not actually define sexual harassment and that Davis cited to the Supreme Court’s Meritor opinion indicating intent to utilize the same definition for sexual harassment under Title IX as the Court has used under Title VII. One commenter argued that the Davis Court inaccurately paraphrased the Meritor decision when stating ‘‘and’’ instead of ‘‘or’’ (in 649 Commenters cited: Eugene Volokh, Open Letter from 16 Penn Law Professors about Title IX and Sexual Assault Complaints, Volokh Conspiracy (Feb. 19, 2015), https://www.washingtonpost.com/ news/volokh-conspiracy/wp/2015/02/19/openletter-from-16-penn-law-school-professors-abouttitle-ix-and-sexual-assault-complaints/; Law Professors’ Open Letter Regarding Campus Free Speech and Sexual Assault (May 16, 2016), https:// www.lankford.senate.gov/imo/media/doc/LawProfessor-Open-Letter-May-16-2016.pdf; Jacob E. Gerson & Jeannie Suk Gersen, The Sex Bureaucracy, 104 Cal. L. Rev. 881 (2016); National Center for Higher Education Risk Management (NCHERM), The 2017 NCHERM Group Whitepaper: Due Process and the Sex Police 2, 15 (2017) (‘‘Some pockets in higher education have twisted the 2011 Office for Civil Rights (OCR) Dear Colleague Letter (DCL) and Title IX into a license to subvert due process and to become the sex police. . . . [T]his Whitepaper [and another ATIXA publication] push back strongly against both of those trends in terms of best practices.’’). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations ‘‘severe, pervasive, and objectively offensive’’), and asserted there is nothing in the Davis opinion that indicates that the Court intended to apply a higher standard for hostile environment harassment under Title IX than under Title VII. At least one commenter asserted that if students cannot receive different recourse from the Department than they can in Federal courts, then students will find civil litigation to be a better avenue which will lead to costly redirection of school resources toward defending Title IX litigation, a result exacerbated by the fact that the final regulations expressly prohibit awards of money damages in Department enforcement actions while money damages are available in private lawsuits. At least one commenter argued that with regard to student-on-student harassment, the Supreme Court in Davis did not modify Gebser by defining ‘‘sexual harassment’’ in some limited way; rather, Davis addressed the amount and type of sexual harassment (as that phrase is commonly understood) which, if engaged in by a student harasser, would constitute ‘‘discrimination’’ and thus violate Title IX. At least one commenter argued that the NPRM failed to recognize the difference between the anti-discrimination clause and the antiexclusion clause of the Title IX statute 650 by incorrectly assigning the purpose of the anti-discrimination clause to the anti-exclusion clause. One such commenter argued that the purpose of the anti-discrimination clause is to forbid gender-based adverse action under a covered program or activity, regardless of whether that action has any impact on the victim’s access to that program or activity while the purpose of the anti-exclusion clause is to protect access to a program or activity, regardless of whether the misconduct potentially affecting access occurs under, or outside, that program or activity. One commenter argued that the NPRM’s definition of hostile environment sexual harassment does not allow for the central method of analysis that both courts and existing Department guidance have instructed schools to use in evaluating sexual harassment complaints: Balancing relevant factors in recognition of the totality of the circumstances. The commenter asserted that this holistic approach is crucial for recipients to 650 Title IX, codified at 20 U.S.C. 1681(a): ‘‘No person in the United States shall, on the basis of sex, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]’’ VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 fulfill their Title IX responsibilities to prevent the discriminatory conduct’s occurrence and end it when it does occur. At least one commenter similarly argued that the ‘‘severe and pervasive’’ prong of the definition creates ambiguity from lack of guidance on how to apply the standard and without such guidance schools will screen out situations that should be addressed. A few commenters noted that the second prong of the § 106.30 definition appropriately requires actionable harassment to be severe, pervasive, and objectively offensive yet leaves recipients flexibility to address misconduct that does not meet that standard through codes of conduct outside the Title IX context. Discussion: The Department appreciates commenters’ support for the Davis definition of actionable sexual harassment embodied in the second prong of the § 106.30 definition. The Department agrees that adopting the Davis standard for harassment that does not constitute quid pro quo harassment or a Clery Act/VAWA offense, included in § 106.30, appropriately holds recipients responsible for addressing serious, unwelcome sex-based conduct that deprives a person of equal access to education, while avoiding constitutional concerns raised by subjecting speech and expression to the chilling effect of prior restraints. The Department agrees that aligning the Title IX sexual harassment definition in administrative enforcement and private litigation contexts provides clear, consistent expectations for recipients without letting recipients ‘‘off the hook.’’ The Department chooses to adopt in these final regulations the Davis standard defining actionable sexual harassment, as one of three parts of a sexual harassment definition. This approach provides consistency with the Title IX rubric for judicial and administrative enforcement and gives a recipient flexibility and discretion to address sexual harassment while ensuring that complainants can rely on their school, college, or university to meaningfully respond to a sexual harassment incident. The Department understands the argument of many commenters that adoption of the Gebser/Davis framework is not legally required and therefore the Department should adopt a broader approach to administrative enforcement than that applied by the Supreme Court in private Title IX lawsuits. The Supreme Court did not restrict its Gebser/Davis approach to private lawsuits for money damages, and the Department believes that the Supreme Court’s framework provides the PO 00000 Frm 00125 Fmt 4701 Sfmt 4700 30149 appropriate starting point for administrative enforcement of Title IX, with adaptions of that framework to hold recipients responsible for more than what the Gebser/Davis framework alone would require.651 The Department disagrees with a commenter who asserted that the Davis Court mistakenly or inaccurately ‘‘paraphrased’’ the Meritor description of actionable workplace harassment; rather, the Department believes that the Davis Court intentionally and accurately acknowledged the ‘‘severe or pervasive’’ formulation in Meritor yet determined that the ‘‘severe and pervasive’’ standard was more appropriate in the educational context. The Department notes that the Davis Court repeated the ‘‘severe and pervasive’’ formulation five times 652 showing that the Court noted differences between an educational and workplace environment that warranted a different standard under Title IX than under Title VII.653 The Department disagrees with the commenter who asserted that the Department’s adoption of Davis standards will lead to increased litigation against recipients because students will see no difference between recourse from the Department and recourse available in private litigation. While one of the three prongs of the § 106.30 sexual harassment definition is adopted from Davis, the other two prongs differ from the Davis standard; moreover, the other parts of the Gebser/ Davis framework adopted by the Department in the final regulations adapt that framework in a way that broadens the scope of a complainant’s rights vis-a`-vis a recipient (for example, the actual knowledge condition in the final regulations is defined broadly to include notice to any Title IX Coordinator and any elementary or secondary school employee, in addition to officials with authority to take corrective action; the deliberate indifference standard expressly requires a recipient to offer supportive measures to a complainant and for a Title IX Coordinator to discuss supportive measures with a complainant, with or without the filing of a formal complaint and to explain to a complainant the process for filing a formal complaint). 651 For further discussion, see the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble. 652 Davis, 526 U.S. at 633, 650, 651, 652, 654. 653 Id. at 651 (‘‘Courts, moreover, must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults. . . . Indeed, at least early on, students are still learning how to interact appropriately with their peers.’’). E:\FR\FM\19MYR2.SGM 19MYR2 30150 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Therefore, while rooted in the Supreme Court’s framework, the final regulations appropriately impose requirements on recipients that benefit complainants, which Federal courts applying the Davis framework do not impose.654 We have also revised § 106.3(a) to remove reference to whether the Department will or will not seek money damages as part of remedial action required of a recipient for Title IX violations; for further discussion, see the ‘‘Section 106.3(a) Remedial Action’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. The Department agrees with a commenter’s characterization of Davis as not so much redefining sexual harassment as describing the amount and type of sexual harassment that constitutes sex discrimination under Title IX. Likewise, while the Department refers to a ‘‘definition’’ of sexual harassment in § 106.30, the Department notes that the provision describes what amount and type of sexual harassment is actionable under Title IX; that is, what conditions activate a recipient’s legal obligation to respond. The Department disagrees with commenters who argued that the Davis standard in the second prong of § 106.30 fails to recognize the difference between the anti-discrimination clause and the anti-exclusion clause of Title IX. In Davis, the Supreme Court acknowledged that Title IX contains three separate clauses (anti-exclusion, denial of benefits, anti-discrimination), yet with respect to actionable sexual harassment under Title IX the Davis Court repeatedly used the formulation of sexual harassment that is ‘‘severe, pervasive, and objectively offensive,’’ at one point seeming to equate it with the denial of benefits clause and at others seeming to equate it with the ‘‘subjected to discrimination’’ clause.655 Regardless 654 Consistent with constitutional due process and fundamental fairness, these final regulations also ensure that a recipient’s supportive response to a complainant treats respondents equitably by refraining from punishing or disciplining a respondent without following a grievance process that complies with § 106.45. § 106.44(a); § 106.45(b)(1)(i); § 106.30 (defining ‘‘supportive measures’’ as non-punitive, non-disciplinary, not unreasonably burdensome to the other party); see also the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. 655 526 U.S. at 650 (‘‘The statute’s other prohibitions, moreover, help give content to the term ‘discrimination’ in this context. Students are not only protected from discrimination, but also specifically shielded from being ‘excluded from participation in’ or ‘denied the benefits of’ any ‘education program or activity receiving Federal financial assistance.’ 20 U.S.C. 1681(a). The statute makes clear that, whatever else it prohibits, students must not be denied access to educational benefits and opportunities on the basis of gender. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 of which of the three Title IX statutory clauses the Davis Court attached to its sexual harassment standard, the Court emphasized several times that the harassment must ‘‘deprive the victims of access to the educational opportunities or benefits provided by the school’’ 656 or must have ‘‘effectively denied equal access to an institution’s resources and opportunities’’ 657 or ‘‘that it denies its victims the equal access to education that Title IX is designed to protect.’’ 658 The Supreme Court’s understanding of sexual harassment as prohibited conduct under Title IX requires sexual harassment to meet a seriousness standard involving denial of equal access to education, regardless of whether the sexual harassment is viewed as causing denial of benefits, exclusion from participation, or subjection to discrimination. The Department disagrees that the § 106.30 definition of sexual harassment precludes or disallows a totality of the circumstances analysis to evaluate whether alleged conduct does or does not meet the definition. The Davis Court noted that evaluation of whether conduct rises to actionable sexual harassment depends on a constellation of factors including the ages and numbers of parties involved,659 and nothing in the final regulations disallows or disapproves of that common sense approach to determinations of severity, pervasiveness, and objective offensiveness. To reinforce this, the final regulations include language in the second prong of the § 106.30 definition stating that the Davis elements are determined under a reasonable person standard. The Department does not believe that recipients will ‘‘screen out’’ situations that should be addressed due to lack of guidance on how to apply the ‘‘severe and pervasive’’ elements; the Department is confident that recipients’ desire to provide students with a safe, non-discriminatory learning environment will lead recipients to evaluate sexual harassment incidents using common sense and taking We thus conclude that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.’’); id. at 644–45 (holding that a recipient is liable where its ‘‘deliberate indifference ‘subjects’ its students to harassment—‘‘That is, the deliberate indifference must, at a minimum, ‘cause [students] to undergo’ harassment or ‘make them liable or vulnerable’ to it.’’) (internal citations omitted). 656 Id. at 650. 657 Id. at 651. 658 Id. at 652. 659 Id. at 651. PO 00000 Frm 00126 Fmt 4701 Sfmt 4700 circumstances into consideration, including the ages, disability status, positions of authority of involved parties, and other factors. The Department appreciates commenters who stated, accurately, that the final regulations leave recipients flexibility to address misconduct that does not meet the § 106.30 definition of sexual harassment, through a recipient’s own code of conduct that might impose behavioral expectations on students and faculty distinct from Title IX’s nondiscrimination mandate, and we have revised § 106.45(b)(3) to clarify that even when a recipient must dismiss a formal complaint because the alleged conduct does not meet the definition of sexual harassment in § 106.30, such dismissal is only for purposes of Title IX and does not preclude the recipient from responding to the allegations under the recipient’s own code of conduct. Changes: We have revised the § 106.30 definition of sexual harassment by specifying that the elements in the Davis standard (severe, pervasive, objectively offensive, and denial of equal access) are determined under a reasonable person standard. We have revised § 106.45(b)(3)(i) to clarify that dismissal of a formal complaint because the alleged conduct does not constitute sexual harassment as defined in § 106.30 is a dismissal for purposes of Title IX but does not preclude the recipient from responding to the allegations under the recipient’s own code of conduct. We have also revised § 106.3(a) to remove reference to whether the Department will or will not seek money damages as part of remedial action required of a recipient for Title IX violations. Comments: Many commenters argued that the definition for Title IX sexual harassment should be aligned with the definition for Title VII, under which employers are liable for harassment that is sufficiently severe or pervasive to alter the conditions of employment.660 Some commenters argued that under the proposed rules, schools would be held to a lower standard under Title IX to protect students (some of whom are minors) than the standard of protection for employees under Title VII. Some such commenters asserted that everyone 660 Commenters cited: Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986) (holding under Title VII ‘‘For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.’’) (internal quotation marks and citation omitted; brackets in original) (emphasis added); U.S. Equal Emp. Opportunity Comm’n, Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (Jun. 18, 1999). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations on campus benefits from a culture in which sexual assault and harassment are deterred as they would be in a work environment and that Title IX, which applies to students, must not be weaker than Title VII.661 Several commenters argued that the Title VII standard protects against visual and graphic displays, slurs, comments, and an array of other activities that are severe or pervasive on the basis of sex, while the NPRM would deny students the same protections by requiring conduct be both severe and pervasive. Other commenters argued that college students must be able to succeed in college without being told that sexual assault and harassment is just something they must endure so they can finally get jobs at companies that do protect them from assault and harassment. Some commenters further argued that colleges and universities do a severe disservice to would-be harassers and assaulters by creating an environment where, unlike their future work environments, harassment and assault are tolerated. A few commenters asserted that because students can simultaneously be both students and employees it is necessary for the prohibited conduct to be the same under both Title VII and Title IX. Many commenters asserted that the hostile environment standard expressed in the 2001 Guidance or the withdrawn 2011 Dear Colleague Letter should be adopted in the final regulations, such that sexual harassment is ‘‘unwelcome conduct of a sexual nature’’ and such harassment is actionable when the conduct is ‘‘sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s programs.’’ Some commenters asserted that the ‘‘looser’’ definition from Department guidance provides greater protection for victims compared to the subjectivity and gray areas created by ill-fitting terminology used in the § 106.30 definition. Many commenters argued that ‘‘unwelcome conduct of a sexual nature’’ is a simple definition of harassment that avoids the self-doubt and discouragement victims may feel if victims are required under the proposed rules to wonder if the harassment they experience fits the § 106.30 definition. Some commenters argued that the § 106.30 definition makes it too easy to dismiss cases as not severe enough when any case of unwelcome sexual conduct should be 661 Commenters cited: Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) for the proposition that if an employer is aware of and allows the continuation of sexual harassment creating a hostile work environment, it is a violation of Title VII. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 clearly prohibited out of common sense and fairness. Some commenters asserted that the Department’s guidance definition is more in line with the reality of the type of misconduct that occurs most often. Other commenters pointed to the ‘‘Factors Used to Evaluate Hostile Environment Sexual Harassment’’ section of the 2001 Guidance 662 outlining a variety of factors used to determine if a hostile environment has been created and argued that schools should continue to use these factors to evaluate conduct in order to draw common sense conclusions about what conduct is actionable. Discussion: The Department acknowledges, as has the Supreme Court, that both Title VII and Title IX prohibit sex discrimination. Significant differences in these statutes, however, lead to different standards for actionable harassment in the workplace, and in schools, colleges, and universities. The Department disagrees with commenters who asserted that an identical standard for prohibited conduct in the workplace and in an educational environment is the appropriate outcome. In the elementary and secondary school context, students and recipients benefit from an approach to non-discrimination law that distinguishes between school and workplace settings.663 In the higher education context, as some commenters noted, students and faculty must be able to discuss sexual issues even if that offends some people who hear the discussion.664 Similarly, as a commenter stated, the Supreme Court rejected the idea that ‘‘First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ ’’ 665 Thus, even 662 Commenters cited: 2001 Guidance at 5–7 (listing factors including: The degree to which the conduct affected one or more students’ education; the type, frequency, and duration of the conduct; the identity of the relationship between the alleged harasser and the subject or subjects of the harassment; the number of individuals involved; the age and sex of the alleged harasser and the subject or subjects of the harassment; the size of the school, location of the incidents, and context in which they occurred; other incidents at the school; and incidents of gender-based, but nonsexual harassment). 663 See Davis, 526 U.S. at 650 (‘‘Courts, moreover, must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults. . . . Indeed, at least early on, students are still learning how to interact appropriately with their peers.’’). 664 See Snyder v. Phelps, 562 U.S. 443 (2011). 665 Healy v. James, 408 U.S. 169, 180 (1972) (internal citation omitted). PO 00000 Frm 00127 Fmt 4701 Sfmt 4700 30151 vulgar or indecent college speech is protected.666 The Davis standard ensures that speech and expressive conduct is not peremptorily chilled or restricted, yet may be punishable when the speech becomes serious enough to lose protected status under the First Amendment.667 The rationale for preventing a hostile workplace environment free from any severe or pervasive sexual harassment that alters conditions of employment does not raise the foregoing concerns (i.e., allowing for the social and developmental growth of young students learning how to interact with peers in the elementary and secondary school context; fostering robust exchange of speech, ideas, and beliefs in a college setting). Thus, the Department does not believe that aligning the definitions of sexual harassment under Title VII and Title IX furthers the purpose of Title IX or benefits students and employees participating in education programs or activities.668 The Davis standard embodied in the second prong of the § 106.30 definition differs from the third prong prohibiting sexual assault (and in the final regulations, dating violence, domestic violence, and stalking) because the latter conduct is not required to be evaluated for severity, pervasiveness, offensiveness, or causing a denial of equal access; rather, the latter conduct is assumed to deny equal access to education and its prohibition raises no constitutional concerns. In this manner, the final regulations obligate recipients to respond to single instances of sexual assault and sex-related violence more broadly than employers’ response obligations under Title VII, where even physical conduct must be severe or pervasive and alter the conditions of 666 Papish v. Bd. of Curators, 410 U.S. 667 (1973). Department notes that requiring severity, pervasiveness, objective offensiveness, and resulting denial of equal access to education for a victim, matches the seriousness of conduct and consequences of other types of speech unprotected by the First Amendment, such as fighting words, threats, and defamation. 668 See Azhar Majeed, The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights, 35 Journal of Coll. & Univ. L. 385, 449 (2009) (arguing that restrictions on workplace speech ‘‘ultimately do not take away from the workplace’s essential functions—to achieve the desired results, make the client happy, and get the job done’’ and free expression in the workplace ‘‘is typically not necessary for that purpose’’ such that workplaces are often ‘‘highly regulated environments’’ while ‘‘[o]n the other hand, freedom of speech and unfettered discussion are so essential to a college or university that compromising them fundamentally alters the campus environment to the detriment of everyone in the community’’ such that free speech and academic freedom are necessary preconditions to a university’s success.). 667 The E:\FR\FM\19MYR2.SGM 19MYR2 30152 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations employment, to be actionable.669 The Department therefore disagrees that the final regulations provide students less protection against sexual assault than employees receive in a workplace, or that sexual assault is tolerated to a greater extent under these Title IX regulations than under Title VII. For reasons discussed above and in the ‘‘Adoption and Adaption of the Supreme Court Framework to Address Sexual Harassment’’ section of this preamble, the Department believes that the Davis definition in § 106.30 provides a definition for non-quid pro quo, nonClery Act/VAWA offense sexual harassment better aligned with the purpose of Title IX than the definition of hostile environment harassment in the 2001 Guidance or the withdrawn 2011 Dear Colleague Letter. The Davis Court carefully crafted its formulation of actionable sexual harassment under Title IX for private lawsuits under Title IX, and the Department is persuaded by the Supreme Court’s reasoning that administrative enforcement of Title IX is similarly best served by requiring a recipient to respond to sexual harassment that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education. The Department believes that rooting a definition of sexual harassment in the Supreme Court’s interpretation of Title IX provides more clarity without unnecessarily chilling speech and expressive conduct; these advantages are lacking in the looser definitions used in Department guidance. The Davis definition in § 106.30 utilizes the phrase unwelcome conduct on the basis of sex, which is broader than the ‘‘unwelcome conduct of a sexual nature’’ phrase used in Department guidance.670 The other 669 E.g., Meritor, 477 U.S. at 67 (‘‘not all workplace conduct that may be described as harassment affects a term, condition, or privilege of employment within the meaning of Title VII’’) (internal quotation marks and citation omitted); Brooks v. City of San Mateo, 229 F.3d 917, 927 (9th Cir. 2000) (where the plaintiff alleged a sexual assault in the form of fondling plaintiff’s breast: ‘‘The harassment here was an entirely isolated incident. It had no precursors, and it was never repeated. In no sense can it be said that the city imposed upon Brooks the onerous terms of employment for which Title VII offers a remedy.’’). Under the final regulations, a single instance of sexual assault (which includes fondling) requires a recipient’s prompt response, including offering the complainant supportive measures and informing the complainant of the option of filing a formal complaint. § 106.30 (defining ‘‘sexual harassment’’ to include ‘‘sexual assault’’); § 106.44(a). 670 As noted by some commenters, sex-based harassment includes unwelcome conduct of a sexual nature but also includes unwelcome conduct devoid of sexual content that targets a particular sex. The final regulations use the phrase ‘‘sexual harassment’’ to encompass both unwelcome conduct of a sexual nature, and other forms of VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 elements in § 106.30 (severe, pervasive, and objectively offensive) provide a standard of evaluation more precise than the ‘‘sufficiently serious’’ description in Department guidance, yet serve a similar purpose—ensuring that conduct addressed as a Title IX civil rights issue represents serious conduct unprotected by the First Amendment or principles of free speech and academic freedom. As discussed further below, the ‘‘effectively denies a person equal access’’ element in § 106.30 has the advantage of being adopted from the Supreme Court’s interpretation of Title IX, yet does not act as a more stringent element than the ‘‘interferes with or limits a student’s ability to participate in or benefit from the school’s programs’’ language found in Department guidance. The Department does not believe that recipients will err on the side of ignoring reports of conduct that might be considered severe and pervasive, and believes that a prohibition on any unwelcome sexual conduct would sweep up speech and expression protected by the First Amendment, and require schools to intervene in situations that do not present a threat to equal educational access. Because the § 106.30 definition provides precise standards for evaluating actionable harassment focused on whether sexual harassment has deprived a person of equal educational access, the Department believes it is unnecessary to list the factors from the 2001 Guidance that purport to evaluate whether a hostile environment has been created. Changes: None. Comments: Many commenters believed that the second prong of the § 106.30 definition means that rape and sexual assault incidents will be scrutinized for severity and set a ‘‘pain scale’’ for sexual assault such that only severe sexual assault will be recognized under Title IX, or that a definition that requires a school to intervene only if sexual violence is ‘‘severe, pervasive, and objectively offensive’’ means that someone would need to be repeatedly, violently raped before the school would act to support the survivor. Many commenters criticized the second prong of the § 106.30 definition by asserting that, under that standard, only the most severe harassment situations will be investigated, which will reduce and chill reporting of sexual harassment when sexual harassment is already underreported. Many such commenters argued that victims will be afraid to report because the school will unwelcome conduct ‘‘on the basis of sex.’’ § 106.30 (defining ‘‘sexual harassment’’). PO 00000 Frm 00128 Fmt 4701 Sfmt 4700 scrutinize whether the harassment suffered was ‘‘bad enough’’ and that instead the Department needs to err on the side of caution by including more, not less, conduct as reportable harassment. Many commenters similarly argued that many victims are already unsure of whether their experience qualifies as serious enough to report and therefore narrowing the definition will only discourage victims from reporting unwanted sexual conduct. Many commenters argued that a broad definition of sexual harassment is needed because research shows that students are unlikely to report when their experience does not match common beliefs about what rape is, and because even ‘‘less severe’’ forms of harassment may also lead to negative outcomes and increase a victim’s risk of further victimization. Similarly, some commenters noted that research shows that victims already minimize their experiences 671 and knowing that school administrators will be judging their report for whether it is really serious, really pervasive, and really objectively offensive, will result in more victims feeling dissuaded from reporting due to uncertainty about whether their report will meet the definition or not. Several commenters argued that the Federal government should stand by a zero-tolerance policy against sexual harassment, and that applying a narrow definition means that some forms of harassment are acceptable, contrary to Title IX’s bar on sex discrimination. Several commenters argued that the § 106.30 definition will allow abusers to do everything just short of the narrowed standard while keeping their victims in a hostile environment, further silencing victims. A few commenters stated that if a student believes conduct ‘‘makes me feel uncomfortable,’’ that should be sufficient to require the school to respond. At least one commenter suggested that the final regulations provide guidance on what misconduct is actionable by using behavioral measures such as the Sexual 671 Commenters cited: The Association of American Universities, Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct iv (Westat 2015) (‘‘More than 50 percent of the victims of even the most serious incidents (e.g., forced penetration) say they do not report the event because they do not consider it ‘serious enough.’ ’’). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Experiences Survey 672 or the Sexual Experiences Questionnaire.673 At least one commenter argued that the language of offensiveness and severity clouds the necessary understanding of unequal power relations and negates a culture of consent. Several commenters asserted that a definition of sexual harassment that holds up only the dramatic and extreme as worthy of investigation would do little to change rape culture. Many commenters argued that while individual acts are rarely pervasive, individual acts across a society can result in pervasiveness throughout society so that what seem like one-off or minor incidents, or ‘‘normal’’ sexual gestures and conventions, actually do create a pervasive rape culture because they are rooted in patriarchy (for example, a culture that accepts statements like ‘‘these women come to parties to get laid’’), misunderstanding or ignorance of consent (for example, ‘‘she didn’t say no’’ despite several cues of discomfort and unwillingness), and lack of support from authority figures (for example, reactions from school personnel like ‘‘boys will be boys,’’ or ‘‘this is just college campus culture’’). Some commenters argued that to achieve a drop in cases of sexual misconduct, even seemingly minor incidents that make women feel threatened need to be taken seriously. Similarly, a few commenters argued that the threat of potential violence against women permeates American society and interferes with educational equity. At least one commenter argued that young women already are affected in many ways by the constant presence of potential violence, such that women feel that they cannot be alone with another student for study group purposes, with a teaching assistant to get extra help, or with a professor during office hours. This commenter further stated that young women already do not feel safe attending an academic function if it means walking to her car in the dark, or collaborating online for fear of enduring cyber harassment. A few commenters argued that a narrow definition of harassment ignores the scope of gender-based violence in our society and does nothing to address patterns of harassment as opposed to 672 Commenters cited: Mary Koss & Cheryl J. Oros, Sexual Experiences Survey: A research instrument investigating sexual aggression and victimization, 50 Journal of Consulting & Clinical Psychol. 3 (1982). 673 Commenters cited: Louise Fitzgerald et al., Measuring sexual harassment: Theoretical and psychometric advances, 17 Basic & Applied Social Psychol. 4 (1995). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 just an individual case that moves through a formal process. A few commenters asserted by adding the ‘‘and’’ between ‘‘severe, pervasive and objectively offensive’’ survivors will be forced to quantify their suffering to fit into an imaginary scale determined according to a pass or fail rubric and artificially create categories of legitimate and illegitimate misconduct, when misconduct that is either severe or pervasive or objectively offensive should be more than enough to warrant stopping the misconduct. Many commenters opined that the § 106.30 definition sets an arbitrary and unnecessarily high threshold for when conduct would even constitute harassment. Many commenters viewed the § 106.30 definition as raising the burden of proof on victims to an unnecessary degree, making their reporting process more strenuous and exhausting, and requiring survivors to prove their abuse is worthy of attention. Other commenters noted that the burden is on recipients to show the severity of the reported conduct yet asserted that survivors will still feel pressured to present their complaint in a certain way in order to be perceived as credible enough. A few commenters asserted that this raises concerns especially for people with disabilities, who may react to and communicate about trauma differently. At least one commenter stated that to the extent that the § 106.30 definition is in response to the perception that students and Title IX Coordinators have been pursuing a lot of formal complaints over low-level harassment, such a perception is inaccurate. Many commenters argued that what is severe, pervasive, and objectively offensive leaves too much room for interpretation and will be subject to the biases of Title IX Coordinators and other school administrators. Another commenter expressed concern that schools would have too much discretion to decide whether conduct was severe, pervasive, and offensive and this will lead to arbitrary decisions to turn away reporting parties. Several commenters asserted that permitting administrators to judge the severity, pervasiveness, and offensiveness of reported conduct will foster a culture of institutional betrayal because some institutions will choose to investigate misconduct while others will not. A few commenters asserted that courts have found some unwanted sexual behavior (for example, a supervisor forcibly kissing an employee) is not severe and pervasive even though such behavior may constitute criminal assault or battery under State laws and that a definition of sexual harassment PO 00000 Frm 00129 Fmt 4701 Sfmt 4700 30153 must at least cover misconduct that would be considered criminal. Several commenters argued that a narrow definition would contribute to the overall effect of the proposed rules to eliminate most sexual harassment from coverage under Title IX, to the point of absurdity. Several commenters asserted that research shows that narrow definitions of sexual assault indicate that reports will decrease while underlying violence does not decrease.674 At least one commenter argued that the proposed rules seek to use a single definition of sexual harassment in all settings, from prekindergarten all the way up to graduate school, and this lack of a nuanced approach fails to take into account the vast developmental differences between children, young adults, and college and graduate students. One commenter stated that especially for community college students, whose connections to a physical campus and its resources can be limited, a narrower definition of sexual harassment with ‘‘severe and pervasive’’ rather than ‘‘severe or pervasive’’ could make it harder for reporting parties to prove their victimization. One commenter asserted that conduct that may not be considered severe in an isolated instance can qualify as severe when that conduct is pervasive, because ‘‘severe’’ and ‘‘pervasive’’ should not always entail two separate inquiries. One commenter suggested that the second prong of § 106.30 be changed to mirror the Title IX statute, by using the phrase ‘‘causes a person to be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity.’’ Discussion: The Department appreciates the opportunity to clarify that sexual assault (which includes rape) is referenced in the third prong of the § 106.30 definition of ‘‘sexual harassment,’’ while the Davis standard (with the elements of severe, pervasive, and objectively offensive) is the second prong. This means that any report of sexual assault (including rape) is not subject to the Davis elements of whether the incident was ‘‘severe, pervasive, and objectively offensive.’’ Thus, contrary to commenters’ concerns, the final regulations do not require rape or sexual assault incidents to be ‘‘scrutinized for severity,’’ rated on a pain scale, or leave students to be repeatedly or violently 674 Commenters cited: Mary P. Koss, The Scope of Rape: Incidence and Prevalence of Sexual Aggression and Victimization in a National Sample of Higher Education Students, 55 Journal of Consulting & Clinical Psychol. 2 (1987). E:\FR\FM\19MYR2.SGM 19MYR2 30154 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations raped before a recipient must intervene. The Department intentionally did not want to leave students (or employees) wondering if a single act of sexual assault might not meet the Davis standard, and therefore included sexual assault (and, in the final regulations, dating violence, domestic violence, and stalking) as a stand-alone type of sexual harassment that does not need to demonstrate severity, pervasiveness, objective offensiveness, or denial of equal access to education, because denial of equal access is assumed. Complainants can feel confident turning to their school, college, or university to report and receive supportive measures in the wake of a sexual assault, without wondering whether sexual assault is ‘‘bad enough’’ to report. The Department understands that research shows that rape victims often do not report due to misconceptions about what rape is (e.g., a misconception that rape must involve violence inflicted by a stranger), and that rape victims may minimize their own experience and not report sexual assault, for a number of reasons.675 The definition of sexual assault referenced in § 106.30 broadly defines sexual assault to include all forcible and nonforcible sex offenses described in the FBI’s Uniform Crime Reporting system. Those offenses do not require an element of physical force or violence, but rather turn on lack of consent of the victim. The Department believes that these definitions form a sufficiently broad definition of sexual assault that reflects the range of sexually violative experiences that traumatize victims and deny equal access to education. The Department believes that by utilizing a broad definition of sexual assault, these final regulations will contribute to greater understanding on the part of victims and perpetrators as to the type of conduct that constitutes sexual assault. The FBI’s Uniform Crime Reporting system similarly does not exclude from sexual assault perpetration by a person known to the victim (whether as an acquaintance, romantic date, or intimate partner relationship), and the final regulations’ express inclusion of dating violence and domestic violence reinforces the reality that sex-based violence is often perpetrated by persons known to the victim rather than by strangers. As to unwelcome conduct that is not quid pro quo harassment, and is not a 675 The Association of American Universities, Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct iv (Westat 2015) (‘‘More than 50 percent of the victims of even the most serious incidents (e.g., forced penetration) say they do not report the event because they do not consider it ‘‘serious enough.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Clery Act/VAWA offense included in § 106.30, the Davis standard embodied in the second prong of the § 106.30 definition applies. The Department understands commenters’ concerns that this means that only ‘‘the most severe’’ harassment situations will be investigated and that complainants will feel deterred from reporting non-sexual assault harassment due to wondering if the harassment is ‘‘bad enough’’ to be covered under Title IX. The Department understands that research shows that even ‘‘less severe’’ forms of sexual harassment may cause negative outcomes for those who experience it. The Department believes, however, that severity and pervasiveness are needed elements to ensure that Title IX’s nondiscrimination mandate does not punish verbal conduct in a manner that chills and restricts speech and academic freedom, and that recipients are not held responsible for controlling every stray, offensive remark that passes between members of the recipient’s community. The Department does not believe that evaluating verbal harassment situations for severity, pervasiveness, and objective offensiveness will chill reporting of unwelcome conduct, because recipients retain discretion to respond to reported situations not covered under Title IX. Thus, recipients may encourage students (and employees) to report any unwanted conduct and determine whether a recipient must respond under Title IX, or chooses to respond under a non-Title IX policy. The Department believes that the Supreme Court’s Gebser and Davis opinions provide the appropriate principles to guide the Department with respect to appropriate interpretation and enforcement of Title IX as a non-sex discrimination statute. Title IX is not an anti-sexual harassment statute; Title IX prohibits sex discrimination in education programs or activities. The Supreme Court has held that sexual harassment may constitute sex discrimination under Title IX, but only when the sexual harassment is so severe, pervasive, and objectively offensive that it effectively denies a person’s equal access to education. Title IX does not represent a ‘‘zero tolerance’’ policy banning sexual harassment as such, but does exist to provide effective protections to individuals against discriminatory practices, within the parameters set forth under the Title IX statute (20 U.S.C. 1681 et seq.) and Supreme Court case law. While the Supreme Court interpreted the level of harassment differently under Title VII than under Title IX, neither Federal PO 00000 Frm 00130 Fmt 4701 Sfmt 4700 non-sex discrimination civil rights law represents a ‘‘zero-tolerance’’ policy banning all sexual harassment.676 Rather, interpretations of both Title VII and Title IX focus on sexual harassment that constitutes sex discrimination interfering with equal participation in a workplace or educational environment, respectively. Contrary to the concerns of commenters, the fact that not every instance of sexual harassment violates Title VII or Title IX does not mean that sexual harassment not covered under one of those laws is ‘‘acceptable’’ or encourages perpetration of sexual harassment.677 The Department does not believe that parameters around what constitutes actionable sexual harassment under a Federal civil rights statute creates an environment where abusers ‘‘do everything just short of the narrowed standard’’ to torment and silence victims. A course of unwelcome conduct directed at a victim to keep the victim fearful or silenced likely crosses over into ‘‘severe, pervasive, and objectively offensive’’ conduct actionable under Title IX. Whether or not misconduct is actionable under Title IX, it may be actionable under another part of a recipient’s code of conduct (e.g., anti-bullying). These final regulations only prescribe a recipient’s mandatory response to conduct that 676 E.g., Chesier v. On Q Financial Inc., 382 F. Supp. 3d 918, 925–26 (D. Ariz. 2019) (reviewing Title VII cases involving single instances of sexual harassment determined not to be sufficiently severe enough to affect a term of employment under Title VII) (‘‘not all workplace conduct that may be described as ‘harassment’ affects a term, condition, or privilege of employment within the meaning of Title VII. . . . For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.’’) (citing to Meritor, 477 U.S. at 67) (emphasis and brackets in original); Julie Davies, Assessing Institutional Responsibility for Sexual Harassment in Education, 77 Tulane L. Rev. 387, 398, 407 (2002) (‘‘Although the Court adopted different standards for institutional liability under Titles VII and IX, several themes serve as leitmotifs, running through the cases regardless of the technical differences. Neither Title VII nor Title IX is construed as a federal civility statute; the Court does not want entities to be obliged to litigate cases where plaintiffs have been subjected to ‘minor’ annoyances and insults.’’) (internal citation omitted). 677 See, e.g., Brooks v. City of San Mateo, 229 F.3d 917, 927 (9th Cir. 2000) (‘‘Our holding in no way condones [the supervisor’s] actions. Quite the opposite: The conduct of which [the plaintiff] complains was highly reprehensible. But, while [the supervisor] clearly harassed [the plaintiff] as she tried to do her job, not all workplace conduct that may be described as harassment affects a term, condition, or privilege of employment within the meaning of Title VII. The harassment here was an entirely isolated incident. It had no precursors, and it was never repeated. In no sense can it be said that the city imposed upon [the plaintiff] the onerous terms of employment for which Title VII offers a remedy.’’) (internal quotation marks and citation omitted). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations does meet the § 106.30 definition of sexual harassment; these final regulations do not preclude a recipient from addressing other types of misconduct. For the same reasons that Title IX does not stand as a zero-tolerance ban on all sexual harassment, Title IX does not stand as a Federal civil rights law to prevent all conduct that ‘‘makes me feel uncomfortable.’’ The Supreme Court noted in Davis that school children regularly engage in ‘‘insults, banter, teasing, shoving, pushing, and genderspecific conduct that is upsetting to the students subjected to it’’ yet a school is liable under Title IX for responding to such behavior only when the conduct is ‘‘so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.’’ 678 Though not specifically in the Title IX context, the Supreme Court has noted that speech and expression do not lose First Amendment protections on college campuses, and in fact, colleges and universities represent environments where it is especially important to encourage free exchange of ideas, viewpoints, opinions, and beliefs.679 678 Davis, 526 U.S. at 650–51; see also Azhar Majeed, The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights, 35 Journal of Coll. & Univ. L. 385, 399 (2009) (‘‘misapplication of harassment law . . . has contributed to a sense among students that there is a general ‘right’ not to be offended’—a false notion that ill serves students as they transition from the relatively insulated college or university setting to the larger society. Colleges and universities too often address the problems of sexual and racial harassment by targeting any expression which may be perceived by another as offensive or undesirable.’’) (citing Alan Charles Kors & Harvey A. Silverglate, The Shadow University: The Betrayal of Liberty on America’s Campuses (Free Press 1998) (‘‘At almost every college and university, students deemed members of ‘historically oppressed groups’ . . . are informed during orientations that their campuses are teeming with illegal or intolerable violations of their ‘right’ not to be offended.’’)). 679 Healy v. James, 408 U.S. 169, 180–81 (1972) (‘‘At the outset we note that state colleges and universities are not enclaves immune from the sweep of the First Amendment. ‘It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Of course, as Mr. Justice Fortas made clear in Tinker, First Amendment rights must always be applied ‘in light of the special characteristics of the . . . environment in the particular case.’ Ibid. And, where state-operated educational institutions are involved, this Court has long recognized ‘the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.’ Id., at 507. Yet, the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘(t)he VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 The Department believes that the Davis formulation, applied to unwelcome conduct that is not quid pro quo harassment and not a Clery Act/VAWA offense included in § 106.30, appropriately safeguards free speech and academic freedom,680 while requiring recipients to respond even to verbal conduct so serious that it loses First Amendment protection and denies equal access to the recipient’s educational benefits. While the Department appreciates a commenter’s suggestion to describe prohibited conduct by references to vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ The college classroom with its surrounding environs is peculiarly the ‘marketplace of ideas,’ and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.’’) (internal citations omitted). 680 As noted in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, the Department is aware that Title IX applies to all recipients operating education programs or activities regardless of a recipient’s status as a public institution with obligations to students and employees under the U.S. Constitution or as a private institution not subject to the U.S. Constitution. However, the principles of free speech, and of academic freedom, are crucial in the context of both public and private institutions. E.g., Kelly Sarabynal, 39 Journal of L. & Educ. 145, 145, 181–82 (2010) (noting that ‘‘The vast majority of [public and private] universities in the United States promote themselves as institutions of free speech and thought, construing censorship as antipathetic to their search for knowledge’’) and observing that where public universities restrict speech (for example, through anti-harassment or anti-hate speech codes) the First Amendment ‘‘solves the conflict between a university’s policies promising free speech and its speech-restrictive policies by rendering the speech-restrictive policies unconstitutional’’ and arguing that as to private universities, First Amendment principles embodied in a private university’s policies should be enforced contractually against the university so that private liberal arts and research universities are held ‘‘to their official promises of free speech’’ which leaves private institutions control over changing their official promises of free speech if they so choose, for instance if the private institution expects students to ‘‘abide by the dictates of the university’s ideology’’). The Department is obligated to interpret and enforce Federal laws consistent with the U.S. Constitution. E.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. and Constr. Trades Council, 485 U.S. 568, 574–575 (1988) (refusing to give deference to an agency’s interpretation of a statute where the interpretation raised First Amendment concerns); 2001 Guidance at 22. While the Department has recognized the importance of responding to sexual harassment under Title IX while protecting free speech and academic freedom since 2001, as explained in the ‘‘Adoption and Adaption of the Supreme Court Framework to Address Sexual Harassment’’ section of this preamble, protection of free speech and academic freedom was weakened by the Department’s use of wording that differed from the Davis definition of what constitutes actionable sexual harassment under Title IX and for reasons discussed in this section of the preamble, these final regulations return to the Davis definition verbatim, while also protecting against even single instances of quid pro quo harassment and Clery/ VAWA offenses, which are not entitled to First Amendment protection. PO 00000 Frm 00131 Fmt 4701 Sfmt 4700 30155 terms used in the Sexual Experiences Survey or the Sexual Experiences Questionnaire,681 for the above reasons the Department believes that the better formulation of prohibited conduct under Title IX is captured in § 106.30, prohibiting conduct on the basis of sex that is either quid pro quo harassment, unwelcome conduct so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education, or sexual assault, dating violence, domestic violence, or stalking under the Clery Act and VAWA. The Department understands commenters’ concerns that the § 106.30 definition of sexual harassment, and the Davis standard in the second prong particularly, does not sufficiently acknowledge unequal power relations and societal factors that contribute to perpetuation of violence against women, and commenters’ arguments that in order to reduce the prevalence of sexual misconduct across society even minorseeming incidents should be taken seriously. The Department believes that the Supreme Court’s recognition of sexual harassment as a form of sex discrimination 682 represents an important acknowledgement that sexual harassment often is not a matter of private, individualized misbehavior but is representative of sex-based notions and attitudes that contribute to systemic sex discrimination. However, the Department heeds the Supreme Court’s interpretation of sexual harassment as sex discrimination under Title IX, premised on conditions that hold recipients liable for how to respond to sexual harassment. The § 106.30 definition of sexual harassment adopts the Supreme Court’s Davis definition, adapted under the Department’s administrative enforcement authority to provide broader protections for students (i.e., by ensuring that quid pro quo harassment and Clery Act/VAWA 681 Mary Koss & Cheryl J. Oros, Sexual Experiences Survey: A research instrument investigating sexual aggression and victimization, 50 Journal of Consulting & Clinical Psychol. 3 (1982) (discussing survey questions designed to assess experiences with sexual harassment consisting of a series of questions about whether a respondent has encountered specific examples of sexual behavior); Louise Fitzgerald et al., Measuring sexual harassment: Theoretical and psychometric advances, 17 Basic & Applied Social Psychol. 4 (1995). 682 E.g., Meritor, 477 U.S. at 64 (‘‘Without question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.’’); Gebser, 524 U.S. at 283 (reference in Franklin to Meritor ‘‘was made with regard to the general proposition that sexual harassment can constitute discrimination on the basis of sex under Title IX, . . . an issue not in dispute here.’’) (internal citations omitted). E:\FR\FM\19MYR2.SGM 19MYR2 30156 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations offenses included in § 106.30 count as sexual harassment without meeting the Davis standard). Similarly, the Department believes that by clearly defining sexual harassment to include sexual assault, dating violence, domestic violence, and stalking, affected parties will understand that no instance of sexual violence is tolerated under Title IX and may reduce the fear commenters described being felt by some young women participating in educational activities that involve proximity with fellow students or professors. The Department does not believe that the § 106.30 definition creates categories of ‘‘legitimate’’ sexual misconduct or makes victims prove that their abuse is worthy of attention. The three-pronged definition of sexual harassment in § 106.30 captures physical and verbal conduct serious enough to warrant the label ‘‘abuse,’’ and thereby assures complainants that sex-based abuse is worthy of attention and intervention by a complainant’s school, college, or university. The Department appreciates the opportunity to clarify that the burden of describing or proving elements of the § 106.30 definition does not fall on complainants; there is no magic language needed to ‘‘present’’ a report or formal complaint in a particular way to trigger a recipient’s response obligations. Rather, the burden is on recipients to evaluate reports of sexual harassment in a common sense manner with respect to whether the facts of an incident constitute one (or more) of the three types of misconduct described in § 106.30. This includes taking into account a complainant’s age, disability status, and other factors that may affect how an individual complainant describes or communicates about a situation involving unwelcome sex-based conduct. The Department disagrees with commenters’ contention that § 106.30 gives school officials too much discretion to decide whether conduct was severe, pervasive, and objectively offensive or that these elements will lead to arbitrary decisions to turn away reporting parties based on biases of school administrators, fostering a culture of institutional betrayal, or that the § 106.30 definition eliminates ‘‘most’’ sexual harassment from coverage under Title IX, or that this definition is problematic because not all unwanted sexual behavior is severe and pervasive. Elements of severity, pervasiveness, and objective offensiveness must be evaluated in light of the known circumstances and depend on the facts of each situation, but must be determined from the perspective of a VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 reasonable person standing in the shoes of the complainant. The final regulations revise the second prong of the § 106.30 definition to state that the Davis elements must be determined under a reasonable person standard. Title IX Coordinators are specifically required under the final regulations to serve impartially, without bias for or against complainants or respondents generally or for or against an individual complainant or respondent.683 A recipient that responds to a report of sexual harassment in a manner that is clearly unreasonable in light of the known circumstances violates the final regulations,684 incentivizing Title IX Coordinators and other recipient officials to carefully, thoughtfully, and reasonably evaluate each complainant’s report or formal complaint. The Department appreciates commenters’ contention that recipients’ Title IX offices have not been processing great quantities of ‘‘low-level’’ harassment cases; however, if that is accurate, then the § 106.30 definition simply will continue to ensure that sexual harassment is adequately addressed under Title IX, for the benefit of victims of sexual harassment. Far from excluding ‘‘most’’ sexual harassment from Title IX coverage, the definition of sexual harassment in § 106.30 requires recipients to respond to three separate broadly-defined categories of sexual harassment. While not all unwanted sexual conduct is both severe and pervasive, as explained above, the Supreme Court has long acknowledged that not all misconduct amounts to sex discrimination prohibited by Federal civil rights laws like Title VII and Title IX, even where the misconduct amounts to a criminal violation under State law.685 Where a Federal civil rights law does not find sexual harassment to also constitute prohibited sex discrimination, this does not mean the conduct is acceptable or does not constitute a different violation, such as assault or battery, under non-sex discrimination laws. The Department 683 Section 106.45(b)(1)(iii). 106.44(a). 685 See, e.g., Brooks v. City of San Mateo, 229 F.3d 917, 924, 927 (9th Cir. 2000) (Plaintiff alleged a workplace sexual assault in the form of a supervisor fondling plaintiff’s breast, which is ‘‘egregious’’ and the perpetrator ‘‘spent time in jail’’ for the assault, yet the Court held that ‘‘[t]he harassment here was an entirely isolated incident. It had no precursors, and it was never repeated. In no sense can it be said that the city imposed upon [the plaintiff] the onerous terms of employment for which Title VII offers a remedy.’’); see also Davis, 526 U.S. at 634 (noting that the peer harasser in that case was charged with, and pled guilty to, sexual battery, yet still evaluating the harassment by whether it amounted to severe, pervasive, objectively offensive conduct). 684 Section PO 00000 Frm 00132 Fmt 4701 Sfmt 4700 does not believe that the § 106.30 definition of sexual assault is a ‘‘narrow’’ definition, as it includes all forcible and nonforcible sex offenses described in the FBI’s Uniform Crime Reporting system and thus this definition will not discourage reporting of sexual assault. The Department disagrees that it is inappropriate to use a uniform definition of sexual harassment in elementary and secondary school and postsecondary institution contexts. No person, of any age or educational level, should endure quid pro quo harassment, severe, pervasive, objectively offensive unwelcome conduct, or a Clery Act/ VAWA offense included in § 106.30, without recourse from their school, college, or university. The § 106.30 definition applies equally in every educational setting, yet the definition may be applied in a common sense manner that takes into account the ages and developmental abilities of the involved parties. The Department disagrees with a commenter’s contention that community college students will find it more difficult to report sexual harassment because such students have less of a connection to a physical campus. Under § 106.8 of the final regulations, contact information for the Title IX Coordinator, including an office address, telephone number, and email address, must be posted on the recipient’s website, and that provision expressly states that any person may report sexual harassment by using the Title IX Coordinator’s contact information. We believe this will simplify the process for community college students, as well as other complainants, to make a report to the recipient’s Title IX Coordinator. The Department disagrees with a commenter’s assertion that pervasiveness necessarily transforms harassment into also being severe, because these elements are separate inquiries; however, the Department reiterates that a course of conduct reported as sexual harassment must be evaluated in the context of the particular factual circumstances, under a reasonable person standard, when determining whether the conduct is both severe and pervasive. The Department appreciates a commenter’s suggestion to revise the second prong of the § 106.30 definition by stating that severe, pervasive, objectively offensive conduct counts when it ‘‘causes a person to be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity’’ instead of ‘‘effectively denies a E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations person equal access to the recipient’s education program or activity’’ to more closely mirror the language in the Title IX statute. However, as discussed above, the Department notes that when considering sexual harassment as a form of sex discrimination under Title IX, the Supreme Court in Davis repeatedly used the ‘‘denial of equal access’’ phrase to describe when sexual harassment is actionable, implying that this is the equivalent of a violation of Title IX’s prohibition on exclusion from participation, denial of benefits, and/or subjection to discrimination.686 We believe this element as articulated by the Davis Court thus represents the full scope and intent of the Title IX statute. Changes: We have revised the § 106.30 definition of sexual harassment by specifying that the elements in the Davis definition of sexual harassment (severe, pervasive, objectively offensive, and denial of equal access) are determined under a reasonable person standard. Comments: Several commenters described State laws under which a recipient is required to respond to a broader range of misconduct than what meets the Davis standard, and stated that the NPRM places recipients in a ‘‘Catch-22’’ by requiring recipients to dismiss cases that do not meet the narrower § 106.30 definition; one such commenter urged the Department to either broaden the definition of sexual harassment or remove the mandatory dismissal provision in § 106.45(b)(3). A few commenters requested clarification on whether a school may choose to include a wider range of misconduct than conduct that meets this definition. 686 Davis, 526 U.S. at 650 (‘‘The statute’s other prohibitions, moreover, help give content to the term ‘discrimination’ in this context. Students are not only protected from discrimination, but also specifically shielded from being ‘excluded from participation in’ or ‘denied the benefits of’ any ‘education program or activity receiving Federal financial assistance.’ 20 U.S.C. 1681(a). The statute makes clear that, whatever else it prohibits, students must not be denied access to educational benefits and opportunities on the basis of gender. We thus conclude that funding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.’’); id. at 644–45 (holding that a recipient is liable where its ‘‘deliberate indifference ‘subjects’ its students to harassment—‘‘[t]hat is, the deliberate indifference must, at a minimum, ‘cause [students] to undergo’ harassment or ‘make them liable or vulnerable’ to it.’’); id. at 650–652 (expressing the denial of access element in different ways as ‘‘depriv[ing] the victims of access to the educational opportunities or benefits provided by the school,’’ ‘‘effectively den[ying] equal access to an institution’s resources and opportunities,’’ and ‘‘den[ying] its victims the equal access to education that Title IX is designed to protect.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Many commenters urged the Department not to prevent recipients from addressing misconduct that does not meet the § 106.30 definition because State laws and institutional policies often require recipients to respond. A few commenters asserted that even if the final regulations allow recipients to choose to address misconduct that does not meet the § 106.30 definition, this creates two different processes and standards (one for ‘‘Title IX sexual harassment’’ and one for other sexual misconduct) which will lead to confusion and inefficiency. At least one commenter stated that the Title IX equitable process should be used for all sexual misconduct violations such that the final regulations should allow recipients to use that process for Title IX, VAWA, Clery Act, and State law sex and gender offenses under a single campus policy and process. At least one commenter recommended that the Department clarify that the final regulations establish minimum Federal standards for responses to sex discrimination and that recipients retain discretion to exceed those minimum standards. Discussion: The Department is aware that various State laws define actionable sexual harassment differently than the § 106.30 definition, and that the NPRM’s mandatory dismissal provision created confusion among commenters as to whether the NPRM purported to forbid a recipient from addressing conduct that does not constitute sexual harassment under § 106.30. In response to commenters’ concerns, the final regulations revise § 106.45(b)(3)(i) 687 to clearly state that dismissal for Title IX purposes does not preclude action under another provision of the recipient’s code of conduct. Thus, if a recipient is required under State law or the recipient’s own policies to investigate sexual or other misconduct that does not meet the § 106.30 definition, the final regulations clarify that a recipient may do so. Similarly, if a recipient wishes to use a grievance process that complies with § 106.45 to resolve allegations of misconduct that do not constitute sexual harassment under § 106.30, nothing in the final 687 Section 106.45(b)(3)(i) (‘‘The recipient must investigate the allegations in a formal complaint. If the conduct alleged by the complainant would not constitute sexual harassment as defined in § 106.30 even if proved, did not occur in the recipient’s education program or activity, or did not occur against a person in the United States, then the recipient must dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under title IX or this part; such a dismissal does not preclude action under another provision of the recipient’s code of conduct.’’) (emphasis added). PO 00000 Frm 00133 Fmt 4701 Sfmt 4700 30157 regulations precludes a recipient from doing so. Alternatively, a recipient may respond to non-Title IX misconduct under disciplinary procedures that do not comply with § 106.45. The final regulations leave recipients flexibility in this regard, and prescribe a particular grievance process only where allegations concern sexual harassment covered by Title IX. The Department does not agree that this results in inefficiency or confusion, because so long as a recipient complies with these final regulations for Title IX purposes, a recipient retains discretion as to how to address non-Title IX misconduct. Because the final regulations extend the § 106.30 definition to include all four Clery Act/VAWA offenses (sexual assault, dating violence, domestic violence, stalking), the Title IX grievance process will apply to formal complaints alleging the Clery Act/ VAWA offenses included in § 106.30, and recipients may choose to use the same process for State-law offenses, too. The Department appreciates a commenter’s suggestion to clarify (and does so here) that the final regulations establish Federal standards for responding to sex discrimination in the form of sexual harassment, and recipients retain discretion to respond to more conduct than what these final regulations require. Changes: The final regulations revise § 106.45(b)(3)(i) to clearly state that dismissal for Title IX purposes does not preclude action under another provision of the recipient’s code of conduct. Comments: Many commenters opposed the second prong of the § 106.30 sexual harassment definition by giving examples of harassing conduct that might not be covered. One such commenter stated that the ‘‘severe and pervasive’’ standard will conflict with elementary and secondary school antibullying policies, asserting that, for example, a classmate repeatedly taunting a girl about her breasts may not be considered both severe and pervasive enough to fall under the proposed rules, whereas a similarly-described scenario was clearly covered under the 2001 Guidance (at p. 6). A few commenters raised examples such as snapping a girl’s bra, casual jokes and comments of a sexual nature, or unwelcome emails with sexual content, which commenters asserted can be ignored under § 106.30 because the unwanted behavior might be considered not severe even though it is pervasive, leaving victims in a state of anxiety and negatively impacting victims’ ability to access education. One commenter asserted that under § 106.30, a professor whispering sexual E:\FR\FM\19MYR2.SGM 19MYR2 30158 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations comments to a female student would be ‘‘severe’’ but since it happened once it would not be ‘‘pervasive’’ so even if the female student felt alarmed and uncomfortable and dropped that class, the recipient would not be obligated to respond. The same commenter asserted that the following example would not be sexual harassment under § 106.30 because the conduct would be pervasive but not severe: A graduate assistant emails an undergraduate student multiple times per week for two months, commenting each time in detail about what the student wears and how she looks, making the student feel uncomfortable about the unwanted attention to the point where she drops the class. One commenter described attending a holiday party for graduate students where a fellow student wore a shirt with the words ‘‘I’m just here for the gang bang’’ and while the offensive shirt did not prevent the commenter from continuing an education it made the commenter feel unsafe and showed how deep-seated toxic rape culture is on college campuses; the commenter contended that narrowing the definition of harassment will only perpetuate this culture. One commenter recounted the experience of a friend who was drugged at a dorm party; the commenter contended that because the boys who drugged the girl did not also rape her, the situation would not even be investigated under the new Title IX rules even though an incident of boys drugging a girl creates a dangerous, ongoing threat on campus. One commenter urged the Department to authorize recipients to create lists of situations that constitute per se harassment, for example where a recipient receives multiple reports of students having their towels tugged away while walking to the dorm bathrooms, or reports of students lifting the skirts or dresses of other students. The commenter asserted that creating lists of such per se violations will create more consistent application of the harassment definition within recipient communities and address problematic situations that occur frequently at some institutions. Discussion: In response to commenters who presented examples of misconduct that they believe may not be covered under the Davis standard in the second prong of the § 106.30 definition, the Department reiterates that whether or not an incident of unwanted sexbased conduct meets the Davis elements is a fact-based inquiry, dependent on the circumstances of the particular incident. However, the Department does VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 not agree with some commenters who speculated that certain examples would not meet the Davis standard, and encourages recipients to use common sense in evaluating conduct under a reasonable person standard, by taking into account the ages and abilities of the individuals involved in an incident or course of conduct. Furthermore, the Department reiterates that the Davis standard is only one of three categories of conduct on the basis of sex prohibited under § 106.30, and incidents that do not meet the Davis standard may therefore still constitute sexual harassment under § 106.30 (for example, as fondling, stalking, or quid pro quo harassment). The Department also reiterates that inappropriate or illegal behavior may be addressed by a recipient even if the conduct clearly does not meet the Davis standard or otherwise constitute sexual harassment under § 106.30, either under a recipient’s own code of conduct or under criminal laws in a recipient’s jurisdiction (e.g., with respect to a commenter’s example of drugging at a dorm party). The Department understands commenters’ concerns that anything less than the broadest possible definition of actionable harassment may result in some situations that make a person feel unsafe or uncomfortable without legal recourse under Title IX; however, for the reasons described above, the Department chooses to adopt the Supreme Court’s approach to interpreting Title IX, which requires schools to respond to sexual harassment that jeopardizes the equal access to education promised by Title IX. Whether or not a college student wearing a t-shirt with an offensive slogan constitutes sexual harassment under Title IX, other students negatively impacted by the t-shirt are free to opine that such expression is inappropriate, and recipients remain free to utilize institutional speech to promote their values about respectful expressive activity. The Department notes that nothing in the final regulations prevents a recipient from publishing a list of situations that a recipient has found to meet the § 106.30 definition of sexual harassment, to advise potential victims and potential perpetrators that particular conduct has been found to violate Title IX, or to create a similar list of situations that a recipient finds to be in violation of the recipient’s own code of conduct even if the conduct does not violate Title IX. Changes: None. Comments: At least one commenter urged the Department to expressly PO 00000 Frm 00134 Fmt 4701 Sfmt 4700 include verbal sexual coercion in the § 106.30 definition of sexual harassment, noting that studies indicate that college women are likely to experience verbal sexual coercion as a tactic of sexual assault on a continuum ranging from non-forceful verbal tactics to incapacitation to physical force, and that studies indicate that verbal sexual coercion is the most common sexual assault tactic.688 One commenter insisted that the second prong of the § 106.30 definition of sexual harassment is too broad and contended that the Department should adopt the minority view in the Davis case, or alternatively change the second prong to ‘‘unwelcome physical conduct on the basis of sex that is so severe, and objectively offensive’’ (eliminating the word pervasive because a single act of a physical nature could trigger the statute while excluding purely verbal conduct from the definition). At least one commenter suggested that the second prong should be subject to a general requirement of objective reasonableness; the commenter asserted that objective offensiveness is no substitute for requiring all the elements of the hostile environment claim be not only subjectively valid but also objectively reasonable. The commenter asserted that the stakes are high: Many complaints come to Title IX offices from students who sincerely believe that they have experienced sexual harassment, meeting any subjective test, but which cannot survive reasonableness scrutiny and thus objective reasonableness under all the circumstances is a necessary guard against arbitrary enforcement. At least one commenter stated that subjective factors must be taken into consideration to decide if conduct is severe and pervasive because how severe the experience is to a particular victim depends on factors such as the status of the offender, the power the offender holds over the victim’s life, the victim’s prior history of trauma, or whether the victim has a support system for dealing with the trauma. Discussion: The Department appreciates commenters’ concerns that verbal sexual coercion is the most common sexual assault tactic, but declines to list verbal coercion as an element of sexual harassment or sexual assault. As explained in the ‘‘Consent’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, the Department leaves flexibility to 688 Commenters cited: Brandie Pugh & Patricia Becker, Exploring Definitions and Prevalence of Verbal Sexual Coercion and its Relationship to Consent to Unwanted Sex: Implications for Affirmative Consent Standards on College Campuses, 8 Behavioral Sci. 8 (2018). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recipients to define consent as well as terms commonly used to describe the absence or negation of consent (e.g., incapacity, coercion, threat of force), in recognition that many recipients are under State laws requiring particular definitions of consent, and that other recipients desire flexibility to use definitions of consent and related terms that reflect the unique values of a recipient’s educational community. The Department disagrees with commenters who argued that the Davis standard is too broad and that the Department should adopt the dissenting viewpoint from the Davis decision. For reasons explained in the ‘‘Adoption and Adaption of the Supreme Court Framework to Address Sexual Harassment’’ section of this preamble, the Department believes that the Supreme Court appropriately described the conditions under which sexual harassment constitutes sex discrimination under Title IX, and the Department’s goal through these final regulations is to impose requirements for recipients to provide meaningful, supportive responses fair to all parties when allegations of sexual harassment are brought to a recipient’s attention. Similarly, the Department declines a commenter’s recommendation to restrict the Davis standard solely to ‘‘physical’’ conduct because the Supreme Court has acknowledged that not all speech is protected by the First Amendment, and that verbal harassment can constitute sex discrimination requiring a response when it is so severe, pervasive, and objectively offensive that it denies a person equal access to education. The Department is persuaded by commenters’ recommendation that the second prong of the § 106.30 definition must be applied under a general reasonableness standard. We have revised § 106.30 to state that sexual harassment includes ‘‘unwelcome conduct’’ on the basis of sex ‘‘determined by a reasonable person’’ to be so severe, pervasive, and objectively offensive that it effectively denies a person equal educational access. We interpret the Davis standard formulated in § 106.30 as subjective with respect to the unwelcomeness of the conduct (i.e., whether the complainant viewed the conduct as unwelcome), but as to elements of severity, pervasiveness, objective offensiveness, and denial of equal access, determinations are made by a reasonable person in the shoes of the complainant.689 The Department 689 See Davis, 526 U.S. at 653–54 (applying the severe, pervasive, objectively offensive, denial of access standard to the facts at issue under an objective) (‘‘Petitioner alleges that her daughter was VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 believes this approach appropriately safeguards against arbitrary application, while taking into account the unique circumstances of each sexual harassment allegation. Changes: We have revised the § 106.30 definition of sexual harassment by specifying that the elements in the Davis standard (severe, pervasive, objectively offensive, and denial of equal access) are determined under a reasonable person standard. Comments: Many commenters opposed the § 106.30 definition on the ground that a narrow definition fails to stop harassing behavior before it escalates into more serious violations. Some commenters urged the Department to consider statistics regarding violent offenders who could be identified by examining their history of harassment that escalated over time into violence. Other commenters emphasized that sexual harassment is often a first stop on a continuum of violence and schools have a unique opportunity and duty to intervene early. At least one commenter asserted that the definition should be more in line with academic definitions of sexual harassment.690 At least one commenter analogized to laws against drunk driving, asserting that such laws do not distinguish between instances where a driver is marginally above the legal intoxication limit from those where a driver is significantly above the limit; the commenter argued that just as all driving while intoxicated situations are dangerous, all harassment regardless of severity is dangerous. Another commenter likened the § 106.30 approach to choosing not to address a rodent infestation until the problem escalates and becomes costlier to redress. A few commenters argued that waiting until sexually predatory behavior becomes extremely serious risks women’s lives, pointing to instances where women reporting domestic violence have been turned away by police due to individual incidents seeming ‘‘non-severe’’ and the victim of repeated acts of sexual harassment by G.F. over a 5-month period, and there are allegations in support of the conclusion that G.F.’s misconduct was severe, pervasive, and objectively offensive. The harassment was not only verbal; it included numerous acts of objectively offensive touching, and, indeed, G.F. ultimately pleaded guilty to criminal sexual misconduct. . . . Further, petitioner contends that the harassment had a concrete, negative effect on her daughter’s ability to receive an education.’’). 690 Commenters cited: Handbook for Achieving Gender Equity Through Education 215–229 (Susan G. Klein et al. eds., 2d ed. 2007). PO 00000 Frm 00135 Fmt 4701 Sfmt 4700 30159 then been killed by their violent partners.691 Many commenters stated that a victim turned away while trying to report a less severe instance of harassment will be unlikely to try and report a second time when the harassing conduct has escalated into a more severe situation. Discussion: The Department understands commenters’ concerns that sometimes harassing behavior escalates into more serious harassment, up to and even including violence and homicide, and that commenters therefore advocate using a very broad definition of sexual harassment that captures even seemingly ‘‘low level’’ harassment. The Department is persuaded that every instance of dating violence, domestic violence, and stalking should be considered sexual harassment under Title IX and has therefore revised § 106.30 to include these offenses in addition to sexual assault. However, for the reasons described above, the Department chooses to follow the Supreme Court’s framework recognizing that Title IX is a non-sex discrimination statute and not a prohibition on all harassing conduct, and declines to define actionable sexual harassment as broadly as some academic researchers define harassment. The Department further believes that § 106.30 appropriately recognizes certain forms of harassment as per se sex discrimination (i.e., quid pro quo and Clery Act/VAWA offenses included in § 106.30), while adopting the Davis definition for other types of harassment such that free speech and academic freedom 692 are not chilled or curtailed 691 Commenter cited: Elizabeth Bruenig, What Do We Owe Her Now?, The Washington Post (Sept. 21, 2018); Lindsay Gibbs, College track star warned police about her ex-boyfriend 6 times in the 10 days before he killed her, ThinkProgress (Dec. 18, 2018), https://thinkprogress.org/mccluskey-university-ofutah-warned-police-about-ex-boyfriend-6-timesbc08aed0fad5/; Sirin Kale, Teen Killed By Abusive Ex Even After Reporting Him to Police Five Times, Vice (Jan. 15, 2019), https://broadly.vice.com/en_ us/article/59vnbx/teen-killed-by-abusive-ex-evenafter-reporting-him-to-police-five-times. 692 The Supreme Court has recognized academic freedom as protected under the First Amendment. See, e.g., Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 603 (1967) (‘‘Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. . . . The classroom is peculiarly the marketplace of ideas. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, (rather) than through any kind of authoritative selection.’’) (internal quotation marks and citations omitted). E:\FR\FM\19MYR2.SGM 19MYR2 30160 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations by an overly broad definition of sexual harassment.693 The Department believes that as a whole, the § 106.30 definition appropriately requires recipient intervention into situations that form a course of escalating conduct, without requiring recipients to intervene in situations that might—but have not yet—risen to a serious level. By adding dating violence, domestic violence, and stalking to the third prong of the § 106.30 definition, it is even more likely that conduct with potential to escalate into violence or even homicide will be reported and addressed before such escalation occurs. The Department contends that, similar to laws setting a legal limit over which a person’s blood alcohol level constitutes illegal driving while intoxicated,694 the § 106.30 definition as a whole sets a threshold over which a person’s unwelcome conduct constitutes sexual harassment. While some harassment does not meet the threshold, serious incidents that jeopardize equal educational access exceed the threshold and are actionable. In addition, the § 106.30 definition includes single instances of quid pro quo harassment and Clery Act/VAWA offenses, requiring recipients to address serious problems before such problems have repeated or multiplied and become more difficult to address. Similarly, the Department disagrees that § 106.30 makes complainants wait until sexually predatory behavior becomes extremely serious, because the definition as a whole captures serious conduct (not just ‘‘extremely’’ serious conduct) that Title IX prohibits. The Department understands commenters’ concerns that if a complainant reports a sexual 693 Eugene Volokh, How Harassment Law Restricts Free Speech, 47 Rutgers L. Rev. 563 (1995) (‘‘[T]he vagueness of harassment law means the law actually deters much more speech than might ultimately prove actionable.’’); Kingsley R. Browne, Title VII as Censorship: Hostile-Environment Harassment and the First Amendment, 52 Ohio St. L. J. 481, 483 (1991) (‘‘A broad definition of sexual and racial harassment necessarily delegates broad powers to courts to determine matters of taste and humor, and the vagueness of the definition of ‘harassment’ leaves those subject to regulation without clear notice of what is permitted and what is forbidden. The inescapable result is a substantial chilling effect on expression.’’). 694 While several States have zero-tolerance laws for driving while intoxicated that set illegal blood alcohol content levels at anything over 0.00, those zero-tolerance laws only apply to persons under the legal drinking age; for persons age 21 and older, all States have laws that set an illegal blood alcohol content level at 0.08—in other words, not all levels of intoxication are prohibited, but rather only blood alcohol content levels above a certain amount. See Michael Wechsler, DUI, DWI, and Zero Tolerance Laws by State, TheLaw.com, https:// www.thelaw.com/law/dui-dwi-and-zero-tolerancelaws-by-state.178/. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 harassment incident that does not meet the § 106.30 definition, that complainant may feel discouraged from reporting a second time if the sexual harassment escalates to meet the § 106.30 definition. However, complainants and recipients have long been familiar with the concept that sexual harassment must meet a certain threshold to be considered actionable under Federal non-discrimination laws.695 The final regulations follow the same approach, and the Department does not believe that having a threshold for when harassment is actionable will chill reporting. The Department also reiterates that recipients retain discretion to respond to misconduct not covered by Title IX. Changes: None. Comments: Several commenters argued that adopting a narrower definition of sexual harassment makes it easier for sexist, misogynistic, and homophobic microaggressions, including sexist hostility and crude behavior, to continue unchecked. Commenters argued that making the definition of sexual harassment less inclusive tacitly condones microaggressions, making campuses less safe and decreasing diversity because more students from underrepresented groups will perform worse in school or leave school entirely. A few commenters recommended that the definition include microaggressions. Some commenters asserted that microaggressions can cause the same negative impact on victims as more severe harassment does.696 Other commenters asserted that using a ‘‘severe, pervasive, and objectively offensive’’ standard fails to consider personal, cultural, and religious differences in determining what constitutes sexual harassment, ignoring the fact that especially for individuals in marginalized identity groups, microaggressions may not seem pervasive or severe to an outsider but 695 In the workplace under Title VII, and in educational environments under Title IX as interpreted in the Department’s 2001 Guidance, not all sexual harassment is actionable. Title VII requires severe or pervasive conduct that alters a condition of employment. E.g., Meritor, 477 U.S. at 67 (‘‘For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.’’) (internal quotation marks and citation omitted). The 2001 Guidance requires conduct ‘‘sufficiently serious’’ to deny or limit the complainant’s ability to participate in education to be actionable under Title IX. 2001 Guidance at 5. 696 Commenter cited: Lucas Torres & Joelle T. Taknint, Ethnic microaggressions, traumatic stress symptoms, and Latino depression: A moderated mediational model, 62 Journal of Counseling Psychol. 3 (2015). PO 00000 Frm 00136 Fmt 4701 Sfmt 4700 accumulate to make marginalized students feel unwelcome and unable to continue their education. One commenter suggested that rather than narrow the definition of harassment, it should be expanded to include what one professor has called ‘‘creepiness.’’ 697 A few commenters asserted that cat-calling and other microaggressions may constitute more subtle forms of sexual harassment yet cause very real harms to victims 698 and the final regulations should protect more students from harmful violations of bodily and mental autonomy and dignity. At least one commenter argued that research indicates that gendered microaggressions, while not extreme, increase the likelihood of high-severity sexual violence 699 and that unaddressed subtly aggressive behavior leads to more extreme sexual harassment.700 One commenter suggested that recipients will save money by investigating all survivor complaints, including of microaggressions, rather than waiting until harassment is severe and pervasive, because trauma from sexual harassment is analogous to chronic traumatic encephalopathy (CTE) in contact sports—it is not necessarily one big trauma that causes CTE but many repeated and seemingly asymptomatic injuries that accumulate over time causing CTE. Commenters argued that schools should be required, or at least allowed, to intervene in cases less severe than the § 106.30 definition. Discussion: The Department appreciates commenters’ concerns about the harm that can result from microaggressions, cat-calling, and hostile, crude, or ‘‘creepy’’ behaviors that can make students feel unwelcome, 697 Commenters cited: Bonnie Mann, Creepers, Flirts, Heroes, and Allies: Four Theses on Men and Sexual Harassment, 11 Am. Phil. Ass’n Newsletter on Feminism & Philosophy 24 (2012). 698 Commenter cited: Emma McClure, Theorizing a Spectrum of Aggression: Microaggressions, Creepiness, and Sexual Assault, 14 The Pluralist 1 (2019) (noting an accepted definition of ‘‘microaggressions’’ as ‘‘the brief and commonplace daily verbal, behavioral, and environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial, gender, sexual-orientation, and religious slights and insults to the target person or group’’ and stating that ‘‘although each individual microaggression may seem negligible, when repeated over time, microaggressions can seriously damage the target’s mental and physical health’’). 699 Commenters cited: Rachel E. Gartner & Paul R. Sterzing, Gender Microaggressions as a Gateway to Sexual Harassment and Sexual Assault: Expanding the Conceptualization of Youth Sexual Violence, 31 Affilia: J. of Women & Social Work 4 (2016). 700 Commenters cited: Dorothy Espelage et al., Longitudinal Associations Among Bullying, Homophobic Teasing, and Sexual Violence Perpetration Among Middle School Students, 30 Journal of Interpersonal Violence 14 (2015). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations unsafe, disrespected, insulted, and discouraged from participating in a community or in programs or activities. However, the Supreme Court has cautioned that while Title VII and Title IX both prohibit sex discrimination, neither of these Federal civil rights laws is designed to become a general civility code.701 The Supreme Court interpreted Title IX’s non-discrimination mandate to prohibit sexual harassment that rises to a level of severity, pervasiveness, and objective offensiveness such that it denies equal access to education.702 The Davis Court acknowledged that while misbehavior that does not meet that standard may be ‘‘upsetting to the students subjected to it,’’ 703 Title IX liability attaches only to sexual harassment that does meet the Davis standard. The Department declines to prohibit microaggressions as such, but notes that what commenters and researchers consider microaggressions 704 could form part of a course of conduct reaching severity, pervasiveness, and objective offensiveness under § 106.30, though a fact-specific evaluation of specific conduct is required. As to a commenter’s likening of microaggressions to ‘‘asymptomatic’’ 701 Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (‘‘These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a ‘general civility code.’ . . . Properly applied, they will filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.’’) (internal quotation marks and citations omitted); Davis, 526 U.S. at 684 (Kennedy, J., dissenting) (‘‘the majority seeks, in effect, to put an end to student misbehavior by transforming Title IX into a Federal Student Civility Code.’’); id. at 652 (refuting dissenting justices’ arguments that the majority opinion permits too much liability under Title IX or turns Title IX into a general civility code, by emphasizing that it is not enough to show that a student has been teased, called offensive names, or taunted, because liability attaches only to sexual harassment that is severe and pervasive); Julie Davies, Assessing Institutional Responsibility for Sexual Harassment in Education, 77 Tulane L. Rev. 387, 398, 407 (2002) (‘‘Although the Court adopted different standards for institutional liability under Titles VII and IX, several themes serve as leitmotifs, running through the cases regardless of the technical differences. Neither Title VII nor Title IX is construed as a federal civility statute; the Court does not want entities to be obliged to litigate cases where plaintiffs have been subjected to ‘minor’ annoyances and insults.’’) (internal citation omitted). 702 Davis, 526 U.S. at 652. 703 Id. at 651–52. 704 See, e.g., Emma McClure, Theorizing a Spectrum of Aggression: Microaggressions, Creepiness, and Sexual Assault, 14 The Pluralist 1 (2019) (noting an accepted definition of ‘‘microaggressions’’ as ‘‘the brief and commonplace daily verbal, behavioral, and environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial, gender, sexual-orientation, and religious slights and insults to the target person or group’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 injuries that in the aggregate cause CTE from playing contact sports, actionable sexual harassment under Title IX involves conduct that is unwelcome and so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity. Where harm results from behavior that does not meet the § 106.30 definition of sexual harassment, nothing in these final regulations precludes recipients from addressing such behavior under a recipient’s own student or employee conduct code. As noted above, the fact that not every harassing or offensive remark is prohibited under Title IX in no way condones or encourages crude, insulting, demeaning behavior, which recipients may address through a variety of actions; as a commenter pointed out, a recipient’s response could include providing a complainant with supportive measures, responding to the conduct in question with institutional speech, or offering programming designed to foster a more welcoming campus climate generally, including with respect to marginalized identity groups. We have revised § 106.45(b)(3) in the final regulations to clarify that mandatory dismissal of a formal complaint due to the allegations not meeting the § 106.30 definition of sexual harassment does not preclude a recipient from acting on the allegations through non-Title IX codes of conduct. The final regulations also permit a recipient to provide supportive measures to a complainant even where the conduct alleged does not meet the § 106.30 definition of sexual harassment. Changes: We have revised § 106.45(b)(3) to clarify that mandatory dismissal of a formal complaint because the allegations do not constitute sexual harassment as defined in § 106.30 does not preclude a recipient from addressing the allegations through the recipient’s code of conduct. Comments: Several commenters argued that concern for protecting free speech and academic freedom does not require or justify using the Davis definition of sexual harassment in the second prong of the § 106.30 definition because harassment is not protected speech if it creates a hostile environment.705 Commenters asserted 705 Commenters cited: Joanna L. Grossman & Deborah L. Brake, A Sharp Backward Turn: Department of Education Proposes to Protect Schools, Not Students, in Cases of Sexual Violence, Verdict (Nov. 29, 2018) (‘‘There is no legitimate First Amendment or academic freedom protection afforded to unwelcome sexual conduct that creates a hostile educational environment.’’). PO 00000 Frm 00137 Fmt 4701 Sfmt 4700 30161 that schools have the authority to regulate harassing speech,706 that there is no conflict between the First Amendment and Title IX’s protection against sexually harassing speech, and that the Department has no evidence that a broader definition of harassment over the last 20 years has infringed on constitutionally protected speech or academic freedom. On the other hand, at least one commenter argued that verbal conduct creating a hostile environment may still be constitutionally protected speech.707 Discussion: The Supreme Court has not squarely addressed the intersection between First Amendment protection of speech and academic freedom, and nonsex discrimination Federal civil rights laws that include sexual harassment as a form of sex discrimination (i.e., Title VII and Title IX).708 With respect to sex discriminatory conduct in the form of admissions or hiring and firing decisions, for example, prohibiting such conduct does not implicate constitutional concerns even when the conduct is accompanied by speech,709 and similarly, when sex discrimination occurs in the form of non-verbal sexually harassing conduct, or speech used to harass in a quid pro quo manner, stalk, or threaten violence 706 Commenters cited: Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513–14 (1969) (holding school officials can regulate student speech if they reasonably forecast ‘‘substantial disruption of or material interference with school activities’’ or if the speech involves ‘‘invasion of the rights of others’’). 707 Commenters cited: White v. Lee, 227 F.3d 1214, 1236–37 (9th Cir. 2000) (refusing to extend labor law precedents allowing restrictions on workplace speech to non-workplace contexts such as discriminatory speech about housing projects); UWM Post, Inc. v. Bd. of Regents of Univ. of Wis. Sys., 774 F. Supp. 1163 (E.D. Wis. 1991) (holding student speech that created a hostile environment was protected even though workplace speech creating a hostile environment is banned by Title VII). 708 Saxe v. State College Area Sch. Dist., 240 F.3d 200, 204, 207 (3d Cir. 2001) (‘‘There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.’’) (‘‘Although the Supreme Court has written extensively on the scope of workplace harassment, it has never squarely addressed whether harassment, when it takes the form of pure speech, is exempt from First Amendment protection’’) (‘‘Loosely worded antiharassment laws may pose some of the same problems as the St. Paul hate speech ordinance [struck down by the Supreme Court as unconstitutional in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)]: they may regulate deeply offensive and potentially disruptive categories of speech based, at least in part, on subject matter and viewpoint.’’). 709 E.g., John F. Wirenius, Actions as Words, Words as Actions: Sexual Harassment Law, the First Amendment and Verbal Acts, 28 Whittier L. Rev. 905 (2007) (identifying a First Amendment issue only with respect to hostile environment sexual harassment, as opposed to discriminatory conduct in the form of discrete employment decisions and quid pro quo sexual harassment). E:\FR\FM\19MYR2.SGM 19MYR2 30162 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations against a victim, no First Amendment problem exists.710 However, with respect to speech and expression, tension exists between First Amendment protections and the government’s interest in ensuring workplace and educational environments free from sex discrimination when the speech is unwelcome on the basis of sex.711 In striking down a city ordinance banning bias-motivated disorderly conduct, the Supreme Court in R.A.V. v. City of St. Paul emphasized that the First Amendment generally prevents the 710 Id.; Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993) (citing Supreme Court cases in support of the view that a variety of conduct can be prohibited even where the person engaging in the conduct uses speech or expresses an idea, such that the First Amendment provides no protection for physical assault, violence, threat of violence, or other special harms distinct from communicative impact); United States v. Osinger, 753 F.3d 939, 953 (9th Cir. 2014) (‘‘Because the sole immediate object of [the defendant’s] speech was to facilitate his commission of the interstate stalking offense, that speech isn’t entitled to constitutional protection.’’) (internal quotation marks and citation omitted). 711 Andrea Meryl Kirshenbaum, Hostile Environment Sexual Harassment Law and the First Amendment: Can the Two Peacefully Coexist?, 12 Tex. J. of Women & the L. 67, 68–70 (2002) (‘‘Although the Supreme Court has never directly addressed this issue, the tension between the First Amendment and hostile environment sexual harassment law is evidenced by an increase in litigation involving these issues in courts throughout the nation.’’ . . . ‘‘the clash between the First Amendment and the hostile environment sexual harassment doctrine is acute.’’); Peter Caldwell, Hostile Environment Sexual Harassment & First Amendment Content-Neutrality: Putting the Supreme Court on the Right Path, 23 Hofstra Lab. & Emp. L. J. 373 (2006) (‘‘Where pure expression is involved, Title VII steers into the territory of the First Amendment. It is no use to deny or minimize this problem because, when Title VII is applied to sexual harassment claims founded solely on verbal insults, pictorial or literary matter, the statute imposes content-based, viewpoint-discriminatory restrictions on speech.’’); John F. Wirenius, Actions as Words, Words as Actions: Sexual Harassment Law, the First Amendment and Verbal Acts, 28 Whittier L. Rev. 905 (2007) (‘‘For nearly two decades, a debate has smoldered over the perceived tension between the law of sexual harassment and the First Amendment’s guarantee of freedom of speech. As the protection against sexual harassment in the workplace spread beyond overt discrimination in discrete employment decisions and quid pro quo sexual harassment to include the less readily quantified ‘hostile work environment,’ free speech advocates became less sanguine about the compatibility between the protections against workplace discrimination and the First Amendment, especially its proscription of viewpoint discrimination.’’). The same tension exists with respect to the First Amendment, and verbal and expressive unwelcome conduct on the basis of sex under Title IX, and the Department aims to ensure through a carefully crafted definition of actionable sexual harassment that ‘‘discrete’’ sex offenses ‘‘and quid pro quo sexual harassment’’ are per se sexual harassment under Title IX because no First Amendment issues are raised, while verbal and expressive conduct is evaluated under the Davis standard so that prohibiting sexual harassment under Title IX is consistent with the First Amendment. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 government from proscribing speech or expressive conduct ‘‘because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid.’’ 712 The Supreme Court explained that even categories of speech that can be regulated consistent with the First Amendment (for example, obscenity and defamation) cannot do so in a content-discriminatory manner (for instance, by prohibiting only defamation that criticizes the government).713 The Supreme Court further explained that while ‘‘fighting words’’ can permissibly be proscribed under First Amendment doctrine, such a conclusion is based on the nature of fighting words to provoke injury and violence,714 not merely the impact on the listener to be insulted or offended, and government still cannot regulate ‘‘based on hostility—or favoritism— towards the underlying message expressed.’’ 715 Side-stepping the direct question of how the First Amendment prohibition against content-based regulations applies to hostile environment sexual harassment claims based on speech rather than acts, the R.A.V. Court stated that ‘‘sexually-based ‘fighting words’’’ could ‘‘produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices’’ because ‘‘[w]here the government does not target conduct on the basis of its expressive conduct, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.’’ 716 The R.A.V. Court struck down the city ordinance at issue, even though it was intended to protect persons in historically marginalized groups from victimization, in part because the ‘‘secondary effect’’ of whether a particular listener or audience is offended by speech does not justify restricting the speech.717 In striking down the ordinance, the Supreme Court noted that city officials retained the ability to communicate their hostility for certain biases—but not ‘‘through the means of imposing unique limitations upon speakers who (however benightedly) disagree.’’ 718 712 R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). 713 See id. at 383–84. 714 Id. at 380–81 (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) for proposition that ‘‘fighting words’’ represent ‘‘conduct that itself inflicts injury or tends to incite immediate violence’’). 715 Id. at 386. 716 Id. at 389–90 (internal citation omitted) (emphasis added). 717 Id. at 394. 718 Id. at 395–96. PO 00000 Frm 00138 Fmt 4701 Sfmt 4700 Seven years after deciding R.A.V. under the First Amendment, the Supreme Court decided Davis under Title IX. While the Davis Court did not raise the issue of First Amendment intersection with anti-sexual harassment regulation,719 it focused on the sexually harassing conduct of the peerperpetrator in that case,720 indicating that the Supreme Court recognizes that proscribing conduct, as opposed to speech, raises no constitutional concerns, and that even when antiharassment rules are applied to verbal harassment, requiring the harassment to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education avoids putting recipients in the untenable position of protecting a recipient from legal liability arising from how the recipient responds to sexual harassment only by unconstitutionally restricting its students’ (or employees’) rights to freedom of speech and expression. The legal commentary and Supreme Court precedent often cited by 719 The majority opinion did not address First Amendment concerns, although the dissent raised the issue. Davis, 526 U.S. at 667–68 (Kennedy, J., dissenting) (‘‘A university’s power to discipline its students for speech that may constitute sexual harassment is also circumscribed by the First Amendment. A number of federal courts have already confronted difficult problems raised by university speech codes designed to deal with peer sexual and racial harassment. See, e.g., Dambrot v. Cent. Michigan Univ., 55 F.3d 1177 (6th Cir. 1995) (striking down university discriminatory harassment policy because it was overbroad, vague, and not a valid prohibition on fighting words); UWM Post, Inc. v. Bd. of Regents of Univ. of Wisconsin Sys., 774 F.Supp. 1163 (E.D. Wis. 1991) (striking down university speech code that prohibited, inter alia, ‘discriminatory comments’ directed at an individual that ‘intentionally . . . demean’ the ‘sex . . . of the individual’ and ‘create an intimidating, hostile or demeaning environment for education, university related work, or other university-authorized activity’); Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) (similar); Iota XI Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993) (overturning on First Amendment grounds university’s sanctions on a fraternity for conducting an ‘ugly woman contest’ with ‘racist and sexist’ overtones) The difficulties associated with speech codes simply underscore the limited nature of a university’s control over student behavior that may be viewed as sexual harassment.’’). Presumably, the majority believed that ensuring that even verbal harassment that meets the severe, pervasive, and objectively offensive standard avoids this constitutional problem; the majority expressed a similar rationale in response to the dissent’s contention that the majority opinion permitted too much liability against recipients. Davis, 526 U.S. at 651–53. 720 Davis, 526 U.S. at 653 (‘‘Petitioner alleges that her daughter was the victim of repeated acts of sexual harassment by G. F. over a 5-month period, and there are allegations in support of the conclusion that G. F.’s misconduct was severe, pervasive, and objectively offensive. The harassment was not only verbal; it included numerous acts of objectively offensive touching, and, indeed, G. F. ultimately pleaded guilty to criminal sexual misconduct.’’) (emphasis added). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations commenters 721 arguing that the Davis definition of sexual harassment is not necessary for protection of First Amendment freedoms because harassment is unprotected if it creates a hostile environment, and because schools have authority to regulate harassing speech, do not support a conclusion that a categorical ‘‘harassment exception’’ exists under First Amendment law and do not justify applying a standard lower than the Davis standard for speech-based harassment in the educational context. For example, the statement in a legal commentary frequently cited by commenters that ‘‘[t]here is no legitimate First Amendment or academic freedom protection afforded to unwelcome sexual conduct that creates a hostile educational environment’’ contains no citations to legal authority.722 Likewise, commenters citing Tinker v. Des Moines Indep. Comm. Sch. Dist. for the proposition that school officials can regulate student speech if they reasonably forecast ‘‘substantial disruption of or material interference with school activities’’ or if the speech involves ‘‘invasion of the rights of others’’ fail to acknowledge: (i) In Tinker the Supreme Court struck down the school decision in that case forbidding students from wearing armbands expressing opposition to war because that expressive conduct was akin to pure speech warranting First Amendment protection; 723 (ii) the Tinker Court insisted that the ‘‘substantial disruption’’ or ‘‘interference with school activities’’ exceptions only apply where school officials have more than unspecified fear of disruption or interference; 724 and (iii) the precise scope of Tinker’s ‘‘interference with the rights of others’’ language is unclear, but is comparable 721 E.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513–14 (1969); Joanna L. Grossman & Deborah L. Brake, A Sharp Backward Turn: Department of Education Proposes to Protect Schools, Not Students, in Cases of Sexual Violence, Verdict (Nov. 29, 2018). 722 Joanna L. Grossman & Deborah L. Brake, A Sharp Backward Turn: Department of Education Proposes to Protect Schools, Not Students, in Cases of Sexual Violence, Verdict (Nov. 29, 2018) (stating, without citation to legal authority, the proposition that ‘‘There is no legitimate First Amendment or academic freedom protection afforded to unwelcome sexual conduct that creates a hostile environment’’). 723 Tinker, 393 U.S. at 505–06 (‘‘the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to ‘pure speech’ which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment.’’). 724 Id. at 508 (‘‘undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 to the Davis standard.725 By requiring threshold levels of serious interference with work or education environments before sexual harassment is actionable, the Supreme Court standards under Meritor 726 (for the workplace) and Davis 727 (for schools, colleges, and universities) prevent these nondiscrimination laws from infringing on speech and academic freedom,728 725 B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293 (3d Cir. 2013) (‘‘As we have repeatedly noted, the precise scope of Tinker’s ‘interference with the rights of others’ language is unclear.’’) (internal quotation marks and citation omitted); cf. Brett A. Sokolow et al., The Intersection of Free Speech and Harassment Rules, 38 Hum. Rights 19 (2011) (‘‘The Tinker standard is comparable to the Davis standard, which places the threshold for harassment at the point where conduct ‘bars the victim’s access to an educational opportunity,’ in that speech can be restricted only when the educational process is substantially impeded. In other words, when reviewing school policies, and the implementation thereof, it is critical to ensure students are being disciplined as a result of the objective impact of their speech, and not solely based on its content and/or the feelings of those to whom that speech is targeted.’’). 726 Meritor, 477 U.S. at 67; see also John F. Wirenius, Actions as Words, Words as Actions: Sexual Harassment Law, the First Amendment and Verbal Acts, 28 Whittier L. Rev. 905, 908 (2007) (arguing that the hostile work environment doctrine, properly understood with its critical threshold requirement that harassing speech be severe or pervasive enough to create an objectively hostile or abusive work environment, converts harassing speech into ‘‘verbal conduct’’ that may be regulated under Title VII consistent with the First Amendment). Similarly, when harassing speech is severe, pervasive, and objectively offensive enough to create deprivation of equal educational access it may be regulated under Title IX consistent with the First Amendment. 727 Davis, 526 U.S. at 651 (‘‘Rather, a plaintiff must establish sexual harassment of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victimstudents are effectively denied equal access to an institution’s resources and opportunities.’’); Brett A. Sokolow, et al., The Intersection of Free Speech and Harassment Rules, 38 Hum. Rights 19 (2011) (cautioning that institutional anti-harassment policies must not prevent students from exercising rights of speech and expression, a result that the Davis standard makes clear). 728 E.g., Brett A. Sokolow et al., The Intersection of Free Speech and Harassment Rules, 38 Hum. Rights 19, 20 (2011) (‘‘[S]chool regulations and actions that impact speech must be content and viewpoint neutral and must be narrowly tailored to fit the circumstances. These regulations must be clear enough for a person of ordinary intelligence to understand, or courts will find them unconstitutionally void for vagueness. They cannot overreach by covering both protected and unprotected speech or courts will find them unconstitutionally overbroad. The regulation cannot act to preemptively prevent students from exercising their right to freely express themselves because the courts will find the prior restraint of speech presumptively unconstitutional.’’) (‘‘In some ways, activist courts, agencies, and educational messages about civility and tolerance may have given a false impression that any sexist, ageist, racist, and so forth, remark is tantamount to harassment. As a society, we now use the term ‘harassment’ to mean being bothered, generically. We must distinguish generic harassment from PO 00000 Frm 00139 Fmt 4701 Sfmt 4700 30163 precisely because non-discrimination laws are not ‘‘categorically immune from First Amendment challenge when they are applied to prohibit speech solely on the basis of its expressive content.’’ 729 The First Amendment plays a crucial role in ensuring that the American government remains responsive to the will of the people and effects peaceful change by fostering free, robust exchange of ideas,730 including those relating to sex-based equality and dignity.731 There is no doubt that words can wound, and speech can feel like an ‘‘assault, seriously harm[ing] a private individual’’ with effects that often discriminatory harassment. The standard laid out in Davis . . . makes this clear: To be considered discriminatory harassment, the conduct in question must be ‘so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.’ ’’) (emphasis in original). 729 Saxe, 240 F.3d at 209. 730 See Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (‘‘The vitality of civil and political institutions in our society depends on free discussion. . . . [I]t is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute . . . is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.’’) (internal citations omitted). 731 Azhar Majeed, The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights, 35 Journal of Coll. & Univ. L. 385, 397 (2009) (‘‘In drafting and applying their harassment policies, colleges and universities frequently target protected speech merely because the expression in question is alleged to be sexist, prejudicial, or demeaning. . . . This approach ignores the fact that even explicitly sexist or racist speech is entitled to protection, and all the more so where it espouses views on important issues of social policy. Few people would disagree, for example, that the subjects of relations between the sexes, women’s rights, and the pursuit of economic and social equality are all important matters of public concern and debate. Therefore, speech relating to such topics, regardless of whether it takes a favorable or negative view of women, is highly germane to the debate of public matters and social policy. In the marketplace of ideas, these expressions should not be suppressed merely to avoid offense or discomfort.’’) (citing Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (holding invalid under the First Amendment a statute that prohibited pornography depicting the subordination of women because the statute was a content-based restriction—that is, it applied not to all sexual depictions but to depictions of women in a disfavored manner). E:\FR\FM\19MYR2.SGM 19MYR2 30164 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations linger.732 Nonetheless, serious risks attach to soliciting the coercive power of government to enforce even laudable social norms such as respect and civility.733 Even low-value speech warrants constitutional protection, in part because government should not be the arbiter of valuable versus worthless expression.734 This principle holds true 732 Snyder v. Phelps, 562 U.S. 443, 461 (2011) (Breyer, J., concurring); see also Davis, 526 U.S. at 651–52 (acknowledging that gender-based banter, insults, and teasing can be upsetting to those on the receiving end). 733 Catherine J. Ross, Assaultive Words and Constitutional Norms, 66 Journal of Legal Educ. 739, 744 (2017) (‘‘Recently, students have been in the vanguard, demanding that offensive speech be silenced. Students ask to be protected from hurtful words, sentiments, even gestures, and inadvertent facial clues or rolling eyes that communicate dismissal. They seek the coercive power of authority to enforce laudable social norms—respect, dignity, and equality regardless of race, ethnicity, gender, gender identity, and so forth. Meritorious as these proclaimed goals are, the rules and penalties some students lobby for would suppress the expressive rights of others including students, faculty, and invited guests, a particularly disturbing prospect at an institution devoted to the academic enterprise.’’). 734 Id. at 749–50 (2017) (‘‘Many people question whether rude epithets, crude jokes, and disparaging statements are the kind of expression that merits First Amendment protection. The Supreme Court has long held the Constitution protects the right to speak ‘foolishly and without moderation.’ You might maintain that racist, misogynist and other vile speech makes no contribution at all to the exchange of ideas—but the Speech Clause protects even so-called low-worth expression, in large part because no public authority can be trusted to distinguish valuable from worthless expression. The government cannot ban hateful expression, no matter how hurtful.’’) (citing Cohen v. California, 403 U.S. 15, 25–26 (1971)). Furthermore, permitting censorship of speech in an effort to be on the right side of history with respect to racial or sexual equality ignores the role that commitment to the First Amendment has played in achieving milestones for racial and sexual equality. See, e.g., Nadine Strossen, Regulating Racist Speech on Campus: A Modest Proposal?, 1990 Duke L. J. 484, 536–37 (1990) (‘‘History demonstrates that if the freedom of speech is weakened for one person, group, or message, then it is no longer there for others. The free speech victories that civil libertarians have won in the context of defending the right to express racist and other anti-civil libertarian messages have been used to protect speech proclaiming anti-racist and pro-civil libertarian messages. For example, in 1949, the ACLU defended the right of Father Terminiello, a suspended Catholic priest, to give a racist speech in Chicago. The Supreme Court agreed with that position in a decision that became a landmark in free speech history. Time and again during the 1960s and 1970s, the ACLU and other civil rights groups were able to defend free speech rights for civil rights demonstrators by relying on the Terminiello decision [Terminiello v. City of Chicago, 337 U.S. 1 (1949)].’’) (internal citations omitted); see also Anthony D. Romero, Equality, Justice and the First Amendment, American Civil Liberties Union (ACLU) (Aug. 15, 2017), https:// www.aclu.org/blog/free-speech/equality-justiceand-first-amendment (explaining that the ACLU’s nearly century-long history defending freedom of speech ‘‘including speech we abhor’’ is due to belief that ‘‘our democracy will be better and stronger for engaging and hearing divergent views. Racism and bigotry will not be eradicated if we merely force VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 for elementary and secondary schools as well as postsecondary institutions.735 Schools, colleges, and universities, and their students and employees, who find speech offensive, have numerous avenues to confront offensive speech without ‘‘the means of imposing unique limitations upon speakers who (however benightedly) disagree.’’736 The Department believes that the tension between student and faculty freedom of speech, and regulation of speech to prohibit sexual harassment, is best addressed through rules that prohibit harassing and assaultive physical conduct, while ensuring that harassment in the form of speech and expression is evaluated for severity, pervasiveness, objective offensiveness, and denial of equal access to education. This is the approach taken in the § 106.30 definition of sexual harassment, under which quid pro quo harassment and Clery Act/VAWA offenses receive per se treatment as actionable sexual harassment, while other forms of harassment must meet the Davis standard. This approach balances the ‘‘often competing demands of the First Amendment’s express guarantee of free speech and the them underground. Equality and justice will only be achieved if society looks such bigotry squarely in the eyes and renounces it. . . . There is another reason that we have defended the free speech rights of Nazis and the Ku Klux Klan. . . . We simply never want government to be in a position to favor or disfavor particular viewpoints.’’). 735 See Catherine J. Ross, Assaultive Words and Constitutional Norms, 66 Journal of Legal Educ. 739, 754–55 (2017) (‘‘Constitutional doctrine asks our youngest students to use the traditional constitutional responses to vile speech: Walk away, don’t listen, or respond with ‘more and better speech.’ These general First Amendment principles apply with at least as much vigor to college campuses, where most students are adults, not schoolchildren, the guiding ethos of higher education supplements constitutional mandates, and students are not compelled to attend. Looking at what the Constitution requires in grades K–12 reveals a lot about what we should expect the adults enrolled in college to have the capacity to withstand. Since our constitutional framework expects this degree of coping from children beginning in elementary school, it is not asking too much of college students to handle offensive sentiments by using the standard First Amendment tools: Walk away, throw the pamphlet in the trash, get off the screen or, even better, tackle objectionable speech with more and better speech.’’) (discussing and citing Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 672 (7th Cir. 2008); Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 202 (3d Cir. 2001); Nixon v. N. Local Sch. Dist. Bd. of Educ., 383 F. Supp. 2d 965, 967 (S.D. Ohio 2005)). 736 R.A.V., 505 U.S. at 395–96. As a commenter observed, recipients retain the ability and discretion to respond to offensive speech by a student (or employee) by providing the complainant with supportive measures, responding to the offensive speech with institutional speech, or offering programming designed to foster a welcoming campus climate more generally. PO 00000 Frm 00140 Fmt 4701 Sfmt 4700 Fourteenth Amendment’s implicit promise of dignity and equality.’’ 737 Contrary to commenters’ assertions, evidence that broadly and loosely worded anti-harassment policies have infringed on constitutionally protected speech and academic freedom is widely available.738 The fact that broadly737 Catherine J. Ross, Assaultive Words and Constitutional Norms, 66 Journal of Legal Educ. 739, 739 (2017) (‘‘Campuses are rocked by racially and sexually offensive speech and counter speech. Offensive speech and counter speech, including demonstrations and calls for policies that shield the vulnerable and repercussions for offenders, are both protected by the Constitution. Yet some college administrations regulate this protected speech. Expression on both sides of a cultural and political divide brings to the fore a conflict that has been simmering in legal commentary for about two decades: The tension between the often competing demands of the First Amendment’s express guarantee of free speech and the Fourteenth Amendment’s implicit promise of dignity and equality. This clash between two fundamental principles seems to have been exacerbated recently by a renewed focus on identity politics both on campus and in national and international affairs.’’). 738 E.g., Azhar Majeed, The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights, 35 Journal of Coll. & Univ. L. 385, 391–92 (2009) (discussing examples of universities punishing protected speech including: A student-employee charged with racial harassment merely for reading a book entitled Notre Dame vs. The Klan; finding a professor guilty of racial harassment for explaining in a Latin American Politics class that the term ‘‘wetbacks’’ is commonly used as a derogatory reference to Mexican immigrants; investigating a criminal law professor for a sexually hostile environment where the professor’s exam presented a hypothetical case in which a woman seeking an abortion felt thankful after she was attacked because the physical attack resulted in the death of her fetus; finding a student guilty of sexual harassment for posting flyers joking that freshman women could lose weight by using the stairs); see also Nadine Strossen, Law Professor and former ACLU President, 2015 Richard S. Salant Lecture on Freedom of the Press at Harvard University (Nov. 5, 2015), https://shorensteincenter.org/nadinestrossen-free-expression-an-endangered-species-oncampus-transcript/ (identifying the free speech and academic freedom problems with ‘‘the overbroad, unjustified concept of illegal sexual harassment as extending to speech with any sexual content that anyone finds offensive,’’ opining that the current college climate exalts a misplaced concept of ‘‘safety’’ by insisting that ‘‘safety seeks protection from exposure to ideas that make one uncomfortable . . . . [W]hen it comes to safety, our students are being doubly disserved. Too often, denied safety from physical violence, which is critical for their education, but too often granted safety from ideas, which is antithetical to their education,’’ and detailing numerous examples ‘‘of campus censorship in the guise of punishing sexual harassment’’ including: Subjecting a professor to investigation for writing an essay critical of current sexual harassment policies; punishing a professor who, during a lecture, paraphrased Machiavelli’s comments about raping the goddess Fortuna; finding a professor guilty of sexual harassment for teaching about sexual topics in a graduate-level course called ‘‘Drugs and Sin in American Life;’’ suspending a professor for showing a documentary that examined the adult film industry; punishing a professor for having students play roles in a scripted skit about prostitution in a course on deviance; punishing a professor for requiring a class to write essays defining pornography; firing an early E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations worded anti-harassment policies have been applied to protected speech ‘‘leads many potential speakers to conclude that it is better to stay silent and not risk the consequences of being charged with harassment. . . . This halts much campus discussion and debate, taking away from the campus’s function as a true marketplace of ideas.’’ 739 Where speech and expression are not given sufficient ‘‘breathing room,’’ the ‘‘safety valve’’ function of speech is diminished.740 Furthermore, even seemingly low-value speech can have a ‘‘downstream effect of leading to constructive discussion and debate which would not have taken place otherwise.’’ 741 For these reasons, the § 106.30 definition of sexual harassment is designed to capture non-speech conduct broadly (based on an assumption of the education-denying effects of such conduct), while applying the Davis standard to verbal conduct so childhood education professor who had received multiple teaching awards, for occasionally using vulgar language and humor about sex in her lectures about human sexuality). 739 Azhar Majeed, The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights, 35 Journal of Coll. & Univ. L. 385, 397 (2009) (‘‘Of course, sexual and racial harassment policies, regardless of the terms in which they are drafted, are oftentimes applied against protected speech, which again leads many potential speakers to conclude that it is better to stay silent and not risk the consequences of being charged with harassment. . . . The unfortunate result, then, is that students have a strong incentive to refrain from saying anything provocative, inflammatory, or bold and to instead cautiously stick to that which is mundane or conventional. This halts much campus discussion and debate, taking away from the campus’s function as a true marketplace of ideas.’’); id. at 432–34 (discussing several Federal court cases striking down university anti-harassment codes as applied to constitutionally protected speech, including Cohen v. San Bernardino Valley Coll., 92 F.3d 968 (9th Cir. 1996); Iota Xi Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993); Silva v. Univ. of N.H., 888 F. Supp. 293 (D. N.H. 1994)). 740 Azhar Majeed, The Misapplication of Peer Harassment Law on College and University Campuses and the Loss of Student Speech Rights, 35 Journal of Coll. & Univ. L. 385, 398–99 (2009) (‘‘Furthermore, one of the benefits of providing breathing room for such expression is that it allows the speaker to espouse his or her views through constructive dialogue rather than act out of frustration by committing acts of violence or hate crimes. This outlet has been labeled the ‘safety valve’ function of speech.’’). 741 Id. (‘‘By exposing the real ugliness of prejudice, ignorance and hate, such speech can reach and convince people in ways that polite conversation never could. Moreover, ignorant or misguided speech, though seemingly possessing little value or merit on its own, often has the ‘downstream’ effect of leading to constructive discussion and debate which would not have taken place otherwise. Consequently, the initial expression greatly benefits the marketplace of ideas and enriches students’ understanding of important issues by increasing the potential for real and meaningful debate on campus.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 that the critical purposes of both Title IX and the First Amendment can be met. Changes: None. So Severe Comments: Some commenters asserted that the ‘‘so severe’’ element of the second prong of the § 106.30 definition means that recipients must ignore many harassment incidents that result in academic, economic, and psychological harm and suffering including depression and post-traumatic stress disorder, whereas the better approach is to treat any level of harassment as seriously as the most severe level. Some commenters asserted that schools should never try to tell a survivor what was or was not severe because the survivor is the only person who can determine what was severe. Other commenters wondered what threshold determines an incident as ‘‘severe,’’ whether severity refers to the mental impact on the victim or the physical nature of the unwelcome conduct (or both), and how a victim is expected to prove severity. Discussion: For reasons discussed above, the Department believes that severity is a necessary element to balance protection from sexual harassment with protection of freedom of speech and expression. The Department interprets the Davis standard formulated in § 106.30 as subjective with respect to the unwelcomeness of the conduct (i.e., whether the complainant viewed the conduct as unwelcome), and the final regulations clarify that the elements of severity, pervasiveness, objective offensiveness, and resulting denial of equal access are determined under a reasonable person standard.742 In this way, evaluation of whether harassment is ‘‘severe’’ appropriately takes into account the circumstances facing a particular complainant, such as the complainant’s age, disability status, sex, and other characteristics. This evaluation does not burden a complainant to ‘‘prove severity,’’ because a complainant need only describe what occurred and the recipient must then consider whether 742 See Davis, 526 U.S. at 653–54 (applying the severe, pervasive, objectively offensive, denial of access standard to the facts at issue under an objective approach) (‘‘Petitioner alleges that her daughter was the victim of repeated acts of sexual harassment by G. F. over a 5-month period, and there are allegations in support of the conclusion that G. F.’s misconduct was severe, pervasive, and objectively offensive. The harassment was not only verbal; it included numerous acts of objectively offensive touching, and, indeed, G. F. ultimately pleaded guilty to criminal sexual misconduct. . . . Further, petitioner contends that the harassment had a concrete, negative effect on her daughter’s ability to receive an education.’’). PO 00000 Frm 00141 Fmt 4701 Sfmt 4700 30165 the described occurrence was severe from the perspective of a reasonable person in the complainant’s position. Changes: None. And Pervasive Comments: Many commenters believed that the ‘‘pervasive’’ element of the second prong of the § 106.30 definition means that students would be forced to endure repeated, escalating levels of harassment before seeking help from schools, and that by the time schools must intervene it might be too late because victims will already have suffered emotional harm and derailed educational futures (e.g., ineligibility for an advanced placement course or rejection from admission to a dream college after grades dropped due to harassment that was not deemed pervasive). Several commenters asserted that every instance of discrimination deserves investigation, or else patterns of harassment will not be discovered because each single instance will be dismissed as not ‘‘pervasive.’’ Some such commenters argued that without an investigation, a school will not know whether a single instance of an inappropriate remark or joke is truly an isolated incident or part of a pattern. A few commenters argued that especially in elementary and secondary schools, students whose reports are turned away for not being ‘‘pervasive’’ will be very unlikely to report again when the conduct repeats and does become pervasive. Several commenters described scenarios that they asserted would not be covered as sexual harassment under § 106.30 because they fail to meet the pervasive element even though such scenarios present severe, objectively offensive, threatening, humiliating, harm-inducing consequences on victims, including: A professor blocking a teaching assistant’s exit from a small office while badgering the assistant with sexual insults; a teacher inappropriately touching a student while making sexually explicit comments during an after-school meeting; students posting videos of ‘‘revenge porn’’ on social media. Discussion: The Department reiterates that quid pro quo harassment and Clery Act/VAWA offenses (sexual assault, dating violence, domestic violence, and stalking) constitute sexual harassment under § 106.30 without any evaluation for pervasiveness. Thus, students do not have to endure repeated incidents of such abuse without recourse from a recipient. The Department further reiterates that recipients retain discretion to provide supportive measures to any complainant even E:\FR\FM\19MYR2.SGM 19MYR2 30166 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations where the harassment is not pervasive. The Department disagrees that an investigation into every offensive comment or joke is necessary in order to discern whether the isolated comment is part of a pervasive pattern of harassment. For reasons discussed above, chilling speech and expression by investigating each instance of unwelcome speech is not a constitutionally permissible way of ensuring that unlawful harassment is not occurring. The Department appreciates commenters’ concerns that if a complainant receives no support after reporting one incident (that does not rise to the level of actionable harassment under Title IX) the complainant may feel deterred from reporting again if the harassment escalates and meets the Davis standard. This is one reason why the Department emphasizes that recipients remain free to provide supportive measures even where alleged conduct does not meet the § 106.30 definition of sexual harassment, and to utilize institutional speech and provide general programming to foster a respectful educational environment, none of which requires punishing or chilling protected speech. With respect to the scenarios presented by commenters as examples of harassment that may not meet the Davis standard because of lack of pervasiveness, the Department declines to make definitive statements about examples, due to the necessarily factspecific nature of the analysis. However, we note that sexual harassment by a teacher or professor toward a student or subordinate may constitute quid pro quo harassment, which does not need to meet a pervasiveness element. The Davis standard as applied in § 106.30 is broad, encompassing any unwelcome conduct on the basis of sex that a reasonable person would find so severe, pervasive, and objectively offensive that a person is effectively denied equal educational access. Disseminating ‘‘revenge porn,’’ or conspiring to sexually harass people (such as fraternity members telling new pledges to ‘‘score’’), or other unwelcome conduct that harms and humiliates a person on the basis of sex may meet the elements of the Davis standard including pervasiveness, particularly where the unwelcome sex-based conduct involves widespread dissemination of offensive material or multiple people agreeing to potentially victimize others and taking steps in furtherance of the agreement. Finally, a single instance of unwelcome physical conduct may meet definitions of assault VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 or battery prohibited by other laws, even if the incident does not meet one of the three prongs of the § 106.30 definition of sexual harassment. Changes: None. Objectively Offensive Comments: Several commenters argued that the ‘‘objectively offensive’’ element of the second prong of the § 106.30 definition will mean different things to different school officials, and result in similar incidents being investigated by some schools and not by others. Several commenters asserted that ‘‘objectively offensive’’ creates an unnecessary and inappropriate scrutiny of victims and their experiences, creating barriers to reporting and making campuses less safe, contributing to victim-blaming, perpetuating myths and misconceptions about sexual violence, and minimizing the harm caused by sexual harassment. Several commenters asserted that nothing is ‘‘objectively’’ offensive because what is offensive is based on how conduct subjectively makes a person feel yet ‘‘objective’’ means not influenced by personal feelings; these commenters argued that therefore the term ‘‘objectively offensive’’ is an oxymoron. At least one commenter argued that research shows that individuals experience sex-based misconduct differently, depending on prior life experiences, previous victimization, and other factors.743 Commenters similarly opined that offensiveness depends on the impact of the conduct, not the intent of the perpetrator. One commenter opined that cat-calling may not sound objectively threatening, yet knowing that cat-calling and similar objectification of women may contribute to physical violence against women 744 might cause a woman targeted by cat-calling to feel unsafe. At least one commenter argued that what is ‘‘objectively offensive’’ tends to be interpreted as what white, privileged men would find to be offensive, lending itself to a ‘‘boys will be boys’’ attitude that excuses a lot of behavior that offends women and marginalized individuals. One commenter recommended that the Department issue guidance for what factors to consider so that unconscious bias does not impact evaluation of what conduct is 743 Commenters cited: Emma M. Millon et al., Stressful Life Memories Relate to Ruminative Thoughts in Women with Sexual Violence History, Irrespective of PTSD, Frontiers in Psychiatry 9 (2018). 744 Commenters cited: Eduardo A. Vasquez et al., The sexual objectification of girls and aggression towards them in gang and non-gang affiliated youth, 23 Psychol., Crime & L. 5 (2017). PO 00000 Frm 00142 Fmt 4701 Sfmt 4700 ‘‘offensive.’’ One commenter claimed that the § 106.30 definition fails to account for the intersectional dynamics (race, gender, sexual orientation, culture, etc.) that may impact the severity and objective offensiveness of an act. This commenter argued that since the purpose of having an investigation is to decide whether conduct was in fact severe, pervasive, and objectively offensive it makes little sense to require schools to dismiss claims at the outset when the rape culture pyramid explains how small microaggressions and supposedly ‘‘less severe’’ offenses fuel a culture for severe behaviors to become normalized. This commenter recommended that ‘‘objectively offensive’’ should be defined and understood with a high bar for sensitive, respectful language and conduct towards all in the community. At least one commenter argued that because violence against women is often normalized,745 and perpetrators of even heinous sexual crimes rationalize their behaviors through victim blaming,746 these social realities make it very difficult for any act of sexual violence or harassment to be deemed ‘‘objectively offensive’’ even when the acts are disruptive or traumatic to the victim. At least one commenter asserted that the § 106.30 definition eliminates the possibility of recipients focusing on unique or personally harmful situations; for example, when private or ‘‘inside’’ jokes do not seem offensive to outsiders but have a harmful connotation for the victim. Several commenters noted that under case law, what is objectively offensive is analyzed from the perspective of a reasonable person standing in the shoes of the complainant, using an approach that rejects disaggregation of allegations and instead looks at the aggregate or cumulative impact of conduct.747 One commenter urged the Department to clarify that whether conduct is ‘‘severe, pervasive, and objectively offensive’’ depends on evaluation by a reasonable person and the hypothetical ‘‘reasonable person’’ must consider both male and female views of what is ‘‘offensive.’’ At least one commenter argued that the ‘‘objectively offensive’’ element undermines a longstanding analytic requirement that recipients evaluate 745 Commenters cited: Heather R. Hlavka, Normalizing Sexual Violence: Young Women Account for Harassment and Abuse, 28 Gender & Soc’y 3 (2014). 746 Commenters cited: Diana Scully, & Joseph Marolla, Convicted rapists’ vocabulary of motive: Excuses and justifications, 31 Social Problems 5 (1984). 747 Commenters cited: Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations conduct from both objective and subjective viewpoints (e.g., 2001 Guidance at p. 5). Discussion: The Department agrees with commenters who note that whether harassing conduct is ‘‘objectively offensive’’ must be evaluated under a reasonable person standard, as a reasonable person in the complainant’s position,748 though the Department declines to require a commenter’s suggestion that the ‘‘reasonable person’’ standard must consider offensiveness from both male and female perspectives because the latter suggestion would invite application of sex stereotypes. The final regulations revise the second prong of the § 106.30 definition to expressly state that the Davis elements are determined under a reasonable person standard. The Department disagrees that ‘‘objectively offensive’’ is oxymoronic; the objective nature of the inquiry simply means that evaluation is made by a reasonable person considering whether, standing in the shoes of the complainant, the conduct would be offensive. The reasonable person standard appropriately takes into account whether a reasonable person, in the position of the particular complainant, would find the conduct offensive, thus the standard should not result in victims being blamed or excluded from receiving support regardless of whether the school officials evaluating the conduct share the same race, sex, age, or other characteristics as the complainant. It would be inappropriate for a Title IX Coordinator to evaluate conduct for objective offensiveness by shrugging off unwelcome conduct as simply ‘‘boys being boys’’ or make similar assumptions based on bias or prejudice. To take that approach would risk evidencing sex-based bias in contravention of § 106.45(a) or bias for or against a complainant or respondent in violation of § 106.45(b)(1)(iii), in addition to indicating improper evaluation of the Davis elements under a reasonable person standard. For reasons discussed under § 106.45(b)(1)(iii), the Department leaves 748 See Davis, 526 U.S. at 653–54 (applying the severe, pervasive, objectively offensive, denial of access standard to the facts at issue under an objective approach) (‘‘there are allegations in support of the conclusion that G. F.’s misconduct was severe, pervasive, and objectively offensive. The harassment was not only verbal; it included numerous acts of objectively offensive touching’’); see also Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998) (‘‘We have emphasized, moreover, that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.’’) (internal quotation marks and citations omitted.). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 recipients flexibility to decide the content of the training required for Title IX personnel under that provision, and nothing in the final regulations precludes a recipient from addressing implicit or unconscious bias as part of such training. The Department disagrees that this standard inappropriately results in different schools making different decisions about what is objectively offensive. The Department believes that a benefit of the Davis standard as formulated in the second prong of § 106.30 is that whether harassment is actionable turns on both subjectivity (i.e., whether the conduct is unwelcome, according to the complainant) and objectivity (i.e., ‘‘objectively offensive’’) with the Davis elements determined under a reasonable person standard, thereby retaining a similar ‘‘both subjective and objective’’ analytic approach that commenters point out is used in the 2001 Guidance.749 The fact-specific nature of evaluating sexual harassment does mean that different people may reach different conclusions about similar conduct, but this is not unreasonable because the specific facts and circumstances of each incident and the parties involved may require different conclusions. The Davis standard does not require an ‘‘intent’’ element; unwelcome conduct so severe, pervasive, and objectively offensive that it denies a person equal educational opportunity is actionable sexual harassment regardless of the respondent’s intent to cause harm. The Department disagrees that the objectively offensive element results in unnecessary scrutiny of victims’ experiences that will create reporting barriers, make campuses less safe, lead to victim-blaming, or perpetuate sexual violence myths and misconceptions. The Davis standard ensures that all students, employees, and recipients understand that unwelcome conduct on the basis of sex is actionable under Title IX when a reasonable person in the complainant’s position would find the conduct severe, pervasive, and objectively offensive such that it effectively denies equal access to the recipient’s education program or activity. For reasons explained above, the Department appreciates commenters’ 749 2001 Guidance at 5 (conduct should be evaluated from both a subjective and objective perspective); id. at fn. 39 (citing case law for the proposition that whether conduct is severe, or objectively offensive, must be judged from the perspective of a reasonable person in the complainant’s position, such as Harris v. Forklift Sys., Inc., 510 U.S. 17, 20–22 (1993) (requiring subjective and objective creation of a hostile work environment)). PO 00000 Frm 00143 Fmt 4701 Sfmt 4700 30167 concerns that even conduct characterized by commenters as lowlevel harassment (such as cat-calling and microaggressions) can be harmful, and that some situations have escalated from minor incidents into violence and even homicide against women. This is why, in response to commenters, we have revised final § 106.30 to include as per se sexual harassment every incident of the Clery Act/VAWA offenses of dating violence, domestic violence, and stalking (in addition to sexual assault, which was referenced in the NPRM and remains part of the final regulations). In this way, the § 106.30 definition stands firmly against sex-based physical conduct, including violence and threats of violence, while ensuring that verbal and expressive conduct is punishable as Title IX sex discrimination only when the conduct crosses a line from protected speech into sexual harassment that denies a person equal access to education. For the same reasons, the § 106.30 definition pushes back against an historical, societal problem of normalizing violence against women. By not imposing an ‘‘intent’’ element into the sexual harassment definition, § 106.30 makes clear that sexual harassment under any part of the § 106.30 definition cannot be excused by trying to blame the victim or rationalize the perpetrator’s behavior, tactics pointed to by commenters (and supported by research) as common reasons why victims (particularly women) have often faced dismissiveness, shame, or ridicule when reporting sex-based violence to authorities. Changes: We have revised the second prong of the § 106.30 definition to expressly state that the Davis elements are determined under a reasonable person standard. Effectively Denies Equal Access Comments: Many commenters objected to the element in the second prong of the § 106.30 definition that conduct ‘‘effectively denies a person equal access’’ as a confusing, stringent, unduly restrictive standard that will harm survivors, benefit perpetrators, and send the message to assailants that non-physical sexual harassment is acceptable. At least one commenter stated that requiring conduct to rise to the level of denying a person equal access to the recipient’s education program or activity is inconsistent with the language of Title IX because it is a higher bar than the statute’s provision (20 U.S.C. 1681) that ‘‘no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected E:\FR\FM\19MYR2.SGM 19MYR2 30168 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations to discrimination under any educational program or activity receiving federal financial assistance.’’ Several commenters asserted that waiting until a complainant’s access to education has been denied means that students must wait for help until harassing or violent behaviors cause victims to reach a breaking point, making a mockery of institutional responsibility and the values of an educational community. Many commenters believed that the ‘‘effectively denies equal access’’ element supports a culture that conveys acceptance of sexual harassment of women as long as the victims continue showing up to school, leaving girls and women in situations that are difficult and discouraging without recourse until they have lost access altogether. Many commenters believed that in order to file a Title IX complaint meeting this element, a victim would need to drop out of school entirely, fail a class, have a panic attack, be unable to function, or otherwise provide evidence of denial of access. Commenters argued that this standard makes no sense because help should be given to complainants before access has been denied, and will lead to more victims dropping out of school. One commenter relayed a personal story of sexual assault and stated that the commenter felt deterred from reporting the incident because the commenter was unsure whether, under the NPRM, the university would consider the incident significant enough to respond, despite the fact that the commenter knew of witnesses who could attest to the incident, and the commenter had to switch out of a class to avoid crossing paths with the perpetrator. Many commenters believed that this element has a perverse effect of leaving students who demonstrate resilience by managing to attend classes and participate in educational activities despite being subjected to harassment and abuse without protection from the harassment they suffer. A few commenters opposed this element because it places the focus on a survivor’s response to trauma instead of on the unwelcome conduct itself, when everyone responds differently to trauma. One commenter recounted an experience of reporting sexual violence to the police and being told that they did not appear ‘‘traumatized enough’’ to be credible; the commenter argued that this element of the § 106.30 definition leaves too much subjectivity with school officials to interpret a victim’s reaction to trauma.750 One commenter supported the proposed rules because for the first time the Department is regulating sexual harassment as a form of sex discrimination under Title IX, and sexual assault as a form of sexual harassment, but expressed concern that many commenters interpret the ‘‘effectively denies equal access’’ element as requiring students to drop out of school before action can be taken, amounting to a ‘‘constructive expulsion’’ requirement that is much more strict than what Title IX requires. Many commenters expressed the belief that this element means harassment is not actionable unless a complainant has been effectively driven off campus, and most of these commenters urged the Department to use ‘‘denies or limits’’ or simply ‘‘limits’’ instead of ‘‘effectively denies’’ to clarify that unwelcome conduct is actionable when it limits (not only when it has already denied) equal access to education. Many such commenters noted that the 2001 Guidance used ‘‘deny or limit’’ to recognize that students should not be denied a remedy for sexual harassment because they continue to come to class or participate in athletic practice no matter at what personal or emotional cost. At least one commenter stated that the 2001 Guidance only prohibits conduct that is sufficiently serious to deny or limit a student’s educational benefits or opportunities from both a subjective and objective perspective, so if the purpose of the proposed definition is to minimize its misapplication to lowlevel situations that remain protected by the First Amendment (for public institutions) and principles of academic freedom (for private institutions), that could be accomplished simply through clarification of the 2001 Guidance rather than adopting the Davis definition. Several commenters wondered how a victim is supposed to prove effective denial, and stated that such a hurdle only perpetuates the harmful concept of ‘‘the perfect victim’’ that already causes too many victims to question whether their experience has been ‘‘bad enough’’ to be considered valid and worthy of intervention. One commenter asserted that knowledge about high functioning depression is growing more common, but a victim who is attending classes and does not appear significantly affected might believe they cannot even report sexual harassment and must continue suffering in silence. One commenter wondered if this element would mean that a third grade student 750 Commenters cited: Rebecca Campbell, Survivors’ Help-Seeking Experiences With the Legal and Medical Systems, 20 Violence & Victims 1 (2005), for the proposition that trauma cannot be identified or understood by looking at someone and everyone responds to trauma in a different manner. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 PO 00000 Frm 00144 Fmt 4701 Sfmt 4700 sexually harassed by a sixth grade student who still attends school but expresses anxiety to their parent every day, begins bed-wetting, or cries themselves to sleep at night, has experienced ‘‘effective denial’’ or not. The same commenter further wondered if a ninth grader joining the wrestling team who gets sexually hazed by teammates has been ‘‘effectively denied’’ access if he quits the team but still carries on with other school activities. Another commenter stated that ‘‘deny access’’ would seem to allow for a professor to make inappropriate gender related jokes, making students of that gender feel uncomfortable in the class and potentially perform poorer, although they still attend class, so thus they are not ‘‘denied,’’ but rather just ‘‘negatively impacted.’’ One commenter argued that this element mirrors the statutory language of ‘‘excluded from participation,’’ but neglects the other two clauses (denial of benefits and subjected to discrimination) in the Title IX statute. This commenter stated that while this higher standard might be appropriate under the Supreme Court’s rubric for Title IX private lawsuits, the Department should not reduce its own administrative authority because sexual harassment can, and does, deny people educational benefits and opportunities even without excluding them entirely from access to education. This commenter argued that if Congress intended for the denial of benefits clause to be as narrow as the exclusion from participation clause, Congress would not have bothered using the two phrases separately; rules of statutory construction mean that Congress does not use words accidentally or without meaning. The commenter argued that a plain interpretation of the Title IX statute means that a lower level of denial of benefits could violate Title IX as much as a higher level of exclusion from participation. The commenter asserted that this does not mean that a very minor limitation of access would meet the standard, but some limitations (short of ‘‘denial’’) should meet the standard and must be covered by Title IX. One commenter expressed concern over the varied interpretations of ‘‘access’’ to educational activities among Federal courts, noting that some interpret it narrowly (i.e., the ability of a student to enter in or begin an educational activity) while others interpret it more broadly (i.e., the ability to enter into an educational activity free from discriminatory experiences). Another commenter requested clarification that the Department E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations interprets the ‘‘effective denial of equal access’’ element as not just physical inability to attend classes but also where a complainant experiences negative impacts on learning opportunities. Some commenters expressed concern that recipients will be confused about whether they are obligated to intervene if a student skips class to avoid a harasser, has difficulty focusing in class because of harassment, or suffers a decline in their grade point average (GPA) due to harassment, since these consequences have not yet cut off the student’s ‘‘access’’ to education. A few commenters expressed concern that this element could have detrimental effects on international students because they rely on student visas that require them to meet a certain academic performance, so waiting until academic performance has suffered may be too late to help the international student because the student may already have lost their student visa. At least one commenter argued that this element is inappropriate in the elementary and secondary school context because the time-limited nature of education during the developmental years means that requiring inaction until a student has already lost educational access impedes basic civil rights. One commenter wondered if a recipient exercising disciplinary power over student misconduct that does not affect the complainant’s access to its program or activity, but declining to do so for sexual harassment, would be making a gender-based exception that constitutes sex discrimination in violation of Title IX. Several commenters urged the Department to adopt an alternative approach adapted from workplace sexual harassment law, under which unwelcome conduct is actionable where it creates an environment reasonably perceived (and actually perceived) as hostile and abusive, altering work conditions, without requiring any showing of a tangible adverse action or psychological harm.751 One such commenter urged the Department to adopt this ‘‘tried and tested formula’’ because the harm done to a survivor’s educational access and performance should be just one factor in determining whether harassing conduct creates an environment which would be reasonably perceived as hostile, and no single factor should be dispositive but rather based on the totality of all the circumstances.752 One commenter 751 Commenters cited: Harris, 510 U.S. at 22. cited: Harris, 510 U.S. at 22–23 (‘‘This is not, and by its nature cannot be, a mathematically precise test . . . But we can say that 752 Commenters VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 suggested replacing ‘‘effectively denies a person’s equal access’’ with ‘‘effectively bars a person’s access to an educational opportunity or benefit’’ because the former sets too high a standard while the ‘‘effectively bars’’ phrase is used in Davis.753 A few commenters argued that eliminating hostile environment in its entirety from analyses of sexual harassment leaves victims without recourse and reflects the Department’s ignorance of the realities of sexual violence because conduct considered benign when examined in isolation can be oppressive and limiting when considered in the context of sexual trauma. One such commenter argued that the decision to eliminate the concept of ‘‘hostile environment’’ without anything in its place is a callous decision that fundamentally contradicts the purpose of Title IX. This commenter contended that harassment in the form of cat-calling, for instance, creates a hostile environment even without interfering with access to education, and should not be tolerated. One commenter stated that the NPRM is inconsistent because at some points, the Department writes that schools must intervene in harassment that ‘‘effectively denies a person equal access to the recipient’s education program or activity,’’ but at other points, the Department omits the critical word ‘‘equal’’ before ‘‘access.’’ Discussion: The Department understands commenters’ concerns that the ‘‘effectively denies a person equal access’’ element sets too high a bar for a sexual harassment complainant to seek assistance from their school, college, or university. The Department reiterates that this element does not apply to the first or third prongs of the § 106.30 definition (quid pro quo harassment and Clery Act/VAWA offenses, none of which need a demonstrated denial of equal access in any particular situation because the Department agrees with commenters that such acts inherently jeopardize equal educational access). The Department appreciates the opportunity to clarify that, contrary to many commenters’ fears and concerns, this element does not require that a complainant has already suffered loss of education before being able to report sexual harassment. This element of the whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances . . . no single factor is required.’’). 753 Commenters cited: Davis, 526 U.S. at 640 (‘‘that such an action will lie only for harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit’’). PO 00000 Frm 00145 Fmt 4701 Sfmt 4700 30169 Davis standard formulated in § 106.30 requires that a person’s ‘‘equal’’ access to education has been denied, not that a person’s total or entire educational access has been denied. This element identifies severe, pervasive, objectively offensive unwelcome conduct that deprives the complainant of equal access, measured against the access of a person who has not been subjected to the sexual harassment. Therefore, we do not intend for this element to mean that more victims will withdraw from classes or drop out of school, or that only victims who do so will have recourse from their schools. This element is adopted from the Supreme Court’s approach in Davis, where the Supreme Court specifically held that Title IX’s prohibition against exclusion from participation, denial of benefits, and subjection to discrimination applies to situations ranging from complete, physical exclusion from a classroom to denial of equal access.754 In line with this approach, the § 106.30 definition does not apply only when a complainant has been entirely, physically excluded from educational opportunities but to any situation where the sexual harassment ‘‘so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.’’ 755 Neither the Supreme Court, nor the final regulations in § 106.30, requires showing that a complainant dropped out of school, failed a class, had a panic attack, or otherwise reached a ‘‘breaking point’’ in order to report and receive a recipient’s supportive response to sexual harassment. The Department acknowledges that individuals react to sexual harassment in a wide variety of ways, and does not interpret the Davis standard to require certain manifestations of trauma or a ‘‘constructive expulsion.’’ Evaluating whether a reasonable person in the 754 See Davis, 526 U.S. at 651 (‘‘It is not necessary, however, to show physical exclusion to demonstrate that students have been deprived by the actions of another student or students of an educational opportunity on the basis of sex. Rather, a plaintiff must establish sexual harassment of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victimstudents are effectively denied equal access to an institution’s resources and opportunities.’’) (emphasis added). 755 See id. at 650–652 (describing the denial of access element variously as: ‘‘depriv[ing] the victims of access to the educational opportunities or benefits provided by the school,’’ ‘‘effectively den[ying] equal access to an institution’s resources and opportunities’’ and ‘‘den[ying] its victims the equal access to education that Title IX is designed to protect.’’) (emphasis added). E:\FR\FM\19MYR2.SGM 19MYR2 30170 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations complainant’s position would deem the alleged harassment to deny a person ‘‘equal access’’ to education protects complainants against school officials inappropriately judging how a complainant has reacted to the sexual harassment. The § 106.30 definition neither requires nor permits school officials to impose notions of what a ‘‘perfect victim’’ does or says, nor may a recipient refuse to respond to sexual harassment because a complainant is ‘‘high-functioning’’ or not showing particular symptoms following a sexual harassment incident. School officials turning away a complainant by deciding the complainant was ‘‘not traumatized enough’’ would be impermissible under the final regulations because § 106.30 does not require evidence of concrete manifestations of the harassment. Instead, this provision assumes the negative educational impact of quid pro quo harassment and Clery Act/VAWA offenses included in § 106.30 and evaluates other sexual harassment based on whether a reasonable person in the complainant’s position would be effectively denied equal access to education compared to a similarly situated person who is not suffering the alleged sexual harassment. Thus, contrary to commenters’ concerns, victims do not need to suffer in silence, and do not need to worry about what types of symptoms of trauma will be ‘‘bad enough’’ to ensure that a recipient responds to their report. Commenters’ examples of a third grader who starts bed-wetting or crying at night due to sexual harassment, or a high school wrestler who quits the team but carries on with other school activities following sexual harassment, likely constitute examples of denial to those complainants of ‘‘equal’’ access to educational opportunities even without constituting a total exclusion or denial of an education, and the Department reiterates that no specific type of reaction to the alleged sexual harassment is necessary to conclude that severe, pervasive, objectively offensive sexual harassment has denied a complainant ‘‘equal access.’’ For reasons described above, the Department believes that adoption and adaption of the Davis standard better serves both the purposes of Title IX’s non-discrimination mandate and constitutional protections of free speech and academic freedom, and thus the final regulations retain the Davis formulation of effective denial of equal access rather than the language used in Department guidance documents. While commenters correctly assert that the Department is not required to use the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Davis standard, for the reasons explained in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Department is persuaded that the Supreme Court’s Title IX cases provide the appropriate backdrop for Title IX enforcement, and the Department has intentionally adapted that framework for administrative enforcement to provide additional protections to complainants (and respondents) not required in private Title IX litigation. With respect to the denial of equal access element, neither the Davis Court nor the Department’s final regulations require complete exclusion from an education, but rather denial of ‘‘equal’’ access. Signs of enduring unequal educational access due to severe, pervasive, and objectively offensive sexual harassment may include, as commenters suggest, skipping class to avoid a harasser, a decline in a student’s grade point average, or having difficulty concentrating in class; however, no concrete injury is required to conclude that serious harassment would deprive a reasonable person in the complainant’s position of the ability to access the recipient’s education program or activity on an equal basis with persons who are not suffering such harassment. This clarification addresses the concerns of some commenters that a rule requiring total denial of access would harm international students whose student visas may be in jeopardy if their academic performance suffers, and the similar concerns from commenters that waiting to help until an elementary school student has dropped out of school would irreparably damage the student’s educational pathways. For the same reasons, § 106.30 does not raise the issue identified by a commenter as to whether a school would be violating Title IX by requiring a student to suffer total exclusion before responding to sexual harassment as compared to other types of misconduct. For reasons described above, the Department is persuaded by Supreme Court reasoning that different standards for actionable harassment are appropriate under Title IX (for educational environments) and Title VII (for the workplace). However, neither law requires ‘‘tangible adverse action or psychological harm’’ before the sexual harassment may be actionable, as a commenter feared would be required under these final regulations. The Department agrees that the Supreme Court used a variety of phrasing through the majority opinion to describe the ‘‘denial of equal access’’ PO 00000 Frm 00146 Fmt 4701 Sfmt 4700 element. However, the Department does not agree with the commenter who suggested that using ‘‘effectively bars access to an educational opportunity or benefit ’’ instead of ‘‘effectively denies equal access to an education program or activity’’ yields a broader or better formulation, and in fact, the Department believes that under the Davis Court’s reasoning, denial of ‘‘equal access’’ to a recipient’s education program or activity reflects a broad standard that appropriately captures situations of unequal access due to sex discrimination, in conformity with Title IX’s non-discrimination mandate, and § 106.30 reflects this standard by using the phrase ‘‘effectively denies a person equal access.’’ The Department disputes that § 106.30 eliminates the concept of hostile environment ‘‘without anything in its place.’’ While the concept of a hostile environment originated under Title VII to describe sexual harassment creating a hostile or abusive workplace environment altering the conditions of a complainant’s job, when interpreting Title IX the Supreme Court carefully applied a standard tailored to address the particular discriminatory ill addressed by Title IX: Denying a person ‘‘the equal access to education that Title IX is designed to protect.’’ 756 Contrary to the contention of some commenters that all unwelcome conduct must be covered by Title IX even if it does not interfere with education, Title IX is concerned with sex discrimination in an education program or activity, but as discussed above, does not stand as a Federal civility code that requires schools, colleges, and universities to prohibit every instance of unwelcome or undesirable behavior. The Department acknowledges that the 2001 Guidance and 2017 Q&A use the phrase ‘‘hostile environment’’ to describe sexual harassment that is not quid pro quo harassment 757 and that these final regulations depart from those guidance documents by describing sexual harassment as actionable when it effectively denies a person equal access to education rather than when the sexual harassment creates a hostile 756 Id. at 652 (holding schools liable where the sexual harassment ‘‘denies its victims the equal access to education that Title IX is designed to protect.’’). 757 2001 Guidance at 5 (‘‘By contrast, sexual harassment can occur that does not explicitly or implicitly condition a decision or benefit on submission to sexual conduct. Harassment of this type is generally referred to as hostile environment harassment.’’); 2017 Q&A at 1. The withdrawn 2011 Dear Colleague Letter and withdrawn 2014 Q&A similarly relied on a hostile environment theory of sexual harassment. 2011 Dear Colleague Letter at 15; 2014 Q&A at 1. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations environment. While the two concepts may overlap, for reasons discussed above, the denial of equal access to education element is more precisely tailored to serve the purpose of Title IX (which bars discrimination in education programs or activities) than the hostile environment concept, which originated to describe the kind of hostile or abusive workplace environment sexual harassment may create under Title VII.758 Under these final regulations, where sexual harassment effectively denies a person ‘‘equal access’’ to education, recipients must offer the complainant supportive measures (designed to restore or preserve the complainant’s equal educational access) 759 and, where a fair grievance process finds the respondent to be responsible for sexually harassing the complainant, the recipient must effectively implement remedies designed to restore or preserve the complainant’s equal educational access.760 The Department appreciates commenters’ pointing out that the NPRM inconsistently used the phrases ‘‘equal access’’ and ‘‘access’’ and has revised the final regulations to ensure that all provisions referencing denial of access, or preservation or restoration of access, include the important modifier ‘‘equal.’’ This will ensure that the appropriate interpretation of this element is better understood by students, employees, and recipients: That Title IX is concerned with ‘‘equal access,’’ not just total denial of access. Changes: We have revised several provisions to ensure the word ‘‘equal’’ appears before ‘‘access’’ (e.g., ‘‘effectively denies equal access’’ or ‘‘restore or preserve equal access’’) to mirror the use of ‘‘equal access’’ in § 106.30 defining ‘‘sexual harassment,’’ so that the terminology and interpretation is consistent throughout the final regulations. 758 To the extent that the Supreme Court in Davis cited to Title VII cases as authority for its formulation of the ‘‘effectively denied equal access’’ element for actionable sexual harassment under Title IX, we believe that such citations indicate that the Title IX focus on ‘‘effectively denied equal access’’ element is the educational equivalent of the workplace doctrine of ‘‘hostile environment.’’ E.g., Davis, 526 U.S. at 651 (‘‘Rather, a plaintiff must establish sexual harassment of students that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities. Cf. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. at 67.’’); id. (‘‘Whether gender-oriented conduct rises to the level of actionable ‘harassment’ thus ‘depends on a constellation of surrounding circumstances, expectations, and relationships,’ Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 82, 140 L. Ed. 2d 201, 118 S. Ct. 998 (1998).’’). Even though these final regulations do not rely on a ‘‘hostile environment’’ theory of sexual harassment, a recipient may choose to deliver special training to a class, disseminate information, or take other steps that are designed to clearly communicate the message that the school does not tolerate harassment and will be responsive to any student who reports sexual harassment, as described in the 2001 Guidance, so that no person is effectively denied equal access to education. 2001 Guidance at 16. 759 Section 106.44(a) (requiring that with or without a grievance process, the recipient’s response to sexual harassment must include promptly offering supportive measures to the complainant); § 106.30 (defining ‘‘supportive measures’’ as individualized services provided without fee or charge to complainants or respondents, designed to restore or preserve equal access to education without unreasonably burdening the other party). 760 Section 106.45(b)(1)(i) (requiring the recipient to provide remedies to a complainant where a respondent is found responsible following a grievance process that complies with § 106.45 and stating that remedies may consist of individualized services similar to those that meet the definition in § 106.30 of supportive measures except that remedies (unlike supportive measures) may be punitive or disciplinary against the respondent, and Comments: Some commenters approved of the third prong of the § 106.30 definition’s reference to the Clery Act’s definition of sexual assault as part of the overall definition of ‘‘sexual harassment.’’ Many commenters supported the reference to ‘‘sexual assault’’ but contended that the third prong of the definition should also reference the other VAWA crimes included in the Clery Act regulations, namely, dating violence, domestic violence, and stalking. A few commenters requested clarification as to whether dating violence, domestic violence, and stalking would only count as sexual harassment under § 106.30 if such crimes met the second prong (severe, pervasive, and objectively offensive), and expressed concern that a single instance of an offense such as dating violence or domestic violence might fail to be included because it would not be considered ‘‘pervasive.’’ A few commenters asserted that the proposed regulations would leave dating violence, domestic violence, and stalking in an educational civil rights gray area. Many commenters urged the Department to bring the third prong of the § 106.30 definition into line with the Clery Act, as amended by VAWA, by expressly including dating violence, domestic violence, and stalking. Several commenters argued that dating violence, domestic violence, and VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Prong (3) Sexual Assault, Dating Violence, Domestic Violence, Stalking need not avoid burdening the respondent)); § 106.45(b)(7)(iv) (stating that the Title IX Coordinator is responsible for the effective implementation of remedies). PO 00000 Frm 00147 Fmt 4701 Sfmt 4700 30171 stalking are just as serious as sexual harassment and sexual assault.761 A few commenters recounted working with victims where domestic violence or stalking escalated beyond the point of limiting educational access even tragically ending up in homicides. A few commenters noted that dating violence was recently added as a reportable crime under the Clery Act in part because 90 percent of all campus rapes occur via date rapes,762 and dating violence should be included in the § 106.30 definition. Some commenters asserted that domestic violence is prevalent among youth, and that the highest rate of dating violence and domestic violence against females occurs between the ages of 16– 24,763 precisely when victims are likely to be in high school and college, needing Title IX protections. Commenters argued that if a school fails to properly respond to a student’s domestic violence situation, the student’s health and school performance may suffer and even lead to the victim dropping out of school, and that a significant number of female homicide victims of college age were killed by an intimate partner.764 Many commenters asserted that stalking presents a unique risk to the health and safety of college students due to the significant connection between stalking and intimate partner violence 765 insofar as stalking often occurs in the context of dating violence and sexual violence. Many commenters asserted that stalking is very common on college campuses and within the college population; persons aged 18–24 761 Commenters cited, e.g.: National Association of Student Affairs Administrators in Higher Education (NASPA) & Education Commission of the States, State Legislative Developments on Campus Sexual Violence: Issues in the Context of Safety 7– 8 (2015); Wendy Adele Humphrey, ‘‘Let’s Talk About Sex’’: Legislating and Educating on the Affirmative Consent Standard, 50 Univ. of S.F. L. Rev. 35, 49, 58–60, 62–64, 71 (2016); Emily A. Robey-Phillips, Federalism in Campus Sexual Violence: How States Can Protect Their Students When a Trump Administration Will Not, 29 Yale J. of L. & Feminism 373, 393–414 (2018). 762 Commenters cited: Health Research Funding, 39 Date Rape Statistics on College Campuses, https://healthresearchfunding.org/39-date-rapestatistics-college-campuses/. 763 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Factbook: Violence by Intimates (1998). 764 Commenter cited: U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Factbook: Violence by Intimates (1998); U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Patterns and Trends: Homicide Trends in the United States, 1980–2008 (Nov. 2011); Katie J. M. Baker, Domestic Violence on Campus is the Next Big College Controversy, Buzzfeed News (Jun. 9, 2015). 765 Commenters cited: Judith McFarlane et al., Stalking and Intimate Partner Femicide, 3 Homicide Studies 300 (1999). E:\FR\FM\19MYR2.SGM 19MYR2 30172 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations (the average age of most college students) experience the highest rates of stalking victimization of any age group; 766 and college-aged women are stalked at higher rates than the general population and that one study showed that over 13 percent of college women had experienced stalking in the academic year prior to the study.767 One commenter cited a study that showed that in ten percent of stalking situations the victim reported that the stalker committed, or attempted, forced sexual contact.768 At least one commenter cited research showing that sexual assault perpetrators often employed classic stalking strategies (e.g., surveillance and information-gathering) to select victims.769 A few commenters provided examples of the kind of stalking behaviors that commonly victimize college students, including following a victim to and from classes, repeatedly contacting a student despite requests to cease communication, and threats of self-harm if a student does not pay attention to the stalker. Several commenters expressed concern that without express recognition of stalking as a sexual harassment violation, the discrete incidents involved in a typical stalking pattern might not meet the Davis standard and thus would not be reportable under Title IX. One commenter elaborated on an example of typical stalking behavior that would fall through the cracks of effective response under the proposed rules, where the stalking behavior is pervasive but arguably not serious (when each incident is considered separately) and the complainant declines a no-contact order because the locations where the complainant encounters the respondent are places the complainant needs to access to pursue the complainant’s own educational activities. This commenter argued that failure to address sex-based stalking may have dire consequences; the commenter stated that several tragic homicides of female students 770 were 766 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Special Report: Stalking Victimization in the United States (2009). 767 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, National Institute of Justice, Research Report: The Sexual Victimization of College Women (2000). 768 Commenters cited: Id. 769 Commenters cited: David Lisak & Paul Miller, Repeat Rape and Multiple Offending Among Undetected Rapists, 17 Violence & Victims 1 (2002). 770 Commenters described three such homicide situations: The 2010 murder of University of Virginia fourth-year student, Yeardley Love, by her boyfriend who was also a fourth-year student; the 2018 murder of University of Utah student Lauren McCluskey, by her ex-boyfriend; the 2018 murder of 16 year old Texas high schooler Shana Fisher— the first victim of the 17 year old shooter who killed VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 preceded by this fairly standard stalking-turned-violent pattern. Discussion: The Department appreciates commenters’ support for including ‘‘sexual assault’’ referenced in the Clery Act as an independent category of sexual harassment in § 106.30 and we are persuaded by the many commenters who asserted that the other Clery Act/VAWA sex-based offenses (dating violence, domestic violence, and stalking) also should be included in the same category as sexual assault. Commenters correctly pointed out that without specific inclusion of dating violence, domestic violence, and stalking in the third prong of § 106.30, those offenses would need to meet the Davis standard set forth in the second prong of the § 106.30 definition. While the NPRM assumed that many such instances would meet the elements of severity and pervasiveness (as well as objective offensiveness and denial of equal access), commenters reasonably expressed concerns that these offenses may not always meet the Davis standard.771 The Department agrees with commenters who urged that because these offenses concern nonexpressive, often violent conduct, even single instances should not be subjected to scrutiny under the Davis standard. Dating violence, domestic violence, and stalking are inherently serious sex-based offenses 772 that risk equal educational access, and failing to provide redress for even a single incident does, as commenters assert, present unnecessary risk of allowing sex-based violence to escalate. The Department is persuaded by commenters’ arguments and data showing that dating violence, domestic violence, and stalking are prevalent, serious problems affecting students, especially college-age students. The Department believes that a broad rule prohibiting those offenses appropriately falls under Title IX’s non-discrimination mandate without raising any First Amendment concerns. The Department therefore revises the final regulations to ten students, beginning with Shana who had recently rejected him romantically. 771 As commenters noted, dating violence and domestic violence may fail to meet the Davis standard because although a single instance is severe it may not be pervasive, while a course of conduct constituting stalking could fail to meet the Davis standard because the behaviors, while pervasive, may not independently seem severe. 772 Stalking may not always be ‘‘on the basis of sex’’ (for example when a student stalks an athlete due to celebrity worship rather than sex), but when stalking is ‘‘on the basis of sex’’ (for example, when the stalker desires to date the victim) stalking constitutes ‘‘sexual harassment’’ under § 106.30. Stalking that does not constitute sexual harassment because it is not ‘‘on the basis of sex’’ may be prohibited and addressed under a recipient’s nonTitle IX codes of conduct. PO 00000 Frm 00148 Fmt 4701 Sfmt 4700 include dating violence, domestic violence, and stalking as defined in the Clery Act and VAWA. Changes: We have revised the third prong of the final § 106.30 definition of sexual harassment to add, after sexual assault, dating violence, domestic violence, and stalking as defined in VAWA. Comments: One commenter objected to the reference to ‘‘sexual assault’’ in the third prong of the § 106.30 definition by asserting that the definition seemed to be just for the purpose of having sexual assault in the proposed regulations without any intent to enforce it. A few commenters believed that the third prong’s reference to ‘‘sexual assault’’ will not prevent sexual assault even though reported numbers of rapes might decline, because certain situations would no longer be considered rape. A few commenters objected to the reference to the Clery Act definition of ‘‘sexual assault,’’ asserting that the definition of ‘‘sexual assault’’ is too narrow because it fails to capture sexbased acts such as administration of a date rape drug, attempted rape, a respondent forcing a complainant to touch the respondent’s genitals, the touching of a complainant’s non-private body part (e.g., face) with the respondent’s genitals, or an unwanted and unconsented-to kiss on the cheek (even if coupled with forcing apart the complainant’s legs). One commenter believed the definition of sexual assault is too narrow because it does not include a vast number of ‘‘ambiguous’’ sexual assaults; the commenter argued that coercive sexual violence often includes a layer of guilt-inducing ambiguity that may arise from explicit or implied threats used by the perpetrator as a means of compelling nominal (but not genuine) consent. One commenter stated that from December of 2017 to December of 2018, 2,887 people in the United States Googled the question ‘‘was I raped?’’ and according to the same data from Google Trends, in the same time span, 2,311 people Googled ‘‘rape definition’’ and over the last five years, 10,781 and 12,129 people have searched for the question and definition respectively. This commenter argued that these numbers reflect a lack of certainty surrounding what constitutes rape and demonstrate the need for clarity and better education rather than a vague reference to ‘‘sexual assault.’’ Another commenter stated that sexual assault cases often fit within a certain ‘‘gray area’’ often centered on consent issues, and that most sexual violence situations are not black and white; the E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations commenter opined that Title IX should be available to help complainants whose experience is ‘‘a little grayer’’ because otherwise people will continue to pressure and coerce partners into having sex that is not truly consensual, creating more and more trauma. At least one commenter asserted that historically, courts have considered conduct that meets any reasonable definition of criminal sexual assault, including rape, as sex-based harm under Title IX,773 and thus a separate reference to ‘‘sexual assault’’ in the § 106.30 definition is unnecessary and only serves to blur the distinction between school-based administrative processes and criminal justice standards. Several other commenters, by contrast, pointed to at least one Federal court opinion holding that a rape failed to meet the ‘‘severe and pervasive’’ standard in private litigation under Title IX.774 At least one commenter expressed concern that using the Clery Act’s definition of sexual assault (which includes ‘‘fondling’’ under the term ‘‘sexual assault’’) would encompass ‘‘butt slaps’’ (as ‘‘fondling’’) yet this misbehavior occurs with such frequency especially in elementary and secondary schools that school districts will be overwhelmed with needing to investigate those incidents under the strictures of the Title IX grievance process. Another commenter expressed concern that including sexual assault (particularly fondling) in the third prong of the § 106.30 definition is too broad, and wondered whether this definition could encompass innocent play by small children, such as ‘‘playing doctor.’’ This commenter argued that where the conduct at issue does not bother the participants it cannot create a subjectively hostile environment or interfere with equal access to an education, regardless of lack of consent based on being under the age of majority.775 773 Commenters cited: Soper v. Hoben, 195 F.3d 845, 855 (6th Cir. 1999) (assertion that victim was raped, sexually abused, and harassed obviously qualifies as severe, pervasive, and objectively offensive sexual harassment). 774 Commenters cited: Ross v. Corp. of Mercer Univ., 506 F. Supp. 2d 1325, 1358 (M.D. Ga. 2007) (finding that a single instance of rape was not pervasive under the Davis standard). 775 Commenters cited: Newman v. Federal Express, 266 F.3d 401 (6th Cir. 2001) (racial harassment claim fails when victim is not seriously offended); Jadon v. French, 911 P.2d 20, 30–31 (Alaska 1996) (conduct that does not seriously offend the victim does not create a subjectively hostile environment and thus is not sexually harassing). Conduct must be not just ‘‘unwelcome,’’ Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67–68 (1986), but also subjectively hostile and annoying to constitute sexual harassment. This commenter argued that ‘‘sexual assault’’ must include both subjective unwelcomeness and objective VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 One commenter argued that because the Clery Act definition of ‘‘sexual assault’’ includes incest and statutory rape, such a definition will encompass incidents that are consensual when Title IX should be focused on discriminatory conduct, which should be restricted to nonconsensual or unwanted conduct; the commenter asserted that where a half-brother and half-sister, or a 13 year old and an 18 year old, engage in consensual sexual activity the Title IX process should not be used to intervene, even if such conduct may constitute criminal offenses that can be addressed through a criminal justice system. Another commenter argued that the inclusion of statutory rape sweeps up sexual conduct by underage students no matter how consensual, welcome, and reciprocated the conduct might be, and asserted that this over-inclusion threatens to turn Title IX into enforcement of high school and firstyear college students through repressive administrative monitoring of youth sexuality in instances that are not severe, not pervasive, and do not impede educational access. One commenter described a particular institution of higher education’s sexual misconduct policy as defining sexual assault broadly to include ‘‘any other intentional unwanted bodily contact of a sexual nature,’’ a standard the commenter argued is ambiguous and overbroad; the commenter argued that the final regulations should clarify that schools cannot apply a definition of ‘‘sexual assault’’ that equates all unwanted touching (such as a kiss on the cheek) with groping or penetration because it is unfair to treat kissing without verbal consent the same as a sex crime and, in the long run, makes it less likely that women will be taken seriously when sex crimes occur. This commenter also asserted that vague, overbroad definitions of sexual assault disproportionately harm students of color.776 interference with access to education to be actionable and also cited: Gordon v. England, 612 F. App’x 330 (6th Cir. 2015) (‘‘extreme groping’’ did not create an objectively hostile environment, by itself, and thus did not violate Title VII); Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) (holding misdemeanor sexual assault involving touching of breast did not create objectively hostile environment, by itself, and thus did not violate Title VII). 776 Commenters cited: Ben Trachtenberg, How University Title IX Enforcement and Other Discipline Processes (Probably) Discriminate Against Minority Students, 18 Nev. L. J. 107 (2017); Emily Yoffe, The Question of Race in Campus Sexual-Assault Cases: Is the system biased against men of color?, The Atlantic (September 2017) (noting that male students of color are ‘‘vastly overrepresented’’ in the cases Yoffe has tracked and arguing that as ‘‘the definition of sexual assault PO 00000 Frm 00149 Fmt 4701 Sfmt 4700 30173 Some commenters believed that the final regulations should include sexual assault in the definition but should use a definition of sexual assault different from the proposed rules’ reference to ‘‘sexual assault’’ under the Clery Act regulations. One commenter believed that laypersons reading the regulation should not have to refer to yet another Federal regulation in order to know the definition of ‘‘sexual assault.’’ Another commenter stated that by including a cross-reference to the Clery Act regulation, this Title IX regulation could have its definition of sexual assault changed due to regulatory changes under the Clery Act, and that sexual assault should be explicitly defined rather than relying on a cross-reference to a different regulation. One commenter, supportive of the threeprong definition of sexual harassment in § 106.30, suggested that the provision should include a full definition of sexual assault to better clarify prohibited conduct rather than a crossreference to the Clery Act. A few other commenters asserted that the Clery Act definition of sexual assault poses problems; they argued that reference to the Clery Act regulations should be replaced by inserting a definition of sexual assault directly into § 106.30. One such commenter argued that the Clery Act definition of sexual assault is biased against men because under the definitions of rape and fondling, a male who performs oral sex on a female victim likely commits ‘‘rape’’ while a female who performs oral sex on a male victim at most commits ‘‘fondling,’’ but not the more serious-sounding offense of rape. One commenter proposed an alternate definition of sexual assault that would define sexual assault by reference to crimes under each State law as classified under the FBI Uniform Crime used by colleges has become broader and blurrier, it certainly seems possible that unconscious biases might tip some women toward viewing a regretted encounter with a man of a different race as an assault. And as the standards for proving assault have been lowered, it seems likely that those same biases, coupled with the lack of resources common among minority students on campus, might systematically disadvantage men of color in adjudication, whether or not the encounter was interracial.’’); Janet Halley, Trading the Megaphone for the Gavel in Title IX Enforcement, 128 Harv. L. Rev. Forum 103, 106–08 (2015) (‘‘American racial history is laced with vendetta-like scandals in which black men are accused of sexually assaulting white women’’ followed by revelations ‘‘that the accused men were not wrongdoers after all . . . . morning-after remorse can make sex that seemed like a good idea at the time look really alarming in retrospect; and the general social disadvantage that black men continue to carry in our culture can make it easier for everyone in the adjudicative process to put the blame on them . . . . Case after Harvard case that has come to my attention . . . has involved black male respondents.’’). E:\FR\FM\19MYR2.SGM 19MYR2 30174 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Reporting Program’s (‘‘FBI UCR’’) National Incident-Based Reporting System (NIBRS). This commenter asserted that this alternative definition of sexual assault would better serve the Department’s purpose because it does not require the Department to issue new definitions for Title IX purposes of the degree of family connectedness for incest, the statutory age of consent for statutory rape, consent and incapacity for consent for rape, and other elements in the listed sex offenses. This commenter further asserted that the commenter’s alternative definition would not use the definition of rape in the FBI UCR’s Summary Reporting System (SRS), because the FBI has announced that it is retiring the SRS on January 1, 2021 and will collect crime data only through NIBRS thereafter. Another commenter asserted that the reference in § 106.30 to 34 CFR 668.46(a) for a definition of sexual assault fails to provide meaningful guidance on what conduct recipients must include under Title IX, because the Clery Act regulation relies on the FBI UCR, which is a reporting system designed to aggregate crime data across the Nation, not intended to provide guidance about what conduct is acceptable or unacceptable for enforcement purposes. Under the Clery Act regulation, this commenter points out that ‘‘rape’’ and ‘‘fondling’’ do not define what consent (or lack of consent) means, and ‘‘fondling’’ does not identify which body parts are considered ‘‘private.’’ This commenter argued that the need for clarity about what constitutes sexual assault is too important to leave recipients to muddle through vague definitions, and proposed that the third prong of § 106.30 use the following alternative definition of sexual assault: the penetration or touching of another’s genitalia, buttocks, anus, breasts, or mouth without consent; a person acts without consent when, in the context of all the circumstances, the person should reasonably be aware of a substantial risk that the other person is not voluntarily and willingly engaging in the conduct at the time of the conduct; sexual assault must effectively deny a person equal access to the recipient’s education program or activity. Discussion: The Department emphasizes that including sexual assault as a form of sexual harassment is not an empty reference; the Department will enforce each part of the § 106.30 definition, including requiring recipients to respond to sexual assault, vigorously for the benefit of all persons in a recipient’s education program or activity. The Department believes that VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the Clery Act’s reference to sexual assault is appropriately broad and thus does not agree with the commenter’s contention that the sexual assault reference excludes acts that should be considered rape or sexual assault. The Department acknowledges commenters’ concerns that not every act related to or potentially involved in a sexual assault would meet the Clery Act definition of sexual assault. With respect to violative acts such as commenters’ examples of administration of a date rape drug, touching a non-private body part with the perpetrator’s private body part, and so forth, such acts constitute criminal acts and/or torts under State laws and likely constitute separate offenses under recipients’ own codes of conduct. Therefore, such egregious acts can be addressed even if they do not constitute sexual harassment under Title IX. With respect to an attempted rape, we define ‘‘sexual assault’’ in § 106.30 by reference to the Clery Act,777 which in turn defines sexual assault by reference to the FBI UCR,778 and the FBI has stated that the offense of rape includes attempts to commit rape.779 The Department disputes a commenter’s contention that the sexual assault definition in § 106.30 lacks sufficient precision to capture sexual assault that occurs under what the commenter called ‘‘guilt-inducing ambiguity’’ or ‘‘gray areas’’ often centered around whether the complainant genuinely consented or only consented due to coercion. For reasons explained in the ‘‘Consent’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, the Department intentionally leaves recipients flexibility and discretion to craft their own definitions of consent (and related terms often used to describe the absence or negation of consent, such as coercion). The Department believes that a recipient should select a definition of sexual consent that best serves the unique needs, values, and environment of the recipient’s own educational community. So long as a recipient is required to respond to sexual assault (including offenses such as rape, statutory rape, and fondling, 777 Section 106.30 (defining ‘‘sexual harassment’’ to include ‘‘Sexual assault’’ as ‘‘defined in 20 U.S.C. 1092(f)(6)(A)(v)’’). 778 20 U.S.C. 1092(f)(6)(A)(v) (‘‘The term ‘sexual assault’ means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.’’). 779 U.S. Dep’t. of Justice, Federal Bureau of Investigation, UCR Offense Definitions (with respect to rape, ‘‘Attempts or assaults to commit rape are also included’’), https://ucrdatatool.gov/offenses. cfm. PO 00000 Frm 00150 Fmt 4701 Sfmt 4700 which depend on lack of the victim’s consent), the Department believes that recipients should retain flexibility in this regard. The Department has revised the final regulations to state that it will not require recipients to adopt a particular definition of consent.780 With respect to the commenter’s point regarding a lack of certainty about what constitutes rape, the Department believes that including sexual assault in these Title IX regulations will contribute to greater societal understanding of what sexual assault is and why every person should be protected against it. Because Federal courts applying the Davis standard have reached different conclusions about whether a single rape has constituted ‘‘severe and pervasive’’ sexual harassment sufficient to be covered under Title IX, we are including single instances of sexual assault as actionable under the § 106.30 definition. We believe that sexual assault inherently creates the kind of serious, sex-based impediment to equal access to education that Title IX is designed to prohibit, and decline to require ‘‘denial of equal access’’ as a separate element of sexual assault. The Department understands the concerns of some commenters that including ‘‘fondling’’ under the term sexual assault poses a perceived challenge for recipients, particularly elementary and secondary schools, where, for instance, ‘‘butt slaps’’ may be a common occurrence. The Department appreciates the opportunity to clarify that under the Clery Act, fondling is a sex offense defined (by way of reference to the FBI UCR) as the touching of a person’s private body parts without the consent of the victim for purposes of sexual gratification. This ‘‘purpose’’ requirement separates the sex offense of fondling from the touching described by commenters as ‘‘children playing doctor’’ or inadvertent contact with a person’s buttocks due to jostling in a crowded elevator, and so forth. Where the touching of a person’s private body part occurs for the purpose of sexual gratification, that offense warrants inclusion as a sexual assault, and if the ‘‘butt slaps’’ described by one commenter as occurring frequently in elementary and secondary schools do constitute fondling, then those elementary and secondary schools must respond to knowledge of those sex offenses for the protection of students. The definition of fondling, properly understood, appropriately guides schools, colleges, and universities to consider fondling as a sex offense under Title IX, while distinguishing touching 780 Section E:\FR\FM\19MYR2.SGM 106.30 (entry for ‘‘consent’’). 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations that does not involve the requisite ‘‘purpose of sexual gratification’’ element, which still may be addressed by a recipient outside a Title IX process. The Department notes that recipients may find useful guidance in State law criminal court decisions that often recognize the principle that, with respect to juveniles, a sexualized purpose should not be ascribed to a respondent without examining the circumstances of the incident (such as the age and maturity of the parties).781 The Department declines to create an exception for fondling that occurs where both parties engage in the conduct willingly even though they are underage, because of an underage party’s inability to give legal consent to sexual activity, and as discussed above the ‘‘for the purposes of sexual gratification’’ element of fondling protects against treating innocuous, non-sexualized touching between children as sexual harassment under Title IX. For similar reasons, the Department declines to exclude incest and statutory rape from the definition of sexual assault. The Department understands commenters’ concerns, but will not override the established circumstances under which consent cannot legally be given (e.g., where a party is under the age of majority) or under which sexual activity is prohibited based on familial connectedness (e.g., incest). The Department notes that where sexual activity is not unwelcome, but still meets a definition of sexual assault in § 106.30, the final regulations provide flexibility for how such situations may be handled under Title IX. For instance, not every such situation will result in a formal complaint requiring the recipient to investigate and adjudicate the incident; 782 the recipient has the 781 See, e.g., In re K.C., 226 N.C. App. 452, 457 (N.C. App. 2013) (‘‘On the question of sexual purpose, however, this Court has previously held— in the context of a charge of indecent liberties between children—that such a purpose does not exist without some evidence of the child’s maturity, intent, experience, or other factor indicating his purpose in acting[.] . . . Otherwise, sexual ambitions must not be assigned to a child’s actions. . . . The element of purpose may not be inferred solely from the act itself. . . . Rather, factors like age disparity, control by the juvenile, the location and secretive nature of the juvenile’s actions, and the attitude of the juvenile should be taken into account. . . . The mere act of touching is not enough to show purpose.’’) (internal quotation marks and citations omitted). 782 Section 106.30 (defining ‘‘formal complaint’’ to mean a document ‘‘filed by a complainant or signed by a Title IX Coordinator’’ and defining ‘‘complainant’’ to mean ‘‘an individual who is alleged to be the victim of conduct that could constitute sexual harassment’’). Situations where an individual does not view themselves as a ‘‘victim’’ likely will not result in the filing of a formal complaint triggering a § 106.45 grievance process. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 discretion to facilitate an informal resolution after a formal complaint is filed; 783 the final regulations remove the NPRM’s previous mandate that a Title IX Coordinator must file a formal complaint upon receipt of multiple reports against the same respondent; 784 the final regulations allow a recipient to dismiss a formal complaint where the complainant informs the Title IX Coordinator in writing that the complainant wishes to withdraw the formal complaint; 785 and the final regulations do not require or prescribe disciplinary sanctions.786 Thus, the final regulations provide numerous avenues to avoid situations where a recipient is placed in a position of feeling compelled to drag parties through a grievance process where no party found the underlying incident unwelcome, offensive, or impeding access to education, and recipients should not feel incentivized by the final regulations to become repressive monitors of youth sexuality.787 The Department understands a commenter’s concern that some recipients have defined sexual misconduct very broadly, including labeling a wide range of physical contact made without verbal consent as ‘‘sexual assault.’’ For reasons described above and in the ‘‘Consent’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, the Department 783 Section 106.45(b)(9) (permitting a recipient to facilitate informal resolution, with the voluntary written consent of both parties, of any formal complaint except those alleging that an employee sexually harassed a student). 784 See the ‘‘Proposed § 106.44(b)(2) Reports by Multiple Complainants of Conduct by Same Respondent [removed in final regulations]’’ subsection of the ‘‘Recipient’s Response in Specific Circumstances’’ section of this preamble. 785 Section 106.45(b)(3)(ii). 786 See the ‘‘Deliberate Indifference’’ subsection of the ‘‘Adoption and Adaptation of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, noting that the final regulations intentionally refrain from second guessing recipients’ decisions with respect to imposition of disciplinary sanctions following an accurate, reliable determination reached by following a § 106.45 grievance process. This leaves recipients flexibility to decide appropriate sanctions in situations where behavior constituted sexual harassment under § 106.30 yet did not subjectively offend or distress the complainant. 787 See the ‘‘Formal Complaint’’ subsection of the ‘‘Section 106.3 Definitions’’ section of this preamble, discussing the reasons why these final regulations permit a formal complaint (which triggers a recipient’s grievance process) to be filed only by a complainant (i.e., the alleged victim) or by the Title IX Coordinator, and explaining that a Title IX Coordinator’s decision to override a complainant’s wishes by initiating a grievance process when the complainant does not desire that action will be evaluated by whether the Title IX Coordinator’s decision was clearly unreasonable in light of the known circumstances (that is, under the general deliberate indifference standard described in § 106.44(a)). PO 00000 Frm 00151 Fmt 4701 Sfmt 4700 30175 declines to require recipients to adopt particular definitions of consent, and declines to prohibit recipients from addressing conduct that does not meet the § 106.30 definition of sexual harassment under non-Title IX codes of conduct. The Department believes that recipients should retain flexibility to set standards of conduct for their own educational communities that go beyond conduct prohibited under Title IX (or, in the case of defining consent, setting standards for that element of sexual assault). The Department notes that many commenters submitted information and data showing that conduct ‘‘less serious’’ than that constituting § 106.30 sexual harassment can still have negative impacts on victims, and can escalate into actionable harassment or assault when left unaddressed 788 and therefore recipients should retain discretion to decide how to address student and employee misconduct that is not actionable under Title IX. The Department shares commenters’ concerns that vague, ambiguously-worded sexual misconduct policies have resulted in some respondents being punished unfairly. The Department is equally concerned that complainants, too, have often been denied opportunity to understand and participate in Title IX grievance processes to vindicate instances of sexual violation. These concerns underlie the § 106.45 grievance process prescribed in the final regulations, for the benefit of each complainant and each respondent, regardless of race or other demographic characteristics. Thus, even if a recipient chooses a definition of ‘‘consent’’ that results in a broad range of conduct prohibited as sexual assault, the recipient’s students and employees will be aware of the breadth of conduct encompassed and benefit from robust procedural protections to further each party’s respective views and positions with respect to particular allegations. The Department appreciates commenters’ concerns about including sexual assault by reference to the Clery 788 E.g., Rachel E. Gartner & Paul R. Sterzing, Gender Microaggressions as a Gateway to Sexual Harassment and Sexual Assault: Expanding the Conceptualization of Youth Sexual Violence, 31 Affilia: J. of Women & Social Work 491 (2016); Dorothy Espelage et al., Longitudinal Associations Among Bullying, Homophobic Teasing, and Sexual Violence Perpetration Among Middle School Students, 30 Journal of Interpersonal Violence 14 (2014); Eduardo A. Vasquez et al., The sexual objectification of girls and aggression towards them in gang and non-gang affiliated youth, 23 Psychol., Crime & Law 5 (2016); National Academies of Science, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine (Frasier F. Benya et al. eds., 2018). E:\FR\FM\19MYR2.SGM 19MYR2 30176 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Act regulations at 34 CFR 668.46(a). Postsecondary institutions are already familiar with the Clery Act 789 and the Department’s implementing regulations, and although the Clery Act does not apply to elementary and secondary schools, requiring schools, colleges, and universities to reference the same range of sex offenses under both the Clery Act and Title IX will harmonize compliance obligations under both statutes (for postsecondary institutions) while providing elementary and secondary school recipients with a preexisting Federal reference to sex offenses rather than a new definition created by the Department solely for Title IX purposes. In response to commenters’ concerns that reference to the Clery Act regulations leaves these final regulations subject to changes to the Clery Act regulations, the final regulations now reference sexual assault by citing to the Clery Act statute (and as to dating violence, domestic violence, and stalking, the VAWA statute 790), rather than to the Clery Act regulations. The Clery Act statute references sex offenses as defined in the FBI UCR,791 a national crime reporting program designed to standardize crime statistics across jurisdictions. At the same time, this modification preserves the benefit of harmonizing Clery Act and Title IX obligations that arise from a recipient’s awareness of sex offenses. 789 The Clery Act applies to institutions of higher education that receive Federal student financial aid under Title IV of the Higher Education Act of 1965, as amended; see discussion under the ‘‘Clery Act’’ subsection of the ‘‘Miscellaneous’’ section of this preamble. 790 VAWA at 34 U.S.C. 12291(a)(10), (a)(8), and (a)(30), defines dating violence, domestic violence, and stalking, respectively. 791 The Clery Act, 20 U.S.C. 1092(f)(6)(A)(v) defines ‘‘sexual assault’’ to mean an ‘‘offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.’’ The FBI UCR, in turn, consists of two crime reporting systems: The Summary Reporting System (SRS) and the National Incident-Based Reporting System (NIBRS). U.S. Dep’t. of Justice, Criminal Justice Information Services, SRS to NIBRS: The Path to Better UCR Data (Mar. 28, 2017). The current Clery Act regulations, 34 CFR 668.46(a), direct recipients to look to the SRS for a definition of rape and to NIBRS for a definition of fondling, statutory rape, and incest as the offenses falling under ‘‘sexual assault.’’ The FBI has announced it will retire the SRS and transition to using only the NIBRS in January 2021. Federal Bureau of Investigation, Criminal Justice Information Services, Uniform Crime Reporting (UCR) Program, National IncidentBased Reporting System (NIBRS), https:// www.fbi.gov/services/cjis/ucr/nibrs. NIBRS’ forcible and nonforcible sex offenses consist of: Rape, sodomy, and sexual assault with an object (as well as fondling, statutory rape, and incest, as noted above). Thus, reference to the Clery Act will continue to cover the same range of sex offenses under the FBI UCR regardless of whether or when the FBI phases out the SRS. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 The Department disagrees that the Clery Act’s definition of sexual assault is biased or discriminatory against men. Although under the FBI UCR definitions it is possible that, for example, oral sex performed on an unconscious woman may be designated as a different offense than oral sex performed on an unconscious man, the difference is not discriminatory or unfairly biased against men, because any such difference results from differentiation between a penetrative versus non-penetrative act, yet under the FBI UCR both offenses fall under the term sexual assault, and further, penetrative acts against both men and women (and touching the genitalia of men, and of women) all fall under FBI UCR sex offenses. While conduct might be classified differently based on whether the victim was male or female, such offenses would fall under the term sexual assault. All the sex offenses designated under the Clery Act as sexual assault represent serious violations of a person’s bodily and emotional autonomy, regardless of whether a particular sexual assault is categorized as rape, fondling, or other forcible or non-forcible sex offense under the FBI UCR. For similar reasons, the Department declines to adopt the alternative definitions of sexual assault proposed by commenters. The Department believes that, with the final regulations’ modification to reference the Clery Act and VAWA statutes rather than solely the Clery Act regulations, ‘‘sexual assault’’ under § 106.30 is appropriately broad, capturing all conduct falling under forcible and non-forcible sex offenses determined by reference to the FBI UCR, while facilitating postsecondary institution recipients’ understanding of their obligations under both the Clery Act and Title IX and providing an appropriate reference for elementary and secondary schools to protect students from sex offenses under Title IX. The Department disagrees that the definitions of rape and fondling in the FBI UCR are too narrow. The violative sex acts covered by offenses described in the FBI UCR were designed to cover a broad range of sexual misconduct regardless of how different jurisdictions have defined such offenses under State criminal laws,792 an approach that lends itself to the purpose of these final regulations, which is to ensure that recipients across all jurisdictions include a variety of sex offenses as discrimination under Title IX. The Department disagrees that including statutory rape and incest makes the sexual assault category too broad, and declines to adopt the specific alternative definitions of sexual assault proposed by commenters. The Department believes that, in response to commenters’ concerns, the final regulations appropriately capture a broad range of sex offenses referenced in the Clery Act and VAWA (which refer to the FBI UCR without specifying whether to look to the SRS or NIBRS, foreclosing any problem resulting from the FBI’s transition from the SRS to the NIBRS system) while leaving recipients the discretion to select particular definitions of consent (and what constitutes a lack of consent) that best reflect each recipient’s values and community standards and adopt a broader or narrower definition of, e.g., fondling by specifying which body parts are considered ‘‘private’’ or whether the touching must occur underneath or over a victim’s clothing. Regardless of how narrowly or broadly a recipient defines ‘‘consent’’ with respect to the FBI UCR’s categories of forcible and nonforcible sex offenses, the Department believes that any such offenses would constitute conduct jeopardizing equal access to education in violation of Title IX without raising constitutional concerns, and that the § 106.45 grievance process gives complainants and respondents opportunity to fairly resolve factual allegations of such conduct. Changes: The third prong of the § 106.30 definition of sexual harassment now references ‘‘sexual assault’’ per the Clery Act at 20 U.S.C. 1092(f)(6)(A)(v) (instead of referencing the Clery Act regulations at 34 CFR 668.46); and adds reference to VAWA to include ‘‘dating violence’’ as defined in 34 U.S.C. 12291(a)(10), ‘‘domestic violence’’ as defined in 34 U.S.C. 12291(a)(8), and ‘‘stalking’’ as defined in 34 U.S.C. 12291(a)(30). 792 In explaining one of the two systems used in the FBI UCR, the FBI has stated: ‘‘The definitions used in the NIBRS [National Incident-Based Reporting System] must be generic in order not to exclude varying state statutes relating to the same type of crime. Accordingly, the offense definitions in the NIBRS are based on common-law definitions found in Black’s Law Dictionary, as well as those used in the Uniform Crime Reporting Handbook and the NCIC Uniform Offense Classifications. Since most state statutes are also based on commonlaw definitions, even though they may vary as to the specifics, most should fit into the corresponding NIBRS offense classifications.’’ U.S. Dep’t. of Justice, Uniform Crime Reporting System, National Incident-Based Reporting System (2011), https:// ucr.fbi.gov/nibrs/2011/resources/nibrs-offensedefinitions. PO 00000 Frm 00152 Fmt 4701 Sfmt 4700 Gender-Based Harassment Comments: A number of commenters discussed issues related to gender-based harassment, sexual orientation, and gender identity. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Some commenters expressed the general view that LGBTQ individuals need to be protected and were concerned that the proposed rules would make campuses even more unsafe for LGBTQ students and have a negative impact on addressing issues of gender-based discrimination and harassment. Several commenters stated the LGBTQ community experiences sexual violence at much higher rates. Some commenters expressed specific concerns about the impact of the proposed rules, including the definition of sexual harassment, on transgender individuals. A few commenters also stated that transgender students should be treated consistent with their gender identity. Some commenters specifically asked the Department to maintain protections presumably found in the withdrawn Letter from James A. Ferg-Cadima, Acting Deputy Assistant Secretary for Policy, Office for Civil Rights at the Department of Education regarding transgender students’ access to facilities such as restrooms dated January 7, 2015, and ‘‘Dear Colleague Letter on Transgender Students’’ jointly issued by the Civil Rights Division of the Department of Justice and the Office for Civil Rights of the Department of Education, dated May 13, 2016.793 Some commenters expressed concern that the proposed rules promote heterosexuality as the normal or preferred sexual orientation and therefore fail to recognize and capture the identities and experiences of the LGBTQ community and recommended that the Department explicitly state that Title IX protections apply to members of the LGBTQ community. One commenter believed that all public school districts should adopt and enforce policies stating that harassment for any reason, including on the basis of gender identity, will not be tolerated and that appropriate disciplinary measures will be taken and urged the Department to add language to the proposed rules making clear that such harassment is within the meaning of Title IX. Some commenters urged the Department to include specific language referring to sexual harassment based on gender identity, including transgender and gender-nonconforming identities or expressions and expressed concern about the lack of such language in the proposed rules. Some of these 793 See U.S. Department of Education & U.S. Department of Justice, Dear Colleague Letter (Feb. 22, 2017) (withdrawing letters), https:// www2.ed.gov/about/offices/list/ocr/letters/ colleague-201702-title-ix.pdf. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 commenters noted that some courts have interpreted Title IX, Title VII, and similar statutes to prohibit discrimination on the basis of gender identity and sexual orientation because discrimination on either of these bases of discrimination is discrimination on the basis of sex. One commenter acknowledged that contrary case law exists, but asserted Title IX clearly prohibits discrimination on the basis of sex stereotyping which underlies discrimination, harassment, and assaults against LGBTQ people.794 On the other hand, one commenter stated that Title IX is about sex and not gender identity and urged the Department to make clear that biology, not gender identity, determines the definition of men and women. Another commenter asserted that the Department’s use of the phrase ‘‘on the basis of sex’’ in defining sexual harassment is limiting. This commenter asserted that the phrase ‘‘on the basis of sex’’ minimizes and confines experiences of gender discrimination and gender-based violence to a binary understanding by aligning it with sex assigned at birth. Another commenter urged the Department to keep transgender males out of female sports categories as it is unfair to women and girls in competitions. One commenter stated that OCR has long understood that gender-based discrimination, even where discrimination is not sexual in nature, might also fall under Title IX by creating a hostile environment for students. The commenter expressed concern that the term gender only appears once in a footnote in the proposed rules and asked how students’ gender presentation, gender identity, and sexual orientation can be considered under the proposed rules and whether the Department made a conscious decision not to include gender and sexual orientation. Another commenter asked the Department to clarify whether genderbased harassment is still covered under Title IX and whether incidents of sexual exploitation are to be included in these grievance procedures. Other commenters were generally concerned that the proposed rules would discourage participation of women and gender nonconforming students in academia. One commenter 794 Commenters cited, e.g.: R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Comm’n, 884 F.3d 560 (6th Cir.), appeal docketed, No. 18–107 (U.S. August 16, 2019); Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir.), appeal docketed, No. 17–1623 (U.S. June 1, 2018). PO 00000 Frm 00153 Fmt 4701 Sfmt 4700 30177 asserted that the single greatest danger to women’s health is men. The commenter reminded the Department that Title IX helps protect women (as well as those who have been harassed or assaulted) and asked the Department not to endanger women. Another commenter recommended that the Department add language stating that sexual harassment is bidirectional (male-to-female and femaleto-male). Discussion: The Department appreciates the concerns of the commenters. Prior to this rulemaking, the Department’s regulations did not expressly address sexual harassment. We believe that sexual harassment is an important issue, meriting regulations with the force and effect of law rather than mere guidance documents, which cannot create legally binding obligations.795 Title IX, 20 U.S.C. 1681(a), expressly prohibits discrimination ‘‘on the basis of sex,’’ which is why the Department incorporates the phrase ‘‘on the basis of sex’’ in the definition of sexual harassment in § 106.30. The word ‘‘sex’’ is undefined in the Title IX statute. The Department did not propose a definition of ‘‘sex’’ in the NPRM and declines to do so in these final regulations. The focus of these regulations remains prohibited conduct. For example, the first prong of the Department’s definition of sexual harassment concerns an employee of the recipient conditioning the provision of an educational aid, benefit, or service on an individual’s participation in unwelcome sexual conduct, which is commonly referred to as quid pro quo sexual harassment. Any individual may experience quid pro quo sexual harassment. The second prong of the § 106.30 definition of sexual harassment involves unwelcome conduct on the basis of sex determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; any individual may experience this form of harassment, as well. The third prong of the sexual harassment definition in these final regulations is sexual assault, dating violence, domestic violence, or stalking on the basis of sex as defined in the Clery Act and VAWA, respectively, and again, any individual may be sexually assaulted or experience dating violence, domestic violence, or stalking on the basis of sex. Thus, any individual—irrespective of sexual orientation or gender identity— 795 Perez v. Mortgage Bankers Ass’n, 525 U.S. 92, 96–97 (2015). E:\FR\FM\19MYR2.SGM 19MYR2 30178 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations may be victimized by the type of conduct defined as sexual harassment to which a recipient must respond under these final regulations. Title IX and its implementing regulations include provisions that presuppose sex as a binary classification, and provisions in the Department’s current regulations, which the Department did not propose to revise in this rulemaking, reflect this presupposition. For example, 20 U.S.C. 1681(a)(2), which concerns educational institutions commencing planned changes in admissions, refers to ‘‘an institution which admits only students of one sex to being an institution which admits students of both sexes.’’ Similarly, 20 U.S.C. 1681(a)(6)(B) refers to ‘‘men’s’’ and ‘‘women’s’’ associations as well as organizations for ‘‘boys’’ and ‘‘girls’’ in the context of organizations ‘‘the membership of which has traditionally been limited to persons of one sex.’’ Likewise, 20 U.S.C. 1681(a)(7)(A) refers to ‘‘boys’’’ and ‘‘girls’’’ conferences. Title IX does not prohibit an educational institution ‘‘from maintaining separate living facilities for the different sexes’’ pursuant to 20 U.S.C. 1686. Additionally, the Department’s current Title IX regulations expressly permit sex-specific housing in 34 CFR 106.32 (‘‘[h]ousing provided by a recipient to students of one sex, when compared to that provided to students of the other sex’’), separate intimate facilities on the basis of sex in 34 CFR 106.33 (‘‘separate toilet, locker room, and shower facilities on the basis of sex’’ with references to ‘‘one sex’’ and ‘‘the other sex’’), separate physical education classes on the basis of sex in 34 CFR 106.34 (‘‘[t]his section does not prohibit separation of students by sex within physical education classes or activities during participation in wrestling, boxing, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact’’), separate human sexuality classes on the basis of sex in 34 CFR 106.34 (‘‘[c]lasses or portions of classes in elementary and secondary schools that deal primarily with human sexuality may be conducted in separate sessions for boys and girls’’), and separate teams on the basis of sex for contact sports in 34 CFR 106.41 (‘‘a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport’’). In promulgating regulations to implement Title IX, the Department expressly acknowledged physiological differences between the male and female sexes. For VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 example, the Department’s justification for not allowing schools to use ‘‘a single standard of measuring skill or progress in physical education classes . . . [if doing so] has an adverse effect on members of one sex’’ 796 was that ‘‘if progress is measured by determining whether an individual can perform twenty-five push-ups, the standard may be virtually out-of-reach for many more women than men because of the difference in strength between average persons of each sex.’’ 797 The Department declines to take commenters’ suggestions to include a definition of the word ‘‘sex’’ in these final regulations because defining sex is not necessary to effectuate these final regulations and has consequences that extend outside the scope of this rulemaking. These final regulations primarily address a form of sex discrimination—sexual harassment— that does not depend on whether the definition of ‘‘sex’’ involves solely the person’s biological characteristics (as at least one commenter urged) or whether a person’s ‘‘sex’’ is defined to include a person’s gender identity (as other commenters urged). Anyone may experience sexual harassment, irrespective of gender identity or sexual orientation. As explained above, the Department acknowledged physiological differences based on biological sex in promulgating regulations to implement Title IX with respect to physical education. Defining ‘‘sex’’ will have an effect on Title IX regulations that are outside the scope of this rulemaking, such as regulations regarding discrimination (e.g., different treatment) on the basis of sex in athletics. The scope of matters addressed by the final regulations is defined by the subjects presented in the NPRM, and the NPRM did not propose to define sex. The Department declines to address that matter in these final regulations. The Department will continue to look to the Title IX statute and the Department’s Title IX implementing regulations with respect to the meaning of the word ‘‘sex’’ for Title IX purposes. To address a commenter’s assertion that Title IX prohibits sex stereotyping that underlies discrimination against LGBTQ individuals, the Department 796 34 CFR 106.43. Dep’t. of Health, Education, and Welfare, General Administration, Nondiscrimination on the Basis of Sex in Education Programs and Activities Receiving or Benefiting from Federal Financial Assistance, 40 FR 24128, 24132 (June 4, 1975). Through that rulemaking, the Department promulgated § 86.34(d), which is substantially similar to the Department’s current regulation 34 CFR 106.43. 797 U.S. PO 00000 Frm 00154 Fmt 4701 Sfmt 4700 notes that some of the cases the commenter cited are cases under Title VII and are on appeal before the Supreme Court of the United States. The most recent position of the United States in these cases is (1) that the ordinary public meaning of ‘‘sex’’ at the time of Title VII’s passage was biological sex and thus the appropriate construction of the word ‘‘sex’’ does not extend to a person’s sexual orientation or transgender status, and (2) that discrimination based on transgender status does not constitute sex stereotyping but a transgender plaintiff may use sex stereotyping as evidence to prove a sex discrimination claim if members of one sex (e.g., males) are treated less favorably than members of the other sex (e.g., females).798 Although the U.S. Attorney General and U.S. Solicitor General interpret the word ‘‘sex’’ solely within the context of Title VII, the current position of the United States may be relevant as to the public meaning of the word ‘‘sex’’ in other contexts as well. As explained above, the Department does not define ‘‘sex’’ in these final regulations. These final regulations focus on prohibited conduct, irrespective of a person’s sexual orientation or gender identity. Whether a person has been subjected to the conduct defined in § 106.30 as sexual harassment does not necessarily require reliance on a sex stereotyping theory. Nothing in these final regulations, or the way that sexual harassment is defined in § 106.30, precludes a theory of sex stereotyping from underlying unwelcome conduct on the basis of sex that constitutes sexual harassment as defined in § 106.30. With respect to sexual harassment as a form of sex discrimination in these final regulations, the Department’s position in these final regulations 798 See Brief of Respondent Equal Employment Opportunity Commission at 16, 22–27, 50–53, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Comm’n, 884 F.3d 560 (6th Cir.), appeal docketed, No. 18–107 (U.S. August 16, 2019), https://www.supremecourt.gov/ DocketPDF/18/18-107/112655/ 20190816163010995_18-107bsUnitedStates.pdf; accord Amicus Curiae Brief for the United States in Bostock and Zarda, https://www.supremecourt.gov/ DocketPDF/17/17-1618/113417/ 20190823143040818_17-1618bsacUnitedStates.pdf, Bostock v. Clayton County, Ga., 723 F. App’x 964 (11th Cir.), appeal docketed, No. 17–1618 (U.S. June 1, 2018); Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir.), appeal docketed, No. 17–1623 (U.S. June 1, 2018); see also Memorandum from the U.S. Attorney General to the U.S. Attorneys & Heads of Department Components, ‘‘Revised Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964’’ (Oct. 4, 2017) https://www.justice.gov/ag/page/file/ 1006981/download (‘‘Attorney General’s Memorandum’’). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations remains similar to its position in the 2001 Guidance, which provides: Although Title IX does not prohibit discrimination on the basis of sexual orientation, sexual harassment directed at gay or lesbian students that is sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s program constitutes sexual harassment prohibited by Title IX under the circumstances described in this guidance. For example, if a male student or a group of male students target a gay student for physical sexual advances, serious enough to deny or limit the victim’s ability to participate in or benefit from the school’s program, the school would need to respond promptly and effectively, as described in this guidance, just as it would if the victim were heterosexual. On the other hand, if students heckle another student with comments based on the student’s sexual orientation (e.g., ‘‘gay students are not welcome at this table in the cafeteria’’), but their actions do not involve conduct of a sexual nature, their actions would not be sexual harassment covered by Title IX.799 . . . [G]ender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, but not involving conduct of a sexual nature, is also a form of sex discrimination to which a school must respond[.] For example, the repeated sabotaging of female graduate students’ laboratory experiments by male students in the class could be the basis of a violation of Title IX. These final regulations provide a definition of sexual harassment that differs in some respects from the definition of sexual harassment in the 2001 Guidance, as explained in more detail in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section, the ‘‘Sexual Harassment’’ subsection in the ‘‘Section 106.30 Definitions’’ section, and throughout this preamble. These final regulations include sexual harassment as unwelcome conduct on the basis of sex that a reasonable person would determine is so severe, pervasive, and objectively offensive that it denies a person equal educational access; this includes but is not limited to unwelcome conduct of a sexual nature, and may consist of unwelcome conduct based on sex or sex stereotyping. The Department will not tolerate sexual harassment as defined in § 106.30 against any student, including LGBTQ students. 799 2001 Guidance at 3. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 For similar reasons to those discussed above, the Department declines to address discrimination on the basis of gender identity or other issues raised in the Department’s 2015 letter regarding transgender students’ access to facilities such as restrooms and the 2016 ‘‘Dear Colleague Letter on Transgender Students.’’ These final regulations concern sexual harassment and not the participation of individuals, including transgender individuals, in sports or other competitive activities. We do not believe these final regulations serve to discourage the participation of women in a recipient’s education programs and activities, including sports or other competitive activities. These final regulations address sexual exploitation to the extent that sexual exploitation constitutes sexual harassment as defined in § 106.30, and the grievance process in § 106.45 applies to all formal complaints alleging sexual harassment. Sexual harassment is not limited to being bi-directional (male-to-female and female-to-male). As explained above, these final regulations focus on prohibited conduct, irrespective of the identity of the complainant and respondent. As explained above, any person may experience sexual harassment as a form of sex discrimination, irrespective of the identity of the complainant or respondent. Changes: None. Comments: One commenter urged the Department to require that all policies, information, education, training, reporting options, and adjudication processes be accessible and fair and balanced to all students regardless of race, ethnicity, disability, sexual orientation, or other potentially disenfranchising characteristics. One commenter recommended that the Department remove ‘‘sex discrimination issues’’ from the summary section of the preamble because the scope is too narrow and inconsistent with the spirit of Title IX and discrimination in higher education extends beyond sex discrimination. This commenter also stated that the proposed rules refer to recipients’ responsibilities related to actionable harassment under Title IX, but the commenter suggested that the term discrimination would be more appropriate because sex- and genderbased harassment is only one form of discrimination that Title IX prohibits. One commenter stated that if the scope of the proposed rules must be limited to sexual harassment, this scope should be clearly stated in the preamble to not give the impression that other forms of PO 00000 Frm 00155 Fmt 4701 Sfmt 4700 30179 discrimination included in Title IX do not require due process. Discussion: Title IX expressly prohibits discrimination on the basis of sex and not race, disability, or other protected characteristics, and the Department does not have the legal authority to promulgate regulations addressing discrimination on the basis of protected characteristics, other than sex, under Title IX. The Department enforces other statutes such as Title VI, which prohibits discrimination on the basis of race, color, and national origin. The Department’s other regulations specifically address discrimination based on these and other protected characteristics. These final regulations require that all policies, information, education, training, reporting options, and adjudication processes be accessible and fair for all students. For example, any complainant will be offered supportive measures, even if that person does not wish to file a formal complaint under § 106.44(a). Any respondent will receive the due process protections in the § 106.45 grievance process before the imposition of any disciplinary sanctions for sexual harassment under § 106.44(a). Additionally, the recipient’s nondiscrimination statement, designation of a Title IX Coordinator, policy, grievance procedures, and training materials should be readily accessible to all students pursuant to § 106.8 and § 106.45(b)(10)(i)(D). For the reasons previously explained, the Department does not define sex in these final regulations, as these final regulations focus on prohibited conduct, namely sexual harassment as a form of sex discrimination. As previously explained, the Department’s definition of sexual harassment applies for the protection of any person who experiences sexual harassment, regardless of sexual orientation or gender identity. Although these final regulations constitute the Department’s first promulgation of regulations that address sexual harassment, these final regulations also make revisions to preexisting regulations and regulations such as regulations in subpart A and subpart B of Part 106 that generally address sex discrimination but do not specifically address sexual harassment. For example, the Department revises § 106.8, which concerns the designation of a Title IX Coordinator who will address all forms of discrimination on the basis of sex and not just sexual harassment. The Department clarifies in § 106.8(c) that a recipient must adopt and publish grievance procedures that provide for the prompt and equitable E:\FR\FM\19MYR2.SGM 19MYR2 30180 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations resolution of student and employee complaints, alleging any action that would be prohibited by Part 106 of Title 34 of the Code of Federal Regulations, and also a grievance process that complies with § 106.45 for formal complaints of sexual harassment as defined in § 106.30. Section 106.8(c) thus clarifies that a recipient does not need to apply or use the grievance process in § 106.45 for complaints alleging sex discrimination that does not constitute sexual harassment. Changes: None. Supportive Measures Overall Support and Opposition Comments: Many commenters supported the definition of ‘‘supportive measures’’ in § 106.30 because the provision states that supportive measures may be offered to complainants and respondents; commenters asserted that supportive measures should be offered on an equal basis to all parties, except to the extent public safety concerns would require different treatment, stressing that respondents deal with their own strife as a result of going through the Title IX process. These commenters viewed the § 106.30 definition of supportive measures as appropriately requiring measures that do not disproportionately punish, discipline, or unreasonably burden either party. Many commenters appreciated that the § 106.30 definition of supportive measures included a list illustrating the range of services that could be offered to both parties, and several of these commenters specifically expressed strong support for mutual nocontact orders as opposed to one-way no-contact orders. Many commenters opposed the § 106.30 definition of supportive measures because, while neither party should be presumed to be at fault before an investigation had been completed commenters argued that this provision will cause an overall decrease in the availability of support services and accommodations to victims. Commenters argued that the requirement that supportive measures be ‘‘non-disciplinary, non-punitive,’’ ‘‘designed [but not required] to restore access,’’ and not unreasonably burdensome to the non-requesting party, significantly limits the universe of supportive measures schools could offer to victims by prohibiting any measure reasonably construed as negative towards a respondent. These commenters believed the supportive measures definition was too respondentfocused and effectively prioritized the education of respondents over VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 complainants. Several commenters identified the clause ‘‘designed to effectively restore or preserve’’ and questioned how OCR would review and determine whether a supportive measure met this requirement. One commenter asserted that supportive measures designed to restore ‘‘access,’’ as opposed to equal access, contradicted the proposed definition of ‘‘sexual harassment’’ in § 106.30 as well as the Supreme Court’s holding in Davis because restoring some access is an incomplete remedy for a denial of equal access. Several commenters requested clarification that colleges and universities have flexibility and discretion to approve or disapprove requested supportive measures, including one-way no-contact orders, according to the unique considerations of each situation. Another commenter argued that § 106.30 should be modified to expressly state that schedule and housing adjustments, or removing a respondent from playing on a sports team, do not constitute an unreasonable burden on the respondent when those measures do not separate the respondent from academic pursuits. Commenters argued that § 106.30 should clarify what kind of burdens will be considered ‘‘unreasonable.’’ Commenters urged the Department to modify the definition of supportive measures to require that all such measures be proportional to the alleged harm and the least burdensome measures that will protect safety, preserve equal educational access, and deter sexual harassment. Many commenters suggested that the final regulations should require schools to implement a process through which the parties can seek and administrators can consider appropriate supportive measures, and at least one commenter suggested that a hearing similar to a preliminary injunction hearing under Federal Rule of Civil Procedure 65 should be used, particularly in cases where one party seeks the other party’s removal from certain facilities, programs, or activities. At least one commenter asked the Department to specify that any interim measures must be lifted if the respondent is found not responsible. Many commenters requested clarification as to what types of supportive measures are allowable in the elementary and secondary school context or requested that the Department expand the supportive measures safe harbor and definition to apply in the elementary and secondary school context. Other commenters asserted that there may be a greater need PO 00000 Frm 00156 Fmt 4701 Sfmt 4700 for supportive measures in cases involving international students, women in career preparatory classes such as construction, manufacturing, and wielding, and lower-income students, for whom dropping out of school could have more drastic and long-lasting consequences. Many commenters requested that the Department reconsider or clarify the requirement in § 106.30 that the Title IX Coordinator is responsible for effective implementation of supportive measures, arguing that Title IX Coordinators cannot fulfill all the duties assigned to them under the proposed rules (especially if a recipient has only designated one individual as a Title IX Coordinator) and asserting that the responsibility to implement supportive measures could be easily delegated to other offices on campus. Discussion: The Department appreciates commenters’ support for the § 106.30 definition of supportive measures, and we acknowledge commenters’ arguments that the language employed in the proposed definition of the term ‘‘supportive measures’’ is too respondent-focused or lessens the availability of measures to assist victims. The Department disagrees that this provision prioritizes the needs of one party over the other. For example, the § 106.30 definition states that the individualized services can be offered ‘‘to the complainant or respondent’’ 800 free of charge, that the services shall not ‘‘unreasonably’’ burden either party, and may include services to protect the safety ‘‘of all parties’’ as well as the recipient’s educational environment, or to deter sexual harassment. The Department disagrees that the requirements for supportive measures to be nondisciplinary, non-punitive, and not unreasonably burdensome to the other party indicate a preference for respondents over complainants or prioritize the education of respondents over that of complainants. These requirements protect complainants and respondents from the other party’s request for supportive measures that would unreasonably interfere with either party’s educational pursuits. The 800 We emphasize that a ‘‘complainant’’ is any individual who has been alleged to be the victim of conduct that could constitute sexual harassment, and a ‘‘respondent’’ is any individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment, so a person may be a complainant or a respondent regardless of whether a formal complaint has been filed or a grievance process is pending (and irrespective of who reported the alleged sexual harassment—the alleged victim themselves, or a third party). See § 106.30 defining ‘‘complainant’’ and defining ‘‘respondent.’’ E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations plain language of the § 106.30 definition does not state that a supportive measure provided to one party cannot impose any burden on the other party; rather, this provision specifies that the supportive measures cannot impose an unreasonable burden on the other party. Thus, the § 106.30 definition of supportive measures permits a wide range of individualized services intended to meet any of the purposes stated in that provision (restoring or preserving equal access to education, protecting safety, deterring sexual harassment). We do not believe that it would be appropriate to specify, list, or describe which measures do or might constitute ‘‘unreasonable’’ burdens because that would detract from recipients’ flexibility to make those determinations by taking into the account the specific facts and circumstances and unique needs of the parties in individual situations.801 For similar reasons, we decline to require that supportive measures be ‘‘proportional to the harm alleged’’ and constitute the ‘‘least burdensome measures’’ possible, because we believe that the § 106.30 definition appropriately allows recipients to select and implement supportive measures that meet one or more of the stated purposes (e.g., restoring or preserving equal access; protecting safety; deterring sexual harassment) within the stated parameters (e.g., without being disciplinary or punitive, without unreasonably burdening the other party). The ‘‘alleged harm’’ in a situation alleging conduct constituting sexual harassment as defined in § 106.30 is serious harm and the definition of supportive measures already accounts for the seriousness of alleged sexual harassment while effectively ensuring that supportive measures are not unfair to a respondent; even if a supportive measure implemented by a recipient arguably was not the ‘‘least burdensome 801 The recipient must document the facts or circumstances that render certain supportive measures appropriate or inappropriate. Under § 106.45(b)(10)(ii), a recipient must create and maintain for a period of seven years records of any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment and must document the basis for its conclusion that its response was not deliberately indifferent. Specifically, that provision states that if a recipient does not provide a complainant with supportive measures, then the recipient must document the reasons why such a response was not clearly unreasonable in light of the known circumstances. Thus, if a recipient determines that a particular supportive measure was not appropriate even though requested by a complainant, the recipient must document why the recipient’s response to the complainant was not deliberately indifferent. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 measure’’ possible, in order to qualify as a supportive measure under § 106.30 the measure cannot punish, discipline, or unreasonably burden the respondent. To the extent that commenters are advocating for wider latitude for recipients to impose interim suspensions or expulsions of respondents, the Department believes that without a fair, reliable process the recipient cannot know whether it has interim-expelled a person who is actually responsible or not. Where a respondent poses an immediate threat to the physical health or safety of the complainant (or anyone else), § 106.44(c) allows emergency removals of respondents prior to the conclusion of a grievance process (or even where no grievance process is pending), thus protecting the safety of a recipient’s community where an immediate threat exist. The Department believes that the § 106.30 definition of ‘‘supportive measures’’ in combination with other provisions in the final regulations results in effective options for a recipient to support and protect the safety of a complainant while ensuring that respondents are not prematurely punished.802 In response to commenters’ concerns that omission of the word ‘‘equal’’ before ‘‘access’’ in the § 106.30 definition of supportive measures creates confusion about whether the purpose of supportive measures is intended to remediate the same denial of ‘‘equal access’’ referenced in the § 106.30 definition of sexual harassment, we have added the word ‘‘equal’’ before ‘‘access’’ in the definition of supportive measures, and into § 106.45(b)(1)(i) where similar language is used to refer to remedies. The Department appreciates the opportunity to clarify that whether or not a recipient has implemented a supportive measure ‘‘designed to effectively restore or preserve’’ equal access is a fact-specific inquiry that depends on the particular circumstances surrounding a sexual harassment incident. Section 106.44(a) requires a recipient to offer supportive measures to every complainant irrespective of whether a formal complaint is filed, and if a recipient does not provide a complainant with supportive measures, then the recipient must document the reasons why such a response was not clearly unreasonable in light of the 802 Section 106.44(c) (governing the emergency removal of a respondent who poses an immediate threat to any person’s physical health or safety); § 106.44(d) (permitting the placement of nonstudent employees on administrative leave during a pending grievance process). PO 00000 Frm 00157 Fmt 4701 Sfmt 4700 30181 known circumstances under § 106.45(b)(10)(ii).803 In order to ensure that the definition of supportive measures in § 106.30 is read broadly we have also revised the wording of this provision to more clearly state that supportive measures must be designed to restore or preserve equal access to education without unreasonably burdening the other party, which may include measures designed to protect the safety of parties or the educational environment, or deter sexual harassment. The Department did not wish for the prior language to be understood restrictively to foreclose, for example, a supportive measure in the form of an extension of an exam deadline which helped preserve a complainant’s equal access to education and did not unreasonably burden the respondent but could not necessarily be considered designed to protect safety or deter sexual harassment. The Department was persuaded by the many commenters who requested that the Department expand provisions that incentivize and encourage supportive measures. As previously noted, we have revised § 106.44(a) to require recipients to offer supportive measures to complainants. As explained in the ‘‘Proposed § 106.44(b)(3) Supportive Measures Safe Harbor in Absence of a Formal Complaint [removed in final regulations]’’ subsection of the ‘‘Recipient’s Response in Specific Circumstances’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble, we have eliminated the proposed safe harbor regarding supportive measures altogether and, thus, we do not extend this safe harbor to elementary and secondary schools. As all recipients (including elementary and secondary school recipients) are now required to offer complainants supportive measures as part of their non-deliberately indifference response under § 106.44(a), the proposed safe harbor regarding supportive measures is unnecessary. The Department agrees that the need to offer supportive measures in the absence of, or during the pendency of, an investigation is equally as important in elementary and secondary schools as in postsecondary institutions. The final regulations revise the § 106.30 definition of supportive measures to use the word ‘‘recipient’’ instead of ‘‘institution’’ to clarify that this definition applies to all recipients, not only to postsecondary institutions. 803 See discussion in the ‘‘Section 106.44(a) Deliberate Indifference Standard’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30182 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations To preserve discretion for recipients, the Department declines to impose additional suggested changes that would further restrict or prescribe the supportive measures a recipient may or must offer, including requiring supportive measures that ‘‘do’’ restore or preserve equal access rather than supportive measures ‘‘designed’’ to restore or preserve equal access. Requiring supportive measures to be ‘‘designed’’ for that purpose rather than insisting that such measures actually accomplish that purpose protects recipients against unfair imposition of liability where, despite a recipient’s implementation of measures intended to help a party retain equal access to education, underlying trauma from a sexual harassment incident still results in a party’s inability to participate in an education program or activity. To the extent that commenters desire for the final regulations to specify that certain populations (such as international students) may have a greater need for supportive measures, the Department declines to revise this provision in that regard because the determination of appropriate supportive measures in a given situation must be based on the facts and circumstances of that situation. Supportive measures must be offered to every complainant as a part of a recipient’s response obligations under § 106.44(a). The Department declines to include an explicit statement that schedule and housing adjustments, or removals from sports teams or extracurricular activities, do not unreasonably burden the respondent as long as the respondent is not separated from the respondent’s academic pursuits, because determinations about whether an action ‘‘unreasonably burdens’’ a party are fact-specific. The unreasonableness of a burden on a party must take into account the nature of the educational programs, activities, opportunities, and benefits in which the party is participating, not solely those educational programs that are ‘‘academic’’ in nature. On the other hand, the Department appreciates the opportunity to clarify that, contrary to some commenters’ concerns, schedule and housing adjustments do not necessarily constitute an ‘‘unreasonable’’ burden on a respondent, and thus the § 106.30 definition of supportive measures continues to require that recipients consider each set of unique circumstances to determine what individualized services will meet the purposes, and conditions, set forth in the definition of supportive VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 measures.804 Removal from sports teams (and similar exclusions from schoolrelated activities) also require a factspecific analysis, but whether the burden is ‘‘unreasonable’’ does not depend on whether the respondent still has access to academic programs; whether a supportive measure meets the § 106.30 definition also includes analyzing whether a respondent’s access to the array of educational opportunities and benefits offered by the recipient is unreasonably burdened. Changing a class schedule, for example, may more often be deemed an acceptable, reasonable burden than restricting a respondent from participating on a sports team, holding a student government position, participating in an extracurricular activity, and so forth. The final regulations require a recipient to refrain from imposing disciplinary sanctions or other actions that are not supportive measures, against a respondent, without following the § 106.45 grievance process, and also require the recipient’s grievance process to describe the range, or list, the disciplinary sanctions that a recipient might impose following a determination of responsibility, and describe the range of supportive measures available to complainants and respondents.805 The possible disciplinary sanctions described or listed by the recipient in its own grievance process therefore constitute actions that the recipient itself considers ‘‘disciplinary’’ and thus would not constitute ‘‘supportive measures’’ as defined in § 106.30. If a recipient has listed ineligibility to play on a sports team or hold a student government position, for example, as a possible disciplinary sanction that may be imposed following a determination of responsibility, then the recipient may not take that action against a respondent without first following the § 106.45 grievance process. If, on the other hand, the recipient’s grievance process does not describe or list a specific action as a possible disciplinary sanction that the recipient may impose following a determination of responsibility, then whether such an action (for example, ineligibility to play on a sports team or 804 The 2001 Guidance at 16 takes a similar approach to the final regulations’ approach to supportive measures, by stating that it ‘‘may be appropriate for a school to take interim measures during the investigation of a complaint’’ and for instance, ‘‘the school may decide to place the students immediately in separate classes or in different housing arrangements on a campus, pending the results of the school’s investigation’’ or where the alleged harasser is a teacher ‘‘allowing the student to transfer to a different class may be appropriate.’’ 805 Section 106.44(a); § 106.45(b)(1)(i); § 106.45(b)(1)(vi); § 106.45(b)(1)(ix). PO 00000 Frm 00158 Fmt 4701 Sfmt 4700 hold a student government position) may be taken as a supportive measure for a complainant is determined by whether that the action is not disciplinary or punitive and does not unreasonably burden the respondent. Certain actions, such as suspension or expulsion from enrollment, or termination from employment, are inherently disciplinary, punitive, and/or unreasonably burdensome and so will not constitute a ‘‘supportive measure’’ whether or not the recipient has described or listed the action in its grievance process pursuant to § 106.45(b)(1)(vi). The Department reiterates that a recipient may remove a respondent from all or part of a recipient’s education program or activity in an emergency situation pursuant to § 106.44(c) (with or without a grievance process pending) and may place a non-student employee respondent on administrative leave during a grievance process, pursuant to § 106.44(d).806 Further, a recipient is obligated to conclude a grievance process within a reasonably prompt time frame, thus limiting the duration of time for which supportive measures are serving to maintain a status quo balancing the rights of both parties to equal educational access in an interim period while a grievance process is pending. With respect to supportive measures in the elementary and secondary school context, many common actions by school personnel designed to quickly intervene and correct behavior are not punitive or disciplinary and thus would not violate the § 106.30 definition of supportive measures or the provision in § 106.44(a) that prevents a recipient from taking disciplinary actions or other measures that are ‘‘not supportive measures’’ against a respondent without first following a grievance process that complies with § 106.45. For example, educational conversations, sending students to the principal’s office, or changing student seating or class assignments do not inherently constitute punitive or disciplinary actions and the final regulations therefore do not preclude teachers or school officials from taking such actions to maintain order, protect student safety, and counsel students about inappropriate behavior. By contrast, as discussed above, expulsions and suspensions would constitute disciplinary sanctions (and/or constitute punitive or unreasonably burdensome 806 For further discussion see the ‘‘Additional Rules Governing Recipients’ Responses to Sexual Harassment’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations actions) that could not be imposed without following a grievance process that complies with § 106.45. The Department emphasizes that these final regulations apply to conduct that constitutes sexual harassment as defined in § 106.30, and not to every instance of student misbehavior. These final regulations do not expressly require a recipient to continue providing supportive measures upon a finding of non-responsibility, and the Department declines to require recipients to lift, remove, or cease supportive measures for complainants or respondents upon a finding of nonresponsibility. Recipients retain discretion as to whether to continue supportive measures after a determination of non-responsibility. A determination of non-responsibility does not necessarily mean that the complainant’s allegations were false or unfounded but rather could mean that there was not sufficient evidence to find the respondent responsible. A recipient may choose to continue providing supportive measures to a complainant or a respondent after a determination of non-responsibility. This is not unfair to either party because by definition, ‘‘supportive measures’’ do not punish or unreasonably burden the other party, whether the other party is the complainant or respondent. There may be circumstances where the parties want supportive measures to remain in place or be altered rather than removed following a determination of nonresponsibility, and the final regulations leave recipients flexibility to implement or continue supportive measures for one or both parties in such a situation. The Department also declines to add an additional requirement that schools implement a process by which supportive measures are requested by the parties and granted by recipients, because we wish to leave recipients flexibility to develop processes consistent with each recipient’s administrative structure rather than dictate to every recipient how to process requests for supportive measures. Although we do not dictate a particular process, these final regulations specify in § 106.44(a) that the Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. Complainants will know about the possible supportive VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 measures available to them 807 and will have the opportunity to express what they would like in the form of supportive measures, and the Title IX Coordinator will take into account the complainant’s wishes in determining which supportive measures to offer. The final regulations do prescribe that a recipient’s Title IX Coordinator must remain responsible for coordinating the effective implementation of supportive measures, so that the burden of arranging and enforcing the supportive measures in a given circumstance remains on the recipient, not on any party. We acknowledge commenters’ concerns that these final regulations place many responsibilities on a Title IX Coordinator, and a recipient has discretion to designate more than one employee as a Title IX Coordinator if needed in order to fulfill the recipient’s Title IX obligations.808 With respect for a process to remove a respondent from a recipient’s education program or activity, these final regulations provide an emergency removal process in § 106.44(c) if there is an immediate threat to the physical health or safety of any students or other individuals arising from the allegations of sexual harassment. A recipient must provide a respondent with notice and an opportunity to challenge the emergency removal decision immediately following the removal. Additionally, the grievance process in § 106.45 provides robust due process protections for both parties, and before imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent, a recipient must follow a grievance process that complies with § 106.45. We acknowledge commenters’ concerns regarding the provision in the § 106.30 definition supportive measures that the Title IX Coordinator must coordinate the effective implementation of supportive measures. However, we believe it is important that students know they can work with the Title IX Coordinator to select and implement supportive measures rather than leave the burden on students to work with various other school administrators or offices. The Department recognizes that many supportive measures involve implementation through various offices 807 Section 106.45(b)(1)(ix) requires the recipient’s grievance process to describe the range of supportive measures available to complainants and respondents. Additionally, the Title IX Coordinator must contact an individual complainant to discuss the availability of supportive measures, under § 106.44(a). 808 See discussion in the ‘‘Section 106.8(a) Designation of Coordinator’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. PO 00000 Frm 00159 Fmt 4701 Sfmt 4700 30183 or departments within a school. When supportive measures are part of a school’s Title IX obligations, the Title IX Coordinator must serve as the point of contact for the affected students to ensure that the supportive measures are effectively implemented so that the burden of navigating paperwork or other administrative requirements within the recipient’s own system does not fall on the student receiving the supportive measures. The Department recognizes that beyond coordinating and serving as the student’s point of contact, the Title IX Coordinator will often rely on other campus offices to actually provide the supportive measures sought, and the Department encourages recipients to consider the variety of ways in which the recipient can best serve the affected student(s) through coordination with other offices while ensuring that the burden of effectively implementing supportive measures remains on the Title IX Coordinator and not on students. Changes: We have revised the definition for supportive measures in § 106.30 to refer to ‘‘recipients’’ instead of ‘‘institutions’’ which clarifies that the definition of supportive measures is applicable in the context of elementary and secondary schools as well as in the context of postsecondary institutions. We have added ‘‘equal’’ before ‘‘access’’ in the description of supportive measures designed to restore or preserve equal access to the recipient’s education program or activity. We have revised the second sentence of this provision to clarify that supportive measures must be designed to restore or preserve equal access and must not unreasonably burden the other party, which may include measures also designed to protect safety or the recipient’s educational environment, or deter sexual harassment. No-Contact Orders Comments: Several commenters focused on the list of possible supportive measures included in the definition of supportive measures in § 106.30 and viewed the express inclusion of mutual no-contact orders as a general prohibition on one-way nocontact orders, and asked the Department to clarify whether one-way no-contact orders were prohibited. Other commenters assumed one-way no-contact orders were prohibited, and expressed concern that by disallowing one-way no-contact orders, the onus would be placed on the victim to take extreme measures to provide for their own accommodations and prevent victims from getting the support they needed, or would discourage victims E:\FR\FM\19MYR2.SGM 19MYR2 30184 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations from reporting in the first place. Many commenters asserted that a victim would be forced to face or interact with their alleged harasser in class, in dorms, or elsewhere on campus if one-way nocontact orders were prohibited. Other commenters argued that a victim would have to win an administrative proceeding in order to be granted a oneway no-contact order. Many commenters called for the Department to remove the ‘‘mutual restrictions on contact’’ provision from the list entirely because it is not a victim-focused supportive measure. Additionally, some commenters expressed the belief that mutual no-contact orders are not enforceable because it is hard to determine which party has the burden to comply with the no-contact order if both parties are present in the same location. A few commenters believed that mutual no-contact orders would constitute unlawful retaliation against the victim since such an order would necessarily restrict the victim’s own participation in programs or activities as well as the participation of the respondent. Some commenters argued that mutual no-contact orders were contrary to the public policies underlying VAWA and various State laws, and that mutual no-contact orders are analogous to reciprocal protective or restraining orders, which have been invalidated by at least one State Supreme Court.809 Other commenters asked the Department to expand the list in the § 106.30 definition of supportive measures to include a greater variety of allowable supportive measures. Some commenters argued that the list of possible supportive measures only included prospective measures (that might preserve access going forward) as opposed to remedial measures (that might restore access that had already been lost), and argued that the Department should explicitly mention measures aimed at restoring equal access, such as opportunities to repeat a class or retake an exam or attaching an addendum to a transcript to explain a low grade. Discussion: We acknowledge commenters’ concerns related to the inclusion of mutual no-contact orders on the non-exhaustive list of possible supportive measures in § 106.30, but the Department declines to exclude this example from the list of supportive measures. The list of possible supportive measures included in the § 106.30 definition is illustrative, not exhaustive. The inclusion of ‘‘mutual 809 Commenters cited: Bays v. Bays, 779 So.2d 754 (La. 2001). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 restrictions on contact between the parties’’ on the illustrative list of possible supportive measures in § 106.30 does not mean that one-way no-contact orders are never appropriate. A fact-specific inquiry is required into whether a carefully crafted no-contact order restricting the actions of only one party would meet the § 106.30 definition of supportive measures. For example, if a recipient issues a one-way no-contact order to help enforce a restraining order, preliminary injunction, or other order of protection issued by a court, or if a one-way nocontact order does not unreasonably burden the other party, then a one-way no-contact order may be appropriate. The Department also reiterates that sexual harassment allegations presenting a risk to the physical health or safety of a person may justify emergency removal of a respondent in accordance with the § 106.44(c) emergency removal provision, which could include a no-trespass or other nocontact order issued against a respondent. The inclusion of mutual no-contact orders on an illustrative list does not mean the final regulations require complainants to face their respondents on campus, in classrooms, or in dorms. Rather, the express inclusion of mutual no-contact orders suggests that recipients can offer measures— tempered by the requirements that they are not punitive, disciplinary, or unreasonably burdensome to the other party—to limit the interactions, communications, or contact, between the parties. The final regulations do not require recipients to initiate administrative proceedings (i.e., a grievance process) in order to determine and implement appropriate supportive measures. Contrary to the arguments of commenters, the Department believes that mutual no-contact may constitute reasonable restrictions imposed on both parties, because under certain circumstances such a measure serves the purposes of protecting each party’s right to pursue educational opportunities, protecting the safety of all parties, and deterring sexual harassment. The Department believes that ‘‘mutual restrictions on contact between the parties’’ may in many circumstances provide benefits to the complainant, for example, where such a mutual no-contact order serves the interest of protecting safety or deterring sexual harassment by forbidding communication between the parties, which might not require either party to change dorm rooms or even re-arrange class schedules. Further restrictions, PO 00000 Frm 00160 Fmt 4701 Sfmt 4700 such as avoiding physical proximity between the parties, will require a factspecific analysis to determine the scope of a no-contact order that may be appropriate under § 106.30; for example, where both parties are athletes and sometimes practice on the same field, consideration must be given to the scope of a no-contact order that deters sexual harassment, without unreasonably burdening the other party, with the goal of restricting contact between the parties without requiring either party to forgo educational activities. It may be unreasonably burdensome to prevent respondents from attending extra-curricular activities that a recipient offers as a result of a one-way no contact order prior to being determined responsible; similarly, it may be unreasonably burdensome to restrict a complainant from accessing campus locations in order to prevent contact with the respondent. In some circumstances, for example, a complainant might be offered a supportive measure consisting of a mutual no-contact order restricting either party from communicating with the other (which measure likely would not unreasonably burden either party). If, however, the complainant wishes to avoid all physical sightings of a respondent and not only an order prohibiting communications, if appropriate the complainant may receive a supportive measure in the form of an alternate housing assignment (without fee or cost to the complainant). The Department does not view such a supportive measure in such a circumstance as unreasonably burdening the complainant, because alternate supportive measures also would have prevented sexual harassment (by prohibiting all communication between the parties). Under § 106.44(a), a Title IX Coordinator must consider a complainant’s wishes with respect to supportive measures, and if a complainant would like a different housing arrangement as part of a supportive measure, then a Title IX Coordinator should consider offering such a supportive measure. The Department does not believe that ‘‘mutual restrictions on contact between the parties’’ could constitute unlawful retaliation by restricting the complainant’s own participation in certain programs or activities of the recipient as well as that of the respondent. Such a supportive measure would simply treat both parties equally, and ‘‘restrictions on contact’’ could be limited in scope to prohibiting communications between the parties, E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations which may not affect the complainant’s ability to participate in classes or activities. The Department notes that the § 106.30 definition’s requirements that supportive measures be nondisciplinary and non-punitive apply equally to protect complainants against a recipient taking action that punishes or sanctions a complainant. In response to commenters’ concerns about complainants being unfairly punished in the wake of reporting sexual harassment, the Department added § 106.71 prohibiting retaliation. Actions taken by a recipient under the guise of ‘‘supportive measures’’ that actually have the purpose and effect of penalizing the complainant for the purpose of discouraging the complainant from exercising rights under Title IX would constitute unlawful retaliation. We also acknowledge the various other suggested modifications to the list of supportive measures offered by commenters, but we decline to expand this list. The Department encourages recipients to broadly consider what measures they can reasonably offer to individual students to ensure continued equal access to a recipient’s education program and activities for a complainant, irrespective of whether a complainant files a formal complaint, and for a respondent, when a formal complaint is filed. The Department has provided a list to illustrate the range of possible supportive measures, but the list of supportive measures is not intended to be exhaustive. Nothing in § 106.30 precludes recipients from considering and providing supportive measures not listed in the definition, including measures designed to retrospectively ‘‘restore’’ or prospectively ‘‘preserve’’ a complainant’s equal educational access. We note that the § 106.30 already includes the example of ‘‘course-related adjustments’’ which could encompass several suggested measures identified by commenters, such as opportunities to retake classes or exams, or adjusting an academic transcript. Changes: None. Other Language/Terminology Comments Comments: One commenter expressed concern that the terms ‘‘survivor’’ and ‘‘victim’’ used in the NPRM to describe a person who merely alleges something has happened to them are prejudicial and anti-male. Other commenters asserted that the Department’s proposed regulations are biased in favor of males partly due to the use of neutral terms such as ‘‘complainant’’ and ‘‘respondent’’ instead of ‘‘survivor’’ or ‘‘perpetrator.’’ One commenter VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 suggested that, instead of using the term ‘‘complainant,’’ the final regulations should refer to ‘‘student survivors’’ or ‘‘those who face harassment.’’ The commenter further recommended that the final regulations use the term ‘‘perpetrator’’ instead of ‘‘respondent,’’ saying that the use of the term ‘‘respondent’’ is confusing, and fails to account for perpetrators who are never formally investigated, and therefore are never in a formal respondent role (i.e., because they have not responded to anything). Discussion: The Department disagrees that the use of the term survivor or victim in the NPRM is biased, anti-male, or pro-male. The term ‘‘survivor’’ was used five times in the preamble to refer generally to individuals who have been victims of sexual harassment. The Department listened to advocates for these individuals, as we listened to other stakeholders. The use of the term survivor or victim in that context takes no position on the veracity of any particular complainant or respondent, or complainants or respondents in general. The final regulations are intended to be objective and do not use the term ‘‘survivor’’ or ‘‘victim’’ in the regulatory text, instead using the more neutral terms ‘‘complainant’’ and ‘‘respondent.’’ The final regulations are intended to be fair, unbiased, and impartial toward both complainants and respondents. When a determination of responsibility is reached against a respondent, the Department’s interest is in requiring remedies for the complainant, to further the goal of Title IX by providing remedies to victims of sexual harassment aiming to restore their equal educational access. Although the final regulations do not need to use the word ‘‘victim,’’ once a reliable outcome has determined that a complainant was victimized by sexual harassment, the final regulations mandate that remedies be provided to that complainant precisely because after such a determination has been made, that complainant has been fairly, reliably shown to have been the victim of sexual harassment. Changes: None. Comments: One commenter expressed concern that the terms used in the NPRM reveal a clear preference in protecting the interests of a school and effectively limiting a school’s liability rather than protecting the equal right for all students to have access to higher education free from discrimination. Discussion: The Department does not have, nor does the terminology in the final regulations reflect, any preference for protecting the interests of a school or effectively limiting a school’s liability PO 00000 Frm 00161 Fmt 4701 Sfmt 4700 30185 rather than protecting the equal right of all students to have access to higher education free from discrimination. Although the Department is not required to adopt the deliberate indifference standard articulated by the Supreme Court, we are persuaded by the policy rationales relied on by it and believes it is the best policy approach. As the Court reasoned in Davis, a recipient acts with deliberate indifference only when it responds to sexual harassment in a manner that is ‘‘clearly unreasonable in light of the known circumstances.’’ 810 The Department believes this standard holds recipients accountable without depriving them of legitimate and necessary flexibility to make disciplinary decisions and to provide supportive measures that might be necessary in response to sexual harassment. Moreover, the Department believes that teachers and local school leaders with unique knowledge of the school climate and student body are best positioned to make disciplinary decisions; thus, unless the recipient’s response to sexual harassment is clearly unreasonable in light of known circumstances, the Department will not second guess such decisions. In addition, the final regulations impose obligations on recipients that go beyond the deliberate indifference standard as set forth in Davis; for example, by requiring that recipients’ nondeliberately indifferent response must include offering supportive measures to a complainant under § 106.44(a). Additionally, as explained in more detail in the ‘‘Section 106.44(b) Proposed ‘Safe Harbors,’ generally’’ subsection in the ‘‘Recipient’s Response in Specific Circumstances’’ section, these final regulations do not include any of the proposed safe harbors in the NPRM for recipients. Changes: None. Comments: One commenter opposed the use of criminal terms since many of the terms that relate to the findings have legal definitions in criminal law, for which due process protections already exist, and the use of such language suggests that colleges do not want the overall Title IX process to be an educational experience and not a criminal justice proceeding. Discussion: The Department disagrees with the commenter’s contention. The Department has in no way implied that these proceedings are criminal in nature and the final regulations use terms such as ‘‘complainant’’ and ‘‘respondent,’’ ‘‘decision-maker’’ and ‘‘determination 810 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648–49 (1999). E:\FR\FM\19MYR2.SGM 19MYR2 30186 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations regarding responsibility’’ to describe features of the grievance process, language intentionally adopted to avoid reference to terms used in civil courts or criminal proceedings (e.g., plaintiff, defendant, prosecutor, judge, verdict). In this way, the final regulations acknowledge that the resolution of allegations of Title IX sexual harassment in an education program or activity serves a different purpose and occurs in a different context from a civil or criminal court. As explained in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, the § 106.45 grievance process is rooted in principles of due process to create a process fair to all parties and likely to result in reliable outcomes, and while the Department believes that the grievance process is consistent with constitutional due process, the § 106.45 grievance process is independent from constitutional due process because it is designed to effectuate the purposes of Title IX as a civil rights statute. The Department understands the concerns expressed by some commenters that colleges want the overall Title IX process to be an educational experience and that the outcome is administrative and believes the final regulations prescribe a consistent grievance process appropriate for administratively resolving allegations of sexual harassment in an education program or activity. Changes: None. Comments: One commenter suggested using the word ‘‘discrimination’’ instead of ‘‘harassment’’ in places where the NPRM describes actionable behavior because harassment does not have to occur for there to be discrimination. Discussion: The Department declines to adopt the word ‘‘discrimination’’ instead of ‘‘harassment’’ in these final regulations. The Department’s Title IX regulations already address sex discrimination, and these final regulations intend to address sexual harassment as a particular form of sex discrimination under Title IX. Complaints of sex discrimination that do not constitute sexual harassment may be made to a recipient for handling under the prompt and equitable grievance procedures that recipients must adopt under § 106.8(c). When the sex discrimination complained of constitutes sexual harassment as defined in § 106.30, these final regulations govern how recipients must respond to that form of sex discrimination. Changes: None. Comments: One commenter expressed concern that the NPRM used the term ‘‘guilt,’’ which equates school conduct VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 processes to the court system and seems contrary to the NPRM’s goals of distinguishing between school conduct processes and the judicial system. The commenter argued that instead, the final regulations should use the terms ‘‘found responsible’’ and ‘‘not responsible,’’ and should only draw comparisons with civil, rather than criminal, case law. Discussion: The Department disagrees with the concern that the NPRM inappropriately used the term ‘‘guilt.’’ The word ‘‘guilt’’ appears only in two instances in the NPRM, and neither of those occurrences is in the text of the proposed regulations. In the first instance, the NPRM notes that ‘‘Secretary DeVos stated that in endeavoring to find a ‘better way forward’ that works for all students, ‘non-negotiable principles’ include the right of every survivor to be taken seriously and the right of every person accused to know that guilt is not predetermined.’’ 811 Second, the NPRM states that ‘‘[a] fundamental notion of a fair proceeding is that a legal system does not prejudge a person’s guilt or liability.’’ 812 In both contexts, the NPRM was using the term guilt generally to refer to culpability for an offense. The Department also declines to revise the final regulations to use the terms ‘‘found responsible’’ and ‘‘not responsible’’ because it has already utilized similar language; for example, § 106.45(b)(1)(vi) uses ‘‘determination of responsibility’’ in the context of finding a respondent responsible and § 106.45(b)(7) employs the term ‘‘determination regarding responsibility’’ in the context of a determination that could either find the respondent responsible or nonresponsible. The NPRM uses the same or similar terms.813 Changes: None. Comments: Several commenters suggested that the term ‘‘equitable’’ should be used instead of ‘‘equal’’ because the two terms have different meanings, and Title IX focuses on educational equity. Without citing a specific provision, one commenter argued that ‘‘equal’’ would assume that if a translator were provided for one party, a translator must be provided for the other party. Discussion: The Department understands commenters’ concerns that ‘‘equal’’ and ‘‘equitable’’ have different implications, and the final regulations use both terms with such a distinction in mind. Where parties are given ‘‘equal’’ opportunity, for example, both 811 83 FR 61464. FR 61473. 813 See, e.g., 83 FR 61466, 61470. parties must be treated the same. By contrast, where parties must be treated ‘‘equitably,’’ the final regulations explain what equitable means for a complainant and for a respondent. The Department disagrees that the use of ‘‘equal’’ in these final regulations is inappropriate. The equal opportunity for both parties to receive a disability accommodation does not mean that both parties must receive a disability accommodation or that they must receive the same disability accommodation. Similarly, both parties may not need a translator, and a recipient need not provide a translator for a party who does not need one, even if it provides a translator for the party who needs one. Changes: None. Comments: One commenter suggested using the term ‘‘education program or activity’’ instead of ‘‘schools’’ to be more consistent with statute and case law. The commenter asserted that use of the word ‘‘schools’’ may limit the ability to investigate issues that arise during sporting activities, afterschool programs, on field trips, etc. Discussion: Although the Department declines to remove reference to ‘‘schools,’’ the Department provides a definition for ‘‘elementary and secondary schools’’ as well as ‘‘postsecondary institutions’’ in § 106.30. The Department believes that it is important to distinguish between these types of recipients as the type of hearing that a recipient must provide under § 106.45(b)(6) may be different if the recipient is an elementary or secondary school as opposed to a postsecondary institution. To address the commenter’s concerns, the Department notes that § 106.2(h) provides a definition of ‘‘program or activity’’ as all of the operations of elementary and secondary schools and postsecondary institutions. Additionally, the Department has revised § 106.44(a) to specify that for purposes of §§ 106.30, 106.44, and 106.45, an education program or activity includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs. This definition aligns with the Supreme Court’s opinion in Davis 814 and clarifies when sporting activities, afterschool programs, or field trips constitute part of the recipient’s education program or activity. The Department also revised § 106.44(a) to state that for purposes of §§ 106.30, 106.44, and 106.45, an ‘‘education program or activity’’ also includes any 812 83 PO 00000 Frm 00162 Fmt 4701 Sfmt 4700 814 Davis, E:\FR\FM\19MYR2.SGM 526 U.S. at 645. 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations building owned or controlled by a student organization that is officially recognized by a postsecondary institution. The revisions to § 106.44(a) to help better define ‘‘education program or activity’’ are explained more fully in the ‘‘Section 106.44(a) ‘education program or activity’ ’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section. Changes: The Department has revised § 106.44(a) to specify that an education program or activity includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution. Comments: One commenter expressed concern that the NPRM’s use of the term ‘‘students’’ is too narrow in light of the language of Title IX and current Title IX regulations, as well as the Supreme Court’s repeated determinations that Title IX encompasses all individuals participating in education programs and activities. Another commenter suggested that the term ‘‘student’’ in the NPRM should be replaced with ‘‘person’’ consistent with statute and case law and because the term ‘‘student’’ may be restrictive because it does not encompass employees, volunteers, parents, and community members. One commenter expressed concern that the definition of ‘‘student’’ as a person who has gained admission is problematic because institutions of higher education, particularly those who do not have open enrollment, typically consider an applicant a student once they have submitted a deposit, indicating their acceptance of an admission offer and commitment to attend. Discussion: The Department disagrees with the commenters who opposed the use of the term ‘‘students.’’ Title IX provides that a recipient of Federal funding may not discriminate on the basis of sex in the education program or activity that it operates and extends protections to any ‘‘person.’’ The final regulations similarly use ‘‘person’’ or ‘‘individual’’ to ensure that the Title IX non-discrimination mandate applies to anyone in a recipient’s education program or activity. For example, § 106.30 defines sexual harassment as conduct that deprives ‘‘a person’’ of equal access; § 106.30 defines a ‘‘complainant’’ as an ‘‘individual’’ who is alleged to be the victim of sexual harassment. Where the final regulations use the phrase ‘‘students and employees’’ or ‘‘students,’’ such terms VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 are used not to narrow the application of Title IX’s non-discrimination mandate but to require particular actions by the recipient reasonably intended to benefit students, employees, or both; for example, § 106.8(a) requires recipients to notify ‘‘students and employees’’ of contact information for the Title IX Coordinator. Where the final regulations intend to include ‘‘applicants for admission’’ in addition to ‘‘students’’ the phrase ‘‘applicants for admission’’ is used; for example, § 106.8(b)(2)(ii) precludes recipients from using publications that state that the recipient treats applicants for admission (or employment), students, or employees differently on the basis of sex (unless permitted under Title IX). Both Title IX and existing Title IX regulations use the term ‘‘student’’ ubiquitously.815 The existing Title IX regulations, in 34 CFR 106.2(r), define ‘‘student’’ as ‘‘a person who has gained admission.’’ ‘‘Admission’’, as defined in 34 CFR 106.2(q), ‘‘means selection for part-time, full-time, special, associate, transfer, exchange, or any other enrollment, membership, or matriculation in or at an education program or activity operated by a recipient.’’ The Department disagrees with the commenter’s concern that the definition of ‘‘student’’ as a person who has gained admission is problematic. The Department does not believe the term ‘‘student’’ should be changed to reflect other persons who are not enrolled in the recipient’s education program or activity. The term ‘‘student’’ as defined in 34 CFR 106.2(r) aligns with the definition of ‘‘formal complaint’’ in § 106.30 that provides at the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed.816 A student who has applied for admission and has been admitted is attempting to participate in the education program or activity of the recipient. Changes: None. Comments: One commenter expressed concern that equating ‘‘traumainformed’’ and ‘‘impartial’’ is a false equivalency that threatens to undermine the quality and efficacy of the Title IX process. The commenter argued that ‘‘trauma-informed’’ refers to a body of research, practice, and theory that teaches professionals who interact with victims to recognize that all individuals process trauma differently, to 815 E.g., 20 U.S.C. 1681(a)(2); 34 CFR 106.36. the ‘‘Formal Complaint’’ subsection in the ‘‘Section 106.30 Definitions’’ section of this preamble. 816 See PO 00000 Frm 00163 Fmt 4701 Sfmt 4700 30187 understand different responses to trauma, and to recognize ways in which we can avoid further traumatization of involved parties through sensitive questioning, mindfulness-based practices, and avoiding potentially triggering situations such as unnecessarily repetitive questioning. Further, equating these two terms is dismissive of decades of research and best practices concerning gender and sexual-based violence and harassment prevention and response. Discussion: The Department disagrees that the final regulations equate ‘‘trauma-informed’’ and ‘‘impartial’’ in a manner that undermines the quality and efficacy of the Title IX process. It appears that the commenter prefers the Department to adopt a trauma-informed approach as a best practice. The Department understands from personal anecdotes and research studies that sexual violence is a traumatic experience for survivors. The Department is aware that the neurobiology of trauma and the impact of trauma on a survivor’s neurobiological functioning is a developing field of study with application to the way in which investigators of sexual violence offenses interact with victims in criminal justice systems and campus sexual misconduct proceedings.817 The final regulations require impartiality on the part of Title IX personnel (i.e., Title IX Coordinators, investigators, decision-makers, and persons who facilitate informal resolutions) 818 to reinforce the truthseeking purpose of a grievance process. The Department wishes to emphasize that treating all parties with dignity, respect, and sensitivity without bias, prejudice, or stereotypes infecting interactions with parties fosters impartiality and truth-seeking. While the final regulations do not use the term ‘‘trauma-informed,’’ nothing in the final regulations precludes a recipient from applying trauma-informed techniques, practices, or approaches so long as such practices are consistent with the requirements of § 106.45(b)(1)(iii) and other requirements in § 106.45. Changes: None. Comments: One commenter requested clarification of the numerous provisions of the proposed regulations that refer to 817 E.g., Jeffrey J. Nolan, Fair, Equitable TraumaInformed Investigation Training (Holland & Knight updated July 19, 2019) (white paper summarizing trauma-informed approaches to sexual misconduct investigations, identifying scientific and media support and opposition to such approaches, and cautioning institutions to apply trauma-informed approaches carefully to ensure impartial investigations). 818 E:\FR\FM\19MYR2.SGM 19MYR2 30188 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations specific time frames, such as ten ‘‘days.’’ The commenter suggested that the Department clarify whether these are ‘‘calendar’’ days or ‘‘working’’ days. Discussion: The Department appreciates the commenter’s request for clarification as to how to calculate ‘‘days’’ with respect to various time frames referenced in the proposed regulations and appreciates the opportunity to clarify that because the Department does not require a specific method for calculating ‘‘days,’’ recipients retain the flexibility to adopt the method that works best for the recipient’s operations; for example, a recipient could use calendar days, school days, or business days, or a method the recipient already uses in other aspects of its operations. Changes: None. Comments: One commenter asserted that it is unclear whether § 106.6(d) intended to cover recipients that are not government actors. The commenter suggested adding ‘‘whether or not that recipient is a government actor’’ after ‘‘recipient.’’ Discussion: As explained in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, the Department recognizes that some recipients are State actors with responsibilities to provide due process of law and other rights to students and employees under the U.S. Constitution, while other recipients are private institutions that do not have constitutional obligations to their students and employees. The final regulations apply to all recipients covered by Title IX because fair, reliable procedures that best promote the purposes of Title IX are as important in public schools, colleges, and universities as in private ones. The grievance process prescribed in the final regulations is important for effective enforcement of Title IX and is thus consistent with, but independent of, constitutional due process. Where enforcement of Title IX’s nondiscrimination mandate is likely to present potential intersections with a public recipient’s obligation to respect the constitutional rights of students and employees, the final regulations caution recipients that nothing in these final regulations requires a recipient to restrict constitutional rights.819 Similarly, the Department, as an agency of the Federal government, cannot 819 E.g., § 106.6(d); § 106.44(a) (stating that the Department may not deem a recipient to have satisfied the recipient’s duty to not be deliberately indifferent based on the recipient’s restriction of rights protected under the U.S. Constitution, including the First Amendment, Fifth Amendment, and Fourteenth Amendment). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 require private recipients to restrict constitutional rights. The Department will not require private recipients to abide by restrictions in the U.S. Constitution that do not apply to them. The Department, as a Federal agency, however, must interpret and enforce Title IX in a manner that does not require or cause any recipient, whether public or private, to restrict or otherwise abridge any person’s constitutional rights. Changes: None. Comments: One commenter encouraged the Department to explicitly state that Title IX and the Title IX regulations do not apply to schools that do not receive Federal financial assistance to help protect their autonomy and Constitutional rights, which would promote diversity in education by protecting the autonomy and freedom of private and religious schools to thrive according to their stated mission and purpose. The commenter stated that their schools are committed to providing safe and equal learning opportunities for each student that they serve and noted that such language has been included in reauthorizations of the Elementary and Secondary Education Act (ESEA) and that the Every Student Succeeds Act, the most recent reauthorization passed in 2015, contains Section 8506 which specifically states, ‘‘Nothing in this Act shall be construed to affect any private school that does not receive funds or services under this Act’’ [20 U.S.C. 7886(a)].’’ Discussion: The Department does not believe it is necessary to further explain in the final regulations that Title IX applies only to recipients of Federal financial assistance; the text of Title IX, 20 U.S.C. 1681, clearly states that the Title IX non-discrimination mandate applies to education programs or activities that receive Federal financial assistance, and expressly exempts educational institutions controlled by religious organizations from compliance with Title IX to the extent that compliance with Title IX is inconsistent with the religious tenets of the religious organization even if the educational institution does receive Federal financial assistance.820 Existing Title IX regulations already sufficiently mirror that Title IX statutory language by defining ‘‘recipient’’ 821 and affirming the Title IX exemption for educational institutions controlled by religious organizations.822 Changes: None. 820 20 U.S.C. 1681(a); 20 U.S.C. 1681(a)(3). CFR 106.2(i) (defining ‘‘recipient’’). 822 34 CFR 106.12(a). 821 34 PO 00000 Frm 00164 Fmt 4701 Sfmt 4700 Comments: One commenter stated that the proposed regulations were not easy to understand because the ‘‘Summary’’ section of the NPRM contained too little information. The commenter asserted that although the proposed regulations were intended to protect young people, young people would not be able to understand them. Another commenter opposed the NPRM because, the commenter asserted, the details were perplexing, vague, and did not tell in sufficient detail, how the proposed rules would be implemented in terms of the behavior, conditions, and situations involved. Another commenter expressed concern that the ‘‘sloppy and biased language’’ in the NPRM needed to be corrected, pointing specifically to the summary comments at 83 FR 61462 and elsewhere in the NPRM. Discussion: The Department acknowledges the concern from the commenter that the proposed regulations are not easy enough to understand. However, the purpose of the NPRM is to provide a basic overview of the Department’s proposed actions and reasons for the proposals. The Department believes that the NPRM accomplished this purpose by providing not only a summary section but also a background section and specific discussions of each proposed provision. The Department acknowledges the concern of the commenter that opposed the NPRM because the commenter believed the language was too vague and does not provide sufficient detail as to how the proposed rules would be implemented in specific situations. The Department believes that both the NPRM, and now these final regulations, strike an appropriate balance between containing sufficient details as to a recipient’s legal obligations without improperly purporting to specify outcomes for all scenarios and situations many of which will turn on particular facts and circumstances. The Department wishes to emphasize that when determining how to comply with these final regulations, recipients have flexibility to employ age-appropriate methods, exercise common sense and good judgment, and take into account the needs of the parties involved. The Department disagrees that any of the language in the proposed rules or final regulations is biased, and notes that the Department’s choice of language throughout the text of the final regulations is neutral, impartial, and unbiased with respect to complainants and respondents. Changes: None. Comments: One commenter expressed concern that the final regulations should not emphasize the view that schools are E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations in a unique position to make disciplinary decisions based on school climate because all decisions, including disciplinary decisions, should be made congruent with the intent and spirit of the proposed rules. Stating that schools are in a unique position regarding decision making invites many forms of prejudice and renders decisions less reliable. Discussion: The Department disagrees with the position that the final regulations should not emphasize the view that schools are in a unique position to make disciplinary decisions based on school climate. The Department disagrees with the commenter’s conclusory assertion that by acknowledging schools are in a unique position to make such decisions that the Department invites prejudice that renders decisions less reliable. As the Supreme Court reasoned in Davis, Title IX must be interpreted in a manner that leaves flexibility in schools’ disciplinary decisions and that does not place courts in the position of second guessing the disciplinary decisions made by school administrators.823 As a matter of policy, the Department believes that these same principles should govern administrative enforcement of Title IX. Changes: None. Comments: One commenter suggested including a full list of stakeholders who were interviewed and involved in the process of developing the NPRM to establish credibility (with aliases provided to protect the privacy of individual participants), as well as the meeting minutes included as an appendix. Discussion: The Department does not believe it is necessary to publish a full list of stakeholders who were interviewed and involved in the process of developing the NPRM to establish credibility or publish meeting minutes included as an appendix. The Department noted in the NPRM that it conducted listening sessions and discussions with stakeholders expressing a variety of positions for and against the status quo, including advocates for survivors of sexual violence; advocates for accused students; organizations representing schools and colleges; scholars and experts in law, psychology, and neuroscience; and numerous individuals who have experienced school-level Title IX proceedings as a complainant or respondent; school and college administrators; child and sex abuse prosecutors.824 The Department 823 Davis, 626 U.S. at 648. 824 83 FR 61463–64. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 believes this level of detail is sufficient to support the Department’s contention that the Department conducted wide outreach in developing the NPRM. Changes: None. Comments: One commenter suggested including an index of terms that define legal terminology, including ‘‘respondeat superior, ‘‘reasonableness standard,’’ ‘‘deliberate indifference standard,’’ ‘‘constructive notice,’’ and so forth because the use of legal terminology throughout these regulations without accompanying layperson’s commentary or clear definition of the terminology applied throughout the proposed revisions confuse and divert attention from the actual meaning of the proposed rules. Discussion: The Department does not believe it is necessary to include an index of terms that define legal terminology. The Department has defined key terms as necessary in § 106.30, and § 106.2 also provides relevant definitions. The remainder of the language used in the final regulations should be interpreted both in the context of the final regulations and in accordance with its ordinary public meaning. The Department agrees that the term ‘‘respondeat superior’’ is a legal term of art that may be confusing in light of the final regulations’ frequent use of the word ‘‘respondent’’ which looks very similar to the word ‘‘respondeat’’ as used in the phrase ‘‘respondeat superior’’ in the § 106.30 definition of ‘‘actual knowledge.’’ To address this concern, the Department has revised the definition of ‘‘actual knowledge’’ in § 106.30 to use the term ‘‘vicarious liability’’ instead of ‘‘respondeat superior.’’ Although ‘‘vicarious liability’’ is a legal term, ‘‘vicarious liability’’ more readily conveys the concept of being liable for the actions or omissions of another, without causing unnecessary confusion with the word ‘‘respondent.’’ Changes: Partly in response to commenters’ concerns that the phrase ‘‘respondeat superior’’ was not recognizable as a legal term or was too easily confused with use of the word ‘‘respondent’’ throughout the final regulations, we have revised the definition of ‘‘actual knowledge’’ in § 106.30 by replacing term ‘‘respondeat superior’’ with ‘‘vicarious liability.’’ Comments: One commenter suggested including support and context for the Department’s contention in the NPRM that the proposed rules will give sexual harassment complainants greater confidence to report and expect their school to respond in a meaningful way by separating a recipient’s obligation to PO 00000 Frm 00165 Fmt 4701 Sfmt 4700 30189 respond to a report of sexual harassment from the recipient’s obligation to investigate formal complaints of sexual harassment; the commenter argued that the NPRM thus implies that either complainants do not currently have a clear understanding of their Title IX rights and a school’s obligation to respond or that complainants are under the misconception that all complaints are considered formal complaints under the current Title IX guidance and regulations. Discussion: The Department’s past guidance required recipients to always investigate any report of sexual harassment, even when the complainant only wanted supportive measures and did not want an investigation, which necessarily results in some intrusion into the complainant’s privacy.825 This guidance combined a recipient’s obligation to respond to a report of sexual harassment with the recipient’s obligation to investigate formal complaints of sexual harassment. This guidance also did not distinguish between an investigation which resulted in the imposition of disciplinary sanctions and an inquiry into a report of sexual harassment.826 The Department’s past guidance did not specifically provide both parties the opportunity to know about an investigation and participate in such an investigation, when the investigation may lead to the imposition of disciplinary sanctions against the respondent and the provision of remedies. Through §§ 106.44 and 106.45, these final regulations clarify when a recipient has the affirmative obligation to conduct an investigation that may lead to the imposition of disciplinary sanctions, requires the recipient to notify both parties of such an investigation, and requires the recipient to provide both parties the opportunity to participate in the process. Irrespective of whether a recipient conducts an investigation under § 106.45, a recipient may inquire about a report of sexual harassment and must offer supportive measures in response to such a report under § 106.44(a). If a recipient does not provide a complainant with supportive measures, then the recipient must document the reasons why such a response as not clearly unreasonable in light of the known circumstances under § 106.45(b)(10)(ii). Under the Department’s past guidance, some students did not know that reporting sexual harassment always would lead to an investigation, even 825 2001 Guidance at 13, 15, 18; 2011 Dear Colleague Letter at 4. 826 2001 Guidance at 13, 15, 18. E:\FR\FM\19MYR2.SGM 19MYR2 30190 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations when the student did not want the recipient to investigate. A rigid requirement such as an investigation in every circumstance may chill reporting of sexual harassment, which is in part why these final regulations separate the recipient’s obligation to respond to a report of sexual harassment from the obligation to investigate a formal complaint of sexual harassment. Under these final regulations, a student may receive supportive measures irrespective of whether the student files a formal complaint, which results in an investigation. In this manner, these final regulations encourage students to report sexual harassment while allowing them to exercise some control over their report. If students would like supportive measures but do not wish to initiate an investigation under § 106.45, they may make a report of sexual harassment. If students would like supportive measures and also would like the recipient to initiate an investigation under § 106.45, they may file a formal complaint. The Department disagrees with the premise that separating a recipient’s obligation to respond to each known report of sexual harassment from the recipient’s obligation to investigate formal complaints of sexual harassment implies that all complainants suffer misconceptions; rather, the Department believes that distinguishing between a recipient’s obligation to respond to a report, on the one hand, and a recipient’s obligation to investigate a formal complaint on the other hands, provides clarity that benefits complainants, respondents, and recipients. Changes: None. Comments: One commenter suggested adding prevention and community educational programming as a possible option schools can utilize as one of the remedies provided following a formal complaint, as well as adding a requirement of educational outreach and prevention programming elsewhere within the final regulations. Discussion: The Department declines to list prevention and community educational programming as a possible option schools can utilize as a remedy after the conclusion of a grievance process, or to add a requirement of educational outreach and prevention programming elsewhere within the final regulations. The Department notes that nothing in the final regulations prevents recipients from undertaking such efforts. With respect to remedies, the final regulations require a recipient to provide remedies to a complainant where a respondent has been found responsible, and notes that such VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 remedies may include the type of individualized services nonexhaustively listed in the § 106.30 definition of ‘‘supportive measures.’’ Whether or not the commenter’s understanding of prevention and community education programming would be part of an appropriate remedy for a complainant, designed to restore or preserve the complainant’s equal access to education, is a fact-specific matter to be considered by the recipient. With respect to a general requirement that recipients provide prevention and community education programming, the final regulations are focused on governing a recipient’s response to sexual harassment incidents, leaving additional education and prevention efforts within a recipient’s discretion. Changes: None. Section 106.44 Recipient’s Response to Sexual Harassment, Generally Section 106.44(a) ‘‘Actual Knowledge’’ The Recipient’s Self-Interest Comments: Many commenters expressed concerns about the actual knowledge requirement in § 106.44(a), citing examples of instances in which schools sought to avoid addressing sexual harassment and assault, including high-profile sexual abuse scandals at universities where some university employees failed to report abuse that was reported to them. One commenter asserted that schools discourage sexual harassment and assault reports because the number of reported instances of sexual violence at an institution is publicly available (which harms or is perceived to harm the recipient’s reputation), and alleged perpetrators are often prominent members of college communities, including star athletes, fraternity members, leading actors, and promising filmmakers. Commenters argued that, by using an actual knowledge requirement that fails to make employees mandatory reporters, schools will continue to ignore cases of sexual violence and will investigate fewer harassment complaints, resulting in less justice and fewer services for victims of sexual harassment. Discussion: The Department incorporates here its discussion under the ‘‘Actual Knowledge’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble. As discussed in that section, and in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, we believe that the final regulations appropriately hold recipients liable for responding to every allegation of sexual PO 00000 Frm 00166 Fmt 4701 Sfmt 4700 harassment of which the recipient is aware, ensure that elementary and secondary school students may report to any school employee, and respect the autonomy of complainants at postsecondary institutions to choose whether, and when, the complainant desires to report sexual harassment. No recipient may yield to institutional selfinterest by ignoring known allegations of sexual harassment without violating the recipient’s obligation to promptly respond as set forth in § 106.44(a). Changes: None. Burdening the Complainant Comments: Numerous commenters argued that § 106.44(a) will have the effect of shifting the burden of each report onto the complainant, who, in addition to dealing with the harm to their mental health from harassment or assault, must also bear the responsibility of locating and reporting to the correct administrator. Several commenters also voiced concern that § 106.44(a) makes it more difficult for victims to know how or to whom to report harassment. Other commenters argued that complainants would be at a loss in instances where the school has not educated students and staff as to who the Title IX Coordinator is, where that person can be found, and what that person’s responsibilities are. Several commenters asked what a complainant should do if a complainant has had a negative experience previously with the Title IX Coordinator, because the complainant would have no one else to whom to turn in order to report or file a formal complaint. Many commenters asserted that § 106.44(a) would chill reports of sexual harassment and assault. Several commenters stated that 59.3 percent of survivors in one study confided in informal support sources while across several studies, fewer than one-third of victims reported to formal sources.827 One commenter asserted that research has consistently reflected that survivors of campus sexual assault are more likely to disclose to someone with whom they have an existing relationship rather than a campus administrator. Commenters argued that fewer reports would reach the Title IX Coordinator, since the Title IX Coordinator lacks a preexisting personal relationship with survivors. Several commenters asserted that most school personnel do not know who the Title IX Coordinator is, and that these employees will therefore be unable to 827 Commenters cited: Charlotte Pierce-Baker, Surviving the silence: Black women’s stories of rape (W.W. Norton 1998); Patricia A. Washington, Disclosure Patterns of Black Female Sexual Assault Survivors, 7 Violence Against Women 11 (2001). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations help complainants find the Title IX Coordinator. Discussion: The Department incorporates here its discussion under the ‘‘Actual Knowledge’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble. As discussed in that section, and in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, we believe that the definition of actual knowledge in these final regulations has been revised to appropriately trigger a recipient’s response obligations by notice to any elementary and secondary school employee, to any recipient’s Title IX Coordinator, and to any official with authority to institute corrective measures on the recipient’s behalf. The Department believes that respecting a complainant’s autonomy is an important, desirable goal and that allowing complainants to discuss or disclose a sexual harassment experience with employees of postsecondary institutions without such confidential conversations automatically triggering the involvement of the recipient’s Title IX office will give complainants in postsecondary institutions greater control and autonomy over the reporting process. The final regulations place the burden on recipients to ensure that all students and employees (as well as parents of elementary and secondary school students, and others) are notified of contact information for the Title IX Coordinator, so that when a complainant chooses to report, the complainant may easily locate the Title IX Coordinator’s office location, telephone number, and email address, and report using any of those methods, or any other means resulting in the Title IX Coordinator receiving the person’s verbal or written report. Nothing in the final regulations precludes a recipient, including a postsecondary institution, from instructing any or all of its employees to report sexual harassment disclosures and reports to the Title IX Coordinator, if the recipient believes that such a universal mandatory reporting system best serves the recipient’s student and employee population. However, universal mandatory reporting systems have led to the unintended consequence of reducing options for complainants at postsecondary institutions to discuss sexual harassment experiences confidentially with trusted employees,828 and the final regulations 828 E.g., Carmel Deamicis, Which Matters More: Reporting Assault or Respecting a Victim’s Wishes?, The Atlantic (May 20, 2013); Allie Grasgreen, VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 30191 Elementary and Secondary Schools Comments: Many commenters stated that the actual knowledge requirement is inappropriate for elementary and secondary school students because, from a young child’s perspective, there is no distinction between a teacher, teacher’s aide, bus driver, cafeteria worker, school resource officer, or maintenance staff person; to a young child, they are all grown-ups. Commenters asserted that this is particularly true for adults such as bus drivers and school resource officers, who can take corrective measures (kicking a student off the bus, for example) but not necessarily ‘‘on behalf of’’ the school. Several commenters stated that often a peer seeking help for a friend brings an issue of sexual harassment or assault to the attention of teachers or other school personnel, and commenters asserted that these allegations should be formally addressed by the school. Numerous commenters asserted that all school employees, not just teachers, should be responsible employees. By ensuring that a student can confide in counselors, aides, and coaches, commenters believed that students would be more likely to speak up and receive benefits to which they are entitled under Title IX. Commenters asserted that the proposed rules would conflict with other mandatory reporting requirements; for example, State laws requiring all school staff to notify law enforcement or child welfare agencies of child abuse. Another commenter stated that, by limiting the definition of complainant to only ‘‘the victim,’’ the proposed regulations would not allow for parents to file complaints on behalf of their children, and would not contemplate a witness to sexual harassment making a complaint. One commenter asserted that the actual knowledge requirement may be in tension with the Every Student Succeeds Act (ESSA); the commenter asserted that under ESSA, a school district with probable cause to believe a teacher engaged in sexual misconduct is prohibited from helping that teacher from getting a new job yet, the commenter argued, under the proposed rules the school district would not need to take any action to address the teacher’s sexual misconduct absent a formal complaint. Discussion: The Department incorporates here its discussion under the ‘‘Actual Knowledge’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble. As discussed in that section, and in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, we believe that the final regulations appropriately hold recipients liable for responding to every allegation of sexual harassment of which the recipient is aware, ensure that elementary and secondary school students may report to any school employee, and ensure that every recipient’s educational community understands that any person may report sexual harassment (whether they are the victim, or a witness, or any other third party), triggering the recipient’s obligation to promptly respond. As discussed in the ‘‘Complainant’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, we have revised the definition of ‘‘complainant’’ to remove the inference that the alleged victim themselves must be the same person who reports the sexual harassment. Upon notice that any person has allegedly been victimized by conduct that could constitute sexual harassment as defined in § 106.30, a recipient must respond, including by promptly offering supporting measures to the alleged victim (i.e., the complainant). The final regulations do not contravene or alter any Federal, State, or local requirements regarding other mandatory reporting obligations that school employees have. Those obligations are distinct from the obligations in these final regulations. The Department acknowledges that the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act (ESSA), may require a recipient subject to ESEA to take certain steps with respect to an employee who has been accused of sexual misconduct when a recipient has probable cause to believe the employee engaged in sexual misconduct.829 We do not believe that the actual knowledge requirement in these final regulations is in tension with ESSA. The final regulations define actual knowledge to include notice of allegations of sexual harassment; a recipient cannot wait to respond to sexual harassment allegations until the recipient has probable cause that the sexual harassment occurred. Under revised § 106.44(a) the recipient’s prompt response to allegations of sexual Mandatory Reporting Perils, Inside Higher Ed (Aug. 30, 2013). 829 E.g., https://www2.ed.gov/policy/elsec/leg/ essa/section8546dearcolleagueletter.pdf. therefore do not impose a universal mandatory reporting system in the postsecondary institution context. Changes: None. PO 00000 Frm 00167 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 30192 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations harassment must include offering the complainant supportive measures irrespective of whether the complainant files, or the Title IX Coordinator signs, a formal complaint. A recipient’s obligations under ESSA may factor into a Title IX Coordinator’s decision to sign a formal complaint initiating a grievance process against an employeerespondent, even when the complainant (i.e., the alleged victim) does not wish to file a formal complaint, if, for example, the recipient wishes to investigate allegations in order to determine whether the recipient has probable cause of employee sexual misconduct that affect the recipient’s ESSA obligations. Changes: None. Confusion for Employees Comments: Numerous commenters expressed concern that resident assistants or resident advisors, professors, and coaches may not know how to respond to complainants appropriately if the proposed rules allow postsecondary institution employees to have discretion over whether to report sexual harassment to the Title IX Coordinator. Several commenters asked the Department to specify that all schools should be responsible for educating all employees about a variety of procedures for handling sexual harassment and violence. Another commenter suggested that deans, directors, department heads, or any supervisory employees should be held individually liable for having actual knowledge of a report of sexual misconduct. One commenter asserted that a greater number of employees should be required to inform students of their right to file a formal complaint and to obtain supportive measures. One commenter stated that schools following the proposed rules might be sued for inadequate reporting policies, since a recipient’s failure to tell its employees to respond appropriately to disclosures arguably amounts to an intentional decision not to respond to third-party discrimination. Discussion: The Department incorporates here its discussion under the ‘‘Actual Knowledge’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble. As discussed in that section, and in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Department agrees with commenters’ concerns that a wider pool of trusted adults in elementary and secondary schools should trigger a recipient’s obligations, and, thus, the final regulations expand the definition VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 of actual knowledge to include notice to any employee of an elementary and secondary school. However, for reasons discussed in the aforementioned sections of this preamble, the Department disagrees that the pool of postsecondary institution employees to whom notice charges the recipient with actual knowledge needs to be expanded beyond the Title IX Coordinator and officials with authority to institute corrective measures on the recipient’s behalf. The Department disagrees that these final regulations increase liability for recipients with respect to inadequate reporting policies. These final regulations require recipients to respond to sexual harassment, or allegations of sexual harassment, when the recipient has actual knowledge, defined in part to include notice to an official with authority to institute corrective measures on behalf of the recipient. This requirement, and definition, are also used by Federal courts in applying the Gebser/Davis framework in private Title IX lawsuits.830 These final regulations go beyond the Gebser/Davis framework by requiring recipients to have in place clear, accessible reporting options, and requiring recipients to notify its educational community of those reporting options. The recipient’s educational community must be notified about how to report sexual harassment in person, by mail, telephone, or email, and the final regulations specify that any person may report sexual harassment (whether the person reporting is the alleged victim themselves or any third party). Changes: None. Intersection Between Actual Knowledge and Deliberate Indifference Comments: One commenter asked, if a recipient has actual knowledge that a student or employee has been subjected to unwelcome conduct on the basis of sex, but the recipient does not know whether the misconduct effectively denied the victim equal access to the recipient’s education program or activity, whether the recipient must respond under §§ 106.44(a) and 106.44(b)(2), to at least seek out the missing information and if not, whether the respondent has an obligation to inform the complainant of the nature of the missing and needed additional information regarding denial of equal access. Discussion: The Department acknowledges the commenter’s question about how much detail is needed in 830 E.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). PO 00000 Frm 00168 Fmt 4701 Sfmt 4700 order for the recipient to have actual knowledge triggering the recipient’s obligation to provide a non-deliberately indifferent response, and whether a recipient with partial information about a sexual harassment allegation has a responsibility to notify the complainant that additional information is needed to further evaluate or respond to the allegation. In response, the Department notes that the definition of ‘‘complainant’’ under § 106.30 is an individual who is alleged to be the victim of conduct that could constitute sexual harassment; thus, the recipient need not have received notice of facts that definitively indicate whether a reasonable person would determine that the complainant’s equal access has been effectively denied in order for the recipient to be required to respond promptly in a non-deliberately indifferent manner under § 106.44(a). The definition of ‘‘actual knowledge,’’ in § 106.30, also reflects this concept as actual knowledge means notice of sexual harassment or allegations of sexual harassment. These final regulations, and § 106.44(a) in particular, incorporate principles similar to the principles in the Department’s 2001 Guidance with respect to a recipient’s response to a student’s or parent’s report of sexual harassment or sexual harassment allegations, or a recipient’s response to direct observation by a responsible employee of conduct that could constitute sexual harassment. The Department’s 2001 Guidance states: If a student or the parent of an elementary or secondary student provides information or complains about sexual harassment of the student, the school should initially discuss what actions the student or parent is seeking in response to the harassment. The school should explain the avenues for informal and formal action, including a description of the grievance procedure that is available for sexual harassment complaints and an explanation of how the procedure works. If a responsible school employee has directly observed sexual harassment of a student, the school should contact the student who was harassed (or the parent, depending upon the age of the student), explain that the school is responsible for taking steps to correct the harassment, and provide the same information described in the previous sentence.831 Like the 2001 Guidance, these final regulations in § 106.6(g) recognize that a parent or guardian may have the legal right to act on behalf of a ‘‘complainant,’’ ‘‘respondent,’’ ‘‘party,’’ or other individual. Section 106.44(a) also requires that the Title IX Coordinator promptly contact the 831 2001 E:\FR\FM\19MYR2.SGM Guidance at 15. 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain the process for filing a formal complaint. Thus, if a parent or guardian has a legal right to act on behalf of a student, the parent or guardian has the right to act on behalf of a Title IX complainant, including with respect to discussing supportive measures, or deciding to file a formal complaint. Changes: None. Modeling Reporting on the Military System Comments: Commenters argued that the reporting system used in the U.S. military to address sexual assault should be modified for use in Title IX reporting systems in order to best serve civil rights purposes. Commenters described the military reporting system as providing sexual assault victims with a two-track reporting system, under which a victim can choose a ‘‘restricted’’ or ‘‘unrestricted’’ report. Commenters described the military system’s ‘‘restricted’’ report option as allowing the victim to report confidentially, for the purpose of receiving services, and no investigation is commenced unless the victim chooses an ‘‘unrestricted’’ reporting path whereby the victim’s identity is not confidential and charges are initiated against the alleged perpetrator. Commenters asserted that giving victims these options for reporting helps address the well-known and wellresearched fact that sexual assault is underreported throughout society, including in military and school environments, and that many survivors of sexual violence exercise the ‘‘victim’s veto’’ whereby no investigation takes place, and no services are given to a victim, because the victim chooses not to report their experience in any official manner. Commenters asserted that the withdrawn 2014 Q&A essentially created this two-track model,832 which best serves the needs of complainants, and argued that it best fits the purpose of civil rights protections, especially as compared to the traditional law enforcement model, under which a victim’s only option is to report to police, and then police officers and prosecutors have sole discretion whether to investigate and whether to prosecute, and the victim has little or no control over those decisions, leading 832 Commenters VerDate Sep<11>2014 cited: 2014 Q&A at 21, 22, 24. 19:08 May 18, 2020 Jkt 250001 many victims to exercise the ‘‘victim’s veto’’ and never report at all.833 Commenters described the approach of the withdrawn 2014 Q&A as giving survivors two choices of how to report, so survivors essentially would make the decision whether to initiate an investigation. Commenters asserted that the withdrawn 2014 Q&A ensured that if a survivor made an official report to a responsible employee or to the Title IX Coordinator the school must investigate unless the survivor explicitly requested that there be no investigation and the Title IX Coordinator granted that request after weighing multiple factors. On the other hand, commenters asserted, under that guidance a survivor could choose a ‘‘confidential path’’ and access services and accommodations for healing, without initiating an investigation unless or until the survivor changed their mind and officially reported to a responsible employee or to the Title IX Coordinator (which, commenters stated, is the equivalent in the military system as turning a restricted report into an unrestricted report, which is commonplace). Commenters urged the Department to reinstate the withdrawn 2014 Q&A, rather than keep the provisions in the proposed rules, regarding how complainants must report and what happens after a complainant reports. Discussion: The Department is aware of the two-track reporting system used in the U.S. military,834 and agrees that 833 Commenters cited, e.g.: Tamara F. Lawson, A Shift Towards Gender Equality in Prosecutions: Realizing Legitimate Enforcement of Crimes Committed Against Women in Municipal and International Criminal Law, 33 S. Ill. Univ. L. J. 181, 188–90 (2008) (in instances of sexual violence, police and prosecutors decide to advance very few cases through the criminal system); Kimberly A. Lonsway & Joanne Archambault, The ‘‘Justice Gap’’ for Sexual Assault Cases: Future Directions for Research and Reform, 18 Violence Against Women 145, 147 (2012) (finding that only five to 20 percent of victims will report a sexual assault to law enforcement); Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999 Utah L. Rev. 289, 306 (1999) (arguing that the ‘‘victim’s veto’’ occurs when the victim does not even report the wrongdoing); Kimberly A. Lonsway & Joanne Archambault, The ‘‘Justice Gap’’ for Sexual Assault Cases: Future Directions for Research and Reform, 18 Violence Against Women 145, 159 (2012) (explaining that factors such as ‘‘poor evidence gathering by police (especially victim interviews), intimidating defense tactics, incompetent prosecutors, and inappropriate decision making by jurors’’ result in low sexual assault conviction rates). Commenters asserted this leads to more victims deciding not to report at all. 834 E.g., U.S. Dep’t. of Defense, Sexual Assault Prevention and Response, ‘‘Reporting Options,’’ https://sapr.mil/reporting-options (‘‘Sexual assault is the most underreported crime in our society and in the Military. While the Department of Defense [DoD] prefers that sexual assault incidents are reported to the command to activate both victims’ services and law enforcement actions, it recognizes PO 00000 Frm 00169 Fmt 4701 Sfmt 4700 30193 giving victims control over whether to report for purposes of receiving supportive services only, or also for the purpose of launching an official investigation into the alleged sexual assault, is beneficial to sexual assault victims. These final regulations share similarities with the military’s two-track reporting system; the Department desires to respect the autonomy of each alleged victim to report for the purpose of receiving supportive measures, and to decide whether or not to also request an investigation into the allegations of sexual harassment. As commenters observed, the withdrawn 2014 Q&A’s approach to what happens when an alleged victim reports sexual harassment also shares similarities with the two-track reporting system used in the military. These final regulations, too, are similar in some ways to the approach taken in the withdrawn 2014 Q&A. However, the Department believes that the additional precision, and obligatory nature, of these final regulations results in an approach superior to simply reinstating prior guidance. Under the final regulations, any person may report 835 that any individual has allegedly been victimized by conduct that could constitute sexual harassment,836 and the recipient must respond promptly, including by offering supportive measures to the complainant (i.e., the alleged victim) and telling the complainant about the option of also filing a formal complaint that starts an investigation.837 The only persons who can initiate an investigation are the complainant themselves, or the Title IX Coordinator.838 Thus, if a complainant wants a report to remain confidential (in the sense of the complainant’s identity that some victims desire only healthcare and advocacy services and do not want command or law enforcement involvement. The Department believes its first priority is for victims to be treated with dignity and respect and to receive the medical treatment, mental health counseling, and the advocacy services that they deserve. Under DoD’s Sexual Assault Prevention and Response (SAPR) Policy, Service members . . . have two reporting options—Restricted Reporting and Unrestricted Reporting. Under Unrestricted Reporting, both the command and law enforcement are notified. With Restricted (Confidential) Reporting, the adult sexual assault victim can access healthcare, advocacy services, and legal services without the notification to command or law enforcement.’’). 835 Section 106.8(a) (‘‘any person’’ may report sexual harassment regardless of whether the person reporting is the alleged victim themselves, or any third party). 836 Section 106.30 (defining ‘‘complainant’’ to mean an individual who is alleged to be the victim of conduct that could constitute sexual harassment). 837 Section 106.44(a). 838 Section 106.30 (defining ‘‘formal complaint’’ as a document filed by a complainant or signed by a Title IX Coordinator). E:\FR\FM\19MYR2.SGM 19MYR2 30194 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations not being disclosed to the alleged perpetrator, and not launching an investigation), the complainant may receive supportive measures without an investigation being conducted—unless the Title IX Coordinator, after having considered the complainant’s wishes, decides that it would be clearly unreasonable for the school not to investigate the complainant’s allegations. On the other hand, if the complainant chooses to file a formal complaint, the school must initiate a grievance process and investigate the complainant’s allegations.839 These final regulations preserve the benefits of allowing third party reporting while still giving the complainant as much control as reasonably possible over whether the school investigates, because under the final regulations a third party can report—and trigger the Title IX Coordinator’s obligation to reach out to the complainant and offer supportive measures—but the third party cannot trigger an investigation.840 Further, the final regulations allow a complainant to initially report for the purpose of receiving supportive measures, and to later decide to file a formal complaint. Changes: None. Section 106.44(a) ‘‘Education Program or Activity’’ General Support and Opposition for ‘‘Education Program or Activity’’ as a Jurisdictional Condition Comments: Several commenters expressed support for the NPRM’s approach to the ‘‘education program or activity’’ condition, stating that it is consistent with the Title IX statute and case law. Commenters asserted that the Department has appropriately recognized that whether misconduct occurs on campus or off campus is not dispositive, and that courts have similarly applied a multi-factor test to deciding whether conduct occurred in an education program or activity. One commenter cited Federal cases suggesting that sexually hostile conduct itself, and not just its consequences, must occur on campus or at a schoolsponsored or supervised event for Title IX to apply.841 One commenter 839 Section 106.44(b)(1). § 106.6(g) (If a parent or guardian has a legal right to act on a complainant’s behalf, the parent or guardian may file a formal complaint on behalf of the complainant). 841 Commenters cited: Doe v. Brown Univ., 896 F.3d 127, 132 fn. 6 (1st Cir. 2018); Yeasin v. Durham, 719 F. App’x 844 (10th Cir. 2018); Roe v. St. Louis Univ., 746 F.3d 874 (8th Cir. 2014); Rost ex rel. K.C. v. Steamboat Springs RE–2 Sch. Dist., 511 F.3d 1114, 1121 fn.1 (10th Cir. 2008); Ostrander v. Duggan, 341 F.3d 745 (8th Cir. 2003); Farmer v. Kan. State Univ., No. 16–CV–2256, 2017 WL 980460, at *8 (D. Kan. Mar. 14, 2017), aff’d by 840 Cf. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 expressed support for the NPRM’s approach to education program or activity because it is consistent with the Department’s past practice. The commenter cited Departmental determination letters involving institutions of higher education in 2004 and 2008 that stated recipients do not have a Title IX duty to address alleged misconduct that occurs off campus and that does not involve the recipient’s programs or activities. A few commenters expressed support for the NPRM’s approach to education program or activity, asserting that it imposes reasonable limits on recipient responsibility. One commenter asserted that schools are not the sex police and that expecting schools to have jurisdiction over activity in off-campus apartments, at a parent’s house, a local bar, or nearby hotel, is unrealistic. One commenter expressed support for the NPRM’s approach to including ‘‘education program or activity’’ as a condition triggering a recipient’s response obligations, but urged the Department to go further and explicitly exclude from Title IX allegations made by or against someone who has no relationship with the recipient, and allegations involving students but occurring in a time or place totally unrelated to school activities such as during summer vacation hundreds of miles away from campus. Other commenters asserted that the NPRM’s approach to education program or activity was unclear. Commenters stated that the NPRM’s preamble mentioned several factors, such as recipient ownership of the premises, endorsement, oversight, supervision, and disciplinary power, but argued that this multi-factor test may be confusing and make it difficult for students and schools to understand their Title IX rights and obligations. One commenter argued that the practical application of the Department’s approach to misconduct that has both on-campus and off-campus elements would be challenging; for example, the commenter stated, if a sexual misconduct complaint involved a series of actions occurring on campus and off campus then the recipient may have to sift through evidence to identify and ignore events not ‘‘in’’ a program or activity. Many commenters expressed concern that the NPRM’s approach to the education program or activity condition would increase danger to students and Farmer v. Kan. State Univ., 918 F.3d 1094 (10th Cir. 2019); Stephanie Ebert, The Boston Globe (Dec. 8, 2018) (Harvard student suing Harvard University in Federal court for investigating the student for rape allegation by non-student far from campus). PO 00000 Frm 00170 Fmt 4701 Sfmt 4700 others. Commenters cited studies and scholarly articles suggesting that sexual assault can cause lasting psychological damage to victims, including increasing suicide rates and substantially impacting victims’ academic career, retention, graduation, and grade point average, regardless of whether the sexual assault occurred off campus or on campus.842 Commenters argued that not addressing off-campus misconduct may chill reporting, make it harder for the community to know the nature of threats facing them, and even discourage young women from attending college. Commenters expressed concern that the NPRM would cause victims to leave school, asserting that over one-third of sexual harassment or assault victims drop out of school.843 Commenters argued that because a significant number of sexual assaults occur off campus,844 not requiring schools to respond to those assaults will only lead to more college students dropping out. Several commenters emphasized that the reality is that off-campus life is often an essential part of the educational experience, such as off-campus travel for conferences and networking events, and that off-campus living for students is quite common.845 Commenters argued that the Department should not give a free pass to perpetrators whose abusive conduct occurs off campus. Commenters expressed concern that repeat offenders could systematically target victims, knowing they will get away with it. Commenters raised concerns about off-campus Greek life as hotbeds of sexual misconduct not covered by the NPRM, arguing that students are more 842 See data cited by commenters in the ‘‘Impact Data’’ subsection of the ‘‘General Support and Opposition’’ section of this preamble. 843 Commenters cited: Cecilia Mengo & Beverly M. Black, Violence Victimization on a College Campus: Impact on GPA and School Dropout, 18 Journal of Coll. Student Retention: Research, Theory & Practice 2, 234, 244 (2015). 844 Commenters cited: EduRisk by United Educators, Confronting Campus Sexual Assault: An Examination of Higher Education Claims at 6 (2015) (‘‘In 41 percent of claims, the victim and perpetrator attended the same off-campus party before going back to campus, where the sexual assault occurred. These off-campus parties included institutionrecognized sorority and fraternity houses, athletic team houses, and students’ off-campus residences.’’); U.S. Dep’t. of Justice, Bureau of Justice Statistics, Rape and Sexual Assault Victimization Among College-Age Females, 1995– 2013 at 6 (2014) (95 percent of sexual assaults of female students ages 18–24 occur outside of school). 845 Commenters cited: American Association of University Women, Crossing the Line: Sexual Harassment at School (2011); Rochelle Sharp, How Much Does Living Off Campus Cost? Who Knows?, The New York Times (Aug. 5, 2016) (87 percent of college students and even more elementary and secondary school students reside off campus). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations likely to experience sexual assault if in a fraternity or sorority, and that men in fraternities are more likely than other male students to be perpetrators of sexual misconduct.846 Commenters expressed concern that recipients might interpret the NPRM as preventing them from addressing sexual misconduct in fraternities, sororities, and social clubs the recipient does not recognize,847 or perversely encourage recipients not to recognize Greek letter associations, but that the Department should encourage such relationships because they often entail mandatory insurance, risk management standards, and training requirements to reduce incidents of sexual misconduct. Commenters asserted that the NPRM especially increases risks to community college and vocational school students because such students generally live off campus, to students of color and other already marginalized students who may not be able to afford to live on campus, to elementary and secondary school students with disabilities who may be separated from their peers and removed to off-site services, and to LGBTQ students because it may be harder for them to find adequate outside support services. One commenter argued that the Department’s exclusion of offcampus assaults will hinder Federal background check processes, potentially harming our national security and exposing co-workers to danger. Another commenter stated that the corporate world does not exclude out-of-office misconduct from company codes of conduct, and so the Department should not set young people up to fail by not showing them early in life that misconduct is unacceptable and will lead to consequences. Commenters argued that Federal courts have been supportive of universities applying student codes of conduct to misconduct occurring off campus and outside the school’s programs or activities.848 Commenters 846 Commenters cited: Jacqueline Chevalier Minow & Christopher J. Einolf, Sorority Participation and Sexual Assault Risk, 15 Violence Against Women 7 (2009); Jennifer Fleck, Sexual assault more prevalent in fraternities and sororities, study finds, UWire.com (Oct. 16, 2014); Claude A. Mellins et al., Sexual Assault Incidents Among College Undergraduates: Prevalence and Factors Associated with Risk, 13 Plos One 1 (2017). 847 Commenters cited: Jacquelyn D. WeirsmaMosely et al., An Empirical Investigation of Campus Demographics and Reported Rapes, 65 Journal of Am. Coll. Health 4 (2017); Cortney A. Franklin, Sorority Affiliation and Sexual Assault Victimization, 22 Violence Against Women 8 (2016). 848 Commenters cited: Slaughter v. Brigham Young Univ., 514 F.2d 622 (10th Cir. 1975); Due v. Fla. Agric. & Mech. Univ. (N.D. Fla. 1963); Hill v. Bd. of Trustees of Mich. State Univ., 182 F. Supp. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 argued that courts have recognized that an assailant’s mere presence on campus creates a hostile environment for sexual harassment victims, exposing recipients to Title IX liability under a deliberate indifference standard if the recipient fails to redress the hostile environment even where the underlying sexual harassment or assault occurred off campus and outside the recipient’s education program or activity. Commenters asserted that the proposed rules would leave recipients vulnerable to private Title IX lawsuits because recipients would not need to address the continuing effects of sexual assault that occurred outside the recipient’s program or activity under the Department’s regulations yet a Federal court may hold otherwise.849 Commenters argued that Federal courts have determined that regardless of where a sexual assault occurred, where both parties are in the same education program or activity a recipient should be held liable under a deliberate indifference standard based on the recipient’s response to the alleged incident, even if the incident happened under circumstances outside the recipient’s control.850 Commenters argued that courts have allowed Title IX private causes of action for sexual misconduct to proceed even where some or all of alleged misconduct occurred in a location outside the recipient’s control so long as there was ‘‘some nexus between the out-of-school conduct and the school’’ 851 and that the proposed rules should take the same approach. Commenters argued that the Supreme Court’s Gebser decision involved sexual activity between a teacher and student where the sexual 2d 621 (W.D. Mich. 2001); Gomes v. Univ. of Me. Sys., 304 F.Supp. 2d 117 (D. Me. 2004). 849 Commenters cited: Lapka v. Chertoff, 517 F.3d 974 (7th Cir. 2008); 477 F.3d 1282, 1298 (11th Cir. 2007); Doe v. East Haven Bd. of Educ., 200 F. App’x 46 (2d Cir. 2006); Butters v. James Madison Univ., 145 F. Supp. 3d 610 (W.D. Va. 2015), dismissed on summary judgment in Butters v. James Madison Univ., 208 F. Supp. 3d 745 (W.D. Va. 2016); Williams v. Bd. of Regents of Univ. Sys. of Ga., Doe ex rel. Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438 (D. Conn. 2006); Crandell v. New York Coll. of Osteopathic Med., 87 F. Supp. 2d 304, 316 (S.D.N.Y. 2000); Kinsman v. Fla. State Univ. Bd. of Trustees, No. 4:15–CV–235, 2015 WL 11110848 (N.D. Fla. Aug. 12, 2015); McGinnis v. Muncie Cmty. Sch. Corp., 1:11–CV–1125, 2013 WL 2456067 (S.D. Ind. June 5, 2013); C.S. v. S. Columbia Sch. Dist., No. 4:1–CV–1013, WL 2371413 (M.D. Pa. May 21, 2013); Kelly v. Yale Univ., No. 3:01–CV–1591, 2003 WL 1563424 (D. Conn. Mar. 26, 2003). 850 Commenters cited: Spencer v. Univ. of N.M. Bd. of Regents, No. 15–CV–141, 2016 WL 10592223 (D. N.M. Jan. 11, 2016). 851 Commenters cited: Weckhorst v. Kan. State Univ., 241 F. Supp. 3d 1154, 1168–69 (D. Kan. 2017); Rost ex rel. KC v. Steamboat Springs RE –2 School Dist., 511 F.3d 1114, 1121 fn.1 (10th Cir. 2008). PO 00000 Frm 00171 Fmt 4701 Sfmt 4700 30195 activity did not take place on school grounds, yet the Supreme Court did not consider that sexual harassment to be outside the purview of Title IX.852 Commenters argued that the 2001 Guidance and 2017 Q&A require recipients to address sexual harassment that occurs off campus where the underlying sexual harassment or assault causes the complainant to experience a hostile environment on campus, and urged the Department to ensure that the final regulations impose similar obligations for recipients to address the continuing effects of sexual harassment that occurs off campus. Another commenter contended that the NPRM conflicts with recent Department actions under the Trump Administration, such as cutting off partial funding to the Chicago Public School system for failing to address two reports of off-campus sexual assault. Discussion: The Department appreciates the general support for our approach to including the concept of a recipient’s ‘‘education program or activity’’ in these final regulations. The ‘‘education program or activity’’ language in the Title IX statute 853 provides context for the scope of Title IX’s non-discrimination mandate, which ensures that Federal funds are not used to support discriminatory practices in education programs or activities.854 In Davis, the Supreme Court framed the question in that case as whether a recipient of Federal financial assistance may be liable for damages under Title IX, for failure to respond to peer-on-peer sexual harassment in the recipient’s program or activity.855 The Supreme Court in Davis continued to reference the statutory ‘‘program or activity’’ language throughout its decision 856 and refuted dissenting justices’ arguments that the majority’s approach permitted too much liability against recipients in part by reasoning: ‘‘Moreover, because the harassment must occur ‘under’ ‘the operations of’ a funding recipient, see 20 U.S.C. 1681(a); § 1687 (defining ‘program or activity’), the harassment must take place in a context subject to 852 Commenters cited: Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 278 (1998). 853 20 U.S.C. 1681(a). 854 Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979) (the objectives of Title IX are two-fold: First, to ‘‘avoid the use of Federal resources to support discriminatory practices’’ and second, to ‘‘provide individual citizens effective protection against those practices’’). 855 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 639 (1999). 856 Id. at 652 (‘‘Moreover, the provision that the discrimination occur ‘under any education program or activity’ suggests that the behavior be serious enough to have the systemic effect of denying the victim equal access to an educational program or activity’’). E:\FR\FM\19MYR2.SGM 19MYR2 30196 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the school district’s control. . . . These factors combine to limit a recipient’s damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.’’ 857 The Department’s regulatory authority must emanate from Federal law.858 Congress, in enacting Title IX, has conferred on the Department the authority to regulate under Federal law. The appropriate place to start is the statutory text of Title IX, for ‘‘[u]nless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning.’’ 859 Title IX’s text, 20 U.S.C. 1681(a) (emphasis added), states: ‘‘No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]’’ The Department’s authority to regulate sexual harassment as a form of sex discrimination pursuant to Title IX is clear; the Supreme Court has held that sexual harassment is a form of sex discrimination, and has confirmed that Congress has directed the Department, as a Federal agency that disburses funding to education programs or activities, to establish requirements to effectuate Title IX’s non-discrimination mandate.860 The Department’s authority to regulate sexual harassment depends on whether sexual harassment occurs in ‘‘any education program or activity’’ because the Department’s regulatory authority is co-extensive with the scope of the Title IX statute. Title IX does not authorize the Department to regulate sex discrimination occurring anywhere but only to regulate sex discrimination in education programs or activities.861 Congress, in the Title IX statute, provided definitions of ‘‘program or activity’’ that are reflected in the Department’s current Title IX regulations.862 The Supreme Court has applied the ‘‘program or activity’’ language in the 857 Id. at 645. Stark v. Wickard, 321 U.S. 288, 309 858 See (1944). 859 BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006) (citing Perrin v. United States, 444 U.S. 37, 42 (1979)). 860 Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 280–81 (1998) (quoting 20 U.S.C. 1682). 861 See the ‘‘Section 106.44(a) ‘against a person in the U.S.’ ’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section this preamble, for discussion of the other jurisdictional limitation on the scope of Title IX—that the statute protects any person ‘‘in the United States.’’ 862 20 U.S.C. 1687; 34 CFR 106.2(h). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Title IX statute in the context of judicial enforcement of Title IX. The Department does not believe that the Supreme Court’s application of ‘‘program or activity’’ in the context of sexual harassment as a form of sex discrimination is an unreasonable interpretation of the Title IX statute, because the Supreme Court applied the language of the statute including the definitions of ‘‘program or activity’’ provided in the statute. The Department thus concludes that we should align these final regulations with the Supreme Court’s approach to ‘‘education program or activity’’ in the context of Title IX sexual harassment.863 By contrast, as explained in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment,’’ the three parts of the Gebser/Davis framework (i.e., definition of sexual harassment, actual knowledge, deliberate indifference) do not appear in the text of the Title IX statute, and the Department believes that it may promulgate regulatory requirements that differ in significant ways from the Gebser/Davis framework, to best effectuate the purposes of Title IX’s nondiscrimination mandate in the context of administrative enforcement, and we have done so in these final regulations. The Department acknowledges the concerns of many commenters who argued that with respect to sexual harassment, whether the alleged conduct occurred in the recipient’s education program or activity might have been understood too narrowly under the NPRM (e.g., to exclude all offcampus conduct) or at least created potential confusion for complainants and recipients. In response to commenters’ concerns, the Department believes that providing additional clarification as to the scope of a recipient’s education program or activity for purposes of Title IX sexual harassment is necessary, and, therefore, adds to § 106.44(a) in the final regulations language similar to language 863 The Supreme Court’s analysis of the ‘‘program or activity’’ statutory language was in the context of judicial enforcement, but the Department does not believe a different analysis is necessary or advisable for administrative enforcement, where the Department—like the Supreme Court—is constrained to interpret and apply the text of the statute including the definitions of ‘‘program or activity’’ provided in the statute. Consistent with this position, and as discussed throughout this preamble, we have revised § 106.44(a) to clarify that ‘‘education program or activity’’ for purposes of these sexual harassment regulations includes circumstances wherein the recipient exercises substantial control over both the harasser and the context of the harassment—the same conclusion reached by the Davis Court when it applied the ‘‘program or activity’’ statutory language to the context of a school’s response to sexual harassment. Davis, 526 U.S. at 645. PO 00000 Frm 00172 Fmt 4701 Sfmt 4700 used by the Court in Davis: For purposes of § 106.30, § 106.44, and § 106.45, the phrase ‘‘education program or activity’’ includes ‘‘locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs’’ and also includes ‘‘any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.’’ The Title IX statute 864 and existing Title IX regulations,865 already contain detailed definitions of ‘‘program or activity’’ that, among other aspects of such definitions, include ‘‘all of the operations of’’ a postsecondary institution or local education agency. The Department will interpret ‘‘program or activity’’ in these final regulations in accordance with the Title IX statutory (20 U.S.C. 1687) and regulatory definitions (34 CFR 106.2(h)), guided by the Supreme Court’s language applied specifically for use in sexual harassment situations under Title IX regarding circumstances over which a recipient has control and (for postsecondary institutions) buildings owned or controlled by student organizations if the student organization is officially recognized by the postsecondary institution.866 While ‘‘all of the operations of’’ a recipient (per existing statutory and regulatory provisions), and the additional ‘‘substantial control’’ language in these final regulations, clearly include all incidents of sexual harassment occurring on a recipient’s campus, the statutory and regulatory definitions of program or activity along with the revised language in § 106.44(a) clarify that a recipient’s Title IX obligations extend to sexual harassment incidents that occur off campus if any of three conditions are met: If the offcampus incident occurs as part of the recipient’s ‘‘operations’’ pursuant to 20 U.S.C. 1687 and 34 CFR 106.2(h); if the recipient exercised substantial control over the respondent and the context of alleged sexual harassment that occurred off campus pursuant to § 106.44(a); or if a sexual harassment incident occurs at 864 20 U.S.C. 1687. CFR 106.2(h); 34 CFR 106.2(i) (defining ‘‘recipient’’); 34 CFR 106.31(a) (referring to ‘‘any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives Federal financial assistance’’). 866 Section 106.44(a) (adding ‘‘For purposes of this section, § 106.30, and § 106.45, ‘education program or activity’ includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.’’). 865 34 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations an off-campus building owned or controlled by a student organization officially recognized by a postsecondary institution pursuant to § 106.44(a). The NPRM cited to Federal court opinions that have considered whether sexual harassment occurred in a recipient’s education program or activity by examining factors such as whether the recipient funded, promoted, or sponsored the event or circumstance where the alleged harassment occurred. While it may be helpful or useful for recipients to consider factors applied by Federal courts to determine the scope of a recipient’s program or activity, no single factor is determinative to conclude whether a recipient exercised substantial control over the respondent and the context in which the harassment occurred, or whether an incident occurred as part of ‘‘all of the operations of’’ a school, college, or university. The revised language in § 106.44(a) also specifically addresses commenters’ concerns about recognized student organizations that own and control buildings such as some fraternities and sororities operating from off-campus locations where sexual harassment and assault may occur with frequency. The revised language further addresses commenters’ questions regarding whether postsecondary institutions’ Title IX obligations are triggered when sexual harassment occurs in an offcampus location not owned by the postsecondary institution but that is in use by a student organization that the institution chooses to officially recognize such as a fraternity or sorority. The revisions to § 106.44(a) clarify that where a postsecondary institution has officially recognized a student organization, the recipient’s Title IX obligations apply to sexual harassment that occurs in buildings owned or controlled by such a student organization, irrespective of whether the building is on campus or off campus, and irrespective of whether the recipient exercised substantial control over the respondent and the context of the harassment outside the fact of officially recognizing the fraternity or sorority that owns or controls the building. The Department makes this revision to promulgate a bright line rule that decisively responds to commenters and provides clarity with respect to recipient-recognized student organizations that own or control offcampus buildings. Official recognition of a student organization, alone, does not conclusively determine whether all the events and actions of the students in the organization become a part of a VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 recipient’s education program or activity; however, the Department believes that a reasonable, bright line rule is that official recognition of a student organization brings buildings owned or controlled by the organization under the auspices of the postsecondary institution recipient and thus within the scope of the recipient’s Title IX obligations. As part of the process for official recognition, a postsecondary institution may require a student organization that owns or controls a building to agree to abide by the recipient’s Title IX policy and procedures under these final regulations, including as to any misconduct that occurs in the building owned or controlled by a student organization. Accordingly, postsecondary institutions may not ignore sexual harassment that occurs in buildings owned or controlled by recognized student organizations. The Department acknowledges that even though postsecondary institutions may not always control what occurs in an off campus building owned or controlled by a recognized student organization, such student organizations and the events in their buildings often become an integral part of campus life. The Department also acknowledges that a postsecondary institution may be limited in its ability to gather evidence during an investigation if the incident occurs off campus on private property that a student organization (but not the institution) owns or controls. A postsecondary institution, however, may still investigate a formal complaint arising from sexual harassment occurring in a building owned or controlled by a recognized student organization (whether the building is on campus or off campus), for instance by interviewing students who were allegedly involved in the incident and who are a part of the officially recognized student organization. Thus, under the final regulations (e.g., § 106.44(b)(1)) a postsecondary institution must investigate formal complaints alleging sexual harassment that occurred in a fraternity or sorority building (located on campus, or off campus) owned by the fraternity or sorority, if the postsecondary institution has officially recognized that Greek life organization. Further, under § 106.44(a) the recipient must offer supportive measures to a complainant alleged to be the victim of sexual harassment occurring at a building owned or controlled by an officially recognized student organization. Where a postsecondary institution has officially recognized a student organization, and PO 00000 Frm 00173 Fmt 4701 Sfmt 4700 30197 sexual harassment occurs in an off campus location not owned or controlled by the student organization yet involving members of the officially recognized student organization, the recipient’s Title IX obligations will depend on whether the recipient exercised substantial control over the respondent and the context of the harassment, or whether the circumstances may otherwise be determined to have been part of the ‘‘operations of’’ the recipient. We note that the revision in § 106.44(a) referencing a ‘‘building owned or controlled by a student organization that is officially recognized by a postsecondary institution’’ is not the same as, and should not be confused with, the Clery Act’s use of the term ‘‘noncampus building or property,’’ even though that phrase is defined under the Clery Act in part by reference to student organizations officially recognized by an institution.867 For example, ‘‘education program or activity’’ in these final regulations includes buildings within the confines of the campus on land owned by the institution that the institution may rent to a recognized student organization.868 As discussed in the ‘‘Clery Act’’ subsection of the ‘‘Miscellaneous’’ section of this preamble, the Clery Act and Title IX serve distinct purposes, and Clery Act geography is not co-extensive with the scope of a recipient’s education program or activity under Title IX. With respect to commenters who suggested that the final regulations should not apply to sexual misconduct by or against an individual with no relationship to the recipient, the Department believes that the framework adopted in the final regulations appropriately effectuates the broad nondiscrimination mandate of Title IX (which protects any ‘‘person’’ from discrimination in an education program or activity) while also ensuring that 867 See 20 U.S.C. 1092(f)(6)(iii) (defining ‘‘noncampus building or property’’ in part as ‘‘any building or property owned or controlled by a student organization recognized by the institution’’). The Clery Act regulations, 34 CFR 668.46(a), include ‘‘noncampus building or property’’ as part of an institution’s Clery geography and define ‘‘noncampus building or property’’ as ‘‘[a]ny building or property owned or controlled by a student organization that is officially recognized by the institution; or [a]ny building or property owned or controlled by an institution that is used in direct support of, or in relation to, the institution’s educational purposes, is frequently used by students, and is not within the same reasonably contiguous geographic area of the institution.’’). 868 But see U.S. Dep’t. of Education, Office of Postsecondary Education, The Handbook for Campus Safety and Security Reporting, 2–18 to 2– 19 (2016), https://www2.ed.gov/admins/lead/safety/ handbook.pdf. E:\FR\FM\19MYR2.SGM 19MYR2 30198 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recipients are responsible for addressing sexual harassment occurring in an educational institution’s ‘‘operations,’’ or when the recipient has control over the situation, or where a postsecondary institution has recognized a student organization thereby lending the recipient’s implicit extension of responsibility over circumstances involving sexual harassment that occurs in buildings owned or controlled by such a student organization. Like the ‘‘no person’’ language in the Title IX statute, the final regulations place no restriction on the identity of a complainant (§ 106.30 defines complainant to mean ‘‘an individual who is alleged to be the victim of conduct that could constitute sexual harassment’’), obligating a recipient to respond to such a complainant regardless of the complainant’s relationship to the recipient. Similarly, reflecting that the Title IX statute does not limit commission of prohibited discrimination only to certain individuals affiliated with a recipient, the final regulations define a respondent to mean ‘‘an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment’’ without restricting a respondent to being a person enrolled or employed by the recipient or who has any other affiliation or connection with the recipient. However, the final regulations do require that in order to file a formal complaint, the complainant must be ‘‘participating in or attempting to participate in’’ the recipient’s education program or activity at the time the formal complaint is filed.869 This prevents recipients from being legally obligated to investigate allegations made by complainants who have no relationship with the recipient, yet still protects those complainants by requiring the recipient to respond promptly in a non-deliberately indifferent manner. For similar reasons, the final regulations provide in § 106.45(b)(3)(ii) that a recipient may in its discretion dismiss a formal complaint if the respondent is no longer enrolled or employed by the recipient, recognizing that a recipient’s general obligation to provide a complainant with a prompt, non-deliberately indifferent response might not include completing a grievance process in a situation where the recipient lacks any 869 A complainant may be ‘‘attempting to participate’’ in the recipient’s education program or activity, for example, where the complainant has applied for admission, or where the complainant has withdrawn but indicates a desire to re-enroll if the recipient appropriately responds to sexual harassment allegations. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 disciplinary authority over the respondent. In response to commenters’ concerns that practical application of the ‘‘education program or activity’’ condition might be challenging in situations that, for example, involve some conduct occurring in the recipient’s education program or activity and some conduct occurring outside the recipient’s education program or activity, the Department reiterates that ‘‘off campus’’ does not automatically mean that the incident occurred outside the recipient’s education program or activity. The Department agrees that recipients are obliged to think through the scope of each recipient’s own education program or activity in light of the statutory and regulatory definitions of ‘‘program or activity’’ (20 U.S.C. 1687 and 34 CFR 106.2(h)) and the statement in § 106.44(a) that ‘‘education program or activity’’ includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs as well as buildings owned or controlled by student organizations officially recognized by a postsecondary institution. To ensure that recipients adequately consider the resulting coverage of Title IX to each recipient’s particular circumstances, the final regulations require that every Title IX Coordinator, investigator, decision-maker, and person who facilitates an informal resolution process, must be trained on (among other things) ‘‘the scope of the recipient’s education program or activity.’’ 870 We have also revised § 106.45(b)(10)(i)(D) so that materials used to train Title IX personnel must be posted on a recipient’s website. These revisions ensure that a recipient’s students and employees, and the public, understand the scope of the recipient’s education program or activity for purposes of Title IX. Under Title IX, recipients must operate education programs or activities free from sex discrimination, and the Department will enforce these final regulations vigorously with respect to a recipient’s obligation to respond to sexual harassment that occurs in the recipient’s education program or activity. In situations involving some allegations of conduct that occurred in an education program or activity, and some allegations of conduct that did not, the recipient must investigate the allegations of conduct that occurred in the recipient’s education program or 870 Section PO 00000 106.45(b)(1)(iii). Frm 00174 Fmt 4701 Sfmt 4700 activity, and nothing in the final regulations precludes the recipient from choosing to also address allegations of conduct outside the recipient’s education program or activity.871 For example, if a student is sexually assaulted outside of an education program or activity but subsequently suffers Title IX sexual harassment in an education program or activity, then these final regulations apply to the latter act of sexual harassment, and the recipient may choose to address the prior assault through its own code of conduct. Nothing in the final regulations prohibits a recipient from resolving allegations of conduct outside the recipient’s education program or activity by applying the same grievance process required under § 106.45 for formal complaints of Title IX sexual harassment, even though such a process would not be required under Title IX or these final regulations. Thus, a recipient is not required by these final regulations to inefficiently extricate conduct occurring outside an education program or activity from conduct occurring in an education program or activity arising from the same facts or circumstances in order to meet the recipient’s obligations with respect to the latter. The Department appreciates the various concerns raised by many commenters regarding the extent to which students reside or spend time off campus and how the application of the ‘‘education program or activity’’ condition may affect students who experience sexual harassment and sexual assault in off-campus situations, including community college students, vocational school students, and students who belong to marginalized demographic groups. The Department reiterates that the final regulations do not impose a geographic test or draw a distinction between on-campus misconduct and off-campus misconduct. As discussed above, whether conduct occurs in a recipient’s education program or activity does not necessarily depend on the geographic location of the incident. Instead, ‘‘education program or activity’’ relies on statutory and regulatory definitions of ‘‘program or activity,’’ 872 on the statement adapted from the Supreme Court’s language in Davis added to 871 Section 106.45(b)(3) (revised in the final regulations to expressly state that although a recipient must dismiss allegations about conduct that did not occur in the recipient’s education program or activity, such a mandatory dismissal is ‘‘for purposes of sexual harassment under title IX or this part; such a dismissal does not preclude action under another provision of the recipient’s code of conduct.’’). 872 E.g., 20 U.S.C. 1687; 34 CFR 106.2(h). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations § 106.44(a) that education program or activity includes locations, events, or circumstances over which the recipient exercised substantial control over the respondent and over the context in which the sexual harassment occurred, and includes on-campus and off-campus buildings owned or controlled by a student organization officially recognized by a postsecondary institution. If a sexual assault occurs against a student outside of an education program or activity, and the student later experiences Title IX sexual harassment in an education program or activity, then a recipient with actual knowledge of such sexual harassment in the recipient’s education program or activity must respond pursuant to § 106.44(a). The final regulations’ approach reduces confusion for recipients and students as to the scope of Title IX’s protective coverage and recognizes the Department’s administrative role in enforcing this important civil rights law according to the statute’s plain terms. Furthermore, as noted previously, nothing in the final regulations prevents recipients from initiating a student conduct proceeding or offering supportive measures to students affected by sexual harassment that occurs outside the recipient’s education program or activity. Title IX is not the exclusive remedy for sexual misconduct or traumatic events that affect students. As to misconduct that falls outside the ambit of Title IX, nothing in the final regulations precludes recipients from vigorously addressing misconduct (sexual or otherwise) that occurs outside the scope of Title IX or from offering supportive measures to students and individuals impacted by misconduct or trauma even when Title IX and its implementing regulations do not require such actions.873 The Department emphasizes that sexual misconduct is unacceptable regardless of the circumstances in which it occurs, and recognizing jurisdictional limitations on the purview of a statute does not equate 873 As discussed in the ‘‘Directed Question 5: Individuals with Disabilities’’ subsection of the ‘‘Directed Questions’’ section of this preamble, nothing in these final regulations affects a recipient’s obligations to comply with all applicable disability laws, such as the ADA. Thus, for example, if a recipient’s student (or employee) has a disability caused or exacerbated by, or arising from, sexual harassment, a recipient must comply with applicable disability laws (including with respect to providing reasonable accommodations) irrespective of whether the sexual harassment that caused or exacerbated the individual’s disability constitutes Title IX sexual harassment to which the recipient must respond under these final regulations. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 to condoning any form of sexual misconduct. The Department believes a commenter’s concern regarding the negative effect of the final regulations on the Federal background check process and our national security to be speculative. The final regulations would not categorically exclude off-campus assaults. As discussed previously, the final regulations applies to off-campus sexual harassment that occurs under ‘‘the operations of’’ the recipient, or where the recipient exercised substantial control over the respondent and the context in which the sexual harassment occurred, or in a building owned or controlled by a student organization officially recognized by a postsecondary institution. This commenter appears to have made a series of assumptions that may not be true, including that a significant number of off-campus assaults not covered by the final regulations would involve perpetrators subjected to a Federal background check in the future, and that a significant number of background checks would fail to uncover relevant information about sexual misconduct solely because the perpetrator’s misconduct was not covered under Title IX. Again, the Department emphasizes that nothing in the final regulations prevents recipients from addressing sexual misconduct that occurs outside their education programs or activities, nor do the final regulations discourage or prevent a victim from reporting sexual misconduct to law enforcement or from filing a civil lawsuit; therefore, numerous avenues exist through which misconduct not covered under Title IX would be revealed during a Federal background check of the perpetrator. With respect to a commenter’s assertion that the final regulations may perversely incentivize recipients to not recognize fraternities and sororities, the Department believes this conclusion would require assuming that recipients will make decisions affecting the quality of life of their students based solely on whether or not recipient recognition of a student organization such as a fraternity or sorority would result in sexual harassment that occurs at locations affiliated with that organization falling under Title IX’s scope. The Department does not make such an assumption, believing instead that recipients take many factors into account in deciding whether, and under what conditions, a recipient wishes to officially recognize a student organization. Whether or not these final regulations alter postsecondary institutions’ decisions about recognizing Greek life organizations, the Department PO 00000 Frm 00175 Fmt 4701 Sfmt 4700 30199 has determined that the scope of Title IX extends to the entirety of a recipient’s education program and activity, and with respect to postsecondary institutions, the Department is persuaded by commenters’ contentions that when a postsecondary institution chooses to officially recognize a student organization, the recipient has implied to its students and employees that locations owned by such a student organization are under the imprimatur of the recipient, whether or not the recipient otherwise exercises substantial control over such a location. The Department believes there is a fundamental distinction between Title IX, and workplace policies that may exist in the corporate world. Title IX has clear jurisdictional application to education programs or activities, and the Department does not have authority to extend Title IX’s application. By contrast, corporations may have more flexibility in crafting their own rules and policies to reflect their values and the needs of their employees and customers. Further, Title VII does not necessarily deem actionable all sexual harassment committed by employees regardless of the location or context of the harassment.874 These final regulations tether sexual harassment to a recipient’s education program or activity in a similar manner to the way courts tether sexual harassment to a workplace under an employer’s control.875 Regardless of any differences between analyses under Title VII and Title IX, we emphasize that recipients retain discretion under the final regulations to address sexual misconduct that falls outside the recipient’s education program or activity through their own disciplinary system and by offering supportive 874 See, e.g., Lapka v. Chertoff, 517 F.3d 974, 982– 83 (7th Cir. 2008). 875 The Department adds to § 106.44(a) the statement that ‘‘education program or activity’’ includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs. This helps clarify that even if a situation arises off campus, it may still be part of the recipient’s education program or activity if the recipient exercised substantial control over the context and the alleged harasser. While such situations may be fact specific, recipients must consider whether, for example, a sexual harassment incident between two students that occurs in an offcampus apartment (i.e., not a dorm room provided by the recipient) is a situation over which the recipient exercised substantial control; if so, the recipient must respond when it has actual knowledge of sexual harassment or allegations of sexual harassment that occurred there. At the same time, the Title IX statute and existing regulations broadly define a recipient’s ‘‘program or activity’’ to include (as to schools) ‘‘all of the operations’’ of the school, such that situations that arise on campus are already part of a school’s education program or activity. 20 U.S.C. 1687. E:\FR\FM\19MYR2.SGM 19MYR2 30200 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations measures to complainants reporting such misconduct. The Department acknowledges commenters’ citations to Federal court opinions for the proposition that a recipient may be deliberately indifferent to sexual harassment that occurred outside the recipient’s control where the complainant has to interact with the respondent in the recipient’s education program or activity, or where the effects of the underlying sexual assault create a hostile environment in the complainant’s workplace or educational environment. However, with the changes to the final regulations made in response to commenters’ concerns, the Department believes that we have clarified that sexual harassment incidents occurring off campus may fall under Title IX. The statutory and regulatory definitions of ‘‘program or activity’’ and the statements regarding ‘‘substantial control’’ and ‘‘buildings owned or controlled by’’ student organizations officially recognized by postsecondary institutions in § 106.44(a) do not state or imply that off-campus incidents necessarily fall outside a recipient’s education program or activity. Moreover, complainants can request supportive measures or an investigation into allegations of conduct that do not meet Title IX jurisdictional conditions, under a recipient’s own code of conduct.876 Some of the situations in Federal cases cited to by commenters may have reached similar outcomes under the final regulations. For example, in Doe v. East Haven Board of Education,877 the 876 The Department also notes that § 106.45(b)(8) in the final regulations permits complainants and respondents equally to appeal a recipient’s determination that allegations were subject to mandatory dismissal under § 106.45(b)(3)(i). 877 200 F. App’x 46, 48 (2d Cir. 2006); Lapka v. Chertoff, 517 F.3d 974, 982–83 (7th Cir. 2008) (the Seventh Circuit reasoned that the plaintiff sufficiently alleged workplace harassment even though the alleged rape occurred while the plaintiff and assailant were socializing after hours in a private hotel room, because the bar was part of the training facility where the plaintiff and assailant were required to attend work-related training sessions and thus were on ‘‘official duty’’ while at that facility, including the bar located in the facility, ‘‘so the event could be said to have grown out of the workplace environment’’ and the plaintiff and assailant were trainees expected to eat and drink at the facility and ‘‘return to dormitories and hotel rooms provided by’’ the employer such that ‘‘[e]mployees in these situations can be expected to band together for society and socialize as a matter of course’’ justifying the Court’s conclusion that the plaintiff had alleged sexual harassment (rape) that arose in the context of a workplace environment and to which the employer had an obligation to respond). Although Lapka was a case under Title VII, the final regulations would similarly analyze whether sexual harassment occurred in the school’s program or activity by inquiring whether the school exercised substantial control over the context of the harassment and the alleged harasser. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Second Circuit held that the plaintiff sufficiently alleged sexual harassment to which the school was deliberately indifferent where the harassment consisted of on-campus taunts and name-calling directed at the plaintiff after she had reported being raped off campus by two high-school boys. The final regulations would similarly analyze whether sexual harassment (i.e., unwelcome conduct on the basis of sex so severe, pervasive, and objectively offensive that it effectively deprives a complainant of equal access to education) in the recipient’s program or activity triggered a recipient’s response obligations regardless of whether such sexual harassment stemmed from the complainant’s allegations of having suffered sexual assault (e.g., rape) outside the recipient’s program or activity. Further, whether or not the offcampus rape in that case was in, or outside, the school’s education program or activity, would depend on the factual circumstances, because as explained above, not all off-campus sexual harassment is excluded from Title IX coverage. Contrary to commenters’ assertions, the Supreme Court in Gebser did not dispense with the program or activity limitation or declare that where the harassment occurred did not matter. The facts at issue in the Gebser case involved teacher-on-student harassment that consisted of both in-class sexual comments directed at the plaintiff as well as a sexual relationship that began when the respondent-teacher visited the plaintiff’s home ostensibly to give her a book.878 The Supreme Court in Gebser emphasized that a school district needs to be aware of discrimination (in the form of sexual harassment) ‘‘in its programs’’ and emphasized that a teacher’s sexual abuse of a student ‘‘undermines the basic purposes of the educational system’’ 879 thereby 878 Gebser, 524 U.S. at 277–78. 879 Gebser, 524 U.S. at 286 (‘‘As a general matter, it does not appear that Congress contemplated unlimited recovery in damages against a funding recipient where the recipient is unaware of discrimination in its programs.’’) (emphasis added); id. at 289 (reasoning that a school’s liability in a private lawsuit should give the school opportunity to know of the violation and correct it voluntarily similarly to the way the Title IX statute directs administrative agencies to give a school that opportunity to voluntarily correct violations, and the Court stated ‘‘Presumably, a central purpose of requiring notice of the violation ‘to the appropriate person’ and an opportunity for voluntary compliance before administrative enforcement proceedings can commence is to avoid diverting education funding from beneficial uses where a recipient was unaware of discrimination in its programs and is willing to institute prompt corrective measures.’’) (emphasis added); id. at 290 (‘‘we hold that a damages remedy will not lie under Title IX unless an official who at a minimum has PO 00000 Frm 00176 Fmt 4701 Sfmt 4700 implicitly recognizing that a teacher’s sexual harassment of a student is likely to constitute sexual harassment ‘‘in the program’’ of the school even if the harassment occurs off campus. Nothing in the final regulations contradicts this premise or conclusion; § 106.44(a) clarifies that a recipient’s education program or activity includes circumstances over which a recipient has substantial control over the context of the harassment and the respondent, and a teacher employed by a recipient who visits a student’s home ostensibly to give the student a book but in reality to instigate sexual activity with the student could constitute sexual harassment ‘‘in the program’’ of the recipient such that a recipient with actual knowledge of that harassment would be obligated under the final regulations to respond. Similarly, the Supreme Court in Davis viewed the perpetrator’s status as a teacher in Gebser as relevant to concluding that the sexual harassment was happening ‘‘under’’ the recipient’s education program or activity.880 We reiterate that the final regulations do not distinguish between sexual harassment occurring ‘‘on campus’’ versus ‘‘off campus’’ but rather state that Title IX covers sexual harassment that occurs in a recipient’s education program or activity. The final regulations follow the Gebser/Davis approach to Title IX’s statutory reference to discrimination in an education program or activity; sexual harassment by a teacher as opposed to harassment by a fellow student may, as indicated in Gebser and Davis, affect whether the sexual harassment occurred ‘‘under any education program or activity.’’ 881 This is a matter that recipients must consider when training Title IX personnel on the ‘‘scope of the authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.’’) (emphasis added); id. at 292 (‘‘No one questions that a student suffers extraordinary harm when subjected to sexual harassment and abuse by a teacher, and that the teacher’s conduct is reprehensible and undermines the basic purposes of the educational system.’’) (emphasis added). 880 Davis, 526 U.S. at 652–53 (‘‘Moreover, the provision that the discrimination occur ‘under any education program or activity’ suggests that the behavior be serious enough to have the systemic effect of denying the victim equal access to an educational program or activity. . . . The fact that it was a teacher who engaged in harassment in Franklin and Gebser is relevant. The relationship between the harasser and the victim necessarily affects the extent to which the misconduct can be said to breach Title IX’s guarantee of equal access to educational benefits and to have a systemic effect on a program or activity.’’). 881 Id. at 652. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recipient’s education program or activity’’ pursuant to § 106.45(b)(1)(iii). Both the 2001 Guidance and 2017 Q&A recognize the statutory language of ‘‘education program or activity’’ as a limitation on sexual harassment to which a recipient must respond. For example, the 2001 Guidance notes that ‘‘Title IX applies to all public and private educational institutions that receive Federal funds’’ and states that the ‘‘education program or activity of a school includes all of the school’s operations’’ which means ‘‘that Title IX protects students in connection with all of the academic, educational, extracurricular, athletic, and other programs of the school, whether they take place in the facilities of the school, on a school bus, at a class or training program sponsored by the school at another location, or elsewhere.’’ 882 Similarly, the 2017 Q&A expressly acknowledges that a recipient’s obligation to respond to sexual harassment is confined to harassment that occurs in the recipient’s education program or activity, citing statutory and regulatory definitions of ‘‘recipient,’’ ‘‘operations,’’ and ‘‘program or activity.’’ 883 The final regulations similarly rely on preexisting statutory and regulatory definitions of a recipient’s ‘‘program or activity’’ and add a statement that ‘‘education program or activity’’ includes circumstances over which the recipient exercised substantial control. The withdrawn 2011 Dear Colleague Letter departed from the Department’s longstanding acknowledgement that a recipient’s response obligations are conditioned on sexual harassment that occurs in the recipient’s education program or activity; 884 these final 882 2001 Guidance at 2–3 (internal quotation marks omitted) (citing to 20 U.S.C. 1687, codification of the amendment to Title IX regarding scope of jurisdiction, enacted by the Civil Rights Restoration Act of 1987, and to 65 FR 68049 (November 13, 2000), the Department’s amendment of the Title IX regulations to incorporate the statutory definition of ‘‘program or activity.’’). 883 2017 Q&A at 1, fn. 3. 884 2011 Dear Colleague Letter at 4 (‘‘Schools may have an obligation to respond to student-on-student sexual harassment that initially occurred off school grounds, outside a school’s education program or activity. If a student files a complaint with the school, regardless of where the conduct occurred, the school must process the complaint in accordance with its established procedures. Because students often experience the continuing effects of off-campus sexual harassment in the educational setting, schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus. For example, if a student alleges that he or she was sexually assaulted by another student off school grounds, and that upon returning to school he or she was taunted and harassed by other students who are the alleged perpetrator’s friends, the school should take the earlier sexual assault into account VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 regulations return to the Department’s approach in the 2001 Guidance, which mirrors the Supreme Court’s approach to ‘‘education program or activity’’ as a jurisdictional condition that promotes a recipient’s obligation under Title IX to provide education programs or activities free from sex discrimination. Like the 2001 Guidance, the final regulations approach the ‘‘education program or activity’’ condition as extending to circumstances over which recipients have substantial control, and not only to incidents that occur ‘‘on campus.’’ We reiterate that nothing in the final regulations precludes a recipient from offering supportive measures to a complainant who reports sexual harassment that occurred outside the recipient’s education program or activity, and any sexual harassment that does occur in an education program or activity must be responded to even if it relates to, or happens subsequent to, sexual harassment that occurred outside the education program or activity. Although the 2001 Guidance and 2017 Q&A frame actionable sexual harassment as harassment that creates a ‘‘hostile environment,’’ 885 the final regulations utilize the more precise interpretation of Title IX’s scope articulated by the Supreme Court in Davis: That a recipient must respond to sexual harassment that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education.886 The use of the phrase ‘‘hostile environment’’ in the 2001 Guidance and 2017 Q&A does not mean that those guidance documents ignored the ‘‘education program or in determining whether there is a sexually hostile environment. The school also should take steps to protect a student who was assaulted off campus from further sexual harassment or retaliation from the perpetrator and his or her associates.’’) (emphasis added); see also the withdrawn 2014 Q&A at 29–30. 885 2001 Guidance at 3; 2017 Q&A at 1. Although footnote 3 of the 2017 Q&A states that ‘‘[s]chools are responsible for redressing a hostile environment that occurs on campus even if it relates to offcampus activities,’’ this statement was intended to convey that a recipient may not ignore sexual harassment that occurs in its program or activity just because the parties involved may also have experienced an incident of sexual harassment outside its program or activity. See also Doe v. East Haven Bd. of Educ., 200 F. App’x 46, 48 (2d Cir. 2006) (holding that plaintiff sufficiently alleged sexual harassment to which the school was deliberately indifferent where the harassment consisted of on-campus, sexualized taunts and name-calling directed at the plaintiff after she had reported being raped by two high-school boys outside the school’s program or activity). 886 See also the ‘‘Sexual Harassment’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble for further discussion of the ‘‘effective denial of equal access’’ element in the final regulations’ definition of sexual harassment and the relationship between that element and the concept of hostile environment. PO 00000 Frm 00177 Fmt 4701 Sfmt 4700 30201 activity’’ limitation referenced in the Title IX statute; whether framed as a ‘‘hostile environment’’ (as in Department guidance) or as ‘‘effective denial of a person’s equal access’’ to education (as in these final regulations), sexual harassment is a form of sex discrimination actionable under Title IX when it occurs in an education program or activity. Because the final regulations do not exclude ‘‘off campus’’ sexual harassment from coverage under Title IX and instead take the approach utilized in the 2001 Guidance and applied by the Supreme Court in Davis, under which off campus sexual harassment may be in the scope of a recipient’s education program or activity, the Department disagrees that these final regulations conflict with the Department’s recent enforcement action with respect to holding Chicago Public Schools accountable for failure to appropriately respond to certain offcampus sexual assaults. Changes: Section 106.44(a) is revised to state that ‘‘education program or activity’’ includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution. Section 106.45(b)(1)(iii) is revised to include training for Title IX Coordinators, investigators, decision-makers, and persons who facilitate informal resolutions on ‘‘the scope of the recipient’s education program or activity.’’ Section 106.45(b)(3)(i) is revised to expressly provide that a mandatory dismissal of allegations in a formal complaint about conduct not occurring in the recipient’s education program or activity is ‘‘for purposes of title IX or [34 CFR part 106]; such a dismissal does not preclude action under another provision of the recipient’s code of conduct.’’ Section 106.45(b)(10)(i)(D) is revised to require recipients to post materials used to train Title IX personnel on the recipient’s website, or if the recipient does not have a website, to make such materials available for inspection and review by members of the public. Online Sexual Harassment Comments: One commenter cited case law for the proposition that Title IX does not cover online or digital E:\FR\FM\19MYR2.SGM 19MYR2 30202 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations conduct.887 Other commenters cited cases holding that recipients may be liable under Title IX for failing to adequately address online harassment.888 A few commenters argued that the NPRM’s approach to education program or activity is inconsistent with the Department’s past practice and guidance documents, such as guidance issued in 2010 which acknowledged that cell phone and internet communications may constitute actionable harassment. Many commenters were concerned the NPRM would exclude online sexual harassment due to the education program or activity condition in § 106.44(a), and cited studies showing the prevalence and effects of online harassment and cyber-bullying on victims.889 Commenters argued that it was unclear to what extent the NPRM would cover online harassment and suggested that the Department more broadly define ‘‘program or activity’’ to include student interactions that are enabled by recipients, such as online harassment between students using internet access provided by the recipient. Commenters argued that the final regulations should explicitly address cyber-bullying and electronic speech. Some commenters suggested that excluding online misconduct may conflict with State law; for example, commenters stated that New Jersey law includes harassment occurring online. Discussion: The Department appreciates commenters’ concerns about whether Title IX applies to sexual harassment that occurs electronically or online. We emphasize that the education program or activity jurisdictional condition is a fact-specific inquiry applying existing statutory and regulatory definitions of ‘‘program or activity’’ to the situation; however, for recipients who are postsecondary institutions or elementary and secondary schools as those terms are used in the final regulations, the statutory and regulatory definitions of ‘‘program or activity’’ encompass ‘‘all of the operations of’’ such recipients, and such ‘‘operations’’ may certainly 887 Commenters cited, e.g.: Yeasin v. Durham, 719 F. App’x 844 (10th Cir. 2018); Gordon v. Traverse City Area Pub. Sch., 686 F. App’x 315, 324 (6th Cir. 2017). 888 Commenters cited: Feminist Majority Found. v. Hurley, 911 F.3d 674 (4th Cir. 2018); S.J.W. v. Lee’s Summit R–7 Sch. Dist., 696 F.3d 771, 777 (8th Cir. 2012); Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 220–221 (3d Cir. 2011); Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565, 573 (4th Cir. 2011); Sypniewski v. Warren Hill Reg’l Bd. of Educ., 307 F.3d 243, 257 (3d Cir. 2002). 889 Commenters cited, e.g.: American Association of University Women, Crossing the Line: Sexual Harassment at School (2011). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 include computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of, the recipient.890 Furthermore, the final regulations revise § 106.44(a) to specify that an education program or activity includes circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurred, such that the factual circumstances of online harassment must be analyzed to determine if it occurred in an education program or activity. For example, a student using a personal device to perpetrate online sexual harassment during class time may constitute a circumstance over which the recipient exercises substantial control. Contrary to the claims made by some commenters, the approach to ‘‘education program or activity’’ contained in the final regulations, and in particular its potential application to online harassment, would not necessarily conflict with the Department’s previous 2010 Dear Colleague Letter addressing bullying and harassment. The Department’s 2010 guidance made a passing reference that harassing conduct may include ‘‘use of cell phones or the internet,’’ and the Department’s position has not changed in this regard.891 These final regulations apply to sexual harassment perpetrated through use of cell phones or the internet if sexual harassment occurred in the recipient’s education program or activity. As explained in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, these final regulations adopt and adapt the Gebser/Davis framework of actual knowledge and deliberate indifference, in contrast to the rubric in the 2010 Dear Colleague Letter on bullying and harassment; however, these final regulations appropriately address electronic, digital, or online sexual harassment by not making sexually harassing conduct contingent on the method by which the conduct is perpetrated. Additionally, even if a recipient is not required to address certain misconduct under these final regulations, these final regulations expressly allow a recipient to address such misconduct under its own code of conduct.892 Accordingly, there may not 890 20 U.S.C. 1687; 34 CFR 106.2(h). Dep’t. of Education, Office for Civil Rights, Dear Colleague Letter: Harassment and Bullying at 2 (Oct. 26, 2010), https://www2.ed.gov/ about/offices/list/ocr/letters/colleague-201010.pdf. 892 E.g., § 106.45(b)(3)(i). 891 U.S. PO 00000 Frm 00178 Fmt 4701 Sfmt 4700 be any conflict between these final regulations with respect to State laws that explicitly cover online harassment. Changes: None. Consistency With Title IX Statutory Text Comments: Some commenters opposed the NPRM’s approach to ‘‘education program or activity’’ by arguing that it conflicts with Title IX’s statutory text. Commenters contended that the NPRM is an unambiguously incorrect interpretation of Title IX under the deference doctrine articulated by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,893 and will thus be given no judicial deference. One such commenter asserted that the Title IX statute has three distinctive protective categories, such that no person on the basis of sex can be: (1) Excluded from participation in; (2) denied the benefits of; or (3) subjected to discrimination under any education program or activity. The commenter argued that the first clause includes off-campus conduct, such as male students on a public street blocking female students from accessing campus. This commenter argued that the third clause prohibits discrimination ‘‘under,’’ and not ‘‘in’’ or ‘‘within,’’ a recipient’s education program or activity and is violated whenever women or girls are subjected to more adverse conditions than males. This commenter asserted that the Title IX statutory text does not depend on where the underlying conduct occurs, but rather focuses on the subsequent hostile educational environment that such misconduct can cause. Another commenter argued that requiring recipients to treat off-campus sexual misconduct differently from oncampus sexual misconduct can itself violate Title IX. Discussion: The Department acknowledges the analysis offered by at least one commenter that the Title IX statute, by its own text, has three distinct protective categories and the commenter’s argument that the ‘‘subjected to discrimination’’ prong is violated whenever females are subjected to more adverse conditions than males. As explained below, the Department elects to adopt the analysis applied by the Supreme Court rather than the analysis provided by the commenter. In Davis, the Supreme Court acknowledged that Title IX protects students from ‘‘discrimination’’ and from being ‘‘excluded from participation in’’ or ‘‘denied the benefits of’’ any education program or activity receiving 893 467 E:\FR\FM\19MYR2.SGM U.S. 837 (1984). 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Federal financial assistance.894 The Davis Court characterized sexual harassment as a form of sex discrimination under Title IX,895 and reasoned that whether a recipient is liable for sexual harassment thus turns on whether the recipient can be said to have ‘‘subjected’’ students to sex discrimination in the form of sexual harassment.896 The Davis Court further reasoned, ‘‘Moreover, because the harassment must occur ‘under’ ‘the operations of’ a funding recipient, see 20 U.S.C. 1681(a); § 1687 (defining ‘program or activity’), the harassment must take place in a context subject to the school district’s control. . . . These factors combine to limit a recipient’s damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs.’’ 897 Adopting the Supreme Court’s analysis of the appropriate application of the Title IX statute’s ‘‘program or activity’’ language in the context of sexual harassment, the final regulations treat sexual harassment as a form of sex discrimination under Title IX and hold recipients accountable for responding to sexual harassment that took place in a context under the recipient’s control. In interpreting ‘‘education program or activity’’ in the final regulations, the Department will look to the definitions of ‘‘program or activity’’ provided by Title IX 898 and existing Title IX regulations,899 and has revised § 106.44(a) of the final regulations to clarify that ‘‘education program or activity’’ includes locations, events, or circumstances over which the recipient 894 Davis, 526 U.S. at 650. (‘‘Having previously determined that ‘sexual harassment’ is ‘discrimination’ in the school context under Title IX, we are constrained to conclude that student-on-student sexual harassment, if sufficiently severe, can likewise rise to the level of discrimination actionable under the statute.’’). 896 Id. (‘‘The statute’s plain language confirms the scope of prohibited conduct based on the recipient’s degree of control over the harasser and the environment in which the harassment occurs. If a funding recipient does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference ‘subjects’ its students to harassment. That is, the deliberate indifference must, at a minimum, ‘cause [students] to undergo’ harassment or ‘make them liable or vulnerable’ to it.’’) (internal citations to dictionary references omitted). 897 Id. at 644–45. 898 20 U.S.C. 1687 (defining ‘‘program or activity’’). 899 34 CFR 106.2(h) (defining ‘‘program or activity’’); 34 CFR 106.2(i) (defining ‘‘recipient’’); 34 CFR 106.31(a) (referring to ‘‘any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives Federal financial assistance’’). 895 Id. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 exercised substantial control over both the respondent and the context in which the harassment occurs, as well as oncampus and off-campus buildings owned or controlled by student organizations officially recognized by postsecondary institutions. The Department notes that the commenter’s hypothetical, concerning male students on a public street blocking female students from accessing campus, would require a fact-specific analysis but could constitute sexual harassment in the recipient’s education program or activity if such an incident occurred in a location, event, or circumstance over which the recipient exercised substantial control. Contrary to the claims made by some commenters, and as discussed above, the final regulations would not necessarily require recipients to treat off-campus misconduct differently from on-campus misconduct. Title IX does not create, nor did Congress intend for it to create, open-ended liability for recipients in addressing sexual harassment. Rather, the statute imposed an important jurisdictional limitation through its reference to education programs or activities. Recipients are responsible under Title IX for addressing sex discrimination, including sexual harassment, in their ‘‘education program or activity,’’ but a recipient’s education program or activity may extend to locations, events, and circumstances ‘‘off campus.’’ Changes: We have revised § 106.44(a) to state that for purposes of §§ 106.30, 106.44, and 106.45, ‘‘education program or activity’’ includes locations, events, or circumstances over which the respondent had substantial control over both the respondent and the context in which the sexual harassment occurred, and also includes buildings owned or controlled by student organizations that are officially recognized by a postsecondary institution. Constitutional Equal Protection Comments: One commenter contended that the NPRM’s approach to ‘‘education program or activity’’ may violate the Fourteenth Amendment because experiencing off-campus or online sexual victimization detrimentally affects student-survivors’ education, and the Fourteenth Amendment guarantees these students equal protection, yet, the commenter argued, the NPRM would leave these students outside Title IX’s reach and deprived of equal protection. Discussion: We disagree with the contention that the application in the final regulations of ‘‘education program or activity’’ as a jurisdictional condition PO 00000 Frm 00179 Fmt 4701 Sfmt 4700 30203 may violate the Equal Protection Clause of the Fourteenth Amendment. The Department reiterates that the ‘‘education program or activity’’ limitation in the final regulations does not create or apply a geographic test, does not draw a line between ‘‘off campus’’ and ‘‘on campus,’’ and does not create a distinction between sexual harassment occurring in person versus online. Moreover, under these final regulations, any individual alleged to be a victim of conduct that could constitute sexual harassment is a ‘‘complainant’’ 900 to whom the recipient must respond in a prompt, non-deliberately indifferent manner; in that manner, all students are treated equally without distinction under the final regulations based on, for example, where a student resides or spends time. The distinction of which some commenters are critical, then, is not a distinction drawn among groups or types of students, but rather is a distinction drawn (for reasons explained previously) between incidents that are, or are not, under the control of the recipient. The Department further notes that even if commenters correctly characterize the distinction as being made between some students (who suffer harassment in an education program or activity) and other students (who suffer harassment outside an education program or activity), the applicable level of scrutiny under the Equal Protection Clause to any differential treatment under such circumstances would be the rational basis test.901 A heightened level of scrutiny would apply where a suspect or quasi-suspect classification is involved, such as race or sex.902 But, as here, where no such suspect or quasisuspect classification is involved, the final regulations may treat students differently due to the circumstances in which the misconduct occurred, and the rational basis test applies. Under the rational basis test, a law or governmental action is valid under the Equal Protection Clause so long as it is rationally related to a legitimate government interest.903 With Title IX, 900 Section 106.30 (defining a ‘‘complainant’’ as any individual who is alleged to be the victim of conduct that could constitute sexual harassment). 901 See F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). 902 See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (applying strict scrutiny under the Equal Protection Clause to assess classifications based on race); Craig v. Boren, 429 U.S. 190, 197 (1976) (applying intermediate scrutiny under the Equal Protection Clause to assess classifications based on sex). 903 See Beach Commc’ns, Inc., 508 U.S. at 313 (holding that in areas of social and economic E:\FR\FM\19MYR2.SGM Continued 19MYR2 30204 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Congress made a rational determination that recipients should be held liable for misconduct over which they had some level of control. The statute’s reference to ‘‘education program or activity’’ reflects this important limitation. To expose recipients to liability for misconduct wholly unrelated to circumstances over which they have control would contravene congressional intent and lead to potentially unlimited exposure to loss of Federal funds. The Department believes that the use of ‘‘education program or activity’’ in § 106.44(a) appropriately reflects both statutory text and congressional intent, and furthers the legitimate government interest of ensuring liability is not openended and has reasonable jurisdictional limitations. Changes: None. Institutional Autonomy and Litigation Risk Comments: A number of commenters stated that the Department’s approach to ‘‘education program or activity’’ would undermine recipient autonomy and expose recipients to litigation risk. Commenters argued that recipients should have the right to determine the standards of behavior to which their students must adhere, both on campus and off campus, and that the NPRM would infringe on institutional academic prerogatives and independence. Commenters expressed concern that the NPRM would make recipients vulnerable to litigation from students seeking damages for offcampus assaults, including because recipients could be accused of arbitrarily deciding which cases to investigate and which cases to declare outside their jurisdiction. Discussion: We acknowledge the importance of recipient discretion and flexibility to determine the recipient’s own standards of conduct. However, Congress created a clear mandate in Title IX and vested the Department with the authority to administratively enforce Title IX to effectuate the statute’s twin purposes: To ‘‘avoid the use of Federal resources to support discriminatory practices’’ and to ‘‘provide individual citizens effective protection against those practices.’’ 904 Importantly, nothing in the final regulations prohibits recipients from using their own disciplinary processes to address policy, statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide rational basis for classification). 904 Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 misconduct occurring outside their education program or activity.905 Indeed, this flexibility for recipients to address sexual misconduct that falls outside the scope of Title IX, including sexual misconduct that is outside the recipient’s education program or activity, permits recipients to reduce the litigation risk perceived by some commenters. As discussed above, and contrary to the claims made by many commenters, the final regulations do not distinguish between on-campus misconduct and off-campus misconduct. Off-campus sexual harassment is not categorically excluded from Title IX coverage. Recipients’ decisions to investigate formal complaints regarding allegations of sexual harassment cannot be arbitrary under the final regulations; rather, a recipient must investigate a formal complaint where the alleged sexual harassment (meeting the definition in § 106.30) occurred in the recipient’s education program or activity, against a person in the United States. Changes: None. Requests for Clarification Comments: Commenters raised questions regarding the Department’s approach to the ‘‘education program or activity’’ condition. Commenters requested clarity as to events that begin off campus but have effects on campus, such as interaction among students, faculty, and staff outside formal professional or academic activities. These commenters were concerned that, in such circumstances, it may be challenging for an institution to clearly and consistently identify what conduct has occurred strictly within its education program and which conduct is beyond its educational program. One commenter sought clarification as to what, if any, are the Department’s expectations for a recipient’s conduct processes that address off-campus sexual misconduct. This commenter asserted that Title IX prohibits discrimination ‘‘under’’ an education program or activity, but that § 106.44(a) and proposed § 106.44(b)(4) referred to sexual harassment ‘‘in’’ an education program or activity, while proposed § 106.45(b)(3) referred to sexual harassment ‘‘within’’ a program or 905 In response to many commenters’ concerns that § 106.45(b)(3) was understood to prevent recipients from addressing misconduct that occurred outside an education program or activity, the Department has revised § 106.45(b)(3)(i) in the final regulations to expressly state that mandatory dismissal due to the alleged conduct occurring outside an education program or activity is only a dismissal for purposes of Title IX and does not preclude the recipient from addressing the conduct through other codes of conduct. PO 00000 Frm 00180 Fmt 4701 Sfmt 4700 activity. The commenter inquired as to whether ‘‘in’’ differs from ‘‘within’’ in those proposed sections, and whether those terms mean something different than ‘‘under’’ used in the Title IX statute, and if so what are the differences in meaning. The commenter asserted that Title IX prohibits ‘‘discrimination’’ under an education program or activity and that § 106.44(a) and proposed § 106.44(b)(2) refer to ‘‘sexual harassment’’ in an education program or activity, and asked if recipients would be required to respond where sexual harassment occurred outside an education program or activity but resulted in discrimination under the education program or activity. This commenter stated that under Title IX an individual may not be ‘‘excluded’’ from a federally-assisted program or activity on the basis of sex, and asked whether recipients must address sexual harassment that did not occur ‘‘in’’ its education program or activity but nevertheless effectively excluded the victim from equal access to it. Discussion: The Department appreciates the questions raised by commenters regarding the application of ‘‘education program or activity’’ in § 106.44(a) of the final regulations. The final regulations do not impose requirements on a recipient’s code of conduct processes addressing misconduct occurring outside the recipient’s education program or activity, and do not govern the recipient’s decisions to address or not address such misconduct. The Department’s regulatory authority is limited to the scope of Title IX: Ensuring that recipients of Federal funding operate education programs or activities free from sex discrimination. For the final regulations to apply, sexual harassment (a form of sex discrimination) must occur in the recipient’s education program or activity. As explained previously, nothing in the final regulations precludes a recipient from offering supportive measures to a complainant who reports sexual harassment that occurred outside the recipient’s education program or activity, and any sexual harassment or sex discrimination that does occur in an education program or activity must be responded to even if it relates to, or happens subsequent to, sexual harassment that occurred outside the education program or activity. Whether sexual harassment occurs in a recipient’s education program or activity is a fact-specific inquiry. The key questions are whether the recipient exercised substantial control over the respondent and the context in which the incident occurred. There is no bright- E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations line geographic test, and off-campus sexual misconduct is not categorically excluded from Title IX protection under the final regulations.906 Recognizing that recipients need to carefully consider this matter, the Department revised § 106.45(b)(1)(iii) to require training for Title IX Coordinators, investigators, decision-makers, and persons who facilitate informal resolution processes on ‘‘the scope of the recipient’s education program or activity.’’ In response to a commenter’s question regarding the NPRM’s use of the terms ‘‘in,’’ ‘‘within,’’ and ‘‘under’’ an education program or activity, and whether those terms are intended to have different meanings, the Department has replaced ‘‘within’’ with ‘‘in’’ throughout the final regulations, thus making all provisions consistent with the reference to ‘‘in’’ contained in § 106.44(a). We also wish to clarify that the final regulations’ use of the term ‘‘in’’ is meant to be interchangeable with the Title IX statute’s use of ‘‘under’’; the Department gives the same meaning to these prepositions, and notes that the Supreme Court in Davis referenced harassment ‘‘under’’ the operations of (i.e., the program or activity of) a recipient and harassment that occurred ‘‘in’’ a context subject to the recipient’s control seemingly interchangeably.907 Changes: The final regulations consistently use ‘‘in’’ an education program or activity rather than ‘‘within.’’ Section 106.44(a) ‘‘Against a Person in the U.S.’’ Impact on Study Abroad Participants Comments: Several commenters asserted that the NPRM would endanger students studying abroad, because the final regulations apply only to sexual harassment that occurs against a person in the United States. Commenters argued that when recipients offer students study abroad opportunities, recipients should still have responsibility to ensure student safety and well-being. Commenters acknowledged that Congress may not 906 See the ‘‘Clery Act’’ subsection of the ‘‘Miscellaneous’’ section of this preamble for discussion regarding the distinctive purposes of Clery Act geography versus Title IX coverage of education programs or activities; see also revised § 106.44(a) including in an ‘‘education program or activity’’ any building owned or controlled by a student organization that is officially recognized by a postsecondary institution. 907 Davis, 526 U.S. at 645 (‘‘Moreover, because the harassment must occur under the operations of’ a funding recipient . . . the harassment must take place in a context subject to the school district’s control’’) (internal quotation marks and citations omitted; emphasis added). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 have contemplated studying abroad or recipients having satellite campuses across the globe when drafting Title IX in the 1970s. However, commenters argued that international experiences are increasingly common and critical components of education today, particularly in higher education, and that some schools require students in certain academic programs to study abroad. Commenters noted that even the Federal government, on the U.S. State Department website, encourages students to have international exposure to compete in a globalized society. Commenters argued that it would be absurd for the Federal government to encourage international exposure for students and not protect them in the process because studying abroad is necessary for some majors and to prepare for certain careers. Commenters cited studies suggesting study abroad increases the risk for sexual misconduct against female students and showing how students had to alter their career paths in the aftermath of sexual misconduct experienced abroad.908 One commenter stated that harassment abroad, such as by institution-employed chaperones, can derail victims’ ability to complete their education at their home institution in the United States. This commenter stated that for the Department to interpret Title IX as providing no recourse for such students is impossible to imagine. Commenters asserted that the NPRM tells bad actors they can get away with sexual misconduct in foreign programs. Commenters asserted that study abroad students are already uniquely vulnerable and less likely to report to foreign local authorities because, for example, they may be unfamiliar with the foreign legal system, they share housing with the perpetrators, and there may be language barriers, fear of retaliation or social isolation, and fewer available support services. Commenters further argued that because crime occurring overseas cannot be prosecuted in the U.S, filing a Title IX report with the recipient might be the survivor’s only option. Commenters contended that the NPRM may have the effect of discouraging students from studying abroad and learning about foreign cultures and languages which would run contrary to the fundamental purpose of education to foster curiosity and discovery. 908 Commenters cited, e.g.: Matthew Kimble, et al., Study Abroad Increases Risk for Sexual Assault in Female Undergraduates: A Preliminary Report, 5 Psychol. Trauma: Theory, Research, Practice, & Pol’y 5 (2013). PO 00000 Frm 00181 Fmt 4701 Sfmt 4700 30205 Discussion: We acknowledge the concerns raised by many commenters that the final regulations would not extend Title IX protections to incidents of sexual misconduct occurring against persons outside the United States, and the impact that this jurisdictional limitation might have on the safety of students participating in study abroad programs. However, by its plain text, the Title IX statute does not have extraterritorial application. Indeed, Title IX states that ‘‘[n]o person in the United States shall, on the basis of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]’’ 909 The Department believes a plain meaning interpretation of a statute is most consistent with fundamental rule of law principles, ensures predictability, and gives effect to the intent of Congress. Courts have recognized a canon of statutory construction that ‘‘Congress ordinarily intends its statutes to have domestic, not extraterritorial, application.’’ 910 This canon rests on presumptions that Congress is mainly concerned with domestic conditions and seeks to avoid unintended conflicts between our laws and the laws of other nations.911 If Congress intended Title IX to have extraterritorial application, then it could have made that intention explicit in the text when it was passed in 1972, and Congress could amend Title IX to apply to a recipient’s education programs or activities located outside the United States if Congress so chooses. The Federal government’s encouragement of international experiences, such as study abroad, is not determinative of Title IX’s intended scope. The U.S. Supreme Court most recently acknowledged the presumption against extraterritoriality in Kiobel v. Royal Dutch Petroleum 912 and Morrison v. National Australian Bank.913 In Morrison, the Court reiterated the ‘‘longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’’ 914 The Court concluded that ‘‘[w]hen a statute gives no clear indication of 909 20 U.S.C. 1681(a) (emphasis added). v. United States, 544 U.S. 385, 388–89 910 Small (2005). 911 Smith v. United States, 507 U.S. 197, 204 (1993). 912 133 S. Ct. 1659 (2013). 913 561 U.S. 247 (2010). 914 Id. at 255. E:\FR\FM\19MYR2.SGM 19MYR2 30206 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations extraterritorial application, it has none.’’ 915 Very few Federal cases have addressed whether Title IX applies extraterritorially to allegations of sex discrimination occurring abroad, and Federal district courts have reached different results in these cases.916 To date, no Federal circuit has addressed this issue. Commenters noted that the court in King v. Board of Control of Eastern Michigan University 917 applied Title IX to a claim of sexual harassment occurring overseas during a study abroad program; the Federal district court reasoned that study abroad programs are educational operations of the recipient that ‘‘are explicitly covered by Title IX and which necessarily require students to leave U.S. territory in order to pursue their education.’’ The court emphasized that Title IX’s scope extends to ‘‘any education program or activity’’ of a recipient, which presumably would include the recipient’s study abroad programs. While the Department agrees that a recipient’s study abroad programs may constitute education programs or activities of the recipient, the Department agrees with the rationale applied by a Federal district court in Phillips v. St. George’s University 918 that regardless of whether a study abroad program is part of a recipient’s education program or activity, Title IX does not have extraterritorial application. The court in Phillips noted that nothing in the Title IX statute’s plain language indicates that Congress intended it to apply outside the U.S. and that the plain meaning of ‘‘person in the United States’’ suggests that Title IX only applies to persons located in the United States, even when that person is participating in a recipient’s education program or activity outside the United States. Both Phillips and King were decided before the Supreme Court’s Morrison and Kiobel opinions, and the Department doubts that the rationale applied by the court in King would survive analysis under those Supreme Court decisions, which emphasized the importance of the presumption against extraterritoriality of statutes passed by Congress. We find the Phillips Court’s reasoning to be well-founded, especially in light of the later-decided Supreme Court cases regarding extraterritoriality, 915 Id. 916 See Robert J. Aalberts et al., Studying is Dangerous? Possible Federal Remedies for Study Abroad Liability, 41 Journal Of Coll. & Univ. L. 189, 210–13 (2015). 917 221 F. Supp. 2d 783 (E.D. Mich. 2002). 918 No. 07–CV–1555, 2007 WL 3407728 (E.D.N.Y. Nov. 15, 2007). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 and we believe the jurisdictional limitation on extraterritoriality contained in the final regulations is wholly consistent with the text of the Title IX statute and with the presumption against extraterritoriality recognized numerous times by the Supreme Court. We further note that the Supreme Court acknowledges that where Congress intends for its statutes to apply outside the United States, Congress knows how to codify that intent.919 When Congress has codified such intent in other Federal civil rights laws, Congress has addressed issues that arise with extraterritorial application such as potential conflicts with foreign laws and procedures.920 Based on the presumption against extraterritoriality reinforced by Supreme Court decisions and the plain language in the Title IX statute limiting protections to persons ‘‘in the United States,’’ the Department believes that the Department does not have authority to declare that the presumption against extraterritoriality has been overcome, absent further congressional or Supreme Court direction on this issue. As a practical matter, we also note that schools may face difficulties interviewing witnesses and gathering evidence in foreign locations where sexual misconduct may have occurred. Recipients may not be in the best position to effectively investigate alleged sexual misconduct in other countries. Such practical considerations weigh in favor of the Department looking to Congress to expressly state whether Congress intends for Title IX to apply in foreign locations. We emphasize that nothing in these final regulations prevents recipients from initiating a student conduct proceeding or offering supportive measures to address sexual misconduct against a person outside the United States. We have revised § 106.45(b)(3) to explicitly state that even if a recipient must dismiss a formal complaint for Title IX purposes because the alleged sexual harassment did not occur against a person in the U.S., such a dismissal is only for purposes of Title IX, and nothing precludes the recipient from addressing the alleged misconduct 919 E.g., Equal Employment Opportunity Comm’n v. Arabian Am. Oil Co. (Aramco), 499 U.S. 244, 258 (1991) (‘‘Congress’s awareness of the need to make a clear statement that a statute applies overseas is amply demonstrated by the numerous occasions on which it has expressly legislated the extraterritorial application of a statute.’’). 920 E.g., Older Americans Act Amendments of 1984, Public Law 98–459, 802, 98 Stat. 1767, 1792 (codified at 29 U.S.C. 623, 630 (amending the Age Discrimination Employment Act of 1967 to apply outside the United States)); 29 U.S.C. 623(f) (addressing potential conflicts of laws issues). PO 00000 Frm 00182 Fmt 4701 Sfmt 4700 through the recipient’s own code of conduct. Contrary to claims made by some commenters, it is not true that the final regulations leave students studying abroad with no recourse in the event of sexual harassment or sexual assault. Recipients remain free to adopt disciplinary systems to address sexual misconduct committed outside the United States, to protect their students from such harm, and to offer supportive measures such as mental health counseling or academic adjustments for students impacted by misconduct committed abroad. As such, we believe the final regulations will not discourage students from participating in study abroad programs that may enrich their educational experience. Changes: None. Consistency With Federal Law and Departmental Practice Comments: Some commenters asserted that excluding extraterritorial application of Title IX would conflict with other Federal laws and past practice of the Department. One commenter stated that the NPRM is inconsistent with the Department’s own interpretation of the VAWA amendments to the Clery Act, and argued that carving out conduct occurring abroad conflicts with Clery Act language regarding geographical jurisdiction. This commenter argued that if a postsecondary institution has a separate campus abroad or owns or controls a building or property abroad that is used for educational purposes and used by students, the postsecondary institution must disclose the Clery Act crimes that occur there. The commenter suggested it would be illogical to require recipients to make such disclosures and yet not address the same underlying misconduct and that this puts recipients in a precarious position. Other commenters argued that the Department should interpret Title IX as protecting persons enrolled in education programs or activities the recipient conducts or sponsors abroad, as this interpretation would be consistent with application of other Federal civil rights laws, such as Title VI, and that the proposed rules’ approach conflicts with the Department’s past approach of requiring recipients to address sexual misconduct that could limit participation in education programs or activities overseas. Discussion: We disagree with the commenters who contended that excluding application of Title IX to sexual misconduct committed outside the United States raises untenable conflict with the past practice of the Department and other Federal laws. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations With respect to past practice of the Department, OCR has never explicitly addressed in any of its guidance whether Title IX has extraterritorial application. For example, though the withdrawn 2014 Q&A stated that ‘‘[u]nder Title IX, a school must process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity,’’ 921 it included an illustrative list of covered ‘‘[o]ff-campus education programs and activities’’ such as activities occurring at fraternity or sorority houses and schoolsponsored field trips; none of these examples involved an education program or activity outside the United States.922 However, to the extent that application of the ‘‘person in the United States’’ language in the final regulations departs from past Department guidance or practice, the Department believes that the jurisdictional limitation on extraterritoriality contained in the final regulations is reasonable and wholly consistent with the plain text of the Title IX statute and with the presumption against extraterritoriality recognized numerous times by the U.S. Supreme Court. With respect to other Federal law, we acknowledge that certain misconduct committed overseas is reportable under the Clery Act where, for example, the misconduct occurs in a foreign location that a U.S. institution owns and controls. However, the two laws (Title IX and the Clery Act) do not have the same scope or purpose,923 even though the two laws often intersect for postsecondary institution recipients who are also subject to the Clery Act. The Department does not perceive a conflict between a recipient’s obligation to comply with reporting obligations under the Clery Act and response obligations under Title IX. As discussed above, both the text of the Title IX statute and case law on the topic of extraterritoriality make it clear that Title IX does not apply to sex discrimination against a person outside the United States. With respect to Title VI, this statute, like Title IX, expressly limits its application to domestic discrimination with its opening words ‘‘No person in the United States . . .’’ and commenters provided no example of a Federal court or Department application of Title VI to conduct occurring outside the United 921 See 2014 Q&A at 29. 922 Id. 923 See ‘‘Background’’ subsection in ‘‘Clery Act’’ subsection of the ‘‘Miscellaneous’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 States. Nonetheless, the final regulations are focused on administrative enforcement of Title IX, and for reasons discussed previously, the Department does not believe that the statutory text or judicial interpretations of Title IX overcome the presumption against extraterritoriality that applies to statutes passed by Congress. Changes: None. Constitutional Equal Protection Comments: One commenter asserted that excluding extraterritorial application of Title IX may raise Constitutional issues under the Fourteenth Amendment Equal Protection Clause. This commenter argued that experiencing sexual victimization in study abroad programs detrimentally affects the studentsurvivor’s education, and the Fourteenth Amendment guarantees these students equal protection, yet the NPRM would leave these students outside the scope of Title IX protection and deprive them of equal protection. Discussion: We disagree with the contention that excluding extraterritorial application of Title IX may violate the Fourteenth Amendment Equal Protection Clause. As an initial matter, the applicable level of scrutiny under the Equal Protection Clause to any differential treatment of students under the § 106.44(a) ‘‘against a person in the United States’’ limitation would be the rational basis test. A heightened level of scrutiny would apply where a suspect or quasi-suspect classification is involved, such as race or sex. But, as here, where no such suspect or quasisuspect classification is involved and the final regulations may treat students differently due to the geographic location of misconduct occurring outside the United States, the rational basis test applies. Under the rational basis test, a law or governmental action is valid under the Equal Protection Clause so long as it is rationally related to a legitimate government interest.924 With respect to Title IX, Congress made a rational determination that recipients should only be held liable for misconduct that occurs within the United States. The statute’s explicit reference to ‘‘[n]o person in the United States’’ in 20 U.S.C. 1681(a) reflects this jurisdictional limitation. To hold recipient responsible for misconduct 924 F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993) (holding that in areas of social and economic policy, statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide rational basis for classification). PO 00000 Frm 00183 Fmt 4701 Sfmt 4700 30207 that took place outside the country could be unrealistically demanding and lead to open-ended liability, and if Congress intended that result, then Congress could have expressly stated its intent for Title IX to apply overseas when enacting Title IX, and can amend Title IX to so state. The Department believes that the reference to ‘‘against a person in the United States,’’ in § 106.44(a), appropriately reflects both the plain meaning of the statutory text and congressional intent that Title IX is focused on eradicating sex discrimination in domestic education programs or activities. The Department reiterates that recipients remain free under the final regulations to use their own disciplinary codes to address sexual harassment committed abroad and to extend supportive measures to students affected by sexual misconduct outside the United States. Changes: None. Impact on International or Foreign Exchange Students in the U.S. Comments: A few commenters asserted the proposed rules’ limitation with respect to persons ‘‘in the United States’’ may be detrimental to survivors who are international students whose visa status depends on academic performance. One commenter expressed concern that § 106.44(a) would exclude foreign exchange students in the U.S. from Title IX coverage, arguing that the Department should not treat foreign exchange students as undeserving of the same protection as students born in the United States. Discussion: The jurisdictional limitation that sexual harassment occurred against ‘‘a person in the United States’’ is not a limitation that protects only U.S. citizens; international students or foreign students studying in the United States are entitled to the same protections under Title IX as any other individuals. Title IX states that ‘‘[n]o person in the United States’’ shall be subject to discrimination based on sex. It is well-settled that the word ‘‘person’’ in this context includes citizens and non-citizens alike. Title IX protects every individual in the U.S. against discrimination on the basis of sex in education programs or activities receiving Federal financial assistance, regardless of citizenship or legal residency. Changes: None. Section 106.44(a) Deliberate Indifference Standard Comments: Many commenters were supportive of the deliberate indifference standard and several argued that it is a sufficient standard to hold institutions E:\FR\FM\19MYR2.SGM 19MYR2 30208 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations accountable for failing to address allegations of sexual misconduct in an appropriate manner. Many commenters favored the deliberate indifference standard because it affords institutions greater discretion to handle Title IX cases in a manner that is most consistent with the institution’s educational mission and level of resources. In contrast, other commenters advocated for the Department to return to the ‘‘reasonableness’’ standard because it affords recipients less discretion in their handling of Title IX complaints. These commenters argued that the reasonableness standard strikes the necessary balance between forcing schools to make certain policy changes, such as adopting due process protections in their grievance procedures, and granting deference. Other commenters argued that because the deliberate indifference standard is couched in terms of a safe harbor and coupled with ‘‘highly prescriptive mechanism[s]’’ under § 106.44 and § 106.45 it actually provides recipients with very little to no discretion in practice. Many commenters expressed the general concern that lowering the ‘‘reasonableness’’ standard to the ‘‘deliberate indifference’’ standard allows schools to investigate fewer allegations, punish fewer bad actors, and would shield schools from administrative accountability even in cases where schools mishandle complaints, fail to provide effective support, and wrongly determine against the weight of the evidence that the accused was not responsible for the misconduct. One commenter compared the deliberate indifference standard in the proposed rules to the application of the deliberate indifference standard in the prison context under the Eighth Amendment,925 arguing that if finalized the deliberate indifference standard would apply more stringently in the Title IX context and provide greater institutional protection to schools because it would be difficult to imagine any scenario where an institution could be found deliberately indifferent. Some commenters argued that the deliberate indifference standard is only appropriate in actions for private remedies rather than public remedies, and asserted that the 2001 Guidance acknowledged this difference. Some commenters contended that the deliberate indifference standard is wholly inappropriate in the context of administrative enforcement, arguing 925 Commenter cited: Farmer v. Brennan, 511 U.S. 825 (1994). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 that because the Department only demands equitable remedies of schools, in the form of policy changes, schools do not require the additional protection afforded by the deliberate indifference standard that applies in private lawsuits for money damages against schools. Other commenters noted that the deliberate indifference standard has not been adopted in the context of any of the other civil rights statutes OCR is charged with enforcing. Various commenters indicated that more clarity is needed with respect to what the deliberate indifference standard requires of recipients in the absence of a formal complaint of sexual harassment. Some commenters requested that the Department include a definition for deliberate indifference. Many commenters critiqued the language used to convey the standard, expressing the concern that a school’s response could be indifferent or unreasonable and not be in violation of Title IX so long as they were not deliberately indifferent or clearly unreasonable. Some commenters expressed the concern that the word ‘‘deliberate’’ implies an intentionality element, asserting that intent is difficult to prove. Other commenters believed the standard was too vaguely worded, provided too much deference to the institutions, and would always be interpreted in favor of the schools. Some commenters argued that the deliberate indifference standard would effectively deny the complainant any meaningful process because an institution could dismiss a complaint after determining that the alleged conduct does not fall within its interpretation of the sexual harassment definition. Some suggested the Department revise the proposed rules to impose a different standard on schools in circumstances where the schools are responding to allegations against someone in a position of authority, pointing to the misconduct of Larry Nassar at Michigan State University. Discussion: The Department appreciates the commenters’ support of the deliberate indifference standard and agrees that the deliberate indifference standard affords recipients an appropriate amount of discretion to address sexual misconduct in our Nation’s schools while holding recipients accountable if their response is clearly unreasonable in light of the known circumstances. The Department, however, also recognizes that too much discretion can result in unintended confusion and uncertainty for both complainants who deserve a meaningful response and careful consideration of their reports, and for respondents who PO 00000 Frm 00184 Fmt 4701 Sfmt 4700 should be punished only after they are determined to be responsible through a fair process. Since the implementing regulations were first issued in 1975, the Department has observed, and many stakeholders, including complainants and respondents, have informed the Department through public comment, that complainants and respondents have experienced various pitfalls and implementation problems from a lack of clarity with respect to recipients’ obligations under Title IX. As stated in the proposed regulations, the lack of clear regulatory standards has contributed to processes that have not been fair to the parties involved, have lacked appropriate procedural protections, and have undermined confidence in the reliability of the outcomes of investigations of sexual harassment complaints. For the reasons stated in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Department will maintain the deliberate indifference standard in the final regulations, with revisions to § 106.44(a) that specify certain actions a recipient must take in order to not be deliberately indifferent. In response to commenters’ concerns that the deliberate indifference standard leaves recipients too much leeway to decide on an appropriate response, the Department revises § 106.44(a) to include specific actions that a recipient must take as part of its non-deliberately indifferent response. Section 106.44(a) requires that a recipient’s response treat complainants and respondents equitably by offering supportive measures as defined in § 106.30 to a complainant, and by following a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent.926 As commenters have stated, many complainants would like supportive measures and do not necessarily wish to pursue a formal complaint and grievance process, although they should be informed of the process for filing a formal complaint. The Department wishes to respect the autonomy and wishes of a complainant throughout these final regulations, and recipients should also respect a complainant’s wishes to the degree 926 For discussion of what is intended by refraining from imposing disciplinary sanctions and other actions that are ‘‘not supportive measures’’ against a respondent, see the ‘‘Supportive Measures’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble. We use the same language to describe refraining from punishing a respondent with following the § 106.45 grievance process, in § 106.45(b)(1)(i). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations possible. Respondents also should not be punished for allegations of sexual harassment until after a grievance process that complies with § 106.45, as such a grievance process provides notice of the allegations to both complainants and respondents as well as a meaningful opportunity for both complainants and respondents to be heard. Additionally, the Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. A recipient should engage in a meaningful dialogue with the complainant to determine which supportive measures may restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the recipient’s educational environment, or deter sexual harassment. A recipient must offer each complainant supportive measures, and a recipient will have sufficiently fulfilled its obligation to offer supportive measures as long as the offer is not clearly unreasonable in light of the known circumstances, and so long as the Title IX Coordinator has contacted the complainant to engage in the interactive process also described in revised § 106.44(a). The Department acknowledges that there may be specific instances in which it is impossible or impractical to provide supportive measures. For example, the recipient may have received an anonymous report or a report from a third party and cannot reasonably determine the identity of the complainant to promptly contact the complainant. Similarly, if a complainant refuses the supportive measures that a recipient offers (and the supportive measures offered are not clearly unreasonable in light of the known circumstances) and instead insists that the recipient take punitive action against the respondent without a formal complaint and grievance process under § 106.45, the Department will not deem the recipient’s response to be clearly unreasonable in light of the known circumstances. If a recipient does not provide a complainant with supportive measures, then the recipient must document the reasons why such a response is not clearly unreasonable in light of the known circumstances, pursuant to revised § 106.45(b)(10)(ii). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Offering supportive measures to every complainant and documenting why not providing supportive measures is not clearly unreasonable in light of the known circumstances are some of the actions required under these final regulations but not expressly required under case law describing the deliberate indifference standard. These actions are required as part of the Department’s administrative enforcement of the deliberate indifference standard. Although we acknowledge the concerns of commenters urging the Department to abandon the deliberate indifference standard and return to the reasonableness standard, the Department disagrees for various reasons. As more fully explained in the ‘‘Deliberate Indifference’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section, the Department departs from its prior guidance that set forth a standard more like reasonableness, or even strict liability, instead of deliberate indifference. The Department’s past guidance and enforcement practices have taken the position that a recipient’s response to sexual harassment should be judged under a standard that expected the recipient’s response to effectively stop harassment and prevent its recurrence.927 This approach did not provide recipients adequate flexibility to make decisions affecting their students. For example, the Department’s guidance required recipients to always investigate any report of sexual harassment, even when the complainant only wanted supportive measures and did not want an investigation.928 Such a rigid requirement to investigate every report of sexual harassment in every circumstance intrudes into complainants’ privacy without concern for complainants’ autonomy and wishes and, thus, may chill reporting of sexual harassment. Additionally, the Department’s past guidance did not distinguish between an investigation that leads to the imposition of discipline and an inquiry to learn more about a report of sexual harassment.929 Deliberate indifference provides appropriate flexibility for recipients while holding recipients accountable for meaningful responses to sexual harassment that prioritize complainants’ wishes.930 927 2001 Guidance at iv, vi. Guidance at 13, 15, 18; 2011 Dear Colleague Letter at 4. 929 2001 Guidance at 13, 15, 18; 2011 Dear Colleague Letter at 4. 930 The final regulations specify that a recipient’s non-deliberately indifferent response must include investigating and adjudicating sexual harassment 928 2001 PO 00000 Frm 00185 Fmt 4701 Sfmt 4700 30209 The Department disagrees that these final regulations are highly or overly prescriptive such that recipients have no discretion. Recipients retain discretion to determine which supportive measures to offer and must document why providing supportive measures is not clearly unreasonably in light of the known circumstances, if the recipient does not provide any supportive measures. The Department will not second guess the supportive measures that a recipient offers as long as these supportive measures are not clearly unreasonable in light of the known circumstances. Similarly, the Department believes that the grievance process prescribed by § 106.45 creates a standardized framework for resolving formal complaints of sexual harassment under Title IX while leaving recipients discretion to adopt rules and practices not required under § 106.45.931 The Department notes that these final regulations do not include the safe harbor provisions proposed in the NPRM, and the Department explains its decision for not including these safe harbors in the ‘‘Recipient’s Response in Specific Circumstances’’ section of this preamble. Contrary to some commenters’ concerns, the deliberate indifference standard does not relieve recipients of their obligation to respond to every known allegation of sexual harassment. The deliberate indifference standard would also not allow recipients to investigate fewer allegations of sexual harassment or punish fewer respondents after a finding of responsibility. Rather, under these final regulations, recipients are specifically required to investigate allegations in a formal complaint (and must explain to each complainant the option of filing a formal complaint), and must provide a complainant with allegations, when a formal complaint is filed by a complainant or signed by the recipient’s Title IX Coordinator. § 106.44(b)(1); § 106.30 (defining ‘‘formal complaint’’); § 106.45(b)(3)(i). 931 The revised introductory sentence in § 106.45(b) provides that any provisions, rules, or practices other than those required by this section that a recipient adopts as part of its grievance process for handling formal complaints of sexual harassment as defined in § 106.30, must apply equally to both parties. The final regulations grant flexibility to recipients in other respects; see the discussion in the ‘‘Other Language/Terminology Comments’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble (noting that recipients may decide whether to calculate time frames using calendar days, school days, or other method); § 106.45(b)(6)(i) (allowing, but not requiring, live hearings to be held virtually through use of technology); § 106.45(b)(5)(vi) (removing the requirement that evidence gathered in the investigation be provided to the parties using a filesharing platform); §§ 106.45(b)(1)(vii), 106.45(b)(7)(i) (giving recipients a choice between using the preponderance of the evidence standard or the clear and convincing evidence standard). E:\FR\FM\19MYR2.SGM 19MYR2 30210 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations remedies any time a respondent is found responsible for sexual harassment pursuant to § 106.45(b)(1)(i). Even where a formal investigation is not required (because neither the complainant nor the Title IX Coordinator has filed or signed a formal complaint, or because a complainant is not participating in or attempting to participate in the recipient’s education program or activity at the time of filing), the deliberate indifference standard requires that a recipient’s response is not clearly unreasonable in light of known circumstances. Contrary to commenters’ arguments, this standard requires more than for a recipient to respond in some minimal or ineffective way because minimal and ineffective responses would inevitably qualify as ‘‘clearly unreasonable’’ and because as revised, § 106.44(a) imposes specific, mandatory obligations on a recipient with respect to a recipient’s response to each complainant. Given that the deliberate indifference standard involves an analysis of whether a response was clearly unreasonable in light of the known circumstances, there are many different factual circumstances under which a recipient’s response may be deemed deliberately indifferent. Section 106.44(a) requires a recipient to respond promptly where the recipient has actual knowledge of sexual harassment; a recipient may have actual knowledge of sexual harassment even where no person has reported or filed a formal complaint about the sexual harassment. For example, employees in an elementary or secondary school may observe sexualized insults scrawled on school hallways, and even where no student has reported the incident, the school employees’ notice of conduct that could constitute sexual harassment as defined in § 106.30 (i.e., unwelcome conduct that a reasonable person would conclude is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education) charges the recipient with actual knowledge, and the recipient must respond in a manner that is not clearly unreasonable in light of the known circumstances, which could include the recipient removing the sexually harassing insults and communicating to the student body that sexual harassment is unacceptable. By way of further example, if a Title IX Coordinator were to receive multiple reports of sexual harassment against the same respondent, as part of a nondeliberately indifferent response the Title IX Coordinator may sign a formal complaint to initiate a grievance process against the respondent, even where no VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 person who alleges to be the victim wishes to file a formal complaint. The deliberate indifference standard does not permit recipients to ignore or respond inadequately to sexual harassment of which the recipient has become aware, but the deliberate indifference standard appropriately recognizes that a recipient’s prompt response will differ based on the unique factual circumstances presented in each instance of sexual harassment. In response to comments that the Gebser/Davis liability standard (i.e., deliberate indifference) is and should be used only for monetary damages in private litigation, the Department notes that courts have used the Gebser/Davis standard in considering and awarding injunctive relief.932 Additionally, in Gebser, the Supreme Court acknowledged that the Department of Education has the authority to ‘‘promulgate and enforce requirements that effectuate [Title IX’s] nondiscrimination mandate.’’ 933 In promulgating these final regulations, the Department is choosing to do just that. The Department is not required to adopt identical standards for all civil rights laws under the Department’s enforcement authority, and after carefully considering the rationale relied upon by the Supreme Court in the context of sexual harassment under Title IX, the Department adopts the deliberate indifference standard articulated by the Supreme Court, tailored for administrative enforcement of recipients’ responses to sexual harassment. The Department believes it would be beneficial for recipients and students alike if the administrative standards governing recipients’ responses to sexual harassment were 932 Fitzgerald v. Barnstable Sch. Dist., 555 U.S. 246, 255 (2009) (‘‘In addition, this Court has recognized an implied private right of action . . . In a suit brought pursuant to this private right, both injunctive relief and damages are available.’’) (internal citations omitted; emphasis added); Hill v. Cundiff, 797 F.3d 948, 972–73 (11th Cir. 2015) (reversing summary judgment against plaintiff’s claims for injunctive relief because a jury could find that the alleged conduct was ‘‘severe, pervasive, and objectively offensive’’ under Davis); B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293, 322– 23 (3d Cir. 2013) (upholding preliminary injunction against school for banning students from wearing bracelets because the school failed to show that the ‘‘bracelets would breed an environment of pervasive and severe harassment’’ under Davis); Haidak v. Univ. of Mass. at Amherst, 299 F. Supp. 3d 242, 270 (D. Mass. 2018) (denying plaintiff’s request for a preliminary injunction because he failed to show that the school was deliberately indifferent to an environment of severe and pervasive discriminatory conduct under Davis), aff’d in part, vacated in part, remanded by Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56 (1st Cir. 2019). 933 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 292 (1998). PO 00000 Frm 00186 Fmt 4701 Sfmt 4700 aligned with the standards developed by the Supreme Court in private actions, while ensuring that through administrative enforcement the Department holds recipients accountable for taking specific actions that the Gebser/Davis framework does not require.934 The Department also believes that the language used to describe the deliberate indifference standard is sufficiently clear. The Department defines the standard according to the conventional understanding of the standard, that is, to be deliberately indifferent means to have acted in a way that is ‘‘clearly unreasonable in light of the known circumstances’’ consistent with the formulation of the deliberate indifference standard offered by the Supreme Court in Davis.935 The Department appreciates the opportunity to clarify that the term ‘‘deliberate’’ as used in the standard does not require an element of subjective intent to harm, or bad faith, or similar mental state, on the part of a recipient’s officials, administrators, or employees. Rather, the final regulations clearly state in § 106.44(a) that a recipient with actual knowledge of sexual harassment against a person in the United States occurring in its education program or activity must respond in a manner that is ‘‘not clearly unreasonable,’’ including by taking certain specific steps such as offering supportive measures to a complainant. Accordingly, the Department will hold a recipient responsible for compliance regardless of whether acting in a clearly unreasonable way, in light of the known circumstances, is the result of malice, incompetence, ignorance, or other mental state of the recipient’s officials, administrators, or employees. As adapted for administrative enforcement, the deliberate indifference standard sufficiently ensures that a recipient takes steps to address student safety and provides equal access to the recipient’s education program or activity while preserving a recipient’s discretion to address the unique facts and circumstances presented by any particular situation (for example, a 934 E.g., § 106.44(a) specifically requires that a recipient’s mandatory response to each report of sexual harassment must include promptly offering supportive measures to the complainant, and must avoid imposing disciplinary sanctions against a respondent without following the § 106.45 grievance process; § 106.44(b)(1) requires a recipient to investigate sexual harassment allegations made in a formal complaint; § 106.45 prescribes specific procedural protections for complainants, and respondents, when a recipient investigates and adjudicates formal complaints. 935 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648–49 (1999); § 106.44(a). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recipient’s offer of supportive measures as required in § 106.44(a) will be evaluated based on whether the recipient offered supportive measures to the complainant that, under the facts and circumstances presented in an individual complainant’s situation, were in fact designed to restore or preserve the complainant’s equal educational access). The Department is persuaded by commenters’ suggestions that the Department should impose stricter, more specific obligations on recipients’ responses to sexual harassment or sexual harassment allegations, including allegations against employees in positions of authority. Rather than abandoning the deliberate indifference liability standard, the Department adapts that standard for administrative enforcement in ways that preserve the benefits of aligning judicial and administrative enforcement rubrics, preserve the benefit of the ‘‘not clearly unreasonable in light of the known circumstances’’ standard’s deference to unique factual circumstances, yet imposes mandatory obligations on every recipient to respond in specific ways to each complainant alleged to be victimized by sexual harassment. Adopting the Supreme Court’s formulation of the deliberate indifference standard, while adapting that standard to specify what a recipient must do every time the recipient knows of sexual harassment (or allegations of sexual harassment), addresses commenters’ concerns that the deliberate indifference standard as presented in the NPRM did not impose strict enough requirements on a recipient to ensure the recipient responds supportively and fairly to sexual harassment in its education programs or activities. In the interest of providing greater clarity, consistency, and transparency as to a recipient’s obligations under Title IX and what students can expect, the Department does not want to overcomplicate the regulatory scheme in the final regulations by establishing separate standards for when a recipient is handling complaints involving different classes of respondents (for example, allegations against students, versus allegations against employees). The Department believes that expecting a recipient to respond in a manner that is not clearly unreasonable in light of the known circumstances appropriately requires a recipient to take into account whether the respondent holds a position of authority. Changes: The Department revised § 106.44(a) to provide that a recipient’s response must be prompt, and must VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 treat complainants and respondents equitably by offering supportive measures as defined in § 106.30 to a complainant, and by following a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent. Section § 106.44(a) is also revised to provide that the Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. Recipient’s Response in Specific Circumstances Section 106.44(b) Proposed ‘‘Safe Harbors,’’ Generally Comments: Some commenters praised the safe harbor provisions generally for giving colleges and universities the discretion to respond to sexual harassment complaints outside the formal grievance process. Some commenters also praised the safe harbor provisions for identifying specific circumstances under which a recipient can conform its response to legal requirements and avoid a finding of deliberate indifference. Some commenters, although supportive of the safe harbors generally, requested that the Department clarify how the safe harbors would work. Many commenters disagreed with the Department’s use of the term ‘‘safe harbor’’ in the NPRM, because the provisions that provided a ‘‘safe harbor’’ also include mandatory requirements. These commenters argued that a safe harbor is conventionally understood as a provision that a regulated party can take advantage of to shield itself from administrative action, as opposed to something a regulated party is required to do. Commenters asserted that ‘‘safe harbors’’ are options rather than obligations and pointed to the mandatory language contained in proposed § 106.44(b)(2) under which the Title IX Coordinator would have been required to file a formal complaint upon receiving multiple reports against a respondent,936 as fundamentally 936 Proposed § 106.44(b)(2) has been removed in the final regulations; see discussion under the ‘‘§ Proposed 106.44(b)(2) Reports by Multiple Complainants of Conduct by Same Respondent [removed in final regulations]’’ subsection of the PO 00000 Frm 00187 Fmt 4701 Sfmt 4700 30211 inconsistent with the idea of a safe harbor. Some commenters criticized the safe harbor provisions as rules intended to immunize recipients from a finding of deliberate indifference but requiring no more than a minimal response to allegations of sexual harassment, contrary to Title IX’s express intent. Commenters argued that the safe harbor provisions, combined with the deliberate indifference standard, curtail the Department’s ability to independently and comprehensively review a recipient’s response to sexual harassment allegations, amounting to an abdication of the Department’s role to enforce Title IX. Discussion: The Department appreciates comments in support of the two proposed safe harbors. Upon further consideration, the Department decided not to include the two proposed safe harbors in these final regulations. One of the proposed safe harbor provisions provided that if the recipient followed a grievance process (including implementing any appropriate remedy as required) that complies with § 106.45 in response to a formal complaint, the recipient’s response to the formal complaint would not be deliberately indifferent and would not otherwise constitute discrimination under Title IX. The proposed provision was meant to provide an assurance that the recipient’s response (only as to the formal complaint) would not be deemed deliberately indifferent as long as a recipient complies with § 106.45. This proposed safe harbor left open the possibility that other aspects of the recipient’s response may be deliberately indifferent. The Department understands commenters’ concerns that this safe harbor provision may have been confusing or misleading by somehow suggesting that compliance with § 106.45 is not required, or by suggesting that compliance with § 106.45 would have excused a recipient from providing a non-deliberately indifferent response with respect to matters other than conducting a grievance process. The Department is not including this proposed safe harbor provision in the final regulations to make it clear that recipients are always required to comply with § 106.45 in response to a formal complaint, and are always required to comply with all the obligations specified in § 106.44(a), with or without a formal complaint being filed. Indeed, the Department retains the ‘‘Recipient’s Response in Specific Circumstances’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30212 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations mandate in § 106.45(b)(1) and revises this mandate for clarity to state: ‘‘In response to a formal complaint, a recipient must follow a grievance process that complies with § 106.45.’’ The Department did not intend to leave the impression that it was immunizing recipients with respect to their obligations to address sexual harassment. These final regulations require a meaningful response to allegations of sexual harassment of which a recipient has notice, when the sexual harassment occurs in a recipient’s education program or activity against a person in the United States. The second proposed safe harbor provided that a recipient would not be deliberately indifferent when in the absence of a formal complaint the recipient offers and implements supportive measures designed to effectively restore or preserve the complainant’s access to the recipient’s education program or activity, and the recipient also informs the complainant in writing of the right to file a formal complaint. This safe harbor is now unworkable and unnecessary in light of other revisions made to the proposed regulations, specifically a recipient’s obligations in § 106.44(a) and § 106.45(b)(10)(ii). Under § 106.44(a), a recipient’s response must treat complainants and respondents equitably by offering the complainant supportive measures as defined in § 106.30, and a Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. The Department revised § 106.45(b)(1) to add a mandate that with or without a formal complaint, a recipient must comply with § 106.44(a), emphasizing that recipients must offer supportive measures to a complainant regardless of whether a complainant chooses to file a formal complaint, and recipients must investigate any formal complaint that a complaint does choose to file. Additionally, under § 106.45(b)(10)(ii), if a recipient does not provide a complainant with supportive measures, then the recipient must document why such a response was not clearly unreasonable in light of the known circumstances. As recipients are now required to offer supportive measures to a complainant (not only incentivized to do so by the proposed safe harbor) and VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 to document why not providing a complainant with supportive measures was not clearly unreasonable in light of the known circumstances, the final regulations removes safe harbors and instead, the Department will enforce the mandates and requirements in the final regulations, including those specified in §§ 106.44(a) and 106.44(b). Despite the absence of these safe harbor provisions, recipients still have discretion with respect to how to respond to sexual harassment allegations in a way that takes into account factual circumstances. The final regulations, like the proposed regulations, require a recipient to begin the § 106.45 grievance process in response to a formal complaint. A recipient retains significant discretion under these final regulations, yet must meet specific, mandatory obligations that ensure a recipient responds supportively and fairly to every allegation of Title IX sexual harassment. For example, a recipient may decide which supportive measures to offer a complainant, whether to offer an informal resolution process under § 106.45(b)(9), whether to allow all parties, witnesses, and other participants to appear at the live hearing virtually under § 106.45(b)(6)(i), and whether to take action under another provision of the recipient’s code of conduct even if the recipient must dismiss allegations in a formal complaint under § 106.45(b)(3)(i), among other areas of discretion. These final regulations also provide sufficient clarity as to how a recipient must respond to sexual harassment, rendering the proposed safe harbors unnecessary. For example, § 106.44(a) specifically addresses how a recipient’s response must treat complainants and respondents equitably by offering supportive measures as defined in § 106.30 to a complainant, and by following a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures against a respondent. Section § 106.44(b)(1) also clearly mandates that in response to a formal complaint a recipient must follow a grievance process that complies with § 106.45, and with or without a formal complaint, a recipient must comply with § 106.44(a). The Department clearly addresses specific circumstances throughout these final regulations. For example, the Department addresses when a recipient must or may dismiss a formal complaint under § 106.45(b)(3) for purposes of sexual harassment under Title IX or this part, when a recipient may consolidate formal complaints as to allegations of PO 00000 Frm 00188 Fmt 4701 Sfmt 4700 sexual harassment under § 106.45(b)(4), and when an informal resolution process may be offered under § 106.45(b)(9), among other matters. The elimination of the safe harbor provisions proposed in the NPRM alleviates and addresses the concerns of commenters who opposed these safe harbor provisions. Changes: The Department does not include the two safe harbor provisions from the NPRM, in proposed § 106.44(b)(1) and proposed § 106.44(b)(3). Section 106.44(b)(1) Mandate To Investigate Formal Complaints and Safe Harbor Comments: Several commenters supported § 106.44(b)(1), asserting that this provision places control in the hands of the victims, and prevents victims from having to participate in a grievance process against their will. Other commenters opposed this provision, arguing that it relieves institutions of the obligation to address sexual harassment claims of which they have actual knowledge by discouraging institutions from investigating allegations in the absence of a formal complaint. Many commenters expressed concern that institutions will merely ‘‘check’’ the procedural ‘‘boxes’’ outlined in § 106.45 without regard for the substantive outcomes of formal grievance processes. Many commenters asserted that this proposed safe harbor would only benefits respondents, and would provide no benefit to complainants. Other commenters asserted that if a recipient fails to follow procedural requirements in § 106.45, the safe harbor in § 106.44(b)(1) would only hold recipients to the standard of deliberate indifference, which commenters argued was too low a standard to ensure that recipients comply with the § 106.45 grievance process. Many commenters argued that the safe harbor in § 106.44(b)(1) provided too little flexibility for institutions to develop their own grievance process. Some commenters expressed concern that a recipient would not have the flexibility to forgo a grievance process in a situation where the recipient determined that the allegations contained in a formal complaint were without merit, frivolous, or that the allegations had already been investigated. Some commenters asked the Department to clarify whether satisfying § 106.45 is the only way, or one of many ways, to comply with the proposed rules and receive the safe harbor protections of § 106.44(b)(1). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Another commenter suggested that the Department add a timeliness requirement to § 106.44(b)(1) so that a formal complaint must be filed within a certain time frame, in order to avoid prejudice or bias against a respondent. Discussion: As explained in the ‘‘Section 106.44(b) Proposed ‘Safe harbors,’ generally,’’ subsection of the ‘‘Recipient’s Response in Specific Circumstances’’ section of this preamble, these final regulations do not include the safe harbor provision that if the recipient follows a grievance process (including implementing any appropriate remedy as required) that complies with § 106.45 in response to a formal complaint, the recipient’s response to the formal complaint is not deliberately indifferent and does not otherwise constitute discrimination under Title IX. The Department understands commenters’ concerns that this safe harbor provision may have been confusing or misleading by somehow suggesting that full compliance with § 106.45 is not required—that is, by suggesting that a recipient must only follow § 106.45 in a way that is not deliberately indifferent. The Department is not including this proposed safe harbor provision in the final regulations to make it clear that recipients are always required to fully comply with § 106.45 in response to a formal complaint. Indeed, the Department retains the mandate in § 106.45(b)(1) and revises this mandate for clarity to state: ‘‘In response to a formal complaint, a recipient must follow a grievance process that complies with § 106.45.’’ The Department also recognizes, as many commenters stated, that a complainant may not wish to initiate or participate in a grievance process for a variety of reasons, including fear of re-traumatization, and the Department affirms the autonomy of complainants by making it clear that a recipient must investigate and adjudicate when a complainant has filed a formal complaint. At the same time, the final regulations ensure that complainants must be offered supportive measures with or without filing a formal complaint, thus respecting the autonomy of complainants who do not wish to initiate or participate in a grievance process by ensuring that such complainants receive a supportive response from the recipient regardless of also choosing to file a formal complaint. For this reason, the Department revised § 106.44(b)(1) to expressly state: ‘‘With or without a formal complaint, a recipient must comply with § 106.44(a).’’ Section 106.44(a) requires VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 a recipient to offer a complainant supportive measures as part of its prompt, non-deliberately indifferent response, whether or not the complainant chooses to file a formal complaint. The Department disagrees that these final regulations discourage recipients from investigating allegations. As explained previously, a recipient must investigate a complainant’s allegations when the complainant chooses to file a formal complaint, and a recipient may choose to initiate a grievance process to investigate the complainant’s allegations even when the complainant chooses not to file a formal complaint, if the Title IX Coordinator signs a formal complaint, after having considered the complainant’s wishes and evaluated whether an investigation is not clearly unreasonable in light of the specific circumstances. A recipient, however, cannot impose any disciplinary sanctions or other actions that are not supportive measures against a respondent until after the recipient follows a grievance process that complies with § 106.45. The recipient’s Title IX Coordinator may always sign a formal complaint, as defined in § 106.30, to initiate an investigation. The formal complaint triggers the grievance process in § 106.45, which provides notice to both parties of the investigation and provides them an equal opportunity to participate and respond to the allegations of sexual harassment. These final regulations protect both complainants and respondents from the repercussions of an investigation that they do not know about and cannot participate in, and the complainant as well as the respondent may choose whether to participate in the grievance process.937 By eliminating § 106.44(b)(1), the Department makes it clear that recipients will not be able to merely ‘‘check boxes’’ or escape liability just for having a process that appears ‘‘on paper’’ to comply with § 106.45. We appreciate the opportunity to clarify that the Department will evaluate a recipient’s compliance with § 106.45 without regard to whether the recipient was ‘‘deliberately indifferent’’ in failing to comply with those provisions. In other words, the Department may find that the recipient violated any of the requirements in § 106.45, whether or not the recipient believes that failure to 937 Section 106.71 (added in the final regulations, prohibiting retaliation against any individual for exercising rights under Title IX, including an individual’s right to participate, or to choose not to participate, in a Title IX grievance process). See the ‘‘Retaliation’’ section of this preamble for further discussion. PO 00000 Frm 00189 Fmt 4701 Sfmt 4700 30213 comply was ‘‘not clearly unreasonable.’’ As explained throughout this preamble, including in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, the Department has selected all the provisions of the § 106.45 grievance process as those provisions needed to improve the fairness, reliability, predictability, and legitimacy of Title IX grievance processes, and expects recipients to comply with the entirety of § 106.45. For example, the Department may find that a recipient violated § 106.45(b)(2) if the recipient did not provide the requisite written notice of allegations to both parties, even if the recipient believes that the recipient had a good reason for refusing to send that initial written notice. Similarly, a recipient may violate § 106.45(b)(5)(ii) if the recipient does not provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence as part of the investigation, even if the recipient believes that refusing to do so was not clearly unreasonable. The Department disagrees that the grievance process prescribed by § 106.45 favors respondents or provides no benefits to complainants. For reasons explained throughout this preamble, including in the ‘‘Role of Due Process in the Grievance Process’’ section and the ‘‘General Support and Opposition to the § 106.45 Grievance Process’’ section of this preamble, the Department believes that the § 106.45 grievance process gives complainants and respondents clear, strong procedural rights and protections that foster a fair process leading to reliable outcomes. For example, a complainant whose allegations of sexual harassment in a formal complaint are dismissed may appeal such a dismissal on specific grounds under § 106.45(b)(8)(i). The grievance process in § 106.45 provides consistency, predictability, and transparency as to a recipient’s obligations and what students can expect when a formal complaint is filed. As many commenters appreciated, under the final regulations, if the complainant decides to file a formal complaint, this will trigger a grievance process that includes the procedural safeguards set forth in § 106.45. The Department understands commenters’ arguments that § 106.44(b)(1) does not afford recipients flexibility to select a grievance process that the recipient prefers over the process prescribed in § 106.45. For reasons described in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, and in the ‘‘General Support and Opposition to the E:\FR\FM\19MYR2.SGM 19MYR2 30214 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations § 106.45 Grievance Process’’ section of this preamble, the Department believes that the grievance process prescribed by § 106.45 creates a standardized framework for resolving formal complaints of sexual harassment under Title IX while leaving recipients discretion to adopt rules and practices not required under § 106.45.938 We reiterate that the § 106.45 grievance process applies only to formal complaints alleging sexual harassment as defined in § 106.30, that occurred in the recipient’s education program or activity against a person in the United States. These final regulations do not dictate what kind of process a recipient should or must use to resolve allegations of other types of misconduct. Because a recipient’s response to Title IX sexual harassment is part of a recipient’s obligation to protect every student’s Federal civil right to participate in education programs and activities free from sex discrimination a recipient’s response is not simply a matter of the recipient’s own codes of conduct or policies; a recipient’s response is a matter of fulfilling obligations under a Federal civil rights law. The Department has carefully crafted a standardized grievance process for resolving allegations of Title IX sexual harassment so that every student (and employee) receives the benefit of transparent, predictable, consistent resolution of formal complaints that allege sex discrimination in the form of sexual harassment under Title IX. The Department acknowledges commenters’ concerns that recipients do not have the discretion to forgo a formal grievance process in a situation where the recipient determined the allegations were without merit, frivolous, or had already been investigated, but we decline to grant that kind of discretion because the Department believes that, where a complainant chooses to file a formal complaint and initiate a 938 The revised introductory sentence in § 106.45(b) provides that any provisions, rules, or practices other than those required by § 106.45 that a recipient adopts as part of its grievance process for handling formal complaints of sexual harassment as defined in § 106.30, must apply equally to both parties. The final regulations grant flexibility to recipients in other respects. The discussion in the ‘‘Other Language/Terminology Comments’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble notes that recipients may decide whether to calculate time frames using calendar days, school days, or other method. See also § 106.45(b)(6)(i) (allowing, but not requiring, live hearings to be held virtually through use of technology); § 106.45(b)(5)(vi) (removing the requirement that evidence in the investigation be provided to the parties using a file-sharing platform); § 106.45(b)(7)(i) (giving recipients a choice between using the preponderance of the evidence standard or the clear and convincing evidence standard). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 recipient’s formal grievance process, that formal complaint should be taken seriously and not prejudged or subjected to cursory or conclusory evaluation by a recipient’s administrators. The purpose of the § 106.45 grievance process is to resolve allegations of sexual harassment impartially, without conflicts of interest or bias, and to objectively examine relevant evidence before reaching a determination regarding responsibility. Permitting a recipient to deem allegations meritless or frivolous without following the § 106.45 grievance process would defeat the Department’s purpose in providing both parties with a consistent, transparent, fair process, would not increase the reliability of outcomes, and would increase the risk that victims of sexual harassment will not be provided remedies. The Department notes that the final regulations give recipients discretion to offer informal resolution processes to resolve formal complaints (§ 106.45(b)(9)) and permit discretionary dismissal of a formal complaint (or allegations therein) by a recipient under limited circumstances (§ 106.45(b)(3)(ii)).939 We have also considered commenters’ suggestion that the Department add a requirement limiting the amount of time a complainant has for filing a formal complaint, but the Department declines to revise the final regulations to include a statute of limitations or similar time limit.940 However, we have revised § 106.30 defining ‘‘formal complaint’’ to specify that at the time of filing a formal complaint, the complainant must be participating in or attempting to participate in the recipient’s education program or activity. In addition, § 106.45(b)(3)(ii) allows a discretionary dismissal of a formal complaint where the complainant wishes to withdraw the formal complaint (if the complainant notifies the Title IX Coordinator, in writing, of this wish), where the respondent is no longer enrolled or employed by the recipient, or where specific circumstances prevent the recipient from meeting the recipient’s burden of collecting evidence sufficient 939 See the ‘‘Dismissal and Consolidation of Formal Complaints’’ section of this preamble. We note that one of the bases for discretionary dismissal of a formal complaint (or allegations therein) is where specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination. When a formal complaint contains allegations that are precisely the same as allegations the recipient has already investigated and adjudicated, that circumstance could justify the recipient exercising discretion to dismiss those allegations, under § 106.45(b)(3)(ii). 940 For further discussion, see the ‘‘Formal Complaint’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble. PO 00000 Frm 00190 Fmt 4701 Sfmt 4700 to reach a determination regarding responsibility. The length of time elapsed between an incident of alleged sexual harassment, and the filing of a formal complaint, may, in specific circumstances, prevent a recipient from collecting enough evidence to reach a determination, justifying a discretionary dismissal under § 106.45(b)(3)(ii). Changes: The Department does not include the safe harbor provision regarding the § 106.45 grievance process that was proposed in § 106.44(b)(1) in the NPRM. Section 106.44(b)(1) in the final regulations retains the mandate to follow a grievance process that complies with § 106.45 in response to a formal complaint, and adds a mandate that the recipient must comply with § 106.44(a) with or without a formal complaint. Proposed § 106.44(b)(2) Reports by Multiple Complainants of Conduct by Same Respondent [Removed in Final Regulations] Comments: A number of commenters expressed opposition to proposed § 106.44(b)(2), which would have required Title IX Coordinators to file a formal complaint upon receiving reports from multiple complainants that a respondent engaged in conduct that could constitute sexual harassment. Commenters opposed this proposed provision due to concerns that the provision could place the safety of victims at risk by requiring a grievance process against a respondent over the wishes of the complainant and could place victims in harm’s way without the victim’s knowledge or input because nothing in the proposed provision required the Title IX Coordinator to first alert or warn the victim that the Title IX Coordinator would file a formal complaint. Commenters argued that this proposed provision implied that Title IX Coordinators could not file a formal complaint unless a respondent was a repeat offender. A number of commenters expressed concern that the proposed provision would pose a particular risk in cases dealing with dating violence, domestic violence, or stalking. Commenters argued that survivors often choose not to report intimate partner violence or stalking to authorities for a multitude of reasons, one of which is fear that the perpetrator will retaliate or escalate the violence. A number of commenters expressed concern that the mandatory filing requirement in proposed § 106.44(b)(2) would violate survivor autonomy. Commenters argued that the proposed provision would violate autonomy principles embedded elsewhere in the proposed rules. Commenters argued the E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Department’s contradictory statements regarding the importance of survivor autonomy were arbitrary and capricious. Commenters argued that requiring schools to trigger formal grievance procedures when the school has received multiple reports of harassment by the same perpetrator would violate survivor autonomy and discourage reporting. One commenter asserted that the proposed provision would retraumatize victims by forcing an investigation when no victim wants to testify against the perpetrator. One commenter asserted that this provision would exacerbate survivors’ feelings of powerlessness. Commenters asserted that students should be able to discuss a situation without the Title IX office initiating a formal process without the complainant’s permission. Commenters stated that sometimes a student may want advice, or want supportive measures, without desiring a formal process. A number of commenters expressed concern that requiring Title IX Coordinators to file formal complaints against the wishes of complainants will lead to violations of confidentiality of survivors who already do not want to come forward, and may not come forward at all if there is a risk that the school will violate their wishes by investigating. Commenters argued that victims who report but do not wish to pursue a formal complaint would be forced into potentially dangerous situations unknowingly, since nothing in the proposed rules imposed a duty on the institution to offer safety measures or accommodations. Other commenters asserted that litigation arising out of Title IX proceedings is common, and that requiring a recipient to pursue a grievance proceeding against a respondent invites the respondent to then name the complainant as a party to subsequent litigation even when the complainant did not want to initiate an investigation in the first place. A number of commenters expressed concern that deeming the Title IX Coordinator as a complainant (by requiring them to file a formal complaint) creates a significant conflict of interest by placing the Title IX Coordinator in an adversarial position against the respondent. Other commenters argued that asking the Title IX Coordinator to sign and file a formal complaint in cases where complainants are unwilling to participate would make it impossible for the Title IX Coordinator to maintain the appearance of neutrality, even if they are in fact unbiased in all other ways. Other commenters expressed concern that if the person who reported the incident is VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 reluctant to come forward, it would place the Title IX Coordinator, who should be an impartial resource, into a role of advocating for a specific person’s report. A number of commenters argued that the proposed provision would chill reporting of sexual harassment because victims would fear being drawn involuntarily into a formal process. Commenters suggested that, if institutions file formal complaints without the willing, informed participation of the victim, some requirements, including the crossexamination requirement, should be adjusted, to protect victims who did not consent to participate in a grievance process from negative consequences that commenters argued may possibly result from participating in a grievance process, especially a live hearing. Commenters argued that these consequences might include fear of retraumatization from being crossexamined, questions perceived as invasions of privacy, and lawsuits filed by respondents based on testimony given during a Title IX hearing. Commenters argued that this provision would depart from best practices for helping victims. Commenters asserted that in order to effectively address sex discrimination, educational institutions must be able to cultivate relationships of trust with community members with regard to reporting systems, and that this proposed provision would mean that recipients would violate the wishes of reporting parties, thereby betraying and violating their trust. Commenters asserted that the ability of a complainant to seek supportive measures without risking public exposure is foundational to creating conditions under which community members are more willing to avail themselves of institutional support, including formal grievance proceedings. Commenters expressed concern that, in the absence of supportive measures, many survivors cannot keep up with the demands of rigorous schoolwork while dealing with the impacts of trauma, and this proposed provision would leave complainants in a position of never knowing whether the complainant’s report of sexual harassment would result in a formal process, because the complainant would have no way of knowing whether another complainant’s report would trigger proposed § 106.44(b)(2). Commenters expressed concern that proposed § 106.44(b)(2) would conflict with or be in tension with the requirement in § 106.45(b)(6)(i) that schools disregard statements provided PO 00000 Frm 00191 Fmt 4701 Sfmt 4700 30215 by witnesses or parties who do not submit to cross-examination at a hearing, because if alleged victims are unwilling to participate in the process and be subject to cross-examination, then the adjudicator is not permitted to consider the complainant’s statements, rendering the filing of a formal complaint by a Title IX Coordinator potentially futile. Commenters argued that there was a conflict between proposed § 106.44(b)(2) and the proposed requirement in § 106.45(b)(3) that a recipient must dismiss a complaint if the alleged harassment did not occur within the recipient’s education program or activity; commenters questioned how the recipient should respond when multiple reports are made against the same respondent, but one or more of the reported incidents did not take place within the education program or activity of the school and suggested that to solve this conflict, recipients should make a good faith investigation into all reports of sexual harassment, regardless of the location of the incident, when one or more parties involved in the report are under the ‘‘purview’’ of the recipient. A number of commenters argued that proposed § 106.44(b)(2) would not meet its stated goal of protecting students because the provision would not be limited only to stopping serial predators. Commenters argued that the proposed provision would incentivize schools to bring weak cases against serial perpetrators that may allow the predators to escape responsibility. Commenters expressed concern if schools are forced to move forward without the participation of complainants in every case where there are multiple reports of sexual harassment against the same respondent, then this may lead to dismissals or inaccurate findings of nonresponsibility. Other commenters expressed concern that this proposed provision was designed to help recipients, not protect victims. Commenters argued the proposed provision was a designed-to-fail framework that would protect a recipient from a claim by another victim who is attacked by the same perpetrator, since all the recipient would be required to do is show that it made a pro forma attempt to comply with its obligations, to qualify for the safe harbor. Other commenters expressed concern that a recipient impermissibly motivated by sex stereotypes could exploit this proposed provision to engage in discriminatory practices that would otherwise constitute a violation of Title IX. E:\FR\FM\19MYR2.SGM 19MYR2 30216 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Commenters argued that this proposed provision could put a recipient in the untenable situation of being required to apply the formal grievance processes to a situation the recipient does not believe it can adequately investigate or that the recipient reasonably believes can be addressed through other appropriate means. A number of commenters expressed concern that this proposed provision would remove the Title IX Coordinator’s discretion; commenters asserted that instead, Title IX Coordinators should evaluate what the appropriate response is, whether it be a formal investigation or putting the respondent on notice of the behavior complained about. Commenters argued that, consistent with the 2001 Guidance, recipients should continue to have discretion in determining whether or how to address multiple reports involving a single respondent in cases where complainants wish to remain anonymous or for other reasons are unwilling to participate in formal proceedings. A number of commenters argued that proposed § 106.44(b)(2) would alter and harm the valuable function of the Title IX Coordinator. Other commenters expressed concern that this proposed provision would complicate the role of the Title IX Coordinator because if the Title IX Coordinator receives a report from a resident advisor or faculty member (rather than from the victim themselves), and then subsequently receives a report from a victim alleging a similar incident involving the same perpetrator, the Title IX Coordinator might be confused about whether or not the proposed provision requires the Title IX Coordinator to file a formal complaint. One commenter asserted that proposed § 106.44(b)(2) would put schools at risk for liability for monetary damages in private Title IX lawsuits, as well as other State tort actions. Commenters asserted that sometimes a third party reports an alleged sexual harassment situation, but the alleged victim insists that there was no violation and in cases like that, the recipient should be required to make a report that is not attached to either party’s transcript, but that can be referenced if the alleged victim later wishes to file a formal complaint. Discussion: Despite the intended benefits of proposed § 106.44(b)(2) described in the NPRM, the Department is persuaded by the many commenters who expressed a variety of concerns about requiring the Title IX Coordinator to file a formal complaint after receiving multiple reports about the same VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 respondent. In addition to raising serious concerns about the potential effects on complainants, commenters also described practical problems with proposed § 106.44(b)(2) in relation to the rest of the final regulations. As a result, the Department is removing proposed § 106.44(b)(2) entirely.941 The Department is persuaded by commenters who argued that this proposed provision would have removed the Title IX Coordinator’s discretion without necessary or sufficient reason to do so. The Department agrees that the Title IX Coordinator should have the flexibility to evaluate and determine an appropriate response under pertinent facts and circumstances. The Department agrees with commenters who argued that institutions should continue to have discretion in determining whether or how to address multiple reports involving a single respondent in cases where complainants wish to remain anonymous or otherwise are unwilling to participate in a formal process. Removing this proposed provision means that Title IX Coordinators retain discretion, but are not required, to sign formal complaints after receiving multiple reports of potential sexual harassment against the same respondent. We believe that this approach properly balances complainant autonomy, campus safety, and recipients’ use of resources that would otherwise be required to be used to institute a potentially futile grievance process. The Department was persuaded by commenters’ concerns that under the proposed rules, filing a formal complaint might have resulted in a Title IX Coordinator becoming a ‘‘complainant’’ during the grievance process, or creating a conflict of interest or lack of neutrality. We have revised the definitions of ‘‘complainant’’ and ‘‘formal complaint’’ in § 106.30 to clarify that when a Title IX Coordinator chooses to sign a formal complaint, that action is not taken ‘‘on behalf of’’ the complainant; the ‘‘complainant’’ is the person who is alleged to be the victim of conduct that could constitute sexual harassment. Those revisions further clarify that when a Title IX Coordinator signs a formal complaint, the Title IX Coordinator does not become a complainant or otherwise a party to the grievance process, and must abide by § 106.45(b)(1)(iii), which requires Title 941 The section number, 106.44(b)(2), now refers to the provision discussed in the ‘‘Section 106.44(b)(2) OCR Will Not Re-weigh the Evidence’’ subsection of the ‘‘Recipient’s Response in Specific Circumstances’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble. PO 00000 Frm 00192 Fmt 4701 Sfmt 4700 IX personnel to be free from conflicts of interest and bias, and serve impartially. We do not believe that signing a formal complaint that initiates a grievance process inherently creates a conflict of interest between the Title IX Coordinator and the respondent; in such a situation, the Title IX Coordinator is not advocating for or against the complainant or respondent, and is not subscribing to the truth of the allegations, but is rather instituting a grievance process (on behalf of the recipient, not on behalf of the complainant) based on reported sexual harassment so that the recipient may factually determine, through a fair and impartial grievance process, whether or not sexual harassment occurred in the recipient’s education program or activity. The Department is persuaded by commenters’ concerns that the proposed provision would have created tension with § 106.45(b)(6)(i), which mandates that if a party or witness does not submit to cross-examination at the hearing, the decision-maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility. The Department is persuaded by commenters’ arguments that the proposed provision would have incentivized or forced recipients to file futile complaints against respondents with no complaining witness willing to testify at a live hearing. Whether or not proposed § 106.44(b)(2) would have conflicted with § 106.45(b)(3), the proposed provision § 106.44(b)(2) has been removed from the final regulations, and we have revised § 106.45(b)(3) to clarify that a recipient may choose to address allegations of sexual harassment that occurred outside the recipient’s education program or activity, through non-Title IX codes of conduct. Where a complainant does not wish to participate in a grievance process, including being cross-examined at a live hearing, the recipient is not permitted to threaten, coerce, intimidate, or discriminate against the complainant in an attempt to secure the complainant’s participation.942 Thus, even if a Title IX Coordinator has signed a formal complaint, the complainant is not obligated to participate in the ensuing grievance process and need not appear at a live hearing or be cross-examined. We have added § 106.71 prohibiting retaliation and expressly protecting any person’s right not to participate in a Title IX proceeding. The Department is also persuaded that a chilling effect on victim reporting 942 Section E:\FR\FM\19MYR2.SGM 106.71(a). 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations can be avoided by eliminating this proposed provision. The Department is persuaded by commenters’ concerns that complainants who are unwilling to file a formal complaint should be able to confidentially seek supportive measures without fear of being drawn into a formal complaint process whenever the Title IX Coordinator receives a second report from another complainant about the same respondent. The Department is persuaded by commenters’ arguments that students should be able to discuss a situation with a Title IX Coordinator without the Title IX Coordinator being required to initiate a grievance process against the complainant’s wishes, and by commenters’ assertions that it is not uncommon for respondents filing private lawsuits against the recipient to include the complainant as a party to such lawsuits, so dragging a complainant into a grievance process against the complainant’s wishes exposes the complainant to potential involvement in private litigation as well. The Department appreciates commenters’ suggestions for specific changes and clarifications to proposed § 106.44(b)(2); however, there is no need to consider such changes or clarifications because we are removing this proposed provision from the final regulations. Changes: The Department has not included proposed § 106.44(b)(2) in the final regulations. Comments: Some commenters expressed support for proposed § 106.44(b)(2), asserting that it would be valuable for the protection of sexual assault victims on university campuses. Other commenters argued that it is common sense for the Title IX Coordinator to be able to file complaints against bad actors. Some commenters argued that the provision would improve the responsiveness of university Title IX Coordinators to sexual assault or harassment allegations at institutions around the country. Other commenters supported this proposed provision so that Title IX Coordinators would file a complaint against repeat sexual offenders even when no victim was willing to file a formal complaint because this would protect a complainant’s confidentiality. Discussion: For the reasons discussed above, the Department is persuaded that eliminating proposed § 106.44(b)(2) better serves the Department’s goals of ensuring that recipients respond adequately to reports of sexual harassment without infringing on complainant autonomy. Elimination of this proposed provision leaves Title IX VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Coordinators discretion to sign a formal complaint initiating a grievance process, when doing so is not clearly unreasonable in light of the known circumstances, without mandating such a response every time multiple reports against a respondent are received. We note that contrary to some commenters’ belief, the proposed provision would not have protected complainants’ confidentiality by requiring Title IX Coordinators to file formal complaints, because the recipient would still have been required under § 106.45(b)(2) to send written notice of the allegations to both parties, and the written notice must include the complainant’s identity, if known. Changes: The Department has not included proposed § 106.44(b)(2) in the final regulations. Comments: Some commenters suggested expanding or modifying proposed § 106.44(b)(2), for example by specifying factors to consider as to whether a pattern of behavior might present a potential threat to the recipient’s community. Some commenters suggested specifying that a formal complaint must be filed where threats, serial predation, violence, or weapons were allegedly involved. Commenters recommended adding a credibility threshold to proposed § 106.44(b)(2) specifying that a Title IX Coordinator would only be required to file a formal complaint upon receiving multiple credible reports against the same respondent, so that the Title IX Coordinator would not need to file a formal complaint where reports appeared frivolous or unfounded. Commenters suggested that the Department adopt the model used by Harvard Law School for its Title IX compliance, which as described by commenters provides that (1) that there be a complainant willing to participate before the recipient will initiate a formal investigation and (2) the only time an action should be pursued without a willing complainant is if there is a serious risk to campus-wide safety and security. Several commenters suggested that, in instances where there are reports by multiple complainants but none are willing to participate in the proceedings, the Department could ensure accountability by requiring the recipient to document its reason for not initiating a formal complaint rather than requiring the recipient to file a formal complaint in every such situation. Discussion: The Department appreciates commenters’ suggestions for specific changes to proposed § 106.44(b)(2); however, we decline to make such changes because we are removing this proposed provision from PO 00000 Frm 00193 Fmt 4701 Sfmt 4700 30217 the final regulations for the reasons described above. The Department declines to adopt in these final regulations the suggestion that patterns of behavior be considered as a factor to determine whether possible future threats to the community warrant filing a formal complaint even where a complainant does not wish to file; however, as discussed above, elimination of proposed § 106.44(b)(2) leaves the Title IX Coordinator discretion to sign a formal complaint where doing so is not clearly unreasonable in light of the known circumstances. The Title IX Coordinator may consider a variety of factors, including a pattern of alleged misconduct by a particular respondent, in deciding whether to sign a formal complaint. By giving the recipient’s Title IX Coordinator the discretion to sign a formal complaint in light of the specific facts and circumstances, the Department believes it has reached the appropriate balance between campus safety, survivor autonomy, and respect for the most efficient use of recipients’ resources. We also note that under the final regulations, including revised § 106.44(a), a Title IX Coordinator’s decision to sign a formal complaint may occur only after the Title IX Coordinator has promptly contacted the complainant (i.e., the person alleged to have been victimized by sexual harassment) to discuss availability of supportive measures, consider the complainant’s wishes with respect to supportive measures, and explain to the complainant the process for filing a formal complaint. Thus, the Title IX Coordinator’s decision to sign a formal complaint includes taking into account the complainant’s wishes regarding how the recipient should respond to the complainant’s allegations. The Department disagrees with the suggestion to expand the proposed provision to cover other circumstances such as alleged use of threats, violence, or weapons, because we are persuaded by commenters that leaving the Title IX Coordinator discretion to sign a formal complaint is preferable to mandating circumstances under which a Title IX Coordinator must sign a formal complaint. The final regulations give the Title IX Coordinator discretion to sign a formal complaint, and the Title IX Coordinator may take circumstances into account such as whether a complainant’s allegations involved violence, use of weapons, or similar factors. The Department eliminated proposed § 106.44(b)(2) in part due to concerns expressed by commenters about survivor autonomy and safety; in E:\FR\FM\19MYR2.SGM 19MYR2 30218 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations some situations, the Title IX Coordinator may believe that signing a formal complaint is not in the best interest of the complainant and is not otherwise necessary for the recipient to respond in a non-deliberately indifferent manner. With the elimination of this provision, however, the Title IX Coordinator still possesses the discretion to sign formal complaints in situations involving threats, serial predation, violence, or weapons. Even in the absence of a formal complaint being filed, a recipient has authority under § 106.44(c) to order emergency removal of a respondent where the situation arising from sexual harassment allegations presents a risk to the physical health or safety of any person. Nothing in the final regulations prevents recipients, Title IX Coordinators, or complainants from contacting law enforcement to address imminent safety concerns. Because the final regulations do not include this proposed provision, the Department does not further consider the commenter’s suggestion to revise the eliminated provision by adding the word ‘‘credible’’ before ‘‘reports.’’ As discussed previously, the Department has removed this provision to respect complainant autonomy and avoid chilling reporting by mandating that a Title IX Coordinator sign a formal complaint over a complainant’s wishes; the commenter’s suggestion for modifying this proposed § 106.44(b)(2) would not change the Department’s belief that the proposed provision should be removed in its entirety, because narrowing the circumstances under which the Title IX Coordinator would be required to sign a formal complaint over the complainant’s wishes would not address the concerns raised by many commenters that persuaded the Department of the need to respect survivor autonomy by giving a Title IX Coordinator discretion (without making it mandatory) to sign a formal complaint. The Department further notes that one of the purposes of the § 106.45 grievance process is to ensure that determinations are reached only after objective evaluation of relevant evidence by impartial decisionmakers, and therefore permitting or requiring a Title IX Coordinator to only respond to reports or formal complaints that the Title IX Coordinator deems ‘‘credible’’ would defeat the goal of following a grievance process to reach reliable outcomes. Similarly, the commenter’s suggestion to require the recipient to document its reason for not initiating a formal complaint following reports by multiple complainants does VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 not alter the Department’s conclusion that the better way to respect survivor autonomy and the discretion of a Title IX Coordinator is to remove proposed § 106.44(b)(2) from the final regulations, so that a Title IX Coordinator retains the discretion to sign a formal complaint, but is not mandated to do so. We note that § 106.45(b)(10) does require a recipient to document the reasons for its conclusion that its response to any reported sexual harassment was not deliberately indifferent. The Department declines to adopt the Harvard Law School model because we believe the final regulations provide the same or similar benefits with respect to requiring a grievance process only where a formal complaint has been filed by a complainant or signed by a Title IX Coordinator. For reasons discussed in the ‘‘Formal Complaint’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, third parties are not allowed to file formal complaints. Changes: None. Proposed § 106.44(b)(3) Supportive Measures Safe Harbor in Absence of a Formal Complaint [Removed in Final Regulations] Comments: Many commenters appreciated that the proposed safe harbor regarding supportive measures would provide an incentive for institutions to offer supportive measures for both parties. Several commenters recounted personal stories of accused individuals being removed from classes and dorms before a determination had been made about pending allegations. Many commenters supported § 106.44(b)(2) for not requiring an individual to file a formal complaint in order to obtain supportive measures and for expressly including the requirement that, when offering supportive measures, recipients must notify a complainant of the right to file a formal complaint at a later date if they wish. Many commenters asserted that often, supportive measures are sufficient for both parties to deal with a situation without causing additional trauma to either party. Some commenters expressed concern that the proposed safe harbor regarding supportive measures would effectively relieve institutions of the responsibility to hold respondents accountable and address sexual harassment on campuses. Many commenters argued that offering ‘‘meager’’ supportive measures to a student in lieu of investigating allegations would not satisfy a recipient’s obligations under Title IX and asked the Department to clarify that the provision of supportive measures is not always adequate to PO 00000 Frm 00194 Fmt 4701 Sfmt 4700 satisfy the deliberate indifference standard. Many commenters argued that the proposed safe harbor regarding supportive measures actually created a barrier to providing supportive measures for elementary and secondary school victims because the provision applied only to institutions of higher education, and asked the Department to modify the proposed rules to extend this supportive measures safe harbor to the elementary and secondary school context either by creating a separate safe harbor with nearly identical language or by deleting the phrase ‘‘for institutions of higher education’’ in the proposed regulatory text. One commenter asserted that § 106.44(b)(3) is redundant because it merely repeats the standard of § 106.44(a). One commenter argued that, when combined with the Department’s proposed definition of sexual harassment, this proposed provision would create a safe harbor for educational institutions to avoid liability. Other commenters suggested that the Department modify the proposed safe harbor regarding supportive measures to expressly prohibit institutions from coercing a complainant into accepting supportive measures in lieu of filing a formal complaint. At least one commenter suggested adding an outer time limit to a party’s right to file a formal complaint ‘‘at a later time,’’ asserting that this proposed provision was inconsistent with the recordkeeping requirement in the proposed regulations, which would have allowed a record to be destroyed in three years (this retention period has been revised to seven years in § 106.45(b)(10) of the final regulations). Discussion: As explained in the ‘‘Section 106.44(b) Proposed ‘Safe harbors,’ generally,’’ subsection of the ‘‘Recipient’s Response in Specific Circumstances’’ section of this preamble, these final regulations do not include the safe harbor provision that a recipient is not deliberately indifferent when in the absence of a formal complaint the recipient offers and implements supportive measures designed to effectively restore or preserve the complainant’s access to the recipient’s education program or activity, and the recipient also informs the complainant in writing of the right to file a formal complaint. This safe harbor is now unworkable and unnecessary in light of other revisions made to the proposed regulations, specifically a recipient’s obligations in § 106.44(a) and § 106.45(b)(10)(ii). Under § 106.44(a), a recipient’s response must treat complainants and E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations respondents equitably by offering supportive measures as defined in § 106.30, and a Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. As previously explained, § 106.45(b)(1) now contains an additional mandate that with or without a formal complaint, a recipient must comply with § 106.44(a), which places recipients on notice that it must offer supportive measures to a complainant. Additionally, under § 106.45(b)(10)(ii), if a recipient does not provide a complainant with supportive measures, then the recipient must document why such a response was not clearly unreasonable in light of the known circumstances. As recipients are now required to offer supportive measures to a complainant and to document why not providing a complainant with supportive measures was not clearly unreasonable in light of the known circumstances, the final regulations no longer provides a safe harbor. Recipients cannot receive a safe harbor for offering supportive measures because recipients are now required to offer supportive measures under these final regulations. Accordingly, the Department does not include the proposed safe harbor regarding supportive measures in these final regulations. With respect to concerns that respondents may suffer disciplinary sanctions or punitive action stemming from pending allegations, the Department notes that § 106.44(a) expressly provides that a recipient’s response must treat complainants and respondents equitably by offering supportive measures as defined in § 106.30 to a complainant, and by following a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent. Additionally, supportive measures in § 106.30 are expressly defined as non-disciplinary, nonpunitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent. Supportive measures must not have a punitive or disciplinary consequence for either complainants or respondents. Even without the proposed safe harbor provision regarding supportive VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 measures, the Department believes that these final regulations appropriately draw recipients’ attention to the importance of offering supportive measures to all students, including students who do not wish to initiate a recipient’s formal grievance process, and thus give complainants greater autonomy to decide if supportive measures, alone, represent the kind of school-level response that will best help the complainant heal after any trauma. The Department in part requires a recipient to offer supportive measures to all complainants under § 106.44(a) because the Department recognizes that, in many cases, a complainant’s equal access to education can be effectively restored or preserved through the school’s provision of supportive measures. Accordingly, the Department provides an additional mandate in § 106.44(b)(1), that with or without a formal complaint, a recipient must comply with § 106.44(a) (e.g., by offering the complainant supportive measures). We are persuaded by commenters’ assertions that providing supportive measures to a complainant does not always satisfy a recipient’s obligation to respond in a non-deliberately indifferent manner to known sexual harassment. In some circumstances and depending on the unique facts, a nondeliberately indifferent response may require the recipient’s Title IX Coordinator to sign a formal complaint as defined in § 106.30 so that the recipient initiates the grievance process in § 106.45. The Department acknowledges that a recipient should respect the complainant’s autonomy and wishes with respect to a formal complaint and grievance process to the extent possible. As the proposed safe harbor regarding supportive measures is no longer included in these final regulations, we do not revisit whether excluding elementary and secondary school recipients from this safe harbor was preferable to modifying the proposed safe harbor to also apply to elementary and secondary schools. Revised § 106.44(a) requires every recipient (including elementary and secondary schools) to offer supportive measures to complainants. The Department understands the concern that a recipient may coerce potential complainants into accepting supportive measures in lieu of a formal grievance process. Partly in response to these concerns, the Department revised § 106.44(a) to require that a Title IX Coordinator promptly contact a complainant not only to discuss supportive measures but also to explain PO 00000 Frm 00195 Fmt 4701 Sfmt 4700 30219 to the complainant the process for filing a formal complaint. Accordingly, a complainant will know how to file a formal complaint, if the complainant wishes to do so. We have also added § 106.71 to expressly forbid a recipient from threatening, intimidating, coercing, or discriminating against any complainant for the purpose of chilling the complainant’s exercise of any rights under Title IX, which includes the right to file a formal complaint, and to receive supportive measures even if the complainant chooses not to file a formal complaint. The Department agrees that the safe harbor, as proposed, is redundant, especially in light of the revisions to § 106.44(a), requiring a recipient to offer supportive measures to a complainant. As this safe harbor is not included in these final regulations, this safe harbor does not provide a way for a recipient to avoid responsibility. For reasons discussed above, the Department declines to revise the final regulations to include a statute of limitations or similar time limit on filing a formal complaint but as discussed in the ‘‘Formal Complaint’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, the Department has revised the final regulations to provide that at the time of filing a formal complaint, the complainant must be participating in or attempting to participate in the recipient’s education program or activity. This provides a reasonable condition on a complainant’s ability to require a recipient to investigate, based on the complainant’s connection to the recipient’s education program or activity rather than by imposing a statute of limitations or similar timebased deadline. A complainant may be ‘‘attempting to participate’’ in the recipient’s education program or activity in a broad variety of circumstances that do not depend on a complainant being, for instance, enrolled as a student or employed as an employee. A complainant may be ‘‘attempting to participate,’’ for example, where the complainant has withdrawn from the school due to alleged sexual harassment and expresses a desire to re-enroll if the recipient responds appropriately to the sexual harassment allegations, or if the complainant has graduated but would like to participate in alumni events at the school, or if the complainant is on a leave of absence to seek counseling to recover from trauma. In addition, the Department has also revised the final regulations to provide in § 106.45(b)(3)(ii) that a recipient has the discretion to dismiss a formal complaint E:\FR\FM\19MYR2.SGM 19MYR2 30220 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations against a respondent who is no longer enrolled or employed by the recipient. While these provisions are not an express limit on the amount of time a complainant has to file a formal complaint, the Department believes these provisions help address commenters’ concerns about being forced to expend resources investigating situations where one or both parties have no affiliation with the recipient, without arbitrarily or unreasonably imposing a deadline on complainants, in recognition that complainants sometimes do not report or desire to pursue a formal process in the immediate aftermath of a sexual harassment incident. Changes: The Department does not include the safe harbor provision proposed in the NPRM as § 106.44(b)(3). The Department adds a mandate to § 106.44(b)(1) that the recipient must comply with § 106.44(a), with or without a formal complaint. Section 106.44(b)(2) OCR Will Not ReWeigh the Evidence Comments: Some commenters appreciated that the proposed rules contained an express guarantee that an institution will not be deemed deliberately indifferent solely because the Assistant Secretary would have reached a different determination regarding responsibility based on an independent weighing of the evidence. Some commenters expressed concerns that § 106.44(b)(2) would result in a lack of accountability or oversight for how schools or colleges handle sexual harassment complaints. Other commenters contended that this provision would unjustifiably reduce the Department’s oversight unless a school’s actions are clearly unreasonable. Some commenters asserted that the provision would improperly defer to a school district’s determination, which commenters argued is not always the appropriate way to ensure Title IX accountability. A number of commenters felt that § 106.44(b)(2) would spur more civil lawsuits to hold schools accountable, because the Department would no longer be holding schools accountable. Several commenters argued that the proposed provision would negatively impact OCR’s ability to investigate noncompliance under Title IX, which would dangerously lower the bar of compliance and signal that a bare, minimal response to sexual harassment would suffice. Other commenters warned that the provision would limit OCR’s ability to evaluate a school’s response to sexual harassment, which would effectively narrow over 20 years VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 of Title IX enforcement standards. Several commenters expressed their belief that OCR plays a key role as an independent, impartial investigator. For example, one commenter argued that OCR, as an independent entity, is more qualified than a school to perform an impartial investigation because the school has its own financial interests at stake and is thus less likely to identify inaccuracies in its own procedures. Another commenter asserted that OCR’s independent weighing of evidence is a relevant factor because it may allow OCR to identify patterns or practices of shielding respondents or favoring complainants; the commenter argued that OCR should, after a thorough investigation, have discretion to decide if a school’s determination regarding responsibility was discriminatory. Some commenters expressed concern that proposed § 106.44(b)(2) was onesided in a way that favored only respondents, because the language in the proposed provision would give deference to the school’s determinations only where a respondent has been found not responsible. Commenters argued that as proposed, § 106.44(b)(2) would require OCR investigators to close investigations even if OCR found gross or malicious procedural violations affecting the determination reached by the school, as long as the school had determined the respondent to be not responsible. Another commenter expressed concern that a deferential procedural review by OCR may incentivize schools to find in favor of respondents so as to avoid OCR scrutiny; commenters argued that this would be perceived as biased against complainants, may chill reporting of sexual harassment at the school level, and would discourage complainants from filing OCR complaints alleging procedural defects that led to erroneous findings of non-responsibility. Another commenter asserted that proposed § 106.44(b)(2) was inconsistent with Equal Employment Opportunity Commission (EEOC) practices with respect to employee sexual harassment claims; the commenter stated that the EEOC never defers to an employer’s conclusion but conducts its own investigation and makes an independent assessment of the facts so that employers do not avoid liability merely by conducting exculpatory internal investigations. The commenter also asserted that applying § 106.44(b)(2) to employee sexual harassment claims would conflict with U.S. Department of Justice equal employment opportunity coordination regulations’ requirement that a referring agency must give due weight to an PO 00000 Frm 00196 Fmt 4701 Sfmt 4700 EEOC determination of reasonable cause to believe that Title VII has been violated,943 which OCR could not give if it instead gave conclusive weight to a recipient’s contrary factual determination. Conversely, some commenters expressed support for § 106.44(b)(2). Commenters asserted that this provision, combined with other provisions in the proposed rules, would assist colleges and universities in ensuring an impartial, transparent, and fair process for both complainants and respondents, while also providing institutions flexibility reflecting their unique attributes (e.g., size, student population, location, mission). Several commenters expressed support for OCR not ‘‘second guessing’’ a school’s response to incidents of sexual harassment. One commenter asserted that the provision was reasonable because OCR should not intrude into a school’s decision making based on OCR’s own weighing of the evidence. One commenter expressed confusion as to whether OCR would defer to schools’ determinations about sex discrimination not involving sexual harassment, or in instances when a person who filed a complaint with a recipient could have filed directly with OCR. Another commenter suggested clarifying that further scrutiny by OCR is not barred by this provision and may be called for if a responsibility determination seems to hold little basis. Discussion: We appreciate commenters’ concerns about, and support of, § 106.44(b)(2). The intent of this provision is to convey that the Department will not overturn the outcome of a Title IX grievance process solely based on whether the Department might have weighed the evidence in the case differently from how the recipient’s decision-maker weighed the evidence. This provision does not limit OCR’s ability to evaluate a school’s response to sexual harassment, and it does not narrow Title IX enforcement standards; OCR retains its full ability, and responsibility, to oversee recipients’ adherence to the requirements of Title IX, including requirements imposed under these final regulations. The Department agrees with commenters who stated that OCR has special qualifications that enable OCR to perform independent, impartial investigations into whether recipients have violated Title IX and Title IX regulations. The Department will continue to vigorously enforce 943 28 E:\FR\FM\19MYR2.SGM CFR 42.610(a). 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recipients’ Title IX obligations.944 The Department believes that the § 106.45 grievance process prescribes fair procedures likely to result in reliable outcomes; however, when a recipient does not comply with the requirements of § 106.45, nothing in § 106.44(b)(2) precludes the Department from holding the recipient accountable for violating these final regulations. Refraining from second guessing the determination reached by a recipient’s decision-maker solely because the evidence could have been weighed differently does not prevent OCR from identifying and correcting any violations the recipient may have committed during the Title IX grievance process. The deference given to the recipient’s determination regarding responsibility in § 106.44(b)(2) does not preclude OCR from overturning a determination regarding responsibility where setting aside the recipient’s determination is necessary to remedy a recipient’s violations of these final regulations. Rather, § 106.44(b)(2) promotes finality for parties and recipients by stating that OCR will not overturn determinations just because OCR would have weighed the evidence in the case differently. To clarify this point, we have revised § 106.44(b)(2) to use the phrase ‘‘solely because’’ instead of ‘‘merely because.’’ Nothing about § 106.44(b)(2) prevents OCR from taking into account the determination regarding responsibility as one of the factors OCR considers in deciding whether a recipient has complied with these final regulations, and whether any violations of these final regulations may require setting aside the determination regarding responsibility in order to remediate a recipient’s violations. If a recipient has not complied with any provision of the final regulations, nothing in § 106.44(b)(2) prevents OCR from holding the recipient accountable for non-compliance. The intent of the provision is to assure recipients that because the § 106.45 grievance process contains robust procedural and substantive requirements designed to produce reliable outcomes, OCR will not substitute its judgment for that of the recipient’s decision-maker with respect to weighing the relevant evidence at issue in a particular case. We believe that this limited deference also serves the interests of complainants and respondents in resolving sexual harassment allegations, by limiting the circumstances under which a ‘‘final’’ 944 See further discussion in the ‘‘Section 106.3(a) Remedial Action’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble, regarding remedies the Department may pursue in administrative enforcement actions against recipients. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 determination reached by the recipient may be subject to being setting aside and requiring the parties to go through a grievance process for a second time. As an example, if a decision-maker evaluates the relevant evidence in a case and judges one witness to be more credible than another witness, or finds one item of relevant evidence to be more persuasive than another item of relevant evidence, § 106.44(b)(2) provides that OCR will not set aside the determination regarding responsibility solely because OCR would have found the other witness more credible or the other item of evidence more persuasive. It does not mean that OCR would refrain from holding the recipient accountable for violations of the decision-maker’s obligations, for instance to avoid basing credibility determinations on a party’s status as a complainant, respondent, or witness.945 This provision does not meant that OCR would refrain from, for instance, independently determining that evidence deemed relevant by the decision-maker was in fact irrelevant and should not have been relied upon.946 Violations of these final regulations may indeed result in a recipient’s determination regarding responsibility being set aside by OCR, but determinations will not be overturned ‘‘solely’’ because OCR would have weighed the evidence differently. Some commenters understood this provision to work in a one-sided way, giving recipients’ determinations regarding responsibility deference only where a respondent has been found not responsible; one commenter reached this conclusion based on the provision’s reference to ‘‘deliberate indifference’’ which is a theory usually only raised by complainants challenging the sufficiency of a recipient’s response to sexual harassment. The Department appreciates these commenters’ concerns; we intend this provision to apply equally to all outcomes, regardless of whether the determination found a respondent responsible or not responsible. For this reason, the provision uses the phrase ‘‘determination regarding responsibility’’ (emphasis added) and not determination of responsibility.947 945 Section 106.45(b)(1)(ii). § 106.45(b)(6) (deeming questions and evidence about a complainant’s prior sexual history to be irrelevant, with limited exceptions); § 106.45(b)(1)(x) (barring use of privileged information in the grievance process). 947 We use the phrase ‘‘determination of responsibility’’ (emphasis added) to describe a finding that the respondent is responsible for perpetrating sexual harassment, and ‘‘determination regarding responsibility’’ to describe a determination irrespective of whether that determination has found the respondent 946 E.g., PO 00000 Frm 00197 Fmt 4701 Sfmt 4700 30221 However, to clarify that this provision applies to all determinations of the outcome of a Title IX grievance process regardless of whether the respondent was found responsible or not responsible, we have revised § 106.44(b)(2) by adding ‘‘or otherwise evidence of discrimination under title IX by the recipient’’ so that the reference in this provision to ‘‘deliberate indifference’’ is not misunderstood to exclude theories of sex discrimination commonly raised by respondents after being found responsible. This additional phrase in § 106.44(b)(2) clarifies that this provision operates neutrally to all determinations regarding responsibility. The Department will not overturn the recipient’s finding solely because the Department would have reached a different determination based on an independent weighing of the evidence, irrespective of whether the recipient found in favor of the complainant or the respondent. Whether the recipient found the respondent not responsible (and thus a complainant might allege deliberate indifference) or the recipient found the respondent responsible (and thus a respondent might allege sex discrimination under Title IX on a theory such as selective enforcement or erroneous outcome), this provision would equally apply to give deference to the recipient’s determination where the challenge to the determination is solely based on whether the Department might have weighed the evidence differently. In no manner does this limited deference by the Department restrict the Department’s ability to identify patterns or practices of sex discrimination, or to investigate allegations of a recipient committing gross or malicious violations of Title IX or these final regulations. This provision gives a recipient deference only as to the decision-maker’s weighing of evidence with respect to a determination regarding responsibility. Section 106.44(b)(2) simply clarifies OCR’s role and standard of review under these final regulations, by providing that OCR will not conduct de novo reviews of determinations absent allegations that the recipient failed in some way to comply with Title IX or these final regulations. The provision is intended to alleviate potential confusion recipients may feel about needing to successfully predict how the Department would make factual responsible, or not responsible. E.g., compare §§ 106.45(b)(1)(i) and 106.45(b)(1)(vi) with §§ 106.45(b)(1)(iv), 106.45(b)(2), 106.45(b)(5)(i), 106.45(b)(5)(vi)–(vii), 106.45(b)(6) through 106.45(b)(10). E:\FR\FM\19MYR2.SGM 19MYR2 30222 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations determinations ‘‘in the shoes’’ of the recipient’s decision-maker. Indeed, it would be impractical and unhelpful, for all parties, if the Department conducted de novo reviews of all recipient determinations. Doing so would contravene the Department’s goal of providing consistency, predictability, transparency, and reasonably prompt resolution, in Title IX grievance processes. The Department disagrees that § 106.44(b)(2) ‘‘dangerously’’ lowers the bar of compliance by signaling that recipients need only provide a ‘‘bare minimum response’’ to sexual harassment. The requirements of the final regulations do not constitute a low bar; rather, these final regulations expect—and the Department will hold recipients accountable for—responses to sexual harassment allegations that support complainants and treat both parties fairly by complying with specific, mandatory obligations. For instance, under the final regulations recipients are required to offer supportive measures to every complainant regardless of whether a grievance process is ever initiated.948 When a recipient does investigate a complainant’s sexual harassment allegations, the final regulations prescribe a grievance process that lays out clear, practical steps for processing a formal complaint of Title IX sexual harassment, including requirements that recipients: Treat complainants and respondents equitably by providing remedies for complainants when a respondent is found responsible, and a grievance process prior to imposing disciplinary sanctions or other actions that are not supportive measures, against a respondent; 949 objectively evaluate all relevant evidence and give both parties equal opportunity to present witnesses and evidence; 950 not harbor a bias or conflict of interest against either party; 951 and resolve the allegations under designated, reasonably prompt time frames.952 The Department will hold recipients accountable to follow these, and all the other, requirements set forth in § 106.45, whether failure to comply affected the complainant, the respondent, or both parties. The Department does not agree that § 106.44(b)(2) will lead to increased litigation. The final regulations require recipients to protect complainants’ equal educational access, while at the same time providing both parties due 948 Section 106.44(a). 106.45(b)(1)(i). 950 Section 106.45(b)(1)(ii); § 106.45(b)(5)(ii). 951 Section 106.45(b)(1)(iii). 952 Section 106.45(b)(1)(v). 949 Section VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 process protections throughout any grievance process, and § 106.44(b)(2) does not impair the Department’s ability to hold recipients accountable for meeting these obligations. The Department does not believe that courts are inclined through private lawsuits to second guess a recipient’s determinations regarding responsibility absent allegations that the recipient arrived at a determination due to discrimination, bias, procedural irregularity, deprivation of constitutionally guaranteed due process protections, or other defect that affected the outcome; in other words, the limited deference in § 106.44(b)(2) is no greater than the deference courts generally also give to recipients’ determinations.953 As discussed in the ‘‘Litigation Risk’’ subsection of the ‘‘Miscellaneous’’ section of this preamble, the Department believes that these final regulations may have the effect of reducing litigation arising out of recipients’ responses to sexual harassment. These final regulations do not apply to the EEOC and do not dictate how the EEOC will administer Title VII or its implementing regulations. If the Assistant Secretary refers a complaint filed with OCR to the EEOC under Title VII or 28 CFR 42.605, then the EEOC will make a determination under its own regulations and not the Department’s regulations. Even if the Department is required to give due weight to the EEOC’s determination regarding Title VII under 28 CFR 42.610(a), the Department does not have authority to administer or enforce Title 953 E.g., Wood v. Strickland, 420 U.S. 308, 326 (1975), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982) (absent ‘‘errors in the exercise of school officials’ discretion’’ that ‘‘rise to the level of violations of specific constitutional guarantees’’—as would reaching a determination in the complete ‘‘absence of evidence’’ which would be arbitrary and capricious—42 U.S.C. 1983 ‘‘does not extend that right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings’’); Nicholas B. v. Sch. Comm. of Worcester, 412 Mass. 20, 23–24 (1992) (rejecting a student’s claim that the student is ‘‘entitled to an independent judicial determination of the facts’’ concerning the school’s finding that the student committed battery’’) (holding that ‘‘In deciding whether the discipline imposed was lawful, no de novo judicial fact-finding is required’’ and rejecting the contention that the State legislature, in enacting the State Civil Rights Act ‘‘intended a de novo review of the factual determinations of a school committee in an action challenging school discipline’’) (citing Wood, 420 U.S. at 326). The Department’s view of restraint from conducting de novo review of recipient determinations regarding responsibility is consistent with judicial views recognizing that this type of limited restraint in no way impairs the ability of the courts to effectuate the purposes of Federal and State civil rights statutes. Similarly, § 106.44(b)(2) in no way impairs the Department’s ability to effectuate the purposes of Title IX. PO 00000 Frm 00198 Fmt 4701 Sfmt 4700 VII. There may be incidents of sexual harassment that implicate both Title VII and Title IX, and this Department will continue to administer Title IX and its implementing regulations and to defer to the EEOC to administer Title VII and its implementing regulations. Nothing in these final regulations precludes the Department from giving due weight to the EEOC’s determination regarding Title VII under 28 CFR 42.610(a).954 The Department recognizes that employers must fulfill their obligations under Title VII and also under Title IX. There is no inherent conflict between Title VII and Title IX, and the Department will construe Title IX and its implementing regulations in a manner to avoid an actual conflict between an employer’s obligations under Title VII and Title IX. The Department wishes to clarify that § 106.44(b)(2) applies only to determinations regarding responsibility reached in a § 106.45 grievance process, which in turn applies only to formal complaints (defined in § 106.30 to mean allegations of sexual harassment); the § 106.45 grievance process does not apply to complaints about other types of sex discrimination. Complaints about sex discrimination that is not sexual harassment may be filed with the recipient for processing under the prompt and equitable grievance procedures that recipients must adopt under § 106.8. We appreciate the opportunity to clarify that no regulation or Department practice precludes a person from filing a complaint with OCR, whether or not the person also could have filed, or did file, a complaint with the school. Changes: Section 106.44(b)(2) is revised to reference not only deliberate indifference but also other sex discrimination under Title IX, and to replace the word ‘‘merely’’ with ‘‘solely’’ in the phrase describing situations in which the Assistant Secretary would have reached a different determination based on an independent weighing of the evidence. 954 28 CFR 42.610(c) also states: ‘‘If the referring agency determines that the recipient has not violated any applicable civil rights provision(s) which the agency has a responsibility to enforce, the agency shall notify the complainant, the recipient, and the Assistant Attorney General and the Chairman of the EEOC in writing of the basis of that determination.’’ Accordingly, these regulations contemplate that each agency enforces the civil rights provisions that the agency has the responsibility to enforce. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Additional Rules Governing Recipients’ Responses to Sexual Harassment Section 106.44(c) Emergency Removal Overall Support and Opposition to Emergency Removals Comments: Some commenters believed that § 106.44(c) provides due process protections for respondents while protecting campus safety. Some commenters supported this provision because it allows educational institutions to respond to situations of immediate danger, while protecting respondents from unfair or unnecessary removals. At least one commenter appreciated the latitude granted to educational institutions under § 106.44(c) to determine how to address safety emergencies arising from allegations of sexual harassment. Some commenters asserted that this provision appropriately reflects many schools’ existing behavior risk assessment procedures. Several commenters supported § 106.44(c) and recounted personal stories of how a respondent was removed from classes, or from school, and the negative impact the removal had on that student’s professional, academic, or extracurricular life because the removal seemed to presume the ‘‘guilt’’ of the respondent without allegations ever being proved. Some commenters wanted to omit the emergency removal provision entirely, arguing that if administrators at the postsecondary level have the power to preemptively suspend or expel a student, on the pretext of an emergency, then every sexual misconduct situation could be deemed an emergency and respondents would never receive the due process protections of the § 106.45 grievance process. One commenter suggested that instead of permitting removals, all allegations of sexual harassment should simply go through a more rapid investigation so that the respondent may remain in school and victims are protected, while any falsely accused respondent is quickly exonerated. Some commenters requested that this removal power be limited because of the negative consequences of involuntary removal; one commenter suggested the provision be modified so that the removal must be ‘‘narrowly tailored’’ and ‘‘no more extensive than is strictly necessary’’ to mitigate the health or safety risk. One commenter asserted that this provision should also require that interim emergency removals be based on objective evidence and on current medical knowledge where appropriate, made by a licensed, qualified evaluator. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Some commenters asserted that emergency removals should not be used just because sexual harassment or assault has been alleged, and that § 106.44(c) should more clearly define what counts as an emergency. Some commenters argued that emergency removals should be allowed if the sexual harassment allegation involves rape, but no emergency removal should be allowed if the sexual harassment allegation involves offensive speech. Commenters argued that § 106.44(c) is unclear as to what constitutes an immediate threat to health or safety. Several commenters argued that emergency removals should be restricted to instances where there is ‘‘an immediate threat to safety’’ (not health), while other commenters argued this provision must be limited to ‘‘physical’’ threats to health or safety. Commenters argued that a ‘‘threat to health or safety’’ is too nebulous a concept to justify immediate removal from campus. According to one commenter, even speaking on campus in favor of the NPRM could be construed by schools or student activists as a threat to the emotional or mental ‘‘health or safety’’ of survivors, even though discussion of public policy is core political speech protected by the First Amendment. One commenter stated that the use of the plural ‘‘students and employees’’ in § 106.44(c) may preclude an institution from taking emergency action when the immediate threat is to a single student or employee. Commenters argued that postsecondary institutions need the flexibility to address immediate threats to the safety of one student or employee in the same manner as threats to multiple students or employees. Some commenters asserted that § 106.44(c) would unreasonably limit a postsecondary institution’s ability to protect persons and property, or to protect against potential disruption of the educational environment, and argued that an institution should have the discretion to invoke an emergency removal under circumstances beyond those listed in § 106.44(c). Commenters argued that § 106.44(c) is too limiting because it does not allow recipients to pursue an emergency removal where the respondent poses a threat of illegal conduct that is not about a health or safety emergency; commenters contended this will subject the complainant or others to ongoing illegal conduct just because it does not constitute a threat to health or safety. Commenters argued that in addition to a health or safety threat, this provision should consider the need to restore or preserve equal access to education as PO 00000 Frm 00199 Fmt 4701 Sfmt 4700 30223 justification for emergency removals. One commenter asserted that a legitimate reason to institute an emergency removal of a respondent is a threat that the respondent may obstruct the collection of relevant information regarding the sexual harassment allegations at issue. One commenter cited New York Education Law Article 129–B as an example of a detailed framework under which campus officials may conduct an individualized threat assessment, order an interim suspension, and provide due process; commenters asserted that courts hold that the due process required for an interim suspension does not need to consist of a full hearing.955 Another commenter argued that this provision would constitute an unprecedented Federal preemption of Oregon’s existing State and local student discipline rules, which establish the due process requirements for emergency removals from school. Commenters argued that § 106.44(c) would create a higher level of due process for emergency removals in situations that involve alleged sexual harassment than for any other behavioral violation, and that the proposed rules are unclear whether this heightened procedural requirement is triggered only when a complainant alleges sexual harassment as defined in § 106.30, or is also triggered in any case where a complainant alleges sexual harassment that meets a State law definition or school code of conduct that may define sexual harassment more broadly than conduct meeting the § 106.30 definition. Some commenters suggested that § 106.44(c) be modified to require periodic review of any emergency removal decision, to promote transparency and eliminate the possibility of leaving a respondent on interim suspension indefinitely. Commenters argued that immediate removal is very traumatic, and respondents who have been removed have a significant potential to react by harming themselves or others thus recipients should reduce these risks by ensuring a safe exit plan with adequate support for the respondent in place. Commenters asserted that the goal should be to preserve educational opportunities for all parties involved to the extent possible, so § 106.44(c) should require recipients to provide alternative academic accommodations for respondents who are removed. Some 955 Commenters cited: Haidak v. Univ. of Mass. at Amherst, 299 F. Supp. 3d 242, 265–66 (D. Mass. 2018), aff’d in part, vacated in part, remanded by Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56 (1st Cir. 2019). E:\FR\FM\19MYR2.SGM 19MYR2 30224 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations commenters suggested that this provision should address a respondent’s access to a recipient’s program or activity, post-removal. Because emergency removal is not premised on a finding of responsibility and occurs ex parte, commenters argued that the recipient should be required to provide a respondent with alternative access to the respondent’s academic classes during the period of removal and that failure to do so would be sex discrimination against the respondent. Some commenters argued that as to a respondent who is removed on an emergency basis and later found to be not responsible, the final regulations should require the recipient to mitigate the damage caused by the removal, for example, by allowing the respondent to retake classes or exams missed during the removal. One commenter suggested that a recipient should secure the personal property of the removed person (such as the respondent’s vehicle) and be responsible for any loss or damage occurring to personal property during a removal. Other commenters asserted that an individualized risk assessment should be required after every report of sexual assault. Commenters argued that because insurance statistics show a high degree of recidivism among college rapists, and because Title IX is also supposed to deter discrimination based on sex, schools should be required to consider the safety of other students on their campus if they know there is a possible sexual assailant in their midst. One commenter suggested that licensing board procedures provide the best model for campus procedures because they offer the closest parallel to the types of behavior evaluated and issues at stake for respondents such as reputation, future livelihood, and future opportunities; the commenter asserted that court precedents hold that both public and private recipients must follow principles of fundamental due process and fundamental fairness in disciplinary processes,956 and professional licensing board procedures adequately protect due process. One commenter applauded the Department for proposing to provide greater due process protections than what current procedures typically provide; however, this commenter asserted that Native American students attending institutions funded by the Bureau of Indian Affairs receive strong due process protections, including greater due process with respect to emergency 956 Commenter cited: Boehm v. Univ. of Pa. Sch. of Veterinary Med., 573 A.2d 575, 578 (Pa. Super. Ct. 1990). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 removals than what § 106.44(c) provides, and the commenter contended that the stronger due process protections should be extended to non-Native American institutions.957 According to this commenter, unlike Native American students attending schools funded by the Bureau of Indian Affairs, non-Native American students are at risk for permanent removal from campus with potentially devastating consequences. One commenter asserted that § 106.44(c) should explicitly require the recipient to comply with the Clery Act, notify appropriate authorities, and provide any necessary safety interventions. Another commenter stated that recipients should be required to publicly report the annual number of emergency removals the recipient conducts under § 106.44(c). Some commenters asserted that recipients need to do more than simply remove a respondent from its education program or activity. Commenters argued that trauma from sexual assault may cause a complainant to withdraw from an education program or activity, including due to fear of seeing the respondent, suggested that more resources should be made available to complainants, and asserted that the final regulations should specify best practices addressing how a recipient should respond to immediate threats. Discussion: We appreciate commenters’ support for the emergency removal provision in § 106.44(c). Revised in ways explained below, § 106.44(c) provides that in situations where a respondent poses an immediate threat to the physical health and safety of any individual before an investigation into sexual harassment allegations concludes (or where no grievance process is pending), a recipient may remove the respondent from the recipient’s education programs or activities. A recipient may need to undertake an emergency removal in order to fulfill its duty not to be deliberately indifferent under § 106.44(a) and protect the safety of the recipient’s community, and § 106.44(c) permits recipients to remove respondents in emergency situations that arise out of allegations of conduct that could constitute sexual harassment as defined in § 106.30. Emergency removal may be undertaken in addition to implementing supportive measures designed to restore or preserve a complainant’s equal access to education.958 While we recognize that 957 Commenters cited: 25 CFR 42.1–42.10. 958 Section 106.44(a) requires a recipient to offer supportive measures to every complainant, PO 00000 Frm 00200 Fmt 4701 Sfmt 4700 emergency removal may have serious consequences for a respondent, we decline to remove this provision because where a genuine emergency exists, recipients need the authority to remove a respondent while providing notice and opportunity for the respondent to challenge that decision. The Department does not believe that rushing all allegations of sexual harassment or sexual assault through expedited grievance procedures adequately promotes a fair grievance process, and forbidding an emergency removal until conclusion of a grievance process (no matter how expedited such a process reasonably could be) might impair a recipient’s ability to quickly respond to an emergency situation. The § 106.45 grievance process is designed to provide both parties with a prompt, fair investigation and adjudication likely to reach an accurate determination regarding the responsibility of the respondent for perpetrating sexual harassment. Emergency removal under § 106.44(c) is not a substitute for reaching a determination as to a respondent’s responsibility for the sexual harassment allegations; rather, emergency removal is for the purpose of addressing imminent threats posed to any person’s physical health or safety, which might arise out of the sexual harassment allegations. Upon reaching a determination that a respondent is responsible for sexual harassment, the final regulations do not restrict a recipient’s discretion to impose a disciplinary sanction against the respondent, including suspension, expulsion, or other removal from the recipient’s education program or activity. Section 106.44(c) allows recipients to address emergency situations, whether or not a grievance process is underway, provided that the recipient first undertakes an individualized safety and risk analysis and provides the respondent notice and opportunity to challenge the removal decision. We do not believe it is necessary to restrict a recipient’s emergency removal authority to removal decisions that are ‘‘narrowly tailored’’ to address the risk because § 106.44(c) adequately requires that the threat ‘‘justifies’’ the removal. If the high threshold for removal under § 106.44(c) exists (i.e., an individualized safety and risk analysis determines the respondent poses an immediate threat to any person’s physical health or safety), then including by having the Title IX Coordinator engage with the complainant in an interactive process that takes into account the complainant’s wishes regarding available supportive measures. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations we believe the recipient should have discretion to determine the appropriate scope and conditions of removal of the respondent from the recipient’s education program or activity. Similarly, we decline to require recipients to follow more prescriptive requirements to undertake an emergency removal (such as requiring that the assessment be based on objective evidence, current medical knowledge, or performed by a licensed evaluator). While such detailed requirements might apply to a recipient’s risk assessments under other laws, for the purposes of these final regulations under Title IX, the Department desires to leave as much flexibility as possible for recipients to address any immediate threat to the physical health or safety of any student or other individual. Nothing in these final regulations precludes a recipient from adopting a policy or practice of relying on objective evidence, current medical knowledge, or a licensed evaluator when considering emergency removals under § 106.44(c). We agree that emergency removal is not appropriate in every situation where sexual harassment has been alleged, but only in situations where an individualized safety and risk analysis determines that an immediate threat to the physical health or safety of any student or other individual justifies the removal, where the threat arises out of allegations of sexual harassment as defined in § 106.30. Because all the conduct that could constitute sexual harassment as defined in § 106.30 is serious conduct that jeopardizes a complainant’s equal access to education, we decline to limit emergency removals only to instances where a complainant has alleged sexual assault or rape, or to prohibit emergency removals where the sexual harassment allegations involve verbal harassment. A threat posed by a respondent is not necessarily measured solely by the allegations made by the complainant; we have revised § 106.44(c) to add the phrase ‘‘arising from the allegations of sexual harassment’’ to clarify that the threat justifying a removal could consist of facts and circumstances ‘‘arising from’’ the sexual harassment allegations (and ‘‘sexual harassment’’ is a defined term, under § 106.30). For example, if a respondent threatens physical violence against the complainant in response to the complainant’s allegations that the respondent verbally sexually harassed the complainant, the immediate threat to the complainant’s physical safety posed by the respondent may ‘‘arise from’’ the sexual harassment allegations. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 As a further example, if a respondent reacts to being accused of sexual harassment by threatening physical selfharm, an immediate threat to the respondent’s physical safety may ‘‘arise from’’ the allegations of sexual harassment and could justify an emergency removal. The ‘‘arising from’’ revision also clarifies that recipients do not need to rely on, or meet the requirements of, § 106.44(c) to address emergency situations that do not arise from sexual harassment allegations under Title IX (for example, where a student has brought a weapon to school unrelated to any sexual harassment allegations). We are persuaded by commenters that § 106.44(c) should be clarified. The final regulations revise this provision to state that the risk posed by the respondent must be to the ‘‘physical’’ health or safety, of ‘‘any student or other individual,’’ arising from the allegations of sexual harassment. These revisions help ensure that this provision applies to genuine emergencies involving the physical health or safety of one or more individuals (including the respondent, complainant, or any other individual) and not only multiple students or employees. We agree with commenters who asserted that adding the word ‘‘physical’’ before ‘‘health or safety’’ will help ensure that the emergency removal provision is not used inappropriately to prematurely punish respondents by relying on a person’s mental or emotional ‘‘health or safety’’ to justify an emergency removal, as the emotional and mental well-being of complainants may be addressed by recipients via supportive measures as defined in § 106.30. The revision to § 106.44(c) adding the word ‘‘physical’’ before ‘‘health and safety’’ and changing ‘‘students or employees’’ to ‘‘any student or other individual’’ also addresses commenters’ concerns that the proposed rules were not specific enough about what kind of threat justifies an emergency removal; the latter revision clarifies that the threat might be to the physical health or safety of one or more persons, including the complainant, the respondent themselves, or any other individual. We decline to remove ‘‘health’’ from the ‘‘physical health or safety’’ phrase in this provision because an emergency situation could arise from a threat to the physical health, or the physical safety, of a person, and because ‘‘health or safety’’ is a relatively recognized term used to describe emergency circumstances.959 959 E.g., 20 U.S.C. 1232g(b)(1)(I) (allowing disclosure, without prior written consent, of PO 00000 Frm 00201 Fmt 4701 Sfmt 4700 30225 We decline to add further bases that could justify an emergency removal under § 106.44(c). We recognize the importance of the need to restore or preserve equal access to education, but disagree that it should be a justification for emergency removal; supportive measures are intended to address restoration and preservation of equal educational access, while § 106.44(c) is intended to apply to genuine emergencies that justify essentially punishing a respondent (by separating the respondent from educational opportunities and benefits) arising out of sexual harassment allegations without having fairly, reliably determined whether the respondent is responsible for the alleged sexual harassment. As explained above, we have revised § 106.44(c) to apply only where the immediate threat to a person’s physical health or safety arises from the allegations of sexual harassment; this clarifies that where a respondent poses a threat of illegal conduct (perhaps not constituting a threat to physical health or safety) that does not arise from the sexual harassment allegations, this provision does not apply. Nothing in these final regulations precludes a recipient from addressing a respondent’s commission of illegal conduct under the recipient’s own code of conduct, or pursuant to other laws, where such illegal conduct does not constitute sexual harassment as defined in § 106.30 or is not ‘‘arising from the sexual harassment allegations.’’ We disagree that a recipient’s assessment that a respondent poses a threat of obstructing the sexual harassment investigation, or destroying relevant evidence, justifies an emergency removal under this provision, because this provision is intended to ensure that recipients have authority and discretion to address health or safety emergencies arising out of sexual harassment allegations, not to address all forms of misconduct that a respondent might commit during a grievance process. The Department appreciates commenters’ concerns that State or local law may present other considerations or impose other requirements before an emergency removal can occur. To the extent that other applicable laws establish additional relevant standards for emergency removals, recipients personally identifiable information from a student’s education records ‘‘subject to regulations of the Secretary, in connection with an emergency, appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons’’); 34 CFR 99.31(a)(10) and 34 CFR 99.36 (regulations implementing FERPA). E:\FR\FM\19MYR2.SGM 19MYR2 30226 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations should also heed such standards. To the greatest degree possible, State and local law ought to be reconciled with the final regulations, but to the extent there is a direct conflict, the final regulations prevail.960 While commenters correctly note that a ‘‘full hearing’’ is not a constitutional due process requirement in all interim suspension situations, § 106.44(c) does not impose a requirement to hold a ‘‘full hearing’’ and in fact, does not impose any predeprivation due process requirements; the opportunity for a respondent to challenge an emergency removal decision need only occur postdeprivation. For reasons described in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, the Department has determined that postsecondary institutions must hold live hearings to reach determinations regarding responsibility for sexual harassment. However, because § 106.44(c) is intended to give recipients authority to respond quickly to emergencies, and does not substitute for a determination regarding the responsibility of the respondent for the sexual harassment allegations at issue, recipients need only provide respondents the basic features of due process (notice and opportunity), and may do so after removal rather than before a removal occurs. An emergency removal under § 106.44(c) does not authorize a recipient to impose an interim suspension or expulsion on a respondent because the respondent has been accused of sexual harassment. Rather, this provision authorizes a recipient to remove a respondent from the recipient’s education program or activity (whether or not the recipient labels such a removal as an interim suspension or expulsion, or uses any different label to describe the removal) when an individualized safety and risk analysis determines that an imminent threat to the physical health or safety of any person, arising from sexual harassment allegations, justifies removal. Section 106.44(c) expressly acknowledges that recipients may be obligated under applicable disability laws to conduct emergency removals differently with respect to individuals with disabilities, and these final regulations do not alter a recipient’s obligation to adhere to the IDEA, Section 504, or the ADA. Due to a recipient’s obligations under applicable 960 See discussion under the ‘‘Section 106.6(h) Preemptive Effect’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble; see also discussion under the ‘‘Spending Clause’’ subsection of the ‘‘Miscellaneous’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 State laws or disability laws, uniformity with respect to how a recipient addresses all cases involving immediate threats to physical health and safety may not be possible. However, the Department believes that § 106.44(c) appropriately balances the need for schools to remove a respondent posing an immediate threat to the physical health or safety of any person, with the need to ensure that such an ability is not used inappropriately, for instance to bypass the prohibition in § 106.44(a) and § 106.45(b)(1)(i) against imposition of disciplinary sanctions or other actions that are not supportive measures against a respondent without first following the § 106.45 grievance process. The Department does not believe that a lower threshold for an emergency removal appropriately balances these interests, even if this means that emergency removals arising from allegations of sexual harassment must meet a higher standard than when a threat arises from conduct allegations unrelated to Title IX sexual harassment. In response to commenters’ reasonable concerns about the potential for confusion, we have added the phrase ‘‘arising from the allegations of sexual harassment’’ (and ‘‘sexual harassment’’ is a defined term under § 106.30) into this provision to clarify that this emergency removal provision only governs situations that arise under Title IX, and not under State or other laws that might apply to other emergency situations. The Department does not see a need to add language stating that the emergency removal must be periodically reviewed. Emergency removal is not a substitute for the § 106.45 grievance process, and § 106.45(b)(1)(v) requires reasonably prompt time frames for that grievance process. We acknowledge that a recipient could remove a respondent under § 106.44(c) without a formal complaint having triggered the § 106.45 grievance process; in such situations, the requirements in § 106.44(c) giving the respondent notice and opportunity to be heard post-removal suffice to protect a respondent from a removal without a fair process for challenging that outcome, and the Department does not believe it is necessary to require periodic review of the removal decision. We decline to impose layers of complexity onto the emergency removal process, leaving procedures in recipients’ discretion; in many cases, recipients will develop a ‘‘safe exit plan’’ as part of implementing an emergency removal, and accommodate students who have been removed on an emergency basis with alternative means PO 00000 Frm 00202 Fmt 4701 Sfmt 4700 to continue academic coursework during a removal period or provide for a respondent to re-take classes upon a return from an emergency removal, or secure personal property left on a recipient’s campus when a respondent is removed. We disagree that a recipient’s failure to refusal to take any of the foregoing steps necessarily constitutes sex discrimination under Title IX, although a recipient would violate Title IX by, for example, applying different policies to female respondents than to male respondents removed on an emergency basis. Nothing in the final regulations prevents students who have been removed from asserting rights under State law or contract against the recipient arising from a removal under this provision. We decline to require an individualized safety and risk analysis upon every reported sexual assault, because the § 106.45 grievance process is designed to bring all relevant evidence concerning sexual harassment allegations to the decision-maker’s attention so that a determination regarding responsibility is reached fairly and reliably. A recipient is obligated under § 106.44(a) to provide a complainant with a non-deliberately indifferent response to a sexual assault report, which includes offering supportive measures designed to protect the complainant’s safety, and if a recipient does not provide a complainant with supportive measures, then the recipient must document the reasons why such a response was not clearly unreasonable in light of the known circumstances pursuant to § 106.45(b)(10)(ii). Emergency removals under § 106.44(c) remain an option for recipients to respond to situations where an individualized safety and risk analysis determines that a respondent poses an immediate threat to health or safety. The Department appreciates commenters’ assertions that § 106.44(c) should provide more due process protections, similar to those applied in professional licensing board cases or under Federal laws that apply to schools funded by the Bureau of Indian Affairs; however, we believe that § 106.44(c) appropriately balances a recipient’s need to protect individuals from emergency threats, with providing adequate due process to the respondent under such emergency circumstances. Notice and an opportunity to be heard constitute the fundamental features of procedural due process, and the Department does not wish to prescribe specific procedures that a recipient must apply in emergency situations. Accordingly, the Department does not E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations wish to adopt the same due process protections that commenters asserted are applied in professional licensing revocation proceedings, or that are provided to Native American students in schools funded by the Bureau of Indian Affairs. The Department acknowledges that schools receiving funding from the Bureau of Indian Affairs must provide even greater due process protections than what these final regulations require, but these greater due process protections do not conflict with these final regulations. These final regulations govern a variety of recipients, including elementary and secondary schools and postsecondary institutions, but also recipients that are not educational institutions; for example, some libraries and museums are recipients of Federal financial assistance operating education programs or activities. These final regulations provide the appropriate amount of due process for a wide variety of recipients of Federal financial assistance with respect to a recipient’s response to emergency situations. As discussed in the ‘‘Clery Act’’ subsection of the ‘‘Miscellaneous’’ section of this preamble, postsecondary institutions subject to these Title IX regulations may also be subject to the Clery Act. We decline to state in § 106.44(c) that recipients must also comply with the Clery Act because we do not wish to create confusion about whether § 106.44(c) applies only to postsecondary institutions (because the Clery Act does not apply to elementary and secondary schools). We decline to require recipients to notify authorities, provide safety interventions, or annually report the number of emergency removals conducted under § 106.44(c), because we do not wish to prescribe requirements on recipients beyond what we have determined is necessary to fulfill the purpose of this provision: Granting recipients authority and discretion to appropriately respond to emergency situations arising from sexual harassment allegations. Nothing in these final regulations precludes a recipient from notifying authorities, providing safety interventions, or reporting the number of emergency removals, to comply with other laws requiring such steps or based on a recipient’s desire to take such steps. For similar reasons, we decline to require recipients to adopt ‘‘best practices’’ for responding to threats. We note that these final regulations require recipients to offer supportive measures to every complainant, and do not preclude a recipient from providing resources to complainants or respondents. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Changes: We have revised § 106.44(c) so that a respondent removed on an emergency basis must pose an immediate threat to the ‘‘physical’’ health or safety (adding the word ‘‘physical’’) of ‘‘any student or other individual’’ (replacing the phrase ‘‘students or employees’’). We have also revised the proposed language to clarify that the justification for emergency removal must arise from allegations of sexual harassment under Title IX. Intersection With the IDEA, Section 504, and ADA Comments: Some commenters applauded the ‘‘saving clause’’ in § 106.44(c) acknowledging that the respondent may have rights under the IDEA, Section 504, or the ADA. Several commenters asserted that § 106.44(c) would create uncertainty regarding the interplay between Title IX and relevant disabilities laws, which would further exacerbate the uncertainty regarding involuntary removal of students who pose a threat to themselves. Other commenters stated that the result of this provision would likely be different handling of Title IX cases for students with disabilities versus students without disabilities because of the requirements of the IDEA, Section 504, and the ADA. Some commenters believed this provision (and the proposed rules overall) appear to give consideration to the rights and needs of respondents with disabilities, without similar consideration for the rights of complainants or witnesses with disabilities. Commenters asserted that § 106.44(c) is subject to problematic interpretation because by expressly referencing the IDEA, Section 504, and the ADA this provision might wrongly encourage schools to remove students with disabilities because of implicit bias against students with disabilities, especially students with intellectual disabilities. One commenter suggested that § 106.44(c) should track the definition of ‘‘direct threat’’ used in the Equal Employment Opportunity Commission’s (EEOC) regulations, upheld by the Supreme Court,961 and as outlined in ADA regulations 962 because this would 961 Commenters cited: Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002). 962 Commenters cited: 28 CFR 35.139(b) (‘‘In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, PO 00000 Frm 00203 Fmt 4701 Sfmt 4700 30227 give recipients and respondents a clearer standard and reduce the chances that removal decisions will be based on generalizations, ignorance, fear, patronizing attitudes, or stereotypes regarding individuals with disabilities. Some commenters argued that this provision conflicts with the IDEA, Section 504, and the ADA, and that removals are not as simple as conducting a mere risk assessment, because the IDEA governs emergency removal of students in elementary school who are receiving special education and related services.963 Commenters asserted that under the IDEA, a school administrator cannot make a unilateral risk assessment, and placement decisions cannot be made by an administrator alone; rather, commenters argued, these decisions must be made by a team that includes the parent and relevant members of the IEP (Individualized Education Program) Team and if the conduct in question was a manifestation of a disability, the recipient cannot make a unilateral threat assessment and remove a child from school, absent extreme circumstances. These commenters further argued that sometimes certain behaviors are the result or manifestation of a disability, despite being sexually offensive, e.g., a student with Tourette’s syndrome blurting out sexually offensive language. Commenters argued that under disability laws schools cannot remove those students from school without complying with the IDEA, Section 504, and the ADA. One commenter recommended that § 106.44(c) require, at a minimum, training for Title IX administrators on the intersection among Title IX and applicable disability laws. In the college setting, the commenter further recommended that Title IX Coordinators not be permitted to impose supportive measures that involve removal without feedback from administrators from the institution’s office of disability services, provided that the student is registered with the pertinent office. If a student has an Individualized Education Plan (IEP) in secondary school, commenters recommended that the administration immediately call for a team meeting to determine the next steps. Other commenters asserted that any language under § 106.44(c) must make clear that the free appropriate public education (FAPE) to which students practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.’’). 963 Commenters cited: Glen by & through Glen v. Charlotte-Mecklenburg Sch. Bd. of Educ., 903 F. Supp. 918, 935 (W.D.N.C. 1995) (‘‘[W]here student poses an immediate threat, [the school] may temporarily suspend up to 10 school days.’’). E:\FR\FM\19MYR2.SGM 19MYR2 30228 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations with disabilities are entitled must continue, even in circumstances when emergency removal is deemed necessary under Title IX. Given this, one commenter recommended that the language in § 106.44(c) clarify that this provision does not supersede rights under disability laws. Some commenters, while expressing overall support for § 106.44(c), requested additional guidance on the intersection of Title IX, the IDEA, and the ADA, and how elementary and secondary schools would implement § 106.44(c). The commenters asserted that the final regulations should be explicit that regardless of a student’s IEP or ‘‘504 plan’’ under the IDEA or Section 504, the student is not allowed to engage in threatening or harmful behavior and that this would be similar to the response a campus might have to any other serious violation, such as bringing a firearm to class. Commenters also argued that the final regulations should clarify that separation of elementary and secondary school students with disabilities from classroom settings should be rare and only when done in compliance with the IDEA. Commenters argued that recipients must be made aware that a student with a disability does not have to be eligible for a free appropriate public education (FAPE) in order for § 106.44(c) to apply, and that recipients must not be misled into thinking there are different standards for elementary and secondary school and postsecondary education environments when it comes to equal access to educational opportunities. Other commenters argued that § 106.44(c) may violate compulsory educational laws by removing elementary-age students from school on an emergency basis. When an elementary school student is removed under § 106.44(c), commenters wondered whether the school is supposed to have a designated site for housing or educating removed students during the investigation. Discussion: Section 106.44(c) states that this provision does not modify any rights under the IDEA, Section 504, or the ADA. In the final regulations, we removed reference to certain titles of the ADA and refer instead to the ‘‘Americans with Disabilities Act’’ so that application of any portion of the ADA requires a recipient to meet ADA obligations while also complying with these final regulations. We disagree that this provision will create ambiguity or otherwise supersede rights that students have under these disability statutes. Additionally, we do not believe that expressly acknowledging recipients’ VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 obligations under disability laws incentivizes recipients to remove respondents with disabilities; rather, reference in this provision to those disability laws will help protect respondents from emergency removals that do not also protect the respondents’ rights under applicable disability laws. With respect to implicit bias against students with disabilities, recipients must be careful to ensure that all emergency removal proceedings are impartial, without bias or conflicts of interest 964 and the final regulations do not preclude a recipient from providing training to employees, including Title IX personnel, regarding a recipient’s obligations under both Title IX and applicable disability laws. Any different treatment between students without disabilities and students with disabilities with respect to emergency removals, may occur due to a recipient’s need to comply with the IDEA, Section 504, the ADA, or other disability laws, but would not be permissible due to bias or stereotypes against individuals with disabilities. As explained in the ‘‘Directed Question 5: Individuals with Disabilities’’ subsection of the ‘‘Directed Questions’’ section of this preamble, recipients have an obligation to comply with applicable disability laws with respect to complainants as well as respondents (and any other individual involved in a Title IX matter, such as a witness), and the reference to disability laws in § 106.44(c) does not obviate recipients’ responsibilities to comply with disability laws with respect to other applications of these final regulations. The Department appreciates commenters’ suggestion to mirror the ‘‘direct threat’’ language utilized in ADA regulations; however, we have instead revised § 106.44(c) to refer to the physical health or safety of ‘‘any student or other individual’’ because this language better aligns this provision with the FERPA health and safety emergency exception, and avoids the confusion caused by the ‘‘direct threat’’ language under ADA regulations because those regulations refer to a 964 Section 106.45(b)(1)(iii) requires all Title IX Coordinators (and investigators, decision-makers, and persons who facilitate informal resolution processes) to be free from conflicts of interest or bias against complainants and respondents generally or against an individual complainant or respondent, and requires training for such personnel that includes (among other things) how to serve impartially. A ‘‘respondent’’ under § 106.30 means any individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment; thus, a Title IX Coordinator interacting with a respondent undergoing an emergency removal must serve impartially, without conflict of interest or bias. PO 00000 Frm 00204 Fmt 4701 Sfmt 4700 ‘‘direct threat to the health or safety of others’’ 965 which does not clearly encompass a threat to the respondent themselves (e.g., where a respondent threatens self-harm). By revising § 106.44(c) to refer to a threat to the physical health or safety ‘‘of any student or other individual’’ this provision does encompass a respondent’s threat of selfharm (when the threat arises from the allegations of sexual harassment), and is aligned with the language used in FERPA’s health or safety exception.966 We note that recipients still need to comply with applicable disability laws, including the ADA, in making emergency removal decisions. The Department appreciates commenters’ varied concerns that complying with these final regulations, and with disability laws, may pose challenges for recipients, including specific challenges for elementary and secondary schools, and postsecondary institutions, because of the intersection among the IDEA, Section 504, the ADA, and how to conduct an emergency removal under these final regulations under Title IX. The Department will offer technical assistance to recipients regarding compliance with laws under the Department’s enforcement authority. However, the Department does not believe that recipients’ obligations under multiple civil rights laws requires changing the emergency removal provision in § 106.44(c) because this is an important provision to ensure that recipients have flexibility to balance the need to address emergency situations with fair treatment of a respondent who has not yet been proved responsible for sexual harassment. The Department does not believe that applicable disability laws, or other State laws, render a recipient unable to comply with all relevant legal obligations. For instance, with respect to compulsory education laws, nothing in § 106.44(c) relieves a recipient from complying 965 28 CFR 35.139(b) (‘‘In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: The nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.’’) (emphasis added). 966 E.g., 20 U.S.C. 1232g(b)(1)(I) (allowing disclosure, without prior written consent, of personally identifiable information from a student’s education records ‘‘subject to regulations of the Secretary, in connection with an emergency, appropriate persons if the knowledge of such information is necessary to protect the health or safety of the student or other persons’’); see also regulations implementing FERPA, 34 CFR 99.31(a)(10) and 99.36. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations with State laws requiring that students under a certain age receive governmentprovided education services. As a further example, nothing in § 106.44(c) prevents a recipient from involving a student’s IEP team before making an emergency removal decision, and § 106.44(c) does not require a recipient to remove a respondent where the recipient has determined that the threat posed by the respondent, arising from the sexual harassment allegations, is a manifestation of a disability such that the recipient’s discretion to remove the respondent is constrained by IDEA requirements. Changes: We have replaced the phrase ‘‘students or employees’’ with the phrase ‘‘any student or other individual’’ in § 106.44(c) and removed specification of certain titles of the ADA, instead referencing the whole of the ADA. Post-Removal Challenges Comments: Some commenters supported § 106.44(c) giving respondents notice and opportunity to challenge the removal immediately after the removal, because during a removal a respondent might lose a significant amount of instructional time while waiting for a grievance proceeding to conclude, and being out of school can harm the academic success and emotional health of the removed student. Other commenters asserted that respondents should not be excluded from a recipient’s education program or activity until conclusion of a grievance process, and a post-removal challenge after the fact is insufficient to assure due process for respondents, especially because § 106.44(c) does not specify requirements for the time frame or procedures used for a challenging the removal decision. Some commenters argued that the ability of a removed respondent to challenge the removal would pose an unnecessary increased risk to the safety of the community, especially because § 106.44(c) already requires the recipient to determine the removal was justified by an individualized safety and risk analysis. Commenters argued that a school’s emergency removal decision should stand until a threat assessment team has met and given a recommendation to affirm or overrule the decision. Some commenters asserted that § 106.44(c) is ambiguous about the right to a post-removal challenge and argued that the failure to provide more clarity is problematic because it is unclear if the ‘‘immediate’’ challenge must occur minutes, hours, one day, or several days after the removal. Commenters argued VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 that a plain language interpretation of ‘‘immediately’’ may require the challenge to occur minutes after the suspension, but this could jeopardize the safety of the complainant and the community, because the very point of an interim suspension is to remove a known risk from campus. Other commenters argued that requiring an ‘‘immediate’’ post-removal challenge could undermine the respondent’s due process rights, because the respondent might not be physically present on campus when the interim suspension (e.g., removal) is issued. Some commenters argued that there should be a delay between when the removal occurred and when the opportunity to challenge occurs, because students and employees are often afraid of providing information to college administrations due to legitimate, reasonable fear for their own safety. Commenters requested that this provision be modified to give the respondent a challenge opportunity ‘‘as soon as reasonably practicable’’ rather than ‘‘immediately.’’ Commenters asked whether providing a challenge opportunity ‘‘immediately’’ must, or could, be the same as the ‘‘prompt’’ time frames required under § 106.45. Discussion: The Department appreciates commenters’ support of the post-removal challenge opportunity provided in § 106.44(c). The Department disagrees with commenters who suggested that no challenge to removals ought to be possible, and believes that § 106.44(c) appropriately balances the interests involved in emergency situations. We do not believe that prescribing procedures for the postremoval challenge is necessary or desirable, because this provision ensures that respondents receive the essential due process requirements of notice and opportunity to be heard while leaving recipients flexibility to use procedures that a recipient deems most appropriate.967 These final regulations aim to improve the perception and reality of the fairness and accuracy by which a recipient resolves allegations of sexual harassment, and therefore the § 106.45 grievance process prescribes a consistent framework and specific procedures for resolving formal complaints of sexual harassment. By contrast, § 106.44(c) is not designed to resolve the underlying allegations of sexual harassment against a respondent, 967 E.g., Goss v. Lopez, 419 U.S. 565, 582–83 (1975) (‘‘Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such cases, the necessary notice and rudimentary hearing should follow as soon as practicable’’). PO 00000 Frm 00205 Fmt 4701 Sfmt 4700 30229 but rather to ensure that recipients have the authority and discretion to appropriately handle emergency situations that may arise from allegations of sexual harassment. As discussed above, the final regulations revise the language in § 106.44(c) to add the phrase ‘‘arising from the allegations of sexual harassment,’’ which clarifies that the facts or circumstances that justify a removal might not be the same as the sexual harassment allegations but might ‘‘arise from’’ those allegations. The Department disagrees that a postremoval challenge is unnecessary because the individualized safety and risk analysis already determined that removal was justified; the purpose of a true emergency removal is to authorize a recipient to respond to immediate threats even without providing the respondent with pre-deprivation notice and opportunity to be heard because this permits a recipient to protect the one or more persons whose physical health or safety may be in jeopardy. The respondent’s first opportunity to challenge the removal (e.g., by presenting the recipient with facts that might contradict the existence of an immediate threat to physical health or safety) might be after the recipient already reached its determination that removal is justified, and due process principles (whether constitutional due process of law, or fundamental fairness) require that the respondent be given notice and opportunity to be heard.968 Section 106.44(c) does not preclude a recipient from convening a threat assessment team to review the recipient’s emergency removal determination, but § 106.44(c) still requires the recipient to give the respondent post-removal notice and opportunity to challenge the removal decision. The Department expects the emergency removal process to be used in genuine emergency situations, but when it is used, recipients must provide an opportunity for a removed individual to challenge their removal immediately after the removal. The term ‘‘immediately’’ will be fact-specific, but is generally understood in the context of a legal process as occurring without delay, as soon as possible, given the circumstances. ‘‘Immediately’’ does not require a time frame of ‘‘minutes’’ because in the context of a legal proceeding the term immediately is not generally understood to mean an absolute exclusion of any time interval. 968 Goss, 419 U.S. at 580 (‘‘At the very minimum, therefore, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing.’’). E:\FR\FM\19MYR2.SGM 19MYR2 30230 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations ‘‘Immediately’’ does not imply the same time frame as the ‘‘reasonably prompt’’ time frames that govern the grievance process under § 106.45, because ‘‘immediately’’ suggests a more pressing, urgent time frame than ‘‘reasonable promptness.’’ This is appropriate because § 106.44(c) does not require a recipient to provide the respondent with any pre-deprivation notice or opportunity to be heard, so requiring post-deprivation due process protections ‘‘immediately’’ after the deprivation ensures that a respondent’s interest in access to education is appropriately balanced against the recipient’s interest in quickly addressing an emergency situation posed by a respondent’s risk to the physical health or safety of any student or other individual. We decline to require the post-removal notice and challenge to be given ‘‘as soon as reasonably practicable’’ instead of ‘‘immediately’’ because that would provide the respondent less adequate post-deprivation due process protections. Changes: None. No Stated Time Limitation for the Emergency Removal Comments: Some commenters viewed the absence of a time limitation with respect to how long an emergency removal could be as a source of harm to both respondents and complainants. Commenters asserted that, given how long the grievance process could take, students and employees removed from their education or employment until conclusion of the grievance process could experience considerable negative consequences. Commenters argued that the proposed rules should not encourage emergency removal, particularly not when other, less severe measures could be taken to ensure safety pending an investigation. Commenters proposed limiting an emergency removal to seven days, during which time an institution would determine in writing that an immediate threat to health or safety exists, warranting the emergency action, and if no such determination is reached, the respondent would be reinstated. Discussion: The final regulations require schools to offer supportive measures to complainants and permit recipients to offer supportive measures to respondents. We decline to require emergency removals in every situation where a formal complaint triggers a grievance process. The grievance process is designed to conclude promptly, and the issue of whether a respondent needs to be removed on an emergency basis should not arise in VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 most cases, since § 106.44(c) applies only where emergency removal is justified by an immediate threat to the physical health or safety of any student or other individual. Revised § 106.44(a), and revised § 106.45(b)(1)(i), prohibit a recipient from imposing against a respondent disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, without following the § 106.45 grievance process. Emergency removal under § 106.44(c) constitutes an exception to those prohibitions, and should not be undertaken in every situation where sexual harassment has been alleged. Rather, emergency removal is appropriate only when necessary to address imminent threats to a person’s physical health or safety arising from the allegations of sexual harassment. The Department declines to put any temporal limitation on the length of a valid emergency removal, although nothing in the final regulations precludes a recipient from periodically assessing whether an immediate threat to physical health or safety is ongoing or has dissipated. Changes: None. ‘‘Removal’’ Comments: Commenters requested clarification in the following regards: Would removing a respondent from a class, or changing the respondent’s class schedule, before a grievance process is completed (or where no formal complaint has initiated a grievance process), require a recipient to undertake emergency removal procedures? Under § 106.44(c) must a recipient remove a respondent from the entirety of recipient’s education program or activity, or may a recipient choose to only remove the respondent to the extent the individual poses an emergency in a specific setting, i.e., a certain class, student organization, living space, athletic team, etc.? Commenters argued that the § 106.30 definition of supportive measures and § 106.44(c) regarding emergency removal could lead to confusion among recipients about what steps they can take to protect a complainant’s safety and access to education prior to conclusion of a grievance process, or where no formal complaint has initiated a grievance process. One commenter suggested modifying this provision to expressly permit partial exclusion from programs or activities by adding the phrase ‘‘or any part thereof.’’ Commenters argued that § 106.44(c) would make it too difficult to remove a respondent before the completion of a disciplinary proceeding absent an PO 00000 Frm 00206 Fmt 4701 Sfmt 4700 extreme emergency. Commenters suggested that the Department should consider a more nuanced approach that provides schools with a range of options, short of emergency removal, that are proportionate to the alleged misconduct and meet the needs of the victim. Commenters requested that § 106.44(c) be revised to allow an appropriate administrator (such as a dean of students), in consultation with the Title IX Coordinator, discretion to determine the appropriateness of an emergency removal based on a standard that is in the best interest of the institution. Some commenters argued that even where an emergency threat exists, § 106.44(c) does not provide a time frame in which the recipient must make this emergency removal decision, leaving survivors vulnerable to daily contact with a dangerous respondent. Commenters asserted that recipients should be able to remove a respondent from a dorm or shared classes before conclusion of a disciplinary proceeding, particularly when it is clear that the survivor’s education will be harmed otherwise. Commenters asserted that 80 percent of rapes and sexual assaults are committed by someone known to the victim,969 which means that it is highly likely that the victim and perpetrator share a dormitory, a class, or other aspect of the school environment and that § 106.44(c) (combined with the § 106.30 definition of ‘‘supportive measures’’) leaves victims in continual contact with their harasser, thereby prioritizing the education of accused harassers over the education of survivors. Commenters argued that survivors should not have to wait until the end of a grievance process to be protected from seeing a perpetrator in class or on campus, and this provision would pressure survivors to file formal complaints when many survivors do not want a formal process for valid personal reasons, because a formal process would be the only avenue for ensuring that a ‘‘guilty’’ respondent will be suspended or expelled. Commenters recommended adding language to clarify that nothing shall prevent elementary and secondary schools from implementing an ‘‘alternate assignment’’ during the pendency of an investigation, provided that the same is otherwise permitted by law. One commenter suggested combining the emergency removal and supportive 969 Commenters cited: U.S. Dep’t. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Special Report: Rape and Sexual Assault Victimization Among College-Age Females, 1995– 2013 (2014). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations measures provisions into a single ‘‘interim measures’’ provision. Discussion: The Department believes the § 106.30 definition of supportive measures, and § 106.44(c) governing emergency removals, in the context of the revised requirements in § 106.44(a) and § 106.45(b)(1)(i) (requiring recipients to offer supportive measures to complainants while not imposing against respondents disciplinary sanctions or other actions that are not ‘‘supportive measures’’) provide a wide range and variety of options for a recipient to preserve equal educational access, protect the safety of all parties, deter sexual harassment, and respond to emergency situations. Under § 106.30, a supportive measure must not be punitive or disciplinary, but may burden a respondent as long as the burden is not unreasonable. As discussed in the ‘‘Supportive Measures’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, whether a certain measure unreasonably burdens a respondent requires a factspecific inquiry. Changing a respondent’s class schedule or changing a respondent’s housing or dining hall assignment may be a permissible supportive measure depending on the circumstances. By contrast, removing a respondent from the entirety of the recipient’s education programs and activities, or removing a respondent from one or more of the recipient’s education programs or activities (such as removal from a team, club, or extracurricular activity), likely would constitute an unreasonable burden on the respondent or be deemed disciplinary or punitive, and therefore would not likely qualify as a supportive measure. Until or unless the recipient has followed the § 106.45 grievance process (at which point the recipient may impose any disciplinary sanction or other punitive or adverse consequence of the recipient’s choice), removals of the respondent from the recipient’s education program or activity 970 need to meet the standards 970 As discussed in the ‘‘Section 106.44(a) ‘education program or activity’ ’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble, the Title IX statute and existing regulations provide definitions of ‘‘program or activity’’ that apply to interpretation of a recipient’s ‘‘education program or activity’’ in these final regulations, and we have clarified in § 106.44(a) that for purposes of responding to sexual harassment a recipient’s education program or activity includes circumstances over which the recipient exercised substantial control. 20 U.S.C. 1687; 34 CFR 106.2(h); 34 CFR 106.2(i) (defining ‘‘recipient’’); 34 CFR 106.31(a) (referring to ‘‘any academic, extracurricular, research, occupational training, or other education program or activity operated by a VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 for emergency removals under § 106.44(c).971 Supportive measures provide one avenue for recipients to protect the safety of parties and permissibly may affect and even burden the respondent, so long as the burden is not unreasonable. Supportive measures may include, for example, mutual or unilateral restrictions on contact between parties or re-arranging class schedules or classroom seating assignments, so complainants need not remain in constant or daily contact with a respondent while an investigation is pending, or even where no grievance process is pending. Whether an elementary and secondary school recipient may implement an ‘‘alternate assignment’’ during the pendency of an investigation (or without a grievance process pending), in circumstances that do not justify an emergency removal, when such action is otherwise permitted by law, depends on whether the alternate assignment constitutes a disciplinary or punitive action or unreasonably burdens the respondent (in which case it would not qualify as a supportive measure as defined in § 106.30).972 Whether an action ‘‘unreasonably burdens’’ a respondent is fact-specific, but should be evaluated in light of the nature and purpose of the benefits, opportunities, programs and activities, of the recipient in which the respondent is participating, and the extent to which an action taken as a supportive measure would result in the respondent forgoing benefits, opportunities, programs, or activities in which the respondent has been participating. An alternate assignment may, of course, be appropriate when an immediate threat justifies an emergency removal of the respondent because under the final regulations, emergency removal may justify total removal from the recipient’s education program or activity, so offering the respondent alternate assignment is included within the potential scope of an emergency removal. Under § 106.44(a), the recipient must offer supportive measures to the complainant, and if a recipient which receives Federal financial assistance’’). 971 Cf. § 106.44(d) (a non-student employeerespondent may be placed on administrative leave (with or without pay) while a § 106.45 grievance process is pending, without needing to meet the emergency removal standards in § 106.44(c)). 972 For discussion of alternate assignments when the respondent is a non-student employee, see the ‘‘Section 106.44(d) Administrative Leave’’ subsection of the ‘‘Additional Rules Governing Recipients’ Responses to Sexual Harassment’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble. PO 00000 Frm 00207 Fmt 4701 Sfmt 4700 30231 particular action—such as alternate assignment—does not, under specific circumstances, meet the definition of a supportive measure, then the recipient must carefully consider other individualized services, reasonably available, designed to restore or preserve the complainant’s equal educational access and/or protect safety and deter sexual harassment, that the recipient will offer to the complainant. We do not believe that the final regulations incentivize complainants to file formal complaints when they otherwise do not wish to do so just to avoid contacting or communicating with a respondent, because supportive measures permit a range of actions that are non-punitive, non-disciplinary, and do not unreasonably burden a respondent, such that a recipient often may implement supportive measures that do meet a complainant’s desire to avoid contact with the respondent. For example, if a complainant and respondent are both members of the same athletic team, a carefully crafted unilateral no-contact order could restrict a respondent from communicating directly with the complainant so that even when the parties practice on the same field together or attend the same team functions together, the respondent is not permitted to directly communicate with the complainant. Further, the recipient may counsel the respondent about the recipient’s antisexual harassment policy and antiretaliation policy, and instruct the team coaches, trainers, and staff to monitor the respondent, to help enforce the nocontact order and deter any sexual harassment or retaliation by the respondent against the complainant. Further, nothing in the final regulations, or in the definition of supportive measures in § 106.30, precludes a recipient from altering the nature of supportive measures provided, if circumstances change. For example, if the Title IX Coordinator initially implements a supportive measure prohibiting the respondent from directly communicating with the complainant, but the parties later each independently decide to take the same lab class, the Title IX Coordinator may, at the complainant’s request, reevaluate the circumstances and offer the complainant additional supportive measures, such as requiring the professor teaching the lab class to ensure that the complainant and respondent are not ‘‘teamed up’’ or assigned to sit near each other or assigned as to be ‘‘partners,’’ during or as part of the lab class. Commenters correctly observe that the final regulations prohibit suspending or E:\FR\FM\19MYR2.SGM 19MYR2 30232 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations expelling a respondent without first following the § 106.45 grievance process, or unless an emergency situation justices removal from the recipient’s education program or activity (which removal may, or may not, be labeled a ‘‘suspension’’ or ‘‘expulsion’’ by the recipient). We do not believe this constitutes unfairness to survivors, or poses a threat to survivors’ equal educational access, because there are many actions that meet the definition of supportive measures that may restore or preserve a complainant’s equal access, protect a complainant’s safety, and/or deter sexual harassment without punishing or unreasonably burdening a respondent. As discussed in the ‘‘Section 106.45(b)(1)(iv) Presumption of Non-Responsibility’’ subsection of the ‘‘General Requirements for § 106.45 Grievance Process’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, refraining from treating people accused of wrongdoing as responsible for the wrongdoing prior to evidence proving the person is responsible is a fundamental tenet of American justice. These final regulations appropriately ensure that respondents are not unfairly, prematurely treated as responsible before being proved responsible, with certain reasonable exceptions: Emergency removals, administrative leave for employees, and informal resolution of a formal complaint that resolves the allegations without a full investigation and adjudication but may result in consequences for a respondent including suspension or expulsion. In this way, the final regulations ensure that every complainant is offered supportive measures designed to preserve their equal educational access and protect their safety (even without any proof of the merits of the complainant’s allegations) consistent with due process protections and fundamental fairness. As an example, a complainant understandably may desire as a supportive measure the ability to avoid being in the same classroom with a respondent, whether or not the complainant wants to file a formal complaint. A school may conclude that transferring the respondent to a different section of that class (e.g., that meets on a different day or different time than the class section in which the complainant and respondent are enrolled) is a reasonably available supportive measure that preserves the complainant’s equal access and protects the complainant’s safety or deters sexual harassment, while not constituting an unreasonable burden on the respondent (because the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 respondent is still able to take that same class and earn the same credits toward graduation, for instance). If, on the other hand, that class in which both parties are enrolled does not have alternative sections that meet at different times, and precluding the respondent from completing that class would delay the respondent’s progression toward graduation, then the school may determinate that requiring the respondent to drop that class would constitute an unreasonable burden on the respondent and would not quality as a supportive measure, although granting the complainant an approved withdrawal from that class with permission to take the class in the future, would of course constitute a permissible supportive measure for the recipient to offer the complainant. Alternatively in such a circumstance (where the complainant, like the respondent, cannot withdraw from that class and take it later without delaying progress toward graduation), the school may offer the complainant as a supportive measure, for example, a oneway no contact order that prohibits the respondent from communicating with the complainant and assigns the respondent to sit across the classroom from the complainant. As such an example shows, these final regulations allow, and require, a recipient to carefully consider the specific facts and circumstances unique to each situation to craft supportive measures to help a complainant without prematurely penalizing a respondent. The Department does not believe it is necessary or appropriate to require a time frame for when a recipient must undertake an emergency removal, because the risk arising from the sexual harassment allegations that may justify a removal may arise at any time; further, § 106.44(a) requires a recipient to respond ‘‘promptly’’ to sexual harassment, and if an emergency removal is a necessary part of a recipient’s non-deliberately indifferent response then such a response must be prompt. We reiterate that emergency removal is not about reaching factual conclusions about whether the respondent is responsible for the underlying sexual harassment allegations. Emergency removal is about determining whether an immediate threat arising out of the sexual harassment allegations justifies removal of the respondent. We appreciate the opportunity to clarify that, where the standards for emergency removal are met under § 106.44(c), the recipient has discretion whether to remove the respondent from all the recipient’s education programs PO 00000 Frm 00208 Fmt 4701 Sfmt 4700 and activities, or to narrow the removal to certain classes, teams, clubs, organizations, or activities. We decline to add the phrase ‘‘or any part thereof’’ to this provision because a ‘‘part of’’ a program may not be readily understood, and we believe the authority to exclude entirely includes the lesser authority to exclude partially. Section 106.44(a) and § 106.45(b)(1)(i) forbid a recipient from imposing disciplinary sanctions (or other actions that are not supportive measures) on a respondent without first following a grievance process that complies with § 106.45. We reiterate that a § 106.44(c) emergency removal may be appropriate whether or not a grievance process is underway, and that the purpose of an emergency removal is to protect the physical health or safety of any student or other individual to whom the respondent poses an immediate threat, arising from allegations of sexual harassment, not to impose an interim suspension or expulsion on a respondent, or penalize a respondent by suspending the respondent from, for instance, playing on a sports team or holding a student government position, while a grievance process is pending. The final regulations respect complainants’ autonomy and understand that not every complainant wishes to participate in a grievance process, but a complainant’s choice not to file a formal complaint or not to participate in a grievance process does not permit a recipient to bypass a grievance process and suspend or expel (or otherwise discipline, penalize, or unreasonably burden) a respondent accused of sexual harassment. An emergency removal under § 106.44(c) separates a respondent from educational opportunities and benefits, and is permissible only when the high threshold of an immediate threat to a person’s physical health or safety justifies the removal. Because the purposes of, and conditions for, ‘‘supportive measures’’ as defined in § 106.30 differ from the purposes of, and conditions for, an emergency removal under § 106.44(c), we decline to combine these provisions. Both provisions, and the final regulations as a whole, do not prioritize the educational needs of a respondent over a complainant, or vice versa, but aim to ensure that complainants receive a prompt, supportive response from a recipient, respondents are treated fairly, and recipients retain latitude to address emergency situations that may arise. Changes: None. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations ‘‘Individualized Safety and Risk Analysis’’ Comments: Many commenters argued that the lack of guidance in § 106.44(c) on the requirements for conducting the ‘‘individualized safety and risk analysis’’ is confusing, and should be better defined because it could lead to inconsistent results from school to school, county to county, and State to State. Some commenters expressed overall support for this provision, but argued that the power of removal should not be wielded without careful consideration, and requested clarity about who would undertake the risk analysis (e.g., an internal or external individual on behalf of a recipient). Other commenters stated that § 106.44(c) should list factors to consider in the required safety and risk analysis including: whether violence was alleged (which commenters asserted is rare in cases involving alleged incapacitation), how long the complainant took to file a complaint, whether the complainant has reported the allegations to the police, and whether there are other, less restrictive measures that could be taken. Commenters argued that the risk assessment requirement may prevent the removal of respondents who are in fact dangerous because context and other nuances may not be accounted for in the assessment. One commenter stated that the § 106.44(c) safety and risk analysis requirements are ‘‘good, but sometimes not realistic’’ because threat assessment teams do not meet daily, and it is sometimes necessary to decide a removal in a matter of hours. Other commenters stated some recipients have already incorporated this sort of threat assessment into their decision matrix because postsecondary institutions are obligated to take reasonable steps to address dangers or threats to their students. Some commenters were concerned that institutions lack sufficient resources to properly conduct the required safety and risk analysis, that institutions lack the proper tools to conduct assessments calibrated to the age and developmental issues of the respondent, and that institutions lack the training and knowledge to properly implement such assessments. Commenters asserted that this provision would require institutions to train employees to conduct an individualized safety and risk analysis before removing students on an emergency basis, but that such assessments are rarely within the capacity or expertise of a single employee, and thus may require a VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 committee or task force dedicated for this purpose. Discussion: Recipients are entitled to use § 106.44(c) to remove a respondent on an emergency basis, only where there is an immediate threat to the physical health or safety of any student or other individual. The ‘‘individualized safety or risk analysis’’ requirement ensures that the recipient should not remove a respondent from the recipient’s education program or activity pursuant to § 106.44(c) unless there is more than a generalized, hypothetical, or speculative belief that the respondent may pose a risk to someone’s physical health or safety. The Department believes that the immediate threat to physical health or safety threshold for justifying a removal sufficiently restricts § 106.44(c) to permitting only emergency removals and believes that further describing what might constitute an emergency would undermine the purpose of this provision, which is to set a high threshold for emergency removal yet ensure that the provision will apply to the variety of circumstances that could present such an emergency. The Department also believes that the final regulations adequately protect respondents, since in cases where the recipient removes a respondent, the recipient must follow appropriate procedures, including bearing the burden of demonstrating that the removal meets the threshold specified by the final regulations, based on a factual, individualized safety and risk analysis. We understand commenters’ concerns that the individualized, fact-based nature of an emergency removal assessment may lead to different results from school to school or State to State, but different results may be reasonable based on the unique circumstances presented in individual situations. Because the safety and risk analysis under § 106.44(c) must be ‘‘individualized,’’ the analysis cannot be based on general assumptions about sex, or research that purports to profile characteristics of sex offense perpetrators, or statistical data about the frequency or infrequency of false or unfounded sexual misconduct allegations. The safety and risk analysis must be individualized with respect to the particular respondent and must examine the circumstances ‘‘arising from the allegations of sexual harassment’’ giving rise to an immediate threat to a person’s physical health or safety. These circumstances may include factors such as whether violence was allegedly involved in the conduct constituting sexual harassment, but could also include circumstances PO 00000 Frm 00209 Fmt 4701 Sfmt 4700 30233 that ‘‘arise from’’ the allegations yet do not constitute the alleged conduct itself; for example, a respondent could pose an immediate threat of physical self-harm in reaction to being accused of sexual harassment. For a respondent to be removed on an emergency basis, the school must determine that an immediate threat exists, and that the threat justifies removal. Section 106.44(c) does not limit the factors that a recipient may consider in reaching that determination. We appreciate commenters’ concerns that performing safety and risk analyses may require a recipient to expend resources or train employees, but without an individualized safety and risk analysis a recipient’s decision to remove a respondent might be arbitrary, and would fail to apprise the respondent of the basis for the recipient’s removal decision so that the respondent has an opportunity to challenge the decision. Procedural due process of law and fundamental fairness require that a respondent deprived of an educational benefit be given notice and opportunity to contest the deprivation; 973 without knowing the individualized reasons why a recipient determined that the respondent posed a threat to someone’s physical health or safety, the respondent cannot assess a basis for challenging the recipient’s removal decision. Recipients may choose to provide specialized training to employees or convene interdisciplinary threat assessment teams, or be required to take such actions under other laws, and § 106.44(c) leaves recipients flexibility to decide how to conduct an individualized safety and risk analysis, as well as who will conduct the analysis. Changes: None. ‘‘Provides the Respondent With Notice and an Opportunity To Challenge the Decision Immediately Following the Removal’’ Comments: One commenter stated that during any emergency removal hearing, schools should be required to share all available evidence with the respondent, permit that person an opportunity to be heard, and allow the respondent’s advisor to cross-examine any witnesses. According to the commenter, if these full procedural rights are not extended, this provision would create a loophole that allows emergency measures to effectively replace a full grievance process. Commenters also argued that a recipient’s emergency removal decisions 973 See the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30234 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations would often be hastily made, and that recipients would ignore requirements that a removed student be given the opportunity to review or challenge the decision made by the recipient. Commenters argued that § 106.44(c) should include express language safeguarding students against abusive practices during the challenge procedure. One commenter suggested adding the word ‘‘meaningful’’ so the respondent would have ‘‘a meaningful opportunity’’ to challenge the removal decision, asserting that certain institutions of higher education in California have not consistently given respondents meaningful opportunities to ‘‘make their case.’’ While supportive of § 106.44(c), one commenter suggested modifying this provision to require the recipient to send the respondent written notice of the specific facts that supported the recipient’s decision to remove the student, so the respondent can meaningfully challenge the removal decision. Some commenters asserted that if the respondent has a right to challenge the emergency removal, the recipient must offer an equitable opportunity for the complainant to contest an overturned removal or participate in the respondent’s challenge process. Other commenters asked whether § 106.44(c) requires, or allows, a recipient to notify the complainant that a respondent has been removed under this provision, that a respondent is challenging a removal decision, or that a removal decision has been overturned by the recipient after a respondent’s challenge. Commenters argued that § 106.44(c) would also effectively mandate that an institution’s employees must be trained to conduct hearings or other undefined post-removal procedures in the event that a respondent exercises the right to challenge the emergency removal. Commenters argued that this burden likely would require a dedicated officer or committee to carry out procedural obligations that did not previously exist, and these burdens were not contemplated at the time of the recipient’s acceptance of the Federal funding. Commenters argued that § 106.44(c) would provide rights to atwill employees that are otherwise unavailable, restricting employment actions that are normally within the discretion of an employer. Commenters requested clarification about the procedures for challenging a removal decision, such as: Whether a respondent’s opportunity challenge the emergency removal means the recipient must, or may, use processes under § 106.45 to meet its obligations, including whether evidence must be VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 gathered, witnesses must be interviewed, or a live hearing with cross-examination must be held; whether the recipient, or respondent, will bear the burden of proof that the removal decision was correct or incorrect; whether the recipient must, or may, involve the complainant in the challenge procedure; whether the recipient must, or may, use the investigators and decision-makers that have been trained pursuant to § 106.45 to conduct the post-removal challenge procedure; and whether the determinations about an emergency removal must, or may, influence a determination regarding responsibility during a grievance process under § 106.45. Discussion: The Department disagrees that § 106.44(c) poses a possible loophole through which recipients may bypass giving respondents the due process protections in the § 106.45 grievance process. The threshold for an emergency removal under § 106.44(c) is adequately high to prevent recipients from using emergency removal as a pretense for imposing interim suspensions and expulsions. We do not believe it is necessary to revise § 106.44(c) to prevent recipients from imposing ‘‘abusive’’ procedures on respondents; recipients will be held accountable for reaching removal decisions under the standards of § 106.44(c), giving recipients adequate incentive to give respondents the immediate notice and challenge opportunity following a removal decision. We do not believe that recipients will make emergency removal decisions ‘‘hastily,’’ and a respondent who believes a recipient has violated these final regulations may file a complaint with OCR. The Department does not want to prescribe more than minimal requirements on recipients for purposes of responding to emergency situations. We decline to require written notice to the respondent because minimal due process requires some kind of notice, and compliance with a notice requirement suffices for a recipient’s handling of an emergency situation.974 We decline to add the modifier ‘‘meaningful’’ before ‘‘opportunity’’ because the basic due process requirement of an opportunity to be heard entails an opportunity that is appropriate under the circumstances, 974 E.g., Goss, 419 U.S. at 578–79 (holding that in the public school context ‘‘the interpretation and application of the Due Process Clause are intensely practical matters’’ that require at a minimum notice and ‘‘opportunity for hearing appropriate to the nature of the case’’) (internal quotation marks and citations omitted). PO 00000 Frm 00210 Fmt 4701 Sfmt 4700 which ensures a meaningful opportunity.975 While a recipient has discretion (subject to FERPA and other laws restricting the nonconsensual disclosure of personally identifiable information from education records) to notify the complainant of removal decisions regarding a respondent, or post-removal challenges by a respondent, we do not require the complainant to receive notice under § 106.44(c) because not every emergency removal directly relates to the complainant. As discussed above, circumstances that justify removal must be ‘‘arising from the allegations of sexual harassment’’ yet may consist of a threat to the physical health or safety of a person other than the complainant (for example, where the respondent has threatened self-harm).976 The Department disagrees that § 106.44(c) requires a recipient to go through excessively burdensome procedures prior to removing a respondent on an emergency basis. The seriousness of the consequence of a recipient’s decision to removal of a student or employee, without a hearing beforehand, naturally requires the school to meet a high threshold (i.e., an individualized safety and risk assessment shows that the respondent poses an immediate threat to a person’s physical health or safety justifying removal). At the same time, § 106.44(c) leaves recipients wide latitude to select the procedures for giving notice and opportunity to challenge a removal. A recipient owes a general duty under § 106.44(a) to respond to sexual harassment in a manner that is not deliberately indifferent. Where removing an individual on an emergency basis is necessary to avoid acting with deliberate indifference, a recipient must meet the requirements in § 106.44(c). The Department disagrees that § 106.44(c) imposes requirements on recipients that violate the Spending Clause, because recipients understand that compliance with Title IX will 975 Id. 976 As discussed in the ‘‘Section 106.6(e) FERPA’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble, the complainant has a right to know the nature of any disciplinary sanctions imposed on a respondent after the recipient has found the respondent to be responsible for sexual harassment alleged by the complainant, because the disciplinary sanctions are directly related to the allegations made by the complainant. By contrast, emergency removal of a respondent does not involve a recipient’s determination that the respondent committed sexual harassment as alleged by the complainant, and information about the emergency removal is not necessarily directly related to the complainant. Thus, FERPA (or other privacy laws) may restrict a recipient’s discretion to disclose information relating to the emergency removal. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations require dedication of personnel, time, and resources.977 Because this provision does not prescribe specific post-removal challenge procedures, we do not believe recipients face significant burdens in training personnel to comply with new or unknown requirements; this provision ensures that the essential features of due process of law, or fundamental fairness, are provided to the respondent (i.e., notice and opportunity to be heard), and we believe that recipients are already familiar with these basic requirements of due process (for public institutions) or fair process (for private institutions). In response to commenters’ clarification requests, the post-removal procedure may, but need not, utilize some or all the procedures prescribed in § 106.45, such as providing for collection and presentation of evidence. Nothing in § 106.44(c) or the final regulations precludes a recipient from placing the burden of proof on the respondent to show that the removal decision was incorrect. Section 106.44(c) does not preclude a recipient from using Title IX personnel trained under § 106.45(b)(1)(iii) to make the emergency removal decision or conduct a post-removal challenge proceeding, but if involvement with the emergency removal process results in bias or conflict of interest for or against the complainant or respondent, § 106.45(b)(1)(iii) would preclude such personnel from serving in those roles during a grievance process.978 Facts and evidence relied on during an emergency removal decision and post-removal challenge procedure may be relevant in a § 106.45 grievance process against the respondent but would need to meet the requirements in § 106.45; for example, a witness who provided information to a postsecondary institution recipient for use in reaching an emergency removal decision would need to appear and be cross-examined at a live hearing under § 106.45(b)(6)(i) in order for the witness’s statement to be relied on by the decision-maker. Changes: None. How OCR Will Enforce the Provision Comments: Commenters requested clarification about how OCR would enforce § 106.44(c), including what standard OCR would use in deciding 977 See discussion under the ‘‘Spending Clause’’ subsection of the ‘‘Miscellaneous’’ section of this preamble. 978 Section 106.45(b)(1)(iii) requires all Title IX Coordinators, investigators, decision-makers, and persons who facilitate an informal resolution to be free from bias or conflicts of interest for or against complainants or respondents generally, or for or against any individual complainant or respondent. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 whether a removal was proper; whether OCR would only find a violation if the recipient violates § 106.44(c) with deliberate indifference; whether violating this provision constitutes a violation of Title IX; whether OCR would defer to the determination reached by the recipient even if OCR would have reached a different determination based on the independent weighing of the evidence; whether a harmless error standard would apply to OCR’s evaluation of a proper removal decision and only require reversing the recipient’s removal decision if OCR thinks the outcome was affected by a recipient’s violation of § 106.44(c); and whether OCR, or the recipient, would bear the burden of showing the correctness or incorrectness of the removal decision or the burden of showing that any violation affected the outcome or not. Discussion: OCR will enforce this provision fully and consistently with other enforcement practices. OCR will not apply a harmless error standard to violations of Title IX, and will fulfill its role to ensure compliance with Title IX and these final regulations regardless of whether a recipient’s non-compliance is the result of the recipient’s deliberate indifference or other level of intentionality. Recipients whose removal decisions fail to comply with § 106.44(c) may be found by OCR to be in violation of these final regulations. As discussed above, a recipient may need to undertake an emergency removal under § 106.44(c) in order to meet its duty not to be deliberately indifferent to sexual harassment. However, OCR will not second guess the decisions made under a recipient’s exercise of discretion so long as those decisions comply with the terms of § 106.44(c). For example, OCR may assess whether a recipient’s failure to undertake an individualized risk assessment was deliberately indifferent under § 106.44(a), but OCR will not second guess a recipient’s removal decision based on whether OCR would have weighed the evidence of risk differently from how the recipient weighed such evidence. While not every regulatory requirement purports to represent a definition of sex discrimination, Title IX regulations are designed to make it more likely that a recipient does not violate Title IX’s nondiscrimination mandate, and the Department will vigorously enforce Title IX and these final regulations. Changes: None. Section 106.44(d) Administrative Leave Comments: Some commenters expressed support for § 106.44(d), PO 00000 Frm 00211 Fmt 4701 Sfmt 4700 30235 asserting that this provision appropriately recognizes that cases involving employees as respondents, especially faculty or administrative staff, should have different frameworks than cases involving students. Some commenters asserted that it is unclear what standard a recipient must satisfy before it may place an employee on administrative leave. Commenters recommended giving discretion to an elementary and secondary school recipient to implement an alternate assignment (such as administrative reassignment to home) for staff during the pendency of an investigation, provided the same is otherwise permitted by law. Commenters wondered how the Department defines ‘‘administrative leave,’’ whether § 106.44(d) applies to paid or unpaid leave, and whether that would depend on how existing recipient employee conduct codes or employment contracts address the issue of paid or unpaid leave. Commenters asked whether an employee-respondent placed on leave may collect back pay from the recipient, if the grievance process determines there was insufficient evidence of misconduct. One commenter argued that administrative leave must include pay and benefits, as well as lodging if the employee-respondent resided in campus housing. One commenter asserted that treating non-student employees differently than students or student-employees under § 106.44(d) constitutes discrimination. Another commenter questioned why recipients can deny employees paychecks for months until the conclusion of a formal grievance process, but give immediate due process for students to challenge an emergency removal; the commenter asserted that the recipient could simply provide a free semester of college to cover any loss to a student yet the proposed rules do not require a recipient to give back pay to an employee. Some commenters argued that § 106.44(c) emergency removal requirements to undertake an individualized safety and risk analysis and provide notice and an opportunity to challenge should also apply to administrative leave so that employees receive the same due process protections as students. Commenters argued that school investigations can take several months and that being on leave, especially without pay, can be a severe hardship for many employees. Commenters asserted that the Department should explicitly require recipients to secure a removed employee’s personal property and be responsible for any damage occurring to E:\FR\FM\19MYR2.SGM 19MYR2 30236 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the property before the removed employee can regain custody. Commenters asserted that § 106.44(d) should apply to student-employee respondents and should be revised to limit the provision to administrative leave ‘‘from the person’s employment,’’ so that a student-employee respondent could still have access to the recipient’s educational programs but the recipient would not be forced to continue an active employment relationship with that respondent during the investigation. For example, commenters argued, a recipient should not be compelled to allow a teaching assistant who has been accused of sexual harassment to continue teaching while the accusations are being investigated. Commenters argued that § 106.44(d) should reference disability laws that protect employees parallel to the references to disability laws in § 106.44(c). Discussion: The Department appreciates the support from commenters for § 106.44(d), giving a recipient discretion to place respondents who are employees on administrative leave during the pendency of an investigation. We acknowledge commenters’ concerns that § 106.44(d) does not specify conditions justifying administrative leave; however, we desire to give recipients flexibility to decide when administrative leave is appropriate. If State law allows or requires a school district to place an accused employee on ‘‘reassignment to home’’ or alternative assignment, § 106.44(d) does not preclude such action while an investigation under § 106.45 into sexual harassment allegations against the employee is pending. The Department does not define ‘‘administrative leave’’ in this provision, but administrative leave is generally understood as temporary separation from a person’s job, often with pay and benefits intact. However, these final regulations do not dictate whether administrative leave during the pendency of an investigation under § 106.45 must be with pay (or benefits) or without pay (or benefits). With respect to the terms of administrative leave, recipients who owe obligations to employees under State laws or contractual arrangements may comply with those obligations without violating § 106.44(d). Similarly, these final regulations do not require back pay to an employee when the pending investigation results in a determination that the employee was not responsible. Further, this provision does not require a recipient to cover the costs of lodging VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 for, or to secure the personal property of, an employee placed on administrative leave, although the final regulations do not preclude a recipient from taking such actions. We note that these final regulations similarly allow— but do not require—a recipient to repay a respondent for expenses incurred as a result of an emergency removal or to take actions to secure personal property during a removal under § 106.44(c) (whether the removed respondent was a student, or an employee). We also note that § 106.6(f) provides that nothing in this part may be read in derogation of an individual’s rights, including an employee’s rights, under Title VII 979 and that other laws such as Title VII may dictate whether administrative leave should be paid or unpaid and whether a respondent should be repaid for expenses incurred as a result of any of the recipient’s actions. The Department acknowledges that being placed on administrative leave— especially if the leave is without pay— may constitute a hardship for the employee. However, no respondent who is an employee may be kept on administrative leave indefinitely, because § 106.44(d) does not authorize administrative leave unless a § 106.45 grievance process has been initiated, and § 106.45(b)(1)(v) requires the grievance process to be concluded within a designated reasonably prompt time frame. As proposed in the NPRM, § 106.44(d) provided that a recipient may place a non-student employee respondent on administrative leave during the pendency of an investigation; this was intended to refer to an investigation conducted pursuant to the § 106.45 grievance process. To clarify this point, the Department replaces ‘‘an investigation’’ with ‘‘a grievance process that complies with § 106.45’’ in § 106.44(d) to make it clear that a recipient may place a non-student employee respondent on administrative leave during the pendency of a grievance process that complies with § 106.45. The Department also revised § 106.44(d) to provide that ‘‘nothing in this subpart’’ instead of ‘‘nothing in this section’’ precludes a recipient from placing a non-student employee respondent on administrative leave to clarify that § 106.44(d) applies to subpart D of Part 106 of Title 34 of the 979 For discussion of the revision to language in § 106.6(f) (i.e., stating in these final regulations that nothing in this part may be read in derogation of an individual’s rights instead of an employee’s rights, under Title VII), see the ‘‘Section 106.6(f) Title VII and Directed Question 3 (Application to Employees)’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. PO 00000 Frm 00212 Fmt 4701 Sfmt 4700 Code of Federal Regulations. This revision makes it clear that nothing in subpart D of Part 106 of Title, which concerns nondiscrimination on the basis of sex in education programs or activities receiving Federal financial assistance and which includes other provisions such as § 106.44 and § 106.45, precludes a recipient from placing a non-student employee respondent on administrative leave during the pendency of a grievance process that complies with § 106.45. The Department appreciates commenters’ suggestions that the same due process protections (notice and opportunity to challenge a removal) that apply to respondents under § 106.44(c) should apply to an employee placed on administrative leave under § 106.44(d). This is unnecessary, because § 106.44(c) applies to an emergency removal of any respondent. Any respondent (whether an employee, a student, or other person) who poses an immediate threat to the health or safety of any student or other individual may be removed from the recipient’s education program or activity on an emergency basis, where an individualized safety and risk analysis justifies the removal. Thus, respondents who are employees receive the same due process protections with respect to emergency removals (i.e., post-removal notice and opportunity to challenge the removal) as respondents who are students. The Department also clarifies that pursuant to § 106.44(d), a recipient may place a non-student employee respondent on administrative leave, even if the emergency removal provision in § 106.44(c) does not apply. With respect to student-employee respondents, we explain more fully, below, that these final regulations do not necessarily prohibit a recipient from placing a student-employee respondent on administrative leave if doing so does not violate other regulatory provisions. For example, placing a studentemployee respondent on administrative leave with pay may be permissible as a supportive measure, defined in § 106.30, for a complainant (for instance, to maintain the complainant’s equal educational access and/or to protect the complainant’s safety or deter sexual harassment) as long as that action meets the conditions that a supportive measure is not punitive, disciplinary, or unreasonably burdensome to the respondent. Whether a recipient considers placing a student-employee respondent on administrative leave as part of a non-deliberately indifferent response under § 106.44(a) is a decision that the Department will evaluate based on whether such a response is clearly E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations unreasonable in light of the known circumstances. The Department will interpret these final regulations in a manner that complements an employer’s obligations under Title VII, and nothing in these final regulations or in Part 106 of Title 34 of the Code of Federal Regulations may be read in derogation of any individual’s rights, including any employee’s rights, under Title VII, as explained in more detail in the ‘‘Section 106.6(f) Title VII and Directed Question 3 (Application to Employees)’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. Section 106.44(a) prohibits a recipient from imposing disciplinary sanctions against a respondent without following a grievance process that complies with § 106.45. Administrative leave without pay is generally considered disciplinary, and would likely be prohibited under § 106.44(a) in the absence of the § 106.44(d) administrative leave provision. The Department believes that while an investigation is pending, a recipient should have discretion to place an employee-respondent on any form of administrative leave the recipient deems appropriate, so that the recipient has flexibility to protect students from exposure to a potentially sexually abusive employee. Numerous commenters asserted that educator sexual misconduct is prevalent throughout elementary and secondary schools, and postsecondary institutions.980 For these reasons, the final regulations permit, but do not require, what may amount to an interim suspension of an employee-respondent (i.e., administrative leave without pay) even though the final regulations prohibit interim suspensions of studentrespondents. We reiterate that any respondent may be removed on an emergency basis under § 106.44(c). We do not believe that employees placed on administrative leave are denied sufficient due process under these circumstances, because in order for § 106.44(d) to apply, a § 106.45 grievance process must be underway, and that grievance process provides the respondent (and complainant) with clear, strong procedural protections designed to reach accurate outcomes, 980 E.g., Charol Shakeshaft, Educator Sexual Misconduct: A Synthesis of Existing Literature (2004) (prepared for the U.S. Dep’t. of Education) (ten percent of children were targets of educator sexual misconduct by the time they graduated from high school); National Academies of Science, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine 61 (Frasier F. Benya et al. eds., 2018) (describing the prevalence of faculty-on-student sexual harassment at the postsecondary level). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 including the right to conclusion of the grievance process within the recipient’s designated, reasonably prompt time frame. As previously explained, the Department revised § 106.44(d) to clarify that a recipient may place a nonstudent respondent on administrative leave during the pendency of a grievance process that complies with § 106.45. Commenters erroneously asserted that because § 106.44(d) applies only to ‘‘non-student employees,’’ a recipient is always precluded from placing an employee-respondent on administrative leave if the employee is also a student. We decline to make § 106.44(d) apply to student-employees or to change this provision to specify that administrative leave is ‘‘from the person’s employment.’’ Consistent with § 106.6(f), where an employee is not a student, we do not preclude a recipientemployer from placing a non-student employee on administrative leave during the pendency of a grievance process that complies with § 106.45. These final regulations do not prohibit a recipient from placing a studentemployee respondent on administrative leave if doing so does not violate other regulatory provisions. As discussed above, placing a student-employee respondent on administrative leave with pay may be permissible as a supportive measure, defined in § 106.30, and may be considered by the recipient as part of the recipient’s obligation to respond in a non-deliberately indifferent manner under § 106.44(a). Where a student is also employed by their school, college, or university, it is likely that the student depends on that employment in order to pay tuition, or that the employment is important to the student’s academic opportunities. Administrative leave may jeopardize a student-employee’s access to educational benefits and opportunities in a way that a nonstudent employee’s access to education is not jeopardized. Accordingly, administrative leave is not always appropriate for student-employees. There may be circumstances that justify administrative leave with pay for student-employees, and the specific facts of a particular matter will dictate whether a recipient’s response in placing a student-employee on administrative leave is permissible. For example, if a student-employee respondent works at a school cafeteria where the complainant usually eats, a recipient may determine that placing the student-employee respondent on administrative leave with pay, during the pendency of a grievance process that complies with § 106.45, will not PO 00000 Frm 00213 Fmt 4701 Sfmt 4700 30237 unreasonably burden the studentemployee respondent, or the recipient may determine that re-assigning the student-employee respondent to a different position during pendency of a § 106.45 grievance process, will not unreasonably burden the studentemployee respondent. If a recipient places a party who is a studentemployee on administrative leave with pay as a supportive measure, then such administrative leave must be nondisciplinary, non-punitive, not unreasonably burdensome, and otherwise satisfy the definition of supportive measures in § 106.30. With respect to a student-employee respondent, a recipient also may choose to take measures other than administrative leave that could constitute supportive measures for a complainant, designed to protect safety or deter sexual harassment without unreasonably burdening the respondent. For example, where an employee is also a recipient’s student, it is likely that the recipient has the ability to supervise the student-employee to ensure that any continued contact between the studentemployee respondent and other students occurs under monitored or supervised conditions (e.g., where the respondent is a teaching assistant), during the pendency of an investigation. If a recipient removes a respondent pursuant to § 106.44(c) after conducting an individualized safety and risk analysis and determining that an immediate threat to the physical health or safety of any students or other individuals justifies removal, then a recipient also may remove a studentemployee respondent from any employment opportunity that is part of the recipient’s education program or activity. The Department is persuaded by commenters who asserted that analogous disability protections should expressly apply for employeerespondents under § 106.44(d) as for respondents under the § 106.44(c) emergency removal provision. We have revised § 106.44(d) of the final regulations to state that this provision may not be construed to modify any rights under Section 504 or the ADA. Changes: We have revised § 106.44(d) to clarify that it will not be construed to modify Section 504 or the ADA.981 We also revised § 106.44(d) to clarify that nothing in subpart D of Part 106, Title 34 of the Code of Regulations, precludes 981 As discussed in the ‘‘Section 106.6(f) Title VII and Directed Question 3 (Application to Employees)’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble, we revised the reference to ‘‘this section’’ to ‘‘this subpart’’ in § 106.44(d). E:\FR\FM\19MYR2.SGM 19MYR2 30238 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations a recipient from placing a non-student employee respondent on administrative leave during the pendency of a grievance process that complies with § 106.45. Section 106.45 Recipient’s Response to Formal Complaints General Requirements for § 106.45 Grievance Process Section 106.45(a) Treatment of Complainants or Respondents Can Violate Title IX Comments: Commenters including students, professors, campus administrators, and attorneys, expressed appreciation and support for § 106.45(a). Some commenters asserted that § 106.45(a) is a welcome addition because in recent years, Federal judges have expressed concerns about how university treatment of respondents (or complainants) might run afoul of Title IX and contradict Title IX’s promise of gender equity. Some commenters noted that although Federal courts have not assumed that all unfair procedures depriving respondents of a fair process necessarily equate to sex discrimination,982 numerous Federal courts have identified plausible claims of an institutions’ sex discrimination against respondents, and commenters cited Federal cases 983 where courts noted sex discrimination may exist where an institution failed to investigate evidence that the complainant might also have committed sexual misconduct in the same case, credited only female witnesses, ignored exonerating evidence because of preconceived notions about how males and females behave, used gender-biased training materials that portray only men as sexual predators or only women as victims, or denied the respondent necessary statistical information to test allegations of gender bias. Other commenters gave examples of how they have observed sex-driven unfair treatment against respondents in 982 Commenters cited: Nokes v. Miami Univ., 1:17–CV–482, 2017 WL 3674910 (S.D. Ohio Aug. 25, 2017); Sahm v. Miami Univ., 110 F. Supp. 3d 774 (S.D. Ohio 2015); Bleiler v. Coll. of the Holy Cross, No. 1:11–CV–11541, 2013 WL 4714340 (D. Mass. Aug. 26, 2013). 983 Commenters cited: Doe v. Baum, 903 F.3d 575 (6th Cir. 2018); Doe v. Miami Univ., 882 F.3d 579 (6th Cir. 2018); Rossley v. Drake Univ., 342 F. Supp. 3d 904 (S.D. Iowa 2018); Doe v. Univ. of Miss., No. 3:16–CV–63, 2018 WL 3570229 (S.D. Miss. July 14, 2018); Doe v. Univ. of Pa., 270 F. Supp. 3d 799 (E.D. Pa. 2017); Doe v. Amherst Coll., 238 F. Supp. 3d 195 (D. Mass. 2017); Doe v. Williams Coll., No. 3:16–CV–30184 (D. Mass. Apr. 28, 2017); Saravanan v. Drexel Univ., No. 2:17–CV–03409, 2017 WL 5659821 (E.D. Pa. Nov. 24, 2017); Marshall v. Ind. Univ., No. 1:15–CV–00726, 2016 WL 4541431 (S.D. Ind. Aug. 31, 2016). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 campus Title IX proceedings. A few commenters pointed out that when a sexual harassment grievance process favors females over males in an attempt to be equitable to victims, the result is often that male victims of sexual harassment are not treated equitably; some commenters cited to statistics showing that similar percentages of men (5.3 percent) and women (5.6 percent) experience sexual violence other than rape each year,984 that about 14 percent of reported rape cases involve men or boys, one in six reported sexual assaults is against a boy, one in 25 reported sexual assaults is against a man,985 and that a survey of 27 colleges and universities revealed that 40.9 percent of undergraduate heterosexual males had experienced sexual harassment, intimate partner violence, or stalking, compared to 60.5 percent of undergraduate heterosexual females.986 Some commenters opined that the Department’s withdrawn 2011 Dear Colleague Letter contributed to more instances of universities applying grievance procedures in a sexdiscriminatory manner (usually against respondents, who, commenters argued, are overwhelmingly male). At least one commenter supportive of § 106.45(a) cited a white paper by NCHERM cautioning colleges and universities to avoid applying grievance procedures in an unfair, biased manner (whether favoring complainants, or favoring the accused) and urging institutions to have balanced processes.987 Several commenters, including attorneys and organizations with experience representing accused students, 984 Commenters cited: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, The National Intimate Partner and Sexual Violence Survey (NISVS): 2010 Summary Report Tables 2.1 and 2.2 (Nov. 2011). 985 Commenters cited: National Alliance to End Sexual Violence, ‘‘Male Victims,’’ (‘‘About 14% of reported rapes involve men or boys, 1 in 6 reported sexual assaults is against a boy, and 1 in 25 reported sexual assaults is against a man.’’), https://www.end sexualviolence.org/where_we_stand/male-victims/. 986 Commenters cited: The Association of American Universities, Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct (Westat 2015). 987 Commenters cited: National Center for Higher Education Risk Management (NCHERM), White Paper: Due Process and the Sex Police 14–15 (2017) (‘‘There are always unintended consequences to showing favoritism. If a college is known to be biased toward responding parties, this can chill the willingness of victims/survivors to report. If a college is known to be biased toward reporting parties, a victim/survivor’s sense of safety or justice based on the campus outcome in the short run may be quickly compromised by a court order or lawsuit reinstating the responding party, giving her a Pyrrhic victory, at best. What is needed for all of our students is a balanced process that centers on their respective rights while showing favoritism to neither. Not only is that best, it is required by law.’’). PO 00000 Frm 00214 Fmt 4701 Sfmt 4700 supported § 106.45(a) because although the provision only clarifies what is already the intent of the law, the provision is necessary to counter institutional bias in favor of female accusers and against male accused students, as both are entitled to equally fair procedures untainted by gender bias; one such commenter referred to § 106.45(a) as an ‘‘essential corrective’’ to gender bias that permeates campus sexual misconduct proceedings, and another believed that the provision will encourage schools to be more careful in how they treat both sides. Discussion: The Department appreciates commenters’ support for § 106.45(a) and acknowledges that many commenters have observed through personal experiences navigating campus sexual misconduct proceedings that some recipients have applied grievance procedures in a manner that shows discrimination against respondents on the basis of sex. We note that other commenters have recounted personal experiences navigating campus sexual misconduct proceedings perceived to be biased against complainants on the basis of sex. To the extent that such discriminatory practices occur, § 106.45(a) advises recipients against sex discriminatory practices during the grievance process and to avoid different treatment favoring or disfavoring any party on the basis of sex. However, to clarify that § 106.45(a) applies as much to complainants as to respondents, the final regulations revise the language in this provision but retain the provision’s statement that how a recipient treats a complainant, or a respondent, ‘‘may’’ constitute sex discrimination under Title IX. The Department emphasizes that any person regardless of sex may be a victim or perpetrator of sexual harassment and that different treatment due to sex-based stereotypes about how men or women behave with respect to sexual violence violates Title IX’s nondiscrimination mandate. Changes: The final regulations revise § 106.45(a) to state more clearly that treatment of a complainant or respondent may constitute sex discrimination in violation of Title IX. Comments: Some commenters opposed § 106.45(a), claiming that this provision would harbor perpetrators by permitting them to claim a Title IX violation even if the recipient merely opens an investigation into their conduct, and would revictimize and retraumatize survivors. Some commenters argued that this provision operates from a premise of false equivalency since the respondent is not involved in the process on the basis of their sex but rather on the basis of their E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations alleged behavior whereas the complainant alleges to have suffered Title IX sexual harassment (discrimination on the basis of sex). Some commenters argued that a recipient’s treatment of the respondent does not constitute discrimination on the basis of sex under Title IX unless sex bias was a factor and therefore the Department lacks authority to issue a regulation that equates unfair treatment of a respondent with sex discrimination. Other commenters contended that Title IX 988 does not include the grievance process prescribed in these final regulations and does not address the conduct of school officials implementing a grievance process, and that the Department has no authority to create new individual rights under Title IX. At least one commenter argued that the purpose of § 106.45(a) appears to be justifying the entirety of the Department’s prescribed grievance process (which the commenter argued is characterized by rape exceptionalism with many provisions designed to benefit only respondents) by wrongfully characterizing procedural protections for respondents as needed to avoid sex discrimination. Another commenter argued that § 106.45(a) turns Title IX on its head by making respondents accused of sexual harassment into a protected class, enabling respondents to make a sex discrimination claim for any deviation from the § 106.45 grievance process requirements while complainants would need to show deliberate indifference to claim sex discrimination. Some commenters asserted that this provision hamstrings recipients excessively and that the provision is fundamentally unfair to survivors. Some commenters argued that the provision grants respondents the right to sue for sex discrimination under Title IX and contended that fear of respondent litigation causes recipients to deprive complainants of due process and fair procedures by, for example, giving respondents access to information or accommodations not given to the complainant or to deliberately mislead the complainant about the investigation. One commenter characterized § 106.45(a) as giving an ‘‘unsubstantiated right of action for respondents under Title IX’’ that will cause ‘‘risk-averse universities to fail to investigate properly, and that schools and university legal counsel will be incentivized to never find in a survivor’s favor, even when the facts clearly indicate that sexual violence occurred,’’ leading to more 988 Commenters VerDate Sep<11>2014 cited: 20 U.S.C. 1681(a). 19:08 May 18, 2020 Jkt 250001 complainants suing recipients privately under Title IX just to force institutions to treat complainants equally. This concern was echoed by a few commenters who argued that this provision would cause institutions to ignore reports and refuse to punish perpetrators for fear of respondent lawsuits. Other commenters characterized § 106.45(a) as purporting to consider the treatment of the respondent as equally violating Title IX as the alleged behavior (sexual violence) prompting the Title IX case in the first place, while another commenter believed this provision meant that unfair treatment of a respondent constituted sexual harassment. A few commenters argued that § 106.45(a) unnecessarily risks incentivizing institutions to treat survivors unfairly, because respondents already have legal theories (such as violation of due process and breach of contract) with which to challenge unfair discipline, and Federal courts 989 have appropriately made it difficult for respondents to successfully challenge unfair discipline as sex discrimination, either on an erroneous outcome or selective enforcement theory—a result that would be undermined by § 106.45(a) giving respondents new rights to pursue unfair discipline claims under the auspices of Title IX. One commenter, a Title IX Coordinator, stated that § 106.45(a) seems unnecessary because typically both parties are members of the recipient’s community and the recipient should not discriminate against any member of its community. One commenter opposed § 106.45(a) because it tells male students they have been victimized and gives male students more incentive to gratify themselves at the expense of a woman’s education. One commenter argued that if stating that a recipient’s treatment of a party in sexual harassment proceedings ‘‘may’’ constitute sex discrimination is sufficient to justify the Department regulating extensive grievance procedures in sexual harassment cases, there is no end to the Department’s authority, on the same reasoning, to 989 Commenters cited, e.g.: Doe v. Colgate Univ. Bd. of Trustees, 760 F. App’x 22 (2d Cir. 2019); Doe v. Cummins, 662 F. App’x 437, 451–53 (6th Cir. 2016); Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994); Preston v. Va. ex rel. New River Comm. Coll., 31 F.3d 203, 207 (4th Cir. 1994); Doe v. Univ. of Cincinnati, 173 F. Supp. 3d 586, 606–07 (S.D. Ohio 2016); Winter v. Pa. State Univ., 172 F. Supp. 3d 756, 775–76 (M.D. Pa. 2016); Nungesser v. Columbia Univ., 169 F. Supp. 3d 353, 364 (S.D.N.Y. 2016); Doe v. Columbia Univ., 101 F. Supp. 3d 356, 372 (S.D.N.Y. 2015); Doe v. Univ. of the So., 687 F. Supp. 2d 744, 756 (E.D. Tenn. 2011); Patenaude v. Salmon River Cent. Sch. Dist., No. 3:03–CV–1016, 2005 WL 6152380 (N.D.N.Y. Feb. 16, 2005). PO 00000 Frm 00215 Fmt 4701 Sfmt 4700 30239 regulate any other type of interaction between a school and its students or employees, since any action taken by a recipient ‘‘may’’ constitute sex discrimination. Some commenters suggested modifications in language including to specify that a recipient’s response to a complaint may constitute sex discrimination where: The recipient deprives a respondent of access to education based on sex stereotypes or by using procedures that discriminate on the basis of sex; the recipient acts with deliberate indifference; by a reasonable and objective standard, the ‘‘treatment’’ is sufficiently severe or pervasive so as to interfere with a student’s educational opportunities and/or create a hostile work environment; there is evidence of discriminatory application of Title IX or acts of retaliation; the recipient uses investigatory or other acts to mistreat (or not adequately treat well) the respondent. Another commenter asserted that § 106.45(a) should specify that programs funded by the U.S. Department of Justice’s Office on Violence Against Women (OVW) must comply with these final regulations. Another commenter argued that § 106.45 should consider that when in doubt, the recipient may err on side of releasing information in order to avoid liability under these final regulations. Discussion: The Department disagrees with commenters who believed that § 106.45(a) would harbor perpetrators and revictimize or retraumatize survivors by permitting respondents to claim a Title IX violation based on a recipient’s opening of an investigation into alleged sexual harassment. This provision does not declare that actions toward a respondent (or complainant) do constitute sex discrimination in violation of Title IX, but states only that treatment of a respondent (or treatment of a complainant) may constitute sex discrimination. Title IX prohibits sex discrimination against all individuals on the basis of the protected characteristic (sex), and § 106.45(a) advises recipients to be aware that taking action with respect to either party in a grievance process resolving allegations of sexual harassment may not be done in a sex discriminatory manner. This provision operates to protect complainants and respondents equally, irrespective of sex, by emphasizing to recipients that although a grievance process takes place in the context of resolving allegations of one type of sex discrimination (sexual harassment), a recipient must take care not to treat a party differently on the basis of the party’s sex because to do so E:\FR\FM\19MYR2.SGM 19MYR2 30240 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations would inject further sex discrimination into the situation. For example, a recipient’s decision to investigate sexual harassment complaints brought by women but not by men may constitute sex discrimination in the context of a sexual harassment grievance process; similarly, a recipient’s practice of imposing a sanction of expulsion on female respondents found responsible for sexual harassment, but suspension on male respondents found responsible, may constitute sex discrimination. The Department acknowledges that the text of the Title IX statute does not specify grievance procedures for resolving allegations of sexual harassment. However, at the time Title IX was enacted in 1972, Federal courts had not yet addressed sexual harassment as a form of sex discrimination, but the Supreme Court’s Gebser/Davis framework explicitly interpreted Title IX’s nondiscrimination mandate to include sexual harassment as a form of sex discrimination. Since 1975 the Department’s Title IX regulations have required recipients to adopt and publish ‘‘grievance procedures’’ for the prompt and equitable resolution of complaints that recipients are committing sex discrimination against students or employees.990 The Department’s authority to enforce such regulations has been acknowledged by the Supreme Court.991 The Department has determined that current regulatory reference to ‘‘grievance procedures’’ that are ‘‘prompt and equitable’’ does not adequately prescribe a consistent, fair, reliable grievance process for resolving allegations of Title IX sexual harassment; in accordance with the Department’s regulatory authority under Title IX, the final regulations now set forth a grievance process for resolving formal complaints raising allegations of sexual harassment. The Department disagrees that § 106.45(a) turns Title IX on its head or creates a new protected class (respondents); this provision focuses on the central purpose of Title IX, to provide protections from sexdiscriminatory practices to all persons, acknowledging that the ways in which complainants and respondents are treated must not be affected by the sex of a person even though the underlying allegations involve allegations of a type of sex discrimination (sexual harassment) that make it tempting for recipients to intentionally or unintentionally allow sex-based biases, 990 34 CFR 106.8(b). v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291–92 (1998). stereotypes, and generalizations to influence how procedures are applied. Partly in response to commenters’ misapprehension that § 106.45(a) allows respondents—but not complainants—to claim sex discrimination whenever a requirement in § 106.45 is not met, the final regulations permit either party equally to appeal a determination regarding responsibility on the basis of procedural irregularity.992 Similarly, either party believing a recipient failed to follow the § 106.45 grievance process could file a complaint with OCR that could result in the Department requiring the recipient to come into compliance with § 106.45, regardless of whether the violation of § 106.45 also amounted to deliberate indifference (as to a complainant) or otherwise constituted sex discrimination (as to a respondent). A violation of § 106.45 need not, and might not necessarily, constitute sex discrimination, whether the violation disfavored a complainant or a respondent. Thus, § 106.45(a) does not create a special protection for respondents or special burden for complainants with respect to allegations that a recipient failed to comply with the § 106.45 grievance process. For similar reasons, the Department disagrees that § 106.45(a) in any way ‘‘hamstrings’’ recipients into catering to respondents’ interests or permits recipients to ignore complainants or treat complainants unfavorably out of fear of being sued by respondents. Rather, § 106.45(a) reminds recipients that Title IX requires recipients to avoid bias, prejudice, or stereotypes based on sex whether the recipient’s intent is to favor or disfavor complainants or respondents. As to commenters’ concerns that out of fear of respondent lawsuits recipients will, for example, give respondents access to information or accommodations not given to the complainant or deliberately mislead the complainant about the investigation, the Department notes that such actions likely will either violate specific provisions of § 106.45 (e.g., § 106.45(b)(5)(vi) requires the parties to have equal opportunity to inspect and review evidence) or constitute the very treatment against a complainant that § 106.45(a) cautions against. For reasons discussed in the ‘‘General Support and Opposition for the § 106.45 Grievance Process’’ section of this preamble, the Department disputes that the § 106.45 grievance process is premised on rape exceptionalism. The prescribed grievance process is tailored to resolve allegations of sexual harassment that constitute sex discrimination under a 19:08 May 18, 2020 Jkt 250001 993 Section 106.45(b)(1)(i). 106.45(b)(1)(iv). 995 Section 106.45(b)(6)(i)–(ii). 994 Section 991 Gebser VerDate Sep<11>2014 Federal civil rights law, not to adjudicate criminal charges; the fact that resolution of sexual harassment under Title IX requires, in the Department’s judgment, a consistent, predictable grievance process in no way implies that a ‘‘special’’ process is needed due to rape myths or sex-based generalizations (such as, ‘‘women lie about rape’’). The § 106.45 grievance process does not prioritize respondent’s rights over those of complainants. Rather, § 106.45 contains important procedural protections that apply equally to both parties with three exceptions: One provision that treats complainants and respondents equitably instead of equally (by recognizing a complainant’s interest in a recipient providing remedies, and a respondent’s interest in disciplinary sanctions imposed only after a recipient follows a fair process); 993 one provision that applies only to respondents (a presumption of non-responsibility until conclusion of a fair process); 994 and one provision that applies only to complainants (protection from questions and evidence regarding sexual history).995 The Department is aware that in private lawsuits brought under Title IX, Federal courts have been reluctant to equate unfair treatment of a respondent during a sexual misconduct disciplinary proceeding with sex discrimination unless the respondent can show that the unfair treatment was motivated by the party’s sex. Contrary to commenters’ assertions, § 106.45(a) does not assume that any unfair treatment constitutes sex discrimination, but does caution recipients that treatment of any party could constitute sex discrimination. In this way, § 106.45(a) shields parties (both complainants and respondents) from recipient actions during the grievance process that are impermissibly motivated by sex-based bias or stereotypes in violation of Title IX’s non-discrimination mandate. However, as discussed above, this does not mean that every violation of § 106.45 necessarily equates to sex discrimination. The Department disagrees that § 106.45(a) purports to consider treatment of a respondent during a grievance process as the same type of behavior that prompted the respondent to become a respondent in the first place (e.g., alleged sexual misconduct), or that this provision equates unfair discipline with sexual harassment. The Department appreciates the opportunity to clarify 992 Section PO 00000 106.45(b)(8). Frm 00216 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations that when a respondent is treated differently based on sex during a grievance process designed to resolve allegations that the respondent perpetrated sexual harassment, the sexbased treatment of the respondent violates Title IX’s non-discrimination mandate in a different way than sexual harassment does when sexual harassment constitutes sex discrimination under Title IX. Title IX prohibits different treatment on the basis of sex, which § 106.45(a) acknowledges may occur against respondents or complainants in violation of Title IX. Title IX also requires recipients to respond appropriately to allegations of sexual harassment, because sexual harassment constitutes a particular form of sex discrimination. The Department also appreciates the opportunity to clarify that the Department does not draw an equivalency among different types of sex discrimination prohibited under Title IX, and recognizes that when sex discrimination takes the form of sexual harassment victims often face trauma and negative impacts unique to that particular form of sex discrimination; indeed, it is this recognition that has prompted the Department to promulgate legally binding regulations governing recipients’ response to sexual harassment rather than continuing to rely on guidance documents that lack the force and effect of law. The Department disagrees with commenters who argued that § 106.45(a) is unnecessary because respondents already have non-Title IX legal theories on which to challenge unfair discipline and have erroneous outcome and selective enforcement theories with which to challenge unfair discipline under Title IX. While it is true that respondents have relied on such theories to pursue private lawsuits, similarly complainants already have a judicially implied private right of action under Title IX to sue a recipient for being deliberately indifferent to a complainant victimized by sexual harassment. The existence of private rights of action under Title IX, or under other laws, does not obviate the importance of the Department using its statutory authorization to effectuate the purposes of Title IX through administrative enforcement by promulgating regulations designed to provide individuals with effective protections against discriminatory practices. Indeed, in the final regulations some requirements intended to protect against sex discrimination apply only to the benefit of complainants (e.g., § 106.44(a) has been VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 revised to require as part of a nondeliberately indifferent response that recipients notify complainants of the availability of supportive measures with or without the filing of a formal complaint, offer supportive measures to the complainant, and explain to complainants the process for filing a formal complaint) while other provisions aim to ensure protections against sex discrimination for both complainants and respondents (e.g., § 106.45(a)). The Department has administrative authority to enforce such provisions, whether or not Federal courts would impose the same requirements under a complainant’s or respondent’s private Title IX lawsuit. The Department agrees with the commenter who asserted that recipients should not discriminate against any member of the recipient’s community but maintains that § 106.45(a) is not rendered unnecessary by that belief. The Department disagrees that § 106.45(a) conveys to male students that being treated unfairly in the grievance process gives license to perpetrate sexual misconduct against women; while a recipient must treat a respondent in a manner free from sex discrimination and impose discipline only after following a fair grievance process, those restrictions in no way encourage or incentivize perpetration of sexual misconduct and in fact help ensure that sexual misconduct, where reliably determined to have occurred, is addressed through remedies for victims and disciplinary sanctions for perpetrators. The Department understands the commenter’s concern that § 106.45(a) could be misunderstood to justify the Department regulating any facet of a recipient’s interaction with students and employees because in any circumstance a recipient ‘‘may’’ act in a sex-biased manner. The Department appreciates the opportunity to clarify that § 106.45(a) is necessary in the context of sexual harassment because allegations of such conduct present an inherent risk of sex-based biases, stereotypes, and generalizations permeating the way parties are treated, such that a consistent, fair process applied without sex bias to any party is needed. The Department’s authority to promulgate regulations under Title IX encompasses regulations to effectuate the purpose of Title IX, and as commenters acknowledged, one of the two main purposes of Title IX is providing individuals with protections against discriminatory practices.996 Implementation of a grievance process for resolution of sexual harassment lies within the Department’s statutory authority to regulate under Title IX,997 and § 106.45(a) is a provision designed to protect all individuals involved in a sexual harassment situation from sex discriminatory practices in the context of a grievance process to resolve formal complaints of sexual harassment. Thus, § 106.45, and paragraph (a) in particular, does not create new individual rights but rather prescribes procedures designed to protect the rights granted all persons under Title IX to be free from sex discrimination with respect to participation in education programs or activities. The Department notes that nothing about § 106.45(a) creates or grants respondents (or complainants) rights to file private lawsuits, whether under Title IX or otherwise. Title IX does not contain an express private right of action, but the Supreme Court has judicially implied such a right.998 In Gebser, the Supreme Court declined to allow petitioner to seek damages in a private suit under Title IX for the school’s alleged failure to have a grievance procedure as required under Department regulations because ‘‘failure to promulgate a grievance procedure does not itself constitute ‘discrimination’ under Title IX.’’ 999 The Court continued, ‘‘Of course, the Department of Education could enforce the requirement administratively: Agencies generally have authority to promulgate and enforce requirements that effectuate the statute’s nondiscrimination mandate, 20 U.S.C. 1682, even if those requirements do not purport to represent a definition of discrimination under the statute.’’ 1000 Thus, the Department’s exercise of administrative enforcement authority does not grant new rights to respondents (or complainants) who pursue remedies against recipients in private lawsuits under Title IX. The Department appreciates commenters’ suggestions for modifications to this provision, but declines to add modifiers or qualifiers that would further describe how and when a recipient’s treatment of a complainant or respondent might constitute sex discrimination. In the interest of retaining the broad intent of Title IX’s non-discrimination mandate, § 106.45(a) in the final regulations begins the entirety of a Title IX sexual harassment grievance process under 997 20 U.S.C. 1682. 441 U.S. at 691. 999 Gebser, 524 U.S. at 292. 1000 Id. 998 Cannon, 996 Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979). PO 00000 Frm 00217 Fmt 4701 Sfmt 4700 30241 E:\FR\FM\19MYR2.SGM 19MYR2 30242 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations § 106.45 by advising recipients to avoid treatment of any party in a manner that discriminates on the basis of sex. The § 106.45 grievance process leaves recipients with significant discretion to adopt procedures that are not required or prohibited by § 106.45, including, for example, rules designed to conduct hearings in an orderly manner respectful to all parties. Section 106.45(a) emphasizes to recipients that such rules or practices that a recipient chooses to adopt must be applied without different treatment on the basis of sex. To reinforce the importance of treating complainants and respondents equally in a grievance process, the final regulations also revise the introductory sentence of § 106.45(b) to indicate that any grievance process rules a recipient chooses to adopt (that are not already required under § 106.45) must treat the parties equally. Together with § 106.45(a), this modification emphasizes, for the benefit of any person involved in a Title IX grievance process, that recipients must treat both parties equally and without regard to sex. The Department declines to specify what programs (including those funded by OVW grants) must comply with this provision; questions about application of Title IX to individual recipients may be submitted to the recipient’s Title IX Coordinator, the Assistant Secretary, or both, under § 106.8(b)(1). The Department disagrees with the commenter who suggested that § 106.45(a) will cause a recipient to err on the side of releasing information or increase a recipient’s fear of retaliation; however, in response to many comments concerning confidentiality and retaliation, the final regulations include § 106.71 prohibiting retaliation and specifying that the recipient must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by FERPA, required by law, or as necessary to conduct the grievance process, and providing that complaints alleging retaliation may be filed according to the prompt and equitable grievance procedures for sex discrimination that recipients must adopt under § 106.8(c). Changes: We are adding § 106.71, prohibiting retaliation and specifying that the recipient must keep confidential the identity of any individual who has made a report or VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or required by law, or to carry out the purposes of 34 CFR part 106, and providing that complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination that recipients must adopt under § 106.8(c). We are revising § 106.45(b)(8) regarding appeals, to expressly permit both parties equally to appeal a determination regarding responsibility on the basis of procedural irregularity. We are revising the introductory sentence of § 106.45(b) to state that any rules a recipient chooses to adopt (that are not required under § 106.45) must apply equally to both parties. Section 106.45(b)(1)(i) Equitable Treatment of Complainants and Respondents Comments: Many commenters expressed support for § 106.45(b)(1)(i). Some commenters asserted that this provision rectifies sex discrimination against males that has occurred in recipients’ Title IX campus proceedings.1001 Other commenters stated that this provision advances Title IX’s goal of due process-type fundamental fairness to both complainants and respondents alike by balancing the scales. One commenter supported this provision because, in the commenter’s view, too many institutions view allegations as ‘‘selfproving.’’ At least one commenter approved of this provision as being consistent with existing § 106.8 requiring ‘‘prompt and equitable’’ resolution of sex discrimination complaints. Another commenter asserted that § 106.45(b)(1)(i) is consistent with our Nation’s fundamental values that persons accused of serious misconduct should receive notice and a fair hearing before unbiased decision makers, and a presumption of innocence. Another commenter supported this provision because everyone on campus benefits from fundamentally fair proceedings. One commenter called this provision a ‘‘welcome change’’ because, in the 1001 Commenters cited, for example: Jeannie Suk Gersen, The Transformation of Sexual-Harassment Law Will Be Double-Faced, The New Yorker (Dec. 20, 2017); American Association of University Women Educational Foundation, Drawing the Line: Sexual Harassment on Campus (2005). PO 00000 Frm 00218 Fmt 4701 Sfmt 4700 commenter’s view, accused students at institutions of higher education have had a difficult time restoring their reputations after the institution removes the accused student before a fair determination of the truth of the allegations. Discussion: The Department appreciates commenters’ support for this provision. The Department agrees that a fair process benefits both parties, and recipients, by leading to reliable outcomes and increasing the confidence that parties and the public have regarding Title IX proceedings in schools, colleges, and universities. The Department also agrees with the commenter who noted that this provision is consistent with the principle underlying existing § 106.8 wherein recipients have long been required to have ‘‘prompt and equitable’’ grievance procedures for handling sex discrimination complaints. The purpose of § 106.45(b)(1)(i) is to emphasize the importance of treating complainants and respondents equitably in the specific context of Title IX sexual harassment, by drawing a recipient’s attention to the need to provide remedies to complainants and avoid punishing respondents prior to conclusion of a fair process. As discussed in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, the § 106.45 grievance process generally treats both parties equally, and § 106.45(b)(1)(i) is one of the few exceptions to strict equality where equitable treatment of the parties requires recognizing that a complainant’s interests differ from those of a respondent with respect to the purpose of the grievance process. This is intended to provide both parties with a fair, truth-seeking process that reasonably takes into account differences between a party’s status as a complainant, versus as a respondent. Thus, with respect to remedies and disciplinary sanctions, strictly equal treatment of the parties does not make sense, and to treat the parties equitably, a complainant must be provided with remedies where the outcome shows the complainant to have been victimized by sexual harassment; similarly, a respondent must be sanctioned only after a fair process has determined whether or not the respondent has perpetrated sexual harassment. Changes: None. Comments: Some commenters objected to § 106.45(b)(1)(i) on the ground that it reinforces the approach of the overall grievance process that commenters believed requires a complainant to undergo a protracted, often traumatic investigation E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations necessitating continuous interrogation of the complainant, all while forcing the complainant to continue seeing the respondent on campus because the respondent is protected from removal until completion of the grievance process; some of these commenters asserted that this will chill reporting. Some commenters opposed this provision on the ground that it aims to treat victims and perpetrators as equals, which is inappropriate because a victim has suffered harm inflicted by a perpetrator, placing them in inherently unequal positions of power; some of these commenters expressed particular concern that this dynamic perpetuates the status quo where teachers accused of harassing students are believed because of their position of authority. Some commenters claimed that by being gender-neutral this provision makes campuses and Title IX proceedings an unsafe space for victims and is biased against women because it reflects obsolete and unfounded assumptions about sexual harassment and sexual violence and perpetuates harm against women and vulnerable populations. At least one such commenter urged the Department to instead adopt a feminist model that supports the healing of survivors of gender-based violence, prevents revictimization following assault, and seeks to restore power and control the survivor has lost.1002 Discussion: The Department believes that § 106.45(b)(1)(i) reflects the critical way in which that a recipient must, throughout a grievance process, treat the parties equitably. The Department disagrees that the final regulations require complainants to undergo protracted, traumatic investigations or necessarily require complainants to interact with respondents on campus while a process is pending. The final regulations require a recipient to offer supportive measures to a complainant with or without the filing of a formal complaint triggering the grievance process.1003 The final regulations have removed proposed § 106.44(b)(2) and revised the § 106.30 definition of ‘‘complainant’’ such that in combination, those revisions ensure that the final regulations do not require a Title IX Coordinator to initiate a grievance process over the wishes of a complainant, and never require a complainant to become a party or to participate in a grievance process.1004 In these ways, the final regulations respect the autonomy of survivors to choose whether to participate in a grievance process, while ensuring that regardless of that choice, survivors are entitled to supportive measures. Although supportive measures must be nonpunitive and non-disciplinary (to any party) and cannot unreasonably burden the other party,1005 supportive measures do allow complainants options with respect to changes in class schedules or housing re-assignments even while a grievance process is still pending, or where no formal complaint has initiated a grievance process. Moreover, § 106.44(c) permits a recipient to remove a respondent from the recipient’s education program or activity without undergoing a grievance process, where an individualized risk assessment shows the respondent poses a threat to any person’s physical health or safety, so long as the respondent is afforded post-removal notice and opportunity to challenge the removal decision. The final regulations thus effectuate the purpose of Title IX to provide protection for complainants, while ensuring that a fair process is used to generate a factually reliable resolution of sexual harassment allegations before a respondent is sanctioned based on such allegations. To clarify that the § 106.30 definition of ‘‘supportive measures’’ gives recipients wide latitude to take actions to support a complainant, even while having to refrain from imposing disciplinary sanctions against the respondent, we have added to § 106.45(b)(1)(i) the phrase ‘‘or other actions that are not supportive measures as defined in § 106.30.’’ 1006 Even where supportive 1002 Commenters cited: Tara N. Richards et al., A feminist analysis of campus sexual assault policies: Results from a national sample, 66 Family Relations 1 (2017) (criticizing gender-neutral policy approaches because ‘‘In gender-neutral advocacy, policies and practices are uniformly applied and do not take gender dynamics into consideration, thus increasing the risk of victim-blaming attitudes and adherence to myths about rape and other forms of gendered violence’’). 1003 Section 106.44(a) (further requiring the Title IX Coordinator to contact each complainant to discuss the availability of supportive measures with or without a formal complaint, consider the complainant’s wishes regarding supportive measures, and explain to the complainant the process for filing a formal complaint). 1004 Section 106.71 (prohibiting retaliation for the purpose of interfering with any right under Title IX, including the right to refuse to participate in a Title IX proceeding). 1005 Section 106.30 (defining ‘‘supportive measures’’). 1006 Section 106.45(b)(1)(i), stating that equitable treatment of the parties means following a § 106.45 grievance process before imposing disciplinary sanctions or other actions that are not ‘‘supportive measures’’ as defined in § 106.30, and remedies for a complainant whenever a respondent is determined to be responsible, is mirrored in § 106.44(a), which requires equitable treatment of respondents in the same manner and (because no grievance process is required for a recipient’s response obligations under § 106.44 to be triggered) VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 PO 00000 Frm 00219 Fmt 4701 Sfmt 4700 30243 measures, emergency removal where appropriate, the right of both parties to be accompanied by an advisor of choice,1007 and other provisions intended to ease the stress of a formal process may result in a complainant finding the process traumatizing,1008 the Department maintains that allegations of sexual harassment must be resolved accurately in order to ensure that recipients remedy sex discrimination occurring in education programs or activities. The Department disagrees that treating parties equally throughout the grievance process, and recognizing specific ways in which complainants and respondents must be treated equitably under § 106.45(b)(1)(i), inappropriately attempts to place victims and perpetrators on equal footing without recognizing that victims are suffering from a perpetrator’s conduct. The Department recognizes that a variety of power dynamics can affect perpetration and victimization in the sexual violence context, including differences in the sex, age, or positions of authority of the parties. The Department believes that a fair process provides procedural tools to parties that can counteract situations where a power imbalance led to the alleged incident. By providing both parties with strong, clear procedural rights—including the right to an advisor of choice to assist a party in navigating the process—a party perceived as being in a weaker position has the same rights as the party perceived as having greater power (perhaps due to sex, age, or a position of authority over the other party), and the process is more likely to generate accurate determinations about what occurred between the parties. The Department disagrees with commenters who criticized this provision (and the overall approach of the final regulations) for being genderneutral. Title IX’s non-discrimination mandate benefits ‘‘persons’’ without regard to sex.1009 The Department believes that Title IX’s nondiscrimination mandate is served by an approach that is neutral with respect to sex. The Department notes that applying a sex-neutral framework does not imply equitable treatment of complainants by offering supportive measures. 1007 Section 106.45(b)(5)(iv). 1008 E.g., § 106.45(b)(6)(i) (either party has the right to undergo a live hearing and crossexamination in a separate room, and this provision deems irrelevant any questions or evidence regarding a complainant’s sexual predisposition (without exception) and any questions or evidence about a complainant’s sexual behavior with two exceptions). 1009 20 U.S.C. 1681(a) (‘‘No person in the United States shall, on the basis of sex . . .’’). E:\FR\FM\19MYR2.SGM 19MYR2 30244 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations that recipients cannot gain understanding about the dynamics of sexual violence including particular impacts of sexual violence on women or other demographic groups—but such background knowledge and information cannot be applied in a way that injects bias or lack of impartiality into a process designed to resolve particular allegations of sexual harassment. Contrary to some commenters’ concerns, sex-neutrality in the grievance process helps prevent the very kind of victimblaming and rape myths that have improperly affected responses to females, and does so in a manner that also prevents improper injection of sexbias against males. A sex-neutral approach is also the only approach that appropriately prohibits generalizations about ‘‘women as victims’’ and ‘‘men as perpetrators’’ from improperly affecting an objective evaluation of the facts surrounding each particular allegation and emphasizes for students and recipients the fact that with respect to sexual harassment, any person can be a victim and any person can be a perpetrator, regardless of sex. Changes: We have revised § 106.45(b)(1)(i) to include the phrase ‘‘or other actions that are not supportive measures as defined in § 106.30’’ in addition to disciplinary sanctions, to describe equitable treatment of a respondent during a grievance process. Comments: Some commenters characterized this provision as a ‘‘weak’’ attempt to restore or preserve a complainant’s access to education without sufficiently acknowledging that often, sexual harassment causes a complete or total denial of access for the victim (for example, where a victim drops out of school entirely).1010 Some commenters viewed this provision’s description of remedies for a complainant as too narrow because such remedies must be ‘‘designed to restore or preserve access’’ to the recipient’s education program or activity. At least one commenter understood the phrase ‘‘designed to restore or preserve access’’ to forbid a recipient from imposing a disciplinary sanction on a respondent unless the sanction itself is designed to restore or preserve access to education. At least one commenter suggested adding the word ‘‘equal’’ before ‘‘access’’ in this provision to align this provision with the ‘‘equal access’’ language used in § 106.30 defining 1010 Many commenters cited: Cecilia Mengo & Beverly M. Black, Violence Victimization on a College Campus: Impact on GPA and School Dropout, 18 Journal of Coll. Student Retention: Research, Theory & Practice 2, 234, 244 (2015), for the proposition that survivors drop out of school at higher rates than non-survivors. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 sexual harassment. A few commenters urged the Department to add a list of possible remedies for complainants including counseling, supportive services, and training for staff. At least one commenter suggested that remedies for a complainant must actually restore or preserve the complainant’s access to education and so proposed deleting ‘‘designed to’’ from this provision. Discussion: The Department believes that § 106.45(b)(1)(i) provides a strong, clear requirement for the benefit of victims of sexual harassment: Where a § 106.45 grievance process results in a determination that the respondent in fact committed sexual harassment against the complainant, the complainant must be given remedies. The Department understands that research shows that sexual harassment victims drop out of school more often than other students, and in an effort to prevent that loss of access to education, this provision mandates that recipients provide remedies. In response to commenters concerned that the description of remedies is too narrow or unclear, the final regulations revise this provision. This provision now uses the phrase ‘‘equal access’’ rather than simply ‘‘access,’’ in response to commenters who pointed out that ‘‘equal access’’ is the phrase used in § 106.30 defining sexual harassment. Further, the final regulations substitute ‘‘determination of responsibility’’ for ‘‘finding of responsibility,’’ out of caution that this provision’s use of ‘‘finding’’ instead of ‘‘determination’’ (when the latter is used elsewhere throughout the proposed rules) caused a commenter’s confusion between remedies for a complainant (which are designed to restore the complainant’s equal access to education) versus disciplinary sanctions against a respondent (which are not designed to restore a respondent’s access to education). Moreover, the final regulations revise § 106.45(b)(1)(i) to state that remedies may consist of the same individualized services listed illustratively in § 106.30 as ‘‘supportive measures’’ but remedies need not meet the limitations of supportive measures (i.e., unlike supportive measures, remedies may in fact burden the respondent, or be punitive or disciplinary in nature). The Department believes that this additional language in the final regulations obviates the need to repeat a non-exhaustive list of possible remedies and gives recipients and complainants additional clarity about the kind of remedies available to help restore or preserve equal educational access for victims of sexual harassment. PO 00000 Frm 00220 Fmt 4701 Sfmt 4700 The Department declines to remove ‘‘designed to’’ from this provision. Sexual harassment can cause severe trauma to victims, and while Title IX obligates a recipient to respond appropriately when students or employees are victimized with measures aimed at ensuring a victim’s equal access, the Department does not believe it is reasonable to hold recipients accountable for situations where despite a recipient’s reasonably designed and implemented remedies, a victim still suffers loss of access (for example, by dropping out) due to the underlying trauma. We have also added § 106.45(b)(7)(iv) requiring Title IX Coordinators to be responsible for the ‘‘effective implementation’’ of remedies to clarify that the burden of effectively implementing the remedies designed to restore or preserve the complainant’s equal access to education rests on the recipient and must not fall on the complainant. The Department acknowledges that the 2001 Guidance discussed corrective action in terms of both remedying effects of the harassment on the victim and measures that end the harassment and prevent its recurrence.1011 For reasons described in the ‘‘Deliberate Indifference’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Department believes that remedies designed to restore and preserve equal access to the recipient’s education programs or activities is the appropriate focus of these final regulations, and a recipient’s selection and implementation of remedies will be evaluated by what is not clearly unreasonable in light of the known circumstances.1012 The Department is persuaded by the Supreme Court’s rationale in Davis that courts (and administrative agencies) should not second guess a school’s disciplinary decisions, and the Department desires to avoid creating regulatory rules that effectively dictate particular disciplinary sanctions that obligate recipients to attempt to guarantee that sexual harassment does not recur, instead focusing on whether a recipient is effectively implementing remedies to complainants where respondents are 1011 2001 Guidance at 10 (stating that where the school has determined that sexual harassed occurred, ‘‘The recipient is, therefore, also responsible for remedying any effects of the harassment on the victim, as well as for ending the harassment and preventing its recurrence.’’). 1012 Recipients must also document their reasons for concluding that the recipient’s response to sexual harassment was not deliberately indifferent, under § 106.45(b)(10). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations found responsible for sexual harassment. Changes: The final regulations revise § 106.45(b)(1)(i) to use the phrase ‘‘equal access’’ instead of ‘‘access,’’ substitute ‘‘determination of responsibility’’ for ‘‘finding of responsibility,’’ and state that remedies may include the same individualized services described in § 106.30 defining ‘‘supportive measures’’ but unlike supportive measures, remedies need not avoid burdening the respondent and can be punitive or disciplinary. We have also added § 106.45(b)(7)(iv) requiring Title IX Coordinators to be responsible for the ‘‘effective implementation’’ of remedies. Comments: Some commenters objected to § 106.45(b)(1)(i) for referencing ‘‘due process protections’’ owed to respondents, claiming that respondents have no right to due process in campus administrative proceedings, or that courts do not require the specific due process protections that the proposed rules require. Some commenters criticized this provision for referring to due process protections for respondents because the reference implies that due process protections are not important for complainants and thereby discounts and downplays the needs of victims. At least one commenter recommended modifying this provision to specify that equitable treatment of both parties requires due process protections for both parties. Other commenters urged the Department not to use ‘‘due process’’ or ‘‘due process protections’’ in the final regulations and to instead refer to a ‘‘fair process’’ for all parties; similarly, at least one commenter asked for clarification whether by using the phrase ‘‘due process protections’’ the Department intended to reference constitutional due process or only those protections set forth in the proposed regulations. Some commenters contended that § 106.45(b)(1)(i) is contradicted by other provisions in the proposed rules; for example, commenters characterized the § 106.44(c) emergency removal provision as contrary to the requirement for equitable treatment of a respondent in § 106.45(b)(1)(i) because the emergency removal section permits schools to remove respondents without due process protections. Other commenters pointed to the requirement in proposed § 106.44(b)(2) that Title IX Coordinators must file a formal complaint upon receiving multiple reports against the same respondent as inequitable to respondents in contravention of § 106.45(b)(1)(i) because a respondent should not have to undergo a grievance process without a VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 cooperating complainant. Other commenters pointed to the presumption of non-responsibility in § 106.45(b)(1)(iv) as ‘‘inequitable’’ to complainants in contradiction with § 106.45(b)(1)(i); other commenters characterized the live hearing and crossexamination requirements of § 106.45(b)(6)(i) as inequitable treatment of complainants. At least one commenter asked the Department to answer whether being sensitive to the trauma experienced by victims would violate this provision by being inequitable to respondents. At least one commenter requested that as part of treating the parties equitably, this provision should require a Title IX Coordinator to offer, and keep lists available that describe, various offcampus supportive resources available to both complainants and respondents, including resources oriented toward survivors and those oriented toward accused students. One commenter asserted that this provision should include a statement that equitable treatment of a respondent must include remedies for a respondent where a complainant is found to have brought a false allegation. Discussion: The Department appreciates commenters’ varied concerns about use of the phrase ‘‘due process protections’’ in § 106.45(b)(1)(i) and perceived tension between this provision and other provisions in the proposed rules. The Department agrees with commenters that ‘‘due process protections’’ caused unnecessary confusion about whether the proposed rules intended to reference due process of law under the U.S. Constitution, or only those protections embodied in the proposed rules. In response to such comments, the final regulations replace ‘‘due process protections’’ with ‘‘a grievance process that complies with § 106.45’’ throughout the final regulations, including in this provision, § 106.45(b)(1)(i). As explained in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, while the Department believes that the § 106.45 grievance process is consistent with constitutional due process obligations, these final regulations apply to all recipients including private institutions that do not owe constitutional protections to their students and employees, and making this terminology change throughout the final regulations helps clarify that position. The Department disagrees that § 106.45(b)(1)(i) implies that the protections in the grievance process do not also benefit complainants, or should not be given to complainants. The PO 00000 Frm 00221 Fmt 4701 Sfmt 4700 30245 grievance process is of equal benefit to complainants and respondents and each provision has been selected for the purpose of creating a fair process likely to result in reliable outcomes resolving sexual harassment allegations. The equitable distinction in § 106.45(b)(1)(i) recognizes the significance of remedies for complainants and disciplinary sanctions for respondents, but does not alter the benefit of the § 106.45 grievance process providing procedural rights and protections for both parties. The Department understands commenters’ views that certain other provisions in the final regulations are ‘‘inequitable’’ for either complainants or respondents. For reasons explained in this preamble with respect to each particular provision, the Department believes that each provision in the final regulations contributes to effectuating Title IX’s non-discrimination mandate while providing a fair process for both parties. Section 106.45(b)(1)(i) was not intended to create a standard of ‘‘equitableness’’ under which other provisions of the proposed rules should be measured. In response to commenters’ apparent perception that § 106.45(b)(1)(i) created a general equitability requirement that applied to the proposed rules or created conflict between this provision and other parts of the proposed rules, the final regulations revise § 106.45(b)(1)(i) to more clearly express its intent—that equitable treatment of a complainant means providing remedies, and equitable treatment of a respondent means imposing disciplinary sanctions only after following the grievance process.1013 Being sensitive to the trauma a complainant may have experienced does not violate § 106.45(b)(1)(i) or any other provision of the grievance process, so long as what the commenter means by ‘‘being sensitive’’ does not lead a Title IX Coordinator, investigator, or decision-maker to lose impartiality, prejudge the facts at issue, or demonstrate bias for or against any party.1014 The Department declines to require recipients to list off-campus supportive resources for complainants, respondents, or both, though the final regulations do not prohibit a recipient from choosing to do this. The Department believes that 1013 The Department notes that similar language is included in the final regulations in § 106.44(a) such that a recipient’s response in the absence of a formal complaint must treat complainants equitably by offering supportive measures and must treat respondents equitably by imposing sanctions only after following a grievance process that complies with § 106.45. 1014 Section 106.45(b)(1)(iii). E:\FR\FM\19MYR2.SGM 19MYR2 30246 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations § 106.45(b)(1)(ix), requiring recipients to describe the range of supportive measures available to complainants and respondents, is sufficient to serve the Department’s interest in ensuring that parties are aware of the availability of supportive measures. The Department declines to require remedies for respondents in situations where a complainant is found to have brought a false allegation. These final regulations are focused on sexual harassment allegations, including remedies for victims of sexual harassment, and not on remedies for other kinds of misconduct.1015 Changes: Section 106.45(b)(1)(i) is revised by replacing ‘‘due process protections’’ with ‘‘a grievance process that complies with § 106.45’’ and by stating that treating complainants equitably means providing remedies where a respondent has been determined to be responsible, and treating respondents equitably means imposing disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30 only after following the § 106.45 grievance process. Section 106.45(b)(1)(ii) Objective Evaluation of All Relevant Evidence Comments: Numerous commenters supported § 106.45(b)(1)(ii) asserting that it ensures fairness, accuracy, due process, and impartiality to all parties. Several commenters shared personal experiences with Title IX investigations in which they witnessed the recipient ignoring, discounting, burying, or destroying exculpatory evidence. Similarly, other commenters stated that they have observed inculpatory evidence being ignored or discounted particularly when a respondent is a star athlete or otherwise prominent within the recipient’s educational community. Other commenters expressed concerns about requiring an objective evaluation of relevant evidence. Some commenters asserted that it would be challenging to get such evidence in sexual assault cases, because sexual assault often happens without witnesses who can corroborate stories. One commenter contended that getting objective evidence every time would be a ‘‘near-impossible task,’’ while another felt it is ‘‘unrealistic’’ to expect tangible 1015 The Department notes that the final regulations add § 106.71 prohibiting retaliation, and paragraph (b)(2) of that section cautions recipients that a determination regarding responsibility, alone, is not sufficient to conclude that a party has made a materially false statement in bad faith. The Department leaves recipients with discretion to address false statements (by any party) under the recipient’s own code of conduct. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 evidence in all cases. Some commenters argued that such a high standard would likely chill reporting. One commenter was concerned that an objective evaluation of all relevant evidence could lead to respondents extending investigations indefinitely since almost anything could be relevant and new evidence or witnesses might surface regularly. Some commenters expressed support for this provision’s preclusion of making credibility determinations based on party status because it is inappropriate to make presumptions about trustworthiness based on whether a person is a complainant or respondent. Other commenters opposed this part of § 106.45(b)(1)(ii) and suggested modifying the provision to require that credibility determinations not be based ‘‘solely’’ on a person’s status, but argued that fact-finders could base credibility determinations in part on a person’s status as a complainant or respondent. These commenters opposed any categorical bar to the fact-finder’s considerations when determining credibility, and questioned whether this provision is in significant tension with the presumption of non-responsibility in § 106.45(b)(1)(iv). Commenters asserted that § 106.45(b)(1)(ii)’s requirement is problematic for adjudicators because it directs them to ignore central factors in credibility determinations, such as what interests a party has at stake. Commenters argued that courts, law enforcement, and other investigators have always considered a party’s status as a defendant or plaintiff when determining how to weigh evidence and testimony. Commenters argued that recipients should be permitted to consider a party’s status when considering the totality of the circumstances to reach credibility determinations. A number of commenters proposed modifications related to training that commenters believed would improve implementation of this provision and promote objectivity and competence, such as training about applying rules of evidence, how to collect and evaluate evidence, and how to determine if evidence is credible, relevant, or reliable. Many commenters suggested types of evidence that should be considered, specific investigative processes, or other evidentiary requirements. Commenters proposed, for example, that the final regulations should require consideration of letters, videos, photos, emails, texts, phone calls, social media, mental health history, drug, alcohol, and medication use, and rape kits. Commenters also proposed requiring a variety of PO 00000 Frm 00222 Fmt 4701 Sfmt 4700 investigative techniques, including asking the Department to require recipients to take immediate action to collect and test all evidence, including permitting recipients to interview community members and other witnesses (e.g., roommates, dorm residents, classmates, fraternity members). Commenters also asked whether the recipient may consider evidence of the respondent’s lack of credibility, other bad acts, and misrepresentation of key facts. Some commenters asked whether the proposed rules would allow respondents to introduce lie detector test results and impact statements. Some commenters wanted the final regulations to require investigators to identify any data gaps in investigative report noting unavailable information (e.g., unable to interview eyewitnesses or to visit the scene of an incident) and all attempts to fill those data gaps, as well as requiring hearing boards to explain the specific evidentiary basis for each finding. Other commenters asserted that the final regulations should require all evidence to be shared with the parties to ensure fairness, and that an investigator should not get to decide what is relevant. Commenters requested that the Department clarify how to evaluate whether evidence is relevant. Commenters asked how recipients should make credibility determinations, and whether it would be permissible to admit character and reputation evidence, including past sexual history or testimony based on hearsay. One commenter asserted that requiring an ‘‘objective evaluation’’ leaves questions about what this term will mean in practice, noting that similar provisions in the VAWA negotiated rulemaking in 2012 raised concerns that the subjectivity (at least in defining bias) would be an overreach into campus administrative decisions. Some commenters suggested specific modifications to the wording of the proposed provision. For example, individual commenters suggested that the Department: Replace ‘‘objective’’ with ‘‘impartial’ for consistency with VAWA; add language emphasizing that the recipient’s determination must be unbiased since recipient bias has been a significant problem in Title IX investigations; add that objective evaluation be ‘‘based on rules of evidence under applicable State law;’’ add that schools shall resolve doubts ‘‘in favor of considering evidence to be relevant and exculpatory’’ to address the danger that recipients will narrowly construe what constitutes exculpatory evidence; and add that unsubstantiated E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations theories of trauma cannot be relied on to conclude that a particular complainant suffered from trauma or be used to explain away a complainant’s inconsistencies. One commenter asserted that underweighting relevant testimony simply because someone is a friend to a party in a case will make it materially harder to prove an assault and will not promote equitable treatment for all parties; this commenter mistakenly believed that the proposed rules used the phrase ‘‘arbiters should underweight character feedback from biased witnesses’’ and wanted that language changed. Discussion: The Department appreciates commenters’ support of this provision and acknowledges other commenters’ concerns about § 106.45(b)(1)(ii). While the gathering and evaluation of available evidence will take time and effort on the part of the recipient, the Department views any difficulties associated with the provision’s evidence requirement to be outweighed by the due process benefits the provision will bring to both parties during the grievance process. The recipient’s investigation and adjudication of the allegations must be based on an objective evaluation of the evidence available in a particular case; the type and extent of evidence available will differ based on the facts of each incident. The Department understands that in some situations, there may be little or no evidence other than the statements of the parties themselves, and this provision applies to those situations. As some commenters have observed, Title IX campus proceedings often involve allegations with competing plausible narratives and no eyewitnesses, and such situations still must be evaluated by objectively evaluating the relevant evidence, regardless of whether that available, relevant evidence consists of the parties’ own statements, statements of witnesses, or other evidence. This provision does not require ‘‘objective’’ evidence (as in, corroborating evidence); this provision requires that the recipient objectively evaluate the relevant evidence that is available in a particular case. The Department disagrees that this provision could permit endlessly delayed proceedings while parties or the recipient search for ‘‘all’’ relevant evidence; § 106.45(b)(1)(v) requires recipients to conclude the grievance process within designated reasonable time frames and thus ‘‘all’’ the evidence is tempered by what a thorough investigation effort can gather within a reasonably prompt time frame. The Department agrees with commenters who noted the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 inappropriateness of investigators and decision-makers drawing conclusions about credibility based on a party’s status as a complainant or respondent. While the Department appreciates the concerns by commenters advocating that the final regulations should permit status-based inferences as to a person’s credibility, the Department believes that to do so would invite bias and partiality. To that end, we disagree with commenters who opposed categorical bars on the factors that investigators or decision-makers may consider, and who want to partially judge a person’s credibility based on the person’s status as a complainant, respondent, or witness. A process that permitted credibility inferences or conclusions to be based on party status would inevitably prejudge the facts at issue rather than determine facts based on the objective evaluation of evidence, and this would decrease the likelihood that the outcome reached would be accurate. The Department disagrees that § 106.45(b)(1)(ii) conflicts with the presumption of non-responsibility; in fact, § 106.45(b)(1)(ii) helps to ensure that the presumption is not improperly applied by recipients. Section 106.45(b)(1)(iv) affords respondents a presumption of non-responsibility until the conclusion of the grievance process. Section 106.45(b)(1)(ii) applies throughout the grievance process, including with respect to application of the presumption, to ensure that the presumption of non-responsibility is not interpreted to mean that a respondent is considered truthful, or that the respondent’s statements are credible or not credible, based on the respondent’s status as a respondent. Treating the respondent as not responsible until the conclusion of the grievance process does not mean considering the respondent truthful or credible; rather, that presumption buttresses the requirement that investigators and decision-makers serve impartially without prejudging the facts at issue.1016 Determinations of credibility, including of the respondent, must be based on objective evaluation of relevant evidence—not on inferences based on party status. Both the presumption of non-responsibility and this provision are designed to promote a fair process by which an impartial fact-finder determines whether the respondent is 1016 For further discussion on the purpose and function of the presumption of non-responsibility, see the ‘‘Section 106.45(b)(1)(iv) Presumption of Non-Responsibility’’ subsection of the ‘‘General Requirements for § 106.45 Grievance Process’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. PO 00000 Frm 00223 Fmt 4701 Sfmt 4700 30247 responsible for perpetrating sexual harassment. Every determination regarding responsibility must be based on evidence, not assumptions about respondents or complainants. The Department disagrees that disregarding party status poses problems for investigators or adjudicators or directs them to ignore central factors in reaching credibility determinations. Title IX personnel are not prevented from understanding and taking into account each party’s interests and the ‘‘stakes’’ at issue for each party, yet what is at stake does not, by itself, reflect on the party’s truthfulness. In response to commenters’ concerns about how to determine ‘‘relevance’’ in the context of these final regulations, we have revised § 106.45(b)(1)(iii) specifically to require training on issues of relevance (including application of the ‘‘rape shield’’ protections in § 106.45(b)(6)). Thus, these final regulations require Title IX personnel to be well trained in how to conduct a grievance process; within the requirements stated in § 106.45(b)(1)(iii) recipients have flexibility to adopt additional training requirements concerning evidence collection or evaluation. Similarly, the Department declines to adopt commenters’ suggestions that the final regulations explicitly allow or disallow certain types of evidence or utilize specific investigative techniques. The Department believes that the final regulations reach the appropriate balance between prescribing sufficiently detailed procedures to foster a consistently applied grievance process, while deferring to recipients to tailor rules that best fit each recipient’s unique needs. While the proposed rules do not speak to admissibility of hearsay,1017 prior bad acts, character evidence, polygraph (lie detector) results, standards for authentication of evidence, or similar issues concerning evidence, the final regulations require recipients to gather and evaluate relevant evidence,1018 with the understanding that this includes both inculpatory and exculpatory evidence, and the final regulations deem questions and evidence about a complainant’s prior sexual behavior to be irrelevant 1017 While not addressed to hearsay evidence as such, § 106.45(b)(6)(i), which requires postsecondary institutions to hold live hearings to adjudicate formal complaints of sexual harassment, states that the decision-maker must not rely on the statement of a party or witness who does not submit to cross-examination, resulting in exclusion of statements that remain untested by crossexamination. 1018 The final regulations do not define relevance, and the ordinary meaning of the word should be understood and applied. E:\FR\FM\19MYR2.SGM 19MYR2 30248 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations with two exceptions 1019 and preclude use of any information protected by a legally recognized privilege (e.g., attorney-client).1020 Within these evidentiary parameters recipients retain the flexibility to adopt rules that govern how the recipient’s investigator and decision-maker evaluate evidence and conduct the grievance process (so long as such rules apply equally to both parties).1021 Relevance is the standard that these final regulations require, and any evidentiary rules that a recipient chooses must respect this standard of relevance. For example, a recipient may not adopt a rule excluding relevant evidence because such relevant evidence may be unduly prejudicial, concern prior bad acts, or constitute character evidence. A recipient may adopt rules of order or decorum to forbid badgering a witness, and may fairly deem repetition of the same question to be irrelevant. The Department disagrees that requiring an ‘‘objective evaluation’’ leaves questions about what this will mean in practice; the final regulations contain sufficient clarity concerning 1019 Section 106.45(b)(6) contains rape shield protections, providing that questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. 1020 Section 106.45(b)(1)(x) (precluding a recipient from using information or evidence protected by a legally recognized privilege unless the holder of the privilege has waived the privilege). 1021 Of course, the manner in which a recipient adopted or applied such a rule or practice concerning evaluation of evidence could constitute sex discrimination, a situation that § 106.45(a) cautions recipients against, and the entirety of a recipient’s grievance process must be conducted impartially, free from conflicts of interest or bias for or against complainants or respondents. Further, the introductory sentence of § 106.45(b) has been revised in the final regulations to ensure that a recipient’s self-selected rules must apply equally to both parties. The Department notes that the universe of evidence given to the parties for inspection and review under § 106.45(b)(5)(vi) must consist of all evidence directly related to the allegations; determinations as to whether evidence is ‘‘relevant’’ are made when finalizing the investigative report, pursuant to § 106.45(b)(5)(vii) (requiring creation of an investigative report that ‘‘fairly summarizes all relevant evidence’’). Only ‘‘relevant’’ evidence can be subject to the decisionmaker’s objective evaluation in reaching a determination, and relevant evidence must be considered, subject to the rape shield and legally recognized privilege exceptions contained in the final regulations. This does not preclude, for instance, a recipient adopting a rule or providing training to a decision-maker regarding how to assign weight to a given type of relevant evidence, so long as such a rule applies equally to both parties. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 objectivity, while leaving recipients discretion to apply the grievance process in a manner that best fits the recipient’s needs. Similarly, the Department is not persuaded that the final regulations permit inappropriate subjectivity as to defining bias or constitute overreach into campus administrative proceedings. A commenter raising that concern noted that the same issue was raised during negotiated rulemaking under VAWA; however, the Department believes that these final regulations prohibit bias with adequate specificity (i.e., bias against complainants or respondents generally, or against an individual complainant or respondent) yet reserve adequate flexibility for recipients to apply the prohibition against bias without unduly overreaching into a recipient’s internal administrative affairs. To the extent that the commenter was arguing that prohibiting bias is itself an overreach into campus administrative decisions, the Department does not agree. The text of Title IX prohibits recipients from engaging in discrimination on the basis of sex. Biased decision making increases the risk of erroneous outcomes because bias, rather than evidence, dictates the conclusion. Sex-based bias is a specific risk in the context of sexual harassment allegations, where the underlying conduct at issue inherently raises issues related to sex, making these proceedings susceptible to improper sex-based bias that prevents reliable outcomes. Other forms of bias on the part of individuals in charge of investigating and adjudicating allegations also lessen the likelihood that outcomes are reliable and viewed as legitimate; because Title IX’s non-discrimination mandate requires that recipients accurately identify (and remedy) sexual harassment occurring in education programs or activities, these final regulations prohibit bias on the part of Title IX personnel (in § 106.45(b)(1)(iii)) and require objective evaluation of evidence (in § 106.45(b)(1)(ii)). Rather than require recipients to take ‘‘immediate action’’ to collect all evidence, the final regulations require the recipient to investigate the allegations in a formal complaint 1022 yet permit recipients flexibility to conduct the investigation, under the constraint that the investigation (and adjudication) must be completed within the recipient’s designated, reasonably prompt time frames.1023 While the final regulations do not require hearing boards (as opposed to a single individual acting as the decision1022 Section 1023 Section PO 00000 106.45(b)(5). 106.45(b)(1)(v). Frm 00224 Fmt 4701 Sfmt 4700 maker), the final regulations do not preclude the recipient from using a hearing board to function as a decisionmaker, such that more than one individual serves as a decision-maker, each of whom must fulfill the obligations under § 106.45(b)(1)(iii). Whether or not the determination regarding responsibility is made by a single decision-maker or by multiple decision-makers serving as a hearing board, § 106.45(b)(7)(ii) requires that decision-makers lay out the evidentiary basis for conclusions reached in the case, in a written determination regarding responsibility. Prior to the time that a determination regarding responsibility will be reached, § 106.45(b)(5)(vi) requires the recipient to make all evidence directly related to the allegations available to the parties for their inspection and review, and § 106.45(b)(5)(vii) requires that recipients create an investigative report that fairly summarizes all relevant evidence. The final regulations add language in § 106.45(b)(5)(vi) stating that evidence subject to inspection and review must include inculpatory and exculpatory evidence whether obtained from a party or from another source. The Department does not believe it is necessary to require investigators to identify data gaps in the investigative report, because the parties’ right to inspect and review evidence, and review and respond to the investigative report, adequately provide opportunity to identify any perceived data gaps and challenge such deficiencies. The Department disagrees that an investigator should not get to decide what is relevant, and the final regulations give the parties ample opportunity to challenge relevancy determinations. The investigator is obligated to gather evidence directly related to the allegations whether or not the recipient intends to rely on such evidence (for instance, where evidence is directly related to the allegations but the recipient’s investigator does not believe the evidence to be credible and thus does not intend to rely on it). The parties may then inspect and review the evidence directly related to the allegations.1024 The investigator must take into consideration the parties’ responses and then determine what evidence is relevant and summarize the relevant evidence in the investigative report.1025 The parties then have equal opportunity to review the investigative report; if a party disagrees with an investigator’s determination about relevance, the party can make that 1024 Section 1025 Section E:\FR\FM\19MYR2.SGM 106.45(b)(5)(vi). 106.45(b)(5)(vii). 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations argument in the party’s written response to the investigative report under § 106.45(b)(5)(vii) and to the decisionmaker at any hearing held; either way the decision-maker is obligated to objectively evaluate all relevant evidence and the parties have the opportunity to argue about what is relevant (and about the persuasiveness of relevant evidence). The final regulations also provide the parties equal appeal rights including on the ground of procedural irregularity,1026 which could include a recipient’s failure to objectively evaluate all relevant evidence, including inculpatory and exculpatory evidence. Furthermore, § 106.45(b)(1)(iii) requires the recipient’s investigator and decision-maker to be well-trained to conduct a grievance process compliant with § 106.45 including determining ‘‘relevance’’ within the parameters of the final regulations. While the Department appreciates commenters’ desire for more oversight as to how a recipient defines or ‘‘counts’’ exculpatory evidence, based on commenters’ observations that recipients have not consistently understood the need to consider exculpatory evidence as relevant, the Department believes that the final regulations adequately address this concern by specifying that relevant evidence must include both inculpatory and exculpatory evidence, ensuring the parties have opportunities to challenge relevance determinations, and requiring Title IX personnel to be trained to serve impartially including specific training for investigators and decision-makers on issues of relevance. While some commenters wished to alter the wording of the provision in numerous ways, for the reasons explained above the Department believes that § 106.45(b)(1)(ii) appropriately serves the Department’s goal of providing clear parameters for evaluation of evidence while leaving flexibility for recipients within those parameters. The Department thus declines to remove the word ‘‘objective,’’ require recipients to adopt any jurisdiction’s rules of evidence, or add rules or presumptions that would require particular types of evidence to be relevant. Changes: In the final regulations we add § 106.45(b)(1)(x), precluding the recipient from using evidence that would result in disclosure of information protected by a legally recognized privilege. The final regulations add language in § 106.45(b)(5)(vi) stating that evidence 1026 Section 106.45(b)(8). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 subject to inspection and review must include inculpatory and exculpatory evidence whether obtained from a party or from another source. We have also revised § 106.45(b)(1)(iii) to specifically require investigators and decisionmakers to receive training on issues of relevance. Section 106.45(b)(1)(iii) Impartiality and Mandatory Training of Title IX Personnel; Directed Question 4 (Training) Comments: Many commenters expressed support for § 106.45(b)(1)(iii) and, in response to the NPRM’s directed question about training, stated that the training provided for in this provision is adequate. Several commenters believed this provision provides recipients with appropriate flexibility to decide the amount and type of training recipients must provide to individuals involved with Title IX proceedings. At least one commenter, on behalf of a college, noted that the college already provides for investigators free from bias or conflict of interest. Several commenters supported this provision because its prohibition on bias, conflicts of interest, and training materials that rely on sex stereotypes will lead to impartial investigations and adjudications. One commenter asserted that the proposed regulations help reduce bias by ensuring that training programs are fair and neutral and noted that social scientists and legal academics have argued that training programs can help adjudicatory bodies make better decisions.1027 Many commenters supported § 106.45(b)(1)(iii) because of personal experiences with Title IX campus proceedings involving perceived bias or conflicts of interest that commenters believed rendered the investigation or adjudication unfair. One commenter supported this provision because the commenter believed it will counteract the ideological propaganda having to do with sex and gender that has been disseminated throughout institutions of higher education. Another commenter believed this provision will help 1027 Commenters cited: Stephen E. Fienberg & Mark J. Schervish, The Relevance of Bayesian Inference for the Presentation of Statistical Evidence and Legal Decisionmaking, 66 Boston Univ. L. Rev. 771 (1986) (advocating that jurors be instructed in Bayesian probabilities); James J. Gobert, In Search of the Impartial Jury, 79 J. Crim. L. & Criminology 269, 326 (1988) (suggesting that juries receive ‘‘impartiality training’’); Jennifer A. Richeson & Richard J. Nussbaum, The Impact of Multiculturalism Versus Color-Blindness on Racial Bias, 40 J. of Experimental Social Psychol. 417 (2004) (explaining how diversity training can lead to less implicit bias); Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, Duke L. J. 345 (2007) (arguing for diversity training). PO 00000 Frm 00225 Fmt 4701 Sfmt 4700 30249 remedy widespread sex bias against male students at colleges and universities. One commenter favored this provision because the topics considered in a Title IX process are sensitive and personal, improper handling of cases can potentially retraumatize survivors or lead to unfair outcomes for both survivors and the accused, and mandatory training should lead to better results for all involved. One commenter analyzed how and why unconscious biases and sex-based stereotypes are pernicious especially in university disciplinary hearings, can constitute Title IX violations, and lead to biased outcomes. This commenter argued that bias can subvert procedural protections, which are necessary to render fair outcomes, and biased adjudicators cannot properly carry out their duties. One commenter supported this provision’s restriction against sex stereotyping in training materials for Title IX personnel, arguing that while appropriate training can reduce bias, improper trainings can leave biases unchecked or exacerbate underlying biases. The commenter argued that numerous examples exist showing that recipients’ training documents given to adjudicators in university sexual misconduct processes have demonstrated bias especially against respondents, making it impossible for decision-makers to be impartial and unbiased.1028 Another commenter supported § 106.45(b)(1)(iii) combined with the other provisions in § 106.45 because while nothing can completely eliminate gender or racial bias from the system, bias can be reduced by expanding the evidence considered by decisionmakers, a function served by a full investigation and hearings with crossexamination. The commenter argued that decisions are most biased when they rely on less evidence and more hunches because hunches are easily tainted by subconscious racial or gender 1028 Commenters asserted that as of 2014, Harvard Law School’s disciplinary board training contained slides to this effect and that one Harvard Law School professor stated that these slides were ‘‘100% aimed to convince [adjudicators] to believe complainants, precisely when they seem unreliable and incoherent’’ citing to Emily Yoffe, The Bad Science Behind Campus Response to Sexual Assault, The Atlantic (Sept. 8, 2017). Commenters further stated that at Ohio State University, for instance, decision-makers were told that a ‘‘victim centered approach can lead to safer campus communities.’’ Doe v. Ohio State Univ., No. 2:15– CV–2830, 2016 WL 692547, at *3 (S.D. Ohio, Feb. 22, 2016). Commenters further stated that same Ohio State University training guide, for example, told decision-makers that ‘‘[s]ex offenders are overwhelmingly white males.’’ Id.; see also Doe v. Univ. of Pa., 270 F. Supp. 3d 799, 823 (E.D. Pa. 2017). E:\FR\FM\19MYR2.SGM 19MYR2 30250 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations bias.1029 The commenter asserted that the obligation of the law under Title IX is to treat each person as an individual, not as a member of a class subject to prejudgment and prejudice on the basis of sex, and nowhere is the problem of sex bias more pronounced than in the area of perception, prejudgment, and prejudice in the matter of incidences of violence between members of the opposite sex. The commenter supported the Department’s proposed rules, including this provision, based on the Department’s authority and obligation to issue regulations that end the discrimination based on sex that exists in Title IX programs themselves.1030 One commenter supported this provision but noted that the Supreme Court has recognized that as a practical matter it is difficult if not impossible for an adjudicator ‘‘to free himself from the influence’’ of circumstances that would give rise to bias, and the private nature of motives ‘‘underscore the need for objective rules’’ for determining when an adjudicator is biased.1031 This commenter asserted recipients thus need to have objective rules for determining bias. A few commenters supporting this provision recommended that the Department, or recipients on their own, establish a clear process or mechanism for reporting conflicts of interest or demanding recusal for bias during the investigative process. Several commenters supported this provision but urged the Department to make the training materials referred to in § 106.45(b)(1)(iii) publicly available because transparency is the most effective means to eradicate the problems with biased Title IX 1029 In support of the proposition that most decisions after a full trial are not based on using race as a proxy but rather on the evidence at trial, resulting in racially fair decisions, while racial bias is rampant in low-stakes, low-evidence decision making where people make decisions on little evidence, the commenter cited Stephen P. Klein, et al., Race and Imprisonment Decisions in California, 247 Science 812 (1990). More than one commenter cited to Driving While Black in Maryland, American Civil Liberties Union (ACLU) (Feb. 2, 2010) https:// www.aclu.org/cases/driving-while-black-maryland, for similar propositions. 1030 Commenters asserted that services for male victims of opposite sex violence are nearly nonexistent at educational institutions and in society at large because of an ingrained ‘‘man as perpetrator/ woman as victim’’ stereotype, which stereotype has always been false, shown by CDC data revealing the prevalence of male victims of sexual violence: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, The National Intimate Partner and Sexual Violence Survey (NISVS): 2015 Data Brief Tables 9, 11 (2018). 1031 Commenters cited: Caperton v. A. T. Massey Coal Co., 556 U.S. 868, 883 (2009) (holding that a judge cannot hear a case centered on the financial interests of someone who substantially supported the judge’s election campaign). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 proceedings, which problems are often rooted in biased training materials. These commenters argued that when recipients know that their training materials are subject to scrutiny, recipients will be more careful to ensure that Title IX personnel are being trained to be impartial. One commenter asserted that a lot of training is conducted via webinars and that public disclosure of training materials must include audio and video of the training as well as documents or slideshow presentations used during the training. Discussion: The Department appreciates commenters’ support for § 106.45(b)(1)(iii), and the commenters who provided feedback in response to the Department’s directed question as to whether this provision adequately addresses training implicated under the proposed rules. The Department agrees with commenters who noted that prohibiting conflicts of interest and bias, including racial bias, on the part of people administering a grievance process is an essential part of providing both parties a fair process and increasing the accuracy and reliability of determinations reached in grievance processes. Recognizing that commenters recounted instances of experience with perceived conflicts of interest and bias that resulted in unfair treatment and biased outcomes, the Department believes that this provision provides a necessary safeguard to improve the impartiality, reliability, and legitimacy of Title IX proceedings.1032 The Department agrees with a commenter who asserted that recipients should have objective rules for determining when an adjudicator (or Title IX Coordinator, investigator, or person who facilitates an informal resolution process) is biased, and the Department leaves recipients discretion to decide how best to implement the prohibition on conflicts of interest and bias, including whether a recipient wishes to provide a process for parties to assert claims of conflict of interest of bias during the investigation. The Department notes that § 106.45(b)(8) in the final regulations requires recipients to allow both parties equal right to appeal including on the basis that the Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias that affected the outcome. The Department is persuaded by the numerous commenters who urged the 1032 The 2001 Guidance at 21 contained a similar training recommendation: ‘‘Finally, the school must make sure that all designated employees [referring to designated Title IX Coordinators] have adequate training as to what conduct constitutes sexual harassment and are able to explain how the grievance procedure operates.’’ PO 00000 Frm 00226 Fmt 4701 Sfmt 4700 Department to require training materials to be available for public inspection, to create transparency and better effectuate the requirements of § 106.45(b)(1)(iii). The final regulations impose that requirement in § 106.45(b)(10). Additionally, the Department will not tolerate discrimination on the basis of race, color, or national origin, which is prohibited under Title VI. If any recipient discriminates against any person involved in a Title IX proceeding on the basis of that person’s race, color, or national origin, then the Department will address such discrimination under Title VI and its implementing regulations, in addition to such discrimination potentially constituting bias prohibited under § 106.45(b)(1)(iii) of these final regulations. Changes: The final regulations revise § 106.45(b)(10)(i)(D) to require that training materials referred to in § 106.45(b)(1)(iii) must be made publicly available on a recipient’s website, or if the recipient does not have a website such materials must be made available upon request for inspection by members of the public. Comments: Several commenters expressed skepticism that any recipient employees can be objective, fair, unbiased, or free from conflicts of interest because a recipient’s employees share the recipient’s interest in protecting the recipient’s reputation or furthering a recipient’s financial interests. Some commenters asserted this leads to recipient employees being unwilling to treat complainants fairly while others asserted this leads to recipient employees being unwilling to treat respondents fairly. A few commenters asserted that this problem of inherent conflicts of interest between recipient employees and complainants means that the only way to avoid conflicts of interest is to require recipients to use an external, impartial arbiter or require investigations to be done by people unaffiliated with any students in the school, and one commenter argued that because all paid staff members are biased (in favor of the recipient), the solution is to allow complainants and respondents to pick the persons who run the grievance proceedings similar to jury selection. One commenter suggested that to counter institutional bias, which the commenter argued was on display in notorious cover-up situations at prestigious universities where employees committed sexual abuse, the proposed rules should specifically require training on conflicts of interest caused by employees’ misplaced loyalty to the recipient. Another commenter stated that schools must be required to E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations purchase liability insurance covering exposure arising from the handling of sexual harassment claims, to ensure that they do not have a secret conflict of interest that might cause them to put a finger on the scale one way or the other in the course of investigating or adjudicating a Title IX complaint. Several commenters indicated that this provision seems reasonable but requested clarity as to what might in practice constitute a conflict of interest under § 106.45(b)(1)(iii), with one commenter noting that this issue often arises when a school district hires their legal counsel, insurance carrier, or risk pool to complete an investigation or respond to a formal complaint. Another commenter requested more information on what would constitute ‘‘general bias’’ for or against complainants or respondents under this provision, expressing concern that without any framework for evaluating whether a particular administrator is tainted by such bias this provision is amorphous and will add confusion and grounds for attack at smaller institutions where many student affairs administrators fill several different roles. Another commenter asked for clarification that school employees serving in the Title IX process should be presumed to be unbiased notwithstanding having previously investigated a matter involving one or more of particular parties, or else this provision could be quite costly by requiring a school district to hire outside investigators every time an investigator deals with a party more than once. Several commenters recommended countering inherent institutional conflicts of interest on the part of recipient employees by revising the final regulations to avoid any commingling of administrative and adjudicative roles. Several commenters offered the specific recommendation that the Title IX Coordinator must not be an employment supervisor of the decision-maker in the school’s administrative hierarchy and if investigators are independent contractors, the Title IX Coordinator should not have a role in hiring or firing such investigators. The same commenters recommended bolstering neutrality and independence by removing the role of counseling complainants from the office that coordinates the grievance process and requiring that investigators have some degree of institutional independence. One commenter asserted that if the Department intends to prohibit any overlap in responsibilities among the Title IX Coordinator, investigator, or VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 decision-maker, the Department must make that intention clear. Many commenters requested clarification as to whether this provision’s prohibition against conflicts of interest and bias would be interpreted to bar anyone from being a Title IX Coordinator, investigator, or decisionmaker if the person currently or in their past has ever advocated for victims’ rights or otherwise worked in sexual violence prevention fields. Several commenters argued against such an interpretation because individuals with that kind of experience are often highly knowledgeable about sexual violence and able to serve impartially, while several other commenters argued that Title IX-related personnel are a selfselected group likely to include victim advocates, self-identified victims, and those associated with women’s studies and thus come to a Title IX role with biases against men, respondents, or both. One commenter asserted that while the choice of a professor’s field of study may or may not indicate bias, the fact that a university relies on volunteers to staff Title IX hearing panels is highly questionable because self-selection creates the likelihood that those who ‘‘want’’ to serve on a Title IX hearing board have preconceived ideas and views about whether male students are guilty, regardless of the actual facts and circumstances, and thus the final regulations should require the recipient to select decision-makers based on random selection from its entire faculty and administrators. One commenter shared an example of bias on the part of the single administrator tasked with ruling on the commenter’s client’s appeal of a responsibility finding, where the appeal decision-maker had recently retweeted a survivor advocacy organization’s tweet ‘‘To survivors everywhere, we believe you,’’ yet the recipient overruled a bias objection stating that nothing suggested that such a tweet meant the appeal decisionmaker was biased against that particular respondent. This commenter proposed adding language explaining that a ‘‘reasonable person’’ standard will be applied to determine bias, along with cautionary language that a history of working or advocating on one side or another of this issue might constitute bias. One commenter asserted that Federal courts of appeal, including the Sixth Circuit, agree that ‘‘being a feminist, being affiliated with a genderstudies program, or researching sexual assault does not support a reasonable inference than an individual is biased PO 00000 Frm 00227 Fmt 4701 Sfmt 4700 30251 against men.’’ 1033 This commenter believed that the proposed rules offered no clarity on whether the Department would consider bias claims based on being a feminist or working in the sexual assault field to be ‘‘frivolous’’ or would be taken seriously. Several commenters urged the Department to expand this provision to prohibit ‘‘perceived’’ conflicts of interest or ‘‘the appearance’’ of bias in line with standards that require judges not to have even the appearance of bias or impropriety; other commenters urged the Department to apply a presumption that campus decision-makers are free of bias, noting that courts require proof that a conduct official had an ‘‘actual’’ bias against the party because of the party’s sex, and the proposed rules seem to reverse this judicial presumption, opening the door to numerous claims that undermine the presumption of honesty in campus proceedings. One commenter suggested a more clearly defined standard by specifying that Title IX personnel not have a personal bias or prejudice for or against complainants or respondents generally, and not have an interest, relationship, or other consideration that may compromise or have the appearance of compromising the individual’s judgment with respect to any individual complainant or respondent. One commenter suggested that this provision should require ‘‘nondiscriminatory’’ investigations and adjudications instead of being ‘‘not biased.’’ One commenter believed that student leaders should take more responsibility for addressing sexual misconduct and might do a better job than bureaucrats can; the commenter asserted that the final regulations should not prohibit recipients from relying on students to investigate and adjudicate sexual misconduct cases. Discussion: The Department understands commenters’ concerns that the final regulations work within a framework where a recipient’s own employees are permitted to serve as Title IX personnel,1034 and the potential conflicts of interest this creates. The final regulations leave recipients flexibility to use their own employees, or to outsource Title IX investigation and adjudication functions, and the Department encourages recipients to pursue alternatives to the inherent difficulties that arise when a recipient’s own employees are expected to perform these functions free from conflicts of 1033 Commenter cited: Doe v. Miami Univ., 882 F.3d 579, 593 fn. 6 (6th Cir. 2018). 1034 References in this preamble to ‘‘Title IX personnel’’ mean Title IX Coordinators, investigators, decision-makers, and persons who facilitate informal resolution processes. E:\FR\FM\19MYR2.SGM 19MYR2 30252 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations interest and bias. The Department notes that several commenters favorably described regional center models that could involve recipients coordinating with each other to outsource Title IX grievance proceedings to experts free from potential conflicts of interest stemming from affiliation with the recipient. The Department declines to require recipients to use outside, unaffiliated Title IX personnel because the Department does not conclude that such prescription is necessary to effectuate the purposes of the final regulations; although recipients may face challenges with respect to ensuring that personnel serve free from conflicts of interest and bias, recipients can comply with the final regulations by using the recipient’s own employees. Unless prescription is necessary to achieve compliance with the final regulations, the Department does not wish to interfere with recipients’ discretion to conduct a recipient’s own internal, administrative affairs. The Department is also sensitive to the reality that prescriptions regarding employment relationships likely will result in many recipients being compelled to hire additional personnel in order to comply with these final regulations, and the Department wishes to prescribe only those measures necessary for compliance, without unnecessarily diverting recipients’ resources into hiring personnel and away from other priorities important to recipients and the students they serve. For these reasons, the Department declines to define certain employment relationships or administrative hierarchy arrangements as per se prohibited conflicts of interest under § 106.45(b)(1)(iii).1035 The Department is cognizant that the Department’s authority under Title IX extends to regulation of recipients themselves, and not to the individual personnel serving as Title IX Coordinators, investigators, decision-makers, or persons who facilitate an informal resolution process. Thus, the Department will hold a recipient accountable for the end result of using Title IX personnel free from conflicts of interest and bias, regardless of the employment or supervisory relationships among various Title IX personnel. To the extent that recipients 1035 Although the decision-maker must be different from any individual serving as a Title IX Coordinator or investigator, pursuant to § 106.45(b)(7)(i), the final regulations do not preclude a Title IX Coordinator from also serving as the investigator, and the final regulations do not prescribe any particular administrative ‘‘chain of reporting’’ restrictions or declare any such administrative arrangements to be per se conflicts of interest prohibited under § 106.45(b)(1)(iii). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 wish to adopt best practices to better ensure that conflicts of interest do not cause violations of the final regulations, recipients have discretion to adopt practices suggested by commenters, such as ensuring that investigators have institutional independence or deciding that Title IX Coordinators should have no role in the hiring or firing of investigators. For similar reasons, the Department declines to state whether particular professional experiences or affiliations do or do not constitute per se violations of § 106.45(b)(1)(iii). The Department acknowledges the concerns expressed both by commenters concerned that certain professional qualifications (e.g., a history of working in the field of sexual violence) may indicate bias, and by commenters concerned that excluding certain professionals out of fear of bias would improperly exclude experienced, knowledgeable individuals who are capable of serving impartially. Whether bias exists requires examination of the particular facts of a situation and the Department encourages recipients to apply an objective (whether a reasonable person would believe bias exists), common sense approach to evaluating whether a particular person serving in a Title IX role is biased, exercising caution not to apply generalizations that might unreasonably conclude that bias exists (for example, assuming that all selfprofessed feminists, or self-described survivors, are biased against men, or that a male is incapable of being sensitive to women, or that prior work as a victim advocate, or as a defense attorney, renders the person biased for or against complainants or respondents), bearing in mind that the very training required by § 106.45(b)(1)(iii) is intended to provide Title IX personnel with the tools needed to serve impartially and without bias such that the prior professional experience of a person whom a recipient would like to have in a Title IX role need not disqualify the person from obtaining the requisite training to serve impartially in a Title IX role. In response to commenters’ concerns that the prohibition against conflicts of interest and bias is unclear, the Department revises this provision to mandate training in ‘‘how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias’’ in place of the proposed language for training to ‘‘protect the safety of students, ensure due process protections for all parties, and promote accountability.’’ This shift in language is intended to reinforce that recipients have significant control, and PO 00000 Frm 00228 Fmt 4701 Sfmt 4700 flexibility, to prevent conflicts of interest and bias by carefully selecting training content focused on impartiality and avoiding prejudgment of the facts at issue, conflicts of interest, and bias. The Department disagrees with the commenter who suggested replacing ‘‘bias’’ in this provision with ‘‘nondiscrimination.’’ Based on anecdotal evidence from commenters asserting specific instances that ostensibly reveal a recipient’s Title IX personnel exhibiting bias for or against men, women, complainants, or respondents, the Department believes that bias, especially sex-based bias, is a particular risk in Title IX proceedings and aims specifically to reduce and prevent bias from influencing how a recipient responds to sexual harassment including through required training for Title IX personnel.1036 The Department declines to narrow or widen this provision by specifying whether conflicts of interest or bias must be ‘‘actual’’ or ‘‘perceived,’’ and declines to adopt an ‘‘appearance of bias’’ standard. As noted above, the topic of sexual harassment inherently involves issues revolving around sex and sexual dynamics such that a standard of ‘‘appearance of’’ or ‘‘perceived’’ bias might lead to conclusions that most people are biased in one direction or another by virtue of being male, being female, supporting women’s rights or supporting men’s rights, or having had personal, negative experiences with men or with women. The Department believes that keeping this provision focused on ‘‘bias’’ paired with an expectation of impartiality helps appropriately focus on bias that impedes impartiality. The Department cautions parties and recipients from concluding bias, or possible bias, based solely on the outcomes of grievance processes decided under the final regulations; for example, the mere fact that a certain number of outcomes result in determinations of responsibility, or non-responsibility, does not necessarily indicate or imply bias on the part of Title IX personnel. The entire purpose of the § 106.45 grievance process is to increase the reliability and accuracy of outcomes in Title IX proceedings, and the number of particular outcomes, alone, thus does not raise an inference of bias because the final regulations 1036 E.g., Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L. J. 345 (2007) (arguing for diversity training); Jennifer A. Richeson & Richard J. Nussbaum, The Impact of Multiculturalism Versus Color-Blindness on Racial Bias, 40 J. of Experimental Social Psychol. 417 (2004) (explaining how diversity training can lead to less implicit bias). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations help ensure that each individual case is decided on its merits. The Department notes that the final regulations do not preclude a recipient from allowing student leaders to serve in Title IX roles so long as the recipient can meet all requirements in § 106.45 and these final regulations,1037 and leaves it to a recipient’s judgment to decide under what circumstances, if any, a recipient wants to involve student leaders in Title IX roles. Changes: Section 106.45(b)(1)(iii) is revised to specify that the required training include ‘‘how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias’’ in place of the proposed language ‘‘that protect the safety of students, ensure due process protections for all parties, and promote accountability.’’ 1038 Comments: One commenter asked whether the training on the definition of sexual harassment referenced in § 106.45(b)(1)(iii) means the definition in § 106.30, a definition used by the recipient (that might be broader than in § 106.30), or both. One commenter wondered why this provision removes vital sexual harassment training of school personnel but gave no explanation for drawing this conclusion. Several commenters noted that § 106.45(b)(1)(iii) does not state the frequency for the required training and wondered if it must be annual, while several others requested more clarity about what would be considered adequate training especially for a decision-maker expected to conduct a live hearing with cross-examination, and further explanation of what kinds of training materials foster impartial determinations. One commenter stated that § 106.45(b)(1)(iii) does not provide for a standardized level of training or offer financial assistance for training personnel. One commenter agreed with the proposed rules’ effort to diagnose severe training gaps in the Title IX system but because this provision mandates training ‘‘conceptually’’ without specifying what the training must include, the commenter asserted that the inevitable result will be more Dear Colleague Letters and guidance from the Department, which the Department should avoid by taking time 1037 For example, § 106.8(a) specifies that the Title IX Coordinator must be an ‘‘employee’’ designated and authorized by the recipient to coordinate the recipient’s efforts to comply with Title IX obligations. No such requirement of employee status applies to, for instance, serving as a decision-maker on a hearing panel. 1038 Because revised § 106.45(b)(8) now requires recipients to offer appeals, § 106.45(b)(1)(iii) has also been revised to include training on conducting appeals. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 to include more specific training requirements in these final regulations. Many commenters expressed views about this provision’s prohibition against the use of ‘‘sex stereotypes’’ in training materials. Some commenters urged the Department to include a definition of ‘‘sex stereotypes,’’ asserting that without clarity this provision is a legal morass exposing recipients to liability. One commenter asserted that ‘‘bias’’ lacks a definitive legal meaning and should be replaced by ‘‘nondiscriminatory.’’ Some commenters argued that without a definition, this provision could be interpreted to forbid recipients from relying on research and evidence-based practices that instruct personnel to reject notions of ‘‘regret sex’’ and women lying about sexual assault. Other commenters requested clarity that stereotypes of men as sexually aggressive or likely to perpetrate sexual assault and references to ‘‘toxic masculinity’’ are prohibited under this provision. One commenter argued that the First Amendment likely prohibits the Department from dictating that training materials be free from sex stereotypes or that if the Department no longer perceives the First Amendment as a barrier to the Federal government prohibiting sex stereotyping materials then the Department should repeal 34 CFR 106.42 and replace it with a prohibition against reliance on sex stereotyping that extends to all training or educational materials used by a recipient for any purpose. This commenter also requested clarification as to whether § 106.45(b)(1)(iii) would prohibit reliance on peer-reviewed journal articles that state, for example,1039 that trauma victims often recall only some vivid details from their ordeal and that memories may be impaired with amnesia or gaps or contain false details following extreme cases of negative emotions, such as rape trauma. Another commenter expressed concern that this provision might result in information provided by sexual violence experts being forbidden, resulting in respondents’ lawyers’ opinions replacing peer-reviewed, scientific data. One commenter urged the Department to interpret this provision to require training around bias that exists against complainants and to clarify that the ‘‘Start by Believing’’ approach promoted by End Violence Against Women International should be part of these training requirements 1039 Commenters cited: Katrin Hohl & Martin Conway, Memory as Evidence: How Normal Features of Victim Memory Lead to the Attrition of Rape Complaints, 17 Criminology & Criminal Justice 3 (2017). PO 00000 Frm 00229 Fmt 4701 Sfmt 4700 30253 because that approach trains investigators to start by believing the survivor to avoid incorporating personal bias and victim-blaming myths that might bias the investigation against the survivor. The commenter asserted that understanding the dynamics of sexual trauma is necessary in order to treat both complainants and respondents fairly without bias. Another commenter asserted that ‘‘start by believing’’ is not appropriate for investigations but is appropriate for counseling and thus, the final regulations should require that for counseling purposes personnel must ‘‘start by believing’’ a complainant or a respondent seeking counseling. One commenter suggested this provision be modified to require training to have a working understanding of impartiality. One commenter contended that training materials should never be allowed to refer to the AAU/Westat Report 1040 for the statistic that one-in-four women are raped on college campuses because there are so many methodological problems with that report that using it constitutes sex discrimination under Title IX. One commenter argued that § 106.45(b)(1)(iii) must not be applied to exclude the application of proven profiles and indicators of certain predictive behaviors because that is a tried and tested practice in professional law enforcement and should be utilized according to best practices of trained investigators in any quest for the truth. Discussion: The Department appreciates a commenter asking whether the training on the definition of sexual harassment in this provision was intended to refer to the definition of sexual harassment in § 106.30; to clarify that was the intent of this provision, § 106.45(b)(1)(iii) has been revised to so state. The Department disagrees that this provision removes vital training regarding a recipient’s responses to sexual harassment; rather, this provision prescribes mandatory training for Title IX personnel that promotes the purpose of a Title IX process and compliance with these final regulations, and leaves recipients free to adopt additional education and training content that a recipient believes serves the needs of the recipient’s community. Commenters correctly noted that the final regulations do not impose an annual or other frequency condition on the mandatory training required in § 106.45(b)(1)(iii). The Department interprets this provision as requiring that any Title IX 1040 Commenters cited: The Association of American Universities, Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct (Westat 2015). E:\FR\FM\19MYR2.SGM 19MYR2 30254 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Coordinator, investigator, decisionmaker, or person who facilitates an informal resolution process will, when serving in such a role, be trained to serve in that role. The Department wishes to leave recipients flexibility to decide to what extent additional training is needed to ensure that Title IX personnel are trained when they serve 1041 so that recipients efficiently allocate their resources among Title IX compliance obligations and other important needs of their educational communities. The Department disagrees with a commenter concerned that failing to be more prescriptive about the content of training in these final regulations necessarily will result in the Department issuing Dear Colleague Letters imposing training content requirements in the future. The Department is committed to imposing legally binding requirements by following applicable rulemaking processes. The Department is persuaded by commenters’ concerns that it is beneficial for § 106.45(b)(1)(iii) to emphasize the need for decision-makers to receive training in how to conduct hearings, and we have revised this provision to specify that decisionmakers receive training in how to conduct a grievance process including how to use technology that will be used by a recipient to conduct a live hearing, and on issues of the relevance of questions and evidence (including how to determine the relevance or irrelevance of a complainant’s prior sexual history), and that investigators receive training on issues of relevance in order to prepare an investigative report that fairly summarizes relevant evidence. The Department appreciates the many commenters who requested a definition of ‘‘sex stereotypes’’ and asked that such a definition include, or exclude, particular generalizations and notions about women or about men. For reasons similar to those discussed above with respect to defining ‘‘bias’’ on the part of 1041 Some commenters questioned whether advisors provided to a party by a postsecondary institution recipient pursuant to § 106.45(b)(6)(i) must be free from conflicts of interest and bias and must be trained. The final regulations impose no prohibition of conflict of interest or bias for such advisors, nor any training requirement for such advisors, in order to leave recipients as much flexibility as possible to comply with the requirement to provide those advisors. The Department believes that advisors in such a role do not need to be unbiased or lack conflicts of interest precisely because the role of such advisor is to conduct cross-examination on behalf of one party, and recipients can determine to what extent a recipient wishes to provide training for advisors whom a recipient may need to provide to a party to conduct cross-examination. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Title IX personnel, the Department declines to list or define what notions do or do not constitute sex stereotypes on which training materials must not rely. The Department disagrees that a broad prohibition against sex stereotypes is a legal morass exposing recipients to liability, any more than Title IX’s broad prohibition against ‘‘sex discrimination’’ does so. It is not feasible to catalog the variety of notions expressing generalizations and stereotypes about the sexes that might constitute sex stereotypes, and the Department’s interest in ensuring impartial Title IX proceedings that avoid prejudgment of the facts at issue necessitates a broad prohibition on sex stereotypes so that decisions are made on the basis of individualized facts and not on stereotypical notions of what ‘‘men’’ or ‘‘women’’ do or do not do. To reinforce this necessity, the final regulations use ‘‘must’’ instead of ‘‘may’’ to state that training materials ‘‘must’’ not rely on sex stereotypes. Contrary to the concerns of some commenters, a prohibition against reliance on sex stereotypes does not forbid training content that references evidence-based information or peerreviewed scientific research into sexual violence dynamics, including the impact of trauma on sexual assault victims. Rather, § 106.45(b)(1)(iii) cautions recipients not to use training materials that ‘‘rely’’ on sex stereotypes in training Title IX personnel on how to serve in those roles impartially and without prejudgment of the facts at issue, meaning that research and data concerning sexual violence dynamics may be valuable and useful, but cannot be relied on to apply generalizations to particular allegations of sexual harassment. Commenters provided numerous examples of training materials containing phrases that may, or may not, violate the final regulations, but a fact-specific evaluation of the training materials and their use by the recipient would be needed to reach a conclusion regarding whether such materials comply with § 106.45(b)(1)(iii). We have revised § 106.45(b)(10) to require recipients to post on a recipient’s website the training materials referred to in § 106.45(b)(1)(iii) so that a recipient’s approach to training Title IX personnel may be transparently viewed by the recipient’s educational community and the public, including for the purpose of holding a recipient accountable for using training materials that comply with these final regulations. The Department does not believe that placing parameters around the training materials specifically needed to comply with Title IX regulations violates the PO 00000 Frm 00230 Fmt 4701 Sfmt 4700 First Amendment rights of recipients because the final regulations do not interfere with the right of recipients to control the recipient’s own curricula and academic instruction materials. The Department is not proactively scouring recipients’ curricula to spot instances of sex stereotyping; rather, the Department is placing reasonable conditions on materials specifically used by recipients to carry out recipients’ obligations under these final regulations. For reasons explained above, the Department does not wish to be more prescriptive than necessary to achieve the purposes of these final regulations, and respects the discretion of recipients to choose how best to serve the needs of each recipient’s community with respect to the content of training provided to Title IX personnel so long as the training meets the requirements in these final regulations. Thus, the Department declines to require recipients to adopt the ‘‘Start by Believing’’ approach promoted by End Violence Against Women, and cautions that a training approach that encourages Title IX personnel to ‘‘believe’’ one party or the other would fail to comply with the requirement that Title IX personnel be trained to serve impartially, and violate § 106.45(b)(1)(ii) precluding credibility determinations based on a party’s status as a complainant or respondent. The Department takes no position on whether ‘‘start by believing’’ should be an approach adopted by non-Title IX personnel affiliated with a recipient, such as counselors who provide services to complainants or respondents. The Department wishes to emphasize that parties should be treated with equal dignity and respect by Title IX personnel, but doing so does not mean that either party is automatically ‘‘believed.’’ The credibility of any party, as well as ultimate conclusions about responsibility for sexual harassment, must not be prejudged and must be based on objective evaluation of the relevant evidence in a particular case; for this reason, the Department cautions against training materials that promote the application of ‘‘profiles’’ or ‘‘predictive behaviors’’ to particular cases. The Department declines to predetermine whether particular studies or reports do or do not violate § 106.45(b)(1)(iii) or opine on the validity of particular reports, but encourages recipients to examine the information utilized in training of Title IX personnel to ensure compliance with this provision. Changes: Section 106.45(b)(1)(iii) clarifies that the training on the definition of sexual harassment means E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the definition in § 106.30,1042 requires Title IX personnel to be trained on how to conduct a grievance process, requires investigators and decision-makers to be trained on issues of relevance (including when questions and evidence about a complainant’s sexual predisposition or prior sexual behavior are not relevant), requires decision-makers to be trained on technology to be used at any live hearing, and changes ‘‘may’’ to ‘‘must’’ in the directive that training materials not rely on sex stereotypes. Comments: Several commenters suggested that § 106.45(b)(1)(iii) be expanded to include training for Title IX personnel on a variety of subjects. At least one commenter urged the Department to adopt the training language from the withdrawn 2014 Q&A.1043 Without referencing the 2014 Q&A a few commenters suggested that training address similar topics such as: The neurobiology of trauma, counterintuitive responses to sexual violence, false reporting, barriers to reporting, incapacitation versus intoxication and blackout behaviors, assessing credibility in the context of trauma, Title IX compliance as it intersects with the Clery Act, FERPA, child protective services legislation, disability laws, and other laws that may intersect with Title IX, healthy sexuality and consent including affirmative consent, risk factors for sexual violence victimization, bystander intervention, rates of prevalence, addressing bias using an anti-oppression framework, effective interviewing of survivors such as forensic experiential models, cultural competency to address specific issues that affect marginalized survivors (e.g., LGBTQ individuals, persons with 1042 As discussed in the ‘‘Section 106.44(a) ‘education program or activity’ ’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble, the training requirements for Title IX personnel in § 106.45(b)(1)(iii) now also include training on the scope of the recipient’s education program or activity. 1043 Commenters cited: 2014 Q&A at 40 (‘‘Training should include information on working with and interviewing persons subjected to sexual violence; information on particular types of conduct that would constitute sexual violence, including same-sex sexual violence; the proper standard of review for sexual violence complaints (preponderance of the evidence standard); information on consent and the role drugs or alcohol can play in the ability to consent; the importance of accountability for individuals found to have committed sexual violence; the need for remedial actions for the perpetrator, complainant, and school community; how to determine credibility; how to evaluate evidence and weigh it in an impartial manner; how to conduct investigations; confidentiality; the effects of trauma, including neurobiological change; and cultural awareness training regarding how sexual violence may impact students differently depending on their cultural backgrounds.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 disabilities, persons of color, or persons who are undocumented or economically disadvantaged). One commenter stated that training should ensure that Title IX personnel are first ‘‘mentored’’ by someone with experience before working directly with survivors. One commenter suggested the Department create an aspirational list of training components. One commenter asked the Department to define ‘‘training materials’’ as limited to material the recipient itself designates as essential for performing the applicable Title IX role, so as not to sweep up a range of professional continuing education presentations into the ambit of § 106.45(b)(1)(iii) just because such professional training seminars might mention something relevant to Title IX. Discussion: For the reasons explained above, the Department has determined that § 106.45(b)(1)(iii) in the final regulations strikes the appropriate balance between mandating training topics the Department believe are necessary to promote a recipient’s compliance with these final regulations while leaving as much flexibility as possible to recipients to choose the content and substance of training topics in addition to the topics mandated by this provision. Thus, the Department declines to expand this provision to mandate that training address the topics suggested by commenters. As discussed in this preamble under the § 106.44(a) ‘‘education program or activity’’ condition, the final regulations revise the training requirements in § 106.45(b)(1)(iii) to require training of Title IX personnel on the ‘‘scope of the recipient’s education program or activity.’’ The Department makes this change in response to commenters concerned that the ‘‘education program or activity’’ condition was misunderstood too narrowly, for example as excluding all sexual harassment incidents that occur off campus. This revision to the training requirements in § 106.45(b)(1)(iii) helps to ensure that recipients do not inadvertently fail to treat as Title IX matters sexual harassment incidents that occur in the recipient’s education program or activity. As explained above in this section of the preamble, we have also revised this provision to: Add training on appeals and informal resolution processes in addition to hearings (as applicable); specify that Title IX personnel must be trained on the definition of sexual harassment in § 106.30 and on how to serve impartially without prejudgment of the facts at issue and how to avoid bias and conflicts of interest; specify that PO 00000 Frm 00231 Fmt 4701 Sfmt 4700 30255 investigators and decision-makers must be trained on issues of relevance; and specify that decision-makers receive training on how to use technology at live hearings. As explained below in this section of the preamble, we also revise § 106.45(b)(1)(iii) to include ‘‘person who facilitates an informal resolution process’’ to the list of Title IX personnel who must receive training. The Department declines to require that Title IX personnel be ‘‘mentored’’ before working with parties, or to create an aspirational list of training components. The Department’s intent with respect to this provision is to provide flexibility for each recipient to design or select training components that best serve the recipient’s unique needs and educational environment, while prescribing those training topics necessary for a recipient to comply with these final regulations. The Department appreciates the commenter’s request for clarification that the training materials subject to these final regulations should be only those training materials specifically designated by the recipient as essential to performing Title IX personnel functions. In order to reasonably gauge compliance with the final regulations, the Department instead reserves the right to examine training materials whether or not a recipient has not specifically designated the material as essential to performing a Title IX role. Changes: The final regulations revise this provision to include training on the scope of a recipient’s education program or activity; add training on appeals and informal resolution processes in addition to hearings (as applicable); specify that Title IX personnel must be trained on the definition of sexual harassment in § 106.30 and on how to serve impartially without prejudgment of the facts at issue and how to avoid bias and conflicts of interest; specify that investigators and decision-makers must be trained on issues of relevance; specify that decision-makers receive training on how to use technology at live hearings; and add ‘‘person who facilitates an informal resolution process’’ to the list of Title IX personnel who must receive training. Comments: Many commenters expressed views about whether § 106.45(b)(1)(iii) should be applied to include or exclude training materials promoting ‘‘trauma-informed’’ practices, techniques, and approaches. One commenter believed that using ‘‘impartial’’ instead of ‘‘traumainformed’’ is offensive to rape victims, for whom trauma necessitates a cognitive interview that takes the effects of trauma into account, while another E:\FR\FM\19MYR2.SGM 19MYR2 30256 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations commenter believed training must require trauma-informed best practices. A few commenters believed that the provision should address the use of trauma-informed theories by cautioning against misuse of victim-centered approaches for any purpose other than interviewing or counseling; these commenters distinguished between remaining ‘‘impartial,’’ one the one hand, while still using trauma-informed methods when questioning a complainant so that the investigator does not expect a trauma victim to provide details in chronological order, on the other hand. Several commenters asserted that trauma-informed and believe-the-victim approaches must be prohibited in the interview process because those approaches compromise objectivity, create presumptions of guilt, and result in exclusion of relevant (often exculpatory) evidence. At least one commenter suggested that FETI (forensic experimental trauma interview) techniques should be required. One commenter stated that several states including New York, California, and Illinois mandate traumainformed training 1044 for campus officials who respond to sexual assault and asserted that the proposed rules are unclear about whether the Department’s position is that trauma-informed practices constitute a form of sex discrimination,1045 thus inviting further litigation on this issue. Discussion: The Department understands from personal anecdotes and research studies that sexual violence is a traumatic experience for survivors. The Department is aware that the neurobiology of trauma and the impact of trauma on a survivor’s neurobiological functioning is a developing field of study with application to the way in which investigators of sexual violence offenses interact with victims in criminal justice systems and campus sexual misconduct proceedings. The Department appreciates the views of commenters urging that trauma-informed practices be mandatory, and those urging that such practices be forbidden, and the commenters noting that traumainformed practices are required in some States, and noting there is a difference between applying such practices in 1044 Commenters cited a white paper by Jeffrey J. Nolan, Promoting Fairness in Trauma-Informed Investigation Training, NACUA Notes, vol. 16, no. 5, p. 3 (Feb. 8, 2018), now updated as: Jeffrey J. Nolan, Fair, Equitable Trauma-Informed Investigation Training (Holland & Knight updated July 19, 2019). 1045 The commenter asserted that Federal courts tend to reject this proposition, citing for example Doe v. Univ. of Or., No. 6:17–CV–01103, 2018 WL 1474531 (D. Or. Mar. 26, 2018). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 different contexts (i.e., interview and questioning techniques, providing counseling services, or when making investigatory decisions about relevant evidence and credibility or adjudicatory decisions about responsibility). For reasons explained above, the Department believes that § 106.45(b)(1)(iii) appropriately forbids conflicts of interest and bias, mandates training on topics necessary to promote recipients’ compliance with these final regulations (including how to serve impartially), and precludes training materials that rely on sex stereotypes. Recipients have flexibility to choose how to meet those requirements in a way that best serves the needs, and reflects the values, of a recipient’s community including selecting best practices that exceed (though must be consistent with) the legal requirements imposed by these final regulations. The Department notes that although there is no fixed definition of ‘‘traumainformed’’ practices with respect to all the contexts to which such practices may apply in an educational setting, practitioners and experts believe that application of such practices is possible—albeit challenging—to apply in a truly impartial, non-biased manner.1046 Changes: None. Comments: One commenter suggested expanding the persons who must be trained to include counselors, diversity and inclusion departments, deans of students, ombudspersons, and restorative justice committees. A few 1046 E.g., Jeffrey J. Nolan, Fair, Equitable TraumaInformed Investigation Training 14–15 (Holland & Knight updated July 19, 2019) (concluding that ‘‘All parties can benefit if trauma-informed training is provided in a manner that is fair, equitable, nuanced, and adapted appropriately to the context of college and university investigations and disciplinary proceedings, and that does ‘not rely on sex stereotypes.’ Given the complexity of these issues and the importance of training as a matter of substance and potential litigation risk, institutions should strive to ensure that their training programs are truly fair and trauma-informed.’’); ‘‘Recommendations of the Post-SB 169 Working Group,’’ 3 (Nov. 14, 2018) (report by a task force convened by former Governor of California Jerry Brown to make recommendations about how California institutions of higher education should address allegations of sexual misconduct) (traumainformed ‘‘approaches have different meanings in different contexts. Trauma-informed training should be provided to investigators so they can avoid re-traumatizing complainants during the investigation. This is distinct from a traumainformed approach to evaluating the testimony of parties or witnesses. The use of trauma-informed approaches to evaluating evidence can lead adjudicators to overlook significant inconsistencies on the part of complainants in a manner that is incompatible with due process protections for the respondent. Investigators and adjudicators should consider and balance noteworthy inconsistencies (rather than ignoring them altogether) and must use approaches to trauma and memory that are well grounded in current scientific findings.’’). PO 00000 Frm 00232 Fmt 4701 Sfmt 4700 commenters suggested that training about Title IX rights and Title IX procedures should be mandatory for all students and all staff, including teachers and faculty so that everyone affiliated with a recipient knows the definition of sexual harassment and the complaint procedures. A few commenters noted that the proposed rules lacked any training requirements for staff that work on informal resolution processes and urged the Department to set minimum standards for training of those individuals so that all students are served by individuals with high levels of training whether they go through a formal or informal process. Discussion: The intent of § 106.45(b)(1)(iii) is to ensure that Title IX personnel directly involved in carrying out the recipient’s Title IX response duties are trained in a manner that promotes a recipient’s compliance with these final regulations. The Department appreciates commenters suggesting that additional school personnel, or students, need training about Title IX, but the Department leaves such decisions to recipients’ discretion. The Department appreciates commenters who noted that the proposed rules contemplated the recipient facilitating informal resolution processes yet omitted such a role from the listed personnel who must receive training under § 106.45(b)(1)(iii), resulting in parties interacting with well-trained personnel during a formal process but perhaps with untrained personnel during an informal process. The commenters’ concerns are wellfounded, and the final regulations include ‘‘any person who facilitates an informal resolution process’’ wherever reference had been made to ‘‘Title IX Coordinators, investigators, and decision-makers.’’ Changes: Section 106.45(b)(1)(iii) is revised to include ‘‘any person who facilitates an informal resolution process’’ in addition to Title IX Coordinators, investigators, and decision-makers, as a person whom the recipient must ensure is free from conflicts of interest and bias, and receives the training specified in this provision. Comments: At least one commenter requested more information about who is expected to provide the training required under § 106.45(b)(1)(iii), for example whether training presenters must have experience with administrative proceedings in order to provide qualified training to others. One commenter with extensive experience as a sexual assault investigator proposed that the Federal Law Enforcement Training Center (FLETC) should be E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations mandated to create a Title IX focused training program to which recipients would send Title IX investigators within a certain time frame after being hired; the commenter stated that FLETC already has instructors, resources, and qualified, experienced professionals that provide accredited training to sexual assault investigators, so expanding FLETC training to be specific to Title IX proceedings would create consistent knowledge and best practices across all institutions. Discussion: For reasons explained above, the Department believes that the mandated training requirements in § 106.45(b)(1)(iii) are sufficient to effectuate the purposes of these final regulations, without unduly restricting recipients’ flexibility to design and select training that best serves each recipient’s unique needs. For similar reasons, the Department declines to prescribe whether training presenters must possess certain qualifications and will enforce § 106.45(b)(1)(iii) based on whether a recipient trains Title IX personnel in conformity with this provision rather than on the qualifications or expertise of the trainers. The Department appreciates the commenter’s suggestion regarding FLETC creating a Title IX-specific training program. While adoption of that suggestion is outside the scope of these final regulations because it is not within the Department’s regulatory authority under Title IX to direct FLETC to expand its programming,1047 the Department encourages recipients to pursue training from sources that rely on qualified, experienced professionals likely to result in best practices for effective, impartial investigations. The Department does not certify, endorse, or otherwise approve or disapprove of particular organizations (whether forprofit or non-profit) or individuals that provide Title IX-related training and consulting services to recipients. Whether or not a recipient has complied with § 106.45(b)(1)(iii) is not determined by the source of the training materials or training presentations utilized by a recipient. Changes: None. Section 106.45(b)(1)(iv) Presumption of Non-Responsibility Purpose of the Presumption Comments: Many commenters supported § 106.45(b)(1)(iv), requiring a recipient’s grievance process to apply a presumption that a respondent is not 1047 FLETC is part of the Department of Homeland Security. U.S. Dep’t. of Homeland Security, Federal Law Enforcement Training Centers, https:// www.fletc.gov/. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 responsible until conclusion of a grievance process (referred to in this section as the ‘‘presumption’’), because such a presumption means that recipients will adjudicate based on evidence rather than beliefs or assumptions. Commenters referred to the presumption as the equivalent of a ‘‘presumption of innocence’’ which, commenters asserted, is crucial for determining the truth of what happened when one party levies an accusation against another party. Commenters shared personal experiences with campus Title IX proceedings in which the commenters believed that the process unfairly placed the respondent in a position of having to try to prove non-responsibility rather than being treated as not responsible unless evidence proved otherwise. Commenters who agreed with the presumption asserted that, especially under a preponderance of the evidence standard, it is important that an accused student be presumed innocent, to stress for decision-makers that if they believe the complainant and respondent are equally truthful, the required finding must be not-responsible. Commenters asserted that lawsuits filed against universities by respondents accused of sexual misconduct have revealed that universities often do not presume the respondent innocent 1048 and that this may lead schools to place the burden of proof on respondents.1049 Commenters asserted that § 106.45(b)(1)(iv) will clarify that respondents do not have the burden of proving their innocence. Several commenters who supported the presumption cited an article arguing that believing complainants is the beginning and the end of a search for the truth.1050 Several commenters asserted that the mantra of ‘‘Believe Survivors’’ encourages a presumption of guilt against respondents. Other commenters opined that a person can both believe complainants and presume the respondent is innocent during an investigation. Commenters argued that the presumption of non-responsibility is essential to affording respondents an opportunity to defend themselves. Commenters supportive of the presumption shared personal stories in which they or their family members were respondents in Title IX grievance hearings and as respondents and felt as though the recipient placed the burden 1048 Commenters cited: Doe v. Univ. of Cincinnati, aff’d sub nom. Doe v. Cummins, 662 F. App’x 437, 447 (6th Cir. 2016). 1049 Commenters cited: Wells v. Xavier Univ., 7 F. Supp. 3d 746 (S.D. Ohio 2014). 1050 Commenters cited: Emily Yoffe, The problem with #BelieveSurvivors, The Atlantic (Oct. 3, 2018). PO 00000 Frm 00233 Fmt 4701 Sfmt 4700 30257 of proving innocence on the respondent’s shoulders and made it seem that the accusations had been prejudged as truthful; others shared experiences of interim suspensions imposed prior to any facts or evidence leading to a conclusion of ‘‘guilt.’’ Commenters argued that it is imperative that accusations are not equated with ‘‘guilt.’’ One commenter described living in countries that were behind the Iron Curtain, where to be accused was the same as to be proven guilty without evidence. Commenters who opposed the presumption argued that the purpose of the presumption is to favor respondents over complainants. Commenters asserted that the presumption is evidence of the Department’s animus towards complainants. Commenters asserted that the presumption codifies a unique status for sexual harassment and assault complainants, explicitly requiring that schools treat them with heightened skepticism. Additionally, several commenters argued that the Department proposed the presumption because the Department seeks to perpetuate the myth of false reporting in Federal policy and desires to protect the reputation and interests of the accused. Commenters argued that the presumption gives special, greater rights to the respondent, creating a procedural bias against complainants that violates complainants’ rights to an impartial grievance procedure under Title IX and the Clery Act. Many commenters argued that the presumption of non-responsibility is a presumption that the alleged harassment did not occur. Commenters questioned how the recipient can adequately listen to the complainant if the recipient is required to presume that no harassment occurred. Commenters argued that the presumption creates a hostile environment for complainants by implying that the complainant is dishonest. Commenters argued that the presumption will increase negative social reactions to complainants, such as minimization and victim-blaming, and predicted that these negative reactions will create adverse health effects for complainants including posttraumatic stress disorder symptoms. Commenters opposed the requirement in the proposed rules for the recipient to expressly state the presumption of non-responsibility in its first communication with the complainant, arguing that this provision seems ‘‘deliberately cruel’’ towards complainants. Commenters argued that the presumption would encourage schools to ignore or punish historically E:\FR\FM\19MYR2.SGM 19MYR2 30258 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations marginalized groups that report sexual harassment by implying such complainants are ‘‘lying’’ about sexual harassment, and that complainants will feel chilled from reporting out of belief that they will be retaliated against (i.e., by being punished for ‘‘lying’’) when they do report.1051 Commenters asserted that in a criminal proceeding, there is an imbalance of power between the accused person and the government prosecuting the accused, and therefore the U.S. Constitution gives the criminal defendant a presumption of innocence; commenters argued that this dynamic is absent in a Title IX proceeding where the complainant does not represent the power of the government prosecuting a criminal defendant, and thus a Title IX respondent should not enjoy the presumption given to a criminal defendant. Discussion: The Department appreciates commenters’ support for § 106.45(b)(1)(iv) and acknowledges the many commenters who shared personal experiences as respondents in Title IX proceedings where the investigation process made the commenter feel like the burden was on the respondent to prove non-responsibility rather than being presumed not responsible unless evidence showed otherwise. The Department disagrees with commenters who believed that the purpose of the presumption of nonresponsibility is to favor respondents at the expense of complainants or that a presumption of non-responsibility demonstrates animus or hostility toward complainants. The Department does not seek to ‘‘perpetuate the myth of false reporting in Federal policy,’’ nor does it desire ‘‘to protect the reputation and interests of the accused’’ at the expense of victims as some commenters claimed. To the contrary, we seek to establish a fair grievance process for all parties, and the presumption does not affect or diminish the strong procedural rights granted to complainants throughout the grievance process. The Department acknowledges that these final regulations apply only to allegations of Title IX sexual harassment, and as such these final regulations do not impose a presumption of non-responsibility in other types of student misconduct proceedings. This does not indicate that the allegations in formal complaints of sexual harassment are more suspect or warrant more skepticism than 1051 Commenters cited, e.g., Tyler Kingkade, When Colleges Threaten To Punish Students Who Report Sexual Violence, The Huffington Post (Sept. 9, 2015). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 allegations of other types of misconduct. The Department believes that the notion of presuming a student not responsible until facts show otherwise represents a basic concept of fairness, but these regulations address only recipients’ responses to Title IX sexual harassment and do not dictate whether a similar presumption should be applied to other forms of student misconduct. While the Department acknowledges that Title IX proceedings are not criminal in nature and do not require application of constitutional protections granted to criminal defendants, the Department believes that a presumption of non-responsibility is critical to ensuring a fair proceeding in the Title IX sexual harassment context, rooted in the same principle that underlies the constitutional presumption of innocence afforded to criminal defendants.1052 In the noncriminal context of a Title IX grievance process, the presumption reinforces the final regulations’ prohibition against a recipient treating a respondent as responsible until conclusion of a grievance process 1053 and reinforces 1052 See Franc ¸ois Quintard-More´nas, The Presumption of Innocence in the French and AngloAmerican Legal Traditions, 58 Am. J. of Comparative L. 107, 110 (2010) (‘‘Because one can be accused of a crime without being a criminal, an elementary principle of justice requires that plaintiffs prove their allegations and that the accused be considered innocent in the interval between accusation and judgment.’’). 1053 Sections 106.44(a), 106.45(b)(1)(i) (recipients may not impose disciplinary sanctions on a respondent, or otherwise take actions against the respondent that do not constitute supportive measures as defined in § 106.30, without following a grievance process that complies with § 106.45). The final regulations expressly allow exceptions to this principle, where in certain circumstances a respondent may be treated adversely even though responsibility has not been determined at the conclusion of a grievance process. See § 106.30 (defining ‘‘supportive measures’’ under which a supportive measure must not ‘‘unreasonably burden’’ the other party, so reasonably burdening a respondent to accomplish the aim of a supportive measure is permissible); § 106.44(c) (a respondent may be removed from education programs or activities where the respondent poses an immediate threat to the physical health or safety of one or more individuals, and while a post-removal opportunity to challenge the removal must be given to the respondent, such an emergency removal may occur prior to conclusion of a grievance process or where no grievance process is pending at all); § 106.44(d) (allowing a recipient to place a (non-student) employee on administrative leaving while an investigation under § 106.45 is pending). The Department notes that in an essay cited by commenters, the author criticizes the presumption of non-responsibility in the NPRM, arguing that if the presumption is intended only to mean that the burden of proof remains on the recipient (and not on the respondent) then the presumption is ‘‘unobjectionable as a matter of substance, although a seeming invitation to confusion’’ because recipients may wrongly believe that a presumption of non-responsibility implies that the recipient must apply the criminal burden of proof (beyond a reasonable doubt). Michael C. Dorf, What Does a PO 00000 Frm 00234 Fmt 4701 Sfmt 4700 correct application of the standard of evidence selected by the recipient for use in the recipient’s Title IX sexual harassment grievance process. These aspects of the presumption improve the fairness of the process and increase party and public confidence in such outcomes,1054 thereby leading to greater compliance with rules against sexual misconduct.1055 Without expressly stating a presumption of nonresponsibility, a perception that recipients may prejudge respondents as responsible will continue to negatively affect party and public confidence in Title IX proceedings.1056 Presumption of Non-Responsibility Mean in a Civil Context, Dorf On Law (Nov. 28, 2018), https:// www.dorfonlaw.org/2018/11/what-doespresumption-of-non.html. The author recognized that the second purpose of the presumption seemed to be treating the respondent as not responsible throughout a grievance process and believed that to be ‘‘quite a bad idea’’ because in daily life we make decisions based on someone being accused of a crime even before a conviction. The author correctly noted that one purpose of the presumption is to reinforce that the burden of proof remains on the recipient and not on the respondent (or complainant). The Department clarifies that contrary to the author’s concerns, and for reasons discussed in the ‘‘Section 106.45(b)(7)(i) Standard of Evidence and Directed Question 6’’ subsection of the ‘‘Determinations Regarding Responsibility’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, recipients may not apply the criminal standard of beyond a reasonable doubt. Further, while the author of that essay correctly identified a second purpose of the presumption as ensuring that recipients do not treat the respondent as responsible until the respondent is proved responsible, as explained above in this footnote that principle is subject to exceptions. 1054 Rinat Kitai, Presuming Innocence, 55 Oklahoma L. Rev. 257, 272 (2002) (the ‘‘presumption of innocence is based mainly on grounds of public policy relating to political morality and human dignity. The presumption of innocence is a normative principle, directing state authorities as to the proper way of treating a person who has not yet been convicted. This principle is not tied to empirical data about the incidence of criminal offenses or the probability of innocence in certain circumstances.’’); Dale A. Nance, Civility and the Burden of Proof, 17 Harv. J. of L. & Pub. Pol’y 647, 689 (1994) (‘‘we should not forget that the moral order that the law endorses carries with it certain obligations concerning its application, one of which is the obligation to presume compliance with legal duties, at least to the extent they represent a consensus about serious moral duties. . . . Even if that principle has lost its constitutional luster, the very fact that it has attained such status, off and on over the years, is evidence of the weight the law accords it. A presumption of innocence applies quite generally, though not of course with perfect uniformity, in both civil and criminal cases.’’) (emphasis added). 1055 E.g., Rebecca Holland-Blumoff, Fairness Beyond the Adversary System: Procedural Justice Norms for Legal Negotiation, 85 Fordham L. Rev. 2081, 2084 (2017) (‘‘A fair process provided by a third party leads to higher perceptions of legitimacy; in turn, legitimacy leads to increased compliance with the law’’) (internal citation omitted). 1056 For example, the Foundation for Individual Rights in Education (FIRE) published a 2017 report, Spotlight on Due Process, https://www.thefire.org/ E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations On the other hand, nothing about this presumption deprives complainants of the robust procedural protections granted to both parties under § 106.45, or the protections granted only to complainants in § 106.44(a) (including the right to be offered supportive measures with or without filing a formal complaint). The presumption does not imply that the alleged harassment did not occur; the presumption ensures that recipients do not take action against a respondent as though the harassment occurred prior to the allegations being proved,1057 and the final regulations require a recipient’s Title IX personnel to interact with both the complainant and respondent in an impartial manner throughout the grievance process without prejudgment of the facts at issue,1058 and without drawing inferences about credibility based on a party’s status as a complainant or respondent.1059 The presumption therefore serves rather than frustrates the goal of an impartial process. The Department expects that a fair grievance process will lend greater legitimacy to the resolution of complainants’ allegations, which will improve the environment for complainants rather than perpetuate a hostile environment or increase negative social reactions to complainants, such as disbelief and blame. The presumption of nonresponsibility does not interfere with a complainant’s right under § 106.44(a) to receive supportive measures offered by the recipient; this obligation imposed on recipients does not depend at all on waiting for evidence to show a respondent’s responsibility. Section resources/spotlight/due-process-reports/dueprocess-report-2017/, finding that ‘‘Nearly threequarters (73.6%) of America’s top 53 universities do not even guarantee students that they will be presumed innocent until proven guilty.’’ The Department recognizes that a presumption of nonliability does not formally apply in Federal civil lawsuits the way that a presumption of innocence applies to criminal defendants; however, civil court procedures do generally place the burden of proof on the plaintiff to prove the defendant’s civil liability, which echoes the principle that civil defendants generally are not liable until proved otherwise. 1057 Under § 106.45(b)(9), a recipient may choose to facilitate an informal resolution process (except as to allegations that an employee sexually harassed a student) and an informal resolution may result in the parties, and the recipient, agreeing on a resolution of the allegations of a formal complaint that involves punishing or disciplining a respondent. This result comports with the prescription in § 106.44(a) and § 106.45(b)(1)(i) that a recipient may not discipline a respondent without following a grievance process that complies with § 106.45, because § 106.45 expressly authorizes a recipient to pursue an informal resolution process (with the informed, written, voluntary consent of both parties). 1058 Section 106.45(b)(1)(iii). 1059 Section 106.45(b)(1)(ii). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 106.44(a) is intended to assure complainants of a prompt, supportive response from their school, college, or university notwithstanding the recipient’s obligation not to treat the respondent as responsible for sexual harassment until the conclusion of a grievance process. While the recipient must include a statement of the presumption in the initial written notice sent to both parties after a formal complaint has been filed,1060 the Department does not believe that this communication from the recipient is ‘‘deliberately cruel’’ to complainants; rather, both parties benefit from understanding that the purpose of a grievance process is to reach reliable decisions based on evidence instead of equating allegations with the outcome, especially where the recipient’s own code of conduct penalizes a party for making false statements during a grievance proceeding. The final regulations place the burden of proof solely on a recipient 1061—not on a complainant or respondent—and therefore the presumption does not operate to burden or disfavor a complainant. Under § 106.44(a) and the § 106.30 definition of ‘‘supportive measures,’’ recipients must offer complainants supportive measures designed to restore or preserve complainants’ equal educational access (with or without a grievance process pending), and the final regulations’ prohibition against a recipient punishing a respondent without following a fair grievance process, including application of a presumption of non-responsibility until conclusion of the grievance process, does not diminish the supportive, meaningful response that a recipient is obligated to offer complainants.1062 The Department disagrees that the presumption would encourage schools to ignore or punish historically marginalized groups that report sexual harassment, for ‘‘lying’’ about it. The Department requires a recipient to respond promptly to actual knowledge of sexual harassment in its education program or activity against a person in the United States, including by offering supportive measures to the complainant. Thus, ignoring sexual harassment violates these final regulations and places the recipient’s Federal funding in jeopardy. The presumption does not imply that a respondent is truthful or that a 1060 Section 106.45(b)(2)(i)(B). 106.45(b)(5)(i). 1062 Nothing in the final regulations precludes a recipient from continuing to provide supportive measures to assist any party regardless of the outcome of a case. 1061 Section PO 00000 Frm 00235 Fmt 4701 Sfmt 4700 30259 complainant is lying, and a recipient cannot use the presumption as an excuse not to respond to a complainant as required under § 106.44(a), or not to objectively evaluate all relevant evidence in reaching a determination regarding responsibility. Finally, § 106.71(b)(2) cautions recipients that it may constitute retaliation to punish a complainant (or any party) for making false statements unless the recipient determines that the party made materially false statements in bad faith and that determination is not based solely on the outcome of the case. The Department acknowledges that Title IX grievance processes are very different from criminal proceedings and that the presumption of innocence afforded to criminal defendants is not a constitutional requirement in Title IX proceedings, but believes that a presumption of non-responsibility is needed in Title IX proceedings. While commenters correctly noted that a complainant does not wield the power of the government prosecuting a criminal charge, the purposes served by the presumption of non-responsibility still apply: Ensuring that the burden of proof remains on the recipient (not on the respondent or complainant) and that the standard of evidence is correctly applied, and ensuring the recipient does not treat the respondent as responsible until conclusion of the grievance process. The procedural requirements of § 106.45 equalize the rights of complainants and respondents to participate in the investigation and adjudication by presenting each party’s own view of the evidence and desire for the case outcome, while leaving the burden of gathering evidence and the burden of proof on the recipient. Changes: We have added § 106.71(a) to the final regulations, prohibiting retaliation against any person exercising rights under Title IX. In addition, § 106.71(b)(2) clarifies that charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance process does not constitute retaliation, but a determination regarding responsibility, alone, is not sufficient to conclude that an individual made a materially false statement in bad faith. Students of Color, LGBTQ Students, and Individuals With Disabilities Comments: Multiple commenters asserted that, because of the presumption of non-responsibility, schools may be more likely to ignore or punish survivors who are women and girls of color, pregnant and parenting students, and LGBTQ students because E:\FR\FM\19MYR2.SGM 19MYR2 30260 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations of harmful stereotypes. Commenters argued that the presumption would especially harm Asian Pacific Islander women who, because of social taboos about sexual activity prevalent in Asian cultures, are significantly less likely to report instances of sexual assault and will feel further deterred by a presumption favoring the respondent. Commenters argued that Black women and girls are more likely to be punished by schools who stereotype them as the aggressor when they defend themselves against their harassers or when they respond to trauma. Several commenters argued that the presumption would harm students with disabilities because they are more likely to be victims of sexual assault and may be particularly vulnerable to unfair treatment due to the presumption of non-responsibility, and because students with disabilities are less likely to be believed when they report these experiences and often have greater difficulty describing the harassment they experience.1063 One commenter opposed § 106.45(b)(1)(iv) because the provision does not address sexual harassment and assault cases involving students with disabilities. Other commenters who agreed with the proposed rules, including the presumption, recounted personal stories in which family members and friends who are Black males were falsely accused of sexual assault yet the recipient seemed to treat the respondent as guilty unless proven innocent. One commenter asserted that the sexual assault grievance process has become a tool for white administrators to punish Black males as young as five years old. The commenter wished to see what they called an outdated Jim Crow-era system replaced with a system that is fair to all. Other commenters supported this provision based on personal stories about students with disabilities whom commenters believed had been falsely accused of sexual misconduct, including students with autism who found the Title IX grievance process traumatic. Discussion: The Department understands commenters’ concerns that students of color, LGBTQ students, students with disabilities, and other students will be adversely affected by the presumption of non-responsibility. The Department does not believe that the presumption will adversely affect the rights of any complainant, including 1063 Commenters cited: U.S. Dep’t. of Justice, National Institute of Justice, The Many Challenges Facing Sexual Assault Survivors With Disabilities (July 19, 2017), https://www.nij.gov/topics/crime/ rape-sexual-violence/Pages/challenges-facingsexual-assault-survivors-with-disabilities.aspx. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 complainants of demographic groups who may suffer sexual harassment at greater rates than members of other demographic groups. The Department believes that a presumption that protects respondents from being treated as responsible until conclusion of a grievance process furthers the recipient’s obligation to fairly resolve allegations of sexual harassment and increases the likelihood that every outcome will carry greater legitimacy. Further, students of color, LGBTQ students, and students with disabilities may be respondents in Title IX grievance processes, in which situation the presumption of non-responsibility reinforces the recipient’s obligation not to prejudge responsibility, countering negative stereotypes that may affect such respondents. The presumption of nonresponsibility in § 106.45(b)(1)(iv) does not contribute to negative stereotypes that commenters characterize as causing people to disbelieve students of color, pregnant or parenting students, LGBTQ students, or students with disabilities (or conversely, to rush to assume the responsibility of such students based on similar negative stereotypes). The presumption protects respondents against being treated as responsible until conclusion of the grievance process but this does not entail disbelieving complainants. Any person may be a complainant or a respondent, and the final regulations require all Title IX personnel to serve impartially, without prejudging the facts at issue, and without bias toward complainants or respondents generally or toward an individual complainant or respondent. Changes: None. The Complainant’s Right to Due Process Protections Comments: Commenters argued that the presumption of non-responsibility is a deprivation of the complainant’s own due process rights, and argued that the complainant will be forced to proceed blindly, at a severe information deficit, while being forced to overcome the presumption. Other commenters argued that merely stating that the recipient will bear the burden of proof does not in practical terms make it so, and a presumption that the respondent is not responsible in reality shifts the burden of proof onto the complainant. Many commenters asserted that the respondent should bear the burden to prove the respondent is innocent. One commenter, citing John Doe v. University of Cincinnati,1064 noted that 1064 Commenters cited: Doe v. Univ. of Cincinnati, 173 F. Supp. 3d 586, 604 (S.D. Ohio 2016), aff’d sub PO 00000 Frm 00236 Fmt 4701 Sfmt 4700 a court in the Southern District of Ohio found no violation of due process where the respondent argued that the recipient failed to grant the respondent a presumption of non-responsibility. Another commenter asserted that the U.S. Supreme Court has already balanced the competing interests and determined what process is due and it does not require a presumption of nonresponsibility, because in Mathews v. Eldridge 1065 the U.S. Supreme Court considered (1) the private interest that will be affected; (2) the risk of an erroneous deprivation of such interest through procedures used, and the probable value, if any, of additional procedural safeguards; and (3) the government’s interest, yet did not specify that a presumption favoring any party was required. Many commenters argued that the presumption will make many women feel it is not worth it to report their assaulters to authorities because survivors already often do not report their sexual assaults due to fear of being disbelieved and the presumption will only heighten the perception that the recipient believes respondents and disbelieves complainants.1066 One commenter asserted that, out of every 1,000 rapes, only 230 are reported to police, and just five result in conviction,1067 and argued that a presumption in favor of respondents will lead to even fewer perpetrators of rape being held accountable. Discussion: The presumption of nonresponsibility does not hold complainants to a higher standard of evidence, shift the burden of proof onto complainants, require complainants to ‘‘overcome’’ the presumption or proceed ‘‘blindly’’ through an investigation, or deny complainants due process. Rather, the presumption simply requires that the recipient not treat the respondent as responsible until the recipient has objectively evaluated the evidence, and reinforces application of the standard of evidence the recipient has already selected (which may be the preponderance of the evidence standard, or the clear and convincing evidence standard).1068 The final regulations require the burden of proof nom. Doe v. Cummins, 662 F. App’x 437, 447 (6th Cir. 2016). 1065 Commenters cited: Mathews v. Eldridge, 424 U.S. 319 (1976). 1066 Commenters cited: Kathryn J. Holland & Lilia M. Cortina, The evolving landscape of Title IX: Predicting mandatory reporters’ responses to sexual assault disclosures, 41 Law & Hum. Behavior 5 (2017). 1067 Commenters cited: U.S. Dep’t. of Justice, Federal Bureau of Investigation, National IncidentBased Reporting System, 2012–2016 (2017). 1068 Section 106.45(b)(1)(vii). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations to remain on the recipient,1069 and the recipient must reach a determination of responsibility against the respondent if the evidence meets the applicable standard of evidence. The complainant therefore does not bear any burden of proof and does not have to ‘‘overcome’’ the presumption. The presumption does not negate the strong procedural protections given to complainants throughout the grievance process, and these due process protections ensure that complainants have a meaningful opportunity (equal to that of respondents) to put forward the complainant’s own evidence and arguments about the evidence, even though the burden of proof remains on the recipient. The Department declines to place the burden of proof on respondents to prove non-responsibility because the purpose of Title IX is to ensure that the recipient, not the parties, bears responsibility to draw accurate conclusions about whether sexual harassment has occurred in the recipient’s education program or activity. Title IX obligates recipients, not individual students or employees, to operate education programs or activities free from sex discrimination, so it is the recipient’s burden to gather relevant evidence and carry the burden of proof. While the Department acknowledges the Federal district court decision cited by a commenter for the proposition that courts do not require a presumption of non-responsibility in Title IX proceedings, neither the Federal district court, nor the Sixth Circuit on appeal of that case, disapproved of a recipient applying a presumption of nonresponsibility in a Title IX case or suggested that such a presumption would be constitutionally problematic; rather, the district court’s opinion held that the recipient’s alleged failure to provide such a presumption (even if true) would not amount to a due process deprivation under the U.S. Constitution.1070 On appeal, the Sixth Circuit did not address the presumption of non-responsibility issue at all, and noted that it appeared the recipient placed the burden of proof on the itself (not on either party), a practice that was 1069 Section 106.45(b)(5)(i). v. Univ. of Cincinnati, 173 F. Supp. 3d 586, 604 (S.D. Ohio 2016), aff’d sub nom. Doe v. Cummins, 662 F. App’x 437, 447 (6th Cir. 2016) (‘‘Nevertheless, even assuming that the [recipient] placed the burden of proof on Plaintiffs as they claim, they have not stated a due process violation. As Defendants correctly argue in their brief, ‘‘[o]utside the criminal law area, where special concerns attend, the locus of the burden of persuasion is normally not an issue of Federal constitutional moment.’’). This does not imply that a presumption of non-responsibility would be problematic under a constitutional analysis. 1070 Doe VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 constitutionally sound 1071 and a requirement the final regulations impose on recipients in § 106.45(b)(5)(i). Additionally, the Department is not persuaded by the commenter’s citation to Mathews v. Eldridge, a U.S. Supreme Court case which set forth a three-part balancing test for determining the amount of process due to meet the basic requirements of providing notice and meaningful opportunity to be heard in particular situations and held that an evidentiary hearing is not required prior to the Social Security Administration’s termination of social security benefits (in part because the basic due process requirements of notice and meaningful opportunity to be heard were met when an evidentiary hearing was available before a termination decision became final).1072 The Mathews Court did not address the issue of whether a presumption is appropriate in an administrative proceeding and is inapposite on that particular point. As noted in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, the Department believes that the § 106.45 grievance process is consistent with constitutional due process requirements and serves important policy purposes with respect to the fairness, accuracy, and perception of legitimacy of Title IX grievance processes. Changes: None. False Allegations Comments: Many commenters cited statistics that most people who report sexual assault are telling the truth, so a presumption of non-responsibility does not reflect reality. Several commenters urged the Department not to require recipients to presume that the respondent is not responsible, since they say that statistics show that most respondents are guilty. Numerous commenters asserted that the rate of false reporting of sexual assault is between two to ten percent.1073 Other 1071 Cummins, 662 F. App’x at 449 (noting that the recipient appeared to place the burden of proof on the recipient rather than on either the complainant or respondent and stating ‘‘Allocating the burden of proof in this manner—in addition to having other procedural mechanisms in place that counterbalance the lower standard used . . . is constitutionally sound and does not give rise to a due-process violation.’’). The final regulations similarly allocate the burden of proof on the recipient (and not on either party). § 106.45(b)(5)(i). 1072 See Mathews v. Eldridge, 424 U.S. 319, 335, 349 (1976) (holding that determining the adequacy of due process procedures involves a balancing test that considers the private interest affected, the risk of erroneous deprivation and benefit of additional procedures, and the government’s interest including the burden and cost of providing additional procedures). 1073 Commenters cited, e.g., David Lisak et al., False Allegations of Sexual Assault: An Analysis of PO 00000 Frm 00237 Fmt 4701 Sfmt 4700 30261 commenters asserted that 95 percent of sexual assault reports to the police are true.1074 Commenters asserted that since data collection began in 1989, there are only 52 cases where men have been exonerated after being falsely convicted of sexual assault while in the same period, 790 men were exonerated for murder.1075 Commenters argued that all false accusations, wrongful expulsions, suspensions, punishments, and undue burdens levied against respondents still do not add up to the overwhelming numbers of victims, so any provision that makes it harder for victims to prevail only serves to harm a greater number (of victims) in an attempt to protect a very small number (of falsely accused respondents), leading to greater unequal access to education for victims. Commenters argued that very few respondents who are found guilty are expelled, and therefore respondents are usually not in danger of losing their access to educational opportunities, so a wrongful result adverse to a respondent is not as consequential as a wrongful result adverse to a complainant. Other commenters argued that a presumption against responsibility is not needed because it is easy to identify patterns of individuals who file false accusations, because almost all false accusers have ‘‘a history of bizarre fabrications or criminal fraud.’’ 1076 Commenters stated that false accusations are unusually dramatic, involving gang rape, a gun or a knife, or violent attacks from strangers resulting in severe injuries. Other commenters supported the presumption by asserting that false allegations do occur, and with more regularity than other commenters claim. Commenters cited the incidence of numerous lawsuits filed by students claiming they had been falsely accused,1077 arguing that the prevalence of these lawsuits shows that many respondents, mostly young men, have been falsely accused and suspended or Ten Years of Reported Cases, 16 Violence Against Women 12, 1318 (2010); see also the ‘‘False Allegations’’ subsection of the ‘‘General Support and Opposition’’ section of this preamble. 1074 Commenters cited: Claire E. Ferguson & John M. Malouff, Assessing Police Classifications of Sexual Assault Reports: A Meta-Analysis of False Reporting Rates, 45 Archives of Sexual Behavior 5, 1185 (2016). 1075 Commenters cited: National Registry of Exonerations, https://www.law.umich.edu/special/ exoneration/Pages/browse.aspx. 1076 Commenters cited: Sandra Newman, What Kind of Person Makes False Rape Accusations, Quartz (May 11, 2017). 1077 Commenters cited: T. Rees Shapiro, Expelled for sex assault, young men are filing more lawsuits to clear their names, The Washington Post (Apr. 28, 2017). E:\FR\FM\19MYR2.SGM 19MYR2 30262 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations expelled from school under procedures that lacked fairness and reliability, often resulting in a respondent de facto being required to try to prove innocence. Commenters referred to high-profile campus sexual assault situations that commenters argued demonstrate the fact that false rape accusations do occur and damage respondents caught in systems that prejudge them without any benefit of being presumed innocent. Commenters argued that the frequency of false accusations is not as low as other commenters have claimed because studies examining the rate of false accusations only count accusations proven to be false, and do not count accusations dismissed for lack of evidence. One commenter shared details of the commenter’s own research finding that 53 percent of sexual assault allegations were false, which the commenter argued is much higher than the ‘‘2–10%’’ statistic relied on by many victim advocates; 1078 the commenter argued that the 53 percent number is more accurate because it counted ‘‘not responsible’’ determinations as ‘‘false accusations.’’ One commenter asserted that highconflict divorce proceedings take into account the reality that spite plays a role in some parties’ negotiations and litigation strategies, but many people seem to believe sexual harassment allegations are almost entirely free of such distorting motives. Discussion: The Department is not persuaded by commenters who argued that we should remove the presumption of non-responsibility from the final regulations because of studies showing that many, or even the vast majority, of allegations of sexual assault are true. Statistical findings can be instructive but not dispositive, and statistics cannot by themselves justify or rationalize procedural protections in a process designed to determine the truth of particular allegations involving specific individuals.1079 Even if only two to ten percent of rape allegations are false or unfounded, the Department believes that statistical generalizations must not compel conclusions about the truth of particular allegations because without careful assessment of the facts of each particular situation it is not be possible to know whether the respondent is one of the 90 to 98 percent who statistically 1078 Commenters cited: National Sexual Violence Resource Center, False Reporting: Overview (2012); see also the ‘‘False allegations’’ subsection of the ‘‘General Support and Opposition’’ section of this preamble. 1079 V.C. Ball, The Moment of Truth: Probability Theory and Standards of Proof, 14 Vand. L. Rev. 807, 811 (1961) (‘‘[F]or individuals there are no statistics, and for statistics no individuals.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 are ‘‘guilty’’ or among the two to ten percent who are statistically ‘‘innocent.’’ 1080 Similarly, whether respondents are expelled at low rates or high rates, the final regulations are concerned with ensuring that the determination regarding responsibility is reliable and perceived as legitimate. For reasons described elsewhere in this preamble, the Department does not require any particular disciplinary sanctions against respondents, because these Title IX regulations are focused on requiring remedies for victims, leaving disciplinary decisions to recipients’ discretion. For similar reasons, the Department declines to adopt a premise that most false allegations are ‘‘easy to identify’’ because even if research has identified certain patterns, common features, or motives for false allegations, it is not possible to assess the veracity of a complainant’s specific allegations, or an individual complainant’s motive, based on generalizations. Therefore, procedural rules designed for fairness and accuracy cannot be based on statistics or studies about what kind of allegations tend to be false. The Department disagrees that all determinations of non-responsibility are fairly characterized as involving a false or unfounded allegation; as numerous commenters have pointed out, an allegation may be true and lack sufficient evidence to meet a standard of evidence proving responsibility, or an allegation may be inaccurate but not intentionally falsified. The final regulations add § 106.71(b) cautioning recipients that punishing a party ostensibly for making false statements during a grievance process may constitute unlawful retaliation unless the recipient has concluded that a party made a bad faith materially false statement and that conclusion is not based solely on the determination regarding responsibility. This provision acknowledges the reality that a complainant’s allegations may not have been false even where the ultimate determination is that the respondent is not responsible and/or that the complainant may not have acted subjectively in bad faith (and conversely, that a respondent may not 1080 See Alex Stein, An Essay on Uncertainty and Fact-Finding in Civil Litigation, with Special Reference to Contract Cases, 48 Univ. of Toronto L. J. 299, 301 (1998) (‘‘Allowing verdicts to be based upon bare statistical evidence, rather than on casespecific proof, is generally regarded as problematic. Adjudication involves individuals and their individual affairs, which need to be translated into individual rights and duties. This is not the case with bare statistical evidence. As the famous saying goes, for statistics there are no individuals and for individuals, no statistics.’’). PO 00000 Frm 00238 Fmt 4701 Sfmt 4700 have made false, or subjectively bad faith, denials even where the respondent is found responsible). The presumption of nonresponsibility is not designed to protect ‘‘a few’’ falsely accused respondents at the expense of ‘‘the many’’ sexual harassment victims; the presumption is designed to improve the accuracy and legitimacy of the outcome in each individual formal complaint of sexual harassment to prevent injustice to any complainant or any respondent. Changes: Section 106.71(b) states that charging an individual with a code of conduct violation for making a bad faith materially false statement during a grievance process is not retaliation so long as that conclusion is not based solely on the determination regarding responsibility. Inaccurate Findings of NonResponsibility Comments: Commenters argued that, in a misguided attempt to shield falsely accused people, the presumption of non-responsibility will allow assailants to go unpunished, which will further traumatize and disempower victims. Commenters argued that the presumption would allow more sexual harassment perpetrators to escape responsibility because it can be difficult to prove sexual assault, and evidence is frequently scant or based heavily on testimony alone so overcoming a presumption is yet another unfair obstacle for survivors to receive justice. Commenters argued that, for those schools that employ a clear and convincing evidence standard, complainants will be more likely to lose the case, a result compounded by the presumption of non-responsibility. Commenters argued that abusive people will be found not responsible more often, making campuses less safe and increasing the number of sexual assaults on campuses. Another commenter argued that the presumption ensures that only the most egregious cases of sexual assault will be punished, which is unjust for many women. Some commenters disagreed with the presumption, asserting that it requires fact-finding doctrines used in criminal law proceedings. Commenters expressed concern that, if schools handle complaints of sexual assault the same way law enforcement handles them, most complaints will not be pursued. One commenter asserted that 69 percent of survivors have experienced police officers discouraging them from filing a report and one-third of survivors have E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations experienced police refusing to take their reports.1081 Commenters argued that the presumption is in tension with § 106.45(b)(1)(ii), which states that ‘‘credibility determinations may not be based on a person’s status as a complainant’’ or ‘‘respondent.’’ One commenter asserted that the presumption would not work for medical schools, because medical students frequently experience sexual harassment or assault from patients or visitors, and medical schools do not have the authority to compel them to participate in investigatory interviews or live hearings.1082 Discussion: As applied under these final regulations, in the context of a Title IX grievance process, the presumption does not operate to let ‘‘guilty’’ respondents go free. While the presumption is based on a similar principle animating the presumption of innocence in criminal law, the § 106.45 grievance process generally, including the presumption under § 106.45(b)(1)(iv), does not mirror criminal law protections or mimic criminal courts. As discussed below, the presumption of non-responsibility reinforces that the burden of proof remains on the recipient, not on either party, and reinforces application of the standard of evidence, which under the final regulations must be lower than the criminal standard of beyond a reasonable doubt. The Department disagrees that the final regulations require schools to handle reports or formal complaints of sexual assault the same way law enforcement handles them. Recipients are prohibited from showing deliberate indifference towards sexual harassment complainants, including by offering supporting measures to complainants irrespective of whether a formal complaint is ever filed, and under these final regulations recipients are obligated to investigate formal complaints, unlike law enforcement where officers and prosecutors generally have discretion to decline to investigate and prosecute. Further, law enforcement and criminal prosecutors gather evidence under a burden to prove guilt beyond a reasonable doubt, but the final regulations place a burden on recipients to meet a burden of proof that shows a respondent responsible measured 1081 Commenters cited: Rebecca Campbell, Survivors’ Help-Seeking Experiences with the Legal and Medical Systems, 20 Violence & Victims 1 (2005). 1082 Commenters cited: Charlotte Grinberg, ‘These Things Sometimes Happen’: Speaking Up About Harassment, 37 Health Affairs 6 (2018). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 against a lower standard of evidence.1083 The Department is unpersuaded by commenters who asserted that the presumption will make campuses more dangerous because it will chill reporting or prevent recipients from punishing and expelling offenders from campuses because § 106.45 is too similar to criminal procedures. A presumption of non-responsibility need not chill or deter reporting of sexual harassment, because reporting under the final regulations leaves complainants autonomy over whether to seek supportive measures or also participate in a grievance process, and because a fair process with procedures rooted in principles of due process provides assurance that the outcome of a grievance process (when a complainant or Title IX Coordinator decides to initiate a grievance process) is reliable and viewed as legitimate. Refraining from treating a respondent as responsible until conclusion of the grievance process does not make it more difficult to hold a respondent responsible or prevent implementation of supportive measures for a complainant. To the extent that commenters are advocating for latitude for recipients to impose interim suspensions or expulsions, the Department believes that without a fair, reliable process the recipient cannot know whether it has interim-expelled a respondent who is actually responsible for the allegations, or a respondent who is not responsible. However, the Department reiterates that § 106.44(c) allows emergency removals of respondents prior to conclusion of a grievance process (or even where no grievance process is pending), thus protecting the safety of a recipient’s community where an immediate threat exists. Because the standard of evidence is lower in the Title IX grievance process (recipients must select and apply either the preponderance of the evidence standard or the clear and convincing evidence standard) than in a criminal proceeding (beyond a reasonable doubt), the presumption in § 106.45(b)(1)(iv) does not convert the standard of evidence to the criminal standard (beyond a reasonable doubt). Under the § 106.45 grievance process, the § 106.45(b)(1)(iv) presumption ensures that recipients correctly apply the standard of evidence selected by each recipient, but no recipient is permitted 1083 Section 106.45(b)(1)(vii) (requiring recipients to select and apply to all Title IX sexual harassment cases a standard of evidence that is either the preponderance of the evidence standard, or the clear and convincing evidence standard). PO 00000 Frm 00239 Fmt 4701 Sfmt 4700 30263 to select the criminal ‘‘beyond a reasonable doubt’’ standard.1084 Thus, the presumption helps to ensure that the recipient does not treat a respondent as responsible until conclusion of the grievance process, and to reinforce a recipient’s proper application of the standard of evidence the recipient has selected 1085 without converting the Title IX grievance process to a criminal court proceeding. The presumption does not make it more difficult to hold a respondent responsible, because the presumption reinforces, but does not change, the burden of proof that rests on the recipient and the obligation to appropriately apply the recipient’s selected standard of evidence in reaching a determination regarding responsibility to decide if the recipient’s burden of proof has been met. The presumption will not result in assailants going unpunished; a perpetrator of sexual harassment proved responsible for the alleged conduct may be punished at the recipient’s discretion, and these final regulations require the recipient to effectively implement remedies for the complainant where a respondent is found to be responsible.1086 The structure of the fact-finding process, including the presumption, prevents recipients from acting on an assumption that a particular complainant is (or is not) truthful; similarly, recipients may not look to the presumption as an excuse to ‘‘believe’’ or find credible, the respondent and to 1084 Section 106.45(b)(1)(vii); § 106.45(b)(7)(i); see also discussion in the ‘‘Section 106.45(b)(7)(i) Standard of Evidence and Directed Question 6’’ subsection of the ‘‘Determinations Regarding Responsibility’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. 1085 Because the Department has determined that the preponderance of the evidence standard is the lowest possible standard of evidence that a recipient may select for a § 106.45 grievance process, the presumption of non-responsibility’s function of ensuring proper application of the standard of evidence is particularly important where a recipient has selected the preponderance of the evidence standard, to ensure that in cases where the evidence is in equipoise (i.e., ‘‘50/50’’) the result is a determination of non-responsibility. E.g., Vern R. Walker, Preponderance, Probability, and Warranted Factfinding, 62 Brooklyn L. Rev. 1075, 1076 (1996) (noting that the traditional formulation of the preponderance of the evidence standard by courts and legal scholars is that the party with the burden of persuasion must prove that a proposition is more probably true than false meaning a probability of truth greater than 50 percent); Neil B. Cohen, The Gatekeeping Role in Civil Litigation and the Abdication of Legal Values in Favor of Scientific Values, 33 Seton Hall L. Rev. 943, 954–56 (2003) (noting that the preponderance of the evidence standard applied in civil litigation results in the plaintiff losing the case where the plaintiff’s and defendant’s positions are ‘‘in equipoise’’ i.e., where the evidence presented makes the case ‘‘too close to call’’). 1086 Section 106.45(b)(1)(i); § 106.45(b)(7)(iv). E:\FR\FM\19MYR2.SGM 19MYR2 30264 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations do so would violate § 106.45(b)(1)(ii). Thus, the Department disagrees with commenters who argue that the presumption contradicts § 106.45(b)(1)(ii) which requires that recipients may not make credibility determinations based on a party’s status as a complainant or respondent. The presumption in § 106.45(b)(1)(iv) reinforces the obligation in § 106.45(b)(1)(ii) to refrain from drawing inferences about credibility based on a party’s status as a complainant or respondent. Nothing in the final regulations, including the presumption of nonresponsibility, prevents recipients who are medical schools from offering supportive measures to medical students who allege that hospital patients or visitors are sexually harassing them. Section 106.30 defining ‘‘supportive measures’’ provides that the recipient may offer such measures either before or after the filing of a formal complaint or where no formal complaint has been filed, for the purpose of restoring the complainant’s access to the education program without unreasonably burdening the respondent. The Department cannot comment more specifically as to what supportive measures might be reasonably available to preserve a medical student’s equal access and avoid unreasonably burdening a respondent who is a patient or visitor, because each case requires the recipient’s independent review and judgment. Where the respondent is a patient or visitor to the recipient’s campus or facility and the recipient thus lacks an employment or enrollment relationship with the respondent, a recipient has discretion under § 106.45(b)(3)(ii) to dismiss a formal complaint where the respondent is not enrolled or employed by the recipient; or, also in the recipient’s discretion, the recipient may investigate and adjudicate a formal complaint against such a respondent and, for example, issue a notrespass order following a determination regarding responsibility. Regardless of how a recipient exercises its discretion with respect to formal complaints against respondents over whom a recipient lacks disciplinary authority, medical schools may still comply with the requirements in these final regulations to respond to sexual harassment that occurs in the recipient’s education program or activity. Changes: None. Recipients Should Apply Dual Presumptions or No Presumption Comments: Commenters stated that § 106.45(b)(1)(iv) equates to a presumption that the complainant is VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 lying, or a presumption that the alleged harassment never occurred. Commenters asserted if presumptions exist, the provision should direct the recipient to presume, in addition to the respondent’s presumption of nonresponsibility, that the complainant is credible and making a good faith complaint. One commenter asserted that the Department should provide training to address bias against complainants. Commenters argued that, because the grievance process is not a criminal proceeding, there should be no presumption in favor of either party. Commenters argued that investigators should have no presumption—either in favor or against either party—when performing their fact-finding duties. Commenters argued that it is unfair to complainants to start an investigation with a presumption of the respondent’s innocence, just as it would be unfair to the respondent to start with a presumption of guilt. Commenters argued that in civil and administrative proceedings, both parties start on equal footing in the process with a blank slate in front of the decision-maker, and there is no reason why Title IX proceedings should not treat the parties equally in this manner. Commenters argued that while criminal proceedings give defendants a presumption of innocence, State and Federal victims’ rights laws balance even that presumption of innocence to ensure victims are treated fairly. Commenters argued that a civil case requires that the victim and perpetrator appear as equals 1087 and argued that a Title IX investigation should treat both parties equally regarding credibility, with no presumption of innocence or presumption of guilt. One commenter argued that the presumption makes no sense in an educational environment because the complainant and respondent are tied together because of their relationship to the institution, which is different from the relationship between defendants and the government in criminal matters, and the § 106.45(b)(1)(iv) presumption will negatively impact every complainant’s education because the complainant will be assumed to be lying just by filing a complaint. Commenters asserted that currently there is no presumption of nonresponsibility for respondents in other student misconduct proceedings, such as theft, cheating, plagiarism, and even physical assault. Commenters argued 1087 Commenters cited: The National Center for Victims of Crime, ‘‘Criminal and Civil Justice,’’ https://victimsofcrime.org/media/reporting-on-childsexual-abuse/criminal-and-civil-justice, for this proposition. PO 00000 Frm 00240 Fmt 4701 Sfmt 4700 that if the Department believes such a presumption is important in sexual misconduct cases, then it should require the presumption in all student misconduct cases for the sake of uniformity. Discussion: The Department declines to adopt commenters’ recommendations that recipients should presume that complainants are credible. If the presumption of non-responsibility meant assuming that the respondent is credible, then the Department would agree that such a presumption would be unfair to complainants and should be balanced by an equal presumption of credibility for complainants (or, more reasonably, no presumptions at all). However, the presumption of nonresponsibility is not a presumption about the respondent’s credibility, believability, or truthfulness, and § 106.45(b)(1)(ii) requires recipients not to make credibility determinations based on a party’s status as complainant or respondent. A critical feature of a fair grievance process is that Title IX personnel refrain from drawing conclusions or making assumptions about either party’s credibility or truthfulness until conclusion of the grievance process; therefore, the Department declines to impose a presumption that either party (or both parties) are credible or truthful. Because the presumption of non-responsibility is not a presumption that a respondent is credible, there is no need for a presumption specific to complainants to balance or counteract the presumption of non-responsibility.1088 The 1088 A presumption specific to a complainant that corresponds to the presumption of a respondent’s non-responsibility might, hypothetically, be a presumption that the complainant is not responsible—but such a presumption simply does not apply to a complainant, because a complainant by definition is not alleged to be responsible for misconduct. Alternatively, a presumption specific to a complainant analogous to the presumption of non-responsibility might be that the complainant must be treated as a victim of the respondent’s conduct until conclusion of the grievance process (because, as explained above, the presumption of non-responsibility operates to treat a respondent as ‘‘not a perpetrator’’ until conclusion of the grievance process, subject to the § 106.44(c) and § 106.44(d) exceptions for emergency removals and administrative leave for employee-respondents). However, the Department does not believe such a presumption would operate to protect complainants in any manner not already provided for in the final regulations. Section 106.44(a) already requires the recipient essentially to treat a complainant as a victim in need of services in the aftermath of suffering sexual harassment (by offering supportive measures and engaging in an interactive discussion with the complainant to arrive at helpful supportive measures to preserve the complainant’s equal educational access) even before, or without, a factfinding process that has determined that the respondent victimized the complainant. Moreover, the grievance process effectively requires a complainant to be treated as a victim in two specific E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations presumption of non-responsibility does not assume, or allow recipients to act as though, complainants are lying; under the final regulations, recipients must not prejudge the facts at issue, must not draw inferences about credibility based on a party’s status as a complainant or respondent, and must objectively evaluate all relevant evidence to reach a determination regarding responsibility. The procedural rights granted to both parties under § 106.45 ensure that complainants and respondents have equal opportunities to meaningfully participate in putting forth their views about the allegations and their desired case outcome, an essential requirement for due process even in a civil (noncriminal) setting.1089 The Department disagrees that in civil (as opposed to criminal) trials the plaintiff and defendant ‘‘appear as equals’’ in every regard, because even in civil trials the burden of proof generally rests on the plaintiff to prove allegations, not on the defendant to prove non-liability.1090 provisions that apply for complainants’ benefit: § 106.45(b)(6)(i)–(ii) provides rape shield protection for complainants—but not respondents—against questions and evidence inquiring into the complainant’s prior sexual behavior; and § 106.45(b)(6)(i) allows either party to request that a live hearing (including cross-examination) occurs in separate rooms. While the latter provision applies on its face to both parties, the provision is responsive to public comment informing the Department that complainants already traumatized by sexual violence likely will be traumatized by coming face-to-face with the respondent; no such concerns about the traumatic effect of personal confrontation were raised on behalf of respondents. Thus, where appropriate, the grievance process takes into account the unique needs of complainants, in ways that the Department believes serve Title IX’s non-discrimination mandate by protecting complainants as though every complainant has been victimized, without unfairness to the respondent. A presumption of non-responsibility does not deprive a complainant of the protections given solely to complainants under § 106.44(a) and § 106.45, nor deprive a complainant of the benefits of the robust procedural rights given equally to both parties during the grievance process. 1089 E.g., Niki Kuckes, Civil Due Process, Criminal Due Process, 25 Yale Law & Pol. Rev. 1, 10–11 (2006) (due process in civil settings ‘‘places central importance on the participation of the affected party in decision-making. Ex parte procedures are the exception, while participatory procedures are the rule. Notice and an opportunity to be heard is, obviously, the principle without which a participatory model of justice cannot work effectively. Unless a party is notified that there is a controversy, it cannot participate in decisionmaking; unless a party has the opportunity for a hearing, it cannot present its side of the controversy; and unless the decision-maker hears from both parties, there cannot be a meaningful ruling. This is the adversary system’s vision of justice.’’). 1090 E.g., Dale A. Nance, Civility and the Burden of Proof, 17 Harv. J. of L. & Pub. Pol’y 647, 659 (1994) (in civil litigation ‘‘it remains true that the burden is placed, in the vast majority of contexts, on the person or institution claiming that someone VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Thus, while parties in civil litigation (and under § 106.45) have equal rights to participate in the process (for example, by gathering and presenting evidence), a burden of proof must still be met. The final regulations ensure that neither party bears the burden of proof (which remains on the recipient) yet give both parties equal procedural rights throughout the grievance process. The presumption does not create inequality between the complainant and respondent; the presumption reinforces the recipient’s burden of proof and correct application of the standard of evidence, neither of which burdens or disadvantages the complainant. The Department notes that § 106.45(b)(1)(iii) not only requires Title IX personnel to serve without bias for or against complainants or respondents, but also requires training for Title IX personnel, expressly to avoid bias for or against complainants or respondents generally or for or against an individual complainant or respondent. Recipients have discretion as to the content and approaches of such training so long as the requirements of § 106.45(b)(1)(iii) are met. A presumption of non-responsibility reinforces placement of the burden of proof, proper application of the standard of evidence, and fair treatment of an accused person prior to adjudication of responsibility. These features of a fair grievance process may be beneficial to the legitimacy and reliability of outcomes of non-sexual harassment student misconduct proceedings. However, these final regulations focus only on effectuating Title IX’s non-discrimination mandate by improving the perception and reality that recipients’ Title IX proceedings reach fair, accurate outcomes; these regulations do not impose requirements on recipients for grievance proceedings other than for Title IX sexual harassment. Changes: None. The Adversarial Nature of the Grievance Process Comments: Commenters asserted that universities already treat both parties equitably and the presumption in § 106.45(b)(1)(iv) escalates the adversarial nature of Title IX proceedings; commenters argued this will raise the financial and emotional toll the grievance process will have on both complainants and respondents. has breached a duty serious enough to warrant legal recognition.’’). We reiterate that the final regulations, § 106.45(b)(1)(i), place the burden squarely on the recipient—not on the complainant—to prove that a respondent has committed sexual harassment. PO 00000 Frm 00241 Fmt 4701 Sfmt 4700 30265 Commenters argued that the proposed regulations ask a university to act as a judicial system, placing an undue burden on the educational system and imposing an unprecedented amount of control over a school’s—especially a private school’s—ability to develop and implement disciplinary processes in a way that best serves its community and upholds its values, which often include using codes of conduct to educate students rather than be punitive. One commenter opposed the presumption because recipients already train staff and faculty to serve neutrally, bearing in mind the educational context in student misconduct cases, because the student is paying to be in an educational environment, not a prison system. One commenter warned that the presumption of non-responsibility would create an ‘‘inaccessibility to justice.’’ Other commenters supported the presumption of non-responsibility, arguing that Title IX proceedings are often highly contested, yet school proceedings are biased against the accused; commenters cited articles showing that over 150 lawsuits have been filed arising from fundamental unfairness in schools’ Title IX proceedings.1091 Commenters argued that a presumption of non-responsibility is essential because recipients have denied respondents the right to know the allegations against them or the identity of the person accusing them, and that respondents have been repeatedly denied the ability to question the complainant, submit exculpatory evidence, or have their witnesses interviewed by the recipient. Commenters argued that respondents have sued recipients for expelling them or finding them responsible without first giving them procedural protections, and that some courts have agreed that some recipients committed due process or fairness violations. One commenter shared information from a university’s website promoting adherence to the public awareness campaign ‘‘Start by Believing,’’ 1092 which the commenter argued shows the university’s bias against accused students. Commenters argued that college environments are highly politicized and college 1091 Commenters cited: Foundation for Individual Rights in Education (FIRE), Report: As changes to Title IX enforcement loom, America’s top universities overwhelmingly fail to guarantee fair hearings for students (Dec. 18, 2018); see also T. Rees Shapiro, Expelled for sex assault, young men are filing more lawsuits to clear their names, The Washington Post (Apr. 28, 2017). 1092 Commenters cited: University of Iowa Rape Victim Advocacy program, Start By Believing, https://rvap.uiowa.edu/take-action/prevent-andeducate/start-by-believing/. E:\FR\FM\19MYR2.SGM 19MYR2 30266 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations administrators and faculty are not objective fact-finders, and a presumption of non-responsibility helps counteract that lack of objectivity. Discussion: The Department disagrees that the presumption of nonresponsibility increases the adversarial nature of Title IX proceedings; Title IX proceedings are often inherently adversarial, due to the need to resolve contested factual allegations. The Department understands commenters’ concerns that an adversarial process may take an emotional toll on participants, and the final regulations encourage provision of supportive measures to both parties and give both parties an equal right to select an advisor of choice to assist the parties during a grievance process. The presumption of non-responsibility does not magnify the adversarial nature of the grievance process; rather, the presumption reinforces the recipient’s burden of proof, proper application of the standard of evidence, and how a respondent is treated pending the outcome of the grievance process. The Department disagrees that the presumption will lead to ‘‘inaccessibility’’ of justice; rather, complainants will benefit from increased legitimacy of recipient determinations when respondents are found responsible, while respondents will benefit from assurance that a recipient cannot treat the respondent as though responsibility has been determined until the conclusion of a fair grievance process. The § 106.45 grievance process, and the final regulations as a whole, impose an obligation on recipients to remain impartial toward parties whose views about the allegations are adverse to each other. To the extent that commenters’ concerns about an adversarial process reflect concern that financial inequities can affect the process (for example, where one party can afford to hire an attorney to further the party’s interests and the other party cannot afford an attorney), the final regulations permit, but do not require, advisors to be attorneys, allow recipients to limit the active participation of advisors significantly, with the exception of conducting cross-examination at a live hearing in postsecondary institutions,1093 and do not preclude recipients from offering both parties legal representation.1094 This approach 1093 Section 106.45(b)(5)(iv); § 106.45(b)(6)(i). Department realizes that only a fraction of postsecondary institutions currently offer to provide both parties in a grievance proceeding with legal representation, but such an option remains available to recipients who choose to address disparity with respect to the financial ability of 1094 The VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Supportive Measures Comments: Several commenters sought clarification as to whether the presumption in § 106.45(b)(1)(iv) would preclude a recipient from taking interim or emergency actions as dictated by individual circumstances when needed to ensure safety. For example, if a respondent is presumed not to be responsible for stalking a complainant until the end of the grievance process, commenters asked how a recipient could take effective measures to ensure that the respondent will not stalk the complainant prior to the conclusion of the grievance proceeding. Commenters asserted that the presumption appeared to require the recipient to remove the complainant from dorms and classes rather than the respondent, and that the presumption would curtail the ability of recipients to remove harassers and abusers from dorms and classes, which will lead to more sexual assaults because research indicates that most perpetrators are repeat offenders.1095 Commenters argued that the presumption may discourage schools from providing crucial supportive measures to complainants to avoid being perceived as punishing respondents.1096 Commenters argued that the proposed rules not only give respondents a presumption of innocence but also require recipients to provide supportive measures to respondents, constituting unprecedented concern with the wellbeing of accused harassers above the interests of victims. Discussion: The § 106.30 definition of ‘‘supportive measures’’ permits recipients to provide either party, or both parties, individualized services, without fee or charge, before or after filing a formal complainant, or where no formal complaint has been filed. Section 106.44(a) obligates a recipient to offer supportive measures to every complainant, by engaging in an interactive process by which the Title IX Coordinator contacts the complainant, discusses available supportive measures, considers the complainant’s wishes with respect to supportive measures, and explains to the complainant the option for filing a formal complaint. Title IX Coordinators are responsible for the effective implementation of supportive measures, and under revised § 106.45(b)(10) if a recipient’s response to sexual harassment does not include providing supportive measures to a complainant the recipient must specifically document why that response was not clearly unreasonable in light of the known circumstances (for example, because the complainant did not wish to receive supportive measures or refused to discuss supportive measures with the Title IX Coordinator when the Title IX Coordinator contacted the complainant to have such a discussion). Thus, unless a complainant does not desire supportive measures (i.e., refuses the offer of supportive measures), parties to hire legal representation in the recipient’s educational community. E.g., Kristen N. Jozkowski & Jacquelyn D. Wiersma-Mosley, The Greek System: How Gender Inequality and Class Privilege Perpetuate Rape Culture, 66 Fam. Relations 1 (2017) (noting that only about three percent of colleges and universities provide victims with legal representation and arguing that colleges and universities should provide free legal representation to both complainants and respondents in campus sexual assault proceedings). 1095 Commenters cited: David Lisak & Paul Miller, Repeat Rape and Multiple Offending Among Undetected Rapists, 17 Violence & Victims 1 (2002), for the proposition that a majority of ‘‘undetected rapists’’ were repeat rapists and undetected repeat rapists committed an average of 5.8 rapes each. 1096 Commenters cited: Michael C. Dorf, What Does a Presumption of Non-Responsibility Mean in a Civil Context, Dorf On Law (Nov. 28, 2018), https:// www.dorfonlaw.org/2018/11/what-doespresumption-of-non.html. reflects the reality that recipients are not courts, yet do need to apply a fair, truthseeking process to resolve factual allegations of Title IX sexual harassment. The Department recognizes that some recipients expressed concerns that the presumption of non-responsibility, in conjunction with other provisions in § 106.45, requires educational institutions to mimic courts of law. The Department acknowledges, and the final regulations reflect, that recipients’ purpose is to educate, not to act as courts. The § 106.45 grievance process is designed for implementation by nonlawyer recipient officials, and the final regulations do not intrude on a recipient’s discretion to use disciplinary sanctions as educational tools of behavior modification rather than, or in addition to, punitive measures. However, to effectuate Title IX’s nondiscrimination mandate, recipients must accurately resolve allegations of sexual harassment in order to identify and address sex discrimination in the recipient’s education program or activity. The Department believes the presumption of non-responsibility is important to ensure that recipients do not treat respondents as responsible until conclusion of the grievance process and to reinforce the recipient’s burden of proof and proper application of the standard of evidence, and these features will improve the legitimacy and reliability of the outcomes of recipients’ Title IX grievance processes. Changes: None. PO 00000 Frm 00242 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations complainants must receive supportive measures designed to restore or preserve the complainant’s equal educational access, regardless of whether a grievance process is ever initiated. There is no corresponding obligation to offer supportive measures to respondents; rather, recipients may provide supportive measures to respondents and under § 106.45(b)(1)(ix) the recipient’s grievance process must describe the range of supportive measures available to complainants and respondents. The presumption of nonresponsibility, which operates throughout a grievance process, does not prohibit the recipient from providing a complainant with supportive measures, but does reinforce the provision in the § 106.30 definition of ‘‘supportive measures’’ that supportive measures are designed to restore or preserve equal access to education ‘‘without unreasonably burdening the other party’’ including measures designed to protect a complainant’s safety or deter sexual harassment (which includes stalking), but supportive measures cannot be punitive or disciplinary. This does not bar all measures that place any burden on a respondent, but only those that ‘‘unreasonably burden’’ a respondent (or a complainant). Thus, changing a respondent’s class schedule, or forbidding the respondent from communicating with the complainant, may be an appropriate supportive measure for a complainant if such measures do not ‘‘unreasonably burden’’ the respondent, and such measures do not violate the presumption of nonresponsibility. To the extent that commenters’ concern is that current Department guidance affords recipients more discretion to impose interim measures that in fact do constitute disciplinary actions against the respondent (for example, interim suspensions), the Department has reconsidered that approach and, based on public comments on the NPRM, concluded that the non-discrimination mandate of Title IX is better served by the framework in the final regulations than the approach taken in guidance documents. With respect to disciplinary or punitive actions taken prior to an adjudication factually establishing a respondent’s responsibility for sexual harassment, the final regulations circumscribe a recipient’s discretion to treat a respondent as though accusations are true before the accusations have been VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 proved.1097 When applied in the context of these final regulations, the presumption of non-responsibility’s reinforcement of the notion that a person accused should not be treated as though accusations are true until the accusations have been proved increases the legitimacy of a recipient’s response to sexual harassment, while preserving every complainant’s right to supportive measures designed to maintain a complainant’s equal educational access and protect a complainant’s safety. This approach directly effectuates Title IX’s non-discrimination mandate by improving the fairness and accuracy of a recipient’s response to sexual harassment occurring in the recipient’s education programs or activities. The Department understands commenters’ concerns that restricting a recipient’s ability to impose interim discipline poses a risk that perpetrators may repeat an offense because they remain on campus while a grievance process is pending; however, even in situations that do not constitute the kind of immediate threat justifying an emergency removal under § 106.44(c), there are supportive measures short of disciplinary actions that a recipient may take to protect the safety of parties and deter sexual harassment, such as a nocontact order prohibiting communication with the complainant, supervising the respondent, and informing the respondent of the recipient’s policy against sexual harassment.1098 1097 The final regulations prohibit a recipient from taking disciplinary action, or other action that does not meet the definition of a supportive measure, against a respondent without following a grievance process that complies with § 106.45. § 106.44(a); § 106.45(b)(1). Through an informal resolution process (which is authorized under § 106.45) a recipient may impose disciplinary sanctions against a respondent without concluding an investigation or adjudication. § 106.45(b)(9). An exception to the requirement not to impose punitive or disciplinary action until conclusion of a grievance process is § 106.44(c), permitting a recipient to remove a respondent from an education program or activity in an emergency situation whether or not a grievance process has been concluded or is even pending. Supportive measures designed to restore or preserve a complainant’s equal access to education, protect parties’ safety, and/or deter sexual harassment, may be imposed even where such measures burden a respondent, so long as the burden is not unreasonable. § 106.30 (defining ‘‘supportive measures’’). Thus, the final regulations are premised on the principle that a recipient must not treat a respondent as responsible prior to an adjudication finding the respondent responsible, yet that principle is not absolute and leave recipients with the ability (and, judged under the deliberate indifference standard, the obligation) to protect and support complainants and respond to emergency threat situations, without unduly, prematurely punishing a respondent based on accusations that have not been factually proved. 1098 E.g., Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1296 (11th Cir. 2007) PO 00000 Frm 00243 Fmt 4701 Sfmt 4700 30267 Changes: None. Miscellaneous Concerns Comments: At least one commenter asked the Department to add at the end of the presumption provision the language ‘‘. . . respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process or any subsequent litigation.’’ Commenters asked the Department to provide the respondent with a right to remain silent, since the respondent’s statements during any investigation or hearing could be used against the respondent at a criminal trial. One commenter recommended inserting the following language: ‘‘The recipient bears the burden of demonstrating that the respondent is responsible for the alleged conduct and may not infer responsibility based solely on the respondent declining to present testimony, evidence, or witnesses in response to a formal complaint.’’ Another commenter urged the Department to add to § 106.45(b)(1)(iv) a sentence declaring that it is the obligation of the recipient to prove every element of every alleged offense before the accused student may be found responsible and punished for committing an alleged offense. Discussion: The Department does not attempt to regulate procedures that apply in private lawsuits and so declines commenters’ request that the Department require a recipient to abide by a presumption of non-responsibility until conclusion of ‘‘any subsequent litigation.’’ The recipient’s obligation is to conclude a grievance process by reaching a determination regarding responsibility when presented with a formal complaint of sexual harassment under Title IX, whether or not litigation arises from the same allegations. Section 106.6(d) provides that these regulations do not require a recipient to restrict any rights that would otherwise be protected from government action under the U.S. Constitution, which includes the Fifth Amendment right against self-incrimination. To ensure that the determination regarding responsibility is reached in a manner that does not require violation of that constitutional right, we revised § 106.45(b)(6)(i) in the final regulations to provide that a decision-maker cannot draw any inferences about the determination regarding responsibility (pointing to the recipient’s failure to supervise the respondent or inform the respondent of the recipient’s expectations of behavior under the recipient’s sexual harassment policy as evidence of the recipient’s deliberate indifference that subjected the complainant to sexual harassment). E:\FR\FM\19MYR2.SGM 19MYR2 30268 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations based on a party’s failure to appear at the hearing or answer cross-examination or other questions. While this applies equally to respondents and complainants, this modification addresses commenters’ concerns that a respondent should not be found responsible solely because the respondent refused to provide selfincriminating statements. The Department declines to change § 106.45(b)(1)(iv) to add language about the recipient’s burden to prove each element of an offense, because § 106.45(b)(5)(i) places the burden of proof on the recipient. Changes: We revised § 106.45(b)(6)(i) of the final regulations to provide that a decision-maker cannot draw any inferences about the determination regarding responsibility based on a party’s failure to appear at the hearing or answer cross-examination or other questions. Section 106.45(b)(1)(v) Reasonably Prompt Time Frames Support Comments: A number of commenters expressed support for this section. Some did not expand upon the reasons for their support. Others, primarily some college and university commenters, expressed particular support for eliminating the 60-day time frame contained in withdrawn Department guidance. Some commenters identified concerns with a 60-day time frame, such as asserting that: It does not reflect the complex nature of these cases, such as multiple parties, various witnesses, time to obtain evidence, and school breaks; it is arbitrary and hard to adhere to while providing due process for all; it interferes with the time parties need to provide evidence and to make their case; it has not been required by courts; and it increases the risks of decisions based on conjecture or gender or racial stereotypes. Other commenters contended that eliminating such a constrained timeline would be beneficial, by for instance allowing for more thorough investigations, collection of more evidence, and added accommodation of disabilities. A number of the supportive commenters also noted support more generally for the NPRM’s flexibility regarding the time to conclude Title IX investigations and extensions for good cause. Some emphasized that prompt resolution is important, but contended that various factors may delay proceedings (such as police investigations, witness availability, school breaks, faculty sabbaticals) and asserted that fairness demands VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 thoroughness. According to these commenters, § 106.45(b)(1)(v) appropriately accounts for schools’ unique attributes (for example, their size, population, location, or mission), recognizes that complex matters may not lend themselves to set deadlines, and acknowledges that delays may sometimes be necessary, especially with a concurrent criminal investigation. Likewise, some commenters expressed support for good cause extensions for a related criminal proceeding in the belief that students should not be forced to choose between participating in campus proceedings and giving up their right to silence in criminal proceedings. Discussion: The Department appreciates the commenters’ support for § 106.45(b)(1)(v) under which a recipient’s grievance process must include reasonably prompt time frames for concluding the grievance process, including appeals and any informal resolution processes, with temporary delays and limited extensions of time frames permitted only for good cause. The Department agrees with commenters that this provision appropriately requires prompt resolution of a grievance process while leaving recipients flexibility to designate reasonable time frames and address situations that justify short-term delays or extensions. This is the same recommendation made in the 2001 Guidance, which advised recipients that grievance procedures should include ‘‘Designated and reasonably prompt time frames for the major stages of the complaint process.’’ 1099 Changes: None. Opposition—Lack of Specified Time Limit Comments: Many commenters expressed opposition to § 106.45(b)(1)(v) because of concerns about the absence of specific time frames for completing investigations and adjudications, including appeals. Commenters asserted that schools could delay investigations indefinitely or for unspecified periods of time and that students might wait months or years for resolution of their complaint. Commenters identified a number of other drawbacks they felt would result from uncertain, indefinite time frames with possible delays. Commenters asserted that this provision would: Make it less likely that survivors will report, less likely parties will receive justice, and more likely that students will lose faith in the reporting process; eliminate the mechanism for discovering and correcting harassment as early and effectively as possible; 1099 2001 PO 00000 Guidance at 20. Frm 00244 Fmt 4701 Sfmt 4700 result in inconsistent resolution time frames at different schools; and only further delay the already lengthy process to reach resolution of sexual misconduct cases (for example, long unexplained delays even under the prior guidance with a 60-day time frame). Some commenters noted other concerns about the proposed time frames and potential delays or extensions. Commenters asserted that indefinite time frames and probable delays would create uncertainty and a longer process that would harm survivors’ well-being, safety, and education, and subject them to unreasonable physical, mental, time, and cost demands. Some felt that the proposal would: Deny due process; exacerbate survivors’ emotional distress; heighten the chances survivors would drop their cases or drop out of school as investigations drag on; increase risks of self-harm or suicide as delays might take too long for schools to provide prompt supports; prolong the period of survivors’ exposure to their attackers; and add costs for counseling services or medical assistance, which would especially burden low-income students. Other commenters emphasized their belief that the indefinite time frames and delays would harm the mental health and education of both complainants and respondents, by adding uncertainty and stress for lengthy periods without resolution, exoneration, or closure. Other commenters expressed concerns about increasing safety risks to all students by allowing a hostile environment to continue unchecked, and assailants to harass, assault, or retaliate against their victims or others during the long waiting period. One commenter expressed concern that the NPRM would permit delays even when a respondent poses a clear threat to the campus community. Some commenters contended that delays or extensions may result in: Information, memory, and witnesses being lost; less, lost, or corrupted evidence, including fewer witnesses who may no longer be available or on campus (for example, students or shortterm staff); and parties who have left school or graduated impairing schools from investigating or resolving concerns. Other commenters believed that a lengthier process and delays would: Signal that schools do not care about the safety or education of victims; make it more likely that a victim will be identified or lose confidentiality; force survivors to rely on supportive measures for longer than they may be adequate or effective; allow a respondent’s refusal to cooperate to E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations delay a case indefinitely; permit recipients to place respondents on administrative leave to further delay an investigation; and particularly harm schools’ short-term staff or contractors. A few commenters asserted that delays have increased in resolving Title IX cases since the Department withdrew the 2011 Dear Colleague Letter, and at least one commenter expressed concern that the Department failed to offer data that a 60-day time frame had compromised accuracy and fairness. Discussion: The Department disagrees that this provision allows recipients to conduct grievance processes without specified time frames, or allows indefinite delays. This provision specifically requires a recipient’s grievance process to include reasonably prompt time frames; thus, a recipient must resolve each formal complaint of sexual harassment according to the time frames the recipient has committed to in its grievance process. Any delays or extensions of the recipient’s designated time frames must be ‘‘temporary’’ and ‘‘limited’’ and ‘‘for good cause’’ and the recipient must notify the parties of the reason for any such short-term delay or extension. This provision thus does not allow for open-ended or indefinite grievance processes. Under existing regulations at 34 CFR 106.8(b), in effect since 1975, recipients have been required to ‘‘adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging’’ sex discrimination. The final regulations require more of recipients than do existing regulations, because § 106.45(b)(1)(v) requires recipients to include ‘‘reasonably prompt time frames’’ in the recipient’s grievance process, rather than simply ‘‘providing for prompt’’ resolution. Further, the final regulations specify that the time frames designated by the recipient must account for conclusion of the entire grievance process, including appeals and any informal resolutions processes. Thus, no avenue for handling a formal complaint of sexual harassment is subject to an open-ended time frame. Any time frame included by the recipient must be ‘‘reasonably prompt,’’ where the reasonableness of the time frame is evaluated in the context of the recipient’s operation of an education program or activity. The Department believes that conclusion of the grievance process must be reasonably prompt, because students (or employees) should not have to wait longer than necessary to know the resolution of a formal complaint of sexual harassment; any grievance process is difficult for both parties, and participating in such a VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 process likely detracts from students’ ability to focus on participating in the recipient’s education program or activity. Furthermore, victims of sexual harassment are entitled to remedies to restore or preserve equal access to education, and while supportive measures should be implemented as appropriate designed to achieve the same ends while a grievance process is pending, remedies after a respondent is found responsible may consist of measures not permissible as supportive measures. Thus, prompt resolution of a formal complaint of sexual harassment is necessary to further Title IX’s nondiscrimination mandate. At the same time, grievance processes must be fair and lead to reliable outcomes, so that sexual harassment in a recipient’s education program or activity is accurately identified and remedied. The final regulations prescribe procedures and protections throughout the § 106.45 grievance process that the Department has concluded are necessary to ensure fairness and accuracy. The Department believes that each recipient is in the best position to balance promptness with fairness and accuracy based on the recipient’s unique attributes and the recipient’s experience with its own student disciplinary proceedings, and thus requires recipients to include ‘‘reasonably prompt time frames’’ for conclusion of a grievance process that complies with these final regulations. The Department acknowledges that withdrawn Department guidance referred to a 60-day time frame for sexual harassment complaints. For recipients who determine that 60 days represents a reasonable time frame under which that recipient can conclude a grievance process that complies with § 106.45, a recipient has discretion to include that time frame under the final regulations. For recipients who determine that a shorter or longer period of time represents the time frame under which the recipient can conclude a grievance process, the recipient has discretion to include that time frame. The Department emphasizes that what a recipient selects as a ‘‘reasonable’’ time frame is judged in the context of the recipient’s obligation to provide students and employees with education programs and activities free from sex discrimination, so that the recipient’s selection of time frames must reflect the goal of resolving a grievance process as quickly as possible while complying with the procedures set forth in § 106.45 that aim to ensure fairness and accuracy. Because the final regulations allow short-term delays and extensions for good cause, recipients PO 00000 Frm 00245 Fmt 4701 Sfmt 4700 30269 need not base designated time frames on, for example, the most complex, time-consuming investigation that a formal complaint of sexual harassment might present. Rather, the recipient may select time frames under which the recipient is confident it can conclude the grievance process in most situations, knowing that case-specific complexities may be accounted for with factually justified short-term delays and extensions. Commenters correctly noted that this provision allows different recipients to select different designated time frames and thus a grievance process may take longer at one school than at another. The Department believes that each recipient’s commitment to a designated, reasonable time frame known to its students and employees,1100 where each recipient has determined what time frame to designate by considering its own unique educational community and operations, is more effective than imposing a fixed time frame across all recipients because it results in each recipient being held accountable for complying with time frames the recipient has selected (and made known to its educational community), while ensuring that all recipients select time frames that are reasonably prompt. The non-exhaustive list in § 106.45(b)(1)(v) of factors that may constitute good cause for short-term delays or extensions of the recipient’s designated time frames relate to the fundamental fairness of the proceedings. Delays caused solely by administrative needs, for example, would be insufficient to satisfy this standard.1101 Furthermore, even where good cause exists, the final regulations make clear that recipients may only delay the grievance process on a temporary basis for a limited time. A respondent (or other party, advisor, or witness) would not be able to indefinitely delay a Title IX proceeding by refusing to cooperate. While recipients must attempt to accommodate the schedules of parties and witnesses throughout the grievance 1100 Section 106.45(b)(1)(v) (requiring a recipient’s grievance process to designate reasonably prompt time frames); § 106.8 (requiring recipients to notify students and employees (and others) of its non-discrimination policy and its grievance process for resolution of formal complaints of sexual harassment). 1101 The Department notes that temporary delay of a hearing caused by a recipient’s need to provide an advisor to conduct cross-examination on behalf of a party at a hearing as required under § 106.45(b)(6)(i) may constitute good cause rather than mere administrative convenience, although a recipient aware of that potential obligation ought to take affirmative steps to ascertain whether a party will require an advisor provided by the recipient or not, in advance of the hearing, so as not to delay the proceedings. E:\FR\FM\19MYR2.SGM 19MYR2 30270 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations process in order to provide parties with a meaningful opportunity to exercise the rights granted to parties under these final regulations, it is the recipient’s obligation to meet its own designated time frames, and the final regulations provide that a grievance process can proceed to conclusion even in the absence of a party or witness. The Department understands commenters’ concerns that the longer a grievance process is pending, the more risk there is of loss of information, evidence, and availability of witnesses. These concerns are addressed through requiring that a grievance process is concluded within a ‘‘reasonably prompt’’ time frame, yet in a manner that applies procedures designed to ensure fairness and accuracy. Administrative leave under § 106.44(d) of the final regulations would not preclude an investigation from proceeding; regardless of whether a party has been voluntarily or involuntarily separated from the recipient’s campus, the recipient can provide for the party to return to participate in the grievance process, including with safety measures in place for the other parties and witnesses. Under § 106.45(b)(6)(i) a postsecondary institution has discretion to hold a live hearing virtually, or to allow any participant to participate remotely, using technology. Where a party refuses to participate, the recipient may still proceed with the grievance process (though the recipient must still send to a party who has chosen not to participate notices required under § 106.45; for instance, a written notice of the date, time, and location of a live hearing). The Department disagrees that § 106.45(b)(1)(v) will jeopardize the safety of complainants or the educational environment, or that complainants will feel deterred from filing formal complainants because the grievance process might drag on indefinitely. As noted above, supportive measures designed to protect safety and deter sexual harassment are available during the pendency of the grievance process.1102 Furthermore, under § 106.44(c) recipients may remove a respondent on an emergency basis without awaiting conclusion of a grievance process. As also noted above, the final regulations do not permit any recipient’s grievance process to go on indefinitely. 1102 Section 106.30 (defining ‘‘supportive measures’’); § 106.44(a) (requiring recipients to offer supportive measures to complainants, with or without the filing of a formal complaint). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 With respect to a commenter’s assertion that the Department did not provide data to show that the 60-day time frame has compromised accuracy and fairness, commenters on behalf of complainants and respondents have noted that the grievance process often takes too long, which may indicate that a 60-day time frame was not a reasonable expectation for recipients to conclude a fair process, and some comments on behalf of recipients expressed that many of the cases that go through a Title IX proceeding present complex facts that require more than 60 days for a recipient to conclude a fair process. For recipients who determine that 60 days (or less) is a reasonable time frame under which to conclude a fair process, recipients may designate such a time frame as part of their § 106.45 grievance process. Changes: To ensure that reasonably prompt time frames are included for every stage of a grievance process, we have revised § 106.45(b)(1)(v) of the final regulations to apply the reasonably prompt time frame requirement to informal resolution processes, if recipients choose to offer them, and we have removed the phrase ‘‘if the recipient offers an appeal’’ because under the final regulations, § 106.45(b)(8), appeals are mandatory, not optional. Effects on Recipients Comments: Other commenters expressed opposition to § 106.45(b)(1)(v) because they believed it would weaken schools’ accountability and incentives for prioritizing sexual harassment complaints and would increase the chances that reports are brushed under the rug or not promptly and appropriately handled. Some commenters noted concerns that the provision is too vague to be clear, effective, and enforceable, and would give schools too much leeway to decide what is reasonably prompt. Other commenters expressed concern that schools already have incentives to delay, such as to protect their reputations or resources, and so might drag out investigations until one or both parties graduate, a survivor drops the case, or until after a season ends or a major game is played, in cases involving athletes. A number of commenters called for set time frames for clearer expectations and accountability. One commenter felt that a set time frame would also leave schools less vulnerable to lawsuits or complaints. Discussion: The Department does not believe that this provision perversely incentivizes recipients to sweep allegations of sexual harassment under PO 00000 Frm 00246 Fmt 4701 Sfmt 4700 the rug, gives recipients the freedom to simply indefinitely delay proceedings against the interests of fairness and justice, or increases the risk of litigation against recipients. The Department believes that § 106.45(b)(1)(v) strikes an appropriate balance between imposing clear constraints on recipients in the interests of achieving Title IX’s purpose, and ensuring they have adequate flexibility and discretion to select reasonably prompt time frames in a manner that each recipient can apply within its own unique educational environment. We also believe that moving away from a strict timeline that does not permit short-term extensions will help to address pitfalls and implementation problems that commenters have recounted in recipients’ Title IX proceedings under the previous guidance, where some recipients felt pressure to resolve their grievance processes within 60 days regardless of the circumstances of the situation. The Department believes that recipients are in the best position to balance the interests of promptness, and fairness and accuracy, within the confines of such a decision resulting in ‘‘reasonably prompt’’ conclusion of grievance processes. This provision does not permit a recipient to conduct a grievance process without a ‘‘set’’ time frame; to the contrary, this provision requires a recipient to designate and include in its grievance process what its set time frame will be, for each phase of the grievance process (including appeals and any informal resolution process). Permitting recipients to set their own reasonably prompt time frames increases the likelihood that recipients will meet the time frames they have designated and thereby more often meet the expectations of students and employees as to how long a recipient’s grievance process will take. Requiring recipients to notify the parties whenever the recipient applies a short-term delay or extension will further promote predictability and transparency of recipients’ grievance process. Prescribing that any delay or extension must be for good cause, and must be temporary and limited in duration, ensures that no grievance process is open-ended and that parties receive a reasonably prompt resolution of each formal complaint. Changes: None. Concerns Regarding Concurrent Law Enforcement Activity Comments: Some commenters opposed to this provision emphasized concerns about permitting delay for concurrent ongoing criminal investigations. Commenters asserted E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations that criminal investigations can and often do take months or years because of rape kit backlogs or lengthy DNA analyses, and expressed concern about allowing schools to delay action for unspecified and lengthy periods. These commenters felt this would force students to wait months or longer for resolution as they suffer serious emotional and academic harm when they need timely responses and support to continue in school and to heal from their trauma. Some commenters felt that it would deny due process in school Title IX proceedings, ignore schools’ independent Title IX obligations to remedy sex-based harassment, and allow perpetrators to evade responsibility or consequences or to perpetrate again. A number of commenters were concerned that schools delaying or suspending investigations at the request of law enforcement or prosecutors creates a safety risk to the survivor and to other students, by allowing assailants to harass or assault survivors or others during the waiting period. Commenters also asserted that Title IX and criminal justice proceedings have different purposes, considerations, rules of evidence, burdens of proof, and outcomes, and felt as a result that their determinations are separate and independent from each other. Some of these commenters also argued that schools should prioritize and not delay a complainant’s educational access and can provide supportive measures that are not available from the police. A number of commenters emphasized concerns about problematic incentives and consequences that they believed would result from permitting delays for concurrent ongoing criminal investigations. For example, some commenters felt that such a provision would incentivize survivors not to report to law enforcement, since it would delay resolution of their Title IX case, thereby increasing safety risks to both survivors and school communities. Other commenters believed this provision would force survivors who pursue a police investigation to wait a long time for it to end before receiving accommodations from their school or to drop their criminal case to get measures only schools can provide. At least one commenter expressed concern that students would be forced to bring civil cases to protect themselves during a criminal investigation. Many others asserted that it would force elementary and secondary school students to wait months or even longer for any resolution to their complaints as most school employees are legally required to VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 report child sexual abuse to the police as mandatory reporters. A number of these commenters expressed concern that this might impede elementary and secondary schools from implementing critical safety measures for child victims until a criminal investigation is completed. Discussion: We acknowledge the concerns raised by some commenters specifically relating to recipients’ flexibility under § 106.45(b)(1)(v) to temporarily delay the grievance process due to concurrent law enforcement activity. The Department acknowledges that the criminal justice system and the Title IX grievance process serve distinct purposes. However, the two systems sometimes overlap with respect to allegations of conduct that constitutes sex discrimination under Title IX and criminal offenses under State or other laws. By acknowledging that concurrent law enforcement activity may constitute good cause for short-term delays or extensions of a recipient’s designated time frames, this provision helps recipients navigate situations where a recipient is expected to meet its Title IX obligations while intersecting with criminal investigations that involve the same facts and parties. For example, if a concurrent law enforcement investigation uncovers evidence that the police plan to release on a specific time frame and that evidence would likely be material to the recipient’s determination regarding responsibility, then the recipient may have good cause for a temporary delay or limited extension of its grievance process in order to allow that evidence to be included as part of the Title IX investigation. Because the final regulations only permit ‘‘temporary’’ delays or ‘‘limited’’ extensions of time frames even for good cause such as concurrent law enforcement activity, this provision does not result in protracted or openended investigations in situations where law enforcement’s evidence collection (e.g., processing rape kits) occurs over a time period that extends more than briefly beyond the recipient’s designated time frames.1103 In response to commenters concerned that concurrent law enforcement activity is prevalent especially in sexual misconduct situations in elementary and secondary schools (where 1103 E.g., Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1297 (11th Cir. 2007) (‘‘[T]he pending criminal charges did not affect [the university’s] ability to institute its own procedures’’ and did not justify university waiting 11 months for outcome of the criminal matter before finishing its own investigation and conducting its own disciplinary proceeding against sexual misconduct respondents). PO 00000 Frm 00247 Fmt 4701 Sfmt 4700 30271 mandatory child abuse reporting laws often require reporting sexual misconduct to law enforcement), § 106.45(b)(1)(v) benefits recipients and young victims in such situations by allowing circumstance-driven flexibility for schools and law enforcement to coordinate efforts so that sexual abuse against children is effectively addressed both in terms of the purposes of the criminal justice system and Title IX’s non-discrimination mandate. While a grievance process is pending, recipients may (and must, if refusing to do so is clearly unreasonable under the circumstances) implement supportive measures designed to ensure a complainant’s equal access to education, protect the safety of parties, and deter sexual harassment. Changes: None. Consistency With Other Federal Law Comments: Some commenters raised concerns that allowing temporary delays or limited extensions conflicts with Title IX and Clery Act requirements that schools provide ‘‘prompt’’ resolution of complaints. Similarly, some commenters felt that permitting extensions for language assistance or disability accommodations is inconsistent with statutory obligations to provide these in a timely manner under Title VI, the Equal Educational Opportunities Act of 1974 (‘‘EEOA’’), ADA, and Section 504. Commenters also expressed concerns that the final regulations would permit delays for far longer than is permitted of employers under Title VII. Discussion: Section 106.45(b)(1)(v) requires recipients to have good cause for any short-term delays or extensions, with written notice to the parties and an explanation for the delay or extension. Because the overall time frame must be reasonably prompt, and any delay or extension must be temporary or limited, § 106.45(b)(1)(v) poses no conflict with the Clery Act or other laws that require ‘‘prompt’’ resolution of processes designed to redress sexual harassment or sex offenses.1104 Neither does application of short-term delays or extensions violate the ‘‘promptness’’ requirement that Title IX regulations have required since 1975; under the final regulations the grievance process still must be concluded in a ‘‘reasonably prompt’’ time frame and any delay or extension, even for good cause, may only be brief in length. Recipients must still satisfy their legal obligation to provide timely auxiliary 1104 For further discussion see the ‘‘Clery Act’’ subsection of the ‘‘Miscellaneous’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30272 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations aids and services and reasonable accommodations under the ADA, Section 504, and Title VI, and should reasonably consider other services such as meaningful access to language assistance. With respect to the EEOA, Title VII, or other laws that may impose time frames on the same grievance process that recipients must apply under § 106.45, these final regulations permit a recipient to apply short-term delays or extensions for good cause. These final regulations do not require a recipient to apply short-term delays or extensions, and thus if a recipient is precluded by another law from extending a time frame the recipient is not required to do so under these final regulations. Changes: None. Alternative Proposals Comments: A number of commenters suggested alternative approaches to address their concerns about the proposed time frames. Commenters also suggested other approaches such as: Eliminating any time frame requirement for recipients; barring delays due to an ongoing criminal investigation; prohibiting extensions for refusal to cooperate, lack of witnesses, or the need for language assistance or accommodation of disabilities; setting a time limit for law enforcement delays that is brief, such as three to ten days; setting a time limit for temporary delays and allowing delays for concurrent law enforcement activity only if requested by external municipal entities to gather evidence and for not more than ten days except when specifically requested and justified; and narrowing delay for law enforcement activity to only when absolutely necessary like when a school cannot proceed without evidence in law enforcement’s exclusive domain (for example, a DNA sample to identify an unknown assailant). Other suggestions raised by commenters included: Requiring supportive measures while criminal and school investigations are ongoing; and ensuring schools and criminal justice agencies set protocols for concurrent investigations that are responsive to the complexity of these situations and to each entity’s duties and timelines. Discussion: The Department believes that recipients are in the best position to designate ‘‘reasonably prompt time frames’’ that balance the need to conclude Title IX grievance processes promptly with providing the fairness and accuracy that these final regulations require. For reasons discussed above, prompt resolution is important to serve the purpose of Title IX’s nondiscrimination mandate, and the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Department thus declines to remove the requirement that recipients conclude grievance processes promptly. For reasons discussed above, the Department believes that categorically prohibiting delays based on concurrent law enforcement investigations would deprive recipients of flexibility to work effectively and appropriately with law enforcement where the purpose of both the criminal justice system and the Title IX grievance process is to protect victims of sexual misconduct, and this discretion is appropriately balanced by not permitting a recipient to apply a delay or extension (even for good cause) that is not ‘‘temporary’’ or ‘‘limited.’’ For similar reasons, the Department declines to specify a particular number of days that constitute ‘‘temporary’’ delays or ‘‘limited’’ extensions of time frames. State laws that do specify such maximum delays may be complied with by recipients without violating these final regulations, because § 106.45(b)(1)(v) allows but does not require a recipient to implement shortterm delays even for good cause. The Department also reiterates that nothing in the final regulations precludes recipients from offering supportive measures to one or both parties while the grievance process is temporarily delayed, and revised § 106.44(a) obligates a recipient to offer supportive measures to complainants, with or without a grievance process pending. The Department declines to allow short-term delays on the basis of working with a concurrent law enforcement effort only where the law enforcement agency specifically requests that the recipient delay, or only where the school and law enforcement agency have a memorandum of understanding or similar cooperative agreement in place. Recipients’ obligations under Title IX are independent of recipients’ obligations to cooperate or coordinate with law enforcement with respect to investigations or proceedings affecting the recipient’s students or employees. These final regulations do not attempt to govern the circumstances where such cooperation or coordination may be required under other laws, or advisable as a best practice, but § 106.45(b)(1)(v) gives recipients flexibility to address situations that overlap with law enforcement activities so that potential victims of sex offenses are better served by both systems while ensuring that a recipient’s grievance process is not made dependent on a concurrent law enforcement investigation, and thus a Title IX grievance process will still be PO 00000 Frm 00248 Fmt 4701 Sfmt 4700 concluded promptly even if the law enforcement matter is still ongoing. Changes: None. Clarification Requests Comments: Commenters requested clarifications of certain terms used in this provision, including the terms reasonably prompt, absence of the parties or witnesses, administrative delay, limited extensions, and temporary delay. Commenters also requested clarification as to what does or does not constitute good cause for delay, such as with respect to administrative needs or accommodation of disabilities, as well as when and for how long schools should delay for law enforcement activity. Some commenters asked for more clarity about the limits on extensions, the mechanisms to end delays when the advantages are outweighed by the benefits of resolution, the steps schools must take to protect students regardless of law enforcement activity, and what OCR will assess in determining if a grievance process is prompt. Other commenters asked for a clarification that the list of examples of good cause for delay are not exhaustive, and several commenters requested clarifying that schools can excuse complainants from participating in the process for study abroad or other academic programming involving a significant time away from campus. Discussion: As clarified above, the Department believes that recipients should retain flexibility to designate time frames that are reasonably prompt, and what is ‘‘reasonable’’ is a decision made in the context of a recipient’s purpose of providing education programs or activities free from sex discrimination, thus requiring recipients to designate time frames taking into account the importance to students of resolving grievance processes so that students may focus their attention on participating in education programs or activities, and the reality that every academic term (e.g., an academic quarter, semester, trimester, etc.) is important to a student’s progress toward advancing a grade level or completing a degree. A recipient must balance the foregoing realities with the need for recipients to conduct grievance processes fairly in a manner that reaches reliable outcomes, meeting the requirements of § 106.45, in deciding what time frames to include as ‘‘reasonably prompt’’ in a recipient’s grievance process for formal complaints of sexual harassment under Title IX. This provision’s reference to the absence of parties or witnesses has its ordinary meaning, suggesting that the reasons for a party or witness’s absence E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations is a factor in a recipient deciding whether circumstances constitute ‘‘good cause’’ for a short-term delay or extension. With respect to administrative delay, we intend that concept to include delays caused by recipient inefficiencies or mismanagement of their own resources, but not necessarily circumstances outside the recipient’s control (e.g., if technology relied on to conduct a live hearing is interrupted due to a power outage). We intend delay to have its ordinary meaning; a delay is a postponement of a deadline that would otherwise have applied. We appreciate the opportunity to clarify here that the examples of good cause listed in § 106.45(b)(1)(v) of the final regulations are illustrative, not exhaustive. We defer to recipients’ experience and familiarity with the cases recipients investigate to determine whether other factual circumstances present good cause that could justify extending the time frame. Further, we wish to emphasize that any delay or extension contemplated by § 106.45(b)(1)(v) must be on a limited and temporary basis, regardless of the good cause that exists. The Department trusts recipients to make sound determinations regarding the length of a brief delay; we believe recipients are in the best position to make these decisions as they may be closer to the parties and have a deeper understanding of how to balance the interests of promptness, fairness to the parties, and accuracy of adjudications in each case. As noted above, a recipient’s response to sexual harassment must include offering supportive measures to a complainant (with or without a grievance process pending). While a recipient is not obligated in every situation to offer supportive measures to a respondent, if refusing to offer supportive measures to a respondent (for instance, where a live hearing date that falls on a respondent’s final examination date results in a respondent needing to reschedule the examination) would be clearly unreasonable in light of the known circumstances such a refusal could also violate these final regulations. Changes: None. Section 106.45(b)(1)(vi) Describe Range or List of Possible Sanctions and Remedies Comments: Several commenters support this provision because it furthers due process. One commenter supported § 106.45(b)(1)(vi) because it will increase parties’ understanding of the proceedings and decrease the possibility of arbitrary, disproportionate, or inconsistent VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 sanctions. A group of concerned attorneys and educators commented that consistent standards, such as this provision, are necessary to ensure a fair process will benefit everyone. Another commenter expressed support for § 106.45(b)(1)(vi) because it promotes parity between parties; requiring recipients’ grievance procedures to contain significant specificity is key because individuals must have a clear understanding of the procedures and possible penalties for wrongdoing. One commenter agreed that full and proper notice to all students, faculty, and other personnel is critical to the effective implementation of Title IX and therefore consistent with due process, so a recipient’s grievance procedures must describe the range of possible sanctions and remedies that the recipient may implement following any determination of responsibility. Discussion: The Department agrees with commenters that it is important to provide to all students, faculty, and other personnel a clear understanding of the possible remedies and sanctions under a recipient’s Title IX grievance process. The Department agrees with commenters who asserted that § 106.45(b)(1)(vi) furthers due process protections for both parties and lessens the likelihood of ineffective remedies and arbitrary, disproportionate, or inconsistent disciplinary sanctions. For consistency of terminology, the final regulations use ‘‘disciplinary sanctions’’ rather than ‘‘sanctions’’ including in this provision, to avoid ambiguity as to whether a ‘‘sanction’’ differed from a ‘‘disciplinary sanction.’’ Throughout the NPRM and these final regulations, where reference is made to disciplinary sanctions, the provisions are calling attention to the disciplinary nature of the action taken by the recipient, and the phrase ‘‘disciplinary sanctions’’ is thus more specific and accurate than the word ‘‘sanctions.’’ Because the intent of this provision is to provide clarity for recipients and their educational communities, we have also revised this provision to state that the recipient’s grievance process must describe ‘‘or list’’ the range of disciplinary sanctions, to clarify that complying with this provision also complies with the Clery Act.1105 Changes: We have revised the final regulations to use the phrase ‘‘disciplinary sanctions’’ consistently, replacing ‘‘sanctions’’ with ‘‘disciplinary sanctions’’ in provisions such as § 106.45(b)(1)(vi). We have also 1105 For further discussion see the ‘‘Clery Act’’ subsection of the ‘‘Miscellaneous’’ section of this preamble. PO 00000 Frm 00249 Fmt 4701 Sfmt 4700 30273 revised § 106.45(b)(1)(vi) to state that a recipient may describe the range of possible sanctions and remedies or list the possible disciplinary sanctions and remedies that the recipient may implement following any determination of responsibility. Comments: A number of commenters opposed § 106.45(b)(1)(vi). One commenter expressed concern that this provision is too restrictive because disciplinary actions are often implemented in a number of creative ways that are specific to each individual case. One commenter expressed concern that the proposed regulations, including this provision, are unconstitutional, since the decisions to be made by the ‘‘decision-maker’’ determining responsibility and sanctions against a student are those that must be made by the judicial branch of government acting under Article III of the U.S. Constitution, and not by the executive branch, or by the recipient. Several commenters expressed concern that recipients should not be required to describe a range of sanctions. One commenter expressed concern that each type of employee at their university has their own grievance procedures and penalties and appeals process, and the university does not have the expertise to know in certain circumstances how a faculty member’s tenure would be implicated. One university commented that notice of investigation letters may exacerbate tense situations because the practice will be to describe every possible sanction, including termination, even when the possibility of some sanctions is remote or would contravene good practice. Several commenters proposed modifications to § 106.45(b)(1)(vi). One commenter urged the Department to offer examples of the types of remedies it would find equitable, and the types of sanctions it would find acceptable, asserting that at a minimum, the Department should make clear that it defers to the educational judgment of schools to take into consideration the myriad factors impacting the elementary and secondary school environment, from age to developmental level and beyond, in implementing the ‘‘equitability’’ requirement. One commenter suggested the language be altered due to the importance of ensuring that any sanction imposed be proportional to the offense committed, and noted that this principle reflects our societal understanding of punishment, as reflected in the U.S. Constitution’s prohibition on ‘‘cruel and unusual punishment.’’ The commenter argued that the proposed language would allow E:\FR\FM\19MYR2.SGM 19MYR2 30274 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations minor violations of university policy to be punished in extreme, disproportionate ways and would also allow for different violations to be punished in the same manner as long as the punishment had been described in the grievance process. One commenter suggested that this provision should be altered to clarify that collective punishment is unacceptable to the extent that it punishes individuals or organizations that did not perpetrate, or were not found responsible for perpetrating, the offense in question. One commenter suggested that recipients should be required to list any factors that will or will not be considered in issuing a sanction. One commenter suggested the Department should make clear how specific the range of sanctions must be and that recipients be permitted to state, for example, ‘‘suspension of varying lengths’’ rather than having to itemize every possible length of a suspension. Discussion: The Department proposed § 106.45(b)(1)(vi) to provide consistency, predictability, and transparency as to the range of consequences (both in terms of remedies for complainants, and disciplinary sanctions for respondents) students can expect from the outcome of a grievance process. A transparent grievance process benefits all parties because they are more likely to trust in, engage with, and rely upon the process as legitimate. After a respondent has been found responsible for sexual harassment, any disciplinary sanction decision rests within the discretion of the recipient, and the recipient must provide remedies to the complainant designed to restore or preserve the complainant’s educational access, as provided for in § 106.45(b)(1)(i). Both parties should be advised of the potential range of remedies and disciplinary sanctions. The Department disagrees that the decision-maker imposing disciplinary sanctions must be a judge appointed under Article III of the Constitution. As discussed in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, Title IX is a Federal civil rights law, and the Supreme Court has judicially implied a private right of action under Title IX, and in private litigation in Federal courts a Federal judge may impose remedies to effectuate the purposes of Title IX. However, the Title IX statute expressly authorizes Federal agencies, such as the Department, to administratively enforce Title IX and require recipients to take remedial action following violations of Title IX or regulations implementing Title IX. Such VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 administrative enforcement of Title IX does not require the participation or direction of an Article III Federal judge. In these final regulations, the Department has determined that the Department’s interest in effectuating Title IX’s non-discrimination mandate necessitates setting forth a predictable, fair grievance process for resolving allegations of Title IX sexual harassment and requiring recipients to provide remedies to complainants if a respondent is found responsible. The Department has determined that administrative enforcement of Title IX does not require overriding recipients’ discretion to make decisions regarding disciplinary sanctions, and thus these final regulations focus on ensuring that respondents are not punished or disciplined unless a fair process has determined responsibility, but respects the discretion of State and local educators to make disciplinary decisions pursuant to a recipient’s own code of conduct. The Department acknowledges commenters’ concerns that each type of employee at their university has their own grievance procedures, penalties, and appeals process as well as concerns about whether tenure may be implicated, but disagrees that this presents a problem under § 106.45(b)(1)(vi). The Department believes that simply providing a range of sanctions to respondents is feasible despite the reality of the different grievance procedures and penalties and appeals that may apply depending on whether a recipient’s employee is tenured, and the final regulations permit the recipient to either list the possible disciplinary sanctions or describe the range of possible disciplinary sanctions. Describing a range of disciplinary sanctions should not be difficult for recipients, particularly regarding a maximum sanction. Nothing in the final regulations prevents the recipient from communicating that the described range is required by Federal law under Title IX and that the published range is purely for purposes of notice as to the possibility of a range of remedies and disciplinary sanctions and does not reflect the probability that any particular outcome will occur. The Department does not believe offering examples of types of appropriate disciplinary sanctions is necessary because as discussed above, whether and what type of sanctions are imposed is a decision left to the sound discretion of recipients. Similarly, these final regulations do not impose a standard of proportionality on disciplinary sanctions. Some PO 00000 Frm 00250 Fmt 4701 Sfmt 4700 commenters raised concerns that disciplinary sanctions against respondents found responsible are too severe, not severe enough, or that student discipline should be an educational process rather than a punitive process. These final regulations permit recipients to evaluate such considerations and make disciplinary decisions that each recipient believes are in the best interest of the recipient’s educational environment. Because the recipient’s grievance process must describe the range, or list the possible, disciplinary sanctions and remedies, a recipient’s students and employees will understand whether the recipient has, for example, decided that certain disciplinary sanctions or certain remedies are not available following a grievance process. This clarity gives potential complainants a sense of what a recipient intends provide in terms of remedies and potential respondents a sense of what a recipient is prepared to impose in terms of disciplinary sanctions, with respect to victimization and perpetration of Title IX sexual harassment. Because remedies are required under the final regulations, the Department agrees with commenters who suggested more clarity as to what constitute possible remedies. The final regulations revise another provision, § 106.45(b)(1)(i), to specify that remedies designed to restore or preserve equal access to the recipient’s education program or activity may include the same individualized services described in § 106.30 ‘‘supportive measures,’’ but that remedies need not be nondisciplinary or non-punitive and need not avoid burdening the respondent. The Department believes this level of specificity is sufficient to emphasize that remedies aim to ensure a complainant’s equal educational access. As discussed in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, a recipient’s choice of remedies will be evaluated under the deliberate indifference standard. With respect to a recipient punishing an organization or group of individuals following a member of the organization or group being found responsible for sexual harassment, these final regulations require a recipient to respond to sexual harassment incidents in specific ways, including by investigating and adjudicating allegations of sexual harassment made in a formal complaint. The final regulations only contemplate adjudication of allegations against a respondent (defined in § 106.30 as an E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations ‘‘individual,’’ not a group or organization). In order for a respondent to face disciplinary sanctions under the final regulations, the respondent must be brought into the grievance process through a formal complaint alleging conduct that could constitute sexual harassment defined in § 106.30.1106 The final regulations do not address sanctions by a recipient imposed against groups for non-sexual harassment offenses. By describing the range, or listing the possible disciplinary sanctions, a recipient is notifying its community of the possible consequences of a determination that a respondent is responsible for Title IX sexual harassment; this provision is thus intended to increase the transparency and predictability of the grievance process, but it is not intended to unnecessarily restrict a recipient’s ability to tailor disciplinary sanctions to address specific situations. We therefore decline to state that the range or list provided by the recipient under this provision is exclusive. For similar reasons, we decline to require a recipient to state what factors might be considered with respect to decisions regarding disciplinary sanctions or to impose more detailed requirements in this provision than the requirement to describe a range, or list the possible disciplinary sanctions. As described above, in response to commenters’ desire for more specificity in this provision, the final regulations revise this provision to permit a recipient to either ‘‘describe the range’’ or ‘‘list the possible’’ disciplinary sanctions and remedies; this change gives recipients the option to comply with this provision in a more specific manner (i.e., by listing possible disciplinary sanctions and remedies rather than by describing a range). Changes: The final regulations revise § 106.45(b)(1)(vi) to give recipients the option to either ‘‘describe the range of’’ or ‘‘list the possible’’ disciplinary sanctions and remedies. Section 106.45(b)(1)(vii) Describe Standard of Evidence Comments: A number of commenters expressed support for § 106.45(b)(1)(vii). One commenter stated that fully informing the parties of the standard of evidence as part of the recipients’ policies is very important in Title IX procedures, since the respondent and the complainant must understand how 1106 Emergency removal under § 106.44(c) is an exception that allows punitive action (i.e., removal from education programs or activities) against a respondent without going through a grievance process. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 such proceedings will unfold. Other commenters expressed support because a consistent standard of evidence is necessary to ensure a fair process. One commenter expressed support because this is a common-sense provision. One commenter supported § 106.45(b)(1)(vii) because it will increase parties’ understanding of the proceedings and decrease the possibility of arbitrary, disproportionate, or inconsistent decisions. Discussion: The Department agrees that fully informing the parties of the standard of evidence that a recipient has determined most appropriate for reaching conclusions about Title IX sexual harassment, by describing that standard of evidence in the recipient’s grievance process, is an important element of a fair process. The Department agrees that a standard of evidence selected by each recipient and applied consistently to formal complaints of sexual harassment is necessary to ensure a fair process.1107 In response to commenters who noted, under comments directed to § 106.45(b)(7), that the NPRM lacked clarity as to whether a recipient’s choice between the preponderance of the evidence standard and the clear and convincing evidence standard was a choice that a recipient could make in each individual case, the Department revised language in § 106.45(b)(7) and correspondingly revised language in § 106.45(b)(1)(vii) to read: ‘‘State whether the standard of evidence to be used to determine responsibility is the preponderance of the evidence standard or the clear and convincing evidence standard, apply the same standard of evidence for formal complaints against students as for formal complaints against employees, including faculty, and apply the same standard of evidence to all formal complaints of sexual harassment[.]’’ These revisions clarify that the standard of evidence must be selected, stated, and applied consistently by each recipient to all formal complaints of sexual harassment. 1107 E.g., Lavinia M. Weizel, The Process That Is Due: Preponderance of The Evidence as The Standard of Proof For University Adjudications of Student-On-Student Sexual Assault Complaints, 53 Boston College L. Rev. 1613, 1631 (2012) (explaining that selecting a standard of evidence (also called a standard of proof) ‘‘is important for theoretical and practical reasons’’ including that the ‘‘standard of proof imposed in a particular class of cases reflects the value society places on the rights that are in jeopardy’’ because ‘‘standards of proof signal to the fact-finder the level of certainty society requires before the state may act to impair an individual’s rights’’ and whichever standard is selected, ‘‘articulating a specific standard of proof for a particular type of hearing . . . helps to ensure the meaningfulness of the hearing’s other procedural safeguards’’) (internal citations omitted). PO 00000 Frm 00251 Fmt 4701 Sfmt 4700 30275 Changes: The final regulations revise § 106.45(b)(1)(vii) to clearly require a recipient’s grievance process to state up front which of the two permissible standards of evidence the recipient has selected and then to apply that selected standard to all formal complaints of sexual harassment, including those against employees. Section 106.45(b)(1)(viii) Procedures and Bases for Appeal Comments: Some commenters expressed general support for § 106.45(b)(1)(viii), arguing that requiring recipients to specify appeal procedures will promote a fair process that will benefit everyone and ensure parity between the parties. Two commenters recommended that the Department add specific language regarding when a decision may be appealed. One commenter suggested that the Department clarify that the parties are allowed to raise a procedural problem at the hearing without waiting to file an appeal over the procedural breach. Another commenter suggested that the Department add language describing the specific instances in which a complainant or respondent is permitted to appeal. The commenter stated that in instances where the recipient determines the respondent to be responsible for the alleged conduct and implements a remedy designed to restore a complainant’s equal access to the recipient’s education program or activity, the complainant may appeal the remedy as inadequate to restore the complainant’s equal access to the recipient’s education program or activity to prevent its reoccurrence, and address its adverse effects on the complainant and others who may have been adversely affected by the sexual harassment. The commenter further stated that in instances where the recipient determines the respondent to be responsible for the alleged conduct, the respondent can appeal the recipient’s determination of responsibility. The commenter explained that these should be the only two situations in which an appeal is permitted because allowing a complainant to appeal a recipient’s determination of non-responsibility subjects the respondent to administrative double jeopardy and contravenes the principles of basic fairness. The commenter asserted that this is especially troublesome for students from low-income families with little or no access to free legal counsel. Discussion: The Department appreciates the general support received from commenters for § 106.45(b)(1)(viii), which requires recipients’ Title IX E:\FR\FM\19MYR2.SGM 19MYR2 30276 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations grievance process to include the permissible bases and procedures for complainants and respondents to appeal. The Department is persuaded by commenters that we should clarify the circumstances in which the parties may appeal, and that both parties should have equal appeal rights, and § 106.45(b)(8) of the final regulations require recipients to offer appeals, equally to both parties, on at least the three following bases: (1) Procedural irregularity that affected the outcome; (2) new evidence that was not reasonably available when the determination of responsibility was made that could affect the outcome; or (3) the Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias that affected the outcome. Nothing in the final regulations precludes a party from raising the existence of procedural defects that occurred during the grievance process during a live hearing, and the final regulations ensure that whether or not a party has observed or objected to a procedural defect during the hearing, the party may still appeal on the basis of procedural irregularity after the determination regarding responsibility has been made. The Department believes that a complainant entitled to remedies should not need to file an appeal to challenge the recipient’s selection of remedies; instead, we have revised § 106.45(b)(7)(iv) to require that Title IX Coordinator is responsible for effective implementation of remedies. This permits a complainant to work with the Title IX Coordinator to select and effectively implement remedies designed to restore or preserve the complainant’s equal access to education. Complainants and respondents have different interests in the outcome of a sexual harassment complaint. Complainants ‘‘have a right, and are entitled to expect, that they may attend [school] without fear of sexual assault or harassment’’ and to expect recipients to respond promptly to complaints.1108 For respondents, a ‘‘finding of responsibility for a sexual offense can have a ‘lasting impact’ on a student’s personal life, in addition to [the student’s] ‘educational and employment opportunities’[.]’’ 1109 Although these interests may differ, each represents high-stakes, potentially 1108 Doe v. Univ. Of Cincinnati, 872 F.3d 393, 403 (6th Cir. 2017). 1109 Id. at 400 (internal citations omitted). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 life-altering consequences deserving of an accurate outcome.1110 We disagree with the commenters who argued that the final regulations should prohibit appeals of not responsible determinations because of double jeopardy concerns. The Department emphasizes that the constitutional prohibition on double jeopardy does not apply to Title IX proceedings and the Department does not believe that such a prohibition is needed to ensure fair and accurate resolution of sexual harassment allegations under Title IX. Where a procedural error, newly discovered evidence, or conflict of interest or bias has affected the outcome resulting in an inaccurate determination of nonresponsibility, the recipient’s obligation to redress sexual harassment in its education program or activity may be hindered, but the recipient may correct that inaccurate outcome on appeal and thus accurately identify the nature of sexual harassment in its education program or activity and provide remedies to the victim. Further, and as discussed above, we believe that both respondents and complainants face potentially life-altering consequences from the outcomes of Title IX proceedings. Both parties have a strong interest in accurate determinations regarding responsibility and it is important to protect complainants’ right to appeal as well as respondents’ right to appeal. We note that the final regulations do not require a party to hire an attorney for any phase of the grievance process, including on appeal. Changes: We have revised § 106.45(b)(1)(viii) to remove the ‘‘if the recipient offers an appeal’’ language because § 106.45(b)(8) of the final regulations make appeals for both parties mandatory, on three bases: Procedural irregularity, newly discovered evidence, and bias or conflict of interest on the part of the Title IX Coordinator, investigator, or decision-maker. Section 106.45(b)(1)(ix) Describe Range of Supportive Measures Comments: Several commenters supported § 106.45(b)(1)(ix) requiring recipients to describe the range of supportive measures available to complainants and respondents. Some commenters asserted that this requirement would promote parity between the parties and ensure a fair process that will benefit everyone. One commenter recommended that the 1110 Id. at 404 (recognizing that the complainant ‘‘deserves a reliable, accurate outcome as much as’’ the respondent). PO 00000 Frm 00252 Fmt 4701 Sfmt 4700 Department encourage recipients to retain and maintain the names and contact information for individual groups, and other entities that provide support in these circumstances, including counselors, psychiatrists, law firms, and educational advocates, and make the information available to all parties. Two commenters suggested that the Department add language to the final regulations clarifying that complainants and respondents must be afforded the same level of advocacy and supportive care so that both parties are treated equally. Another commenter was concerned that the requirement would be difficult to meet because supportive measures are often determined on an ad hoc basis and vary from investigation to investigation. To address this concern, the commenter recommended that the Department instead require grievance procedures to address the availability of supportive measures and describe some common examples. Discussion: The Department agrees that requiring recipients to describe the range of supportive measures available to complainants and respondents is an important part of ensuring that the grievance process is transparent to all members of a recipient’s educational community. Section 106.45(b)(1)(ix), particularly, notifies both parties of the kind of individualized services that may be available while a party navigates a grievance process, which many commenters asserted is a stressful and difficult process for complainants and respondents. The Department clarifies that this provision does not require equality or parity in terms of the supportive measures actually available to, or offered to, complainants and respondents generally, or to a complainant or respondent in a particular case. This provision must be understood in conjunction with the obligation of a recipient to offer supportive measures to complainants (including having the Title IX Coordinator engage in an interactive discussion with the complainant to determine appropriate supportive measures), while no such obligation exists with respect to respondents. By defining supportive measures to mean individualized services that cannot unreasonably burden either party, these final regulations incentivize recipients to make supportive measures available to respondents, but these final regulations require recipients to offer supportive measures to complainants. In revised § 106.44(a), and in § 106.45(b)(1)(i) these final regulations reinforce that equitable treatment of complainants and respondents means E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations providing supportive measures and remedies for complainants, and avoiding disciplinary action against respondents unless the recipient follows the § 106.45 grievance process. The Department does not intend, and the final regulations do not require, to impose a requirement of equality or parity with respect to supportive measures provided to complainants and respondents. The Department declines to require recipients to disseminate to students the names and contact information for organizations that provide support in these circumstances, including counselors, psychiatrists, law firms, educational advocates, and so forth, or make such a list available to all parties, although nothing in these final regulations precludes a recipient from doing so. The specific resources available in the general community surrounding the recipient’s campus may change frequently making it difficult for recipients to accurately list currently available resources. The Department believes that by requiring recipients to describe the range of supportive measures made available by a recipient as part of the recipient’s grievance process, and defining ‘‘supportive measures’’ in § 106.30 (which also includes an illustrative list of possible supportive measures), parties will be adequately advised of the types of individualized services available as they navigate a grievance process. A recipient may choose to create and distribute lists of specific resources in addition to complying with § 106.45(b)(1)(ix). The Department appreciates the commenter’s concern that the requirement would be difficult to meet because supportive measures are often determined on an ad hoc basis and vary from investigation to investigation. However, it is for this reason that the Department is only requiring a recipient’s grievance process to describe the range of supportive measures available rather than a list of supportive measures available. One commenter requested that the Department provide examples of supportive measures. A non-exhaustive list of types of supportive measures is stated in the definition of ‘‘supportive measures’’ in § 106.30. Recipients retain the flexibility to employ age-appropriate methods, exercise common sense and good judgment, and take into account the needs of the parties involved when determining the type of supportive measures appropriate for a particular party in a particular situation, and this flexibility is not inhibited by the requirement to describe the range of VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 available supportive measures in § 106.45(b)(1)(ix). Changes: None. Section 106.45(b)(1)(x) Privileged Information Comments: As discussed in more detail in the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, commenters inquired whether the § 106.45 grievance process required cross-examination questions that call for disclosure of attorney-client privileged information to be allowed to be asked during a live hearing held by a postsecondary institution. Discussion: To ensure that a recipient’s grievance process respects information protected by a legally recognized privilege (for example, attorney-client privilege, doctor-patient privilege, spousal privilege, and so forth), the Department has added a provision addressing protection of all privileged information during a grievance process. Changes: We have added new § 106.45(b)(1)(x) to ensure that information protected by a legally recognized privilege is not used during a grievance process. Written Notice of Allegations Section 106.45(b)(2) Written Notice of Allegations Retaliation Comments: Many commenters opposed § 106.45(b)(2), arguing that respondents may retaliate against complainants if respondents are given notice of a formal complaint that contains the complainant’s identity. Some commenters cited a study which found that the fear of retaliation by the accused or by peers is a barrier for people to report sexual assault.1111 These commenters also expressed concern that § 106.45(b)(2) does not require the recipient to assure the complainant that, if retaliation occurs, the recipient would take steps to correct the retaliatory actions. Commenters argued that such a requirement would affirm to complainants that they will be safeguarded by recipients in their 1111 Commenters cited: Shelley Hymel & Susan M. Swearer: Four Decades of Research on School Bullying: An Introduction, 70 Am. Psychol. 293, 295 (May–June 2015) (youth ‘‘are reluctant to report bullying, given legitimate fears of negative repercussions’’); Ganga Vijayasiri, Reporting Sexual Harassment: The Importance of Organizational Culture and Trust, 25 Gender Issues 43, 53–54, 56 (2008) (‘‘fear of adverse career consequences, or being blamed for the incident are a major deterrent to reporting’’ and this includes peer mistreatment or disapproval). PO 00000 Frm 00253 Fmt 4701 Sfmt 4700 30277 complaints, and would help encourage complainants to come forward with reports of sexual harassment or assault. Several commenters argued that, because the Department provides for a warning to complainants against false allegations, the provision should also require recipients to warn respondents against retaliation. One commenter suggested that the provision should identify the types of retaliation prohibited, such as threats of civil litigation against the complainant for defamation, or spreading rumors intended to intimidate the complainant from filing a complaint. Another commenter asserted that the provision should notify the parties of the retaliation prohibition that is included in the Title IX regulation, at 34 CFR 106.71 that currently states that the Title VI regulation at 34 CFR 100.7(e) is incorporated by reference into the Title IX regulations. One commenter asked the Department to create an independent Title IX prohibition against retaliation to protect the complainant. Another commenter stated that the Clery Act requires that recipients’ sexual misconduct policies include prohibitions of retaliation. A commenter cited Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) for the proposition that civil rights cannot be adequately protected if people can be punished for asserting such rights. Commenters argued that some allegations of sexual assault involve circumstances so serious that providing respondents notice of a complaint would place the complainant at significant risk of further—and potentially escalating levels of— violence. Other commenters argued that respondents may destroy evidence or create false alibis if recipients give respondents detailed notice of the allegations in a formal complaint. Other commenters expressed strong support for § 106.45(b)(2), arguing that society cannot purport to deliver justice for victims when extra-governmental institutions are permitted to ignore due process and the rule of law. Some commenters opined that only in the most totalitarian systems are people investigated and adjudicated without knowledge of the specific details of the charges before they are expected to present a defense. A number of commenters shared personal stories about respondents being interviewed multiple times by school officials before they were told what allegations had been made against them. Other commenters shared personal stories about recipients interviewing respondents without informing the respondent what precisely the E:\FR\FM\19MYR2.SGM 19MYR2 30278 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations complainant had alleged or when or where the alleged misconduct had occurred, and then when the respondent expressed uncertainty in recalling certain details in the interview, the recipient later cited the respondent’s uncertain memory as evidence of the respondent’s guilt. Commenters stated that, in these instances, respondents lost credibility when they were unable to clearly quote facts and events involving unclear allegations on a moment’s notice at a surprise interview. Discussion: The Department is persuaded by commenters’ unease over a perceived lack of protection against retaliation and therefore the final regulations add § 106.71, which prohibits any person from intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by Title IX including, among other things, making a report or formal complaint of sexual harassment. Recipients may communicate this protection against retaliation to the parties in any manner the recipient chooses. The Department disagrees that the warning about consequences for making false statements (if such a prohibition exists in the recipient’s code of conduct) is directed only to complainants; such a warning is for the benefit of both parties so that if the recipient has chosen to make a prohibition against false statements part of the recipient’s code of conduct, both parties are on notice that the § 106.45 grievance process potentially implicates that provision of the recipient’s code of conduct. Similarly, § 106.71 protects all parties (and witnesses, and other individuals) from retaliation for exercising rights under Title IX, and is not directed solely toward complainants. The Department understands that some complainants may fear to report sexual harassment or file a formal complaint alleging sexual harassment, because of the possibility of retaliation, and intends that adding § 106.71 prohibiting retaliation will empower complainants to report and file a formal complaint, if and when the complainant desires to do so. Recipients are obligated to offer supportive measures to a complainant (with or without the filing of a formal complaint) and to engage the complainant in an interactive discussion regarding the complainant’s wishes with respect to supportive measures.1112 Recipients must keep confidential the provision of supportive measures to the extent possible to allow implementation of the supportive 1112 Section 106.44(a). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 measures.1113 Thus, a complainant may discuss with the Title IX Coordinator the type of supportive measures that may be appropriate due to a complainant’s concerns about retaliation by the respondent (or others), or fears of continuing or escalating violence by the respondent. A recipient’s decision about which supportive measures are offered and implemented for a complainant is judged under the deliberate indifference standard, which by definition takes into account the unique, particular circumstances faced by a complainant. For reasons described below in this section of the preamble, the Department has determined that a grievance process cannot proceed, consistent with due process and fundamental fairness, without the respondent being apprised of the identity of the complainant (as well as other sufficient details of the alleged sexual harassment incident). Thus, a complainant’s identity cannot be withheld from the respondent once a formal complaint initiates a grievance process, yet this does not obviate a recipient’s ability and responsibility to implement supportive measures designed to protect a complainant’s safety, deter sexual harassment, and restore or preserve a complainant’s equal educational access.1114 The Department believes that providing written notice of the allegations to both parties equally benefits complainants; after a recipient receives a formal complaint, a complainant benefits from seeing and understanding how the recipient has framed the allegations so that the complainant can prepare to participate in the grievance process in ways that best advance the complainant’s interests in the case. The Department disagrees that providing written notice of allegations increases the risk that a respondent will destroy evidence or concoct alibis, and even if such a risk existed the Department believes that benefit of providing detailed notice of the allegations outweighs such a risk because a party cannot be fairly expected to respond to allegations without the allegations being described prior to the expected response. Further, if a respondent does respond to a notice of allegations by destroying evidence or 1113 Section 106.30 (defining ‘‘supportive measures’’). 1114 Id. (supportive measures must not be punitive or disciplinary). However, a recipient may warn a respondent that retaliation is prohibited and inform the respondent of the consequences of retaliating against the complainant, as part of a supportive measure provided for a complainant, because such a warning is not a punitive or disciplinary action against the respondent. PO 00000 Frm 00254 Fmt 4701 Sfmt 4700 inventing an alibi, nothing in the final regulations prevents the recipient from taking such inappropriate conduct into account when reaching a determination regarding responsibility, numerous provisions in § 106.45 provide sufficient ways for the recipient (and complainant) to identify ways in which a respondent has fabricated (or invented, or concocted) untrue information, and such actions may also violate non-Title IX provisions of a recipient’s code of conduct. Changes: The final regulations add § 106.71 prohibiting retaliation by any person, against any person exercising rights under Title IX, and specify that complaints of retaliation may be filed with the recipient for handling under the ‘‘prompt and equitable’’ grievance procedures that recipients must adopt and publish for non-sexual harassment sex discrimination complaints by students and employees under § 106.8(c). Warning Against False Statements Comments: Several commenters asserted that the requirement in § 106.45(b)(2) that the written notice of allegations sent to both parties must contain information about any prohibition against knowingly submitting false information will chill reports of sexual assault because the provision implies that the Department does not believe allegations of sexual assault. One commenter shared the Department’s interest in preserving the truth-seeking nature of the grievance process, but expressed concern that the threat implicit in the proposed admonition will outweigh its value. The commenter asserted that parties’ and witnesses’ statements rarely neatly align and inconsistencies can stem from passage of time, effects of drugs or alcohol, general unreliability of human perception and memory, and other factors. The commenter asserted that school officials are rarely so certain a party is lying that they should pursue discipline, yet the admonition in § 106.45(b)(2) suggests otherwise. The commenter warned that the resulting fear is likely to discourage participation in the process and inhibit the candor the Department stated it is seeking, and the commenter believed that parties may interpret the statement as their school’s endorsement of harmful stereotypes about the prevalence of false sexual misconduct reports. Many commenters asserted that most women who choose not to come forward do so because of the fear that people will not believe them. Commenters cited research showing that victims rarely make false allegations, and that only E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations somewhere between two to ten percent of sexual assault allegations are false.1115 Commenters asserted that men are more likely to be sexually assaulted themselves than to be falsely accused of committing sexual assault.1116 Commenters argued that because false allegations are so rare, there is no benefit to including a warning against making false statements and the only purpose of such a warning is to deter complainants from reporting or filing formal complaints. One commenter suggested that § 106.45(b)(2) should state that, if the recipient finds the respondent not responsible at the conclusion of the proceedings, a determination of not responsible will not, based on the finding alone, result in the complainant being deemed to have made false allegations. The commenter further requested that the written notice include a statement that the recipient presumes that the complainant is bringing a truthful complaint. One commenter wanted clarification as to how false accusations would be determined. One commenter wished to know whether false accusations are a Title IX offense, and if so, who is authorized to bring a complaint alleging a false accusation. The commenter also wondered if a complainant can be held accountable for making a false report of sexual harassment if the recipient’s code of conduct does not have a provision about submitting false statements during a disciplinary proceeding. Several commenters who favored § 106.45(b)(2) suggested that the provision should subject students who knowingly made false allegations to disciplinary proceedings. Other commenters asked the Department to explain what minimum consequences will apply to students who make false allegations of sexual assault. Discussion: The Department first notes that § 106.45(b)(2)(i)(B) will only apply to those situations in which the recipient’s code of conduct prohibits students from knowingly making false statements or submitting false information during a disciplinary proceeding. If the recipient’s code of conduct is silent on the issue of false statements in the grievance process, then the final regulations do not require recipients to include reference to false statements in the § 106.45(b)(2) written 1115 Commenters cited: David Lisak et al., False Allegations of Sexual Assault: An Analysis of Ten Years of Reported Cases, 16 Violence Against Women 12 (2010). 1116 Commenters cited: Tyler Kingkade, Males are More Likely to Suffer Sexual Assault Than to be Falsely Accused of it, The Huffington Post (Dec. 8, 2014). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 notice. If, on the other hand, a recipient’s own code of conduct does reference making false statements during a school disciplinary proceeding then the Department believes that both parties deserve to know that their school, college, or university has such a provision that could subject either party to potential school discipline as a result of participation in the Title IX grievance process. Further, this ‘‘warning’’ about making false statements applies equally to respondents, as to complainants. Respondents should understand how a recipient intends to handle false statements (e.g., in the form of a respondent’s denials of allegations) made during the grievance process. Because the warning about making false statements occurs at a time when the complainants have already filed a formal complaint, the Department does not foresee that a complainant’s decision to report sexual harassment (which need not also involve filing a formal complaint) will be affected by the recipient’s notice about whether the recipient’s code of conduct prohibits making false statements during a grievance process. The warning about false statements is not a requirement that the complainants’ statements ‘‘neatly align’’ with the statements of other parties’ or witnesses’ statements, as one commenter suggested. Nor does the Department agree that the warning enforces harmful stereotypes about the prevalence of false sexual misconduct reports. The warning informs both parties about code of conduct provisions that govern either party’s conduct at the grievance process, and only applies if such provisions exist in the recipients’ own code of conduct. In response to commenters’ concerns and to clarify for recipients, complainants, and respondents that merely making an allegation that a respondent or witness disagrees with (or is otherwise unintentionally inaccurate) constitutes a punishable ‘‘false statement,’’ the final regulations include § 106.71 prohibiting retaliation for exercising Title IX rights generally, and specifically stating that while it is not retaliatory when a recipient charges a party with a code of conduct violation for making a bad faith, materially false statement in a Title IX proceeding, such a conclusion cannot be based solely on the determination regarding responsibility. This emphasizes that the mere fact that the outcome was not favorable (which could turn on a decision-maker deciding that the party or a witness was not credible, or did not provide accurate information, or that there was insufficient evidence to meet the PO 00000 Frm 00255 Fmt 4701 Sfmt 4700 30279 recipient’s burden of proof) is not sufficient to conclude that the party who ‘‘lost’’ the case made a bad faith, materially false statement warranting punishment. The Department is sympathetic to the difficulties complainants face in bringing a formal complaint. But recognition of the difficulties faced by complainants navigating the grievance process should not overshadow the fact that the respondent also faces significant consequences in the grievance process, nor lessen the need for both parties to be advised by the recipient of the allegations under investigation. The Department appreciates commenters’ assertions regarding the relative infrequency of false allegations; however, § 106.45(b)(2) is intended to emphasize the importance of both parties being truthful during the grievance process by giving both parties information about how a particular recipient addresses false statements in the recipient’s own code of conduct. Because the statement about false statements referred to in § 106.45(b)(2) is not a statement about the truthfulness of respondents, the Department declines to require any statement in this provision regarding the truthfulness of complainants. Similarly, the statement in the written notice provision regarding the presumption that a respondent is not responsible is not a statement about the credibility or truthfulness of respondents,1117 and the Department declines to require any statement in the written notice regarding truthfulness of complainants. Regardless of the frequency or infrequency of false or unfounded allegations, every party involved in a formal complaint of sexual harassment deserves a fair process designed to resolve the truth of the particular allegations at issue, without reference to whether similar allegations are ‘‘usually’’ (based on statistics or generalizations) true or untrue. Any determination that a complainant (or respondent) has violated the recipient’s code of conduct with respect to making false statements during a grievance process is a fact-specific determination for the recipient to decide; however, as noted above, the 1117 As discussed previously in the ‘‘Section 106.45(b)(1)(iv) Presumption of NonResponsibility’’ subsection of the ‘‘General Requirements for § 106.45 Grievance Process’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, the presumption of non-responsibility is not a presumption of credibility or truthfulness for respondents, and § 106.45(b)(1)(ii) expressly prohibits the recipient from drawing any inferences about credibility based on status as a complainant or respondent. E:\FR\FM\19MYR2.SGM 19MYR2 30280 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations final regulations add § 106.71 advising recipients that it could constitute retaliation to punish a party for false statements if that conclusion is reached solely based on the determination regarding responsibility, thus cautioning recipients to carefully assess whether a particular complainant (or respondent) should face code of conduct charges involving false statements. The Department declines to follow the recommendations of commenters who argued that § 106.45(b)(2) should include a provision that subjects students who knowingly make false statements to disciplinary proceedings, nor does the Department wish to prescribe what the minimum consequences of making a false statement would be. If the recipient believes that a party violated the recipient’s code of conduct during the grievance process, the recipient may investigate the matter under its own code of conduct, but the Department does not require such action. Changes: The final regulations add § 106.71 prohibiting retaliation for exercising Title IX rights generally, and specifically stating that while it is not retaliatory when a recipient punishes a party for making a bad faith, materially false statement in a Title IX proceeding, such a conclusion cannot be based solely on the determination regarding responsibility. Investigative Process Comments: Several commenters with experience conducting criminal investigations asserted that, to get reliable and truthful information, it is important not to warn subjects of a criminal investigation that they are under investigation. The commenters argued that giving parties notice of the details of an alleged incident before the initial interview may give them the ability to affect the outcome of their case by manipulating their own testimony, tampering with evidence, or intimidating witnesses. Several commenters asked the Department to change the notice requirement to align with standard investigation practices that call for unplanned interviews. These commenters suggested that recipients not be required to give parties notice of allegations until the university has decided to proceed with formal charges. Another commenter stated that, although there is general agreement that providing sufficient notice prior to interviews effectuates the rights to an advisor guaranteed by VAWA Section 304, the industry standard is to provide this notice prior to charging, not prior to interviewing. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 One commenter who designs policies to address sexual assault on a university campus pointed out that universities lack the power to subpoena witnesses in its investigations. Since the notice provision in § 106.45(b)(2) gives witnesses ample time to craft their testimony before an initial interview, and as the university already lacks the ability to compel witnesses to hand over evidence, the commenter argued that the notice provision will hamper a recipient’s ability to gather accurate testimony. To repair this problem, the commenter suggested that the Department instead require recipients to give notice of allegations to interested parties after the university has completed all initial interviews and has decided to proceed with a formal grievance procedure. One commenter wanted to know how the provision would affect university police investigative techniques. Specifically, the commenter wondered whether university police would be prohibited from interviewing an accused party in a criminal investigation unless the university provided written notice of the interview. Another commenter requested further guidance from the Department on how schools should handle overlapping enforcement entities, especially regarding the notice requirement and whether an interview with law enforcement would violate Title IX if the police officer conducted the interview before the Title IX Coordinator was able to provide notice of allegations to the respondent. Several commenters expressed concern about the notice provision interfering with the ability of campus officials to perform investigations concurrently with police. Commenters warned that an institution may inadvertently interfere with an ongoing law enforcement investigation if the institution contacts a respondent or witnesses before law enforcement has had a chance to do so. One commenter asked the Department to clarify that institutions may allow for a temporary delay of notice to the respondent at the request of law enforcement after receipt of a complaint, but before initiation of grievance proceedings. Discussion: While the Department appreciates commenters’ concerns about best practices in conducting criminal investigations, the Department reiterates that a § 106.45 grievance process occurs independently of any criminal investigation that may occur concurrently, and the recipient’s obligation to inform the parties of the allegations under investigation is a necessary procedural benefit for both PO 00000 Frm 00256 Fmt 4701 Sfmt 4700 parties. Precisely because schools, colleges, and universities are not law enforcement entities but rather educational institutions, the Department does not intend to require recipients to adopt best practices from law enforcement. For purposes of a fair, impartial investigation into allegations in a formal complaint, the Department believes that providing written notice of the allegations to both parties at the beginning of the investigation best serves the important goal of fostering reliable outcomes in Title IX grievance processes. The Department understands commenters’ concerns that investigators (whether law enforcement or not) may believe that catching a respondent by surprise gets at the truth better than giving a respondent notice of the allegations with sufficient time for the respondent to prepare a response, including by making it less likely that a respondent has time or opportunity to destroy evidence or manipulate testimony. However, the Department agrees with commenters supporting § 106.45(b)(2) who asserted that notice of the allegations is an essential feature of a fair process; without knowing the scope and purpose of an interview a respondent will not have a fair opportunity to seek assistance from an advisor of choice and think through the respondent’s view of the alleged facts. The Department declines to require written notice only if a recipient decides to proceed with a formal investigation, because the final regulations require a recipient to investigate the allegations in a formal complaint.1118 The § 106.45 grievance process does not recognize, or permit a recipient to recognize, a difference between commencing an investigation upon receipt of a formal complaint, and a separate step of ‘‘charging’’ the respondent that, by commenters’ descriptions, sometimes involves a recipient interviewing parties or witnesses before deciding whether to ‘‘charge’’ a respondent and thereby conduct a full investigation. If an investigation reveals facts requiring or permitting dismissal of the formal complaint pursuant to § 106.45(b)(3), the parties have been informed of the formal complaint, the allegations therein, and then the reasons for the dismissal, such that both parties can exercise their right to appeal the dismissal decision.1119 While a recipient may take steps that the 1118 Section 106.44(a); § 106.45(b)(3)(i). final regulations revise § 106.45(b)(8) to expressly grant both parties equal right to appeal a recipient’s mandatory or discretionary dismissal decisions. 1119 The E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recipient considers part of an ‘‘investigation’’ without having received a formal complaint, the recipient may not impose discipline on a respondent without first complying with a grievance process that complies with § 106.45,1120 which includes providing a party with written notice of the date, time, location, participants, and purpose of all investigative interviews with a party with sufficient time for the party to prepare to participate.1121 Thus, even if a recipient is not in ‘‘receipt of a formal complaint’’ which triggers the recipient’s obligation to send the written notice of allegations in § 106.45(b)(2), the recipient cannot impose disciplinary sanctions on a respondent, or take other actions against a respondent that do not fit the definition of ‘‘supportive measures’’ in § 106.30, without following the § 106.45 grievance process. If a respondent reacts to a notice of allegations by manipulating the respondent’s own testimony, or by tampering with evidence, the § 106.45 grievance process provides adequate avenues through which the investigation and adjudication can account for such conduct, so that a respondent’s attempt to fabricate or falsify information would be part of the objective evaluation of evidence a decision-maker performs in reaching a determination. For example, if a respondent manufactures a counternarrative to the allegations, the complainant and the recipient have the opportunity to question the respondent about the respondent’s statements and reveal inaccuracies, inconsistencies, or false statements.1122 Similarly, if a witness crafts or manipulates the witness’s own testimony, inaccuracy and untruthfulness can be revealed through questioning of the witness by parties and the recipient. If a respondent reacts to a written notice of allegations by intimidating witnesses, such conduct is prohibited as retaliation under § 106.71. The Department notes that the § 106.45 grievance process applies only to investigation and adjudication of formal complaints under Title IX, and has no applicability to criminal investigations. Regardless of whether a 1120 Section 106.44(a); § 106.45(b)(1)(i). 106.45(b)(5)(v). 1122 Section 106.45(b)(6)(ii) (providing that whether or not a hearing is held in elementary and secondary schools, the parties have opportunity to submit written questions to the other party, including questions designed to test credibility); § 106.45(b)(6)(i) (providing that during a live hearing held by a postsecondary institution, each party has an opportunity to cross-examine the other party, but only with cross-examination conducted by party advisors). 1121 Section VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 criminal investigation is conducted by ‘‘campus police’’ or other law enforcement officers, the recipient’s obligations to comply with § 106.45 apply when a party is interviewed for the purpose of a Title IX grievance process, as opposed to furtherance of a criminal investigation. The Department recognizes that a recipient’s obligation to investigate a formal complaint of sexual harassment may overlap with concurrent law enforcement investigation into the same allegations. Where appropriate, the final regulations acknowledge that potential overlap; for example, by acknowledging concurrent law enforcement activity as ‘‘good cause’’ to temporarily delay the § 106.45 grievance process under § 106.45(b)(1)(v). However, the Department emphasizes that a recipient’s obligation to investigate and adjudicate promptly and fairly under § 106.45 exists separate and apart from any concurrent law enforcement proceeding, and the recipient therefore must comply with all provisions in § 106.45, including the written notice provision, regardless of whether law enforcement is conducting a concurrent investigation. The Department notes that § 106.45(b)(1)(v) addressing the recipient’s designated, reasonably prompt time frames contemplates good cause temporary delays and limited extensions of time frames only after the parties have received the initial written notice of allegations under § 106.45(b)(2), such that concurrent law enforcement activity is not good cause to delay sending the written notice itself.1123 Changes: None. Administrative Burden on Schools Comments: Many commenters urged the Department to give recipients more flexibility in determining the appropriate timing for sending the written notice of allegations under § 106.45(b)(2). Commenters argued that many complaints require an initial investigation to confirm the identity of the involved parties, to clarify any missing information, and to determine whether Title IX or the campus policy applies, and requiring written notice to the parties right away does not make sense when many complaints turn out to lack merit or not allege Title IX or policy violations. Several commenters asked the Department to provide that recipients must give respondents ‘‘prompt written notice’’ instead of 1123 Section 106.45(b)(1)(v) (specifying that where a recipient delays or extends a time frame for good cause, the recipient must send written notice to the complainant and the respondent of the delay or extension and the reasons for the action). PO 00000 Frm 00257 Fmt 4701 Sfmt 4700 30281 ‘‘upon receipt of a formal complaint,’’ to give recipients a reasonable amount of time before providing the written notice of allegations. One commenter asked the Department to make the written notice provision more flexible for smaller universities, because college officials often have a close personal connection with students. One commenter argued that the written notice provision would amount to a disturbing constraint on a campus administrator’s authority to respond quickly to allegations. The commenter quoted the Department’s commentary in the NPRM that ‘‘when determining how to respond to sexual harassment, recipients have flexibility to employ age-appropriate methods, exercise common sense and good judgment, and take into account the needs of the parties involved,’’ but the commenter opined that § 106.45(b)(2) runs contrary to this stated intent. Other commenters noted that many institutions receive more disclosures of inappropriate conduct than formal complaints, and asserted that in many of those cases, the disclosing student is seeking supportive measures and feels satisfied when those personalized supports are put in place (extensions of time, opportunities to change housing, escorts, etc.). Commenters argued that the written notice provision, by alerting the respondent of a report alleging sexual assault before an investigation has taken place, escalates the matter too early. Another commenter asserted that, at the onset of an investigation, recipients should have the authority to identify allegations under their policy broadly, and then provide an additional, more specific, notice when the investigation process concludes because the proposed regulations appear to require as many written notices to parties as there are changes to the allegations over the course of an investigation, placing an undue burden on recipients with no clear added value to the transparency of the investigation. Another commenter argued that § 106.45(b)(2) is burdensome to schools because Title IX already requires schools to file annual proactive notice to parties of the school’s grievance procedures. Numerous commenters asserted that the administrative burdens placed on schools by the written notice of allegations provision will incentivize schools to try to avoid legal jeopardy rather than try to achieve school safety. Discussion: The Department disagrees that § 106.45(b)(2) leaves recipients with insufficient flexibility to respond quickly to allegations or contradicts the intent expressed in the NPRM that E:\FR\FM\19MYR2.SGM 19MYR2 30282 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recipients should employ ageappropriate methods, exercise common sense and good judgment, and take into account the needs of the parties involved. The Department reiterates that the written notice of allegations provision applies only after a recipient receives a formal complaint; thus, a recipient need not wait until written notice of allegations has been sent in order to, for example, provide supportive measures to the complainant (or the respondent).1124 For similar reasons, nothing about § 106.45(b)(2) restricts a recipient’s flexibility to implement supportive measures designed to restore or preserve the complainant’s equal access to education by taking into account the unique needs of the parties and using common sense and good judgment, and the definition of supportive measures emphasizes that supportive measures are ‘‘individualized services’’ reasonably available ‘‘before or after the filing of a formal complaint or where no formal complaint has been filed.’’ 1125 With respect to the written notice itself, nothing in § 106.45(b)(2) prescribes how the information in the written notice is phrased, such that recipients are free to employ age-appropriate methods, common sense, and good judgment in choosing how to convey the information required to be included in the written notice. The Department agrees with commenters who noted that many complainants report sexual harassment seeking supportive measures rather than a formal grievance process, and the Department reiterates that § 106.45 only applies after a recipient has received a formal complaint; a recipient need not send written notice of allegations based on reports, disclosures, or other forms of ‘‘notice’’ that charges a recipient with actual knowledge that do not consist of receipt of a formal complaint (and a 1124 In fact, revised § 106.44(a) obligates recipients to promptly respond to any notice of Title IX sexual harassment (regardless of whether a complainant or Title IX Coordinator also files a formal complaint) by, among other things, promptly offering the complainant supportive measures. We reiterate that no written or signed document, much less a ‘‘formal complaint’’ as defined in § 106.30, is required in order to trigger the recipient’s response obligations. To emphasize this, we have revised § 106.30 defining ‘‘actual knowledge’’ to expressly state that ‘‘notice’’ conveying actual knowledge to the recipient (triggering the recipient’s response obligations) includes a report to the Title IX Coordinator as described in § 106.8(a), which in turn states that any person may report sexual harassment to the Title IX Coordinator in person, by mail, phone, or email. Section 106.8(b)(2) also requires the recipient to prominently display that contact information for the Title IX Coordinator on the recipient’s website. 1125 Section 106.30 (defining ‘‘supportive measures’’). VerDate Sep<11>2014 20:34 May 18, 2020 Jkt 250001 formal complaint may only be filed by a complainant, or signed by the Title IX Coordinator).1126 The Department disagrees that a recipient should have discretion to decide to dismiss formal complaints that are unsubstantiated or otherwise fail to meet some threshold of merit. The Department believes that where a complainant has chosen to file a formal complaint, or the Title IX Coordinator has decided to sign a formal complaint, the recipient must investigate those allegations; determinations about the merits of the allegations must be reached only by following the fair, impartial grievance process designed to reach accurate outcomes. As noted above, the final regulations revise § 106.45(b)(3) to provide for discretionary dismissals on specified grounds, but those grounds do not include a recipient’s premature determination that allegations lack merit. Whether or not many recipients currently provide written notice prior to conducting an interview as part of a Title IX grievance process, the Department believes written notice of allegations with adequate time to prepare for an interview constitutes a core procedural protection important to a fair process. A fundamental element of constitutional due process of law is effective notice that enables the person charged to participate in the proceeding.1127 The final regulations promote clarity as to recipient’s legal obligations, and promote respect for each complainant’s autonomy, by distinguishing between a complainant’s report of sexual harassment, on the one hand, and the filing of a formal complaint that has initiated a grievance process against a respondent, on the other hand. While the complainant and recipient may discuss the complainant’s report of sexual harassment without notifying the respondent (including discussion to decide on appropriate supportive measures), when the complainant files a formal complaint, the respondent must be notified that the respondent is under investigation for 1126 Section 106.30 (defining ‘‘formal complaint’’). 1127 Goss v. Lopez, 419 U.S. 565, 579 (1975) (‘‘At the very minimum, therefore, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing. ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ ’’) (internal citation omitted) (emphasis added); id. at 583 (‘‘On the other hand, requiring effective notice and informal hearing permitting the student to give his version of the events will provide a meaningful hedge against erroneous action.’’) (emphasis added). PO 00000 Frm 00258 Fmt 4701 Sfmt 4700 the serious conduct defined as ‘‘sexual harassment’’ under § 106.30. The Department understands commenters’ assertions that waiting to provide notice of the allegations until after conducting an initial interview prevents a respondent from manipulating the respondent’s own statements, and that some recipients’ current practices permit the recipient an opportunity to decide after the initial respondent interview whether or not the recipient intends to proceed with the investigation. However, the Department believes that complainants deserve the clarity of knowing that the filing of a formal complaint obligates the recipient to investigate the allegations, and once the respondent is under investigation the respondent must be made aware of the allegations with sufficient time to prepare for an initial interview because ‘‘effective notice’’ in time to give the respondent opportunity to tell the respondent’s ‘‘version of the events’’ helps prevent erroneous outcomes.1128 In response to commenters’ concerns that the proposed rules did not provide a recipient sufficient leeway to halt investigations that seemed futile, the final regulations revise § 106.45(b)(3)(ii) to provide that a recipient may (in the recipient’s discretion) dismiss a formal complaint, or allegations therein, in certain circumstances including where a complainant requests the dismissal (in writing to the Title IX Coordinator), where the respondent is no longer enrolled or employed by the recipient, or where specific circumstances prevent the recipient from meeting the recipient’s burden to collect sufficient evidence (for example, where a postsecondary institution complainant has ceased participating in the investigation and the only inculpatory evidence available is the complainant’s statement in the formal complaint or as recorded in an interview by the investigator). Similarly, where it turns out that the allegations in a formal complaint do not meet the definition of sexual harassment under § 106.30, or did not occur against a person in the United States, or did not occur in the recipient’s education program or activity, § 106.45(b)(3)(i) requires the recipient to dismiss the allegations (though the final regulations clarify that the recipient has discretion to address the allegations through a non-Title IX code of conduct) and notify the parties of the dismissal (which implies that the ‘‘parties’’ have already been informed that they are parties via receiving the § 106.45(b)(2) written notice of allegations). However, the fact that 1128 Goss, E:\FR\FM\19MYR2.SGM 419 U.S. at 579. 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations allegations of sexual harassment were raised in a formal complaint warrant notifying the respondent that those allegations had triggered an investigation, even if the allegations are subsequently dismissed, whether the dismissal is mandatory under § 106.45(b)(3)(i) or discretionary under § 106.45(b)(3)(ii). This gives both parties equal opportunity to appeal the recipient’s dismissal decision, or to request that dismissed allegations be addressed under non-Title IX codes of conduct.1129 The Department believes that requiring subsequent written notice of allegations when the allegations under investigation change appropriately notifies the parties of a change in the scope of the investigation, and does not believe that this benefit would be achieved by only requiring a follow-up written notice after the investigation has concluded. The Department is requiring recipients to inform the parties of the alleged conduct that potentially constitutes sexual harassment under § 106.30, including certain details about the allegations (to the extent such details are known at the time). Although § 106.45(b)(2) requires subsequent written notice to the parties as the recipient discovers additional potential violations, the Department does not agree with the commenter that this requirement adds ‘‘no clear value’’ to the transparency of the investigation or that the benefits of such subsequent notice to the parties is outweighed by the administrative burden to the recipient of generating and sending such notices.1130 If the respondent is facing 1129 The final regulations revise § 106.45(b)(8) so that parties have the right to appeal any dismissal decision. While some respondents may not desire to appeal a dismissal, other respondents may desire to challenge the recipient’s conclusion that, for instance, the conduct alleged did not constitute sexual harassment as defined in § 106.30, because if the conduct constitutes Title IX sexual harassment the recipient is not permitted to discipline the respondent without first following the § 106.45 grievance process, which may provide stronger procedural rights and protections than other disciplinary proceedings a recipient might use if the recipient charges the respondent with a nonTitle IX code of conduct violation over the allegations. 1130 Deciding whether additional procedural safeguards are required under constitutional due process of law involves balancing the ‘‘private’’ interests at stake (here, the interests of the parties in a recipient reaching an accurate outcome), the administrative burden and cost to the government (here, the recipient) to provide the additional procedure, and the likelihood that the additional procedure may reduce the risk of erroneous outcome. Mathews v. Eldridge, 424 U.S. 319, 334 (1976). The Department believes that consideration of these factors weighs in favor of requiring subsequent written notices to the parties when the allegations change during an investigation: The outcome of a case poses serious consequences for both parties; recipients are not unaccustomed to VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 an additional allegation, the respondent has a right to know what allegations have become part of the investigation for the same reasons the initial written notice of allegations is part of a fair process, and the complainant deserves to know whether additional allegations have (or have not) become part of the scope of the investigation. This information allows both parties to meaningfully participate during the investigation, for example by gathering and presenting inculpatory or exculpatory evidence (including fact and expert witnesses) relevant to each allegation under investigation. The Department does not believe that requiring recipients to send written notice of the allegations under investigation will incentivize recipients to care less about school safety than about legal liability. While the written notice provision constitutes a legal obligation, the purpose of the provision is to ensure that parties have critical information about the recipient’s investigation; in that way, the obligation to send written notice of the allegations forms part of the recipient’s response demonstrating concern about the safety of the recipient’s educational environment, not simply a legalistic obligation. Measures that a recipient should take specifically to protect the safety of a complainant, respondent, or members of the recipient’s community are unaffected by the recipient’s obligation to send written notice of the allegations to the parties. For example, a recipient’s non-deliberately indifferent response under § 106.44(a) includes offering supportive measures to complainants, and supportive measures as defined in § 106.30 may be designed to protect a complainant’s safety or deter sexual harassment. Under § 106.44(c), a respondent who poses an immediate threat to the physical health or safety of any student or other individual may be removed from the recipient’s education program or activity on an emergency basis, with or without a grievance process pending. Although the Department understands recipients’ desire for as much flexibility as possible to design disciplinary proceedings that best meet the needs of a recipient’s unique educational community, for the reasons discussed previously the Department believes that providing written notice of the allegations under investigation is not a sending written notices to students (and parents of minor students) for a wide range of activities; and ensuring that the parties’ participation throughout the grievance process focuses on the actual allegations being investigated by the recipient significantly reduces the risk of erroneous outcomes. PO 00000 Frm 00259 Fmt 4701 Sfmt 4700 30283 procedural right that should be left to a recipient’s discretion. The final regulations leave recipients flexibility to select the method of delivery of the written notices required under § 106.45(b)(2) (including the initial notice and any subsequent notices), and while the initial notice must be sent ‘‘upon receipt’’ of a formal complaint, with ‘‘sufficient time’’ for a party to prepare for an initial interview, such provisions do not dictate a specific time frame for sending the notice, leaving recipients flexibility to, for instance, inquire of the complainant details about the allegations that should be included in the written notice that may have been omitted in the formal complaint, and draft the written notice, while bearing in the mind that the entire grievance process must conclude under the recipient’s own designated time frames. Changes: We have revised § 106.45(b)(3) to provide recipients with the discretion to dismiss a formal complaint, or allegations therein, where the complainant notifies the Title IX Coordinator in writing that the complainant wishes to withdraw the formal complaint or allegations, where the respondent is no longer enrolled or employed by the recipient, or where specific circumstances prevent a recipient from gathering evidence sufficient to reach a determination regarding responsibility. Elementary and Secondary Schools Comments: Several commenters argued that § 106.45(b)(2) would be harmful to students and administrators at elementary and secondary schools because accusations of sexual assault or abuse are often described without specific details or in a way that makes it difficult to determine whether the alleged misconduct falls under Title IX, under the recipient’s code of conduct, or neither. Commenters argued that § 106.45(b)(2) would require school administrators to provide multiple written notices, because an initial description of the misconduct might make it seem like the allegations fall under several different codes of conduct. Another commenter stated that requiring that the respondent be given ‘‘sufficient time for a response before any initial interview’’ does not consider the possible threat to the learning environment or the developing nature of a minor’s memory. Another commenter asserted that courts do not give elementary and secondary school students due process rights, so the written notice of allegations provision should not apply to elementary and secondary school recipients. E:\FR\FM\19MYR2.SGM 19MYR2 30284 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations A few commenters advised changing the written notice provision to account for young complainants and respondents, especially students in preschool and elementary and secondary schools by giving the Title IX Coordinator discretion to communicate to parents or parties over the phone rather than strictly in writing. Commenters argued that, in elementary and secondary schools addressing peer harassment incidents, the written notice of allegations provision fails to take into account the high volume of low-level incidents schools address and how burdensome and expensive this provision would become for students, parents, and administrators. Commenters argued that this provision would escalate situations from relatively informal to extremely formal, which would be alarming for students and parents. One commenter agreed that the accused student must be afforded due process, including notice of the allegations and an opportunity to respond, but disagreed that the written notice provision should apply to elementary and secondary schools, because it is neither necessary nor reasonable for an elementary and secondary school administrator to send the level of detail required by § 106.45(b)(2) in a written notice for all sexual harassment cases. At least one commenter argued that public elementary and secondary schools in the commenter’s State do not have ‘‘codes of conduct’’ and instead have policies approved by a board of education pursuant to the commenter’s State education code. The commenter stated that the language of § 106.45(b)(2) does not fit the elementary and secondary school setting. Discussion: The Department reiterates that the recipient need not provide the written notice of allegations under § 106.45(b)(2) unless a formal complaint has been filed; this should reduce commenters’ concerns that elementary and secondary schools will be inundated with the need to generate written notices whenever any conduct termed ‘‘sexual harassment’’ is reported or that elementary and secondary school administrators will need to send out written notices concerning ‘‘vague’’ or ‘‘unspecific’’ reports of conduct that may or may not constitute sexual harassment. Further, the Department clarifies that when a formal complaint contains allegations of conduct that could constitute not only sexual harassment defined by § 106.30 but also violations of other codes of conduct, the final regulations have revised the language used in § 106.45(b)(2) to remove confusing references to the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 recipient’s code of conduct and focus this provision on the need to send notice of allegations that could constitute sexual harassment as defined in § 106.30. The Department appreciates the opportunity to clarify here that references in the final regulations to a recipient’s ‘‘code of conduct’’ refer to any set of policies, rules, or similar codes that purport to govern the conduct or behavior of students or employees, whether such policies, rules, or codes have been crafted by the individual school itself, under mandates from a State or local law, pursuant to school board resolutions, or by other means. Furthermore, § 106.45(b)(2) requires the recipient to include in the written notice ‘‘sufficient details known at the time’’ (emphasis added), such that even if a young student describes a sexual harassment incident in a manner that omits precise, specific details, a recipient may still comply with § 106.45(b)(2)(i), and then send subsequent notices as described in § 106.45(b)(2)(ii) as details about allegations may be discovered during the investigation. The Department notes that § 106.44(c) and § 106.44(d) allow a recipient to remove a respondent from the recipient’s education program on an emergency basis, and place a nonstudent employee on administrative leave during the pendency of an investigation, alleviating commenters’ concerns that giving the respondent sufficient time to respond by sending written notice that a grievance process is underway will allow a threat to remain in the educational environment. The recipient is also obligated to offer the complainant supportive measures, including during the pendency of a grievance process, and thus the Department does not believe that requiring written notice to the parties after a formal complaint has been filed restricts a recipient’s ability to provide for the safety of parties and deter sexual harassment.1131 The Department agrees with commenters that elementary and secondary school recipients, as well as postsecondary recipients, must appropriately address incidents of sexual harassment in order to avoid subjecting students and employees to sex discrimination in violation of Title IX. The Department notes that the Supreme Court has confirmed that public elementary and secondary school students are entitled to due process 1131 Section 106.30 (defining ‘‘supportive measures’’ as individualized services designed to, among other things, protect the safety of all parties and/or deter sexual harassment). PO 00000 Frm 00260 Fmt 4701 Sfmt 4700 under the U.S. Constitution in school disciplinary proceedings.1132 Although commenters are correct that no Supreme Court decision specifically requires written notice when a formal complaint of sexual misconduct has been filed, the Supreme Court has held that ‘‘effective notice’’ constitutes an essential element of due process because it allows the person accused to make sure that their ‘‘version of the events’’ is heard,1133 and the Department reasonably has determined that providing written notice of allegations, containing details of the allegations that are known at the time, after a formal complaint has triggered a recipient’s obligation to investigate and adjudicate sexual harassment constitutes an important procedural protection for the benefit of all participants in the grievance process, and increases the likelihood that the recipient will reach an accurate determination regarding responsibility, which is necessary to hold recipients accountable for providing remedies to victims of Title IX sexual harassment. The Department does not believe that the requirement for parties to receive written notice of the allegations needs to be modified when the parties are young. The final regulations revise § 106.8(b) to include parents on the list of persons to whom recipients send notice and information about the recipient’s nondiscrimination policy and procedures; the final regulations add § 106.6(g) to expressly state that these regulations do not alter the legal right of parents and guardians to exercise rights on behalf of parties; and nothing in the final regulations precludes a Title IX Coordinator from communicating with a young student’s parent about the process (including conveying the same information as contained in a written notice) via telephone or in person so long as the written notice meets the requirements of § 106.45(b)(2). The Department reiterates that the grievance process is initiated (and thus the written notice requirement applies) only when the complainant has filed, or the Title IX Coordinator has signed, a formal complaint. Thus, the written notice requirement does not ‘‘escalate’’ an incident; rather, a complainant’s choice (or a Title IX Coordinator’s decision) has resulted in a formal complaint triggering a grievance process. Only then is the recipient 1132 Goss, 419 U.S. at 578–79 (holding that in the educational context ‘‘the interpretation and application of the Due Process Clause are intensely practical matters’’ that require at a minimum notice and ‘‘opportunity for hearing appropriate to the nature of the case’’) (internal quotation marks and citations omitted). 1133 Goss, 419 U.S. at 583. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations required to send the written notice of allegations under § 106.45(b)(2). Where no formal complaint has been filed by a complainant or signed by a Title IX Coordinator, the recipient is not obligated to ‘‘escalate’’ the reported incident by, for example, informing the respondent that the respondent has been reported to be a perpetrator of sexual harassment; a recipient is obligated to keep confidential provision of supportive measures to a complainant (which the recipient must offer to complainants), except as necessary to actually implement the supportive measures (for example, the respondent may need to know the identity of a complainant who has reported the respondent to have perpetrated sexual harassment if the appropriate supportive measure is a no-contact order and the respondent needs to know with whom to avoid communicating under the terms of the order). Because of the seriousness of the allegations in a formal complaint of sexual harassment, and the access to education that is at stake for both parties in a grievance process addressing those allegations, the Department requires the recipient to allow the parties to meaningfully participate in the grievance process. This participation requires written notice of allegations to both parties where there is a formal complaint, including the details specified in this provision. The Department disagrees that pertinent information such as the identity of the parties involved, location and date of the incident, and the nature of the misconduct that could constitute sexual harassment as defined in § 106.30, with ‘‘sufficient details known at the time’’ (as § 106.45(b)(2) provides) amounts to an unnecessary or unreasonable amount of detail for recipients to include in a written notice of allegations, including in elementary and secondary schools. The provision’s use of the phrases ‘‘known at the time’’ and ‘‘if known’’ in this provision indicates that the Department understands that not every significant detail will be known in every situation, yet expects the written notice to provide both parties with key information about the alleged incident so that both parties understand the scope of the investigation and can prepare to meaningfully participate by advancing the party’s own interests in the outcome of the case. The final regulations also revise § 106.45(b)(2) so that the written notice of allegations also notifies the parties of each party’s right to an advisor of choice, further ensuring that parties are prepared to VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 meaningfully participate in a grievance process. Changes: We have revised § 106.45(b)(2)(ii) to remove references to a recipient’s ‘‘code of conduct’’ and adds reference to sexual harassment ‘‘as defined in § 106.30’’ to reduce confusion among commenters as to whether the written notice requirement applies to allegations that constitute sexual harassment as defined in § 106.30 or to other violations of a recipient’s code of conduct. For the same reason, we have revised § 106.45(b)(2)(i) to reference the grievance process ‘‘that complies with § 106.45’’ to clarify that the written notice pertains to the grievance process a recipient must follow to comply with Title IX. We have revised § 106.8(a) to include parents and legal guardians of elementary and secondary school students on the list of persons to whom recipients send notice and information about the recipient’s non-discrimination policy and procedures. We have added § 106.6(g) to state that nothing in the final regulations alters the legal right of parents or guardians to exercise rights on behalf of a party. Confidentiality and Anonymity for Complainants Comments: One commenter suggested that written notice of allegations sent to the parties naming the complainant and listing the details of the allegations could be leaked or forwarded to unrelated third parties, which could damage the respondent’s reputation, threaten both parties’ access to education, and possibly violate State and Federal health care privacy laws regarding the respondent’s or complainant’s medical history. Some commenters requested that § 106.45(b)(2) be revised to bar both respondents and complainants from disclosing personally identifiable information except as necessary to prepare a response. Other commenters believed that § 106.45(b)(2), by sending notice of the formal complaint, exposes complainants to increased scrutiny not applied to students reporting other kinds of student misconduct. Several commenters wanted the Department to give recipients flexibility to allow complainants to stay anonymous in certain circumstances, and to retain the approach under the 2001 Guidance, which advised that an institution may ‘‘evaluate the confidentiality request’’ of a complainant or respondent ‘‘in the context of its responsibility to provide a safe and non-discriminatory PO 00000 Frm 00261 Fmt 4701 Sfmt 4700 30285 environment for all schools,’’ 1134 considering factors like the severity of the alleged conduct. One commenter asserted that there is precedent for including only the initials of parties in the pre-investigation stage of the complaint.1135 Other commenters argued that respondents do not need to know the complainant’s identity to meaningfully participate in the recipient’s grievance procedure. Several commenters argued that it is unfair to complainants to expose the complainant’s identity, especially because proposed § 106.44(b)(2) required a Title IX Coordinator to file a formal complaint over the wishes of a complainant where multiple reports had been made against the same respondent. Commenters argued that this could significantly chill a complainant’s willingness to report sexual misconduct because the complainant’s identity could be revealed to the respondent even when the complainant never even wanted to initiate a grievance process. Commenters wondered whether a Title IX Coordinator must deny requests by complainants to remain anonymous if the Title IX Coordinator elects to file a formal complaint. Commenters argued that, due to a fear of retaliation, many students are unwilling to report an employee or professor if the student cannot remain anonymous. One commenter stated that, for other types of misconduct allegations, such as theft of property, employees are often questioned without being told who reported them. Some commenters suggested modifying § 106.45(b)(2) to expressly bar complainants from maintaining anonymity, or to forbid schools from investigating allegations unless complainant agree to identify themselves. Commenters suggested that § 106.45(b)(2) should be modified to require schools to give the respondent a copy of the complainant’s written formal complaint when sending the written notice of allegations, or if the formal complaint was not written then the recipient should send the respondent a verbatim summary of the oral complaint. Other commenters supported § 106.45(b)(2) and shared personal stories where, as respondents, the commenters could not understand the allegations without knowing the identity of the complainant. For 1134 Commenters cited: 2001 Guidance at 17. cited: Maricella Miranda, Victims’ names can be withheld in criminal complaints, court rules in Ramsey County case, Pioneer Press (Aug. 18, 2009). 1135 Commenter E:\FR\FM\19MYR2.SGM 19MYR2 30286 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations example, one commenter stated that the recipient attempted to inform the respondent of sexual misconduct allegations while also withholding the identity of the complainant and as a result, the respondent spent much of the investigation believing that the allegations centered around a kiss at a party with one person, only to find out after the identity of the complainant was finally revealed that the allegations were actually made by a different person. Other commenters supported § 106.45(b)(2) because while campus sexual misconduct hearings are not criminal cases, they are proceedings with significant and far-reaching consequences, including possible expulsion making it difficult for a respondent to transfer to any other university, and respondents deserve the basic due process right to know details about the allegations. At least one commenter cited a survey of public perceptions of higher education, including topics such as campus sexual assault and due process; in the survey, 81 percent of people agreed that students accused of sexual assault on college campuses should have the right to know the charges against them before being called to defend themselves, which the commenters argued should include the identity of the complainant.1136 Discussion: The Department clarifies that recipients (and, as applicable, parties) must follow relevant State and Federal health care privacy laws throughout the grievance process. Nothing in the notice should divulge the complainant’s (or respondent’s) medical information or other sensitive information, nor does § 106.45(b)(2) require disclosure of such information. To further respond to commenters’ concerns about disclosure of medical information, the final regulations add to § 106.45(b)(5)(i) a prohibition against a recipient accessing or using for a grievance process the medical, psychological, and similar records of any party without the party’s voluntary, written consent.1137 If the party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a ‘‘parent,’’ as defined in 34 CFR 99.3.1138 The Department agrees with commenters that it is unacceptable for any person to leak or disseminate information to retaliate against another person, and the final regulations add 1136 Commenters cited: Bucknell Institute for Public Policy, Perceptions of Higher Education Survey—Topline Results (2017). 1137 Section 106.45(b)(5)(i). 1138 Id. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 § 106.71, which prohibits the recipient or any other person from intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by Title IX. As discussed in this preamble at § 106.45(b)(5)(iii), the parties have a right to discuss the allegations under investigations, but this right does not preclude a recipient from warning the parties not to discuss or disseminate the allegations in a manner that constitutes retaliation or unlawful tortious conduct. The Department understands commenters’ concerns that complaints of other forms of student misconduct may not lead to the same grievance process (for example, the recipient sending a written notice of allegations to both parties) as the process required under these final regulations for Title IX sexual harassment. However, for reasons described above, the Department believes that both parties should have the benefit of understanding how the recipient has framed the scope of a sexual harassment investigation upon receipt of a formal complaint, including sufficient details known at the time, to permit the respondent opportunity to respond to the allegations. The Department disagrees that this results in unwarranted ‘‘scrutiny’’ of a complainant, and reiterates that written notice of allegations is required only after a formal complaint has been filed; thus, complainants need not be identified by name to a respondent upon a report of sexual harassment, including for the purpose of obtaining supportive measures.1139 However, a formal complaint alleging sexual harassment triggers a grievance process, and in the interest of fairness that process must commence with both parties receiving written notice of the pertinent details of the incident under investigation. We have removed proposed § 106.44(b)(2) from these final regulations, which provision would have required a Title IX Coordinator to file a formal complaint upon receiving multiple reports against the same respondent. Removal of that proposed provision reduces the likelihood that a 1139 Under § 106.30 defining ‘‘supportive measures’’ recipients must keep confidential the provision of supportive measures to a complainant or respondent to the extent that maintaining confidentiality does not impair the ability of the recipient to provide the supportive measures. Thus, unless a particular supportive measure affects the respondent in a way that requires the respondent to know the identity of the complainant (for example, a mutual no-contact order), the Title IX Coordinator need not, and should not, disclose the complainant’s identity to the respondent during the process of selecting and implementing supportive measures for the complainant. PO 00000 Frm 00262 Fmt 4701 Sfmt 4700 complainant’s desire not to file a formal complaint will be overridden by a Title IX Coordinator’s decision to sign a formal complaint. The Department disagrees that using only the initials of the parties (instead of the full names), or withholding the complainant’s identity entirely, or requiring both parties to refrain from disclosing each other’s personally identifiable information, sufficiently permits the parties to meaningfully participate in the grievance process. The Department reiterates that the written notice of allegations serves both parties’ interests. While complainants may often know the identity of a respondent, in some situations a complainant does not know the respondent’s identity, but the written notice of allegations provision ensures that if the recipient knows or discovers the respondent’s identity, the complainant is informed of that important fact. Further, the complainant’s receipt of written notice under this provision ensures that the complainant understands the way in which the recipient has framed the scope of the investigation so that the complainant can meaningfully participate and advance the complainant’s own interests throughout the grievance process.1140 The Department notes that the written notice of allegations provision does not require listing personally identifiable information of either party beyond the ‘‘identity’’ of the parties; thus, the written notice need not, and should not, for example, contain other personally identifiable information such as dates of birth, social security numbers, or home addresses, and nothing in the final regulations precludes a recipient from directing parties not to disclose such personally identifiable information. The Department acknowledges that the final regulations require identification of the parties after a formal complaint has triggered a 1140 As discussed throughout this preamble, the final regulations: Acknowledge the right of parents or guardians to exercise legal rights to act on behalf of a complainant (or respondent) in § 106.6(g); give both parties the right to select an advisor of choice and revise § 106.45(b)(2) to require the initial notice of allegations to advise parties of that right, and to notify the parties of the recipient’s grievance process which includes a description of the range of supportive measures available to complainants and respondents; and forbid recipients from restricting the ability of the parties to discuss the allegations under investigation, in § 106.45(b)(5)(iii), including for the purpose of emotional or personal support, advice, or advocacy. Thus, these final regulations acknowledge that participation in a grievance process is often a difficult circumstance for any party and aim to provide numerous avenues by which a party may receive support, assistance, and advice tailored to the party’s individual needs and wishes throughout the grievance process. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations grievance process, in a way that the 2001 Guidance did not.1141 The Department does not believe that anonymity during a grievance process can lead to fair, reliable outcomes, and thus requires party identities (to the extent they are known) to be included in the written notice of allegations. As noted above, where a formal complaint has not been filed by a complainant or signed by a Title IX Coordinator, the final regulations do not require a recipient to disclose a complainant’s identity to a respondent (unless needed in order to provide a particular supportive measure, such as a mutual no-contact order where a respondent would need to know the identity of the person with whom the respondent’s communication is restricted). In situations where a complainant’s life is in danger from the respondent, such a situation may present the kind of immediate threat to physical health or safety that justifies an emergency removal of a respondent under § 106.44(c). Further, nothing in the final regulations affects a complainant’s ability to seek emergency protective orders from a court of law. The final regulations also expressly prohibit retaliation, in § 106.71, and recipients must respond to complaints of retaliation in order to protect complainants whose identity has been disclosed as a result of a formal complaint (or, as also discussed herein, where providing supportive measures to the complainant necessitates the respondent knowing the complainant’s identity). Thus, in situations where a complainant fears that disclosure to the respondent of the complainant’s identity (or the fact that the complainant 1141 2001 Guidance at 17 (‘‘The school should inform the student that a confidentiality request may limit the school’s ability to respond. The school also should tell the student that Title IX prohibits retaliation and that, if he or she is afraid of reprisals from the alleged harasser, the school will take steps to prevent retaliation and will take strong responsive actions if retaliation occurs. If the student continues to ask that his or her name not be revealed, the school should take all reasonable steps to investigate and respond to the complainant consistent with the student’s request as long as doing so does not prevent the school from responding effectively to the harassment and preventing harassment of other students.’’); cf. id. (stating that constitutional due process of law requires recipients that are public institutions to disclose the complainant’s identity to the respondent and in such a situation the recipient should honor the complainant’s desire for confidentiality and not proceed to discipline the alleged harasser.). The final regulations require identification of the name of the complainant where a formal complaint has been filed by a complainant or signed by a Title IX Coordinator, not only with respect public institutions but also as to private institutions, because constitutional due process and fundamental fairness require the respondent to know the identity of the alleged victim in order to meaningfully respond to the allegations. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 has filed a formal complaint) poses a risk of retaliation against the complainant, the Title IX Coordinator must discuss available supportive measures and consider the complainant’s wishes regarding supportive measures designed to protect the complainant’s safety and deter sexual harassment. The Department understands commenters’ concerns that complainants may not want to report misconduct by an employee if the complainant cannot remain anonymous. The Department reiterates that the written notice of allegations identifying the parties to a sexual harassment incident is required only after a formal complaint has been filed by a complainant or signed by a Title IX Coordinator. Complainants, therefore, need not feel dissuaded from reporting sexual harassment by an employee due to a desire for the complainant’s identity to be withheld from the respondent, because unless and until a formal complaint is filed, the final regulations do not require a recipient to disclose the complainant’s identity to a respondent, including an employee-respondent (unless the respondent must be informed of the complainant’s identity in order for the Title IX Coordinator to effectively implement a particular supportive measure that would necessitate the respondent knowing the complainant’s identity, such as a nocontact order). The Department understands that some recipients may choose to question an employeerespondent about misconduct, such as stealing or theft, without disclosing to the employee the identity of the person who reported the theft. The Department notes that the final regulations do not prevent a recipient from questioning an employee-respondent about sexual harassment allegations without disclosing the complainant’s identity,1142 provided that the recipient does not take disciplinary action against the respondent without first applying the § 106.45 grievance process (or unless emergency removal is warranted under § 106.44(c), or administrative leave is permitted under § 106.44(d)). 1142 The Department notes that a recipient’s questioning of a respondent (whether a student or employee) about a reported sexual harassment incident, in the absence of a formal complaint, may not be used as part of an investigation or adjudication if a formal complaint is later filed by the complainant or signed by the Title IX Coordinator, because § 106.45(b)(5)(v) requires that a party be given written notice of any interview or meeting relating to the allegations under investigation, and a recipient is precluded from imposing disciplinary sanctions on a respondent without following the § 106.45 grievance process. PO 00000 Frm 00263 Fmt 4701 Sfmt 4700 30287 For the reasons already mentioned, the Department declines to require recipients to maintain the anonymity of complainants once a formal complaint has been filed. The Department also will not require recipients to give respondents a copy of the formal complaint. The written notice of allegations provision already requires the recipient to provide the date, time, alleged conduct, and identity of the complainant, so the information required by § 106.45(b)(2) provides sufficient opportunity for the respondent to participate in the grievance process while protecting the complainant’s privacy rights to the extent that, for example, the complainant alleged facts in the formal complaint that are unrelated to Title IX sexual harassment and thus do not relate to the allegations that a recipient investigates in the grievance process. While the Department does not decide policy matters based on public opinion polls, the Department agrees with commenters that informing the respondent of the ‘‘charges against them’’ represents a staple of a fair process that increases party and public confidence in the fairness and accuracy of Title IX proceedings, and believes that § 106.45(b)(2) is an important feature of the § 106.45 grievance process. Changes: The final regulations add § 106.71 prohibiting retaliation against any person for exercising rights under Title IX or for participating (or refusing to participate) in a Title IX grievance process, and revise § 106.45(b)(5)(i) to prevent recipients from using a party’s treatment records without the party’s (or party’s parent, if applicable) voluntary, written consent. General Modification Suggestions Comments: Because anything a respondent says may be used against the respondent in subsequent proceedings at an interview regarding sexual assault, including criminal proceedings, one commenter recommended that § 106.45(b)(2) include a statement that, when the allegation against the respondent would constitute a felony in the State in which the accusation is made, the respondent’s silence may not be construed as evidence of guilt or responsibility for the allegation. Another commenter asked the Department to require the Title IX Coordinator to email both the complainant and the respondent at least once a week to let them know of progress, changes, and updates on their case. Discussion: To make clear that respondents may remain silent in E:\FR\FM\19MYR2.SGM 19MYR2 30288 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations circumstances in which answering a question might implicate a respondent’s constitutional right to avoid selfincrimination, and to protect other rights of the parties, § 106.6(d)(2) states that nothing in Title IX requires a recipient to deprive a person of any rights that would otherwise be protected from government action under the Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. The final regulations also add to § 106.45(b)(6)(i) a provision that the decision-maker must not draw inferences about the determination regarding responsibility based on a party’s failure or refusal to appear at the hearing or answer cross-examination questions. The Department declines to follow the commenter’s recommendation to require the Title IX Coordinator to email both the complainant and the respondent at least once a week to let them know of progress, changes, and updates on their case. The recipient has discretion to be more responsive than the final regulations require, but the final regulations do not require the recipient to contact the parties at least once a week. The Department notes that the final regulations require the recipient to send notice to the parties regarding essential case developments such as where additional allegations become part of the investigation; where allegations or the entire formal complaint have been dismissed; where any short-term delay or time frame extension has been granted for good cause; and after the determination regarding responsibility has been made. Changes: The final regulations also add to § 106.45(b)(6)(i) a provision that the decision-maker must not draw inferences about the determination regarding responsibility based on a party’s failure or refusal to appear at the hearing or answer cross-examination questions. General Clarification Requests Comments: Several commenters requested that the Department clarify what ‘‘sufficient time [for the respondent] to prepare a response’’ means. Likewise, several commenters asked that the Department clarify when a recipient must provide notice of any additional allegations to the parties, asserting that § 106.45(b)(2) does not define ‘‘upon receipt,’’ but that if read literally, that phrase could suggest ‘‘immediately upon receipt,’’ which is impossible in light of the detailed information that must be provided in the written notice. One commenter suggested a definitive guideline (e.g., at least five workdays after receipt) should VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 be imposed. Commenters asserted that ascertaining what the allegations are or how they should be phrased is not always obvious ‘‘upon receipt’’ of a formal complaint; a degree of factfinding and/or analysis must be conducted first. One commenter argued that the provision should set forth a reasonable time frame for institutions to evaluate the information provided in a formal complaint before issuing the notice described in 106.45(b)(2)(i). Another commenter asked the Department to explain the consequences to universities of violating § 106.45(b)(2). Discussion: The Department understands commenters’ concerns that sometimes preparing a written notice of the allegations requires time for the recipient to intake a formal complaint and then compile the details required for a written notice. The Department will not interpret this provision to require notice to be provided ‘‘immediately’’ (and the provision does not use that word), but rather notice must be provided early enough to allow the respondent ‘‘sufficient time to prepare a response.’’ The Department also notes that a recipient’s discretion in this regard is constrained by a recipient’s obligation to conduct a grievance process within the recipient’s designated, reasonably prompt time frames, such that waiting to send the written notice of allegations (even without yet conducting initial interviews with parties) could result in the recipient failing to meet time frames applicable to its grievance process. Whether the recipient provided the respondent ‘‘sufficient time’’ under § 106.45(b)(2) is a fact-specific determination. Consequences for failing to comply with the final regulations include enforcement action by the Department requiring the recipient to come into compliance by taking remedial actions the Department deems necessary, consistent with 20 U.S.C. 1682, and potentially placing the recipient’s Federal funding at risk. Changes: None. Dismissal and Consolidation of Formal Complaints Section 106.45(b)(3)(i) Mandatory Dismissal of Formal Complaints Comments: Many commenters supported proposed § 106.45(b)(3) because it obligates recipients to investigate only allegations in a formal complaint, and thus provides the victim with control over whether or not to trigger the formal grievance process by filing a formal complaint. Other commenters appreciated how clear this PO 00000 Frm 00264 Fmt 4701 Sfmt 4700 provision was for recipients to follow. Some commenters sought clarification with respect to the practical application of this provision, such as what standard would schools be held to if they initiate proceedings on their own, but were not required to do so under Title IX. Certain commenters asked whether a respondent could claim that the school failed to comply with the proposed regulations and thus violated respondent’s rights if the school used separate proceedings because the respondent’s alleged conduct did not satisfy the three requirements in § 106.44(a) and § 106.45(b)(3)(i). Other commenters asked whether a respondent can use the dismissal provision to demand that a school dismiss a complaint against the respondent. In contrast, several comments recommended that the Department remove any provision requiring dismissal of certain complaints so that recipients retain institutional flexibility to investigate complaints at their own discretion. Many commenters expressed the belief that schools should investigate each and every claim and refrain from making an initial determination (some viewed this initial determination as requiring individuals to make a prima facie case) of whether the alleged conduct satisfied the § 106.30 definition of sexual harassment. At least one commenter believed that schools should not have to dismiss even when a victim is not actually harmed. Another commenter stated that the proposed rules provided no avenue for reviewing or appealing a recipient’s determination as to whether the alleged conduct satisfies the definition of sexual harassment. Commenters asserted that the Department has no authority to forbid or preclude schools from investigating non-Title IV matters that affect their institutions, but only the authority to require schools to respond to sexual harassment. Several commenters also urged the Department to transform the provision from a mandatory provision to a permissive provision by replacing ‘‘must’’ with ‘‘may.’’ Many commenters opposed the dismissal provision believing that the provision required institutions to always dismiss or ignore allegations that occurred off-campus. Several commenters cited the concern that dismissing a large number of offcampus complaints will disincentivize reporting by students altogether, forcing students to go to police departments instead. Combined with urging the Department to expand the definition of sexual harassment in § 106.30 or alter E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the ‘‘education program or activity’’ jurisdictional requirement in § 106.44(a) for fear that recipients will be required to dismiss too many complaints, many commenters argued that the mandatory dismissal language in § 106.45(b)(3) effectively foreclosed recipients from addressing sexual harassment that harms students at alarming rates (e.g., harassment that is severe but not pervasive, or sexual assaults of students, by other students, that occur outside the recipient’s education program or activity) even voluntarily (or under State laws) under a recipient’s non-Title IX codes of conduct. Some commenters argued that the language in § 106.45(b)(3) was inconsistent with the language of § 106.44(a) because proposed § 106.45(b)(3) omitted reference to conduct that occurred ‘‘against a person in the United States.’’ Discussion: We appreciate commenters’ support for this provision’s requirement that recipients must investigate allegations in a formal complaint, and agree that this provides complainants with autonomy over choosing to file a formal complaint that triggers an investigation. We acknowledge those comments expressing the concern that as proposed, § 106.45(b)(3) effectively required recipients to make an initial determination as to whether the alleged conduct satisfies the definition of sexual harassment in § 106.30 and whether it occurred within the recipient’s education program or activity, and to dismiss complaints based on that initial determination, leaving recipients, complainants, and respondents unclear about whether dismissed allegations could be handled under a recipient’s non-Title IX code of conduct. As discussed below, we have revised § 106.45(b)(3)(i) to mirror the conditions listed in § 106.44(a) (by adding ‘‘against a person in the United States’’), and we have added language to clarify that the mandatory dismissal in this provision is only for Title IX purposes and does not preclude a recipient from responding to allegations under a recipient’s non-Title IX codes of conduct. We are also persuaded by commenters who expressed concern that the proposed rules did not provide an avenue for reviewing or appealing a recipient’s initial determination to dismiss allegations under this provision, and we have revised § 106.45(b)(3)(iii) to require the recipient to notify the parties of a dismissal decision, and we have revised § 106.45(b)(8) to give both parties equal right to appeal a dismissal decision. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 The § 106.45 grievance process obligates recipients to investigate and adjudicate allegations of sexual harassment for Title IX purposes; the Department does not have authority to require recipients to investigate and adjudicate misconduct that is not covered under Title IX, nor to preclude a recipient from handling misconduct that does not implicate Title IX in the manner the recipient deems fit. In response to commenters’ concerns, the final regulations clarify that dismissal is mandatory where the allegations, if true, would not meet the Title IX jurisdictional conditions (i.e., § 106.30 definition of sexual harassment, against a person in the United States, in the recipient’s education program or activity), reflecting the same conditions that trigger a recipient’s response under § 106.44(a). The criticism of many commenters was well-taken as to the lack of clarity in the proposed rules regarding a recipient’s discretion to address allegations subject to the mandatory dismissal through non-Title IX code of conduct processes. The final regulations therefore revise § 106.45(b)(3)(i) to expressly state (emphasis added) that ‘‘the recipient must dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under title IX or this part; such a dismissal does not preclude action under another provision of the recipient’s code of conduct.’’ The Department notes that recipients retain the flexibility to employ supportive measures in response to allegations of conduct that does not fall under Title IX’s purview, as well as to investigate such conduct under the recipient’s own code of conduct at the recipient’s discretion. This clarifies that the Department does not intend to dictate how a recipient responds with respect to conduct that does not meet the conditions specified in § 106.44(a). For similar reasons, the Department does not believe that it has the authority to make dismissal optional by changing ‘‘must dismiss’’ to ‘‘may dismiss’’ because that change would imply that if a recipient chose not to dismiss allegations about conduct that does not meet the conditions specified in § 106.44(a), the Department would nonetheless hold the recipient accountable for following the prescribed grievance process, but the § 106.45 grievance process is only required for conduct that falls under Title IX. The Department therefore retains the mandatory dismissal language in this provision and adds the clarifying language described above. Thus, these final regulations leave recipients PO 00000 Frm 00265 Fmt 4701 Sfmt 4700 30289 discretion to address allegations of misconduct that do not trigger a recipient’s Title IX response obligations due to not meeting the Section 106.30 definition of sexual harassment, not occurring in the recipient’s education program or activity, or not occurring against a person in the U.S. Changes: We are revising § 106.45(b)(3)(i) to add ‘‘against a person in the United States’’ to align this provision with the conditions stated in § 106.44(a). We are also revising § 106.45(b)(3)(i) to clarify that a mandatory dismissal under this provision is a dismissal for purposes of Title IX and does not preclude action under another provision of the recipient’s code of conduct. We add § 106.45(b)(3)(iii) to require recipients to send the parties written notice of any dismissal decision, and we have revised § 106.45(b)(8) to give both parties equal rights to appeal a recipient’s dismissal decisions. Section 106.45(b)(3)(ii)–(iii) Discretionary Dismissals/Notice of Dismissal Comments: Some commenters suggested that the Department provide greater flexibility to institutions to decide whether or not a full investigation is merited. For instance, some commenters suggested that in circumstances involving a frivolous accusation, a matter that has already been investigated, complaints by multiple complainants none of whom are willing to participate in the grievance process, or when there has been an unreasonable delay in filing that could prejudice the respondent, the Department should grant institutions greater flexibility to determine whether or not to start or continue a formal investigation. At least one commenter suggested that, if greater flexibility were provided, institutions should also be required to document why they did not choose to conduct a formal investigation. Other commenters requested that the Department expand victims’ options for institutional responses to include non-adversarial choices. Discussion: We are persuaded by the commenters urging the Department to grant recipients greater discretion and flexibility to dismiss formal complaints under certain circumstances. Accordingly, we are revising § 106.45(b)(3) to permit discretionary dismissals. Specifically, the Department is adding § 106.45(b)(3)(ii), which allows (but does not require) recipients to dismiss formal complaints in three specified circumstances: Where a complainant notifies the Title IX E:\FR\FM\19MYR2.SGM 19MYR2 30290 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein; where the respondent is no longer enrolled or employed by the recipient; or where specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the allegations contained in the formal complaint. The Department believes that § 106.45(b)(3)(ii) reaffirms the autonomy of complainants and their ability to choose to remove themselves from the formal grievance process at any point, while granting recipients the discretion to proceed with an investigation against a respondent even where the complainant has requested that the formal complaint or allegations be withdrawn (for example, where the recipient has gathered evidence apart from the complainant’s statements and desires to reach a determination regarding the respondent’s responsibility). By granting recipients the discretion to dismiss in situations where the respondent is no longer a student or employee of the recipient, the Department believes this provision appropriately permits a recipient to make a dismissal decision based on reasons that may include whether a respondent poses an ongoing risk to the recipient’s community, whether a determination regarding responsibility provides a benefit to the complainant even where the recipient lacks control over the respondent and would be unable to issue disciplinary sanctions, or other reasons.1143 The final category of discretionary dismissals addresses situations where specific circumstances prevent a recipient from meeting the recipient’s burden to collect evidence sufficient to reach a determination regarding responsibility; for example, where a complainant refuses to participate in the grievance process (but also has not decided to send written notice stating that the complainant wishes to withdraw the formal complaint), or where the respondent is not under the authority of the recipient (for instance because the respondent is 1143 The Department notes that the Elementary and Secondary Education Act of 1965 (ESEA), as amended by the Every Student Succeeds Act (ESSA), may require a recipient subject to ESEA to take certain steps with respect to an employee who has been accused of sexual misconduct and that continuing a Title IX sexual harassment investigation even when the accused employee has left the recipient’s employ may assist the recipient in knowing whether the recipient does, or does not, have probable cause to believe the employee engaged in sexual misconduct. E.g., https:// www2.ed.gov/policy/elsec/leg/essa/ section8546dearcolleagueletter.pdf. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 a non-student, non-employee individual who came onto campus and allegedly sexually harassed a complaint), and the recipient has no way to gather evidence sufficient to make a determination, this provision permits dismissal. The Department wishes to emphasize that this provision is not the equivalent of a recipient deciding that the evidence gathered has not met a probable or reasonable cause threshold or other measure of the quality or weight of the evidence, but rather is intended to apply narrowly to situations where specific circumstances prevent the recipient from meeting its burden in § 106.45(b)(5)(i) to gather sufficient evidence to reach a determination. Accordingly, a recipient should not apply a discretionary dismissal in situations where the recipient does not know whether it can meet the burden of proof under § 106.45(b)(5)(i). Decisions about whether the recipient’s burden of proof has been carried must be made in accordance with §§ 106.45(b)(6)–(7)— not prematurely made by persons other than the decision-maker, without following those adjudication and written determination requirements. The Department declines to authorize a discretionary dismissal for ‘‘frivolous’’ or ‘‘meritless’’ allegations because many commenters have expressed to the Department well-founded concerns that complainants have faced disbelief or skepticism when reporting sexual harassment, and the Department believes that where a complainant has filed a formal complaint, the recipient must be required to investigate the allegations without dismissing based on a conclusion that the allegations are frivolous, meritless, or otherwise unfounded, because the point of the § 106.45 grievance process is to require the recipient to gather and objectively evaluate relevant evidence before reaching conclusions about the merits of the allegations. In making the revisions to § 106.45(b)(3)(ii) authorizing three grounds for a discretionary dismissal of a formal complaint (or allegations therein), the Department believes it is reaching a fair balance between obligating the recipient to fully investigate all allegations that a complainant has presented in a formal complaint, with the recognition that certain circumstances render completion of an investigation futile. Because these three grounds for dismissal are discretionary rather than mandatory, the recipient retains discretion to take into account the unique facts and circumstances of each case before reaching a dismissal decision. PO 00000 Frm 00266 Fmt 4701 Sfmt 4700 Finally, we are also persuaded by commenters’ recommendations that the Department offer the parties an appeal from a recipient’s dismissal decisions. The final regulations add § 106.45(b)(3)(iii) requiring that the recipient promptly send the parties written notice so that the parties know when a formal complaint (or allegations therein) has been dismissed (whether under mandatory dismissal, or discretionary dismissal), including the reason for the dismissal. This requirement promotes a fair process by informing both parties of recipient’s actions during the grievance process particularly as to a matter as significant as a dismissal of a formal complaint (or allegations therein). Including an explicit notice requirement under this provision is also consistent with the Department’s goal of providing greater clarity and transparency as to a recipient’s obligations and what the parties to a formal grievance process can expect. The final regulations also revise the appeals provision at § 106.45(b)(8) to allow the parties equal opportunity to appeal any dismissal decision of the recipient. Changes: The Department is adding § 106.45(b)(3)(ii) to specify three situations where a recipient is permitted but not required to dismiss a formal complaint: Where a complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein; where the respondent is no longer enrolled or employed by the recipient; or where specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the allegations contained in the formal complaint. The Department is also adding § 106.45(b)(3)(iii) to require a recipient to notify the parties, in writing, as to any mandatory or discretionary dismissal and reasons for the dismissal. We also revise the appeals provision at § 106.45(b)(8) to allow the parties equal opportunity to appeal any dismissal decision of the recipient. Section 106.45(b)(4) Consolidation of Formal Complaints Comments: One commenter suggested revising references to ‘‘both parties’’ to ‘‘all parties’’ to account for incidents that involve more than two parties. One commenter criticized the proposed rules for seeming to contemplate that sexual harassment incidents only involve a single victim and a single perpetrator and failing to acknowledge that the process may involve multiple groups of people on either side. Another E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations commenter asked the Department to explain how a single incident involving multiple parties would be handled. A few commenters asserted that some recipients have a practice of not allowing a respondent to pursue a counter-complaint against an original complainant, resulting in what one commenter characterized as an unfair rule that amounts to ‘‘first to file, wins.’’ Discussion: In response to commenters’ concerns that the proposed rules did not sufficiently provide clarity about situations involving multiple parties, and in response to commenters who asserted that recipients have not always understood how to handle a complaint filed by one party against the other party, the Department adds § 106.45(b)(4), addressing consolidation of formal complaints. The Department believes that recipients and parties will benefit from knowing that recipients have discretion to consolidate formal complaints in situations that arise out of the same facts or circumstances and involve more than one complainant, more than one respondent, or what amount to counter-complaints by one party against the other. Section 106.45(b)(4) further clarifies that where a grievance process involves more than one complainant or respondent, references to the singular ‘‘party,’’ ‘‘complainant’’ or ‘‘respondent’’ include the plural. Changes: The final regulations add § 106.45(b)(4) to give recipients discretion to consolidate formal complaints of sexual harassment where the allegations of sexual harassment arise out of the same facts or circumstances. Where a grievance process involves more than one complainant or more than one respondent, references in § 106.45 to the singular ‘‘party,’’ ‘‘complainant,’’ or ‘‘respondent’’ include the plural, as applicable. Investigation Section 106.45(b)(5)(i) Burdens of Proof and Gathering Evidence Rest on the Recipient Comments: Some commenters supported this provision based on personal stories involving the recipient placing the burden of proof on a party when the party had no rights to interview witnesses or inspect locations involved in the incident. One commenter supported this provision because it is entirely appropriate that complainants not be assigned the burden of proof or burden of producing evidence since they are seeking equal access to education and it is the school that should provide equal access, and VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 removing these burdens from the shoulders of the respondent is also an important part of the accused’s presumption of innocence. One commenter supported placing the burden of proof on the recipient because it is always the school’s responsibility to ensure compliance with Title IX. Some commenters believe that placing the burden of proof on the recipient is tantamount to putting it on the survivor(s) to prove all the elements of the assault, which is an impossible burden and which will deter survivor(s) from reporting and recovering from the assault. One commenter supported placing the burden of gathering evidence on the recipient but not the burden of proof because the recipient is not a party to the proceeding. Some commenters expressed concern that this provision of the final regulations will cause instability in the system because placing the burden of gathering evidence on the recipient suggests an adversarial rather than educational process and opens recipients up to charges that the recipient failed to do enough to gather evidence. Various commenters also contended that this provision of the final regulations is too strict and demanding. Some commenters suggested that Title IX requires only that an institution demonstrate that it did not act with deliberate indifference when it had actual knowledge of sexual harassment or sexual assault—not proving whether each factual allegation in a complaint has merit—and that requiring a recipient to prove each allegation is a burden that Title IX itself has not imposed on recipients. Some commenters suggested explaining what the recipient can and cannot do in pursuit of gathering evidence, or limiting the recipient’s burden to gathering evidence ‘‘reasonably available.’’ Other commenters suggested requiring the recipient to investigate all reasonable leads and interview all witnesses identified by the parties. Discussion: The Department appreciates commenters’ support for § 106.45(b)(5)(i). The Department agrees with commenters who asserted that the recipient is responsible for ensuring equal access to education programs and activities and should not place the burden of gathering relevant evidence, or meeting a burden of proof, on either party; Title IX obligates recipients to operate education programs and activities free from sex discrimination, and does not place burdens on students or employees who are seeking to maintain the equal educational access that recipients are obligated to provide. PO 00000 Frm 00267 Fmt 4701 Sfmt 4700 30291 The Department believes that § 106.45(b)(5)(i) is important to providing a fair process to both parties by taking the burden of factually determining which situations require redress of sexual harassment off the shoulders of the parties. At the same time, the final regulations ensure that parties may participate fully and robustly in the investigation process, by gathering evidence, presenting fact and expert witnesses, reviewing the evidence gathered, responding to the investigative report that summarizes relevant evidence, and asking questions of other parties and witnesses before a decision-maker has reached a determination regarding responsibility. The Department disagrees that § 106.45(b)(5)(i) places a de facto burden of proof on the complainant to prove the elements of an alleged assault, and disagrees that this provision is likely to chill reporting. To the contrary, this provision clearly prevents a recipient from placing that burden on a complainant (or a respondent). The Department disagrees that the recipient should bear the burden of producing evidence yet not bear the burden of proof at the adjudication; the Department recognizes that the recipient is not a party to the proceeding, but this does not prevent the recipient from presenting evidence to the decisionmaker, who must then objectively evaluate relevant evidence (both inculpatory and exculpatory) and reach a determination regarding responsibility. Nothing about having to carry the burden of proof suggests that the recipient must desire or advocate for meeting (or not meeting) the burden of proof; to the contrary, the final regulations contemplate that the recipient remains objective and impartial throughout the grievance process, as emphasized by requiring a recipient’s Title IX personnel involved in a grievance process to serve free from bias and conflicts of interest and to be trained in how to serve impartially and how to conduct a grievance process.1144 Whether the evidence gathered and presented by the recipient (i.e., gathered by the investigator and with respect to relevant evidence, summarized in an investigative report) does or does not meet the burden of proof, the recipient’s obligation is the same: To respond to the determination regarding responsibility by complying with § 106.45 (including effectively implementing remedies for the complainant if the respondent is determined to be responsible).1145 1144 Section 1145 Section E:\FR\FM\19MYR2.SGM 106.45(b)(1)(iii). 106.45(b)(1)(i); § 106.45(b)(7)(iv). 19MYR2 30292 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations The Department recognizes that bearing the burden of proof may seem uncomfortable for recipients who do not wish to place themselves ‘‘between’’ two members of their community or be viewed as prosecutors adversarial to the respondent. The Department does not believe that this provision makes Title IX proceedings more adversarial; rather, these proceedings are inherently adversarial, often involving competing plausible narratives and high stakes for both parties, and recipients are obligated to identify and address sexual harassment that occurs in the recipient’s education program or activity. The final regulations do not require a recipient to take an adversarial posture with respect to either party, and in fact require impartiality. Ultimately, however, the recipient itself must take action in response to the determination regarding responsibility that directly affects both parties, and it is the recipient’s burden to impartially gather evidence and present it so that the decision-maker can determine whether the recipient (not either party) has shown that the weight of the evidence reaches or falls short of the standard of evidence selected by the recipient for making determinations. The Department is aware that the final regulations contemplate a recipient fulfilling many obligations that, while performed by several different individuals, are legally attributable to the recipient itself. However, this does not mean that the recipient, having appropriately designated individuals to perform certain roles in fulfillment of the recipient’s obligations, cannot meet a burden to gather and collect evidence, present the evidence to a decisionmaker, and reach a fair and accurate determination. Thus, the Department disagrees that this provision is too strict or demanding. The Department agrees that the Supreme Court framework for private Title IX litigation applies a deliberate indifference standard to known sexual harassment (including reports or allegations of sexual harassment). As explained in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Department intentionally adopts that framework, and adapts it for administrative enforcement purposes so that these final regulations hold a recipient liable not only when the recipient may be deemed to have intentionally committed sex discrimination (i.e., by being deliberately indifferent to actual knowledge of actionable sexual harassment) but also when a recipient VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 has violated regulatory obligations that, while they may not purport to represent definitions of sex discrimination are required in order to further Title IX’s non-discrimination mandate. One of the ways in which the Department adapts that framework is concluding that where a complainant wants a recipient to investigate allegations, the recipient must conduct an investigation and adjudication, and provide remedies to that complainant if the respondent is found responsible. While this response may or may not be required in private Title IX lawsuits, the Department has determined that a consistent, fair grievance process to resolve sexual harassment allegations, under the conditions prescribed in the final regulations, effectuates the purpose of Title IX to provide individuals with effective protections against discriminatory practices. The Department appreciates commenters’ suggestions that this provision be narrowed (e.g., to state that the burden is to gather evidence ‘‘reasonably available’’) or broadened (e.g., to require investigation of ‘‘all’’ leads or interviews of all witnesses), or to further specify steps a recipient must take to gather evidence. The Department believes that the scope of § 106.45(b)(5)(i) appropriately obligates a recipient to undertake a thorough search for relevant facts and evidence pertaining to a particular case, while operating under the constraints of conducting and concluding the investigation under designated, reasonably prompt time frames and without powers of subpoena. Such conditions limit the extensiveness or comprehensiveness of a recipient’s efforts to gather evidence while reasonably expecting the recipient to gather evidence that is available. Changes: None. Section 106.45(b)(5)(ii) Equal Opportunity To Present Witnesses and Other Inculpatory/Exculpatory Evidence Comments: Many commenters supported § 106.45(b)(5)(ii), asserting that it will provide equal opportunity for the parties to present witnesses and other evidence. Commenters stated that this provision will make the grievance process clearer, provide more reliable outcomes, and afford participants important due process protections. One commenter asserted that this provision will create greater uniformity between Title IX regulations and other justice systems in the U.S. designed to deal with similar issues. This commenter also asserted that this provision will reduce the risk of a false positive guilty PO 00000 Frm 00268 Fmt 4701 Sfmt 4700 finding for an innocent student accused of sexual harassment. At the same time, one commenter expressed concerns that allowing respondents to hear the complainant’s evidence and learn the identity of the complainants’ witnesses will enable the respondent to intimidate the complainant, intimidate the complainant’s witnesses, or spread lies about the complainant. Another commenter argued that previous guidance and regulations already allowed for schools to give each party a chance to present evidence, so the proposed rules are superfluous. Several commenters recounted personal stories about Title IX Coordinators failing to consider a respondent’s exculpatory evidence, including refusing to ask questions the respondent wished to ask the complainant or the complainant’s witnesses, and refusing to speak with the respondent’s witnesses. One commenter submitted a personal story about the recipient never providing the respondent with the complainant’s evidence, which the commenter contended severely hindered the respondent’s ability to defend against the complainant’s allegations. One commenter stated approvingly that a provision similar to § 106.45(b)(5)(ii) also appears in the Harvard Law School Sexual and Gender-Based Harassment Policy, under which all parties are afforded due process protections, including the right to present evidence and witnesses at a live hearing before an impartial decision maker. Another commenter suggested that § 106.45(b)(5)(ii) should give the parties an equal opportunity to identify witnesses. One commenter believed that the provision is consistent with the Sixth Amendment right to confront adverse witnesses, call favorable witnesses, as well as the right to effective assistance of counsel. The commenter argued that some universities have a practice refusing respondents the assistance of counsel, which meant that a young person must defend against trained, seasoned Title IX Coordinators who often serve as the investigator (and sometimes also the decision-maker) in a case. The commenter also cited numerous situations of students being prevented from introducing exculpatory evidence ostensibly on the basis of the complex rules of evidence applied in courtrooms that universities purport to apply to Title IX proceedings, yet universities selectively apply courtbased evidentiary rules in ways designed to disadvantage respondents. Commenters asserted that universities E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations allow hearsay and other evidence into Title IX proceedings under the argument that the hearings are an ‘‘informal’’ or an ‘‘educational’’ process where more relaxed rules are applied, yet do not carefully apply all the court evidentiary rules that ensure hearsay evidence is reliable before being admissible, and at the same time refuse to allow respondents to cross-examine witnesses who are making non-hearsay statements at a hearing. One commenter asked the Department to require recipients to provide training materials to parties upon request. The commenter requested that the training materials must explain what evidence may or may not be considered in light of what the commenter believed is bias that most Title IX Coordinators hold in favor of victims. Discussion: The Department agrees with commenters who asserted that § 106.45(b)(5)(ii) will improve the grievance process for all parties, and appreciates references to the beneficial impact of other laws and policies (including Department guidance) that include similar provisions.1146 The Department acknowledges the personal experiences shared by commenters describing instances in which recipients have ignored, discounted, or denied opportunities to introduce exculpatory evidence, and the Department also acknowledges that other commenters recounted personal experiences involving recipients ignoring, discounting, or denying opportunity to introduce inculpatory evidence (by, for example, showing evidence to a respondent or respondent’s attorney without showing it to the complainant). The Department appreciates that many recipients already require Title IX personnel to allow both parties equal opportunity to present evidence and witnesses, but in light of commenters’ anecdotal evidence and for reasons discussed in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, the reality and perception is that too many recipients fail to consider inculpatory or exculpatory evidence 1146 As discussed throughout this preamble, including in the ‘‘Support and Opposition for the Grievance Process in the § 106.45 Grievance Process’’ and the ‘‘Role of Due Process in the Grievance Process’’ sections of this preamble, the Department has considered grievance procedures in use by particular recipients, prescribed under various State and other Federal laws, recommended by advocacy organizations, and from other sources, and has intentionally crafted the § 106.45 grievance process to contain those procedural rights and protections that best serve Title IX’s nondiscrimination mandate, comport with constitutional due process and fundamental fairness, and may reasonably be implemented in the context of an educational institution as opposed to courts of law. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 resulting in real and perceived injustices for complainants and respondents. Equal opportunity to present inculpatory evidence and exculpatory evidence, including fact witnesses and expert witnesses, is an important procedural right and protection for both parties, and will improve the reliability and legitimacy of the outcomes recipients reach in Title IX sexual harassment grievance processes. The Department received numerous comments expressing concern about the potential for retaliation and recounting experiences of retaliation suffered by complainants and respondents. The Department has added § 106.71 in these final regulations, explicitly prohibiting any person from intimidating, threatening, coercing, or discriminating against another individual for the purpose of interfering with any right or privilege secured by Title IX. The retaliation provision also requires that the identities of complainants, respondents, and witnesses must be kept confidential, except as permitted by FERPA, required by law, or to the extent necessary to carry out a Title IX grievance process. Section 106.71 also authorizes parties to file complaints alleging retaliation under § 106.8(c) which requires recipients to adopt and publish grievance procedures that provide for the prompt and equitable resolution of complaints of sex discrimination. The Department believes that this provision will deter retaliation, as well as afford parties and the recipient the opportunity promptly to redress retaliation that does occur. In response to commenters who asserted that recipients should specify in their materials used to train Title IX personnel what evidence is relevant or admissible, we have revised § 106.45(b)(1)(iii) to require a recipient’s investigators and decision-makers to receive training on issues of relevance,1147 including for a decisionmaker training on when questions about a complainant’s prior sexual history are deemed ‘‘not relevant’’ under § 106.45(b)(6). Section 106.45(b)(1)(iii) 1147 For discussion of these final regulations’ requirement that relevant evidence, and only relevant evidence, must be objectively evaluated to reach a determination regarding responsibility, and the specific types of evidence that these final regulations deem irrelevant or excluded from consideration in a grievance process (e.g., a complainant’s prior sexual history, any party’s medical, psychological, and similar records, any information protected by a legally recognized privilege, and (as to adjudications by postsecondary institutions), party or witness statements that have not been subjected to cross-examination at a live hearing, see the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. PO 00000 Frm 00269 Fmt 4701 Sfmt 4700 30293 continues to require training on how to conduct an investigation and grievance process, such that each aspect of a recipient’s procedural rules (including evidentiary rules) that a recipient must adopt in order to comply with these regulations, and any additional rules that are consistent with these final regulations,1148 must be included in the training for a recipient’s Title IX personnel. Further, if a recipient trains Title IX personnel to evaluate, credit, or assign weight to types of relevant, admissible evidence, that topic will be reflected in the recipient’s training materials. The Department agrees with commenters who urged the Department to require that the recipients publicize their training materials, because such a requirement will improve the transparency of a recipient’s grievance process. Accordingly, the Department requires recipients to make materials used to train a recipient’s Title IX personnel publicly available on recipients’ websites, under § 106.45(b)(10). Changes: We are revising § 106.45(b)(5)(ii) to require recipients to provide an equal opportunity for all parties to present both fact and expert witnesses. We are also revising § 106.45(b)(10) to require recipients to make the materials used to train Title IX personnel publicly available on recipients’ websites or, if a recipient does not have a website, available upon request for inspection by members of the public. We have also added § 106.71 to the final regulations to expressly prohibit retaliating against any individual for exercising rights under Title IX. Comments: One commenter requested the Department to modify § 106.45(b)(5)(ii) to expressly allow a party’s mental health history to be introduced as evidence. One commenter argued that the respondent should be permitted to admit as evidence instances where the complainant had accused other students of sexual misconduct in the past. One commenter argued that complainants often receive the benefit of certain types of evidence, such as hearsay and victim impact statements, while respondents are denied the use of the same evidence and arguments. The commenter asked the Department to level the playing field by allowing respondents to write their own 1148 The revised introductory sentence of § 106.45(b) expressly allows recipients to adopt rules that apply to the recipient’s grievance process, other than those required under § 106.45, so long as such additional rules apply equally to both parties. For example, a postsecondary institution recipient may adopt reasonable rules of order and decorum to govern the conduct of live hearings. E:\FR\FM\19MYR2.SGM 19MYR2 30294 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations impact statement and present evidence such as the results of lie detector tests if the hearing allows complainants the use of similar evidence. Another commenter asked the Department to direct recipients to exclude irrelevant evidence. One commenter suggested that, at the initial complaint stage, complainants should be able to present additional evidence to prevent the recipient from quickly dismissing the complainant’s complaint and if the complainant can provide sufficient evidence, then the commenter asked the Department to require the recipient to open a case and investigate the allegations. A few commenters asked the Department to afford both parties the right to present evidence, not just at the investigation stage, but also during the hearings themselves and during the appeal process. One commenter suggested that the Department should require recipients to consider new evidence at the hearing, including evidence of retaliation or additional harassment by the respondent. Discussion: A recipient’s grievance process must objectively evaluate all relevant evidence (§ 106.45(b)(1)(ii)). Section 106.45(b)(5)(iii) of these final regulations requires the recipients to refrain from restricting the ability of either party to gather and present relevant evidence. Section 106.45(b)(5)(vi) permits both parties equal opportunity to inspect and review all evidence directly related to the allegations. Section 106.45(b)(6)(i)–(ii) directs the decision-maker to allow parties to ask witnesses all relevant questions and follow-up questions, and § 106.45(b)(6)(i) expressly states that only relevant cross-examination questions may be asked at a live hearing. The requirement for recipients to summarize and evaluate relevant evidence, and specification of certain types of evidence that must be deemed not relevant or are otherwise inadmissible in a grievance process pursuant to § 106.45, appropriately directs recipients to focus investigations and adjudications on evidence pertinent to proving whether facts material to the allegations under investigation are more or less likely to be true (i.e., on what is relevant). At the same time, § 106.45 deems certain evidence and information not relevant or otherwise not subject to use in a grievance process: Information protected by a legally recognized privilege; 1149 evidence about a complainant’s prior sexual history; 1150 any party’s medical, psychological, and 1149 Section 1150 Section 106.45(b)(1)(x). 106.45(b)(6)(i)–(ii). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 similar records unless the party has given voluntary, written consent; 1151 and (as to adjudications by postsecondary institutions), party or witness statements that have not been subjected to cross-examination at a live hearing.1152 These final regulations require objective evaluation of relevant evidence, and contain several provisions specifying types of evidence deemed irrelevant or excluded from consideration in a grievance process; a recipient may not adopt evidentiary rules of admissibility that contravene those evidentiary requirements prescribed under § 106.45. For example, a recipient may not adopt a rule excluding relevant evidence whose probative value is substantially outweighed by the danger of unfair prejudice; although such a rule is part of the Federal Rules of Evidence, the Federal Rules of Evidence constitute a complex, comprehensive set of evidentiary rules and exceptions designed to be applied by judges and lawyers, while Title IX grievance processes are not court trials and are expected to be overseen by layperson officials of a school, college, or university rather than by a judge or lawyer. Similarly, a recipient may not adopt rules excluding certain types of relevant evidence (e.g., lie detector test results, or rape kits) where the type of evidence is not either deemed ‘‘not relevant’’ (as is, for instance, evidence concerning a complainant’s prior sexual history 1153) or otherwise barred from use under § 106.45 (as is, for instance, information protected by a legally recognized privilege 1154). However, the § 106.45 grievance process does not prescribe rules governing how admissible, relevant evidence must be evaluated for weight or credibility by a recipient’s decision-maker, and recipients thus have discretion to adopt and apply rules in that regard, so long as such rules do not conflict with § 106.45 and apply equally to both parties.1155 In response to commenters’ concerns that the final regulations do not specify rules about evaluation of evidence, and recognizing that recipients therefore have discretion to adopt rules not otherwise prohibited under § 106.45, the final regulations acknowledge this reality by adding language to the introductory sentence of § 106.45(b): ‘‘Any provisions, rules, or practices other than those required by 106.45(b)(5)(i). 106.45(b)(6)(i). 1153 Section 106.45(b)(6)(i)–(ii). 1154 Section 106.45(b)(1)(x). 1155 Section 106.45(b) (introductory sentence). § 106.45 that a recipient adopts as part of its grievance process for handling formal complaints of sexual harassment, as defined in § 106.30, must apply equally to both parties.’’ A recipient may, for example, adopt a rule regarding the weight or credibility (but not the admissibility) that a decision-maker should assign to evidence of a party’s prior bad acts, so long as such a rule applied equally to the prior bad acts of complainants and the prior bad acts of respondents. Because a recipient’s investigators and decision-makers must be trained specifically with respect to ‘‘issues of relevance,’’ 1156 any rules adopted by a recipient in this regard should be reflected in the recipient’s training materials, which must be publicly available.1157 As to a commenter’s request that the Department require the recipient to investigate a complaint of sexual harassment or assault if the complainant can supply enough evidence to overcome the recipient’s dismissal, the final regulations address mandatory and discretionary dismissals, including expressly giving both parties the right to appeal a recipient’s dismissal decision, and one basis of appeal expressly includes where newly discovered evidence may affect the outcome.1158 Thus, if a recipient dismisses a formal complaint under § 106.45(b)(3)(i) because, for instance, the recipient concludes that the misconduct alleged does not meet the definition of sexual harassment in § 106.30, the complainant can appeal that dismissal, for example by asserting that newly discovered evidence demonstrates that the misconduct in fact does meet the § 106.30 definition of sexual harassment, or alternatively by asserting procedural irregularity on the basis that the alleged conduct in fact does meet the definition of § 106.30 sexual harassment and thus mandatory dismissal was inappropriate under § 106.45(b)(3)(i). As to commenters’ request to allow both parties to introduce new evidence at every stage, including the hearing and on appeal, the final regulations require recipients to allow both parties equally to appeal on certain bases including newly discovered evidence that may affect the outcome of the matter (as well as on the basis of procedural irregularity, or conflict of interest of bias, that may have affected the outcome).1159 For reasons discussed above, the Department declines to be 1151 Section 1152 Section PO 00000 Frm 00270 Fmt 4701 Sfmt 4700 1156 Section 106.45(b)(1)(iii). 106.45(b)(10)(i)(D). 1158 Section 106.45(b)(8). 1159 Id. 1157 Section E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations more prescriptive than the Department believes is necessary to ensure a consistent, fair grievance process, and thus leaves decisions about other circumstances under which a party may offer or present evidence in the recipient’s discretion, so long as a recipient’s rules in this regard comply with § 106.45(b)(5)(ii) by giving ‘‘equal opportunity’’ to both parties to present witnesses (including fact witnesses and expert witnesses) and other evidence (including inculpatory and exculpatory evidence). Changes: The Department is revising § 106.45(b)(5)(ii) to add the phrase ‘‘including fact and expert witnesses’’ to clarify that the equal opportunity to present witnesses must apply to experts. The final regulations also add language to the introductory sentence of § 106.45(b) stating that rules adopted by a recipient for use in the grievance process must apply equally to both parties. We have also added § 106.45(b)(1)(x) prohibiting use of information protected by a legally recognized privilege. We have also revised § 106.45(b)(5)(i) prohibiting use of a party’s medical, psychological, and other treatment records without the party’s voluntary, written consent. Section 106.45(b)(5)(iii) Recipients Must Not Restrict Ability of Either Party To Discuss Allegations or Gather and Present Relevant Evidence Comments: Some commenters expressed support for § 106.45(b)(5)(iii), noting that First Amendment free speech issues are implicated when schools impose ‘‘gag orders’’ on parties’ ability to speak about a Title IX situation. A few commenters noted that recipients’ application of gag orders ends up preventing parties from collecting evidence by preventing them from talking to possible witnesses, and even from calling parents or friends for support. Many commenters argued that this provision will harm survivors and chill reporting because survivors often feel severe distress when other students know of the survivor’s report, or experience stigma and backlash when other students find out the survivor made a formal complaint, which deters reporting.1160 Other commenters argued that a provision that permits sensitive information to be disseminated and even published on social media or campus newspapers results in loss of privacy and anonymity that betrays already-traumatized survivors. Other 1160 Commenters cited: Alan M. Gross et al., An examination of sexual violence against college women, 12 Violence Against Women 3 (2006). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 commenters opposed this provision fearing it will negatively affect both parties by leading to gossip, shaming, retaliation, and defamation. Other commenters believed this provision opens the door to witness or evidence tampering and intimidation and/or interference with the investigation. Other commenters asserted that the final regulations should permit each party to identify witnesses but then permit only the recipient to discuss the allegations with the witnesses, because witnesses might be more forthcoming with an investigator than with a party. Some commenters believed that with regard to elementary and secondary schools, the final regulations should clarify the extent to which this provision applies because common sense suggests that a school administrator, such as a principal, should be able to restrict a student from randomly or maliciously discussing allegations of sexual harassment without impeding the student’s ability to participate in the formal complaint process. Several commenters urged the Department to modify this provision in one or more of the following ways: The parties must be permitted to discuss allegations only with those who have a need to know those allegations; the recipient may limit any communication to solely neutral communication specifically intended to gather witnesses and evidence or participate in the grievance process; the recipient may limit the parties’ communication or contact with each other during the investigation and prohibit disparaging communications, if those limits apply equally to both parties; recipients must be permitted to restrict the discussion or dissemination of materials marked as confidential; while parties should be allowed to discuss the general nature of the allegations under investigation, recipients should have the authority to limit parties from discussing specific evidence provided under § 106.45(b)(5)(vi) with anyone other than their advisor; the evidence discussed should be limited to that which is made accessible to the decision-maker(s), which mirrors the requirements in VAWA; the final regulations should provide an initial warning that neither party is to aggravate the problem in any manner; the final regulations should include language permitting the issuance of ‘‘no contact’’ orders as a supportive measure; the final regulations should prohibit parties from engaging in retaliatory conduct in violation of institutional policies. PO 00000 Frm 00271 Fmt 4701 Sfmt 4700 30295 Discussion: The Department appreciates commenters’ support for § 106.45(b)(5)(iii). The Department acknowledges the concerns expressed by other commenters concerned about confidentiality and retaliation problems that may arise from application of this provision. This provision contains two related requirements: That a recipient not restrict a party’s ability to (i) discuss the allegations under investigation or (ii) gather and present evidence. The two requirements overlap somewhat but serve distinct purposes. As to this provision’s requirement that a recipient not restrict a party’s ability to discuss the allegations under investigation, the Department believes that a recipient should not, under the guise of confidentiality concerns, impose prior restraints on students’ and employees’ ability to discuss (i.e., speak or write about) the allegations under investigation, for example with a parent, friend, or other source of emotional support, or with an advocacy organization. Many commenters have observed that the grievance process is stressful, difficult to navigate, and distressing for both parties, many of whom in the postsecondary institution context are young adults ‘‘on their own’’ for the first time, and many of whom in the elementary and secondary school context are minors. The Department does not believe recipients should render parties feeling isolated or alone through the grievance process by restricting parties’ ability to seek advice and support outside the recipient’s provision of supportive measures. Nor should a party face prior restraint on the party’s ability to discuss the allegations under investigation where the party intends to, for example, criticize the recipient’s handling of the investigation or approach to Title IX generally. The Department notes that student activism, and employee publication of articles and essays, has spurred many recipients to change or improve Title IX procedures, and often such activism and publications have included discussion by parties to a Title IX grievance process of perceived flaws in the recipient’s Title IX policies and procedures. The Department further notes that § 106.45(b)(5)(iii) is not unlimited in scope; by its terms, this provision stops a recipient from restricting parties’ ability to discuss ‘‘the allegations under investigation.’’ This provision does not, therefore, apply to discussion of information that does not consist of ‘‘the allegations under investigation’’ (for example, evidence related to the allegations that has been collected and exchanged between the parties and their E:\FR\FM\19MYR2.SGM 19MYR2 30296 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations advisors during the investigation under § 106.45(b)(5)(vi), or the investigative report summarizing relevant evidence sent to the parties and their advisors under § 106.45(b)(5)(vii)). As to the requirement in § 106.45(b)(5)(iii) that recipients must not restrict parties’ ability ‘‘to gather and present evidence,’’ the purpose of this provision is to ensure that parties have equal opportunity to participate in serving their own respective interests in affecting the outcome of the case. This provision helps ensure that other procedural rights under § 106.45 are meaningful to the parties; for example, while the parties have equal opportunity to inspect and review evidence gathered by the recipient under § 106.45(b)(5)(vi), this provision helps make that right meaningful by ensuring that no party’s ability to gather evidence (e.g., by contacting a potential witness, or taking photographs of the location where the incident occurred) is hampered by the recipient. Finally, the two requirements of this provision sometimes overlap, such as where a party’s ability to ‘‘discuss the allegations under investigation’’ is necessary precisely so that the party can ‘‘gather and present evidence,’’ for example to seek advice from an advocacy organization or explain to campus security the need to access a building to inspect the location of an alleged incident. The Department appreciates the opportunity to clarify that this provision in no way immunizes a party from abusing the right to ‘‘discuss the allegations under investigation’’ by, for example, discussing those allegations in a manner that exposes the party to liability for defamation or related privacy torts, or in a manner that constitutes unlawful retaliation. In response to many commenters concerned that the proposed rules did not address retaliation, the final regulations add § 106.71 prohibiting retaliation and stating in relevant part (emphasis added): ‘‘No recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by title IX or this part[.]’’ 1161 The Department thus believes that § 106.45(b)(5)(iii)—permitting the 1161 As discussed in the ‘‘Retaliation’’ section of this preamble, § 106.71 takes care to protect the constitutional free speech rights of students and employees at public institutions that must protect constitutional rights. Nonetheless, abuse of speech unprotected by the First Amendment, when such speech amounts to intimidation, threats, or coercion for the purpose of chilling exercise of a person’s Title IX rights, is prohibited retaliation. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 parties to discuss the allegations under investigation, and to gather and present evidence—furthers the Department’s interest in promoting a fair investigation that gives both parties meaningful opportunity to participate in advancing the party’s own interests in case, while abuses of a party’s ability to discuss the allegations can be addressed through tort law and retaliation prohibitions. The Department recognizes commenters’ concerns that some discussion about the allegations under investigation may fall short of retaliation or tortious conduct, yet still cause harmful effects. For example, discussion and gossip about the allegations may negatively impact a party’s social relationships. For the above reasons, the Department believes that the benefits of § 106.45(b)(5)(iii), for both parties, outweigh the harm that could result from this provision. This provision, by its terms, applies only to discussion of ‘‘the allegations under investigation,’’ which means that where a complainant reports sexual harassment but no formal complaint is filed, § 106.45(b)(5)(iii) does not apply, leaving recipients discretion to impose non-disclosure or confidentiality requirements on complainants and respondents. Thus, reporting should not be chilled by this provision because it does not apply to a report of sexual harassment but only where a formal complaint is filed. One reason why the final regulations take great care to preserve a complainant’s autonomy to file or not file a formal complaint (yet still receive supportive measures either way) is because participating in a grievance process is a weighty and serious matter, and each complainant should have control over whether or not to undertake that process.1162 Once allegations are made in a formal complaint, a fair grievance process requires that both parties have every opportunity to fully, meaningfully participate by locating evidence that furthers the party’s interests and by confiding in others to receive emotional support and for other personally expressive purposes. The Department believes that this provision, by its plain language, limits the scope of what can be discussed, and laws prohibiting tortious speech and invasion of privacy, 1162 As discussed elsewhere in the preamble, including in the ‘‘Formal Complaint’’ subsection of the ‘‘Section 106.30 Definitions’’ section, the decision to initiate a grievance process against the wishes of a complainant is one that must be undertaken only when the Title IX Coordinator determines that signing a formal complaint initiating a grievance process against a respondent is not clearly unreasonable in light of the known circumstances. PO 00000 Frm 00272 Fmt 4701 Sfmt 4700 and retaliation prohibitions, protect all parties against abusive ‘‘discussion’’ otherwise permitted by this provision. The Department has considered carefully the concerns of several commenters who believe this provision will lead to witness tampering or intimidation, or otherwise interfere with a proper investigation. As to witness intimidation, such conduct is prohibited under § 106.71(a). As to whether a party approaching or speaking to a witness could constitute ‘‘tampering,’’ the Department believes that generally, a party’s communication with a witness or potential witness must be considered part of a party’s right to meaningfully participate in furthering the party’s interests in the case, and not an ‘‘interference’’ with the investigation. However, where a party’s conduct toward a witness might constitute ‘‘tampering’’ (for instance, by attempting to alter or prevent a witness’s testimony), such conduct also is prohibited under § 106.71(a). Some commenters were particularly concerned that a party’s communication with a witness could result in the witness telling a different story to the party than the witness is willing to tell an investigator; any such inconsistencies or discrepancies would be taken into account by the parties, investigator, and decision-maker but do not necessarily constitute ‘‘interference’’ with the investigation by the party who spoke with the witness. Furthermore, in some situations, a party may not know the identity of witnesses until discussing the situation with others (for example, asking a roommate who was at the party at which the alleged incident occurred so as to discover whether any party attendees witnessed relevant events); thus, the Department declines to require that only recipients (or their investigators) may communicate with witnesses or potential witnesses. With respect to commenters concerned about applying this provision in elementary and secondary schools, the Department disagrees that this provision forbids a school principal from warning students not to speak ‘‘maliciously’’ since malicious discussion intended to interfere with the other party’s Title IX rights would constitute prohibited retaliation. For the reasons discussed above, the Department declines to narrow or modify this provision per commenters’ various suggestions. The Department believes that parties, not recipients, should determine who has a ‘‘need to know’’ about the allegations in order to provide advice, support, or assistance to a party during a grievance process; for similar reasons, recipients should not E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations determine what information to label ‘‘confidential.’’ Limiting a party’s discussions to ‘‘neutral’’ communications, or to communications solely for the purpose of gathering evidence, would deprive the parties of the benefits discussed above, such as seeking emotional support and using the party’s experience to express viewpoints on the larger issues of sexual violence or Title IX policies and procedures; for the same reasons the Department declines to narrow this provision to allow discussion only with advisors or to require a warning to parties that neither party should ‘‘aggravate the problem.’’ This provision does not affect a recipient’s discretion to restrict parties from contact or communication with each other through, e.g., mutual nocontact orders that meet the definition of supportive measures in § 106.30. Where ‘‘disparaging communications’’ are unprotected under the Constitution and violate tort laws or constitute retaliation, such communications may be prohibited without violating this provision. This provision applies to discussion of ‘‘the allegations under investigation’’ and not to the evidence subject to the parties’ inspection and review under § 106.45(b)(5)(vi). Changes: The final regulations add § 106.71 prohibiting retaliation. Section 106.45(b)(5)(iv) Advisors of Choice Supporting Presence and Participation of Advisors Comments: Some commenters supported allowing parties to have an advisor present because of the severe nature of Title IX charges and the potentially life-altering consequences. Commenters argued the proposed regulations would promote due process and give students more control over the proceedings. Other commenters supported allowing students to have an advisor because it will reduce the risk of false findings by allowing students to avail themselves of an advisor’s expertise. Some commenters supported this provision believing the proposed regulations will reconcile Title IX proceedings with protections that are offered in analogous proceedings, such as criminal trials. Discussion: The Department appreciates the general support from commenters regarding § 106.45(b)(5)(iv), which requires recipients to provide all parties with the same opportunities to have advisors present in Title IX proceedings and to also have advisors participate in Title IX proceedings, subject to equal restrictions on advisors’ participation, in recipients’ discretion. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 We share commenters’ beliefs that this provision will make the grievance process substantially more thorough and fairer and that the resulting outcomes will be more reliable. The Department recognizes the high stakes for all parties involved in sexual misconduct proceedings under Title IX, and that the outcomes of these cases can carry potentially life-altering consequences, and thus believes every party should have the right to seek advice and assistance from an advisor of the party’s choice. However, providing parties the right to select an advisor of choice does not align with the constitutional right of criminal defendants to be provided with effective representation. The more rigorous constitutional protection provided to criminal defendants is not necessary or appropriate in the context of administrative proceedings held by an educational institution rather than by a criminal court. To better clarify that parties’ right to an advisor of choice differs from the right to legal representation in a criminal proceeding, the final regulations revise § 106.45(b)(5)(iv) to specify that the advisor of choice may be, but is not required to be, an attorney. Changes: To clarify that a recipient may not limit the choice or presence of an advisor we have added ‘‘or presence’’ to § 106.45(b)(5)(iv), and we have added language in this section to clarify that a party’s advisor may be, but is not required to be, an attorney. Fairness Considerations Comments: Some commenters argued that § 106.45(b)(5)(iv) is not survivorcentered and will tip the scales in favor of wealthy students who can afford counsel. Discussion: The Department believes that by permitting both parties to receive guidance from an advisor of their choice throughout the Title IX proceedings, the process will be substantially more thorough and fairer and the resulting outcomes will be more reliable. In response to commenters’ concerns, the final regulations revise § 106.45(b)(5)(iv) to specify that a party’s chosen advisor may be, but is not required to be, an attorney. The Department acknowledges that a party’s choice of advisor may be limited by whether the party can afford to hire an advisor or must rely on an advisor to assist the party without fee or charge. The Department wishes to emphasize that the status of any party’s advisor (i.e., whether a party’s advisor is an attorney or not), the financial resources of any party, and the potential of any party to yield financial benefits to a recipient, must not affect the recipient’s PO 00000 Frm 00273 Fmt 4701 Sfmt 4700 30297 compliance with § 106.45. The Department believes that the clear procedural rights provided to both parties during the grievance process give both parties opportunity to advance each party’s respective interests in the case, regardless of financial ability. Further, while the final regulations do not require the recipient to pay for parties’ advisors, nothing the in the final regulations precludes a recipient from choosing to do so. Changes: We have added language in § 106.45(b)(5)(iv) to clarify that a party’s advisor may be, but is not required to be, an attorney. Conflicts of Interest, Confidentiality, and Union Issues Comments: Commenters argued that student-picked advisors will have a conflict of interest and will raise confidentiality issues. Other commenters expressed concern that § 106.45(b)(5)(iv) may conflict with a union’s duty of providing fair representation in the grievance process. One commenter stated that Federal labor law and many State labor laws already provide that an employee subject to investigatory interviews may have a union representative present for a meeting that might lead to discipline. Discussion: The Department acknowledges the concerns raised by commenters regarding potential conflicts of interest and confidentiality issues arising from permitting the presence or participation of advisors of a party’s choice in Title IX proceedings, and potential conflict with labor union duties in grievance processes. With respect to potential conflicts of interest, we believe that parties are in the best position to decide which individuals should serve as their advisors. Advisors, for example, may be friends, family members, attorneys, or other individuals with whom the party has a trusted relationship. The Department believes it would be inappropriate for it to second guess this important decision. With respect to confidentiality, the Department notes that commenters who raised this issue did not explain exactly how parties’ confidentiality interests would be compromised by permitting them to have an advisor of choice to attend or participate in Title IX proceedings. As explained more fully in the ‘‘Section 106.6(e) FERPA’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble, we note that § 106.6(e) of the final regulations makes it clear that the final regulations should be interpreted to be consistent with a recipient’s obligations under FERPA. Recipients may require advisors to use E:\FR\FM\19MYR2.SGM 19MYR2 30298 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the evidence received for inspection and review under § 106.45(b)(5)(vi) as well as the investigative report under § 106.45(b)(5)(vii) only for purposes of the grievance process under § 106.45 and require them not to further disseminate or disclose these materials. Additionally, these final regulations do not prohibit a recipient from using a non-disclosure agreement that complies with these final regulations and other applicable laws. Lastly, it is not the intent of the Department to undermine the important role that union advisors may play in grievance proceedings. However, we wish to clarify that in the event of an actual conflict between a union contract or practice and the final regulations, then the final regulations would have preemptive effect.1163 We note that the final regulations do not preclude a union lawyer from serving as an advisor to a party in a proceeding. Changes: None. Modification Requests Comments: Some commenters argued that § 106.45(b)(5)(iv) conflicts with past guidance from the Department. Other commenters argued that advisors should not be allowed so students can learn to speak for themselves. Some commenters opposed this provision because they believe there should be no limits on attorney participation in grievance procedures. Some commenters argued that recipients should provide each party with an advisor to assist them throughout the grievance process. Some commenters expressed concern that the presence of advisors could complicate the proceedings, for instance, if the advisor was needed to also serve as a witness, if the advisor did not wish to take part in cross-examinations, if taking part in cross-examinations would adversely affect a teacher-student relationship, or if the advisor had limited availability to attend hearings and meetings. Other commenters suggested there should be no limits placed on who can serve as an advisor and that advisors should be allowed to be fully active participants, especially on behalf of students with disabilities or international students who may need active representation by counsel. Other commenters suggested that advisors should be required to be attorneys in order to avoid unauthorized practice of law. Discussion: With respect to allowing advisors of choice, who may be 1163 For further discussion see the ‘‘Section 106.6(h) Preemptive Effect’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 attorneys, and the participation of such advisors in grievance procedures, these final regulations take a similar approach to Department guidance, with two significant differences. The withdrawn 2011 Dear Colleague Letter stated that recipients could ‘‘choose’’ to allow students to be represented by lawyers during grievance procedures and directed that any rules about a lawyer’s appearance or participation must apply equally to both parties.1164 These final regulations better align the Department’s approach to advisors of choice for Title IX purposes with the Clery Act as amended by VAWA,1165 clarifying that in a Title IX grievance process recipients must allow parties to select advisors of the parties’ choice, who may be, but need not be, attorneys, while continuing to insist that any restrictions on the active participation of advisors during the grievance process must apply equally to both parties. Unlike Department guidance or Clery Act regulations, these final regulations implementing Title IX specify that when live hearings are held by postsecondary institutions, the recipient must permit a party’s advisor to conduct crossexamination on behalf of a party.1166 The Department believes that requiring recipients to allow both parties to have an advisor of their own choosing accompany them throughout the Title IX grievance process, and also to participate within limits set by recipients, is important to ensure fairness for all parties. For discussion of the reasons why cross-examination at a live hearing must be conducted by a party’s advisor rather than by parties personally, see the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. As discussed above, the Department believes that § 106.45(b)(5)(iv) will help to make the grievance process substantially more thorough and fairer, and the resulting outcomes more reliable. While nothing in the final regulations discourages parties from speaking for themselves during the proceedings, the Department believes it is important that each party have the right to receive advice and assistance 1164 E.g., 2011 Dear Colleague Letter at 11 (‘‘While OCR does not require schools to permit parties to have lawyers at any stage of the proceedings, if a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for both parties. Additionally, any school-imposed restrictions on the ability of lawyers to speak or otherwise participate in the proceedings should apply equally.’’). 1165 For discussion of the Clery Act and these final regulations, see the ‘‘Clery Act’’ subsection of the ‘‘Miscellaneous’’ section of this preamble. 1166 Section 106.45(b)(6)(i). PO 00000 Frm 00274 Fmt 4701 Sfmt 4700 navigating the grievance process. As such, we decline to forbid parties from obtaining advisors of choice. Section 106.45(b)(5)(iv) (allowing recipients to place restrictions on active participation by party advisors) and the revised introductory sentence to § 106.45(b) (requiring any rules a recipient adopts for its grievance process other than rules required under § 106.45 to apply equally to both parties) would, for example, permit a recipient to require parties personally to answer questions posed by an investigator during an interview, or personally to make any opening or closing statements the recipient allows at a live hearing, so long as such rules apply equally to both parties. We do not believe that specifying what restrictions on advisor participation may be appropriate is necessary, and we decline to remove the discretion of a recipient to restrict an advisor’s participation so as not to unnecessarily limit a recipient’s flexibility to conduct a grievance process that both complies with § 106.45 and, in the recipient’s judgment, best serves the needs and interests of the recipient and its educational community. The Department therefore disagrees that the final regulations should prohibit recipients from imposing any restrictions on the participation of advisors, including attorneys, in the Title IX grievance process.1167 These final regulations ensure that a party’s advisor of choice must be included in the party’s receipt of, for instance, evidence subject to party inspection and review,1168 and the investigative report,1169 so that a party’s advisor of choice is fully informed throughout the investigation in order to advise and assist the party. The Department understands the concerns of commenters who raised the question of whether acting as a party’s advisor of choice could constitute the practice of law such that parties will feel obligated to hire licensed attorneys 1167 As discussed in the ‘‘Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live Hearing with Cross-Examination’’ subsection of the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, the final regulations make one exception to the provision in § 106.45(b)(5)(iv) that recipients have discretion to restrict the extent to which party advisors may actively participate in the grievance process: Where a postsecondary institution must hold a live hearing with crossexamination, such cross-examination must be conducted by party advisors. 1168 Section 106.45(b)(5)(vi) (evidence subject to inspection and review must be sent electronically or in hard copy to each party and the party’s advisor of choice). 1169 Section 106.45(b)(5)(vii) (a copy of the investigative report must be sent electronically or in hard copy to each party and the party’s advisor of choice). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations as advisors of choice, to avoid placing non-attorney advisors (such as a professor, friend, or advocacy organization volunteer) in the untenable position of potentially violating State laws that prohibit the unauthorized practice of law.1170 While the issues raised by allegations of sexual misconduct may make it preferable or advisable for one or both parties to receive legal advice or obtain legal representation, the Department recognizes school disciplinary proceedings, including the grievance process required under these final regulations, as an administrative setting that does not require either party to be represented by an attorney. The Department believes that the § 106.45 grievance process sets forth clear, transparent procedural rules that enable parties and non-lawyer party advisors effectively to navigate the grievance process. Because the grievance process occurs in an educational setting and does not require court appearances or detailed legal knowledge, the Department believes that assisting a party to a grievance process is best viewed not as practicing law, but rather as providing advocacy services to a complainant or respondent. The Department concludes that with respect to Title IX proceedings the line between assisting a party, and providing legal representation to the party, is a line that has been and will continue to be, an issue taken into consideration by students, recipients, and advocates pursuant to the variety of State unauthorized practice of law statutes. The Department notes that some commenters argued that the grievance process is complex and frequently intersects with legal proceedings (for example, when a complainant sues the respondent for civil assault or battery, or files a police report that results in a criminal proceeding against the respondent), and that legal representation would benefit both parties to a Title IX proceeding.1171 The 1170 E.g., Michelle Cotton, Experiment, Interrupted: Unauthorized Practice of Law Versus Access to Justice, 5 DePaul J. for Social Justice 179, 188–89 (2012) (‘‘Most States continue to have broad definitions of the practice of law and broad concepts of [unauthorized practice of law] UPL that prevent or inhibit the involvement of nonlawyers in providing assistance to unrepresented persons.’’); Derek A. Denckla, Nonlawyers and the Unauthorized Practice of Law: An Overview of the Legal and Ethical Parameters, 67 Fordham L. Rev. 2581, 2585–88 (1999) (noting that in every state, nonlawyers are generally prohibited from practicing law, that the definition of unauthorized practice of law (UPL) varies widely from jurisdiction to jurisdiction, and that exceptions to what constitutes UPL often include appearing in administrative proceedings). 1171 E.g., Merle H. Weiner, Legal Counsel for Survivors of Campus Sexual Violence, 29 Yale J. of VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Department leaves recipients flexibility and discretion to determine whether a recipient wishes to provide legal representation to parties in a grievance process, but the final regulations do not restrict the right of each party to select an advisor with whom the party feels most comfortable and believes will best assist the party, and thus clarifies in this provision that the party’s advisor of choice may be, but is not required to be, an attorney. The Department acknowledges commenters’ concerns that advisors may also serve as witnesses in Title IX proceedings, or may not wish to conduct cross-examination for a party whom the advisor would otherwise be willing to advise, or may be unavailable to attend all hearings and meetings. Notwithstanding these potential complications that could arise in particular cases, the Department believes it would be inappropriate to restrict the parties’ selection of advisors by requiring advisors to be chosen by the recipient, or by precluding a party from selecting an advisor who may also be a witness. The Department notes that the § 106.45(b)(1)(iii) prohibition of Title IX personnel having conflicts of interest or bias does not apply to party advisors (including advisors provided to a party by a postsecondary institution as required under § 106.45(b)(6)(i)), and thus, the existence of a possible conflict of interest where an advisor is assisting one party and also expected to give a statement as a witness does not violate the final regulations. Rather, the perceived ‘‘conflict of interest’’ created under that situation would be taken into account by the decision-maker in weighing the credibility and persuasiveness of the advisor-witness’s testimony. We further note that live hearings with cross-examination conducted by party advisors is required only for postsecondary institutions, and the requirement for a party’s advisor to conduct cross-examination on a party’s behalf need not be more extensive than simply relaying the party’s desired questions to be asked of other parties and witnesses.1172 Changes: We have added language in § 106.45(b)(5)(iv) to clarify that a party’s advisor may be, but is not required to be, an attorney. L. & Feminism 123 (2017) (arguing that campuses should provide student survivors with legal representation, and noting that providing accused students with legal representation is also beneficial). 1172 For further discussion see the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. PO 00000 Frm 00275 Fmt 4701 Sfmt 4700 30299 Section 106.45(b)(5)(v) Written Notice of Hearings, Meetings, and Interviews Comments: Several commenters supported § 106.45(b)(5)(v) because it will promote fairness, due process, and increase the likelihood of reaching an accurate result. One commenter shared a personal story of a family member with a disability who was not allowed to prepare a defense after being accused of sexual harassment. Other commenters supported this provision believing it offers the same protections that would be offered in a criminal trial. Other commenters supported this provision believing it will limit the abuse of power that can be wielded under Title IX investigations. Discussion: The Department agrees with commenters who supported this provision on the grounds that it will promote fairness, provides both parties with due process protections, and increase the likelihood of reaching an accurate result. The Department believes that written notice of investigative interviews, meetings, and hearings, with time to prepare, permits both parties meaningfully to advance their respective interests during the grievance process, which helps ensure that relevant evidence is gathered and considered in investigating and adjudicating allegations of sexual harassment. Changes: None. Comments: Several commenters argued that the proposed regulations, including § 106.45(b)(5)(v), would be burdensome by requiring recipients to provide written notice, placing them under time constraints, adding administrative layers, and that these burdens would be particularly difficult for elementary and secondary schools. Discussion: The Department acknowledges the concern of commenters that § 106.45(b)(5)(v) will place a burden on recipients, including elementary and secondary schools, but believes the burden associated with providing this notice is outweighed by the due process protections such notice provides. Because the stakes are high for both parties in a grievance process, both parties should receive notice with sufficient time to prepare before participating in interviews, meetings, or hearings associated with the grievance process, and written notice is better calculated to effectively ensure that parties are apprised of the date, time, and nature of interviews, meetings, and hearings than relying solely on notice in the form of oral communications. For example, if a party receives written notice of the date of an interview, and needs to request rescheduling of the E:\FR\FM\19MYR2.SGM 19MYR2 30300 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations date or time of the interview due to a conflict with the party’s class schedule, the recipient and parties benefit from having had the originally-scheduled notice confirmed in writing so that any rescheduled date or time is measured accurately against the original schedule. We note that nothing in these final regulations precludes a recipient from also conveying notice via in-person, telephonic, or other means of conveying the notice, in addition to complying with § 106.45(b)(5)(v) by sending written notice. Changes: We have made nonsubstantive revisions to § 106.45(b)(5)(v), such as changing ‘‘the’’ to ‘‘a’’ in the opening clause ‘‘Provide to a party’’ and adding a comma after ‘‘invited or expected,’’ for clarity. Comments: Some commenters argued that the procedures required by the proposed regulations are not suited to the campus environment where proceedings should not be adversarial, where notice of hearings might allow accused students time to destroy evidence and prepare alibis, and where it will contribute to underreporting as complainants will feel a loss of control or bullied because the proposed regulations are not informed by a victim-centered perspective. Discussion: The Department disagrees that § 106.45(b)(5)(v), or the final regulations overall, increase the adversarial nature of sexual misconduct proceedings or incentivize any party to fabricate or destroy evidence. Allegations of sexual harassment often present an inherently adversarial situation, where parties have different recollections and perspectives about the incident at issue. The final regulations do not increase the adversarial nature of such a situation, but the § 106.45 grievance process (including this provision requiring written notice to both parties with time to prepare to participate in interviews and hearings) helps ensure that the adversarial nature of sexual harassment allegations are investigated and adjudicated impartially by the recipient with meaningful participation by the parties whose interests are adverse to each other.1173 Accordingly, the final regulations require schools to investigate and 1173 E.g., Pennsylvania v. Finley, 481 U.S. 551, 568 (1987) (‘‘The very premise of our adversarial system . . . is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.’’) (internal quotation marks and citation omitted); see also Tolan v. Cotton, 572 U.S. 650, 660 (2014) (‘‘The witnesses on both sides come to this case with their own perceptions, recollections, and even potential biases. It is in part for that reason that genuine disputes are generally resolved by juries in our adversarial system.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 adjudicate formal complaints of sexual harassment, and to give complainants and respondents a meaningful opportunity to participate in the investigation that increases the likelihood that the recipient will reach an accurate, reliable determination regarding the respondent’s responsibility. The Department does not agree that providing the parties with advance notice of investigative interviews, meetings, and hearings increases the likelihood that any party will concoct alibis or destroy evidence. The final regulations contain provisions that help ensure that false statements (e.g., making up an alibi) or destruction of evidence will be revealed during the investigation and taken into account in reaching a determination. For example, § 106.45(b)(2) requires the initial written notice to the parties to include a statement about whether the recipient’s code of conduct prohibits false statements, and § 106.45(b)(5)(vi) gives both parties equal opportunity to inspect and review all evidence gathered by the recipient that is directly related to the allegations, such that if relevant evidence seems to be missing, a party can point that out to the investigator, and if it turns out that relevant evidence was destroyed by a party, the decision-maker can take that into account in assessing the credibility of parties, and the weight of evidence in the case. The Department disagrees that § 106.45(b)(5)(v) will contribute to underreporting because complainants will feel a loss of control or bullied, or feel chilled from reporting, or that this provision is not informed by a victimcentered perspective. The Department believes this provision provides a fundamental and essential due process protection that equally benefits complainants and respondents by giving both parties advance notice of interviews, meetings, and hearings so that each party can meaningfully participate and assert their respective positions and viewpoints through the grievance process.1174 This is an important part of ensuring that the grievance process reaches accurate determinations, which in turn ensures that schools, colleges, and universities know when and how to provide remedies to victims of sex discrimination in the form of sexual harassment. Changes: None. 1174 Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (‘‘The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ’’) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). PO 00000 Frm 00276 Fmt 4701 Sfmt 4700 Comments: Some commenters suggested that recipients should only be required to give respondents notice of charges, not necessarily of interviews, in order to reflect the standards set by VAWA. Some commenters suggested that the final regulations should require an advisor be copied on all correspondence between the institutions and the parties. Discussion: The Department disagrees with the commenters who suggested that recipients should only be required to give respondents notice of charges, not necessarily of interviews, in order to reflect the standards set by Section 304 of VAWA. The commenter offered no rationale for why the approach under VAWA is superior to the § 106.45(b)(5)(v) requirements in this regard, and the Department believes that parties are entitled to notice of interviews, meetings, and hearings where the party’s participation is expected or invited; otherwise, a party may miss critical opportunities to advance the party’s interests during the grievance process. To clarify that this provision intends for notice to be given only to the party whose participation is invited or expected, we have made nonsubstantive revisions to the language of this provision to better convey that intent. Because this provision is consistent with the VAWA provision cited by commenters, even though this provision requires more notice than the VAWA provision, the Department sees no conflict raised for recipients who must comply with both VAWA and Title IX. We note that the final regulations do require that copies of the evidence subject to the parties’ inspection and review, and a copy of the investigative report, must be sent (electronically or in hard copy) to the parties and to the parties’ advisors, if any. The Department appreciates commenters’ request that advisors be copied on all correspondence between recipients and the parties, but declines to impose such a rule in order to preserve a recipient’s discretion under § 106.45(b)(5)(iv) to limit the participation of party advisors, and to preserve a party’s right to decide whether or not, for what purposes, and at what times, the party wishes for an advisor of choice to participate with the party. Nothing in the final regulations precludes a recipient from adopting a practice of copying party advisors on all notices sent under § 106.45(b)(5)(v), so long as the recipient complies with the revised introductory sentence of § 106.45(b) by ensuring that such a practice applies equally with respect to both parties. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Changes: We have revised the language in § 106.45(b)(5)(v) to more clearly convey that notice must be sent to a party when that party’s participation is invited or expected with respect to any meeting, interview, or hearing during the grievance process, by changing ‘‘the’’ to ‘‘a’’ in the clause ‘‘Provide to a party’’ in this provision. Section 106.45(b)(5)(vi) Inspection and Review of Evidence Directly Related to the Allegations, and Directed Question 7 Comments: Many commenters expressed support for § 106.45(b)(5)(vi) and asserted that the proposed regulations seek the equal treatment of complainants and respondents. One commenter asserted that the proposed regulations would remedy sex-biased investigations and included citations to circuit court cases involving male students challenging the Title IX processes at institutions that suspended or expelled the male students for sexual misconduct. A different commenter stated that the proposed regulations would restore fairness and provide full disclosure to both parties so that they can adequately prepare defenses and present additional facts and witnesses. Another commenter concluded that the proposed regulations would ensure justice for complainants and protection for those falsely accused. A number of commenters shared stories of their personal experiences with recipients withholding information from parties in a Title IX proceeding. One commenter concluded that both parties having access to all of the evidence will ensure a fair process for both parties. Many commenters remarked that a Title IX investigator should not have unilateral authority to deem certain evidence ‘‘irrelevant.’’ Another commenter stated that schools should not hinder evidence reviews with short or limited time windows. One commenter stated that all evidence collected, including evidence collected by law enforcement, should be made available to the respondent. Some commenters concluded that the electronic view-only format is unreasonable. Other commenters stated that all of the evidence should be provided to the parties to download and review on their own. The commenters remarked that this was necessary, especially in complex cases where review of the evidence would take a significant period of time. Some of these commenters also argued that any effort on the part of a recipient to limit a party’s access to the evidence should be viewed as a bad faith effort to negatively impact the proceeding. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 While generally supportive of the provision, one commenter argued that the final regulations should require that the investigator incorporate the parties’ responses into the final investigative report. Another generally supportive commenter proposed the inclusion of a party’s right to call an external investigator. A different commenter supported the adoption of a special master to oversee the adjudicative process. Some commenters agreed with the ten-day review and comment requirement, determining that it is an appropriate period for allowing the parties to read and provide written responses. Another commenter stated that the exchange of information between the parties will result in expedited hearings. One supporter of the provision requested that the Department include a provision that would inform the parties of the consequences of submitting false information to the investigator. A number of commenters opposed § 106.45(b)(5)(vi). One commenter concluded that the proposed regulations, including this provision, were antithetical to the purpose of Title IX. Another commenter called this provision a blunt solution to a nuanced problem that attempts to solve the ‘‘canard’’ of false allegations. The commenter added that the Department fails to see the issue through a victimcentered lens, pointing out that the term ‘‘trauma’’ is used only once in the NPRM. The same commenter stated that this provision is not informed by best practices for working with trauma survivors. One commenter argued that the proposed regulations would lead to retaliation and witness tampering. Another commenter stated that § 106.45(b)(5)(vi) would ‘‘revictimize’’ complainants. Many commenters stated that this provision will hamstring and compromise investigations, would likely chill the reporting process, is part of the administration’s indifference to sexual violence, and will have negative effects on safety and fairness. One commenter concluded that the proposed rules would allow institutions to turn a ‘‘blind eye’’ to sexual violence on campus. One commenter wrote that this provision ‘‘fails to adequately acknowledge the seriousness and complexity of sexual misconduct on college campuses’’ and called for a simpler, fairer, and more responsive approach. A different commenter argued that § 106.45(b)(5)(vi) would deter reporting, create difficulties in maintaining student privacy, and make PO 00000 Frm 00277 Fmt 4701 Sfmt 4700 30301 Title IX cases more time-consuming and expensive. According to this commenter, this provision did not account for the potential for reputational damage and that it eliminates key aspects of the discretion that enables institutions to act in the ‘‘best interests of all parties.’’ Another commenter concluded that this provision is ‘‘unhelpful and hurtful’’ to victims, which, the commenter opined, may be the purpose of the provision. One commenter stated that the provision allows evidence of past sexual conduct to be presented in an investigation and that such history would be raised to shame complainants. Another commenter concluded that this provision would result in the respondent being able to coerce new witnesses because the ‘‘regulations allow that.’’ The same commenter also stated that the Department’s focus on due process is misplaced because there is no due process problem until corrective action is proposed. A different commenter concluded that the provision is a barrier to effective investigation and resolution of Title IX grievances, calling it an ‘‘unacceptable’’ and ‘‘untimely’’ step. The same commenter proposed eliminating the ten-day period for review of the collected evidence or, conversely, the inclusion of a requirement that each party must have a reasonable opportunity to review the evidence and provide feedback while the investigation is ongoing, but without a set timeline. One commenter stated that fair notice and an opportunity to respond does not require discovery of all evidence ‘‘directly related’’ to the allegations, where the evidence will not be relied upon in making a responsibility determination. Similarly, the commenter argued that requiring recipients to turn over all evidence directly related to the allegations was overbroad and may result, ultimately, in less information being shared by parties during the investigation. Another commenter argued that no rational basis exists for requiring the disclosure of evidence not relied upon in reaching a determination. The commenter added that the provision is extremely confusing and benefits no one. Many commenters questioned why the Department would allow parties to review evidence upon which the decision-maker does not intend to rely upon in adjudicating the claim. These commenters agreed that only relevant information should be shared with the parties. One of these commenters concluded that the provision ‘‘further legalizes’’ the process. E:\FR\FM\19MYR2.SGM 19MYR2 30302 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Another commenter argued that, under current judicial precedent, no formal right to discovery exists in a student disciplinary hearing. One commenter argued in favor of the recipient only sharing information with the parties, allowing them to determine whether the information should be shared with their advisor. Many commenters supported limitations on the information being shared, including the exclusion or redaction of medical, psychological, financial, sexual history, or other personal and private information that has ‘‘no bearing’’ on the investigative report. One commenter argued in favor of permitting schools to release information to the parties based upon the individual circumstances of the case. The commenter stated that this information would unnecessarily violate the privacy of the disclosing parties and would prevent investigators from gathering evidence out of fear that personal information would need to be revealed. The commenter concluded that the result would be ‘‘truly harmful and possibly destructive to anyone who would engage in the formal Title IX process.’’ A different commenter concluded that there is no purpose to sharing this information except to intrude into the privacy of the parties. Commenters stated that the final regulations would allow the improper, and potentially widespread, sharing of confidential information and incentivize respondents to ‘‘slip in’’ prejudicial information to undermine the process. A number of commenters concluded that students would be less likely to report sexual harassment and sexual violence if investigations are not conducted properly because there is no incentive for schools to actually investigate. The commenter stated that, if enacted, the proposed rules would harm many students who ‘‘face these problems every day.’’ A number of commenters concluded that schools should not be required to disclose irrelevant information and that institutions should be allowed to place ‘‘reasonable restrictions’’ on records. Some stated that an exception could be provided for a ‘‘showing of particularized relevance.’’ One commenter proposed that schools should not allow access to information they themselves cannot use. Calling the provision ‘‘utterly illogical,’’ one commenter stated that sharing irrelevant information would lead to extreme disparity of potential outcomes. Many commenters opposed the electronic sharing of evidence with the parties. They argued that no system currently exists that limits the user’s VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 ability to take pictures of the information on the screen. One commenter was concerned that the proposed regulations do not include a requirement that the viewing of the relevant evidence be supervised and suggested the inclusion of such a provision. Some commenters argued that sharing records electronically could exacerbate gender and socioeconomic inequality and put some students at a disadvantage if they do not have access to a private computer. A number of commenters proposed sharing the evidence file in hard copy format. Some of these commenters argued in favor of the supervised viewing of evidence files, to protect the party’s confidentiality and to prevent parties from taking photographs of the evidence, while others argued for investigators to use their discretion in redacting certain information from the files before sharing with the parties. Some commenters supported redactions for information deemed more prejudicial than probative and for ‘‘inflammatory’’ evidence. Many of these commenters expressed concern that the parties should not be allowed to take physical possession of the evidence files. Commenters who favored redactions, also argued that the final regulations unreasonably limit the discretion of investigators. These commenters argued that recipients should have the right to reasonably redact confidential and private information, including the identity of the complainant, if the recipient deems it necessary to do so. One commenter, who favored the hard copy format, argued that students with disabilities may have a difficult time reviewing the files if not submitted in hard copy. Some commenters remarked that electronic file sharing programs are cost prohibitive, leading some to conclude that such cost would prohibit institutions from paying for advisors for the parties. Many commenters asserted that the provision could run afoul of State laws, including laws regarding student privacy and the sharing of confidential information, as well as potentially violate State rape shield laws. Some commenters were also concerned about the effect of open-records statutes as a means to publicize investigative files to embarrass the opposing party. A commenter stated that the proposed regulations fail to state that the report should include all exculpatory and inculpatory evidence, which could prevent an adequate record, jeopardize the parties’ ability to make a defense, might diminish the thoroughness with which facts are considered, and unduly PO 00000 Frm 00278 Fmt 4701 Sfmt 4700 raise the risk of bias. Another commenter agreed that crafting a full report before sharing it with the parties is premature and could lead to errors, dissatisfaction, and the appearance of bias. A number of commenters pointed out that the proposed provision would require recipients to change their current processes, causing a disruption in how they handle Title IX cases on their campuses. One commenter pointed out that student conduct processes at institutions of higher education are not criminal processes and should not be expected to mirror them. The commenter stated that colleges and universities are not making criminal law decisions, but rather a policy violation determination. In addition, the commenter believed that the best policy would allow students to provide information, respond to information, and ask questions, but in a manner that is appropriate to limit creating an adversarial environment. Similarly, one commenter concluded that the final regulations place a greater burden on recipients than on a criminal prosecutor. Some commenters opposed enacting a ten-day requirement for review and responses. One commenter suggested that the ten-day timeline was an ‘‘overregulation’’ of institutions, suggesting instead that institutions should set their own time frames, so long as they are equitable. A number of commenters argued that institutions should be able to determine appropriate timelines for their own processes. Many commenters questioned whether the Department meant ten calendar days or ten business days. Another commenter suggested shortening the review period from ten to five days. A different commenter stated that the Department should not mandate any time period as, in their opinion, a uniform rule does not fit every circumstance at every school. One commenter wrote that the final regulation’s timeline is more rigid than a similar proceeding in a courtroom, where courts often expedite hearings when time is of the essence. A commenter asked for clarification as to whether the proposed regulations would require an extra ten days for reinspection of the supplemented investigative file. The same commenter also asked what, if any, guidelines should be put in place regarding supplementing the record at each stage of the adjudicative process. One commenter proposed including a non-disclosure agreement as part of the adjudicative process. Another commenter requested that the final E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations regulations should include a provision to punish institutions that have committed ‘‘wrongs’’ against respondents in the past. One commenter requested a regulatory provision that would provide meaningful consequences for violations of confidentiality, including punishment for recipients that do not implement reasonable privacy safeguards or do not permit reasonable redaction policies. One commenter requested clarification on how long institutions would be required to retain records associated with a Title IX proceeding. Another commenter requested that the Department provide an electronic platform for the storing of data associated with Title IX investigations. A number of commenters raised issues with the implementation of the final regulations in the K–12 context. Commenters stated that the majority of changes in the proposed rules were not written with a clear understanding of their application to the K–12 environment and that the proposed rules may actually hamper a school district’s ability to maintain a safe school environment. For example, the commenter stated that the extension of the timeline (for example, by imposing a ten-day period for review of evidence) impairs a K–12 recipient’s ability to effectuate meaningful change to a student’s behavior. In addition, the commenter wrote that a ‘‘battle of responses’’ will foster more hostility, not less, where there is a high likelihood that the parties will remain within the same school district. The same commenter suggested that the Department should look to provide, and detail, restorative justice options that align with best practices for effective responses to incidents of sexual harassment and sexual violence. One commenter concluded that sharing the evidence file may be appropriate at the postsecondary level, but is inappropriate at the K–12 level. Another commenter called § 106.45(b)(5)(vi) ‘‘overkill’’ in the K–12 context. A different commenter supported leaving the issue of evidence review to local school officials. One commenter stated that the ten days to review and respond was unnecessary and would needlessly lengthen K–12 investigations. Many commenters raised concerns over the burden caused by the proposed regulations on small institutions. Those commenters pointed out that sharing evidence with parties, waiting the required time period, and creating the investigative report and the parties’ responses to it is onerous, has limited benefits as a truth-seeking process, and VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 is too burdensome for institutions with only one staff member in charge of all of these responsibilities. Another commenter similarly asserted that small institutions do not currently have staff capacity to comply with § 106.45(b)(5)(vi)–(vii). A different commenter argued that continuous updates to the parties is ‘‘completely impractical’’ and ‘‘unduly burdensome’’ on the investigator, especially at small colleges. Discussion: The Department appreciates commenters’ support of § 106.45(b)(5)(vi). We believe that this provision provides complainants and respondents an equal opportunity to inspect and review evidence and provides transparent disclosure of the universe of relevant and potentially relevant evidence, with sufficient time for both parties to meaningfully prepare arguments based on the evidence that further each party’s view of the case, or present additional relevant facts and witnesses that the decision-maker should objectively evaluate before reaching a determination regarding responsibility, including the right to contest the relevance of evidence. The Department is sensitive to commenters’ concerns regarding the parties sharing irrelevant information, as well as relevant information that is relevant but also highly sensitive and personal, as part of the investigative process. This concern, however, must be weighed against the demands of due process and fundamental fairness, which require procedures designed to promote accuracy through meaningful participation of the parties. The Department believes that the right to inspect all evidence directly related to the allegations is an important procedural right for both parties, in order for a respondent to present a defense and for a complainant to present reasons why the respondent should be found responsible. This approach balances the recipient’s obligation to impartially gather and objectively evaluate all relevant evidence, including inculpatory and exculpatory evidence, with the parties’ equal right to participate in furthering each party’s own interests by identifying evidence overlooked by the investigator and evidence the investigator erroneously deemed relevant or irrelevant and making arguments to the decision-maker regarding the relevance of evidence and the weight or credibility of relevant evidence. In response to commenters’ suggestions, we have added phrasing in § 106.45(b)(5)(vi) to emphasize that the evidence gathered and sent to the parties for inspection and review is evidence ‘‘directly related PO 00000 Frm 00279 Fmt 4701 Sfmt 4700 30303 to the allegations’’ which must specifically include ‘‘inculpatory or exculpatory evidence whether obtained from a party or other source.’’ Such inculpatory or exculpatory evidence (related to the allegations) may, therefore, be gathered by the investigator from, for example, law enforcement where a criminal investigation is occurring concurrently with the recipient’s Title IX grievance process. While it may be true in some respects that this provision affords parties greater protection than some courts have determined is required under constitutional due process or concepts of fundamental fairness, that does not necessarily mean that protections such as those contained in § 106.45 are not desirable features of a consistent, transparent grievance process that enhances the fairness and truth-seeking function of the process.1175 In response to commenters’ concerns about disclosure of private medical, psychological, and similar treatment records, these final regulations provide in § 106.45(b)(5)(i) that a recipient cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains the party’s voluntary, written consent to do so for a grievance process under § 106.45. If the party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a ‘‘parent,’’ as defined in 34 CFR 99.3.1176 Accordingly, a recipient will not access, consider, disclose, or otherwise use some of the most sensitive documents about a party without the party’s (or the parent of the party’s) voluntary, written consent, regardless of whether the recipient already has possession of such treatment records, even if the records are relevant. This provision adequately addresses commenter’s concerns about sensitive information that may be shared with the other party pursuant to 1175 For further discussion see the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. 1176 34 CFR 99.3 is part of regulations implementing FERPA; for further discussion of the intersection between FERPA and these final regulations, see the ‘‘Section 106.6(e) FERPA’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30304 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations § 106.45(b)(5)(vi). Non-treatment records and information, such as a party’s financial or sexual history, must be directly related to the allegations at issue in order to be reviewed by the other party under § 106.45(b)(5)(vi), and all evidence summarized in the investigative report under § 106.45(b)(5)(vii) must be ‘‘relevant’’ such that evidence about a complainant’s sexual predisposition would never be included in the investigative report and evidence about a complainant’s prior sexual behavior would only be included if it meets one of the two narrow exceptions stated in § 106.45(b)(6)(i)–(ii) (deeming all questions and evidence about a complainant’s sexual predisposition ‘‘not relevant,’’ and all questions and evidence about a complainant’s prior sexual behavior ‘‘not relevant’’ with two limited exceptions). The Department declines to define certain terms in this provision such as ‘‘upon request,’’ ‘‘relevant,’’ or ‘‘evidence directly related to the allegations,’’ as these terms should be interpreted using their plain and ordinary meaning. We note that ‘‘directly related’’ in § 106.45(b)(5)(vi) aligns with requirements in FERPA, 20 U.S.C. 1232g(a)(4)(A)(i).1177 We also acknowledge that ‘‘directly related’’ may sometimes encompass a broader universe of evidence than evidence that is ‘‘relevant.’’ However, the § 106.45 grievance process is geared toward reaching reliable, accurate outcomes in a manner that keeps the burden of collecting and evaluating relevant evidence on the recipient while giving both parties equally strong, meaningful opportunities to present, point out, and contribute relevant evidence, so that ultimately the decision-maker objectively evaluates relevant evidence and understands the parties’ respective views and arguments about how and why evidence is persuasive or should lead to the outcome desired by the party. The Department therefore believes it is important that at the phase of the investigation where the parties have the opportunity to review and respond to evidence, the universe of that exchanged evidence should include all evidence (inculpatory and exculpatory) that relates to the allegations under investigation, without the investigator having screened out evidence related to the allegations that the investigator does not believe is relevant. The parties should have the 1177 For further discussion see the ‘‘Section 106.6(e) FERPA’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 opportunity to argue that evidence directly related to the allegations is in fact relevant (and not otherwise barred from use under § 106.45), and parties will not have a robust opportunity to do this if evidence related to the allegations is withheld from the parties by the investigator. For example, an investigator may discover during the investigation that evidence exists in the form of communications between a party and a third party (such as the party’s friend or roommate) wherein the party characterizes the incident under investigation. If the investigator decides that such evidence is irrelevant (perhaps from a belief that communications before or after an incident do not make the facts of the incident itself more or less likely to be true), the other party should be entitled to know of the existence of that evidence so as to argue about whether it is relevant. The investigator would then consider the parties’ viewpoints about whether such evidence (directly related to the allegations) is also relevant, and on that basis decide whether to summarize that evidence in the investigative report. A party who believes the investigator reached the wrong conclusion about the relevance of the evidence may argue again to the decision-maker (i.e., as part of the party’s response to the investigative report, and/or at a live hearing) about whether the evidence is actually relevant, but the parties would not have that opportunity if the evidence had been screened out by the investigator (that is, deemed irrelevant) without the parties having inspected and reviewed it as part of the exchange of evidence under § 106.45(b)(5)(vi). In response to commenters’ concerns that proposed § 106.45(b)(5)(vi) unduly imposed costly or burdensome restrictions by specifying that the evidence sent to the parties must be ‘‘in an electronic format, such as a file sharing platform, that restricts the parties and advisors from downloading or copying the evidence,’’ we have removed reference to a file-sharing platform and revised this provision to state that recipients must send the evidence subject to inspection and review to each party, and the party’s advisor (if any), in electronic format or hard copy. Under the final regulations, therefore, recipients are neither required nor prohibited from using a file sharing platform that restricts parties and advisors from downloading or copying the evidence. Recipients may require parties and advisors to refrain from disseminating the evidence (for instance, by requiring parties and advisors to sign a non-disclosure PO 00000 Frm 00280 Fmt 4701 Sfmt 4700 agreement that permits review and use of the evidence only for purposes of the Title IX grievance process), thus providing recipients with discretion as to how to provide evidence to the parties that directly relates to the allegations raised in the formal complaint. With regard to the sharing of confidential information, a recipient may permit or require the investigator to redact information that is not directly related to the allegations (or that is otherwise barred from use under § 106.45, such as information protected by a legally recognized privilege, or a party’s treatment records if the party has not given written consent) contained within documents or other evidence that are directly related to the allegations, before sending the evidence to the parties for inspection and review. Further, as noted above, recipients may impose on the parties and party advisors restrictions or require a non-disclosure agreement not to disseminate any of the evidence subject to inspection and review or use such evidence for any purpose unrelated to the Title IX grievance process, as long as doing so does not violate these final regulations or other applicable laws. We reiterate that redacting ‘‘confidential’’ information is not the same as redacting information that is not ‘‘directly related to the allegations’’ because information that is confidential, sensitive, or private may still be ‘‘directly related to the allegations’’ and thus subject to review by both parties. Similarly, a recipient may permit or require the investigator to redact from the investigative report information that is not relevant, which is contained in documents or evidence that is relevant, because § 106.45(b)(5)(vii) requires the investigative report to summarize only ‘‘relevant evidence.’’ Section 106.45(b)(5)(vi) is not a ‘‘blunt solution’’ as a commenter suggested. The Department recognizes that Title IX enforcement is, in fact, a nuanced problem, and this recognition has informed the policy formation as well as the drafting and revising of this particular provision. We do not believe, as the commenter thinks, that a concern over false allegations is a ‘‘canard,’’ nor does the number of times that a particular word is used in the NPRM suggest that the Department is uninterested in, or unmoved by, best practices in the field. We disagree that § 106.45(b)(5)(vi) fails to acknowledge the ‘‘complexity’’ of sexual misconduct on college campuses, because this provision is part of a carefully prescribed grievance process that aims to ensure that the parties have E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations meaningful opportunities to participate in advancing each party’s interests in these high-stakes cases. The provision proposed in the NPRM, and revised in these final regulations, not only takes into account the complexity of sexual misconduct on college campuses, but considers, as fundamental fairness demands, the experiences and challenges faced by both complainants and respondents. The Department is sensitive to commenters’ concerns over whether the final regulations might deter the reporting of sexual harassment. The § 106.45 grievance process is designed to improve the reliability and legitimacy of recipients’ investigations and adjudications of Title IX sexual harassment allegations, and we believe that providing the parties with strong, clear procedural rights improves the fairness and legitimacy of the grievance process. We recognize that a formal grievance process is challenging, difficult, and stressful to navigate, for both complainants and respondents. It is for this reason that these final regulations ensure that parties are not inhibited from seeking support and assistance from any source (see § 106.45(b)(5)(iii)) and that parties have the right to select an advisor of choice to advise and accompany a party throughout the grievance process (see § 106.45(b)(5)(iv)). More broadly, the Department is persuaded by some commenters’ concerns that if a complainant is forced to undergo a grievance process whenever a complainant reports sexual harassment, complainants may decide not to report at all, and by other commenters’ concerns that without strong, clear procedural rights, recipients’ grievance processes will not reach reliable outcomes in which parties and public have confidence. The final regulations therefore increase the obligations on recipients to respond promptly and supportively to every complainant when the recipient receives notice that the complainant has allegedly been victimized by sexual harassment (without requiring any proof or evidence supporting the allegations) irrespective of the existence of a grievance process, promote respect for a complainant’s autonomy over whether or not to file a formal complaint that initiates a grievance process, and protect complainants from retaliation for refusing to participate in a grievance process. We have revised § 106.8, § 106.30, and § 106.44 significantly to achieve these aims and have added § 106.71. For example, § 106.8 emphasizes the need for every VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 complainant and all third parties to have clear, accessible options for how to report sexual harassment to the Title IX Coordinator; the definitions of ‘‘complainant’’ and ‘‘formal complaint’’ in § 106.30 have been revised to clarify that the choice to initiate a grievance process must remain within the control of a complainant unless the Title IX Coordinator has specific reasons justifying the filing of a formal complaint over the wishes of a complainant; § 106.44(a) now requires a recipient to offer supportive measures to a complainant with or without a formal complaint being filed using an interactive process whereby the Title IX Coordinator must discuss and take into account the complainant’s wishes regarding the supportive measures to be provided and explain to the complainant the option of filing a formal complaint; and § 106.71 protects the right of any individual to choose not to participate in a grievance process without facing retaliation. The Department intends for these final regulations to assure complainants that complainants may report sexual harassment and receive supportive measures whether or not the complainant also participates in a grievance process, and to assure complainants and respondents that a grievance process will be fair, consistent with constitutional due process, and give both parties meaningful opportunity to advance the party’s own interests regarding the case outcome, in an investigation and adjudication overseen by impartial, unbiased Title IX personnel who do not prejudge the facts at issue and objectively evaluate inculpatory and exculpatory evidence before reaching determinations regarding responsibility. The Department disagrees with commenters’ assertions that the final regulations would allow the recipient (or the respondent) to coerce witnesses, turn a ‘‘blind eye’’ to sexual violence, or ‘‘revictimize’’ complainants. As discussed above, § 106.71 prohibits retaliation (which includes coercion) against any person for participating or refusing to participate in a Title IX proceeding and § 106.44(a) requires recipients to respond to every complainant by offering supportive measures; these requirements ensure that no recipient may turn a blind eye to reported sexual violence. The § 106.45 grievance process, including allowing both parties the opportunity to inspect and review evidence directly related to the allegations, benefits complainants as much as respondents by ensuring that each party is aware of PO 00000 Frm 00281 Fmt 4701 Sfmt 4700 30305 evidence and may then make arguments that further the party’s own interests based on the evidence.1178 The Department disagrees that due process is not implicated until corrective action is proposed. Due process is not only a concern after corrective or punitive action is taken, but throughout the entire process leading to a recipient’s decision to impose corrective or disciplinary action.1179 The Department disagrees that § 106.45(b)(5)(vi)–(vii) are a barrier to effective investigations and case resolutions, and believes that to the contrary, these provisions work to guarantee effective investigations and resolutions by allowing the parties full access to the evidence gathered, and to the investigative report that summarizes relevant evidence, so the parties may make corrections, provide appropriate context, and prepare their responses and defenses before a decision-maker reaches a determination regarding responsibility. We appreciate the commenters who stated that the ten-day time frame provision is appropriate for the parties to review and respond to the evidence directly related to the allegations. We agree that the result of this provision will be expedited hearings because the parties will have had the opportunity to see, review, and consider their responses to evidence prior to showing up at a hearing. However, this provision’s purpose is not solely to speed up the process. The Department believes that this provision, in conjunction with the other provisions in § 106.45, balances the need for reasonably prompt resolution of Title IX grievance processes with the need to ensure that these grievance processes are thorough and fair. The Department understands commenters’ concerns that a ten-day time period for the parties to inspect and review evidence (and then a ten-day 1178 E.g., Monroe H. Freedman, Our Constitutionalized Adversary System, 1 Chapman L. Rev. 57, 57 (1998) (‘‘In its simplest terms, an adversary system resolves disputes by presenting conflicting views of fact and law to an impartial and relatively passive arbiter, who decides which side wins what. . . . Thus, the adversary system represents far more than a simple model for resolving disputes. Rather, it consists of a core of basic rights that recognize and protect the dignity of the individual in a free society.’’) (emphasis added); see also David L. Kirn, Proceduralism and Bureaucracy: Due Process in the School Setting, 28 Stanford L. Rev. 841, 847–48 (1976) (due process includes the right of parties to participate in the presentation of evidence, which serves the dual interest of improving the reliability of outcomes and the parties’ sense of fairness of the proceeding). 1179 For further discussion see the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30306 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations time period to review and respond to the investigative report) is too long a timeline, but we do not agree that this timeline is an ‘‘overregulation’’ or that it is more rigid than a similar proceeding in a criminal court. Instead, the Department finds that the time frame is appropriate for the parties to read and respond to the evidence subject to inspection and review, and then to the investigative report. Recipients may choose whether the ten days should be business days or calendar days (or may use a different calculation of ‘‘days’’ that works with the recipient’s administrative operations, such as ‘‘school days.’’) Although the recipient is required to provide at least ten days for inspection and review, the recipient may give the parties more than ten days to respond, bearing in mind that the recipient must conclude the grievance process within the reasonably prompt time frames to which the recipient must commit under § 106.45(b)(1)(v). Section 106.45(b)(5)(vi)–(vii) concerning inspection and review of evidence, and review of the investigative report, are not overbroad or likely to lead to information withholding, and do not force the parties to share irrelevant information. These provisions appropriately focus the investigation on evidence ‘‘directly related to the allegations’’ and to ‘‘relevant’’ evidence in furtherance of each party’s interest in permitting pertinent evidence to come to light so that any misunderstandings, confusions, and contradictions can be clarified. As discussed above, the Department has revised § 106.45 to expressly forbid a recipient from using a party’s medical, psychological, and similar records without the party’s voluntary, written consent, and from using information protected by a legally recognized privilege, and deems ‘‘not relevant’’ questions and evidence about a complainant’s prior sexual behavior (with two limited exceptions). We appreciate the commenters’ suggestions regarding the inclusion of: A requirement that the viewing of the relevant evidence be supervised; the appointment of a special master; and a provision informing parties of the consequences of submitting false information. Commenters have noted that recipients’ restrictions on a party’s ability to view the evidence gathered in a case (for example, by requiring the party to sit in a certain room in the recipient’s facility, for only a certain length of time, with or without the ability to take notes while reviewing the evidence, and perhaps while supervised by a recipient administrator) have VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 reduced the meaningfulness of the party’s opportunity to review evidence and use that review to further the party’s interests. We believe it is important for the parties to receive a copy of the evidence subject to inspection and review so that the parties and their advisors may, over the course of a ten-day period, carefully consider the evidence directly related to the allegations, prepare arguments about whether all of that evidence is relevant and whether relevant evidence has been omitted, and consider how the party intends to respond to the evidence. On the other hand, we do not believe that the purposes of the parties’ right to inspect and review evidence necessitates or justifies the Department requiring recipient to appoint a ‘‘special master’’ to oversee the exchange of evidence. The recipient’s investigator will be well-trained in how to conduct an investigation and grievance process and in issues of relevance, under § 106.45(b)(1)(iii). We address warnings about making false statements during a grievance process in § 106.45(b)(2), which requires the written notice of allegations that a recipient sends to both parties upon receipt of a formal complaint to contain a statement about whether the recipient’s code of conduct contains a prohibition against making false statements during a grievance process. We do not believe that a further statement about false statements accompanying sending the evidence to the parties under § 106.45(b)(5)(vi) serves a necessary purpose and decline to require it. We decline to change the requirement that recipients send the evidence to a party’s advisor (if the party has one).1180 If a party has exercised the party’s right to select an advisor of the party’s choice, it is for the purpose of receiving that advisor’s assistance during the grievance process, and we do not believe that a party’s ten-day window to review and respond to the evidence should be narrowed by placing the burden on the party to receive the evidence from the recipient and then send the evidence to the party’s advisor. However, nothing in these final regulations precludes a party from requesting that the recipient not send the evidence subject to inspection and review to the party’s advisor. Similarly, the final regulations do not preclude the recipient from asking the parties to confirm whether or not the party has an 1180 We have revised § 106.45(b)(5)(vii) to require the investigative report to be sent to the parties and their advisors (if any), for the same reasons that we decline to remove the requirement to send the evidence subject to inspect and review to the parties and their advisors. PO 00000 Frm 00282 Fmt 4701 Sfmt 4700 advisor prior to sending the evidence under § 106.45(b)(5)(vi). The Department disagrees that sending the evidence, or investigative report, to the parties (and their advisors, if any) will lead to an ‘‘extreme disparity of potential outcomes.’’ The provisions in § 106.45(b)(5)(vi)–(vii) are focused on providing precisely the opposite of the commenter’s conclusion: Predictable procedural requirements that respondents and complainants can rely upon to afford them a predictable, fair process. The Department does not agree that § 106.45(b)(5)(vi)–(vii), or the § 106.45 grievance process as a whole, creates the same rights to discovery afforded to civil litigation parties or criminal defendants. For example, parties to a Title IX grievance process are not granted the right to depose parties or witnesses, nor to invoke a court system’s subpoena powers to compel parties or witnesses to appear at hearings, which are common features of procedural rules governing litigation and criminal proceedings. Recognizing that schools, colleges, and universities are educational institutions and not courts of law, the Department has prescribed a grievance process that incorporates procedures rooted in principles of due process and fundamental fairness, to give parties clear, meaningful opportunities to participate in influencing the case outcome that advances each party’s interests, without imposing on recipients the expectation that recipients should function as de facto courts. Similarly, the Department does not agree that § 106.45(b)(5)(vi)–(vii) will prolong proceedings, create ancillary disputes, or invade the privacy of parties and witnesses. As various courts have held,1181 parties are entitled to constitutional due process from public institutions and a fair process from private institutions during Title IX grievance proceedings. In these final regulations, the Department has prescribed a process that provides sufficient due process protections to resolve allegations of sexual harassment in a recipient’s education program or activity, in a manner that permits (and requires) a recipient to conclude its grievance process within designated, reasonably prompt time frames, and has taken care to protect party privacy while ensuring that the parties have access to 1181 E.g., Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 69 (1st Cir. 2019); Doe v. Purdue Univ. et al., 928 F.3d 652 (7th Cir. 2019); Doe v. Baum, 903 F.3d 575 (6th Cir. 2018). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations information that may affect the outcome of the case. We appreciate the concerns of many commenters about the burden and costs that § 106.45(b)(5)(vi)–(vii) may impose upon recipients. The Department understands that these provisions have the potential to generate modest burden and costs, but believes that the financial costs and administrative burdens resulting from the provisions are far outweighed by the due process protections ensured by these provisions. We disagree with the assertion that ‘‘sharing evidence with parties’’ results in unacceptable burdens on recipients, because reviewing the universe of evidence that is, or may be, relevant represents a critical part of enabling parties to have a meaningful opportunity to be heard, which is an essential component of due process and fundamental fairness. The Department appreciates that many recipients’ Title IX offices are inundated and overworked, but sacrificing procedures important to concepts of due process and fundamental fairness is not an acceptable means of alleviating administrative burdens. We reiterate that where reasonable, we have revised § 106.45(b)(5)(vi)–(vii) to alleviate unnecessary administrative burdens on recipients, for example by removing reference to a file sharing platform and allowing the recipient to send the evidence and investigative report electronically or by hard copy. The Department also understands that a potentially different set of issues regarding § 106.45(b)(5)(vi)–(vii) may occur where there are multiple formal complaints arising out of a single incident. To expressly authorize recipients to handle cases that arise out of the same incident of sexual harassment involving multiple complainants, multiple respondents, or both, we have added § 106.45(b)(4) to expressly grant discretion to recipients to consolidate formal complaints involving more than one complainant or more than one respondent, where the allegations of sexual harassment arise out of the same facts or circumstances. The Department also provides in § 106.45(b)(4) that where a grievance process involves more than one complainant or more than one respondent, references in § 106.45 to the singular ‘‘party,’’ ‘‘complainant,’’ or ‘‘respondent’’ must include the plural, as applicable. These revisions help clarify that a single grievance process might involve multiple complainants or multiple respondents; we emphasize that in such a situation, each individual party has each right granted to a party under § 106.45 and these final VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 regulations. For example, in a case involving multiple complainants, a recipient would not be permitted to designate one complainant as a ‘‘lead complainant’’ and use such a designation to, for instance, only send the evidence to the ‘‘lead complainant’’ instead of to each complainant individually. Parties have the opportunity to provide additional information or context in their written response after reviewing the evidence under § 106.45(b)(5)(vi). The final regulations do not directly address an extension of the timeline for responses, should the parties present additional information after reviewing the evidence. These final regulations provide that the parties must have at least ten days to submit a written response after review and inspection of the evidence directly related to the allegations raised in a formal complaint. A recipient may require all parties to submit any evidence that they would like the investigator to consider prior to when the parties’ time to inspect and review evidence begins. Alternatively, a recipient may choose to allow both parties to provide additional evidence in response to their inspection and review of the evidence under § 106.45(b)(5)(vi) and also an opportunity to respond to the other party’s additional evidence. Similarly, a recipient has discretion to choose whether to provide a copy of each party’s written response to the other party to ensure a fair and transparent process and to allow the parties to adequately prepare for any hearing that is required or provided under the grievance process. A recipient’s rules or practices other than those required by § 106.45 that a recipient adopts must apply equally to both parties as required by § 106.45(b). If a recipient chooses not to allow the parties to respond to additional evidence provided by a party in these circumstances, the parties will still receive the investigative report that fairly summarizes relevant evidence under § 106.45(b)(5)(vii) and will receive an opportunity to inspect and review all relevant evidence at any hearing and to refer to such evidence during the hearing, including for purposes of cross-examination at live hearings under § 106.45(b)(5)(vi). If a recipient allows parties to provide additional evidence after reviewing the evidence under § 106.45(b)(5)(vi), any such additional evidence that is summarized in the investigative report will not qualify as new evidence that was reasonably available at the time the determination regarding responsibility PO 00000 Frm 00283 Fmt 4701 Sfmt 4700 30307 was made for purposes of an appeal under § 106.45(b)(8). The Department agrees with the commenter’s concern that the investigative report should contain relevant evidence including exculpatory and inculpatory evidence. Section 106.45(b)(1)(ii) makes clear that the recipient must evaluate relevant evidence including inculpatory and exculpatory evidence. The final regulations add the phrase ‘‘and inculpatory or exculpatory evidence whether obtained from a party or other source’’ to § 106.45(b)(5)(vi) with respect to the evidence sent to the parties for inspection and review. Thus, where § 106.45(b)(5)(vii) requires the investigative report to fairly summarize all the relevant evidence, the final regulations make clear that evidence may be relevant whether it is inculpatory or exculpatory. We do not agree that sharing the investigative report prior to its finalization would lead to errors, dissatisfaction, and the appearance of bias. In fact, those are the very potential problems that sharing the report with the parties seeks to avoid. The parties’ responses may address perceived errors that may be corrected, so that the parties have an opportunity to express and note their contentions for or against the investigative report, and sharing the investigative report at the same time, to both parties, helps avoid any appearance of bias. We appreciate the commenter’s questions regarding how the evidence and the investigative report should be shared with the parties. The final regulations revise § 106.45(b)(5)(vi) to state that ‘‘the recipient must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy.’’ Similar language is used in § 106.45(b)(5)(vii) regarding sending the parties, and their advisors, copies of the investigative report, electronically or in hard copy format. The Department reminds recipients that these provisions contain baseline requirements, and additional practices to address privacy concerns, such as digital encryption, that do not run afoul of § 106.45(b)(5)(vi)–(vii), or any other provision of the final regulations, are not precluded by these final regulations. The final regulations do not require recipients to provide individual laptops to parties to review the evidence or investigative report, but a recipient may do so at the recipient’s discretion, and the option to send parties hard copies under these provisions gives recipients the flexibility to respond to a party’s E:\FR\FM\19MYR2.SGM 19MYR2 30308 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations inability to access digital or electronic copies. The Department does not wish to prohibit the investigator from including recommended findings or conclusions in the investigative report. However, the decision-maker is under an independent obligation to objectively evaluate relevant evidence, and thus cannot simply defer to recommendations made by the investigator in the investigative report. As explained in the ‘‘Section 106.45(b)(7)(i) Single Investigator Model Prohibited’’ subsection of the ‘‘Determinations Regarding Responsibility’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, the decision-maker cannot be the same person as the Title IX Coordinator or the investigator and must issue a written determination regarding responsibility, and one of the purposes of that requirement is to ensure that independent evaluation of the evidence gathered is made prior to reaching the determination regarding responsibility. The Department appreciates commenters’ concerns and requests for clarification regarding the application of the final regulations to the elementary and secondary school environment. We disagree that the grievance process timeline impairs an elementary and secondary school recipient’s ability to effectuate meaningful change to a student’s behavior. There are many actions a recipient may take with respect to a respondent that constitute permissible supportive measures as defined in § 106.30, which may correct or modify a respondent’s behavior without being punitive or disciplinary. Educational conversations with students, for example, and impressing on a student the recipient’s anti-sexual harassment policy and code of conduct expectations, need not constitute punitive or disciplinary actions that a school is precluded from taking without following a § 106.45 grievance process. Similarly, we disagree that § 106.45 generally, or § 106.45(b)(5)(vi)–(vii) in particular, foster hostility or hamper a school district’s ability to maintain a safe school environment. Providing a predictable, fair grievance process before imposing discipline on students may help reduce hostility and tensions in a school environment, and recipients have many options under the § 106.30 definition of supportive measures for taking action to protect party safety and deter sexual harassment before or during any grievance process and regardless of whether a grievance process is ever initiated. We also remind recipients that § 106.44(c) allows a respondent to be removed from VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 education programs or activities on an emergency basis, without pre-removal notice or hearing, and regardless of whether a grievance process is pending regarding the sexual harassment allegations from which the imminent threat posed by the respondent has arisen. With regard to records retention, the Department addresses this issue under § 106.45(b)(10). We have revised that provision, including by extending the record retention period from three years as proposed in the NPRM, to seven years under these final regulations. The Department appreciates the commenter’s responses to Directed Question 7. After considering the many public comments responsive to this directed question posed in the NPRM, the Department finds that it would be inappropriate to dilute the requirement that there be a direct relationship between the evidence in question and the allegations under investigation. For reasons discussed above, the final regulations require inspection and review of evidence that is directly related to the allegations, including inculpatory and exculpatory evidence obtained from a party or any other source, and require the investigative report to summarize only relevant evidence. Changes: The Department makes the following changes to 106.45(b)(5)(vi). First, the phrase ‘‘and inculpatory or exculpatory evidence whether obtained from a party or other source,’’ is added. Second, we have added ‘‘or a hard copy’’ as an option for sending to the parties and their advisors the evidence subject to inspection and review. Lastly, we have removed the phrase ‘‘such as a file sharing platform, that restricts the parties and advisors from downloading or copying the evidence.’’ Section 106.45(b)(5)(vii) An Investigative Report That Fairly Summarizes Relevant Evidence Comments: Many commenters expressed support for § 106.45(b)(5)(vii) and asserted that the provision would work to restore fairness and due process for complainants and respondents. A number of commenters stated that, in their experience, the ten-day period response period is a reasonable and appropriate time frame. One commenter characterized the NPRM as a long overdue correction to the withdrawn 2011 Dear Colleague Letter, which the commenter called a ‘‘wrongful repudiation’’ of due process. The commenter also argued for the Department to adopt a particular recipient’s policy as a model for procedures that other recipients should PO 00000 Frm 00284 Fmt 4701 Sfmt 4700 employ in addressing inappropriate sexual activity while simultaneously assuring due process protections. A number of commenters opposed the provision. Many commenters expressed concern over the mandated ten-day period. Commenters asserted that recipients should determine the appropriate timelines for their process, rather than the Department prescribing this timeline. Similarly, another commenter asserted that ‘‘rigid time frames’’ substantially lengthen investigation and adjudication processes. One commenter requested clarification as to why the investigative report must be completed and made available ten days prior to a hearing. The commenter was concerned that such a requirement results in an overly burdensome process with negligible benefits. A different commenter expressed concern that if new information arises during the review of the report, the timeline should be extended to avoid exploitative efforts by either party. One commenter questioned how institutions should respond when a party requests additional time to review the report before the hearing. One commenter requested clarification over when the parties’ written responses to the investigative report are due and what the investigator is supposed to do with the parties’ responses. Some commenters argued that the proposed provision is unnecessary because the parties could address and respond to evidence during a hearing. Many commenters stated that sharing the investigative report is burdensome and could obstruct the investigation. A number of commenters pointed out that the proposed provision would require them to change processes, causing a disruption in how they handle Title IX enforcement on their campus. Citing the addition of significant time and resource requirements to their institution’s current procedures, one commenter argued that small institutions lack the capacity right now to comply with this requirement. A different commenter concluded that this provision will impose ‘‘shadow costs’’ on institutions. Another commenter proposed deleting § 106.45(b)(5)(vii) entirely because of concerns over what should be included in the investigative report, the potential for one of the parties to demand a time extension if the report contains a recommendation of responsibility, and the issues raised in multiple complainant proceedings. The same commenter recommended that the investigative report include facts, interview statements from the parties, a preliminary credibility analysis, and the E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations policy applied to the analysis of the alleged behavior. A different commenter suggested that the report only include facts, with no recommended findings or conclusions, stating that summaries can be fraught with ‘‘asymmetrical information delivery’’ and may not provide a means for any party to submit corrections. One commenter proposed removing the mandate to share the investigative report with the student’s advisor and allowing the student to choose whether they want their advisor to see the report. One commenter expressed concern that the provision is too vague and leaves many unanswered questions, such as what the final regulations would allow if the parties need to make changes following their review or if additional evidence is located. A commenter requested a clarification of, or a change to, the language in § 106.45(b)(5)(vi), which refers to ‘‘directly related to the evidence,’’ and § 106.45(b)(5)(vii), which refers to ‘‘relevant evidence.’’ A commenter stated that, as written, this provision would allow institutions to implement access controls that could limit or deny due process, such as declaring that the report is the property of the institution or creating time limits on viewings. The commenter proposed that the provision should be revised to allow the parties easy access to the report until the final determination is made. A commenter concluded that provision goes beyond any due process requirement, that they are aware of, to have information in the evidentiary file synthesized into a summary report ten days before the hearing. The commenter also requested clarification as to how the recipient must amend its investigative report in light of the parties’ responses. Many commenters questioned whether the Department meant ten calendar days or ten business days. Discussion: The Department appreciates commenters’ support of § 106.45(b)(5)(vii). We agree that the final regulations seek to provide strong, clear procedural protections to complainants and respondents, including apprising both parties of the evidence the investigator has determined to be relevant, in order to adequately prepare for a hearing (if one is required or otherwise provided) and to submit responses about the investigative report for the decisionmaker to consider even where a hearing is not required or otherwise provided. We appreciate the commenter’s proposal to follow policies in place at a particular institution. We acknowledge VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the efforts of particular institutions and have considered policies in place at various individual institutions, but for reasons described in the ‘‘Role of Due Process in the Grievance Process’’ section and throughout this preamble, we do not adopt any particular institution’s policies or procedures wholesale. We believe that the provisions outlined in these final regulations provide necessary and appropriate due process and fundamental fairness protections to complainants and respondents. As some commenters have noted, § 106.45(b)(5)(vii) aligns with the practice of many recipients who have become accustomed to conducting investigations in Title IX sexual harassment proceedings and create an investigative report as part of such an investigation. We believe that a standardized provision regarding an investigative report is important in the context of Title IX proceedings even though such a step may not be required in civil litigation or criminal proceedings and even though specific parts of this provision may differ from recipients’ current practices (i.e., ensuring that parties are sent a copy of the investigative report ten days prior to the time that a determination regarding responsibility will be made). The Department believes that the purpose of § 106.45(b)(5)(vii) and the specific requirements in this provision are appropriate because a Title IX grievance process occurs in an educational institution (not in a court of law) and because a recipient of Federal funds agrees, under Title IX, to operate education programs or activities free from sex discrimination. It is thus appropriate to obligate the recipient (and not the parties to disputed sexual harassment allegations) to take reasonable steps calculated to ensure that the burden of gathering evidence remains on the recipient, yet to also ensure that the recipient gives the parties meaningful opportunity to understand what evidence the recipient collects and believes is relevant, so the parties can advance their own interests for consideration by the decision-maker. A valuable part of this process is giving the parties (and advisors who are providing assistance and advice to the parties) adequate time to review, assess, and respond to the investigative report in order to fairly prepare for the live hearing or submit arguments to a decision-maker where a hearing is not required or otherwise provided. Without advance knowledge of the investigative report, the parties will be unable to PO 00000 Frm 00285 Fmt 4701 Sfmt 4700 30309 effectively provide context to the evidence included in the report. While we are sensitive to recipients’ concerns regarding burden, cost, and capacity, the Department believes that the required process in § 106.45(b)(5)(vii) does not present onerous demands on recipients. Concerns over burden and capacity should be weighed, not only against fundamental fairness and due process, but in the context of the phase of an investigation when this requirement is in place: During the period when the investigative report should be compiled anyway (that is, after evidence has been gathered and before a determination will be made). In the context of a grievance process that involves multiple complainants, multiple respondents, or both, a recipient may issue a single investigative report. We have added § 106.45(b)(4) to expressly authorize a recipient, in the recipient’s discretion, to consolidate formal complaints when allegations all arise out of the same facts or circumstances. Section 106.45(b)(5)(vii) is important for fairness as well as efficiency purposes; it assures that the investigative report is completed in an expeditious manner, provides the opportunity to the parties to prepare their arguments and defenses, and serves the goal of ensuring constructive, meaningful, and effective hearings (where required, or otherwise provided) and informed determinations regarding responsibility even where the determination is reached without a hearing. Section 106.45(b)(5)(vii) presents no obstacle to an effective investigation and reliable resolution because it comes after an investigation has finished gathering evidence. The Department shares commenters’ concerns about recipient practices that limit access to the investigative report. Practices or rules that limit a party’s (or party’s advisor’s) access to the investigative report violate § 106.45(b)(5)(vii) because under this provision recipients must send a copy of the investigative report electronically or by hard copy to each party and the party’s advisor, if any. While this provision does not require a recipient to use a file sharing platform that restricts the parties and advisors from downloading or copying the evidence, recipients may choose to use a file sharing platform that restricts the parties and advisors from downloading or copying the investigative report under § 106.45(b)(5)(vii) and this would constitute sending the parties a copy ‘‘in an electronic format,’’ meeting the requirements of this provision. E:\FR\FM\19MYR2.SGM 19MYR2 30310 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations The Department appreciates commenters’ suggestions as to what elements recipients should include in their investigative reports. The Department takes no position here on such elements beyond what is required in these final regulations; namely, that the investigative report must fairly summarize relevant evidence. We note that the decision-maker must prepare a written determination regarding responsibility that must contain certain specific elements (for instance, a description of procedural steps taken during the investigation) 1182 and so a recipient may wish to instruct the investigator to include such matters in the investigative report, but these final regulations do not prescribe the contents of the investigative report other than specifying its core purpose of summarizing relevant evidence. The Department does not adopt commenters’ suggestions to allow institutions to set their own timelines with respect to the parties’ window of time to review the investigative report, but the Department has intentionally given recipients flexibility to designate the recipient’s own ‘‘reasonably prompt time frames’’ for the conclusion of each phase of the grievance process (including appeals and any informal resolution processes) pursuant to § 106.45(b)(1)(v). While we understand from commenters that some recipients may desire to conclude their grievance process in fewer than 20 days (i.e., the two ten-day timelines prescribed in § 106.45 which, in combination, preclude a recipient from designating a time frame for conclusion of an entire grievance process in fewer than 20 days), the Department believes that 20 or fewer days has not been widely viewed as a reasonable time frame for conducting and concluding a truly fair investigation and adjudication of allegations that carry such high stakes for all parties involved. This belief is buttressed by commenters who appreciated that the Department has withdrawn the expectation set forth in the withdrawn 2011 Dear Colleague Letter for recipients to conclude a grievance process within 60 calendar days.1183 We reiterate that a formal complaint of Title IX sexual harassment alleges serious misconduct that has jeopardized a person’s equal educational access, and the 1182 Section 106.45(b)(7)(ii). Dear Colleague Letter at 12 (‘‘Based on OCR experience, a typical investigation takes approximately 60 calendar days following receipt of the complaint.’’). The Department’s experience, therefore, has long been that an adequate investigation into sexual harassment allegations typically takes longer than 20 days. 1183 2011 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 determination regarding responsibility carries grave consequences for each party; the purpose of the § 106.45 grievance process is to reduce the likelihood of positive or negative erroneous outcomes (i.e., inaccurate findings of responsibility and inaccurate findings of non-responsibility). Ensuring that each party, in each case, receives effective notice and meaningful opportunity to be heard necessitates some procedures that involve some passage of time (e.g., time for parties and their advisors to review evidence, and to review the investigator’s summary of relevant evidence). The § 106.45 grievance process aims to balance the need for a thorough, fair investigation that permits the parties’ meaningful participation, with the need to conclude a grievance process promptly to bring resolution to situations that are difficult for both parties to navigate. We appreciate the commenter’s suggestion that the student should get to choose what the student’s advisor can see in the investigative report. We do not believe that this issue requires regulation and we do not wish to create unnecessary complexity in the recipient’s obligations with respect to sending the investigative report. A party may always request that the recipient not send the investigative report to the party’s advisor, but if the party has already indicated that the party has selected an advisor of choice then we believe the better default practice is for the party’s advisor to be sent the investigative report, so that the burden of receiving the report, then forwarding it to the party’s advisor, does not rest on the party, which would also result in a de facto shortening of the ten-day window in which a party—with assistance from an advisor—may review and prepare responses to the investigator’s summary of relevant evidence. The Department acknowledges the difference between the use of ‘‘directly related to the allegations’’ in § 106.45(b)(5)(vi) and ‘‘relevant evidence’’ in § 106.45(b)(5)(vii). As discussed above, in the ‘‘Section 106.45(b)(5)(vi) Inspection and Review of Evidence Directly Related to the Allegations, and Directed Question 7’’ subsection of the ‘‘Investigation’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, we acknowledge that ‘‘directly related to the allegations’’ may encompass a broader universe of evidence than evidence that is ‘‘relevant,’’ and believe that it is most beneficial for the parties’ access to evidence to be limited by what PO 00000 Frm 00286 Fmt 4701 Sfmt 4700 is directly related to the allegations, but for the investigator to determine what is relevant after the parties have reviewed that evidence. Independent of whether this provision would be required to satisfy constitutional due process of law, § 106.45(b)(5)(vii) (giving the parties copies of the investigative report prior to the live hearing or other time of determination) serves an important function in a Title IX grievance process, placing the parties on level footing with regard to accessing information to allow the parties to serve as a check on any decisions that the recipient makes regarding the relevance of evidence and omission of relevant evidence. Allowing the parties to review and respond to the investigative report is important to providing the parties with notice of the evidence the recipient intends to rely on in deciding whether the evidence supports the allegations under investigation. The parties cannot meaningfully respond and put forward their perspectives about the case when they do not know what evidence the investigator considers relevant to the allegations at issue. These final regulations do not prescribe a process for the inclusion of additional information or for amending or supplementing the investigative report in light of the parties’ responses after reviewing the report. However, we are confident that even without explicit regulatory requirements, best practices and respect for fundamental fairness will inform recipients’ choices and practices with regard to amending and supplementing the report. Recipients enjoy discretion with respect to whether and how to amend and supplement the investigative report as long as any such rules and practices apply equally to both parties, under the revised introductory sentence of § 106.45(b). A recipient may give the parties the opportunity to provide additional information or context in their written response to the investigative report, as provided in § 106.45(b)(5)(vii), to remedy any ‘‘asymmetrical information delivery,’’ but the Department believes that in combination, § 106.45(b)(5)(vi)– (vii) reduce the likelihood of asymmetrical information delivery because the parties each will have the opportunity to review all the evidence related to the allegations and then all the evidence the investigator decides is relevant. A recipient may require all parties to submit any evidence that they would like the investigator to consider prior to the finalization of the investigative report thereby allowing each party to respond to the evidence in the investigative report sent to the E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations parties under § 106.45(b)(5)(vii). A recipient also may provide both parties with an opportunity to respond to any additional evidence the other party proposes after reviewing the investigative report. If a recipient allows parties to provide additional evidence in response to the investigative report, any such additional evidence will not qualify as new evidence that was reasonably available at the time the determination regarding responsibility was made for purposes of an appeal under § 106.45(b)(8)(i)(B). Similarly, a recipient has discretion to choose whether to provide a copy of each party’s written response to the other party as an additional measure to allow the parties to prepare for the hearing (or to be heard prior to the determination regarding responsibility being made, if no hearing is required or provided). As noted above, any rules or practices other than those required by § 106.45 that a recipient adopts must apply equally to both parties, and a recipient must be mindful that rules it chooses to adopt that extend time frames must take into account the recipient’s obligation to conclude the entire grievance process within the recipient’s own designated time frame, under § 106.45(b)(1)(v). To conform with the changes we made to § 106.45(b)(5)(vi), we have revised § 106.45(b)(5)(vii) to include a provision that requires the investigative report to be sent to each party and the party’s advisor, if any, in an electronic format or a hard copy. As stated elsewhere in this preamble, the final regulations do not require a specific method for calculating ‘‘days.’’ Recipients retain flexibility to adopt the method that best works for the recipient’s operations, including calculating ‘‘days’’ using calendar days, business days, school days, or so forth. Changes: The Department has revised § 106.45(b)(5)(vii) by changing the parenthetical to refer to ‘‘this section’’ instead of ‘‘§ 106.45’’ and adding ‘‘or otherwise provided’’ after ‘‘if a hearing is required by this section,’’ by requiring the investigative report to be sent to parties and their advisors, if any, and by adding the option of sending a copy in electronic format or hard copy. Hearings Cross-Examination Generally Support for Cross-Examination Comments: Some commenters expressed support for the proposed rules’ requirement in § 106.45(b)(6)(i) that postsecondary institutions allow cross-examination at a live hearing because in a college or university setting, where participants are usually VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 adults, cross-examination is an essential pillar of fair process, and where cases turn exclusively or largely on witness testimony as is often the case in peeron-peer grievances, cross-examination is especially critical to resolve factual disputes between the parties and give each side the opportunity to test the credibility of adverse witnesses, serving the goal of reaching legitimate and fair results.1184 Some commenters supported § 106.45(b)(6)(i) because live hearings with cross-examination are consistent with Supreme Court cases interpreting due process of law,1185 as well as recent case law in which courts have held that cross-examination must be provided in higher education disciplinary proceedings, particularly when credibility is at issue, to meet standards of fundamental fairness and constitutional due process.1186 Commenters relied on Sixth Circuit cases in particular 1187 to assert that high-stakes cases involving competing narratives require a mutual test of credibility, and to argue that the cost to a university of providing a live hearing with cross-examination is far outweighed by the benefit of reducing the risk of an erroneous finding of responsibility. Some commenters also pointed to a California appellate court decision 1188 where the court found it ironic that an institution of higher learning, where American history and government are taught, should stray so far from the principles that underlie our democracy, and two other California 1184 Commenters cited: American Bar Association, ABA Criminal Justice Section Task Force on College Due Process Rights and Victim Protections, Recommendations for Colleges and Universities in Resolving Allegations of Campus Sexual Misconduct 9 (2017). 1185 Commenters cited: Goss v. Lopez, 419 U.S. 565 (1975); Mathews v. Eldridge, 424 U.S. 319 (1976). 1186 Commenters cited: Doe v. Baum [University of Michigan], 903 F.3d 575, 578 (6th Cir. 2018) (‘‘[t]he ability to cross-examine is most critical when the issue is the credibility of the accuser.’’); Doe v. Univ. of Cincinnati, 872 F.3d 393, 401 (6th Cir. 2017) (‘‘In the case of competing narratives, ‘cross-examination has always been considered a most effective way to ascertain truth.’ ’’) (internal citations omitted); Doe v. Alger [James Madison University], 228 F. Supp. 3d 713, 730 (W.D. Va. 2016); Doe v. Claremont McKenna Coll., 25 Cal. App. 5th 1055, 1070 (2018). 1187 Commenters cited: Baum, 903 F.3d at 581; Univ. of Cincinnati, 872 F.3d at 403. 1188 Commenters cited: Doe v. Regents of Univ. of Cal., 28 Cal. App. 5th 44, 61 (2018) (university failed to provide a fair hearing by selectively applying rules of evidence, refusing to show respondent all the evidence against him, and refusing to consider respondent’s proffered evidence, and the lack of due process protections resulted in neither the respondent nor the complainant receiving a fair hearing). PO 00000 Frm 00287 Fmt 4701 Sfmt 4700 30311 appellate court decisions 1189 that one commenter characterized together as representing unanimous rulings by nine appellate judges that public and private colleges and universities owe basic due process protections to students in Title IX proceedings. Several commenters argued that the recent Sixth Circuit and California appellate decisions illustrate a trend, or growing judicial consensus, that some kind of cross-examination should be permitted in serious student misconduct cases that turn on credibility.1190 A few commenters argued that under many State APAs (Administrative Procedure Acts) students in serious misconduct cases have a right to cross-examine an accuser and cited cases from Washington and Oregon as examples.1191 Commenters opined that requiring a live hearing with cross-examination for postsecondary institutions is perhaps the single most important change in the proposed rules to ensure that determinations are fair. Commenters referred to cross-examination as a ‘‘game-changer’’ because currently many college and university processes require parties to submit written questions in advance, to be asked by a school official, which may or may not occur at a live hearing. Commenters asserted that in numerous instances, college and university administrators have refused to ask some or all of a party’s submitted questions, reworded a party’s questions in ways that undermined the question’s effectiveness, ignored follow-up questions, and simply refused to ask ‘‘hard questions’’ of parties even when evidence such as text messages appeared to contradict a party’s testimony. Commenters argued that written questions are not an effective substitute for live cross-examination because credibility can be determined only when questions are asked in real time in the presence of parties and decision-makers who can listen and observe how a witness answers questions, and when immediate followup questions are permitted. Commenters argued that cross-examination is necessary to allow the decision-maker to 1189 Commenters cited: Doe v. Allee [University of Southern California], 30 Cal. App. 5th 1036 (2019); Doe v. Claremont McKenna Coll., 25 Cal. App. 5th 1055 (2018). 1190 Cf. Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 70 (1st Cir. 2019) (declining to require the same opportunity for cross-examination as required by the Sixth Circuit but holding that due process of law was satisfied if the university conducted ‘‘reasonably adequate questioning’’ designed to ferret out the truth, if the university declined to grant students the right to cross-examine parties and witnesses at a hearing). 1191 Commenters cited: Arishi v. Wash. State Univ., 196 Wash. App. 878, 908 (2016); Liu v. Portland State Univ., 281 Or. App. 294, 307 (2016). E:\FR\FM\19MYR2.SGM 19MYR2 30312 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations observe each witness answering questions that can bring out contradictions and improbabilities in the witness’s testimony. Commenters cited Supreme Court criminal law cases discussing the symbolic and practical value of cross-examination in the context of the Sixth Amendment’s Confrontation Clause.1192 Some commenters argued that despite other commenters’ assumptions that the proposed rules would allow a complainant to be aggressively or abusively questioned by a respondent’s advisor, it is unlikely that campus officials will permit an advisor to question a party in an inappropriate manner; for example, commenters asserted, under current policies most universities only allow lawyers or other advisors to be ‘‘potted plants’’ in hearings and school officials enforce that potted-plant policy, demonstrating that recipients are capable of controlling advisors. One commenter asserted that universities, which are dedicated to the free flow of information, will figure out an acceptable way for cross-examination to occur so that campus adjudications can meet generally accepted standards of due process. Several commenters asserted that recipients should, and under the proposed rules would be allowed to, adopt measures to prevent irrelevant, badgering questions and ensure respectful treatment of parties and witnesses. Commenters supported requiring cross-examination to be conducted by party advisors because this will mean that the questioning will be left to professionals, or at least to adults better attuned to the nuances of these cases. Commenters asserted that concerns about aggressive attorneys berating complainants are overblown, because attorneys and even nonattorney advisors know better than to alienate the fact-finder, which is what berating a complainant would do. Commenters asserted that the proposed rules reach a balanced solution by allowing cross-examination to determine credibility while disallowing direct student-to-student questioning 1192 Commenters cited: Coy v. Iowa, 487 U.S. 1012, 1017 (1988) (stating that cross-examination has symbolic importance because ‘‘there is something deep in human nature that regards faceto-face confrontation between accused and accuser as essential to a fair trial in a criminal prosecution’’) (internal quotation marks and citation omitted); id. at 1019 (noting the practical importance of crossexamination because it ‘‘is always more difficult to tell a lie about a person to his [or her] face than behind his [or her] back’’) (internal quotation marks and citation omitted); Mattox v. United States, 156 U.S. 237, 242–43 (1895) (cross-examination provides the trier-of-fact opportunity to judge by the witness’s demeanor on the stand and ‘‘the manner in which he gives his testimony whether he is worthy of belief.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 and permitting questioning to occur with the parties in separate rooms. Some commenters supported the cross-examination requirement based on belief that confronting an accuser is a part of the fundamental concept of the rule of law that should apply on college campuses. Some commenters believed that cross-examination will change the ‘‘kangaroo court’’ nature of campus Title IX proceedings that lacked basic due process protections, and that asking complainants questions about the allegations does not revictimize a complainant. Several commenters expressed support for cross-examination in the context of belief that the withdrawn 2011 Dear Colleague Letter, and/or the #MeToo movement, have tilted too many colleges and universities to be predisposed to believing young men guilty of sexual assault. Many commenters supported crossexamination because of personal experiences being accused of a Title IX violation without any opportunity to confront the complainant, asserting that lack of cross-examination allowed a complainant’s version of events to go unchallenged. Many commenters supported crossexamination as an important part of the proposed rules’ restoration of due process and fairness that distinguishes the United States from dictatorial regimes where to be accused is the same as being proved guilty. Several commenters argued that crossexamination is vital for finding the truth, which should be the goal of any investigation, because crossexamination reveals a witness’s faulty memory or false testimony. Commenters asserted that cross-examination allows the parties to make a searching inquiry to uncover facts that may have been omitted, confused, or overstated. Some commenters believed that crossexamination will reduce the likelihood of false allegations being made or succeeding. One commenter argued that regardless of whether false allegations happen infrequently or frequently, every case must be considered individually using a proper investigation process with cross-examination. One commenter opposed the proposed rules as problematic and offensive to victims, but supported the cross-examination provision because due process is an inherent right in the United States. This commenter also supported crossexamination because victims going through a criminal trial get crossexamined, and even though false allegations are rare, where there is one, it should be taken care of in accordance with due process. PO 00000 Frm 00288 Fmt 4701 Sfmt 4700 A few commenters supported the cross-examination requirement because full and fair adversarial procedures are likely to reduce bias in decision making. One commenter quoted Supreme Court criminal law decisions for the proposition that the adversarial ‘‘system is premised on the well-tested principle that truth—as well as fairness—is ‘best discovered by powerful statements on both sides of the question.’ ’’ 1193 Another commenter asserted that nothing can completely eliminate sex or racial bias in a system but bias can be reduced by expanding the evidence considered by decision-makers, such as by requiring a full investigation and cross-examination.1194 One commenter asserted that it is within the Department’s jurisdiction to create regulations about cross-examination and other procedures that reduce impermissible implicit bias on the basis of sex stereotypes and unconscious sexbias.1195 A few commenters supported crossexamination because both parties need due process including the right to use cross-examination to establish credibility so that each party has their stated facts scrutinized to find the truth. Some commenters asserted that crossexamination ensures a level of fairness that benefits all parties involved in Title IX cases. A few commenters believed the proposed rules, including the crossexamination requirement, provide a fair and equal opportunity for both sides. One commenter argued that crossexamination holds a great benefit to both parties and allows the investigator and other staff on the case to hear both sides of the story; another commenter stated there are two sides to every issue and both sides must be questioned. One 1193 Commenters cited: Penson v. Ohio, 488 U.S. 75, 84 (1988) (quoting Irving R. Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 Am. Bar. Ass’n J. 569, 569 (1975)); United States v. Cronic, 466 U.S. 648, 656 (1984) (describing the ‘‘crucible of meaningful adversarial testing’’); Cal. v. Green, 399 U.S. 149, 158 (1970) (describing crossexamination as the ‘‘greatest legal engine ever invented for the discovery of truth’’) (internal quotation marks and citations omitted). Several commenters paraphrased the ‘‘greatest legal engine ever invented for discovery of truth’’ passage without citing to the Supreme Court case or the Wigmore treatise from which it originates. 1194 Commenters cited: Stephen P. Klein et al., Race and Imprisonment Decisions in California, 24 Science 812 (1990) (for the proposition that most decisions after a full trial are not based on using race as a proxy, but rather on evidence at trial, resulting in racially fair decisions). 1195 Commenters cited: Maryland v. Craig, 497 U.S. 836, 846 (1990) (quoting Cal. v. Green, 399 U.S. 149, 158 (1970)) for the proposition that when procedures typical to our adjudicative processes, such as cross-examination, are introduced into university grievance proceedings such procedures allow for the ‘‘discovery of the truth’’ in a manner that reduces stereotyping. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations commenter supported the crossexamination requirement and stated that current, unfair procedures harm respondents who are women, and who are gay or lesbian, as well as respondents who are men, giving examples such as a young woman the commenter represented who was so drunk she could not have consented to sex and yet was expelled because the male filed with the Title IX office first. Several commenters asserted that crossexamination is as beneficial for the recipient as for the parties because the decision-maker has the opportunity to observe and judge the credibility of parties and witnesses, thereby serving the recipient’s interest in reaching accurate determinations. Another commenter argued that the opportunity to cross-examine witnesses is a procedural protection that should not be controversial given it is a bedrock principle of the American criminal justice system designed to create a more reliable fact finding process. The commenter believed that a reliable process is in the interest of all parties including recipients, because greater reliability will lead to greater acceptance of the legitimacy of the decisions. This commenter also asserted that institutional opposition to basic notions of due process has led to widespread mistrust of the decisionmaking processes of Title IX offices, evidenced by the prevalence of Federal lawsuits challenging Title IX decisions made by institutions. The commenter argued that institutions must conform their Title IX procedures to basic notions of due process to establish the legitimacy of their decisions. One commenter argued that it is unfair to a complainant not to be able to cross-examine a respondent or witnesses. At least one commenter argued that cross-examination will provide greater reliability, which should encourage complainants to report harassment and further support Title IX’s objective of protecting the educational environment. One commenter argued that giving respondents a full hearing with crossexamination means that victims of ‘‘contemptible rapists’’ can exact justice, and that even if answering questions about painful memories is difficult it is worth it to make sure that rape accusations are not approached lightly. Another commenter asserted that claiming that having an accusation examined is too traumatic for a complainant infantilizes complainants. Several commenters argued that even though testifying about traumatic events is difficult and uncomfortable, testimony from any party that is never VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 questioned cannot be evaluated for truthfulness. Some commenters supported the proposed rules, and cross-examination as the opportunity to test the credibility of claims, because, commenters asserted, women reject the trampling of constitutional rights in the name of women’s rights. One commenter supported live hearings and crossexamination conducted through advisors, including attorneys, because students will have an opportunity to learn about how misconduct allegations are factually examined and determined. Some commenters supported § 106.45(b)(6)(i) but requested that the provision be expanded to expressly give parties the right to also cross-examine any investigator or preparer of an investigative report, because the entire grievance procedure is often based on the findings in the investigative report and it is thus essential that the parties be able to cross-examine the individuals who prepared the report to probe how conclusions were reached and whether the report is credible. Discussion: The Department appreciates commenters’ support for the requirement in § 106.45(b)(6)(i) that postsecondary institutions must hold live hearings with cross-examination conducted by party advisors. The Department agrees with commenters who observed that several appellate courts over the last few years have carefully considered the value of crossexamination in high-stakes student misconduct proceedings in colleges and universities and concluded that part of a meaningful opportunity to be heard includes the ability to challenge the testimony of parties and witnesses. The Department agrees with commenters who noted that this conclusion has been reached by courts both in the context of constitutional due process in public institutions and a fair process in private institutions. The Department agrees with commenters who observed that some States already provide rights to a robust hearing and cross-examination under State APA laws, demonstrating that the notion of live hearings and cross-examination is not new or foreign to many postsecondary institutions. The Department is aware that many postsecondary institutions have created disciplinary systems for sexual misconduct issues that intentionally avoid live hearings and crossexamination, due to concern about retraumatizing sexual assault victims; however, the Department agrees with commenters that in too many instances recipients who have refused to permit parties or their advisors to conduct cross-examination and instead allowed PO 00000 Frm 00289 Fmt 4701 Sfmt 4700 30313 questions to be posed through hearing panels have stifled the value of crossexamination by, for example, refusing to ask relevant questions posed by a party, changing the wording of a party’s question, or refusing to allow follow-up questions. The Department agrees with commenters that cross-examination serves the interests of complainants, respondents, and recipients, by giving the decision-maker the opportunity to observe parties and witnesses answer questions, including those challenging credibility, thus serving the truthseeking purpose of an adjudication. The Department acknowledges that Title IX grievance processes are not criminal proceedings and thus constitutional protections available to criminal defendants (such as the right to confront one’s accuser under the Sixth Amendment) do not apply in the educational context; however, the Department agrees with commenters that cross-examination is a valuable tool for resolving the truth of serious allegations such as those presented in a formal complaint of sexual harassment. The Department emphasizes that crossexamination that may reveal faulty memory, mistaken beliefs, or inaccurate facts about allegations does not mean that the party answering questions is necessarily lying or making intentionally false statements. The Department’s belief that crossexamination serves a valuable purpose in resolving factual allegations does not reflect a belief that false accusations occur with any particular frequency in the context of sexual misconduct proceedings. However, the degree to which any inaccuracy, inconsistency, or implausibility in a narrative provided by a party or witness should affect a determination regarding responsibility is a matter to be decided by the decision-maker, after having the opportunity to ask questions of parties and witnesses, and to observe how parties and witnesses answer the questions posed by the other party. The Department agrees with commenters that the truth-seeking function of cross-examination can be achieved while mitigating any retraumatization of complainants because under the final regulations: Crossexamination is only conducted by party advisors and not directly or personally by the parties themselves; upon any party’s request the entire live hearing, including cross-examination, must occur with the parties in separate rooms; questions about a complainant’s prior sexual behavior are barred subject to two limited exceptions; a party’s medical or psychological records can E:\FR\FM\19MYR2.SGM 19MYR2 30314 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations only be used with the party’s voluntary consent; 1196 recipients are instructed that only relevant questions must be answered and the decision-maker must determine relevance prior to a party or witness answering a cross-examination question; and recipients can oversee cross-examination in a manner that avoids aggressive, abusive questioning of any party or witness.1197 The Department agrees with commenters that sex bias is a unique risk in the context of sexual harassment allegations, where the case often turns on plausible, competing factual narratives of an incident involving sexual or sex-based interactions, and application of sex stereotypes and biases may too easily become a part of the decision-making process. The Department agrees with commenters that ensuring fair adversarial procedures lies within the Department’s authority to effectuate the purpose of Title IX because such procedures will prevent and reduce sex bias in Title IX grievance processes and better ensure that recipients provide remedies to victims of sexual harassment. The Department agrees with commenters that cross-examination equally benefits complainants and respondents, and that both parties in a high-stakes proceeding raising contested factual issues deserve equal rights to fully participate in the proceeding. This ensures that the decision-maker observes each party’s view, perspective, opinion, belief, and recollection about the incident raised in the formal complaint of sexual harassment. The Department agrees with commenters who note that any person can be a complainant, and any person can be a respondent, regardless of a person’s race, sexual orientation, gender identity, or other personal characteristic, and each party, in every case, deserves the opportunity to promote and advocate for the party’s unique interests. The Department agrees with commenters that postsecondary-level adjudications with live hearings and cross-examination will increase the reality and perception by parties and the public that Title IX grievance processes are reaching fair, accurate determinations, and that robust adversarial procedures improve the 1196 Section 106.45(b)(5)(i) (providing that a party’s treatment records can only be used in a grievance process with that party’s voluntary, written consent). 1197 Section 106.45(b) (introductory sentence as revised in the final regulations provides that any provisions, rules, or practices other than those required by § 106.45 that a recipient adopts as part of its grievance process for handling formal complaints of sexual harassment as defined in § 106.30, must apply equally to both parties). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 legitimacy and credibility of a recipient’s process, making it more likely that no group of complainants or respondents will experience unfair treatment or unjust outcomes in Title IX proceedings (for example, where formal complaints involve people of color, LGBTQ students, star athletes, renowned faculty, etc.). The Department agrees with commenters that cross-examination is as powerful a tool for complainants seeking to hold a respondent responsible as it is for a respondent, and that a determination of responsibility reached after a robust hearing benefits victims by removing opportunity for the respondent, the recipient, or the public to doubt the legitimacy of that determination. The Department agrees with commenters that there is no tension between providing strong procedural protections aimed at discovering the truth about allegations in each particular case, and upholding the rights of women (and every person) to participate in education programs or activities free from sex discrimination. The Department appreciates a commenter’s belief that observing a live hearing with cross-examination may provide students with opportunity to learn about adjudicatory processes, though the Department notes that the purpose of the § 106.45 grievance process is to reach factually reliable determinations so that sex discrimination in the form of sexual harassment is appropriately remedied by recipients so that no student’s educational opportunities are denied due to sex discrimination. The Department understands commenters’ point that often a case is shaped and directed by the evidence gathered and summarized by the investigator in the investigative report, including the investigator’s findings, conclusions, and recommendations. The Department emphasizes that the decision-maker must not only be a separate person from any investigator, but the decision-maker is under an obligation to objectively evaluate all relevant evidence both inculpatory and exculpatory, and must therefore independently reach a determination regarding responsibility without giving deference to the investigative report. The Department further notes that § 106.45(b)(6)(i) already contemplates parties’ equal right to cross-examine any witness, which could include an investigator, and § 106.45(b)(1)(ii) grants parties equal opportunity to present witnesses including fact and expert witnesses, which may include investigators. Changes: None. PO 00000 Frm 00290 Fmt 4701 Sfmt 4700 Retraumatizing Complainants Comments: Many commenters opposed § 106.45(b)(6)(i) requiring postsecondary institutions to hold live hearings with cross-examination conducted by the parties’ advisors. Commenters argued that crossexamination is an adversarial, contentious procedure that will revictimize, retraumatize, and scar survivors of sexual harassment; that cross-examination will exacerbate survivors’ PTSD (post-traumatic stress disorder),1198 RTS (rape trauma syndrome), anxiety, and depression; and cross-examination will interrogate victims like they are the criminals, rub salt in victims’ wounds, put rape victims through a second rape, and essentially place the victim on trial when victims are already trying to heal from a horrific experience. Commenters argued that no other form of misconduct gives respondents the right to ‘‘put on trial’’ the person accusing the respondent of wrongdoing; one commenter argued that for instance, professors accusing a student of cheating are not ‘‘put on trial,’’ a student accusing another student of vandalism is not ‘‘put on trial,’’ so singling out sexual misconduct complainants for a procedure designed to intimidate and undermine the complainant’s credibility heightens the misperception that the credibility of sexual assault complainants is uniquely suspect. Other commenters acknowledged that some recipients do use cross-examination in non-sexual misconduct hearings because cross-examination can be helpful in getting to the heart of the 1198 Commenters cited: Anke Ehlers & David M. Clark, A Cognitive Model of Posttraumatic Stress Disorder, 38 Behavior Research & Therapy 4 (2000); Mary P. Koss, Blame, Shame, and Community: Justice Responses to Violence Against Women, 55 Am. Psychol. 11 (2000); Sue Lees, Carnal Knowledge: Rape on Trial (Hamish Hamilton 2002); Sue Lees & Jeanne Gregory, Attrition in Rape and Sexual Assault Cases, 36 British J. of Criminology 1 (1996); Amanda Konradi, ‘‘I Don’t Have To Be Afraid of You’’: Rape Survivors’ Emotion Management in Court, 22 Symbolic Interaction 1 (1999); Venezia Kingi & Jan Jordan, Responding to Sexual Violence: Pathways to Recovery, Wellington: Ministry of Women’s Affairs (2009); Mary P. Koss et al., Campus Sexual Misconduct: Restorative Justice Approaches to Enhance Compliance with Title IX Guidance, 15 Trauma Violence & Abuse 3 (2014); Fiona Mason & Zoe Lodrick, Psychological Consequences of Sexual Assault, 27 Best Practice & Research Clinical Obstetrics & Gynecology 1 (2013); National Center on Domestic Violence, Trauma & Mental Health, Representing Domestic Violence Survivors Who Are Experiencing Trauma and Other Mental Health Challenges: A Handbook for Attorneys (2011); Kaitlin Chivers-Wilson, Sexual Assault and Posttraumatic Stress Disorder: A Review of The Biological, Psychological and Sociological Factors and Treatments, 9 McGill J. of Med.: MJM: An Int’l Forum for the Advancement of Medical Sciences by Students 2 (2006). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations allegations; these commenters asserted that Title IX hearings are different due to the subject matter and relationships between the parties and crossexamination is inappropriate in sexual misconduct proceedings. Commenters argued that fear of undergoing such a retraumatizing experience will chill reporting of sexual harassment and cause more victims to stay in the shadows because survivors will have no non-traumatic options in the wake of sexual violence.1199 Commenters asserted that coming forward is hard enough for victims because often the trauma has resulted in nightmares, intrusive thoughts, inability to concentrate, and hypervigilance, and the prospect of facing grueling, retraumatizing cross-examination will result in even fewer students coming forward.1200 Commenters argued that reporting will be especially chilled with respect to claims against faculty members, where a power differential already exists. Commenters believed crossexamination creates secondary victimization, which commenters referred to as a result of interacting with community service providers who engage in victim-blaming attitudes.1201 Some commenters believed it is cruel to 1199 Many commenters cited to information regarding low rates of reporting of sexual harassment such as the data noted in the ‘‘Reporting Data’’ subsection of the ‘‘General Support and Opposition’’ section of this preamble, in support of arguments that cross-examination will further reduce rates of reporting. Commenters also cited: Joanne Belknap, Rape: Too Hard to Report and Too Easy to Discredit Victims, 16 Violence Against Women 12 (2010); Suzanne B. Goldberg, Keep Cross-examination Out of College Sexual-Assault Cases, Chronicle of Higher Education (Jan. 10, 2019). 1200 Commenters cited: Judith Lewis Herman, Justice From the Victim’s Perspective, 11 Violence Against Women 5 (2005) for the proposition that cross-examination is inherently retraumatizing and can trigger vivid memories forming one of the ‘‘psychological barriers that discourage victim participation[.]’’ Commenters also cited: Gregory Matoesian, Reproducing Rape: Domination through Talk in the Courtroom (Univ. of Chicago Press 1993); Michelle J. Anderson, Women Do Not Report the Violence They Suffer: Violence Against Women and the State Action Doctrine, 46 Vill. L. Rev. 907, 932, 936–37 (2001); Tom Lininger, Bearing the Cross, 74 Fordham L. Rev. 1353, 1357 (2005); Anoosha Rouhanian, A Call for Change: The Detrimental Impacts of Crawford v. Washington on Domestic Violence and Rape Prosecutions, 37 Boston Coll. J. of L. & Social Justice 1 (2017). 1201 Commenters cited to information regarding secondary victimization and institutional betrayal such as the data noted in the ‘‘Commonly Cited Sources’’ subsection of the ‘‘General Support and Opposition’’ section of this preamble, including, for example, Rebecca Campbell, Survivors’ HelpSeeking Experiences With the Legal and Medical Systems, 20 Violence & Victims 1 (2005). Commenters also cited: Jim Parsons & Tiffany Bergin, The Impact of Criminal Justice Involvement on Victims Mental Health, 23 Journal of Traumatic Stress 2 (2010). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 let victims be cross-examined by the person who committed the assault, or to force a victim to be face-to-face with the perpetrator. Some commenters believed that a public hearing where a victim must be cross-examined would be severely traumatizing. Commenters asserted that anyone taken advantage of by sexual harassment should be able to voice that experience without fear of a traumatizing court case. Commenters argued that subjecting a victim courageous enough to come forward to the re-traumatization of cross-examination is an invasion of the victim’s right to privacy and safety. Commenters asserted that as survivors, they have experienced stress, anxiety, nausea, and fear simply from passing by their attackers, and the thought of being cross-examined near their attacker makes these commenters believe they would not be able to speak at all due to fear, would feel permanently traumatized, would drop out of school, or would even contemplate suicide.1202 Commenters shared personal experiences feeling traumatized by cross-examination in Title IX proceedings, stating that even where a complainant won the case, the experience of cross-examination was so mentally and emotionally taxing that complainants suffered years of mental health treatment, felt unable to perform academically, or dropped out of school. Some commenters supported reform of school discipline procedures and agreed that complainants and respondents should be treated the same when it comes to procedural rights including a right of cross-examination, but argued that recipients should be allowed discretion to decide whether, or how, to incorporate cross-examination into Title IX grievance processes so long as the decision applies equally to both parties, and that it is intrusive and myopic for the Department to unilaterally impose procedures onto sexual misconduct processes, especially in a way that, in the commenters’ views, tilts the system against victims of sexual harassment. Discussion: The Department believes that cross-examination as required under § 106.45(b)(6)(i) is a necessary part of a fair, truth-seeking grievance process in postsecondary institutions, and that these final regulations apply safeguards that minimize the traumatic effect on complainants. We have revised § 106.45(b)(6)(i) to clearly state that the entire live hearing (and not only cross1202 Commenters cited: Amelia Gentleman, Prosecuting Sexual Assault: ‘‘Raped All Over Again,’’ The Guardian (Apr. 13, 2013) for the story of a woman who committed suicide shortly after being cross-examined in a criminal trial in England. PO 00000 Frm 00291 Fmt 4701 Sfmt 4700 30315 examination) must occur with the parties in separate rooms, at the request of any party; that cross-examination must never be conducted by a party personally; and that only relevant crossexamination questions must be answered and the decision-maker must determine the relevance of a crossexamination question before a party or witness answers. Recipients may adopt rules that govern the conduct and decorum of participants at live hearings so long as such rules comply with these final regulations and apply equally to both parties.1203 We understand that cross-examination is a difficult and potentially traumatizing experience for any person, perhaps especially a complainant who must answer questions about sexual assault allegations. These final regulations aim to ensure that the truth-seeking value and function of cross-examination applies for the benefit of both parties while minimizing the discomfort or traumatic impact of answering questions about sexual harassment. While the Department acknowledges that complainants may find a crossexamination procedure emotionally difficult, the Department believes that a complainant can equally benefit from the opportunity to challenge a respondent’s consistency, accuracy, memory, and credibility so that the decision-maker can better assess whether a respondent’s narrative should be believed. The complainant’s advisor will conduct the cross-examination of the respondent and, thus, the complainant will not be retraumatized by having to personally question the respondent. The Department disagrees that cross-examination places a victim (or any party or witness) ‘‘on trial’’ or constitutes an interrogation; rather, cross-examination properly conducted simply constitutes a procedure by which each party and witness answers questions posed from a party’s unique perspective in an effort to advance the asking party’s own interests. The Department disagrees that crossexamination implies that sexual assault complainants are uniquely unreliable; rather, to the extent that crossexamination implies anything about credibility, the Department notes that by giving both parties equal crossexamination rights, the final regulations contemplate that a complainant’s allegations, and a respondent’s denials, 1203 As revised, the introductory sentence of § 106.45(b) provides: ‘‘Any provisions, rules, or practices other than those required by this section that a recipient adopts as part of its grievance process for handling formal complaints of sexual harassment as defined in § 106.30, must apply equally to both parties.’’ E:\FR\FM\19MYR2.SGM 19MYR2 30316 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations equally warrant probes for credibility and truthfulness. The Department appreciates commenters’ observations that some recipients do not use live hearings or cross-examination for any form of misconduct charges while other recipients use hearings and crossexamination for some types of misconduct but not for sexual misconduct. The Department does not opine through these final regulations as to whether cross-examination is beneficial for non-sexual harassment misconduct allegations because the Department’s focus in these final regulations are the procedures most likely to reach reliable outcomes in the context of Title IX sexual harassment. The Department agrees with commenters who note that sexual harassment allegations present unique circumstances, but disagrees that the subject matter or relationships between parties involved in sexual harassment allegations make cross-examination less useful than for other types of misconduct allegations. Rather, the Department believes that precisely because the subject matter involves sensitive, personal matters presenting high stakes and long-lasting consequences for both parties, robust procedural rights for both parties are all the more important so that each party may fully, meaningfully put forward the party’s viewpoints and beliefs about the allegations and the case outcome. The Department acknowledges that predictions of harsh, aggressive, victimblaming cross-examination may dissuade complainants from pursuing a formal complaint out of fear of undergoing questioning that could be perceived as an interrogation. However, recipients retain discretion under the final regulations to educate a recipient’s community about what crossexamination during a Title IX grievance process will look like, including developing rules and practices (that apply equally to both parties) 1204 to oversee cross-examination to ensure that questioning is relevant, respectful, and non-abusive. We have revised § 106.45(b)(6)(i) to specifically state that only relevant cross-examination questions must be answered and the decision-maker must determine the relevance of a cross-examination question before the party of witness answers. We have revised § 106.45(b)(1)(iii) to specifically require decision-makers to be trained on 1204 The introductory sentence of § 106.45(b) expressly permits recipients to adopt rules for the Title IX grievance process so long as such rules are applied equally to both parties. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 conducting live hearings and determining relevance (including the non-relevance of questions and evidence about a complainant’s prior sexual history). The Department also notes that recipients must comply with obligations under applicable disability laws, and that the final regulations contemplate that disability accommodations (e.g., a short-term postponement of a hearing date due to a party’s need to seek medical treatment for anxiety or depression) may be good cause for a limited extension of the recipient’s designated, reasonably prompt time frame for the grievance process.1205 The Department understands that victims of sexual violence often experience PTSD and other significant negative impacts, and that participating in a grievance process may exacerbate these impacts. The Department believes that the final regulations appropriately provide a framework under which a recipient must offer supportive measures to each complainant (without waiting for a factual adjudication of the complainant’s allegations),1206 and provide remedies for a complainant where the respondent is found responsible following a fair grievance process.1207 Complainants can receive supportive measures from a recipient, and each complainant can decide whether, in addition to supportive measures, participating in a grievance process is a step the complainant wants to take.1208 In this manner, these final regulations respect the complainant’s autonomy. The Department therefore disagrees with commenters who asserted that under the final regulations complainants will have ‘‘no nontraumatic options’’ and will feel deterred from reporting; complainants can report sexual harassment and receive supportive measures without even filing a formal complaint, much less participating in a grievance process or undergoing cross-examination. This option for reporting exists regardless of the identity of the respondent (e.g., whether the respondent is an employee, faculty member, or student), and 1205 Section 106.45(b)(1)(v). 106.44(a) (recipients must offer supportive measures to a complainant, and the Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint). 1207 Section 106.45(b)(1)(i). 1208 Section 106.71 (prohibiting retaliation for exercise of rights under Title IX and specifically protecting any individual’s right to not participate in a grievance process). 1206 Section PO 00000 Frm 00292 Fmt 4701 Sfmt 4700 therefore all complainants have the same non-traumatic reporting option regardless of any real or perceived power differential between the complainant and respondent. The Department disagrees that including cross-examination as a procedure in the grievance process constitutes institutional betrayal. Crossexamination does not inherently involve victim-blaming attitudes, and as noted above, recipients retain wide discretion under the final regulations to adopt rules and practices designed to ensure that cross-examination occurs in a respectful, non-abusive manner. Further, the reason cross-examination must be conducted by a party’s advisor, and not by the decision-maker or other neutral official, is so that the recipient remains truly neutral throughout the grievance process. To the extent that a party wants the other party questioned in an adversarial manner in order to further the asking party’s views and interests, that questioning is conducted by the party’s own advisor, and not by the recipient. Thus, no complainant (or respondent) need feel as though the recipient is ‘‘taking sides’’ or otherwise engaging in cross-examination to make a complainant feel as though the recipient is blaming or disbelieving the complainant. The Department appreciates the opportunity to clarify that contrary to the fears of some commenters, § 106.45(b)(6)(i) prohibits any complainant from being questioned directly by the respondent; rather, only party advisors can conduct crossexamination. We have revised § 106.45(b)(6)(i) specifically to state that cross-examination must occur ‘‘directly, orally, and in real-time’’ by the party’s advisor and ‘‘never by a party personally.’’ Similarly, § 106.45(b)(6)(i) is revised to require recipients to hold the entire live hearing (and not just cross-examination) with the parties in separate rooms (facilitated by technology) so that the parties need never be face-to-face, upon a party’s request. Similarly, the Department notes that the live hearing is not a ‘‘public’’ hearing, and the final regulations add § 106.71 that requires recipients to keep party and witness identities confidential except as permitted by law and as needed to conduct an investigation or hearing. The Department understands commenters’ concerns that sexual harassment victims have already suffered the underlying conduct and that participating in a grievance process may be difficult for victims. However, before allegations may be treated as fact (i.e., before a complainant can be E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations deemed a victim of particular conduct by a particular respondent), a fair process must reach an accurate outcome, and in situations that involve contested allegations, procedures designed to discover the truth by permitting opposing parties each to advocate for their own viewpoints and interests are most likely to reach accurate outcomes based on facts and evidence rather than assumptions and bias. The Department disagrees that adjudication via a live hearing with cross-examination invades a complainant’s privacy or risks a complainant’s safety. The final regulations revise § 106.45(b)(5) to ensure that recipients do not access or use any party’s treatment records without obtaining the party’s written consent, thus limiting the type of sensitive, private information that becomes part of a § 106.45 grievance process without a party’s consent. Further, § 106.45(b)(5)(vi) limits the exchange of evidence from an investigation only to evidence directly related to the allegations in the formal complaint. Additionally, § 106.45(b)(6)(i) deems questions and evidence regarding a complainant’s prior sexual behavior or sexual predisposition to be irrelevant, with specified exceptions, to further protect complainants’ privacy, and upon a party’s request the entire live hearing must be held with the parties located in separate rooms. The Department disagrees that an adjudication process that includes a live hearing with crossexamination jeopardizes any party’s safety, particularly with the privacy and anti-retaliation provisions referenced above, and the Department further notes that safety-related measures remain available under the final regulations including the ability for a recipient to impose no-contact orders on the parties under § 106.30 defining ‘‘supportive measures,’’ or to remove a respondent on an emergency basis under § 106.44(c). Further, a complainant also retains the ability to obtain an order of protection (e.g., a restraining order) from a court of law. The Department understands commenters’ concerns about the prospect of cross-examination, and appreciates commenters’ personal experiences with the difficulties of cross-examination, but reiterates that cross-examination essentially consists of questions posed from one party’s perspective to advance the asking party’s views about the allegations at issue, that recipients retain discretion to control the conduct of crossexamination in a manner that ensures VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 that no party is treated abusively or disrespectfully, that only relevant crossexamination questions must be answered, and that either party may demand that the live hearing occur with the parties in separate rooms. Based on comments from many recipients, the Department believes that recipients desire to treat all their students and employees with dignity and respect, and that recipients will therefore conduct hearings in a manner that keeps the focus on respectful questioning regarding the allegations at issue while permitting each party (through advisors) to advocate for the party’s own interests before the decision-maker. The Department appreciates commenters’ support for ensuring that both parties have equal rights with respect to cross-examination, but disagrees that § 106.45(b)(6)(i) is intrusive or myopic because, for reasons explained throughout this preamble, the Department has determined that in the context of resolution of Title IX sexual harassment allegations the procedures in § 106.45 constitute those procedures necessary to ensure consistent, predictable application of Title IX rights, and does not believe that crossexamination in the postsecondary context tilts the system against sexual harassment victims. An equal right of cross-examination benefits complainants as well as respondents, by permitting complainants to participate in advocating for their own view of the case so that a decision-maker is more likely to reach an accurate determination, and where a respondent is found responsible the victim will receive remedies designed to restore or preserve equal access to education. Changes: We have revised § 106.45(b)(6)(i) to state that crossexamination must occur ‘‘directly, orally, and in real-time’’ by a party’s advisor ‘‘and never by a party personally’’ and that upon a party’s request the entire live hearing (not only cross-examination) must occur with the parties located in separate rooms (with technology enabling participants to see and hear each other). We have further revised § 106.45(b)(6)(i) to state that only relevant cross-examination questions must be answered, and the decision-maker must determine the relevance of a cross-examination or other question before the party or witness answers the question (and explain any decision to exclude a question as not relevant). The final regulations add § 106.71 prohibiting retaliation and providing in relevant part that the recipient must keep confidential the identity of any individual who has made a report or PO 00000 Frm 00293 Fmt 4701 Sfmt 4700 30317 complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute or regulations, as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. Reducing Truth-Seeking Comments: Many commenters asserted that cross-examination would mean that complainants are questioned via verbal attacks on the complainant’s character rather than sensitively in a respectful manner designed to aid the fact-finding process.1209 Commenters argued that in criminal cases, it is accepted that the defense counsel’s job to put the prosecutor’s case in the worst possible light regardless of the truth and to impeach an adverse witness even if the defense attorney believes the witness is telling the truth.1210 Commenters argued that crossexaminations are just emotional beatings to twist survivors’ perception and memory and lead them to mistakenly admit to or believe in false information, make the survivor feel insecure about what really happened, challenge the legitimacy of the survivor’s experience, and therefore lead to an unjust outcome. Commenters argued that cross-examination took the place of torture in our legal system and 1209 Commenters cited: Abbe Smith, Representing Rapists: The Cruelty of Cross-Examination and Other Challenges for a Feminist Criminal Defense Lawyer, 53 Am. Crim. L. Rev. 255, 290 (2016) (noting that a defense attorney recently acknowledged, ‘‘Especially when the defense is fabrication or consent—as it often is in adult rape cases—you have to go at the witness. There is no way around this fact. Effective cross-examination means exploiting every uncertainty, inconsistency, and implausibility. More, it means attacking the witness’s very character.’’) (emphasis in original). 1210 Commenters cited: United States v. Wade, 388 U.S. 218, 257–58 (1967) (White, J., dissenting in part and concurring in part) for the proposition that Justice Byron White explained five years before Title IX was enacted that cross-examination ‘‘in many instances has little, if any, relation to the search for the truth.’’ Instead, at least in criminal cases, it is accepted that defense counsel’s job is ‘‘to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth’’ and to ‘‘cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth.’’ Id. Commenters also cited: Louise Ellison, The Mosaic Art: CrossExamination and the Vulnerable Witness, 21 Legal Studies 353, 366, 368–369, 373–375 (2001); John Spencer, ‘‘Conclusions,’’ in Children and CrossExamination: Time to Change the Rules? 189 (John Spencer & Michael Lamb eds., Hart Publishing 2012). E:\FR\FM\19MYR2.SGM 19MYR2 30318 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations remains a brutal exercise.1211 Commenters stated that when working with victims as clients, victims’ number one fear is often cross-examination whether in a civil court or criminal court; while they do not fear the truth, they fear defense lawyers’ attempts to confuse them and blame them for not remembering every single part of the story even when it was drug or alcohol induced, and they fear telling their story to near strangers and still not getting the justice and safety they need. Commenters argued that crossexamination is designed to engage in DARVO (deny, attack, reverse victim/ offender) strategies that harm victims. Commenters argued that even cases that seem to be ‘‘he said/she said’’ often involve more evidence than just the parties’ statements,1212 so crossexamination is unnecessary and may disincentivize recipients from conducting a full investigation that uncovers relevant evidence. Many commenters believed the negative results of cross-examination would be heightened by the proposed rules’ requirement that crossexamination be conducted by a party’s advisor, who could be a respondent’s angry parent, fraternity brother, roommate, or other person untrained in conducting cross-examination and holding severe bias against the complainant. Some commenters asserted that cross-examination by advisors would turn misconduct hearings into unregulated kangaroo courts where untrained, unskilled nonattorney advisors are ‘‘playing attorney’’ yet eliciting little or no useful information. Commenters argued that in court trials, the parties themselves feel constrained to come across to judges 1211 Commenters cited: David Luban, Partisanship, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Ellmann, 90 Colum. L. Rev. 1004, 1027–28 (1990) (examining the legal ethics of cross-examinations in rape cases, even with rape shield laws in place) (‘‘To make it seem plausible that the victim consented and then turned around and charged rape, the lawyer must play to the jurors’ deeply rooted cultural fantasies about feminine sexual voracity and vengefulness. All the while, without seeming like a bully, the advocate must humiliate and browbeat the prosecutrix, knowing that if she blows up she will seem less sympathetic, while if she pulls inside herself emotionally she loses credibility as a victim. Let us abbreviate all of this simply as ‘brutal cross-examination.’ ’’). Commenters also cited: 5 John Henry Wigmore, Evidence in Trials at Common Law § 1367 (James H. Chabourn ed., Little Brown 1974) (Wigmore explained that ‘‘in more than one sense’’ crossexamination took ‘‘the place in our system which torture occupied in the medieval system of the civilians.’’). 1212 Commenters cited: Eliza Lehner, Rape Process Templates: A Hidden Cause of the Underreporting of Rape, 29 Yale J. of L. & Feminism 1 (2018). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 and juries as nice, earnest, and sympathetic, while attorneys feel free to ‘‘take the gloves off’’ when crossexamining the opposing party and the same dynamic would prevail in college disciplinary hearings. Some commenters asserted that telling complainants that they will be cross-examined by a lawyer or a respondent’s parent, roommate, or fraternity brother will make the complainant feel as though the university the complainant should be able to trust is throwing the complainant to proverbial wolves. One commenter recounted being questioned by a respondent’s advisor of choice and asserted that the advisor spoke to the commenter in a disempowering, blaming, and condescending way, fueling the commenter’s feelings of being traumatized and harming the commenter’s ability to function as a student. Some commenters asserted that allowing questioning to take place through an advisor removes accountability students should have for their own actions and will result in students blaming their advisors for poor conduct during a hearing. Many commenters opposed the crossexamination requirement because the proposed rules do not guarantee procedural protections that accompany cross-examination in criminal or civil trials, such as the right to representation by counsel, rules of evidence,1213 and a judge ruling on objections. Commenters argued that cross-examination is only potentially useful for discovering the truth when used by skilled lawyers in courtrooms overseen by experienced judges, and that in the hands of untrained, inexperienced advisors will be only a tool to trap, harass, and blame complainants rather than discern truth about allegations.1214 Commenters asserted that colleges will not adequately protect parties from inappropriate or irrelevant questions, so that cross-examination will intrude into irrelevant details about victims’ private lives, reputations, and trustworthiness. 1213 Commenters cited: Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 635 (6th Cir. 2005) for the proposition that Federal or State rules of evidence do not apply to college disciplinary proceedings. 1214 Commenters cited: Francis P. Karam, The Truth Engine: Cross-Examination Outside the Box (Themistocles Books 2018) (describing crossexamination as a tool requiring great skill and experience for lawyers to utilize well); Association of Title IX Administrators (ATIXA), ATIXA Position Statement on Cross-Examining: The Urge to Transform College Conduct Proceedings into Courtrooms 1 (Oct. 5, 2018) (without the complex procedural and evidentiary rules that apply to cross-examination in courtrooms, in a college setting ‘‘emotional or verbal meltdown is considerably more likely than effective probing for truth’’). PO 00000 Frm 00294 Fmt 4701 Sfmt 4700 Commenters argued that institutions have no power to hold an attorney in contempt, and attorneys are trained to be very aggressive, and thus institutions will not be able to control overly hostile, abusive party advisors who are attorneys. Commenters stated that school administrators are ill equipped to make nuanced legal determinations about the relevant scope of questions and answers, and that schools will be too nervous to act to control lawyers, who will run the show and not respect even the few limits placed on crossexamination. Commenters asserted that even in court where judges oversee defense attorneys, survivors describe crossexamination as the most distressing part of their experience within the criminal justice system even when the survivors report feeling reasonably able to give accurate evidence.1215 Commenters asserted that most rape victims face defense lawyer tactics like interrupting, asking for only yes-no answers, asking illogical questions, grilling on minute details of the incident, and asking irrelevant personal questions.1216 Commenters argued that crossexamination outside a controlled courtroom setting will subject victims to intrusive, retraumatizing questions designed to humiliate, intimidate, and blame them, with no recourse as a victim would have being questioned in front of a judge, thereby weaponizing university proceedings against victims. At least one commenter argued that even in criminal settings, in-person cross-examination is not always required; under some laws vulnerable witnesses such as children are allowed to pre-record evidence in advance rather than testify live.1217 1215 Commenters cited: Mark R. Kebbell et al., Rape Victims’ Experiences of Giving Evidence in English Courts: A Survey, 14 Psychiatry, Psychol. & L. 1 (2007); Shana L. Maier, I Have Heard Horrible Stories . . . : Rape Victim Advocates’ Perceptions of the Revictimization of Rape Victims by the Police and Medical System, 14 Violence Against Women 7 (2008) for the proposition that rape victims are often traumatized by seeking help from the health care system too, but traumatic processes should only be used when necessary—e.g., when medical care is needed, or when a criminal trial requires cross-examination. 1216 Commenters cited: Amanda Konradi, Taking the Stand: Rape Survivors and the Prosecution of Rapists (Praeger Publishers (2007); American Bar Association Center of Children and the Law, Handbook On Questioning Children—A Linguistic Perspective 48–49 (2d ed. 1999); Annie Cossins, Cross-examination in Child Sexual Assault Trials: Evidentiary Safeguard or Opportunity to Confuse, 33 Melbourne L. Rev. 1, 78–79 (2009) (quoting and summarizing Mark Brennan, The Discourse of Denial: Cross-examining Child Victim Witnesses, 23 Journal of Pragmatics 1 (1995)). 1217 Commenters cited: Elizabeth McDonald & Yvette Tinsley, Use of Alternative Ways of Giving Evidence by Vulnerable Witnesses: Current E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Discussion: The Department is aware that the perception, and in some circumstances the reality, of crossexamination in sexual assault cases has felt to victims like an emotional beating under which a skilled defense lawyer tries to twist a survivor’s words, question the survivor’s experience, or convince a fact-finder to find the defense lawyer’s client is innocent by blaming the victim for the sexual assault or discrediting the victim with irrelevant character aspersions. The Department reiterates, however, that the essential function of cross-examination is not to embarrass, blame, humiliate, or emotionally berate a party, but rather to ask questions that probe a party’s narrative in order to give the decisionmaker the fullest view possible of the evidence relevant to the allegations at issue. The Department disagrees with commenters’ assertion that crossexamination is the equivalent of torture; while commenters noted Wigmore’s observation that cross-examination has taken the place that torture historically occupied in civil law systems (as opposed to our common law system), such an observation implies that crossexamination differs from torture and is the enlightened, humane manner of testing a witness’s testimony. The Department purposefully designed these final regulations to allow recipients to retain flexibility to adopt rules of decorum that prohibit any party advisor or decision-maker from questioning witnesses in an abusive, intimidating, or disrespectful manner. While the Department understands commenters’ concerns that crossexamination has in some situations utilized DARVO strategies, crossexamination does not inherently rely on or necessitate DARVO techniques, and recipients retain discretion to apply rules designed to ensure that crossexamination remains focused on relevant topics conducted in a respectful manner. Recipients are in a better position than the Department to craft rules of decorum best suited to their educational environment. To emphasize that cross-examination must focus only on questions that are relevant to the allegations in dispute, we have revised § 106.45(b)(6)(i) to state that only relevant cross-examination or other questions may be asked of a party or witness, and before a party or witness answers a cross-examination question the decision-maker must determine whether the question is relevant (and explain a decision to exclude a question as not relevant).1218 The Department further reiterates that the tool of cross-examination is equally as valuable for complainants as for respondents, because questioning that challenges a respondent’s narrative may be as useful for a decision-maker to reach an accurate determination as questioning that challenges a complainant’s narrative. The Department agrees with commenters that even so-called ‘‘he said/she said’’ cases often involve evidence in addition to the parties’ respective narratives, and the § 106.45 grievance process obligates recipients to bear the burden of gathering evidence and to objectively evaluate all relevant evidence, both inculpatory and exculpatory, including the parties’ own statements as well as other evidence. The Department disagrees that cross-examination disincentivizes recipients from conducting a full investigation that uncovers all relevant evidence, in part because § 106.45 obligates recipients to gather relevant evidence, and in part because cross-examination occurs at the end of the grievance process such that the parties have already had an opportunity to inspect and review the evidence collected by the recipient. The Department acknowledges commenters’ concerns that under § 106.45(b)(6)(i) cross-examination is conducted by party advisors, and the final regulations do not require a party’s advisor of choice to be an attorney, nor may a recipient restrict a party’s choice of advisor, resulting in scenarios where a party’s advisor may be the party’s friend or relative or other person who may not be trained or experienced in conducting cross-examination. Regardless of the identity, status, or profession of a party’s advisor of choice, a recipient retains discretion under the final regulations to apply rules at a live hearing that require participants to refrain from engaging in abusive, aggressive behavior. Further, regardless of who serves as a party’s advisor, recipients are responsible for ensuring that only relevant cross-examination and other questions are asked, and decision-makers must determine the relevance of each cross-examination question before a party or witness answers. Thus, recipients retain the ability and responsibility to ensure that hearings in a § 106.45 grievance process are in no way ‘‘kangaroo courts’’ and Proposals, Issues and Challenges, Victoria Univ. of Wellington L. Rev. (July 2, 2012) (forthcoming Victoria University of Wellington Legal Research Paper No. 2/2011). 1218 We have also revised § 106.45(b)(1)(iii) to specifically require that decision-makers are trained on issues of relevance, including application of the ‘‘rape shield’’ protections in § 106.45(b)(6). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 PO 00000 Frm 00295 Fmt 4701 Sfmt 4700 30319 instead function as truth-seeking processes. The Department recognizes that party advisors may be, but are not required to be, attorneys and thus in some proceedings cross-examination on behalf of one or both parties will be conducted by non-lawyers who may be emotionally attached to the party whom they are advising. However, the Department believes that requiring cross-examination to be conducted by party advisors is superior to allowing parties to conduct cross-examination themselves; with respect to complainants and respondents in the context of sexual harassment allegations in an education program or activity, the strictures of the Sixth Amendment do not apply. The Department believes that having advisors as buffers appropriately prevents personal confrontation between the parties while accomplishing the goal of a fair, truthseeking process. Precisely because a Title IX grievance process is neither a civil nor criminal proceeding in a court of law, the Department clarifies here that conducting cross-examination consists simply of posing questions intended to advance the asking party’s perspective with respect to the specific allegations at issue; no legal or other training or expertise can or should be required to ask factual questions in the context of a Title IX grievance process. Thus, the Department disagrees that non-lawyer party advisors will be ‘‘playing attorney.’’ The Department notes that a recipient is free to explain to complainants (and respondents) that the recipient is required by these Title IX regulations to provide crossexamination opportunities. The final regulations do not prevent a recipient from adopting rules of decorum for a hearing to ensure respectful questioning, and thus recipients may reassure parties that the recipient is not throwing a party to the proverbial wolves by conducting a hearing designed to resolve the allegations at issue. The Department appreciates commenters who described experiences being questioned by party advisors as feeling like the advisor asked questions in a disempowering, blaming, and condescending way; however, the Department notes that such questioning may feel that way to the person being questioned by virtue of the fact that cross-examination is intended to promote the perspective of the opposing party, and this does not necessarily mean that the questioning was irrelevant or abusive. The Department disagrees that allowing questioning to take place through an advisor removes E:\FR\FM\19MYR2.SGM 19MYR2 30320 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations accountability students should have for their own actions. Under the final regulations, the parties themselves retain significant control and responsibility for their own decisions; the role of an advisor is to assist and advise the party. The Department does not agree that the final regulations encourage students to blame their advisors for poor conduct during a hearing; the final regulations do not preclude a recipient from enforcing rules of decorum that ensure all participants, including parties and advisors, participate respectfully and non-abusively during a hearing. If a party’s advisor of choice refuses to comply with a recipient’s rules of decorum (for example, by insisting on yelling at the other party), the recipient may require the party to use a different advisor. Similarly, if an advisor that the recipient provides refuses to comply with a recipient’s rules of decorum, the recipient may provide that party with a different advisor to conduct crossexamination on behalf of that party. This incentivizes a party to work with an advisor of choice in a manner that complies with a recipient’s rules that govern the conduct of a hearing, and incentivizes recipients to appoint advisors who also will comply with such rules, so that hearings are conducted with respect for all participants. The Department understands that cross-examination in a Title IX grievance process is not the same as cross-examination in a civil or criminal court, that a § 106.45 grievance process need not be overseen by a judge, and that party advisors need not be attorneys. However, the Department believes that recipients are equipped to oversee and implement a hearing process focused on the relevant facts at issue, including relevant crossexamination questions, without converting classrooms into courtrooms or necessitating that participants be attorneys or judges. To ensure that recipients understand that the individuals serving as a recipient’s decision-maker(s) must understand how to conduct a live hearing and how to address relevance issues, we have revised § 106.45(b)(1)(iii) to require decision-makers to receive such training. The Department agrees with commenters who asserted that postsecondary institutions have already become familiar with the concept of party advisors of choice, that many postsecondary institutions routinely enforce a rule that forbids party advisors from speaking during proceedings (often referred to as a ‘‘potted plant’’ rule), and VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 that this practice demonstrates that postsecondary institutions are capable of appropriately controlling party advisors even without the power to hold attorneys in contempt of court. The Department does not believe that determinations about whether certain questions or evidence are relevant or directly related to the allegations at issue requires legal training and that such factual determinations reasonably can be made by layperson recipient officials impartially applying logic and common sense. The Department believes that recipients are capable of, and committed to, controlling a hearing environment to keep the proceeding focused on relevant evidence and ensuring that participants are treated respectfully, such that a recipient’s Title IX grievance process will not be ‘‘weaponized’’ for or against any party. The Department notes that in criminal proceedings, defendants have a right to self-representation raising the potential for a party to personally conduct crossexamination of witnesses, whereas the final regulations do not grant a right of self-representation and thus avoid the risks of ineffectiveness and trauma for complainants that may arise where a perpetrator personally cross-examines a victim. The Department acknowledges that even in criminal settings, in-person cross-examination is not always required, and § 106.45(b)(6)(i) has adapted the procedure of crossexamination in a way that avoids importation of criminal law standards, for example by requiring the parties to be in separate rooms (upon either party’s request), and disallowing a right of self-representation even if a party would otherwise wish to be selfrepresented. The Department disagrees, however, that allowing pre-recorded testimony in lieu of answering of questions during a live hearing would sufficiently accomplish the function of cross-examination in the postsecondary context, where the parties’ and decisionmaker’s ability to hear parties’ and witness’s answers to questions and immediate follow-up questions is the better method of ‘‘airing out’’ all viewpoints about the allegations at issue. Pre-recorded testimony does not, for example, allow a party to challenge in real time any inconsistencies and inaccuracies in the other party’s testimony by posing follow-up questions. Changes: None. Demeanor Evaluation Is Unreliable Comments: Commenters argued that cross-examination is an opportunity to evaluate the body language and PO 00000 Frm 00296 Fmt 4701 Sfmt 4700 demeanor of a party under questioning for the purpose of assessing credibility 1219 but that while credibility is typically based on a number of factors such as sufficient specific detail, inherent plausibility, internal consistency, corroborative evidence, and demeanor, the most unreliable factor is demeanor. Commenters asserted that research shows how people interpret another person’s demeanor is easily misconstrued, what people ‘‘read’’ in facial expression and body language is ‘‘highly ambiguous and cannot be interpreted without reference to pre-existing schemas and assumptions,’’ 1220 a person’s ability to judge truthfulness is not better than 50 percent accuracy, and what people often mistake for signs of deception are often actually indicators of stress-coping mechanisms.1221 Commenters argued that research shows that crossexamination does not accurately assess credibility or yield accurate testimony, especially for vulnerable witnesses such as sexual abuse victims, individuals with intellectual disabilities, or children, and accuracy of children’s testimony may be affected by a child’s self-esteem, confidence, and the presence of parents during testimony.1222 Commenters argued that 1219 Commenters cited: H. Hunter Bruton, CrossExamination, College Sexual-Assault Adjudications, and the Opportunity for Tuning up the Greatest Legal Engine Ever Invented, 27 Cornell J. of L. & Pub. Pol’y 145 (2017). 1220 Commenters cited: Susan A. Bandes, Remorse, Demeanor, and the Consequences of Misinterpretation: The Limits of Law as a Window into the Soul, 3 Journal of L., Religion & St. 170, 179 (2014). 1221 Commenters cited: Olin Guy Wellborn III, Demeanor, 76 Cornell L. Rev. 1075, 1080 (1991) for the proposition that when interviewees are questioned by ‘‘suspicious interviewers, subjects tend to view their responses as deceptive even when they are honest’’ in part because the interrogation places the interviewee under stress, which induces behavior likely to be interpreted as deceptive. 1222 Commenters cited: Mark W. Bennett, Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know About Cognitive Psychology and Witness Credibility, 64 Am. Univ. L. Rev. 1331 (2015); Megan Reidy, Comment: The Impact of Media Coverage on Rape Shield Laws in High-Profile Cases: Is the Victim Receiving a ‘‘Fair Trial’’, 54 Cath. Univ. L. Rev. 297, 308 (2005); Jules Epstein, The Great Engine That Couldn’t: Science, Mistaken Identifications, and the Limits of CrossExamination, 36 Stetson L. Rev. 3 (2007); Tim Valentine & Katie Maras, The Effect of CrossExamination on the Accuracy of Adult Eyewitness Testimony, 25 Applied Cognitive Psychol. 4 (2011); Jacqueline Wheatcroft & Louise Ellison, Evidence in Court: Witness Preparation and Cross-Examination Style Effects on Adult Witness Accuracy, 30 Behavioral Sci. & the L. 6 (2012); Rachel Zajac & Harlene Hayne, I Don’t Think That’s What Really Happened: The Effect of Cross-examination on the Accuracy’ of Children’s Reports, 9 Journal of Experimental Psychol.: Applied 3 (2003); Fiona Jack & Rachel Zajac, The Effect of Age and Reminders E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations decisions based on observing demeanor could lead to erroneous findings of responsibility when facts do not warrant that outcome, that decision-makers may be more likely to find a respondent responsible after watching an emotional complainant describe an alleged assault, or unfairly view a respondent as not credible just because the respondent seems nervous when the nervousness is due to the serious potential consequences of the hearing. Thus, commenters argued, injecting crossexamination into a Title IX campus adjudication that likely depends on under-trained volunteers to assess credibility, will not improve accuracy of outcomes or increase fairness over the status quo but will make survivors reticent even to report sex on Witnesses’ Responses to Cross-ExaminationStyle Questioning, 3 Journal of Applied Research in Memory & Cognition 1 (2014); Saskia Righarts et al., Addressing the Negative Effect of Crossexamination Questioning on Children’s Accuracy: Can We Intervene?, 37 Law & Hum. Behavior 5 (2013); Lauren R. Shapiro, Eyewitness Memory for a Simulated Misdemeanor Crime: The Role of Age and Temperament in Suggestibility, 19 Applied Cognitive Psychol. 3 (2005); Emily Henderson, Bigger Fish to Fry: Should the Reform of Crossexamination Be Expanded Beyond Vulnerable Witnesses, 19 Int’l J. of Evidence & Proof 2 (2015); Rachel Zajac et al., Disorder in the Courtroom: Child Witnesses Under Cross-examination, 32 Developmental Rev. 3, 198 (2012); ‘‘Crossexamination: Impact on Testimony,’’ Wiley Encyclopedia of Forensic Science 656 (Allan Jamieson & Andre Moenssens eds., 2009); Caroline Bettenay et al., Cross-examination: The Testimony of Children With and Without Intellectual Disabilities, 28 Applied Cognitive Psychol. 2 (2014); Joyce Plotnikoff & Richard Woolfson, ‘‘‘Kicking and Screaming’: The Slow Road to Best Evidence,’’ in Children and Cross-examination: Time to Change the Rules? 28 (John Spencer & Michael Lamb eds., 2012); Rhiannon Fogliati & Kay Bussey, The Effects of Cross-examination on Children’s Coached Reports, 21 Psychol., Pub. Pol’y, & L. 1 (2015); Saskia Righarts et al., Young Children’s Responses to Cross-examination Style Questioning: The Effects of Delay and Subsequent Questioning, 21 Psychol., Crime & L. 3 (2015); Rhiannon Fogliati & Kay Bussey, The Effects of Cross-examination on Children’s Reports of Neutral and Transgressive Events, 19 Legal & Crim. Psychol. 2 (2014); Rachel Zajac & Harlene Hayne, The Negative Effect of Cross-examination Style Questioning on Children’s Accuracy: Older Children are Not Immune, 20 Applied Cognitive Psychol. 3 (2006); Rachel Zajac et al., Asked and Answered: Questioning Children in the Courtroom, 10 Psychiatry, Psychol., & L 1 (2003); Rachel Zajac et al., The Diagnostic Value of Children’s Responses to Cross-examination Questioning, 34 Behavioral Sci. & the L. 1 (2016); John E.B. Myers, The Child Witness: Techniques for Direct Examination, Cross-examination, and Impeachment, 18 Pacific L. Rev. 801, 882, 886, 887, 890, 891 (1987); Gail S. Goodman et al., Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims, Monographs of the Society for Research in Child Development, Serial no. 229, Vol. 57, No. 5, at p. 85 (1992); Richard S. Ofshe & Richard A. Leo, The Decision to Confess Falsely, Rational Choice and Irrational Action, 74 Denv. Univ. L. Rev. 979, 985 (1997); Thomas J. Berndt, Developmental Changes in Conformity to Peers and Parents, 15 Developmental Psychol. 608, 615 (1979). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 discrimination.1223 Commenters asked what the Department’s data-driven basis is for concluding that cross-examination is the most effective procedure for determining truth and credibility. Commenters argued that crossexamination will take an emotional toll on all participants 1224 and that complainants, respondents, and witnesses will all be unwilling to endure it, including because crossexamination could compromise their position in criminal and civil proceedings. Some commenters argued that crossexamination contemplates a decisionmaker observing witnesses to assess credibility based on a witness’s demeanor, which increases the danger of racial bias and stereotypes infecting the decision-making process. Commenters argued that Black female students are disadvantaged by crossexamination due to negative, unsupportable stereotypes that Black females are aggressive and sexually promiscuous, and that these students are more likely to be falsely seen as the initiator of sexual harassment or abuse upon cross-examination. Commenters asserted that cross-examination will make male victims scared to report sexual assault perpetrated by a male, for fear of facing a skilled cross-examiner whose aim will be to discredit the male survivor by painting him as an instigator or as having consented to gay sexual activity. A few commenters argued that crossexamination contradicts the concept of an impartial hearing. Discussion: The Department agrees with commenters who asserted that cross-examination provides opportunity for a decision-maker to assess credibility based on a number of factors, including evaluation of body language and demeanor, specific details, inherent plausibility, internal consistency, and corroborative evidence. Even if commenters correctly characterize research that casts doubt on the human ability to discern truthfulness by observing body language and demeanor, with respect to determining the credibility of a narrative or statement, as commenters acknowledged, such credibility determinations are not based 1223 Commenters cited: Kathryn M. Stanchi, The Paradox of the Fresh Complaint Rule, 37 Boston Coll. L. Rev. 146 (1996); Kathryn M. Stanchi, Dealing with Hate in the Feminist Classroom, 11 Mich. J. of Gender & L. 173 (2005); Morrison Torrey, When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24 U.C. Davis L. Rev. 1013, 1014 (1991). 1224 Commenters cited: Eleanor W. Myers & Edward D. Ohlbaum, Discrediting the Truthful Witness: Demonstrating the Reality of Adversary Advocacy, 69 Fordham L. Rev. 1055 (2000). PO 00000 Frm 00297 Fmt 4701 Sfmt 4700 30321 solely on observing demeanor, but also are based on other factors (e.g., specific details, inherent plausibility, internal consistency, corroborative evidence). Cross-examination brings those important factors to a decision-maker’s attention in a way that no other procedural device does; furthermore, while social science research demonstrates the limitations of demeanor as a criterion for judging deception, studies demonstrate that inconsistency is correlated with deception.1225 Thus, cross-examination remains an important part of truthseeking in adjudicative proceedings, partly because of the live, in-themoment nature of the questions and answers, and partly because crossexamination by definition is conducted by someone whose very purpose is to advance one side’s perspective. When that happens on behalf of each side, the decision-maker is more likely to see and hear relevant evidence from all viewpoints and have more information with which to reach a determination that better reflects the truth of the allegations.1226 While commenters contended that some studies cast doubt on the effectiveness of crossexamination in eliciting accurate information, many such studies focus on cross-examination of child victims as 1225 E.g., H. Hunter Bruton, Cross-Examination, College Sexual-Assault Adjudications, and the Opportunity for Tuning up the Greatest Legal Engine Ever Invented, 27 Cornell J. of L. & Pub. Pol’y, 145, 161 (2017) (‘‘While not all inconsistencies arise from deceit, studies have reliably established a link between consistency in testimony and truth telling. And in general, deceitful witnesses have a harder time maintaining consistency under questioning that builds upon their previous answers.’’) (internal citations omitted). 1226 Id. at 158–59 (‘‘Cross-examination highlights the errors of well-intentioned and deceptive witnesses alike. Witnesses can neglect to explain their account fully or make mistakes. When a witness first testifies, her words are ‘a selective presentation of aspects of what the witness remembers, organized in a willful or at least a purposeful manner.’ Cross-examination breaks down carefully curated narratives: ‘[it] places in the hands of the cross-examiner some of the means to show the gaps between the truth and the telling of it.’ What witnesses think they know may in fact be an illusion constructed by the unholy union between the human’s brain fallible nature and outside influences. Probing questioning elicits details that did not appear in the witness’s first account. As the witness adds details, his story may change or completely contradict original assertions. Each new detail or differing characterization represents information the fact-finder would not have otherwise received. In so doing, adversarial questioning exposes witness error, or at least the source of possible error. The shortcomings of perception and memory are among the errors that remain hidden without cross-examination. Crossexamination reminds fact-finders that the limitations of perception and memory affect the verisimilitude of all testimony. Without this reminder, fact-finders may place undue weight on witness testimony.’’) (internal citations omitted). E:\FR\FM\19MYR2.SGM 19MYR2 30322 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations opposed to adult victims 1227 and in any event that literature has not persuaded U.S. legal systems to abandon crossexamination, particularly with respect to adults, as the most effective—even if imperfect—tool for pursuing reliable outcomes through exposure of inaccuracy or lack of candor on the part of parties and witnesses. The Department notes that to the extent that commenters correctly characterize research as indicating that what decision-makers may interpret as signs of deception may in fact be signs of stress, many commenters have pointed out that a grievance process is stressful for both complainants and respondents, and therefore that concern exists for both parties. However, it does not negate the value of crossexamination in bringing to light factors other than demeanor that bear on credibility (such as plausibility and consistency). The final regulations require decision-makers to explain in writing the reasons for determinations regarding responsibility; 1228 if a decision-maker inappropriately applies pre-existing assumptions that amount to bias in the process of evaluating credibility, such bias may provide a basis for a party to appeal.1229 The Department expects that decisionmakers will be well-trained in how to serve impartially, including how to avoid prejudgment of the facts at issue and avoid bias,1230 and the Department notes that judging credibility is traditionally left in the hands of nonlawyers without specialized training, in the form of jurors who serve as factfinders in civil and criminal jury trials, because assessing credibility based on factors such as witness demeanor, plausibility, and consistency are functions of common sense rather than legal expertise. The Department acknowledges that cross-examination may be emotionally difficult for parties and witnesses, especially when the facts at issue concern sensitive, distressing incidents involving sexual conduct. The Department recognizes that not every 1227 Id. at 164–65 (‘‘Experimental studies suggest that cross-examination can mislead witnesses and cause them to change accurate answers to inaccurate answers. Admittedly, there are more studies documenting how cross-examination negatively affects the accuracy of child-victims’ testimony, but the literature suggesting similar results for adult victims continues to grow. A number of factors contribute to the likelihood that a witness will revise what was at first accurate testimony. . . . Put simply, in many cases, ‘honest witnesses can be misled by cross-examination.’ ’’) (internal citations omitted). 1228 Section 106.45(b)(7). 1229 Section 106.45(b)(8). 1230 Section 106.45(b)(1)(iii). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 party or witness will wish to participate, and that recipients have no ability to compel a party or witness to participate. The final regulations protect every individual’s right to choose whether to participate by including § 106.71, which expressly forbids retaliating against any person for exercising rights under Title IX including participation or refusal to participate in a Title IX proceeding. Further, § 106.45(b)(6)(i) includes language that directs a decision-maker to reach the determination regarding responsibility based on the evidence remaining even if a party or witness refuses to undergo cross-examination, so that even though the refusing party’s statement cannot be considered, the decision-maker may reach a determination based on the remaining evidence so long as no inference is drawn based on the party or witness’s absence from the hearing or refusal to answer cross-examination (or other) questions. Thus, even if a party chooses not to appear at the hearing or answer cross-examination questions (whether out of concern about the party’s position in a concurrent or potential civil lawsuit or criminal proceeding, or for any other reason), the party’s mere absence from the hearing or refusal to answer questions does not affect the determination regarding responsibility in the Title IX grievance process. The Department acknowledges that in any situation where a complainant has alleged sexual misconduct without the complainant’s consent, the possibility exists that the respondent will contend that the sexual conduct was in fact consensual, and that cross-examination in those situations might include questions concerning whether consent was present, resulting in discomfort for complainants in such cases, including for complainants alleging male-on-male sexual violence. However, where a sexual offense turns on the existence of consent and that issue is contested, evidence of consent is relevant and each party’s advisor can respectfully ask relevant cross-examination questions about the presence or absence of consent. The Department disagrees that the cross-examination procedure described in § 106.45(b)(6)(i) contradicts the concept of impartiality of the § 106.45 grievance process. Because these final regulations require each party’s advisor, and not the recipient (as the investigator, decision-maker, or other recipient official), to conduct crossexamination, the recipient remains impartial and neutral toward both parties throughout the entirety of the grievance process. By contrast, the parties (through their advisors) are not PO 00000 Frm 00298 Fmt 4701 Sfmt 4700 impartial, are not neutral, and are not objective. Rather, the parties involved in a formal complaint of sexual harassment each have their own viewpoints, beliefs, interests, and desires about the outcome of the grievance process and their participation in the process is for the purpose of furthering their own viewpoints. Cross-examination is conducted by the parties’ advisors, who have no obligation to be neutral, while the recipient remains impartial and neutral with respect to both parties by observing the parties’ respective advocacy of their own perspectives and interests and reaching a determination regarding responsibility based on objective evaluation of the evidence. Thus, the grievance process remains impartial, even though the parties and their advisors are, by definition, not impartial. Changes: The final regulations add language to § 106.45(b)(6)(i) stating that if a party or witness does not submit to cross-examination at the hearing, the decision-maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker cannot draw any inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the hearing or refusal to answer crossexamination or other questions. The final regulations also add § 106.71 prohibiting retaliation and providing in relevant part that no recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by title IX or part 106 of the Department’s regulations, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part. Trauma Responses Comments: Some commenters argued that cross-examination is inherently unfair for survivors because any adversarial questioning may trigger a trauma response (manifesting as panic attacks, flashbacks, painful memories, dissociation, or even suicidal ideation) and instead survivors must be able to recount their experience in a nonstressful environment where they feel safe, without the stress and pressure of cross-examination that can result in a survivor not being able to give a correct account of what happened or mixing up important facts that can affect the outcome of the case. Commenters argued that trauma shapes memory E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations patterns making details of sexual violence difficult to remember, such that traditional cross-examination may lead to a mistaken conclusion that a trauma victim is lying when in reality the victim is being truthful but is unable to recall or answer questions about events in a detailed, linear, or consistent manner. Commenters argued that crossexamination is designed to point out inconsistencies in a person’s testimony often by asking confusing, complex, or leading questions,1231 and neurobiological effects of trauma affect the brain resulting in fragmented or blocked memories of details of the traumatic event.1232 Commenters argued that counterintuitive responses to rape, sexual assault, and other forms of sexual violence are common because trauma impacts the body and brain in ways that impact a person’s affect, emotions, behaviors, and memory recall, such that these normal responses to abnormal circumstances can seem perplexing to individuals untrained in sexual violence dynamics and research about the neurobiology of trauma, leading people to unfairly undermine a victim’s credibility. Commenters argued that research shows that trauma-informed questioning results in potentially more valuable, reliable information than traditional cross-examination.1233 Commenters asserted that yelling at someone to recall a specific sequence of events they experienced under traumatic conditions decreases the accuracy of the recall provided. Commenters asserted that because rape is about power and control, giving a perpetrator more power and control via cross-examination will only intimidate and hurt a victim more.1234 1231 Commenters cited: Rachel Zajac & Paula Cannan, Cross-Examination of Sexual Assault Complainants: A Developmental Comparison, 16 Psychiatry, Psychol. & L. (sup.1) 36 (2009). 1232 Many commenters cited to information regarding the impact of trauma, such as the data noted in the ‘‘Commonly Cited Sources’’ subsection of the ‘‘General Support and Opposition’’ section of this preamble, in support of arguments that crossexamination may trigger a trauma response and that trauma victims are often unable to recall the traumatic events in a detailed, linear fashion. Commenters also cited: Substance Abuse and Mental Health Services Administration, Center for Substance Abuse Treatment, Trauma-Informed Care in Behavioral Health Services (2014); Massachusetts Advocates for Children: Trauma and Learning Policy Initiative, Helping Traumatized Children Learn: Supportive School Environments for Children Traumatized by Family Violence (2005). 1233 Commenters cited: Sara F. Dudley, Paved with Good Intentions: Title IX Campus Sexual Assault Proceedings and the Creation of Admissible Victim Statements, 46 Golden Gate Univ. L. Rev. 117 (2016). 1234 Commenters cited: Ryan M. Walsh & Steven E. Bruce, The Relationships Between Perceived Levels of Control, Psychological Distress, and Legal VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Commenters argued that while crossexamination is uncomfortable for most people, it can have severe impacts on survivors’ mental health 1235 and therefore also on their academic performance. One commenter argued that we would never require our military veterans suffering from PTSD to return from war and sit in a room listening to exploding bombs, so why would we require a rape victim to face interrogation in front of the source of their trauma immediately after the trauma occurred? Discussion: The Department understands commenters’ concerns that survivors of sexual harassment may face trauma-related challenges to answering cross-examination questions about the underlying allegations. The Department is aware that the neurobiology of trauma and the impact of trauma on a survivor’s neurobiological functioning is a developing field of study with application to the way in which investigators of sexual violence offenses interact with victims in criminal justice systems and campus sexual misconduct proceedings. Under these final regulations, recipients have discretion to include trauma-informed approaches in the training provided to Title IX Coordinators, investigators, decisionmakers, and persons who facilitate informal resolutions so long as the training complies with the requirements of § 106.45(b)(1)(iii) and other requirements in § 106.45, and nothing in the final regulations impedes a recipient’s ability to disseminate educational information about trauma to students and employees. As attorneys and consultants with expertise in Title IX grievance proceedings have noted, trauma-informed practices can be implemented as part of an impartial, unbiased system that does not rely on sex stereotypes, but doing so requires taking care not to permit general information about the neurobiology of trauma to lead Title IX personnel to apply generalizations to allegations in specific cases.1236 Because crossSystem Variables in a Sample of Sexual Assault Survivors, 17 Violence Against Women 5 (2011). 1235 Commenters cited: Jacqueline M. Wheatcroft et al., Revictimizing the Victim? How Rape Victims Experience the UK Legal System, 4 Victims & Offenders 3 (2009); Mark Littleton, ‘‘Sexual Harassment of Students by Faculty Members,’’ in Encyclopedia of Law and Higher Education 411–12 (Charles J. Russo ed., 2010). 1236 See, e.g., Jeffrey J. Nolan, Fair, Equitable Trauma-Informed Investigation Training (Holland & Knight updated July 19, 2019) (white paper summarizing trauma-informed approaches to sexual misconduct investigations, identifying scientific and media support and opposition to such approaches, and cautioning institutions to apply trauma-informed approaches carefully to ensure impartial investigations); ‘‘Recommendations of the PO 00000 Frm 00299 Fmt 4701 Sfmt 4700 30323 examination occurs only after the recipient has conducted a thorough investigation, trauma-informed questioning can occur by a recipient’s investigator giving the parties opportunity to make statements under trauma-informed approaches prior to being cross-examined by the opposing party’s advisor. With respect to cross-examination, the Department notes that the final regulations do not prevent a recipient from granting breaks during a live hearing to permit a party to recover from a panic attack or flashback, nor do the final regulations require answers to cross-examinations to be in linear or sequential formats. The final regulations do not require that any party, including a complainant, must recall details with certain levels of specificity; rather, a party’s answers to cross-examination questions can and should be evaluated by a decision-maker in context, including taking into account that a party may experience stress while trying to answer questions. Because decisionmakers must be trained to serve impartially without prejudging the facts at issue, the final regulations protect against a party being unfairly judged due to inability to recount each specific detail of an incident in sequence, whether such inability is due to trauma, the effects of drugs or alcohol, or simple fallibility of human memory. We have also revised § 106.45(b)(6)(i) in a manner that builds in a ‘‘pause’’ to the cross-examination process; before a party or witness answers a crossexamination question, the decisionmaker must determine if the question is relevant. This helps ensure that content of cross-examination remains focused Post-SB 169 Working Group,’’ 3 (Nov. 14, 2018) (report by a task force convened by former Governor of California Jerry Brown to make recommendations about how California institutions of higher education should address allegations of sexual misconduct) (trauma-informed ‘‘approaches have different meanings in different contexts. Traumainformed training should be provided to investigators so they can avoid re-traumatizing complainants during the investigation. This is distinct from a trauma-informed approach to evaluating the testimony of parties or witnesses. The use of trauma-informed approaches to evaluating evidence can lead adjudicators to overlook significant inconsistencies on the part of complainants in a manner that is incompatible with due process protections for the respondent. Investigators and adjudicators should consider and balance noteworthy inconsistencies (rather than ignoring them altogether) and must use approaches to trauma and memory that are well grounded in current scientific findings.’’). Because of the lack of a singular definition of ‘‘trauma-informed’’ approaches, and the variety of contexts that such approaches might be applied, the Department does not mandate ‘‘trauma-informed’’ approaches but recipients have flexibility to employ traumainformed approaches so long as the recipient also complies with all requirements in these final regulations. E:\FR\FM\19MYR2.SGM 19MYR2 30324 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations only on relevant questions and that the pace of cross-examination does not place undue pressure on a party or witness to answer immediately. The Department reiterates that recipients retain the discretion to control the live hearing environment to ensure that no party is ‘‘yelled’’ at or asked questions in an abusive or intimidating manner. The Department further reiterates that cross-examination is as valuable a tool for complainants to challenge a respondent’s version of events as it is for a respondent to challenge a complainant’s narrative. Because cross-examination is conducted only through party advisors, we believe that the cross-examination procedure helps to equalize power and control, because both parties have equal opportunity to ask questions that advocate the party’s own perspectives and beliefs about the underlying incident regardless of any power, control, or authority differential that exists between the parties. The Department agrees that crossexamination is likely an uncomfortable experience for most people, including complainants and respondents; numerous commenters have informed the Department that navigating a grievance process as a complainant or as a respondent has caused individuals to feel stressed, have difficulty focusing on academic performance, and feel anxious and depressed. The final regulations offer both parties protection against feeling forced to participate in a grievance process and equal procedural protections when an individual does participate. To that end, the final regulations require recipients to offer complainants supportive measures regardless of whether a formal complaint is filed 1237 (and encourage supportive measures for respondents as well),1238 and where a party does participate in a grievance process the party has the right to an advisor of choice.1239 Additionally, the final regulations add § 106.71 prohibiting retaliation and specifically protecting an individual’s right to participate or not participate in a grievance process. The Department appreciates a commenter’s analogy to a military veteran experiencing PTSD; however, the we believe that § 106.45(b)(6)(i) anticipates the potential for re1237 Section 106.44(a). 106.30 (defining ‘‘supportive measures’’ and expressly indicating that such individualized services may be provided to complainants or respondents); § 106.45(b)(1)(ix) (requiring a recipient’s grievance process to describe the range of supportive measures available to complainants and to respondents). 1239 Section 106.45(b)(5)(iv). 1238 Section VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 traumatization of sexual assault victims and mitigates such an effect by ensuring that a complainant (or respondent) can request being in separate rooms for the entire live hearing (including during cross-examination) so that the parties never have to face each other in person, by leaving recipients flexibility to design rules (applied equally to both parties) that ensure that no party is questioned in an abusive or intimidating manner, and by requiring the decisionmaker to determine the relevance of each cross-examination question before a party or witness answers. Further, the Department notes that there is no statute of limitations setting a time frame for filing a formal complaint,1240 and that completing the investigation under § 106.45 requires a reasonable amount of time (for example, the parties must be given an initial written notice of the allegations, the recipient must gather evidence, give the parties ten days to review the evidence, prepare an investigative report, and give the parties ten days to review the investigative report),1241 and therefore it is unlikely that a complainant would ever be required to ‘‘immediately’’ undergo cross-examination following a sexual assault covered by Title IX. Changes: None. Reliance on Rape Myths Comments: Many commenters cited an article 1242 by Sarah Zydervelt et al., (herein, ‘‘Zydervelt 2016’’) describing cross-examination of rape victims as often involving detailed, personal, humiliating questions rooted in sex stereotypes and rape myths that tend to blame victims for incidents of sexual violence.1243 Commenters argued that because cross-examination relies on 1240 Section 106.30 (defining ‘‘formal complaint’’ and providing that a complainant must be ‘‘participating or attempting to participate’’ in the recipient’s education program or activity at the time of filing a formal complaint). Even a complainant who has graduated may, for instance, be ‘‘attempting to participate’’ in the recipient’s education program or activity by, for example, desiring to apply to a graduate program with the recipient, or desiring to remain involved alumni events and organizations. 1241 E.g., § 106.45(b)(2); § 106.45(b)(5)(i); § 106.45(b)(5)(vi); § 106.45(b)(5)(vii). 1242 Commenters cited: Sarah Zydervelt, et al., Lawyers’ Strategies for Cross-examining Rape Complainants: Have we Moved Beyond the 1950s?, 57 British J. of Criminology 3 (2016); Olivia Smith & Tina Skinner, How Rape Myths Are Used and Challenged in Rape and Sexual Assault Trials, 26 Social & Legal Studies 4 (2017). 1243 Many commenters cited to information regarding negative impacts of sexual harassment and harmful effects of institutional betrayal, such as the data noted in the ‘‘Impact Data’’ and ‘‘Commonly Cited Sources’’ subsections of the ‘‘General Support and Opposition’’ section of this preamble, in support of arguments that crossexamination will further reduce rates of reporting. PO 00000 Frm 00300 Fmt 4701 Sfmt 4700 rape myths, requiring cross-examination contradicts § 106.45(b)(1)(iii) which forbids training materials for Title IX personnel from relying on sex stereotypes. Commenters argued that the Department’s insistence on crossexamination for rape victims when victims of non-sexual crimes do not have to undergo cross-examination demonstrates ‘‘rape exceptionalism,’’ an unfounded notion that sexual assault and rape are different kinds of cases because rape victims lie more than victims of other crimes.1244 Discussion: The study cited most often by commenters for the proposition that cross-examination relies on questions rooted in sex stereotypes and rape myths, Zydervelt 2016, is a research study in which the authors compared strategies and tactics employed by defense attorneys in criminal trials in Australia and New Zealand during two time periods (from 1950–1959, and from 1996–2011) to analyze whether the strategies and tactics differed in those time periods (the earlier time period representing pre-legal reforms in the area of rape law, and the later time period representing contemporary legal reforms such as defining rape to include marital rape, eliminating the requirement of corroborating evidence and the requirement that the victim showed physical resistance to the sexual attack, and imposing rape shield protections limiting questions about a victim’s sexual history and sexual behavior).1245 Zydervelt 2016 identified four strategies employed by defense attorneys to challenge a rape victim’s testimony: 1244 Commenters cited: Naomi Mann, Taming Title IX Tensions, 20 Univ. Pa. J. of Constitutional L. 631, 666 (2018); Michelle Anderson, Campus Sexual Assault Adjudication and Resistance to Reform, 125 Yale L. J. 1940, 2000 (2016) (Title IX is a civil rights mechanism about institutional accountability for providing equal education); id. at 1943, 1946–50 (the tendency to treat rape victims as distinct from other crime victims has roots in criminal justice and civil litigation where rules have required victim testimony to be corroborated and victims have carried extra burdens to show they resisted rape); cf. Donald Dripps, After Rape Law: Will the Turn to Consent Normalize the Prosecution of Sexual Assault?, 41 Akron L. Rev. 957, 957 (2008) (‘‘Rape is an exceptional area of law.’’). 1245 Sarah Zydervelt et al., Lawyers’ Strategies for Cross-examining Rape Complainants: Have we Moved Beyond the 1950s?, 57 British J. of Criminology 3 (2016), at 2. Page numbers referenced in this section are to the version of this article located at: https://www.researchgate.net/profile/ Sarah_Zydervelt/publication/295084744_ Lawyers%27_Strategies_for_Cross-Examining_ Rape_Complainants_Have_we_Moved_Beyond_the_ 1950s/links/56f35e4208ae95e8b6cb4ceb/LawyersStrategies-for-Cross-Examining-RapeComplainants-Have-we-Moved-Beyond-the1950s.pdf?origin=publication_detail, pp. 1–19. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Questions designed to challenge plausibility, consistency, credibility, and reliability. Zydervelt 2016 further identified tactics used to further each of those four strategies; 1246 for example, the most common strategy identified in the study was challenging plausibility, and the most common tactic used in that strategy involved questions about the complainant’s behavior immediately before or after the alleged attack.1247 Zydervelt 2016 defined ‘‘rape myths’’ as ‘‘beliefs about rape that serve to deny, downplay or justify sexually aggressive behavior that men commit against women’’ which ‘‘can be descriptive, reflecting how people believe instances of sexual assault typically unfold, or they can be prescriptive, reflecting beliefs about how a victim of sexual assault should react’’ and further identified common rape myths as ‘‘the belief that victims invite sexual assault by the way that they dress, their consumption of alcohol, their sexual history or their association with males with whom they are not in a relationship; the belief that many women make false allegations of rape; the belief that genuine assault would be reported to authorities immediately; and the belief that victims would fight back—and therefore sustain injury or damage to clothing—during an assault.’’ 1248 Zydervelt 2016 concluded that historically and contemporarily, defense attorneys employ similar strategies and tactics when crossexamining rape victims in criminal trials, and that rape victims still report cross-examination as a distressing and demeaning experience.1249 Zydervelt 2016 concluded that leveraging rape myths was a common tactic when cross1246 Id. at 8–10. For the strategy of challenging plausibility, the study identified the following tactics used by defense attorneys during crossexamination questions: Defendant’s good character; lack of injury or clothing damage; complainant’s behavior immediately before and after offense; lack of resistance; delayed report; continued relationship. For the strategy of challenging credibility, the study identified the following tactics used by defense attorneys during cross-examination questions: Prior relationship with the defendant; sexual history; personal traits; previous sexual assault complaint; ulterior motive. For the strategy of challenging reliability, the study identified the following tactics used by defense attorneys during cross-examination questions: Alcohol/drug intoxication; barriers to perception; memory fallibility. For the strategy of challenging consistency, the study identified the following tactics used by defense attorneys during crossexamination questions: Inconsistency with complainant’s own account, with defendant’s account, with another witness’s account, and with physical evidence. 1247 Id. at 11. 1248 Id. at 3–4 (internal quotation marks and citations omitted). 1249 Id. at 15. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 examining rape victims,1250 for example, asking questions suggesting that willingly accompanying a defendant alone to a room implied consent to a sexual act, or that a ‘‘real’’ victim would not have returned to a party with a defendant if they had just been sexually assaulted. The authors of Zydervelt 2016 opined in conclusion that the extent to which misconceptions about rape shape crossexamination questions in rape cases likely reflects the extent to which society adheres to particular beliefs about rape.1251 The study’s authors also noted that more research is required to assist policy makers to make informed decisions about how best to address these issues,1252 and further surmised that because the strategies and tactics used in cross-examination during rape cases remained similar over time, investigators, prosecutors, and advocates could preemptively assist rape victims who need to testify by better preparing the victim to anticipate the kinds of questions that commonly arise during rape crossexaminations.1253 The Department understands commenters’ concerns that Zydervelt 2016 indicates that misconceptions about rape and sexual assault victims permeate cross-examination strategies and tactics in the criminal justice system. However, this study indicates that to the extent that misconceptions or negative stereotypes about sexual assault affect cross-examination in rape cases, the problem lies with societal beliefs about sexual assault and not with cross-examination as a tool for resolving competing narratives in sexual assault cases. The final regulations require recipients to ensure that decisionmakers are well-trained in conducting a grievance process and serving impartially, using materials that avoid sex stereotypes, and specifically on issues of relevance including application of the rape shield protections in § 106.45(b)(6). Further, as noted above, nothing in the final regulations precludes a recipient from 1250 Id. 1251 Id. at 16–17 (‘‘The root of the problem with cross-examination likely lies in the combative nature of proceedings’’ where it is a defense lawyer’s job ‘‘to create reasonable doubt. . . . Perhaps, then, cross-examination will not change until social beliefs about rape do. . . . Judges and juries are not imbued with a special ability to determine the truth; instead, their rely on their understanding of human nature and common sense. . . . To the extent that putting these myths in front of the jury has a good chance of creating reasonable doubt, it is likely that lawyers will continue to use them.’’) (internal citations omitted). 1252 Id. at 17. 1253 Id. at 16. PO 00000 Frm 00301 Fmt 4701 Sfmt 4700 30325 including in that training information about the impact of trauma on victims or other aspects of sexual violence dynamics, so long as any such training promotes impartiality and avoidance of prejudgment of the facts at issue, bias, conflicts of interest, and sex stereotypes. Thus, unlike a civil or criminal court system, where jurors who act as factfinders are not trained, the § 106.45 grievance process requires recipients to use decision-makers who have been trained to avoid bias and sex stereotypes and to focus proceedings on relevant questions and evidence, such that even if a cross-examination question impermissibly relies on bias or sex stereotypes while attempting to challenge a party’s plausibility, credibility, reliability, or consistency, it is the trained decision-maker, and not the party advisor asking a question, who determines whether the question is relevant and if it is relevant, then evaluates the question and any resulting testimony in order to reach a determination regarding responsibility. For the same reasons, the Department disagrees that cross-examination violates or contradicts § 106.45(b)(1)(iii), which forbids training materials for Title IX personnel from relying on sex stereotypes; the latter provision serves precisely to ensure that decision-makers do not allow sex stereotypes to influence the decision-maker’s determination regarding responsibility. The Department disagrees that the § 106.45 grievance process, including cross-examination at live hearings in postsecondary institutions, reflects adherence to rape exceptionalism or any belief that women (or complainants generally) tend to lie about rape more than other offenses. The Department believes that cross-examination as a tool for testing competing narratives serves an important truth-seeking function in a variety of types of misconduct allegations; these final regulations focus on the procedures designed to prescribe a consistent framework for recipients’ handling of formal complaints of sexual harassment so that a determination is likely to be accurate in each particular case, regardless of how infrequently false allegations are made. The Department reiterates that crossexamination provides complainants with the same opportunity through an advisor to question and expose inconsistencies in the respondent’s testimony and to reveal any ulterior motives. In this manner, crossexamination levels the playing field by giving a complainant as much procedural control as a respondent, regardless of the fact that exertion of E:\FR\FM\19MYR2.SGM 19MYR2 30326 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations power and control is often a dynamic present in perpetration of sexual assault. Changes: None. Cross-Examination as a Due Process Requirement Comments: Commenters argued that cross-examination is not necessary because neither the Constitution, nor other Federal law, requires crossexamination in school conduct proceedings.1254 Commenters characterized recent Sixth Circuit cases, holding that cross-examination must be provided, as anomalous rather than indicative of a judicial trend favoring live cross-examination in college disciplinary proceedings.1255 Commenters asserted that the Department’s cross-examination requirement does not contain the limitations that the Sixth Circuit delineated in Baum; namely, that crossexamination is required only for public colleges, in situations where credibility is in dispute and material to the outcome, where potential sanctions are suspension or expulsion, and where the burden on the university is minimal because the university already holds hearings for some types of misconduct. 1254 Commenters cited: Goss v. Lopez, 419 U.S. 565, 583 (1975) (holding that a ten-day suspension imposed on high school students by a public school district required due process of law under the U.S. Constitution, including notice and opportunity to be heard, but did not require opportunity to crossexamine witnesses); Mathews v. Eldridge, 424 U.S. 319 (1976); Dixon v. Ala. St. Bd. of Educ., 294 F.2d 150, 158 (5th Cir. 1961); Osteen v. Henley, 13 F.3d 221, 225 (7th Cir. 1993) (holding no violation of constitutional due process where college student was expelled without a right of cross-examination); Fellheimer v. Middlebury Coll., 869 F. Supp. 238, 247 (D. Vt. 1994); Coplin v. Conejo Valley Unified Sch. Dist., 903 F. Supp. 1377, 1383 (C.D. Cal. 1995). 1255 Commenters cited: Joanna L. Grossman & Deborah L. Brake, A Sharp Backward Turn: Department of Education Proposes to Protect Schools, Not Students, in Cases of Sexual Violence, Verdict (Nov. 29, 2018) (arguing that Doe v. Baum, 903 F.3d 575 (6th Cir. 2018) is anomalous); William J. Migler, Comment: An Accused Student’s Right to Cross-Examination in University Sexual Assault Adjudicatory Proceedings, 20 Chap. L. Rev. 357, 380 (2017) (‘‘Lower federal courts and state courts have applied both Goss and Eldridge (or similar reasoning behind these cases) to the question of whether cross-examination is a due process requirement in university disciplinary proceedings, resulting in a split amongst the jurisdictions. Among the states that have directly decided on the issue, courts in eleven states have held that an accused student has the right to some form of crossexamination of witnesses. Likewise, the Ninth Circuit and district courts in the First, Second, Third, and Eighth Circuits have held accused students have the right to some form of crossexamination. Conversely, courts in sixteen states, the First, Second, Fourth, Fifth, Sixth, Tenth, and Eleventh Circuits, and district courts in the Seventh and Eighth Circuits, have found that crossexamination is not required to protect a student’s Due Process rights in a disciplinary proceeding.’’) (internal citations omitted); cf. Doe v. Baum, 903 F.3d 575 (6th Cir. 2018). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Commenters argued that Federal case law shows a split in how courts view cross-examination in college disciplinary proceedings with the weight of Federal case law favoring significant limits on cross-examination by requiring, at most, questioning through a panel or submission of written questions rather than traditional, adversarial crossexamination, for both public and private institutions.1256 Commenters argued that colleges and universities should not be required to ignore judicial precedent simply because the Department currently finds a recent two-to-one decision from the Sixth Circuit (i.e., Baum) more persuasive than the many other Federal court decisions that do not require live cross-examination as part of constitutional due process or fundamental fairness, and that principles of federalism, administrative law, and general rule of law demand that the Department refrain from overreaching by imposing this requirement. Several commenters argued that regardless of how cross-examination is viewed under a constitutional right to due process, private colleges and universities owe contractual obligations to their students and employees, not constitutional ones, and requiring live hearings and cross-examination marks a substantial governmental intrusion into the relationship between private institutions and their students. Several commenters asserted that private institutions should remain free to craft their own adjudication rules so long as such rules are fair and equitable. Commenters argued that unless lawmakers specifically direct universities to grant cross-examination rights, or the right to counsel, in civil or administrative hearings,1257 such 1256 Commenters cited: Sara O’Toole, Campus Sexual Assault Adjudication, Student Due Process, and a Bar on Direct Cross-Examination, 79 Univ. of Pitt. L. Rev. 511 (2018) (examining due process cases law in educational settings and arguing that parties directing questions to each other through a hearing panel is constitutionally sufficient); commenters also cited, e.g., Dixon v. Ala. St. Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961); Winnick v. Manning, 460 F.2d 545, 549 (2d Cir.1972); Boykins v. Fairfield Bd. of Edu., 492 F.2d 697, 701 (5th Cir. 1974); Nash v. Auburn Univ., 812 F.2d 655, 664 (11th Cir. 1987); Gorman v. Univ. of Rhode Island, 837 F.2d 7, 16 (1st Cir. 1988); Donohue v. Baker, 976 F. Supp. 136, 147 (N.D.N.Y. 1997); Schaer v. Brandeis Univ., 432 Mass. 474, 482 (2000). 1257 Commenters cited: North Carolina Gen. Stat. § 116–40.11 (student’s right to be represented by counsel, at student’s expense, in campus disciplinary hearings); Mass. Gen. c.71 § 37H–3/4 (student facing expulsion or suspension longer than ten days for bullying has right to cross-examination and right to counsel). PO 00000 Frm 00302 Fmt 4701 Sfmt 4700 elevated procedures cannot be expected of universities. Commenters argued that crossexamination by skilled defense counsel is the most aggressive means of testing a witness’s credibility and, by requiring this, the proposed rules seem based on a premise that a complainant’s credibility is highly suspect. Commenters asserted that because a university Title IX grievance process is neither a civil lawsuit (where a plaintiff seeks money damages against the defendant) or a criminal trial (where a criminal defendant faces loss of liberty), the highest degree of credibility-testing is neither necessary nor reasonable. Commenters argued that State laws restricting Sixth Amendment rights to confront accusers can be constitutionally permissible due to policy concerns for protecting sexual assault victims from suffering further psychological harms,1258 and thus similar or greater restrictions can be part of a noncriminal proceeding like a Title IX process. Commenters argued that fairness, including testing credibility, can be fully achieved without live, adversarial cross-examination, through questioning by a neutral college administrator,1259 referred to by some commenters as ‘‘indirect cross-examination.’’ Commenters similarly argued that allowing parties to submit questions to be asked by a hearing officer or panel is sufficiently reliable without causing trauma to any involved party,1260 a practice commenters asserted should be adopted from the withdrawn 2011 Dear Colleague Letter. Commenters asserted that this method allows the parties and decision-maker to hear parties and witnesses answer questions in ‘‘real time’’ but without the adversarial purpose and tone of cross-examination. 1258 Commenters cited: Linda Mohammadian, Sexual Assault Victims v. Pro Se Defendants, 22 Cornell J. of L. & Pub. Pol’y 491 (2012) (arguing that a Washington State law providing that sexual assault victims in criminal trials may receive courtappointed ‘‘standby’’ counsel and use closed-circuit television to testify is constitutionally adequate under Sixth Amendment case law). 1259 Commenters cited: Sara O’Toole, Campus Sexual Assault Adjudication, Student Due Process, and a Bar On Direct Cross-Examination, 79 Univ. of Pitt. L. Rev. 511, 511–14 (2018) (review of relevant case law demonstrates that live crossexamination is not a due process requirement in the university setting and questioning through a hearing panel is constitutionally sufficient) (finding ‘‘the appropriate balance’’ between rights for complainants and for accused students ‘‘is essential to the goal of creating a more equal and safe educational environment, as moving too far in one direction may lead to a detrimental backlash and thus prevent effective solutions’’). 1260 Commenters cited: The Association of Title IX Administrators (ATIXA), The 7 Deadly Sins of Title IX Investigations: The 2016 White Paper (2016). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Commenters asserted a similar version of this practice, used by Harvard Law School and endorsed by the American Bar Association Criminal Justice Section, and by the University of California Post SB 169 Working Group, should be called ‘‘submitted questions’’ instead of ‘‘cross-examination’’ and would invite both parties to submit questions to the presiding decisionmaker who must then ask all the questions unless the questions are irrelevant, excluded by a rule clearly adopted in advance, harassing, or duplicative. Commenters argued that indirect cross-examination, or submitted questions, is sufficient to meet constitutional due process requirements under the Supreme Court’s Mathews v. Eldridge balancing test 1261 and avoids risks inherent to cross-examination in an educational rather than courtroom setting, namely, that outside a courtroom lawyers or other advisors could engage in hurtful, harmful techniques that may impede educational access for the parties. Commenters argued that a trained fact-finder listening to party advisors ask questions and introduce evidence is a reactionary approach and a proactive approach is preferable, whereby the trained decision-maker elicits appropriate, relevant information from the parties and witnesses. Commenters argued that most postsecondary institutions currently use a trauma-informed method of questioning such as indirect crossexamination or submitted questions,1262 and that such practices have been upheld by nearly all Federal court decisions considering them. Commenters argued that because credibility is determined by the decision-maker, and not by parties or witnesses, there should be no right for parties to directly question the other party or witnesses. Commenters stated that if the Department’s assumption that live cross-examination is better than submission of questions through a 1261 Commenters cited: Mathews v. Eldridge, 424 U.S. 319, 321 (1976) (setting forth a three-part balancing test for evaluating the sufficiency of due process procedures—the private interest being affected, the risk of erroneous deprivation of that interest through the procedures at issue, and the government’s interest, including financial and administrative burden that additional procedures would entail). 1262 Commenters cited: Tamara Rice Lave, A Critical Look at How Top Colleges and Universities are Adjudicating Sexual Assault, 71 Univ. of Miami L. Rev. 377, 396 (2017) (survey of 35 highly-ranked colleges and universities determined that only six percent of surveyed institutions permitted traditional cross-examination, while 50 percent permitted questioning through the hearing panel and 30 percent did not allow a respondent to ask questions of the complainant in any capacity). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 neutral hearing officer rests on concern that the hearing officer might unfairly refuse to ask a party’s questions, the proposed rules address that concern by requiring the decision-maker to explain the reasons for exclusion of any questions, so live cross-examination is not a necessity on that basis. One commenter argued that although crossexamination may be the greatest legal engine ever invented for discovery of truth, engines come in different shapes and sizes for a reason, and the effective, appropriate version of the engine of cross-examination in the Title IX context is questioning by neutral hearing officers. Some commenters proposed that the decision-maker act as a liaison between the parties, such that each party’s advisor would ask a question one at a time, live and in full hearing of the other party, and the decision-maker would then decide whether the other party should or should not answer the question; commenters asserted that this version of live cross-examination would better filter out abusive, irrelevant questions while preserving the opportunity of party advisors to ask the cross-examination questions. Commenters argued that some States such as New York have better embodied the settled state of the law by requiring a fair campus adjudicatory process that does not include cross-examination. Commenters asserted that the final regulations should follow the process used by the U.S. Senate during the confirmation hearings for the Honorable Brett Kavanaugh, Associate Justice, Supreme Court of the United States, which process was described by commenters as disallowing any interaction between the accuser and accused, while conducting questioning of each party separately by the Senators and a designated neutral questioner. Discussion: The Department acknowledges that the Supreme Court has not ruled on what procedures satisfy due process of law under the U.S. Constitution in the specific context of a Title IX sexual harassment grievance process held by a postsecondary institution, and that Federal appellate courts that have considered this particular issue in recent years have taken different approaches. The Department, as an agency of the Federal government, is subject to the U.S. Constitution, including the Fifth Amendment, and cannot interpret Title IX to compel a recipient, whether public or private, to deprive a person of due process rights.1263 Procedural due 1263 E.g., Peterson v. City of Greenville, 373 U.S. 244 (1963); Truax v. Raich, 239 U.S. 33, 38 (1915). PO 00000 Frm 00303 Fmt 4701 Sfmt 4700 30327 process requires, at a minimum, notice and a meaningful opportunity to be heard.1264 Due process ‘‘‘is flexible and calls for such procedural protections as the particular situation demands.’ ’’ 1265 ‘‘The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ’’ 1266 The Department has determined that the procedures contained in § 106.45 of these final regulations best achieve the purposes of (1) effectuating Title IX’s non-discrimination mandate by ensuring fair, reliable outcomes viewed as legitimate in resolution of formal complaints of sexual harassment so that victims receive remedies, (2) reducing and preventing sex bias from affecting outcomes, and (3) ensuring that Title IX regulations are consistent with constitutional due process and fundamental fairness. The procedures in § 106.45 are consistent with constitutional requirements and best serve the foregoing purposes, including the right for both parties to meaningfully be heard by advocating for their own narratives regarding the allegations in a formal complaint of sexual harassment. In recognition that what is a meaningful opportunity to be heard may depend on particular circumstances, the final regulations apply different procedures in different contexts; for example, where an emergency situation presents a threat to physical health or safety, § 106.44(c) permits emergency removal with an opportunity to be heard that occurs after removal. Where a grievance process is initiated to adjudicate the respondent’s responsibility for sexual harassment, a live hearing with cross-examination is required in the postsecondary context but not in elementary and secondary schools. These differences appropriately acknowledge that different types of process may be required in different circumstances while prescribing a consistent framework in similar circumstances so that Title IX as a Federal civil rights law protects every person in an education program or activity. As commenters supportive of crossexamination pointed out, and as commenters opposed to crossexamination acknowledge, the Sixth 1264 Goss v. Lopez, 419 U.S. 565, 580 (1975) (‘‘At the very minimum, therefore, students facing suspension and the consequent interference with a protected property interest must be given some kind of notice and afforded some kind of hearing.’’); Mathews v. Eldridge, 424 U.S. 319, 333 (1976). 1265 Id. at 334 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). 1266 Id. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). E:\FR\FM\19MYR2.SGM 19MYR2 30328 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Circuit has held that cross-examination, at least conducted through a party’s advisor, is necessary to satisfy due process in sexual misconduct cases that turn on party credibility. ‘‘Due process requires cross-examination in circumstances like these because it is the greatest legal engine ever invented for uncovering the truth.’’ 1267 The Sixth Circuit reasoned, ‘‘Cross-examination is essential in cases like Doe’s because it does more than uncover inconsistencies—it takes aim at credibility like no other procedural device.’’ 1268 The Sixth Circuit in Baum disagreed with the institution’s argument that written statements could substitute for cross-examination, explaining that ‘‘[w]ithout the back-andforth of adversarial questioning, the accused cannot probe the witness’s story to test her memory, intelligence, or potential ulterior motives. . . . Nor can the fact-finder observe the witness’s demeanor under that questioning. . . . For that reason, written statements cannot substitute for crossexamination. . . . Instead, the university must allow for some form of live questioning in front of the factfinder,’’ though this requirement can be facilitated through modern technology, for example by allowing a witness to be questioned via Skype.1269 The Sixth Circuit carefully distinguished this cross-examination requirement from the Sixth Amendment right of a criminal defendant to confront witnesses, reasoning that administrative proceedings need not contain the same protections accorded to the accused in criminal proceedings.1270 The Sixth Circuit further reasoned that ‘‘[u]niversities have a legitimate interest in avoiding procedures that may subject an alleged victim to further harm or harassment . . . [but] the answer is not to deny cross-examination altogether. Instead, the university could allow the accused student’s agent to conduct cross-examination on his behalf. After all, an individual aligned with the accused student can accomplish the benefits of cross-examination—its adversarial nature and the opportunity for follow-up—without subjecting the accuser to the emotional trauma of 1267 Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018) (internal quotation marks and citations omitted). 1268 Id. at 582 (internal quotation marks and citations omitted) (emphasis in original); Doe v. Univ. of Cincinnati, 872 F.3d 393, 401 (6th Cir. 2017) (‘‘Few procedures safeguard accuracy better than adversarial questioning.’’). 1269 Baum, 903 F.3d at 582–83 (internal citations omitted) (emphasis in original). 1270 See id. at 583. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 directly confronting her alleged attacker.’’ 1271 The Department agrees with the Sixth Circuit’s reasoning that a Title IX grievance process should strike an appropriate balance between avoiding retraumatizing procedures, and ensuring both parties have the right to question each other in a manner that captures the real-time, adversarial benefits of crossexamination to a truth-seeking process. Section 106.45(b)(6)(i) follows the Sixth Circuit’s reasoning by requiring recipients to give both parties opportunity for cross-examination, allowing either party to request that cross-examination (and the entire live hearing) be conducted with the parties in separate rooms, ensuring that only party advisors conduct crossexamination and expressly forbidding personal confrontation between parties, and requiring the decision-maker to determine the relevance of a crossexamination question before a party or witness answers. Commenters correctly note that the Sixth Circuit’s rationale in Baum rested on certain limitations or circumstances that justified requiring crossexamination: The Baum opinion was in the context of a public university that owes constitutional due process of law to students and employees; crossexamination is of greatest benefit where a sexual misconduct case turns on credibility and involves serious consequences; and a university that already provided hearings for other types of misconduct could not argue that it faced more than a minimal burden to provide a live hearing for sexual misconduct cases. As explained in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, the Department understands that some recipients are public institutions that owe constitutional protections to students and employees while other recipients are private institutions that do not owe constitutional protections. However, consistent application of a grievance process to accurately resolve allegations of sexual harassment under Title IX is as important in private institutions as public ones, and the Department therefore adopts a § 106.45 grievance process that results in fair, reliable outcomes in all postsecondary institutions with procedures that, while likely to satisfy constitutional due process requirements, remain independent of constitutional requirements. The Department notes that while commenters are correct that not every 1271 Id. PO 00000 Frm 00304 Fmt 4701 Sfmt 4700 formal complaint of sexual harassment subject to § 106.45 turns on party or witness credibility, other commenters noted that most of these complaints do involve plausible, competing narratives of the alleged incident, making party participation in the process vital for a thorough evaluation of the available, relevant evidence.1272 The final regulations revise § 106.45(b)(6)(i) to clarify that where a party or witness does not appear at a live hearing or refuses to answer cross-examination questions, the decision-maker must disregard statements of that party or witness but must reach a determination without drawing any inferences about the determination regarding responsibility based on the party or witness’s failure or refusal to appear or answer questions. Thus, for example, where a complainant refuses to answer cross-examination questions but video evidence exists showing the underlying incident, a decision-maker may still consider the available evidence and make a determination. The Department thus disagrees with commenters who argued that the proposed rules force a party to undergo cross-examination even where the case does not turn on credibility; if the case does not depend on party’s or witness’s statements but rather on other evidence (e.g., video evidence that does not consist of ‘‘statements’’ or to the extent that the video contains non-statement evidence) the decision-maker can still consider that other evidence and reach a determination, and must do so without drawing any inference about the determination based on lack of party or witness testimony. This result thus comports with the Sixth Circuit’s rationale in Baum that crossexamination is most needed in cases that involve the need to evaluate credibility of parties as opposed to evaluation of non-statement evidence.1273 Furthermore, 1272 See H. Hunter Bruton, Cross-Examination, College Sexual-Assault Adjudications, and the Opportunity for Tuning up the Greatest Legal Engine Ever Invented, 27 Cornell J. of L. & Pub. Pol’y, 145, 180–81 (2017) (‘‘Participation in these cases becomes all the more necessary because the hearing’s resolution often depends on weighing the victim’s credibility against the accused’s credibility. In the vast majority of cases, no one else witnesses the act and no other evidence exists.’’) (internal citations omitted). 1273 See Baum, 903 F.3d at 583–84 (despite the university’s contention that prior Sixth Circuit precedent, in Univ. of Cincinnati, 872 F.3d at 395, 402, meant that a respondent is not entitled to cross-examination where the university’s decision did not depend entirely on a credibility contest between Roe and Doe, the Baum Court clarified that University of Cincinnati merely held that crossexamination was unnecessary when the university’s decision did not rely on any testimonial evidence at all but that case, and Baum, stand for the E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations § 106.45(b)(9) permits recipients to facilitate informal resolution processes (thus avoiding the need to hold a live hearing with cross-examination), which may be particularly desirable by the parties and the recipient in situations where the facts about the underlying incident are not contested by the parties and thus resolution does not turn on resolving competing factual narratives. With respect to the other limitations commenters asserted that the Sixth Circuit noted in its rationale requiring cross-examination (i.e., that it is a procedure justified where serious consequences such as suspension or expulsion are at issue, and where the burden on a university is minimal), the Department notes that the Baum Court did not rest its rationale on situations where only suspension or expulsion was at issue, but rather the Sixth Circuit observed that ‘‘[b]eing labeled a sex offender by a university has both an immediate and lasting impact on a student’s life’’ whereby the student ‘‘may be forced to withdraw from his classes and move out of his university housing. His personal relationships might suffer. . . . And he could face difficulty obtaining educational and employment opportunities down the road, especially if he is expelled.’’ 1274 The Sixth Circuit thus recognized the high stakes involved with sexual misconduct allegations regardless of whether the sanction is expulsion. Further, the Department doubts that recipients are likely to determine that the type of conduct captured under the § 106.30 definition of sexual harassment would not potentially warrant suspension or expulsion. Additionally, the final regulations revise § 106.45(b)(6)(i) to permit a recipient to hold live hearings virtually, using technology, to ameliorate the administrative burden on colleges and universities that do not already conduct hearings for any type of misconduct allegation. The Department is aware that after the public comment period on the NPRM closed, the First Circuit decided a Title IX sexual misconduct case in which the First Circuit disagreed with the Sixth Circuit’s holding regarding crossexamination.1275 In Haidak, the First proposition that if ‘‘credibility is in dispute and material to the outcome, due process requires crossexamination.’’); § 106.45(b)(6)(i) is consistent with this Baum holding inasmuch as the provision bars reliance on statements from witnesses who do not submit to cross-examination, leaving a decisionmaker able to consider non-statement evidence that may exist in a particular case. 1274 Baum, 903 F.3d at 582 (internal citations omitted) (emphasis added). 1275 Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 68–70 (1st Cir. 2019) (‘‘[D]ue process in the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Circuit held that a university could satisfy due process requirements by using an inquisitorial rather than adversarial method of crossexamination, by having a neutral school official pose probing questions of parties and witnesses in real-time, designed to ferret out the truth about the allegations at issue.1276 The First Circuit reasoned that ‘‘[c]onsiderable anecdotal experience suggests that crossexamination in the hands of an experienced trial lawyer is an effective tool’’ but cross-examination performed by the respondent personally might devolve into ‘‘acrimony’’ rather than a truth-seeking tool that reduces the risk of erroneous outcomes, while crossexamination conducted by lawyers risks university proceedings mimicking court trials.1277 Also after the public comment period on the NPRM closed, the First Circuit decided a case 1278 under Massachusetts State law involving discipline of a student by a private college for sexual misconduct, in which the student argued that failure of the recipient to provide any form of ‘‘realtime’’ cross-examination violated the recipient’s contractual obligation of ‘‘basic fairness’’ but the First Circuit held that the private college owed no constitutional due process to the student and that State law did not require any form of real-time crossexamination as part of contractual basic fairness.1279 As noted elsewhere throughout this preamble, while private colleges do not owe constitutional protections to students or employees, the Department is obligated to interpret Title IX consistent with constitutional guarantees, including the Fifth and Fourteenth Amendment guarantees of due process of law, and the Department believes that § 106.45(b)(6)(i) comports with constitutional due process and notions of fundamental fairness while effectuating the non-discrimination mandate of Title IX, even if State laws or a recipient’s contract with its students would not impose the same requirements on private colleges. The Department understands the concerns expressed by commenters, and echoed in the reasoning of the First Circuit in Haidak, that crossexamination conducted personally by students may not effectively contribute to the truth-seeking purpose of a live hearing. Thus, the Department has university disciplinary setting requires some opportunity for real-time cross-examination, even if only through a hearing panel.’’). 1276 Id. at 69–70. 1277 Id. 1278 Doe v. Trustees of Boston Coll., 942 F.3d 527 (1st Cir. 2019). 1279 Id. PO 00000 Frm 00305 Fmt 4701 Sfmt 4700 30329 crafted § 106.45(b)(6)(i) to require postsecondary institution recipients to provide parties with an advisor for the purpose of conducting crossexamination, if a party does not have an advisor of choice at the hearing. This provision avoids the possibility of selfrepresentation where a party personally conducts cross-examination of the opposing party and witnesses, and as commenters supporting crossexamination pointed out, this provision ensures that advisors conducting crossexamination will be either professionals (e.g., attorneys or experienced advocates) or at least adults capable of understanding the purpose and scope of cross-examination. Although no Federal circuit court has interpreted constitutional due process to require recipients to provide counsel to parties in a disciplinary proceeding, the Department has the authority to effectuate the purposes of Title IX by prescribing administrative requirements even when those requirements do not purport to represent a definition of discrimination under the Title IX statute. The Department has determined that requiring postsecondary institutions to provide advisors to parties for the purpose of conducting cross-examination best serves Title IX’s non-discrimination mandate by ensuring that adversarial crossexamination occurs, thereby ferreting out the truth of sexual harassment allegations, while protecting sexual harassment victims from personal confrontation with a perpetrator. At the same time, these final regulations expressly state that no party’s advisor of choice, and no advisor provided to a party by a recipient, needs to be an attorney, furthering the Department’s intent that the § 106.45 grievance process is suitable for implementation in an educational institution without trying to mimic a court trial. The Department agrees with commenters that Federal case law is split on the specific issue of whether constitutional due process, or basic fairness under a contract theory between a private college and student, requires live cross-examination in sexual misconduct proceedings. The Department disagrees that § 106.45(b)(6)(i) represents overreach, violations of federalism, administrative law, or rule of law, and contends instead that the final regulations prescribe a grievance process carefully tailored to be no more prescriptive than necessary to (1) be consistent with constitutional due process and fundamental fairness, even if § 106.45 includes procedures that exceed E:\FR\FM\19MYR2.SGM 19MYR2 30330 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations minimal guarantees, and (2) address the challenges inherent in resolving sexual harassment allegations so that recipients are effectively held responsible for redressing sex discrimination in the form of sexual harassment in recipients’ education programs or activities. As noted elsewhere in this preamble, when a recipient draws conclusions about whether sexual harassment occurred in its education program or activity, the recipient is not merely making an internal, private decision about its own affairs; rather, the recipient is making determinations that implicate the recipient’s obligation to comply with a Federal civil rights law that requires a recipient to operate education programs or activities free from sex discrimination. The Department therefore has regulatory authority to prescribe a framework for consistent, reliable determinations regarding responsibility for sexual harassment under Title IX. The Department appreciates that some State laws already require universities to grant cross-examination rights in administrative hearings that apply to students or employees, but the Department disagrees that a university may be required to utilize the crossexamination procedure only if a State law has specifically directed that result. The fact that some States already require public universities to allow crossexamination demonstrates that the concept is familiar to many recipients. The Department is regulating only as far as necessary to enforce the Federal civil rights law at issue; the final regulations govern only student and employee misconduct that constitutes sex discrimination in the form of sexual harassment under Title IX, and does not purport to require postsecondary institutions to utilize cross-examination in non-Title IX matters. The procedures in § 106.45 are consistent with constitutional requirements and best further the purposes of Title IX, including the right for both parties to meaningfully be heard by advocating for the party’s own narratives regarding the allegations in a formal complaint of sexual harassment. A cross-examination procedure does not imply that the credibility of sexual assault complainants is particularly suspect; rather, wherever allegations of serious misconduct involve contested facts, cross-examination is one of the time-tested procedural devices recognized throughout the U.S. legal system as effective in reaching accurate determinations resolving competing versions of events. The Department notes that § 106.45(b)(6)(i) grants the right of cross-examination equally to VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 complainants and respondents, and cross-examination is as useful and powerful a truth-seeking tool for a complainant’s benefit as for a respondent, so that a complainant may direct the decision-maker’s attention to implausibility, inconsistency, unreliability, ulterior motives, and lack of credibility in the respondent’s statements. While the purpose of the Sixth Amendment’s right to confront accusers via cross-examination in a criminal proceeding may be to protect the criminal defendant from deprivation of liberty unless guilt is certain beyond a reasonable doubt,1280 the Department recognizes, and the final regulations reflect, that the purpose of a Title IX grievance process differs from that of a criminal proceeding. Under § 106.45, cross-examination is not for the protection only of respondents, but is rather a device for the benefit of the recipient and both parties, by assisting the decision-maker in reaching a factually accurate determination regarding responsibility so that deprivations of a Federal civil right may be appropriately remedied. The Department disagrees with commenters who argued that indirect cross-examination conducted by a neutral college administrator, or a submitted questions procedure, which is permissible for elementary and secondary schools under these final regulations,1281 can adequately ensure a fair process and reliable outcome in postsecondary institutions. Whether or not such a practice would meet constitutional due process requirements, the Department believes that § 106.45 appropriately and reasonably balances the truth-seeking function of live, real-time, adversarial cross-examination in the postsecondary institution context with protections against personal confrontation between the parties. Thus, regardless of whether the provisions in § 106.45(b)(6)(i) are required under constitutional due process of law, the Department believes that these procedures meet or exceed the due process required under Mathews,1282 and the Department is 1280 E.g., Niki Kuckes, Civil Due Process, Criminal Due Process, 25 Yale L. & Pol’y Rev. 1, 14 (2006) (‘‘The body of criminal due process precedents is highly protective of defendants in many regards.’’). 1281 Section 106.45(b)(6)(ii) (expressly providing that recipients that are not postsecondary institutions need not hold a hearing (live or otherwise) but must provide the parties equal opportunity to submit written questions to be asked of the other party and witnesses). 1282 Mathews v. Eldridge, 424 U.S. 319, 321 (1976) (setting forth a three-part balancing test for evaluating the sufficiency of due process procedures—the private interest being affected, the risk of erroneous deprivation of that interest PO 00000 Frm 00306 Fmt 4701 Sfmt 4700 exercising its regulatory authority under Title IX to adopt measures that the Department has determined best effectuate the purpose of Title IX.1283 The § 106.45 grievance process requires recipients to remain neutral and impartial throughout the grievance process, including during investigation and adjudication. To require a recipient to step into the shoes of an advocate by asking each party cross-examination questions designed to challenge that party’s plausibility, credibility, reliability, motives, and consistency would place the recipient in the untenable position of acting partially (rather than impartially) toward the parties,1284 or else failing to fully probe the parties’ statements for flaws that reflect on the veracity of the party’s statements. The Department does not believe that it is acceptable or necessary to place recipients in such a position, because as the Sixth Circuit has outlined, there is an alternative approach that balances the need for adversarial testing of testimony with protection against personal confrontation between the parties. Therefore, § 106.45(b)(6)(i) respects and reinforces the impartiality of the recipient by requiring adversarial questioning to be conducted by party advisors (who by definition need not be impartial because their role is to assist one party and not the other). Precisely because the recipient must provide a neutral, impartial decision-maker, the function of adversarial questioning must be undertaken by persons who owe no duty of impartiality to the parties. Rather, the impartial decision-maker benefits from observing the questions through the procedures at issue, and the government’s interest, including financial and administrative burden that additional procedures would entail). 1283 Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979) (noting that the primary congressional purposes behind Title IX were ‘‘to avoid the use of Federal resources to support discriminatory practices’’ and to ‘‘provide individual citizens effective protection against those practices.’’); see also Gebser, 524 U.S. at 291–92 (refusing to allow plaintiff to pursue a claim under Title IX based on the school’s failure to comply with the Department’s regulatory requirement to adopt and publish prompt and equitable grievance procedures, stating ‘‘And in any event, the failure to promulgate a grievance procedure does not itself constitute ‘discrimination’ under Title IX. Of course, the Department of Education could enforce the requirement administratively: Agencies generally have authority to promulgate and enforce requirements that effectuate the statute’s nondiscrimination mandate, 20 U.S.C. 1682, even if those requirements do not purport to represent a definition of discrimination under the statute.’’). 1284 Doe v. Miami Univ., 882 F.3d 579, 601 (6th Cir. 2018) (‘‘School officials responsible for deciding to exclude a student from school must be impartial.’’) (internal quotation marks and citation omitted). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations and answers of each party and witness posed by a party’s advisor advocating for that party’s particular interests in the case. The Department believes that § 106.45(b)(6)(i) prescribes an approach that is both proactive and reactive, for the benefit of the recipient and both parties; that is, the decision-maker has the right and responsibility to ask questions and elicit information from parties and witnesses on the decisionmaker’s own initiative to aid the decision-maker in obtaining relevant evidence both inculpatory and exculpatory, and the parties also have equal rights to present evidence in front of the decision-maker so the decisionmaker has the benefit of perceiving each party’s unique perspectives about the evidence. The Department notes, with respect to commenters’ arguments in favor of the Harvard Law School’s submitted questions model, that a decision-maker must exclude irrelevant questions, and nothing in the final regulations precludes a recipient from adopting and enforcing (so long as it is applied clearly, consistently, and equally to the parties 1285) a rule that deems duplicative questions to be irrelevant, or to impose rules of decorum that require questions to be asked in a respectful manner; however, any such rules adopted by a recipient must ensure that all relevant questions and evidence are admitted and considered (though varying weight or credibility may of course be given to particular evidence by the decision-maker). Thus, for example, where the substance of a question is relevant, but the manner in which an advisor attempts to ask the question is harassing, intimidating, or abusive (for example, the advisor yells, screams, or physically ‘‘leans in’’ to the witness’s personal space), the recipient may appropriately, evenhandedly enforce rules of decorum that require relevant questions to be asked in a respectful, non-abusive manner. The Department disagrees that the provision in § 106.45(b)(6)(i) requiring the decision-maker to explain any decision that a cross-examination question is irrelevant means that submission of written questions adequately substitutes for real-time, adversarial questioning. For the reasons explained by the Sixth Circuit, written submission of questions is no substitute for live cross-examination.1286 The 1285 The introductory sentence to § 106.45(b) provides that any rules a recipient adopts to use in the grievance process, other than those necessary to comply with § 106.45, must apply equally to both parties. 1286 E.g., Doe v. Baum, 903 F.3d 575, 582–83 (6th Cir. 2018) (‘‘Without the back-and-forth of VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Department agrees with the commenter who argued that engines come in different shapes and sizes, so that the engine of cross-examination may appropriately look different in a Title IX grievance process than in a criminal proceeding. In recognition of these different purposes and contexts, § 106.45 does not attempt to incorporate protections constitutionally guaranteed to criminal defendants such as the Sixth Amendment right to confront accusers face to face, the right of selfrepresentation, or the right to effective assistance of counsel. The Department appreciates commenters’ proposal to modify the real-time cross-examination requirement by requiring party advisors to ask questions one at a time, in full hearing of the other party, while the decisionmaker decides whether or not the question should be answered, to better screen out irrelevant or abusive questions. We have revised § 106.45(b)(6)(i) to reflect the commenters’ suggestion; this provision now provides that ‘‘Only relevant crossexamination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination question, the decision-maker must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.’’ We agree that such a provision better ensures that cross-examination in the out-of-court setting of a campus Title IX proceeding remains focused only on relevant questions and answers. The Department appreciates commenters’ descriptions of State laws that have prescribed grievance procedures for campus sexual misconduct allegations, and of the process utilized by the U.S. Senate during the confirmation hearings for Justice Kavanaugh. The Department has considered sexual misconduct disciplinary proceeding models in use by various individual recipients, prescribed under State laws, used by the U.S. Senate, and suggested by advocacy organizations, and for the reasons previously stated, the Department has carefully selected those procedures in § 106.45 as procedures rooted in adversarial questioning, the accused cannot probe the witness’s story to test her memory, intelligence, or potential ulterior motives. . . . Nor can the factfinder observe the witness’s demeanor under that questioning . . . For that reason, written statements cannot substitute for cross-examination. . . . Instead, the university must allow for some form of live questioning in front of the fact-finder’’ though this requirement can be facilitated through modern technology, for example by allowing a witness to be questioned via Skype.’’) (internal quotation marks and citations omitted; emphasis in original). PO 00000 Frm 00307 Fmt 4701 Sfmt 4700 30331 principles of due process and appropriately adapted for application when a formal complaint of sexual harassment requires reaching accurate outcomes in education programs or activities. Changes: We have revised § 106.45(b)(6)(i) to provide that only relevant cross-examination and other questions may be asked of a party or witness, and before a complainant, respondent, or witness answers a crossexamination question, the decisionmaker must first determine whether the question is relevant and explain to the party’s advisor asking cross-examination questions any decision to exclude a question as not relevant. Discourages Participation Comments: Commenters argued that any process that requires crossexamination will discourage many students, including complainants, respondents, and witnesses, from participating in a Title IX grievance process.1287 Commenters similarly argued that overseeing crossexamination will discourage recipients’ employees, staff, and volunteers from serving as decision-makers or party advisors. At least one commenter argued that undocumented students, and LGBTQ students, will be particularly deterred from reporting sexual assault because cross-examination will make Title IX proceedings more legalistic and undocumented students, and LGBTQ students, are already wary of the criminal justice system. Discussion: The Department understands commenters’ concerns that participation in a formal grievance process may be difficult for participants, including students and employees. The final regulations require recipients to notify students and employees of the recipient’s grievance process,1288 and to train personnel whom the recipient designates to serve as a Title IX Coordinator, investigator, decisionmaker, or person who facilitates an 1287 Commenters cited to information regarding reasons for not reporting such as the data noted in the ‘‘Reporting Data’’ subsection of the ‘‘General Support and Opposition’’ section of this preamble, in support of arguments that fear of the ordeal of a potential trial already discourages many sexual assault victims from reporting to law enforcement, and making Title IX grievance processes more court-like by requiring cross-examination will have a similar chilling effect on reporting sexual assault to universities. 1288 Section 106.8(c) (requiring recipients to adopt and publish, and send notice of, the recipient’s grievance procedures for complaints of sex discrimination and grievance process for formal complaints of sexual harassment); § 106.45(b)(2) (requiring recipients to send written notice to parties involved in a formal complaint of sexual harassment notice of the recipient’s grievance process). E:\FR\FM\19MYR2.SGM 19MYR2 30332 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations informal resolution.1289 The final regulations require recipients to allow each party involved in a grievance process to select an advisor of the party’s choice, for the purpose of accompanying, advising, and assisting the party with navigating the grievance process. The Department recognizes that the § 106.45 grievance process, including live hearings and crossexamination at postsecondary institutions, constitutes a serious, formal process, and these final regulations ensure that a recipient’s educational community is aware of that process and, when involved in the process, each party has the right to assistance from an attorney or nonattorney advisor throughout the process. The final regulations also protect an individual’s right to decide not to participate in a grievance process, by including § 106.71 that prohibits retaliation against any person for exercising rights under Title IX, whether by participating or refusing to participate in a Title IX grievance process. While participation in a formal process may be difficult or challenging for a participant, the Department believes that sex discrimination in the form of sexual harassment is a serious matter that warrants a predictable, fair grievance process with strong procedural protections for both parties so that reliable determinations regarding responsibility are reached by the recipient. While the formality of the § 106.45 grievance process may seem ‘‘legalistic,’’ the process is very different from a civil lawsuit or criminal proceeding, such that Title IX grievance processes retain their character as administrative proceedings in an educational environment, focused on resolving allegations that a respondent committed sex discrimination in the form of sexual harassment against a complainant. Recipients retain discretion to communicate with their students and employees (including undocumented students and others who may be wary of the criminal justice system) about the nature of the § 106.45 grievance process and the differences between that process and the criminal justice system, including for example, that the § 106.45 grievance process in a postsecondary institution involves cross-examination by a party’s advisor overseen by a trained decision-maker with authority to control the live hearing environment to prevent abusive questioning and make determinations free from bias or sex stereotypes that may constitute evidence of sex 1289 Section 106.45(b)(1)(iii). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 discrimination. To make it easier for participants to participate in a live hearing, the final regulations expressly authorize a recipient, in the recipient’s discretion, to allow any or all participants to participate in the live hearing virtually. Changes: The final regulations revise § 106.45(b)(6)(i) to expressly allow a recipient to hold the live hearing virtually, with technology enabling participants to see and hear each other. Financial Inequities Comments: Many commenters argued that requiring cross-examination will lead to sharp inequities between parties who can afford to hire an attorney and those who cannot afford an attorney, and the credibility of a victim’s case will be contingent on the effectiveness of the advisor doing the crossexamination rather than on the merits of the case. Some commenters asserted that this disparity will disfavor complainants because if there is a pending criminal case, a respondent likely will have a court-appointed attorney while a victim is likely to be left without an attorney. At least one commenter pointed to a study showing that only three percent of universities provide victims with legal support.1290 Commenters asserted that often it is respondents who bring lawyers while complainants more often bring nonlawyer advocates, so requiring advisors to cross-examine will disadvantage complainants.1291 Commenters argued that the financial disparity will fall hardest on students of color including children of immigrants, international students, and first-generation students, as they are more likely to come from an economically disadvantaged background and cannot afford expensive lawyers. Commenters expressed concern that LGBTQ students will be at greater financial disadvantage than other students. Discussion: The Department disagrees that the final regulations create inequity between parties based on the financial ability to hire a lawyer as a party’s advisor of choice. The final regulations clarify that a party’s advisor may be, but is not required to be, an attorney,1292 and clarify that where a recipient must provide a party with an advisor to 1290 Commenters cited: Kristen N. Jozkowski & Jacquelyn D. Wiersma-Mosley, The Greek System: How Gender Inequality and Class Privilege Perpetuate Rape Culture, 66 Family Relations 1 (2017). 1291 Commenters cited: Sarah Jane Brubaker, Campus-Based Sexual Assault Victim Advocacy and Title IX: Revisiting Tensions Between Grassroots Activism and the Criminal Justice System, 14 Feminist Criminology 3 (2018). 1292 Section 106.45(b)(5)(iv). PO 00000 Frm 00308 Fmt 4701 Sfmt 4700 conduct cross-examination at a live hearing that advisor may be of the recipient’s choice, must be provided without fee or charge to the party, and may be, but is not required to be, an attorney.1293 The Department understands that complainants and respondents may believe that hiring an attorney as an advisor may be beneficial for the party and that parties often will have different financial means, but the § 106.45 grievance process is designed to permit both parties to navigate the process with assistance from any advisor of choice. The Department disagrees that cross-examination at a live hearing means that a complainant’s case will be contingent on the effectiveness of the complainant’s advisor. Because cross-examination questions and answers, as well all relevant evidence, is evaluated by a decision-maker trained to be impartial, the professional qualifications of a party’s advisor do not determine the outcome. The Department wishes to emphasize that the status of any party’s advisor (i.e., whether a party’s advisor is an attorney or not) must not affect the recipient’s compliance with § 106.45, including the obligation to objectively evaluate relevant evidence. Thus, determinations regarding responsibility will turn on the merits of each case, and not on the professional qualifications of a party’s advisor. Regardless of whether certain demographic groups are more or less financially disadvantaged and thus more or less likely to hire an attorney as an advisor of choice, decision-makers in each case must reach determinations based on the evidence and not solely based on the skill of a party’s advisor in conducting cross-examination. The Department also notes that the final regulations require a trained investigator to prepare an investigative report summarizing relevant evidence, and permit the decision-maker on the decision-maker’s own initiative to ask questions and elicit testimony from parties and witnesses, as part of the recipient’s burden to reach a determination regarding responsibility based on objective evaluation of all relevant evidence including inculpatory and exculpatory evidence. Thus, the skill of a party’s advisor is not the only factor in bringing evidence to light for a decision-maker’s consideration. The Department disagrees that respondents are advantaged due to having a court-appointed lawyer for a concurrent criminal case, because a Title IX grievance process is independent from a criminal case and a court-appointed lawyer in a criminal 1293 Section E:\FR\FM\19MYR2.SGM 106.45(b)(6)(i). 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations matter would not be court-appointed to represent the criminal defendant in a recipient’s Title IX grievance process. The Department disagrees that LGBTQ students are necessarily at a greater financial disadvantage than other students; however, the final regulations ensure that all students, including LGBTQ students, have an equal opportunity to select an advisor of choice. Changes: The final regulations revise § 106.45(b)(6)(i) to specify that where a recipient must provide a party with an advisor to conduct cross-examination at a live hearing, that advisor may be of the recipient’s choice, must be provided without fee or charge to the party, and may be, but is not required to be, an attorney. Changes the Nature of the Grievance Process Comments: Some commenters asserted that cross-examination shifts the burden of adjudication from the recipient onto the parties. Many commenters asserted that extensive training will be necessary for hearing panelists and advisors conducting crossexamination, and recipients will not have the resources, time, and money to make cross-examination workable, leading to chaos.1294 Many commenters argued that requiring adversarial cross-examination will fundamentally change the nature of educational disciplinary proceedings, converting them into quasi-legal trials. Commenters argued that requiring postsecondary institutions to hold live hearings with cross-examination deprives institutions of the freedom to structure their processes according to their individual needs, resources, and educational communities and compels institutions to abandon alternative models they have carefully developed over many years, constituting an overly prescriptive mandate that fails to defer to school officials’ expertise in developing adjudication models that are fair, humane, in alignment with State and Federal laws, and address a recipient’s unique circumstances. Other commenters argued that requiring live hearings with cross-examination fails to recognize Federal court admonitions that universities are ill-equipped to 1294 Commenters cited: Naomi Mann, Taming Title IX Tensions, 20 Univ. of Pa. J. of Constitutional L. 631, 657 (2018), for the propositions that requiring mandatory counsel would ‘‘complicate the proceedings by importing outside legal rules based on adversarial systems’’ such that institutions would need to ‘‘learn to navigate and utilize these foreign systems’’ and that the ‘‘use of counsel would shift the burden of investigating and proving allegations from the educational institution to the students[.]’’ VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 handle the formalities and procedural complexities common to criminal trials, that education is a university’s first priority with adjudication of student disputes ‘‘at best, a distant second,’’ 1295 and due process does not require a university to ‘‘transform its classrooms into courtrooms.’’ 1296 One commenter argued that the crossexamination requirement could violate court-issued restraining orders prohibiting contact between the parties. Discussion: The final regulations ensure that the burden of gathering evidence, and the burden of proof, remain on the recipient, not on either party.1297 While the parties have strong procedural rights to participate and advocate for their own position throughout the § 106.45 grievance process, the right to meaningfully participate does not shift the burden away from the recipient or onto the parties. The Department notes that while decision-makers must be trained to serve impartially and avoid prejudgment of the facts at issue, bias, and conflicts of interest, the final regulations do not require training for advisors of choice. This is because the recipient is responsible for reaching an accurate determination regarding responsibility while remaining impartial, yet a party’s ability to rely on assistance from an advisor should not be limited by imposing training requirements on advisors, who by definition need not be impartial because their function is to assist one particular party. While the Department understands that recipients will need to dedicate resources to train Title IX personnel, including decision-makers overseeing live hearings, the benefits of a fair grievance process for resolving formal complaints of sexual harassment under Title IX outweigh the costs of training personnel to implement that fair grievance process. For similar reasons, the benefits of a consistent, predictable grievance process outweigh commenters’ concerns that the § 106.45 grievance process leaves too little flexibility for recipients to craft their own processes. As noted elsewhere in this preamble, when resolving factual allegations of sexual harassment under Title IX, recipients are not simply applying a recipient’s own code of conduct; rather, recipients are reaching determinations affecting rights of 1295 Commenters cited: Doe v. Univ. of Cincinnati, 872 F.3d 393, 400 (6th Cir. 2017). 1296 Commenters cited: Id; Doe v. Cummins, 662 F. App’x 437, 448–49 (6th Cir. 2016); Doe v. Univ. of Ky., 860 F.3d 365, 370 (6th Cir. 2017); Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 925–26 (6th Cir. 1988). 1297 Section 106.45(b)(5)(i). PO 00000 Frm 00309 Fmt 4701 Sfmt 4700 30333 students and employees under a Federal civil rights law. Far from turning classrooms into courtrooms, the § 106.45 grievance process incorporates procedures the Department has determined are most needed in the Title IX sexual harassment context to result in reliable outcomes viewed as legitimate by the parties and the public. Cross-examination in the postsecondary institution context is widely viewed as a critical part of a fair process, and as such giving both parties the right to cross-examination improves the reality and perception that recipients’ Title IX grievance processes are fair and legitimate.1298 Each aspect of the grievance process, while rooted in principles of due process, is adapted for implementation by recipients in the context of education programs or activities, thereby acknowledging that schools, colleges, and universities exist first and foremost to educate, and not to mirror courts of law. Thus, for the benefit of all students including those who are wary of the criminal justice system, a Title IX grievance process remains a separate, distinct forum. The Department disagrees that the final regulations require recipients to violate court-issued restraining orders. Section 106.45(b)(6)(i) requires recipients to conduct the entire live hearing (not only cross-examination) with the parties located in separate rooms, upon any party’s request, and cross-examination must be conducted by a party’s advisor and never by the party personally. Further, the final regulations revise § 106.45(b)(6)(i) to expressly allow a recipient to hold the live hearing virtually (including for witness participation), with technology enabling participants to see and hear each other. Thus, where a court-issued restraining order prohibits contact between the parties, the final regulations do not require any in-person proximity between the parties, or any direct communication between the 1298 See H. Hunter Bruton, Cross-Examination, College Sexual-Assault Adjudications, and the Opportunity for Tuning up the Greatest Legal Engine Ever Invented, 27 Cornell J. of L. & Pub. Pol’y 145, 172 (2017) (‘‘[O]ur judicial system and constitutional law jurisprudence have selected cross-examination as the best legal innovation for approximating perfect procedural parity. The ability of the accused to participate in the proceedings against him prevents the accused from becoming merely the subject of a trial where inquisitors determine his fate. Similarly, endeavoring for procedural parity between adversaries increases institutional legitimacy in the eyes of the accused and society, which some maintain is a value in and of itself.’’) (internal citations omitted); id. at 173 (cross-examination contributes to both the fairness and accuracy of a hearing because of its ‘‘ability to expose errors and contextualize evidence’’). E:\FR\FM\19MYR2.SGM 19MYR2 30334 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations parties (even virtually, using technology). Changes: None. Section 106.45(b)(6)(ii) Should Apply to Postsecondary Institutions Comments: Several commenters argued that because the Department permits written questioning in elementary and secondary schools, there is no reason to believe that the same process would not be equally effective in postsecondary institutions, especially when students of the same age could be subjected to the two different processes (e.g., a 17 year old high school student, versus a 17 year old college student). One commenter argued that crossexamination is either important in a quest for truth or it is not, and that if elementary and secondary schools have discretion to decide whether crossexamination is beneficial, postsecondary institutions should have the same discretion. One commenter stated that community colleges often enroll high school students in dual enrollment programs, and under the proposed rules a high school student would face a different process depending on whether a sexual assault occurred at their high school or at the community college where they are taking classes. Commenters argued that the same ‘‘sensitivities associated with age and developmental ability’’ relied on by the Department to justify not requiring live hearings and cross-examination in elementary and secondary schools 1299 remain a consideration with young adults in college, especially in cases about personal, intimate details of a sexual nature. Commenters argued that modern neuroscience has established that adolescence, in terms of brain development, extends well beyond the teenage years, and the prefrontal cortex—the part of the brain primarily responsible for executive functioning— typically does not fully develop until the early to mid-twenties,1300 when many students have already graduated from college and thus until approximately age 25 students do not function as rational adults and rely heavily on their emotions when making decisions.1301 1299 Commenters cited: 83 FR 61476. cited: Heidi Ledford, Who Exactly Counts as an Adolescent?, Nature (Feb. 21, 2018); Mariam Arain et al., Maturation of the Adolescent Brain, 9 Neuropsychiatric Disease & Treatment 449, 451 (2013); Lucy Wallis, Is 25 the New Cut-Off Point for Adulthood?, BBC.com (September 23, 2013). 1301 Commenters cited: University of Rochester Medical Center, Understanding the Teen Brain, https://www.urmc.rochester.edu/encyclopedia/ content.aspx?ContentTypeID=1&ContentID=3051. 1300 Commenters VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Commenters argued that when OCR conducts an investigation into violations of Title IX, schools have no right to question witnesses (or even to know who the witnesses are), and because the Department nevertheless presumably believes the procedures set out in its OCR Case Processing Manual are fair and produce reliable results there is no reason why a recipient needs to include cross-examination of parties and witnesses in a sexual misconduct case in order to have a fair process that reaches reliable results. Commenters noted that Title IX and student conduct experts oppose the proposed rules’ cross-examination requirement and instead favor submission of written questions or asking questions posed by a neutral school official, referencing publications from organizations such as the Association of Title IX Administrators (ATIXA), the Association for Student Conduct Administration (ASCA), and the American Bar Association (ABA) Criminal Justice Section. One commenter described a survey the commenter distributed regarding the proposed rules and stated that out of the 597 people surveyed, 81 percent disapproved of the proposed rules’ cross-examination requirement. Another commenter pointed to a different public opinion poll that indicated that 61 percent of those surveyed agreed that students accused of sexual assault on college campuses should have the right to cross-examine their accuser. One commenter suggested that the final regulations should require the recipient to provide a neutral person to conduct cross-examination of parties and witnesses. One commenter asked whether parties’ submission of questions to be asked through a hearing board chair fulfills the proposed rules’ cross-examination requirement; whether students may choose to conduct the cross-examination themselves instead of through an advisor; and whether a Title IX Coordinator who filed a formal complaint must then be cross-examined at the hearing. Discussion: The Department appreciates commenters’ support for § 106.45(b)(6)(ii) making hearings optional and requiring submission of written questions by parties directed to other parties and witnesses, in the elementary and secondary school context, and understands commenters’ arguments that the same procedures should apply in postsecondary institutions. The Department acknowledges that there is no clear line between the ages of students in elementary and secondary schools versus in postsecondary institutions PO 00000 Frm 00310 Fmt 4701 Sfmt 4700 (e.g., a 17 year old might be in high school, or might be in college, or might be dually enrolled). As discussed in the ‘‘Directed Questions’’ section of this preamble, the Department appreciates commenters’ arguments for and against differences in provisions based on the age of a student versus differentiating between elementary and secondary schools on the one hand, and postsecondary institutions on the other hand. The Department believes that it is desirable, to the extent feasible, to achieve consistency in application of Title IX rights across all recipients, because all students participating in education programs or activities regardless of age deserve the protections of Title IX’s non-discrimination mandate. The Department also believes that with respect to the unique circumstances presented by sex discrimination in the form of sexual harassment, a consistent, predictable framework can be prescribed while also adapting certain procedures for elementary and secondary schools so that the general framework is more reasonable and effective for students in elementary and secondary schools, who tend to be younger than the average college student. Thus, for example, the final regulations revise the definition of actual knowledge to include notice of sexual harassment to any employee in the elementary and secondary school context,1302 and revise § 106.45(b)(6)(ii) to more clearly state that elementary and secondary school recipients do not need to use a hearing model to adjudicate formal complaints of sexual harassment. Similarly, with respect to crossexamination, the Department has concluded that the approach utilized for postsecondary institutions, whereby party advisors conduct crossexamination during a live hearing, is not necessarily effective in elementary and secondary schools where most students tend to be under the age of majority and where (especially for very young students) parents or guardians would likely exercise a party’s rights.1303 Therefore, for example, a parent writing out answers to questions about a sexual harassment incident on behalf of a second-grade student is likely to be a more reasonable procedure than 1302 Section 106.30 (defining ‘‘Actual knowledge’’). 1303 We have added § 106.6(g) to expressly acknowledge the legal rights of parents and guardians to act on behalf of complainants, respondents, and other individuals with respect to exercise of Title IX rights, including but not limited to the filing of a formal complaint. The legal right of a parent or guardian to act on a party’s behalf extends throughout the grievance process. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations expecting the second-grader to answer questions in real-time during a hearing. Conversely, in the postsecondary institution context where students generally are young adults, such a party can reasonably be expected to answer questions during a live hearing and to benefit from the procedural right to question the other party (through the asking party’s advisor). The Department’s cross-examination requirement in postsecondary institutions is based on a practical determination that cross-examination is a valuable procedural tool benefiting both parties, whereas in the elementary and secondary school context the parties are likely to be under the age of majority and would not necessarily benefit from cross-examination as a procedural device. The Department notes that current regulations and guidance do not require consistency between the procedures applied in a high school, and in a college, such that a 17 year old in high school, or in college, would face potentially different grievance procedures in these situations; the final regulations do not increase that discrepancy. The Department acknowledges the research pointed to by commenters indicating that the brains of young adults are still developing until a person is in their early or even mid-twenties. However, the laws of nearly every State recognize a person age 18 or older as capable of legally acting on the person’s own behalf 1304 (for example, by entering into binding contracts), and the Department maintains that individuals developmentally capable enough to enroll in college are also capable enough to make decisions about and participate 1304 E.g., LawServer.com, ‘‘Age of Majority,’’ https://www.lawserver.com/law/articles/age-ofmajority (‘‘The age of majority is the legal age established by state law at which a person is no longer considered a child. In most states, a person has reached the age of majority at 18. Two states (Alabama and Nebraska) set the age of majority to be 19 and one, Mississippi, sets the age of majority at 21.’’). The legal voting age in the U.S. is age 18. USA.Gov, ‘‘Voter Registration Age Requirements By State,’’ https://www.usa.gov/voter-registration-agerequirements. The age of consent to sexual activity varies across States, from age 16 to age 18. See https://www.ageofconsent.net/states. The ages of licensing privileges varies across States, for example with respect to driver’s licenses where the age for an unrestricted license ranges from age 16 to age 18. Very Well Family, ‘‘Driving Age By State,’’ https://www.verywellfamily.com/drivingage-by-state-2611172#driving-age-by-state. Similarly, regarding marriage licenses, the age for marrying without parental consent is age 18 in all states except Mississippi and Nebraska, where the age is 19, and 21, respectively. FindLaw.com, ‘‘State-By-State Marriage ‘Age Of Consent’ Laws,’’ https://family.findlaw.com/marriage/state-by-statemarriage-age-of-consent-laws.html. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 in a grievance process designed to advance the person’s rights.1305 The Department reiterates that in recognition that young adults may find navigating a grievance process challenging, the final regulations preserve each party’s right to select an advisor of choice to assist the party. The Department’s concern for each party’s ability to receive emotional and personal support though a grievance process is also discussed in this preamble under § 106.45(b)(5)(iii), providing that a recipient cannot restrict a party’s ability to discuss the allegations; this applies to a young adult’s desire to discuss the allegations with a parent, friend, or advocate to receive emotional, practical, or strategic advice and support, as well as the right to discuss the allegations with a professional (such as a lawyer). The Department believes that a young adult in college is capable of participating in a grievance process, including answering questions at a live hearing, even if the young adult’s frontal cortex is still developing, and the Department respects the legal and policy determinations of the vast majority of States that have granted legal rights and responsibilities to young adults age 18 or older. In recognition that sexual misconduct matters involve sensitive, often traumatic issues for victims of any age, the final regulations ensure that any complainant regardless of age can insist that cross-examination (and the entire live hearing) occur with the parties in separate rooms, and revise § 106.45(b)(6)(i) further to grant recipients the discretion to hold the entire live hearing virtually with use of technology so that witnesses also may appear virtually. The Department appreciates commenters’ observations that the Department’s OCR investigations utilize procedures that do not include allowing a recipient under investigation for Title IX violations to cross-examine witnesses interviewed by OCR. For the reasons discussed in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, the Department has determined that the procedures reflected in § 106.45 represent those procedures most likely to result in fair, reliable outcomes in the particular context of a recipient’s need to accurately resolve sexual harassment allegations in order to provide remedies 1305 For example, when a student is 18 years of age or attends an institution of postsecondary education, the rights accorded to, and consent required of, parents under FERPA and its implementing regulations transfer from the parents to the student. 20 U.S.C. 1232g(d); 34 CFR 99.3; 34 CFR 99.5(a)(1). PO 00000 Frm 00311 Fmt 4701 Sfmt 4700 30335 to sexual harassment victims—a context and purpose that differs from that of the Department’s investigation into a recipient’s compliance with Title IX. The Department acknowledges that various experts in Title IX matters support a process of posing questions through a hearing officer or neutral school official, and that public opinion surveys may show various levels of support or opposition to the idea of cross-examination in college disciplinary proceedings. However, for the reasons discussed above, the Department has determined that in the postsecondary institution context, the tool of cross-examination benefits both parties and contributes to the truthseeking purpose of the § 106.45 grievance process. The Department appreciates commenters’ proposed revision that recipients simply be directed to give the parties opportunity to challenge credibility and require the decision-maker to ‘‘reasonably assess credibility.’’ The Department believes that the final regulations accomplish that directive, by giving the parties equal opportunity to challenge credibility (through written questions for non-postsecondary institutions, and through cross-examination for postsecondary institutions) and by obligating the decision-maker to reach a determination regarding responsibility by objectively evaluating all relevant evidence. The Department appreciates a commenter’s suggestion that recipients be required to provide a neutral person to conduct cross-examination on behalf of both parties. However, for the reasons discussed above, the Department does not believe that the benefits of adversarial cross-examination can be achieved when conducted by a person ostensibly designated as a ‘‘neutral’’ official. This is because the function of cross-examination is precisely not to be neutral but rather to point out in front of the neutral decision-maker each party’s unique perspective about relevant evidence and desire regarding the outcome of the case. In response to a commenter’s question as to whether requiring written submission of questions at a live hearing would fulfill the cross-examination requirement described in § 106.45(b)(6)(i), the final regulations revise that provision to add the phrase ‘‘directly, orally, and in real time’’ to describe how cross-examination must be conducted, to clarify that submission of written questions, even during a live hearing, is not compliant with § 106.45(b)(6)(i). In answer to a commenter’s further question, the Department has revised § 106.45(b)(6)(i) to expressly preclude a party from E:\FR\FM\19MYR2.SGM 19MYR2 30336 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations conducting cross-examination personally; the only method for conducting cross-examination is by a party’s advisor. In response to a commenter’s question about whether a Title IX Coordinator must be cross-examined in situations where the Title IX Coordinator filed the formal complaint that triggered the grievance process, the final regulations revise § 106.30 defining ‘‘formal complaint’’ to clarify that where a formal complaint is signed by a Title IX Coordinator, the Title IX Coordinator does not become a party and must comply with all provisions in § 106.45, including the training requirement and the avoidance of bias and conflict of interest. Thus, where the Title IX Coordinator signed the formal complaint that initiated the grievance process, neither § 106.45(b)(6)(i) nor other provisions in § 106.45 treat the Title IX Coordinator as a party. Even where the Title IX Coordinator testifies as a witness, the Title IX Coordinator is still expected to serve impartially without prejudgment of the facts at issue. The Department notes that the recipient would not be obligated to provide the Title IX Coordinator with an advisor because that obligation attaches only where a party does not have an advisor of choice at a hearing. Changes: The final regulations add to § 106.45(b)(6)(i) that cross-examination at a live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice, notwithstanding the discretion paragraph (b)(5)(iv) to otherwise restrict the extent to which advisors may participate in the proceedings. The final regulations further revise § 106.45(b)(6)(i) to provide that recipients may hold the live hearing virtually, with technology enabling participants to see and hear each other. The final regulations revise the definition of ‘‘formal complaint’’ in § 106.30 to clarify that even where a Title IX Coordinator signs a formal complaint, this does not make the Title IX Coordinator a ‘‘party’’ in the grievance process. False Accusations Occur Infrequently Commenters: Many commenters argued that because false allegations occur infrequently,1306 it is unnecessary to give the accused extra protections like cross-examination; commenters urged the Department to replace crossexamination with submission of written 1306 Commenters cited to information regarding infrequency of false allegations such as the data noted in the ‘‘False Allegations’’ subsection of the ‘‘General Support and Opposition’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 questions, or asking questions through a neutral school official, to better protect survivors instead of protecting a minority of falsely-accused students. Commenters argued that an adequate regulatory provision would simply say ‘‘The recipient’s grievance procedure must include an opportunity for parties to challenge the credibility of witnesses and the other party. The decision-maker must reasonably assess credibility of witnesses and parties’’ thus leaving recipients discretion to decide how to meet those requirements. Discussion: The Department disagrees that cross-examination in the Title IX grievance process is intended only to protect respondents against false allegations; rather, as discussed above, cross-examination in the § 106.45 grievance process is intended to give both parties equal opportunity to meaningfully challenge the plausibility, reliability, credibility, and consistency of the other party and witnesses so that the outcome of each individual case is more likely to be factually accurate, reducing the likelihood of either type of erroneous outcome (i.e., inaccurately finding a respondent to be responsible, or inaccurately finding a respondent to be non-responsible). For that reason, we do not believe the alternate regulatory language suggested by the commenters is sufficient. Despite commenters’ assertions, the Department has not designed these final regulations to specifically address false allegations, or in response to any preconceived notions about the frequency of false allegations. Changes: None. Excluding Cross-Examination Questions Comments: Commenters noted that the proposed regulations impose a duty on recipients to objectively evaluate relevant evidence, and deem questions about a complainant’s prior sexual behavior to be irrelevant (with two exceptions), but commenters argued that the proposed rules failed to clarify whether recipients have discretion to exclude relevant cross-examination questions on other public policy grounds on which rules of evidence in civil and criminal matters often exclude evidence, for example, party statements made during mediation discussions, out of court statements that constitute hearsay, evidence of a party’s general character or prior bad acts, or evidence that is cumulative, duplicative, or unduly prejudicial. Commenters argued that the final regulations should either identify admissibility rules in addition to relevance, or clarify whether decision-makers have the authority to exclude relevant evidence for these kinds of policy reasons (or because State PO 00000 Frm 00312 Fmt 4701 Sfmt 4700 law requires exclusion of types of evidence). Commenters wondered what standards the Department would apply to review whether the recipient’s evidentiary rules comply with these final regulations, if recipients do have authority to promulgate rules excluding certain types of evidence. Commenters argued that if relevance is the only allowable admissibility rule then hearings will become even more protracted and unwieldy and decisionmakers should thus have discretion to identify appropriate grounds, other than relevance, for excluding evidence. Discussion: Commenters correctly observed that the proposed rules impose a duty on recipients to objectively evaluate all relevant evidence including inculpatory and exculpatory evidence.1307 The final regulations revise the language in § 106.45(b)(6)(i)– (ii) to state more clearly that (subject to the two exceptions in those provisions 1308) questions and evidence about a complainant’s prior sexual behavior or predisposition are not relevant, bar the use of information protected by any legally recognized privilege,1309 and provide that a recipient cannot use a party’s treatment records without the party’s voluntary, written consent.1310 (Pursuant to § 106.45(b)(5)(i), if the party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a ‘‘parent,’’ as defined in 34 CFR 99.3.) The Department appreciates the opportunity to clarify here that the final regulations do not allow a recipient to impose rules of evidence that result in 1307 Section 106.45(b)(1)(ii). discussed below, the rape shield language in § 106.45(b)(6)(i)–(ii) bars questions or evidence about a complainant’s sexual predisposition (with no exceptions) and about a complainant’s prior sexual behavior subject to two exceptions: If offered to prove that someone other than the respondent committed the alleged sexual harassment, or if the question or evidence concerns sexual behavior between the complainant and the respondent and is offered to prove consent. 1309 Section 106.45(b)(1)(x) (protecting any legally recognized privileged information from disclosure or use during a grievance process). This provision would therefore prohibit cross-examination (or other) questions that seek disclosure of, for example, information protected by attorney-client privilege. 1310 Section 106.45(b)(5)(i) (stating that the recipient cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so for a grievance process. If the party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3 (i.e., FERPA regulations), then the recipient must obtain the voluntary, written consent of a ‘‘parent,’’ as defined in 34 CFR 99.3.). 1308 As E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations exclusion of relevant evidence; the decision-maker must consider relevant evidence and must not consider irrelevant evidence. The Department appreciates commenters’ concerns that comprehensive rules of evidence adopted in civil and criminal courts throughout the U.S. legal system apply detailed, complex rules to certain types of evidence resulting in exclusion of evidence that is otherwise relevant to further certain public policy values (e.g., exclusion of statements made during settlement negotiations, exclusion of hearsay subject to specifically-defined exceptions, exclusion of character or prior bad act evidence subject to certain exceptions, exclusion of relevant evidence when its probative value is substantially outweighed by risk of prejudice, and other admissibility rules). The Department desires to prescribe a grievance process adapted for an educational environment rather than a courtroom, and declines to impose a comprehensive, detailed set of evidentiary rules for resolution of contested allegations of sexual harassment under Title IX. Rather, the Department has carefully considered the procedures most needed to result in fair, accurate, and legitimate outcomes in Title IX grievance processes. To that end, the Department has determined that recipients must consider relevant evidence with the following conditions: A complainant’s prior sexual behavior is irrelevant (unless questions or evidence about prior sexual behavior meet one of two exceptions, as noted above); information protected by any legally recognized privilege cannot be used; no party’s treatment records may be used without that party’s voluntary, written consent; 1311 and statements not subject to cross-examination in postsecondary institutions cannot be relied on by the decision-maker. The Department notes that where evidence is duplicative of other evidence, a recipient may deem the evidence not relevant. The Department does not believe that requiring recipients to evaluate relevant evidence results in unfairness or inaccuracy. Unlike court trials where often the trier of fact consists of a jury of laypersons untrained in evidentiary matters, the final regulations require decision-makers to be trained in how to conduct a grievance process and how to serve impartially, and specifically including training in how to determine what questions and evidence are 1311 Pursuant to § 106.45(b)(5)(i), if the party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3 (i.e., FERPA regulations), then the recipient must obtain the voluntary, written consent of a ‘‘parent,’’ as defined in 34 CFR 99.3. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 relevant. The fact that decision-makers in a Title IX grievance process must be trained to perform that role means that the same well-trained decision-maker will determine the weight or credibility to be given to each piece of evidence, and the training required under § 106.45(b)(1)(iii) allows recipients flexibility to include substantive training about how to assign weight or credibility to certain types or categories of evidence, so long as any such training promotes impartiality and treats complainants and respondents equally. Thus, for example, where a crossexamination question or piece of evidence is relevant, but concerns a party’s character or prior bad acts, under the final regulations the decision-maker cannot exclude or refuse to consider the relevant evidence, but may proceed to objectively evaluate that relevant evidence by analyzing whether that evidence warrants a high or low level of weight or credibility, so long as the decision-maker’s evaluation treats both parties equally 1312 by not, for instance, automatically assigning higher weight to exculpatory character evidence than to inculpatory character evidence. While the Department will enforce these final regulations to ensure that recipients comply with the § 106.45 grievance process, including accurately determining whether evidence is relevant, the Department notes that § 106.44(b)(2) assures recipients that, when enforcing these final regulations, the Department will refrain from second guessing a recipient’s determination regarding responsibility based solely on whether the Department would have weighed the evidence differently. That provision therefore reinforces the approach to the grievance process throughout § 106.45 under which a recipient must objectively evaluate all relevant evidence (inculpatory and exculpatory) but retains discretion, to which the Department will defer, with respect to how persuasive a decisionmaker finds particular evidence to be. Changes: The final regulations revise § 106.45(b)(6)(i)–(ii) to clarify questions and evidence about the complainant’s sexual predisposition is never relevant and about a complainant’s prior sexual behavior are not relevant with two exceptions: Where the question or evidence about sexual behavior is offered to prove that someone other than the respondent committed the alleged 1312 The final regulations revise the introductory sentence of § 106.45(b) to provide: ‘‘Any provisions, rules, or practices other than those required by § 106.45 that a recipient adopts as part of its grievance process for handling formal complaints of sexual harassment as defined in § 106.30, must apply equally to both parties.’’ PO 00000 Frm 00313 Fmt 4701 Sfmt 4700 30337 misconduct, or where the question or evidence relates to sexual behavior between the complainant and respondent and is offered to prove consent. The final regulations add § 106.45(b)(1)(x) to prevent disclosure or use during a grievance process of information protected by a legally recognized privilege. The final regulations revise § 106.45(b)(5)(i) to bar a recipient from using a party’s treatment records without the party’s voluntary, written consent. The final regulations also revise the introductory sentence of § 106.45(b) to provide that any provisions, rules, or practices other than those required by § 106.45 that a recipient adopts as part of its grievance process must apply equally to both parties. Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live Hearing With Cross-Examination Self-Representation Versus CrossExamination Conducted by Advisors Comments: Some commenters opposed § 106.45(b)(6)(i) because that provision restricts cross-examination to being conducted by a party’s advisor, foreclosing the option for a respondent (or complainant) to be self-represented and conduct cross-examination personally. Commenters argued that the right of self-representation has a long history under U.S. constitutional law, and that the Supreme Court has held that States cannot force an attorney on an unwilling criminal defendant,1313 that the Sixth Amendment’s right to confront witnesses applies to the accused, not to lawyers,1314 and that representing oneself affirms the dignity and autonomy of the accused.1315 Commenters asserted that the final regulations should be modified so that ‘‘in the event that the advisor assigned by a recipient is unacceptable to the respondent, the respondent must have the right to self-represent in all crossexaminations.’’ Some commenters suggested that this provision should be modified to allow students to confer with their advisors and for advisors to actively represent the student during any part of a live hearing. At least one commenter argued 1313 Commenters cited: Faretta v. Cal., 422 U.S. 806, 816 (1974) (the right to represent oneself stems in part from the premise that the defense may be made easier if the accused is permitted to bypass lawyers and conduct the trial himself); id. at 834 (even if a lawyer could more aptly represent an accused, the advantage of a lawyer’s training and experience can be realized only with the accused’s cooperation). 1314 Commenters cited: id. at 819–20. 1315 Commenters cited: McKaskle v. Wiggins, 465 U.S. 168, 176–77 (1984). E:\FR\FM\19MYR2.SGM 19MYR2 30338 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations that students should be allowed to have a confidential advisor, or confidential advocate, allowed to accompany the party to the hearing, in addition to an advisor of choice or assigned advisor for cross-examination purposes. Some commenters supported the proposed rules’ requirement that if a party does not have an advisor of choice at a hearing, the recipient would be required to provide an advisor ‘‘aligned with that party’’ to ensure that each party’s interest is represented during the hearing. At least one commenter urged the Department to require that such an appointed advisor be ‘‘genuinely aligned’’ with the party, because recipient employees appointed as advisors may be loyal to the institution and not to the party, or may hold ideological beliefs that align with complainants or respondents. Many commenters opposed the provision in § 106.45(b)(6)(i) that requires recipients to provide a party with an advisor to conduct crossexamination if a party does not have an advisor at a live hearing. Commenters particularly objected to the language in the NPRM requiring a recipientprovided advisor to be ‘‘aligned with that party’’ because: Recipients will find it impossible to ensure parity between the parties; recipients will face additional litigation risks stemming from the recipient’s provision of advisors for parties (such as claims by parties that the recipient provided an incompetent advisor, an advisor not sufficiently ‘‘aligned with the party,’’ or ineffective assistance of counsel); the NPRM provided no guidance about how a recipient should determine whether an advisor is ‘‘aligned with’’ a party; especially in smaller institutions, a recipient’s obligation to appoint an advisor who must conduct crossexamination adverse to another student or employee presents potential conflicts of interest (particularly because appointed advisors are likely to be administrators, professors, or other recipient staff who interact with both parties outside the grievance process) and pitting a recipient’s employee against a recipient’s student is antithetical to recipients’ educational mission.1316 Commenters argued that 1316 Commenters cited studies for the proposition that frequent, positive interactions with faculty and staff not only strongly influence academic achievement and scholastic self-concept, but motivation, institutional retention, and persistence towards a degree as well, particularly for students of color; commenters cited, e.g., Meera Komarraju et al., Role of Student-Faculty Interactions in Developing College Students’ Academic SelfConcept, Motivation, and Achievement, 51 Journal of Coll. Student Development 3 (2010). Commenters cited studies for the proposition that negative VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 requiring recipients to appoint partyaligned advisors contradicts the expectation that the recipient is neutral and impartial toward the parties, and that educational disciplinary processes are not about building a case for or against a party but simply gathering as much information as possible; these commenters stated that § 106.45(b)(6)(i) abandons institutions’ processes that are ‘‘built to assemble the voices and experiences of the parties involved, not the voices of third-party advisors.’’ Commenters asserted that many recipient employees will not wish to be viewed as providing support or advocacy to one party over another, including in instances where the advisor believes the party to whom the advisor is assigned is lying. Commenters asserted that currently, many recipients provide advisors to parties but such advisors are neutral, advising a party about the grievance process itself but not advocating on behalf of the party or serving as a party’s proxy, and commenters argued that instead of requiring assigned advisors to be ‘‘aligned with’’ the party the provision should require that assigned advisors be knowledgeable about university processes and able to give neutral advice to the party. Other commenters asserted that this provision should require recipients to give parties advice about selecting advisors but not require recipients to provide advisors to parties. Commenters argued that the final regulations should state that a party’s advisor cannot be a person who exercises any administrative or academic authority over the other party. Commenters asserted that party advisors should be required to agree to a code of conduct prohibiting hostile, abusive, or irrelevant questioning. Some commenters argued that it is vital that both parties have advisors of equal competency during the hearing and thus requested that the final regulations require recipients to appoint attorneys for both parties, or wherever one party has hired an attorney,1317 or upon the request of a party. Commenters suggested that this provision be modified to allow any party without an advisor of choice at a hearing to select an advisor of the party’s choice from a panel of advisors whom the recipient has trained to be familiar with the recipient’s grievance process. Other commenters expressed concern that the requirement for advisors to conduct cross-examination and for recipients to provide advisors for parties who do not have one risks a de facto ‘‘arms race’’ whereby if a respondent hires an attorney, recipients will feel pressured to hire an attorney for the complainant to ensure equity, and this will be too costly for many recipients. Commenters similarly asserted that recipients will feel compelled to ensure that assigned advisors are attorneys because it will be crucial that a party and an assigned advisor communicate candidly which requires attorney-client privilege so that conversations are nondiscoverable in subsequent civil or criminal matters. Commenters argued that it is likely that State bar associations will find that conducting cross-examination constitutes practice of law and thus recipients will end up being required to hire attorneys for parties, and not simply assign nonattorney advisors.1318 Commenters argued that this amounts to a costly, unfunded mandate that will create a niche market for litigation-attorney advisors. Commenters argued that a party disappointed about the outcome of the hearing should not be allowed to challenge the adequacy of the advisor provided by the university, either on appeal or in subsequent litigation. Commenters argued that the Department lacks statutory authorization under Title IX to require recipients to provide advisors to students, and that such a requirement does not serve to further Title IX’s nondiscrimination mandate. Commenters requested clarification of this provision to answer questions such as: Who may determine whether an assigned advisor is aligned with the party, and what factors should be used in making that determination? Is the assigned advisor expected to assume the party’s version of events is accurate? If one party hires an attorney as an advisor of choice and the recipient must provide interactions between faculty and students significantly damage students’ self-esteem, academic performance, mental health, and ultimately, retention and persistence; commenters cited, e.g., Kevin A. Nadal et al., The Adverse Impact of Racial Microaggressions on College Students’ Self-esteem, 55 Journal of Coll. Student Development 5 (2014). 1317 Commenters cited: Curtis J. Berger & Vivian Berger, Academic Discipline: A Guide to Fair Process for the University Student, 99 Colum. L. Rev. 289, 341 (1999) (discussing the right to counsel in cases involving academic wrongdoing). 1318 Commenters asserted that, for example, in Ohio where the Sixth Circuit’s Baum decision applies, rape crisis advocate centers who typically have provided pro bono advocates to serve as advisors of choice for complainants have, because of Baum, forbidden staff to serve as advisors of choice to prevent claims of unauthorized practice of law, based on opinions of the Ohio Bar Association and the American Bar Association. These commenters asserted that the NPRM would make this result widespread and cut off an avenue of consistent, informed support that should be available to complainants. PO 00000 Frm 00314 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations an advisor for the other party, must the recipient assign that party an attorney? Can recipients limit the participation of advisors in a hearing, other than conducting cross-examination? May a recipient impose cost or fee limitations on attorneys chosen by parties to make equity and parity more likely? Could a school allow advisors of choice but appoint separate advisors to conduct cross-examination? If a party shows up at a hearing without an advisor, must the recipient stop the hearing to appoint an advisor for the party? May a decision-maker punish a party if the party’s advisor breaks rules during the hearing? Can a party decide during a hearing to ‘‘fire’’ the assigned advisor? Can a party delay a hearing by refusing to accept a recipient’s assigned advisor perhaps by arguing that the advisor is not ‘‘aligned with’’ the party? May the party advisors also conduct direct examination of the party they are advising, or only cross-examination of the other parties and witnesses? Must a recipient provide an advisor for a party who is also an employee of the recipient, including at-will employees? May a recipient require certain training and competency assessments for assigned advisors? Some commenters asserted that the final regulations should require training for appointed advisors, including at a minimum how to conduct cross-examination and how to respond to cross-examination conducted by an attorney, so that parties feel adequately represented. Discussion: The Department understands commenters who argued for a right of self-representation, but the Department has concluded that selfrepresentation by parties in a live hearing in the context of a Title IX adjudication presents substantial risk of diminishing the effectiveness and benefits of cross-examination while increasing the probability that parties will feel traumatized by the prospect and reality of personal confrontation. As explained above, the Department believes that cross-examination is a valuable tool serving the truth-seeking function of a Title IX grievance process. However, the right to cross-examination is not unfettered and the effectiveness of cross-examination depends on the circumstances presented in many Title IX sexual harassment cases whereby a complainant and respondent have alleged and denied commission of traumatic, violative acts. To retain the benefits of cross-examination in this sensitive, high-stakes context, the Department has concluded that restrictions on the right of cross- VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 examination best serve the purposes of a Title IX adjudication. The context and purpose of a Title IX adjudication differ significantly from that of a criminal trial. The Sixth Amendment rights guaranteed to a criminal defendant are not constitutionally guaranteed to a respondent in a Title IX adjudication,1319 and the Department does not believe that a right of selfrepresentation would best effectuate the purposes of Title IX. The Department believes that the final regulations appropriately give respondents and complainants equal and meaningful opportunity to select their own advisors of choice and to thereby direct and control the manner by which a party exercises a right of cross-examination. The final regulations thus do not ‘‘force an attorney’’ onto a respondent (or complainant). Rather, the final regulations provide as a back-stop that if a party does not (or cannot) take the opportunity to select an advisor of choice, rather than conducting crossexamination personally the recipient will provide the party an advisor for that purpose. A party always retains the right not to participate in a grievance process, but where the party does wish to participate and advance the party’s interests in the case outcome, with respect to testing the credibility of testimony via cross-examination, the party must do this by selecting an advisor of choice, or else working with an advisor provided to the party (without fee or charge) by the recipient. The Department notes that the final regulations, § 106.45(b)(5)(iv) and § 106.45(b)(6)(i), make clear that the choice or presence of a party’s advisor cannot be limited by the recipient. To meet this obligation a recipient also cannot forbid a party from conferring with the party’s advisor, although a recipient has discretion to adopt rules governing the conduct of hearings that could, for example, include rules about the timing and length of breaks requested by parties or advisors and rules forbidding participants from disturbing the hearing by loudly conferring with each other. With respect to allowing parties to be accompanied by a confidential advisor or advocate in addition to a party’s chosen or assigned advisor, the Department notes that § 106.71 states ‘‘The recipient must keep confidential the identity of any individual who has made a report or complaint of sex 1319 E.g., I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (‘‘Consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing.’’). PO 00000 Frm 00315 Fmt 4701 Sfmt 4700 30339 discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as required by law, or to carry out the purposes of [34 CFR part 106], including the conduct of any investigation, hearing, or judicial proceeding arising thereunder’’ and this restriction may limit a recipient’s ability to authorize the parties to be accompanied at the hearing by persons other than advisors. For example, a person assisting a party with a disability, or a language interpreter, may accompany a party to the hearing without violating § 106.71(a) because such a person’s presence at the hearing is required by law and/or necessary to conduct the hearing. The sensitivity and high stakes of a Title IX sexual harassment grievance process weigh in favor of protecting the confidentiality of the identity and parties to the extent feasible (unless otherwise required by law), and the Department thus declines to authorize that parties may be accompanied to a live hearing by persons other than the parties’ advisors, or other persons for reasons ‘‘required by law’’ as described above. The Department is persuaded by commenters’ concerns that the ‘‘aligned with that party’’ language in this provision posed unnecessary confusion and potential problems. As a result, the Department has removed that language from § 106.45(b)(6)(i). Accordingly, the Department declines to adopt a commenter’s suggestion to specify that the assigned advisor must be ‘‘genuinely aligned’’ with the party. The Department does not believe it is feasible, necessary, or appropriate to ask recipients to screen potential assigned advisors’ ideological beliefs or ties of loyalty to the recipient. The Department is persuaded by commenters’ concerns that a condition of ‘‘alignment’’ with a party exposes recipients to claims by parties that, in the party’s subjective view, an assigned advisor was not sufficiently ‘‘aligned with’’ the party, and this open-ended potential to accuse recipients of violating these regulations does not serve the Department’s interest in prescribing a predictable framework under which recipients understand and comply with their legal obligations. We have revised § 106.45(b)(6)(i) to state: ‘‘If a party does not have an advisor present at the hearing, the recipient must provide without fee or charge to that E:\FR\FM\19MYR2.SGM 19MYR2 30340 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations party an advisor of the recipient’s choice, who may be, but is not required to be, an attorney, to conduct crossexamination on behalf of that party.’’ This directive addresses many of the commenters’ concerns about providing an advisor. By explicitly acknowledging that advisors provided by a recipient may be—but need not be—attorneys, expressly stating that the provided advisor is ‘‘of the recipient’s choice,’’ and limiting the role of provided advisors to conducting crossexamination on behalf of a party, the final regulations convey the Department’s intent that a recipient enjoys wide latitude to fulfill this requirement. Claims by a party, for instance, that a recipient failed to provide ‘‘effective assistance of counsel’’ would not be entertained by the Department because this provision does not require that advisors be lawyers providing legal counsel nor does this provision impose an expectation of skill, qualifications, or competence. An advisor’s crossexamination ‘‘on behalf of that party’’ is satisfied where the advisor poses questions on a party’s behalf, which means that an assigned advisor could relay a party’s own questions to the other party or witness, and no particular skill or qualification is needed to perform that role. These changes in the final regulations similarly address commenters’ concerns that the assigned advisors need be ‘‘adverse’’ to or ‘‘pitted against’’ members of the recipient’s community. While an assigned advisor may have a personal or professional belief in, or dedication to, the position of the party on whose behalf the advisor conducts cross-examination, such a belief or dedication is not a requirement to function as the assigned advisor. Whether a party’s cross-examination is conducted by a party’s advisor of choice or by the advisor provided to that party by the recipient, the recipient itself remains neutral, including the decisionmaker’s obligation to serve impartially and objectively evaluate relevant evidence. The Department emphasizes that advisors of choice, and advisors provided to a party by the recipient, are not subject to the requirements of § 106.45(b)(1)(iii) which obligates Title IX personnel (Title IX Coordinators, investigators, decision-makers, and persons who facilitate informal resolutions) to serve impartially without conflicts of interest or bias for or against complainants or respondents generally, or for or against an individual complainant or respondent. The Department understands commenters’ point that educational VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 processes have been designed to let the voices and perspectives of the parties be heard, and not the voices and perspectives of third-party advisors. For reasons described above and in § 106.45(b)(5)(iv), the Department believes that giving each party the opportunity to be assisted and supported by an advisor of choice yields important benefits to both parties participating in a grievance process. The final regulations carefully balance the right of parties to rely on and be assisted by advisors with the interest of an educational institution in focusing the institution’s process on the institution’s own students and employees rather than on third parties. The final regulations allow recipients to limit the active participation of advisors, with the one exception in § 106.45(b)(6)(i) that an advisor must conduct cross-examination on behalf of a party. As noted above, the Department believes that the risks of allowing personal confrontation between parties in sexual harassment cases outweigh the downsides of allowing advisors to actively participate in the limited role of conducting crossexamination. The Department understands commenters’ assertions that many recipient’s employees will not wish to serve as party advisors because they do not want to be viewed as supporting or assisting one party over the other. The Department notes that § 106.45(b)(6)(i) applies only to postsecondary institutions, and institutions of higher education that receive Federal student aid under Title IV of the Higher Education Act of 1965, as amended, already must comply with the Clery Act, which permits parties to have advisors of choice, and commenters have noted that many recipients’ practice is to allow parties to choose advisors from among recipient employees, and that some recipients already provide advisors to parties. For the reasons explained above, these final regulations do not change that landscape qualitatively, because even conducting cross-examination ‘‘on behalf of a party’’ need not mean more than relaying that party’s questions to the other parties and witnesses. That function could therefore equate to serving as a party’s proxy, or advocating for a party, or neutrally relaying the party’s desired questions; this provision leaves recipients and assigned advisors wide latitude in deciding how to fulfill the role of serving as an assigned advisor. For the same reason, the Department does not believe it is necessary to forbid assigned advisors from being persons who exercise any administrative or PO 00000 Frm 00316 Fmt 4701 Sfmt 4700 academic authority over the other party; assigned advisors are not obligated to avoid conflicts of interest and can fulfill the limited role described in § 106.45(b)(6)(i) regardless of the scope of the advisor’s other duties as a recipient’s employee. For reasons described above, the Department retains the requirement for recipients to provide parties with an advisor to conduct cross-examination, instead of merely requiring recipients to advise a party about how to select an advisor. In order to foreclose personal confrontation between the parties during cross-examination while preserving the neutrality of the recipient’s decision-maker, that procedure must be conducted by advisors rather than by parties, and where a party does not take the opportunity to select an advisor of the party’s choice, that choice falls to the recipient. As noted above, the final regulations do not preclude a recipient from adopting and applying codes of conduct and rules of decorum to ensure that parties and advisors, including assigned advisors, conduct crossexamination questioning in a respectful and non-abusive manner, and the decision-maker remains obligated to ensure that only relevant questions are posed during cross-examination. The Department understands commenters’ desire that both parties have advisors of equal competency during a hearing. However, the Department does not wish to impose burdens and costs on recipients beyond what is necessary to achieve a Title IX grievance process with robust procedural protections leading to a reliable outcome. The Department believes that giving both parties equal opportunity to select advisors of choice, who may be, but are not required to be attorneys, and assuring parties who cannot or do not select their own advisor that the party can still accomplish cross-examination at a hearing because the recipient will provide an advisor for that limited purpose, sufficiently achieves the purpose of a Title IX grievance process without imposing additional burdens on recipients to hire attorneys for the parties. Nothing in the final regulations precludes a recipient from offering to provide attorney representation or nonattorney advisors to both parties throughout the entire grievance process or just for a live hearing, though § 106.45(b)(5)(iv) ensures that parties would retain the right to select their own advisor of choice and refuse any such offer by a recipient. To allow recipients to meet their obligations with as much flexibility as possible, the E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Department declines to require recipients to pre-screen a panel of assigned advisors from which a party could make a selection at a hearing, or to require provided advisors to receive training from the recipient. The final regulations do not preclude a recipient from taking such steps, in the recipient’s discretion, and the final regulations require decision-makers to be trained specifically in issues of relevance. The Department reiterates that a recipient may fulfill its obligation to provide an advisor for a party to conduct crossexamination at a hearing without hiring an attorney to be that party’s advisor, and that remains true regardless of whether the other party has hired a lawyer as an advisor of choice. The final regulations do not create an ‘‘arms race’’ with respect to the hiring of attorneys by recipients, and recipients remain free to decide whether they wish to incur the cost or burden of providing attorneys when they must provide an advisor to a party at a hearing to conduct crossexamination. This provision does not impose an unfunded mandate on recipients because recipients retain discretion whether to incur the cost of hiring attorney or non-attorney advisors. The Department does not believe that the final regulations’ expectation for an advisor to ‘‘conduct cross-examination on behalf of a party’’ constitutes the practice of law; a Title IX adjudication is not a civil or criminal trial so the advisor is not representing a party in a court of law, and the advisor is not required to perform any function beyond relaying a party’s desired questions to the other party and witnesses. However, to the extent that a recipient is concerned that State bar associations do, or may, consider party advisors at a live hearing to be practicing law, the recipient retains discretion to select attorneys as assigned party advisors. Whether attorneys become more involved in Title IX adjudications as a result is not the Department’s concern; the final regulations focus on those procedural protections necessary to ensure that a Title IX grievance process is designed to reach accurate determinations. The Department believes that § 106.45(b)(6)(i), as revised in the final regulations, addresses commenters’ concerns that parties will challenge the outcome based on the recipient’s choice of advisor. This provision clarifies that the choice of advisor where one must be provided by the recipient lies in the recipient’s sound discretion, and removes the ‘‘aligned with that party’’ criterion so that a party cannot challenge the recipient’s choice by claiming the assigned advisor was not VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 sufficiently aligned. Whether or not the recipient complied with this provision is now more objectively determined, i.e., by observing whether the assigned advisor ‘‘conducted cross-examination on behalf of the party’’ which in essence only needs to mean relaying the party’s desired questions to the other party and witnesses. The Department does not have control over claims made by parties against recipients in private litigation, but clarifies here that this provision does not impose a burden on the recipient to ensure the ‘‘adequacy’’ of an assigned advisor, merely that the assigned advisor performs the role described in this provision. The Department disagrees that this provision exceeds the Department’s statutory authority under Title IX. The Department believes this provision furthers Title IX’s non-discrimination mandate by contributing to a fair grievance process leading to reliable outcomes, which is necessary in order to ensure that recipients appropriately remedy sexual harassment occurring in education programs or activities. The Department is authorized to promulgate rules and regulations to effectuate the purpose of Title IX, including regulatory requirements that do not, themselves, purport to represent a definition of discrimination. Particular requirements of a grievance process are no different in kind from the regulatory requirements the Supreme Court has expressly acknowledged fall under the Department’s regulatory authority. For example, the Department’s regulations have long required recipients to have grievance procedures in place even though the absence of grievance procedures does not, itself, constitute discrimination,1320 because adopting and publishing grievance procedures for the ‘‘prompt and equitable’’ resolution of sex discrimination 1321 makes it more likely that a recipient will not engage in sex discrimination and will remedy any 1320 Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979) (noting that the primary congressional purposes behind Title IX were ‘‘to avoid the use of Federal resources to support discriminatory practices’’ and to ‘‘provide individual citizens effective protection against those practices.’’); see also Gebser, 524 U.S. at 291–92 (refusing to allow plaintiff to pursue a claim under Title IX based on the school’s failure to comply with the Department’s regulatory requirement to adopt and publish prompt and equitable grievance procedures, stating ‘‘And in any event, the failure to promulgate a grievance procedure does not itself constitute ‘discrimination’ under Title IX. Of course, the Department of Education could enforce the requirement administratively: Agencies generally have authority to promulgate and enforce requirements that effectuate the statute’s nondiscrimination mandate, 20 U.S.C. 1682, even if those requirements do not purport to represent a definition of discrimination under the statute.’’). 1321 34 CFR 106.9; § 106.8(c). PO 00000 Frm 00317 Fmt 4701 Sfmt 4700 30341 discrimination brought to the recipient’s attention by a student or employee. Similarly, the Department has carefully considered what procedures appropriately address allegations of sex discrimination in the form of sexual harassment and has determined that the § 106.45 grievance process, including cross-examination conducted through advisors in postsecondary institutions, effectuates Title IX’s non-discrimination mandate by making it less likely that a recipient will fail to accurately determine whether a student or employee has been victimized by sexual harassment and needs remedies to restore or preserve equal access to the recipient’s education programs or activities. The Department appreciates commenters’ requests for clarification of this provision. Some clarification requests have been answered by the modifications made to this provision, such as removal of the ‘‘aligned with that party’’ language and specification that when a recipient must provide an advisor during a hearing the selection of that advisor is ‘‘of the recipient’s choice’’ and the assigned advisor ‘‘may be, but is not required to be, an attorney.’’ As to commenters’ additional questions about this provision: The assigned advisor is not required to assume the party’s version of events is accurate, but the assigned advisor still must conduct cross-examination on behalf of the party. The only limitation on recipients’ discretion to restrict advisors’ active participation in proceedings is this provision’s requirement that advisors conduct cross-examination, so recipients remain free to apply rules (equally applicable to both parties) restricting advisor participation in non-cross examination aspects of the hearing. Recipients cannot impose a cost or fee limitation on a party’s advisor of choice and if required to provide a party with an advisor at a hearing, the recipient may not charge the party any fee. The final regulations require the recipient to keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any hearing. These confidentiality E:\FR\FM\19MYR2.SGM 19MYR2 30342 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations obligations may affect a recipient’s ability to offer parties a recipientprovided advisor to conduct crossexamination in addition to allowing the parties’ advisors of choice to appear at the hearing. The final regulations do not preclude recipients from adopting a rule that requires parties to inform the recipient in advance of a hearing whether the party intends to bring an advisor of choice to the hearing; but if a party then appears at a hearing without an advisor the recipient would need to stop the hearing as necessary to permit the recipient to assign an advisor to that party to conduct crossexamination. A party cannot ‘‘fire’’ an assigned advisor during the hearing, but if the party correctly asserts that the assigned advisor is refusing to ‘‘conduct cross-examination on the party’s behalf’’ then the recipient is obligated to provide the party an advisor to perform that function, whether that means counseling the assigned advisor to perform that role, or stopping the hearing to assign a different advisor. If a party to whom the recipient assigns an advisor refuses to work with the advisor when the advisor is willing to conduct cross-examination on the party’s behalf, then for reasons described above that party has no right of self-representation with respect to conducting crossexamination, and that party would not be able to pose any cross-examination questions. Whether advisors also may conduct direct examination is left to a recipient’s discretion (though any rule in this regard must apply equally to both parties). This provision applies to parties who are a recipient’s employees, including at-will employees; recipients may not impose training or competency assessments on advisors of choice selected by parties, but nothing in the final regulations prevents a recipient from training and assessing the competency of its own employees whom the recipient may desire to appoint as party advisors. The Department declines to require training for assigned advisors because the goal of this provision is not to make parties ‘‘feel adequately represented’’ but rather to ensure that the parties have the opportunity for their own view of the case to be probed in front of the decision-maker. Whether a party views an advisor of choice as ‘‘representing’’ the party during a live hearing or not, this provision only requires recipients to permit advisor participation on the party’s behalf to conduct crossexamination; not to ‘‘represent’’ the party at the live hearing. A recipient may, but is not required to, allow advisors to ‘‘represent’’ parties during VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the entire live hearing (or, for that matter, throughout the entire grievance process).1322 The Department notes that nothing in these final regulations infringes on a recipient’s ability to enforce its own codes of conduct with respect to conduct other than Title IX sexual harassment, and thus if a party or advisor ‘‘breaks a recipients’ rules’’ during a hearing the recipient retains authority to respond in accordance with its codes of conduct, so long as the recipient is also complying with all obligations under § 106.45. If a party’s advisor of choice refuses to comply with a recipient’s rules of decorum (for example, by insisting on yelling at the other party), the recipient may provide that party with an advisor to conduct cross-examination on behalf of that party. If a provided advisor refuses to comply with a recipient’s rules of decorum, the recipient may provide that party with a different advisor to conduct cross-examination on behalf of that party. The Department also notes that § 106.71 protects participants in a Title IX grievance process against retaliation so an action taken against any participant in a hearing may not be taken for the purpose of interfering with any right or privilege secured by Title IX or because the individual has participated in any manner in a hearing. Changes: The Department has revised § 106.45(b)(6)(i) to remove the phrase ‘‘aligned with that party’’ and clarify that if a party does not have an advisor present at the live hearing, the recipient must provide without fee or charge to that party an advisor of the recipient’s choice, who may be, but is not required to be, an attorney, to conduct crossexamination on behalf of that party. We have also added § 106.71, prohibiting retaliation and providing in pertinent part that no recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing; and the recipient must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except 1322 Section PO 00000 106.45(b)(5)(iv). Frm 00318 Fmt 4701 Sfmt 4700 as required by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation or hearing. Explain Decision To Exclude Questions Comments: Some commenters supported the requirement in § 106.45(b)(6)(i) that decision-makers explain to the party’s advisor posing a question any decision to exclude a question as not relevant. Commenters asserted that they have observed Title IX proceedings in which recipients refused to allow a party’s questions to be asked of the opposing party with no explanation as to how or why the question was not relevant to the allegations. Commenters asserted that this requirement may reveal and prevent bias in proceedings by making the decision-maker explain the rationale for deciding that a question is not relevant. Other commenters opposed the requirement that decision-makers explain any reason for excluding a question as not relevant, arguing that decision-makers are usually not lawyers or judges and are not legally trained to make complex rulings, so that requiring on-the-spot decisions about relevance will expose recipients to legal liability. Commenters argued that this provision exceeds procedural norms in criminal courts where rules of procedure do not demand that judges provide explanation for rulings. Commenters argued that parties should have the right to appeal wrongful decisions to exclude evidence and thus it is unnecessary to require decision-makers to explain exclusion decisions during the hearing. Commenters wondered whether the parties are allowed to argue with the decision-maker upon hearing a decision-maker’s explanation about the relevance of a question and expressed concern that protracted arguments over relevance would lengthen hearings and feel tortuous for students. Commenters expressed concern that the requirement to explain irrelevancy decisions will disincentivize decision-makers from properly excluding questions that violate the rape shield protections. Commenters proposed that the provision be modified to require decision-makers to explain the decision to exclude questions in writing after the hearing rather than during the hearing. Commenters suggested that the final regulations also give decision-makers the right to screen questions before the hearing so the decision-maker has adequate time to consider whether the questions are relevant. Commenters wondered what type of information a E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations decision-maker is required to give to meet this provision. Commenters argued this provision is meaningless because if a decision-maker decides a question is irrelevant, presumably the decisionmaker believes the question does not tend to prove the matter at issue and thus, telling the decision-maker to state self-evidently during the hearing: ‘‘This question is not relevant because it is not relevant’’ adds no value to the proceeding and only allows party advisors to bog down the hearing by demanding that rote explanation. Discussion: The Department agrees with commenters that a decisionmaker’s refusal to explain why questions are excluded has caused problems with the accuracy and perception of legitimacy of recipients’ Title IX proceedings and thus believes that this provision reasonably prevents those problems and helps ensure that decision-makers are making relevance determinations without bias for or against complainants or respondents. The Department disagrees that this provision requires legal expertise on the part of a decision-maker. One of the benefits to the final regulations’ refusal to import wholesale any set of rules of evidence is that the legal sophistication required to navigate rules of evidence results often from determining the scope of exceptions to admissibility rules. By contrast, the decision-maker’s only evidentiary threshold for admissibility or exclusion of questions and evidence is whether the question or evidence is relevant—not whether it would then still be excluded under the myriad of other evidentiary rules and exceptions that apply under, for example, the Federal Rules of Evidence. While this provision does require ‘‘on the spot’’ determinations about a question’s relevance, the decision-maker must be trained in how to conduct a grievance process, specifically including how to determine relevance within the scope of this provision’s rape shield language and the final regulations’ protection of privileged information and parties’ treatment records. Contrary to some commenters’ assertions, judges in civil and criminal trials often do make ‘‘on the spot’’ relevance determinations, and while this provision requires the decision-maker to ‘‘explain’’ the decision in a way that rules of procedure do not require of judges, the Department believes that this provision will aid parties in having confidence that Title IX decision-makers are appropriately considering all relevant evidence. The final regulations contemplate that decision-makers often will be laypersons, not judges or lawyers. A judge’s relevance ruling from VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the bench needs no in-the-moment explanation because a judge has the legal sophistication to have reached a ruling against the backdrop of the judge’s legal knowledge. By contrast, a layperson’s determination that a question is not relevant is made by applying logic and common sense, but not against a backdrop of legal expertise. Thus, an explanation of how or why the question was irrelevant to the allegations at issue, or is deemed irrelevant by these final regulations (for example, in the case of sexual predisposition or prior sexual behavior information) provides transparency for the parties to understand a decisionmaker’s relevance determinations. Commenters correctly note that parties may appeal erroneous relevance determinations, if they affected the outcome, because § 106.45(b)(8) allows the parties equal appeal rights on grounds that include procedural irregularity that affected the outcome. However, asking the decision-maker to also explain the exclusion of questions during the hearing does not affect the parties’ appeal rights and may reduce the number of instances in which a party feels the need to appeal on this basis because the decision-maker will have explained the decision during the hearing. The final regulations do not preclude a recipient from adopting a rule (applied equally to both parties) that does, or does not, give parties or advisors the right to discuss the relevance determination with the decision-maker during the hearing. If a recipient believes that arguments about a relevance determination during a hearing would unnecessarily protract the hearing or become uncomfortable for parties, the recipient may adopt a rule that prevents parties and advisors from challenging the relevance determination (after receiving the decision-maker’s explanation) during the hearing. The Department does not believe this requirement will negatively affect a decision-maker’s incentive to properly exclude questions under this provision’s rape shield protections. The decisionmaker is under an obligation to exclude such questions and evidence, and to only evaluate relevant evidence in reaching a determination. Requiring the decision-maker to explain relevance decisions during the hearing only reinforces the decision-maker’s responsibility to accurately determine relevance, including the irrelevance of information barred under the rape shield language. Further, we have revised § 106.45(b)(1)(iii) to require decision-makers (and investigators) to be trained in issues of relevance, PO 00000 Frm 00319 Fmt 4701 Sfmt 4700 30343 including how to apply the rape shield protections in these final regulations. Requiring the decision-maker to explain decisions about irrelevance also helps reinforce the provision in § 106.45(b)(1)(iii) that a decision-maker must not have a bias for or against complaints or respondents generally or an individual complainant or respondent. Providing a reason for the decision reveals whether the decisionmaker is maintaining a neutral, objective position throughout the hearing. The explanation for the decision may reveal any bias for a particular complainant or respondent or a bias for or against complainants or respondents generally. The Department declines to change § 106.45(b)(6)(i) to require after-hearing explanation of relevance determinations, but nothing in the final regulations precludes a recipient from adopting a rule that the decision-maker will, for example, send to the parties after the hearing any revisions to the decision-maker’s explanation that was provided during the hearing. In order to preserve the benefits of live, back-andforth questioning and follow-up questioning unique to crossexamination, the Department declines to impose a requirement that questions be submitted for screening prior to the hearing (or during the hearing); the final regulations revise this provision to clarify that cross-examination must occur ‘‘directly, orally, and in real time’’ during the live hearing, balanced by the express provision that questions asked of parties and witnesses must be relevant, and before a party or witness answers a cross-examination question the decision-maker must determine relevance (and explain a determination of irrelevance). This provision does not require a decision-maker to give a lengthy or complicated explanation; it is sufficient, for example, for a decision-maker to explain that a question is irrelevant because the question calls for prior sexual behavior information without meeting one of the two exceptions, or because the question asks about a detail that is not probative of any material fact concerning the allegations. No lengthy or complicated exposition is required to satisfy this provision. Accordingly, the Department does not believe this requirement will ‘‘bog down’’ the hearing. We have revised this provision by moving the requirement for the decision-maker to explain determinations of irrelevance to be combined with a sentence that did not appear in the NPRM, instructing the decision-maker to determine the relevance of a cross-examination E:\FR\FM\19MYR2.SGM 19MYR2 30344 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations question before the party or witness answers the question and to explain any decision to exclude a question as not relevant. Changes: The Department has revised § 106.45(b)(6)(i) to add the phrase ‘‘directly, orally, and in real time’’ to describe how cross-examination must be conducted, thereby precluding a requirement that questions be submitted or screened prior to the live hearing. We have further revised this provision by moving the requirement for the decision-maker to explain determinations of irrelevance to be combined with a sentence that did not appear in the NPRM, instructing the decision-maker to determine the relevance of a cross-examination or other question before the party or witness answers the question and to explain any decision to exclude a question as not relevant. We have also revised § 106.45(b)(1)(iii) to require training for decision-makers on issues of relevance, including application of the rape shield protections in § 106.45(b)(6). No Reliance on Statements of a Party Who Does Not Submit to CrossExamination Comments: Some commenters supported the provision in § 106.45(b)(6)(i) prohibiting a decisionmaker from relying on statements made by a party or witness who does not submit to cross-examination in a postsecondary institution live hearing, because this requirement ensures that only statements that have been tested for credibility, in the ‘‘crucible’’ of cross-examination, will be considered. Commenters asserted that Title IX sexual misconduct cases often concern accusations of a ‘‘he said/she said’’ nature where accounts differ between complainant and respondent and corroborating evidence is inconclusive or non-existent, thus making crossexamined party statements critical to reaching a fair determination. Other commenters supported this provision but argued that one exception should apply: Statements against a party’s own interest should remain admissible even where the party refuses to appear or testify. Commenters argued that without this change, this provision incentivizes respondents who have already been convicted criminally not to appear for hearings because the respondent’s absence would ensure that any admission, such as part of a plea bargain, could not be considered. Other commenters opposed the provision that a decision-maker cannot rely on statements of a party or witness who does not submit to crossexamination. Some commenters argued VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 that if a party refuses to submit to crossexamination, the consequence should be dismissal of the proceeding, not exclusion of the refusing party’s statements.1323 Commenters argued that a respondent may refuse to submit to crossexamination in a Title IX hearing when criminal charges are also pending against the respondent due to concerns about self-incrimination and that this provision should prevent a decisionmaker from drawing any adverse inferences against a respondent based on a respondent’s refusal to submit to cross-examination because a decision by an accused not to testify has no probative value and is irrelevant to the issue of culpability. Commenters expressed concern that public institutions could be opened up to legal challenges alleging violation of respondents’ Fifth Amendment right against self-incrimination because where a respondent answered some questions, but refused to answer other questions due to refusal to selfincriminate, the proposed rules would demand exclusion of all the respondent’s statements, even as to the information about which the respondent was subjected to cross-examination. Commenters argued this provision is unfair to respondents because a respondent may not want to appear for a Title IX hearing for fear that oral testimony could be admitted in a future criminal or civil proceeding, yet § 106.45(b)(6)(i) will ‘‘all but require’’ the adjudicator to make a finding of responsibility against the respondent if the reporting party testifies, is crossexamined, and is credible. Other commenters argued that it is unfair that a complainant’s entire statement would be excluded where a respondent refused to appear and thus the complainant could not be cross-examined by the respondent’s advisor. Commenters argued that this provision makes cross-examination mandatory and forces survivors into a Hobson’s choice by requiring the decision-maker to disregard the statement of a complainant who does not agree to be cross-examined. Commenters argued that it is unfair to exclude a complainant’s statements 1323 Commenters cited: Doe v. Univ. of Cincinnati, 872 F.3d 393, 401–02 (6th Cir. 2017) (‘‘Given the parties’ competing claims, and the lack of corroborative evidence to support or refute Roe’s allegations, the present case left the [recipient] with a choice between believing an accuser and an accused. Yet, the [recipient] resolved this problem of credibility without assessing Roe’s credibility. In fact, it decided plaintiff’s fate without seeing or hearing from Roe at all. That is disturbing and, in this case, a denial of due process.’’) (internal quotation marks and citations omitted). PO 00000 Frm 00320 Fmt 4701 Sfmt 4700 from consideration when often a complainant will not wish to submit to cross-examination due to fear of retaliation by a respondent, or chooses not to participate in a grievance process initiated against the complainant’s wishes (such as where the Title IX Coordinator signs a formal complaint). Commenters argued that this provision requires exclusion of a complainant’s statements even where the complainant’s absence from a hearing is because the respondent wrongfully procured the complainant’s absence, in contravention of the doctrine of forfeiture by wrongdoing.1324 Commenters argued that in criminal cases, the right to cross-examine the prosecution’s hearsay declarants only extends to declarants who, at the time of their statement, understood they were giving evidence likely to be used in a later prosecution, and the proposed regulations thus inappropriately exclude a common category of statements gathered in Title IX investigations: Statements to friends and family who are consoling a victim and are not aware that any crime is under investigation.1325 Commenters argued that excluding a complainant’s statement, including the initial formal complaint, just because a survivor does not want to undergo cross-examination is prejudicial and not a trauma-informed practice, when even reporting sexual misconduct requires bravery. Commenters argued that this provision is punitive when survivors are already required to participate in an investigation that can last for months. Commenters argued it is unfair to punish a survivor by denying relief for a meritorious claim just because key witnesses refuse to testify or refuse to submit to cross-examination. Commenters argued that this provision may make it difficult for schools to address situations where they know of predators operating on their campuses, as victim after victim declines to participate in crossexamination, potentially creating incentives for schools to coerce unwilling victims into participating in traumatizing processes, leading to further breakdown in trust between students and their institutions. 1324 Commenters cited: Reynolds v. United States, 98 U.S. 145, 158 (1878) for the proposition that forfeiture by wrongdoing is a doctrine that says a respondent gives up his right to confront the witness when he has procured that person’s absence, and arguing that the NPRM requires exclusion of a complainant’s statements even if the complainant’s absence is due to the respondent’s wrongdoing. 1325 Commenters cited: Crawford v. Washington, 541 U.S. 36 (2004). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Commenters argued that the statements of witnesses should not be excluded due to non-appearance or refusal to submit to cross-examination, because witnesses may be unavailable for legitimate reasons such as studying abroad, illness, graduation, out-of-state residency, class activities, and so forth. Some commenters suggested that for witnesses (but not parties) written statements or telephonic testimony should be sufficient. Commenters argued that parties and witnesses may be unavailable for a hearing for a variety of reasons unrelated to the reliability of their statements, including death, or disability that occurs after an investigation has begun but before the hearing occurs. Commenters argued that the Federal Rules of Evidence 1326 allow out-of-court statements to be admitted in certain circumstances and for limited purposes, while § 106.45(b)(6)(i) creates a ‘‘draconian’’ rule that excludes even relevant, reliable statements, a result that is particularly unfair in light of the fact that recipients do not have subpoena powers to compel parties and witnesses to attend hearings. Commenters argued that courts do not impose cross-examination as a due process requirement where the legislature has not granted subpoena power to an administrative body because to do so would allow the administrative body to act in a manner contrary to its enabling statute, and public universities do not have subpoena power; thus, commenters argued, the university cannot be foreclosed from relying on hearsay testimony of absent witnesses.1327 Commenters argued that this provision should be modified so that a recipient may consider all information presented during the investigation and hearing regardless of who appears at the hearing, so that videos, texts, and statements are all evaluated on their own merits. Commenters argued that this provision creates a blanket exclusion of hearsay evidence, yet the Supreme Court has never announced a ‘‘blanket rejection . . . of administrative reliance on hearsay irrespective of reliability and probative value’’ and hearsay evidence may constitute substantial evidence supporting an administrative finding.1328 1326 Commenters cited: Fed. R. Evid. 804, 805. cited: Pub. Employees’ Ret. Sys. v. Stamps, 898 So.2d 664, 676 (Sup. Ct. Miss. 2005). 1328 Commenters cited: Richardson v. Perales, 402 U.S. 389, 407 (1971); Johnson v. United States, 628 F.2d 187, 190–91 (D.C. Cir. 1980) (‘‘We have rejected a per se approach that brands evidence as insubstantial solely because it bears the hearsay 1327 Commenters VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Commenters suggested that this provision be modified so that the consequence of a party failing to appear or answer questions is a change of the standard of evidence, not exclusion of the party’s statements, so that if a complainant refuses to testify, the standard of evidence is increased to the clear and convincing evidence standard, while if the respondent refuses to testify, the standard of evidence is decreased to the preponderance of the evidence standard. Commenters requested clarification that where a respondent fails to appear for a hearing, the recipient may still enter a default finding against the respondent and implement protective measures for the complainant. Commenters argued that the final regulations should allow for evidence not subject to cross-examination (‘‘uncrossed’’) to be taken into account ‘‘for what it’s worth’’ by the decisionmaker who may assign appropriate weight to uncrossed statements rather than disregarding them altogether, so as to provide more due process and fundamental fairness to both parties in the search for truth. Commenters asked for clarification of a number of questions including: Does this provision exclude only statements made during the hearing or to all of a party’s statements even those made during the investigation, or prior to a formal complaint being filed? What is the threshold for not submitting to cross-examination (e.g., if a party answers by saying ‘‘I don’t want to answer that’’ or answers several questions but refuses to answer one particular question, has the party ‘‘submitted to cross-examination’’ or not, and does the reason for refusing to answer matter, for instance where a respondent refuses to answer due to self-incrimination concerns, or a complainant refuses to answer due to good faith belief that the question violates rape shield protections and disagrees with the decision-maker’s decision to the contrary)? Does exclusion of ‘‘any statement’’ include, for example, text messages or email sent by the party especially where one party submitted to cross-examination and the other did not, but the text message exchange was between the two parties? Are decision-makers able to consider information provided in documents during the investigation stage (e.g., police reports, SANE (sexual assault nurse examiner) reports etc.), if certain label. . . . Instead, we evaluate the weight each item of hearsay should receive according to the item’s truthfulness, reasonableness, and credibility.’’). PO 00000 Frm 00321 Fmt 4701 Sfmt 4700 30345 witnesses referenced in those documents (e.g., police officers and SANE nurses) do not submit to crossexamination or refuse to answer a specific question during crossexamination? If a party or witness refuses to answer a question posed by the decision-maker (not by a party advisor) must the decision-maker exclude the party’s statements? Commenters suggested making this provision more precise by replacing ‘‘does not submit to cross-examination’’ with ‘‘does not appear for crossexamination.’’ Commenters asserted that parties should have the right to ‘‘waive a question’’ without the party’s entire statement being disregarded. Discussion: The Department appreciates commenters’ support for this provision in § 106.45(b)(6)(i) and agrees that it ensures that in the postsecondary context, only statements that have been tested for credibility will be considered by the decision-maker in reaching a determination regarding responsibility. Where a Title IX sexual harassment allegation does not turn on the credibility of the parties or witnesses, this provision allows the other evidence to be considered even though a party’s statements are not relied on due to the party’s or witness’s non-appearance or refusal to submit to cross-examination. The Department declines to add exceptions to this provision, such as permitting reliance on statements against a party’s interest. Determining whether a statement is against a party’s interest, and applying the conditions and exceptions that apply in evidentiary codes that utilize such a rule,1329 would risk complicating a fact-finding process so that a nonattorney decision-maker—even when given training in how to impartially conduct a grievance process—may not be equipped to conduct the adjudication. The Department declines to change this provision so the consequence of refusal to submit to cross-examination is dismissal of the case rather than nonreliance on the refusing party or witness’s statement. Such a change would operate only against complainants’ interests because a respondent could choose to refuse crossexamination knowing the result would be dismissal (which, presumably, is a positive result in a respondent’s view). This would essentially give respondents the ability to control the outcome of the hearing, running contrary to the purpose 1329 E.g., Fed. R. Evid. 804(a) (describing conditions that constitute ‘‘unavailability’’ of a declarant); Fed. R. Evid. 804(b) (listing various exceptions to hearsay exclusion where declarant is unavailable). E:\FR\FM\19MYR2.SGM 19MYR2 30346 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations of the final regulations in giving both parties equal opportunity to meaningfully be heard before an impartial decision-maker reaches a determination regarding responsibility. As commenters acknowledged, not all Title IX sexual harassment allegations rely on party testimony; for example, in some situations video evidence of the underlying incident is available, and in such circumstances even if both parties fail to appear or submit to crossexamination the decision-maker would disregard party statements yet proceed to evaluate remaining evidence, including video evidence that does not constitute statements or to the extent that the video contains non-statement evidence. If a party or witness makes a statement in the video, then the decision-maker may not rely on the statement of that party or witness in reaching a determination regarding responsibility. The Department understands commenters’ arguments that courts have noted the unfairness of reaching a determination without ever probing or testing the credibility of the complainant.1330 But § 106.45(b)(6)(i) does not raise such unfairness, because the central unfairness is where a decision-maker ‘‘resolved this problem of credibility’’ in favor of the party whose statements remained untested. The nature of such unfairness is not present under the final regulations where, if a party does not appear or submit to cross-examination the party’s statement cannot be relied on—this provision does not allow a decisionmaker to ‘‘resolve’’ credibility in favor of a party whose statements remain untested through cross-examination. The Department understands commenters concerns that respondents, complainants, and witnesses may be absent from a hearing, or may refuse to submit to cross-examination, for a variety of reasons, including a respondent’s self-incrimination concerns regarding a related criminal proceeding, a complainant’s reluctance 1330 See, e.g., Doe v. Univ. of Cincinnati, 872 F.3d 393, 401–02 (6th Cir. 2017) (‘‘Given the parties’ competing claims, and the lack of corroborative evidence to support or refute Roe’s allegations, the present case left the [recipient] with a choice between believing an accuser and an accused. Yet, the [recipient] resolved this problem of credibility without assessing Roe’s credibility. In fact, it decided plaintiff’s fate without seeing or hearing from Roe at all. That is disturbing and, in this case, a denial of due process.’’) (internal quotation marks and citations omitted); Doe v. Purdue Univ. et al., 928 F.3d 652, 664 (7th Cir. 2019) (finding it ‘‘particularly concerning’’ that the university concluded the complainant ‘‘was the more credible witness—in fact, that she was credible at all— without ever speaking to her in person. Indeed, they did not even receive a statement written by Jane herself, much less a sworn statement.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 to be cross-examined, or a witness studying abroad, among many other reasons. In response to commenters’ concerns, the Department has revised the proposed regulations as follows: (1) We have revised § 106.45(b)(6)(i) to state that where a decision-maker must not rely on an absent or non-cross examined party or witness’s statements, the decision-maker cannot draw any inferences about the determination regarding responsibility based on such absence or refusal to be cross-examined; (2) We have revised § 106.45(b)(6)(i) to grant a recipient discretion to hold the entire hearing virtually using technology that enables any or all participants to appear remotely; (3) § 106.71 expressly prohibits retaliation against any party, witness, or other person exercising rights under Title IX, including the right to participate or refuse to participate in a grievance process; (4) § 106.45(b)(3)(ii) grants a recipient discretion to dismiss a formal complaint, or allegations therein, where the complainant notifies the Title IX Coordinator in writing that the complainants wishes to withdraw the allegations, or the respondent is no longer enrolled or employed by the recipient, or specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination. These changes address many of the concerns raised by commenters stemming from reasons why parties or witnesses may not wish to participate and the consequences of non-participation. It is possible that one party’s refusal to submit to cross-examination could result in the other party’s statements remaining under consideration by the decision-maker even though the refusing party’s statements are excluded (e.g., where one party refuses to submit to cross-examination, yet that party’s advisor cross-examines the opposing party, whose statements are then considered by the decision-maker), but the opportunity of the refusing party to conduct cross-examination of the opposing party ensures that the opposing party’s statements are not considered unless they have been tested via cross-examination. Because the final regulations preclude a decision-maker from drawing any inferences about the determination regarding responsibility based solely on a party’s refusal to be cross-examined, the adjudication can still yield a fair, reliable outcome even where, for example, the refusing party is a respondent exercising a Fifth Amendment right against selfincrimination. Where one party appears at the hearing and the other party does not, PO 00000 Frm 00322 Fmt 4701 Sfmt 4700 § 106.45(b)(6)(i) still states: ‘‘If a party does not have an advisor present at the hearing, the recipient must provide without fee or charge to that party an advisor of the recipient’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.’’ Thus, a party’s advisor may appear and conduct crossexamination even when the party whom they are advising does not appear. Similarly, where one party does not appear and that party’s advisor of choice does not appear, a recipient-provided advisor must still cross-examine the other, appearing party ‘‘on behalf of’’ the non-appearing party, resulting in consideration of the appearing party’s statements but not the non-appearing party’s statements (without any inference being drawn based on the non-appearance). Because the statements of the appearing party were tested via cross-examination, a fair, reliable outcome can result in such a situation. The Department disagrees that this provision leaves complainants (or respondents) in a Hobson’s choice. The final regulations address a complainant’s fear of retaliation, the inconvenience of appearing at a hearing, and the emotional trauma of personal confrontation between the parties. Further, as noted above, if a complainant still does not wish to appear or be cross-examined, an appointed advisor may conduct crossexamination of the respondent (if the respondent does appear) so that a decision-maker only considers the respondent’s statements if the statements have been tested for credibility. Where a grievance process is initiated because the Title IX Coordinator, and not the complainant, signed the formal complaint, the complainant who did not wish to initiate a grievance process remains under no obligation to then participate in the grievance process, and the Department does not believe that exclusion of the complainant’s statements in such a scenario is unfair to the complainant, who did not wish to file a formal complaint in the first place yet remains eligible to receive supportive measures protecting the complainant’s equal access to education. If the respondent ‘‘wrongfully procures’’ a complainant’s absence, for example, through intimidation or threats of violence, and the recipient has notice of that misconduct by the respondent (which likely constitutes prohibited retaliation), the recipient must remedy the retaliation, perhaps by rescheduling the E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations hearing to occur at a later time when the complainant may appear with safety measures in place. The Department disagrees that this provision needs to be modified so that a party’s statements to family or friends would still be relied upon even when the party does not submit to crossexamination. Even if the family member or friend did appear and submit to cross-examination, where the family member’s or friend’s testimony consists of recounting the statement of the party, and where the party does not submit to cross-examination, it would be unfair and potentially lead to an erroneous outcome to rely on statements untested via cross-examination.1331 Further, such a modification would likely operate to incentivize parties to avoid submitting to cross-examination if a family member or friend could essentially testify by recounting the party’s own statements. The Department understands that courts of law operate under comprehensive, complex rules of evidence under the auspices of judges legally trained to apply those rules of evidence (which often intersect with other procedural and substantive legal rules, such as rules of procedure, and constitutional rights). Such comprehensive rules of evidence admit hearsay (generally, outof-court statements offered to prove the truth of the matter asserted) under certain conditions, which differ in criminal and civil trials. Because Title IX grievance processes are not court proceedings, comprehensive rules of evidence do not, and need not, apply. Rather, the Department has prescribed procedures designed to achieve a fair, reliable outcome in the context of sexual harassment in an education program or activity where the conduct alleged constitutes sex discrimination under Title IX. While judges in courts of law are competent to apply comprehensive, 1331 E.g., Crawford v. Washington, 541 U.S. 36 (2004) (although decided under the Sixth Amendment’s Confrontation Clause which only applies to criminal trials, the Supreme Court discussed how the Confrontation Clause stands for the principle that written statements are no substitute for cross-examination of witnesses in front of the trier of fact); id. at 49 (noting that crossexamining the witness who simply reads or recounts the statements of another witness in no way accomplishes the purposes and benefits of cross-examination) id. at 50, 51, 53 (‘‘Raleigh was, after all, perfectly free to confront those who read Cobham’s confession in court’’) (referring to the trial of Sir Walter Raleigh as a ‘‘paradigmatic confrontation violation’’). Although the Confrontation Clause does not apply in a noncriminal trial, the principle of cross-examining witness before allowing statements to be used is so deeply rooted in American jurisprudence that ensuring that these final regulations reflect that fundamental American notion of justice increases party and public confidence in the legitimacy of Title IX adjudications in postsecondary institutions. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 complicated rules of evidence, the Department does not believe that expectation is fair to impose on recipients, whose primary function is to provide education, not to resolve disputes between students and employees. Absent importing comprehensive rules of evidence, the alternative is to apply a bright-line rule that instructs a decision-maker to either consider, or not consider, statements made by a person who does not submit to crossexamination. The Department believes that in the context of sexual harassment allegations under Title IX, a rule of nonreliance on untested statements is more likely to lead to reliable outcomes than a rule of reliance on untested statements. If statements untested by cross-examination may still be considered and relied on, the benefits of cross-examination as a truth-seeking device will largely be lost in the Title IX grievance process. Thus, the Department declines to import a rule of evidence that, for example, allows a witness’s statement to be relied on where the statement was made to friends or family without awareness that a crime was under investigation. The Department notes that the Supreme Court case cited to by some commenters urging a rule that would essentially allow non-testimonial statements to be considered without having been tested by crossexamination, analyzed a judiciallyimplied hearsay exception in light of the constitutional (Sixth Amendment’s Confrontation Clause) right of a criminal defendant to confront witnesses; the Court reasoned that the plain language of the Confrontation Clause refers to ‘‘witnesses,’’ that the dictionary definition of a witness is one who ‘‘bears testimony’’ and thus the Confrontation Clause generally does not allow testimonial statements—such as formal statements, solemn declarations, or affirmations, intended to prove or establish a fact—to be used against a criminal defendant unless such statements are made by a person subject to cross-examination in court, or where the defendant had a previous opportunity to cross-examine the person making the statement.1332 The Court reasoned that hearsay exceptions as applied to non-testimonial statements, such as business records, did not raise the core concern of the Confrontation Clause and, thus, rules of evidence permitting admission of non-testimonial statements under specific hearsay exceptions did not raise constitutional 1332 Crawford v. Washington, 541 U.S. 36, 50–55 (2004). PO 00000 Frm 00323 Fmt 4701 Sfmt 4700 30347 problems.1333 While commenters correctly observe that the Confrontation Clause is concerned with use of testimonial statements against criminal defendants, even if use of a nontestimonial statement poses no constitutional problem under the Sixth Amendment, the statement would still need to meet a hearsay exception under applicable rules of evidence in a criminal court. For reasons discussed above, the Department does not wish to impose a complex set of evidentiary rules on recipients, whether patterned after civil or criminal rules. Even though a party’s statements that are not subject to cross-examination might be admissible in a civil or criminal trial under rules of evidence that apply in those contexts, the Department has determined that such untested statements, whether testimonial or nontestimonial, should not be relied on in a Title IX grievance process. Reliance on party and witness statements that have not been tested for credibility via crossexamination undermines party and public confidence in the fairness and accuracy of the determinations reached by postsecondary institutions. This provision need not result in failure to consider relevant evidence because parties and witnesses retain the opportunity to have their own statements considered, by submitting to cross-examination. In cases where a complainant files a formal complaint, and then does not appear or refuses to be cross-examined at the hearing, this provision excludes the complainant’s statements, including allegations in a formal complaint. The Department does not believe this is prejudicial or punitive against a complainant because the final regulations provide complainants with opportunities to submit to crossexamination and thus have their statements considered, in ways that lessen the inconvenience and potential trauma of such a procedure. Complainants may request (and the recipient must grant the request) for the live hearing to be held with the parties in separate rooms so as not to come face to face with the respondent; questioning cannot be conducted by the respondent personally; the recipient may allow parties to appear virtually for the live hearing; complainants have the right to an advisor of choice to support and assist the party throughout the grievance process; and recipients may establish rules of decorum to ensure questioning is conducted in a respectful manner. Further, recipients must offer supportive measures to a complainant 1333 Id. E:\FR\FM\19MYR2.SGM at 56. 19MYR2 30348 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations which may, for example, forbid contact or communication between the parties. The Department believes that without the credibility-testing function of crossexamination, whether the complainant’s claim is meritorious cannot be ascertained with sufficient assurance. The Department understands that complainants (and respondents) often will not have control over whether witnesses appear and are crossexamined, because neither the recipient nor the parties have subpoena power to compel appearance of witnesses. Some absences of witnesses can be avoided by a recipient thoughtfully working with witnesses regarding scheduling of a hearing, and taking advantage of the discretion to permit witnesses to testify remotely. Where a witness cannot or will not appear and be cross-examined, that person’s statements will not be relied on by the decision-maker, but the Department believes that any determination reached under this provision will be more reliable than a determination reached based on statements that have not been tested for credibility. The Department notes that the final regulations expressly allow a recipient to remove a respondent on an emergency basis and do not prescribe cross-examination as a necessary procedure during the post-removal opportunity to challenge the removal.1334 Recipients may also implement supportive measures that restrict students’ or employees’ contact or communication with others. Recipients thus have avenues for addressing serial predator situations even where no victim chooses to participate in a grievance process. A recipient is prohibited from coercing unwilling victims to participate in a grievance process,1335 even where the recipient’s goal is to investigate a possible predator on campus. The final regulations grant recipients discretion to allow participants, including witnesses, to appear at a live hearing virtually; however, technology must enable all participants to see and hear other participants, so a telephonic appearance would not be sufficient to comply with § 106.45(b)(6)(i). For reasons discussed above, written statements cannot be relied upon unless 1334 Section 106.44(c). 106.71 provides: ‘‘No recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by title IX or this part, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part.’’ (emphasis added). 1335 Section VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the witness submits to crossexamination, and whether a witness’s statement is reliable must be determined in light of the credibility-testing function of cross-examination, even where non-appearance is due to death or post-investigation disability. The Department notes that recipients have discretion to apply limited extensions of time frames during the grievance process for good cause, which may include, for example, a temporary postponement of a hearing to accommodate a disability. The Department understands commenters’ concerns that a blanket rule against reliance on party and witness statements made by a person who does not submit to crossexamination is a broader exclusionary rule than found in the Federal Rules of Evidence, under which certain hearsay exceptions permit consideration of statements made by persons who do not testify in court and have not been crossexamined. The Department understands that postsecondary institutions lack subpoena power to compel parties or witnesses to appear and testify at a live hearing. The final regulations do not purport to grant recipients the authority to compel appearance and testimony. However, where a party or witness does not appear and is not cross-examined, the statements of that party or witness cannot be determined reliable, truthful, or credible in a non-courtroom setting like that of an educational institution’s proceeding that lacks subpoena powers, comprehensive rules of evidence, and legal professionals. As many commenters noted, recipients are educational institutions that should not be converted into de facto courtrooms. The final regulations thus prescribe a process that simplifies evidentiary complexities while ensuring that determinations regarding responsibility result from consideration of relevant, reliable evidence. The Department declines to adopt commenters’ suggestion that instead the decisionmaker should be permitted to rely on statements that are not subject to crossexamination, if they are reliable; making such a determination without the benefit of extensive rules of evidence would likely result in inconsistent and potentially inaccurate assessments of reliability. Commenters correctly note that courts have not imposed a blanket rule excluding hearsay evidence from use in administrative proceedings. However, cases cited by commenters do not stand for the proposition that every administrative proceeding must be permitted to rely on hearsay evidence, even where the agency lacks subpoena PO 00000 Frm 00324 Fmt 4701 Sfmt 4700 power to compel witnesses to appear.1336 The Department acknowledges that the evidence gathered during an investigation may be broader than what is ultimately deemed relevant and relied upon in making a determination regarding responsibility, but the procedures in § 106.45 are deliberately selected to ensure that all evidence directly related to the allegations is reviewed and inspected by the parties, that the investigative report summarizes only relevant evidence, and that the determination regarding responsibility relies on relevant evidence. Because party and witness statements so often raise credibility questions in the context of sexual harassment allegations, the decision-maker must consider only those statements that have benefited from the truth-seeking function of crossexamination. The recipient, and the parties, have equal opportunity (and, for the recipient, the obligation) to gather and present relevant evidence including fact and expert witnesses, and face the same limitations inherent in a lack of subpoena power to compel witness testimony. The Department believes that the final regulations, including § 106.45(b)(6)(i), strike the appropriate balance for a postsecondary institution context between ensuring that only relevant and reliable evidence is considered while not over-legalizing the grievance process. The Department declines to tie reliance on statements that are not subject to cross-examination to the standard of evidence used. For reasons discussed in the ‘‘Section 106.45(b)(7)(i) Standard of Evidence and Directed Question 6’’ subsection of the ‘‘Determinations Regarding Responsibility’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, the Department believes that it is appropriate to leave recipients flexibility to choose between two standards of evidence but has made 1336 E.g., Johnson v. United States, 628 F.2d 187, 190–91 (D.C. Cir. 1980) (holding that substantial evidence supported U.S. Civil Service Commission’s termination determination even though it relied on hearsay statements of three witnesses, where the agency’s procedural rules expressly allowed introduction of witness statements and the statements were found to be reliable because they were from disinterested witnesses, consistent with each other, and the defense had seen the witness statements prior to the hearing); Richardson v. Perales, 402 U.S. 389, 407, 410 (1971) (Social Security Administration hearing regarding disability benefits eligibility did not deprive claimant of due process by relying on written medical consultant reports, where those written reports were relevant and the claimant could have compelled the doctors to appear for cross-examination but did not do so). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations changes in the final regulations to clarify that a recipient’s choice must then apply to all formal complaints of sexual harassment subject to a § 106.45 grievance process. Making the standard of evidence dependent on whether a decision-maker relies on party or witness statements that are not subject to cross-examination would effectively remove a recipient’s discretion to select a standard of evidence, and would not achieve the benefits of a recipient implementing a predictable grievance process. The Department appreciates commenters’ requests for clarification of this provision. As noted above, even where a respondent fails to appear for a hearing, the decision-maker may still consider the relevant evidence (excluding statements of the nonappearing party) and reach a determination regarding responsibility, though the final regulations do not refer to this as a ‘‘default judgment.’’ If a decision-maker does proceed to reach a determination, no inferences about the determination regarding responsibility may be drawn based on the nonappearance of a party. The Department notes that under § 106.45(b)(3)(ii) a recipient may in its discretion, but is not required to, dismiss a formal complaint where the respondent is no longer enrolled or employed by the recipient or where specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination regarding responsibility (or where a complainant informs the Title IX Coordinator in writing that the complainant wishes to withdraw the formal complaint). The prohibition on reliance on ‘‘statements’’ applies not only to statements made during the hearing, but also to any statement of the party or witness who does not submit to crossexamination. ‘‘Statements’’ has its ordinary meaning, but would not include evidence (such as videos) that do not constitute a person’s intent to make factual assertions, or to the extent that such evidence does not contain a person’s statements. Thus, police reports, SANE reports, medical reports, and other documents and records may not be relied on to the extent that they contain the statements of a party or witness who has not submitted to crossexamination. While documentary evidence such as police reports or hospital records may have been gathered during investigation 1337 and, if 1337 The Department notes that the final regulations add to § 106.45(b)(5)(i) a provision that restricts a recipient from accessing or using a party’s treatment records without the party’s VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 directly related to the allegations inspected and reviewed by the parties,1338 and to the extent they are relevant, summarized in the investigative report,1339 the hearing is the parties’ first opportunity to argue to the decision-maker about the credibility and implications of such evidence. Probing the credibility and reliability of statements asserted by witnesses contained in such evidence requires the parties to have the opportunity to crossexamine the witnesses making the statements. The Department appreciates the opportunity to clarify here that to ‘‘submit to cross-examination’’ means answering those cross-examination questions that are relevant; the decisionmaker is required to make relevance determinations regarding crossexamination in real time during the hearing in part to ensure that parties and witnesses do not feel compelled to answer irrelevant questions for fear of their statements being excluded. If a party or witness disagrees with a decision-maker’s determination that a question is relevant, during the hearing, the party or witness’s choice is to abide by the decision-maker’s determination and answer, or refuse to answer the question, but unless the decision-maker reconsiders the relevance determination prior to reaching the determination regarding responsibility, the decisionmaker would not rely on the witness’s statements.1340 The party or witness’s reason for refusing to answer a relevant question does not matter. This provision does apply to the situation where evidence involves intertwined statements of both parties (e.g., a text message exchange or email thread) and one party refuses to submit to crossexamination and the other does submit, so that the statements of one party cannot be relied on but statements of the other party may be relied on. If parties do not testify about their own statement and submit to cross-examination, the decision-maker will not have the appropriate context for the statement, which is why the decision-maker cannot consider that party’s statements. This provision requires a party or witness to ‘‘submit to cross-examination’’ to avoid exclusion of their statements; the same voluntary, written consent. If the party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a ‘‘parent,’’ as defined in 34 CFR 99.3. 1338 Section 106.45(b)(5)(vi). 1339 Section 106.45(b)(5)(vii). 1340 Parties have the equal right to appeal on three bases including procedural irregularity that affects the outcome, so if a party disagrees with a decisionmaker’s relevance determination, the party has the opportunity to challenge the relevance determination on appeal. § 106.45(b)(8). PO 00000 Frm 00325 Fmt 4701 Sfmt 4700 30349 exclusion of statements does not apply to a party or witness’s refusal to answer questions posed by the decision-maker. If a party or witness refuses to respond to a decision-maker’s questions, the decision-maker is not precluded from relying on that party or witness’s statements.1341 This is because crossexamination (which differs from questions posed by a neutral fact-finder) constitutes a unique opportunity for parties to present a decision-maker with the party’s own perspectives about evidence. This adversarial testing of credibility renders the person’s statements sufficiently reliable for consideration and fair for consideration by the decision-maker, in the context of a Title IX adjudication often overseen by laypersons rather than judges and lacking comprehensive rules of evidence that otherwise might determine reliability without crossexamination. The Department disagrees that the phrase ‘‘does not appear for crossexamination’’ is clearer or leads to better results than this provision’s language, ‘‘does not submit to cross-examination.’’ The former would permit a party or witness to appear but not engage in the cross-examination procedure, which would not achieve the benefits of crossexamination discussed above. For similar reasons, the Department declines to allow a party or witness to ‘‘waive’’ a question because such a rule would circumvent the benefits and purposes of cross-examination as a truth-seeking tool for postsecondary institutions’ Title IX adjudications. Changes: The Department has revised § 106.45(b)(6)(i) to clarify that although a decision-maker cannot rely on the statement of a party or witness who does not submit to cross-examination, the decision-maker cannot draw any inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the hearing or refusal to answer crossexamination or other questions. This provision has been further revised to allow recipients discretion to hold live hearings with any or all parties, witnesses, and other participants appearing virtually, with technology enabling participants simultaneously to see and hear each other. The Department has also added § 106.71, prohibiting retaliation against any 1341 The decision-maker still cannot draw any inference about the determination regarding responsibility based solely on a party’s refusal to answer questions posed by the decision-maker; the final regulations refer in § 106.45(b)(6)(i) to not drawing inferences based on refusal to answer ‘‘cross-examination or other questions’’ (emphasis added). E:\FR\FM\19MYR2.SGM 19MYR2 30350 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations person exercising rights under Title IX including participating or refusing to participate in any grievance process. Section 106.45(b)(3)(ii), added in the final regulations, grants a recipient discretion to dismiss a formal complaint, or allegations therein, where the complainant notifies the Title IX Coordinator in writing that the complainants wishes to withdraw the allegations, or the respondent is no longer enrolled or employed by the recipient, or specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination. Rape Shield Protections Comments: Some commenters supported the rape shield protections in § 106.45(b)(6)(i) (prohibiting questions or evidence about a complainant’s prior sexual behavior or sexual predisposition, with two exceptions— where evidence of prior sexual behavior is offered to prove someone other than the respondent committed the alleged offense, or where prior sexual behavior evidence is specifically about the complainant and the respondent and is offered to prove consent) because prohibiting asking about a complainant’s sexual history will give victims more control when bringing claims, and because these provisions protect victims’ privacy. Some commenters opposed the rape shield protections in § 106.45(b)(6)(i), arguing that the ban on evidence concerning a complainant’s sexual history is too broad because evidence of a complainant’s sexual history with the respondent should also be allowed to prove motive to fabricate or conceal a sexual interaction, and not only to prove consent. Commenters argued that Fed. R. Evid. 412 allows such evidence if the probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party, and because the rape shield language in § 106.45(b)(6)(i) is based on Fed. R. Evid. 412, the final regulations should incorporate that exception as well. Commenters argued that Fed. R. Evid. 412(b)(1)(B) allows sexual history evidence to be offered by a criminal defendant without restriction but Fed. R. Evid. 412(b)(2) provides that in civil cases, sexual history evidence is admissible to prove consent only if its probative value substantially outweighs the danger of harm and unfair prejudice to a victim or any party; commenters argued that because a Title IX grievance process is more analogous to a civil trial than a criminal trial, the rape shield language in § 106.45(b)(6)(i)–(ii) should VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 include the limitation contained in Fed. R. Evid. 412(b)(2). Commenters argued that the prohibition against questions or evidence about sexual predisposition or sexual history should also apply to respondents so that the questioning focuses on the allegation at issue and does not delve into irrelevant details about a respondent’s sexual history. At least one commenter mistakenly understood this provision to allow questions about a complainant’s sexual history but not allow the same questions about a respondent’s sexual history such that a respondent’s propensity to violence or past behaviors speaking to a pattern could not be considered. Commenters argued that an additional provision of Fed. R. Evid. 412 should be added into the final regulations: Allowance of ‘‘evidence whose exclusion would violate the defendant’s constitutional rights.’’ Other commenters supported the rape shield language but expressed concern that the protections will be ineffective without comprehensive rules of evidence. Some commenters cited a study that found lawyers in many cases routinely attempt to circumvent rape shield limitations.1342 Other commenters argued that because the rape shield protections are patterned after Fed. R. Evid. 412, the final regulations should incorporate the explanatory information in the Advisory Committee notes to Fed. R. Evid. 412 1343 so that parties and decisionmakers better understand the parameters of what kind of questioning is off-limits. Commenters argued that without further guidance on how to apply the rape shield limitations, the exceptions contained in this provision may still subject complainants to unwarranted invasions of privacy, character attacks, and sex stereotyping, and suggested that the final regulations specify how recipients should enforce the rape shield protections. Commenters argued that the two exceptions to the rape shield protections should be eliminated because having non-legal professionals try to determine the scope 1342 Commenters cited: Claire McGlynn, Rape Trials and Sexual History Evidence, 81 J. Crim. L. 5 (2017). 1343 Commenters cited: Advisory Committee Notes, Fed. R. Evid. 412, stating sexual behavior ‘‘connotes all activities that involve actual physical conduct, i.e., sexual intercourse and sexual contact, or that imply sexual intercourse or sexual contact’’ including the victim’s use of contraceptives, evidence of the birth of a child, and sexually transmitted diseases, and that the definition of sexual behavior also includes ‘‘the behavior of the mind,’’ while ‘‘sexual predisposition’’ is defined to include the victim’s ‘‘mode of dress, speech, or lifestyle.’’ PO 00000 Frm 00326 Fmt 4701 Sfmt 4700 of the exceptions will result in the exceptions swallowing the rape shield protections. Commenters argued that the evidence exchange provision in § 106.45(b)(5)(vi) risks negating the rape shield protections in § 106.45(b)(6)(i)– (ii). Commenters asserted that because the proposed rules fail to define consent, the scope of the rape shield protections is unclear. Commenters argued that the two rape shield exceptions are too favorable to respondents and unfair to complainants because those exceptions let respondents discuss a complainant’s sexual history any time the respondent wants to point the finger at a third party or show consent was present due to consent being present in past sexual interactions, a problem that commenters argued will frequently arise since a significant number of sexual assaults are committed by intimate partners.1344 Commenters argued that the rape shield exceptions expose a thinly disguised reworking of the rape myth that women in sexual harassment cases are so unreliable that they may be mistaken about who committed the act, and allow slut-shaming (implications that a woman with an extensive sexual history likely consented to sexual activity) to be used as a defense to a sexual assault accusation. Commenters argued that research shows that during sexual assault trials victims are routinely asked about their sexual history to imply the presence of consent, often relying on an incorrect assumption that women with more sexual experience are more likely to make a false allegation.1345 Commenters argued that the ‘‘offered to prove consent’’ exception should be eliminated because past sexual encounters, even with the respondent, are always irrelevant to issues of consent because valid consent can only ever be given in the particular moment.1346 Commenters asserted that experts believe that there is no evidentiary theory under which sexual history is relevant to any claim or defense except when establishing a pattern of inappropriate behavior on the part of the harasser.1347 1344 Commenters cited: U.S. Dep’t. of Justice, Bureau of Justice Statistics, Special Report: Rape and Sexual Assault Victimization Among CollegeAge Females, 1995–2013 (2016). 1345 Commenters cited: Olivia Smith & Tina Skinner, Observing Court Responses to Victims of Rape and Sexual Assault, 7 Feminist Criminology 4, 298, 300 (2012). 1346 Commenters cited: 10 U.S.C. 920(g)(8)(a) (governing rape and sexual assault in the armed forces) (‘‘A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does not constitute consent.’’). 1347 Commenters cited: Linda J. Krieger & Cindi Fox, Evidentiary Issues in Sexual Harassment E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Commenters argued that this provision violates State laws, such as in New York, that have legislated an affirmative consent standard for campus sexual misconduct. Commenters asserted that this provision should: State that evidence of sexual behavior is never allowed to prove reputation or character (or only allowed if the complainant has placed the complainant’s own reputation or character at issue); 1348 require that sexual behavior evidence that ostensibly meets one of the rape shield exceptions be allowed only if a neutral evaluator decides in advance that the evidence meets an exception and that its probative value outweighs potential harm or prejudice to the complainant; and require recipients to inform complainants in advance if such evidence will be allowed. Commenters objected to use of the phrase ‘‘sexual predisposition’’ claiming the phrase harkens back to the past and puts on trial the sexual practices and identity of the complainant, which have no relevance to the adjudication of particular allegations. Commenters wondered if the rape shield protected complainants during all stages of a grievance process, for example during the collection of evidence phase or during an informal resolution process, or only during a live hearing. Commenters stated that the rape shield provision, though wellintentioned, conflicts with other provisions in § 106.45 such as allowing the parties during investigation to review and respond to evidence gathered by the recipient as well as offer additional evidence during the investigation; these commenters asserted that while greater transparency in the grievance process is warranted and welcome, the unfettered right to introduce and review evidence conflicts with both the rape shield protections in the proposed rules and with some State laws that also prevent admission of prior sexual behavior evidence. Commenters argued that respondents should only be allowed to ask questions, especially about sexual behavior, after presenting an adequate foundation and where the questions do not rely on hearsay or speculation. Litigation, 1 Berkeley Women’s L. J. 115 (1985); Megan Reidy, Comment: The Impact of Media Coverage on Rape Shield Laws in High-Profile Cases: Is the Victim Receiving a ‘‘Fair Trial’’, 54 Cath. Univ. L. Rev. 297, 308 (2005). 1348 Commenters cited: Seth I. Koslow, Rape Shield Laws and the Social Media Revolution, 29 Touro L. Rev. 3, Art. 19 (2013), for the proposition that so many students use social media that those platforms have become a significant means through which a complainant might be said to have placed their reputation in controversy or at issue. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Commenters asserted that this provision does not accurately mirror Fed. R. Evid. 412 because the latter allows the evidence where it is ‘‘offered by the defendant to prove consent or if offered by the prosecutor,’’ and commenters argued that the final regulations should allow prior sexual behavior evidence ‘‘if offered by the defendant to prove consent or welcomeness, or if offered by the institution or complainant.’’ Commenters argued that this modification would appropriately allow testimony to be impeached when welcomeness is at issue in non-sexual assault situations, in addition to where consent is at issue in sexual violence situations, and would give a complainant or the institution equal opportunity to use such evidence where welcomeness or consent is contested. Other commenters argued that the rape shield language appeared not to take into account the full range of sexual harassment because under the second prong of the sexual harassment definition in § 106.30, consent is not an element but rather the issue might be whether the conduct was unwelcome versus invited, but, commenters asserted, even if sexual history was relevant in those situations, the relevance would be outweighed by potential harm to the complainant and so should be excluded. Commenters argued that this provision’s wording in the NPRM, referring to ‘‘cross-examination must exclude evidence of the complainant’s sexual behavior or predisposition’’ lacked clarity because questions are not evidence, though questions can lead to testimony that is evidence, and the provision was thus ambiguous as to whether the rape shield protections applied solely to ‘‘questions’’ or also to ‘‘evidence’’ that concerns a complainant’s sexual behavior or predisposition. Commenters widely used the phrase ‘‘prior sexual behavior’’ or ‘‘prior sexual history’’ in reference to the rape shield provision in § 106.45(b)(6)(i). Commenters noted that some State laws, for example Maryland and New York, address the same issue with rules prohibiting ‘‘prior’’ sexual history. Discussion: The Department agrees with commenters that the rape shield protections serve a critically important purpose in a Title IX sexual harassment grievance process: Protecting complainants from being asked about or having evidence considered regarding sexual behavior, with two limited exceptions. The final regulations clarify that such questions, and evidence, are PO 00000 Frm 00327 Fmt 4701 Sfmt 4700 30351 not only excluded at a hearing, but are deemed irrelevant. The Department disagrees that the rape shield language is too broad. Scenarios described by commenters, where a respondent might wish to prove the complainant had a motive to fabricate or conceal a sexual interaction, do not require admission or consideration of the complainant’s sexual behavior. Respondents in that scenario could probe a complainant’s motive by, for example, inquiring whether a complainant had a dating or romantic relationship with a person other than the respondent, without delving into a complainant’s sexual behavior; sexual behavior evidence would remain irrelevant in such circumstances. Commenters correctly note that the Department adapted the rape shield language in § 106.45(b)(6)(i) from Fed. R. Evid. 412.1349 As with other determinations about what procedures should be part of a § 106.45 grievance process, the Department carefully considered whether Fed. R. Evid. 412 would be useful in formulating rape shield provisions for application in Title IX adjudications. However, the final regulations do not import wholesale Fed. R. Evid. 412. The Department believes the protections of the rape shield language remain stronger if decision-makers are not given discretion to decide that sexual behavior is admissible where its probative value substantially outweighs the danger of harm to a victim and unfair prejudice to any party. If the Department permitted decision-makers to balance ambiguous factors like ‘‘unfair prejudice’’ to make admissibility decisions, the final regulations would convey an expectation that a non-lawyer decisionmaker must possess the legal expertise of judges and lawyers. Instead, the Department expects decision-makers to apply a single admissibility rule (relevance), including this provision’s specification that sexual behavior is irrelevant with two concrete exceptions. This approach leaves the decisionmaker discretion to assign weight and credibility to evidence, but not to deem evidence inadmissible or excluded, except on the ground of relevance (and 1349 83 FR 61476 (regarding § 106.45(b)(6)(i)–(ii), the NPRM stated ‘‘These sections incorporate language from (and are in the spirit of) the rape shield protections found in Federal Rule of Evidence 412, which is intended to safeguard complainants against invasion of privacy, potential embarrassment, and stereotyping. See Fed. R. Evid. 412. Advisory Committee’s Note. As the Court has explained, rape shield protections are intended to protect complainants ‘from being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior.’ Michigan v. Lucas, 500 U.S. 145, 146 (1991).’’). E:\FR\FM\19MYR2.SGM 19MYR2 30352 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations in conformity with other requirements in § 106.45, including the provisions discussed above whereby the decisionmaker cannot rely on statements of a party or witness if the party or witness did not submit to cross-examination, a party’s treatment records cannot be used without the party’s voluntary consent, and information protected by a legally recognized privilege cannot be used). The Department declines to extend the rape shield language to respondents. The Department does not wish to impose more restrictions on relevance than necessary to further the goals of a Title IX sexual harassment adjudication, and does not believe that a respondent’s sexual behavior requires a special provision to adequately protect respondents from questions or evidence that are irrelevant. By contrast, in order to counteract historical, societal misperceptions that a complainant’s sexual history is somehow always relevant to sexual assault allegations, the Department follows the rationale of the Advisory Committee’s Note to Fed. R. Evid. 412, and the Supreme Court’s observation in Michigan v. Lucas,1350 that rape shield protections are intended to protect complainants from harassing, irrelevant questions at trial. The Department cautions recipients that some situations will involve counterclaims made between two parties, such that a respondent is also a complainant, and in such situations the recipient must take care to apply the rape shield protections to any party where the party is designated as a ‘‘complainant’’ even if the same party is also a ‘‘respondent’’ in a consolidated grievance process.1351 The Department clarifies here that the rape shield language in this provision considers all questions and evidence of a complainant’s sexual predisposition irrelevant, with no exceptions; questions and evidence about a complainant’s prior sexual behavior are irrelevant unless they meet one of the two exceptions; and questions and evidence about a respondent’s sexual predisposition or prior sexual behavior are not subject to any special consideration but rather must be judged like any other question or evidence as relevant or irrelevant to the allegations at issue. For two reasons, the Department also declines to import the additional 1350 500 U.S. 145, 146 (1991) (‘‘Like most States, Michigan has a ‘rape-shield’ statute designed to protect victims of rape from being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior.’’) (emphasis added). 1351 Section 106.45(b)(4) allows consolidation of formal complaints, in a recipient’s discretion, when allegations arise from the same facts or circumstances. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 provision in Fed. R. Evid. 412 that would allow in evidence ‘‘whose exclusion would violate the defendant’s constitutional rights.’’ First, this exception to the preclusion of sexual behavior evidence is intended to protect the constitutional rights of criminal defendants, and respondents in a Title IX grievance process are not due the same rights as criminal defendants. Second, the Department believes that the procedures in § 106.45, including the use of relevance as the only admissibility criterion, ensure that trained, layperson decision-makers are capable of making relevance determinations and then evaluating relevant evidence with discretion to decide how persuasive certain evidence is to a determination regarding responsibility, whereas imposing a complex set of evidentiary rules would make it less likely that a non-lawyer would feel competent to be a recipient’s decision-maker. The final regulations permit a wide universe of evidence that may be ‘‘relevant’’ (and thus not subject to exclusion), and the Department believes it is unlikely that a recipient applying the § 106.45 grievance process with its robust procedural protections would be found to have violated any respondent’s constitutional rights, whether under due process of law Supreme Court cases like Mathews and Goss, or the Sixth Circuit’s due process decision in Baum.1352 As discussed above, we have revised § 106.45(b)(6)(i) to direct a decision-maker who must not rely on the statement of a party who has not appeared or submitted to crossexamination not to draw any inference about the determination regarding responsibility based on the party’s absence or refusal to be cross-examined (or refusal to answer other questions, such as those posed by the decisionmaker). This modification provides protection to respondents exercising Fifth Amendment rights against selfincrimination (though it applies equally to protect complainants who choose not to appear or testify). For reasons discussed above, the Department believes that well-trained decision-makers are fully capable of determining relevance of questions and evidence, including the special consideration given to a complainant’s 1352 As acknowledged in § 106.6(d), the Department will not enforce these regulations in a manner that requires any recipient to violate the U.S. Constitution, including the First Amendment, Fifth and Fourteenth Amendment, or any other constitutional provision. The Department believes that the § 106.45 grievance process allows, and expects, recipients to apply the grievance process in a manner that avoids violation of any party’s constitutional rights. PO 00000 Frm 00328 Fmt 4701 Sfmt 4700 sexual history under this provision. Section 106.45(b)(1)(iii) has been revised to require decision-makers to be trained on issues of relevance, including specifically application of the rape shield protections. Regardless of studies that show that lawyers routinely try to circumvent rape shield protections, the Department expects recipients to ensure that decision-makers accurately determine the relevance and irrelevance of a complainant’s sexual history in accordance with these regulations. The Department disagrees that the two exceptions in the rape shield provisions should be eliminated because nonlawyer decision-makers will misapply this provision and end up allowing questions and evidence contrary to this provision. Nothing in the final regulations precludes a recipient from including in its training of decisionmakers information about the purpose and scope of rape shield language in Fed. R. Evid. 412, including the Advisory Committee Notes, so long as the training remains focused on applying the rape shield protections as formulated in these final regulations. The Department disagrees that the evidence exchange provision in § 106.45(b)(5)(vi) negates the rape shield protections in § 106.45(b)(6)(i)–(ii). As noted by the Supreme Court, rape shield protections generally are designed to protect complainants from harassing, irrelevant inquiries into sexual behavior at trial.1353 The final regulations permit exchange of all evidence ‘‘directly related to the allegations in a formal complaint’’ during the investigation, but require the investigator to only summarize ‘‘relevant’’ evidence in the investigative report (which would exclude sexual history information deemed by these final regulations to be ‘‘not relevant’’), and require the decision-maker to objectively evaluate only ‘‘relevant’’ evidence during the hearing and when reaching the determination regarding responsibility. To further reinforce the importance of correct application of the rape shield protections, we have revised § 106.45(b)(6)(i) to explicitly state that only relevant questions may be asked, and the decision-maker must determine the relevance of each cross-examination question before a party or witness must answer. Commenters correctly observe that the final regulations do not define ‘‘consent.’’ For reasons explained in the 1353 Michigan v. Lucas, 500 U.S. 145, 146 (1991) (‘‘Like most States, Michigan has a ‘rape-shield’ statute designed to protect victims of rape from being exposed at trial to harassing or irrelevant questions concerning their past sexual behavior.’’) (emphasis added). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations ‘‘Consent’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, the final regulations clarify that the Department will not require recipients to adopt a particular definition of consent. This provision in § 106.30 allows recipients flexibility to use a definition of sexual consent that best reflects the recipient’s values and/ or complies with State laws that require recipients to adopt particular definitions of consent for campus sexual misconduct proceedings. The second of the two exceptions to the rape shield protections refers to ‘‘if offered to prove consent’’ and thus the scope of that exception will turn in part on the definition of consent adopted by each recipient. Decision-makers will be trained in how to conduct a grievance process and specifically on how to apply the rape shield protections, which will include the recipient’s adopted definition of consent, and thus the decision-maker will understand how to apply the rape shield language in accordance with that definition. Because of the flexibility recipients have under these final regulations to adopt a definition of consent, the Department disagrees that the scope of the second exception to the rape shield protections is too broad or favors respondents. Rather, the scope of the ‘‘offered to prove consent’’ exception is determined in part by a recipient’s definition of consent, which may be broad or narrow at the recipient’s discretion. The Department disagrees that the first exception (‘‘offered to prove that someone other than the respondent’’ committed the alleged misconduct) is too broad, because in order for that exception to apply a respondent’s contention must be that someone other than the respondent is the person who committed the sexual harassment; commenters have informed the Department that this defense is not common compared to the defense that a sexual interaction occurred but consent was present, a conclusion buttressed by commenters’ assertions that a significant number of sexual assaults are committed by intimate partners. When a respondent has evidence that someone else committed the alleged sexual harassment, a respondent must have opportunity to pursue that defense, or else a determination reached by the decision-maker may be an erroneous outcome, mistakenly identifying the nature of sexual harassment occurring in the recipient’s education program or activity.1354 1354 The Department notes that where a decisionmaker determines, for example, that the respondent is not responsible for the allegations in the formal VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Neither of the two exceptions to the rape shield protections promote the notion that women, or complainants generally, are unreliable and that they may be mistaken about who committed an assault, or allow slut-shaming as a defense to sexual assault accusations. Rather, the first exception applies to the narrow circumstance where a respondent contends that someone other than the respondent committed the misconduct, and the second applies narrowly to allow sexual behavior questions or evidence concerning incidents between the complainant and respondent if offered to prove consent. The second exception does not admit sexual history evidence of a complainant’s sexual behavior with someone other than the respondent; thus, ‘‘slut-shaming’’ or implication that a woman with an extensive sexual history probably consented to sexual activity with the respondent, is not validated or promoted by this provision. As noted above, the scope of when sexual behavior between the complainant and respondent might be relevant to the presence of consent regarding the particular allegations at issue depends in part on a recipient’s definition of consent. Not all definitions of consent, for example, require a verbal expression of consent; some definitions of consent inquire whether based on circumstances the respondent reasonably understood that consent was present (or absent), thus potentially making relevant evidence of past sexual interactions between the complainant and the respondent. The Department reiterates that the rape shield language in this provision does not pertain to the sexual predisposition or sexual behavior of respondents, so evidence of a pattern of inappropriate behavior by an alleged harasser must be judged for relevance as any other evidence must be. As discussed above, the Department defers to recipients on a definition of consent, and thus recipients subject to State laws imposing particular definitions may comply with those State laws during a § 106.45 grievance process. The recipient’s definition of consent will determine the scope of the rape shield exception that refers to ‘‘consent.’’ The Department does not believe that the provision needs to expressly state that a complainant’s sexual behavior can never be allowed to prove a complainant’s reputation or character; rather, this provision already complaint, but also determines that the complainant did suffer the alleged sexual harassment but it was perpetrated by someone other than the respondent, the recipient is free to provide supportive measures to the complainant designed to restore or preserve equal access to education. PO 00000 Frm 00329 Fmt 4701 Sfmt 4700 30353 deems irrelevant all questions or evidence of a complainant’s prior sexual behavior unless offered to prove that someone other than the respondent committed the alleged offense or if the questions or evidence concern specific sexual behavior between the complainant and respondent and are offered to prove consent. No other use of a complainant’s sexual behavior is authorized under this provision. The Department declines to require questions or evidence that may meet one of the rape shield exceptions to be allowed to be asked or presented at a hearing only if a neutral evaluator first decides that one of the two exceptions applies. As discussed above, the decision-maker will be trained in how to conduct a grievance process, including how to determine relevance and how to apply the rape shield protections, and at the live hearing the decision-maker must determine the relevance of a cross-examination question before a party or witness must answer. As discussed above, the Department declines to import a balancing test that would exclude sexual behavior questions and evidence (even meeting the two exceptions) unless probative value substantially outweighs potential harm or undue prejudice, because that open-ended, complicated standard of admissibility would render the adjudication more difficult for a layperson decision-maker competently to apply. Unlike the two exceptions in this provision, a balancing test of probative value, harm, and prejudice contains no concrete factors for a decision-maker to look to in making the relevance determination. The Department’s use of the phrase ‘‘sexual predisposition’’ is mirrored in Fed. R. Evid. 412; far from indicating intent to harken back to the past where sexual practices of a complainant were used against a complainant, the final regulations take a strong position that questions or evidence of a complainant’s ‘‘sexual predisposition’’ are simply irrelevant, without exception. The final regulations clarify the rape shield language to state that questions and evidence subject to the rape shield protections are ‘‘not relevant,’’ and therefore the rape shield protections apply wherever the issue is whether evidence is relevant or not. As noted above, this means that where § 106.45(b)(5)(vi) requires review and inspection of evidence ‘‘directly related to the allegations’’ that universe of evidence is not screened for relevance, but rather is measured by whether it is ‘‘directly related to the allegations.’’ However, the investigative report must E:\FR\FM\19MYR2.SGM 19MYR2 30354 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations summarize ‘‘relevant’’ evidence, and thus at that point the rape shield protections would apply to preclude inclusion in the investigative report of irrelevant evidence. The Department believes these provisions work consistently and logically as part of the § 106.45 grievance process, under which all evidence is evaluated for whether it is directly related to the allegations, evidence summarized in the investigative report must be relevant, and evidence (and questions) presented in front of, and considered by, the decision-maker must be relevant. The Department declines to require respondents to ‘‘lay a foundation’’ before asking questions, or to impose rules excluding questions based on hearsay or speculation. For reasons described above, relevance is the sole gatekeeper evidentiary rule in the final regulations, but decision-makers retain discretion regarding the weight or credibility to assign to particular evidence. Further, for the reasons discussed above, while the final regulations do not address ‘‘hearsay evidence’’ as such, § 106.45(b)(6)(i) does preclude a decision-maker from relying on statements of a party or witness who has not submitted to cross-examination at the live hearing. The Department notes that the rape shield language does not limit the ‘‘if offered to prove consent’’ exception to when the question or evidence is offered by the respondent. Rather, such questions or evidence could be offered by either party, or by the investigator, or solicited on the decision-maker’s own initiative. The Department appreciates commenters’ suggestion that the rape shield exception regarding ‘‘to prove consent’’ apply to proof of ‘‘welcomeness’’ so that it would apply to allegations of sexual harassment that turn on welcomeness and not on consent of the victim. However, as explained in the ‘‘Sexual Harassment’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, the Department interprets the ‘‘unwelcome’’ element in the first and second prongs of the § 106.30 definition of sexual harassment subjectively; that is, if conduct is unwelcome to the complainant, that is sufficient to support that element of an allegation of sexual harassment. By contrast, the final regulations impose a reasonable person standard on the other elements in the second prong of the § 106.45 definition—whether the unwelcome conduct was so ‘‘severe, pervasive, and objectively offensive’’ that it ‘‘effectively denied a person equal access’’ to education. The Department therefore VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 declines to extend the rape shield language to encompass situations where the respondent wishes to prove the conduct was ‘‘welcome’’ as opposed to ‘‘unwelcome.’’ The Department rejects the premise that a respondent may need to use a complainant’s sexual behavior to challenge a complainant’s subjective interpretation of conduct as unwelcome. Respondents facing allegations under the first or second prong of the § 106.30 definition may defend by, for example, arguing that the unwelcome conduct was not ‘‘conditioning any aid or benefit’’ on participation in the unwelcome sexual activity, or that the unwelcome conduct was not ‘‘severe’’ or was not ‘‘pervasive,’’ etc. A complainant’s sexual behavior is simply irrelevant to those defenses. Contrary to commenters’ concerns, the rape shield language deems irrelevant all questions or evidence of a complainant’s sexual behavior unless offered to prove consent (and it concerns specific instances of sexual behavior with the respondent); thus, if ‘‘consent’’ is not at issue—for example, where the allegations concern solely unwelcome conduct under the first or second prong of the § 106.30 definition—then that exception does not even apply, and the rape shield protections would then bar all questions and evidence about a complainant’s sexual behavior, with no need to engage in a balancing test of whether the value of the evidence is outweighed by harm or prejudice. The Department is persuaded by commenters who argued that the NPRM’s wording of the rape shield language lacked clarity as to whether ‘‘exclusion’’ applied only to questions, or also to evidence. The Department has revised this provision in the final regulations to refer to both questions and evidence, and replace reference to ‘‘exclusion’’ with deeming the sexual predisposition and sexual behavior questions or evidence to be ‘‘not relevant’’ (subject to the same two exceptions as stated in the NPRM). To conform the final regulations with the intent of the rape shield provision and with commenters’ widely understood view of this provision, we have added the word ‘‘prior’’ before ‘‘sexual behavior’’ in § 106.45(b)(6)(i), and in § 106.45(b)(6)(ii) that contains the same rape shield language.1355 1355 The Department notes that ‘‘prior’’ sexual behavior is a phrase widely used by commenters to discuss rape shield protections, and commenters noted that various State laws, such as New York and Maryland, use the word ‘‘prior’’ to distinguish a complainant’s sexual behavior that is unrelated to the sexual misconduct allegations at issue. The Department emphasizes that ‘‘prior’’ does not imply admissibility of questions or evidence about a PO 00000 Frm 00330 Fmt 4701 Sfmt 4700 Changes: The Department has revised the rape shield language in § 106.45(b)(6)(i)–(ii) to clarify that questions and evidence about the complainant’s prior sexual behavior or predisposition are not relevant unless offered to prove that someone other than the respondent committed the offense or if the sexual history evidence concerns specific sexual incidents with the respondent and is offered to prove consent. We have also revised § 106.45(b)(1)(iii) to require decisionmakers to be trained on issues of relevance, including application of the rape shield protections in § 106.45(b)(6). Separate Rooms for Cross-Examination Facilitated by Technology; Directed Question 9 Comments: Some commenters supported the provision in § 106.45(b)(6)(i) that upon request of any party a recipient must permit crossexamination to occur with the parties located in separate rooms with technology facilitating the ability of all participants to see and hear the person answering questions. Commenters asserted that this provision appropriately acknowledges the intimidating nature of crossexamination. Commenters also asserted that this provision reaches a reasonable balance between allowing crossexamination and protecting victims from personal confrontation with a perpetrator. Some commenters supported this provision but expressed concern that the live question-andanswer format, even avoiding face-toface trauma, will still impose significant trauma for both parties. Commenters stated that many recipients already effectively utilize technology to enable parties to testify at live hearings without being physically present in the same room at the same time, including asking the non-testifying party to wait in a separate room listening by telephone or watching by videoconference while the testifying party is in the same room as the decision-maker, and then the parties switch rooms with safety measures imposed so the parties do not encounter each other during transitions. complainant’s sexual behavior that occurred after the alleged sexual harassment incident, but rather must mean anything ‘‘prior’’ to conclusion of the grievance process. This aligns with the intent of Fed. R. Evid. 412, which prohibits evidence of a victim’s ‘‘other’’ sexual behavior; the Advisory Committee Notes on that rule explain that use of the word ‘‘other’’ is to ‘‘suggest some flexibility in admitting evidence ‘intrinsic’ to the alleged sexual misconduct.’’ The Department chooses to use the phrase ‘‘prior sexual behavior’’ rather than ‘‘other sexual behavior’’ because based on public comments, ‘‘prior sexual behavior’’ is a widely understood reference to evidence unrelated to the alleged sexual harassment at issue. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations At least one commenter opposed this provision, arguing that there is no substitute for direct eye contact and full view of a person’s mannerisms and gestures, which will not be as effective using technology, even though face-toface confrontation may cause trauma to both complainants and respondents. Some commenters opposed this provision, asserting that complainants should not be forced to be ‘‘live streamed’’ and instead should have the right to remain anonymous. Some commenters argued that ‘‘watering down’’ the Sixth Amendment right to face-to-face confrontation just to avoid traumatizing victims is not appropriate because the Constitution expects victims to endure the experience of making their accusations directly in front of an accused 1356 and the proposed rules do not even require a threshold showing of the potential for trauma before granting a request to permit virtual testimony. Other commenters argued that separating the parties does not adequately diminish the intimidating, retraumatizing prospect of a live hearing. Commenters shared personal examples of being cross-examined during Title IX proceedings and feeling traumatized even with the respondent located in a separate room; one commenter described being crossexamined during a hearing with the perpetrator telling each question to a judge, who then asked the question over Skype if the judge approved the question, and the commenter stated that even with technology separating the commenter from the perpetrator, the commenter was still diagnosed a week later with PTSD (post-traumatic stress disorder). Commenters argued that survivors of sexual violence will still be aware that their attacker is witnessing the proceedings and may feel less safe as a result. At least one commenter argued that accommodating a complainant’s request to testify from a separate room puts the complainant at a disadvantage because, for example, the respondent might be located in the same room as the decision-maker who would thus have a greater opportunity to ‘‘develop a personal connection’’ with the respondent than with the complainant, and advantage the respondent by allowing the respondent to observe the decision-maker’s reactions to testimony while the 1356 Commenters cited: Maryland v. Craig, 497 U.S. 836, 851 (1990) for the proposition that a limited exception to a criminal defendant’s Sixth Amendment right to confront witnesses was approved by the Supreme Court in the context of protecting child sex abuse victims by permitting a child victim to testify via closed circuit television. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 complainant cannot observe those reactions when located in a separate room. At least one commenter argued that remote cross-examination puts survivors at a distinct disadvantage because assessing non-verbal and behavioral evidence of trauma is necessary in sexual violence incidents. At least one commenter argued that witnesses must also be given the right to request to testify in a separate room. One commenter recounted a case in which a witness had also been raped by the respondent but the recipient did not allow the witness to testify in a separate room and the witness had to frequently leave the room during testimony due to sobbing too hard to speak. Commenters opposed requiring testimony in separate rooms on the basis that internet functionality on campus is not always reliable, and thus a rule that depends on technology is not realistic. Commenters supported use of technology to facilitate parties being in separate rooms as ‘‘ideal’’ but expressed concern that the cost of technology that is both reliable and secure could be prohibitive for some recipients because while software enabling simultaneous viewing of parties in separate rooms may be relatively inexpensive, acquiring additional hardware that may be necessary and expensive, such as audiovisual equipment, monitors, and microphones. Commenters stated that some recipients do not currently have technology set up in the spaces used for Title IX proceedings and acquiring the requisite technology would be costly.1357 Commenters asserted that complying with this provision may also require acquisition of, or renovations to, facilities that are not currently used for Title IX purposes by the recipient, or specialized technology that meets the needs of individuals with disabilities, resulting in expenditures that will only be used for the limited purpose of Title IX hearings. Commenters requested that the Department provide grant funding for acquiring technology needed to meet this provision. Other commenters asserted that it is reasonable for separate rooms to be used to ensure complete, comfortable honesty by each party and that numerous low cost, secure presentation videoconferencing technologies are available and already in use by many recipients to ensure that participants can view and hear questions and 1357 At least one commenter cited: ezTalks.com, ‘‘How Much Does Video Conferencing Equipment Cost?,’’ https://www.eztalks.com/video-conference/ video-conference-equipment-cost.html, for the proposition that room-based video conferencing could cost $10,000 to $100,000 to set up. PO 00000 Frm 00331 Fmt 4701 Sfmt 4700 30355 responses in real time.1358 Some commenters stated that while this provision would require some monetary investment in technology the requirement was reasonable and beneficial to allow the parties to participate in a hearing from separate rooms. Discussion: The Department appreciates commenters’ support for the provision in § 106.45(b)(6)(i) that requires recipients, upon any party’s request, to permit cross-examination to occur with the parties in separate rooms using technology that enables participants to see and hear the person answering questions. Commenters correctly asserted that this provision is a direct acknowledgment of the potential for cross-examination to feel intimidating and retraumatizing in sexual harassment cases. Because the decision-maker cannot know until the conclusion of a fair, reliable grievance process whether a complainant is a victim of sexual harassment perpetrated by the respondent, cross-examination is necessary to test party and witness statements for veracity and accuracy, but the Department has determined that the full value of cross-examination can be achieved while shielding the complainant from being in the physical presence of the respondent. The Department disagrees that only inperson, face-to-face confrontation enables parties and decision-makers to adequately evaluate credibility,1359 and declines to remove this shielding provision. As discussed above, assessing demeanor is just one of the ways in which cross-examination tests credibility, which includes assessing plausibility, consistency, and reliability; judging truthfulness based solely on demeanor has been shown to be less accurate than, for instance, evaluating credibility based on consistency.1360 Thus, any minimal reduction in the ability to gauge demeanor by use of technology is outweighed by the 1358 Commenters listed GoTo Meeting, Skype, Skype for Business, Zoom, and Google Hangouts as examples of existing technology platforms. 1359 H. Hunter Bruton, Cross-Examination, College Sexual-Assault Adjudications, and the Opportunity for Tuning up the Greatest Legal Engine Ever Invented, 27 Cornell J. of L. & Pub. Pol’y, 145, 169 (2017) (‘‘For example, studies comparing live-video or videotaped testimony to traditional live-testimony formats show no significant differences across mediums in observers’ ability to detect deception.’’). 1360 E.g., Susan A. Bandes, Remorse, Demeanor, and the Consequences of Misinterpretation: The Limits of Law as a Window into the Soul, Journal of L., Religion & St. 3, 170, 179 (2014); cf. H. Hunter Bruton, Cross-Examination, College Sexual-Assault Adjudications, and the Opportunity for Tuning up the Greatest Legal Engine Ever Invented, 27 Cornell J. L. & Pub. Pol’y, 145, 161 (2017). E:\FR\FM\19MYR2.SGM 19MYR2 30356 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations benefits of shielding victims from testifying in the presence of a perpetrator. The Department disagrees that complainants should have to make a threshold showing that trauma is likely because the Department is persuaded by the many commenters who asserted that facing a perpetrator is inherently traumatic for a victim. Further, the Sixth Amendment’s Confrontation Clause protects criminal defendants, and the Department is not obligated to ensure that this provision would comply with the Confrontation Clause, which does not apply to a respondent in a noncriminal adjudication under Title IX. The Department notes that recipients are obligated under § 106.71 to ‘‘keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness’’ in a Title IX grievance process except as permitted by FERPA, required by law, or as necessary to conduct the hearing or proceeding; this cautions recipients to ensure that technology used to comply with this provision does not result in ‘‘live streaming’’ a party in a manner that exposes the testimony to persons outside those participating in the hearing. The Department understands commenters’ assertions that even with shielding, cross-examination by a respondent’s advisor may still be a daunting prospect. The final regulations provide both parties with the right to be supported and assisted by an advisor of choice, and protect the parties’ ability to discuss the allegations freely, including for the purpose of seeking out emotional support or strategic advice.1361 The final regulations do not preclude a recipient from adopting rules (applied equally to complainants and respondents) that govern the taking of breaks and conferences with advisors during a hearing, to further ameliorate the stress and emotional difficulty of answering questions about sensitive, traumatic events. We have also revised § 106.45(b)(6)(i) to provide that upon a party’s request the entire live hearing (and not only cross-examination) must occur with the parties located in 1361 For further discussion see the ‘‘Section 106.45(b)(5)(iii) Recipients Must Not Restrict Ability of Either Party to Discuss Allegations or Gather and Present Relevant Evidence’’ subsection of the ‘‘Investigation’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 separate rooms. These measures are intended to balance the need for statements to be tested for credibility so that accurate outcomes are reached, with accommodations for the sensitive nature of the underlying matters at issue. The Department disagrees that shielding under § 106.45(b)(6)(i) disadvantages complainants (or respondents) and reiterates that both parties’ meaningful opportunity to advance their own interests in a case may be achieved by party advisors conducting cross-examination virtually. The Department notes that decisionmakers are obligated to serve impartially and thus should not endeavor to ‘‘develop a personal relationship’’ with one party over another regardless of whether one party is located in a separate room or not. For the same reasons that judging credibility solely on demeanor presents risks of inaccuracy generally, the Department cautions that judging credibility based on a complainant’s demeanor through the lens of whether observed demeanor is ‘‘evidence of trauma’’ presents similar risks of inaccuracy.1362 The Department reiterates that while assessing demeanor is one part of judging credibility, other factors are consistency, plausibility, and reliability. Real-time cross-examination presents an opportunity for parties and decision-makers to test and evaluate credibility based on all these factors. The Department declines to grant witnesses the right to demand to testify in a separate room, but revises § 106.45(b)(6)(i) to allow a recipient the discretion to permit any participant to 1362 E.g., Jeffrey J. Nolan, Fair, Equitable TraumaInformed Investigation Training 10 (Holland & Knight updated July 19, 2019) (while counterintuitive behaviors may be driven by trauma-related hormones or memory issues, counterintuitive behavior may also bear on a witness’s credibility, and thus training about whether or how trauma or stress may influence a person’s demeanor should be applied equally to interviewing any party or witness); ‘‘Recommendations of the Post-SB 169 Working Group,’’ 3 (Nov. 14, 2018) (report by a task force convened by former Governor of California Jerry Brown to make recommendations about how California institutions of higher education should address allegations of sexual misconduct) (traumainformed ‘‘approaches have different meanings in different contexts. Trauma-informed training should be provided to investigators so they can avoid re-traumatizing complainants during the investigation. This is distinct from a traumainformed approach to evaluating the testimony of parties or witnesses. The use of trauma-informed approaches to evaluating evidence can lead adjudicators to overlook significant inconsistencies on the part of complainants in a manner that is incompatible with due process protections for the respondent. Investigators and adjudicators should consider and balance noteworthy inconsistencies (rather than ignoring them altogether) and must use approaches to trauma and memory that are well grounded in current scientific findings.’’). PO 00000 Frm 00332 Fmt 4701 Sfmt 4700 appear remotely. Unlike complainants, witnesses usually do not experience the same risk of trauma through crossexamination. Witnesses also are not required to testify and may simply choose not to testify because the determination of responsibility usually does not directly impact, implicate, or affect them. With respect to a witness who claims to also have been sexually assaulted by the respondent, the recipient has discretion to permit the witness to testify remotely, or to hold the entire live hearing virtually. The Department appreciates commenters’ assertions that some recipients already effectively use technology to enable virtual hearings, and other commenters’ concerns that acquiring technology may cause a recipient to incur costs. The Department agrees with some commenters who asserted that even where this provision requires a monetary investment in technology, low-cost technology is available and the importance of this shielding provision outweighs the burden of setting up the requisite technology. Although this shielding provision requires that a Title IX live hearing would be held in two ‘‘separate rooms’’ the Department is not persuaded that such a requirement necessitates any recipient’s capital investment in renovations or acquiring new real property, because the Department is unaware of a recipient whose existing facilities consist of a single room. These final regulations do not address the eligibility or purpose of grant funding for recipients, and the Department thus declines to provide technology grants via these regulations. Changes: We have revised § 106.45(b)(6)(i) to allow recipients, in their discretion, to hold live hearings virtually or for any participant to appear remotely, using technology to enable participants to see and hear each other, and to require a recipient to grant any party’s request for the entire live hearing to be held with the parties located in separate rooms. Discretion To Hold Live Hearings and Control Conduct of Hearings Comments: Many commenters supported the requirement in § 106.45(b)(6)(i) that postsecondary institutions hold live hearings at the conclusion of an investigation of a formal complaint, because a live hearing ensures that the decision-maker hears from the parties and witnesses, which gives both parties an opportunity to present their side of the story to the decision-maker and reduces opportunity for biased decision making. Commenters argued that in the college or university E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations setting, where the participants are usually adults, live hearings provide the most transparent mechanism for ensuring all parties have the opportunity to submit, review, contest, and rebut evidence to be considered by the fact-finder in reaching a determination, and this is critical where both parties’ interests are at stake and potential sanctions are serious.1363 Commenters stated that live hearings are the only method by which deciding parties can accurately assess the veracity of both the complainant’s and respondent’s statements, and where allegations have been tested in a live hearing and the determination finds the respondent to be responsible that outcome is more likely to be reliable and less likely to be overturned on appeal or in litigation. Commenters argued that requiring a live hearing ensures that all parties see the same evidence and testimony as the factfinder, so that each party can fully rebut or buttress that evidence and testimony to serve the party’s own interest. Commenters argued that live hearings also decrease the chance that the bias of a single investigator or fact-finder may warp the process by reaching determinations not by the facts and a desire for a just outcome, but by prejudice, well-intentioned or otherwise. Many commenters opposed the live hearing requirement. Commenters argued that even though the withdrawn 2011 Dear Colleague Letter caused many recipients to overcorrect their sexual misconduct policies by shirking due process responsibilities,1364 commenters asserted that recipients should have the option but not the mandate to provide live hearings to preserve recipients’ flexibility to design a fair process. Commenters argued that live hearings make campus proceedings so much like court proceedings that the benefit of going through an equitable Title IX process instead of formal court trials 1363 Commenters cited: American Bar Association, ABA Criminal Justice Section Task Force on College Due Process Rights and Victim Protections, Recommendations for Colleges and Universities in Resolving Allegations of Campus Sexual Misconduct 3 (2017) (expressing a preference for the ‘‘adjudicatory model,’’ defined as ‘‘a hearing in which both parties are entitled to be present, evidence is presented, and the decisionmaker(s) determine(s) whether a violation of school policy has occurred’’). 1364 Commenters cited: Blair Baker, When Campus Sexual Misconduct Policies Violate Due Process Rights, 26 Cornell J. of L. & Pub. Pol’y 533, 535 (2017) (in response to the 2011 Dear Colleague Letter ‘‘colleges overcorrected their sexual assault policies by adopting policies that shirk the legally mandated due process rights of students accused of misconduct and effectively presume their guilt’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 will be lost.1365 Commenters argued that while hearings and cross-examination may be deeply rooted in the legal system, such procedures are not deeply rooted in school disciplinary processes. Commenters also argued that requiring live hearings is going ‘‘a bridge too far’’ because recipients are not equipped to conduct court-like hearings. Commenters argued that requiring an adversarial, high-stakes live hearing ignores many cultures that rely on the inquisitorial system to achieve justice, under which decision makers are vested with the duty of fact finding instead of pitting the parties against each other to offer competing versions of the truth. Commenters asserted that live hearings add no value to the fact-finding process so long as a full, fair investigation was conducted. Commenters described experiences with particular recipients where the recipient used a live hearing model for a significant period of time but stopped using a live hearing model after experiencing pitfalls that outweighed its usefulness, stating that hearings became a springboard to introduce new evidence and witnesses, embarrassed parties in ways that derailed the hearing, and hearing panels were left needing legal advice on a myriad of issues like evidentiary determinations. Commenters argued that while school employees who are asked to adjudicate are well-intentioned, they lack the legal expertise and immunity available in court proceedings, and an investigative model has been more efficient than a live hearing model, has resulted in fewer contested outcomes, and has led to increased reporting of sexual harassment. Commenters asserted that a live hearing contains no mechanism to act as a check against bias 1366 and that decision-makers are capable of being impartial and reaching unbiased decisions without the parties and witnesses appearing at a live hearing. Likening campus disciplinary proceedings to administrative 1365 Commenters cited: Alexandra Brodsky, A Rising Tide: Learning About Fair Disciplinary Process from Title IX, 77 Journal of Legal Educ. 4 (2017). 1366 Commenters cited: Jessica A. Clarke, Explicit Bias, 113 Northwestern Univ. L. Rev. 505 (2018); Cara A. Person et al., ‘‘I Don’t Know That I’ve Ever Felt Like I Got the Full Story’’: A Qualitative Study of Courtroom Interactions Between Judges and Litigants in Domestic Violence Protective Order Cases, 24 Violence Against Women 12 (2018); Lee Ross, From the Fundamental Attribution Error to the Truly Fundamental Attribution Error and Beyond, 13 Perspectives on Psychol. Science 6 (2018); Margit E. Oswald & Ingrid Stucki, Automatic Judgment and Reasoning About Punishment, 23 Social Science Research 4 (2018); Eve Hannan, Remorse Bias, 83 Missouri L. Rev. 301 (2018). PO 00000 Frm 00333 Fmt 4701 Sfmt 4700 30357 proceedings, commenters argued that courts permit a wide variety of administrative proceedings to utilize less formal procedures and still comport with constitutional due process, for example allowing consideration of hearsay evidence, not requiring a live hearing, and not requiring crossexamination, even when such proceedings implicate liberty and property interests.1367 Commenters asserted that sometimes a witness is a friend of a party and must truthfully share information that damages the witness’s friendship with the party, and that while a witness might be willing to put truth above friendship by privately talking to an investigator, a witness is less likely to do this when it requires testimony at a live hearing in front of the witness’s friend. Commenters argued that the live hearing requirement puts a burden on the parties to pressure or cajole their friends into appearing as witnesses because the recipient has no subpoena power to compel witness participation. Commenters argued that requiring the formal process of a live hearing demonstrates that the proposed regulations value the potential future of respondents more than the safety and well-being of complainants. Commenters asserted that the formalities of a live hearing with crossexamination ‘‘swing the pendulum’’ too far when schools need a refined approach to reach balanced fairness. Commenters asserted that recipients have spent time and resources developing non-hearing adjudication models and should have the flexibility to continue using such models so long as the procedures are fair and equitable. Commenters asserted that requiring live hearings will force recipients to abandon hybrid investigatory models 1367 Commenters cited, e.g., Richardson v. Perales, 402 U.S. 389, 402 (1971) (crossexamination is not an absolute requirement in a Social Security Disability benefits case); Wolff v. McDonnell, 418 U.S. 539, 567–68 (1974) (prison officials may rely on hearsay evidence to add to a prisoner’s sentence); Johnson v. United States, 628 F.2d 187 (D.C. Cir. 1980) (cross-examination not required where professional licensing was at stake); Williams v. U.S. Dep’t. of Transp., 781 F.2d 1573 (11th Cir. 1986) (cross-examination not required for a Coast Guard finding that a pilot negligently operated a boat); Matter of Friedel v. Bd. of Regents, 296 N.Y. 347, 352–353 (N.Y. Ct. App. 1947) (limitation on right to confront investigators in suspension hearing for performing illegal procedures); Delgado v. City of Milwaukee Employees’ Ret. Sys./Annuity and Pension Bd., 268 Wis.2d 845 (Wisc. Ct. App. 2003) (crossexamination is not required at a hearing to revoke a police officer’s duty disability payments); In re J.D.C., 284 Kan. 155, 170 (Kan. 2007) (child welfare officials may depend on hearsay to determine child custody if it is relevant and probative, particularly where the parent waives the right to cross-examine the child). E:\FR\FM\19MYR2.SGM 19MYR2 30358 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations that recipients have carefully developed over the last several years. Commenters argued that where the facts are not contested, or where the respondent has admitted responsibility, or video evidence of the incident in question exists, there is no need to put parties through the ordeal of a live hearing yet the proposed rules would force an institution to hold a live hearing anyway, straining the limited resources of all schools but especially smaller institutions. One commenter argued that if, for example, a respondent video-taped the respondent raping a student and the hearing officer watches the video and hears from the complainant who confirms the incident did happen, and the respondent denies doing it, a live hearing with crossexamination would not be useful in such a scenario. Commenters suggested that this provision be modified to require the parties to attempt mediation, so that a live hearing is required only if mediation fails. Commenters stated that some recipients use an administrative disposition model where a respondent may accept responsibility based on an investigator’s findings and the final regulations should permit the recipient, or the respondent, in that situation to waive the right to a live hearing. Commenters asserted that the final regulations should include a provision allowing the parties to enter into a voluntary resolution agreement (VRA) that includes disciplinary action against the respondent, where the recipient could offer the VRA to both parties in advance of a live hearing, and if the parties accepted the VRA it would become the final outcome, or the parties could reject the VRA and demand a live hearing. Other commenters argued that either party should have the right to waive a live hearing so that a live hearing should only occur if both parties and the recipient agree it is the appropriate method of resolution for a particular case. Commenters argued that the proposed regulations do not allow universities to follow State APAs (Administrative Procedure Acts), for example in Washington State where a student may appeal a responsibility finding made in an investigation to a live hearing, or in New York where New York Education Law Article 129–B (known as ‘‘Enough is Enough’’) allows written submission of questions instead of live crossexamination. Commenters argued that some public universities are already subject to State APAs that impose the kind of live hearings and crossexamination procedures required by these final regulations, and recipients VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 find these procedures to be burdensome, costly, and lengthy. Commenters quoted a Federal district court memorandum from 1968 setting forth guidelines on how that district court should evaluate claims against tax-funded colleges and universities, where the court memorandum stated the nature and procedures of college discipline should not be required to conform to Federal criminal law processes which are ‘‘far from perfect’’ and designed for circumstances unrelated to the academic community.1368 Commenters argued that most Federal courts adopt that approach, acknowledging that student discipline is part of the education process and is not punitive in the criminal sense; rather, expelled students may suffer damaging effects but do not face imprisonment, fines, disenfranchisement, or probation. Commenters asserted that deference to a college or university’s chosen disciplinary system is even more warranted for private institutions that do not owe constitutional due process to students or employees.1369 Many commenters argued that the NPRM gave recipients too little flexibility to determine how hearings should be conducted, and that the final regulations should grant recipients discretion to adopt rules to control the conduct and environment of hearings in a manner that is effective and fair to all parties and witnesses. Some commenters suggested that the final regulations should state more broadly that recipients must offer parties reasonable mitigating measures during a live hearing, of which locating the parties in separate rooms is but one example. Commenters asked for clarification such as: Can recipients limit the hearing to consideration only of evidence previously included in the investigative report? Can recipients impose rules of evidence left unaddressed by the proposed regulations, such as excluding questions that are misleading, assume facts not in evidence, or call for disclosure of attorney-client privileged information, or questions that are 1368 Commenters cited: General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, ED025805 (1968); Esteban v. Cent. Mo. State Coll., 415 F.2d 1077, 1090 (8th Cir. 1969) (‘‘school regulations are not to be measured by the standards which prevail for the criminal law and for criminal procedure.’’). 1369 Commenters cited: William A. Kaplin & Barbara A. Lee, The Law of Higher Education § 10.2.3 (5th ed. 2013) (‘‘Private institutions, not being subject to federal constitutional constraints, have even more latitude than public institutions do in promulgating disciplinary rules.’’). PO 00000 Frm 00334 Fmt 4701 Sfmt 4700 cumulative, repetitive, or abusive? Can recipients impose time limits on hearings so that parties and witnesses do not spend multiple days in a hearing rather than fulfilling their academic or work responsibilities? Can a recipient specify who may raise objections to evidence during the hearing? Commenters asserted that live hearings are administratively timeconsuming and will lengthen the grievance process by requiring both parties and their advisors to be on campus simultaneously, which is impractical and often undesirable. Commenters urged the Department to authorize recipients to hold the entire live hearing virtually, with parties in separate locations, using technology so that each party can see and hear all other parties, because some recipients offer mostly online courses such that parties might reside significant distances from any physical campus, or parties may move or be called to military service after a formal complaint has been filed, or the alleged harassment itself may have occurred entirely online and the parties may not reside close to campus. Commenters asserted that since the proposed rules already allow the parties to be located in separate rooms, there is no reason not to also allow a recipient to hold the entire hearing virtually using technology. At least one commenter asserted that even allowing participation virtually would not make this provision fair because the commenter had a case in which a key witness was studying abroad in a country with a large time zone difference making it impossible for the witness to testify even remotely using technology. Commenters argued that coordinating the schedules of parties, advisors, hearing panels, and witnesses to appear for a live hearing will delay proceedings. Other commenters stated that some rural university systems have satellite campuses in remote locations off the road system, with insufficient internet access even to allow videoconferencing, posing significant barriers to complying with a live hearing requirement. Commenters asserted that all hearings should be recorded and either a transcript or video or audio recording should be provided to each party following the hearing, so the parties have access to it when appealing decisions or possibly for later use in litigation, because too many Title IX proceedings have occurred in secret, behind closed doors, with no record of the proceedings. According to this commenter, universities typically forbid parties from recording hearings and not having such a record can allow a E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations grievance board’s illegal bias against a party to fester and remain unchecked by the university, regulatory agencies, or the courts. One commenter asserted that hearings should be closed and attended only by the parties, their advisors, witnesses, and school officials relevant to the hearing, and requested that confidentiality of the hearing be written into the final regulations. Discussion: The Department appreciates commenters’ support for this provision, requiring postsecondary institutions to hold live hearings. The Department agrees that a live hearing gives both parties the most meaningful, transparent opportunity to present their views of the case to the decision-maker, reducing the likelihood of biased decisions, improving the accuracy of outcomes, and increasing party and public confidence in the fairness and reliability of outcomes of Title IX adjudications. The Department agrees with commenters that hearings and crossexamination of witnesses are deeply rooted concepts in American legal systems, but disagrees that the principles underlying those procedures should be absent from postsecondary institutions’ adjudications under Title IX. Administrative law ‘‘seeks to ensure that those whose rights are affected by the decisions of administrative tribunals are given notice of hearings, guaranteed an oral, often public hearing, have a right to be represented, are granted disclosure of the case against them, are able to introduce evidence, call witnesses and cross-examine those testifying against them, have access to reason for decision, and an opportunity to appeal an adverse outcome. . . . The process assumes the value of an adversarial hearing in which impartial adjudicators are exposed to representations from those asserting a claim and those seeking a contrary finding.’’ 1370 Furthermore, while not all recipients use a hearing model in student misconduct matters, many do or have in the recent past.1371 1370 Farzana Kara & David MacAlister, Responding to academic dishonesty in universities: a restorative justice approach, 13 Contemporary Justice Rev. 4, 443–44 (2010) (internal citations omitted). 1371 See Tamara Rice Lave, Ready, Fire, Aim: How Universities Are Failing The Constitution In Sexual Assault Cases, 48 Ariz. State L. J. 637, 656 (2016) (in a survey of 50 American universities, 84 percent reported that they use an adjudicatory model with a hearing at which witnesses testify in front of a fact-finder); Vivian Berger, Academic Discipline: A Guide to Fair Process for the University Student, 99 Columbia L. Rev. 289 (1999) (authors surveyed 200 public and private colleges and universities, and 90 percent of public institutions and 80 percent of VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 The Department agrees that postsecondary institutions are not equipped to act as courts of law. The final regulations acknowledge this reality by prescribing a grievance process that intentionally avoids importation of comprehensive rules of procedure (including discovery procedures) and rules of evidence that govern civil or criminal court trials. Instead, the § 106.45 grievance process requires procedures rooted in fundamental concepts of due process and fairness that layperson recipient officials are capable of applying without professional legal training. The Department disagrees that live hearings transform Title IX adjudications into court proceedings; the advantages to reaching determinations about sex discrimination in the form of sexual harassment without going through a civil or criminal trial remain distinct under the final regulations. The Department disagrees that live hearings add no value to the fairness or accuracy of outcomes even where an investigation was full and fair. Despite some commenters’ contention that recipients prefer moving to an investigative model rather than a hearing model, the Department believes that an adversarial adjudication model better serves the interests of fairness, accuracy, and legitimacy that underlie the § 106.45 grievance process. The adversarial system ‘‘stands with freedom of speech and the right of assembly as a pillar of our constitutional system.’’ 1372 Just as the final regulations reflect acute awareness of the importance of freedom of speech and academic freedom, these regulations are equally concerned with reflecting the importance of the adversarial model with respect to adjudications of contested facts. ‘‘Rights like trial by jury and the assistance of counsel—the cluster of rights that comprise constitutional due process of law—are most important when the individual stands alone against the state as an accused criminal. The fundamental characteristics of the adversary system also have a constitutional source, however, in our administration of civil justice’’ to redress grievances, resolve conflicts, and vindicate rights.1373 ‘‘The private institutions reported using adjudicatory hearings with cross-examination rights). 1372 Geoffrey C. Hazard, Jr., Ethics in the Practice of Law 122–23 (Yale Univ. Press 1978). 1373 Monroe H. Freedman, Our Constitutionalized Adversary System, 1 Chapman L. Rev. 57, 66–67 (1998) (‘‘In fact, the adversary system in civil litigation has played a central role in fulfilling the constitutional goals ‘to . . . establish Justice, insure domestic Tranquility, . . . promote the general Welfare, and secure the Blessings of Liberty. . . .’ ’’) (quoting U.S. Const. Preamble). PO 00000 Frm 00335 Fmt 4701 Sfmt 4700 30359 Supreme Court has held that the Due Process Clauses protect civil litigants who seek recourse in the courts, either as plaintiffs attempting to redress grievances or as defendants trying to maintain their rights.’’ 1374 The final regulations recognize the importance of due process principles in a noncriminal context by focusing on procedures that apply equally to complainants and respondents and give both parties equal opportunity to actively pursue the case outcome they desire. In addition to representing core constitutional values, an adversarial system yields practical benefits. ‘‘[T]he available evidence suggests that the adversary system is the method of dispute resolution that is most effective in determining truth’’ and that ‘‘gives the parties the greatest sense of having received justice.’’ 1375 ‘‘An adversary presentation seems the only effective means for combating this natural human tendency to judge too swiftly in terms of the familiar that which is not yet fully known.’’ 1376 With respect to ‘‘the idea of individual autonomy—that each of us should have the greatest possible involvement in, if not control over, those decisions that affect our lives in significant ways [—] . . . empirical studies that have been done suggest, again, a preference for the adversary system over the inquisitorial.’’ 1377 1374 Id. at 67. at 73–74; David L. Kirn, Proceduralism and Bureaucracy: Due Process in the School Setting, 28 Stanford L. Rev. 841, 847–49 (1976) (‘‘In the classic due process hearing, the disputants themselves, not the decisionmaker, largely determine what evidence bearing on the issue is to be introduced. The veracity of that evidence is tested through questioning of witnesses, a procedure structured to uncover both lapses of memory and falsehoods, conducted by an advocate skilled in this enterprise. During the course of the hearing, the decisionmaker acts only to contain the colloquy within the bounds of the actual dispute. He is a disinterested and impartial arbiter, constrained to reach a judgment based exclusively on facts presented at the hearing, with respect to which there has been opportunity for rebuttal. His decision is a reasoned one that explicitly resolves disagreements concerning facts and relates a determination in the case before him to the governing rule. Subject to the availability of appeal, that decision is dispositive of the matter. These several elements of the ideal due process hearing are intended primarily to assure that factual determinations have been reliably made, and hence to promote the societal interest in just outcomes.’’); id. (‘‘Reliability, valued by society, is not the only end held to be promoted by due process. The participants to the dispute are themselves seen as better off. . . . Participation also assures that the individual is not being treated as a passive creature, but rather as a person whose dignitary rights include an interest in influencing what happens to his life. Personal involvement, it is argued, promotes fairness in individual perception as well as fairness in fact.’’). 1376 Monroe H. Freedman, Our Constitutionalized Adversary System, 1 Chapman L. Rev. 57, 76 (1998). 1377 Id. at 87. 1375 Id. E:\FR\FM\19MYR2.SGM 19MYR2 30360 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Studies conducted to determine ‘‘whether a litigant’s acceptance of the fairness of the actual decision is affected by the litigation system used’’ have concluded that ‘‘the perception of the fairness of an adversary procedure carries over to create a more favorable reaction to the verdict . . . regardless of the outcome.’’ 1378 As to commenters’ contention that moving to an investigatory rather than hearing model resulted in increased reporting of sexual harassment, the Department emphasizes that the final regulations ensure that every complainant may report and receive supportive measures without undergoing an investigation or adjudication.1379 The Department does not dispute that other countries rely on an inquisitorial rather than adversarial model of adjudication, but Title IX is a Federal civil rights statute representing the American value placed on education programs and activities free from sex discrimination, and Title IX must be applied and interpreted in accordance with American law rather than laws and systems that prevail elsewhere.1380 While commenters cited research studies calling into doubt the truthseeking effectiveness of the adversarial process and calling for reforms including moving toward inquisitorial models, the adversarial system remains deeply embedded in the U.S. Constitution and in American legal systems and civic values, and ‘‘the research that has been done provides no justification for preferring the inquisitorial search for truth or for undertaking radical changes in our adversary system.’’ 1381 1378 Id. at 89 (internal quotation marks and citations omitted). 1379 Section 106.44(a). 1380 Monroe H. Freedman, Our Constitutionalized Adversary System, 1 Chapman L. Rev. 57, 74 (1998) (observing that sophisticated critics of the adversarial system of criminal and civil litigation ‘‘have turned to the inquisitorial systems of continental European democracies for an alternative to the adversary system. The central characteristic of the inquisitorial model is the active role of the judge, who is given the principal responsibility for searching out the relevant facts. In an adversary system the evidence is presented in dialectical form by opposing lawyers; in an inquisitorial system the evidence is developed in a predominantly unilateral fashion by the judge, and the lawyers’ role is minimal.’’) (internal citation omitted). 1381 Id. at 80; Crawford v. Washington, 541 U.S. 36, 43–44 (2004). Although decided under the Sixth Amendment’s Confrontation Clause which only applies to criminal trials, the Supreme Court analyzed the history of American legal systems’ insistence that adversarial procedures rooted in English common law (as opposed to inquisitorial procedures utilized by civil law countries in Europe) represented fundamental notions of due process of law, and American founders deliberately rejected devices that English common law borrowed from civil law. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 The Department appreciates commenters’ concerns that based on experience holding hearings, a hearing model was abandoned by particular recipients in favor of an investigatory model, but the Department disagrees that properly conducted hearings will become a springboard to introduce new evidence, derail hearings by embarrassing the parties, or require hearing panels to seek out extensive legal advice. The Department reiterates that recipients may adopt rules to govern a Title IX grievance process in addition to those required under § 106.45, so long as such rules apply equally to both parties.1382 Thus, recipients may decide whether or how to place limits on evidence introduced at a hearing that was not gathered and presented prior to the hearing, and rules controlling the conduct of participants to ensure that questioning is done in a respectful manner. The Department reiterates that the procedures in § 106.45 have been selected with awareness that decision-makers in Title IX grievance processes need not be judges or lawyers, and the Department believes that each provision of these final regulations may be complied with and applied by layperson recipient officials. The Department does not dispute that decision-makers are capable of being impartial and unbiased without the parties appearing at a live hearing, and the final regulations expect that decision-makers will serve impartially without bias. However, adversarial procedures make it even less likely that any bias held by a decision-maker will prevail because the parties’ own views about the evidence are presented to the decision-maker, and the decision-maker observes the parties as individuals which makes it more difficult to apply even unconsciously-held stereotypes or generalizations about groups of people. The Department agrees that a variety of administrative agency proceedings have been declared by courts to comport with constitutional due process utilizing procedures less formal than those that apply in criminal or even civil courts. The Department believes that the procedures embodied in the § 106.45 grievance process meet or exceed constitutional due process of law, while being adapted for application with respect to an education program or 1382 The introductory sentence of revised § 106.45(b) provides: ‘‘For the purpose of addressing formal complaints of sexual harassment, a recipient’s grievance process must comply with the requirements of this section. Any provisions, rules, or practices other than those required by this section that a recipient adopts as part of its grievance process for handling formal complaints of sexual harassment as defined in § 106.30, must apply equally to both parties.’’ PO 00000 Frm 00336 Fmt 4701 Sfmt 4700 activity, and do not mirror civil or criminal trials. The Department realizes that witnesses with information relevant to sexual harassment allegations that involve the witness’s friends or costudents may feel disinclined to provide information during an investigation, and perhaps more so at a live hearing. However, the importance of both parties’ opportunity to present and challenge evidence—particularly witness statements—requires that a witness make statements in front of the decision-maker, with both parties’ advisors able to cross-examine. This does not permit parties to coerce witnesses into appearing at a hearing. No person should coerce or intimidate any witness into participating in a Title IX proceeding, and § 106.71(a) protects every individual’s right not to participate free from retaliation. The final regulations, and the live hearing requirement in particular, benefit complainants and respondents equally by granting both parties the same rights and specifying the same consequences for lack of participation. The safety of complainants can be addressed in numerous ways consistent with these final regulations, including holding the hearing virtually, having the parties in separate rooms, imposing nocontact orders on the parties, and allowing advisors of choice to accompany parties to the hearing. For the reasons described above, the Department believes that the final regulations balance the pendulum rather than swing the pendulum too far, in terms of balancing the rights of both parties in a contested sexual harassment situation to pursue their respective desires regarding the case outcome. The Department believes that the time and resources recipients have spent over the past several years developing nonhearing adjudication models can largely be applied to a recipient’s obligations under these final regulations. For example, recipients who have developed thorough and fair investigative processes may continue to conduct such investigations. The benefits of a full, fair investigation will continue to be an important part of the § 106.45 grievance process. Even though postsecondary institutions will reach actual determinations regarding responsibility after holding a live hearing, the time and resources dedicated to developing recipients’ current systems will largely carry over into compliance with the final regulations. Where the facts alleged in a formal complaint are not contested, or where the respondent has admitted, or wishes E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations to admit responsibility, or where both parties want to resolve the case without a completed investigation or adjudication, § 106.45(b)(9) allows a recipient to facilitate an informal resolution of the formal complaint that does not necessitate a full investigation or adjudication.1383 As noted above, even if no party appears for the live hearing such that no party’s statements can be relied on by the decision-maker, it is still possible to reach a determination regarding responsibility where non-statement evidence has been gathered and presented to the decisionmaker. Commenters’ descriptions of an administrative disposition model, or a proposed voluntary resolution agreement, are permissible under the final regulations if applied as part of an informal resolution process in conformity with § 106.45(b)(9), which requires both parties’ written, voluntary consent to the informal process. The Department declines to authorize one or both parties, or the recipient, simply to ‘‘waive’’ a live hearing, and § 106.45(b)(9) in the final regulations impresses upon recipients that a recipient cannot condition enrollment, employment, or any other right on the waiver of rights under § 106.45, nor may a recipient ever require parties to participate in an informal resolution process. Participating in mediation, which is a form of informal resolution, should remain a decision for each party, individually, to make in a particular case, and the Department will not require the parties to attempt mediation. The Department appreciates commenters’ concerns that State APAs may prescribe grievance procedures that differ from those in a § 106.45 grievance process. To the extent that a recipient is able to comply with both, it must do so, and if compliance with both is not possible these final regulations, which constitute Federal law, preempt conflicting State law.1384 The Department cautions, however, that preemption may not be necessary where, for example, a State law requires fewer procedures than do these final regulations, such that a recipient complying with § 106.45 is not violating State law but rather providing more or greater procedures than State law requires. To the extent that recipients find hearings under State APAs to be burdensome, the Department contends 1383 Section 106.45(b)(9) does not permit recipients to offer or facilitate informal resolution of allegations that an employee sexually harassed a student. 1384 For further discussion see the ‘‘Section 106.6(h) Preemptive Effect’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 that the value of hearings outweighs such burdens, a policy judgment ostensibly shared by State legislatures that already require recipients to hold hearings. The Department generally does not disagree with the general propositions set forth in the Federal district court memorandum cited by commenters to explain that college discipline differs from Federal criminal processes.1385 The Department observes that the memorandum notes that ‘‘Only where erroneous and unwise actions in the field of education deprive students of federally protected rights or privileges does a federal court have power to intervene in the educational process.’’ 1386 These final regulations precisely protect the rights and privileges owed to every person participating in an education program or activity under Title IX, a Federal civil rights law. In so doing, these final regulations reflect that a Title IX grievance process is not a criminal proceeding and defer to all recipients (public and private institutions) to make their own decisions within a consistent, predictable framework. In response to commenters’ concerns that the NPRM was unclear about the extent of recipients’ discretion to adopt rules and practices to govern the conduct of hearings (and other aspects of a grievance process) the Department has added to the introductory sentence of § 106.45(b): ‘‘Any provisions, rules, or practices other than those required by § 106.45 that a recipient adopts as part of its grievance process for handling formal complaints of sexual harassment as defined in § 106.30, must apply equally to both parties.’’ Under this provision a recipient may, for instance, adopt rules that instruct party advisors to conduct questioning in a respectful, non-abusive manner, decide whether the parties may offer opening or closing statements, specify a process for making objections to the relevance of questions and evidence, place reasonable time limitations on a hearing, and so forth. The Department declines to require recipients to offer ‘‘mitigating measures’’ during hearings in addition to the shielding provision in § 106.45(b)(6)(i) that requires a recipient to allow parties to participate in the live hearing in separate rooms upon any party’s request. Similarly, recipients may adopt evidentiary rules (that also must apply equally to both parties), but 1385 General Order on Judicial Standards of Procedure and Substance in Review of Student Discipline in Tax Supported Institutions of Higher Education, ED025805 (1968). 1386 Id. PO 00000 Frm 00337 Fmt 4701 Sfmt 4700 30361 any such rules must comport with all provisions in § 106.45, such as the obligation to summarize all relevant evidence in an investigative report, the obligation to evaluate all relevant evidence both inculpatory and exculpatory, the right of parties to gather and present evidence including fact and expert witnesses, the right to pose relevant cross-examination questions, and the rape shield provisions that deem sexual behavior evidence irrelevant subject to two exceptions. Thus, a recipient’s additional evidentiary rules may not, for example, exclude relevant crossexamination questions even if the recipient believes the questions assume facts not in evidence or are misleading. In response to commenters’ concerns that relevant questions might implicate information protected by attorney-client privilege, the final regulations add § 106.45(b)(1)(x) to bar the grievance process from requiring, allowing, relying on, or otherwise using questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege. This bar on information protected under a legally recognized privilege applies at all stages of the § 106.45 grievance process, including but not limited to the investigator’s gathering of evidence, inspection and review of evidence, investigative report, and the hearing. This protection of privileged information also applies to a privilege held by a recipient. Additionally, questions that are duplicative or repetitive may fairly be deemed not relevant and thus excluded. In response to commenters’ concerns that holding live hearings is administratively time-consuming and presents challenges coordinating the schedules of all participants, the Department has revised this provision to allow a recipient discretion to conduct hearings virtually, facilitated by technology so participants simultaneously see and hear each other. The Department appreciates the concerns of commenters that some recipients operate programs or activities that are difficult to access via road systems and are in remote locations where technology is not accessible or reliable. The final regulations permit a recipient to apply temporary delays or limited extensions of time frames to all phases of a grievance process where good cause exists. For example, the need for parties, witnesses, and other hearing participants to secure transportation, or for the recipient to troubleshoot technology to facilitate a E:\FR\FM\19MYR2.SGM 19MYR2 30362 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations virtual hearing, may constitute good cause to postpone a hearing. The Department is persuaded by commenters’ suggestions that all hearings should be recorded or transcribed, and has revised § 106.45(b)(6)(i) to require recipients to create an audio or audiovisual recording, or transcript, of any live hearing and make that recording or transcript available to the parties for inspection and review. As the commenters asserted, such a recording or transcript will help any party who wishes to file an appeal pursuant to § 106.45(b)(8) and also will reinforce the requirement that a decision-maker not have a bias for or against complainants or respondents generally or an individual complainant or respondent as set forth in § 106.45(b)(1)(iii). The Department appreciates the opportunity to clarify here that hearings under § 106.45(b)(6) are not ‘‘public’’ hearings, and § 106.71(a) states that recipients must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as required by law, or as necessary to conduct the hearing. Changes: The Department has revised § 106.45(b)(6)(i) to add language authorizing recipients to conduct live hearings virtually, specifically providing that live hearings pursuant to this subsection may be conducted with all parties physically present in the same geographic location, or at the recipient’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other. We have also revised this provision so that upon a party’s request the parties must be in separate rooms for the live hearing, and not only for crossexamination. We have also revised § 106.45(b)(6)(i) to add a requirement that recipients create an audio or audiovisual recording, or transcript, of any live hearing held and make the recording or transcript available to the parties for inspection and review. Additionally, we have revised the introductory sentence of § 106.45(b) to provide that any provisions, rules, or practices other than those required by § 106.45 that a recipient adopts as part of its grievance process for handling VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 formal complaints of sexual harassment as defined in § 106.30, must apply equally to both parties. We have revised § 106.45(b)(9) to provide that a recipient may not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to an investigation and adjudication of formal complaints of sexual harassment consistent with § 106.45. We have also added § 106.71 prohibiting retaliation and stating that recipients must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including these final regulations. Finally, we have added § 106.45(b)(1)(x) to bar the grievance process from requiring, allowing, relying on, or otherwise using questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege. Section 106.45(b)(6)(ii) Elementary and Secondary School Recipients May Require Hearing and Must Have Opportunity To Submit Written Questions Comments: Many commenters supported § 106.45(b)(6)(ii), making hearings optional for elementary and secondary schools and prescribing a right for parties to submit written questions to other parties and witnesses prior to a determination regarding responsibility whether a hearing is held or not. Commenters asserted that high school students deserve due process protections as much as college students, and believed that this provision provides adequate due process in elementary and secondary schools while taking into account that students in elementary and secondary schools are usually under the age of majority. Other commenters recounted personal experiences with family members being accused of sexual misconduct as high school students and argued that the required live hearings with crossexamination in § 106.45(b)(6)(ii) should also apply in high schools. Some commenters asserted that this provision should be modified to require PO 00000 Frm 00338 Fmt 4701 Sfmt 4700 live hearings and cross-examination in elementary and secondary schools, but only for peer-on-peer sexual harassment allegations; commenters argued that this level of due process was more consistent with Goss and Mathews 1387 and where the allegations involve peers, the parties are on equal footing such that a hearing will effectively reduce risk of erroneous outcomes. Commenters requested that this provision be modified to expressly state that live hearings are not required in elementary and secondary schools, instead of the phrasing that the grievance process ‘‘may require a live hearing.’’ Commenters called the written question process in this provision appropriately fair, flexible, and traumainformed, and consistent with recommendations in the withdrawn 2011 Dear Colleague Letter. Commenters asserted that this provision, more so than § 106.45(b)(6)(i), balances the potential benefits of cross-examination with the drawbacks of a live hearing, including the chilling effect on complainants, the significant cost to recipients, and the potential for errors and poor spur-of-the-moment judgment calls in a setting with critically high stakes. Many commenters approved of this provision and urged the Department to make it apply also to postsecondary institutions in replacement of § 106.45(b)(6)(i) under which live hearings and cross-examination are required. Some commenters opposed this provision, asserting that even a written form of cross-examination exposes elementary and secondary school students to unnecessarily hostile proceedings and limits the discretion of local educators who are more knowledgeable about their students and school communities, obligating schools to expend valuable resources in an unwarranted manner. Commenters argued that this provision would allow five year old students (or their parents or advisors) to face off against other five year old students about the veracity of allegations with written questions and responses being exchanged. Commenters argued this is inappropriate because it does not take into account how to obtain information from young children or students with disabilities, creates an air of intimidation and potential revictimization, allows confidential information to be shared with ‘‘countless individuals’’ whereas an 1387 Commenters cited: Goss v. Lopez, 419 U.S. 565 (1975); Mathews v. Eldridge, 419 U.S. 565 (1975). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations appeal could address concerns about the investigation without sharing FERPAprotected information, and formal discipline proceedings involving potential exclusion of a public school student are already subject to State laws giving sufficient due process protections to an accused student. Commenters argued that in elementary and secondary schools, a formal investigation process is not always needed or advisable because often State law may require school interventions prior to when exclusionary discipline is considered. Commenters argued that this provision perpetuates America’s patriarchal culture that already does not believe survivors, because this provision allows survivors to be questioned when we do not question someone who goes to the police and says they were robbed or someone who reports being hit by a car, so questioning sexual assault victims just gives perpetrators a chance to terrorize the victim again and fails to convey to the victim respect, belief, or justice. Commenters asserted that this provision essentially provides the nonhearing equivalent of cross-examination via the written submission of questions, but argued this will be difficult for elementary and secondary school officials to implement without significant legal guidance because the purpose of cross-examination is to judge credibility and officials will not know how to accomplish that purpose. Commenters argued it is unclear how many back-and-forth follow-up questions need to be allowed in this ‘‘quasi-cross examination process’’ and asserted that this process will result in even greater hesitation among classmates to offer information about the parties involved, because peer pressure looks different among susceptible children and adolescents than with college-age students and already works against ‘‘tattling’’ or ‘‘ratting’’ on fellow students. Commenters expressed concern that the written ‘‘cross-examination’’ procedure will delay the ability of schools to timely respond to sexual harassment complaints, that this procedure is not already in use by schools, and that a cycle of written questions at the end of already overly formal, prescribed procedures will only serve to extend the time frame for completing investigations impairing an elementary and secondary school recipient’s ability to effectuate meaningful change to student behavior if the behavior is found to be misconduct. Commenters opposed this provision and urged the Department to remove the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 option for live hearings, because even permitting elementary and secondary schools the discretion to hold live hearings adds the possibility of a new layer to the investigative process that could subject a young student to crossexamination, which would intimidate and retraumatize victims.1388 Commenters argued that research has consistently shown the extreme importance of handling investigations and interviews properly when dealing with childhood sexual abuse situations, that subjecting child victims of sexual abuse to multiple interviews is retraumatizing and that the interview process should be conducted with an interdisciplinary team and trained mental health professionals utilizing trauma-informed practices, yet § 106.45(b)(6)(ii) would allow school administrators to ignore all of these best practices that are in the interest of protecting young victims,1389 subjecting abused children to secondary victimization.1390 Commenters argued that the Supreme Court has held, even in the criminal law context, that a State’s interest in protecting child abuse victims outweighs an accused’s constitutional right to face-to-face confrontation of witnesses.1391 Commenters argued that child sexual abuse is far too common an experience among America’s schoolchildren, and teachers, counselors, and principals have no training in, and are not, forensic interviewers, criminal investigators, judges, or evidence technicians, and thus no school district should even be allowed to choose a live hearing model for sexual misconduct allegations. Commenters stated that live hearings place a sharp spotlight on both parties, and students in elementary and secondary schools typically lack the 1388 Commenters cited the Zydervelt 2016 study discussed in the ‘‘Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live Hearings with Cross-Examination’’ subsection of the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, for the proposition that cross-examination often relies on victim-blaming attitudes, sex stereotypes, and rape myths. 1389 Commenters cited: Monit Cheung & Needha McNeil Boutte´-Queen, Assessing the Relative Importance of the Child Sexual Abuse Interview Protocol Items to Assist Child Victims in Abuse Disclosure, 25 Journal of Family Violence 11 (2010); John F. Tedesco & Steven V. Schnell, Children’s Reactions to Sex Abuse Investigation and Litigation, 11 Child Abuse & Neglect 2 (1987); Joseph H. Beitchman et al., A Review of the Long-term Effects of Child Sexual Abuse, 16 Child Abuse & Neglect 1 (1992). 1390 Commenters cited: Janet Leach Richards, Protecting Child Witnesses in Abuse Cases, 34 Family L. Quarterly 393 (2000). 1391 Commenters cited: Maryland v. Craig, 497 U.S. 836 (1990). PO 00000 Frm 00339 Fmt 4701 Sfmt 4700 30363 maturity necessary to participate. Commenters argued that live hearings should not even be optional in elementary and secondary schools because it is difficult to imagine any positive effects of a respondent’s attorney cross-examining a sixth grader alleging sexual harassment at school or a complainant’s attorney crossexamining the alleged perpetrator. Commenters argued that live hearings should only be allowed for elementary and secondary schools if otherwise required under State law. Commenters stated that if live hearings are even an option, school districts will be inundated with requests to hold adversarial live hearings. Commenters asked for clarity as to which circumstances require an elementary and secondary school recipient to hold a live hearing, who would preside over a hearing, whether the hearing would need to be held on school grounds, and what responsibility the school district would have to mitigate re-traumatization, or whether if a school district opts to hold live hearings all the provisions in § 106.45(b)(6)(i) would then apply. Commenters inquired whether a vocational school that is neither an elementary or secondary school, nor an institution of higher education, would have to follow § 106.45(b)(6)(i), § 106.45(b)(6)(ii), or some other process for Title IX adjudications. Commenters suggested that this provision be modified to state that a minor has the right for a parent to help the minor student pose questions and answer questions but that the parent (or advisor) is not allowed to write the questions or answers without input from the minor student; commenters reasoned that it would be unfair if a respondent was an adult capable of strategically posing questions while a minor complainant lacked the developmental ability to do the same. Other commenters argued that written submission of questions by the parties should never be allowed in the elementary and secondary school context because the procedure is likely to devolve into a fight between the parents of the complainant and parents of the respondent, further traumatizing both children involved. Discussion: The Department appreciates commenters’ support for § 106.45(b)(6)(ii) making hearings optional for elementary and secondary schools while providing opportunity for the parties to submit written questions and follow-up questions to other parties and witnesses with or without a hearing. The Department agrees that this provision ensures due process E:\FR\FM\19MYR2.SGM 19MYR2 30364 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations protections and fairness while taking into account that students in elementary and secondary schools are usually under the age of majority. Thus, the Department declines to mandate hearings and cross-examination for elementary and secondary schools, including only as applied to allegations of peer-on-peer harassment, or to high schools. Even where the parties are in a peer age group, parties in elementary and secondary schools generally are not adults with the developmental ability and legal right to pursue their own interests on par with adults. The Department is persuaded by commenters’ concerns that the language in this provision should state even more clearly that hearings are optional and not required, and has revised this provision to state that ‘‘the recipient’s grievance process may, but need not, provide for a hearing.’’ For the reasons explained in the ‘‘Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live Hearing with CrossExamination’’ subsection of the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, the Department declines to make § 106.45(b)(6)(ii) applicable to postsecondary institutions. The Department disagrees that the written submission of questions procedure in this provision exposes students to hostile proceedings, unnecessarily limits the discretion of local school officials, or obligates school districts to expend resources in an unwarranted manner. While due process of law is a flexible concept, at a minimum it requires notice and a meaningful opportunity to be heard, and the Department has determined that with respect to sexual harassment allegations under Title IX, both parties deserve procedural protections that translate those due process principles into meaningful rights for parties and increase the likelihood of reliable outcomes. This provision prescribes written submission of questions prior to adjudication, a procedure that benefits the truth-seeking purpose of the process even when the rights of a young student are exercised by a parent or legal guardian. The final regulations do not preclude a recipient from providing training to an investigator concerning effective interview techniques applicable to children or to individuals with disabilities. Even when a party’s rights are being exercised by a parent, each party’s interest in the case is best advanced when the parties have the right to review and present evidence; the Department disagrees that the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 § 106.45 grievance process results in confidential information being shared with ‘‘countless individuals’’ or in violation of FERPA.1392 Section 106.71 directs recipients to keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including these final regulations. The Department appreciates commenters’ concerns that State laws already govern disciplinary proceedings, especially with respect to exclusionary discipline. The Department has determined that the procedural protections in § 106.45 best serve the interests implicated in resolution of allegations of sexual harassment under Title IX, a Federal civil rights law, and discipline for nonTitle IX matters does not fall under the purview of these final regulations. To the extent that these final regulations provide the same protections as State laws governing student discipline already provide, these final regulations pose no challenge for recipients; to the extent that a recipient cannot comply with both State law and these final regulations, these final regulations, as Federal law, would control.1393 The Department disputes a commenter’s contention that only sexual assault survivors are ‘‘questioned’’ when they report being assaulted; contrary to the commenter’s assertion, robbery victims and hit-andrun victims are also ‘‘questioned’’ during criminal or civil proceedings. Similarly, students accused of cheating also are often questioned. Whether or not commenters accurately describe American culture as ‘‘patriarchal,’’ the Department believes that these final regulations further the sex-equality mandate of Title IX by ensuring fair, accurate determinations regarding responsibility where sexual harassment is alleged under Title IX, so that sexual harassment victims receive remedies 1392 For further discussion see the ‘‘Section 106.6(e) FERPA’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. 1393 For further discussion see the ‘‘Section 106.6(h) Preemptive Effect’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. PO 00000 Frm 00340 Fmt 4701 Sfmt 4700 from recipients to promote equal educational access. The Department disagrees that this provision will require significant legal guidance for school officials to comply. The provision gives each party the opportunity to submit written questions to be asked of other parties and witnesses, including limited follow-up questions. The decision-maker then objectively evaluates the answers to such questions, and any other relevant evidence gathered and presented during the investigation and reaches a determination regarding responsibility. Although observing demeanor is not possible without live cross-examination, a decision-maker may still judge credibility based on, for example, factors of plausibility and consistency in party and witness statements. Specialized legal training is not a prerequisite for evaluating credibility, as evidenced by the fact that many criminal and civil court trials rely on jurors (for whom no legal training is required) to determine the facts of the case including the credibility of witnesses. This provision requires ‘‘limited follow-up questions’’ and leaves recipients discretion to set reasonable limits in that regard. The Department understands commenters’ concerns that witnesses face peer pressure in many sexual harassment situations, and that stating factual information may be viewed as ‘‘tattling’’ or ‘‘ratting out’’ friends or fellow students which may be very uncomfortable for witnesses. Nothing in these final regulations purports to authorize recipients to compel witness participation in a grievance process, and § 106.71(a) protects every individual from retaliation for participating or refusing to participate in a Title IX proceeding. The Department understands commenters’ concerns that the written submission of questions procedure in § 106.45(b)(6)(ii) may be a new procedure in elementary and secondary schools, and the concern that such a procedure may create a ‘‘cycle’’ that extends the time frame for concluding a grievance process. To clarify that the written submission of questions procedure need not delay conclusion of the grievance process, we have revised § 106.45(b)(6)(ii) to state that the opportunity for each party to submit written questions to other parties and witnesses must take place after the parties are sent the investigative report, and before the determination regarding responsibility is reached. Because § 106.45(b)(5)(vii) gives the parties ten E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations days 1394 to submit a response to the investigative report, this revision to § 106.45(b)(6)(ii) makes it clear that the written submission of questions procedure may overlap with that tenday period, so that the written questions procedure need not extend the time frame of the grievance process. In order to leave school districts as much flexibility as possible while creating a consistent, predictable grievance process framework, the Department declines to foreclose the option of holding hearings (whether ‘‘live’’ or otherwise) in elementary and secondary schools. Local school officials, for example, could determine that their educational community is best served by holding live hearings for high school students, for students above a certain age, or not at all.1395 State law may prescribe hearings for school discipline matters, in which case by leaving hearings optional these final regulations makes a conflict with State laws less likely. Further, the final regulations clarify that this provision applies not only to elementary and secondary schools but also to any other recipient that is not a postsecondary institution, and the nature of such a recipient’s operations may lead such a recipient to desire a hearing model for adjudications. For these reasons the final regulations leave hearings optional regardless of whether State law requires hearings. The Department understands commenters’ concerns that if hearings are an option, school districts may become ‘‘inundated’’ with requests to hold hearings. The Department reiterates that this provision does not require elementary or secondary schools to use hearings (live or otherwise) to adjudicate formal complaints under 1394 As noted in the ‘‘Other Language/ Terminology Comments’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, the final regulations allow recipients to choose how to calculate ‘‘days’’ as used in these final regulations; a recipient may, for instance, calculate a ten-day period by calendar days, school days, business days, or other method. 1395 The Department notes that this provision states that non-postsecondary institution recipients’ grievance processes may, but need not, provide for a hearing. Therefore, the recipient has flexibility to make a hearing available on a case by case basis, for example where the Title IX Coordinator determines a hearing is needed, so long as the grievance process (of which the recipient’s students and employees receive notice, pursuant to § 106.8) clearly identifies the circumstances under which a hearing may, or may not, be held. A recipient’s discretion in this regard is limited by the introductory sentence in § 106.45(b) that any rules adopted by a recipient must apply equally to both parties. Thus, a recipient’s grievance process could not, for example, state that a hearing will be held only if a respondent requests it, or only if a complainant agrees to it, but could state that a hearing will be held only if both parties request it or consent to it. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Title IX, and any choice to do so remains within a recipient’s discretion. As noted above, nothing in the final regulations precludes a recipient from training investigators in best practices for interviewing children, and the final regulations minimize the number of times a young victim might have to be interviewed, by not requiring appearances at live hearings. The Department understands that school officials are not forensic or criminal investigation experts, and recognizes that in many situations, conduct that constitutes sexual harassment as defined in § 106.30 will also constitute sexual abuse resulting in law enforcement investigations. These final regulations contemplate the intersection of a recipient’s investigation under Title IX with concurrent law enforcement activity, expressly stating that good cause may exist to temporarily delay the Title IX grievance process to coordinate or cooperate with a concurrent law enforcement investigation. The Department disagrees that these final regulations require schools to disregard best practices with respect to interviewing child sex abuse victims and reiterate that the final regulations do not preclude a recipient from training Title IX personnel in interview techniques sensitive to the unique needs of traumatized children. If an elementary and secondary school recipient chooses to hold a hearing (live or otherwise), this provision leaves the recipient significant discretion as to how to conduct such a hearing, because § 106.45(b)(6)(i) applies only to postsecondary institutions. The Department desires to leave elementary and secondary schools as much flexibility as possible to apply procedures that fit the needs of the recipient’s educational environment. The Department notes that § 106.45(b) requires any rules adopted by a recipient for use in a Title IX grievance process, other than those required under § 106.45, must apply equally to both parties. Within that restriction, elementary and secondary school recipients retain discretion to decide how to conduct hearings if a recipient selects that option. In response to commenters wondering whether hearings are optional or required for a recipient that is neither a postsecondary institution nor an elementary and secondary school, the Department has revised § 106.30 to define ‘‘postsecondary institution’’ and ‘‘elementary and secondary school’’ and clarify that § 106.45(b)(6)(ii) applies to elementary and secondary schools and any ‘‘other recipient that is not a postsecondary institution.’’ PO 00000 Frm 00341 Fmt 4701 Sfmt 4700 30365 In response to commenters concerned about whether a minor party has the right to have a parent help pose questions and answers under this provision, we have added § 106.6(g) to clarify that nothing in these regulations changes or limits the legal rights of parents or guardians to act on behalf of a party. The Department declines to specify whether a parent writing out questions or answers on behalf of the student-party must consult their child; this matter is addressed by other laws concerning the scope of a parent’s legal right to act on behalf of their child. The Department understands commenters’ concerns that the written submission of questions procedure may ‘‘devolve into a fight’’ between parents of minor parties, but reiterates that recipients retain discretion to adopt rules of decorum that, for example, require questions to be posed in a respectful manner (e.g., without using profanity or irrelevant ad hominem attacks). Further, the decision-maker has the obligation to permit only relevant questions to be asked and must explain to the party posing the question any decision to exclude a question as not relevant. Changes: The Department has revised § 106.45(b)(6)(ii) to clarify that it applies to elementary and secondary schools and to ‘‘other recipients that are not postsecondary institutions,’’ and to clarify that ‘‘the recipient’s grievance process may, but need not, provide for, a hearing.’’ We have further revised § 106.45(b)(6)(ii) to provide that, with or without a hearing, after the recipient has sent the investigative report to the parties pursuant to § 106.45(b)(5)(vii) and before reaching a determination regarding responsibility, the decisionmaker(s) must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party. We have added definitions of ‘‘elementary and secondary schools’’ and ‘‘postsecondary institutions’’ in § 106.30. We have also added § 106.6(g) acknowledging that nothing in these final regulations abrogates the legal rights of parents or guardians to act on behalf of party. We have added § 106.71 directing recipients to keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except E:\FR\FM\19MYR2.SGM 19MYR2 30366 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations as may be permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including these final regulations. Comments: Some commenters supported or opposed the rape shield protections in § 106.45(b)(6)(ii) for the same reasons stated in support of or opposition to the same language in § 106.45(b)(6)(ii); see discussion under the ‘‘Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live Hearings with CrossExamination’’ subsection of the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. Some commenters argued that the two exceptions should be eliminated with respect to minors because the sexual behavior of children should never be relevant or asked about or because minors cannot legally consent and thus an exception where ‘‘offered to prove consent’’ serves no purpose with respect to minors. Discussion: The Department’s incorporates here its response to commenters’ support and opposition for the rape shield language stated in the ‘‘Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live Hearings with Cross-Examination’’ subsection of the ‘‘Hearings’’ subsection of ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. The Department disagrees that the two exceptions (or even the exception that refers to ‘‘consent’’) should be eliminated in this provision because minors cannot legally consent to sexual activity. While this fact may make the issue of ‘‘consent’’ irrelevant in certain sexual harassment cases, consent may be relevant in other formal complaints investigated and adjudicated by elementary and secondary school recipients; for example, where the parties are over the age of consent in the relevant jurisdiction, or the age difference between the two minor parties is such that State law decriminalizes consensual sexual activity between the two individuals.1396 The Department will defer to State law regarding the age when a person has the ability to 1396 The age of consent to sexual activity varies across States, from age 16 to age 18, and many States have a ‘‘close in age exemption’’ to decriminalize consensual sex between two individuals who are both under the age of consent. Age of Consent.net, United States Age of Consent Map, ‘‘What is the legal Age of Consent in the United States?,’’ https://www.ageofconsent.net/ states. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 consent. Further, we have revised this provision in the final regulations to clarify that it applies not only to elementary and secondary schools but also to other recipients that are not postsecondary institutions, and parties associated with such ‘‘other recipients’’ may be adults rather than children. The Department thus retains the rape shield language in this provision, including the two exceptions, mirroring the rape shield language used in § 106.45(b)(6)(i). Changes: For the same reasons as discussed under § 106.45(b)(6)(i), the Department has revised the rape shield language in § 106.45(b)(6)(ii) by clarifying that questions and evidence about the complainant’s prior sexual behavior or predisposition are not relevant unless such questions or evidence are offered for one of the two exceptions (offered to prove someone other than the respondent committed the alleged conduct, or offered to prove consent). Comments: Some commenters supported or opposed the requirement in § 106.45(b)(6)(ii) that decision-makers explain the reason for excluding any question proposed by a party as not relevant, for the same reasons stated in support or opposition for similar language in § 106.45(b)(6)(i); see discussion under the ‘‘Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live Hearings with Cross-Examination’’ subsection of the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. Some commenters opposed this requirement because it would essentially force an elementary and secondary school administrator to make evidentiary determinations that can be difficult even for lawyers and judges. Commenters opposed this requirement based on personal experience handling questions from minor parties and their parents in Title IX proceedings and observing that many questions posed by parents are irrelevant, so having to explain the relevance of each excluded question would draw out the length of proceedings unnecessarily. Discussion: The Department incorporates here its response to commenters’ support of and opposition to the similar provision in § 106.45(b)(6)(i) under which the decision-maker must explain any decision to exclude questions as not relevant; see the ‘‘Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live Hearings with CrossExamination’’ subsection of the ‘‘Hearings’’ subsection of the ‘‘Section PO 00000 Frm 00342 Fmt 4701 Sfmt 4700 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. The Department appreciates commenters’ concerns that based on experience with parents exercising rights on behalf of students during Title IX proceedings, parents tend to pose a lot of irrelevant questions. The Department believes the burden of this requirement is outweighed by the right of parties (including when a party’s rights are exercised by parents) to meaningfully participate in the grievance process through posing questions to the other party and witnesses, and understanding why a question has been deemed irrelevant is important to ensure that the parties feel confident that their perspectives about the facts and evidence are appropriately taken into account prior to the determination regarding responsibility being reached. Changes: None. Determinations Regarding Responsibility Section 106.45(b)(7)(i) Single Investigator Model Prohibited Benefits of Ending the Single Investigator Model Comments: Many commenters supported the NPRM’s prohibition on the single investigator model because it would reduce the risk of bias and unfairness. Commenters argued that ending the single investigator model would decentralize power from one individual, allow for checks and balances, reduce the risk of confirmation bias, and increase the overall fairness and reliability of Title IX proceedings. Commenters stated that a strict separation of investigative and decision-making functions is essential because it is unrealistic to expect a person to fairly review their own investigative work. One commenter argued that procedural protections are necessary but not sufficient to render fair outcomes; the commenter stated it is also necessary to prohibit, detect, and eliminate bias. The commenter argued that unbiased adjudicators are a bedrock principle of any disciplinary proceeding, and this principle has been well understood since the founding of this country and development of the common law.1397 Several commenters 1397 Commenters cited: The Federalist No. 10 (J. Madison) (‘‘No man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.’’). At least one commenter cited: Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 867, 877 (2009) (common law recognized the need for unbiased adjudicators, and the U.S. Constitution incorporated and expanded upon the protections at common law against biased adjudicators). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations asserted that schools are currently facing significant pressure from the media and general public to achieve ‘‘social justice’’ and find respondents guilty. Commenters argued that blending the investigative and adjudicative functions increases the risk of false positives (i.e., inaccurate findings of responsibility). Several commenters submitted personal stories where investigators under the single investigator model acted improperly, for instance by meeting with complainants but not respondents, failing to promptly notify the respondent of charges, withholding evidence, ignoring exculpatory evidence, ignoring inconsistencies in complainant’s testimony, framing language in an inflammatory way against the respondent, relying on triple hearsay favoring the complainant, and entering a suspected personal relationship with the complainant. Commenters stated that improper or biased actions by an investigator might at least be recognized and corrected where the decision-maker is a different person. A few commenters asserted that ending the single investigator model would reinforce a genuine live hearing process with cross-examination. One commenter suggested that the single investigator model precludes effective confrontation of witnesses because even where there is a live hearing the investigator’s finding is a ‘‘heavy thumb on the scale.’’ Commenters noted that under the single investigator model often there is no live hearing at all where parties can probe each other’s credibility, and no opportunity for parties to know what evidence the investigator is considering before rendering an ultimate decision. Discussion: The Department appreciates the support from commenters for § 106.45(b)(7)(i) of the final regulations which, among other things, would require the decisionmaker to be different from any person who served as the Title IX Coordinator or investigator, thus foreclosing recipients from utilizing a ‘‘single investigator’’ or ‘‘investigator-only’’ model for Title IX grievance processes. The Department believes that fundamental fairness to both parties requires that the intake of a report and formal complaint, the investigation (including party and witness interviews and collection of documentary and other evidence), drafting of an investigative report, and ultimate decision about responsibility should not be left in the hands of a single person (or team of persons each of whom performed all those roles). Rather, after the recipient has conducted its impartial VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 investigation, a separate decision-maker must reach the determination regarding responsibility; that determination can be made by one or more decision-makers (such as a panel), but no decision-maker can be the same person who served as the Title IX Coordinator or investigator. Commenters correctly noted that separating the investigative and decision-making functions will not only increase the overall fairness of the grievance process but also will increase the reliability of fact-finding and the accuracy of outcomes, as well as improve party and public confidence in outcomes. Combining the investigative and adjudicative functions in a single individual may decrease the accuracy of the determination regarding responsibility, because individuals who perform both roles may have confirmation bias and other prejudices that taint the proceedings, whereas separating those functions helps prevent bias and prejudice from impacting the outcome. Changes: None. Consistency With Case Law Comments: Several commenters contended that ending the single investigator model would be consistent with case law. Commenters cited cases where courts overturned recipient findings against respondents, raised concerns regarding preconceptions and biases that may arise where a single person has the power to investigate, prosecute, and convict, and asserted that a single investigator model can impede effective cross-examination and credibility determinations.1398 On the 1398 Commenters cited: Doe v. Claremont McKenna Coll., 25 Cal. App. 5th 1055, 1072–73 (Cal. App. 2018) (all decision makers ‘‘must make credibility determinations, and not simply approve the credibility determinations of the one Committee member who was also the investigator.’’); Doe v. Miami Univ., 882 F.3d 579, 601, 605 (6th Cir. 2018) (court found ‘‘legitimate concerns’’ raised by the investigator’s ‘‘alleged dominance on the threeperson [decision making] panel,’’ because ‘‘she was the only one of the three with conflicting roles.’’); Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 573 (D. Mass. 2016) (referring to the ‘‘obvious’’ ‘‘dangers of combining in a single individual the power to investigate, prosecute, and convict, with little effective power of review’’); Doe v. Allee, 30 Cal. App. 5th 1036, 1068 (Cal. App. 2019) (‘‘As we have explained, in U.S.C.’s system, no in-person hearing is ever held, nor is one required. Instead, the Title IX investigator interviews witnesses, gathers other evidence, and prepares a written report in which the investigator acts as prosecutor and tribunal, making factual findings, deciding credibility, and imposing discipline. The notion that a single individual, acting in these overlapping and conflicting capacities, is capable of effectively implementing an accused student’s right of crossexamination by posing prepared questions to witnesses in the course of the investigation ignores the fundamental nature of cross-examination: Adversarial questioning at an in-person hearing at which a neutral fact finder can observe and assess the witness’ credibility.’’). PO 00000 Frm 00343 Fmt 4701 Sfmt 4700 30367 other hand, some commenters cited case law to suggest the single investigator model can be fair and appropriate.1399 Discussion: The Department appreciates commenters’ input on the consistency of the single investigator model with case law. We acknowledge that the Supreme Court has held that a biased decision-maker violates due process but that combining the investigative and adjudicative functions in a single agency does not present a constitutional due process problem.1400 The final regulations comport with that holding, inasmuch as a single recipient is expected to perform the investigative and adjudicative roles in a Title IX grievance process. As noted by commenters, lower courts have reached mixed results as to whether a single person performing the investigative and adjudicative functions in a student misconduct process violates due process.1401 Notwithstanding whether the single investigator model withstands constitutional scrutiny under due process requirements, the Department believes that combining these functions raises an unnecessary risk of bias that 1399 Commenters cited: Withrow v. Larkin, 421 U.S. 35, 49 (1975) (rejecting the argument that a ‘‘combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias’’); Hess v. Bd. of Trustees of So. Ill. Univ., 839 F.3d 668 (7th Cir. 2016) (bias of decisionmaker would violate due process, but combination of investigative and adjudicative functions into a single person does not, by itself, demonstrate that the decision-maker is actually biased); Pathak v. Dep’t. of Veterans Affairs, 274 F.3d 28, 33 (1st Cir. 2001); Doe v. Purdue Univ., 281 F. Supp. 3d 754, 779 (N.D. Ind. 2017), aff’d, Doe v. Purdue Univ., 928 F.3d 652 (7th Cir. 2019). 1400 Kenneth Oshita, Home Court Advantage? The SEC and Administrative Fairness, 90 S. Cal. L. Rev. 879, 902 (2017) (noting that the Supreme Court established that ‘‘the combination of investigative and adjudicative functions does not, without more, constitute a due process violation’’ but continuing, ‘‘Interestingly, the Withrow Court recognized that a biased adjudicator is ‘constitutionally unacceptable’ and that ‘our system of law has always endeavored to prevent even the probability of unfairness.’ Yet, even recognizing the importance of fairness in this constitutional principle, the Court reasoned that the combination of functions within an agency is constitutionally acceptable.’’) (citing Withrow v. Larkin, 421 U.S. 35, 49 (1975)). 1401 E.g., Richard H. Underwood, Administrative Adjudication in Kentucky: Ethics and Unauthorized Practice Considerations, 29 N. Ky. L. Rev. 359, 361 (2002) (‘‘[T]he case law generally rejects the proposition that a combination of functions in one agency necessarily creates an unconstitutional risk of bias, or that such a combination automatically constitutes a denial of due process such as to warrant disqualification of the involved administrative adjudicator. On the other hand, when functions are combined in a single individual, the case for disqualification for ‘unfairness’ or bias is stronger. How can an administrative adjudicator deal fairly with a party or parties if he or she has performed other functions—investigatory or prosecutorial—in the same matter?’’) (internal quotation marks and citations omitted; emphasis added). E:\FR\FM\19MYR2.SGM 19MYR2 30368 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations may unjustly impact one or both parties in a given Title IX proceeding.1402 Particularly because the stakes are so high in these cases, with potentially lifealtering consequences that may flow from a decision in favor of either party, the Department believes that separating investigation from decision making is important to promote the overall fairness of the process. Changes: None. Alternative Approaches To Ending Single Investigator Model Comments: Some commenters asserted that ending the single investigator model is unnecessary to reduce bias and may in fact increase the risk of unfairness. Commenters argued that Title IX investigators are highlytrained professionals who are often most familiar with the evidence and bestpositioned to make credibility determinations and render consistent decisions. These commenters suggested that requiring different decision-makers may increase the risk of overlooked details and incorrect outcomes because other persons may not be as close to the evidence as investigators. Some commenters argued that hybrid models are adequate and can satisfy due process concerns because, for example, hybrid models in use by some recipients use an investigator (or team of investigators) to gather evidence and write up recommendations about responsibility yet allow both parties to review gathered evidence and pose questions to each other, and hold live hearings for the sanctioning and appeals processes, while parties may resort to civil litigation to challenge the school’s proceedings. One commenter 1402 Michael R. Lanzarone, Professional Discipline: Unfairness and Inefficiency in the Administrative Process, 51 Fordham L. Rev. 818, 827 (1983) (noting that the ‘‘commingling of investigatory and adjudicatory functions’’ is a ‘‘daily occurrence in [professional] disciplinary proceedings. The Supreme Court in [Withrow v. Larkin, 421 U.S. 35 (1975)], however, concluded that the Constitution tolerates such commingling. Entirely apart from any specific constitutional infirmities, the question remains whether the basic unfairness of the procedure counsels against its use.’’) (internal citations omitted); id. at fn. 60 (‘‘There are dangers in allowing an individual who has investigated misconduct and determined that there is probable cause to suspend a professional’s license to sit as a trier of fact in a later de novo hearing. The state board that is responsible for professional discipline may view its role as more of a prosecutor than as a disinterested finder of fact. A board of education may find it difficult to be unbiased when the chief executive of the school district has already recommended dismissal of a tenured teacher. And the danger of bias undoubtedly increases when an individual actually conducts an investigation (as opposed to passing upon another’s work) and then sits as the trier of fact to hear and pass upon the credibility of witnesses.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 acknowledged the possibility of bias within the single investigator model and recommended a hybrid system involving investigation by an impartial investigator followed by referral to a student conduct system for live hearing. One commenter proposed that the Department’s concern regarding bias with the single investigator model could be addressed through less restrictive means, such as by allowing parties to assert alleged bias before or during an investigation and by offering an appeal to a different decision-maker to consider alleged bias during the investigation. One commenter suggested that the Department allow recipients who use two investigators to also use them as decision-makers. This commenter argued that two investigators are in the best position to review all the evidence and determine responsibility and appropriate sanction; moreover, ensuring two investigators assigned to each case prevents any one person from being decision-maker and allows the second person to serve as an effective check. Other commenters asserted that prohibiting the single investigator model is unnecessary because the Department already carefully safeguarded the selection process for investigators, Title IX Coordinators, and decision-makers by prohibiting bias and conflicts of interest in § 106.45(b)(1)(iii). Discussion: The Department believes the robust training and impartiality requirements for all individuals serving as Title IX Coordinators, investigators, or decision-makers contained in § 106.45(b)(1)(iii) of the final regulations 1403 will effectively promote the reliability of fact-finding and the overall fairness and accuracy of the grievance process. In addition, the final regulations require that any materials used to train Title IX personnel must not rely on sex stereotypes. We believe these measures will promote consistent outcomes, addressing commenters’ concerns about decision-makers not having the same level of training or expertise as investigators. Furthermore, § 106.45(b)(5)(vii) requires the investigator to prepare an investigative report that fairly summarizes all relevant evidence, and therefore the parties and decision-maker will be aware of the evidence gathered during the investigation. The Department appreciates commenters’ suggestion that a ‘‘hybrid’’ model could provide many of the same checks against bias and inaccuracy as 1403 The final regulations revise § 106.45(b)(1)(iii) to include training for persons who facilitate informal resolution processes, in addition to Title IX Coordinators, investigators, and decision-makers. PO 00000 Frm 00344 Fmt 4701 Sfmt 4700 complete separation of the investigation and adjudication roles. However, the Department believes that formally separating the investigative and adjudicative roles in the Title IX grievance process is important to reduce the risk and perception of bias, increase the reliability of fact-finding, and promote sound bases for responsibility determinations. As such, the Department concludes that adopting the various less restrictive means that commenters suggested to reduce the bias inherent in the single investigator model, such as permitting two investigators to also serve as decisionmakers, would not go far enough to promote these important goals. Consistent with the commenters’ suggestion, however, the Department also emphasizes that § 106.45(b)(8), in addition to requiring that recipients offer appeals for both parties, explicitly permits either party to assert that the Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias. These provisions are meant to reinforce each other in increasing the fairness of Title IX proceedings. Changes: None. Chilling Reporting and Other Harmful Effects Comments: Commenters suggested that ending the single investigator model would increase the number of people who must be involved in the Title IX process, and this may increase the risk of untrained and biased people shaming survivors and not believing in them, and also lead to re-traumatization for survivors having to share their stories multiple times. Commenters suggested that ending the single investigator model reinforces the requirement for traumatizing and unnecessary live hearings with crossexamination, which could discourage reporting. Commenters argued that the single investigator model reduces pressure on both parties because the investigator can interact with each party in a less stressful, less adversarial setting. Commenters asserted that the NPRM’s prohibition of the single investigator model could be problematic under Title IX and potentially harmful to parties who want closure, because requiring a separate decision-maker could lengthen the adjudicative process, make it less efficient, and delay resolutions. One commenter argued that ending the single investigator model could frustrate the NPRM’s due process goals, by perversely incentivizing recipients to avoid the NPRM’s formal grievance process through informal resolution, or incentivize schools to not provide an E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations appeal process due to added compliance costs. Discussion: The Department does not believe that precluding a single investigator model for investigations and adjudications will discourage reporting, traumatize parties, unreasonably lengthen the grievance process, or incentivize recipients to forgo important due process protections for parties. Rather, the purpose of formally separating the investigative and adjudicative functions is to reduce the risk of bias, increase the reliability of fact-finding, and promote sound bases for determinations of responsibility. The Department acknowledges that without a requirement that the decision-maker be separate from any person that performed the role of Title IX Coordinator and investigator, a complainant potentially could give a statement only once—to the single person or team of people performing all those functions, and that complainants may feel intimidated by needing speak with more than one person during the course of the grievance process. Such a necessity, however, is not different from participation in any typical adjudicative process, whether civil or criminal, where a complainant (or civil plaintiff, or victim-witness in a criminal case) would also need to recount the allegations and answer questions several times during the course of an investigation and adjudication. Because a grievance process must contain consistent procedural protections in order to reach factually accurate outcomes, the final regulations ensure that a complainant retains control over deciding whether to participate in a grievance process 1404 and ensures that 1404 E.g., § 106.30 specifies that only a complainant, or a Title IX Coordinator, can sign or file a formal complainant initiating the grievance process such that even if a report about the complainant’s alleged victimization is made to the recipient by a third party, the complainant retains autonomy to decide whether to file a formal complaint; § 106.30 revises the definition of ‘‘complainant’’ to remove the phrase ‘‘or on whose behalf the Title IX Coordinator files a formal complaint’’ to clarify that even when a Title IX Coordinator does sign a formal complaint initiating a grievance process, that action is not taken ‘‘on behalf of’’ the complainant, so that the complainant remains in control of when a formal process is undertaken on the complainant’s behalf. The final regulations removed proposed § 106.44(b)(2) that would have required a Title IX Coordinator to file a formal complaint upon receipt of multiple reports against the same respondent, in order to avoid situations where a Title IX Coordinator would have been forced (by the proposed rules) to sign a formal complaint over the wishes of a complainant. The final regulations add § 106.71 prohibiting retaliation and including under prohibited actions those taken to dissuade a complainant from reporting or filing and those taken to punish a complainant (or anyone else) from refusing to participate in a Title IX proceeding. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 a complainant can receive supportive measures to restore or preserve the complainant’s equal access to education regardless of whether a grievance process is undertaken.1405 The final regulations also permit recipients to offer and facilitate informal resolution processes which can resolve allegations without a full investigation and adjudication.1406 Contrary to the claims made by some commenters that increasing the number of people who must be involved in the formal grievance process would increase the risk of using untrained personnel and causing unfairness, the Department believes that the robust training and impartiality requirements contained in § 106.45(b)(1)(iii) that apply to all individuals participating as Title IX Coordinators, investigators, decisionmakers, or persons facilitating informal resolution processes, reduce these risks. Furthermore, ensuring that the investigative and adjudicative functions are performed by different individuals is critical for effective live crossexamination, as other commenters noted, because under the single investigator model the decision-maker may be biased in favor of the decisionmaker’s own investigative recommendations and conclusions rather than listening to party and witness statements during a hearing impartially and with an open mind; similarly, if the decision-maker is the same person as the Title IX Coordinator the decision-maker may be influenced by information gleaned from a complainant due to implementation of supportive measures rather than by information relevant to the allegations at issue. Moreover, under the single investigator model often there is no live hearing where parties can probe each other’s credibility and as discussed under § 106.45(b)(6)(i), the Department believes that live hearings are a critical part of a fair process in the postsecondary context. The Department acknowledges concerns that separating the investigative and adjudicative functions may lengthen the adjudicative process in some cases. However, we emphasize that § 106.45(b)(1)(v) of the final regulations requires that the grievance 1405 E.g., § 106.44(a) requires the Title IX Coordinator promptly to contact each complainant to discuss the availability of supportive measures (with or without a formal complaint being filed), consider the wishes of the complainant with respect to supportive measures, and explain to the complainant the process for filing a formal complaint. 1406 Section 106.45(b)(9) (permitting informal resolutions of any formal complaint except where the allegations are that an employee has sexually harassed a student). PO 00000 Frm 00345 Fmt 4701 Sfmt 4700 30369 process be completed within a reasonably prompt time frame, including completion of a live hearing (for postsecondary institutions). We do not believe that eliminating the single investigator model will incentivize recipients to offer informal resolution process to avoid the grievance process. We have revised § 106.45(b)(9) so that informal resolutions must be voluntarily agreed to by each party, forbidding recipients from requiring any party to participate in an informal process, and preventing recipients from conditioning enrollment, employment, or any other right on a party’s participation in informal resolution. We have also revised § 106.45(b)(8) to require recipients to offer appeals equally to both parties, which also must be subject to a recipient’s designated, reasonably prompt time frames; this revision also ensures that recipients cannot rationalize removal of the single investigator model as a reason to refuse to offer an appeal. Changes: We have revised § 106.45(b)(9) governing informal resolutions, to forbid recipients from requiring parties to participate in informal resolution and to preclude recipients from conditioning enrollment, employment, or enjoyment of rights on a party’s participation in informal resolution. We have revised § 106.45(b)(8) governing appeals to require recipients to offer appeals equally to both parties, on three specified bases: Procedural irregularity, newly discovered evidence, or conflict of interest or bias on the part of Title IX personnel. Respecting the Roles of Title IX Coordinators and Investigators Comments: A few commenters asserted that excluding Title IX Coordinators and investigators from any decision-making role is inherently insulting to them because it undervalues their training, professionalism, and expertise. One commenter proposed that the Department require separate investigators and decision-makers, but not prohibit Title IX Coordinators from being decision-makers. This commenter reasoned that Title IX Coordinators are highly trained professionals and Title IX subject matter experts who are reliably impartial and that removing their expertise from the equation may increase the risk of bias, unfairness, and inconsistency across cases. Discussion: The Department appreciates the integrity and professionalism of individuals serving as Title IX Coordinators. However, and as discussed above, given the high stakes involved for all parties in Title IX E:\FR\FM\19MYR2.SGM 19MYR2 30370 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations cases, the Department believes that separating the investigative and adjudicative functions is essential to mitigate the risk of bias and unfairness in the grievance process. The final regulations would not remove the expertise of Title IX Coordinators from the grievance process. Section 106.45(b)(7)(i) does not prevent the Title IX Coordinator from serving as the investigator; rather, this provision only prohibits the decision-maker from being the same person as either the Title IX Coordinator or the investigator. As other commenters have pointed out, the final regulations place significant responsibilities on Title IX Coordinators. Separating the functions of a Title IX Coordinator from those of the decision-maker is no reflection on the ability of Title IX Coordinators to serve impartially and with expertise. Rather, requiring different individuals to serve in those roles acknowledges that the different phases of a report and formal complaint of sexual harassment serve distinct purposes. At each phase, the person responsible for the recipient’s response likely will receive information and have communications with one or both parties, for different purposes. For example, the Title IX Coordinator must inform every complainant about the availability of supportive measures and coordinate effective implementation of supportive measures, while the investigator must impartially gather all relevant evidence including party and witness statements, and the decision-maker must assess the relevant evidence, including party and witness credibility, to decide if the recipient has met a burden of proof showing the respondent to be responsible for the alleged sexual harassment. Placing these varied responsibilities in the hands of a single individual (or even team of individuals) risks the person(s) involved improperly relying on information gleaned during one role to affect decisions made while performing a different role. For example, a Title IX Coordinator may have a history of communications with the complainant before any formal complaint has been filed (for instance, due to implementing supportive measures for the complainant), which may influence the Title IX Coordinator’s perspective about the complainant’s situation before the Title IX Coordinator (if allowed to be the ‘‘decision-maker’’) has even spoken with the respondent. Similarly, an investigator may obtain information from a party that is not related to the allegations under investigation during an interview with a party, and if the investigator also serves VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 as the decision-maker, such unrelated information may influence that person’s decision making, resulting in a determination that is not based on relevant evidence. Separating the roles of investigation from adjudication therefore protects both parties by making a fact-based determination regarding responsibility based on objective evaluation of relevant evidence more likely. Changes: None. Preserving Recipient Autonomy Comments: Several commenters contended that ending the single investigator model constitutes Federal overreach into recipient decision making. Commenters emphasized that recipients vary widely in size, resources, mission, and composition of students, faculty, and staff, and that imposing a one-size-fits-all approach on them by ending the single investigator model is unwise. Commenters argued that, currently, disciplinary processes are tailored to fit each recipient’s unique needs, including the single investigator model where a recipient has deemed that to best fit the recipient’s needs. Commenters argued that the Department should not limit school autonomy or dictate how private institutions allocate their staff. Discussion: The Department respects the importance of granting recipients flexibility and discretion to design and implement policies and procedures that reflect their unique values and the needs of their educational communities. However, this interest must be balanced with other important goals, including increasing the reliability of fact-finding, the overall fairness in the process, and the accuracy of responsibility determinations. Title IX is a Federal civil rights law that requires recipients to operate education programs and activities free from sex discrimination, and when a recipient is presented with allegations of sexual harassment, the Department and the recipient have an interest in ensuring that the recipient applies procedures designed to accurately identify the nature of sexual harassment that has occurred in the recipient’s education program or activity. The Department believes that separating the investigative and adjudicative functions most effectively balance the goals of ensuring accurate identification of sexual harassment and respecting recipients’ autonomy. The Department notes that the final regulations leave significant flexibility to recipients, including whether the Title IX Coordinator can also serve as the investigator, whether to use a panel of decision-makers or a single decision- PO 00000 Frm 00346 Fmt 4701 Sfmt 4700 maker, and whether to use the recipient’s own employees or outsource investigative and adjudicative functions to professionals outside the recipient’s employ. Changes: None. Consistency With Federal Law and Employment Practices Comments: Some commenters argued that ending the single investigator model would conflict with Federal and State laws and employment practices. One commenter reasoned that if the respondent is an employee, then the site administrator with line authority may be in best position to investigate due to confidentiality with personnel issues and the Department should not create a conflicting process. Commenters argued that the NPRM’s prohibition of the single investigator model is unworkable in the employee context, especially where schools take disciplinary action against at-will employees because atwill employees do not have the same due process rights to their jobs as students do to their education. Commenters asserted that ending the single investigator model could conflict with existing collective bargaining agreements and faculty handbooks. Commenters also asserted that the NPRM’s application to the employment context is problematic because workplace harassment is already addressed by Title VII and State nondiscrimination laws. Discussion: The Department acknowledges efficiency interests and the value of a recipient’s flexibility and discretion to address sexual misconduct situations involving the recipient’s employees, such as by using site administrators to investigate and adjudicate complaints against employee-respondents. However, these interests must be balanced with other important goals, including increasing the reliability of fact-finding, the overall fairness in the process, and the accuracy of responsibility determinations. The Department believes that separating the investigative and adjudicative functions most effectively promotes these goals. As such, the prohibition of the single investigator model contained in § 106.45(b)(7)(i) of the final regulations would apply to all recipients, including elementary and secondary schools and postsecondary institutions, and it would also equally apply to student and employee respondents. For reasons discussed in the ‘‘Section 106.6(f) Title VII and Directed Question 3 (Application to Employees)’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble, these final regulations apply E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations to any person, including employees, in an education program or activity receiving Federal financial assistance. A recipient may use a site administrator to conduct the investigation into a formal complaint of sexual harassment against an employee, as long as the site administrator is not the decision-maker, as set forth in § 106.45(b)(7)(i). In that situation, the recipient must designate someone other than the site administrator to serve as the decision-maker. If the recipient would like the site administrator to serve as the decision-maker, then the recipient must designate someone other than the site administrator to serve as the investigator. The Department appreciates the concerns raised by several commenters that ending the single investigator model may pose untenable conflict with State laws, the nature of at-will employment relationships where the respondent is an employee, and with existing collective bargaining agreements and faculty handbooks. With respect to potential conflict with State laws regarding the prohibition of the single investigator model contained in § 106.45(b)(7)(i) of the final regulations, the final regulations preclude the decision-maker from being the same person as the Title IX Coordinator or the investigator, but do not preclude the Title IX Coordinator from serving as the investigator. Further, the final regulations do not prescribe which recipient administrators are in the most appropriate position to serve as a Title IX Coordinator, investigator, or decision-maker, and leave recipients discretion in that regard, including whether a recipient prefers to have certain personnel serve in certain Title IX roles when the respondent is an employee. To generally address commenters’ questions about preemption, the Department has added § 106.6(h) which provides that to the extent of a conflict between State or local law and Title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. The Department acknowledges that Title VII and Title IX impose different requirements and that some recipients will need to comply with both Title VII and Title IX, as reflected in § 106.6(f) of these final regulations. The Department believes that recipients may comply with different regulations implementing Title VII and Title IX. These final regulations require all recipients with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 United States, to respond promptly in a manner that is not deliberately indifferent, irrespective of whether the complainant and respondent are students or employees. The grievance process in § 106.45 does not contradict Title VII or its implementing regulations in any manner and at most may provide more process than Title VII requires (such as specifying that a decisionmaker must be a different person than the Title IX Coordinator or investigator). These final regulations, however, do not expand Title VII, as these final regulations are promulgated under Title IX. For further discussion of the intersection between Title VII and these final regulations, see the ‘‘Section 106.6(f) Title VII and Directed Question 3 (Application to Employees)’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. With respect to the general at-will employment doctrine, or the fact that recipients often have employment contracts or collective bargaining agreements in place that govern employee misconduct, where Title IX is implicated the Department has determined that the protections and rights set forth in these final regulations represent the most effective ways to promote Title IX’s non-discrimination mandate, and recipients of Federal financial assistance agree to comply with Title IX obligations as a condition of receiving Federal funds. Recipients’ contractual arrangements with employees must conform to Federal law, as a condition of receipt of Federal funds. Changes: None. Limiting the Prohibition of the Single Investigator Model Comments: Some commenters supported ending the single investigator model but argued against a categorical prohibition. One commenter proposed that the Department only prohibit the single investigator model where the respondent faces the possibility of expulsion or dismissal. This commenter argued that more minor cases, such as sexual harassment claims against respondents for making inappropriate jokes, can be fairly investigated and resolved by a single person without bias. However, the commenter reasoned, where the stakes are higher, such as with a sexual assault allegation and the possibility of dismissal, then a strict separation of the investigative and adjudicative functions is justified. The commenter asserted that this is a logical cost/benefit analysis, especially for smaller recipients. One commenter suggested that the Department should PO 00000 Frm 00347 Fmt 4701 Sfmt 4700 30371 only prohibit the single investigator model for larger schools (such as those with over 3,000 students) or for schools that have greater numbers of Title IX complaints that result in formal investigations (such as ten or more per year). One commenter requested that the Department prohibit the single investigator model but exempt recipients that submit a reasoned written explanation as to why their disciplinary system is fair and necessary. One commenter urged the Department to allow the single investigator model, but only where both parties consent to it. Another commenter emphasized that postsecondary institutions generally have more resources than elementary and secondary school districts, and therefore the Department should initially apply the single investigator prohibition only to postsecondary institutions, and see how effective it is before applying it to elementary and secondary schools. Discussion: The Department appreciates the logistical concerns raised by some commenters regarding an across-the-board prohibition on the single investigator model contained in the final regulations and the suggestions for alternative approaches. However, the Department believes, as discussed above, that separating requiring investigative and adjudicative roles to be filled by different individuals is critical for reducing the risk of unfairness, increasing the reliability of fact-finding, and enhancing the accuracy of Title IX adjudications. Furthermore, we do not see the propriety in crafting different sets of procedural requirements under Title IX for recipients based on their size, the number of Title IX complaints they typically receive on an annual basis, or the potential severity of the punishment the respondent may receive if determined to be responsible for the alleged sexual harassment. It is unclear what criteria would justify an exemption to the general requirement that the same person cannot investigate and adjudicate a case, particularly because all the conduct described as ‘‘sexual harassment’’ under § 106.30 is serious conduct that jeopardizes a victim’s equal access to education, and the Department resists attempts to characterize certain forms of sexual harassment defined under § 106.30 as automatically warranting more or less severe sanctions. The Department notes that § 106.45(b)(9) of the final regulations permits informal resolutions as long as both parties voluntarily consent to attempt an informal process. E:\FR\FM\19MYR2.SGM 19MYR2 30372 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Informal resolutions under the final regulations would not require more than one person to facilitate the process. In this regard, the Department recognizes the importance of giving recipients flexibility and discretion to satisfy their Title IX obligations in a manner consistent with their unique values and the needs of their educational communities, and the wishes of the parties to each formal complaint. Changes: None. Requests for Clarification Comments: Commenters sought clarification on several issues regarding the NPRM’s prohibition of the single investigator model. A few commenters asked whether the NPRM requires that the Title IX Coordinator be different than the investigator and, if so, how a Title IX Coordinator can remain fair and unbiased in situations where the NPRM requires the Title IX Coordinator to file a formal complaint. One commenter inquired as to whether the Title IX Coordinator can make preliminary determinations of responsibility that are then passed along to the decisionmaker. Another commenter requested more clarity as to whether the NPRM’s prohibition on a Title IX Coordinator serving as decision-maker also applies to appeal decisions. One commenter asked whether the decision-maker and hearing officer presiding over the live hearing can be different individuals. Another commenter asserted that § 106.45(b)(7)(i) has been understood to require different individuals to assume each of three different roles: Decisionmaker, investigator, and Title IX Coordinator. This commenter inquired as to what the Title IX Coordinator’s role would be regarding investigations under the NPRM. Discussion: The Department appreciates the questions commenters raised regarding the implications of the prohibition of the single investigator model contained in § 106.45(b)(7)(i) of the final regulations. The Department wishes to clarify that the final regulations require the Title IX Coordinator and investigator to be different individuals from the decisionmaker, but nothing in the final regulations requires the Title IX Coordinator to be an individual different from the investigator. Nothing in the final regulations prevents Title IX Coordinators from offering recommendations regarding responsibility to the decision-maker for consideration, but the final regulations require the ultimate determination regarding responsibility to be reached by an individual (i.e., the decisionmaker) who did not participate in the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 case as an investigator or Title IX Coordinator. The final regulations have removed proposed § 106.44(b)(2) that would have required Title IX Coordinators to file formal complaints upon receiving multiple reports of sexual harassment against the same respondent; however, the final regulations leave Title IX Coordinators with discretion to decide to sign a formal complaint on the recipient’s behalf. Although signing a formal complaint initiates a grievance process, for reasons discussed in the ‘‘Formal Complaint’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, we do not believe that taking such an action necessarily renders a Title IX Coordinator biased or poses a conflict of interest, and we have revised the § 106.30 definition of ‘‘formal complaint’’ to clarify that Title IX Coordinators must comply with § 106.45(b)(1)(iii) even in situations where the Title IX Coordinator decides to sign a formal complaint. The final regulations revise § 106.45(b)(8) to provide that appeals on specified bases must be offered equally to both parties and that the appeal decision-maker cannot be the same person as the decision-maker who reached the determination regarding responsibility, the Title IX Coordinator, or the investigator. With respect to the roles of a hearing officer and decisionmaker, the final regulations leave recipients discretion to decide whether to have a hearing officer (presumably to oversee or conduct a hearing) separate and apart from a decision-maker, and the final regulations do not prevent the same individual serving in both roles. Lastly, regarding the role of the Title IX Coordinator, as discussed above, § 106.8(a) of the final regulations requires recipients to designate and authorize at least one employee to serve as Title IX Coordinator and coordinate the recipient’s efforts to comply with the final regulations. Among other things, the Title IX Coordinator is responsible for responding to reports and complaints of sex discrimination (including reports and formal complaints of sexual harassment), informing complainants of the availability of supportive measures and of the process for filing a formal complaint, offering supportive measures to complainants designed to restore or preserve equal access to the recipient’s education program or activity, working with respondents to provide supportive measures as appropriate, and coordinating the effective implementation of both supportive measures (to one or both parties) and remedies (to a complainant). As noted PO 00000 Frm 00348 Fmt 4701 Sfmt 4700 previously, the Title IX Coordinator is not precluded from also serving as the investigator, under these final regulations. Changes: None. Section 106.45(b)(7)(i) Standard of Evidence and Directed Question 6 Mandating a Higher Standard of Evidence Comments: Several commenters asserted that the Department should mandate a higher standard of evidence than the preponderance of the evidence standard. Commenters cited cases describing the preponderance of the evidence standard as inadequate in sexual misconduct cases given the seriousness of allegations, the lack of other procedural safeguards found in civil litigation, and the reputational and socioeconomic damage resulting from a finding of sexual misconduct responsibility. Some commenters argued that the Department should mandate, or at least permit, recipients to use the criminal ‘‘beyond a reasonable doubt’’ standard in Title IX adjudications.1407 One commenter suggested that the Department mandate the clear and convincing evidence standard but only where the alleged sexual misconduct is a Clery Act/ VAWA offense or where the potential sanction is expulsion or suspension. One commenter asserted that Supreme Court case law requires application of the beyond a reasonable doubt standard in school Title IX proceedings.1408 Commenters asserted that the clear and convincing evidence standard would enhance the overall accuracy of the system by reducing false positives as compared to the preponderance of the evidence standard. One commenter argued that requiring the clear and convincing evidence standard is essential to protect academic freedom and free speech because it would be unjust to have a mere 50 percent threshold to punish professors for ‘‘improper’’ or controversial speech in their classrooms. One commenter asserted that it is especially important to raise the standard of evidence because 1407 Commenters cited: Valerie Wilson, The Problem with Title IX and Why it Matters, The Princeton Tory (February 19, 2015). 1408 Commenters cited: James M. Piccozi, Note, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L. J. 2132, 2138 (1987) (impairment of accused’s reputation severely limits the accused student’s freedom and can make it virtually impossible to successfully transfer). Commenters also cited: Jackson v. Metro. Edison Co., 419 U.S. 345 (1974) for the proposition that State action results where a private party conducts activities exclusively and traditionally reserved to the State, such as adjudication of sexual misconduct. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations in the current #MeToo environment women are automatically believed and men are assumed guilty; this commenter argued that sexual misconduct cases often boil down to credibility and such allegations are virtually impossible to disprove. Discussion: The Department acknowledges the suggestions offered by commenters to mandate a higher standard of evidence than the preponderance of the evidence standard, such as the clear and convincing evidence standard, or the beyond a reasonable doubt standard used in criminal proceedings. In recognition that sexual misconduct cases involve high stakes and potentially life-altering consequences for both parties, and such cases often involve competing, plausible narratives about the truth of allegations, the Department authorizes recipients, in § 106.45(b)(1)(vii) of the final regulations, to select either the preponderance of the evidence standard or the clear and convincing evidence standard to reach determinations regarding responsibility.1409 Because Title IX proceedings differ in purpose and consequence from criminal proceedings, the Department does not believe the criminal law standard of ‘‘beyond a reasonable doubt’’ is appropriate in a noncriminal setting like a Title IX grievance process for various reasons.1410 Recipients are not courts and do not have the power to impose a criminal punishment such as imprisoning a respondent. Recipients bear the burden of proof under § 106.45(b)(5)(i), but they do not have subpoena power. These final regulations also provide privacy protections for complainants and respondents which prohibits the recipient from accessing, considering, disclosing, or otherwise using a party’s treatment records 1409 A preponderance of the evidence standard of evidence is understood to mean concluding that a fact is more likely than not to be true. E.g., Concrete Pipe & Prod. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (a preponderance of the evidence standard ‘‘requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence’’) (internal quotation marks and citation omitted). A clear and convincing evidence standard of evidence is understood to mean concluding that a fact is highly probable to be true. E.g., Sophanthavong v. Palmateer, 378 F.3d 859, 866–67 (9th Cir. 2004) (a clear and convincing evidence standard requires ‘‘sufficient evidence to produce in the ultimate factfinder an abiding conviction that the truth of its factual contentions are [sic] highly probable.’’) (internal quotation marks and citation omitted). 1410 See, e.g., Santosky v. Kramer, 455 U.S. 745, 768 (1982) (noting that the Supreme Court hesitates to apply the ‘‘unique standard’’ of beyond a reasonable doubt ‘‘too broadly or casually in noncriminal cases’’) (internal quotation marks and citations omitted). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 without the party’s voluntary, written consent under § 106.45(b)(5)(i), even if these treatment records are relevant to the allegations in a formal complaint. The ‘‘beyond a reasonable doubt’’ standard also is rarely used in any civil proceeding.1411 We therefore decline to permit a recipient to select that standard of evidence, and instead permit a recipient to select either of two standards of evidence, each of which is used in civil matters.1412 The Department shares commenters’ concerns for protecting academic freedom and free speech, and § 106.6(d)(1) emphasizes that nothing in the final regulations requires restriction of rights otherwise protected by the First Amendment. To further reinforce First Amendment rights, § 106.44(a) of the final regulations would explicitly prohibit the Department from deeming recipients’ restriction of rights protected under the First Amendment to be evidence that the recipient was not deliberately indifferent, and the conduct constituting actionable harassment under § 106.30 must be either serious misconduct constituting quid pro quo harassment or Clery Act/VAWA sex offenses, or meet the Davis standard of being severe, pervasive, and objectively offensive denying a person equal educational access.1413 When a formal complaint alleges conduct constituting ‘‘sexual harassment’’ as defined in § 106.30, the Department has concluded that the robust procedural protections granted to both parties in § 106.45 mean that the preponderance of the evidence standard, or the clear and convincing evidence standard, may be used to reach consistently fair, reliable outcomes. Contrary to the claims made by one commenter, the Supreme Court has never required application of the 1411 Id. 1412 E.g., Addington v. Tex., 441 U.S. 418, 424 (1979) (holding that the clear and convincing evidence standard was required in civil commitment proceedings) (noting that clear and convincing evidence is an ‘‘intermediate standard’’ between preponderance of the evidence and the criminal beyond a reasonable doubt standard and that the clear and convincing evidence standard ‘‘usually employs some combination of the words ‘clear,’ ‘cogent,’ ‘unequivocal,’ and ‘convincing’ ’’ and while less commonly used than the preponderance of the evidence standard, the clear and convincing evidence standard is ‘‘no stranger to the civil law’’ and is sometimes used in civil cases ‘‘involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant’’ where ‘‘the interests at stake are deemed to be more substantial than mere loss of money’’ justifying reduction of ‘‘the risk to the defendant of having his [or her] reputation tarnished erroneously.’’) (internal quotation marks and citations omitted). 1413 For discussion of the intersection between the § 106.30 definition of sexual harassment, and the First Amendment, see the ‘‘Sexual Harassment’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble. PO 00000 Frm 00349 Fmt 4701 Sfmt 4700 30373 criminal ‘‘beyond a reasonable doubt’’ standard in Title IX proceedings, and the Department is not aware of a Federal appellate court decision requiring adoption of the criminal standard of evidence in Title IX proceedings. The Department believes that requiring such a ‘‘beyond a reasonable doubt’’ standard of evidence in a noncriminal Title IX proceeding is unnecessary to meet due process of law and fundamental fairness requirements, or increase accuracy of outcomes, in Title IX grievance processes. Changes: The final regulations revise § 106.45(b)(7)(i) to refer to the revised requirement in § 106.45(b)(1)(vii), such that the a recipient must select between the preponderance of the evidence standard and clear and convincing evidence standard, and apply that selected standard consistently to all formal complaints alleging Title IX sexual harassment regardless of whether the respondent is a student or an employee. We also revise § 106.44(a) of the final regulations to explicitly prohibit the Department from deeming recipients’ restriction of rights protected under the First Amendment to be evidence that the recipient was not deliberately indifferent. Supporting § 106.45(b)(7)(i) Comments: Some commenters expressed support for the NPRM’s approach to the standard of evidence. Commenters asserted that many collective bargaining agreements (CBAs) applicable to school employees mandate the clear and convincing evidence standard and argued that students deserve the same rights and protections since students are the ones paying tuition. One commenter cited a poll about public perceptions of higher education that found 71 percent of people responding to the poll believed, ‘‘[s]tudents accused of sexual assault on college campuses should be punished only if there is clear and convincing evidence that they are guilty of a crime.’’ 1414 Discussion: The Department appreciates the support from commenters regarding the proposed rules’ approach to the standard of evidence. For reasons discussed above, the final regulations at § 106.45(b)(1)(vii) and § 106.45(b)(7)(i) continue to permit recipients to select between the preponderance of the evidence standard, or the clear and convincing evidence standard. We acknowledge the poll cited by one 1414 Commenter cited: Bucknell Institute for Public Policy, Perceptions of Higher Education Survey—Topline Results (2017). E:\FR\FM\19MYR2.SGM 19MYR2 30374 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations commenter finding that the majority of people responding to the poll supported application of the clear and convincing evidence standard to address allegations of sexual assault in the postsecondary context. While the Department does not reach legal or policy decisions on the basis of public polls, we believe that in light of the strong procedural rights granted to both parties under the § 106.45 grievance process, either the preponderance of the evidence standard or the clear and convincing evidence standard may be applied to reach fair, accurate determinations regarding responsibility in Title IX grievance processes, and recipients should be permitted to select either standard. We acknowledge that many employee CBAs mandate the clear and convincing evidence standard. The Department believes that giving recipients the choice between the preponderance of the evidence standard and the clear and convincing evidence standard, along with the requirement contained in § 106.45(b)(1)(vii) that the same standard of evidence must apply for complaints against students as for complaints against employees and faculty, helps to ensure consistency in recipients’ handling of Title IX proceedings. To better ensure that recipients have a true choice between the two standards of evidence, we have removed the NPRM’s language from § 106.45(b)(7)(i) that would have allowed selection of the preponderance of the evidence standard only if the recipient also used that standard for non-sexual harassment misconduct that carried similar potential sanctions. The grievance process, including the standard of evidence the recipient will apply, should not vary based on the identity or status of the respondent (i.e., student or employee). However, each recipient is allowed to select one of the two standards of evidence (both of which are used in a variety of civil proceedings) to decide what degree of confidence the recipient’s decisionmakers must have in the factual correctness of determinations regarding responsibility in Title IX grievance processes. Changes: The Department has revised § 106.45(b)(7)(i) of the final regulations such that recipients have the choice of either applying the preponderance of the evidence standard or the clear and convincing evidence standard, and § 106.45(b)(1)(vii) requires a recipient to make that choice applicable to all formal complaints of sexual harassment, including those against employees and faculty. We have removed the limitation contained in the NPRM that would have permitted recipients to use the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 preponderance of the evidence standard only if a recipient used that standard for non-sexual misconduct that has the same maximum disciplinary sanction. One-Sided Condition on Choice of Evidentiary Standard Comments: Commenters questioned the NPRM’s requirement that if the preponderance of the evidence standard is used in Title IX cases then it must be used in non-Title IX cases with the same maximum punishment. Commenters suggested this would undermine recipient flexibility. Some commenters asserted that the NPRM presented a false choice of an evidentiary standard because the proposed rules imposed a one-way ratchet where schools may use the clear and convincing evidence standard in sexual assault cases and a lower standard in other cases, but not vice versa, thereby disadvantaging complainants in sexual harassment situations but not in other situations. Some commenters asserted that the Department lacks authority under Title IX to impose requirements on non-Title IX related disciplinary proceedings. One commenter argued that the Department should not interfere with recipient autonomy in determining the appropriate standard of evidence; this commenter suggested that the Department: (1) Limit the preponderance of the evidence standard to recipients who used it before the Department advised them to; (2) limit the preponderance of the evidence standard for sexual misconduct cases to recipients who had the preponderance of the evidence standard for non-sexual cases before the NPRM; or (3) mandate all recipients use the clear and convincing evidence standard, but allow recipients to adopt the preponderance of the evidence standard if done by internal process initiated at least one year after the clear and convincing evidence standard takes effect. One commenter asserted the NPRM’s approach to standard of evidence is a heavy-handed Federal mandate to use the clear and convincing evidence standard, which is inconsistent with the current Administration’s deregulatory agenda. This commenter asserted that the Department should not usurp the authority of school boards or micromanage recipients. Discussion: The Department is persuaded by the concerns raised by commenters that the NPRM’s prohibition on recipients using the preponderance of the evidence standard unless they also used that standard for non-sexual misconduct that carries the same maximum punishment constituted a one-way restriction that appeared to PO 00000 Frm 00350 Fmt 4701 Sfmt 4700 many commenters to leave a recipient without a genuine choice between the two standards of evidence. The Department is also persuaded by commenters’ objections that the NPRM approach may have had the unintended consequence of pressuring recipients to choose a standard of evidence for nonTitle IX misconduct situations, potentially exceeding the Department’s authority to effectuate the purpose of Title IX. For these reasons, the Department has simplified its approach to the standard of evidence contained in § 106.45(b)(1)(vii) and referenced in § 106.45(b)(7)(i), such that recipients may select the preponderance of the evidence standard or the clear and convincing evidence standard, without restricting that selection based on what standard of evidence a recipient uses in non-Title IX proceedings. The Department believes this revised approach better ensures that the Department is not inspecting how recipients handle non-Title IX misconduct proceedings. We acknowledge the alternative approaches to the standard of evidence raised by one commenter that would limit the application of the preponderance of the evidence standard. However, the Department believes that recipients are in the best position to select the standard of evidence that suits their unique values and the needs of their educational community and the Department thus declines to impose restrictions or requirements upon recipients who select the preponderance of the evidence standard. Because the final regulations grant recipients the unrestricted right to choose between the preponderance of the evidence standard and the clear and convincing evidence standard, we disagree that the final regulations reflect a heavy-handed Federal mandate inconsistent with the current Administration’s deregulatory agenda. Changes: The Department has revised § 106.45(b)(7)(i) of the final regulations such that recipients have the choice of either applying the preponderance of the evidence standard or the clear and convincing evidence standard, and § 106.45(b)(1)(vii) requires a recipient to make that choice applicable to all formal complaints of sexual harassment, including those against employees and faculty. We have removed the limitation contained in the NPRM that would have permitted recipients to use the preponderance of the evidence standard only if they used that standard for nonsexual misconduct that has the same maximum disciplinary sanction. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Same Evidentiary Standard in Student and Faculty Cases Comments: Several commenters expressed support for the NPRM’s requirement that the same standard of evidence be used in student and faculty cases. Commenters stated that this is important for fairness; the Department should not permit recipients to disfavor certain groups. A few commenters raised the point that, unlike students, employees and faculty often have superior leverage as a group when negotiating terms with recipients. Commenters stated that the NPRM’s approach would level this playing field. One commenter contended that setting the same standard for both students and employees will enhance predictability and consistency. Another commenter asserted that promoting a uniform set of evidentiary standards would reduce recipients’ costs to administer their Title IX disciplinary programs and train personnel. Some commenters believed that the Department was correctly encouraging schools to apply the clear and convincing evidence standard in Title IX cases. They stated that the clear and convincing evidence standard is appropriate given the long-lasting and serious consequences of being deemed responsible for sexual misconduct. Commenters argued that faculty may lose lifelong employment and suffer permanent reputational damage, and the preponderance of the evidence standard is insufficient to protect academic freedom and tenure. One commenter argued that just because the preponderance of the evidence standard is used in civil litigation does not mean it is appropriate for Title IX proceedings; the two systems are fundamentally distinct because the latter does not have procedural protections such as civil access to counsel, discovery, cross-examination, presumption of innocence, juries, or impartiality of decision-makers that may otherwise render the proceeding fair despite a lower evidentiary standard. The commenter asserted that the clear and convincing evidence standard may also mitigate the impact of racial bias that disproportionately affects male students and faculty in sexual harassment cases. Other commenters opposed the NPRM’s requirement that the same standard of evidence apply in student and faculty cases. Commenters emphasized the practical difficulty of recipients changing applicable standards for employee cases, given the reality that many faculty collective bargaining agreements (CBAs) mandate VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the clear and convincing evidence standard 1415 and that many postsecondary institutions choose to follow American Association of University Professors (AAUP) standards that include a clear and convincing evidence standard for faculty misconduct, even if the recipient’s CBA does not mandate that standard.1416 Commenters asserted that some State laws require recipients to use the clear and convincing evidence standard, especially for tenured faculty discipline cases, which may negate the flexibility that the Department was trying to provide recipients regarding a choice of standard of evidence. Commenters argued that recipients subject to such CBAs or State laws do not have a neutral choice because these recipients may be required to use a clear and convincing evidence standard for employees and the NPRM requires such recipients to also use that standard for students even if recipients would rather use different standards for students than employees. Other commenters stated that some State laws require postsecondary institution recipients to apply a preponderance of the evidence standard to student sexual misconduct disciplinary proceedings yet the proposed regulations may leave such recipients with a potential conflict between continuing to follow their State law by using the preponderance of the evidence standard (in student cases) but violating these final regulations (if the recipient is also bound under a CBA to apply a clear and convincing evidence standard to faculty misconduct and cannot raise the standard of evidence used in student cases without violating State law). One commenter stated that at the commenter’s university, clear and convincing evidence is required to dismiss a faculty member while a preponderance of the evidence is required to punish a student, even for similar misconduct, which ‘‘translates to the school being less inclined to fire a faculty member over an allegation than to punish a student over an allegation.’’ This commenter argued that 1415 Commenters cited: Vill. of Posen v. Ill. Fraternal Order of Police Labor Council, 2014 Ill. App. 133329 (Ill. Ct. App. 2014) (in cases involving criminal conduct or stigmatizing behavior, many arbitrators apply higher burden of proof, typically the clear and convincing evidence standard) (quoting American Bar Association Section of Labor and Employment Law, Elkouri & Elkouri: How Arbitration Works 15–25 (Kenneth May et al. eds., 7th ed. 2012)); Nick Gier, An Update on Unions in Higher Education, Idaho State Journal (Sept. 2, 2018). 1416 Commenters cited: Judith Areen, Government as Educator: A New Understanding of First Amendment Protection of Academic Freedom and Governance, 97 Georgetown L. J. 946 (2009). PO 00000 Frm 00351 Fmt 4701 Sfmt 4700 30375 the proposed rules would force schools in that situation to make a choice: Either lower the standard of evidence required to dismiss a faculty member, or raise the standard of evidence for all claims to the standard used for dismissing a faculty member, which would mean either making it easier to prove accusations against a faculty member or making it harder to prove any allegation (against any respondent). The commenter believed that the proposed rules should not force schools to make a choice between making it easier to fire faculty or making it harder to believe sexual assault victims. One commenter cited studies of faculty sexual harassment cases that showed professors usually have multiple victims, mostly students, and that faculty harassers who experience sanctions are less likely to repeat serious harassment.1417 This commenter argued that if the proposed rules’ approach leads universities to comply by applying the clear and convincing evidence standard across the board for student and faculty sexual misconduct matters, then in effect universities would be forced by Federal regulatory requirements to ‘‘single out’’ for unfavorable treatment their faculty and graduate students who are investigated for research misconduct because Federal regulations require research misconduct linked to federally funded research grants to be shown under a preponderance of the evidence standard, while sexual misconduct would be investigated under a clear and convincing evidence standard. The commenter asserted that because a finding of research misconduct carries significant public stigma (such as the respondent’s name and case summary posted on government websites and scientific watchdog organization websites), concern for the heightened stigma faced by respondents accused of sexual misconduct is not an appropriate justification for the proposed rules’ apparent encouragement of the clear and convincing evidence standard. Some commenters argued that discipline of students, and discipline of employees, serve fundamentally different goals and applying a one-sizefits-all approach is inappropriate. Commenters asserted that student discipline has a mainly educational purpose, whereas employee discipline is about when to take adverse 1417 Commenters cited: Nancy Chi Cantalupo & William Kidder, A Systematic Look at a Serial Problem: Sexual Harassment of Students by University Faculty, 2018 Utah L. Rev. 671, 744 fig. 5B (2018); Margaret A. Lucero et al., Sexual Harassers: Behaviors, Motives, and Change Over Time, 55 Sex Roles 331 (2006). E:\FR\FM\19MYR2.SGM 19MYR2 30376 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations employment action. Commenters cited scholarly articles and cases to suggest that students and employees are different constituencies with different interests; for example, universities have obligations to protect student safety that differ from obligations to protect employee safety.1418 Commenters asserted that the student/recipient relationship is different than the employee/recipient relationship, in part because the student pays tuition to gain educational and developmental services from the school and the school has an affirmative obligation to create an educational environment conducive to that goal. On the other hand, commenters argued, employees provide services to the school, mainly to benefit the students, and are paid by the school for their services, and while all employees have a right to a workplace free from discrimination, the school has no obligation to encourage an employee’s social and personal development. Commenters argued that Title IX is about equal educational access, not about making sure that schools treat all classes of respondents the same way. One commenter contended that it is unfair to hold students to the same standard of evidence as employees because students are not parties to the employee union’s CBAs and argued that the Department should not bind students to outcomes of negotiations in which the students could not participate. One commenter stated that, unlike students, university employees can lose lifetime employment, a much more serious outcome than being forced to leave one particular university, and this difference justifies using a higher burden of proof in faculty cases. One commenter asserted that the proposed rules’ requirement to use the same standard of evidence for cases with student-respondents as with employee-respondents stems from antiunion bias. One commenter argued that the proposed choice given to recipients in 1418 Commenters cited, e.g., Kristen Peters, Protecting the Millennial College Student, 16 S. Cal. Rev. of L. & Social Justice 431, 448 (2007) (schools have a qualitatively different relationship with their employees than their students. In the modern university context, courts ‘‘have increasingly recognized a college’s duty to provide a safe learning environment both on and off campus.’’); Duarte v. State, 88 Cal. App. 3d 473 (Cal. 1979) (noting that students ‘‘in many substantial respects surrender[]the control of [their] person[s], control of [their] own security to the university’’); Mullins v. Pine Manor Coll., 449 NE2d 331, 335–36 (Mass. 1983) (holding that ‘‘[p]arents, students, and the general community . . . have a reasonable expectation, fostered in part by colleges themselves, that reasonable care will be exercised to protect resident students from foreseeable harm.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the NPRM could potentially expose recipients to liability for sex discrimination under 34 CFR 106.51 (‘‘A recipient shall not enter into a contractual or other relationship which directly or indirectly has the effect of subjecting employees or students to discrimination . . .’’) (emphasis added). This commenter argued that recipients who currently use the preponderance of the evidence standard in sexual harassment cases involving studentrespondents, may be forced by the NPRM to raise the standard of evidence to the clear and convincing evidence standard in order to comply with recipients’ CBAs, yet that reason for raising the standard of evidence (and, in the commenter’s view, disfavoring complainants by raising the standard of evidence) may constitute violation of 34 CFR 106.51 because raising the standard of evidence to match what the recipient uses in a CBA could be viewed as having entered into a CBA (i.e., a contractual or other relationship) that indirectly has the effect of subjecting students to discrimination (i.e., by ‘‘disfavoring’’ complainants alleging sexual harassment). One commenter contended that the inherent power imbalance between faculty and students means that faculty may be viewed as more credible than students, and thus the applicable standard of evidence should not necessarily be identical. Discussion: The Department appreciates commenters’ support for the approach to recipients’ selection of a standard of evidence, and agrees that offering a choice between two reasonable standards provides consistency across cases, within each recipient’s educational community, regardless of whether the respondent is an employee or a student, while providing recipients flexibility to select the standard that best meets the recipient’s unique needs and reflects the recipient’s values. The Department disputes commenters’ assertion that the Department is encouraging the selection of the clear and convincing evidence standard. As shown by the fact the final regulations respond to commenters’ concerns by removing the NPRM’s restriction on the use of the preponderance of the evidence standard, the Department’s intention is to permit recipients to choose between two standards of evidence, either of which can be applied to Title IX grievance processes to produce fair and reliable outcomes. The Department acknowledges the concerns raised by some commenters regarding the challenges that may arise from implementing the requirement PO 00000 Frm 00352 Fmt 4701 Sfmt 4700 contained in § 106.45(b)(1)(vii) and § 106.45(b)(7)(i) that the same standard of evidence be used for complaints against students as for complaints against employees and faculty. We recognize the reality that some employee CBAs or State laws mandate application of the clear and convincing evidence standard for employee or faculty misconduct, that some recipients use a lower standard of evidence in cases involving student-respondents than in cases involving employeerespondents, and that it may be challenging for such recipients to decide whether to raise the standard of evidence (for student cases) or lower the standard of evidence (for employee cases) so that all formal complaints of sexual harassment use the same standard of evidence as required under the final regulations. The Department believes that recipients should carry the same burden of proof,1419 weighing relevant evidence against the same standard of evidence, with respect to any complainant’s allegations of Title IX sexual harassment. The Department believes that complainants in a recipient’s educational community should face the same process, including the same standard of evidence, in a Title IX grievance process regardless of whether the respondent who allegedly sexually harassed the complainant is a student, employee, or faculty member. The Department believes that either the preponderance of the evidence standard, or the clear and convincing evidence standard, may be applied to allegations of sexual harassment to reach fair, reliable outcomes, and thus the Department permits recipients to select either of those standards of evidence. As shown by the fact that commenters confirmed that many recipients currently use the clear and convincing evidence standard of evidence in employee-respondent sexual misconduct cases while using the preponderance of the evidence standard of evidence standard in studentrespondent cases, valid reasons exist as to why a recipient might believe that either one of those standards of evidence reflects the appropriate level of confidence that decision-makers should have in the factual correctness of determinations regarding responsibility in sexual misconduct cases. The final regulations require recipients to give complainants the predictability of knowing that the standard of evidence that applies to a formal complaint of sexual harassment in a particular 1419 Under the final regulations, § 106.45(b)(5)(i), the burden of proof rests on the recipient, not on the parties. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recipient’s grievance process will not vary depending on whether the complainant was sexually harassed by a fellow student, or by a school employee. The Department acknowledges that employees and faculty members may have greater bargaining power and leverage than students in extracting guarantees of protection under a recipient’s grievance procedures, and that some recipients apply a clear and convincing evidence standard for complaints of employee misconduct through CBAs or due to choosing to follow AAUP guidelines. However, the Department does not believe that is necessary or reasonable to draw distinctions among complainants alleging Title IX sexual harassment based on the status of the respondent as a ‘‘student’’ versus an ‘‘employee.’’ Furthermore, a growing trend within postsecondary institutions is for graduate students to unionize, and such a trend blurs the lines between categories of students and employees, with respect to collective bargaining power.1420 Collective bargaining through a union may, as commenters asserted, give employees greater ‘‘bargaining power’’ than students have; on the other hand, student activism often succeeds in ‘‘bargaining’’ for university action on a variety of matters that affect students. Regardless of the relative strength of ‘‘bargaining power’’ of employees and students, the Department believes that a recipient must implement a fair grievance process for all complainants that does not use a different standard of evidence based on whether the complainant alleges sexual harassment against an employee, or against a student. Complainants (especially students) who allege sexual harassment against an employee already face the possibility that the respondent, as an employee, may be in a position of actual or perceived authority over the complainant, and the Department does not wish to encourage recipients to exacerbate that power differential by treating some complainants (i.e., those 1420 E.g., Leslie Crudele, Graduate Student Employees or Employee Graduate Students? The National Labor Relations Board and the Unionization of Graduate Student Workers in Postsecondary Education, 10 William & Mary Bus. L. Rev. 739, 741–42 (2019) (noting that as college enrollment has increased, so has the number of teaching staff, and that as of 2013 the Bureau of Labor Statistics found there were approximately 1.13 million graduate teaching assistants employed at postsecondary institutions); id. at 780 (after detailing the history of unionization of graduate students at public and private colleges and universities, concluding that the National Labor Relations Board has most recently laid groundwork for a continuing trend toward graduate student unionization). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 who allege sexual harassment against a recipient’s employee) differently from other complainants (i.e., those who allege sexual harassment against a recipient’s student) by requiring the former group of complainants to navigate a grievance process that will apply a higher standard of evidence than complainants in the latter group of complainants.1421 Complainants should know that their school, college, or university has selected a standard of evidence (representing the ‘‘degree of confidence’’1422 that a recipient requires a decision-maker to have in the factual accuracy of the determination regarding responsibility) that will apply regardless of the identity, status, or position of authority of the respondent. The Department does not view the potential consequences of being found responsible for sexual harassment as less serious for students than employees; while employees face potential loss of employment, students face potential loss of educational opportunities which may also affect a student’s career opportunities. While some employees found responsible for sexual harassment may lose all future career opportunities and some students found responsible may transfer to other institutions, the converse also occurs; some employees found responsible find work elsewhere and some students found responsible find it impossible to transfer to other institutions. The potential consequences of being found responsible, therefore, may be just as serious for a student as for an employee, and differences in the nature of potential consequences does not justify using a different standard of evidence for employee-respondent cases than for student-respondent cases. At the same time, a complainant alleging Title IX 1421 The standard of evidence used for a class of claims reflects a societal judgment about the level of confidence a decision-maker should have before reaching a conclusion in the case. E.g., In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring) (the purpose of a standard of proof is ‘‘to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’’). The Department believes that a recipient’s selection of a standard of evidence appropriate for resolving sexual harassment formal complaints should reflect the recipient’s decision about the level of confidence the recipient believes a decision-maker should have in reaching a conclusion, that all complainants who file formal complaints of sexual harassment with a recipient should have the benefit of understanding the recipient’s decision on that issue, and that different ‘‘degrees of confidence’’ should not be applied based on a respondent’s status as a student or employee because whether the respondent is a student or employee does not necessarily alter the nature of the harm that the alleged conduct inflicted on the complainant or lessen the seriousness of potential consequences for the respondent. 1422 Id. PO 00000 Frm 00353 Fmt 4701 Sfmt 4700 30377 sexual harassment faces potential loss of equal educational access if sexual harassment allegations are not resolved accurately, regardless of whether the complainant has been allegedly sexually harassed by a student or by an employee. For respondents (whether students or employees) and for complainants (whether students or employees), it is important for a Title IX grievance process to reach a reliable outcome.1423 The Department agrees that recipients have a different relationship with the recipient’s students than with the recipient’s employees; the Department’s approach to the standard of evidence ensures that a recipient does not adjudicate a student-complainant’s formal complaint differently based on whether the student-complainant was allegedly sexually harassed by a student, or by an employee. Because the final regulations do not require particular disciplinary sanctions, the final regulations do not preclude a recipient from imposing student discipline as part of an ‘‘educational purpose’’ that may differ from the purpose for which a recipient imposes employee discipline. The Department’s approach to the standard of evidence is not based on concern that a recipient must treat all classes of respondents the same way, but is based on the Department’s concern that all complainants within a recipient’s education program or activity are treated the same way, including facing the same standard of evidence when a complainant’s sexual harassment allegations are resolved. Permitting recipients to select between the two standards of evidence allows recipients who face conflicting 1423 For an example of divergent views about the appropriate standard of evidence within a university’s faculty members, raising arguments for and against retaining the clear and convincing evidence standard for employees, see, e.g., Matt Butler, Standard of proof in sexual assault cases debated by professors, The Review (Nov. 10, 2014) (University of Delaware student newspaper article reporting on a faculty debate about whether the university should lower the standard of evidence used in faculty sexual misconduct cases from the clear and convincing evidence standard to the preponderance of the evidence standard, in light of OCR’s insistence that universities must use the preponderance of the evidence standard, reporting that ‘‘some faculty supported the lower burden of proof as a means of creating—in reality and perception—a safer place for students’’ but also quoting Kathy Turkel, a women and gender studies professor, as asserting that ‘‘the student environment should be the most important factor’’ but ‘‘the lower standards of proof violate due process rights of the professors’’ and a ‘‘higher standard of proof’’ would ‘‘outweigh the negatives, and it would actually help both the accuser and the accused in cases of sexual assault’’ because ‘‘it is due process that protects both complainants and perpetrators in these cases’’). E:\FR\FM\19MYR2.SGM 19MYR2 30378 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations requirements imposed by contracts or laws outside these final regulations the ability to resolve such conflict in whichever way a recipient deems appropriate.1424 Not all recipients are subject to CBAs that require a different standard of evidence for employee discipline than the recipient uses for student discipline, and not all recipients are subject to State laws that mandate the standard of evidence to be used in student disciplinary cases; such recipients may select a standard of evidence in compliance with these final regulations without the external factors of CBA or State law requirements. For recipients who have CBAs requiring a clear and convincing evidence standard in employee cases but no State law directive requiring a different standard of evidence in student cases, recipients may comply with these final regulations by using the clear and convincing evidence standard in student cases, or by renegotiating their CBAs to use the preponderance of the evidence standard for employee cases. For recipients who do have CBAs requiring a clear and convincing evidence standard (in employee cases) and State laws requiring a preponderance of the evidence standard (in student cases), such recipients may find it appropriate to comply with these final regulations by renegotiating their CBAs rather than violate State law. We 1424 The challenge with potential conflict between Federal Title IX expectations regarding a standard of evidence, and CBAs that require a different (usually higher) standard of evidence, is a challenge that has faced recipients since the Department first took a position with respect to an appropriate standard of evidence. In the withdrawn 2011 Dear Colleague Letter the Department insisted that only the preponderance of the evidence standard was appropriate in Title IX sexual harassment cases and made no exception for cases against faculty. The Department believes that the approach in these final regulations may help recipients address the challenge that some recipients face in reconciling CBAs with Title IX obligations, by allowing recipients to select one of two reasonable options regarding a standard of evidence for Title IX purposes. See Lance Toron Houston, Title IX Sexual Assault Investigations in Public Institutions of Higher Education: Constitutional Due Process Implications of the Evidentiary Standard Set Forth in the Department of Education’s 2011 Dear Colleague Letter, 34 Hofstra Labor & Employment L. J. 321, 322–23 (2017) (‘‘This issue represents the evolution and eventual collision of years of legal jurisprudence involving collective bargaining rights from the origin of public employee law and the administratively relaxed evidentiary standards at play in Title IX sexual assault investigations in public higher education. In a nutshell, when collectively bargained labor agreements on American public college campuses calls for the heightened ‘clear and convincing’ evidentiary standard in a sexual assault investigation of a unionized employee, but federally mandated Title IX investigations as required by the 2011 Dear Colleague Letter only require the much lower threshold ‘preponderance of the evidence’ standard to discipline the accused public employee, which prevails?’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 acknowledge commenters’ point that renegotiating a CBA is often a timeconsuming process; however, a recipient’s contractual and employment arrangements must comply with Federal laws,1425 and recipients of Federal financial assistance understand that a condition placed upon receipt of Federal funds is operation of education programs or activities free from sex discrimination under Title IX, including compliance with regulations implementing Title IX. Some recipients cooperatively worked with their employee unions and renegotiated their CBAs in response to the Department’s withdrawn 2011 Dear Colleague Letter so that the recipient would use the preponderance of the evidence standard with respect to employee cases, and student cases.1426 These final regulations do not require recipients who have already modified their policies and procedures in that manner to make further changes in that regard, because under these final regulations a recipient may select the preponderance of the evidence standard. These final regulations are focused on the appropriate standard of evidence for use in resolving allegations of Title IX sexual harassment, and not on the appropriate standard of evidence for use in cases of other types of misconduct by students, or employees. This is emphasized by our revision to the final regulations removing the NPRM’s approach that tied the preponderance of the evidence standard to the standard of evidence a recipient uses in non-sexual harassment misconduct cases. Whether or not a recipient is required to use a certain standard of evidence under Federal regulations governing nonsexual misconduct violations (for instance, research misconduct by faculty or graduate students), the Department’s concern in these final regulations is ensuring that a recipient 1425 E.g., a typical clause included in a college’s faculty CBA states: ‘‘This agreement and its component provisions are subordinate to any present or future Federal or New York laws and regulations.’’ Agreement (Faculty) Between Onondaga Community College And The Onondaga Community College Federation Of Teachers And Administrators AFT, Local 1845 September 1, 2014–August 31, 2019. 1426 Lance Toron Houston, Title IX Sexual Assault Investigations in Public Institutions of Higher Education: Constitutional Due Process Implications of the Evidentiary Standard Set Forth in the Department of Education’s 2011 Dear Colleague Letter, 34 Hofstra Labor & Employment L. J. 321, 351 (2017) (stating that ‘‘some schools have taken the bold initiative to preemptively lower the standard of proof in cooperation with university labor unions in order to avoid litigation and potential DOE [Department of Education] Title IX investigations’’ and citing a University of Delaware CBA from 2015, and a California State University system CBA from 2014, as examples). PO 00000 Frm 00354 Fmt 4701 Sfmt 4700 uses a single, selected standard of evidence for Title IX sexual harassment cases so that complainants alleging sexual harassment face a predictable grievance process regardless of whether the complainant has alleged sexual harassment by a student, employee, or faculty member. Contrary to commenters’ assertions otherwise, the Department does not through these final regulations promote or encourage the clear and convincing evidence standard (or the preponderance of the evidence standard) and while we acknowledge that reputational stigma and potential life-altering consequences facing respondents accused of sexual misconduct may be reasons why a recipient might select a clear and convincing evidence standard, we do not contend that reputational stigma or life-altering consequences are absent in other types of misconduct allegations, such as research misconduct by graduate students or faculty.1427 The Department does not believe this approach to a recipient selecting the standard of evidence for use in all Title IX sexual harassment cases harms unions or reflects anti-union bias. If a recipient decides to renegotiate CBA terms in order to comply with Title IX obligations, that result is for the benefit of all students and employees (including complainants and respondents) whose Title IX rights will be more predictable and transparent, reflecting the recipient’s judgment as to what level of confidence decisionmakers should have in the accuracy of determinations regarding responsibility in sexual harassment cases. The Department does not believe that this 1427 We disagree that using a clear and convincing evidence standard for formal complaints of sexual harassment, while using a preponderance of the evidence standard for allegations of research misconduct, necessarily places respondents accused of the latter misconduct in a disfavored position. The elements of research misconduct differ from the elements of sexual harassment (as defined in § 106.30) in ways that may justify using different standards of evidence (as explained above, a standard of evidence represents the degree of confidence the decision-maker must have in having reached a factually correct conclusion). For instance, ‘‘research misconduct’’ requires the misconduct to be committed intentionally, knowingly, or recklessly, while the § 106.30 definition of sexual harassment does not require an element of intentionality. E.g., Gary S. Marx, An Overview of The Research Misconduct Process and an Analysis of the Appropriate Burden of Proof, 42 Journal of Coll. & Univ. L. 311, 317 (2016) (‘‘Under the regulations adopted by HHS and by NSF, the following evidence is required to establish research misconduct: (a) There must be a significant departure from accepted practices of the relevant research community, (b) the misconduct must be committed intentionally, knowingly, or recklessly; and (c) the allegation must be proven by a preponderance of the evidence.’’). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations approach subjects recipients to liability under 34 CFR 106.51, because the Department does not assume that a recipient that changes the standard of evidence used in student cases to be the same standard as the recipient uses under employee CBAs makes that change for the purpose of disadvantaging complainants who allege sexual harassment; the Department believes that a recipient that makes that decision does so because the recipient has determined that the selected standard of evidence is the appropriate standard for resolving sexual harassment allegations. As discussed throughout this ‘‘Section 106.45(b)(7)(i) Standard of Evidence and Directed Question 6’’ subsection, commenters noted a variety of reasons to prefer the preponderance of the evidence standard over the clear and convincing evidence standard and vice versa. The Department believes that either standard of evidence (preponderance of the evidence, or clear and convincing evidence) may be applied fairly to reach reliable outcomes. The Department also does not believe that a recipient that selects the clear and convincing evidence standard subjects complainants to discrimination by ‘‘disfavoring’’ complainants of sexual harassment compared to complainants of other forms of misconduct just because the preponderance of the evidence is used as the standard in other forms of misconduct. As noted previously with respect to, for example, Federal regulations that require use of the preponderance of the evidence standard in cases of research misconduct, there may be differences in the elements needed to prove a type of misconduct that may justify using different standards of evidence. Further, the severity of potential consequences of a finding of responsibility for sexual misconduct may differ from the potential consequences of a finding of other kinds of misconduct. Additionally, recipients sometimes use a standard of evidence lower than the preponderance of the evidence standard for student misconduct. Thus, unless using preponderance also ‘‘disfavors’’ complainants of sexual harassment because some misconduct may continue to be decided under a lower standard of evidence, the Department does not believe that a recipient’s use of the clear and convincing evidence standard subjects complainants of sexual harassment to discrimination (by ‘‘disfavoring’’ them) just because other types of misconduct may be decided VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 under the preponderance of the evidence standard.1428 Whether or not commenters are correct in noting that power differentials between employees (particularly faculty) and students may tempt recipients to treat faculty as more credible than students, the final regulations allow recipients to select one of two standards of evidence consistently to all formal complaints; under either standard selected, the recipient is obligated to assess credibility based on objective evaluation of the evidence and not due to the party’s status as a complainant or respondent,1429 and without bias for or against complainants or respondents generally or for or against an individual complainant or respondent.1430 1428 E.g., Lavinia M. Weizel, The Process That Is Due: Preponderance of the Evidence as the Standard of Proof for University Adjudications of Student-on-Student Sexual Assault Complaints, 53 Boston Coll. L. Rev. 1613, 1633, 1637 (2012) (‘‘Substantial evidence is defined as enough relevant evidence that a reasonable person would support the fact-finder’s conclusion’’ and substantial evidence is a lower standard than the preponderance of the evidence standard because the former requires only ‘‘some reasonable quantity of evidence’’ while the latter requires ‘‘facts to be true to the degree of more likely than not’’); id. at 1642–43 (noting that OCR’s interpretation of Title IX and implementing regulations was, as of 2011, that only the preponderance of the evidence standard could be used for sexual harassment cases and ‘‘As a practical matter, schools may be more likely to face constitutional challenges for moving from the higher clear and convincing evidence standard to the lower preponderance of the evidence standard than for moving from the lower substantial evidence standard to the higher preponderance of the evidence standard,’’ analyzing ‘‘the benefits of preponderance of the evidence as compared to the lower substantial evidence standard’’ focusing on ‘‘whether the preponderance of the evidence standard is sufficient to protect accused students’ due process rights or whether the higher standard of clear and convincing evidence is required,’’ and asserting that ‘‘the use of the preponderance of the evidence standard, rather than the lower substantial evidence standard, will benefit schools, accused students, and perhaps all students, by lending greater legitimacy and uniformity to school disciplinary proceedings.’’); see also, e.g., Miss. Code Ann. § 37–9–71 (in Mississippi, ‘‘The standard of proof in all disciplinary proceedings shall be substantial evidence’’ and students may be suspended or expelled for ‘‘unlawful activity’’ defined in Miss. Code Ann. § 37–11–29 to include rape, sexual battery, and fondling as well as non-sex crimes such as aggravated assault; thus, if Mississippi follows OCR’s position since the withdrawn 2011 Dear Colleague Letter that only the preponderance of the evidence standard should be used for sexual violence cases, and follows Mississippi State law directing schools to apply the substantial evidence standard for unlawful activity, Mississippi would use preponderance of the evidence for sexual harassment complainants and a lower standard of evidence for complainants of other types of misconduct, and the Department does not view this as Mississippi subjecting complainants of sexual harassment to discrimination by ‘‘disfavoring’’ them as compared to complainants of non-sexual harassment misconduct). 1429 Section 106.45(b)(1)(ii). 1430 Section 106.45(b)(1)(iii). PO 00000 Frm 00355 Fmt 4701 Sfmt 4700 30379 Changes: The Department has revised § 106.45(b)(7)(i) of the final regulations such that recipients have the choice of either applying the preponderance of the evidence standard or the clear and convincing evidence standard, and § 106.45(b)(1)(vii) requires a recipient to make that choice applicable to all formal complaints of sexual harassment, including those against employees and faculty. We have removed the limitation contained in the NPRM that would have permitted recipients to use the preponderance of the evidence standard only if they used that standard for nonsexual misconduct that has the same maximum disciplinary sanction. Requiring the Preponderance of the Evidence Standard Comments: Many commenters urged the Department to mandate the preponderance of the evidence standard in Title IX proceedings. Commenters argued that the preponderance of the evidence standard is the only standard that treats both parties fairly, consistent with Title IX’s requirement that grievance procedures be ‘‘equitable,’’ and that a higher standard would unfairly tilt proceedings in favor of respondents and against complainants.1431 Commenters argued that application of a heightened standard specifically in sexual misconduct cases reflects wrongful stereotypes that survivors, mainly girls and women, are more likely to lie than students who report other types of misconduct.1432 Commenters argued that the preponderance of the evidence standard is most appropriate because both parties have an equal interest in continuing their education. Commenters cited Title IX experts who support the preponderance of the evidence standard because, for example, it treats both parties equitably, levels the playing field between men and women, and because any higher standard than preponderance of the evidence would unfairly benefit respondents and discourage reporting of sexual assault by sending the message that a respondent’s future at the institution is more important than the complainant’s future 1431 Commenters cited: Katharine Baker et al., Title IX & the Preponderance of the Evidence: A White Paper (July 18, 2017) (signed by 90 law professors). 1432 Commenters cited, e.g., Sarah McMahon & G. Lawrence Farmer, An Updated Measure for Assessing Subtle Rape Myths, 35 Social Work Research 2 (2011); Linda A. Fairstein, Sexual violence: Our war against rape (William Morrow & Co. 1993); S. Zydervelt et al., Lawyers’ Strategies for Cross-Examining Rape Complainants: Have We Moved Beyond the 1950s?, 57 British Journal of Criminology 3 (2016); Martha R. Burt, Cultural Myths and Supports for Rape, 38 Journal of Personality & Social Psychol. 2 (1980). E:\FR\FM\19MYR2.SGM 19MYR2 30380 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations at the institution.1433 At least one commenter opined that using anything other than the preponderance standard demonstrates caring more about the accused than the complainant.1434 Commenters also asserted that the Department’s longstanding practice has been to require the preponderance of the evidence standard, that many recipients currently use this standard,1435 and that 1433 Commenters cited: Edward Stoner II & John Wesley Lowery, Navigating Past the ‘‘Spirit of Subordination’’: A Twenty-First Century Model Student Conduct Code with a Model Hearing Script, 31 Journal of Coll. & Univ. L. 1, 49 (2004); Lavinia M. Weizel, The Process that is Due: Preponderance of the Evidence as the Standard of Proof for University Adjudications of Student-on-Student Sexual Assault Complaints, 53 Boston Coll. L. Rev. 4, 1613, 1632 (2012); National Center for Higher Education Risk Management (The NCHERM Group), Due Process and the Sex Police (Apr. 2017) at 2, 17–18; Elizabeth Bartholet et al., Fairness For All Students Under Title IX 5 (Aug. 21, 2017); Association of Title IX Administrators (ATIXA), ATIXA Position Statement: Why Colleges Are in the Business of Addressing Sexual Violence 4 (Feb. 17, 2017) (‘‘The whole point of Title IX is to create a level playing field for men and women in education, and the preponderance standard does exactly that. No other evidentiary standard is equitable.’’); Student Affairs Administrators in Higher Education (NASPA), NASPA Priorities for Title IX: Sexual Violence Prevention & Response 1 (‘‘Rather than leveling the field for survivors and respondents, setting a standard higher than preponderance of the evidence tilts proceedings to unfairly benefit respondents.’’); Association for Student Conduct Administration (ASCA), ASCA 2014 White Paper: Student Conduct Administration & Title IX: Gold Standard Practices for Resolution of Allegations of Sexual Misconduct on College Campuses 2 (2014); Association for Student Conduct Administration (ASCA), The Preponderance of Evidence Standard: Use In Higher Education Campus Conduct Processes (‘‘Considering the serious potential consequences for all parties in these cases, it is clear that preponderance is the appropriate standard by which to reach a decision, since it is the only standard that treats all parties equitably. To use any other standard says to the victim/survivor, ‘Your word is not worth as much to the institution as the word of accused’ or, even worse, that the institution prefers that the accused student remain a member of the campus community over the complainant. Such messages do not contribute to a culture that encourages victims to report sexual assault.’’). 1434 Commenters cited: Michelle J. Anderson, Campus Sexual Assault Adjudication and Resistance to Reform, 125 Yale L. J. 1940, 1986 (2016). 1435 Commenters cited: Letter from Association of Title IX Administrators (ATIXA) et al. to Russlynn Ali, Assistant Sec’y for Civil Rights, Office for Civil Rights, Dep’t. of Education 2 (Feb. 7, 2012) (for the proposition that 80 percent of schools already used the preponderance of the evidence standard before OCR insisted on its use). Some commenters cited: Heather M. Karjane et al., Campus Sexual Assault: How America’s Institutions of Higher Education Respond 120, Final Report, NIJ Grant # 1999–WA– VX–0008 (Education Development Center, Inc. 2002); Angela Amar et al., Administrators’ Perceptions of College Campus Protocols, Response, and Student Prevention Efforts for Campus Sexual Assault, 29 Violence & Victims 579, 584–85 (2014); Jake New, Burden of Proof in the Balance, Inside Higher Education (Dec. 16, 2016) (for the proposition that 60–70 percent of institutions already used the preponderance of the evidence standard prior to the withdrawn 2011 Dear VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 courts generally use the preponderance of the evidence standard in civil rights litigation including for Title VI and Title VII.1436 At least one commenter argued that VAWA created civil rights of action for claims of rape and sexual assault and requires the preponderance of the evidence standard, and thus Title IX should not permit a different evidentiary standard to be used for conduct that also constitutes rape and sexual assault.1437 One commenter invoked the canon of in pari materia, in which similar statutes should be interpreted similarly, and argued that because lawsuits under Title VI and Title VII cases apply the preponderance of the evidence standard and these statutes serve the same basic civil rights purpose as Title IX, the preponderance of the evidence standard should also apply in Title IX proceedings. Colleague Letter); Michelle J. Anderson, The Legacy of the Prompt Complaint Requirement, Corroboration Requirement, and Cautionary Instructions on Campus Sexual Assault, 84 Boston Univ. L. Rev. 945, 1000 (2004) (for the proposition that most postsecondary institutions had voluntarily adopted the preponderance of the evidence standard for all student misconduct (not just sexual misconduct) by the early 2000s). 1436 Commenters cited: Bazemore v. Friday, 478 U.S. 385, 400 (1986), citing cases under Title VII (e.g., Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003)), Price Waterhouse v. Hopkins, 490 U.S. 228, 253 (1989); Tex. Dep’t. of Cmty. Affairs v. Burdine, superseded by statute, Civil Rights Act of 1991, as recognized in Landgraf v. USI Film Prods., 511 U.S. 244, 251 (1994); Elston v. Talladega Cnty. Bd. of Educ., 997 F.2d 1394, 1407 (11th Cir. 1993); Ramya Sekaran, The Preponderance of the Evidence Standard and Realizing Title IX’s Promise: An Educational Environment Free from Sexual Violence, 19 Georgetown J. of Gender & the L. 3 (2018); Judicial Business 2014, U.S. Courts (Sept. 30, 2014) (for the proposition that the majority of cases in U.S. legal system use the preponderance of the evidence standard, shown by the fact that the number of filings for criminal defendants represented less than a third of all Federal case filings in 2014); SEC v. Posner, 16 F.3d 520, 521 (2d Cir. 1994); EEOC v. Gaddis, 733 F.2d 1373, 1378– 79 (10th Cir. 1984); D. Allison Baker, Gender-Based Discrimination, 1 Georgetown J. of Gender & the L. 2 (2000) (for the proposition that preponderance of the evidence is the standard used in civil proceedings involving sexual harassment claims). Commenters also cited: Steadman v. SEC, 450 U.S. 91, 95–102 (1982); Valmonte v. Bane, 18 F.3d 992, 1003–05 (2d Cir. 1994) (for the proposition that preponderance is used in various administrative proceedings involving imposition of serious sanctions). Commenters also cited: William E. Thro, No Clash of Constitutional Values: Respecting Freedom and Equality in Public University Sexual Assault Cases, 28 Regent Univ. L. Rev. 197, 209 (2016) (for the proposition that a higher standard should not be used for campus proceedings than what is used in traditional court litigation); Patricia H. Davis, Higher Education Law: Title IX Cases, 80 Tex. Bus. J. 512 (2017) (for the proposition that preponderance is essential to hold perpetrators accountable and promote healthy campus environments). 1437 Commenters cited: Amy Chmielewski, Defending the Preponderance of the Evidence Standard in College Adjudications of Sexual Assault, 2013 BYU Educ. & L. J. 143 (2013). PO 00000 Frm 00356 Fmt 4701 Sfmt 4700 Commenters argued that Title IX proceedings do not involve potential denial of significant liberty interests or jail, but rather involve determinations about whether the accused has violated school policy. These commenters described Supreme Court cases requiring a higher standard of evidence (such as clear and convincing evidence) in only a narrow set of cases implicating particularly important interests,1438 such as civil commitment, deportation, denaturalization, termination of parental rights, and similar cases, and commenters argued that school disciplinary proceedings do not implicate uniquely important interests that would warrant a heightened evidentiary standard.1439 A few commenters argued that potential damage to future career prospects does not justify a higher standard because the preponderance of the evidence standard applies to Federal research misconduct cases, civil anti-fraud proceedings, and professional discipline cases.1440 One commenter asserted that the clear and convincing evidence standard is unfairly vague compared to the preponderance of the evidence standard, and can increase ambiguity in situations where there is already distrust of sexual assault survivors. This commenter asserted that schools often do not have capacity to thoroughly undertake investigations and uncover corroborative evidence, so the preponderance of the evidence standard is the most appropriate standard. Commenters expressed concern that economically disadvantaged students might not have the ability to access resources immediately after being raped or assaulted, and thus might not be able to obtain evidence that courts deem to meet a clear and convincing evidence standard. Another commenter expressed concern that applying a heightened standard for sexual misconduct could 1438 Commenters cited: Amy Chmielewski, Defending the Preponderance of the Evidence Standard in College Adjudications of Sexual Assault, 2013 BYU Educ. & L. J. 143, 150 (2013). 1439 Commenter cited: Chelsea Avent, Karasek v. Regents of the University of California: The Victimization of Title IX, 96 Neb. L. Rev. 772, 776 (2018). 1440 Commenters cited, e.g., In re Barach, 540 F.3d 82, 85 (1st Cir. 2008); Granek v. Tex. State Bd. of Med. Examiners, 172 SW3d 761, 777 (Tex. Ct. App. 2005) (for the proposition that many State and Federal courts apply the preponderance of the evidence standard to professional license revocation proceedings); Commenters cited an HHS study finding that two-thirds of States use the preponderance of the evidence standard in physician misconduct cases: Randall R. Bovbjerg et al., State Discipline of Physicians 14–15 (2006). Commenters cited: Gary S. Marx, An Overview of the Research Misconduct Process and an Analysis of the Appropriate Burden of Proof, 42 Journal of Coll. & Univ. L. 311, 364 (2016). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations inadvertently set up young men to fail once they enter the corporate world, where a zero-tolerance approach applies. Discussion: The Department acknowledges the arguments raised by many commenters that the Department should mandate a preponderance of the evidence standard in Title IX proceedings for reasons including fairness, consistency with civil litigation, and consistency with other civil rights laws including Title VI and Title VII. As to the sufficiency of evidence to meet a clear and convincing evidence standard, the Department appreciates the opportunity to clarify that neither the preponderance of the evidence standard, nor the clear and convincing evidence standard, requires corroborating evidence.1441 We recognize, as have many commenters, that sexual harassment situations may arise under circumstances where the only available evidence is the statement of each party involved. A recipient is obligated to objectively evaluate all relevant evidence, including inculpatory and exculpatory evidence.1442 The decision-maker can reach a determination regarding responsibility under a preponderance of the evidence standard, or a clear and convincing evidence standard, based on objective evaluation of party statements, with or without evidence that corroborates either party’s statements.1443 As discussed previously, a standard of evidence represents the ‘‘degree of confidence’’ that a decisionmaker must have in the conclusion 1441 Courts do not impose a requirement of corroborating evidence with respect to meeting either the preponderance of the evidence, or clear and convincing evidence, standard. See, e.g., Concrete Pipe & Prod. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (quoting In re Winship, 397 U.S. 358, 371– 372 (1970) (Harlan, J., concurring) (‘‘The burden of showing something by a ‘preponderance of the evidence,’ the most common standard in the civil law, ‘simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact’s existence.’ ’’)); cf., Sophanthavong v. Palmateer, 378 F.3d 859, 866–67 (9th Cir. 2004) (‘‘Clear and convincing evidence requires greater proof than preponderance of the evidence. To meet this higher standard, a party must present sufficient evidence to produce ‘in the ultimate factfinder an abiding conviction that the truth of its factual contentions are [sic] highly probable.’’) (quoting Colorado v. New Mexico, 467 U.S. 310, 316 (1984)). 1442 Section 106.45(b)(1)(ii). 1443 Gary S. Marx, An Overview of The Research Misconduct Process and an Analysis of the Appropriate Burden of Proof, 42 Journal of Coll. & Univ. L. 311, 347 (2016) (noting that with respect to a clear and convincing evidence standard, while ‘‘the proof must be of a heavier weight than merely the greater weight of the credible evidence, it does not require the evidence be unequivocal or undisputed’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 reached; 1444 a standard of evidence does not dictate the nature of available evidence that might lead a decisionmaker to reach the designated level of confidence. The statutory text of Title IX does not dictate a standard of evidence to be used by recipients in investigations of sexual harassment. The Department’s 2001 Guidance was silent on an appropriate standard of evidence during Title IX grievance procedures,1445 although the withdrawn 2011 Dear Colleague Letter took the position that using a clear and convincing evidence standard violates Title IX because only a preponderance of the evidence standard is consistent with resolution of civil rights claims.1446 It is true that civil litigation generally uses the preponderance of the evidence standard (although a clear and convincing evidence standard is applied in some civil litigation issues),1447 and that Title IX grievance processes are analogous to civil litigation in some ways. However, it is also true that Title IX grievance processes (as prescribed under these final regulations) do not have the same set of procedures available in civil litigation. For example, many recipients choose not to allow active participation by counsel; there are no comprehensive rules of evidence or rules of civil procedure in Title IX grievance processes that allow and govern pretrial motion practice; and Title IX grievance processes do not afford parties the same discovery tools available under rules of civil procedure. The Department does not wish to force schools, colleges, and universities to become de facto civil courts by imposing all the features of civil litigation onto the Title IX grievance process; rather, the Department has included in the § 106.45 grievance process those procedural protections the 1444 In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring) (the purpose of a standard of proof is ‘‘to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’’). 1445 2001 Guidance at 20. 1446 2011 Dear Colleague Letter at 11. 1447 Cal. ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454 U.S. 90, 92–93 (1981) (noting that the ‘‘purpose of a standard of proof is to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication’’ and ‘‘[t]hree standards of proof are generally recognized, ranging from the preponderance of the evidence standard employed in most civil cases, to the clear and convincing evidence standard reserved to protect particularly important interests in a limited number of civil cases, to the requirement that guilty be proved beyond a reasonable doubt in a criminal prosecution.’’) (internal quotation marks and citations omitted). PO 00000 Frm 00357 Fmt 4701 Sfmt 4700 30381 Department has determined necessary to serve the critical interests of creating a consistent, fair process promoting reliable outcomes. While selecting a standard of evidence is important to ensuring a transparent, fair, reliable process, the Department has determined that a recipient may apply either the preponderance of the evidence standard, or the clear and convincing evidence standard, to fairly and accurately resolve formal complaints of sexual harassment. The Department believes that recipients reasonably may conclude that the preponderance of the evidence standard is more appropriate (perhaps for the reasons advocated by commenters) or that the clear and convincing evidence standard is more appropriate (perhaps for the reasons advocated by other commenters). The Department believes that either standard of evidence, in combination with the rights and protections required under § 106.45, creates a consistent, fair process under which recipients can reach accurate determinations regarding responsibility. Factually accurate outcomes are critical in sexual harassment cases, where both parties face potentially life-altering consequences from the outcome, and either standard of evidence allowed under these final regulations reduces the risk of a factually inaccurate outcome. ‘‘Being labeled a sex offender by a university has both an immediate and lasting impact on a student’s life’’ may affect ‘‘educational and employment opportunities down the road’’.1448 When a finding of responsibility is erroneous, such consequences are unjust. At the same time, when a respondent is found not responsible for sexual harassment, the complainant receives no remedy restoring the complainant’s equal access to education,1449 with immediate and lasting impact on the complainant’s life, which may affect educational and employment opportunities down the road. When the finding of nonresponsibility is erroneous, such consequences are unjust. A complainant ‘‘deserves a reliable, accurate outcome as much as’’ a respondent.1450 The Department disagrees that the preponderance of the evidence standard means that complainants and respondents are treated ‘‘equally’’ or placed ‘‘on a level playing field.’’ Where 1448 Doe v. Baum, 903 F.3d 575, 582 (6th Cir. 2018). 1449 Nothing in these final regulations prevents a recipient from providing supportive measures to a complainant even after a determination of nonresponsibility. 1450 Doe v. Univ. of Cincinnati, 872 F.3d 393, 404 (6th Cir. 2017). E:\FR\FM\19MYR2.SGM 19MYR2 30382 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the evidence in a case is ‘‘equal’’ or ‘‘level’’ or ‘‘in equipoise,’’ the preponderance of the evidence standard results in a finding that the respondent is not responsible.1451 The Department recognizes that consistency with respect to administrative enforcement of Title IX and other civil rights laws (such as Title VI and Title VII) is desirable. However, these final regulations focus on furthering Title IX’s non-discrimination mandate and address challenges unique to recipients’ responses to sexual harassment. In this regard the Department has determined that recipients should retain flexibility to select the standard of evidence that they believe is most appropriate, because either of the two standards of evidence permitted under these final regulations may be used to produce reliable outcomes. The Department does not believe this approach to a standard of evidence under Title IX is in conflict with statutory or regulatory requirements under Title VI or Title VII that may apply to recipients who also have obligations under Title IX. Similarly, while VAWA authorizes private rights of action that (similarly to judicially implied private rights of action under Title VI and Title IX) use a preponderance of the evidence standard in civil litigation exercising those rights of action, these final regulations do not impact the standard of evidence that applies in civil litigation under any statute. For the reasons explained above the Department believes that either the preponderance of the evidence standard, or the clear and convincing evidence standard, is an appropriate standard in Title IX grievance processes, which differs from civil litigation. Even as to ways in which a Title IX grievance process is similar to civil litigation, both standards of evidence (the preponderance of the evidence standard and the clear and convincing evidence standard) are used in various types of civil litigation. As many commenters have noted, a Title IX grievance process differs in 1451 See, e.g., Vern R. Walker, Preponderance, Probability, and Warranted Factfinding, 62 Brooklyn L. Rev. 1075, 1076 (1996) (noting that the traditional formulation of the preponderance of the evidence standard by courts and legal scholars is that the party with the burden of persuasion must prove that a proposition is more probably true than false meaning a probability of truth greater than 50 percent); Neil B. Cohen, The Gatekeeping Role in Civil Litigation and the Abdication of Legal Values in Favor of Scientific Values, 33 Seton Hall L. Rev. 943, 954–56 (2003) (noting that the preponderance of the evidence standard applied in civil litigation results in the plaintiff losing the case where the plaintiff’s and defendant’s positions are ‘‘in equipoise,’’ i.e., where the evidence presented makes the case ‘‘too close to call’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 purpose and context from criminal, civil, and administrative agency proceedings. A Title IX grievance process serves a unique purpose (i.e., reaching accurate factual determinations about whether sexual harassment must be remedied by restoring a victim’s equal access to education) in a unique context (i.e., decisions must be reached by schools, colleges, and universities whose primary function is to educate, not to serve as courts or administrative bodies). A Title IX grievance process is different from criminal, civil, and administrative proceedings, yet bears similarities to each. The preponderance of the evidence standard, and the clear and convincing evidence standard, each are used in various civil and administrative proceedings.1452 Additionally, recipients have historically used either the preponderance of the evidence standard or the clear and convincing evidence standard for a variety of student and employee misconduct proceedings, under a variety of rationales for choosing one or the other.1453 The Department believes that a recipient could view either standard as appropriate in the context of Title IX proceedings, and the Department agrees that either standard may be fairly applied to reach accurate outcomes, and thus these final regulations allow recipients to select the preponderance of the evidence standard, or the clear and convincing evidence standard, for use in resolving formal complaints of sexual harassment under § 106.45.1454 1452 See, e.g., Nguyen v. Wash. Dep’t. of Health, 144 Wash.2d 516 (2001) (concluding that the Due Process Clause requires proof by at least the clear and convincing evidence standard in a sexual misconduct case in a medical disciplinary proceeding); Disciplinary Counsel v. Bunstine, 136 Ohio St. 3d 276 (2013) (applying the clear and convincing evidence standard in sexual harassment case involving a lawyer); cf. In re Barach, 540 F.3d 82, 85 (1st Cir. 2008); Granek v. Tex. State Bd. of Med. Examiners, 172 SW3d 761, 777 (Tex. Ct. App. 2005) (noting that many State and Federal courts apply the preponderance of the evidence standard to professional license revocation proceedings). 1453 As many commenters noted, there exist valid reasons for supporting the preponderance of the evidence standard, and for supporting the clear and convincing evidence standard, with respect to sexual misconduct allegations. Commenters, for instance, cited this debate by citing to: Nancy Chi Cantalupo & John Villasenor, Is a Higher Standard Needed for Campus Sexual Assault Cases?, The New York Times (Jan. 4, 2017). The final regulations permit recipients to select between these standards to best meet the legal, cultural, and pedagogical needs of the recipient’s community with respect to the degree of certainty the recipient expects decision-makers to have when reaching determinations regarding responsibility for sexual harassment allegations. 1454 For reasons explained in the ‘‘Mandating a Higher Standard of Evidence’’ subsection of this ‘‘Section 106.45(b)(7)(i) Standard of Evidence and Directed Question 6’’ subsection of this preamble, PO 00000 Frm 00358 Fmt 4701 Sfmt 4700 Selecting a standard of evidence represents a statement about the ‘‘degree of confidence’’ that a recipient believes its decision-makers should have in reaching determinations regarding responsibility in Title IX sexual harassment cases. We do not agree that the recipient’s selection of one standard over the other implies a belief that any party is lying or untruthful, and regardless of the applicable standard of evidence, Title IX personnel must avoid prejudgment of the facts at issue 1455 and reach determinations regarding responsibility based on objective evaluation of the evidence without drawing credibility determinations based on a party’s status as a complainant or respondent.1456 We also reiterate that regardless of the applicable standard of evidence, the burden of proof rests on the recipient, not on either party.1457 We disagree that the clear and convincing evidence standard is unfairly vague. The clear and convincing evidence standard is a widely recognized standard of evidence used in a variety of civil and administrative proceedings,1458 and the Department does not permit recipients to select a standard of evidence higher than clear and convincing evidence (such as the criminally used ‘‘beyond a reasonable doubt’’ standard). 1455 Section 106.45(b)(1)(iii). 1456 Section 106.45(b)(1)(i). 1457 Section 106.45(b)(5)(i). 1458 E.g., Addington v. Texas, 441 U.S. 418, 424 (1979) (holding that the clear and convincing evidence standard was required in civil commitment proceedings) (noting that clear and convincing evidence is an ‘‘intermediate standard’’ between preponderance of the evidence and the criminal beyond a reasonable doubt standard and that the clear and convincing evidence standard ‘‘usually employs some combination of the words ‘clear,’ ‘cogent,’ ‘unequivocal,’ and ‘convincing’ ’’ and while less commonly used than the preponderance of the evidence standard the clear and convincing evidence standard is ‘‘no stranger to the civil law’’ and is sometimes used in civil cases ‘‘involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant’’ where ‘‘the interests at stake are deemed to be more substantial than mere loss of money’’ justifying reduction of ‘‘the risk to the defendant of having his reputation tarnished erroneously.’’) (internal quotation marks and citations omitted); Sophanthavong v. Palmateer, 378 F.3d 859, 866–67 (9th Cir. 2004) (‘‘Clear and convincing evidence requires greater proof than preponderance of the evidence. To meet this higher standard, a party must present sufficient evidence to produce ‘in the ultimate factfinder an abiding conviction that the truth of its factual contentions are [sic] highly probable.’ ’’) (quoting Colorado. v. New Mexico, 467 U.S. 310, 316 (1984)) (brackets in original); Jane B. Baron, Irresolute Testators, Clear and Convincing Wills Law, 73 Wash. & Lee L. Rev. 3, 45 (2016) (discussing application of the ‘‘clear and convincing evidence’’ standard in the context of proving that a facially defective will represented the testator’s intent, and noting that ‘‘It is common, however, for courts to vary in their formulation and expression of a legal standard. No evidentiary standard can define itself; all are indeterminate to some degree. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations many recipients have historically used clear and convincing evidence as an evidentiary standard for various types of student or employee misconduct.1459 We disagree that a recipient who selects the clear and convincing evidence standard for resolution of sexual harassment cases is failing to prepare students for future careers in the corporate world. While corporate employers may or may not choose to, or be required to, use the clear and convincing evidence standard for sexual misconduct proceedings involving employees, workplaces differ from educational environments and different laws and policies govern discrimination complaints and misconduct proceedings in each context. Whether or not the commenter correctly characterized corporate environments as having ‘‘zero tolerance policies,’’ we note that nothing in these final regulations precludes a recipient from adopting a zero tolerance policy (with respect to harassment or any other misconduct); these final regulations apply only to a recipient’s obligations to respond to sexual harassment (as defined in § 106.30) of which the recipient knows and which occurs in the recipient’s Still, the idea behind requiring clear and convincing evidence seems intuitive enough; the factfinder need not be absolutely certain, but highly confident, about the fact in issue.’’); Haley Hawkins, Clearly Unconvincing: How Heightened Evidentiary Standards in Judicial Bypass Hearings Create an Undue Burden Under Whole Woman’s Health, 67 Am. Univ. L. Rev. 1911, 1923 (2018) (‘‘The clear and convincing evidence standard of proof is the highest evidentiary standard employed in civil proceedings, second only to the ‘beyond a reasonable doubt’ standard employed in criminal proceedings. In general, standards of proof function to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ Within the range of standards, clear and convincing evidence is situated to ‘protect particularly important individual interests in various civil cases’ that involve more than ‘mere loss of money.’ Though the meaning of ‘clear and convincing’ varies by state, one can generally articulate the standard as ‘persuad[ing] the [factfinder] that the proposition is highly probable, or . . . produc[ing] in the mind of the factfinder a firm belief or conviction that the allegations in question are true.’ ’’) (internal citations omitted). 1459 2011 Dear Colleague Letter at 11 (noting that the clear and convincing evidence standard was, at that time, ‘‘currently used by some schools’’ and insisting that only the preponderance of the evidence standard is permissible under Title IX); Matthew R. Triplett, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection, 62 Duke L. J. 487, fn. 107 (2012) (noting that ‘‘the standard of proof in student disciplinary hearings has historically varied wildly across institutions’’ and listing examples of several prominent universities that lowered their standard of evidence from the clear and convincing evidence standard, to the preponderance of the evidence standard, after OCR issued the [now-withdrawn] 2011 Dear Colleague Letter). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 education program or activity.1460 As noted in § 106.45(b)(3)(i), even if a recipient must dismiss allegations of sexual harassment in a formal complaint under these final regulations, such dismissal is only for Title IX purposes and does not preclude action under another provision of the recipient’s code of conduct. Changes: The Department has revised § 106.45(b)(7)(i) of the final regulations such that recipients have the choice of either applying the preponderance of the evidence standard or the clear and convincing evidence standard, and § 106.45(b)(1)(vii) requires a recipient to make that choice applicable to all formal complaints of sexual harassment, including those against employees and faculty. We have removed the limitation contained in the NPRM that would have permitted recipients to use the preponderance of the evidence standard only if they used that standard for nonsexual misconduct that has the same maximum disciplinary sanction. Improving Accuracy of Outcomes Comments: A number of commenters asserted that the preponderance of the evidence standard increases the overall accuracy of the system because it is an error-minimizing standard and argued that the clear and convincing evidence standard would increase false negative errors to a greater extent than it reduces false positive errors, thus reducing the accuracy of Title IX outcomes.1461 Other commenters pointed to a study explaining that use of the preponderance of the evidence standard increases false positive errors.1462 Discussion: The Department shares commenters’ concerns that increasing the overall accuracy of determinations of responsibility in Title IX proceedings is critical and that minimizing either type of error (i.e., false positives and false negatives) is important and desirable. The Department does not believe that evidence is conclusive either way regarding whether using the preponderance of the evidence standard or the clear and convincing evidence standard as the standard of evidence in Title IX proceedings best reduces risk of 1460 Section 106.44(a) (requiring a recipient with actual knowledge of sexual harassment in the recipient’s education program or activity against a person in the United States to respond promptly in a manner that is not deliberately indifferent). 1461 Commenters cited: Nicholas E. Khan, The Standard of Proof in the Substantiation of Child Abuse and Neglect, 14 Journal of Empirical Legal Studies 333, 356–57 (2017). 1462 Commenters cited: John Villasenor, A Probabilistic Framework for Modelling False Title IX ‘convictions’ under the Preponderance of the Evidence Standard, 15 Law, Probability & Risk 4 (2016). PO 00000 Frm 00359 Fmt 4701 Sfmt 4700 30383 error, in part because studies that may shed light on that question assume features and processes in place that differ from those prescribed by the final regulations under § 106.45. The final regulations permit recipients to select either the preponderance of the evidence standard or the clear and convincing evidence standard for application to formal complaints of sexual harassment in the recipient’s educational community, because in combination with the other procedural features of the § 106.45, either standard of evidence can be applied fairly to result in accurate outcomes. Changes: The Department has revised § 106.45(b)(7)(i) of the final regulations such that recipients have the choice of either applying the preponderance of the evidence standard or the clear and convincing evidence standard, and § 106.45(b)(1)(vii) requires a recipient to make that choice applicable to all formal complaints of sexual harassment, including those against employees and faculty. We have removed the limitation contained in the NPRM that would have permitted recipients to use the preponderance of the evidence standard only if they used that standard for nonsexual misconduct that has the same maximum disciplinary sanction. Safety Concerns Comments: Many commenters contended that the clear and convincing evidence standard will make campuses less safe, chill reporting, and harm already vulnerable students.1463 Commenters argued that the clear and convincing evidence standard will discourage survivors, particularly students of color, LGBTQ students, and students with disabilities, from reporting because this standard unjustly favors respondents. Commenters argued that the clear and convincing evidence standard may result in a lower number of respondents found responsible and removed from campus, thus increasing the risk of victim re-traumatization by encountering their perpetrator and possibly resulting in ‘‘constructive expulsion,’’ where survivors leave school to avoid seeing their perpetrator. Commenters argued that the clear and convincing evidence standard may perversely incentivize perpetrators to 1463 Commenters cited: Nancy Chi Cantalupo, For the Title IX Civil Rights Movement: Congratulations and Cautions, 125 Yale L. J. of Feminism 282, 290 (2016); Kathryn J. Holland & Lilia M. Cortina, ‘‘It happens to girls all the time’’: Examining sexual assault survivors’ reasons for not using campus supports, 59 Am. J. of Community Psychol. 1–2 (2017); Shamus Khan et al., ‘‘I Didn’t Want to Be ‘That Girl’ ’’: The Social Risks of Labeling, Telling, and Reporting Sexual Assault, 5 Sociological Sci. 432 (2018). E:\FR\FM\19MYR2.SGM 19MYR2 30384 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations attack again because of the perception they will not be held accountable. Discussion: Under the final regulations, complainants (or third parties) may report sexual harassment triggering a recipient’s mandatory obligation to offer the complainant supportive measures and inform the complainant about the option of filing a formal complaint; complainants are not required to file a formal complaint or participate in a grievance process in order to report sexual harassment and receive supportive measures.1464 Thus, regardless of how a complainant perceives or anticipates the experience of a grievance process, a complainant has the right to report sexual harassment and receive supportive measures. If or when a complainant also decides to file a formal complaint initiating a grievance process against a respondent, § 106.45 ensures that the burden of gathering evidence, and the burden of proof, remain on the recipient and not on the complainant (or respondent). Complainants who participate in a grievance process receive the strong, clear procedural rights and protections in § 106.45 including, among other things, the right to gather, present, review, and respond to evidence, the right to review and respond to the recipient’s investigative report summarizing relevant evidence, and the right to pose questions to be answered by a respondent to further the complainant’s perspective about the case and what the outcome should be, and the right to an advisor of choice to advise and assist the complainant throughout the process.1465 Whether the recipient selects a preponderance of the evidence standard, or a clear and convincing evidence standard, complainants have the right and opportunity to participate in the process on an equal basis with the respondent. Regardless of which standard of evidence a recipient selects, we reiterate that neither standard requires corroborating evidence in order to reach a determination regarding responsibility; the standard of evidence reflects the ‘‘degree of confidence’’ that a decision-maker has in correctness of the factual conclusions reached.1466 The Department understands that whether a determination regarding 1464 Section 106.44(a). 106.45(b)(5)(i); § 106.45(b)(5)(iii); § 106.45(b)(5)(iv); § 106.45(b)(5)(vi); § 106.45(b)(5)(vii); § 106.45(b)(6). 1466 Cal. ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater, 454 U.S. 90, 92–93 (1981) (noting that the ‘‘purpose of a standard of proof is to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication’’). 1465 Section VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 responsibility is reached using the preponderance of the evidence standard or the clear and convincing evidence standard, the outcome reflects the weight and persuasiveness of the available, relevant evidence in the case. We have added § 106.71 in the final regulations to caution recipients not to draw conclusions about any party’s truthfulness during a grievance process based solely on the outcome of the case. The final regulations do not preclude a recipient from keeping supportive measures in place even after a determination that a respondent is not responsible, so complainants do not necessarily need to be left in constant contact with the respondent, regardless of the result of a grievance process. The Department understands the potential for loss of educational access for complainants, and for respondents, in situations where sexual harassment allegations are not resolved accurately. The Department is not aware of a Federal appellate court holding that the clear and convincing evidence standard is required to satisfy constitutional due process or fundamental fairness in Title IX proceedings, and the Department is not aware of a Federal appellate court holding that the preponderance of the evidence standard is required under Title IX. Because recipients have historically used either the preponderance of the evidence standard or the clear and convincing evidence standard in sexual misconduct disciplinary proceedings, and because studies are inconclusive about which standard is more likely to reduce the risk of erroneous outcomes, the Department concludes that recipients must select and consistently apply a standard of evidence that is not lower than the preponderance of the evidence standard and not higher than the clear and convincing evidence standard, but that either the preponderance of the evidence standard or the clear and convincing evidence standard may be applied to reach accurate determinations in a Title IX grievance process, consistent with constitutional due process and fundamental fairness and with Title IX’s non-discrimination mandate. The Department believes that the predictable, fair grievance process prescribed under § 106.45 will convey to complainants and respondents that the recipient treats formal complaints of sexual harassment seriously and aims to reach a factually accurate conclusion; the Department does not agree that using one standard of evidence rather than the other conveys to respondents that Title IX sexual harassment can be perpetrated without consequence. PO 00000 Frm 00360 Fmt 4701 Sfmt 4700 Changes: The Department has revised § 106.45(b)(7)(i) of the final regulations such that recipients have the choice of either applying the preponderance of the evidence standard or the clear and convincing evidence standard, and § 106.45(b)(1)(vii) requires a recipient to make that choice applicable to all formal complaints of sexual harassment, including those against employees and faculty. We have removed the limitation contained in the NPRM that would have permitted recipients to use the preponderance of the evidence standard only if they used that standard for nonsexual misconduct that has the same maximum disciplinary sanction. We have added § 106.71 prohibiting retaliation for exercising rights under Title IX and specifying that while a recipient may punish a party for making bad-faith materially false statements during a grievance process, the outcome of the case alone cannot be the basis for concluding that a party made a bad-faith materially false statement. Consistency of Standards of Evidence Across Recipients Comments: A few commenters raised concerns that allowing recipients to choose between two standards of evidence will lead to inconsistent systems across the country, which may complicate campus crime reporting under the Clery Act and make it harder for prospective students to compare crime statistics across campuses. Commenters argued that the Department should not allow justice to apply unequally across the country. Discussion: These final regulations do not alter requirements under the Clery Act or its implementing regulations. The Department disagrees that data gathering and reporting under the Clery Act will be affected by the standard of evidence selected by a recipient for resolving formal complaints of sexual harassment under Title IX. A recipient’s obligations to report under the Clery Act depend on when a crime has been reported to the recipient and do not depend on the outcome of any disciplinary proceeding that results from a person’s report of a crime. The final regulations’ approach to the standard of evidence for Title IX grievance processes (whereby a recipient may select either the preponderance of the evidence standard, or the clear and convincing evidence standard), may result in some recipients selecting one standard and other recipients selecting the other standard. The Department disagrees that this approach results in ‘‘unequal justice’’ across the country. The Department believes that this approach E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations to the standard of evidence maintains consistency with respect to all Title IX grievance processes, across recipients, because all grievance processes regardless of which standard of evidence a recipient applies, are fair processes likely to lead to accurate determinations regarding responsibility. Changes: The Department has revised § 106.45(b)(7)(i) of the final regulations such that recipients have the choice of either applying the preponderance of the evidence standard or the clear and convincing evidence standard, and § 106.45(b)(1)(vii) requires a recipient to make that choice applicable to all formal complaints of sexual harassment, including those against employees and faculty. We have removed the limitation contained in the NPRM that would have permitted recipients to use the preponderance of the evidence standard only if they used that standard for nonsexual misconduct that has the same maximum disciplinary sanction. Standards of Evidence Below the Preponderance of the Evidence Comments: A few commenters proposed that the Department consider lower standards of evidence than the preponderance of the evidence standard. One commenter suggested ‘‘substantial evidence,’’ or enough relevant evidence that a reasonable person would find supports the factfinder’s conclusion. Another commenter suggested ‘‘reasonable cause’’ and noted that child welfare agencies protecting children from abuse use the ‘‘reasonable cause’’ standard, which is lower than the preponderance of the evidence standard. Discussion: As discussed above, the Department does not wish to be more prescriptive than necessary to ensure a consistent grievance process yielding accurate outcomes, so that recipients are held responsible for redressing sexual harassment as a form of sex discrimination under Title IX. As commenters pointed out, the two standards of evidence between which the final regulations permit recipients to choose are not the only possible standards of evidence that could be used in Title IX proceedings. For example, some commenters urged adoption of the higher, criminal ‘‘beyond a reasonable doubt’’ standard, while other commenters noted that preponderance of the evidence standard is not ‘‘the lowest’’ possible standard that could be used, because lower standards such as ‘‘substantial evidence,’’ ‘‘reasonable cause,’’ or ‘‘probable cause’’ are used, or have been used, in student discipline and certain types of legal proceedings. The VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Department believes that students and employees deserve clarity as to the standard of evidence a recipient will apply during the grievance process and that recipients should be permitted as much flexibility as reasonably possible while ensuring reliable outcomes in these high-stakes cases. For reasons described above, the Department believes that either the preponderance of the evidence standard or the clear and convincing evidence standard can be applied within the § 106.45 grievance process and yield reliable outcomes, but does not believe that a standard lower than the preponderance of the evidence standard, or higher than the clear and convincing evidence standard, would result in a fair process or reliable outcomes.1467 As discussed above, the Department does not believe that the highest possible standard (beyond a reasonable doubt) should apply in a noncriminal proceeding such as a Title IX grievance process where, as commenters have accurately pointed out, a respondent’s liberty interests are not at stake.1468 The Supreme Court has cautioned against applying the ‘‘beyond a reasonable doubt’’ standard to noncriminal proceedings.1469 At the same time, the Department does not believe that a standard lower than preponderance (such as substantial evidence or probable cause) should apply to the Title IX grievance process either, because the stakes are high for both parties in a Title IX process; without a 1467 See Lavinia M. Weizel, The Process That Is Due: Preponderance of The Evidence as The Standard of Proof For University Adjudications of Student-On-Student Sexual Assault Complaints, 53 Boston Coll. L. Rev. 1613, 1635 (2012) (analyzing court cases that have criticized colleges for using a standard of evidence lower than the preponderance of the evidence standard, such as what many schools have referred to as ‘‘substantial evidence’’ because using a standard lower than the preponderance of the evidence standard ‘‘leaves the fact-finder adrift to be persuaded by individual prejudices rather than by the weight of the evidence presented’’) (internal quotation marks and citations omitted). 1468 The clear and convincing evidence standard is an ‘‘intermediate standard’’ that while less commonly used than the preponderance of the evidence standard, is sometimes used in civil cases ‘‘involving allegations of fraud or some other quasicriminal wrongdoing by the defendant’’ that justify reducing ‘‘the risk to the defendant of having his reputation tarnished erroneously.’’ Addington v. Texas, 441 U.S. 418, 424 (1979) (internal quotation marks and citations omitted). As some commenters observed, the consequences for a respondent in a Title IX case often involve allegations of quasicriminal wrongdoing with possible lifelong impact on a respondent’s reputation. 1469 See, e.g., Santosky v. Kramer, 455 U.S. 745, 768 (1982) (noting that the Supreme Court hesitates to apply the ‘‘unique standard’’ of beyond a reasonable doubt ‘‘too broadly or casually in noncriminal cases’’) (internal quotation marks and citations omitted). PO 00000 Frm 00361 Fmt 4701 Sfmt 4700 30385 determination based on a probability of accuracy greater than 50 percent (i.e., more likely than not to be true), the Department does not believe that an outcome can be deemed reliable or perceived as legitimate. Without a reliable outcome, the parties, recipients, Department, and the public cannot confidently assess whether a recipient has responded to sex discrimination in the recipient’s education program or activity by providing remedies to victims and taking disciplinary action against perpetrators with respect to sexual harassment allegations. Changes: None. Questioning the Department’s Legal Authority Comments: Several commenters contended that the NPRM’s choice of evidence standard exceeds the Department’s legal authority. One commenter argued that allowing the clear and convincing evidence standard for sexual harassment cases but a lower preponderance of the evidence standard for non-sexual harassment cases could violate the Fourteenth Amendment Equal Protection Clause. Other commenters suggested that allowing a clear and convincing evidence standard is inconsistent with Title IX’s statutory objectives and would not effectuate the prohibition on sex discrimination. One commenter stated that the Supreme Court, not the Department, must ultimately determine the applicable Title IX standard of evidence. Another commenter suggested that the NPRM’s approach to the standard of evidence violates the International Covenant on Civil and Political Rights, under which the U.S. is obligated to prohibit and eliminate sex discrimination. One commenter asserted that the Department lacks authority over evidence standards at all, and that the Department should instead defer to recipients’ administrative discretion to set their own evidentiary standards. One commenter argued that the Department lacks authority over negotiated agreements between recipient management and employees, and the Department’s attempt to supersede these agreements with mandated evidentiary standards is regulatory overreach. This commenter emphasized that recipients did not contemplate such a requirement when accepting Federal funding. Discussion: Contrary to the claims made by some commenters, the Department believes the final regulations address the issue of what standard of evidence should apply in Title IX proceedings, in a reasonable manner that falls within the Department’s regulatory authority. The E:\FR\FM\19MYR2.SGM 19MYR2 30386 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Department acknowledges that the statutory text of Title IX does not reference, much less dictate, a standard of evidence to be used by recipients to resolve allegations of sexual harassment. The Department’s authority to regulate on the subject of sexual harassment, including how a recipient responds when a complainant files a formal complaint raising allegations of sexual harassment against a respondent, flows from the Department’s statutory directive to promulgate rules and regulations to effectuate the purposes of Title IX.1470 Those purposes have been described by the Supreme Court as preventing Federal funds from supporting education programs or activities that tolerate sex discriminatory practices and providing individuals with effective protections against such sex discriminatory practices.1471 Where sexual harassment allegations present contested narratives regarding a particular incident between a complainant and respondent, accurately determining the truth of the allegations in a non-sex biased manner is critical to ensuring that a recipient responds appropriately by providing the complainant with remedies that restore or preserve the complainant’s equal access to education. As noted previously in this preamble, a complainant is a victim of sexual harassment where a fair process has reached an accurate determination that the respondent perpetrated sexual harassment against the complainant and the final regulations require recipients to provide such complainants with remedies. For the reasons discussed above, the Department has determined that a fair, reliable outcome requires that a recipient notify its students and employees in advance of the standard of evidence the recipient will apply in sexual harassment grievance processes, 1470 20 U.S.C. 1681; 20 U.S.C. 1682; Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 638–39 (1999). 1471 See Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979) (noting that the primary congressional purposes behind Title IX were ‘‘to avoid the use of Federal resources to support discriminatory practices’’ and to ‘‘provide individual citizens effective protection against those practices.’’). As noted previously, the Department is not aware of a Federal appellate court holding that the preponderance of the evidence standard is required in order to be consistent with Title IX’s non-discrimination mandate, and is not aware of a Federal appellate court holding that the clear and convincing evidence standard is required to satisfy constitutional due process or fundamental fairness in Title IX proceedings. The Department believes that either of these two standards of evidence may be applied by a recipient in a Title IX grievance process because both are consistent with Title IX’s non-discrimination and due process protections. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 and the Department has further determined that either the preponderance of the evidence standard, or the clear and convincing evidence standard (but not a standard lower than preponderance of the evidence or higher than clear and convincing evidence) can produce an accurate determination. Both of the standards of evidence available for recipients to choose under these final regulations are standards common to civil proceedings, and not to criminal proceedings. The difference between the two options is a difference in the degree of confidence that each recipient decides that a decision-maker must have in the factual correctness of the conclusions reached in Title IX sexual harassment cases; that is, the difference between having confidence that a conclusion is based on facts that are more likely true than not,1472 or having confidence that a conclusion is based on facts that are highly probable to be true.1473 Thus, the Department’s provisions regarding selection and application of a standard of evidence effectuates the dual purposes of Title IX—preventing Federal dollars from flowing to schools that fail to protect victims of sexual harassment, and providing individuals with effective protections against discriminatory practices that occur by failure to accurately determine who has been victimized by sexual harassment. At the same time, these provisions regarding selection and application of a standard of evidence are consistent with constitutional due process and fundamental fairness. Fair adversarial procedures increase the probability that the truth of allegations will be accurately determined,1474 and reduce the likelihood that impermissible sex bias will affect the outcome. 1472 A preponderance of the evidence standard of evidence is understood to mean concluding that a fact is more likely than not to be true. E.g., Concrete Pipe & Prod. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (a preponderance of the evidence standard ‘‘requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence’’) (internal quotation marks and citation omitted). 1473 A clear and convincing evidence standard of evidence is understood to mean concluding that a fact is highly probable to be true. E.g., Sophanthavong v. Palmateer, 378 F.3d 859, 866–67 (9th Cir. 2004) (a clear and convincing evidence standard requires ‘‘sufficient evidence to produce in the ultimate factfinder an abiding conviction that the truth of its factual contentions are [sic] highly probable.’’) (internal quotation marks and citation omitted; brackets in original). 1474 The adversarial ‘‘system is premised on the well-tested principle that truth—as well as fairness—is ‘best discovered by powerful statements on both sides of the question.’ ’’ Penson v. Ohio, 488 U.S. 75, 84 (1988) (quoting Irving R. Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 Am. Bar Ass’n J. 569, 569 (1975)). PO 00000 Frm 00362 Fmt 4701 Sfmt 4700 Acknowledging the arguments from commenters urging the Department to mandate one or the other standard, the Department has determined that either the preponderance of the evidence standard or the clear and convincing evidence standard reasonably can be applied as part of the fair procedures prescribed under § 106.45. The Department further notes that the Supreme Court has specifically approved of the Department’s authority to regulate specific requirements under Title IX even when those requirements are not referenced under the statute and even when the administratively imposed requirements do not represent a definition of sex discrimination under the statute; the Department has wide latitude to issue requirements for the purpose of furthering Title IX’s nondiscrimination mandate, including measures designed to make it less likely that sex discrimination will occur, even if a Federal court would not hold the recipient accountable to the same requirements in a private lawsuit under Title IX.1475 For example, the Department’s existing regulations in 34 CFR 106 have, since 1975, required recipients to have in place grievance procedures for the ‘‘prompt and equitable’’ resolution of complaints that a recipient is committing sex discrimination,1476 even though the Title IX statute does not require recipients to have in place any grievance procedures to handle sex discrimination complaints. The Department rejects the contention made by one commenter that the approach to the standard of evidence 1475 See, e.g., Gebser, 524 U.S. at 291–92 (refusing to allow plaintiff to pursue a claim under Title IX based on the school’s failure to comply with the Department’s regulatory requirement to adopt and publish prompt and equitable grievance procedures, stating ‘‘And in any event, the failure to promulgate a grievance procedure does not itself constitute ‘discrimination’ under Title IX. Of course, the Department of Education could enforce the requirement administratively: Agencies generally have authority to promulgate and enforce requirements that effectuate the statute’s nondiscrimination mandate, 20 U.S.C. 1682, even if those requirements do not purport to represent a definition of discrimination under the statute.’’). 1476 The final regulations revise 34 CFR 106.8(b), in ways discussed in the ‘‘Section 106.8(b) Dissemination of Policy’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. Under the final regulations, recipients still must have grievance procedures that provide for the prompt and equitable resolutions of complaints from students and employees alleging sex discrimination. The final regulations update § 106.8 to clarify that ‘‘prompt and equitable’’ grievance procedures must still exist for sex discrimination that is not sexual harassment, and that recipients must also notify students, employees, and others that the recipient has a grievance process that complies with § 106.45 for the purpose of resolving formal complaints of sexual harassment. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations contained in § 106.45(b)(7)(i) of the final regulations may violate the Fourteenth Amendment Equal Protection Clause. Nothing in the final regulations dictates what standard of evidence recipients use in non-sexual harassment cases, so a recipient does not necessarily treat different types of cases differently because of the final regulations. Further, the Department notes that the appropriate standard of review under an Equal Protection challenge would be the rational basis test, which upholds a State action that makes distinctions that are not based on suspect classifications, if there is any reasonable set of facts that could provide a rational basis for the action.1477 The Department has determined that allowing recipients to select one of two standards of evidence,1478 either of which can be applied within a fair grievance process to reach accurate determinations, is rationally related to the legitimate interest of ensuring reliable outcomes in Title IX sexual harassment cases. With respect to obligations under international law such as the International Covenant on Civil and Political Rights, nothing in the final regulations impairs any U.S. obligation to prohibit and eliminate sex discrimination, nor does the Department see any conflict between recipients’ compliance with the final regulations, and U.S. compliance with applicable international laws or treaties.1479 We discuss the implications of the final regulations’ approach to the standard of evidence with respect to a recipient’s employees and CBAs in the ‘‘Same Evidentiary Standard in Student and Faculty Cases’’ subsection of this section, above. For further discussion of the Department’s application of these final regulations to employees, see the ‘‘Section 106.6(f) Title VII and Directed Question 3 (Application to Employees)’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. For reasons discussed in the ‘‘Spending Clause’’ subsection of the ‘‘Miscellaneous’’ section of this preamble, the Department 1477 F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993) (holding that in areas of social and economic policy, statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide rational basis for classification). 1478 As noted above, the final regulations removed the NPRM condition that a recipient only use the preponderance of the evidence standard if the recipient also uses that standard in non-sexual harassment code of conduct proceedings. 1479 For further discussion, see the ‘‘Conflicts with First Amendment, Constitutional Confirmation, International Law’’ subsection of the ‘‘Miscellaneous’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 disagrees that these final regulations exceed the Department’s regulatory authority to promulgate rules that effectuate the purposes of Title IX with respect to education programs or activities that receive Federal financial assistance. Changes: None. Alternative Approaches and Clarification Requests Comments: Several commenters proposed alternative regulatory language for § 106.45(b)(7)(i). One commenter urged the Department to explicitly address both sexual harassment and ‘‘sexual misconduct’’ in the standard of evidence provisions. This commenter agreed that it was appropriate to require the same standard of evidence in student and faculty cases but also believed that the Department should apply the same due process rights for students and faculty alike. This commenter also requested that the Department include ‘‘staff’’ and not just ‘‘faculty’’ in this provision. One commenter requested that the Department explicitly define the preponderance of the evidence standard as satisfied where the conclusion is supported by persuasive, relevant, and substantial evidence and the procedures are both transparent and fair. This commenter rejected the notion that the preponderance of the evidence standard is 50 percent ‘‘plus a feather.’’ One commenter suggested that if in a particular case the preponderance of the evidence standard is satisfied, but not the clear and convincing evidence standard, then the Department should allow recipients to suspend or expel the respondent but not put a permanent notation on the respondent’s transcript that would prevent transfer to another school. The commenter argued that this strikes a balance between protecting wrongly convicted students and protecting victims seeking to continue their education. One commenter requested that the Department adopt the provision as written, but also require recipients to provide a written explanation as to why it is necessary to use one evidentiary standard instead of another. Another commenter argued that the clear and convincing evidence standard is unclear, and the Department should explicitly define it in the final regulations. And one commenter suggested that the Department include statistics in the final regulations to justify changing its approach to evidentiary standards. Commenters also raised several questions regarding evidentiary standards. One commenter inquired as to whether the requirement that if the PO 00000 Frm 00363 Fmt 4701 Sfmt 4700 30387 preponderance of the evidence standard is used in Title IX cases then it must be used in non-Title IX cases with the same maximum punishment is satisfied where the preponderance of the evidence standard is used for: (a) All conduct code violations with same maximum punishment; (b) most of such conduct code violations; (c) more than one but less than a majority of such violations; (d) even a single such violation; (e) a penalty phase only (such as to impose expulsion); (f) student infractions governed by a separate policy than the student conduct code; or (g) student conduct code violations, but not for other forms of discrimination or harassment by students. The same commenter asked whether the requirement that the same standard of evidence be used for Title IX complaints against students and faculty means recipients must use the clear and convincing evidence standard for student cases if the clear and convincing evidence standard is applied to: (a) All Title IX complaints against employees; (b) Title IX complaints against a majority of employees; (c) Title IX complaints against even a single employee: (d) Title IX complaints against some but not all types of misconduct by employees; (e) Title IX complaints about even a single type of misconduct; (f) complaints about employee misconduct not involving alleged discrimination and/or harassment by employees towards students; (g) complaints about employee misconduct not involving alleged discrimination and/or harassment by employees towards other employees, (h) some, but not all, aspects of complaints against employees (for example, where the preponderance of the evidence standard is used to determine whether misconduct occurred, but the clear and convincing evidence standard is required for some forms of discipline against a class of employees, such as revoking tenure for tenured faculty). Discussion: The Department notes that ‘‘sexual harassment’’ is defined in § 106.30 of the final regulations, and this definition encompasses a wide range of sexual misconduct. The Department does not believe that the term ‘‘sexual misconduct’’ would be more appropriate than ‘‘sexual harassment’’ in these regulations, because the Supreme Court interpretations of Title IX refer to sexual harassment. Furthermore, § 106.45(b)(1)(vii) and § 106.45(b)(7)(i) mandate that recipients use the same standard of evidence to reach determinations regarding responsibility in response to formal complaints against E:\FR\FM\19MYR2.SGM 19MYR2 30388 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations students as they do for formal complaints against employees, including all staff and faculty, and the final regulations also require the other provisions in § 106.45 to apply to all formal complaints of sexual harassment whether against students and employees, including faculty. The Department declines to provide definitions of the ‘‘preponderance of the evidence’’ standard and the ‘‘clear and convincing evidence’’ standard. The Department believes that each standard of evidence referenced in the final regulations has a commonly understood meaning in other legal contexts and intends the ‘‘preponderance of the evidence’’ standard to have its traditional meaning in the civil litigation context and the ‘‘clear and convincing evidence’’ standard to have its traditional meaning in the subset of civil litigation and administrative proceedings where that standard is used.1480 For discussion of transcript notations, see the ‘‘Transcript Notations’’ subsection of the ‘‘Determinations Regarding Responsibility’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. The Department expects that recipients will select a standard of evidence based on the recipient’s belief about which standard best serves the interests of the recipient’s educational community, or because State law requires the recipient to apply one or the other standard, or because the recipient has already bargained with unionized employees for a particular standard of evidence in misconduct proceedings. The Department declines 1480 See, e.g., Concrete Pipe & Prod. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (quoting In re Winship, 397 U.S. 358, 371–372 (1970) (Harlan, J., concurring) (‘‘The burden of showing something by a ‘preponderance of the evidence,’ the most common standard in the civil law, ‘simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence before [he] may find in favor of the party who has the burden to persuade the [judge] of the fact’s existence.’ ’’) (brackets in original; citation omitted)); Sophanthavong v. Palmateer, 378 F.3d 859, 866–67 (9th Cir. 2004) (‘‘Clear and convincing evidence requires greater proof than preponderance of the evidence. To meet this higher standard, a party must present sufficient evidence to produce ‘in the ultimate factfinder an abiding conviction that the truth of its factual contentions are [sic] highly probable.’ ’’) (quoting Colorado v. New Mexico, 467 U.S. 310, 316 (1984)) (brackets in original); Justia.com, ‘‘Evidentiary Standards and Burdens of Proof,’’ https://www.justia.com/trialslitigation/lawsuits-and-the-court-process/ evidentiary-standards-and-burdens-of-proof/ (describing preponderance of the evidence as proof ‘‘that a particular fact or event was more likely than not to have occurred’’ and clear and convincing evidence as proof ‘‘that a particular fact is substantially more likely than not to be true.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 to require recipients to explain why a recipient has selected one or the other standard of evidence, though nothing in the final regulations precludes a recipient from communicating its rationale to its educational community. The Department has examined statistics, data, and information regarding standards of evidence submitted by commenters through public comment on the NPRM, and has considered commenters’ arguments in favor of the preponderance of the evidence standard, in favor of the clear and convincing evidence standard, and in favor of other standards of evidence. For reasons described above, the Department has determined that the approach to the standard of evidence contained in § 106.45(b)(1)(vii) and § 106.45(b)(7)(i) of the final regulations represents the most effective way of legally obligating recipients to select a standard of evidence for use in resolving formal complaints of sexual harassment under Title IX to ensure a fair, reliable grievance process without unnecessarily mandating that a recipient select one standard over the other. As discussed above, and after careful consideration of many comments we found to be persuasive, the Department removed the NPRM’s requirement that recipients may only apply the preponderance of the evidence standard to reach determinations regarding responsibility in Title IX proceedings if they use that same standard to address non-sexual misconduct cases that carry the same maximum punishment. However, the final regulations retain the NPRM’s requirement that recipients use the same standard of evidence to reach determinations of responsibility in Title IX proceedings against students as they do for Title IX proceedings against employees including faculty, for reasons discussed above. With respect to the questions raised by one commenter as to the scope of this requirement, the Department wishes to clarify that the same standard of evidence must apply to each formal complaint alleging sexual harassment against employees as it does for each formal complaint alleging sexual harassment against students. In short, under the final regulations the same standard of evidence will apply to all formal complaints of sexual harassment under Title IX responded to by a particular recipient, whether the respondent is a student or employee. Changes: The Department has revised § 106.45(b)(7)(i) of the final regulations such that recipients have the choice of either applying the preponderance of the evidence standard or the clear and convincing evidence standard, and § 106.45(b)(1)(vii) requires a recipient to PO 00000 Frm 00364 Fmt 4701 Sfmt 4700 make that choice applicable to all formal complaints of sexual harassment, including those against employees and faculty. We have removed the limitation contained in the NPRM that would have permitted recipients to use the preponderance of the evidence standard only if they used that standard for nonsexual misconduct that has the same maximum disciplinary sanction. Section 106.45(b)(7)(ii) Written Determination Regarding Responsibility Must Include Certain Details Comments: A number of commenters expressed support for § 106.45(b)(7) because it requires the decision-maker to provide a written determination regarding responsibility. Commenters stated that putting decisions in writing will prevent confusion as to what was decided and provide a written record for appeals or other administrative needs, or judicial review. Commenters asserted that a written determination will protect due process and prevent schools from inserting bias into proceedings. Commenters expressed support for § 106.45(b)(7) due to concern that institutions were ‘‘railroading’’ respondents. One commenter argued that § 106.45(b)(7) is a reasonable means of reducing sex discrimination because requiring decision-makers to give reasons for their decisions has been shown to enhance the thoroughness of decision making and to improve the willingness of decision-makers to engage in self-critical thinking,1481 a concept well known to the legal system.1482 The commenter further argued that requiring reason-giving tends to foster independent decision making and reduce overconfidence in decision making,1483 so that individual 1481 Commenters cited: Itamar Simonson & Peter Nye, The Effect of Accountability on Susceptibility to Decision Errors, 51 Organizational Behavior & Hum. Decision Processes 416, 430–32, 437 (1992); Itamar Simonson & Barry M. Staw, Deescalation Strategies: A Comparison of Techniques for Reducing Commitment to Losing Courses of Action, 77 J. Applied Psychol. 419, 422–25 (1992); Diederik A. Stapel et al., The Impact of Accuracy Motivation on Interpretation, Comparison, and Correction Processes: Accuracy x Knowledge Accessibility Effects, 74 Journal of Personality & Social Psychol. 878, 891 (1998); Erik P. Thompson et al., Accuracy Motivation Attenuates Covert Priming: The Systematic Reprocessing of Social Information, 66 Journal of Personality & Social Psychol. 474, 484 (1994). 1482 Commenters cited: Frederick Schauer, Giving Reasons, 47 Stan. L. Rev. 633, 657–58 (1995) (‘‘[W]hen institutional designers have grounds for believing that decisions will systematically be the product of bias, self-interest, insufficient reflection, or simply excess haste, requiring decision-makers to give reasons may counteract some of these tendencies.’’). 1483 Commenters cited: Karen Siegel-Jacobs & J. Frank Yates, Effects of Procedural and Outcome E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations decision-makers become less susceptible to group pressure,1484 all of which contribute to rendering more accurate decisions. A few commenters urged the Department to also require that the written determination must include or describe contradictory facts, exculpatory evidence, all evidence presented at the hearing, and/or credibility assessments. One commenter argued that § 106.45(b)(7)(ii)(C) should be revised to require findings of fact sufficient to allow the parties and any appellate reviewer to understand the facts tending to support or refute the determination. Some commenters argued that requiring a written determination is too burdensome, especially for smaller institutions and for elementary and secondary schools. Discussion: The Department believes § 106.45(b)(7) serves the important function of ensuring that both parties know the reasons for the outcome of a Title IX grievance process, and agrees that requiring decision-makers to give written reasoning helps ensure independent judgment and decision making free from bias. Section 106.45(b)(7)(i) requires recipients to issue a written determination regarding responsibility to foster reliability and thoroughness, and to ensure that a recipient’s findings are adequately explained. Section 106.45(b)(7)(ii) mandates that the written determination must include certain key elements so that the parties have a thorough understanding of the investigative process and information considered by the recipient in reaching conclusions. Section 106.45(b)(7)(iii) requires that this written determination be provided to the parties simultaneously. The substance of these provisions generally tracks language in the Clery Act regulations at 34 CFR 668.46(k)(2)(v) and (k)(3)(iv) and reflect concepts familiar to institutions of higher education that receive Federal student aid under Title IV of the Higher Education Act of 1965, as amended. The Department believes that the benefits of these provisions, including promoting transparency and equal treatment of the parties, are also important in the elementary and secondary school context, even though elementary and secondary schools are not subject to the Clery Act. Furthermore, the provisions in § 106.45(b)(7) are consistent with Department guidance, which has always been applicable to both postsecondary institutions and elementary and secondary schools. For example, the 2001 Guidance stated that an equitable grievance procedure should include providing notice to the parties of the outcome of a sexual harassment complaint,1485 and the withdrawn 2011 Dear Colleague Letter stated that notice of the outcome should be in writing and sent to both parties concurrently.1486 Requiring recipients to describe, in writing, conclusions (and reasons for those conclusions) will help prevent confusion about how and why a recipient reaches determinations regarding responsibility for Title IX sexual harassment. We agree that requiring a written determination (sent simultaneously to both parties) is an important due process protection for complainants and respondents, ensuring that both parties have relevant information about the resolution of allegations of Title IX sexual harassment. Section 106.45(b)(7) also helps prevent injection of bias into Title IX sexual harassment grievance processes, by requiring transparent descriptions of the steps taken in an investigation and explanations of the reasons why objective evaluation of the evidence supports findings of facts and conclusions based on those facts. Because the Department believes that § 106.45(b)(7) is important to ensure that recipients consistently, transparently, fairly, and accurately respond to Title IX sexual harassment, the Department declines to exempt smaller institutions, or elementary and secondary schools, from the requirements of this provision. The Department believes that the requirements of this provision are reasonable, and that the burden of complying with this provision is outweighed by the benefit of a consistent, transparent Title IX grievance process for students in elementary and secondary schools, as well as students at postsecondary institutions, irrespective of the size of the institution’s student body. In order to ensure that the written determination resolves allegations that a Accountability on Judgment Quality, 65 Organizational Behavior & Hum. Decision Processes 1, 15 (1996); Philip E. Tetlock & Jae Il Kim, Accountability and Judgment Processes in a Personality Prediction Task, 52 Journal of Personality & Social Psychol. 700, 706–07 (1987). 1484 Commenters cited: Marceline B.R. Kroon et al., Managing Group Decision Making Processes: Individual Versus Collective Accountability and Groupthink, 2 Int’l J. of Conflict Mgmt. 91, 99 (1991). 1485 2001 Guidance at 20 (prompt and equitable grievance procedures should provide for ‘‘Notice to the parties of the outcome of the complaint’’). 1486 2011 Dear Colleague Letter at 13 (‘‘Both parties must be notified, in writing, about the outcome of both the complaint and any appeal, i.e., whether harassment was found to have occurred. OCR recommends that schools provide the written determination of the final outcome to the complainant and the alleged perpetrator concurrently.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 PO 00000 Frm 00365 Fmt 4701 Sfmt 4700 30389 respondent committed sexual harassment as defined in § 106.30, and to avoid confusion caused by the NPRM’s reference in § 106.45(b)(7)(ii)(A) to a recipient’s code of conduct, we have revised that provision to reference identification of ‘‘allegations potentially constituting sexual harassment as defined in § 106.30’’ instead of ‘‘identification of sections of the recipient’s code of conduct alleged to have been violated.’’ Recipients retain discretion to also refer in the written determination to any provision of the recipient’s own code of conduct that prohibits conduct meeting the § 106.30 definition of sexual harassment; however, this revision to § 106.45(b)(7)(ii)(A) helps ensure that these final regulations are understood to apply to a recipient’s response to Title IX sexual harassment, and not to apply to a recipient’s response to non-Title IX types of misconduct. We decline to expressly require the written determination to address evaluation of contradictory facts, exculpatory evidence, ‘‘all evidence’’ presented at a hearing, or how credibility assessments were reached, because the decision-maker is obligated to objectively evaluate all relevant evidence, including inculpatory and exculpatory evidence (and to avoid credibility inferences based on a person’s status as a complainant, respondent, or witness), under § 106.45(b)(1)(ii). It is precisely this objective evaluation that provides the basis for the decision-maker’s ‘‘rationale’’ for ‘‘the result’’ of each allegation, which must be described in the written determination under § 106.45(b)(7)(ii)(E). The Department believes that § 106.45(b)(7), as revised in these final regulations, provides for a written determination adequate for the purposes of an appeal or judicial proceeding reviewing the determination regarding responsibility. We therefore decline to revise the language of this provision to specify that findings of fact must be described sufficiently to allow the parties and any appellate reviewer to understand the facts supporting or refuting the determination. Changes: We have revised § 106.45(b)(7)(ii)(A) to reference identification of allegations potentially constituting sexual harassment as defined in § 106.30, instead of referencing identification of sections of the recipient’s code of conduct alleged to have been violated. Comments: One commenter argued that requiring a written determination that describes the procedural steps of the investigation (i.e., § 106.45(b)(7)(ii)(B) requiring inclusion E:\FR\FM\19MYR2.SGM 19MYR2 30390 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations of notifications to parties, interviews of parties and witnesses, site visits, methods used to gather evidence) has no equivalent within criminal or civil procedure. Commenters argued that this provision would be unreasonably burdensome for recipients, especially for smaller institutions and for elementary and secondary schools. Some commenters asserted that the only procedural detail that should be included in the written determination is the investigation timeline. Other commenters asserted that information about the investigation should be included in the investigative report, but not in the written determination. One commenter argued that proposed § 106.45(b)(7)(ii)(C)–(D), which required that the written determination include findings of fact supporting the determination and ‘‘conclusions regarding the application of the recipient’s code of conduct to the facts,’’ would be contrary to the Administrative Procedure Act (‘‘APA’’), 5 U.S.C. 701 et seq., because the Department is not authorized to impose requirements on a recipient based whether the recipient’s own code of conduct has been violated. The commenter argued that the Department’s authority is strictly restricted to the application of Title IX to the facts and does not extend to application of the recipient’s code of conduct to the facts. One commenter expressed concern that the requirements related to the written determination are an example of how the proposed rules would conflate a sexual harassment investigation with disciplinary proceedings for behavioral violations. The commenter asserted that in the elementary and secondary school context, a sexual harassment investigation is designed to determine whether or not a student experienced sexual harassment and what remedies are necessary to stop the harassment, eliminate a hostile environment, prevent the harassment from reoccurring, and address any effects of the hostile environment. The commenter furthered argued that determinations of an individual student’s culpability for sexual harassment should be handled under a school district’s code of conduct and State student discipline due process laws. A number of commenters expressed concerns about including ‘‘remedies’’ in the written determination, under proposed § 106.45(b)(7)(ii)(E). One commenter requested a definition of the term ‘‘remedies.’’ One commenter argued that this proposed provision’s reference to including ‘‘any sanctions the recipient imposes on the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 respondent, and any remedies provided by the recipient to the complainant’’ is consistent with FERPA. Other commenters asserted that disclosing a complainant’s remedies to the respondent may violate FERPA, and would violate the complainant’s right to privacy regardless of whether FERPA would allow the disclosure. Commenters asserted that including remedies in the written determination would endanger safety on campus, deter students from seeking help, deter faculty and staff from participating in the process, and subject victims to further harassment from respondents. With respect to describing sanctions and remedies, some commenters suggested adding a FERPA compliance clause to this provision, and other commenters suggested modifying this provision to mirror the Clery Act. Commenters asserted that the Department should require the written determination to contain assurances that the school will take steps to prevent recurrence of harassment, correct the discriminatory effects of harassment, and prevent any retaliation against the complainant. Commenters argued that the effects of harassment can impact not only the complainant and respondent but also other members of the recipient’s community; because of this, commenters asserted, the final regulations should specify that a school’s obligation to respond following a determination of responsibility is not time-limited, and should require the school to take steps to ensure that remedial efforts are successful and to take further remedial steps if initial remedial efforts are not successful. One commenter suggested that the Department should require recipients to make a transcript or recording of all proceedings, and that the Department should require recipients to provide the transcript or recording to the parties along with the determination regarding responsibility, at least ten days prior to any appeal deadline. Commenters suggested that the written determination should not be prepared by the recipient but, rather, should be prepared by the Department, the U.S. Department of Justice, or a local or State human rights commission under work-sharing agreements. Commenters suggested that the same arrangement should be used to conduct the entire investigation. Discussion: The Department believes that the written determination must include certain key elements so that the parties have a complete understanding of the process and information considered by the recipient to reach its decision and that as revised, PO 00000 Frm 00366 Fmt 4701 Sfmt 4700 § 106.45(b)(7)(ii) appropriately and reasonably prescribes what a determination regarding responsibility must include. Such key information includes: Identification of the allegations alleged to constitute sexual harassment as defined in § 106.30; the procedural steps taken from receipt of the formal complaint through the determination regarding responsibility; findings of fact supporting the determination; conclusions regarding the application of the recipient’s code of conduct to the facts of the conduct allegedly constituting Title IX sexual harassment; a determination regarding responsibility for each allegation and the decision-maker’s rationale for the result; any disciplinary sanctions the recipient imposes on the respondent and whether the recipient will provide remedies to the complainant; and information regarding the appeals process and the recipient’s procedures and permissible bases for the complainant and respondent to appeal. These requirements promote transparency and consistency so that both parties have a thorough understanding of how a complainant’s allegations of Title IX sexual harassment have been resolved. We believe these requirements are reasonable, and that the cost or burden associated with compliance with this provision is outweighed by the benefit of promoting a consistent, transparent Title IX grievance process, including in elementary and secondary schools, and in institutions of a smaller size. The Department acknowledges a commenter’s point that a requirement to prepare a written determination that details steps of the investigation has no equivalent within criminal or civil procedure. However, in a criminal or civil proceeding, the criminal defendant or the civil litigation parties would likely have access to the same information through a combination of discovery rules and the ability to compel witnesses to appear at trial. To avoid attempting to make educational institutions mimic courts of law, the final regulations refrain from imposing discovery rules or purporting to create subpoena powers to compel parties or witnesses to be interviewed or to testify, in a Title IX grievance process. However, the written determination detailing the steps of the recipient’s investigation ensures that both parties in a Title IX grievance process understand the investigative process. This gives the parties equal opportunity E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations to raise any procedural irregularities on appeal.1487 The Department disagrees with the suggestion by commenters that the Department should require the investigator’s timeline to be included in the investigative report, and not in the written determination. The investigative report must fairly summarize relevant evidence, but § 106.45(b)(5)(vii) does not require that investigative report to describe the investigator’s timeline. The procedural steps in the investigation will instead appear in the written determination regarding responsibility, so that both parties have a thorough understanding of the investigative process that led to the decision-maker’s determination regarding responsibility. The Department disagrees that requiring the written determination to include findings of fact supporting the determination and conclusions regarding application of the recipient’s code of conduct to the facts runs contrary to the APA or otherwise exceeds the Department’s regulatory authority. The Department recognizes that the Department’s regulatory authority to enforce Title IX does not extend to purporting to enforce a recipient’s own code of conduct. Nothing in these final regulations, including with respect to a recipient’s issuance of a written determination regarding responsibility, purports to regulate a recipient’s application of the recipient’s own code of conduct. Instead, these final regulations, including the provisions in § 106.45(b)(7)(ii), govern how a recipient describes and explains its conclusions regarding Title IX sexual harassment in the recipient’s education program or activity. The facts supporting the determination required to be included in the written determination under § 106.45(b)(7)(ii) are relevant to evaluating a recipient’s response to Title IX sexual harassment regardless of the recipient’s code of conduct. However, requiring the recipient to ‘‘match up’’ how the conduct that allegedly constituted Title IX sexual harassment also violates the recipient’s code of conduct serves to notify the parties of any rules the recipient applies in its own code of conduct that, while not required by the § 106.45 grievance process, are permissible exercises of a recipient’s discretion with respect to a Title IX grievance process. In response to commenters’ concerns, we have revised § 106.45(b)(7)(ii)(A) to remove 1487 Section 106.45(b)(8) (requiring recipients to offer both parties equal opportunity to appeal, on any of three bases, including that procedural irregularity affected the outcome of the matter). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 reference to identification of sections of the recipient’s code of conduct alleged to have been violated, and replaced that language with a requirement to identify the allegations potentially constituting sexual harassment as defined in § 106.30. Similarly, as discussed in the ‘‘Written Notice of Allegations’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, we have revised § 106.45(b)(2) to remove unnecessary references to the recipient’s ‘‘code of conduct’’ that could have mistakenly implied that alleged conduct under investigation in a § 106.45 grievance process is conduct that violates the recipient’s code of conduct without also constituting sexual harassment as defined in § 106.30. With these revisions, we do not believe that the final regulations, including 106.45(b)(7)(ii), unduly or impermissibly reference a recipient’s code of conduct. Rather, this provision gives the parties information about how the conduct under investigation and adjudication (i.e., Title IX sexual harassment) fits within a recipient’s own unique code of conduct so that the parties are apprised of rules unique to the recipient’s own code of conduct that affect the determination or consequences of a determination regarding responsibility. For example, the final regulations include an entry for ‘‘Consent’’ under § 106.30 that assures recipients that the Department will not require recipients to adopt any particular definition of consent. Parties will benefit from a written determination that, for example, explains how the recipient’s own definition of ‘‘consent’’ has been applied in a particular case to an allegation of sexual assault. Thus, the written determination requirement to include how the conduct being adjudicated fits into the recipient’s code of conduct does not imply that the Department is regulating conduct outside Title IX sexual harassment. The Department disagrees that the final regulations, or the written determination provision in particular, conflate sexual harassment with student code of conduct violations. As explained above, the written determination requirements in § 106.45(b)(7)(ii) are intended to transparently disclose to the parties how the conduct under investigation and subject to adjudication (which conduct, by virtue of § 106.45(b)(2) must consist of allegations that meet the § 106.30 definition of sexual harassment) ‘‘matches up’’ against particular portions of a recipient’s code of PO 00000 Frm 00367 Fmt 4701 Sfmt 4700 30391 conduct, so that the parties understand how rules unique to a recipient’s code of conduct affect the determination. As to conduct that does not meet the § 106.30 definition of sexual harassment (or does not otherwise meet the jurisdictional conditions specified in § 106.44(a)), a formal complaint regarding such conduct must be dismissed for purposes of Title IX, though such conduct may be addressed by the recipient under its own code of conduct.1488 Thus, the written determination provision in § 106.45(b)(7) only applies to Title IX sexual harassment, and does not govern a recipient’s investigation or adjudication (or other response) to other misconduct under the recipient’s own student conduct codes. The Department does not believe a definition of the term ‘‘remedies’’ is necessary, but the final regulations add a statement in § 106.45(b)(1)(i) to lend clarity as to the nature of remedies. That provision now explains that remedies may include the same individualized services described in § 106.30 as ‘‘supportive measures’’ but that remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent. Beyond this, the Department believes recipients should have the flexibility to offer such remedies as they deem appropriate to the individual facts and circumstances of each case, bearing in mind that the purpose of remedies is to restore or preserve the complainant’s equal access to education. The Department acknowledges the privacy concerns expressed by commenters regarding the inclusion of remedies in the written determination of responsibility. In response to commenters’ concerns about the privacy aspects of disclosing what remedies a victim receives and the resulting possible effects of deterring reporting or making complainants feel unsafe, and in an effort to align these Title IX regulations with what recipients are required to do under the Clery Act, the final regulations revise § 106.45(b)(7)(ii)(E) to state (emphasis added) that the written determination must include any disciplinary sanctions the recipient imposes on the respondent,1489 ‘‘and whether remedies will be provided by the recipient to the complainant’’ to assure complainants that the nature of remedies provided 1488 Section 106.45(b)(3)(i). have also revised this provision to use the phrase ‘‘disciplinary sanctions’’ instead of ‘‘sanctions’’ as part of consistent use throughout the final regulations of ‘‘disciplinary sanctions’’ to avoid confusion over whether ‘‘sanctions’’ means something other than ‘‘disciplinary sanctions.’’ 1489 We E:\FR\FM\19MYR2.SGM 19MYR2 30392 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations does not appear in the written determination, while preserving the overall fairness of giving both parties identical copies of the written determination simultaneously. The final regulations also add § 106.45(b)(7)(iv) stating that the Title IX Coordinator is responsible for the effective implementation of remedies. These revisions to § 106.45(b)(7) help ensure that complainants know that where the final determination has indicated that remedies will be provided, the complainant can then communicate separately with the Title IX Coordinator to discuss what remedies are appropriately designed to preserve or restore the complainant’s equal access to education. The Department believes that these changes address commenters’ concerns about the privacy implications, safety concerns, and discouragement of students and employees from participating in the process, that were raised by the proposed rules’ requirement that remedies granted to a victim must be stated and described in the written determination. For discussion of these final regulations’ reference to remedies and disciplinary sanctions, and FERPA, see the ‘‘§ 106.6(e) FERPA’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. Commenters suggested requiring assurances that the school will take steps to prevent recurrence of harassment, correct its discriminatory effects, and prevent any retaliation against the complainant because the effects of harassment can go beyond the complainant and the respondent. The Department does not believe such assurances are necessary given the recipient’s ongoing and continuous duty to not be deliberatively indifferent. The Department believes the existing requirements under the final regulations are sufficient to promote prevention of recurrence of harassment and restore equal access to education. The Department believes the standard it has articulated, that a recipient’s response to sexual harassment must not be clearly unreasonable in light of the known circumstances, sufficiently addresses further Title IX concerns for all students following a determination of responsibility. In response to concerns about retaliation, the Department has added a new section addressing the topic, § 106.71. The Department is persuaded by the suggestion from commenters that the Department require recipients to make a transcript or recording of the live hearing. The Department believes that such a transcript is necessary to VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 preserve the record for appeal and judicial review. This requirement is now contained in § 106.45(b)(6)(i), requiring a recipient to make an audiovisual recording, or a transcript, of any live hearing, but the Department notes that this recording or transcript is not required to be part of the written determination sent to the parties. Rather, under § 106.45(b)(6)(i) the parties have equal opportunity to inspect and review the recording or transcript of a live hearing, but that inspection and review right does not obligate the recipient to send the parties a copy of the recording or transcript. The Department acknowledges the suggestions by commenters that the written determination should be prepared by the Department, the Department of Justice, or a local or State human rights commissions through work-sharing agreements. While the final regulations do not preclude a recipient from delegating the recipient’s obligation to investigate and adjudicate formal complaints of sexual harassment to persons or entities not affiliated with the recipient (for example, under a regional center model), Title IX governs each recipient’s obligation to appropriately respond to sexual harassment in the recipient’s education program or activity, and the recipient remains responsible for ensuring that it responds to a formal complaint by conducting a grievance process that complies with § 106.45, including issuing a written determination. Changes: The Department revised this provision to harmonize the language with other provisions of the final regulations. Section 106.45(b)(7) has been revised to reflect changes in § 106.45(b)(8), which now makes appeals mandatory. The proposed version of § 106.45(b)(7)(i) included language reflecting that providing for appeals was optional. Section 106.45(b)(7)(ii) uses the phrase ‘‘disciplinary sanctions’’ instead of ‘‘sanctions.’’ We have added § 106.45(b)(7)(iv) to clarify that the Title IX Coordinator is responsible for effective implementation of any remedies. This clarification reflects the mirror provision in the § 106.30 definition of ‘‘supportive measures’’ that made the Title IX Coordinator responsible for the effective implementation of supportive measures. We have also revised § 106.45(b)(7)(ii)(E) to require the written determination to state whether remedies will provided to the complainant. PO 00000 Frm 00368 Fmt 4701 Sfmt 4700 Section 106.45(b)(7)(iii) Timing of When the Decision Becomes Final Comments: One commenter expressed general support for § 106.45(b)(7)(iii). A few commenters expressed concerns regarding when the determination regarding responsibility becomes final and argued that the Department should permit recipients flexibility to impose sanctions on respondents upon the initial determination of responsibility and before the appeal process is complete. One commenter asserted that this approach is a best practice; appeals are meant to be limited to correcting rare error, and recipients can offer remote learning opportunities to respondents during the appeal period to preserve educational access. One commenter argued that the proposed requirement that an appeal by either party ‘‘stays’’ the determination is also problematic because practice is not accepted in other elementary and secondary school proceedings. The commenter reasoned that a school for example, would almost never stay a school’s suspension or expulsion order pending an appeal and that if a school district determines after a thorough investigation that sexual harassment occurred, school officials need to implement remedies as soon as possible in addition to continuing any interim measures already in place. One commenter expressed concern about the possibility that nearly all respondents found in violation of a school’s code of conduct will automatically appeal to OCR to have their findings overturned since such an appeal is free and can only help their position. This will significantly increase the effort and expenditures of recipients when compared with the far less expensive task of responding to an OCR data request and addressing any issues through the administrative process. One commenter suggested that the Department clarify the meaning of ‘‘final,’’ because if ‘‘final’’ means the determination can be the basis for disciplinary measures then it could conflict with existing State timelines and appeal procedures for disciplinary decisions. One commenter expressed concern that making a ‘‘final determination’’ at the hearing could have the effect of limiting essential time to render informed decisions, thus unfairly altering the hearing process for all parties. One commenter suggested that institutions should not be required to disclose the final outcome where doing so might upset the complainant. Discussion: The Department appreciates the support for E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations § 106.45(b)(7)(iii) regarding the timing of when determinations regarding responsibility become final. We acknowledge the concerns raised by some commenters regarding the effect that the timing of when a decision becomes final may have on recipients’ ability to impose sanctions on respondents and remedies for complainants. The intent of this provision is to promote transparency for, and equal treatment of, the parties, and to ensure that the recipient takes action on a determination that represents a reliable, accurate outcome. Importantly, the final regulations require recipients to offer both parties an appeals process to help mitigate risks such as procedural irregularity and investigator, decision-maker, or informal resolution facilitator bias. In order to ensure that both parties have the opportunity to benefit from their right to file an appeal, the written determination becomes ‘‘final’’ only after the time period to file an appeal has expired, or if a party does file an appeal, after the appeal decision has been sent to the parties. If the written determination became final prior to the outcome of an appeal, the right to have the case heard on appeal might be undermined. We also note that the § 106.44(c) emergency removal provision gives recipients some flexibility to remove respondents to protect the physical health or safety of students or employees. The Department notes that the final regulations also require recipients to designate reasonably prompt time frames for concluding appeals and leave recipients discretion over appeal procedures; thus, the appeals process would not necessarily have to be lengthy. The Department disagrees with commenters who argued that the proposed requirement that an appeal by either party ‘‘stays’’ the determination is problematic. The Department acknowledges that the ‘‘judgment’’ in a recipient’s determination regarding responsibility is more analogous to injunctive relief than monetary damages, and that civil court rules (e.g., the Federal Rules of Civil Procedure) do not provide for automatic stay of injunctions. However, the process for concluding a recipient’s appeal (thereby finalizing the determination) differs from the process for an appeal in civil court. The recipient’s appeal process is likely to conclude during a much shorter time period than an appeal from a court judgment, and furthermore, the final regulations obligate the recipient to offer supportive measures throughout the grievance process (unless failing to VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 do so would not be clearly unreasonable) thus maintaining a status quo through the grievance process that may continue a short time longer while an appeal is being resolved. The Department believes that in order for an appeal, by either party, to be fully effective, the recipient must wait to act on the determination regarding responsibility while maintaining the status quo between the parties through supportive measures designed to ensure equal access to education. Because a recipient’s determination regarding responsibility in the nature of injunctive relief, if the recipient acts on a determination prior to resolving any appeal against that determination, the recipient likely will have taken steps requiring the parties to change their positions, in ways that cannot be easily reversed if the determination is changed due to the appeal. On the other hand, maintaining the status quo a short time while an appeal is resolved gives the parties, and the recipient, confidence that the determination regarding responsibility acted upon represents a factually accurate, reliable outcome. The Department disagrees that all respondents will file an ‘‘appeal’’ with OCR, or that the rate at which respondents file complaints with OCR challenging the recipient’s response to a formal complaint of sexual harassment will interfere with victims’ abilities to receive remedies under a promptlyresolved grievance process. Any person, including any complainant or respondent, may file a complaint with OCR claiming that a recipient has not complied with the recipient’s obligations under Title IX. However, filing a complaint with OCR does not ‘‘stay’’ or reverse the recipient’s determination regarding responsibility. Moreover, the final regulations include § 106.44(b)(2) which gives deference to the recipient’s determination regarding responsibility by assuring recipients that the Department will not deem a recipient’s determination regarding responsibility to be evidence of deliberate indifference by the recipient, or otherwise evidence of discrimination under Title IX by the recipient, solely because the Assistant Secretary would have reached a different determination based on an independent weighing of the evidence. Thus, after a party (whether respondent or complainant) has taken advantage of the recipient’s own appeal process, the Department believes it is unlikely that parties will rush to file with OCR, first because the recipient’s appeal process will address procedural, new evidence, and bias or conflict of interest problems that PO 00000 Frm 00369 Fmt 4701 Sfmt 4700 30393 affected the outcome, and second because the final regulations clarify for all parties that the Department will not reverse an outcome based solely on reweighing the evidence. We appreciate the opportunity to address commenters’ questions regarding the meaning of a ‘‘final’’ determination. A ‘‘final’’ determination means the written determination containing the information required in § 106.45(b)(7), as modified by any appeal by the parties. With respect to potential conflict with State procedures, under the final regulations recipients have substantial discretion to designate time frames for concluding the grievance process, including appeals, thus lessening the likelihood that a recipient must violate a State law with respect to timely conclusion of a grievance process. In the event of actual conflict, our position is that the final regulations would have preemptive effect.1490 Further, the Department appreciates the opportunity to clarify here that nothing in the final regulations requires final determinations to be made at the hearing; the commenter who expressed concern over this possibility appears to have misinterpreted the NPRM, as the proposed regulations did not provide for that outcome. Rather, the final regulations provide that a determination regarding responsibility cannot be reached without conducting a live hearing (for postsecondary institutions), or without first giving the parties an opportunity to submit written questions to parties and witnesses (for elementary and secondary schools, and other recipients who are not postsecondary institutions), and § 106.45(b)(7)(ii) states that the decisionmaker ‘‘must issue a written determination regarding responsibility’’ but does not require that written determination to be issued at the hearing. The Department notes that the time frame for when the decision-maker should issue the written determination will be governed by the recipient’s designated, reasonably prompt time frames under § 106.45(b)(1)(v). The Department wishes to make clear that it is certainly not our intent to upset or traumatize complainants by requiring recipients to provide a written determination regarding responsibility to both complainants and respondents. To promote transparency, equal treatment of the parties, and to ensure that both parties’ right to appeal may be meaningfully exercised, the final 1490 See discussion under the ‘‘Section 106.6(h) Preemptive Effect’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30394 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations regulations require the decision-maker to simultaneously send a copy of the written determination to both parties. In response to commenters’ concerns that including details about remedies for complainants in the written determination could pose unnecessary privacy, confidentiality, or safety problems that could negatively impact complainants, the final regulations revise this provision to require that the written determination state whether remedies will be provided to a complainant; the nature of such remedies can then be discussed separately between the complainant and the Title IX Coordinator. The final regulations also add § 106.45(b)(7)(iv) to state that the Title IX Coordinator is responsible for the effective implementation of remedies. Changes: We have revised § 106.45(b)(7)(iii) such that responsibility determinations will become final either on the date the recipient simultaneously provides the written determination of the appeal result to the parties, or the date on which an appeal is no longer timely if neither party appeals. We have revised § 106.45(b)(7)(ii)(E) to state that while the written determination must include ‘‘any sanctions the recipient imposes on the respondent,’’ the written determination must only state ‘‘whether remedies designed to restore or preserve equal access to the recipient’s education program or activity will be provided by the recipient to the complainant.’’ (Emphasis added.) We also add § 106.45(b)(7)(iv) to state that the Title IX Coordinator is responsible for the effective implementation of remedies. [§ 106.45(b)(7)(iv) Title IX Coordinator Responsible for Effective Implementation of Remedies: Addressed Under § 106.45(b)(7)(iii)] Transcript Notations Comments: Some commenters expressed concern about harms to the education, career, well-being, and lives of students whose transcripts are marked as responsible for sexual misconduct. Several commenters referenced the notation as a ‘‘black mark’’ on a student’s record and asserted that it is overly stigmatizing or punitive, and imposes permanent barriers to success in one’s education and career. One commenter, for example, noted the damage of respondents having to disclose such records to apply to graduate school, to receive a professional license, or to potential employers, which risks being denied admission, disciplined, or suspended from one’s professional VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 practice, as well as a stain on one’s personal relationships and reputation. Several commenters emphasized their concerns about such transcript notations being imposed without due process protections or using a low standard of evidence. Another commenter asserted that the records have no predictive value, would not prevent crimes even if shared, are often inaccurate or misleading (such as recording both an unwanted touch and rape as sexual misconduct), and create a high financial burden to clearing one’s name through litigation that only well-off families can afford. Similarly, another commenter asserted that expunging disciplinary records would significantly improve the lives of respondents while imposing minimal costs or administrative burdens on schools. A number of commenters suggested mechanisms be added to the final regulations for removing sexual misconduct notations or for expunging such records so that the students involved could clear their names and reputations. Several commenters suggested expunging records after a certain time period, such as after a sanction has been served or after a certain number of years. Other commenters suggested limiting expungement to less egregious cases, such as in cases: Not involving rape; with no criminal charges or findings; or for lower-level, noncriminal, or nonviolent cases not involving weapons, evidence of force, incapacitation, multiple parties, or multiple witnesses. Several commenters suggested allowing schools to expunge records of students found responsible under withdrawn or disapproved OCR policies, which commenters stated could be accomplished if the Department would express to recipients that the Department will not penalize a recipient that chooses to re-open and reconsider closed cases. One commenter suggested deeming a school in violation of Title IX for not removing a notation based on flawed prior proceedings or for refusing to provide continuing enrollment at an institution if a student does not proceed with a Title IX investigation and hearing that lacks fundamental safeguards; this commenter asserted that schools have used flawed procedures as a result of the Department’s withdrawn 2011 Dear Colleague Letter. Another commenter proposed allowing transcript notations only in the most egregious cases and that used a clear and convincing evidence standard, allowed crossexamination, and gave the accused a chance to help select the trier of fact. PO 00000 Frm 00370 Fmt 4701 Sfmt 4700 Some commenters provided other points of view. A few expressed concerns that individuals found responsible for sexual misconduct could transfer to other educational institutions that have no awareness of such misconduct. One such commenter proposed mandating that Title IX findings be shared between universities to help them avoid hiring sexual harassers. Another commenter, a State’s attorney general, urged the Department not to restrict schools from being more aggressive in addressing sexual harassment, citing their State law requiring transcript notations for respondents who are suspended, dismissed, or who withdraw while under investigation for sexual assault. Discussion: The Department understands the concerns that commenters raise about transcript notations, the value of these transcript notations, and the impact that these transcript notations may have on a respondent’s future educational and career opportunities. The Department also appreciates the concerns of other commenters that individuals found responsible for sexual misconduct could transfer to other educational institutions that have no awareness of such misconduct. The Department intentionally did not take a position in the NPRM on transcript notations or the range of possible sanctions for a respondent who is found responsible for sexual harassment. The Department does not wish to dictate to recipients the sanctions that should be imposed when a respondent is found responsible for sexual harassment as each formal complaint of sexual harassment presents unique facts and circumstances. As previously stated, the Department believes that teachers and local school leaders with unique knowledge of the school climate and student body, are best positioned to make disciplinary decisions. If a respondent determines that a school is discriminating against the respondent based on sex with respect to a sanction such as a transcript notation, then a respondent may be able to challenge such a discriminatory practice through a recipient’s procedures under § 106.8(c) or through filing a complaint with OCR. We do not wish to deem a school in violation for a school’s conduct prior to the effective date of these final regulations, including conduct such as not removing a notation based on a prior proceeding that lacked due process or a school’s past refusal to provide continuing enrollment at a postsecondary institution if a student does not proceed with a Title IX investigation and hearing that lacks E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations fundamental safeguards. These final regulations will apply prospectively to give recipients adequate notice of the standards that apply to them. The Department shares some of the concerns that the commenter has about the 2011 Dear Colleague Letter, and the Department has withdrawn the 2011 Dear Colleague Letter.1491 The Department understands the commenter’s concerns that respondents who have been found responsible for sexual harassment may transfer to another institution or be hired by another institution and declines to require that institutions share the result of a Title IX investigation or proceeding with other institutions. Requiring such disclosure of personally identifiable information from a student’s education record outside the elementary or secondary school or postsecondary institution may require institutions to violate FERPA, and its implementing regulations. These final regulations are consistent with FERPA, and the Department does not wish to impose any requirements that violate FERPA. As at least one commenter stated, some States have adopted laws concerning transcript notations in the context of sexual harassment, and the Department’s approach does not present any conflict with these State laws. The Department’s policy aligns with the holding of the Supreme Court in Davis that courts must not second guess recipients’ disciplinary decisions.1492 Where a respondent has been found responsible for sexual harassment, any disciplinary sanction decision rests within the discretion of the recipient, although the recipient must also provide remedies, as appropriate, to the complainant designed to restore or preserve the complainant’s equal educational access.1493 The Department also appreciates the concern that transcript notations may be imposed without adequate due process protections or a low standard of evidence. In response to these concerns, the Department revised § 106.44(a) to provide that an equitable response for a respondent means a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures, as defined in § 106.30. 1491 U.S. Dep’t. of Education, Office for Civil Rights, Dear Colleague Letter (Sept. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/ colleague-title-ix-201709.pdf. 1492 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646 (1999) (recognizing school officials’ ‘‘comprehensive authority’’ to control student conduct subject to constitutional limitations) (internal citation omitted). 1493 Section 106.45(b)(1)(i). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Although the Department will not interfere with the recipient’s discretion in imposing an appropriate sanction, the Department requires that a respondent receive a grievance process with the fulsome due process protections in § 106.45 before any sanctions are imposed. Accordingly, a recipient will be held in violation of these regulations for failing to proceed with a Title IX investigation and hearing that lacks fundamental safeguards. These final regulations provide that a recipient may use either a preponderance of the evidence standard or a clear and convincing evidence standard and must apply the same standard of evidence for complaints against students as it does for complaints against employees, including faculty.1494 If a recipient chooses to use a preponderance of the evidence standard, then the recipient must carefully consider whether the sanction of a transcript notation is appropriate under Federal case law. As noted in § 106.6(d)(2), nothing in these final regulations deprives a person of any rights that would otherwise be protected from government action under the Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. The Department also appreciates the comments regarding the expungement of records. The Department did not address expungement in its proposed regulations and declines to do so here. The concept of expungement in the context of an education program or activity appears novel. A recipient may choose to have an expungement process that removes a sanction or result of a hearing or appeal from a respondent’s official academic or disciplinary record at the school or institution if a respondent is found not responsible after a hearing or an appeal. A recipient, however, must retain certain records of a sexual harassment investigation for at least seven years under § 106.45(b)(10), even if the recipient has a process for expungement. As explained earlier in this preamble, this seven-year period aligns with the record retention period in the Department’s regulations,1495 which is important as the definitions for sexual assault, dating violence, domestic violence, and stalking from the regulations implementing the Clery Act are part of the definition of sexual harassment in § 106.30. The Department will not dictate how recipients must treat these records after seven years 1494 Section 106.45(b)(1)(vii); § 106.45(b)(7)(i). CFR 668.24(e)(2)(ii); see Dep’t. of Education, Office of Postsecondary Education, The Handbook for Campus Safety and Security Reporting 9–11 (2016), https://www2.ed.gov/ admins/lead/safety/handbook.pdf. 1495 34 PO 00000 Frm 00371 Fmt 4701 Sfmt 4700 30395 because recipients may have other obligations that require them to preserve the records for a longer period of time such as the obligation to preserve records for litigation. Recipients, however, may choose to destroy records after this seven-year retention period. The Department notes that these final regulations, including the seven-year retention period, apply prospectively only. Just as the Department is not dictating when and whether a recipient may destroy records after the seven-year retention period, the Department will not dictate when and whether recipients may destroy records of respondents found responsible for sexual harassment before these final regulations become effective. As long as recipients adhere to all other Federal retention requirements that the Department imposes, the Department will not interfere with a recipient’s decision to expunge records of responsibility determinations made under prior OCR policies, irrespective of whether these policies were rescinded. Recipients, however, should be mindful of adhering to any retention requirements in State law and in their own policies. Recipients also must not treat or categorize records in a manner that results in discrimination based on sex under the Department’s regulations. In other words, a recipient cannot treat people differently on the basis of their sex with respect to records pertaining to sexual harassment. Changes: The Department revised § 106.44(a) to provide that an equitable response for a respondent means a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures, as defined in § 106.30. Appeals Section 106.45(b)(8) Appeals Comments: A number of commenters supported equal appeal rights for both complainants and respondents because they believe it will bring campus procedures in line with the requirements of due process, First Amendment free speech rights, established case law, and existing legislation. Commenters also argued that equal appeal rights will reduce litigation by reducing the abuses of Title IX procedures and helping to ensure accuracy. Some commenters argued that the proposed regulations promote fairness and push back on misguided efforts to micromanage the lives of students. Commenters stated that many institutions may not be equipped to decide whether to offer an appeal, or E:\FR\FM\19MYR2.SGM 19MYR2 30396 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations that institutions may have a conflict of interest, and that the proposed regulations balance the complexities of the modern education environment. Some commenters shared personal stories about how they have benefitted from attending institutions that offered appeal rights or, conversely, about how costly it was to overturn a denial of due process at institutions that did not offer appeal rights. Some commenters supported the NPRM because denying appeal rights to complainants would cause further trauma, while offering them the option to appeal will provide needed support. Other commenters argued that the NPRM promotes fair and impartial procedures that will protect justice and civil rights. Commenters supported giving both parties the opportunity to submit a written statement supporting or challenging the outcome. Discussion: The Department appreciates the general support received from commenters regarding our approach to offering appeal rights to both parties in Title IX proceedings, and the urging of many commenters to require recipients to offer appeals. The Department is persuaded by commenters that recipient-level appeals should be mandatory and offered equally to both parties because this will make it more likely that recipients reach sound determinations, giving the parties greater confidence in the ultimate outcome. Complainants and respondents have different interests in the outcome of a sexual harassment complaint. Complainants ‘‘have a right, and are entitled to expect, that they may attend [school] without fear of sexual assault or harassment,’’ while for respondents a ‘‘finding of responsibility for a sexual offense can have a lasting impact on a student’s personal life, in addition to [the student’s] educational and employment opportunities[.]’’ 1496 Although these interests may differ, each represents high-stakes, potentially life-altering consequences deserving of an accurate outcome.1497 Accordingly, the Department has revised § 106.45(b)(8) to require recipients to offer both parties equal appeal rights on three bases: procedural irregularity, newly discovered evidence, and bias or conflict of interest. This provision further states that recipients may offer appeals on additional grounds but must do so equally for both parties. The revised provision also expressly permits 1496 Doe v. Univ. of Cincinnati, 872 F.3d 393, 400, 403 (6th Cir. 2017). 1497 Id. at 404 (recognizing that the complainant ‘‘deserves a reliable, accurate outcome as much as’’ the respondent). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 both parties to appeal a recipient’s dismissal of a formal complaint (or allegations therein), whether the dismissal was mandatory or discretionary under § 106.45(b)(3). We have also removed the limitation that precluded a complainant from appealing the severity of sanctions; the final regulations leave to a recipient’s discretion whether severity or proportionality of sanctions is an appropriate basis for appeal, but any such appeal offered by a recipient must be offered equally to both parties. Changes: We have revised § 106.45(b)(8) such that recipients must offer both parties an appeal from determinations regarding responsibility, or from a recipient’s dismissal of a formal complaint or any allegations contained in a formal complaint. Recipients must offer appeals on at least the three following bases: (1) Procedural irregularity that affected the outcome; (2) new evidence that was not reasonably available when the determination of responsibility was made that could affect the outcome; or (3) the Title IX Coordinator, investigator, or decision-maker had a general or specific conflict of interest or bias against the complainant or respondent that affected the outcome. Recipients may offer appeals equally to both parties on additional bases. Complainants and respondents have equal appeal rights under the final regulations; we have removed the NPRM’s limitation on complainants’ right to appeal sanctions. Comments: Some commenters argued that the proposed regulations do not reflect the high ideals we should have for education. Other commenters expressed concern about the application of § 106.45(b)(8), arguing that appeals procedures will not be applied equally across the country and that appeals should be made mandatory instead. Other commenters suggested that appeals should only be granted when parties can demonstrate specific rights that were violated by the proceedings. Other commenters suggested adding greater due process protections, such as barring appeals of any not guilty finding, in accordance with the doublejeopardy principle enshrined in the Constitution and applied in criminal proceedings. Commenters opposed § 106.45(b)(8) because many institutions already offer equal appeals to both parties. Discussion: The Department is persuaded by commenters who asserted that appeal rights should be mandatory for Title IX proceedings. We have revised § 106.45(b)(8) to require recipients to offer both parties the PO 00000 Frm 00372 Fmt 4701 Sfmt 4700 opportunity to appeal a determination regarding responsibility on any of three bases, and equal opportunity to appeal a recipient’s decision to dismiss a formal complaint or an allegation contained in a formal complaint.1498 This will help to ensure that appeal rights are applied equally by recipients across the country, increasing the legitimacy of recipients’ determinations regarding responsibility and ensuring that recipients have an opportunity to self-correct erroneous outcomes. The final regulations clearly specify which rights or interests could justify an opportunity to appeal; namely, where the outcome was affected by procedural irregularity, newly discovered evidence, or conflict of interest or bias in key personnel involved with the investigation and adjudication of the case. The Department also believes that giving recipients flexibility and discretion in crafting their Title IX processes is important, and we believe that recipients are in best position to know the unique values and interests of their educational communities. For this reason, § 106.45(b)(8) grants recipients discretion to offer appeals on additional grounds, so long as such additional bases for appeal are offered equally to both parties. We respectfully disagree with the commenters who argued that the final regulations should prohibit appeals of not responsible determinations because of double jeopardy concerns. As discussed above, we believe that both respondents and complainants face potentially life-altering consequences from the outcomes of Title IX proceedings. As such, it is important to protect complainants’ right to appeal as well as respondents’ right to appeal. We believe the final regulations adequately protect both parties’ interests in a fair, accurate outcome by requiring recipients to offer both parties the opportunity to appeal on at least three specific bases; requiring that appeal decision-makers be different than the Title IX Coordinator, investigator(s), or decision-maker(s) that reached the initial determination; requiring appeal decision-makers to satisfy the robust anti-bias and training requirements of § 106.45(b)(1)(iii); giving both parties a meaningful and equal opportunity to submit written statements supporting or challenging the outcome; and requiring written determinations explaining the appeal result and rationales to be given to both parties. Changes: None. 1498 Section 106.45(b)(3)(i) (addressing mandatory dismissals); § 106.45(b)(3)(ii) (addressing discretionary dismissals). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Comments: Some commenters expressed concern that § 106.45(b)(8) was not drafted with the victim in mind. Commenters opposed restricting the complainant’s right to appeal because equal appeal rights are supported by experts, or because the complainant may have new evidence and restricting their appeal rights will put the integrity of the proceeding at risk. Commenters argued that appeals for only the respondent are not needed because false accusations are rare. These commenters also believed that approach proposed in the NPRM offers unequal appeal rights, which reinforces sex stereotypes, can be a form of sex bias, and can signal that sexual harassment is not treated seriously. Some commenters opposed restricting the complainant’s right to appeal because the Secretary spoke in favor of equal appeals. Other commenters argued that appeals are a guaranteed right for any individual who is participating in a federally-funded program and that complainants should not be restricted at all in their grounds for appeals. Commenters argued that a school’s grievance procedure should be compared to an administrative process rather than a criminal process, and that appeals ensure an additional layer of review that is needed when fact-finders may not be sympathetic to claims that access to educational opportunities has been impaired. Some commenters expressed concern that the proposed appeal procedures would disrupt the balance of rights in campus procedures and, by treating sexual harassment uniquely, will cause sexual harassment claims to be received with skepticism. Discussion: The Department has revised many provisions of the final regulations with the well-being of victims in mind, including revisions to § 106.45(b)(8) that require recipients to offer appeals equally to both parties and remove the restriction in the NPRM on complainants’ ability to appeal a determination based on the severity of the sanctions imposed on the respondent. The Department is persuaded by many commenters’ concerns that the right to appeals should be mandatory and equally available to both parties. We have revised § 106.45(b)(8) to provide equal appeal rights to both parties and include robust protections such as anti-bias and training requirements for appeal decision-makers, strict separation of the appeal decision-makers from the individuals who investigated and adjudicated the underlying case to reinforce independence and neutrality, and retain the proposed provision’s requirements allowing both parties VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 equal opportunity to participate in the appeals process through submitting written statements, and requiring reasoned written decisions describing the appeal results to be provided to both parties. Under the final regulations, the appeal rights of complainants and respondents are identical. Appeals may be an important mechanism to reduce the possibility of unfairness or to correct potential errors made in the initial responsibility determination. As a general principle, we agree with commenters that one of the goals of these regulations should be to preserve recipients’ autonomy to craft procedures by which they address issues of sexual misconduct. However, the Department also believes that the requirements contained in the final regulations, including § 106.45(b)(8) on appeals, further the twin purposes of the Title IX statute. As the Supreme Court has stated, the objectives of Title IX are twofold: first, to ‘‘avoid the use of Federal resources to support discriminatory practices’’ and second, to ‘‘provide individual citizens effective protection against those practices’’ 1499 The Department is persuaded by commenters who urged that recipientlevel appeals are not only a best practice, but should be required equally for both parties, to provide additional, effective protections against a recipient reaching an unjust or inaccurate outcome in Title IX sexual harassment proceedings. Changes: None. Comments: Some commenters argued that granting the complainant a right to appeal will adversely affect the proceedings by empowering institutions to be advocates for complainants. Commenters asserted that institutions can offer supportive measures to complainants such that the benefits to the complainant of being able to appeal a finding of non-responsibility are not sufficient to outweigh the respondent’s interest in not having to face the same accusation more than once. Commenters also argued that the Department has not offered enough guidance on how institutions can offer complainants appeals while preserving the presumption of innocence. Discussion: We believe that granting appeal rights to complainants will not have the effect of turning recipients into advocates for complainants, and granting those same appeal rights to respondents does not turn recipients into advocates for respondents, either. The Department wishes to emphasize that supportive measures, such as 1499 Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979). PO 00000 Frm 00373 Fmt 4701 Sfmt 4700 30397 mutual no-contact orders or academic course adjustments, remain available to help restore or preserve either party’s equal access to education and that such measures may continue in place throughout an appeal process.1500 We believe that maintaining a level of equal educational access while the recipient takes an additional step (assuming one or both parties decide to appeal) contributes to the benefit of requiring equal appeal rights, so that recipients may self-correct erroneous outcomes, better ensuring that the § 106.45 grievance process as a whole leads to reliable determinations regarding responsibility. As a result, we have revised § 106.45(b)(8) to require recipients to offer both parties equal appeal rights on bases of procedural irregularity, newly discovered evidence, or bias or conflict of interest; if such grounds exist, a party should be able to appeal and ask the recipient to revisit the outcome so that the recipient has the opportunity to correct the outcome, whether such an improvement in the accuracy of the outcome is for the complainant’s benefit or the respondent’s benefit. The Department notes that under the final regulations, whether the parties can appeal based solely on the severity of sanctions is left to the recipient’s discretion, though if the recipient allows appeals on that basis, both parties must have equal opportunity to appeal on that basis. The Department does not believe that this approach to appeals constitutes double jeopardy unfair to respondents; the Department reiterates that the Title IX grievance process differs in purpose and procedure from a criminal proceeding, and the Department is not persuaded that a fair process under Title IX requires protection against ‘‘double jeopardy’’ the way that the U.S. Constitution grants such protection to criminal defendants. The Department acknowledges that respondents face a burden if a complainant appeals a determination of non-responsibility, but the Department believes it is important for recipients to revisit determinations that were reached via alleged procedural irregularity or bias or conflict of interest affecting the outcome, or where newly discovered evidence may affect the outcome. The Department notes that § 106.45(b)(1)(v) requires recipients to conclude the appeal process under designated, reasonably prompt time frames, and thus the end result is that 1500 We reiterate that as to complainants, revised § 106.44(a) requires recipients to offer supportive measures to complainants, and the definition of supportive measures in § 106.30 states that supportive measures may be available for either party. E:\FR\FM\19MYR2.SGM 19MYR2 30398 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the recipient’s final determination in a Title IX grievance process is both accurate and reasonably prompt. With respect to commenters’ request that the Department offer additional guidance on how recipients may offer appeals to complainants while also respecting the presumption of nonresponsibility contained in § 106.45(b)(1)(iv), we believe that nothing about § 106.45(b)(1)(iv), or the underlying principles justifying the presumption of non-responsibility, conflicts with the equal appeal rights that § 106.45(b)(8) of the final regulations offers to both complainants and respondents. As discussed in the ‘‘Section 106.45(b)(1)(iv) Presumption of Non-Responsibility’’ subsection of the ‘‘General Requirements for § Grievance Process’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, the presumption of non-responsibility is intended to ensure that recipients do not treat respondents as responsible prior to ultimate resolution of the grievance process. For the reasons discussed above, asking recipients to offer appeals where the outcome may have been affected by procedural irregularity, bias or conflict of interest, or where newly discovered evidence becomes available helps ensure that the final determination in each particular case is factually accurate, because a proceeding infected by such defects may have resulted in an erroneous outcome to the prejudice of the complainant or the respondent. Changes: None. Comments: Some commenters argued that unequal appeal rights will have an adverse effect on campus safety. Commenters cited the high rates of sexual assault and harassment and expressed fear about attending campus if these regulations take effect. Commenters expressed concern that victims will experience further trauma and not be able to receive an education if recipients cannot punish their attacker. Discussion: In response to commenters’ concerns that any inequality in the appeals provision could undermine the safety and security of recipients’ educational communities, the Department has revised § 106.45(b)(8) to require recipients to offer appeals to both complainants and respondents on three specified bases, and if a recipient chooses to offer appeals on additional bases such appeals also must be offered equally to both parties. As discussed above, the Department believes that by offering the opportunity to appeal to both parties, recipients will be more likely to reach VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 sound determinations, giving the parties greater confidence in the ultimate outcome and better ensuring that recipients appropriately respond to sexual harassment for the benefit of all students and employees in recipients’ education programs and activities. Changes: None. Comments: Some commenters argued that the NPRM’s appeal provisions conflicted with Federal law, including the Campus SAVE Act, because as proposed, § 106.45(b)(8) gave unequal appeal rights to the parties. Commenters also asserted that the Department mischaracterized case law in the NPRM’s preamble to purportedly justify imposing unequal appeal rights on the parties. Some commenters contended the NPRM’s appeal provisions conflicted with OCR’s past enforcement practices. Discussion: In response to well-taken arguments made by commenters, the Department is persuaded that the final regulations, unlike the NPRM, should require recipients to give equal appeal rights to the parties. That is why, as discussed above, the limitation contained in the NPRM that complainants could not appeal sanction decisions has been removed from the final regulations. We are leaving recipients with the discretion to permit both parties to appeal sanctions, provided that such an appeal must be offered equally to both parties. We therefore decline to address the contention raised by some commenters that the approach to appeal rights contained in the NPRM may have conflicted with Federal law such as the Campus SAVE Act, or with past Department enforcement practices. The Department believes that by offering appeals to both complainants and respondents on an equal basis, recipients will be more likely to reach sound determinations, giving the parties greater confidence in the ultimate outcome. Both complainants and respondents have significant interests in the outcomes of these proceedings; the consequences of a particular determination of responsibility or sanction can be life-altering for both parties and thus each determination must be factually accurate. The stakes are simply too high in the context of sexual misconduct for appeals not to be part of the grievance process; as many commenters pointed out, a recipientlevel appeal gives the recipient an opportunity to ensure factual accuracy in determinations by permitting either party to bring to the recipient’s attention improper factors that affected the initial determination. The Department is persuaded by commenters who urged PO 00000 Frm 00374 Fmt 4701 Sfmt 4700 the Department to recognize that an error or bias affecting the initial determination regarding responsibility is as likely to negatively affect a complainant as a respondent, and thus the equality of both parties’ right to appeal is critical to the parties’ sense of justice and confidence in the outcome. Furthermore, a procedural irregularity that affected the outcome, newly discovered evidence that may have affected the outcome, or bias or conflict of interest that affected the outcome, each represents an error that, if left uncorrected by the recipient, indicates that the determination was inaccurate, and thus that sexual harassment in the recipient’s education program or activity has not been identified and appropriately addressed. Appeals enable recipients to correct errors in the adjudicative process, and may also reduce parties’ reliance on OCR or private litigation to challenge the outcomes thereby yielding just outcomes more quickly than when a party must seek justice in a process outside the recipient’s own Title IX grievance process. The Department has therefore revised § 106.45(b)(8) to ensure that both parties have equal right to appeal by asking recipients to reconsider determinations (using a different decision-maker from any person who served as the Title IX Coordinator, investigator, or decisionmaker reaching the initial determination) where procedural irregularity, newly discovered evidence, or bias or conflict of interest affected the outcome. The same reasoning applies to a recipient’s dismissal of a formal complaint, or allegations therein; where a recipient’s dismissal is in error (for example, the recipient incorrectly decided that the underlying alleged incident did not occur in the recipient’s education program or activity leading to mandatory dismissal for Title IX purposes, or the recipient’s discretionary dismissal was based on incorrect facts), the parties should have the opportunity to challenge the recipient’s dismissal decision so that the recipient may correct the error and avoid inaccurately dismissing a formal complaint that needs to be resolved in order to identify and remedy Title IX sexual harassment. Thus, we have also revised this provision to expressly allow both parties the equal right to appeal a recipient’s mandatory or discretionary dismissals under § 106.45(b)(3)(i)–(ii). Changes: None. Comments: Some commenters opposed restricting complainants’ rights to appeal because of the effect this provision would have on sanctions E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations issued during the grievance process. Commenters argued that respondents are often given light sanctions and are permitted to remain at the institution, adversely impacting complainants’ access to education. They contended that it is unfair to allow one party to appeal sanctions, but not the other party. Commenters asserted that complainants should have a say in the sanctions delivered to the respondents. Other commenters argued that complainants should be allowed to appeal sanctions because they will have a strong interest in doing so, while respondents should not be allowed to appeal sanctions because they would only do so out of self-interest. Discussion: As discussed above, and in response to well-taken concerns raised by commenters, the Department has decided to remove the limitation contained in the NPRM that would have prevented complainants from appealing recipients’ sanction decisions. Under § 106.45(b)(8) of the final regulations, recipients have the discretion to permit parties to appeal sanctions. The Department wishes to clarify that if recipients decide to offer appeal rights regarding sanctions, then both complainants and respondents must have the same rights to appeal. We agree with commenters that it would be unfair and run counter to the spirit of Title IX to permit complainants to appeal sanction decisions but not permit respondents to appeal sanction decisions, and vice versa, and as such if a recipient allows appeals on the basis of severity of sanctions that appeal must be offered equally to both parties. Changes: None. Comments: Some commenters argued that the Department should require institutions to offer appeals. They argued that mandated appeals will ensure uniformity, reduce litigation, and will be necessary due to the decreased standard of liability. Other commenters expressed concern that offering complainants the right to appeal would violate due process. They argued that a false finding of responsibility will result in life-altering stigma and harm to respondents and that their interest in avoiding double jeopardy is significant. Some commenters suggested that if respondents are allowed to appeal, they should only be allowed to appeal for blatant errors. Some commenters argued that § 106.45(b)(8) was not clear that an appeals panel must be different from the original panel. Commenters suggested that the Department ensure a third-party appeals process to protect the fairness and independence of the decisions on appeal. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Discussion: The Department is persuaded by the concerns raised by commenters, and we note that § 106.45(b)(8) of the final regulations requires recipients to offer appeals equally to both parties. Further, we acknowledge that being found responsible for sexual misconduct under Title IX may carry a significant social stigma and life-altering consequences that could impact the respondent’s future educational and economic opportunities. However, we also believe that complainants have significant, life-altering interests at stake, and that they ‘‘have a right, and are entitled to expect, that they may attend [school] without fear of sexual assault or harassment.’’ 1501 For these reasons, along with the centrality of appeals as a mechanism for addressing potential unfairness or error in an adjudication, the Department believes that appeal rights should be offered equally to both complainants and respondents in recipients’ Title IX proceedings. Further, we believe that appeal rights for respondents should not be limited to ‘‘blatant errors,’’ as suggested by one commenter. Instead, the final regulations specify the bases upon which either party can appeal, including procedural irregularity or bias or conflict of interest in key personnel involved in the adjudicative process that affected the outcome, or newly discovered evidence that would affect the outcome. Moreover, we recognize the importance of granting recipients flexibility and discretion in designing and implementing their Title IX systems; the Department believes recipients are in best position to know the unique needs and values of their educational communities. For this reason, § 106.45(b)(8) permits recipients to offer appeals to both parties on additional bases in their discretion. With respect to ensuring that appeal decision-makers are different individuals than investigators, Title IX Coordinators, or decision-makers who rendered the initial determination regarding responsibility, the Department agrees with commenters and therefore, § 106.45(b)(8)(iii) makes it clear that the appeal decision-maker cannot be the same person as the decision-maker below, or as the Title IX Coordinator or investigator in the case. This ensures that the recipient’s appeal decision reviews the underlying case independently. The Department also notes that appeal decision-makers must be free from bias and conflicts of interest, and be trained to serve 1501 Doe v. Univ. of Cincinnati, 872 F.3d 393, 403 (6th Cir. 2017). PO 00000 Frm 00375 Fmt 4701 Sfmt 4700 30399 impartially, as required under § 106.45(b)(1)(iii). We respectfully disagree with the commenters who argued that the final regulations should prohibit appeals of not responsible determinations because of double jeopardy concerns. As discussed above, we believe that both respondents and complainants face potentially life-altering consequences from the outcomes of Title IX proceedings. As such, it is important to protect complainants’ right to appeal as well as respondents’ right to appeal. The Department does not believe that a third party independent from the recipient would need to handle appeals to ensure impartiality and fairness. Rather, the robust anti-bias and training requirements of § 106.45(b)(1)(iii) that apply to appeal decision-makers, along with the requirement contained in § 106.45(b)(8)(iii) that the appeal decision-maker must be a different person than the Title IX Coordinator or any investigators or decision-makers that reached the initial determination of responsibility, will help to ensure that recipients’ appeal processes are adequately independent and effective in curing possible unfairness or error. Changes: None. Informal Resolution Section 106.45(b)(9) Informal Resolution Supporting and Expanding Informal Resolution Comments: Some commenters appreciated the option of informal resolution in the proposed rules for reasons that echoed one commenter’s assertions as follows: ‘‘Restrictions on informal resolution have had several problematic consequences. Would-be complainants often declined to come forward with complaints because they were offered only two roads forward: The full formal process leading to possibly severe punishment for the respondent, or counseling for themselves. These students often said: ‘I don’t want the respondent to be punished; I just want them to realize how bad this event was for me.’ Students fully prepared to confess, apologize, and take their sanction were sometimes ground through the formal process for no good reason. Additionally, often both parties would have preferred informal resolution; a rule that pushed them to adopt an adversarial posture vis a vis each other meant that the conflict persisted, and even escalated, when it could have been settled.’’ A number of commenters urged the Department to make informal resolution E:\FR\FM\19MYR2.SGM 19MYR2 30400 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the default option for addressing sexual misconduct. One commenter emphasized that sometimes alleged victims just want to be heard, that confidential settlement conferences should be required before any formal hearing process, and the final regulations should prohibit any settlement mediator from being called as a witness in subsequent proceedings. Another commenter argued that where the default option of mediation fails, the parties should then turn to the court system. One commenter suggested the Department place informal resolution near the start of the final regulations to encourage its use. Several commenters noted that informal resolution can empower victims and increase flexibility to address unique situations; they argued that informal resolution increases choice by allowing both parties to choose the option that is right for them and that the Department should not arbitrarily force them into a formal process. Commenters asserted that confidential conversations between the parties can be ideal where there is insufficient evidence to warrant investigation, or where there may be confusion or misunderstanding as to what exactly happened between the parties. One commenter asserted that it is inaccurate to call mediation ‘‘forced’’ or ‘‘unregulated’’ because the NPRM imposes important requirements on recipients’ use of informal resolution and recipients remain free to prohibit it. A few commenters contended that informal resolution is more efficient than formal proceedings because it is faster and less costly and parties do not need to hire expensive attorneys. Discussion: The Department appreciates the support from commenters regarding informal resolution and agrees that, subject to limitations, informal resolution may represent a beneficial outcome for both parties superior to forcing the parties to complete a formal investigation and adjudication process as the only option once a formal complaint has raised allegations of sexual harassment. As discussed below, the Department has made several changes to the informal resolution provision in the final regulations to better address potential risks while retaining the benefits that such an option may hold for parties in particular cases. As a general matter, informal or alternative dispute resolution processes have become increasingly available throughout the American legal system, in recognition of a variety of potential benefits (such as shortening the time frames governing litigation, greater party control over outcomes which may VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 improve parties’ sense of justice and increase compliance with outcomes, and yielding remedies more customized to the needs of unique situations) of alternative dispute resolution as a substitute for the adversarial process.1502 Alternative dispute resolution presents the same potential benefits for sexual harassment cases as for other disputes.1503 We acknowledge the suggestions made by some commenters that the Department go further to promote informal resolution as a means of addressing sexual misconduct under Title IX, such as by making informal resolution a default option or placing the informal resolution provisions near the start of the final regulations. As recognized by many commenters, the Department believes that informal resolution may empower complainants and respondents to address alleged sexual misconduct incidents through a process that is most appropriate for them, and that it is inaccurate to call informal resolution mechanisms such as mediation ‘‘forced’’ or ‘‘unregulated.’’ 1502 E.g., Marjorie A. Silver, The Uses and Abuses of Informal Procedures in Federal Civil Rights Enforcement, 55 George Wash. L. Rev. 482, 493 (1987) (noting that the legal system has ‘‘witnessed a massive movement towards the use of ADR procedures’’ to achieve fairness and justice while relieving overburdened court systems and providing access to resolutions for parties who find litigation cost-prohibitive, and noting that ADR gives greater autonomy to parties ‘‘by placing control over the dispute in their hands’’); Developments, The Paths of Civil Litigation: ADR, 113 Harv. L. Rev. 1851, 1851 (2000) (referring to ADR as a ‘‘virtual revolution’’ in the legal system); id. at 1852–53 (‘‘In the 1970s, jurists began to voice concerns about the rising costs and increasing delays associated with litigation, and some envisioned cheaper, faster, less formal, and more effective dispute resolution in such alternatives as arbitration and mediation. As the use of ADR mechanisms grew, proponents viewed them as promising vehicles for an array of agendas. . . . In the 1980s, social scientists, game theorists, and other scholars showed how ADR mechanisms could facilitate settlement by dealing proactively with heuristic biases through the strategic imposition of a neutral third party. Meanwhile, process-oriented ADR advocates emphasized that problem-solving approaches would yield remedies better tailored to parties’ unique needs and that the more direct involvement of disputants would encourage greater compliance with outcomes and help rebuild ruptured relationships.’’) (internal citations omitted). 1503 E.g., Barbara J. Gazeley, Venus, Mars, and the Law: On Mediation of Sexual Harassment Cases, 33 Willamette L. Rev. 605 (1997) (notwithstanding ‘‘a perception’’ that sexual harassment, rape, and domestic violence cases ‘‘uniformly involve a severe imbalance of power, rendering the woman incapable of participating effectively in mediation’’ many sexual harassment situations benefit from mediation where an ‘‘educative approach, which restores both parties’ dignity, can be much more satisfying to all concerned’’); Carrie A. Bond, Note, Shattering the Myth: Mediating Sexual Harassment Disputes in the Workplace, 65 Fordham L. Rev. 2489 (1997) (advocating for greater use of mediation in the context of sexual harassment). PO 00000 Frm 00376 Fmt 4701 Sfmt 4700 Informal resolution also enhances recipient and party autonomy and flexibility to address unique situations. However, the Department also believes that the more formal grievance process under § 106.45 may be an appropriate mechanism to address sexual misconduct under Title IX in many circumstances because these provisions establish procedural safeguards providing a fair process for all parties, where disputed factual allegations must be resolved. Furthermore, the existence of a formal grievance process provides parties (where a recipient has chosen to offer informal resolution processes) with expanded choice in the form of alternatives that will best meet the needs of parties involved in a particular situation; the Department does not believe that requiring informal resolution to be attempted prior to engaging the formal grievance process results in the parties having genuine choice and control over the process. Because informal resolution, as opposed to formal investigation and adjudication, relies on the voluntary participation of both parties, the Department declines to require or allow informal resolution processes to be a ‘‘default.’’ The ‘‘default’’ is that a formal complaint must be investigated and adjudicated by the recipient; within the parameters of § 106.45(b)(9) a recipient may choose to offer the parties an informal process that resolves the formal complaint without completing the investigation and adjudication, but such a result depends on whether the recipient determines that informal resolution may be appropriate and whether both parties voluntarily agree to attempt informal resolution. To clarify the intent of this provision, we have revised § 106.45(b)(9) to state that recipients may not offer informal resolution unless a formal complaint has been filed. At the same time, the Department is persuaded by some commenters who expressed concern that it may be too difficult to ensure that mediation or other informal resolution is truly voluntary on the part of students who report being sexually harassed by a recipient’s employee, due to the power differential and potential for undue influence or pressure exerted by an employee over a student. For this reason, the Department has revised § 106.45(b)(9)(iii) to state that recipients cannot offer an informal resolution process to resolve formal complaints alleging that an employee sexually harassed a student. With respect to informal resolution facilitators potentially serving as witnesses in subsequent formal E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations grievance processes, we leave this possibility open to recipients. If recipients were to accept such witnesses, then the Department would expect this possibility to be clearly disclosed to the parties as part of the § 106.45(b)(9)(i) requirement in the final regulations to provide a written notice disclosing any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared. Changes: The Department has made several changes to the informal resolution provision that we proposed in the NPRM. Individuals facilitating informal resolution must be free from conflicts of interest, bias, and trained to serve impartially.1504 Informal resolution processes must have reasonably prompt time frames.1505 The initial written notice of allegations sent to both parties must include information about any informal resolution processes the recipient has chosen to make available.1506 In the informal resolution provision itself, § 106.45(b)(9), the final regulations now provide that recipients are explicitly prohibited from requiring students or employees to waive their right to a formal § 106.45 grievance process as a condition of enrollment or employment or enjoyment of any other right; recipients are explicitly prohibited from requiring the parties to participate in an informal resolution process; a recipient may not offer informal resolution unless a formal complaint is filed; either party has the right to withdraw from informal resolution and resume a § 106.45 grievance process at any time before agreeing to a resolution; and recipients are categorically prohibited from offering or facilitating an informal resolution process to resolve allegations that an employee sexually harassed a student. Terminology Clarifications Comments: A number of commenters expressed concerns regarding the terminology surrounding informal resolution in the NPRM. Commenters stated that calling this process ‘‘informal’’ can cause recipients to underestimate the training, skill, and preparation necessary to successfully execute this resolution method, and it might also lead recipients to treat sexual misconduct claims with greater skepticism than other misconduct. Several commenters argued that mediation is inappropriate in sexual 1504 Section 106.45(b)(1)(iii). 106.45(b)(1)(v). 1506 Section 106.45(b)(2)(i). 1505 Section VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 misconduct cases because it suggests both parties are at fault. Many commenters contended that mediation is categorically inappropriate in sexual assault cases, even on a voluntary basis, because of the power differential between assailants and victims, the potential for re-traumatization by having to face the attacker again, the implication that survivors share partial responsibility for their own assault, the seriousness of the offense, and the inadequate punishment imposed on offenders. Other commenters, however, argued that informal resolution of disputed sexual harassment allegations often provides both parties with a preferable outcome to formal adjudication procedures. Some commenters suggested that the Department clearly define what ‘‘informal resolution’’ is in the final regulations and also explain the relationship and possible overlap between informal resolution and the ‘‘supportive measures’’ contemplated in the NPRM. One commenter asked whether the provisions requiring written notice be provided to ‘‘parties’’ refers only to complainants and respondents, or whether parents and/or legal guardians would receive notice instead where the complainant and/or respondent is a minor or legally incompetent person. Discussion: It is not the intent of the Department in referring to resolution processes under § 106.45(b)(9) as ‘‘informal’’ to suggest that personnel who facilitate such processes need not have robust training and independence, or that recipients should take allegations of sexual harassment less seriously when reaching a resolution through such processes. Indeed, the Department acknowledges the concerns raised by some commenters regarding the training and independence of individuals who facilitate informal resolutions. In response to these well-taken comments, we have extended the anti-conflict of interest, anti-bias, and training requirements of § 106.45(b)(1)(iii) to these personnel in the final regulations. The same requirements that apply to Title IX Coordinators, investigators, and decision-makers now also apply to any individuals who facilitate informal resolution processes. Contrary to the claims made by some commenters that mediation is categorically inappropriate, the Department believes that recipients’ good judgment and common sense should be important elements of a response to sex discrimination under Title IX. The Department believes an explicit definition of ‘‘informal resolution’’ in the final regulations is unnecessary. PO 00000 Frm 00377 Fmt 4701 Sfmt 4700 30401 Informal resolution may encompass a broad range of conflict resolution strategies, including, but not limited to, arbitration, mediation, or restorative justice. Defining this concept may have the unintended effect of limiting parties’ freedom to choose the resolution option that is best for them, and recipient flexibility to craft resolution processes that serve the unique educational needs of their communities. With respect to the relationship between supportive measures and informal resolution, the Department wishes to clarify that supportive measures are designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party and without constituting punitive or disciplinary actions including by protecting the safety of all parties and the recipient’s educational environment or deterring sexual harassment. Unlike informal resolutions, which may result in disciplinary measures designed to punish the respondent, supportive measures must be non-disciplinary and non-punitive. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. Informal resolutions may reach agreements between the parties, facilitated by the recipient, that include similar measures but that also could include disciplinary measures, while providing finality for both parties in terms of resolving allegations raised in a formal complaint of sexual harassment. Because an informal resolution may result in disciplinary or punitive measures agreed to by a respondent, we have revised § 106.45(b)(9) to expressly state that a recipient may not offer informal resolution unless a formal complaint is filed. This ensures that the parties understand the allegations at issue and the right to have the allegations resolved through the formal grievance process, and the right to voluntarily consent to participate in informal resolution. Furthermore, the Department wishes to clarify that where the complainant or respondent is a minor or legally incompetent person, then the party’s parent or legal guardian will receive the required written notice under § 106.45(b)(9) of the final regulations. The final regulations address the rights of parents and guardians in § 106.6(g), which states that nothing in the final E:\FR\FM\19MYR2.SGM 19MYR2 30402 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations regulations may be read in derogation of the legal rights of a parent or guardian to act on behalf of an individual. Changes: The Department has added § 106.6(g) to acknowledge the importance of the legal rights of parents or guardians to act on behalf of individuals exercising Title IX rights or involved in Title IX proceedings. We have also revised § 106.45(b)(9) to state that no recipient may require parties to participate in informal resolution, and a recipient may not offer informal resolution unless a formal complaint has been filed. Written Notice Implications Comments: One commenter expressed concern that the NPRM requires written notice of the allegations provided to both parties before informal resolution. At public institutions, written notice constitutes a public record; this would frustrate the utility of informal resolution as a confidential forum. The commenter argued that the Department should either withdraw this requirement or instead extend a privilege to records created in informal resolution. Discussion: The Department acknowledges the confidentiality concerns raised by some commenters regarding informal resolution. Section 106.45(b)(9)(i) provides that the written notice given to both parties before entering an informal resolution process must indicate what records would be maintained or could be shared in that process. Importantly, records that could potentially be kept confidential could include the written notice itself, which would not become a public record. The Department leaves it to the discretion of recipients to make these determinations. The Department believes this requirement effectively puts both parties on notice as to the confidentiality and privacy implications of participating in informal resolution. Recipients remain free to exercise their judgment in determining the confidentiality parameters of the informal resolution process they offer to parties. Changes: None. Voluntary Consent Comments: Many commenters argued that the NPRM fails to ensure that the parties’ consent to informal resolution is truly voluntary. Commenters argued that recipients may have perverse reputational and monetary incentives to downplay sexual misconduct claims and push parties to undergo informal resolution instead of lengthy, costly, complex, and public formal proceedings. Commenters noted these perverse incentives may be particularly VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 strong where the respondent is a star athlete or child of a major donor. Some commenters suggested that the Department failed to consider social pressure and power disparities between parties, such as between children and teachers,1507 and victims and domestic abusers,1508 and their effect on the ‘‘choice’’ of informal resolution. Commenters argued that all sexual violence situations reflect power dynamics that make mediation or informal resolution not truly voluntary and pose a risk of further harm to victims.1509 A few commenters noted that the prospect of retraumatizing cross-examination under the NPRM’s grievance procedures means many parties have no real choice at all. One commenter asserted that the final regulations should require recipients to ensure the parties first confer with an advisor or counsel of their choice, and if none is available, then one provided by the recipient, so that consent to informal resolution is truly voluntary. Another commenter asserted that, to avoid recipient biases to promote their own interests, the final regulations should specify the circumstances in which recipients can recommend informal resolution. Commenters believed that mediation improperly shifts the burden of resolution to the parties, instead of school professionals. One commenter claimed that informal resolution could also violate a respondent’s due process rights because recipients could impose sanctions without formally investigating the case. Discussion: The Department appreciates the concerns expressed by many commenters regarding whether parties’ consent to informal resolution is truly voluntary. To ensure that the 1507 Commenters cited: Samantha Craven et al., Sexual grooming of children: Review of literature and theoretical considerations, 12 Journal of Sexual Aggression 3 (2006); Anne-Marie Mcalinden, Setting ’Em Up’: Personal, Familial and Institutional Grooming in the Sexual Abuse of Children, 15 Social & Legal Studies 3 (2006). 1508 Commenters cited: Karla Fischer et al., The Culture of Battering and the Role of Mediation in Domestic Violence Cases, 46 S. Methodist Univ. L. Rev. 2117 (1993); Jacquelyn C. Campbell et al., Risk Factors for Femicide in Abusive Relationships: Results from a Multisite Case Control Study, 93 Am. J. of Pub. Health 1089 (2003). 1509 Commenters cited: Lois Presser & Cynthia A. Hamilton, The Micropolitics of Victim-Offender Mediation, 76 Social Inquiry 316 (2006); Helen C. Whittle et al., A Comparison of Victim and Offender Perspectives of Grooming and Sexual Abuse, 36 Deviant Behavior 7, 539 (2015); Mary P. Koss & Elise C. Lopez, VAWA After the Party: Implementing Proposed Guidelines on Campus Sexual Assault Resolution, 18 CUNY L. Rev. 1 (2014); Rajib Chanda, Mediating University Sexual Assault Cases, 6 Harv. Negotiation L. Rev. 312 (2001); Mori Irvine, Mediation: Is it Appropriate for Sexual Harassment Grievances, 9 Ohio State J. on Dispute Resolution 1 (1993). PO 00000 Frm 00378 Fmt 4701 Sfmt 4700 parties do not feel forced into an informal resolution by a recipient, and to ensure that the parties have the ability to make an informed decision, § 106.45(b)(9) requires recipients to inform the parties in writing of the allegations, the requirements of the informal resolution process, any consequences resulting from participating in the informal process, and to obtain both parties’ voluntary and written consent to the informal resolution process. The Department acknowledges the concerns expressed by these commenters, and the final regulations go a step further than the NPRM by explicitly prohibiting recipients from requiring the parties to participate in an informal resolution process, and expressly forbidding recipients from making participation in informal resolution a condition of admission or employment, or enjoyment of any other right. We wish to emphasize that consent to informal resolution cannot be the product of coercion or undue influence because coercion or undue influence would contradict the final regulations’ prohibitions against a recipient ‘‘requiring’’ parties to participate in informal resolution, obtaining the parties’ ‘‘voluntary’’ consent, and/or conditioning ‘‘enjoyment of any other right’’ on participation in informal resolution. In addition, and as discussed above, the Department believes that by extending the robust training and impartiality requirements of § 106.45(b)(1)(iii) to individuals who facilitate informal resolutions, the perverse incentives and biases that may otherwise taint an informal resolution process will be effectively countered. The Department believes these requirements have the cumulative effect of ensuring that the parties’ consent to informal resolution is truly voluntary, and that no party is involuntarily denied the right to have sexual harassment allegations resolved through the investigation and adjudication process provided for by the final regulations. Indeed, we believe the cumulative effect of these requirements will help to ensure that parties’ consent to informal resolution is truly voluntary, and therefore we decline to mandate that the parties confer with an advisor before entering an informal resolution process, or to mandate that recipients provide the parties with advisors before entering an informal resolution process. The Department shares commenters’ concerns regarding grooming behaviors common in situations where an employee sexually harasses a student, which may result in any ostensibly E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations ‘‘voluntary’’ choice of the student to engage in informal resolution actually being the product of undue influence of the employee. Because the option of informal resolution rests on the premise that no party is ever required to participate, and where each party voluntarily engages in informal resolution only because the party believes such a process may further the party’s own wishes and desires, we have removed from the final regulations the option of informal resolution for any allegations that an employee sexually harassed a student. The final regulations leave recipients discretion to make informal resolution available as an option, or not, with respect to sexual harassment allegations other than when the formal complaint alleges that an employee sexually harassed a student. Subject to the modifications made in these final regulations, described above, the Department believes that informal resolution empowers the parties by offering alternative conflict resolution systems that may serve their unique needs and provides greater flexibility to recipients in serving their educational communities. Thus, the Department concludes that permitting informal resolution is an appropriate policy development subject to the limitations and restrictions in the final regulations, notwithstanding the 2001 Guidance’s position on mediation. The 2001 Guidance approved of informal resolution for sexual harassment (as opposed to sexual assault) ‘‘if the parties agree to do so,’’ cautioned that it is inappropriate for a school to simply instruct parties to work out the problem between themselves, stated that ‘‘mediation will not be appropriate even on a voluntary basis’’ in cases of alleged sexual assault, and stated that the complainant must be notified of the right to end the informal process at any time and begin the formal complaint process.1510 Within the conditions, restrictions, and parameters the final regulations place on a recipient’s facilitation of informal resolution, we believe that the concerns underlying the 1510 2001 Guidance at 21 (‘‘Grievance procedures may include informal mechanisms for resolving sexual harassment complaints to be used if the parties agree to do so. OCR has frequently advised schools, however, that it is not appropriate for a student who is complaining of harassment to be required to work out the problem directly with the individual alleged to be harassing him or her, and certainly not without appropriate involvement by the school (e.g., participation by a counselor, trained mediator, or, if appropriate, a teacher or administrator). In addition, the complainant must be notified of the right to end the informal process at any time and begin the formal stage of the complaint process. In some cases, such as alleged sexual assaults, mediation will not be appropriate even on a voluntary basis.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Department’s prior position regarding mediation are ameliorated, while providing the benefits of informal resolution as an option where that option is deemed potentially effective by the recipient and all parties to the formal complaint. The Department notes that nothing in § 106.45(b)(9) requires an informal resolution process to involve the parties confronting each other or even being present in the same room; mediations are often conducted with the parties in separate rooms and the mediator conversing with each party separately. The final regulations ensure that only a person free from bias or conflict of interest, trained on how to serve impartially, will facilitate an informal resolution process. Further, we have revised § 106.45(b)(9) to expressly allow either party to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint. These provisions address the concerns about mediation addressed in the 2001 Guidance, without removing informal resolution as an option for cases where informal resolution may present the parties with a more desirable process and outcome than a formal investigation and adjudication. We believe concerns about perverse institutional incentives to promote informal resolutions will be adequately addressed by the robust requirements contained in the final regulations. Many commenters have asserted that a recipient’s student disciplinary process traditionally has an educational rather than punitive purpose and thus object to the formal procedures prescribed under the § 106.45 grievance process. The Department believes that the option of informal resolution gives recipients an avenue for using the disciplinary process to educate and change behavior in a way that the adversarial formal grievance process might not, in situations where both parties voluntarily agree to participate. At the same time, the final regulations ensure that recipients cannot require the parties to use informal resolution, the parties must give voluntary consent to informal resolution, and the recipient cannot condition enrollment, employment, or enjoyment of any other right, on participation in informal resolution. Recipients also must not intimidate, threaten, or coerce any person for the purpose of interfering with a person’s rights under Title IX,1511 including the 1511 Section 106.71 prohibits retaliation: ‘‘No recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by title IX or this part[.]’’ PO 00000 Frm 00379 Fmt 4701 Sfmt 4700 30403 right to voluntarily decide whether or not to participate in informal resolution. These requirements counteract incentives a recipient may have to pressure parties to engage in informal resolution. We disagree that mediation improperly shifts the burden of resolution to the parties instead of school professionals, and that informal resolution could violate a respondent’s due process rights. Informal resolution under the final regulations is not possible without the informed, voluntary consent of all parties, and persons who facilitate informal resolution must be well-trained pursuant to § 106.45(b)(1)(iii). Recipients must explain the parameters and processes, consequences, and confidentiality implications of informal resolution to the parties. Furthermore, the final regulations respond to commenters’ concerns by expressly providing that either party can withdraw from the informal resolution process at any time prior to reaching a final resolution and resume the formal grievance process. A benefit of informal resolution may be that parties have a greater sense of personal autonomy and control over how particular allegations are resolved; however, where that avenue is not desirable to either party, for any reason, the party is never required to participate in informal resolution. Changes: None. Safety Concerns Based on Confidentiality Comments: A few commenters expressed concerns that the confidential nature of informal resolution could present safety risks to the survivor and broader campus community because informal resolutions such as mediation often happen behind closed doors and the broader school community and other students may not become aware of the risks posed by the perpetrator and so cannot take precautions.1512 Further, some commenters believed that confidentiality requirements in resolution agreements could silence survivors who would otherwise raise awareness of the allegations and 1512 Commenters cited: Jennie Kihnley, Unraveling the Ivory Fabric: Institutional Obstacles to the Handling of Sexual Harassment Complaints, 25 Law & Social Inquiry 69, 84 (2000); Laurie Rudman et al., Suffering in Silence: Procedural Justice versus Gender Socialization in University Sexual Harassment Grievance Procedures, 17 Basic & Applied Social Psychol. 4 (1995); Stephanie Riger, Gender Dilemmas in Sexual Harassment Policies and Procedures, 46 Am. Psychol. 5 (1991); Margaret B Drew, It’s Not Complicated: Containing Criminal Law’s Influence on the Title IX Process, 6 Tenn. J. of Race, Gender & Social Justice 2 (2017). E:\FR\FM\19MYR2.SGM 19MYR2 30404 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations criticize the recipient’s handling of the case. Discussion: The Department appreciates the concerns raised by some commenters that the confidential nature of informal resolutions may mean that the broader educational community is unaware of the risks posed by a perpetrator; however, the final regulations impose robust disclosure requirements on recipients to ensure that parties are fully aware of the consequences of choosing informal resolution, including the records that will be maintained or that could or could not be shared, and the possibility of confidentiality requirements as a condition of entering a final agreement. We believe as a fundamental principle that parties and individual recipients are in the best position to determine the conflict resolution process that works for them; for example, a recipient may determine that confidentiality restrictions promote mutually beneficial resolutions between parties and encourage complainants to report,1513 or may determine that the benefits of keeping informal resolution outcomes confidential are outweighed by the need for the educational community to have information about the number or type of sexual harassment incidents being resolved.1514 The recipient’s determination about the confidentiality of informal resolutions may be influenced by the model(s) of informal resolution a recipient chooses to offer; for example, a mediation model may result in a mutually agreed upon resolution to the situation without the respondent admitting responsibility, while a restorative justice model may reach a mutual resolution that involves the respondent admitting responsibility. The final regulations permit recipients to consider such aspects of informal resolution processes and decide to offer, or not offer, such processes, but require the recipient to inform the parties of the 1513 Rajib Chanda, Mediating University Sexual Assault Cases, 6 Harv. Negotiation L. Rev. 265, 280 (2001) (acknowledging the argument that the confidentiality of mediation is a negative feature but asserting that mediation is still advantageous over litigation or arbitration of sexual harassment cases because empirical evidence suggests that parties not part of a dispute do not learn from the public resolution of the case, and suggesting that the ‘‘vast underreporting’’ of sexual harassment could be ‘‘possibly due to the public and adversarial nature of litigation and arbitration’’ such that the confidentiality of mediation could encourage more reporting). 1514 Id. (acknowledging the argument that the confidentiality of mediation means that people other than the parties ‘‘may not even know about the existence of the dispute’’ and thus ‘‘may discount the incidence of sexual harassment, and thus underestimate the seriousness of the problem’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 nature and consequences of any such informal resolution processes. Changes: None. Consistency With Other Law and Practice Comments: A number of commenters asserted that informal resolution under the NPRM would trigger conflict with other Federal and State law and is inconsistent with best practices. For example, some commenters stated that the Department failed to provide a reasoned explanation for allowing mediation, given that such a position was rejected by both the Bush and Obama Administrations for serious sexual misconduct cases. Several commenters suggested that informal resolutions such as mediation will chill reporting. Commenters urged the Department to preserve the approach to mediation contained in the 2001 Guidance. Commenters asserted that the Department of Justice has traditionally discouraged use of mediation in sexual and intimate partner violence cases and that some Federal programs prohibit grant recipients serving victims from engaging clients in mediation related to their abuse; commenters argued that all sexual violence cases but especially those involving children and domestic abusers, involve power differential dynamics that make mediation high-risk for the complainants.1515 A few commenters argued that the NPRM’s conflicts with State law regarding mediation could trigger enforcement problems, cause confusion for recipients and students, impose additional cost burdens, and prompt lengthy litigation. Commenters argued that since 2000, the American Bar Association (ABA) has recommended that mediation generally not be used in domestic violence cases. And one commenter asserted that the Department should not hold schools to lower standards than U.S. companies, many of which are withdrawing mandatory mediation, arbitration, and other alternative dispute resolution in their employee contracts. Some commenters asserted that smaller recipients may not have adequate resources and staff to handle mediations and other informal resolutions. Discussion: The Department acknowledges there may be differences between the approach to informal resolution contained in the final regulations and other Federal practices relating to informal resolution. As discussed above, the Department 1515 Commenters cited: Mary P. Koss et al., Campus Sexual Misconduct: Restorative Justice Approaches to Enhance Compliance with Title IX Guidance, 15 Trauma, Violence & Abuse 3 (2014). PO 00000 Frm 00380 Fmt 4701 Sfmt 4700 believes that the concerns underlying the position on mediation in the 2001 Guidance are adequately addressed by these final regulations, including modifications in response to commenters’ concerns that allegations involving sexual harassment of a student by an employee pose a significant risk of ostensibly ‘‘voluntary’’ consent to mediation (or other informal resolution) being the product of undue pressure by the respondent on the complainant, and thus the final regulations preclude informal resolution as an option with respect to allegations that an employee sexually harassed a student. Because informal resolution is only an option, and is never required, under the final regulations, the Department does not believe that § 106.45(b)(9) presents conflict with other Federal or State laws or practices concerning resolution of sexual harassment allegations through mediation or other alternative dispute resolution processes.1516 The Department believes that an option of mediation may encourage reporting of sexual harassment incidents,1517 but reiterates that the final regulations do not require any recipient to offer informal resolution and preclude a party from being required to participate in informal resolution. The Department agrees that informal resolution should not be mandatory, and the final regulations explicitly prohibit recipients from requiring students or employees to waive their right to a § 106.45 investigation and adjudication of formal complaints as a condition of enrollment or continuing enrollment, or employment or continuing employment with the recipient. Recipients cannot force individuals to undergo informal resolution under the final regulations. Furthermore, the Department reiterates that nothing in the final regulations requires recipients to offer an informal resolution process. Recipients remain free to craft or not craft an informal resolution process that serves their unique educational needs; therefore, 1516 See discussion under the ‘‘Section 106.6(h) Preemptive Effect’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. 1517 Rajib Chanda, Mediating University Sexual Assault Cases, 6 Harv. Negotiation L. Rev. 265, 305 (2001) (a ‘‘mediation option for sexual assault victims addresses’’ each of the three main reasons why sexual assault is underreported—‘‘that victims anticipate social stigmatization, perceive a difficulty in prosecution, and consider the effect on the offender’’ because mediation is not adversarial, avoids the need to ‘‘prove’’ charges, and gives the victim control over the range of penalties on the offender, all of which likely ‘‘encourage [victims] to report the incident’’). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations smaller recipients that may not have adequate resources or staff to handle informal resolution need not offer such processes. Changes: None. Training Requirements Comments: Many commenters contended that the final regulations should impose training and qualification requirements on mediators, facilitators, arbitrators, and other staff involved in informal resolution. For example, these commenters wanted the Department to impose the same training requirements on personnel involved in formal grievance procedures as on personnel handling informal resolution; ensure no conflicts of interest; and minimize the risk of inappropriate questioning during informal process and possible retraumatization. One commenter suggested that the Department encourage recipients to enter into memoranda of understanding (MOUs) with third-party informal resolution providers. Discussion: The Department appreciates the well-taken concerns raised by many commenters that the NPRM did not explicitly require informal resolution personnel to be appropriately trained and qualified. As a result, as discussed above, we have revised § 106.45(b)(1)(iii) of the final regulations to require recipients to ensure any individuals who facilitate an informal resolution process must receive training on the definition of sexual harassment contained in § 106.30 and the scope of the recipient’s education program or activity; how to conduct informal resolution processes; and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, or bias. As such, the Department believes that it is unnecessary to encourage recipients to enter MOUs with third party informal resolution providers, though the Department notes that the final regulations permit recipients to outsource informal resolutions to third party providers. Changes: The Department has revised § 106.45(b)(1)(iii) to include persons who facilitate an informal resolution process as persons who must be free from conflicts of interest and bias and receive the same training as that provision requires for Title IX Coordinators, investigators, and decision-makers. Non-Binding Informal Resolution Comments: Several commenters asserted that the Department should allow mediation but require recipients VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 to allow parties to return to formal proceedings if they want to; otherwise respondents might have less incentive to mediate in good faith and reach a reasonable outcome. If mediation is binding, respondents may have no incentive to mediate in good faith and reach a reasonable outcome. A few commenters argued that schools must not offer a one-time choice of informal mediation versus formal investigation. Survivors need to be able to change their minds; their access to education can change over time. One commenter asserted that informal resolution should only be binding where all parties voluntarily agree on a resolution and the agreement’s terms are not breached. This commenter suggested that the final regulations should include a provision stating that any agreement reached in informal resolution or mediation must be signed by all parties, clearly specify the terms by which the case is resolved, establish consequences for breaching the agreement, detail how the parties can report breach of agreement, and define how the breach would be addressed. Discussion: The Department acknowledges that the NPRM proposed to allow recipients to prohibit parties from leaving the informal resolution process and returning to a formal grievance process. As noted above, we have amended our approach to this issue such that § 106.45(b)(9) of the final regulations explicitly permits either party to withdraw from an informal resolution at any time before agreeing to a resolution and resume the grievance process under § 106.45. The Department expects informal resolution agreements to be treated as contracts; the parties remain free to negotiate the terms of the agreement and, once entered into, it may become binding according to its terms. The Department believes the cumulative effect of these provisions will help to ensure that informal resolutions such as mediation are conducted in good faith and that these processes may reach reasonable outcomes satisfactory to both parties. As such, the Department believes the alternative approaches offered by some commenters, such as requiring a new subsection provision that would cover breaches of informal resolution agreements, are unnecessary to address such concerns. Changes: The Department has revised § 106.45(b)(9) to provide that any party may withdraw from informal resolution at any time prior to agreeing to a resolution, and resume the formal grievance process. PO 00000 Frm 00381 Fmt 4701 Sfmt 4700 30405 Survivor-Oriented Protections Comments: A few commenters asserted the final regulations should include explicit protections for survivors in the informal resolution process. For example, the final regulations should prohibit in-person questioning during informal process but allow written submissions by the parties to avoid re-traumatization. Commenters suggested that the final regulations should categorically prohibit schools from requiring complainants to resolve the problem alone with the respondent. Some commenters stated that if mediation is an option, survivors should determine the format, such as having someone sit in on their behalf or requiring the parties to be in separate rooms. Otherwise, the process could become irresponsible and cause more harm than good. A few commenters asserted that the final regulations should require recipients to evaluate all potential risks before proposing informal resolution. One commenter suggested that § 106.44(c) regarding safety and risk analysis for emergency removals could be a model for informal resolutions, such that recipients should thoroughly investigate the situation and parties’ relationship to ensure informal resolution is appropriate. Discussion: The Department appreciates the suggestions offered by some commenters to include explicit survivor-oriented protections in the informal resolution provisions in § 106.45(b)(9) of the final regulations. The Department declines to make these changes because the changes would restrict recipients’ flexibility and discretion in satisfying their Title IX obligations and meeting the needs of the members of their educational community. The Department believes that the parties are in the best position to make the right decision for themselves when choosing informal resolution, and that choice will be limited in scope based on what informal processes a recipient has deemed appropriate and has chosen to make available. As such, we believe that to require a safety and risk analysis before recipients may offer informal resolutions would be unnecessary, though nothing in the final regulations precludes a recipient from following such a practice. Similarly, nothing in § 106.45(b)(9) precludes a recipient from categorically refusing to offer and facilitate an informal process that involves the parties directly interacting, from prohibiting a facilitator from directly questioning parties, or from requiring the parties to be in separate rooms. E:\FR\FM\19MYR2.SGM 19MYR2 30406 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Changes: None. Restorative Justice Comments: Many commenters opposed mediation but supported expanding access to, and Department funding of, restorative justice. These commenters raised the point that restorative justice requires the perpetrator to admit wrongdoing from the beginning and work to redress the harm caused, whereas mediation requires no admission of guilt, implicitly rests on the premise both parties are partially at fault for the situation and must meet in the middle, and often entails debate over the facts. Commenters cited studies suggesting restorative justice has resulted in reduced recidivism for offenders and better outcomes for survivors.1518 One commenter stated that many recipients currently implement restorative justice, but only where the respondent is willing to accept responsibility, and stated that the process does not require face-to-face meeting between the parties, and the most severe misconduct is not eligible. One commenter was concerned that because § 106.45(b)(9) suggests informal processes can only be facilitated prior to reaching a determination regarding responsibility this can complicate or end up precluding restorative justice, because restorative justice requires admission of responsibility before participation. Discussion: The Department appreciates commenters’ support for restorative justice as a viable method of informal resolution, commenters’ concerns regarding mediation, and the common differences between the two resolution processes.1519 One of the 1518 Commenters cited: Clare McGlynn et al., ‘‘I just wanted him to hear me’’: Sexual violence and the possibilities of restorative justice, 39 Journal of L. & Society 2 (2012); Katherine Mangan, Why More Colleges Are Trying Restorative Justice in SexAssault Cases, Chronicle of Higher Education (Sept. 17, 2018); Kerry Cardoza, Students Push for Restorative Approaches to Campus Sexual Assault, Truthout (Jun. 30, 2018); Howard Zehr, The Little Book of Restorative Justice (Good Books 2002); David R. Karp et al., Campus Prism: A Report On Promoting Restorative Initiatives For Sexual Misconduct On College Campuses, Skidmore College Project on Restorative Justice (2016); Margo Kaplan, Restorative Justice and Campus Sexual Misconduct, 89 emp. L. Rev. 701, 715 (2017). 1519 Mediation does not bar imposition of disciplinary sanctions. E.g., Rajib Chanda, Mediating University Sexual Assault Cases, 6 Harv. Negotiation L. Rev. 265, 301 (2001) (defining mediation as ‘‘a process through which two or more disputing parties negotiate a voluntary settlement with the help of a ‘third party’ (the mediator) who typically has no stake in the outcome’’ and stressing that this ‘‘does not impose a ‘win-win’ requirement, nor does it bar penalties. A party can ‘lose’ or be penalized; mediation only requires that the loss or penalty is agreed to by both parties—in a sexual assault case, ‘agreements . . . may include VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 underlying purposes of § 106.45(b)(9) is to recognize the importance of recipient autonomy and the freedom of parties to choose a resolution mechanism that best suits their needs. As such, nothing in § 106.45(b)(9) prohibits recipients from using restorative justice as an informal resolution process to address sexual misconduct incidents. With respect to the implications of restorative justice and the recipient reaching a determination regarding responsibility, the Department acknowledges that generally a critical feature of restorative justice is that the respondent admits responsibility at the start of the process. However, this admission of responsibility does not necessarily mean the recipient has also reached that determination, and participation in restorative justice as a type of informal resolution must be a voluntary decision on the part of the respondent. Therefore, the language limiting the availability of an informal resolution process only to a time period before there is a determination of responsibility does not prevent a recipient from using the process of restorative justice under § 106.45(b)(9), and a recipient has discretion under this provision to specify the circumstances under which a respondent’s admission of responsibility while participating in a restorative justice model would, or would not, be used in an adjudication if either party withdraws from the informal process and resumes the formal grievance process. Similarly, a recipient could use a restorative justice model after a determination of responsibility finds a respondent responsible; nothing in the final regulations dictates the form of disciplinary sanction a recipient may or must impose on a respondent. Changes: None. Avoiding Formal Process Comments: One commenter expressed concern that recipients could simply offer informal resolution and only informal resolution to get around the NPRM’s formal process requirements. To address this, the commenter argued the final regulations should clearly state that recipients must implement a formal resolution process regardless of their choice to facilitate an informal resolution process. Discussion: The Department acknowledges the concern that under the NPRM it may have appeared that recipients could avoid formal grievance reconciliation, restitution for the victim, rehabilitation for whoever needs it, and the acceptance of responsibility by the offender.’’’) (internal citations omitted). PO 00000 Frm 00382 Fmt 4701 Sfmt 4700 procedures altogether by solely offering informal resolution. To address this concern, we have revised § 106.45(b)(9) to preclude recipients from requiring students or employees to waive their rights to a § 106.45 grievance process as a condition of enrollment or employment, or enjoyment of any other right, include a statement that a recipient may never require participation in informal resolution, and clarify that a recipient may not offer informal resolution unless a formal complaint is filed. As such, recipients must establish a grievance process that complies with § 106.45 to ensure that parties’ Title IX rights are realized, and the parties may participate in informal resolution only after a formal complaint has been filed, ensuring that the parties are therefore aware of the allegations at issue and the formal procedures for investigation and adjudication that will apply absent an informal resolution process. Changes: The Department has revised § 106.45(b)(9) to preclude a recipient from requiring any party to waive the right to a formal grievance process as a condition of enrollment, employment, or enjoyment of any other right, that a recipient may never require participation in informal resolution, and that a recipient may not offer informal resolution unless a formal complaint is filed. Electronic Disclosures Comments: One commenter asserted that the Department should allow electronic disclosures and signatures to obtain parties’ consent to informal resolution to enhance privacy and security of sensitive documents, and because written notice requirements are costly and unnecessary in 2019. Discussion: The final regulations do not specify the method of delivery for written notices and disclosures required under the final regulations, including the method by which the recipient must obtain parties’ voluntary written consent to informal resolution. The Department acknowledges the potential convenience, privacy, and security benefits of shifting from physical disclosures and signatures to electronic disclosures and signatures but leaves recipients with discretion as to the method of delivery of written notices under § 106.45(b)(9). Changes: None. Expulsion Through Informal Resolution Comments: One commenter argued that expulsion is an inappropriate sanction for informal resolution, and the Department should prohibit schools from expelling students through E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations informal resolution to ensure a fair process for all. Discussion: The Department believes that the robust disclosure requirements of § 106.45(b)(9), the requirement that both parties provide voluntary written consent to informal resolution, and the explicit right of either party to withdraw from the informal resolution process at any time prior to agreeing to the resolution (which may or may not include expulsion of the respondent), will adequately protect the respondent’s interest in a fair process before the sanction of expulsion is imposed. Accordingly, the Department believes that prohibiting recipients from using informal resolution where it results in expulsion is unnecessary; if expulsion is the sanction proposed as part of an informal resolution process, that result can only occur if both parties agree to the resolution. If a respondent, for example, does not believe that expulsion is appropriate then the respondent can withdraw from the informal resolution process and resume the formal grievance process under which the recipient must complete a fair investigation and adjudication, render a determination regarding responsibility, and only then decide on any disciplinary sanction. Changes: None. Clarification Requests Comments: Several commenters raised questions regarding the informal resolution provisions of the NPRM. One commenter inquired as to whether a time frame could apply after which neither party could ask for an ongoing informal resolution process to be set aside and proceed with formal investigation and adjudication. One commenter raised concerns regarding recipients’ legal liability if the informal resolution process included a respondent’s acknowledgement of a policy violation, but the respondent was allowed to remain on campus and violated that same policy again. One commenter sought clarification as to whether informal resolution could include a respondent taking responsibility and accepting disciplinary action without any meeting or process at all. One commenter raised questions as to what happens to ongoing informal resolution process where more complaints are brought against the same respondent. One commenter asked whether parties can proceed with informal resolution even where the recipient believes it is inappropriate to resolve the case. One commenter inquired whether the NPRM’s informal resolution provisions only apply where a formal complaint was filed against the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 respondent. And one commenter sought clarification as to whether schools remain free to prohibit informal resolutions under the NPRM. Discussion: The Department appreciates the questions raised by commenters regarding § 106.45(b)(9). The final regulations clarify that either party can withdraw from the informal resolution process and resume the formal grievance process at any time prior to agreeing to a resolution. The Department appreciates the opportunity to clarify here that informal resolution compliant with § 106.45(b)(9) is a method of resolving allegations in a formal complaint of sexual harassment. Because a recipient must investigate and adjudicate allegations in a formal complaint, informal resolution stands as a potential alternative to completing the investigation and adjudication that the final regulations otherwise require. Under the final regulations, a recipient may not offer informal resolution unless a formal complaint has been filed. With respect to recipients’ potential legal liability where the respondent acknowledges commission of Title IX sexual harassment (or other violation of recipient’s policy) during an informal resolution process, yet the agreement reached allows the respondent to remain on campus and the respondent commits Title IX sexual harassment (or violates the recipient’s policy) again, the Department believes that recipients should have the flexibility and discretion to determine under what circumstances respondents should be suspended or expelled from campus as a disciplinary sanction, whether that follows from an informal resolution or after a determination of responsibility under the formal grievance process. Recipients may take into account legal obligations unrelated to Title IX, and relevant Title IX case law under which Federal courts have considered a recipient’s duty not to be deliberately indifferent by exposing potential victims to repeat misconduct of a respondent, when considering what sanctions to impose against a particular respondent. The Department declines to adopt a rule that would mandate suspension or expulsion as the only appropriate sanction following a determination of responsibility against a respondent; recipients deserve flexibility to design sanctions that best reflect the needs and values of the recipient’s educational mission and community, and that most appropriately address the unique circumstances of each case. While Federal courts have found recipients to be deliberately indifferent where the recipient failed to take measures to avoid subjecting PO 00000 Frm 00383 Fmt 4701 Sfmt 4700 30407 students to discrimination in light of known circumstances that included a respondent’s prior sexual misconduct,1520 courts have also emphasized that the deliberate indifference standard is not intended to imply that a school must suspend or expel every respondent found responsible for sexual harassment.1521 The Department reiterates that the final regulations do not require recipients to establish an informal resolution process. As such, if recipients believe it is inappropriate, undesirable, or infeasible to use informal resolution to address sexual harassment under Title IX, then recipients may instead offer only the § 106.45 grievance process involving investigation and adjudication of formal complaints. Changes: We have revised § 106.45(b)(9) to state that recipients may not offer informal resolution unless a formal complaint has been filed. Recordkeeping Section 106.45(b)(10) Recordkeeping and Directed Question 8 Comments: Many commenters expressed general support for the recordkeeping requirements in § 106.45(b)(10). Some commenters expressed that this provision would improve the overall transparency and integrity of the Title IX grievance process, discourage colleges and universities from utilizing training materials that employ sex stereotypes, and encourage recipients to adopt a high standard of training that provides investigators with proper trauma training. Many commenters, however, 1520 E.g., Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1296–97 (11th Cir. 2007). 1521 E.g., id. at 1297 (suspending or expelling offenders would have been one measure the university could have taken to avoid subjecting the plaintiff to discrimination in the form of further sexual misconduct perpetrated by the offenders, but other measures could also have been pursued by the university, such as removal of the offenders from their housing, or implementing a more protective sexual harassment policy to address future incidents); Davis v. Monroe Cnty. Bd. of Educ., 546 U.S. 629, 648 (1999) (‘‘We thus disagree with respondents’ contention that, if Title IX provides a cause of action for student-on-student harassment, ‘nothing short of expulsion of every student accused of misconduct involving sexual overtones would protect school systems from liability or damages.’ See Brief for Respondents 16; see also [Davis v. Monroe Cnty. Bd. of Educ.,] 120 F.3d [1390 (11th Cir. 1997)] at 1402 (Tjoflat, J.) (’[A] school must immediately suspend or expel a student accused of sexual harassment’). Likewise, the dissent erroneously imagines that victims of peer harassment now have a Title IX right to make particular remedial demands. See post, at 34 (contemplating that victim could demand new desk assignment). In fact, as we have previously noted, courts should refrain from second guessing the disciplinary decisions made by school administrators.’’). E:\FR\FM\19MYR2.SGM 19MYR2 30408 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations opposed any recordkeeping requirement, arguing that these requirements are not victim-centered or trauma-informed, that it is burdensome, time consuming, and will greatly slow the investigation process. Some commenters stated that several institutions of higher educations’ retention policies dictate keeping records for even longer periods of time than the three years suggested in the NPRM, and that lengthening the retention period in this provision would facilitate the parties’ abilities to prepare cases and appeals. Many commenters opposed the recordkeeping requirement. The commenters stated that a three-year time period fails to take into account that State law may require a longer period of retention, or that three years often does not cover a student’s educational tenure at an institution. They also argued that this closely resembles requirements in the criminal justice system, which will reduce the likelihood of an erroneous finding of guilt. Many of the commenters opposed the three-year period of retention of records as being too short. Because most students take more than three years to graduate from an institution of higher education, a student’s record could be erased prior to their graduation. This could limit a recipient’s ability to fully address sporadic but repeated sex discrimination that fails to garner the notice of recipients and is lost forever in records discarded from three years prior. Also, such circumstances could trigger the Title IX Coordinator’s duty to file a formal complaint under proposed § 106.44(b)(2). As the average graduation rate at an institution of higher education is six years, there may be times in which a respondent had a prior allegation in year one, and another allegation in year five. Commenters also asked whether the Title IX Coordinator is required to bring forward a complaint, and if so, what records would be used if this three-year period had passed? Commenters asserted that freshmen college students are more likely to be involved in a sexual harassment proceeding than upperclassmen and thus by allowing schools to destroy these records before such a freshman student graduates, the recipient and the larger community might be prevented from learning from the earlier incident if the respondent reoffends. Commenters argued that for students attending schools where they could be present for more than three years, such as a K–8 school, students could outlast the record of their harassment or assault, even within a single institution. Commenters argued that it makes little VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 sense for a student sexually harassed in the third grade to enter the seventh grade, at the same institution, without a record of those past experiences; for example, the perpetrator might be placed in a survivor’s class and the relevant teachers might not understand how to implement appropriate supportive measures. Commenters asserted that for elementary and secondary school students, these records are important when students transfer between schools or school districts, and that a funding recipient must know when a new student at their school has been sexually assaulted or harassed in the past in order to provide appropriate services. Other commenters opposed the threeyear retention period on the grounds that it would impair the legal rights of minor children, and is inconsistent with State statutes of limitations, if evidence surrounding the student’s harassment and their schools’ response was unavailable because it was older than three years. Commenters stated that many States allow for minors to file civil suits only once they reach the age of majority, and that Federal and State laws consistently toll relevant statute of limitations periods until minors reach the age of majority and have the ability to vindicate their own rights, recognizing that they should not be punished for the failure of a guardian to file a claim on their behalf. Several commenters stated that, in the case of employee-on-student harassment and ‘‘sexually predatory educators,’’ this would allow employee records to be periodically cleansed of evidence of wrongdoing relatively quickly (three years), thereby putting future students at risk. Other commenters stated that the three-year retention period is so short that it would limit complainants’ ability to succeed in a Title IX lawsuit or OCR complaint because it would allow recipients to destroy relevant records before a party has had the opportunity to file a complaint or complete discovery, and therefore escape liability. Commenters recommended the provision be modified to state: ‘‘If litigation is pursued before the expiration of the three-year period, records should be kept until the final action is completed.’’ Commenters argued that the Title IX statute does not contain a statute of limitations, so courts generally apply the statute of limitation of the most analogous State laws regarding retention periods or statutes, e.g., a State’s civil rights statute or personal injury statute which varies from one to six years. PO 00000 Frm 00384 Fmt 4701 Sfmt 4700 Many commenters found the threeyear retention period confusing and argued that the Department provided no rationale for it. Commenters stated the retention period would conflict with State requirements, or other disciplinary actions (e.g., long-term suspension) that require longer document retention (e.g., in Washington State, districts must retain records related to discrimination complaints for six years.) Several commenters, in asserting that the three-year retention period is too short, proposed alternate retention periods. One commenter stated, in order to avoid conflict with State requirements, the Department should modify § 106.45(b)(10) to read: ‘‘maintain for a minimum of three years or as required by State statute . . .’’ or ‘‘seven years, or 3 years after all parties graduate, whichever is sooner,’’ or keeping records until one year after a student graduates. Some commenters stated the retention period should not be tied to the Clery Act’s limitation period for reporting specific campus crimes in an annual security report. (Clery Act, 20 U.S.C. 1092(f); 34 CFR 668.46(c)(1) (requiring schools to annually report all crimes which occurred in the prior three calendar years by the end of the following year). Other commenters suggested the period be six years, or modified to state ‘‘files should be retained for the time the student is involved on campus and extended for a reasonable time period that considers the student may enroll for a graduate degree.’’ Many commenters proposed that records be kept for a minimum of seven years, instead of three, in keeping with best practices for student record-keeping as well as general accounting practices. Some commenters stated medical and tax records are required to be kept for seven years, so records of sexual abuse should be kept for the same amount of time, if not more. Furthermore, the commenters stated a three-year period would hinder the Department’s efforts to ensure compliance, especially if a continuing violation is alleged or classwide discrimination is occurring over multiple years, and conflict with the Clery records retention requirement of seven years. Rather, commenters asserted, this section should mirror the Clery Act retention effective time period requirement of seven years to avoid confusion and the potential for documents to be misfiled and destroyed. Commenters recommended this provision be modified to state: ‘‘All records must be kept for at least three years following the generation of the last record associated with the report or complaint.’’ Or: ‘‘. . . and maintain for E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations a period of three years from the date the disciplinary proceedings, including any appeals, is completed.’’ Commenters also requested to extend the time period by stating: ‘‘. . . or in the presence of an active investigation by OCR or other court system, until the investigation and determination is completed.’’ Commenters noted that in the past, OCR complaints involving campus sexual assault have taken an average of more than four years to resolve. Many commenters recommended that the retention period be linked to the parties’ attendance in the recipient’s program or activity. For example, commenters referenced the FERPA statute in recommending that the standard time period for retention be five to seven years after graduation or separation from an institution. Other commenters recommended the retention period be changed to three years or the point at which any parties are no longer in attendance at the institution, whichever comes later. Commenters stated that three-year retention period should be limited to studentcomplainants or student-respondents because if one or both parties are staff or faculty, their association with the recipient may extend for many years. Commenters recommended that § 106.45(b)(10) require the recipient to create, gather, and maintain the records for the duration of the students’ time in school and then five years after the last student involved has graduated, and to define all important terms in a way that prevents loopholes and misconduct. Other commenters recommended that recipients be allowed to determine the appropriate amount of time to retain records, in keeping with their own policies. Commenters requested that this requirement be made permissive for elementary and secondary school recipients—that such recipients ‘‘may’’ create records—and may only retain them for one year, stating that some primary or secondary schools are not required to maintain these kinds of records, and may not retain them in excess of one year. Some commenters recommended that records be maintained for a minimum of ten years, arguing that, if not, the proposed rules would decrease the volume of relevant records, and in turn burden the Federal government because Federal background clearance investigations would become unreliable; agencies would inevitably make a favorable national security clearance or employment suitability determination without being aware of a candidate’s past proven sexual assault if it occurred more than three years prior. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Some commenters stated that records should be kept based on the criminal justice systems’ statutes of limitations, if not longer, to ensure consistency between institutional standards and State standards and ensuring parties can appropriately represent themselves. The three-year requirement could undermine criminal prosecutions related to the incidents at issue because it would permit recipients to discard vital records that could help the criminal prosecution of sexual assault or rape before the statute of limitations for such crimes has run, thereby potentially letting the perpetrators go free. For example, commenters contended, an elementary and secondary school could have ceased maintaining records of a sexual assault investigation before the student reaches the age of 18 and has the ability to vindicate their own rights. Other commenters argued that, if the underlying offense can still be prosecuted ten years after it occurred, then the recipient has a duty to retain those records for an equal length of time, especially if any aspect of the school’s investigation had to be put on hold for ‘‘good cause,’’ e.g., until police and the court system have wrapped up their investigations. Some commenters asserted that records should be kept at least as long as the educational program at which the events took place exists, if not indefinitely. Otherwise, they argue, it would allow the records of employees, who may have a longer tenure at an institution, to be periodically cleansed of any evidence of wrongdoing. Most students attend the same institution for four or more years during their elementary school, middle school, high school, college, and graduate school experiences. Commenters argued that an indefinite timeline is critical to ensure that complainants have ongoing access to their files and evidence to allow them flexibility to pursue the Title IX or criminal law process when it is safe and appropriate for them. Some commenters argued that if a complainant chooses to access the legal system simultaneously or independently from the institution, their evidence should be accessible to them at any point in time. If someone were to make a report within their first year of enrollment, and waited longer than the proposed three years to go through with a formal investigation or hearing, the complainant would not have access to the information shared when they had a fresher memory of the incident. Commenters stated that complainants may not come forward immediately for various reasons, including trauma, youth, coping PO 00000 Frm 00385 Fmt 4701 Sfmt 4700 30409 mechanisms, lapses in memory, fear of re-assault, escalation, or retaliation. Commenters asserted that three years is too short a time period to allow OCR to conduct a thorough investigation of the prevalence of sexual harassment in a recipient’s programs or activities and that it would also not allow recipients to monitor campus climate, identify trends in sexual misconduct that need to be addressed on a community level, or flag sexual predators. Commenters argued that problematic sexual behavior tends to develop and escalate over time, and that if school systems keep track of developing behavior patterns, they can both prevent future violations and ensure that the individual with the problematic behavior pattern receive educational intervention to prevent the individual from forfeiting the individual’s education by committing, for example, criminal offenses. Recipients, commenters stated, could maintain records indefinitely in a digital cloud account. Several commenters requested further clarification as to what types of records a recipient should keep. Commenters asked whether the recipient should keep transcripts of hearings or merely a list of steps taken. Other commenters asked when the clock begins to calculate the time at which recipients may destroy records: Does the time toll from the date of the incident or the date the incident is reported? Or does the clock begin at the conclusion of the complaint? Several commenters stated that the requirement about access to records seemed to contradict the provision that requires supportive measures to be kept confidential. Commenters argued that this provision will erode any confidentiality in the Title IX office and create institutional liability. Commenters also queried whether the recordkeeping provision encompasses an investigation of unwelcome conduct on the basis of sex that did not effectively deny the victim equal access to the recipient’s program or activity and was not otherwise sexual harassment within the meaning of § 106.30. Several commenters requested that access to records be limited, that they not be made available through the Freedom of Information Act (FOIA), that access be in accordance with FERPA, and that § 106.45(b)(7)(i)(A) be modified to include ‘‘their sexual harassment investigation . . .’’ to avoid the burdensome interpretation that complainants and respondents may have access to ‘‘each sexual harassment investigation’’ maintained by the recipient. Similarly, commenters requested that this provision require E:\FR\FM\19MYR2.SGM 19MYR2 30410 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations that any records collected be protected in a manner that will not permit access to the personal identification of students to individuals or entities other than the authorized representatives of the Secretary; and that any personally identifiable data be destroyed at the end of the retention period. Some commenters argued that the required access to records is ambiguous and vague. Several commenters requested further clarification on the parameters of this requirement, including whether the access requirement affords the complainant and respondent access to each other’s files, or just their own. Another commenter asked whether a recipient who chose to take no action at all in response to a report of sexual harassment must maintain a record of the report. A commenter also asked whether the provision applies only to reports or complaints that were known at the time to an individual with authority to institute corrective measures. Several commenters who were in overall support of the provision stated that a recipient’s Title IX training materials should be made publicly available because this allows the training materials to be assessed for fairness, absence of bias, and respect for the parties. Many commenters stated that training should be available to all students, teachers, parents, and the public because and it may help students decide which college to attend, and that the training needs to incorporate due process protections, be evidence-based, and focused on determining the truth. Commenters stated that public dissemination of the training materials would keep a check on quality of training and promote accountability and confidence in the Title IX grievance system. Commenters requested that the requirement concerning the retention of training materials only pertain to changes that are of material significance; updates that are proofreading or aesthetic in nature should not require notation. Commenters also recommended that the provision narrow the required window for archiving of training materials to three years prior to the date of the hearing. Some commenters found this requirement confusing, unnecessary, and burdensome. Commenters queried about the type of documentation that must be maintained regarding training, and that data and storage requirements to maintain records for three years could become burdensome for smaller recipients. Some commenters suggested that a list of annual training, including VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 topics and who attended, be maintained instead. Some commenters opposed the provision and requested that recipients keep an internal database of all sexual harassment reports, so that after a second or third independent report from a different complainant, a school can escalate its response to the alleged harassment to prevent further harm. Other commenters requested the entire deletion of subsection (D), asserting that: The provision does not explain what OCR’s expectations will be regarding the training, so it is impossible to know what training records to maintain; training is an ongoing process that involves information from informal and formal sources; and at most, recipients should be required to summarize the qualifications of the investigators, Title IX Coordinators, and adjudicators. Commenters who opposed § 106.45(b)(10) also requested that this provision clarify that recipients should not release information about remedies provided to the complainant as this should be kept as private as possible because remedies are often personal, and may include changes to a complainant’s schedule, medical information, counseling, and academic support. Commenters argued that a respondent has little legitimate interest in knowing the complainant’s remedies and could exploit such information in a retaliatory manner. Some commenters requested that if a student then sues, or goes to OCR, the college should hand over all materials without the need for legal action. Some commenters wanted recipients to collect additional data regarding when the complaint was filed, whether there were any cross complaints, when, how, and to what extent the respondent was notified, demographic information about the parties, the number of complaints that found respondent responsible, and the sanctions. Other commenters suggested the creation of a new section requiring recipients to send all records once a year to the Department. Some commenters requested that the Department require the collection of additional data: Number and names of Title IX staff, consultants and advisors, budget and person hours, the number of Title IX complaints reported, how each complaint was resolved, remedies provided, number of complaints deemed false accusations or where evidence did not support accusation, number of Title IX law suits by both complainants and respondents, ongoing court cases, number and type of settlements, legal costs to an institution PO 00000 Frm 00386 Fmt 4701 Sfmt 4700 of Title IX litigation, settlement costs to the institution and/or the institution’s insurance companies. Commenters argued that demographic data on complainants and respondents would help the public evaluate whether discipline has a disparate impact on the basis of race, sex, disability, and other protected statuses, and the fact that recipients already perform such data collection for the CRDC demonstrates that postsecondary institutions could do the same without undue burden; these commenters asserted that the Department has the authority to require such data collection. Other commenters requested that discipline records prior to college must be sealed to avoid excessively harmful or unfair use of juvenile records. Some commenters requested that the Department remove the requirement that recipients keep records for the bases of their conclusion about deliberate indifference, as this is a determination made by the Department if and when a civil rights complaint is filed. Other commenters requested that the recordkeeping requirement exempt ombudspersons. These commenters argued that ombudspersons are objective, neutral, and confidential resources who provide information regarding the grievance process, and advocates for equitably administered processes. Commenters suggested the deletion of the last sentence of 106.45(b)(7)(ii), ‘‘The documentation of certain bases or measures . . . .’’ The commenters argued that the sentence would allow recipients to add post hoc alterations and justifications to the record of a formal complaint, which is inconsistent with principles of basic fairness. Discussion: The Department, having considered the commenters’ concerns about the three-year retention period proposed in the NPRM, is persuaded that the three-year retention period should be extended to seven years for consistency with the Clery Act’s recordkeeping requirements.1522 Although elementary and secondary schools are not subject to the Clery Act, the Department desires to harmonize these final regulations with the obligations of institutions of higher education under the Clery Act to facilitate compliance with both the Clery Act and Title IX. At the same time, we do not believe that a seven year period rather than the proposed threeyear period will be more difficult for elementary and secondary schools (who 1522 Clery Act, 20 U.S.C. 1092(f); 34 CFR 668.46(c)(1). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations are not subject to the Clery Act), because elementary and secondary schools are often under recordkeeping requirements under other laws with retention periods of similar length. The seven-year requirement also addresses many commenters’ concerns about three years being an inadequate amount of time for reasons such as a college freshman’s Title IX case file being destroyed before that student has even graduated from a four-year program, or that a young student in elementary school who becomes a party to a Title IX proceeding cannot count on the student’s case file being available by the time the student is in junior high, or that three years is too short a time for recipients to benefit from records of sexual harassment where a respondent re-offends years later. The Department notes that while the final regulations require records to be kept for seven years, nothing in the final regulations prevents recipients from keeping their records for a longer period of time if the recipient wishes or due to other legal obligations. Any recipient that needs or desires to keep records for ten years to facilitate more complete Federal background checks as one commenter requested, or indefinitely as another commenter proposed, may do so. The Department declines to base this record retention provision around the potential need for use in litigation; the Department does not regulate private litigation, and in any event the Department believes that the extension of the retention period in these final regulations to seven years adequately covers the period of most statutes of limitations that apply to causes of action that may derive from the same facts and circumstances as the recipient’s handling of a Title IX sexual harassment report or formal complaint. The Department declines to base the retention period around the length of time each student is enrolled by a recipient because a standardized expectation of the minimum time that these Title IX records will be kept by a recipient more easily allows a recipient to meet this requirement than if the time frames were customized to the duration of each student’s enrollment. The Department understands commenters’ concerns that records of sexual harassment cases involving employees posed particular reasons supporting a longer retention period, and the modification to a seven year requirement addresses those concerns while allowing recipients to adopt a policy keeping sexual harassment records concerning employees for longer than the seven year retention period required under these final regulations. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 In response to commenters’ concerns that this provision giving the parties access to records might contradict the requirement to keep supportive measures confidential, the Department has revised § 106.45(b)(10)(i) to remove the language making records available to parties. Because the parties to a formal complaint receive written notice of the allegations, the evidence directly related to the allegations, the investigative report, and the written determination (as well as having the right to inspect and review the recording or transcript of a live hearing), the Department is persuaded that the parties’ ability to access records relevant to their own case is sufficiently ensured without the risk that making records available to parties under proposed § 106.45(b)(10) would have resulted in disclosure to one party of the supportive measures (or remedies) provided to the other party. Section 106.45(b)(10)(i)(A) requires recipients to maintain records of ‘‘each sexual harassment investigation.’’ Any record that the recipient creates to investigate an allegation, regardless of later dismissal or other resolution of the allegation, must be maintained for seven years. Therefore, recipients must preserve all records, even those records from truncated investigations that led to no adjudication because the acts alleged did not constitute sex discrimination under Title IX and the formal complaint (or allegation therein) was dismissed. The Department also wishes to clarify that the date of the record’s creation begins the seven year retention period. We reiterate that recipients may choose to keep each record for longer than seven years, for example to ensure that all records that form part of a ‘‘file’’ representing a particular Title IX sexual harassment case are retained for at least seven years from the date of creation of the last record pertaining to that case. Regarding the Freedom of Information Act (FOIA),1523 and similar State laws that require public disclosure of certain records, the Department cannot opine on whether disclosure of records required to be retained under the final regulations would, or would not, be required under FOIA or similar laws because such determinations require fact-specific analysis. Additionally, as explained in the ‘‘Section 106.6(e) FERPA’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble, these final regulations, including § 106.45(b)(10)(i), do not run afoul of FERPA and to the extent possible, should be interpreted consistently with a recipient’s obligations under FERPA. 1523 5 PO 00000 U.S.C. 552 et seq. Frm 00387 Fmt 4701 Sfmt 4700 30411 To address any concerns, the Department has removed the phrase ‘‘make available to the complainant and respondent’’ in § 106.45(b)(10) out of an abundance of caution and in case this phrase may have created confusion. Accordingly, the requirement to maintain records is separate and apart from the right to inspect and review these records under FERPA, and these final regulations specifically address when the parties must have an opportunity to inspect and review records relating to the party’s particular case. For example, § 106.45(b)(5)(vi) requires that the recipient provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint. The Department acknowledges that a parent of a student or an eligible student may have the right to inspect and review their education records pursuant to 34 CFR 99.10 through 34 CFR 99.12, and these final regulations do not diminish these rights. As previously explained, FERPA allows a recipient to share information with the parties that is directly related to both parties.1524 Further, § 106.71 authorizes any party who has suffered retaliation to alert the recipient by filing a complaint according to the prompt and equitable grievance procedures for sex discrimination required to be adopted under § 106.8(c).1525 In response to numerous commenters who requested the requirement to publish training materials, the Department agrees with commenters that such publication will improve the overall transparency and integrity of the Title IX grievance process, and thus revises § 106.45(b)(10) to require recipients to publish on their websites training materials referenced in § 106.45(b)(1)(iii). The Department believes the seven-year requirement will not significantly burden recipients, for whom keeping and publishing materials relevant to training its employees is good practice in light of the numerous lawsuits recipients have faced over handling of Title IX allegations. Regarding the request to clarify that recipients need only update published training materials when the recipient makes material changes to the materials, 1524 73 FR 74806, 74832–33 (Dec. 9, 2008). Department notes that other laws and regulations may require disclosure of recipient records to the Department, for instance when the Department investigates allegations that a recipient has failed to comply with Title IX. E.g., 34 CFR 100.6 (addressing a recipient’s obligation to permit the Department access to a recipient’s records and other information to determine compliance with this part). 1525 The E:\FR\FM\19MYR2.SGM 19MYR2 30412 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations this provision requires the recipient to publish training materials which are up to date and reflect the latest training provided to Title IX personnel. Although we acknowledge that creating and storing records uses some resources, publishing training materials on a website and retaining the notes, reports, and audio or audiovisual recordings or transcripts from an investigation and any hearing are not cost prohibitive. The Department believes the recordkeeping requirements are practical and reasonable. To the extent that commenters’ concerns that a recipient may be unable to publicize its training materials because some recipients hire outside consultants to provide training, the materials for which may be owned by the outside consultant and not by the recipient itself, the Department acknowledges that a recipient in that situation would need to secure permission from the consultant to publish the training materials, or alternatively, the recipient could create its own training materials over which the recipient has ownership and control. The Department disagrees that it is ‘‘impossible’’ to know what training records recipients should maintain. Section 106.45(b)(1)(iii) specifies that recipients must train Title IX Coordinators, investigators, decisionmakers, and persons who facilitate informal resolutions on specific topics for specific purposes, providing sufficient basis for a recipient to understand its obligations regarding retention and publication of materials used to conduct such training. The Department does not wish to burden recipients with a requirement to send the records it maintains under this provision to the parties. However, parties preparing for a lawsuit or for an OCR complaint are entitled to receive copies of the evidence directly related to the allegations raised in a formal complaint,1526 the investigative report,1527 and the written determination regarding responsibility,1528 and thus parties to a Title IX grievance process have relevant information that they may desire to review or submit as part of a schoollevel appeal, a lawsuit, or an OCR complaint. The Department declines to require the data collections requested by commenters concerning Title IX reports and formal complaints. The Department wishes to correct a lack of due process and neutrality in the grievance process, among numerous other problems that 1526 § 106.45(b)(5)(vi). 1527 § 106.45(b)(5)(vii). 1528 § 106.45(b)(7)(iii). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 occurred under previous Title IX guidance, and believes that prescribing a consistent framework for recipient responses to sexual harassment will benefit all individuals involved in reports and formal complaints of sexual harassment without regard to demographics. The Department notes that nothing in the final regulations precludes a recipient from collecting demographic data relating to the recipient’s Title IX reports and formal complaints. Additionally, the Department does not believe that the concept of ‘‘sealing’’ records applies in the context of most educational institutions, nor does the Department believe that furthering the purposes of Title IX requires the Department to micromanage the manner in which recipients keep records. Recipients will maintain records of their Title IX investigations aimed at determining a respondent either responsible or not responsible; the Department does not believe that a recipient’s retention of such records is the equivalent of keeping records of criminal juvenile delinquency. The Department disagrees that the provision in § 106.45(b)(10)(ii) requiring a recipient to document the recipient’s conclusion that its response to sexual harassment was not deliberately indifferent is useless. Although commenters may correctly assert that recipients ‘‘of course’’ believe their responses have been sufficient, requiring a recipient to document reasons for that conclusion requires the recipient to evaluate how it has handled any report or formal complaint of sexual harassment, documenting reasons why the recipient’s response has not been clearly unreasonable in light of the known circumstances. For example, if a Title IX Coordinator decides to sign a formal complaint against the wishes of a complainant, the recipient should document the reasons why such a decision was not clearly unreasonable and how the recipient believes that it met its responsibility to provide that complainant with a non-deliberately indifferent response. To reinforce the obligation imposed on recipients to offer supportive measures (and engage in an interactive discussion with the complainant about appropriate, available supportive measures) in revised § 106.44(a), we have revised § 106.45(b)(10)(ii) to add that if a recipient does not provide a complainant with supportive measures, then the recipient must document the reasons why such a response was not clearly unreasonable in light of the known circumstances; for example, PO 00000 Frm 00388 Fmt 4701 Sfmt 4700 where a complainant refuses supportive measures or refuses to communicate with the Title IX Coordinator in order to know of supportive measures the recipient is offering. The Department declines to remove the final sentence of § 106.45(b)(10)(ii) because assuring a recipient that the recipient may provide additional documentation or explanations about the recipient’s responses to sexual harassment after creating its initial records does not foreclose the ability of a court or administrative agency investigating a recipient’s Title IX compliance to question the accuracy of a recipient’s later-added documentation or explanations, and where such a court or agency is satisfied that later-added information was not, for example, fabricated to protect the recipient from exposure to liability, the later-added information helps such a court or agency accurately assess the recipient’s response to sexual harassment. The Department wishes to clarify that, unless ombudspersons have created records that the Department requires the recipient to maintain or publish, ombudspersons do not fall under § 106.45(b)(10). The provision identifies the type of record that must be kept, not the category of persons whose records do or do not fall under this provision. Changes: The Department has removed from § 106.45(b)(10)(i) the word ‘‘create’’ and the phrase ‘‘make available to the complainant and respondent.’’ The Department has also revised the requirement to maintain records from three years to seven years. In § 106.45(b)(10)(i)(A), the Department has added ‘‘Title IX’’ to ‘‘Coordinator’’ and added any audio or audiovisual recording or transcript of a live hearing to the list of records required to be kept. We have revised § 106.45(b)(10)(i)(D) to add persons who facilitate informal resolutions to the list of Title IX personnel, and direct recipients to make materials used to train Title IX personnel available on the recipient’s website or if the recipient does not have a website then such training materials must be available for public inspection. We have revised § 106.45(b)(10)(ii) to add the introductory clause ‘‘For each response required under § 106.44(a) . . .’’ and by increasing the retention period from three years to seven years. We have further revised § 106.45(b)(10)(ii) by replacing ‘‘was not clearly unreasonable’’ with ‘‘was not deliberately indifferent’’ and by adding that if a recipient does not provide a complainant with supportive measures, then the recipient must document the reasons why such a response was not E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations clearly unreasonable in light of the known circumstances. Clarifying Amendments to Existing Regulations Section 106.3(a) Remedial Action Comments: One commenter stated favorably that § 106.3(a) expands the remedial power of the Assistant Secretary in some cases, such as where a regulatory requirement has been violated, but where no sex discrimination has occurred. The commenter asserted that this is important for students who are deprived of due process in a Title IX proceeding. Some commenters expressed concern that § 106.3(a) allows the Assistant Secretary to require a school to remedy any violation of the Title IX regulations, as opposed to only violations that constitute sex discrimination. Commenters argued that this will inappropriately shift the Department toward focusing on procedural requirements which will result in more complaints being filed with OCR that do not involve actual sex discrimination but only involve regulatory violations, and that this will unjustifiably expand the Department’s jurisdiction over complaints brought by parties who were the respondents in underlying Title IX sexual harassment proceedings. Discussion: The Department believes that the final regulations appropriately state that the Assistant Secretary may require recipients to remedy violations of Title IX regulations, even where the violation does not itself constitute sex discrimination. The Department, recipients, and the Supreme Court have long recognized the Department’s statutory authority under 20 U.S.C. 1682 to promulgate rules to effectuate the purposes of Title IX even when regulatory requirements do not, themselves, purport to represent a definition of discrimination.1529 In these final regulations, we revise § 106.3(a) to reflect the Department’s statutory authority and longstanding Department practice with respect to requiring recipients to remedy violations both in 1529 E.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291–92 (1998) (refusing to allow plaintiff to pursue a claim under Title IX based on the school’s failure to comply with the Department’s regulatory requirement to adopt and publish prompt and equitable grievance procedures, stating ‘‘And in any event, the failure to promulgate a grievance procedure does not itself constitute ‘discrimination’ under Title IX. Of course, the Department of Education could enforce the requirement administratively: Agencies generally have authority to promulgate and enforce requirements that effectuate the statute’s nondiscrimination mandate, 20 U.S.C. 1682, even if those requirements do not purport to represent a definition of discrimination under the statute.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the form of sex discrimination and other violations of our Title IX implementing regulations, including where the violation does not, itself, constitute sex discrimination. We emphasize that the Department’s remedial powers are not intended to benefit only respondents; rather, any party can request that the Department take action against a recipient that has not complied with Title IX implementing regulations, including these final regulations. For example, if a recipient fails to offer supportive measures to a complaint pursuant to § 106.44(a), or fails to send written notice after dismissing a complainant’s allegations under § 106.45(b)(3), the recipient is in violation of these final regulations and the Department may require the recipient to take remedial action. Changes: We have revised § 106.3(a) to clarify that the Department may require a recipient to take remedial action for discriminating in violation of Title IX or for violating Title IX implementing regulations. We have removed the reference in the proposed regulations to assessment of damages and instead state that remedial action must be consistent with the Title IX statute, 20 U.S.C. 1682. Comments: Commenters argued that proposed § 106.3(a) was unclear because the line between equitable remedies and monetary damages is sometimes unclear. Commenters asserted that proposed § 106.3(a) left open too many questions and would lead to confusion for students who file Title IX complaints with OCR. Another commenter suggested that the final regulations should unambiguously clarify that a complainant may always bring a Title IX claim in a private right of action. Discussion: The Department agrees that the line between equitable and monetary relief may be difficult to discern, and is persuaded that attempting to distinguish between damages and equitable relief may cause confusion for students and for recipients. The current regulatory provision at 34 CFR 106.3(a) does not distinguish among various types of remedial action the Department might require of recipients, and the Supreme Court has noted that the current regulations ‘‘do not appear to contemplate a condition ordering payment of monetary damages,’’ but the Supreme Court did not indicate what types of remedial action might be contemplated under 20 U.S.C. 1682.1530 1530 Gebser, 524 U.S. at 288–89 (‘‘While agencies have conditioned continued funding on providing equitable relief to the victim, the regulations do not appear to contemplate a condition ordering PO 00000 Frm 00389 Fmt 4701 Sfmt 4700 30413 In response to commenters’ concerns that proposed § 106.3(a) would cause confusion, we have revised § 106.3(a) in these final regulations to remove the proposed reference to ‘‘assessment of damages’’ and instead indicate that the Department’s remedial authority is consistent with 20 U.S.C. 1682. While the Supreme Court has recognized a judicially implied right of private action under Title IX,1531 these final regulations pertain to how the Department administratively enforces Title IX, and we therefore decline to reference private Title IX rights of action in these regulations implementing Title IX. Changes: We have revised § 106.3(a) to clarify that the Department may require a recipient to take remedial action for discriminating in violation of Title IX or for violating Title IX implementing regulations. We have removed the reference to assessment of damages and instead state that remedial action must be consistent with the Title IX statute at 20 U.S.C. 1682. Comments: Some commenters suggested that monetary damages ought to be available to complainants through the administrative enforcement process, particularly where there is no other means of remedying the sexual harassment that occurred. Commenters argued that damages ought to include damages for pain and suffering caused by a school’s deliberate indifference. According to these commenters, depriving a complainant of a damages remedy will leave the complainant— even one who has established a bona fide Title IX violation—less than completely whole. Victims of sexual harassment, stated commenters, might miss work, might incur legal fees, might pay out-of-pocket for treatment expenses, or incur other monetary losses. Some commenters asserted that OCR ought to be able to award damages in cases where monetary relief is necessary to restore a complainant’s position. Discussion: The Department believes that remedial action should be carefully crafted to restore a victim’s equal access to education and ensure that a recipient comes into compliance with Title IX and its implementing regulations. This approach has been cited approvingly by payment of monetary damages, and there is no indication that payment of damages has been demanded as a condition of finding a recipient to be in compliance with the statute.’’) (internal citation omitted). 1531 Cannon v. Univ. of Chicago, 441 U.S. 677, 717 (1979). E:\FR\FM\19MYR2.SGM 19MYR2 30414 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the Supreme Court.1532 The Department’s revisions to § 106.3(a) ensure that the Department may exercise its administrative enforcement authority to fulfill these goals by requiring remedies consistent with 20 U.S.C. 1682, regardless of whether the remedies are deemed necessary due to a recipient’s discrimination under Title IX or a recipient’s violation of Department regulations implementing Title IX.1533 Changes: We have revised § 106.3(a) to clarify that the Department may require a recipient to take remedial action for discriminating in violation of Title IX or for violating Title IX implementing regulations. We have removed the reference to assessment of damages and instead state that remedial action must be consistent with the Title IX statute at 20 U.S.C. 1682. Comments: Some commenters stated that proposed § 106.3(a) inappropriately narrowed the remedies available for sexual harassment, and that any effort to take rights away from victims was troubling. These commenters asserted that the Department ought to be using its power to expand protections for victims, not narrow them. Some commenters stated that preventing OCR from awarding monetary damages would reduce the incentive to report sex discrimination, meaning that it was more likely to continue unabated. Other commenters argued that monetary damages serve as an effective deterrent to a school not taking sex discrimination allegations seriously. One commenter asserted that this was part of a nefarious 1532 Gebser, 524 U.S. at 289 (‘‘In Franklin [v. Gwinnett Co. Pub. Sch., 503 U.S. 64, fn. 3 (1992)], for instance, the Department of Education found a violation of Title IX but determined that the school district came into compliance by virtue of the offending teacher’s resignation and the district’s institution of a grievance procedure for sexual harassment complaints.’’). 1533 The Title IX statute at 20 U.S.C. 1682 provides in relevant part that any agency that disburses Federal financial assistance to a recipient is ‘‘authorized and directed to effectuate the provisions of section 1681 of this title [i.e., Title IX’s non-discrimination mandate] with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken. . . . Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, . . . or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means.’’ VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 motive on the part of Secretary Betsy DeVos to hurt victims of discrimination, and not an effort to help the American people. Discussion: The Department’s purpose and motive in these final regulations is to implement legally binding obligations governing recipients’ responses to sexual harassment so that recipients respond supportively to complainants and fairly to both complainants and respondents and operate education programs and activities free from sex discrimination, including in the form of sexual harassment. The Department intends to continue vigorously enforcing recipients’ Title IX obligations. We are persuaded by commenters that specifying the type of remedies that OCR may require of recipients in administrative enforcement risks confusion for students, employees, and recipients, including as to whether the Department intends to continue vigorously enforcing recipients’ Title IX obligations. We have therefore revised § 106.3(a) to clarify that the Department may require a recipient to take remedial action, consistent with the Department’s regulatory authority under 20 U.S.C. 1682, whenever a recipient has discriminated in violation of Title IX or whenever a recipient has violated the Department’s regulations implementing Title IX. Changes: We have revised § 106.3(a) to clarify that the Department may require a recipient to take remedial action for discriminating in violation of Title IX or for violating Title IX implementing regulations. We have removed the reference to assessment of damages and instead state that remedial action must be consistent with the Title IX statute at 20 U.S.C. 1682. Comments: Some commenters asserted that the withdrawal of all Federal funds happens so rarely that the payment of monetary damages is the only true way to get at a school’s pocketbook for ignoring sex discrimination. Commenters argued that some schools will read § 106.3(a) too broadly, and deny even equitable relief to complainants, who then may never file with OCR and will simply be denied relief to which they are entitled. One commenter suggested that the Equal Employment Opportunity Commission has made public statements adopting the viewpoint that the best way to ensure compliance with nondiscrimination law is to make employers pay damages for violating those laws. Commenters stated that if monetary damages cannot be a part of a resolution agreement, this would have the effect of increasing and encouraging sexual assault. It would also mean, PO 00000 Frm 00390 Fmt 4701 Sfmt 4700 commenters argued, that complainants could not obtain necessary treatment to respond to their trauma from the very misconduct that the recipient caused or exacerbated. Discussion: The Department acknowledges that the termination of Federal financial assistance is rare, but this is because the statutory enforcement scheme that Congress set forth in 20 U.S.C. 1682 recognized termination of Federal funds as a ‘‘severe’’ remedy that should serve as a ‘‘last resort’’ when other, less severe measures have failed.1534 Loss of Federal funding to a school district, college, or university is a serious consequence that may have devastating results for a recipient and the educational community the recipient exists to serve.1535 Termination of Federal funds as a remedy is statutorily intended to serve as a ‘‘last resort’’ in order to ‘‘avoid diverting education funding from beneficial uses’’ unless that severe remedy is necessary.1536 The fact that the severe remedy of terminating Federal funds is appropriately intended and utilized as a last resort does not preclude the Department from effectively enforcing Title IX by securing voluntary resolution agreements with recipients who have violated Title IX or its 1534 Cannon, 441 U.S. at 705, fn. 38 (‘‘Congress itself has noted the severity of the fund-cutoff remedy and has described it as a last resort, all else—including ‘lawsuits’—failing.’’); id. at 704–05 (describing termination of Federal financial assistance as ‘‘severe’’ and stating that it is not always the appropriate means of furthering Title IX’s non-discrimination mandate where ‘‘an isolated violation has occurred.’’); see also Nancy Chi Cantalupo, Burying Our Heads in The Sand: Lack of Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus Peer Sexual Violence, 43 Loy. Univ. Chi. L. J. 205, 241 (2011) (referring to the ability of OCR to terminate Federal funding as the ‘‘nuclear option’’). 1535 ‘‘Federal financial assistance’’ includes, for example, ‘‘scholarships, loans, grants, wages or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity.’’ 34 CFR 106.4(g)(1)(ii); see also Pamela W. Kernie, Protecting Individuals from Sex Discrimination: Compensatory Relief Under Title IX of the Education Amendments of 1972, 67 Wash. L. Rev. 155, 166 (1992) (‘‘Indeed, the fund-termination remedy, if applied, might actually prove detrimental to the very people Title IX is designed to protect: if an educational program’s funds are terminated, future participants in the program will be denied the benefits of much-needed federal financial assistance.’’). 1536 Gebser, 524 U.S. at 289 (‘‘Presumably, a central purpose of requiring notice of the violation to the appropriate person and an opportunity for voluntary compliance before administrative enforcement proceedings [to terminate Federal funding] can commence is to avoid diverting education funding from beneficial uses where a recipient was unaware of discrimination in its programs and is willing to institute prompt corrective measures.’’). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations implementing regulations.1537 The Department will continue to effectively enforce Title IX, including these final regulations, in furtherance of Title IX’s non-discrimination mandate. The Equal Employment Opportunity Commission enforces nondiscrimination laws, including Title VII, that provide specific limits on the amount of compensatory and punitive damages that a person can recover. For example, Title VII expressly limits the amount of compensatory and punitive damages that a person may recover against an employer with more than 500 employees to $300,000, in 20 U.S.C. 1981a(b)(3)(D). Title IX, unlike Title VII, does not expressly include any reference to such compensatory and punitive damages, nor does any statute address the amount of compensatory and punitive damages that may be awarded under Title IX. Instead, Congress expressly references an agency’s suspension or termination of Federal financial assistance, which is a severe consequence, and also allows a recipient to secure compliance with its regulations through any ‘‘other means authorized by law’’. The Department will therefore continue to enforce Title IX consistent with 20 U.S.C. 1682, and not by reference to the enforcement schemes set forth in other laws. Remedial action required of a recipient for violating Title IX or these final regulations may therefore include any action consistent with 20 U.S.C. 1682, and may include equitable and injunctive actions as well as financial compensation to victims of discrimination or regulatory violations, as necessary under the specific facts of a case.1538 1537 Catharine A. MacKinnon, In Their Hands: Restoring Institutional Liability for Sexual Harassment in Education, 125 Yale L. J. 2038, fn. 102 (2016) (noting that the fact that OCR has not actually terminated a school’s Federal funds ‘‘only means schools, knowing OCR means business, have complied, not that OCR is unwilling to use this tool.’’). 1538 See Dana Bolger, Gender Violence Costs: Schools’ Financial Obligations Under Title IX, 125 Yale L. J. 2106, 2120–21 (2016) (noting that ‘‘OCR has required financial reimbursement in a surprisingly small number of its enforcement decisions’’ and arguing that the Department should more often order schools to financially reimburse survivors for costs incurred due to the school’s Title IX violations rather than permitting ‘‘the same schools that violated the survivors’ rights to determine what remedies are appropriate’’); see also Gebser, 524 U.S. at 288–89 (noting that while 34 CFR 106.3(a) does not appear to authorize an agency to order monetary damages as a remedy, and agencies generally seem to order equitable relief (for instance, termination of a teacher who committed sexual harassment), the absence of express reference to monetary damages in 20 U.S.C. 20 and in 34 CFR 106.3 did not imply that monetary damages could not be an appropriate remedy in a private lawsuit under Title IX). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Changes: We have revised § 106.3(a) to clarify that the Department may require a recipient to take remedial action for discriminating in violation of Title IX or for violating Title IX implementing regulations. We have removed the reference to assessment of damages and instead state that remedial action must be consistent with the Title IX statute at 20 U.S.C. 1682. Comments: Some commenters asserted that proposed § 106.3(a) was inconsistent with the statutory provisions of Title IX, since Title IX does not limit the types of relief that OCR may provide to complainants. Other commenters stated that the proposed rules would shift existing policy away from how Congress and the agency have interpreted the current regulatory provisions for the past 50 years, arguing that Title VI contains an express limit on relief, allowing only ‘‘preventive relief’’ under 42 U.S.C. 2000a–3 while Title IX does not contain such limiting language in its remedial provisions, at 20 U.S.C. 1682, which allows for relief by ‘‘any other means authorized by law’’. Commenters referred to resolution agreements where OCR has seemingly awarded monetary damages remedies. Discussion: As discussed above, the Department is persuaded by commenters’ concerns that because Title IX, 20 U.S.C. 1682, does not expressly approve or disapprove of monetary damages as one of the ‘‘other means authorized by law’’ which the Department may use to secure compliance under the Department’s administrative enforcement authority, the Department should not differentiate in § 106.3(a) among potential remedies that may be deemed necessary to ensure that a recipient complies with Title IX and its implementing regulations. We have revised § 106.3(a) to expressly provide that discrimination under Title IX, or violations of the Department’s Title IX regulations, may require a recipient to take remedial action, and that such remedial action ordered by the Department in an enforcement action must be consistent with 20 U.S.C. 1682. The Department notes that actions that some commenters characterize as OCR requiring a recipient to pay ‘‘monetary damages’’ may be viewed as financial compensation that OCR requires a recipient to pay to a victim of sex discrimination as a form of equitable relief, which does not necessarily constitute ‘‘monetary damages.’’ However, the revisions to § 106.3(a) affirm that the Department will continue to enforce Title IX and its implementing regulations vigorously by using all tools PO 00000 Frm 00391 Fmt 4701 Sfmt 4700 30415 at the Department’s disposal under 20 U.S.C. 1682. Changes: We have revised § 106.3(a) to clarify that the Department may require a recipient to take remedial action for discriminating in violation of Title IX or for violating Title IX implementing regulations. We have removed the reference to assessment of damages and instead state that remedial action must be consistent with the Title IX statute at 20 U.S.C. 1682. Comments: Some commenters stated that the proposed rules’ reliance on Supreme Court case law is faulty, because those cases arose in the context of private rights of action in civil suits, and not the administrative context. Another commenter stated that OCR already does not award monetary damages, and so § 106.3 is unnecessary, but could engender confusion, particularly where equitable remedies involving monetary payments are necessary to make a complainant whole. Another commenter asserted that there is a discord between changing the legal standards in other parts of the proposed rules to more closely mirror the legal standards in civil suits, while expressly barring complainants from obtaining the relief that they would otherwise be entitled to in civil suits. Discussion: The Department is persuaded by commenters’ concerns that proposed § 106.3(a) may have had the unintended effect, or perceived effect, of restricting the Department’s ability to vigorously enforce Title IX through all ‘‘means authorized by law,’’ 1539 may have caused unnecessary confusion on topics such as whether the Department’s administrative enforcement of Title IX pursues the same goals as private lawsuits under Title IX (i.e., enforcement of Title IX’s non-discrimination mandate), whether financial compensation when necessary to remedy a recipient’s discrimination against individual victims would no longer be part of the Department’s enforcement efforts, and may have indicated tension with the Department’s approach to adopting and adapting the three-part Gebser/Davis framework 1540 (which the Supreme Court developed in the context of private litigation subjecting schools to monetary damages). To address commenters’ concerns and clarify the Department’s intent to vigorously enforce Title IX, we have revised § 106.3(a) to state that the Department may order remedial action as necessary to correct discrimination 1539 20 U.S.C. 1682. and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble. 1540 ‘‘Adoption E:\FR\FM\19MYR2.SGM 19MYR2 30416 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations under Title IX or violations of the Department’s Title IX regulations, consistent with 20 U.S.C. 1682. Changes: We have revised § 106.3(a) to clarify that the Department may require a recipient to take remedial action for discriminating in violation of Title IX or for violating Title IX implementing regulations. We have removed the reference to assessment of damages and instead state that remedial action must be consistent with the Title IX statute at 20 U.S.C. 1682. Comments: Commenters stated that because the current regulations need clarity and modification, it is good that the proposed rules addressed the remedies issue. Some commenters stated that the proposed rules set forth a fair and reliable procedure with respect to damages and remedies. Commenters who worked for postsecondary institutions expressed support for proposed § 106.3(a) as a significant improvement upon the current Title IX landscape. Some commenters on behalf of institutions expressed appreciation for the focus on remedial action that does not include the assessment of damages against a recipient because some recipients are small, rural schools with limited resources, and would prefer to use those resources to remedy violations rather than pay damages. Commenters asserted that proposed § 106.3(a) helps recipient institutions avoid unnecessary burdens. Commenters stated that they supported the limitation of remedial action to exclude assessment of damages against the recipient because parties seeking monetary damages may always avail themselves of the courts, which are better equipped than OCR to assess damages to compensate a victim for harms like emotional distress. One commenter asserted that proposed § 106.3(a) would appropriately focus Title IX enforcement on securing equitable relief and bringing schools into compliance with Title IX. Commenters offered that it is appropriate for OCR to focus exclusively on equitable relief and bringing schools into compliance, as opposed to compensating victims. Discussion: The Department appreciates some commenters’ support for the intention of proposed § 106.3(a), to distinguish between monetary damages and equitable relief in determining remedial action the Department should pursue in its administrative enforcement actions. However, for the reasons discussed above, the Department is persuaded by the concerns of other commenters and we have revised § 106.3(a) to remove reference to assessment of damages. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Changes: We have revised § 106.3(a) to clarify that the Department may require a recipient to take remedial action for discriminating in violation of Title IX or for violating Title IX implementing regulations. We have removed the reference to assessment of damages and instead state that remedial action must be consistent with the Title IX statute at 20 U.S.C. 1682. Comments: Some commenters argued that proposed § 106.3(a) conveyed that the Department will not be enforcing Title IX at all and will look the other way at a recipient’s failure to respond to allegations of sexual harassment. Another commenter suggested that the proposed rules ought to state that all remedial action should be dedicated to minimizing, to the extent possible, harm done to the complainant. One commenter argued that proposed § 106.3 would create an inconsistency with other laws and regulations that OCR enforces, such as Title VI or Section 504. One commenter argued that § 106.3(a) is a change in position from prior Department guidance that contemplates monetary relief, is in tension with a Department of Justice manual about Title IX,1541 and could potentially put the Department’s Title IX enforcement practices in tension with other executive branch agencies that enforce Title IX. The commenter asserted that it is strange for a complainant’s scope of relief to change depending on the agency with which the complaint is filed. The commenter asserted that such a significant shift ought to be more fulsomely explained by the Department. Additionally, the commenter stated that the commenter had filed a Freedom of Information Act (FOIA) request but had not yet received a response, and that the proposed rules ought to be withdrawn until the commenter had opportunity to review the FOIA response and comment further. The same commenter argued that the proposed rules would pose anomalous situations that would strain OCR’s ability to separate equitable relief involving payments of money, from non-equitable relief in the form of monetary damages. The commenter raised the scenario of a complainant that suffers damages caused by a third party; in the hypothetical, a student is sexually harassed at their school and reports the incident, and later the student obtains a scholarship at another school, and if the first school retaliates against the reporting student by interfering with the 1541 Commenters cited: U.S. Dep’t. of Justice, Title IX Legal Manual ‘‘VIII Private Right of Action and Individual Relief through Agency Action, C. Recommendations for Agency Action.’’ PO 00000 Frm 00392 Fmt 4701 Sfmt 4700 scholarship so the student loses the scholarship, the first school may or may not be liable for the loss of the scholarship under revised § 106.3(a), depending on whether OCR construes that relief as monetary damages or equitable relief. Discussion: For reasons discussed above, the Department is persuaded by commenters’ concerns that proposed § 106.3(a) could cause unnecessary confusion, such as about how the Department intends to enforce Title IX and whether the Department intends to continue vigorously enforcing Title IX administratively. We have revised § 106.3(a) to clarify that the Department will require remedial action for a recipient’s discrimination under Title IX or a recipient’s violations of Title IX regulations, in a manner consistent with 20 U.S.C. 1682. In light of these revisions, the Department does not believe it is necessary to analyze prior Department guidance as to whether the Department’s past practice has, or has not, been to impose monetary damages for Title IX violations, and for similar reasons there is no conflict between § 106.3(a) in the final regulations, and the Department of Justice Title IX Manual referenced by commenters, or among the Department’s approach to remedial action and the approach of other Federal agencies, each of which is subject to the same provision in the Title IX statute (20 U.S.C. 1682) regarding administrative enforcement of Title IX, to which § 106.3(a) now refers. We note that the sufficiency of the Department’s response to any individual FOIA request is beyond the scope of this rulemaking, and decline to comment on the content of such a request or its relationship to these final regulations. The revisions to § 106.3(a) additionally ameliorate the commenter’s concern raised in a hypothetical, that a dividing line between equitable relief and monetary damages could lead to the Department being constrained from requiring a recipient to, for example, reimburse a student for the value of a lost scholarship under circumstances where such remedial action is necessary to remediate the effects of a recipient’s discrimination against an individual student. Changes: We have revised § 106.3(a) to clarify that the Department may require a recipient to take remedial action for discriminating in violation of Title IX or for violating Title IX implementing regulations. We have removed the reference to assessment of damages and instead state that remedial action must be consistent with the Title IX statute at 20 U.S.C. 1682. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Comments: Some commenters suggested that if changes to § 106.3 are made at all, the changes ought to strengthen the penalties that can be adjudicated against actual perpetrators of sexual harassment, including students. One commenter suggested that students who engage in sexual harassment ought to themselves be liable for monetary damages as part of OCR’s enforcement practices. Additionally, this commenter argued that OCR ought to make students who engage in sexual harassment repay grants given to them by the Federal government, and permanently bar such students from applying for any financial assistance in the future. Another commenter suggested that the Department ought to bar students who commit sexual harassment from attending any other postsecondary institution in the future. Discussion: Title IX applies to recipients of Federal financial assistance operating education programs or activities.1542 Title IX does not apply as a direct bar against perpetration of sexual harassment by individual respondents; rather, Title IX requires recipients to operate education programs and activities free from sex discrimination. When a recipient knowingly, deliberately refuses to respond to sexual harassment, such response is a violation of Title IX’s nondiscrimination mandate, and a recipient’s failure to respond appropriately in other ways mandated by these final regulations constitutes a violation of the Department’s regulations implementing Title IX.1543 The Department will vigorously enforce Title IX’s non-discrimination mandate and the obligations contained in these final regulations to ensure recipients’ compliance. These final regulations clarify the conditions that trigger a recipient’s legal obligations with respect to sexual harassment and enforcement of Title IX, and these final regulations are focused on remedial actions the recipient must take, rather than on punitive actions against individuals who perpetrate sexual harassment.1544 These final regulations explain the circumstances under which a recipient must provide remedies to victims of sexual harassment, and leave decisions about appropriate disciplinary sanctions imposed on respondents found responsible for sexual harassment within the sound discretion of the recipient.1545 These final regulations do not impact eligibility of a student for Federal student aid or the eligibility of an individual to apply for Federal grants. The Title IX statute authorizes the Department to enforce Title IX by terminating Federal financial assistance provided to a recipient operating education programs or activities—not by terminating Federal financial aid to individual students. As discussed previously, these final regulations leave sanctions and punitive consequences that a recipient chooses to take against a respondent found responsible for sexual harassment in the sound discretion of the recipient. Nothing in these final regulations precludes a recipient from barring such a respondent found responsible for sexual harassment from continuing enrollment or from re-enrolling with the recipient, or from including a notation on the student’s transcript with the intent or effect of prohibiting the respondent from future enrollment with a different recipient.1546 Changes: We have revised § 106.3(a) to clarify that the Department may require a recipient to take remedial action for discriminating in violation of Title IX or for violating Title IX implementing regulations. We have removed the reference to assessment of damages and instead state that remedial action must be consistent with the Title IX statute at 20 U.S.C. 1682. Comments: Some commenters asserted that the proposed rules ought to eliminate the ability of a recipient to engage in affirmative action absent any finding of a violation; commenters referenced a provision under 34 CFR 106.3(b) that the proposed rules did not propose to alter. Additionally, some commenters stated that the proposed rules ought to more clearly define what monetary damages are, since monetary payments may nevertheless be equitable in nature, in some circumstances. Commenters suggested that the Assistant Secretary for Civil Rights ought to be more constrained in assessment of remedies than proposed § 106.3(a) set forth and should not require that schools engage in disciplinary or exclusionary processes in order to remedy sexual harassment. Commenters argued that the Assistant Secretary should only have jurisdiction to require supportive measures for U.S.C. 1681(a). 1543 See discussion in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble. 1544 Id. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 1546 For further discussion of transcript notations, see the ‘‘Transcript Notations’’ subsection of the ‘‘Determinations Regarding Responsibility’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. PO 00000 Frm 00393 victims of sexual harassment in order to restore access to education and bring a recipient into compliance with Title IX. Discussion: In the NPRM, the Department proposed revisions to § 106.3(a), which concerns remedial action, and did not propose changing the provisions of 34 CFR 106.3(b), which concerns affirmative action, and the Department declines to revise 34 CFR 106.3(b) in these final regulations. The Department disagrees that the Department lacks authority to require recipients to investigate and adjudicate sexual harassment allegations in order to determine whether remedies are necessary to restore or preserve the equal educational access of a victim of sexual harassment, including deciding whether disciplinary sanctions are warranted against a respondent found responsible for sexual harassment. Since 1975, Department regulations have required recipients to adopt and publish grievance procedures to address student and employee complaints of sex discrimination,1547 and through guidance since 1997 the Department has interpreted this regulatory requirement to apply to complaints of sexual harassment. Adopting and publishing a grievance process to address sexual harassment as a form of sex discrimination prevents instances in which a recipient violates Title IX by failing to provide remedies to victims of sexual harassment, falling squarely within the Department’s authority to promulgate rules that further Title IX’s non-discrimination mandate.1548 As previously discussed, with respect to disciplinary sanctions, the Department, like the courts, will ‘‘refrain from second guessing the disciplinary decisions made by school administrators’’ 1549 because school administrators are best positioned to determine the appropriate discipline to be imposed. The final regulations remove reference to ‘‘assessment of damages’’ in § 106.3(a), and thus the Department declines to provide a definition of ‘‘monetary damages’’ in order to clarify when payments of money are part of equitable relief, versus damages. Changes: We have revised § 106.3(a) to clarify that the Department may require a recipient to take remedial action for discriminating in violation of Title IX or for violating Title IX implementing regulations. We have 1547 Compare 1545 Id. 1542 20 Fmt 4701 Sfmt 4700 30417 34 CFR 106.9 with § 106.8(c). of Due Process in the Grievance Process’’ section of this preamble. 1549 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 (1999). Disciplinary sanctions, however, cannot be retaliatory or discriminatory on the basis of sex. § 106.71(a); § 106.45(a). 1548 ‘‘Role E:\FR\FM\19MYR2.SGM 19MYR2 30418 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations removed the reference to assessment of damages and instead state that remedial action must be consistent with the Title IX statute at 20 U.S.C. 1682. Section 106.6(d)(1) First Amendment Comments: A number of commenters expressed support for § 106.6(d) generally, including § 106.6(d)(1) regarding the First Amendment. Other commenters argued the provision is necessary to prevent a chilling effect on free speech. Other commenters supported this provision because they believed that Title IX should conform with Supreme Court rulings on free speech. Commenters argued that the protection of free speech on campuses is important and that this provision helps prevent Title IX enforcement from chilling free speech. Commenters argued that § 106.6(d) is necessary in light of the growing number of instances in which institutions have violated students’ rights in campus Title IX adjudications. Commenters expressed support for the saving clause nature of this provision because of concerns that Title IX has a disproportionate impact on men of color and other disadvantaged demographic groups. Some commenters requested more clarity on the application of the saving clause to specific situations. Commenters requested that OCR ‘‘provide additional guidance or clarity on what responsibilities school districts have with respect to the First Amendment and other constitutional protections.’’ One commenter requested guidance on the parameters of free speech protections. Other commenters supported the saving clause but requested that the Department modify the language to provide greater protection for free speech, such as providing explicit protection of academic freedom, or such as changing the provision to not just state that the regulations do not require a recipient to restrict constitutional rights, but that the regulations do not permit deprivations of constitutional rights. Some commenters expressed confusion as to whether the saving clauses in 106.6(d) cover recipients that are not government actors. A number of commenters opposed the saving clause because they believed it is unnecessary. One commenter opposed the saving clause due to the concern that it could be seen as calling for the courts to give greater weight to the listed constitutional protections than a court may have given otherwise. As an example, the commenter posed a hypothetical case where First Amendment rights are implicated; VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 without the addition of § 106.6(d)(1), a court could give different weight to factors in its factored-analysis as to whether a constitutional violation occurred but with the saving clause in the proposed rules, the court may conclude that the Department has determined that greater weight should be given to First Amendment protections than the other factors used in its making of a determination of a constitutional violation. One commenter argued that the saving clause is an unwarranted and harmful restriction on Title IX. The commenter reasoned that under Title IX’s non-discrimination mandate the Department could, for example, reasonably determine that Title IX requires that a trigger warning be given to students before the start of any academic class discussing topics involving sexual violations, so that students could avoid being subjected to the traumatizing class discussion; the commenter argued that such a requirement is constitutional and could be necessary under Title IX, yet because of § 106.6(d) such a reasonable, constitutional requirement (because even First Amendment speech rights are not unlimited, inasmuch as yelling ‘‘fire’’ in a crowded theater has long been deemed unprotected speech) to promote Title IX’s purposes might be forgone by the Department. On the other hand, another commenter argued that classroom discussions about sensitive topics involving sex and sexuality are protected by academic freedom—in the teacher or professor’s judgment—even if such topics are offensive and uncomfortable to some students. Discussion: The Department added § 106.6(d)(1) to act as a saving clause.1550 Its purpose is to ensure the Department is promoting nondiscrimination enforcement consistent with constitutional protections, and with First Amendment protections of free speech and academic freedom in particular. Due to significant confusion regarding the intersection of individuals’ rights under the U.S. Constitution with a recipient’s obligations under Title IX, the proposed regulations clarify that these regulations do not require a recipient to infringe upon any individual’s rights protected under the First Amendment. The Department disagrees with the commenter who argued that § 106.6(d)(1) will chill Title IX 1550 ‘‘Saving Clause,’’ Black’s Law Dictionary (11th ed. 2019) (‘‘A statutory provision exempting from coverage something that would otherwise be included. A saving clause is generally used in a repealing act to preserve rights and claims that would otherwise be lost.’’). PO 00000 Frm 00394 Fmt 4701 Sfmt 4700 enforcement without more precise language. Rather, stating that nothing in regulations implementing Title IX requires restriction of constitutional rights protects robust Title IX enforcement by clarifying that furthering Title IX’s non-discrimination mandate does not conflict with constitutional protections. Failure to recognize and respect principles of free speech and academic freedom has led to overly broad anti-harassment policies that have resulted in chilling and infringement of constitutional protections.1551 The Department disagrees with commenters who argued that additional language or guidance is necessary in § 106.6(d)(1). We believe that § 106.6(d)(1) is clear without further explanation. The Department also includes an explanation of First Amendment law and the interaction of First Amendment law with these final regulations throughout the preamble; for example, in the ‘‘Davis standard generally’’ subsection of the ‘‘Prong (2) Davis standard’’ subsection of the ‘‘Sexual Harassment’’ subsection in the ‘‘Section 106.30 Definitions’’ section, the Department includes discussion about how the second prong of the definition of sexual harassment in § 106.30, with language from Davis, interacts with the First Amendment. The Department will abide by courts’ rulings as to the scope of the First Amendment. In response to requests from commenters for stronger First Amendment protections in these final regulations, the Department has added additional language in the final regulations, addressing circumstances under which First Amendment concerns often intersect with Title IX policies and procedures. For example, the Department has added § 106.71 (prohibiting retaliation) to state that the exercise of rights protected under the First Amendment does not constitute retaliation. The final regulations also add language in § 106.44(a) to state that the Department may not deem a recipient to have satisfied the recipient’s duty to not be deliberately indifferent based on the recipient’s restriction of rights protected under the U.S. Constitution, including the First Amendment. The Department reinforces § 106.6(d) in the context of a recipient’s non-deliberately indifferent response in § 106.44(a) and evaluation of retaliation under new § 106.71 to caution recipients that the Department will not 1551 ‘‘Sexual Harassment’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations require a recipient to restrict constitutional rights as a method of Title IX compliance. Because academic freedom is well understood to be protected under the First Amendment, the Department declines to expressly reference ‘‘academic freedom’’ in § 106.6(d)(1), but that provision applies to all rights protected under the First Amendment. Title IX, including § 106.6(d), applies to all recipients of Federal financial assistance, including private actors. The language is intended to clarify that, under Title IX regulations, recipients— including private recipients—are not obligated by Federal law under Title IX to restrict free speech or other rights that the Federal government could not restrict directly. Accordingly, the government may not compel private actors to restrict conduct that the government itself could not constitutionally restrict.1552 The Department agrees with commenters who stated that § 106.6(d)(1) will ensure that nothing in these final regulations is interpreted to violate the First Amendment to the U.S. Constitution, and we agree that this provision is important to prevent a chilling effect on free speech. As discussed in more detail in the ‘‘Sexual Harassment’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, overly broad definitions applied in anti-harassment codes of conduct have led to confusion about how to enforce non-sex discrimination laws like Title IX consistent with First Amendment protections, and we therefore disagree that § 106.6(d)(1) is unnecessary. The Department disagrees that § 106.6(d)(1) will change the way courts interpret the Constitution or Title IX. These types of clauses are routinely included in regulations to note similar issues, and we have no reason to believe including a saving clause such as § 106.6(d) would encourage courts to apply the Constitution differently or more broadly than they otherwise would. The Department believes that § 106.6(d)(1) acts as a saving clause to ensure that institutions do not violate the First Amendment’s requirements, but the scope and meaning of First Amendment rights and protections are not affected by these final regulations. The Department disagrees that these final regulations including § 106.6(d)(1), unnecessarily and harmfully prohibit the Department from promulgating regulations under Title IX that are constitutionally permissible. Contrary to 1552 Peterson v. City of Greenville, 373 U.S. 244, 248 (1963); Truax v. Raich, 239 U.S. 33, 38 (1915). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the commenter’s assertions, these final regulations clarify that part 106 of title 34 of the Code of Federal Regulations in no way requires the restriction of rights that would otherwise be protected from government action by the First Amendment. The U.S. Constitution applies to the Department as a Federal government agency, and the Department cannot enforce Title IX (e.g., interpret Title IX and promulgate rules enforcing the purposes of Title IX) in a manner that requires restricting constitutional rights protected from government action by the First Amendment. These final regulations neither require nor prohibit a recipient from providing a trigger warning prior to a classroom discussion about sexual harassment including sexual assault; § 106.6(d)(1) does assure students, employees (including teachers and professors), and recipients that ensuring non-discrimination on the basis of sex under Title IX does not require restricting rights of speech, expression, and academic freedom guaranteed by the First Amendment. Whether the recipient would like to provide such a trigger warning and offer alternate opportunities for those students fearing renewed trauma from participating in such a classroom discussion is within the recipient’s discretion. However, nothing in § 106.6(d) restricts the Department from issuing any rule effectuating the purpose of Title IX that the Department would otherwise be permitted to issue; in other words, with or without § 106.6(d), the Department as a Federal government agency is required to abide by the First Amendment, and would not be permitted to issue a rule that restricts constitutional rights, whether or not a saving clause such as § 106.6(d) exists to remind recipients that Title IX enforcement never requires any recipient to restrict constitutional rights. Changes: None. Section 106.6(d)(2) Due Process Comments: A number of commenters expressed general support for § 106.6(d)(2) and the protection of due process of law. Commenters supported the provision because they asserted that there is confusion now as to how Title IX affects individual rights, and that this provision provides clarity. Commenters supported this provision in light of actions of educational institutions that commenters believed have violated the constitutional rights of students in Title IX proceedings; some commenters asserted that due process deprivations were caused by policies implemented under the withdrawn 2011 Dear Colleague Letter. PO 00000 Frm 00395 Fmt 4701 Sfmt 4700 30419 Some commenters expressed confusion as to whether the saving clauses in § 106.6(d) cover recipients that are not government actors. Commenters requested clarification of § 106.6(d)(2), asserting that the Department must comply with Executive Order 13563, which calls for regulations to reduce uncertainty and be written in plain language. A number of commenters opposed § 106.6(d)(2). Commenters opposed the saving clause, arguing that it is unnecessary. Other commenters opposed this provision because they argued that it inappropriately pits Title IX’s civil rights mandate against the Constitution, when no such conflict exists. Other commenters opposed this provision, asserting that schools are not courts of law. Other commenters argued that § 106.6(d)(2) could be seen by the courts as calling for the courts to give greater weight to the listed constitutional protections than courts may give without this provision. Other commenters opposed this provision stating that it would be burdensome on institutions. Discussion: The Department added § 106.6(d)(2) to act as a saving clause. The Department included this provision to promote enforcement of Title IX’s non-discrimination mandate consistent with constitutional protections.1553 Due to significant confusion regarding the intersection of individuals’ rights under the U.S. Constitution with a recipient’s obligations under Title IX, the Department believes that this provision will help clarify that nothing in regulations implementing Title IX requires a recipient to infringe upon any individual’s rights protected under the Due Process Clauses of the U.S. Constitution. As noted previously, some commenters expressed confusion as to whether the saving clauses in § 106.6(d) cover recipients that are not government actors. The Department reiterates that Title IX, including § 106.6(d), applies to all recipients of Federal funding, including private actors. The language is intended to make clear that, under Title IX regulations, recipients—including private recipients—are not obligated to choose between complying with Title IX and respecting constitutional rights. Section 106.6(d)(2) clarifies that no recipient, including a private recipient, is required to take actions constituting deprivation of rights secured by the Constitution that the Federal government could not take directly. The government may not compel private 1553 83 E:\FR\FM\19MYR2.SGM FR 61480. 19MYR2 30420 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations actors to restrict conduct that the government itself could not constitutionally restrict.1554 The Department believes it has complied with Executive Order 13563 with respect to § 106.6(d)(2).1555 We believe that this provision is clear, uses plain language, and is tailored to the objective of clarifying that nothing in these regulations requires a recipient to infringe upon any individual’s rights protected under the Due Process Clauses of the Fifth or Fourteenth Amendments. We intend for § 106.6(d)(2) to reduce uncertainty about the interaction between these final regulations and recipients’ due process obligations. The Department agrees with commenters who supported § 106.6(d)(2) as necessary to protect the constitutional rights of complainants and respondents in Title IX proceedings. The Department also disagrees that § 106.6(d)(2) pits Title IX’s civil rights mandate against the Constitution; to the contrary, this provision helps clarify that there is no conflict between enforcement of Title IX and respect for constitutional rights. The Department disagrees that § 106.6(d)(2) could be seen by the courts as calling for giving greater weight to the listed constitutional protections than courts may have otherwise given. These types of saving clauses are routinely included in regulations to note similar issues, and we have no reason to believe including one here would encourage courts to apply the Constitution differently or more broadly than they otherwise would. Nothing in these final regulations alters the meaning or scope of constitutional rights or protections, but rather acknowledges that whatever the meaning and scope of a constitutional right, that right never needs to be restricted to comply with Title IX regulations. We agree that schools are not courts of law; however, the Due Process Clauses of the Fifth and Fourteenth Amendments do not just apply in judicial proceedings. Constitutional protections such as the right to due process of law apply to the actions of governmental actors, including governmental decisions in administrative hearings which deprive individuals of liberty or property interests.1556 For example, when a State university imposes a serious disciplinary sanction, it must comply with the terms of the Due Process Clause of the Fourteenth 1554 Peterson v. City of Greenville, 373 U.S. 244 (1963); Truax v. Raich, 239 U.S. 33, 38 (1915). 1555 83 FR 61462, 61483–84. 1556 E.g., Mathews v. Eldridge, 424 U.S. 319, 332 (1976). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Amendment.1557 For private institutions receiving Federal financial assistance, the Department cannot require such institutions to deprive persons of rights protected under the U.S. Constitution in order to comply with these final regulations implementing Title IX.1558 Changes: None. Section 106.6(d)(3) Other Constitutional Rights Comments: A number of commenters expressed support for § 106.6(d)(3). One commenter who opposed the NPRM in general agreed with § 106.6(d)(3). Commenters supported § 106.6(d)(3) due to their own experiences with Title IX procedures and adjudications, stating that such processes lacked basic due process protections. Several commenters supported § 106.6(d)(3), asserting that constitutionallyguaranteed due process rights trump any guidance or requirements established under Title IX. Other commenters argued that the Department should add additional specific constitutional saving clauses, similar to § 106.6(d)(1)–(3), to protect individual liberty from government overreach, such as Sixth Amendment and Seventh Amendment protections. Several commenters opposed § 106.6(d)(3). Commenters opposed § 106.6(d)(3) because they believed the provision is unnecessary. Some commenters opposed § 106.6(d)(3) asserting it was inapplicable to private institutions. Commenters opposed this provision asserting it would be burdensome for recipients. Commenters opposed this provision arguing that the provision implies that there has been past fault by institutions depriving constitutional rights. Commenters opposed this provision arguing that it could be seen by courts as calling for the courts to give greater weight to constitutional protections than a court may otherwise give. Discussion: The purpose of § 106.6(d)(3) is to ensure that regulations implementing Title IX promote the non-discrimination mandate of Title IX consistent with all constitutional rights and protections. To avoid confusion regarding the intersection of individuals’ rights under the U.S. Constitution, and a recipient’s obligations under Title IX, § 106.6(d)(3) clarifies that nothing in regulations implementing Title IX requires a recipient to infringe upon any rights 1557 Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 192 (1988). 1558 Adickes v. S.H. Kress & Co., 398 U.S. 144, 170 (1970) (government is responsible for discriminatory act of private party when government, by its law, has compelled the act). PO 00000 Frm 00396 Fmt 4701 Sfmt 4700 guaranteed by the U.S. Constitution. This provision also makes it clear that, under Title IX regulations, recipients— including private recipients—are not obligated by Title IX to restrict rights that the Federal government could not restrict directly. Consistent with Supreme Court case law, the government may not compel private actors to restrict conduct that the government itself could not constitutionally restrict.1559 The Department agrees that constitutionally-guaranteed due process rights trump any guidance or requirements established by Title IX, and disagrees that § 106.6(d)(3) may be interpreted by courts to give greater weight to constitutional protections than a court may otherwise give. Congress authorized and directed the Department to promulgate regulations to effectuate Title IX.1560 The Department, thus, has the authority to promulgate regulations that further Title IX’s nondiscrimination mandate, though such regulations must not require restriction of constitutional rights. Section 106.6(d)(3) states that position. Nothing in the final regulations alters the meaning or scope of constitutional rights or protections. Section 106.6(d)(3) is in the nature of a saving clause, and such clauses are routinely included in regulations to note similar issues; we have no reason to believe including one here would encourage courts to apply the Constitution differently or more broadly than courts otherwise would. With respect to the suggestion to list additional constitutional rights specifically in § 106.6(d), the Department believes the concerns raised by the commenters are already sufficiently addressed by this provision, which covers ‘‘any other rights guaranteed against government action by the U.S. Constitution’’ and by § 106.6(d)(1)–(2) which specifically refer to constitutional rights that most often intersect with Title IX enforcement— First Amendment rights, and the right to due process of law. The Department disagrees that this provision is unnecessary or burdensome. The Department’s goal is to ensure that non-discrimination provisions are enforced in a manner that is consistent with the entire U.S. Constitution. Although the First Amendment and Due Process Clauses tend to be the most directly relevant provisions to these final regulations concerning responses to sexual harassment, the Department believes a 1559 Peterson v. City of Greenville, 373 U.S. 244 (1963); Truax v. Raich, 239 U.S. 33, 38 (1915). 1560 20 U.S.C. 1682. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations catch-all saving clause regarding constitutional rights is necessary and appropriate. In addition, emphasizing and clarifying that these final regulations do not require a recipient to restrict rights, should not pose a burden. We do not believe that inclusion of § 106.6(d)(3) in these final regulations implies ‘‘fault’’ on the part of particular recipients or indicates a belief regarding the extent to which recipients may, or may not, have regarded Title IX obligations as necessitating restriction of constitutional rights, but we believe that including this provision will help ensure that constitutional rights are properly respected in all efforts to enforce Title IX. Changes: None. Section 106.6(e) FERPA Background These final regulations, including § 106.45(b)(5)(vi) (giving the parties access to all evidence directly related to the allegations in the formal complaint) and § 106.45(b)(5)(iv) (allowing the parties to bring an advisor of choice to all meetings in the Title IX proceeding), help protect a party’s, including an employee-respondent’s, procedural due process rights under the Fifth and Fourteenth Amendments to the U.S. Constitution. Procedural due process requires notice and a meaningful opportunity to respond.1561 The Department is precluded from administering, enforcing, and interpreting statutes, including Title IX and FERPA, in a manner that would require a recipient to deny the parties, including employee-respondents, their constitutional right to due process because the Department, as an agency of the Federal government, is subject to the U.S. Constitution. The Department’s position is consistent with the principle articulated in the Department’s 2001 Guidance that the ‘‘rights established under Title IX must be interpreted consistent with any federally guaranteed due process rights involved in a complaint proceeding.’’ 1562 The Department expressly stated in the 2001 Guidance that ‘‘[FERPA] does not override federally protected due process rights of persons accused of sexual harassment’’ in the context of public school employees or other recipients that are public entities, and the 2001 Guidance will continue to 1561 Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (stating that the ‘‘essence of due process is the requirement that ‘a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it’’’) (internal citations omitted). 1562 2001 Guidance at 22. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 constitute the Department’s interpretation of the intersection of Title IX and FERPA even after these final regulations become effective.1563 The Department’s NPRM addresses private schools and expressly states: We are proposing to add paragraph (d) to clarify that nothing in these regulations requires a recipient to infringe upon any individual’s rights protected under the First Amendment or the Due Process Clauses, or [ ] any other rights guaranteed by the U.S. Constitution. The language also makes it clear that, under the Title IX regulations, recipients—including private recipients—are not obligated by Title IX to restrict speech or other behavior that the Federal government could not restrict directly. Consistent with Supreme Court case law, the government may not compel private actors to restrict conduct that the government itself could not constitutionally restrict. See e.g., Peterson v. City of Greenville, 373 U.S. 244 (1963); Truax v. Raich, 239 U.S. 33, 38 (1915). Thus, recipients that are private entities are not required by Title IX or its regulations to restrict speech or other behavior that would be protected against restriction by governmental entities.1564 The Department acknowledged in the NPRM that it cannot interpret Title IX to compel a private school to deprive employee-respondents of their due process rights, specifically the opportunity to review the evidence that directly relates to the allegations against that employee and to bring an advisor to help defend against the allegations. Similarly, the Department cannot interpret FERPA to compel a private school to apply the Department’s Title IX regulations in a manner that deprives parties, including any respondentemployees, of due process. In Peterson v. City of Greenville, the U.S. Supreme Court held that the City of Greenville through an ordinance could not compel a private restaurant to operate in a manner that treated patrons differently on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment.1565 Similarly, in Truax v. Raich, the Supreme Court held that Arizona cannot use a State statute to compel private entities to employ a specific percentage of nativeborn Americans as employees in violation of the Equal Protection Clause of the Fourteenth Amendment.1566 Like the City of Greenville and the State of Arizona, the Department cannot compel private schools that apply FERPA and Title IX, as interpreted by the Department, to violate a party’s due 1563 Id. 1564 83 FR 61480–81 (emphasis added). U.S. 244, 247–48 (1963). 1566 239 U.S. 33, 38 (1915). 1565 373 PO 00000 Frm 00397 Fmt 4701 Sfmt 4700 30421 process rights, including an employee’s due process rights. (The Department sometimes uses the terms ‘‘alleged victim’’ and ‘‘alleged perpetrator’’ in responding to comments about the intersection between Title IX and FERPA because FERPA, e.g., 20 U.S.C. 1232g(b)(6), and its implementing regulations, e.g., 34 CFR 99.31(a)(13)–(a)(14) and 34 CFR 99.39, use these specific terms.) Comments, Discussion, and Changes Comments: Some commenters commended the proposed rules for appropriately balancing Title IX protections with FERPA, suggesting that both are important laws but that in most cases, the proposed rules and FERPA can co-exist without conflict. Some commenters argued that nothing in FERPA prevents parties from accessing information or evidence that directly relates to their case, particularly if the evidence could potentially be used against them to establish responsibility for sexual harassment. Commenters suggested that one way to protect privacy might be to provide only a hard copy of relevant documents, or a hard copy and ongoing electronic access that was limited. Some commenters also stated that all parties should have a hard copy of the evidence and ongoing electronic access. Commenters asserted that the proposed rules protect the rights of students who attend school and will calm the fears of parents who are concerned about their children being falsely accused of sexual harassment. One commenter, anticipating criticism, argued that ‘‘victim-centered’’ approaches do not work in a context where both parties have a right to present their case, and where schools have a duty to fairly determine whether a party is responsible. Another commenter suggested that FERPA’s provision allowing the production of student records in connection with a law enforcement action might also reduce tension between the proposed rules and FERPA. Commenters also noted that the proposed rules are good for providing predictability and certainty when a conflict between Title IX and FERPA does arise, which is what recipients need in order to comply with both. One student expressed appreciation that the proposed rules expressly recognized and considered FERPA in its provisions. Some commenters noted that it was appropriate to favor due process in cases where that principle conflicts with FERPA, since due process is a constitutional right, while FERPA is a Federal statute. Several commenters E:\FR\FM\19MYR2.SGM 19MYR2 30422 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations suggested that the proposed rules would ensure justice for victims and protections for those falsely accused. Discussion: The Department appreciates the comments in support of its proposed regulations and agrees that a recipient may comply with both these final regulations and FERPA. The Department does not believe that the proposed or final regulations offer a ‘‘complainant-centered’’ (or ‘‘victimcentered’’) or ‘‘respondent-centered’’ approach. The Department’s final regulations provide a fair, impartial process for both complainants and respondents. The Department acknowledges that a recipient may use, but is not required to use, a file sharing platform that restricts the parties and advisors from downloading or copying evidence. In the final regulations, the Department has removed the specific reference to such a file sharing platform to emphasize that using such a platform is discretionary and not mandatory. A recipient must provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, as described in § 106.45(b)(5)(vi). The Department also specifies in § 106.45(b)(5)(vi) that the recipient must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format. The Department neither requires nor prohibits a recipient from providing parties with a hard copy of the investigative report in § 106.45(b)(5)(vii) or any evidence obtained as part of an investigation that is directly related to the allegations raised in a formal complaint as described in § 106.45(b)(5)(vi). To clarify the Department’s position in this regard, the Department revised § 106.45(b)(5)(vi)–(vii) to allow a recipient to provide a hard copy of the evidence and investigative report to the party and the party’s advisor of choice, or to provide the evidence and investigative report in an electronic format. The Department discusses this revision in the ‘‘Section 106.45(b)(5)(vi) Inspection and Review of Evidence Directly Related to the Allegations, and Directed Question 7’’ subsection and the ‘‘Section 106.45(b)(5)(vii) An Investigative Report that Fairly Summarizes Relevant Evidence’’ subsection of the ‘‘Investigation’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. The Department does not fully understand how the provision in FERPA allowing the production of student VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 records in connection with a law enforcement action might also reduce tension between the proposed rules and FERPA. These final regulations do not directly implicate law enforcement, and it is not clear how these final regulations directly implicate or address any exemptions under FERPA that allow for the disclosure of personally identifiable information from an education record without consent in relation to a law enforcement action. The Department is not ‘‘favoring’’ due process over FERPA. As explained earlier in this section, the Department is bound by the U.S. Constitution, including the Due Process Clause in the Fifth and Fourteenth Amendment. The Department, thus, cannot administer Title IX or FERPA in a manner that deprives persons of due process of law. Changes: The Department revised § 106.45(b)(5)(vi)–(vii) to allow a recipient to provide a hard copy of the evidence and investigative report to the party and the party’s advisor of choice or to provide the evidence and investigative report in an electronic format. Comments: Many commenters thought that the proposed rules appropriately balanced student privacy with the need for students to obtain evidence during the Title IX grievance process. One commenter stated that the provisions of the proposed rules are necessary to ensure that respondents have the evidence that they need to defend themselves from false accusations, and that schools occasionally deprive respondents of relevant evidence under the guise of student privacy. Some commenters argued that because schools have had a negative track record in providing relevant evidence to respondents, it was important for the proposed rules to avoid giving schools too much flexibility in applying Title IX, which ensures that schools cannot abuse the process in order to disadvantage respondents. One commenter asserted that without the proposed rules, most parents could not in good conscience send their sons to college, given the possibility of being denied due process when defending against an accusation of sexual harassment. Discussion: The Department appreciates the commenters’ support of its proposed regulations and agrees that the grievance process in § 106.45 for formal complaints of sexual harassment provides sufficient due process protections for both complainants and respondents. Changes: None. Comments: Many commenters suggested that there was no true conflict PO 00000 Frm 00398 Fmt 4701 Sfmt 4700 between FERPA and Title IX in terms of the requirements surrounding evidence production. According to the commenters, this is because there is nothing in FERPA that prevents the parties from gaining access to the evidence that directly relates to their case, and which may be used against them in the Title IX process. One commenter stated that FERPA includes provisions that relate to the disclosure of information related to a sexual assault allegation, and the commenter cited a provision that specifically allows schools to disclose to the alleged victim of any crime of violence or rape and other sexual assaults, the final results of any disciplinary proceedings conducted by the institution against the alleged perpetrator of the offense.1567 This commenter stated that FERPA’s limits on redisclosure of information do not apply to information that institutions are required to disclose under the Clery Act.1568 The commenter also stated that institutions may not require a complainant to abide by a nondisclosure agreement in writing or otherwise in a way that would prevent the redisclosure of this information. Discussion: The Department agrees that there is no inherent conflict between these final regulations implementing Title IX, and FERPA and its implementing regulations with respect to the Title IX requirements concerning evidence production. The Department acknowledges that provisions in FERPA, e.g. 20 U.S.C. 1232g(b)(6), address the conditions permitting the disclosure, without prior written consent, to an alleged victim of a crime of violence or a nonforcible sex offense, among others, of the final results of any disciplinary proceeding conducted by an institution against the alleged perpetrator of such crime or offense with respect to such crime or offense.1569 The Department also acknowledges § 99.33(c), concerning the inapplicability of the general limitations in FERPA on the redisclosure of personally identifiable information contained in education records that the Clery Act and its implementing regulations require to be disclosed. The Department does not interpret Title IX as either requiring recipients to, or prohibiting recipients from, using a non-disclosure agreement, as long as such non-disclosure agreement does not restrict the ability of either party to discuss the allegations under 1567 20 U.S.C. 1232g(b)(6). CFR 99.33(c). 1569 The Department uses the terms ‘‘alleged victim’’ and ‘‘alleged perpetrator’’ in this section because these terms are in FERPA, 20 U.S.C. 1232g(b)(6). 1568 34 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations investigation or to gather and present relevant evidence under § 106.45(b)(5)(iii). Any non-disclosure agreement, however, must comply with all applicable laws. Changes: None. Comments: Some commenters suggested that concerns regarding the private information of complainants were either overstated or outweighed by the need to reach a fair conclusion in the Title IX process. One commenter stated that there is no way to provide adequate due process while still avoiding the discomfort complainants may feel having to review the investigative report that contains summaries of traumatic incidents which include private details about the complainant. This commenter suggested that while recipients may be allowed to redact highly sensitive information, or threaten parties with punitive action for publicly disclosing private information in the investigative report or evidence collected by the investigator, both parties need to be able to review the evidence and the investigative report. The commenter believed that exchange of evidence, and reviewing the investigative report, is necessary to provide due process for both parties. Discussion: The Department appreciates the comments in support of its proposed regulations. The Department acknowledges that sharing information may be uncomfortable and that sharing such information in a grievance process under § 106.45 is necessary to provide adequate due process to both parties. Each party should be able inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, as this evidence may be used to support or challenge the allegations in a formal complaint. Changes: None. Comments: Some commenters opposed most of the proposed rules but stated their appreciation that the proposed rules acknowledged FERPA and that schools had a duty to comply with FERPA to the extent compliance was consistent with Title IX. One commenter stated the proposed rules were workable so long as a recipient itself has sole discretion to determine what evidence is directly related to sexual harassment allegations. The commenter suggested that any process where OCR second guesses a recipient’s determination as to whether documents are directly related to the allegations raised in a formal complaint will significantly impair a recipient’s ability to provide a prompt and equitable resolution and will effectively turn VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 disputes among the recipient and the parties about evidence into Federal matters. Other commenters supported the proposed rule, noting that even in cases of private medical or behavioral information, if that information is relevant to an allegation of sexual harassment, then the party needing access to the records should have it. Discussion: The Department appreciates the comments in support of these final regulations. A recipient has some discretion to determine whether evidence obtained as part of an investigation is directly related to allegations raised in a formal complaint as described in § 106.45(b)(5)(vi), and the Department is required to enforce both FERPA and Title IX. The Department previously noted that the ‘‘directly related to’’ requirement in § 106.45(b)(vi) aligns with FERPA. For example, the regulations implementing FERPA define education records as records that are ‘‘directly related to a student’’ pursuant to § 99.3. Accordingly, the Department in enforcing both FERPA and Title IX is well positioned to determine whether records constitute education records and also whether records are directly related to the allegations in a formal complaint. The Department has a responsibility to administer both FERPA and Title IX and cannot shirk its responsibility. If a party files a complaint that the recipient did not provide the party with an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, then the Department will investigate and must determine whether the recipient complied with § 106.45(b)(5)(vi). In the final regulations, the Department has clarified in § 106.45(b)(5)(i) that a recipient cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained, in connection with provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so for the grievance process under § 106.45(b).1570 This provision prevents 1570 While the Department based this regulatory provision on the exemption for treatment records in the definition of the term ‘‘education records,’’ as set forth in FERPA at 20 U.S.C. 1232g(a)(4)(B)(iv), we made two minor modifications to the FERPA exemption to better align the provision in these PO 00000 Frm 00399 Fmt 4701 Sfmt 4700 30423 the recipient from accessing, considering, disclosing, or otherwise using such records without the party’s knowledge for a grievance process under § 106.45(b). If the party would like the recipient to access, consider, disclose, or otherwise use such records in a grievance process under § 106.45(b), then the party must give the recipient voluntary, written consent to do so. If the party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a ‘‘parent,’’ as defined in 34 CFR 99.3. Absent such voluntary, written consent, a recipient may not access, consider, disclose, or otherwise use such records in a grievance process under § 106.45(b). If a party provides such voluntary, written consent and if such records are directly related to the allegations raised in a formal complaint, then the recipient must provide both parties an equal opportunity to inspect and review the records pursuant to § 106.45(b)(5)(vi). Changes: The Department clarified in § 106.45(b)(5)(i) that a recipient cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or final regulations with the purpose of protecting the privacy of such treatment records in a grievance process under § 106.45, rather than the purpose of the exemption for treatment records in FERPA, which is to disallow college students from being able ‘‘directly to inspect’’ such treatment records, although allowing college students to have ‘‘a doctor or other professional of their choice inspect their records.’’ ‘‘Joint Statement in Explanation of the Buckley/Pell Amendment [to FERPA],’’ 120 Cong. Rec. 39858, 39862 (Dec. 13, 1974). For this reason, we removed the limitation in the FERPA definition of treatment records narrowing the applicability of the exemption to students who are 18 years of age or older or in attendance at an institution of postsecondary education because this provision should apply to any party in a grievance process under § 106.45, regardless of that party’s age. We also revised the phrase used in the FERPA exemption, ‘‘made, maintained, or used only in connection with the provision of treatment to the student,’’ to ‘‘made and maintained in connection with the provision of treatment to the party’’ so that this provision will apply where a recipient has the discretion under FERPA to use treatment records for other than treatment purposes, such as billing or litigation purposes. Thus, under these final regulations a recipient cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so for a grievance process under § 106.45. Also, if the party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3 (FERPA regulations), then the recipient must obtain the voluntary, written consent of a ‘‘parent,’’ as defined in 34 CFR 99.3. E:\FR\FM\19MYR2.SGM 19MYR2 30424 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent. If the party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a ‘‘parent,’’ as defined in 34 CFR 99.3. Comments: One commenter cautioned the Department that the proposed rules would not garner as many supportive comments as critical comments, but that the Department should pay more attention to reason and logic, as opposed to sheer numbers. The commenter argued that opponents of the proposed rules are better funded, and that there is less of a stigma to openly criticizing the Department than there is in saying that one was accused of sexual harassment, even if wrongly accused, and openly supporting the Department’s proposed rules. Another commenter argued that depriving respondents of relevant evidence only created more victims, not fewer. Discussion: The Department appreciates the commenters’ perspectives. Changes: None. Comments: Several commenters opposed the requirement in § 106.45(b)(5)(v) (written notice of investigative interviews, meetings, and hearings) because they stated it generally conflicts with FERPA. One commenter suggested adding a FERPA compliance clause to § 106.45(b)(5)(v) due to concerns about student privacy. One commenter argued specifically that the requirement in § 106.45(b)(5)(v) that recipients disclose the identities of all the parties’ conflicts with FERPA. One commenter specifically argued that requiring a recipient to disclose all sanctions imposed on the respondent conflicts with the school’s responsibilities under FERPA. Several commenters specifically suggested that the Department remove from the documentation of the recipient’s response to a Title IX complaint any requirement to include information regarding remedies and supportive measures accessed by a complainant who is a student. Several commenters stated that the parties should not be informed of the remedies given to the complainant, or to the disciplinary sanctions imposed on the respondent, in cases where the allegation involves assault, stalking, dating violence, or other violent crimes. Not only does disclosure of these items violate FERPA, but it would be troubling, for instance, to inform a respondent that after they were found VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 responsible, the complainant was given remedies like moving to other classes, counseling, and so on. Commenters also asserted that the respondent who is found responsible should not have any knowledge about what safety measures the school is taking to protect the complainant, since those very measures will be undermined if the respondent learns of them. In support of these arguments, some commenters cited the Clery Act, arguing that it requires less than the proposed rule, and that the final regulations should map Clery specifically. These commenters asserted that when such results become final, § 668.46(k)(2)(v) of the Clery Act regulations further clarify that the ‘‘result’’ must include any sanctions and rationale for results and sanction, notwithstanding FERPA. Discussion: The Department disagrees that § 106.45(b)(5)(v) inherently or directly conflicts with FERPA. A recipient should interpret Title IX and FERPA in a manner to avoid any conflicts. To the extent that there may be rare and unusual circumstances, where a true conflict between Title IX and FERPA exists, the Department includes a provision in § 106.6(e) to expressly state that the obligation to comply with these final regulations under Title IX is not obviated or alleviated by the FERPA statute or regulations. Section 106.45(b)(5)(v) requires recipients to provide to the party whose participation is invited or expected written notice of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate in the proceeding. The Department notes that this provision is similar to the provision in the Department’s regulations, implementing the Clery Act, which requires timely notice of meetings at which the accuser or accused, or both, may be present and provides timely and equal access to the accuser, the accused, and appropriate officials to any information that will be used during informal and formal disciplinary meetings and hearings under § 668.46(k)(3)(1)(B). The Department has not interpreted its regulations, implementing the Clery Act, to violate FERPA and will not interpret similar regulations in these final regulations to violate FERPA. There is no need to add a FERPA compliance clause in this particular section, as a recipient is always required to comply with all applicable laws. Adding a FERPA compliance clause would contradict the General Education Provisions Act (GEPA), 20 U.S.C. 1221(d), which is reflected in § 106.6(e). GEPA provides in relevant part: PO 00000 Frm 00400 Fmt 4701 Sfmt 4700 ‘‘Nothing in this chapter shall be construed to affect the applicability of title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, title V of the Rehabilitation Act of 1973, the Age Discrimination Act, or other statutes prohibiting discrimination, to any applicable program.’’ 1571 Since at least 2001, the Department has interpreted ‘‘this provision to mean that FERPA continues to apply in the context of Title IX enforcement, but if there is a direct conflict between the requirements of FERPA and the requirements of Title IX, such that enforcement of FERPA would interfere with the primary purpose of Title IX to eliminate sexbased discrimination in schools, the requirements of Title IX override any conflicting FERPA provisions.’’ 1572 Section 106.6(e) reflects the Department’s longstanding interpretation of GEPA and provides that the ‘‘obligation to comply with this part is not obviated or alleviated by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99.’’ A party such as a complainant or respondent must know who the other parties in a formal complaint are in order to support or challenge the allegations in the formal complaint. With respect to recipients that are State actors, constitutional due process would require as much. As previously stated, the Department interprets these final regulations in a manner that will not require a recipient to violate a person’s constitutional due process rights, whether the recipient is private or public. Additionally, FERPA and its implementing regulations define the term ‘‘education records’’ as meaning, with certain exceptions, records that are directly related to a student and maintained by an educational agency or institution, or by a party acting for the agency or institution.1573 The Department previously stated: ‘‘Under this definition, a parent (or eligible student) has a right to inspect and review any witness statement that is directly related to the student, even if that statement contains information that is also directly related to another student, if the information cannot be segregated and redacted without destroying its meaning.’’ 1574 The Department made this statement in response to comments regarding 1571 20 U.S.C. 1221(d). Guidance at vii. 1573 20 U.S.C. 1232g(a)(4); 34 CFR 99.3. 1574 U.S. Dep’t. of Education, Office of Planning, Evaluation, and Policy Development, Final Regulations, Family Educational Rights and Privacy, 73 FR 74806, 74832–33 (Dec. 9, 2008). 1572 2001 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations impairing due process in student discipline cases in its notice-andcomment rulemaking to promulgate regulations to implement FERPA.1575 Written notices under § 106.45(b)(5)(v) may pertain to students who are complainants or respondents, in which case they would need to know who is being interviewed as a witness in an investigation of the formal complaint of harassment. FERPA, 20 U.S.C. 1232g(b)(6), and its implementing regulations, 34 CFR 99.31(a)(13)–(a)(14) and 34 CFR 99.39, address the conditions permitting the disclosure, without prior written consent, to an alleged victim of a crime of violence or a nonforcible sex offense, among others, of the final results of any disciplinary proceeding conducted by an institution against the alleged perpetrator of such crime or offense with respect to such crime or offense. Similarly, the Clery Act, 20 U.S.C. 1092(g)(8)(B)(ii), and its implementing regulations, 34 CFR 668.46(k)(3)(iv), require an institution to provide the result of a proceeding, including any sanctions imposed by the institution, to both parties. The Department believes that both parties should receive the same information about the result as to each allegation, including a determination regarding responsibility, the reasons for the determination, any sanctions the recipient imposes on the respondent, and whether remedies will be provided by the recipient to the complainant, under § 106.45(b)(7)(ii)(E) as revised in the final regulations.1576 1575 Id. 1576 The Department’s position is consistent with the 2001 Guidance, that FERPA does not conflict with the Title IX requirement ‘‘that the school notify the harassed student of the outcome of its investigation, i.e., whether or not harassment was found to have occurred, because this information directly relates to the victim.’’ 2001 Guidance at vii. The Department, however, departs from the 2001 Guidance inasmuch as that guidance document stated, ‘‘FERPA generally prevents a school from disclosing to a student who complained of harassment information about the sanction, or discipline imposed upon a student who was found to have engaged in that harassment.’’ Id. The Department acknowledged in the 2001 Guidance that exceptions ‘‘include the case of a sanction that directly relates to the person who was harassed (e.g., an order that the harasser stay away from the harassed student), or sanctions related to offenses for which there is a statutory exception, such as crimes of violence or certain sex offenses in postsecondary institutions.’’ Id. at fn. 3. Through these final regulations, the Department takes the position that sanctions always directly impact the victim, as to sanctions imposed for any conduct described in § 106.30 as ‘‘sexual harassment,’’ irrespective of whether the sanction is for a crime of violence or certain sex offenses, for quid pro quo sexual harassment, or for the Davis definition of sexual harassment in § 106.30. Irrespective of whether the sexual harassment rises to the level of a crime of violence, the sanction directly relates to the victim who should know what to expect after VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 The Department believes that the result as to each allegation in a formal complaint of sexual harassment concerns both parties and clarifies in the final regulations that the result includes both sanctions and whether remedies will be provided. The result of each determination, including listing any sanctions and stating whether remedies will be provided, should help ensure that no person is excluded from participation in, denied the benefits of, or subjected to discrimination under any education program or activity receiving Federal financial assistance without unnecessarily disclosing to the respondent the details of remedies provided to the complainant. The details of remedies provided to the complainant remain part of the complainant’s education record and not the respondent’s education record, unless the remedy also imposes requirements on the respondent. We acknowledge that sanctions may at times overlap with remedies. For example, the recipient may impose a unilateral no-contact order on the respondent as part of a sanction that also may constitute a remedy. Under the final regulations, the written determination should list the one-way no-contact order as a sanction against the respondent and state that the recipient will provide remedies to the complainant. Thus, even where the nocontact order constitutes both a sanction and a remedy, the written determination would only list the measure insofar as it constitutes a sanction, preserving as much confidentiality as possible around the particular nature of a complainant’s remedies. By way of further example, if a recipient wishes to change the housing arrangement of the complainant as part of a remedy, the written determination should simply state that remedies will be provided to the complainant; the complainant would then communicate separately with the Title IX Coordinator to discuss remedies,1577 and the decision to change the complainant’s housing arrangement as part of a remedy would not have been disclosed to the the conclusion of the grievance process. For example, the victim should know whether the perpetrator was expelled, or whether the perpetrator was suspended for a period of time, as such information will inevitably impact the victim. The sanction represents part of the recipient’s response to addressing sexual harassment, and the victim should know how the sexual harassment which the victim suffered, was addressed. 1577 To clarify this, the final regulations additionally revise § 106.45(b)(7)(iv) to state that the Title IX Coordinator is responsible for the effective implementation of remedies. Thus, where a written determination states that remedies will be provided, the complainant may contact the Title IX Coordinator to discuss the nature and implementation of such remedies. PO 00000 Frm 00401 Fmt 4701 Sfmt 4700 30425 respondent in the written determination. That remedy (which does not directly affect the respondent) must not be disclosed to the respondent. Changes: The Department revised § 106.45(b)(7)(ii)(E) to state that the written determination must include any sanctions the recipient imposes on the respondent, and whether remedies designed to restore or preserve equal access to the recipient’s education program or activity will be provided by the recipient to the complainant. Comments: Commenters objected to the proposed rule, stating that Title IX should not control over FERPA, but vice versa—FERPA should take precedence over Title IX in cases of a conflict. Some commenters suggested that the 2001 Guidance more effectively handled these types of FERPA issues, and better avoided blanket statements about whether FERPA ought to be superseded by Title IX. One suggested an express statement that Title IX overrides FERPA, arguing that the 2001 Guidance states as much unambiguously. Commenters stated that the proposed rules exacerbate the conflict between FERPA and Title IX. Several commenters stated that the final regulations ought to specify that complainants have the right to keep their education records private. Some commenters even stated that the Department lacked the authority to tell schools that Title IX controls over FEPRA, and that schools have an independent duty to comply with FERPA. Some commenters suggested removing any mention of FERPA, since it might confuse recipients to mention it, but say that Title IX supersedes FERPA in the case of a conflict. Other commenters asserted it might be confusing because FERPA does not apply to the types of information likely to be shared under the grievance procedures. These commenters contended that the proposed rules were not ‘‘trauma-informed,’’ inasmuch as they are overly focused on addressing the minor problem of false accusations, as opposed to remedying sexual harassment. Many commenters argued that FERPA does not authorize one student—or an employee, for that matter—to review the education records of a student merely because the student complains of sexual harassment. One commenter expressed concern that the proposed rules would require the sharing of student records with employees who would otherwise not be authorized to view records without the student’s consent. Some commenters suggested that the preamble’s justification for records that relate to a student being construed as an exception to FERPA is wrong. E:\FR\FM\19MYR2.SGM 19MYR2 30426 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Commenters contended that not every document that relates to a complainant or to an incident relates to the respondent. Schools, if they comply with the rule, asserted commenters, will be held accountable for their FERPA violations. Commenters stated the Department should reconsider whether the parties ought to be entitled to physical, mental, and academic performance records of other students. Other commenters argued that the proposed rules would force schools to violate State law, for which they also have an independent legal duty to comply. For instance, commenters asserted that the Department cannot require schools to provide recordings that were obtained in violation of a State’s two-party consent law for recordings. Commenters cited Florida and Washington law for these arguments. They argued that Washington State protects IEPs (individualized education plans) and Section 504 plans from production, but the proposed regulations would likely allow the production of these records in some cases. One commenter asserted that Florida law protects records related to sexual harassment until a finding is made, so the proposed rules will force schools to violate Florida law. A few commenters proposed that the Department should indicate whether it thinks that Title IX reports and files should be subject to a public records request, and if so, the scope and extent of such requests. Discussion: The Department disagrees that § 106.45(b)(5)(v) inherently or directly conflicts with FERPA. A recipient should interpret Title IX and FERPA in a manner to avoid any conflicts. To the extent that there may be unusual circumstances, where a true conflict between Title IX and FERPA may exist (such as a student’s formal complaint against an employee), the Department includes a provision in § 106.6(e) to expressly state that the obligation to comply with these final regulations under Title IX is not obviated or alleviated by the FERPA statute or regulations. In addressing conflicts between FERPA and Title IX, the Department in the Preamble of the 2001 Guidance states: In 1994, as part of the Improving America’s Schools Act, Congress amended the General Education Provisions Act (GEPA)—of which FERPA is a part—to state that nothing in GEPA ‘‘shall be construed to affect the applicability of . . . title IX of the Education Amendments of 1972 . . . .’’ The Department interprets this provision to mean that FERPA continues to apply in the context of Title IX enforcement, but if there is a direct conflict between requirements of VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 FERPA and requirements of Title IX, such that enforcement of FERPA would interfere with the primary purpose of Title IX to eliminate sex-based discrimination in schools, the requirements of Title IX override any conflicting FERPA provisions.1578 The General Education Provisions Act (GEPA), of which FERPA is a part, states: ‘‘Nothing in this chapter shall be construed to affect the applicability of title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, title V of the Rehabilitation Act of 1973, the Age Discrimination Act, or other statutes prohibiting discrimination, to any applicable program.’’ 1579 The legislative history underlying this provision in GEPA demonstrates that Congress did not intend for GEPA to limit the implementation or enforcement of the Civil Rights Act of 1964. There is not much legislative history with respect to the 1994 amendment to GEPA,1580 adding Title IX, but the legislative history with respect to the 1974 amendment to GEPA,1581 concerning Title VI of the Civil Rights Act, is instructive. The legislative history reveals the Senate was concerned that certain provisions in GEPA may limit the Civil Rights Act of 1964.1582 Consequently, the Senate specifically stated that ‘‘in order to make clear that the provisions in the [GEPA] do not conflict with the Civil Rights Act of 1964, subparagraph (B) expressly states that such Civil Rights Act is not an applicable statute and therefore subject to limitations on interpretations of such a statute which may occur in [GEPA].’’ 1583 The Senate’s proposed amendment was slightly revised in the conference committee, but there was no mention of any change in purpose or scope. Specifically, the Conference Report from the House notes that the final amendments to GEPA include language that expressly addresses the conflict between GEPA and Title VI.1584 This Conference Report provides in relevant part: The Senate amendment, but not the House bill, clarifies that for the purposes of the General Education Provisions Act, the Civil Rights Act shall not be considered an applicable statute, but shall continue to have full force and effect over education programs. . . . The conference substitute 1578 2001 Guidance at vii. U.S.C. 1221(d). 1580 The 1994 amendment to GEPA was part of § 211, title II of Improving America’s Schools Act, Public Law 103–382, 108 Stat 3518. 1581 The 1974 amendment to GEPA was part of § 505(a)(1), title V of the Education Amendments of 1974, Public Law 93–380, 88 Stat 484. 1582 S. Rep. No. 93–763, at 233 (1974). 1583 Id. 1584 H.R. Rep. No. 93–1211, at 177 (1974). 1579 20 PO 00000 Frm 00402 Fmt 4701 Sfmt 4700 contains these provisions of the Senate amendment, except that the provision relating to the Civil Rights Act of 1964 states that nothing in the General Education Provisions Act shall be construed to affect the applicability of such [Civil Rights Act of 1964] to any program subject to the provisions of the General Education Provisions Act.1585 The legislative history thus supports the Department’s 2001 interpretation that Congress intended the Civil Rights Act of 1964 to override GEPA, which includes FERPA, if there was a direct conflict between the two statutes. When Congress amended GEPA to also include Title IX in the same section and context as Title VI, Congress presumably intended that Title IX, like Title VI, override GEPA, including FERPA, if there was a direct conflict. The Department’s position is consistent with its 2001 Guidance, and the Department is not departing from this position. The Department has the authority to enforce both Title IX under 20 U.S.C. 1681 and 34 CFR part 106 and FERPA under 20 U.S.C. 1232g and 34 CFR part 99. Whether FERPA applies to a particular record is a fact-specific determination that FERPA and its implementing regulations address, not these final regulations. The Department disagrees that the proposed regulations are not ‘‘traumainformed’’ insofar as the Department recognizes and acknowledges the traumatic impact of sexual harassment and aims to hold recipients accountable for legally binding obligations throughout these final regulations in part because the experience of sexual harassment can traumatize victims in a way that jeopardizes the victim’s equal access to education. The Department disagrees that these final regulations are overly focused on addressing false allegations instead of remedying sexual harassment. The Department notes that under § 106.44(a), the Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. Accordingly, complainants have more control over the process to address their allegations of sexual harassment. As previously explained, FERPA and its implementing regulations define the term ‘‘education records’’ as meaning, 1585 Id. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations with certain exceptions, records that are directly related to a student and maintained by an educational agency or institution, or by a party acting for the agency or institution.1586 The Department previously stated: ‘‘Under this definition, a parent (or eligible student) has a right to inspect and review any witness statement that is directly related to the student, even if that statement contains information that is also directly related to another student, if the information cannot be segregated and redacted without destroying its meaning.’’ 1587 The Department’s statement was made in response to a comment about FERPA impairing due process in student disciplinary proceedings. The Department does not think that evidence obtained as part of an investigation pursuant to these final regulations that is directly related to the allegations raised in a formal complaint can be segregated and redacted because the evidence directly relates to allegations by a complainant against a respondent and, thus, constitutes an education record of both the complainant and a respondent. A formal complaint that raises allegations against a student-respondent is directly related to that student. The Department is bound by the U.S. Constitution and must interpret Title IX and FERPA in a manner that does not violate a person’s due process rights, including notice and an opportunity to respond. If a complainant or respondent provides sensitive records such as medical records as part of an investigation, then the parties must have an equal opportunity to inspect and review information that constitutes evidence directly related to the allegations raised in a formal complaint. If some of the information in the medical records is not directly related to the allegations raised in a formal complaint, then these final regulations do not require a recipient to share the information that is not directly related to the allegations raised in the formal complaint. As previously explained, the Department has clarified in § 106.45(b)(5)(i) that a recipient cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with provision of treatment to the party, unless the recipient obtains 1586 20 1587 73 U.S.C. 1232g(a)(4); 34 CFR 99.3. FR 74806, 74832–33 (Dec. 9, 2008). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 that party’s voluntary, written consent to do so for the grievance process under § 106.45(b). Accordingly, a recipient would not have access to a party’s medical records unless that party gave the recipient voluntary, written consent to do so for a grievance process under § 106.45(b). If the party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a ‘‘parent,’’ as defined in 34 CFR 99.3. The Department is not persuaded that these final regulations require a recipient to violate State law. If a recipient knows that a recording is unlawfully created under State law, then the recipient should not share a copy of such unlawful recording. The Department is not requiring a recipient to disseminate any evidence that was illegally or unlawfully obtained. Similarly, the Florida laws that the commenter cites, Florida Statutes §§ 119.071(2)(g)(1) and 1012.31(3)(a)(1) concern public disclosure of records under sunshine laws, and the Department is not requiring that a recipient widely disseminate public records upon request. The Department’s requirement concerns disclosure solely to the other party to provide sufficient notice and an opportunity to respond. Similarly, the Department takes no position in these final regulations on whether records generated during a Title IX grievance process must, or should, become subject to disclosure under State sunshine laws. The Department also is not regulating on FERPA in this rulemaking and takes no position in this rulemaking as to FERPA’s potential restrictions on the nonconsensual disclosure of student’s education records in the context of sunshine law. Sunshine laws vary among states. Additionally, the manner in which a request under State sunshine laws is handled depends on the unique context and circumstances of the particular request. A recipient also would not be required to release an IEP or Section 504 plan that is in the recipient’s possession. A recipient is required to provide any evidence ‘‘obtained as part of the investigation that is directly related to the allegations raised in a formal complaint’’ under § 106.45(b)(5)(vi); however, the final regulations revise § 106.45(b)(5)(i) to restrict a recipient from accessing, considering, disclosing, or otherwise using a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting PO 00000 Frm 00403 Fmt 4701 Sfmt 4700 30427 in that capacity, and which are made and maintained in connection with provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so for a grievance process under § 106.45(b). If the party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a ‘‘parent,’’ as defined in 34 CFR 99.3. When a party offers an IEP or Section 504 plan as part of the evidence that a recipient should consider, or has granted the recipient consent to use those records in a Title IX grievance process, then the other party should be able to inspect and review this evidence, if that evidence is directly related to the allegations raised in a formal complaint. Changes: None. Comments: Several commenters argued that the proposed rules would put schools in direct conflict with FERPA, and that FERPA does not maintain an exception that would be applicable for all Title IX grievance proceedings. Some noted that there is no express carve-out under FERPA for such proceedings, and that schools will quickly be caught trying to navigate the legal boundaries of their obligations. The need to hire legal counsel to figure out these issues will be immediate, asserted some commenters, and schools will have difficulty believing that they really ought to be reviewing and potentially sharing with other students one student’s medical records, therapy notes, or documents that contain information about prior sexual history. One commenter argued that there is an internal contradiction, given that supportive measures are supposed to remain confidential, with § 106.45(b)(7), the provision regarding disclosure of the results of grievance process.1588 One commenter stated that the proposed rules leave ambiguity about whether FERPA will apply to conduct that is not covered by these proposed regulations under Title IX because it does not rise to the level of the definition of sexual harassment in § 106.30, which this commenter characterizes as narrower than the Department’s past definition. Another commenter stated that the proposed rules give students more rights than does FERPA, since time frames for production are shorter, which the commenter believed to be bad policy. Several commenters stated that schools need flexibility on which information is private and which information is relevant to a claim of sexual harassment. 1588 Commenter E:\FR\FM\19MYR2.SGM 19MYR2 cited: § 106.45(b)(7)(ii)(E). 30428 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Discussion: As explained above, the Department disagrees that there is any inherent conflict between FERPA and these final regulations, which address sexual harassment under Title IX. The Department administers both Title IX and FERPA and expressly provides in § 106.6(e) that the obligation to comply with Part 106 of Title 34 of the Code of Federal Regulations ‘‘is not obviated or alleviated by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99.’’ The Department offers technical assistance and will address compliance with FERPA and Title IX, and recipients may consult with their own counsel about compliance with various laws. As the Department administers both FERPA and Title IX, the Department will not interpret compliance with its regulations under Title IX to violate requirements in its regulations under FERPA. If a party (or the parent of a party) gives voluntary, written consent to a recipient under § 106.45(b)(5) to use the party’s medical records that are directly related to the allegations raised in a formal complaint as part of its investigation, then the recipient must provide both parties with an equal opportunity to inspect and review such evidence. If some of the information in the medical records is not directly related to the allegations raised in a formal complaint, then these final regulations do not require a recipient to share the information that is not directly related to the allegations raised in the formal complaint. With respect to evidence of prior sexual behavior, the Department revised § 106.45(b)(6) to prohibit evidence about the complainant’s sexual predisposition or prior sexual behavior unless such evidence is offered to prove that someone other than the respondent committed the conduct alleged by the complainant or to prove consent. If a recipient obtains evidence about a party’s sexual predisposition or prior sexual behavior that is directly related to the allegations raised in a formal complaint, the recipient should allow both parties an equal opportunity to inspect and review such evidence to be able to prepare to respond to it or object to its introduction in the investigative report or at the hearing. There is no internal contradiction that supportive measures should be confidential and that the result of a grievance process under § 106.45 should be made known to both parties. A complainant must be offered and may receive supportive measures irrespective of whether the complainant files a formal complaint, and the supportive measures that a complainant VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 or a respondent receives typically relate only to them and must be kept confidential pursuant to § 106.30. The definition of supportive measures in § 106.30 clarifies that it may be necessary to notify the other party of a supportive measure if the supportive measure requires both the complainant and the respondent’s cooperation (i.e., mutual restrictions on contact between the parties). The result at the end of a grievance process under § 106.45, including any sanctions and whether remedies will be provided to a complainant, impact both parties and can, and should, be part of the written determination simultaneously sent to both parties. The complainant should know what sanctions the respondent receives because knowledge of the sanctions may impact the complainant’s equal access to the recipient’s education program and activity. The Department revised § 106.45(b)(7)(ii)(E) to require a recipient to state whether remedies will be provided to the complainant but not what remedies will be provided. Thus, the recipient may note in the written determination only that a complainant will receive remedies but should not note in the written determination that the recipient, for example, will change the complainant’s housing arrangements as part of a remedy. A respondent should know whether the recipient will provide remedies to the complainant because the respondent should be aware that the respondent’s actions denied the complainant equal access to the recipient’s education program or activity. Similarly, the parties should both know the rationale for the result as to each allegation, including a determination regarding responsibility, as provided in § 106.45(b)(7)(ii)(E), because due process principles require the recipient to provide a basis for its determination. The rationale also will reveal whether there was any unlawful bias such that there may be grounds for appeal under § 106.45(b)(8)(i)(C). As to the commenter’s question about the applicability of FERPA to conduct that is not defined in § 106.30, FERPA applies to all education records as defined in 20 U.S.C. 1232g(a)(4)(A) and 34 CFR 99.3. Whether FERPA applies does not depend on whether the conduct at issue satisfies the definition defined in § 106.30. Accordingly, there is no inherent conflict between FERPA, and these final regulations addressing sexual harassment under Title IX. The Department does not believe that these final regulations give students more rights than FERPA due to short time frames for production. The Department acknowledges that under 20 U.S.C. 1232g(a)(1)(A) and § 99.10(b) in PO 00000 Frm 00404 Fmt 4701 Sfmt 4700 the FERPA regulations, an educational agency or institution must comply with a request for access to covered education records within a reasonable period of time, but not more than 45 days after it has received the request. FERPA, however, was only intended to establish a minimum Federal standard for access to education records 1589 and thus other laws may require access to education records in a shorter time frame than FERPA does. A recipient, moreover, has an obligation to include reasonably prompt time frames for the conclusion of a grievance process as described in § 106.45(b)(1)(v). Taking 45 days to respond to a request for access to records would not provide a reasonably prompt time frame for the conclusion of a grievance process. The ten-day time frame in these final regulations governs the minimum length of time that the parties have to submit a written response to the recipient after the recipient sends to each party and the party’s advisor, if any, the evidence subject to inspection and review. These final regulations do not require a recipient to obtain evidence within a specific time frame, although a recipient is required to include reasonably prompt time frames for the conclusion of a grievance process pursuant to § 106.45(b)(1)(v) and to respond promptly under § 106.44(a). Additionally, the school has some discretion to determine what evidence is directly related to the allegations in a formal complaint. Changes: None. Comments: Some commenters expressed concern about the fact that private information would be readily shared with another party. One commenter asserted that the proposed regulations facilitate—rather than discourage—retaliation by having an opposing party learn confidential information about the complainant. One commenter argued that giving students access to other students’ files would lead to bullying and intimidation. Commenters suggested that even if one minor portion of a document is relevant—perhaps a medical examination that occurred on the night of an alleged rape—the rest of the medical information may include a wealth of information that is totally irrelevant to the complaint, and should be redacted. A commenter argued that some documents may involve nonparties such that disclosing a complainant’s documents to a respondent could reveal private 1589 ‘‘Joint Statement in Explanation of the Buckley/Pell Amendment [to FERPA],’’ 120 Cong. Rec. 39858, 39863 (Dec. 13, 1974). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations information that has nothing to do with the complainant. The commenter suggested that the Department modify the proposed regulations to insist that schools redact irrelevant information from information produced to the parties. Similarly, commenters suggested that the disadvantage to the privacy issues would always fall, asymmetrically, on complainants. These commenters stated respondents will typically have little information in their student file that is relevant to the accusation—no rape kits, no medical or counseling information, etc.—so providing student files is asymmetrically damaging to a complainant. Many commenters contended that there will be a chilling effect on studentcomplainants obtaining counseling services, if counseling records must be disclosed to a respondent. Some commenters stated that even victims who do report will often dismiss their own complaints once they realize that there is a chance of being humiliated by their records being disclosed to their harasser, and for those records to go public. One commenter stated that this effect would be particularly damaging to women of color, arguing that these women report sexual harassment at very low rates, and would be deterred from reporting if their privacy were at stake. Some contended that even studentwitnesses will be unwilling to come forward, believing that their student records might also be subject to discovery by the respondent. These commenters stated that studentwitnesses will be subject to threats and intimidation, as well as potential witness tampering. Discussion: The Department disagrees that these final regulations will lead to retaliation. As a precaution, the Department adopts a provision in § 106.71 to expressly prohibit retaliation to address the commenter’s concerns. This retaliation provision is broad and would prohibit threats and intimidation as well as interfering with potential witnesses. The Department also disagrees that the parties will be able to obtain information that is unrelated to the allegations raised in a formal complaint. Section 106.45(b)(5)(vi) only requires a recipient to provide both parties an equal opportunity to inspect and review any evidence that is directly related to the allegations raised in a formal complaint as part of the investigation. Accordingly, if there is information in a medical record that is not directly related to the allegations raised in a formal complaint, these final regulations do not require a recipient to share such VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 information. Consistent with FERPA, these final regulations do not prohibit a recipient from redacting personally identifiable information from education records, if the information is not directly related to the allegations raised in a formal complaint. Accordingly, the Department does not need to revise the final regulations to specifically address redactions. A recipient, however, should be judicious in redacting information and should not redact more information than is necessary under the circumstances so as to fully comply with obligations under § 106.45. The Department disagrees that its final regulations asymmetrically affect complainants, as respondents may have sensitive information too. For example, the recipient may obtain information from a criminal investigation of a respondent. Additionally, the rape shield provisions in § 106.45(b)(6) apply only to complainants. The Department disagrees that these final regulations will have a chilling effect on reporting. A complainant is not required to submit counseling records to a recipient as part of an investigation. If the complainant does not want a respondent to inspect and review any counseling records that are directly related to allegations raised in a formal complaint, then the complainant is not required to release such counseling records to the recipient under § 106.45(b)(5)(i). (The Department notes that the same is true for respondents.) These final regulations do not foster complainants or respondents being humiliated and certainly do not result in their records being made public. The recipient is simply giving both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint so that each party can meaningfully respond to the evidence prior to the conclusion of the investigation. This provision is critical for a complainant to provide evidence in support of allegations and for a respondent to provide evidence to challenge allegations. This provision also allows each party an opportunity to meaningfully respond to the evidence that is directly related to the allegations. The Department disagrees that these final regulations, including the provision about an equal opportunity to inspect and review any evidence, will result in increased harm to women of color. These final regulations apply to all persons, irrespective of race, national origin, or color. Some commenters suggested that respondents who are persons of color have been more severely impacted by the lack of due PO 00000 Frm 00405 Fmt 4701 Sfmt 4700 30429 process protections in a grievance process. These final regulations provide everyone the same fair and impartial grievance process described in § 106.45. Changes: The Department adopts a provision in § 106.71 to expressly prohibit retaliation. Comments: Some commenters were not concerned about privacy issues for respondents who have been found responsible for sexual harassment. Some suggested that if a student is found responsible, that finding should follow a student if they try to enroll in a new school so as to help keep students safe in the new school. Some commenters asserted using FERPA to protect these students is unfair and endangers students at other schools when respondents who have been found responsible transfer schools. Other commenters stated that the final regulations should provide that a student’s disciplinary measures cannot be conveyed to another college under FERPA, so as to avoid destroying their lives by having a finding of responsibility follow them to other schools. Discussion: FERPA and its implementing regulations, 20 U.S.C. 1232g(b)(6) and 34 CFR 99.31(a)(13), 99.31(a)(14), and 99.39, address the conditions permitting the disclosure, without prior written consent, to an alleged victim of a crime of violence or a nonforcible sex offense and to the general public of the final results of any disciplinary proceeding conducted by an institution against the alleged perpetrator of such crime or offense with respect to such crime or offense. Recipients may have the discretion to disclose, without prior written consent, personally identifiable information from education records of studentrespondents who have been found responsible for a violation of Title IX to other third parties under other exceptions to consent in FERPA. The Department notes that such disclosures of personally identifiable information are permissive and not mandatory under FERPA, and the Department takes no position in these final regulations as to whether a recipient should disclose any personally identifiable information under FERPA. For example, an exception in FERPA and its implementing regulations at 20 U.S.C. 1232g(b)(1)(B) and 34 CFR 99.31(a)(2) and 99.34 permits a school to disclose, without prior, written consent, personally identifiable information contained in a student’s education records to another school in which the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure is for purposes E:\FR\FM\19MYR2.SGM 19MYR2 30430 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations related to the student’s enrollment or transfer. The sending school may make the disclosure if it has included in its annual notification of FERPA rights a statement that it forwards education records in such circumstances. Otherwise, the sending school must make a reasonable attempt to notify the parent or eligible student in advance of making the disclosure, unless the parent or eligible student has initiated the disclosure. The school also must provide a parent or an eligible student with a copy of the records that were released, if requested by the parent or eligible student, and an opportunity to seek to amend the education records. FERPA and its implementing regulations also provide that an educational agency or institution may include and disclose, without prior, written consent, appropriate information in a student’s education records concerning disciplinary information taken against such student for conduct that posed a significant risk to the safety or well-being of that student, other students, or other members of the school community to teachers and school officials, within the agency or institution or in other schools, who have legitimate educational interests in the behavior of the student.1590 Similarly, the Clery Act, 20 U.S.C. 1092(g)(8)(B)(ii), and its implementing regulations, 34 CFR 668.46(k)(3)(iv), require an institution to provide the result of a proceeding, including any sanctions imposed by the institution, to both parties. In this manner, a recipient has discretion as to whether to share information with another school about a respondent. The Department does not regulate what information schools must share when a student transfers to a different school and declines to do so here. Requiring institutions to share information goes beyond the mandate of Title IX to prohibit discrimination on the basis of sex in a particular recipient’s education program or activity. Recipients may share such information as long as doing so is permissible under other applicable Federal, State, and local laws. 1590 20 U.S.C. 1232g(h) and 34 CFR 99.36(b). As explained in the ‘‘Section 106.44(c) Emergency Removal’’ subsection in the ‘‘Additional Rules Governing Recipients’ Response’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment,’’ section of this preamble, the Department revised § 106.44(c), which concerns emergency removal, to better align with the disclosure, without prior written consent, of personally identifiable information from education records in a health and safety emergency under FERPA and its implementing regulations. Compare § 106.44(c) with 20 U.S.C. 1232g(h) and 34 CFR 99.36. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Changes: None. Comments: Some commenters expressed concern that in cases where a formal complaint must be opened by a Title IX Coordinator, as opposed to by a student or employee reporting sexual harassment, that the victim’s confidential information will be subject to discovery despite declining to file a formal complaint. This leaves students and employees with no way to protect their privacy and would lead to a dramatic chilling effect on reporting. Discussion: The Department notes that the final regulations entirely removed proposed provision § 106.44(b)(2) that would have required a Title IX Coordinator to file a formal complaint upon receiving multiple reports against the same respondent. The final regulations do not mandate circumstances where a Title IX Coordinator is required to sign a formal complaint; rather, the final regulations leave a Title IX Coordinator with discretion to sign a formal complaint. If the Title IX Coordinator signs a formal complaint against the wishes of the complainant, then the recipient likely will have difficulty obtaining evidence from the complainant that is directly related to the allegations in a formal complaint. As previously explained, the Department revised § 106.45(b)(5)(i) to specifically state that the recipient cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so for a grievance process under this section (if a party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a ‘‘parent’’ as defined in 34 CFR 99.3). Accordingly, a recipient will not be able to access, consider, disclose or otherwise use such confidential records without a party’s consent. The complainant is not required to participate in the process or to provide any information to the Title IX Coordinator and in fact, the final regulations expressly protect a complainant (or other person’s) right not to participate in a Title IX proceeding by including such refusal to participate in the anti-retaliation provision in § 106.71. If the recipient has commenced a § 106.45 grievance process without a cooperating PO 00000 Frm 00406 Fmt 4701 Sfmt 4700 complainant, the recipient must still obtain evidence about the allegations, and the complainant and respondent must have an opportunity to inspect, review, and respond to such evidence. Such evidence would be directly related to the respondent under FERPA’s definition of ‘‘education records’’ 1591 because it is related to the allegations against the respondent. The respondent would have access to such education records under both FERPA and these final regulations implementing Title IX, and the Department interprets both FERPA and Title IX consistent with constitutionally guaranteed due process rights. A respondent should have notice of and a meaningful opportunity to respond to the evidence about the allegations against the respondent. Full and fair adversarial procedures increase the probability that the truth of allegations will be accurately determined,1592 and reduce the likelihood that impermissible sex bias will affect the outcome. Accordingly, the respondent, like the complainant, must have the opportunity to inspect, review, and respond to such evidence. Even if a complainant chooses not to participate in a § 106.45 grievance process initiated by the Title IX Coordinator’s signing of a formal complaint, the complainant is still treated as a party 1593 entitled to, for example, the written notice of allegations under § 106.45(b)(2), notice of meetings or interviews to which the complainant is invited under § 106.45(b)(5)(v), and a copy of the evidence subject to inspection and review under § 106.45(b)(5)(vi). Thus, the complainant would at least know what evidence was obtained and have the opportunity to respond to that evidence, if the complainant so desired.1594 1591 20 U.S.C. 1232g(a)(4); 34 CFR 99.3. adversarial ‘‘system is premised on the well-tested principle that truth—as well as fairness—is ‘best discovered by powerful statements on both sides of the question.’’’ Penson v. Ohio, 488 U.S. 75, 84 (1988) (quoting Irving R. Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 Am. Bar Ass’n J. 569, 569 (1975)). 1593 See § 106.30 defining a ‘‘complainant’’ as ‘‘an individual who is alleged to be the victim of conduct that could constitute sexual harassment.’’ The final regulations removed the phrase ‘‘or on whose behalf the Title IX Coordinator filed a formal complaint’’ to reduce the likelihood that a complainant would feel pressured to participate in a grievance process against the complainant’s wishes. Thus, even where the Title IX Coordinator signs the formal complaint that initiates the grievance process (as opposed to the complainant filing the formal complaint), the complainant is treated as a party during the grievance process yet the complainant’s right not to participate is protected (for example, under the anti-retaliation provision in § 106.71). 1594 The final regulations protect a complainant’s right to seek the kind of response from a recipient 1592 The E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations The Department disagrees that these final regulations will chill reporting. These final regulations will encourage complainants to report allegations of sexual harassment because complainants must be offered supportive measures irrespective of whether they choose to file a formal complaint under § 106.44(a).1595 These final regulations provide a fair, impartial, and transparent grievance process for formal complaints that helps ensure that all parties receive the opportunity to inspect and review any evidence obtained as part of an investigation that is directly related to the allegations in a formal complaint. Changes: The Department revised § 106.45(b)(5)(i) to specifically state that the recipient cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so for a grievance process under this section (if a party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a ‘‘parent’’ as defined in 34 CFR 99.3). Comments: Commenters expressed concerns about schools producing information to students. Some contended that the proposed rules contained provisions regarding the content of the required notice that directly conflict with FERPA. Other commenters argued that the right to appeal is generally a safety net against a lack of evidence, such that there is no that best meets the complainant’s needs (i.e., supportive measures, a grievance process, or both) and nothing in the final regulations requires a complainant to participate in a grievance process against the complainant’s wishes, even where the Title IX Coordinator signed a formal complaint initiating a grievance process against the respondent. Commenters pointed out the importance of respecting complainant autonomy and asserted that for a variety of reasons a complainant may not wish to file a formal complaint, yet may decide later to file a formal complaint or to participate in a grievance process initiated by the Title IX Coordinator. The final regulations balance these interests in deference to a complainant’s autonomy and control as to whether initiating or participating in a grievance process best serves the complainant’s needs. 1595 § 106.71, prohibiting retaliation, protects any person’s right not to participate in a Title IX grievance process, thereby buttressing a complainant’s right under § 106.44(a) to receive supportive measures regardless of whether the complainant files a formal complaint or otherwise participates in a grievance process. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 need for schools to produce literally all evidence directly related to the allegation. One commenter suggested that the proposed rules would likely create an inconsistency with all other forms of student misconduct investigations, where schools generally do not provide FERPA-protected education records to the accused student. Some argued that this would put Title IX in ‘‘least-favored nation’’ status, such that only Title IX allegations were likely to trigger these privacy concerns, as opposed to allegations based on race or disability harassment. With respect to production of documents, many commenters expressed concern that the proposed rules did not sufficiently clarify what is discoverable and what is confidential. Commenters stated that schools may opt to collect as much information as possible in their investigations, out of fear that OCR will find them in violation of the new Title IX rules, but that will also mean access to a host of irrelevant information being given to the parties. Once in the hands of students, asserted commenters, the information is totally unprotected. The proposed rule, commenters argued, does not prohibit parties from photographing and texting even highly confidential information about the other party, even when young children are involved. One commenter suggested that there should be some exceptions on production, such as nude photos or other photos of a graphic sexual nature. Even the effort to ensure that technological platforms do not allow sharing is inadequate, commenters asserted, because smart phones are ubiquitous, and because many schools will simply operate out of compliance with this requirement, due to a lack of funds for technological updates. Other commenters disagreed, however, stating that it would be better to allow easier access to electronic documents, since the inability to cut and paste from materials would make preparing one’s defense more difficult. Some commenters argued that a school having to review so much evidence prior to production will increase the cost of attorneys and advisors who need to be paid to review all evidence, turning the Title IX process into an expensive one. Some commenters stated that the natural result of this process is that students and employees in Title IX proceedings will try to hire attorneys to redact their own evidence before giving it to schools. By way of contrast, some commenters argued that the proposed rules offer respondents more disclosure of PO 00000 Frm 00407 Fmt 4701 Sfmt 4700 30431 exculpatory evidence than the Brady case does in the criminal context, which is anomalous for a noncriminal proceeding in a school setting. These commenters stated that under Brady, criminal prosecutors only have to disclose exculpatory evidence. They also stated that prosecutors do not have to produce evidence about sexual contact with the alleged perpetrator in the past, which is contrary to the proposed rule. Apart from prosecutors, commenters argued that police officers need not circulate draft reports to the people involved in a crime scene investigation, which is seemingly what commenters believed has to happen in the Title IX context. One commenter stated that the production of so much evidence will jeopardize law enforcement investigations. Another commenter suggested that Title IX administrators will tell complainants not to submit certain evidence, out of fear that it will be produced to the respondent. One commenter stated that parties would strategically introduce evidence of academic performance and perhaps sexual history in order to embarrass the other party, and deter them from continuing the process; the commenter also suggested that introducing such evidence might bias an adjudicator against the other party. Even in the best cases, asserted commenters, adjudicators would be forced to weigh whether evidence was relevant, and forced to spend time and energy on making rulings on the admissibility of documents. Discussion: As previously explained, there is no inherent conflict between these final regulations and FERPA. An appeal right does not address the concern that parties should have access to the universe of evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint. Having such evidence will help parties adequately prepare for a hearing. These final regulations do not require disclosing education records in violation of FERPA as the Department has previously interpreted FERPA to allow for the disclosure of records that are directly related to a particular student in the context of impairing due process in student disciplinary proceedings where the information could not be segregated and redacted without destroying the meaning of the education records. These final regulations require disclosure of evidence that is directly related to the allegations raised in a formal complaint. As previously stated, these final regulations do not require a recipient to share information in a record that does E:\FR\FM\19MYR2.SGM 19MYR2 30432 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations not directly relate to the allegations in a formal complaint. These final regulations address sexual harassment, and the Department acknowledges that recipients may use a different grievance process to address sex discrimination that is not sexual harassment just as a recipient may use a different grievance process to address allegations related to race and disability. A grievance process to address race or disability concerns different considerations than a grievance process to address sexual harassment. The Department disagrees that these final regulations require a recipient to provide completely irrelevant evidence because § 106.45(b)(5)(vi) expressly states that the recipient must provide ‘‘any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint.’’ The only evidence that a recipient should be providing is evidence that is directly related to the allegations raised in a formal complaint. These final regulations neither require nor prohibit a recipient to use a file sharing platform that restricts the parties and advisors from downloading or copying the evidence. Recipients also may specify that the parties are not permitted to photograph the evidence or disseminate the evidence to the public. Recipients thus have discretion to determine what measures are reasonably appropriate to allow the parties to respond to and use the evidence at a hearing, while preventing the evidence from being used in an impermissible manner as long as such measures apply equally to both parties under § 106.45(b). Such measures may be used to address sensitive materials such as photographs with nudity. The Department agrees that a recipient will need to review all the evidence obtained as part of the investigation and determine what evidence is directly related to the allegations raised in a formal complaint. The Department disagrees that attorneys must conduct this review as lay persons also may determine what evidence is directly related to the allegations raised in a formal complaint. Irrespective of what information is available in a criminal case, the Department believes that both parties should have the opportunity to inspect and review any evidence obtained as part of an investigation that is directly related to the allegations raised in a formal complaint. The grievance process in § 106.45 does not have all of the same protections as a court proceeding in a criminal case. For example, these final regulations do not contain a comprehensive set of rules of evidence. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Neither party may issue a subpoena to gather information from each other or the recipient for purposes of the grievance process under § 106.45. Neither of the parties has a right to effective assistance of counsel under these final regulations, whereas a criminal defendant does have that right throughout the criminal proceeding. Under these final regulations, the parties only receive an advisor, who does not need to be an attorney, to conduct cross-examination on behalf of that party so as to ensure that the parties do not directly cross-examine each other. The parties should have an equal opportunity to review and inspect evidence that directly relate to the allegations raised in a formal complaint as these allegations necessarily relate to both parties. Even if these final regulations did not exist, parties who are students would have a right to inspect and review records directly related to the allegations in a formal complaint under FERPA, 20 U.S.C. 1232g(a)(1)(A)–(B), and its implementing regulations, 34 CFR 99.10 through 99.12, because these records would directly relate to the parties in the complaint.1596 With respect to evidence of prior sexual behavior, the Department revised § 106.45(b)(6) to prohibit all evidence (and not just questions) about the complainant’s sexual behavior or predisposition unless such evidence is offered to prove that someone other than the respondent committed the conduct alleged by the complainant or to prove consent. If a recipient obtains evidence about a party’s sexual behavior or predisposition that is directly related to the allegations raised in a formal complaint, the recipient should allow both parties an equal opportunity to inspect and review such evidence to be able to prepare to respond to it or object to its inclusion in the investigative report and its use at the hearing. These final regulations will not jeopardize or delay a law enforcement investigation, which is a completely separate process. If there is a concurrent law enforcement investigation, then a recipient may temporarily delay or extend the grievance process under § 106.45(b)(1)(v), as long as the recipient documents the good cause for the temporary delay or extension. A Title IX Coordinator should not encourage or discourage a party from submitting evidence and should inform both parties that the grievance process will provide them with an opportunity to inspect and review any evidence obtained as part of the investigation that is directly related 1596 73 PO 00000 FR at 74832–33. Frm 00408 Fmt 4701 Sfmt 4700 to the allegations raised in a formal complaint. These final regulations do not allow a Title IX Coordinator to restrict a party’s ability to provide evidence. If a Title IX Coordinator restricts a party from providing evidence, then the Title IX Coordinator would be violating these final regulations and may even have a conflict of interest or bias, as described in § 106.45(b)(1)(iii). If the academic record of a party is directly related to the allegations of sexual harassment, then the recipient may obtain, access, use, and disclose such evidence as part of the investigation under § 106.45. For example, if a complainant alleges that the complainant frequently missed classes as a result of the sexual harassment, then the attendance records of the complainant for that class are directly related to these allegations. Accordingly, a recipient may obtain or a party may request the recipient to obtain such attendance records as part of an investigation under § 106.45, if such records are directly related to the allegations in the formal complaint. Similarly, if a student-complainant alleges that an employee-respondent sexually harassed them on a field trip and the employee-respondent or that student-complainant did not attend the field trip, then the employee-respondent may provide the attendance records for the field trip, as these attendance records are directly related to the allegations of sexual harassment. Decision-makers should be able to determine what evidence is relevant at a hearing. Decision-makers also are capable of objectively considering the evidence without developing a bias for or against a complainant or respondent and will receive training about conflicts of interest and bias from the recipient under § 106.45(b)(1)(iii). Changes: None. Comments: Some commenters raised questions about procedural aspects of the grievance procedures. One stated that a single rule for the number of days before certain steps of the process occurs is arbitrary. Some cases will take longer than others to review the evidence, asserted a commenter. One commenter asked whether, if evidence is not adequately uploaded and available to the parties ten days before a hearing, must the hearing be delayed, or can the parties agree to keep the hearing date in place, and mutually waive whatever requirements the proposed rules implement? The same commenter asked whether, if no waiver occurs and one of the parties objects to holding the hearing but the school insists on proceeding, must the E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations evidence that was produced only nine days prior to the hearing be struck? One commenter argued the proposed rules are highly prescriptive, and that is inconsistent with the 2018 Report issued by the Federal Commission on School Safety,1597 which stated that overly prescriptive Federal standards burdened local schools. Discussion: These final regulations require that the parties have at least ten days to submit a written response to the evidence that is directly related to the allegations raised in a formal complaint under § 106.45(b)(5)(vi) and that the parties have the investigative report at least ten days prior to a hearing under § 106.45(b)(5)(vii). The Department does not define whether these ten days are calendar days or business days, and recipients have discretion as to whether to calculate ‘‘days’’ by calendar days, business days, school days, or other reasonable method. Recipients also may give the parties more than ten days in each circumstance. If the investigative report that fairly summarizes relevant evidence is not ready at least ten days prior to a hearing, then the recipient should wait to hold the hearing until the parties have at least ten days with the investigative report pursuant to § 106.45(b)(6)(i). If a recipient does not give the parties at least ten days with the investigative report prior to a hearing, the recipient will be found in violation of these final regulations, irrespective of whether the parties waive the requirements in these final regulations. The Department disagrees that these final regulations are overly prescriptive because recipients still have ample discretion. For example, recipients determine what supportive measures to offer, the standard of evidence, how to weigh the evidence to reach the determination regarding responsibility, the sanction, and any remedies. Changes: None. Comments: Several commenters suggested that there was tension between the proposed rules and FERPA, and argued that there is a conflict between the proposed rules and 20 U.S.C. 1232g(b)(1), since records would need to be disclosed as part of the grievance process even without the written consent of the parties involved. One commenter suggested that the final regulations expressly state that ‘‘nothing in this part shall be read in derogation of the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99.’’ 1597 Commenters cited: Dep’t. of Education et al., Final Report of the Federal Commission on School Safety (Dec. 18, 2018), https://www2.ed.gov/ documents/school-safety/school-safety-report.pdf. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 In support of that argument, commenters stated that schools know FERPA well, that FERPA guidance is well-established, and should control so that schools do not have to modify their existent knowledge of privacy issues. One commenter suggested that schools and students should be bound not to disclose any information if the disclosure would be inconsistent with FERPA’s provisions. Discussion: As explained earlier, the Department disagrees that there is an inherent conflict between these final regulations and FERPA. FERPA and its implementing regulations define the term ‘‘education records’’ as meaning, with certain exemptions, records that are directly related to a student and maintained by an educational agency or institution, or by a party acting for the agency or institution.1598 The Department previously stated: ‘‘Under this definition, a parent (or eligible student) has a right to inspect and review any witness statement that is directly related to the student, even if that statement contains information that is also directly related to another student, if the information cannot be segregated and redacted without destroying its meaning.’’ 1599 The Department made this statement in response to comments regarding impairing due process in student discipline cases in its notice-andcomment rulemaking to promulgate regulations to implement FERPA.1600 The evidence and investigative report that is being shared under these final regulations directly relate to the allegations in a complaint and, thus, directly relate to both the complainant and respondent. As explained earlier, the Department’s interpretation in the 2001 Guidance still stands that ‘‘if there is a direct conflict between requirements of FERPA and requirements of Title IX, such that enforcement of FERPA would interfere with the primary purpose of Title IX to eliminate sex-based discrimination in schools, the requirements of Title IX override any conflicting FERPA provisions.’’ 1601 Changes: None. Comments: Several commenters suggested that the final regulations ought to model their FERPA language on the Clery Act regulations, namely 34 CFR 668.46(l), because the Clery Act regulations clearly state that compliance with the Clery Act does not violate FERPA but, commenters argued, 1598 20 1599 73 U.S.C. 1232g(a)(4); 34 CFR 99.3. FR 74806, 74832–33 (Dec. 9, 2008). 1600 Id. 1601 2001 PO 00000 Guidance at vii. Frm 00409 Fmt 4701 Sfmt 4700 30433 proposed § 106.6(e) does not clearly assure recipients that complying with these Title IX regulations does not violate FERPA. Other commenters cited to 34 CFR 668.46(k)(3)(B)(3) and suggested that the final regulations should clearly state that medical records would not be released without the written authorization required in 45 CFR 164.508(b), implementing the Health Insurance Portability and Accountability Act of 1996 (‘‘HIPAA’’), Public Law 104–191, to mirror VAWA. In addition, commenters suggested that any release of medical records be consistent with 45 CFR 164.508(b), which is part of the Standards for Privacy of Individually Identifiable Health Information (‘‘Privacy Rule’’) adopted under HIPAA. Other commenters suggested that the Department require a data security standard benchmarked to HIPAA. This commenter stated that information about sexual assault may include medical information as sensitive Protected Health Information (PHI). Information about sexual history and abuse would be valuable to criminals and State adversaries. The commenter argued that because HIPAA is a known standard, familiar to technical support professionals, and has allowances for anonymization for research, using the data security standard as provided for in HIPAA will allow anonymized data for use in secure research that may inform policies and that absent a data security standard, information technology (IT) personnel will not be aware of any obligation to make sure that computers being used to create and store the sensitive information contained in evidence and investigative reports in Title IX grievance processes need to meet data security protocols. Other commenters stated that even given these confines, FERPA’s definition of ‘‘directly related to’’ is too broad. These commenters expressed concern that schools will get it wrong when trying to determine which evidence is directly related to certain allegations, which means that some highly sensitive student records will be produced, even when they should not be. Other commenters disagreed, stating that the Department should add a sentence after the ‘‘directly related to’’ language that reads as or similar to the following: ‘‘In determining whether evidence is ‘directly related to the allegations obtained as part of the investigation,’ the recipient must construe the phrase ‘directly related to’ broadly and in favor of production of any evidence obtained.’’ E:\FR\FM\19MYR2.SGM 19MYR2 30434 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Discussion: The Department disagrees that it needs to adopt language in § 668.46(l) and expressly state that ‘‘compliance [with these final regulations] does not constitute a violation of FERPA.’’ The Department does not believe that there is any inherent conflict between these final regulations and FERPA. Additionally, these final regulations expressly state in § 106.6(e) that the obligation to comply with these final regulations ‘‘is not obviated or alleviated by the FERPA statute, 20 U.S.C. 1232g or FERPA regulations, 34 CFR part 99.’’ Such a statement sufficiently addresses concerns that compliance with these final regulations does not violate FERPA. The Department does not enforce HIPAA, which protects the privacy and security of certain health information. The regulations, implementing HIPAA, which include the Privacy Rule and its provisions at 45 CFR 164.508(b), apply to ‘‘covered entities,’’ and a recipient may or may not be a covered entity. Accordingly, a recipient may not be required to comply with HIPAA, and the Department will not require recipients to comply with HIPAA through these final regulations. A recipient must comply with all laws that apply to it and is best positioned to determine whether and how HIPAA may apply to it. A recipient’s grievance procedures and grievance process, which are required to be published pursuant to § 106.8(c), should provide notice to the parties that they will receive an equal opportunity to inspect and review any evidence obtained as part of an investigation that is directly related to the allegations raised in a formal complaint of sexual harassment. Indeed, § 106.8(c) requires the recipient to notify applicants for admission and employment, students, parents or legal guardians of elementary and secondary school students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient notice of the recipient’s grievance procedures and grievance process. If a party does not want the other party to receive any of the party’s medical records, then the party (or the party’s parent, if applicable) is not required to provide such medical records to the recipient as part of the investigation, nor to provide consent to the recipient with respect to medical and other treatment records for which a recipient is required to obtain voluntary, written consent before accessing or using such records, under § 106.45(b)(5)(i). Recipients do not have VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 subpoena power, and as the commenter implies, a recipient will not be able to receive a party’s medical records from a covered entity under the regulations implementing HIPAA without the party’s consent. The Department also does not wish to require that recipients use a data security standard benchmarked to HIPAA or its Privacy Rule because the Department does not administer HIPAA and does not wish to add yet another set of regulations governing the same type of information that HIPAA may cover. Recipients that are subject to both HIPAA and these final regulations would then be subject to two different sets of data security standards governing the same type of information, as the Department may interpret its data security provisions differently than other Federal agencies such as the U.S. Department of Health and Human Services, which administers HIPAA. Although the Department encourages recipients to use secure data systems, Title IX does not directly concern data security, and the Department’s proposed regulations did not directly address data security requirements. The Department disagrees that ‘‘directly related to’’ is too broad or not broad enough. The Department purposefully chose ‘‘directly related to,’’ as such a requirement aligns with FERPA, and recipients that are subject to FERPA will understand how to apply such a requirement. The Department also acknowledges that recipients have discretion to determine what constitutes evidence directly related to the allegations in a formal complaint. The purpose of the provision in § 106.45(b)(5)(vi) is to give parties an opportunity to inspect, review, and respond to evidence that may be used to support or challenge allegations made in a formal complaint prior to the investigator’s completion of the investigative report. The recipient certainly cannot exclude any evidence that the investigator intends to use in the investigative report. Changes: None. Comments: Several commenters had concerns about privacy with respect to the evidence-sharing provisions of the grievance procedures. Commenters stated, for instance, that only ‘‘nonprivileged’’ materials ought to be shared during the process, and suggested that medical records ought to be considered privileged. Similarly, some commenters suggested that financial records of students should be considered privileged, and therefore not produced. Commenters asserted that the final regulations should clarify that under no circumstances will a school access PO 00000 Frm 00410 Fmt 4701 Sfmt 4700 campus medical and counseling records. These records, stated commenters, would include the results of medical tests, rape kits, and forensic evidence that is covered by HIPAA and FERPA. Discussion: Nothing in these final regulations requires a recipient to share materials subject to the attorney-client privilege in the recipient’s possession with a party as part of a § 106.45 grievance process. If a party holds the attorney-client privilege and chooses to waive the privilege to share records protected by the attorney-client privilege, then the party may do so. To clarify this point, the Department added § 106.45(b)(1)(x) to expressly state that a recipient’s grievance process must not: ‘‘require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.’’ Medical records may be subject to other Federal and State laws that govern recipients, and recipients should comply with those laws. The Department believes that the final regulations, and specifically § 106.45(b)(5)(i), protect a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party. Pursuant to § 106.45(b)(5)(i), a recipient cannot access, consider, disclose or otherwise use such records unless the party gives the recipient voluntary, written consent.1602 This restriction applies even where HIPAA or any State-law equivalent do not apply. The Department does not wish to create more complexity and confusion by creating yet another set of regulations that apply to medical records by incorporating by reference HIPAA or attorney-client privilege rules. These final regulations, and specifically § 106.45(b)(1)(x) and § 106.45(b)(5)(i), appropriately protect medical records and attorney-client privileged information. With respect to medical and counseling records to which a recipient does not have access, whether a recipient may access such medical and 1602 Pursuant to § 106.45(b)(5)(i), if the party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a ‘‘parent,’’ as defined in 34 CFR 99.3. § 106.45(b)(5)(i). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations counseling records would be governed by other laws that typically require a party’s consent. A recipient should comply with all applicable laws governing medical and counseling records. For purposes of these final regulations, the recipient should not obtain as part of an investigation any evidence, directly relating to the allegations in a formal complaint, that cannot legally be shared with the parties. Changes: The Department added § 106.45(b)(1)(x) to expressly state that a recipient’s grievance process must not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege. Comments: Several commenters addressed the evidence-sharing provisions of the grievance procedures in other ways, stating that the final regulations ought to discourage schools from providing electronic access to documents. Many noted that students generally live close to the school itself, such that in-person access exclusively would likely be adequate, and would prevent the documents from being shared with outside parties or the press. Commenters also noted that electronic access may pose difficulties for students who lack a computer, or who lack internet access. Even for students who have access to these technologies, reliable access may not always be easily obtainable. Some might have to view evidence on a shared computer in a public library or a computer lab. Some commenters contended that some students with disabilities would have difficulty accessing and reviewing all evidence in a digital format, particularly given how much material is likely to be produced under the final regulations. One commenter suggested limiting production to hard copy documents, unless the parties all agree to consent to electronic production as well. Some noted that hard copies of evidence will have to be made in many cases anyway, since those documents may need to be submitted as exhibits during the proceeding. Some commenters suggested not even providing the parties with the evidence, but instead just describing the evidence verbally, in the hopes of encouraging dialogue and discourse. Some commenters asserted that the final regulations should only require supervised access to all material available to the decision-makers. Other commenters disagreed with the idea of only providing supervised hard-copy VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 access to relevant documents, arguing that parties need private access to the documents, to be able to discuss information with their advisors. Some commenters asked the Department not to allow schools to give documents directly to party advisors, asserting that a party ought to have control over what they give to their own advisor. Some commenters suggested that schools should have flexibility to provide information in the way they see fit, accounting for the expense of some technology. One commenter suggested that the final regulations should eliminate language that dictates the manner in which records will be shared, and instead state that the files should be shared ‘‘in a manner that will prevent either party from copying, saving, or disseminating the records.’’ Commenters contended that the time frames for providing evidence are too short, and therefore unduly burdensome for schools. These commenters argued that the ruling in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), provides schools and school administrators with flexibility and is not designed to make the process rigid and one-size-fits-all. Discussion: The Department disagrees that parties should only be provided with hard copies of the evidence, as directly providing the parties with a hard copy of the evidence will prevent a recipient from being able to provide ‘‘view only’’ access, if the recipient would like to provide ‘‘view only’’ access. The Department also does not wish to require recipients to provide parties the opportunity only to inspect and review hard copies of the evidence because the parties may have obligations that prevent them from inspecting and reviewing the evidence during the hours when the recipient’s operations are open to allow for such inspection and review. Nothing in these final regulations prevents a recipient from providing a hard copy of the evidence in addition to the evidence in an electronic format. Indeed, the Department revised § 106.45(b)(5)(vi)– (vii) to allow the recipient to provide a party and the party’s advisor of choice with either a hard copy of the evidence and the investigative report or the evidence and the investigative report in an electronic format. Allowing the recipient to send the parties the evidence in an electronic format gives the recipient sufficient discretion to determine whether to use a file sharing platform that restricts the parties and advisors from downloading or copying the evidence, and the recipient also may opt to provide a hard copy of the PO 00000 Frm 00411 Fmt 4701 Sfmt 4700 30435 evidence for the parties.1603 The Department also fully encourages recipients to provide whatever reasonable accommodations are necessary for students with disabilities; recipients must comply with applicable disability laws while also complying with these final regulations. The Department also reiterates that a recipient may require parties to agree not to photograph or otherwise copy the evidence that the recipient provides for inspection and review. The Department also takes no position on nondisclosure agreements that comply with these final regulations. The Department, however, will not impose a uniform approach for recipients and would like recipients to have discretion in this regard. A recipient may choose to share records in a manner that will prevent either party from copying, saving, or disseminating the records, but the Department will not require the recipient to do so. Finally, the Department disagrees that describing the evidence verbally will provide the parties with a sufficient opportunity to respond to the evidence. Descriptions of evidence may not be accurate and even the best description will not always capture the nuances of the actual evidence. The Department agrees with commenters that providing hard copy access under and subject to the recipient’s supervision may prevent the parties from freely discussing the evidence with their advisors. If a party does not want a recipient to provide a copy of the evidence or investigative report to the party’s advisor, then the recipient should honor such a request. These final regulations simply prevent a recipient from refusing to provide evidence or an investigative report to a party’s advisor, if the party would like the advisor to have access to the evidence or investigative report. Changes: The Department revised § 106.45(b)(5)(vi)-(vii) to allow a recipient to provide a hard copy of the evidence and investigative report to the party and the party’s advisor of choice or to provide the evidence and investigative report in an electronic format. Comments: Several commenters had concerns about the grievance proceeding itself, and how student privacy ought to be protected in that context. Some contended that the proposed rules needed more clarity as to 1603 In response to many commenters concerned that requiring recipients to provide the evidence to parties by using a digital platform that restricts users from downloading the information would be unnecessarily costly or burdensome, the final regulations revised § 106.45(b)(5)(vi) to remove that requirement. E:\FR\FM\19MYR2.SGM 19MYR2 30436 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the content of the investigative report. The assumption by schools, asserted the commenter, will be that facts, interview statements, a credibility analysis, and the school’s policy are the only components of such a report, so any other items that ought to be included, asserted the commenter, should be expressly mentioned. Commenters asked whether, if there are multiple complainants and one respondent, are the complainants entitled to the disciplinary results for allegations related to other complainants’ complaints? Discussion: The Department does not wish to impose specific requirements for the investigative report other than the requirement that the investigative report must fairly summarize relevant evidence, as described in § 106.45(b)(5)(vii). A recipient may include facts and interview statements in the investigative report. If a recipient chooses to include a credibility analysis in its investigative report, the recipient must be cautious not to violate § 106.45(b)(7)(i), prohibiting the decision-maker from being the same person as the Title IX Coordinator or the investigator. Section 106.45(b)(7)(i) prevents an investigator from actually making a determination regarding responsibility. If an investigator’s determination regarding credibility is actually a determination regarding responsibility, then § 106.45(b)(7)(i) would prohibit it. Otherwise, the Department does not wish to be overly prescriptive with respect to the contents of the investigative report, and the recipient has discretion as to what to include in it. If there are multiple complainants and one respondent, then the recipient may consolidate the formal complaints where the allegations of sexual harassment arise out of the same facts or circumstances, under § 106.45(b)(4). The requirement for the same facts and circumstances means that the multiple complainants’ allegations are so intertwined that their allegations directly relate to all the parties. Accordingly, if the allegations of sexual harassment arise out of the same facts or circumstances, the parties must receive the same written determination regarding responsibility under § 106.45(b)(7), although the determination of responsibility may be different with respect to each allegation depending on the facts. Section 106.45(b)(7)(iii) requires the recipient to provide the written determination regarding responsibility to both parties simultaneously, and a recipient may not redact or withhold any part of the written determination regarding VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 responsibility from the parties. If a recipient consolidates formal complaints, a recipient must issue the same written determination regarding responsibility to all parties because the allegations of sexual harassment must arise out of the same facts or circumstances such that the written determination directly relates to all the parties. If a recipient does not consolidate the formal complaints, then the recipient must issue a separate written determination regarding responsibility for each formal complaint. If the formal complaints are not consolidated, then each complainant would receive the written determination regarding responsibility with respect to that complainant’s formal complaint. Changes: None. Comments: Some commenters were skeptical that the proposed rules could adequately protect privacy, given workarounds that allow parties to share information easily. Other commenters suggested that the final regulations should avoid specifying how information should be shared, given how obsolete technology can quickly become. Another commenter stated that the final regulations should require that a school provide the parties only with a log of all documents—and not the documents themselves—so that if certain documents in the log are protected by FERPA, the parties can argue over whether the document is relevant or not. Discussion: The Department acknowledges that recipients have some discretion to determine how privacy should best be protected while fully complying with these final regulations. The Department permitted but never required that a recipient use a file sharing platform that restricts the parties and advisors from downloading or copying the evidence in the proposed regulations. The Department is removing the phrase ‘‘such as a file sharing platform, that restricts the parties and advisors from downloading or copying the evidence’’ in § 106.45(b)(5)(vi) to help alleviate any confusion that the proposed regulations required such a platform. The Department disagrees that a log of all documents in an investigation will provide the parties with the same benefit as inspecting and reviewing all evidence directly related to the allegations in a formal complaint prior to the completion of an investigative report. The purpose of this provision in § 106.45(b)(5)(vi) is for parties to respond to the evidence prior to the completion of the investigative report to help recipients provide a fair and PO 00000 Frm 00412 Fmt 4701 Sfmt 4700 accurate investigative report. A log of documents will not allow the parties to respond to the evidence, and the parties may not always be able to determine whether a record is an education record and whether FERPA prohibits the disclosure of personally identifiable information contained in an education record merely by reviewing a log of documents. Changes: The Department removed the phrase ‘‘such as a file sharing platform, that restricts the parties and advisors from downloading or copying the evidence’’ in § 106.45(b)(5)(vi). Comments: Some commenters expressed concern that the proposed rules would allow employees accused of sexual assault to review the private medical records of the complainant, and that it would be strange for staff members or employees of a school to have access to private student records. Discussion: As previously stated, the Department is bound by the U.S. Constitution and must administer its final regulations in a manner that would not require any person to be deprived of due process or other constitutional rights. If an employee is a respondent, then the employee must be able to respond to any evidence that directly relates to the allegations in a formal complaint. With respect to medical records, in order for the medical record to be used in the grievance process, a complainant must either offer the recipient medical records for such use, or provide voluntary, written consent for the recipient to access and use the medical records.1604 In the written notice of allegations required under § 106.45(b)(2), a recipient will notify the parties of the grievance process under § 106.45, including the requirement that both parties be able to review and inspect evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint. If a complainant does not wish for the respondent to inspect and review any medical record or any part of any medical record that is directly related to the allegations, then the complainant does not have to provide that medical record to the recipient for use in the grievance process or provide consent for the recipient to otherwise access or use that medical record. Changes: The final regulations revise § 106.45(b)(5)(i) to restrict a recipient from accessing, considering, disclosing, or otherwise using a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the 1604 § 106.45(b)(5)(i). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so for a grievance process under § 106.45(b). If the party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a ‘‘parent,’’ as defined in 34 CFR 99.3. Comments: Some commenters made more general suggestions for modifying the proposed rule. One suggested that the final regulations ought to clarify that FERPA does not require that hearings be closed off to the press and to the public. The same commenter argued that in fact all hearings needed to be open to the press and the public under the First Amendment. One other commenter stated that the final regulations ought to specify whether final adjudication determinations can be publicized and published by either of the parties, or by the school itself. One commenter suggested that the final regulations state that it is not retaliation or a FERPA violation to contest or discuss allegations or to criticize dishonest allegations of sexual harassment. Discussion: The Department disagrees that hearings under § 106.45(b)(6) must be open to the press and the public under the First Amendment, as the First Amendment does not require that a hearing to adjudicate allegations of sexual harassment in an education program or activity of a recipient of Federal financial assistance be made open to the public and the press. FERPA would preclude hearings to be open to the press and the public if the hearings would require disclosure, without prior written consent, of personally identifiable information from an education record. FERPA and its implementing regulations may govern whether the final adjudication determinations can be publicized and published by a recipient to which FERPA applies, and these final regulations do not address whether the final adjudication determinations may be publicized or published other than providing the written determination to the parties pursuant to § 106.45(b)(7)(iii). Additionally, some recipients may have non-disclosure agreements that comply with other laws, and these final regulations neither require nor prohibit such non-disclosure agreements. The final regulations provide that the recipient cannot restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence in § 106.45(b)(5)(iii). To address the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 commenter’s concerns, the final regulations also provide that the exercise of rights protected under the First Amendment does not constitute retaliation pursuant to § 106.71. Threatening to publicize or make a written determination public for the purpose of retaliation, however, is strictly prohibited under § 106.71 of these final regulations. Changes: The Department included a retaliation provision in § 106.71 that expressly states that the exercise of rights protected under the First Amendment does not constitute retaliation. Comments: Some commenters offered suggestions to improve the rule. One suggested that police investigation files ought to also be made available to the parties, in addition to student records. One commenter argued that social media profiles and materials ought to be relevant to any grievance proceeding as well, particularly for accusers who claim trauma but then post contrary items on social media. Another commenter argued that the Department should offer technical assistance to schools to ensure that the platforms for sharing information are created appropriately and that they work. One commenter suggested that the final regulations ought to specify that records created as part of the grievance process are themselves protected by FERPA. Some commenters suggested that the final regulations should require that grievance process records containing personally identifiable information in them ought to be destroyed at the conclusion of the grievance process. One commenter asked that the Department clarify that schools have a right to redact documents, so long as the redactions are not relevant to the proceeding and the redactions are consistent with providing the parties due process. At the very least, argued commenters, a school should be allowed to place certain restrictions on students repeating information learned as part of the evidentiary production or hearing process. In the same vein, commenters asked that the Department state clearly that parties are not entitled to evidence that is not relevant to a determination of responsibility. Commenters argued that the final regulations ought to include meaningful consequences for parties who violate the confidentiality of information. One suggested that the final regulations ought to include some statement about retaliation, which is also covered under Title IX, in terms of confidential documents. PO 00000 Frm 00413 Fmt 4701 Sfmt 4700 30437 One commenter suggested that the final regulations ought to include meaningful consequences for schools that fail to implement privacy safeguards. One stated that the final regulations ought to instruct schools to follow the guidance issued by the Department in the Letter to Wachter (signed by Michael Hawes).1605 Discussion: These final regulations do not prevent a recipient from making police investigation files available to the parties. If a recipient obtains police investigation files as part of its investigation of a formal complaint under § 106.45(b)(5) and some of the evidence in the police investigation files is directly related to the allegations raised in a formal complaint as described in § 106.45(b)(5)(vi), then the recipient must provide that evidence to the parties for their inspection and review. A recipient may use social media profiles, assuming that these social media profiles are lawfully obtained, as part of the investigation. The Department will continue to provide recipients with technical assistance and as previously explained, does not require recipients to use a specific platform for sharing information. Whether FERPA applies to records that are part of a § 106.45 grievance process depends on the circumstances. For example, education records under FERPA may not be implicated at all in a formal complaint of sexual harassment by a non-student complainant against a non-student respondent. The requirement to destroy records with personally identifiable information at the conclusion of the grievance process violates the record-keeping requirements in these final regulations. Such a requirement also may violate record-keeping requirements under the Clery Act, which provides for a sevenyear retention period for sexual assault, dating violence, domestic violence, and stalking.1606 As previously explained, these final regulations do not require a recipient to share any information in records obtained as part of an investigation that is not directly related to the allegations in a formal complaint, and FERPA may 1605 See Letter from Michael Hawes, Director of Student Privacy Policy, U.S. Dep’t. of Education, Off. of Mgmt., to Timothy S. Wachter, Knox McLaughlin Gornall & Sennett, P.C. (Dec. 7, 2017), https://studentprivacy.ed.gov/sites/default/files/ resource_document/file/Letter%20to %20Wachter%20%28Surveillance%20Video%20of %20Multiple%20Students%29_0.pdf. 1606 34 CFR 668.24(e)(2)(ii); see U.S. Dep’t. of Education, Office of Postsecondary Education, The Handbook for Campus Safety and Security Reporting 9–11 (2016), https://www2.ed.gov/ admins/lead/safety/handbook.pdf. E:\FR\FM\19MYR2.SGM 19MYR2 30438 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations even require redaction of such information. The Department disagrees with the statement that parties are not entitled to evidence that is not relevant to a determination of responsibility. The parties must receive all evidence obtained as part of an investigation that is directly relevant to the allegations in a formal complaint. Such evidence may not always be directly relevant to a determination regarding responsibility. The purpose of these final regulations is to provide both parties with the opportunity to respond to any evidence that directly relates to the allegations in a formal complaint, which is why the parties should have the opportunity to inspect and review such evidence prior to the hearing or prior to when a determination regarding responsibility is made if no hearing is required. A recipient may require restrictions or use a non-disclosure agreement for confidential information as long as doing so does not violate these final regulations or other applicable laws. These final regulations do not address confidential information or how to safeguard confidential information because the Department cannot begin to identify what the universe of confidential information or records may constitute. A recipient is better able to identify what constitutes confidential records and how these records should be protected in a manner that complies with these final regulations. The Department includes a retaliation provision in § 106.71, but this provision does not specifically address confidential documents. Nonetheless, if confidential documents are used for retaliation as defined in § 106.71, then these final regulations would prohibit such retaliation. The Department notes that the Department’s Letter to Wachter (signed by Michael Hawes),1607 may be helpful to recipients in determining how to comply with the regulations implementing FERPA. Changes: None. Comments: Some commenters argued that parties ought to have access to all evidence—not just evidence that the school deems relevant—that is gathered during the course of investigating a formal complaint. Commenters argued that schools cannot be trusted to appropriately review and determine which evidence is ‘‘directly relevant,’’ 1607 See Letter from Michael Hawes, Director of Student Privacy Policy, U.S. Dep’t. of Education, Off. of Mgmt., to Timothy S. Wachter, Knox McLaughlin Gornall & Sennett, P.C. (Dec. 7, 2017), https://studentprivacy.ed.gov/sites/default/files/ resource_document/file/Letter%20to%20 Wachter%20%28Surveillance%20Video% 20of%20Multiple%20Students%29_0.pdf. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 as opposed to merely ‘‘relevant’’ or ‘‘irrelevant.’’ Commenters contended that schools would under-produce evidence that might be directly relevant, out of a bias toward finding a respondent to be responsible for sexual harassment. The commenters argued that schools like it when respondents are found responsible, since that will facilitate their efforts of showing that they are complying with Title IX. One commenter suggested that any evidence not produced to a party be logged, such that the parties have sufficient information to dispute the characterization as not directly relevant. Discussion: The Department requires the recipient to provide the parties an equal opportunity to inspect and review any evidence obtained as part of an investigation that is directly related to allegations raised in a formal complaint, including the evidence upon which the recipient does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source under § 106.45(b)(vi). Even though a recipient has some discretion as to what evidence is directly related to allegations raised in a formal complaint, the Department may determine that a recipient violated § 106.45(b)(vi) if a recipient does not provide evidence that is directly related to allegations raised in a formal complaint to the parties for review and inspection. A recipient may choose to log information that it does not produce and allow the parties to dispute whether the information is directly related to the allegations. Although the Department does not impose a requirement to produce such a log during an investigation under § 106.45, recipients are welcome to do so and may use such a log to demonstrate that both parties agreed certain evidence is not directly related to the allegations raised in a formal complaint. Changes: None. Comment: One commenter asked how the recordkeeping requirement in § 106.45(b)(10) complies with FERPA. On the issue of records retention, one commenter suggested that seven years was slightly different than FERPA, stating that FERPA contemplated a range of five to seven years. Discussion: The recordkeeping requirement in § 106.45(b)(10) does not conflict with FERPA. FERPA and its implementing regulations do not require recipients of Federal financial assistance to keep records for a specific amount of time. FERPA’s implementing regulations only require that an educational agency or institution not destroy any education records if there is PO 00000 Frm 00414 Fmt 4701 Sfmt 4700 an outstanding request to inspect and review the records.1608 Accordingly, the seven-year retention period that the Department adopts in § 106.45(b)(10) does not in any way impact a recipient’s obligations under FERPA. Changes: None. Section 106.6(f) Title VII and Directed Question 3 (Application to Employees) Comments: A few commenters expressed support for applying the proposed rules to employees because it would ensure fairness and help to safeguard a level playing field. Several commenters expressed general opposition to the NPRM itself but asserted that Title IX should apply to employees because it is necessary for student safety. Commenters stated that no unique circumstances justify treating students and faculty differently under Title IX. One commenter emphasized that employees in the workplace who are accused of sexual harassment may face life-altering consequences. This commenter asserted that recipients may have perverse incentives, due to pressure from media and the general public in the current #MeToo environment, not to provide adequate due process absent a government mandate. The commenter asserted that the NPRM’s due process protections, including a clear definition of sexual harassment, with adequate notice and opportunity for a live hearing with cross-examination, also should extend to employees. The commenter also identified a risk that campus administrators may selectively promote or ignore certain Title IX claims to help or undermine the careers of certain faculty. And the commenter described a risk that a complainant faculty with seniority could coerce witnesses to provide favorable testimony. One commenter asserted that the Department enforces Title VII, while other commenters concluded that the Department does not have authority to regulate complaints that do not involve students at all, such as employee-onemployee cases. Commenters urged the Department to explicitly state that the final regulations, including the adjudication processes contained therein, only apply to ‘‘students.’’ These commenters reasoned that Congress did not intend Title IX’s protections for equal access to education to apply to employees, because employees do not receive education. According to these commenters, the Department lacks 1608 34 CFR 99.10(e) (‘‘The educational agency or institution, or SEA or its component shall not destroy any education records if there is an outstanding request to inspect and review the records under this section.’’). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations jurisdiction to regulate how recipients handle employee-related matters. One commenter requested that the Department supplement the final regulations with a clarification of the relationship between claims that contain the potential to be adjudicated under either, or both, Title VII and Title IX. Another commenter requested further explanation of the intersection of Title VII and Title IX in the context of the respondent being a student-employee on campus. One commenter stated that the location of the definition of ‘‘formal complaint’’ and the procedures themselves (§ 106.45) were located in Subpart D of the NPRM, which implied that they do not apply to employee complaints alleging sexual harassment in employment. The commenter asserted that it is unclear if recipients are expected to handle employee complaints under § 106.8 instead, which would require two different processes with different definitions of sexual harassment, and inquired as to how complaints by student-employees should be handled. Several commenters opposed the written notice requirements in § 106.45(b)(5)(v) because they believe the provision is unclear as to how it will apply to a recipient’s employees. Several commenters noted that the deliberate indifference standard is lower than the standard imposed on employers under Title VII and/or the standard articulated by the 2001 guidance. One commenter asserted that the obligation to dismiss the formal complaint with respect to conduct that does not constitute sexual harassment as defined in § 106.30 or that did not occur within the recipient’s program or activity undercuts an employer’s ability to take proactive steps to investigate and sanction unwelcome conduct of a sexual nature before it becomes sexual harassment as defined in the proposed Title IX regulations or sexual harassment prohibited under the Title VII standard. One commenter argued that the Department should avoid taking a position on whether Title IX applies to employees. This commenter reasoned that the Department should limit this rulemaking to student-complainant cases because of a split among Federal circuit courts regarding whether Title VII provides the exclusive remedy for employee discrimination claims. Similarly, other commenters noted that because some Federal courts have held Title VII preempts Title IX regarding employment claims, extending the proposed rules in this context may be VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 ineffective. Similarly, another commenter urged the Department to clarify that § 106.6(f) is not intended to create a new Title IX private right of action for employees. Discussion: The Department appreciates support for its final regulations, which apply to employees. Congress did not limit the application of Title IX to students. Title IX, 20 U.S.C. 1681, expressly states: ‘‘No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .’’ Title IX, thus, applies to any person in the United States who experiences discrimination on the basis of sex in any education program or activity receiving Federal financial assistance. Similarly, these final regulations, which address sexual harassment, apply to any person, including employees, in an education program or activity receiving Federal financial assistance. The Department also notes that Title VII is not limited to employees and may apply to individuals other than employees. Title VII prohibits ‘‘unlawful employment practices’’ against ‘‘an individual’’ by employers, labor unions, employment agencies, joint-labor management committees, apprenticeship programs and, thus, protects individuals other than employees such as job and apprenticeship applicants.1609 As Title VII protects more than just employee’s rights, the Department revises § 106.6(f) to state that nothing in Part 106 of Title 34 of the Code of Federal Regulations may be read in derogation of any individual’s rights rather than just any employee’s rights under Title VII. The Department recognizes that employers must fulfill their obligations under Title VII and also under Title IX. There is no inherent conflict between Title VII and Title IX, and the Department will construe Title IX and its implementing regulations in a manner to avoid an actual conflict between an employer’s obligations under Title VII and Title IX. The Department agrees that students and employees, including faculty and student workers, should not be treated differently under its final regulations.1610 Employees should 1609 42 U.S.C. 2000e–(a)–(d). discussed in the ‘‘Section 106.44(d) Administrative Leave’’ subsection of the ‘‘Additional Rules Governing Recipients’ Responses to Sexual Harassment’’ section of this preamble, the exception in the final regulations under which employees are treated differently from students, is that a ‘‘non-student employee’’ may be placed on administrative leave during the pendency of a grievance process that complies with § 106.45. 1610 As PO 00000 Frm 00415 Fmt 4701 Sfmt 4700 30439 receive the same benefits and due process protections that students receive under these final regulations, and these final regulations, including the due process protections in § 106.45, apply to employees. The Department notes that its regulations have long addressed employees. For example, 34 CFR part 106, subpart E expressly addresses discrimination on the basis of sex in areas unique to employment. Prior to the establishment of the Department of Education, the Supreme Court noted that the Department of Health, Education, and Welfare’s ‘‘workload [was] primarily made up of ‘complaints involving sex discrimination in higher education academic employment.’ ’’1611 The split among Federal courts relates to whether an implied private right of action exists for damages under Title IX for redressing employment discrimination by employers.1612 These Federal cases focus on whether Congress intended for Title VII to provide the exclusive judicial remedy for claims of employment discrimination.1613 Courts have not precluded the Department from administratively enforcing Title IX with respect to employees. The Supreme Court also expressly recognized the application of Title IX to redress employee-on-student sexual harassment in Gebser.1614 The Department’s longstanding position is that its Office for Civil Rights (OCR) addresses, under Title IX, sex discrimination in the form of sexual harassment, including by or against employees. For example, the Department’s 2001 Guidance specifically addressed the sexual harassment of students by school employees.1615 The Department also has enforced its Title IX regulations, including regulations interpreted to address sexual harassment, as to employees.1616 1611 Cannon v. Univ. of Chicago, 441 U.S. 677, 708 fn. 42 (1979). 1612 See Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545 (3d Cir. 2017); Lakosi v. James, 66 F.3d 751, 755 (5th Cir. 1995); Burrell v. City Univ. of N.Y., 995 F. Supp. 398, 410 (S.D.N.Y. 1998); Cooper v. Gustavus Adolphus Coll., 957 F. Supp. 191, 193 (D. Minn. 1997); Bedard v. Roger Williams Univ., 989 F. Supp. 94, 97 (D.R.I. 1997); Torres v. Sch. Dist. of Manatee Cnty., Fla., No. 8:14–CV–1021–33TBM, 2014 WL 418364 at *6 (M.D. Fla. Aug. 22, 2014); Winter v. Pa. State Univ., 172 F. Supp. 3d 756, 774 (M.D. Pa. 2016); Uyai v. Seli, No. 3:16–CV–186, 2017 WL 886934 at *6 (D. Conn. Mar. 6, 2017); Fox v. Pittsburg State Univ., 257 F. Supp. 3d 1112, 1120 (D. Kan. 2017). 1613 See id. 1614 Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 277 (1998). 1615 2001 Guidance at iv–v, 3, 5, 8–12. 1616 See, e.g., U.S. Dep’t. of Education, Office for Civil Rights, Resolution Letter to Univ. of Va. 18– E:\FR\FM\19MYR2.SGM Continued 19MYR2 30440 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Contrary to the commenter’s assertion, the Department does not have the authority to create a Title IX private right of action for employees through these final regulations. The Department has the authority to administratively enforce Title IX. Accordingly, these final regulations do not need to expressly state that the Department is not intending to create a new Title IX private right of action for employees. The commenter accurately notes that the definition of ‘‘formal complaint’’ and the grievance process for a formal complaint are in 34 CFR part 106, subpart D, which addresses sex discrimination on the basis of sex in education programs and activities, and not subpart E, which addresses discrimination on the basis of sex in employment in education programs and activities. Subpart D applies to all sex discrimination on the basis of sex and not just sex discrimination on the basis of sex with respect to students. Subpart D is the only subpart that directly addresses sexual harassment through these final regulations. The Department expressly states in § 106.51(b) that subpart E applies to recruitment, advertising, and the process of application for employment, the rate of pay or any other form of compensation, and change in compensation, and other matters that specifically concern employment, but subpart E does not apply to allegations of sexual harassment by or against an employee. Only subpart D addresses sexual harassment, and these final regulations in subpart D apply to any person who experiences sex discrimination in the form of sexual harassment in an education program or activity of a recipient of Federal financial assistance. To help clarify these points, the Department has revised the final regulations so that the definitions in § 106.30 apply to the entirety of 34 CFR part 106 and not just to subpart D of 34 CFR part 106.1617 Accordingly, 20 (Sept. 21, 2015), https://www2.ed.gov/ documents/press-releases/university-virginialetter.pdf; U.S. Dep’t. of Education, Office for Civil Rights, Title IX Resolution Letter to Yale Univ. 3 (June 15, 2012) (‘‘The Title IX regulation, at 34 CFR Section 106.8(a), specifically requires that each recipient designate at least one employee to coordinate its responsibilities to comply with and carry out its responsibilities under Title IX, including any investigation of any complaint communicated to it alleging noncompliance with Title IX (including allegations that the recipient failed to respond adequately to sexual harassment). This provision further requires that the recipient notify all its students and employees of the name (or title), email and office address and telephone number of the employee(s) so designated.’’) (emphasis added), https://www2.ed.gov/about/ offices/list/ocr/docs/investigations/01112027-a.pdf. 1617 Consistent with these clarifications regarding the coverage of sexual harassment under subpart D, VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 recipients are expected to handle any formal complaints of sexual harassment in an education program or activity against a person in the United States through the grievance process in § 106.45. The grievance process in § 106.45 applies irrespective of whether the complainant or respondent is a student or employee. The Department is aware that Title VII imposes different obligations with respect to sexual harassment, including a different definition, and recipients that are subject to both Title VII and Title IX will need to comply with both sets of obligations. Nothing in these final regulations, however, shall be read in derogation of an individual’s rights, including an employee’s rights, under Title VII, as expressly stated in § 106.6(f). Similarly, nothing in these final regulations precludes an employer from complying with Title VII. The Department recognizes that employers must fulfill both their obligations under Title VII and Title IX, and there is no inherent conflict between Title VII and Title IX. The Department does not share the commenter’s concerns about the application of § 106.45(b)(5)(v) to a recipient’s employees. Section 106.45(b)(5)(v) requires a recipient to provide to the party whose participation is invited or expected written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate. Employees that go through the grievance process described in § 106.45 deserve the same written notice as other individuals who go through this grievance process. Nothing precludes the recipient from providing such written notice to its employees. The Department acknowledges that the final regulations deviate from the standard articulated in its 2001 Guidance, by which recipients must respond to allegations of sexual harassment. We explain the rationale for our departure from prior policy positions earlier in this preamble in the section on ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment.’’ Additionally, the Department acknowledges that the standard for responding to sexual harassment under Title VII is different than the standard including with respect to employees, we also revised § 106.44(d) (authorizing a recipient to place a non-student employee on administrative leave during the pendency of a § 106.45 grievance process) to state that nothing in subpart D precludes administrative leave, instead of stating that nothing in § 106.44 precludes administrative leave. PO 00000 Frm 00416 Fmt 4701 Sfmt 4700 under Title IX. The deliberate indifference standard in § 106.44(a) is the most appropriate standard under Title IX as recipients are in the business of education where people are engaged in a marketplace of ideas that may challenge their own. To avoid restrictions on the speech, conduct, and other expressive activity that helps provide a robust education for students and academic freedom for faculty and staff, the Department adopts the standard that the Supreme Court articulated for Title IX cases rather than the standard that the Supreme Court has articulated for Title VII or other statutory schemes. With respect to § 106.45(b)(3)(i), which requires mandatory dismissal in certain circumstances, the Department has revised this provision to clarify that such a dismissal does not preclude action under a non-Title IX provision of the recipient’s code of conduct.1618 If a recipient has a code of conduct for employees that goes beyond what Title IX and these final regulations require (for instance, by prohibiting misconduct that does not meet the definition of ‘‘sexual harassment’’ under § 106.30, or by prohibiting misconduct that occurred outside the United States), then a recipient may enforce its code of conduct even if the recipient must dismiss a formal complaint (or allegations therein) for Title IX purposes. These regulations do not preclude a recipient from enforcing a code of conduct that is separate and apart from what Title IX requires, such as a code of conduct that may address what Title VII requires. Accordingly, recipients may proactively address conduct prohibited under Title VII, when the conduct does not meet the definition of sexual harassment in § 106.30, under the recipient’s own code of conduct, as these final regulations apply only to sexual harassment as defined in § 106.30. Campus administrators will not be able to ignore or promote certain reports of sexual harassment to help or undermine the careers of certain faculty. These final regulations apply to all reports of sexual harassment, and a recipient cannot ignore or promote certain reports. In response to these and 1618 § 106.45(b)(3)(i) (providing that the ‘‘recipient must investigate the allegations in a formal complaint. If the conduct alleged by the complainant would not constitute sexual harassment as defined in § 106.30 even if proved, did not occur in the recipient’s education program or activity, or did not occur against a person in the United States, then the recipient must dismiss the formal complaint with regard to that conduct for purposes of Title IX but ‘‘such a dismissal does not preclude action under another provision of the recipient’s code of conduct.’’). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations other comments, the Department has added a provision to expressly prohibit retaliation in § 106.71. Under § 106.71, a faculty member with seniority could not coerce witnesses to provide favorable testimony. No recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or this part. Contrary to the commenter’s assertion, the Department does not have authority to enforce, implement, or administer Title VII. While we appreciate the commenter’s interest in supplementing the final regulations to clarify the relationship between Title VII and Title IX, we decline to include such an explanation at this time. As previously stated, there is no inherent conflict between Title VII and Title IX, and the Department will construe Title IX and its implementing regulations, including these final regulations, in a manner to avoid an actual conflict between an employer’s obligations under Title VII and Title IX. Changes: The Department revises § 106.6(f) to state that nothing in 34 CFR part 106 may be read in derogation of any individual’s rights under Title VII. The Department has added § 106.71 to expressly prohibit retaliation. Additionally, the Department has revised § 106.30 to clarify that aside from the definitions of ‘‘elementary and secondary school’’ and ‘‘postsecondary institution,’’ the definitions in § 106.30 apply to all of 34 CFR part 106 and not just to subpart D of part 106.1619 For similar clarity we have revised § 106.44(d) to refer to subpart D of 34 CFR part 106 rather than solely to 1619 The NPRM proposed that the definitions in § 106.30 apply only to Subpart D, Part 106 of Title 34 of the Code of Federal Regulations. 83 FR 61496. Aside from the words ‘‘elementary and secondary school’’ and ‘‘postsecondary institution,’’ the words that are defined in § 106.30 do not appear elsewhere in Part 106 of Title 34 of the Code of Federal Regulations. Upon further consideration and for the reasons articulated in this preamble, the Department would like the definitions in § 106.30 to apply to Part 106 of Title 34 of the Code of Federal Regulations, except for the definitions of the words ‘‘elementary and secondary school’’ and ‘‘postsecondary institution.’’ The definitions of the words ‘‘elementary and secondary school’’ and ‘‘postsecondary institution’’ in § 106.30 will apply only to §§ 106.44 and 106.45. This revision is not a substantive revision because this revision does not change the definitions or meaning of existing words in Part 106 of Title 34 of the Code of Federal Regulations. Ensuring that the definitions in § 106.30 apply throughout Part 106 of Title 34 of the Code of Federal Regulations will provide clarity and consistency for future application. We also have clarified in § 106.81 that the definitions in § 106.30 do not apply to 34 CFR 100.6–100.11 and 34 CFR part 101, which are procedural provisions applicable to Title VI. Section 106.81 incorporates these procedural provisions by reference into Part 106 of Title 34 of the Code of Federal Regulations. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 § 106.44. With respect to a mandatory dismissal under § 106.45(b)(3)(i), the Department has revised this provision to clarify that such a dismissal is only for Title IX purposes and does not preclude action under another provision of the recipient’s code of conduct. Comments: Another commenter urged the Department to explicitly require that all of a recipient’s employees be aware of the possibly criminal nature of employee-on-student sexual misconduct under State laws and to comply with State mandatory reporting requirements. One commenter stated that elementary and secondary school recipients must ensure that if a student discloses information about sexual misconduct by another student or employee, that all employees must report the information to the Title IX Coordinator. Discussion: The Department encourages all recipients to comply with all laws applicable to the recipient. The Department, however, does not have the authority to enforce or administer State laws or State mandatory reporting requirements. Additionally, it would be a huge burden for the Department to keep track of all the possibly criminal nature of employee-on-student sexual misconduct under State laws and State mandatory reporting requirements to make certain that recipients are aware of such State law requirements or are complying with such requirements. The Department agrees with the commenter’s sentiment that any employee in the elementary and secondary context should be responsible for instituting corrective measures on behalf of the recipient if these employees have notice of sexual harassment or allegations of sexual harassment, and the Department has revised the definition of ‘‘actual knowledge’’ in § 106.30 to include notice to all employees of an elementary or secondary school. Although an elementary or secondary school may require employees to report the information to the Title IX Coordinator, a student’s report of sexual harassment or notice of sexual harassment or allegations of sexual harassment to any employee of the elementary or secondary school is sufficient to hold the school district liable for a proper response under these final regulations. Changes: The Department has revised the definition of actual knowledge in § 106.30 to include notice of sexual harassment to any employee in the elementary or secondary school context. Comments: Some commenters proposed that the Department apply the proposed rules to employees but with some modifications. Commenters asserted that overzealous Title IX PO 00000 Frm 00417 Fmt 4701 Sfmt 4700 30441 enforcement and a broad conception of ‘‘harassment’’ has undermined faculty rights, free speech, and academic inquiry. One commenter requested that the Department not adopt the studenton-student harassment definition for faculty, but to instead adopt a ‘‘severe or pervasive’’ standard for the employment context. This commenter also suggested that the final regulations clearly state they do not preclude recipients’ obligation to honor additional rights negotiated by faculty in any collective bargaining agreement or employment contract. Another commenter contended that, unlike employees, students can be protected during an investigation by a no-contact order. But employees presumably have ongoing relationships with other community members and are likely to continue working together throughout the investigation period. The commenter expressed concern that employees may risk their jobs by acting as a complainant or witness. Discussion: As explained above, the Department’s final regulations apply to employees, and the Department cannot discern any meaningful justification to treat employees, including faculty, differently than students with respect to allegations of sexual harassment. The Department believes that students and employees should have the same protections with respect to regulations addressing sexual harassment. The Department notes that employees, including faculty, sometimes sexually harass students. It would be difficult to reconcile how regulations would apply to employee-on-student sexual harassment, if the Department had a different set of regulations that apply to employees than to students such that a student-complainant’s rights depended on the identity of the respondent as a student or employee. The Department does not wish to adopt a ‘‘severe or pervasive’’ standard for the reasons explained throughout this preamble, including in the ‘‘Definition of Sexual Harassment’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section, and these reasons include guarding against the infringement of First Amendment freedoms such as academic freedom. The Department recognizes that other laws such as Title VII may have a different standard and impose different requirements. There is no inherent conflict between Title VII and Title IX, and employers may comply with the requirements under both Title VII and Title IX. E:\FR\FM\19MYR2.SGM 19MYR2 30442 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations These final regulations do not preclude a recipients’ obligation to honor additional rights negotiated by faculty in any collective bargaining agreement or employment contract, and such contracts must comply with these final regulations. In the Department’s 2001 Guidance, and specifically in the context of the due process rights of the accused, the Department recognized that ‘‘additional or separate rights may be created for employees . . . by . . . institutional regulations and policies, such as faculty or student handbooks, and collective bargaining agreements.’’1620 The Department has never impeded a recipient’s ability to provide parties with additional rights as long as the recipient fulfils its obligations under Title IX. The Department has never suggested otherwise, and we believe it is unnecessary to expressly address this concern in the regulatory text. Although recipients may give employees additional or separate rights, recipients must still comply with these final regulations, which implement Title IX. A recipient may provide a mutual restriction on contact between the parties, including when an employee is a party, under the final regulations. The final regulations do not restrict the availability of supportive measures, as defined in § 106.30, to only students. Rather, supportive measures are available to any complainant or respondent, including employeecomplainants and employeerespondents. In response to commenters’ concerns, the Department has added a provision to expressly prohibit retaliation in § 106.71. Under § 106.71, no recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or this part, or because the individual has made a report or complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part. The Department will not tolerate retaliation against anyone, including an employee who is a complainant or a witness. Changes: The Department has added a provision to § 106.71 to expressly prohibit retaliation. Comments: Many commenters argued that application of the proposed rules to employees is problematic because it would conflict with Federal law and congressional intent. Commenters noted that Title VII already prohibits sex discrimination, including sexual 1620 2001 Guidance at 22. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 harassment, in the employment context, and that other Federal laws prohibit harassment based on other protected characteristics such as race, age, and disability in the employment context. Commenters contended that it would be illogical for the Department to establish protections for respondents accused of sexual harassment that do not exist for respondents accused of race, age, or disability discrimination. A few commenters proposed that the final regulations explicitly state that they apply only to allegations involving student-respondents, and that sexual allegations against employees are governed by Title VII and State and local non-discrimination in employment laws. Similarly, another commenter asked that the final regulations explicitly state that Title VII and similar State and local laws apply where the respondent is an employee, and that Title IX does not require any process in such cases. Some commenters also expressed concern that if the proposed rules apply in the employment context, then recipients would face the impossible situation of having to comply with contradictory Title IX and Title VII standards. Commenters described specific conflicting elements of Title IX and Title VII, including the NPRM’s formal complaint requirement, notice requirement, deliberate indifference standard, sexual harassment definition, and the live hearing requirement. Commenters argued these Title IX provisions, which they alleged conflict with Title VII, are less protective than Title VII, and that the Department should not provide less protection to children in school than adults in the workplace. Some commenters also suggested that conflicts between Title IX and Title VII may create confusion and expose recipients to liability. One commenter asserted that the Department should proceed carefully when affecting a recipient’s personnel decisions because Congress expressed concern about the potential for Federal overreach when creating the Department in 1979 and included a clear statutory prohibition that the Department may not exercise direction, supervision, or control over any recipient’s administration or personnel. Some commenters expressed confusion about the applicability of the proposed grievance process provisions (specifically, § 106.45) to employees and asked the Department to clarify the scope of the grievance procedure requirements with respect to employees. These commenters argued that applying the grievance process required under PO 00000 Frm 00418 Fmt 4701 Sfmt 4700 the final regulations to complaints against all faculty and staff would be an expansion of Title VII and is outside of the Department’s jurisdiction. They also noted that employers already have wellestablished policies and procedures informed by decades of Title VII jurisprudence which drive their responses to allegations of sexual harassment and differ greatly from the requirements in § 106.45. Discussion: The Department disagrees that applying these final regulations to employees conflicts with Federal law and congressional intent. Congress enacted both Title VII and Title IX to address different types of discrimination. Congress enacted Title IX to address sex discrimination in any education program or activity receiving Federal financial assistance, whereas Congress enacted Title VII to address sex discrimination in the workplace. As commenters also acknowledge, the Supreme Court in interpreting Title IX and Title VII has held that different definitions of and standards for addressing sexual harassment apply under Title IX than under Title VII. Although there may be some overlap between Title VII and Title IX, it is not illogical for the Department to establish protections for parties who are reporting sexual harassment or defending against allegations of sexual harassment that are not the same as for parties who are dealing with race, age, or disability discrimination because Title IX, unlike Title VII, solely concerns sex discrimination in an education program or activity that receives Federal financial assistance. Allegations of sexual harassment may implicate a person’s reputation, for example, in ways that allegations of race, age, or disability discrimination may not, even though all of these types of discrimination are prohibited. For instance, false statements about a person’s sexual activity may be actionable as defamation per se.1621 The Department acknowledges that Title VII and Title IX impose different requirements and that some recipients will need to comply with both Title VII and Title IX. Although recipients have noted that Title VII and Title IX have different standards for sexual harassment, recipients have not explained why they cannot comply with both standards. The Department’s view is that there is no inherent conflict between Title VII and Title IX, including these final regulations. For 1621 E.g., Rose v. Dowd, 265 F. Supp. 3d 525, 541 (E.D. Pa. 2017) (noting that statements imputing serious sexual misconduct constitute defamation per se under multiple State laws). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations example, Title VII defines sexual harassment as severe or pervasive conduct, while Title IX defines sexual harassment as severe and pervasive conduct. Nothing in these final regulations precludes a recipientemployer from addressing conduct that it is severe or pervasive, and § 106.45(b)(3)(i) provides that a mandatory dismissal under these final regulations does not preclude action under another provision of the recipient’s code of conduct. Thus, a recipient-employer may address conduct that is severe or pervasive under a code of conduct for employees to satisfy its Title VII obligations. Courts impose different requirements under Title VII and Title IX, and recipients comply with case law that interprets Title VII and Title IX differently. Similarly, recipients may comply with different regulations implementing Title VII and Title IX. For example, nothing in Title VII precludes an employer from allowing employees to file formal complaints or from providing notice to an employee such as notice of the allegations against the employee or notice of the dismissal of any allegations as required in these final regulations. These final regulations require all recipients with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States, to respond promptly in a manner that is not deliberately indifferent, irrespective of whether the complainant and respondent are students or employees. The Department is not exercising direction, supervision, or control over any recipient’s administration or personnel. Indeed, § 106.44(b)(2) specifically states that the Assistant Secretary will not deem a recipient’s determination regarding responsibility to be evidence of deliberate indifference by the recipient, or otherwise evidence of discrimination under Title IX by the recipient, solely because the Assistant Secretary would have reached a different determination based on an independent weighing of the evidence. Accordingly, the Department will not dictate what the recipient’s determination regarding responsibility should be for a respondent who is an employee. Similarly, the Department will not require a recipient to impose a specific type of disciplinary sanction on a respondent who is an employee. The Department only requires a recipient to describe the range of possible disciplinary sanctions in § 106.45(b)(1)(vi) and does not otherwise require a recipient to include specific disciplinary sanctions. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 The Department acknowledges that the grievance process in § 106.45 may apply to employees and disagrees that applying such a grievance process to employees is an expansion of Title VII. The grievance process in § 106.45 does not contradict Title VII or its implementing regulations in any manner and at most may provide more process than Title VII requires. These final regulations, however, do not expand Title VII, as these final regulations are promulgated under Title IX. As previously explained, Title IX prohibits discrimination on the basis of sex in a recipient’s education program or activity against a person in the United States. Title IX and these implementing regulations do not necessarily apply in all circumstances, and there may be circumstances in which Title VII but not Title IX applies. For example, if the alleged sexual harassment did not occur in an education program or activity of the recipient, then Title IX and these final regulations would not apply. Changes: None. Comments: A handful of commenters argued that application of the proposed rules to employees is problematic because it would conflict with State laws, collective bargaining agreements, and other employee contracts. Commenters asserted several State employment statutes and local policies covering issues including the definition of sexual harassment, retaliation, complaint processes, discovery and cross-examination, and other related matters that may conflict with the proposed standards and grievance procedures. Commenters also noted the proposed rules would conflict with many collective bargaining agreements covering unionized employee groups that cover matters such as employee pay, working conditions, and disciplinary processes such as the applicable standard of evidence. Application of the NPRM to these employee groups, they contended, could violate existing multi-year agreements, undermine parties’ expectations, and would likely require recipients to undergo a lengthy and complex renegotiation of union contracts. Commenters expressed concern about Federal intrusion on freedom of contract. One commenter argued that a collective bargaining agreement providing for notice to the accused employee and availability of a posttermination grievance procedure and evidentiary hearing before a neutral and experienced arbitrator satisfies an employee’s constitutional due process rights under U.S. Supreme Court case PO 00000 Frm 00419 Fmt 4701 Sfmt 4700 30443 law and is superior to the NPRM’s hearing process because, among other things, the arbitration process preserves the employer’s decision-making role and is more efficient because the union cannot initiate arbitration if misconduct is clear in its judgment. One commenter asserted that the live hearing requirement for postsecondary institutions creates an unnecessary and duplicative process for employees who are subject to a collective bargaining agreement. According to this commenter, the collective bargaining agreement between a recipient and a union usually requires ‘‘just cause’’ for discipline, and ‘‘just cause’’ requires the employer to have evidence of guilt and make decisions after a fair investigation.1622 This commenter further asserts that a hearing is typically not part of the determination of ‘‘just cause’’ unless the recipient and the union specifically bargain for such a pre-termination hearing. This commenter stated that unions that do not require a pre-termination hearing often bargain to provide a grievance procedure that concludes with an arbitration of the dismissal through a hearing with cross-examination. This commenter is concerned that a live hearing with cross-examination under § 106.45(b)(6)(i) will create a significant disincentive for an employee to complain about harassment because that employee may be subject to a pretermination live hearing as well as an arbitration that requires a hearing with cross-examination. This commenter also asserts that employers will resolve employment disputes with employees and unions through resolution agreements to avoid an additional hearing. Another commenter expressed concern that applying the proposed rules to unions or members of unions with collective bargaining agreements may cause unrest, strikes, and increase litigation risk under Federal and State labor laws. One commenter asserted that applying the NPRM to non-student employees may conflict with State tort law requirements, which impose liability on employers for actions of their employees in certain circumstances. A few commenters emphasized that the relationship between recipients and employees is fundamentally different than the relationship between recipients and students; recipients may have a strong interest in maintaining privacy for parties and witnesses in workplace 1622 Kenneth May et al., Elkouri & Elkouri: How Arbitration Works 15–4 to 15–6 (8th ed. 2017 Supp.). E:\FR\FM\19MYR2.SGM 19MYR2 30444 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations investigations because those individuals may continue working within the campus community. Another commenter asked whether the NPRM requires disclosure of all related evidence in employee matters, including potentially confidential employment information regarding other employees. Discussion: The Department acknowledges that some collective bargaining agreements may need to be renegotiated for a recipient to comply with these final regulations, and the Department understands that some recipients have concerns about strikes and unrest as well as increased litigation risk under Federal and State labor laws. The Department also acknowledges concerns about a recipient’s obligation to comply with various State employment laws and other laws as well as these final regulations. The Department reminds recipients that recipients choose to receive Federal financial assistance and that these final regulations are a condition of that Federal financial assistance. Recipients may wish to forego receiving Federal financial assistance if the recipients do not wish to renegotiate a collective bargaining agreement or are concerned about complying with State employment laws or other laws. The Department is not intruding on the freedom of contract, as recipients remain free to choose whether to enter into an agreement with the Department to comply with these final regulations as a result of receiving Federal financial assistance. The Department disagrees with the commenter who recommends adopting an arbitration process for employees for the purpose of responding to sexual harassment. We believe that the process in § 106.45 to address formal complaints of sexual harassment provides robust due process protections and are not certain whether these same due process protections will be offered in an arbitration process. With respect to the arbitration process described by the commenter, the union cannot initiate arbitration if misconduct is clear in its judgment. Such an arbitration provision gives great authority to the union to determine whether the employee is even eligible to receive the opportunity to enjoy the alleged due process protections in the arbitration process. Unlike the arbitration process that the commenter describes, these final regulations provide a formal complaint process that any complainant may initiate. Additionally, recipients may facilitate an informal resolution process under § 106.45(b)(9). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 The Department appreciates the commenter’s concerns about collective bargaining agreements that require a post-termination grievance procedure. The commenter acknowledges that requirements in collective bargaining agreements differ and that some agreements provide a pre-termination hearing, while other agreements provide a post-termination hearing. The commenter further acknowledges that the hearing required in a collective bargaining agreement is a result of a negotiation or bargain between unions and recipients. If a recipient chooses to accept Federal financial assistance and thus become subject to these final regulations, then the recipient may negotiate a collective bargaining agreement that requires a pretermination hearing consistent with the requirements for a hearing under § 106.45(b)(6). Nothing precludes a recipient and a union from renegotiating agreements to preclude the possibility of having both a pre-termination live hearing that complies with § 106.45(b)(6) and a post-termination arbitration that requires a hearing with cross-examination. These final regulations do not require both a pretermination hearing and a posttermination hearing, and recipients have discretion to negotiate and bargain with unions acting on behalf of employees for the most suitable process that complies with these final regulations. The Department agrees that employers have a strong interest in maintaining privacy for parties and witnesses in workplace investigations. In response to concerns regarding privacy and confidentiality, the Department has added a provision in § 106.71 that requires the recipient to keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. Changes: The Department has added a provision to § 106.71 that requires the recipient to keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual PO 00000 Frm 00420 Fmt 4701 Sfmt 4700 harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. Comments: Commenters cautioned that the Department should not disrupt school processes. One commenter contended that the NPRM is too prescriptive and wrongly imposes a onesize-fits-all system, thus ignoring the reality that recipients employ a wide variety of workers with different relationships to their employer, such as temporary, part-time, and full-time employees; or at-will, unionized, and tenured employees. These different roles often have unique applicable grievance procedures, and the commenter contended that the Department is wrongly considering imposing the same process on all of them. Some commenters believed the NPRM interferes with the at-will employment doctrine. Commenters asserted the NPRM should not address harassment by employees; under the at-will doctrine, absent a specific contract term to the contrary, an employee can quit or be fired without liability on the employer or employee, with or without cause. One commenter asserted that the Department failed to provide a principled reason why sex discrimination and harassment cases, but not other types of discrimination or harassment, justify overruling the atwill doctrine. Another commenter emphasized that while Title VII also prohibits sex discrimination, it does not require the type of detailed disciplinary proceedings under the NPRM. However, private employers can presumably fire employees for sexual harassment after simply conducting an internal investigation. This commenter concluded that it would be illogical for private employees in every industry except for higher education to be subject to general rules governing at-will employees, while the Department suddenly vests employees at private universities with certain ‘‘due process’’ rights. Commenters discussed specific aspects of the NPRM such as the live hearing requirement and the possibility that recipients would have to supply legal advisors for employees and described these provisions as dramatically altering the nature of the E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations relationship between the employee and recipient. Discussion: The Department realizes that recipients, like most employers, may have different types of employees, including temporary, part-time, fulltime, tenured, and at-will employees. The presence of different types of employees does not require that these employees be treated any differently for purposes of sexual harassment. A recipient should not be able to treat an allegation of sexual harassment differently based on the type of employee who is reporting the sexual harassment or who is the subject of the report. The Department believes that irrespective of position, tenure, parttime status, or at-will status, no employee should be subjected to sexual harassment or be deprived of employment as a result of allegations of sexual harassment without the protections and the process that these final regulations provide. Employers also may not take an adverse employment action against atwill employees, if such an adverse employment action constitutes discrimination under Title VII, which includes sex discrimination. Thus, these final regulations are not imposing obligations that unduly burden recipient-employers. Contrary to the commenters’ assertions, the Department is not ‘‘overruling’’ the at-will employment doctrine or requiring private employees in every industry except for higher education to be subject to general rules governing at-will employees. These final regulations do not apply only to postsecondary institutions but also to elementary and secondary schools as well as other recipients of Federal financial assistance such as some museums. These final regulations apply to any education program or activity of a recipient receiving Federal financial assistance. If recipients do not wish to become subject to these final regulations, then recipients may choose not to receive Federal financial assistance. If the commenter’s argument is followed to its logical conclusion, then a recipient may terminate an at-will employee for reporting sexual harassment and not offer any protections to such employees to come forward with allegations of sexual harassment under Title IX. The Department finds it concerning that recipients would wish to terminate any employee, including an at-will employee, for reporting sexual harassment and not offer any protections to such employees to come forward with allegations of sexual harassment. Similarly, the Department finds it concerning that recipients may VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 wish to terminate a person’s employment based on an allegation of sexual harassment without any investigation or other fact-finding activity. We believe that these final regulations provide the most appropriate protections and process for both employees reporting sexual harassment and employees accused of sexual harassment. As explained earlier in this section, allegations of sexual harassment have different consequences than allegations of other types of discrimination. For example, allegations of sexual harassment may lead to a criminal conviction. Contrary to the commenter’s assertions, these final regulations would not require a recipient to provide legal advisors for employees. Advisors do not have to be attorneys, and the Department has revised the final regulations to clarify that the advisors may be, but are not required to be, attorneys.1623 These final regulations do not otherwise dramatically alter the relationship between the recipient and the employee, as employers have always had to address sexual harassment in the workplace under either Title IX or Title VII. These final regulations simply provide greater clarity and consistency with respect to the recipient’s obligations to respond to allegations of sexual harassment under Title IX. Changes: The Department has revised § 106.45(b)(5)(iv) and § 106.45(b)(6)(i) to clarify that an advisor may be, but is not required to be, an attorney. Comments: One commenter requests clarification on whether the definition of student as a person who has gained admission implies that one also becomes an employee at the time of a job offer as opposed to at the time the offer is signed and accepted. Discussion: The Department appreciates the opportunity to clarify whether the definition of the term ‘‘student’’ as ‘‘a person who has gained admission’’ 1624 implies that one also becomes an employee at the time of a job offer as opposed to at the time the offer is signed and accepted. The Department notes that the definition of ‘‘student’’ in 34 CFR 106.2(r) only refers 1623 The final regulations include language clarifying that party advisors may be, but need not be, attorneys, in § 106.45(b)(5)(iv) (regarding both parties’ equal opportunity to select an advisor of choice), § 106.45(b)(2) (initial written notice of allegations must advise parties of their right to select an advisor of choice), and § 106.45(b)(6)(i) (requiring recipients to provide a party with an advisor to conduct cross-examination on behalf of a party if the party does not have an advisor at the hearing). 1624 See 34 CFR 106.2(r) (‘‘Student means a person who has gained admission.’’) (emphasis in original). PO 00000 Frm 00421 Fmt 4701 Sfmt 4700 30445 to that term and does not affect the definition of the term ‘‘employee’’ under the final regulations. The Department defers to State law with respect to employees, and State law will govern whether a person is an employee as opposed to an independent contractor. State law also will govern whether a person is an employee at the time of a job offer as opposed to the time when that person accepts the job offer. The Department notes, however, that employment status may not always be the most relevant determination as a complainant must be participating in or attempting to participate in an education program or activity of the recipient at the time of filing a formal complaint as explained in the definition of ‘‘formal complaint’’ in § 106.30. Changes: None. Comments: One commenter argued the NPRM is unconstitutional under U.S. Supreme Court case law as applied to religiously-affiliated institutions insofar as it would preclude recipients from immediately terminating employment of any employee whose duties include ministerial tasks. Discussion: An educational institution that is controlled by a religious organization is exempt from complying with Title IX and these final regulations to the extent that Title IX or its implementing regulations would not be consistent with the religious tenets of such organization under 20 U.S.C. 1681(a)(3). These final regulations, thus, are not unconstitutional, and a recipient may assert an exemption under § 106.12 of these final regulations, if applicable. Changes: None. Comments: A few commenters expressed concern about applying the NPRM to student complaints against employees because it could increase unfairness and chill reporting. Commenters noted that employeerespondents generally have funding to pay for private, skilled attorneys with experience in cross-examination, whereas students may be more likely to hire non-attorneys or less talented lowcost attorneys as advisors. This would only exacerbate a power differential between employees tied to the campus and students who stand to lose a degree for which they invested significant time, energy, and money. Commenters also stated that it can be extremely challenging for student-complainants to be subjected to cross-examination by employee-respondents, especially if the respondent is a prominent faculty member. Discussion: We disagree that these final regulations will chill reporting as applied to employee-on-student sexual harassment. These final regulations E:\FR\FM\19MYR2.SGM 19MYR2 30446 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations provide a complainant with various options, including the guarantee that the recipient must offer supportive measures, irrespective of whether the complainant files a formal complaint. These final regulations also contain robust retaliation protections. It is unfair and inaccurate to assume that an employee will always have more resources than a student and that an employee will be able to hire a skilled attorney as an advisor. Employees include all levels of employees, and an employee who is a janitor may not earn as much as an employee who is a tenured professor. Additionally, some students may come from wealthy families who will provide an attorney as an advisor for the student. The status of a party as a student or an employee is not always indicative of the resources available to that party. Both parties will be subjected to cross-examination through a party’s advisor, and parties have the option of being in separate rooms during the live hearing pursuant to § 106.45(b)(6)(i). Changes: None. Comments: Some commenters stated that the NPRM’s requirements, as applied to employees, are unduly burdensome on recipients, would unnecessarily lengthen resolution time frames, and would increase compliance costs. In particular, commenters noted, the NPRM’s live hearing with crossexamination requirement would lengthen complaint resolution time, impede recipients’ ability to take action against employees who violated policy, and add substantial compliance costs as recipients must ensure those overseeing hearings and conducting crossexamination are competent and qualified to do so. Commenters urged the Department not to turn recipients into arms of the criminal justice system. Discussion: The Department believes that these final regulations provide a balanced approach to responding to a complainant’s report of sexual harassment, while also affording both parties due process protections. These final regulations provide that a recipient must respond promptly in a manner that is not deliberately indifferent under § 106.44(a). The Department further notes that under § 106.45(b)(1)(v), a recipient must include reasonably prompt time frames for the conclusion of the grievance process, including reasonably prompt time frames for filing and resolving appeals and informal resolution processes, if the recipient offers informal resolution processes. These final regulations require a recipient-employer to respond promptly including when a respondent is an employee. For the reasons stated earlier VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 in this preamble and earlier in this section, these final regulations should apply to both students and employees. Recipients should be willing to respond in a manner that is not deliberately indifferent irrespective of the cost of compliance of providing hearing officers and advisors to conduct crossexamination. Additionally, a recipient has more discretion under these final regulations than under the Department’s past guidance. For example, a recipient may offer an informal resolution process to resolve sexual harassment allegations as between two employees under § 106.45(b)(9). A recipient, however, cannot offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student because as explained more fully in the ‘‘Informal Resolution’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, the power dynamic and differential between an employee and a student may cause the student to feel coerced into resolving the allegations. Changes: None. Comments: One commenter argued that the NPRM’s application to academic medical centers is problematic because these institutional structures typically have thousands of employees uninvolved with any education program or activity, who work entirely in clinical care and do not interact with students. The commenter asserted that the Department should not establish broader due process protections for these employees than for similarly situated employees at non-academic medical centers or for students alleging sexual misconduct outside an education program or activity. The commenter proposed that the Department allow these entities to develop their own disciplinary processes. Another commenter suggested that case law is split as to whether medical residents and post-graduate fellows, who meet the definition of ‘‘employees’’ under Title VII and most statutes, are covered by Title IX at all. This uncertainty exposes academic medical centers to litigation risk from both complainants and respondents. The commenter contended that if the Department concludes medical residents are covered by Title IX, then the final regulations should not apply to sexual harassment complaints by patients against medical residents because the formal grievance process would be unworkable for cases involving only non-students. Discussion: The Department understands that academic medical centers are unique entities, but Congress PO 00000 Frm 00422 Fmt 4701 Sfmt 4700 did not exempt academic medical centers that receive Federal financial assistance from Title IX.1625 Title IX and these final regulations require recipients to respond to sexual harassment in the recipient’s education program or activity, as defined in § 106.30. The Department is not creating broader due process protections for employees at these academic medical centers than at non-academic medical centers. The Department is providing adequate due process protections in this context for employees of any recipient of Federal financial assistance, irrespective of the nature or character of the recipient. The recipient remains free to choose not to receive Federal financial assistance and, thus, not become subject to these final regulations. The Department realizes that the live hearing required for postsecondary institutions in § 106.45(b)(6)(i) may prove unworkable in a different context. Accordingly, as to recipients that are not postsecondary institutions, the Department has revised § 106.45(b)(6)(ii) to provide that the recipient’s grievance process may require a live hearing and must afford each party the opportunity to submit written questions, provide each party with the answers, and allow for additional, limited follow-up questions from each party. Academic medical centers are not postsecondary institutions, although an academic medical center may be affiliated with a postsecondary institution or even considered part of the same entity as the postsecondary institution. Through this revision the Department is giving entities like academic medical centers greater flexibility in determining the appropriate process for a formal complaint. Academic medical centers may develop their own disciplinary processes as long as these processes comply with these final regulations. These final regulations address sexual harassment as defined in § 106.30, and nothing in these final regulations precludes a recipient, including an academic medical center, to respond to conduct that is not sexual harassment under another provision of the recipient’s code of conduct. The Department is not categorically exempting any person, including medical residents, from Title IX and these final regulations. Whether these final regulations apply to a person, including a medical resident, requires a factual determination as each incident 1625 The Department notes that academic medical centers also may fall under the jurisdiction of the Office for Civil Rights at the U.S. Department of Health and Human Services. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations of sexual harassment is unique. If a medical resident is accused of sexual harassment in an education program or activity of the recipient against a person in the United States, the recipient must respond promptly in a manner that is not deliberately indifferent. The Department notes that the Title IX statute 1626 and existing Title IX regulations,1627 already contain detailed definitions of ‘‘program or activity’’ that, among other aspects of such definitions, include ‘‘all of the operations of’’ a postsecondary institution or local education agency. The Department will interpret ‘‘program or activity’’ in these final regulations in accordance with the Title IX statutory (20 U.S.C. 1687) and regulatory definitions (34 CFR 106.2(h)) as well as the statement (based on Supreme Court language in Davis 1628) added in the final regulations to § 106.44(a) that ‘‘education program or activity’’ includes locations, events, or circumstances over which the recipient exercised substantial control over both the context of the harassment and the respondent.1629 The Department disagrees that the formal complaint process would be unworkable for cases involving only non-students. A recipient may make supportive measures available to patients and medical residents. For example, patients may be assigned to a different physician, and a medical resident’s schedule may be changed to avoid interaction with a complainant or a respondent. Patients may choose to resolve any report of sexual harassment against a medical resident through an informal resolution process, if the recipient provides such an informal resolution process. The Department acknowledges that a person, including a patient, must be participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed. The Department realizes that the recipient may not require a patient to participate in a formal complaint process, but a patient who is participating in or attempting to participate in the education program or activity of the recipient must have the 1626 20 U.S.C. 1687. CFR 106.2(h); 34 CFR 106.2(i) (defining ‘‘recipient’’); 34 CFR 106.31(a) (referring to ‘‘any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives Federal financial assistance’’). 1628 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646 (1999). 1629 ‘‘Education program or activity’’ in § 106.44(a) also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution. 1627 34 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 option to file a formal complaint under these final regulations. The Department realizes that the live hearing required for a postsecondary institution in § 106.45 may prove unworkable in a different context. Accordingly, for recipients that are not institutions of higher education, the recipient’s grievance process may require a live hearing and must afford each party the opportunity to submit written questions, provide each party with the answers, and allow for additional, limited follow-up questions from each party under § 106.45(b)(6)(ii). As previously stated, academic medical centers are not postsecondary institutions, although an academic medical center may be affiliated with a postsecondary institution or even considered part of the same entity as the institution of higher education. Through this revision the Department is giving entities like academic medical centers greater flexibility in determining the appropriate process for a formal complaint. Changes: The Department has revised § 106.45(b)(6)(ii), which concerns the type of process a recipient must provide in response to a formal complaint, to apply to recipients that are not postsecondary institutions. Comments: One commenter asserted that aspects of § 106.45(b) are unworkable for U.S. medical schools because medical students typically participate in clinical clerkships with preceptors located at separate facilities far from the medical school building. The commenter emphasized that it is not feasible to ask preceptive physicians at separate hospital systems who are parties or witnesses to participate in interviews, hearings, and crossexamination at the home institution. Discussion: Recipients, including medical schools, must determine what constitutes an education program or activity. If a medical student experiences sexual harassment or is accused of sexual harassment in an education program or activity of the recipient against a person in the United States, the recipient must respond promptly in a manner that is not deliberately indifferent. The Title IX statute1630 and existing Title IX regulations,1631 already contain detailed definitions of ‘‘program or activity’’ that, among other aspects of such definitions, include ‘‘all of the operations of’’ a 1630 20 U.S.C. 1687. CFR 106.2(h); 34 CFR 106.2(i) (defining ‘‘recipient’’); 34 CFR 106.31(a) (referring to ‘‘any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives Federal financial assistance’’). 1631 34 PO 00000 Frm 00423 Fmt 4701 Sfmt 4700 30447 postsecondary institution or local education agency. The Department will interpret ‘‘program or activity’’ in these final regulations in accordance with the Title IX statutory (20 U.S.C. 1687) and regulatory definitions (34 CFR 106.2(h)) as well as the statement (based on Supreme Court language in Davis1632) added in the final regulations to § 106.44(a) that ‘‘education program or activity’’ includes locations, events, or circumstances over which the recipient exercised substantial control over both the context of the harassment and the respondent. The commenter’s description of the clinical clerkships with preceptors located at separate facilities far from the medical school building may or may not be part of the recipient’s education program or activity. The recipient must consider whether the recipient exercised substantial control over both the respondent and the hospital or medical clinic where the clinical clerkship is held. The Department also notes that we have revised § 106.45(b)(1)(iii) to require recipients to train Title IX personnel on the scope of the recipient’s education program or activity. If the clinical clerkship is part of the education program or activity of the recipient, the recipient may always ask preceptive physicians at separate hospital systems to participate in interviews, hearings, and crossexamination remotely. The Department realizes that the recipient may not have any control over physicians at separate hospital systems and allows a recipient to dismiss a formal complaint if specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein under § 106.45(b)(3)(ii). Even if a recipient cannot gather evidence sufficient to reach a determination, the recipient must still offering supportive measures to its students or employees who are complainants under § 106.44(a), which may include the opportunity to participate in a different clinical clerkship to fulfill an academic requirement. Changes: None. Comments: Many commenters offered suggestions to the Department regarding the application of the NPRM to employees. One commenter requested that the final regulations explicitly endorse the important role of shared governance in an institution of higher education’s development of Title IX policies, as faculty are in the best position to make responsibility determinations regarding faculty1632 Davis, E:\FR\FM\19MYR2.SGM 526 U.S. at 646. 19MYR2 30448 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations respondents. This commenter argued that any Title IX investigation of faculty should start with a referral to the established faculty governance committee or, if it does not exist, the final regulations should mandate its creation. The commenter also proposed that the final regulations explicitly require equal due process protections for faculty employees at all levels. Another commenter proposed that the Department define ‘‘employee’’ as including all adults, staff, and volunteers working under the school’s purview. One commenter argued that the final regulations should not apply to third parties who do not have a formal affiliation with the recipient. One commenter requested that the Department make deliberately false accusations by students against employee-respondents a Title IX violation as gender discrimination and, if not, then at least require recipients to take action under other civil rights laws or recipient policy. One commenter asserted that the NPRM requires ‘‘equitable’’ procedural elements and ‘‘equal’’ treatment of parties, but that Title IX’s mandate is for ‘‘equitable’’ not ‘‘equal’’ access. This commenter recommended that the Department revise the final regulations to address the need for ‘‘equitable’’ treatment of parties. According to this commenter, equitable treatment might not be exactly the same treatment due to the parties’ different circumstances, and this commenter asserted that equity and equality are not synonymous. Discussion: The Department is aware that many postsecondary institutions require faculty-governance, and these final regulations do not preclude participation of a faculty-governance committee for reports of sexual harassment against faculty members. Indeed, the hearing officers may be faculty members as long as these hearing officers are trained, do not have any conflict of interest, do not have bias for or against complainants or respondents generally or for an individual complainant or respondent, and comply with the other requirements in § 106.45(b)(1)(iii). The Department need not mandate such a facultygovernance committee, as recipients have discretion to determine how best to deal with reports or formal complaints of sexual harassment against faculty members. The Department will defer to the discretion of the recipient in this regard. As previously stated, Congress did not limit the application of Title IX to students. Title IX, 20 U.S.C. 1681, expressly states: ‘‘No person in the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .’’ Title IX, thus, applies to any person in the United States who experiences discrimination on the basis of sex under any education program or activity receiving Federal financial assistance. Similarly, these final regulations, which address sexual harassment, apply to any person, including an employee, in an education program or activity receiving Federal financial assistance. The Department does not define the level and type of employee, as the Department may not be able to adequately capture all the possible types of employees who work for a recipient of Federal financial assistance. These final regulations also may apply to volunteers, if the volunteers are persons in the United States who experience discrimination on the basis of sex under any education program or activity receiving Federal financial assistance. As previously stated, each incident of sexual harassment presents unique facts that must be considered to determine the recipient’s obligations under these final regulations. These final regulations recognize that a party may make deliberately false accusations, and the retaliation provision in § 106.71(b)(2) expressly states in relevant part: ‘‘Imposing sanctions for making a materially false statement in bad faith in the course of a grievance proceeding under this part does not constitute retaliation . . . .’’ A recipient may take action against a party who makes a materially false statement in bad faith in the course of a grievance proceeding. Such a materially false statement may but does not always constitute discrimination on the basis of sex. A recipient would need to examine the content, purpose, and intent of the materially false statement as well as the circumstances under which the statement was made to determine whether the statement constitutes sex discrimination. The Department has made revisions to address the need to treat the parties equitably. The Department revised § 106.44(a) to require that recipients treat complainants and respondents equitably, specifically to mean offering supportive measures to a complainant and a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures, as defined in § 106.30, for a respondent. Similarly, we have revised § 106.45(b)(1)(i) to require equitable PO 00000 Frm 00424 Fmt 4701 Sfmt 4700 treatment of complainants by providing remedies where a respondent is found responsible, and equitable treatment of respondents by applying a grievance process that complies with § 106.45 before imposing disciplinary sanctions or other actions that are not ‘‘supportive measures,’’ as defined in § 106.30. In this manner, the final regulations more clearly define where equal treatment of parties, versus equitable treatment of parties, is required. Changes: The Department has revised § 106.44(a) to require recipients to treat complainants and respondents equitably by offering supportive measures to a complainant and by following a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent. Similarly, we have also revised § 106.45(b)(1)(i) to require equitable treatment of the parties by providing remedies to a complainant where a respondent is found responsible and requiring a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent. Comments: Many commenters requested clarification from the Department on matters relating to the application of Title IX to employees. Commenters asked whether the NPRM only applies to complaints by students against students, employees, and third parties or whether it also applies to complaints by employees against students and other employees. One commenter inquired whether the proposed rules applies to third-party complaints against students. Another commenter asserted that Title VII deems employers responsible for harassment by non-supervisory employees or non-employees over whom it has control if the employer knew about the harassment and failed to take prompt and appropriate corrective action; however, the commenter asserted, the NPRM stated that recipients are only liable for conduct over which they ‘‘have control.’’ This commenter requested that the Department clarify this intersection of Title VII and Title IX. One commenter asked whether the Title VII or Title IX sexual harassment definition applies where employees allege harassment by students. One commenter asked whether the NPRM’s deliberate indifference standard or the Title VII standard regarding employer liability applies for employee-onemployee cases that occur on campus. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Another commenter asked whether the NPRM applies to students who are also full-time employees of the recipient. One commenter expressed concern that the NPRM’s live hearing requirement for sex discrimination, whether involving faculty, staff, or students, may create confusion and conflict between Title IX, Title VI, and Title VII. For example, this commenter stated, if allegations also involve racial discrimination then it is unclear whether the recipient must carve out the non-sex discrimination issue and proceed without a live hearing yet address the sex-related claims with a hearing. Discussion: These final regulations may apply to reports and formal complaints by employees against students and other employees, and also may apply to third-party complaints against students. These final regulations also may apply to students who are fulltime employees. As explained earlier, Title IX, 20 U.S.C. 1681 prohibits discrimination on the basis of sex against a person in the United States in an education program or activity and does not preclude application to specific groups of people such as employees. Similarly, these final regulations require a recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States to respond promptly and in a manner that is not deliberately indifferent, under § 106.44(a). If a recipient has actual knowledge of a student sexually harassing an employee or a third party in a recipient’s education program or activity in the United States, then the recipient must respond in a manner that is not deliberately indifferent.1633 With respect to the whether a grievance process is initiated against a respondent, at the time of filing a formal complaint, a complainant, whether an employee or a third party or a student, must be participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed.1634 The 1633 Any person may be a complainant (i.e., a person alleged to be the victim of sexual harassment), including a student, employee, or third party. § 106.30 (defining ‘‘complainant’’). Any person may report sexual harassment—whether the person reporting is the alleged victim themselves, or a third party—and trigger the recipient’s response obligations. E.g., § 106.8(a); § 106.30 (defining ‘‘actual knowledge’’). 1634 § 106.30 (defining ‘‘formal complaint’’). See also § 106.45(b)(3)(ii) (authorizing discretionary dismissal of a formal complaint in certain circumstances, including when the respondent is no longer enrolled or employed by the recipient, or where specific circumstances prevent the recipient VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Department acknowledges that a third party may be less likely to participate in a grievance process under § 106.45 than a party who is a student or employee of the recipient,1635 but nothing prevents a recipient from complying with these final regulations by promptly responding when the recipient has actual knowledge of sexual harassment or allegations of sexual harassment under § 106.44(a), including by offering supportive measures to a complainant. The Department recognizes that Title VII and Title IX may impose different obligations, but the Department does not administer or oversee the administration of Title VII. Accordingly, the Department will not opine on how Title VII should be administered or a recipient’s obligations under Title VII, including when the sexual harassment definition or reasonableness standard under Title VII applies. To the extent that the commenters seek clarity on a recipient’s responsibilities under Title IX, these final regulations provide such clarity. The Department adopts a deliberate indifference standard in § 106.44(a). The Department recognizes that an employer may have a different standard under Title VII, and nothing in these final regulations or in 34 CFR part 106 precludes an employer from satisfying its legal obligations under Title VII. There is no inherent conflict between Title VII and Title IX, and the Department will construe Title IX and its implementing regulations in a manner to avoid an actual conflict between an employer’s obligations under Title VII and Title IX. The Department also clarifies in § 106.44(a) that education program or activity includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs. These final regulations may impose different requirements than Title VI and Title VII, but they do not present an inherent conflict with these other statutory schemes. The Department also administers Title VI and acknowledges that a recipient has discretion to determine whether the non-sex discrimination issue such as race discrimination should go through a process like the process described in § 106.45. If allegations of sexual harassment arise out of the same facts and circumstances as allegations of race discrimination under Title VI, the from gathering evidence sufficient to reach a determination regarding responsibility). 1635 We reiterate that a recipient is prohibited from retaliating against any person for participating, or refusing to participate, in a Title IX grievance process. § 106.71(a). PO 00000 Frm 00425 Fmt 4701 Sfmt 4700 30449 recipient has the discretion to use the process described in § 106.45 to address sex and race discrimination or choose a different process that complies with the Department’s regulations implementing Title VI to address the allegations of race discrimination. Changes: None. Comments: One commenter expressed support for § 106.6(f), and asserted that the provision appropriately clarifies that Title IX cannot deprive individuals of their Title VII rights. Another commenter argued that § 106.6(f) fails to clearly distinguish application of Title IX from Title VII. This commenter urged the Department to clarify § 106.6(f) by identifying which specific employee Title VII rights Title IX will not derogate, and to also explicitly state that the NPRM does not create a new Title IX right of action for employees. Another commenter requested that Title VII be the exclusive remedy for complainants alleging sex discrimination in employment, and that the final regulations should explicitly state that Title VII preempts Title IX in such cases. One commenter argued that the Department lacks regulatory authority under Title IX to override statutory rights provided by Title VII. This commenter provided no further explanation. One commenter suggested that if § 106.6(f) states that employee rights under Title VII will not be impinged by Title IX regulations, then the final regulations should similarly state that Title IX rights will not be impinged by Title VII regulations. Discussion: The Department appreciates the comment in support of its final regulations. The Department does not have the authority to administer or oversee the administration of Title VII and, thus, will not opine on any specific rights under Title VII that an employee has. The Department does not have the power to create a ‘‘new Title IX right of action for employees.’’ The courts will determine what rights of action employees have under Title IX and Title VII. As previously noted, the split among Federal courts is whether an implied private right of actions exists for damages under Title IX for redressing employment discrimination by employers.1636 These cases focus on 1636 See Lakosi v. James, 66 F.3d 751, 755 (5th Cir. 1995); Burrell v. City Univ. of N.Y., 995 F. Supp. 398, 410 (S.D.N.Y. 1998); Cooper v. Gustavus Adolphus Coll., 957 F. Supp. 191, 193 (D. Minn. 1997); Bedard v. Roger Williams Univ., 989 F. Supp. 94, 97 (D.R.I. 1997); Torres v. Sch. Dist. of Manatee Cnty., Fla., No. 8:14–CV–1021–33TBM, 2014 WL 418364 at *6 (M.D. Fla. Aug. 22, 2014); Winter v. Penn. State Univ., 172 F. Supp. 3d 756, 774 (M.D. Pa. 2016); Uyai v. Seli, No. 3:16–CV–186, 2017 WL E:\FR\FM\19MYR2.SGM Continued 19MYR2 30450 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations whether Congress intended for Title VII to provide the exclusive judicial remedy for claims of employment discrimination.1637 Courts, however, have not precluded the Department from administratively enforcing Title IX with respect to employees. Indeed, the Supreme Court expressly recognized the application of Title IX to redress employee-on-student sexual harassment in Gebser.1638 The Department notes that its regulations have long addressed employees. For example, 34 CFR part 106, subpart E expressly addresses discrimination on the basis of sex in areas unique to employment. When the Department was formerly part of the Department of Health, Education, and Welfare, the Supreme Court noted that the Department’s ‘‘workload [was] primarily made up of ‘complaints involving sex discrimination in higher education academic employment.’ ’’ 1639 The Department is not overriding statutory rights provided by Title VII, and the commenter does not explain how these final regulations override any statutory rights under Title VII. These final regulations do not need to state that Title IX rights will not be impinged by Title VII regulations, as nothing suggests that Title VII may impinge on Title IX rights under these final regulations. As previously noted, the Department does not administer or oversee the administration of Title VII and will not issue regulations to administer Title VII. Changes: None. Comments: Several commenters contended that establishing different Title IX standards than other nondiscrimination laws will send the wrong message. Commenters emphasized that all forms of discrimination are wrong, and the Department should not create different standards for Title IX with different levels of protection that do not apply to Title VII and other nondiscrimination statutes schools must follow. One commenter asserted that telling employees to report sexual harassment under Title IX may confuse people and lead them to believe that sexual harassment wasn’t already illegal prior to Title IX or prior to the existence of a Title IX office on campus. Discussion: The Department respectfully disagrees that establishing different requirements under Title IX than other non-discrimination laws will send the wrong message. Sex 886934 at *6 (D. Conn. Mar. 6, 2017); Fox v. Pittsburg State Univ., 257 F. Supp. 3d 1112, 1120 (D. Kan. 2017). 1637 See id. 1638 Gebser, 524 U.S. at 277. 1639 Cannon, 441 U.S. at 708 fn.42. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 discrimination and the handling of sex discrimination claims differ in some important ways from other types of discrimination, such as discrimination on the basis of race. For example, a person may be criminally charged with some forms of sexual harassment such as sexual assault. The Department discusses the differences among various non-discrimination statutes, such as Title VI, Title IX, and Section 504, in greater detail in the ‘‘Different Standards for Other Harassment’’ subsection of the ‘‘Miscellaneous’’ section of this preamble. The Department acknowledges that these final regulations share some similarities with Title VII but also differ from Title VII. As previously explained, an employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on the individual’s participation in unwelcome sexual conduct, which is commonly referred to as quid pro quo sexual harassment, also remains a part of the Department’s definition. Quid pro quo sexual harassment is also recognized under Title VII.1640 As discussed in greater detail, below, some commenters requested that the Department more closely align its definition of sexual harassment with the definition that the Supreme Court uses in the context of discrimination based on sex in the workplace under Title VII. The Supreme Court declined to adopt the definition of sexual harassment in the workplace for Title IX, and the Department is persuaded by the Supreme Court’s reasoning in Davis that ‘‘schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults.’’ 1641 Similarly, a postsecondary institution also differs from the workplace. The sense of Congress is that institutions of higher education should facilitate the free and robust exchange of ideas,1642 but such an exchange may prove disruptive, undesirable, or impermissible in the workplace. The Department, like the Supreme Court, does not wish to extend the definition of sexual harassment in Title VII to Title IX because such an extension would broaden the scope of prohibited speech and expression and may continue to cause recipients to infringe upon the First Amendment freedoms of students and employees. The Department does not believe that allowing employees to report sexual 1640 E.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752–53 (1998). 1641 Davis, 526 U.S. at 651–52 (citing Meritor Sav. Bank, FSB v. Vinson, 277 U.S. 57, 67 (1986)). 1642 20 U.S.C. 1101a(a)(2)(C). PO 00000 Frm 00426 Fmt 4701 Sfmt 4700 harassment or other sex discrimination under Title IX or to the Title IX Coordinator or a Title IX office will somehow lead people to believe that sexual harassment was lawful until Title IX was enacted or until these final regulations take effect. As many commenters have noted, Title VII also prohibits discrimination based on sex in employment, and employees should know that Congress has prohibited sex discrimination in the workplace. Changes: None. Comments: Many commenters stated that establishing different standards in Title IX than in other nondiscrimination law will reduce recipient flexibility. One commenter argued that the NPRM appears to require schools to establish a more complainant-hostile process for employee sexual harassment matters than other discriminationrelated and employee misconduct matters. According to this commenter, this may expose schools to potential Title VII liability for sex discrimination. One commenter asserted that § 106.45(b)(6)(i), as proposed in the NPRM, requires a recipient to permit a party’s advisor to ask any questions that are relevant and that the rape shield provision does not preclude. This commenter was concerned that a wide range of cross-examination questions may deter victims of sexual harassment, including employees, from filing a formal complaint. Commenters also sought clarity as to what extent application of the proposed rules would impede employers’ affirmative defense to harassment claims under Title VII or be evidence of negligence in responding to sexual harassment. At least two commenters opined that these final regulations diminish a recipient’s affirmative defense under Faragher v. City of Boca Raton 1643 and Burlington Industries, Inc. v. Ellerth 1644 commonly referred to as the Faragher-Ellerth defense. These commenters noted that under the Faragher-Ellerth defense, an employer must demonstrate that the employee unreasonably failed to utilize the employer’s internal corrective mechanism. One commenter expressed concern that an employee may successfully argue that it was reasonable to refuse to participate in a process that requires a live hearing with crossexamination because such a process actually deters complaints of sexual harassment. Another commenter asserted that the Faragher-Ellerth defense requires the employer to exercise reasonable care and noted that 1643 524 1644 524 E:\FR\FM\19MYR2.SGM U.S. 775, 777–78 (1998). U.S. 742, 765 (1998). 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations an employer is vicariously liable for the actions of its supervisors under Title VII. This commenter contended that vicarious liability is at odds with the requirement of actual knowledge, as defined in § 106.30. A few commenters suggested that the Department is perversely imposing more stringent standards for students, including minors, than adults to get help. These commenters argued that there should not be a more demanding standard to take care of children than adults. One commenter generally stated that the Department should be mindful of the existing Trump Administration policy against creating duplicative or conflicting regulations. Another commenter asserted that while one might argue that the boilerplate language in the proposed rules indicating that nothing therein derogates an employee’s Title VII rights means that schools may disregard the requirements set out in the proposed rules when considering employee complaints of sexual harassment, schools choosing this path would run significant risks. According to this commenter, such schools would invite OCR complaints or lawsuits by respondents alleging that their Title IX rights under the proposed regulations had been violated. This commenter asserted that such a legal challenge by respondents would no doubt rely heavily upon the Department’s suggestion that any deviation from the proposed rules may constitute sex discrimination against respondents in violation of Title IX. This commenter contended that the confusion and potential litigation created by the proposed rules threatens harm to employees and employers, serving no one’s interest. Discussion: The Department disagrees that establishing unique obligations under Title IX than under other nondiscrimination law will reduce flexibility for recipients. Instead, these final regulations will provide consistency and clarity as to what a recipient’s obligations are under Title IX and how a recipient must respond to allegations of sexual harassment under Title IX. These final regulations provide a recipient discretion through the deliberate indifference standard in § 106.44(a) and through other provisions such as the provision in § 106.44(b) that the Assistant Secretary will not secondguess the recipient’s determination regarding responsibility. These final regulations do not establish a more complainant-hostile process for employee sexual harassment matters than other discriminationrelated and employee misconduct VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 matters that may expose schools to potential Title VII liability for sex discrimination. These final regulations do not favor either complainants or respondents and require a recipient’s response to treat complainants and respondents equitably under § 106.44(a) and § 106.45(b)(1)(i) by offering a complainant supportive measures (or remedies where a determination of responsibility for sexual harassment has been made against the respondent), and both § 106.44(a) and § 106.45(b)(1)(i) preclude the imposition of disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent unless the recipient first applies a grievance process that complies with § 106.45. These final regulations do not require a recipient to violate Title VII, and the commenter does not explain how these final regulations may expose recipients to liability under Title VII for sex discrimination. Recipients should comply with both Title VII and Title IX, to the extent that these laws apply, and nothing in these final regulations precludes a recipient from complying with Title VII. The Department appreciates the commenters’ concerns about a live hearing with cross-examination that allows all relevant questions that the rape shield provision in § 106.45(b)(6) does not preclude. Allowing all relevant questions provides a robust process where decision-makers may make informed decisions regarding responsibility after hearing all the facts, and these decision-makers receive training on how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias pursuant to § 106.45(b)(1)(iii). Such a fulsome process does not necessarily deter complainants from coming forward with allegations of sexual harassment and filing a formal complaint. Complainants receive the same opportunity to ask any and all relevant questions, including questions about a respondent’s sexual behavior or predisposition, as the rape shield provision applies only to the complainant’s sexual behavior or predisposition. A live hearing with cross-examination provides both parties with a fair, equitable process that results in more accurate and reliable outcomes. Additionally, the Department added a strong retaliation provision in § 106.71 which will protect any individual involved in a Title IX matter, including employees, from intimidation, threats, coercion, or other discrimination for participating or refusing to participate PO 00000 Frm 00427 Fmt 4701 Sfmt 4700 30451 in any manner in an investigation, proceeding, or hearing. These final regulations would not impede an employer’s affirmative defenses to sexual harassment claims under Title VII, nor do these final regulations provide evidence of negligence in responding to sexual harassment under Title VII. These final regulations provide in § 106.6(f) that nothing in this part shall be read in derogation of an individual’s rights, including an employee’s rights, under Title VII or its implementing regulations. Employers may not be able to use affirmative defenses to sexual harassment under Title VII for the purposes of Title IX, but these final regulations do not in any way derogate an employers’ affirmative defenses to sexual harassment under Title VII. What constitutes sexual harassment and how a recipient is required to respond to allegations of sex harassment may be different under Title VII and Title IX. The Department acknowledges that employers may invoke the FaragherEllerth affirmative defense under Title VII. The Faragher-Ellerth affirmative defense essentially allows an employer to avoid strict or vicarious liability for a supervisor’s harassment of an employee, when it does not result in a tangible employment action.1645 The defense requires ‘‘(a) that the employer exercised reasonable care to prevent and correct promptly any . . . harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise.’’ 1646 The Department acknowledges that the definition and standard of sexual harassment under Title VII is different than under Title IX, and an employer may need to implement policies to address conduct that goes beyond the definition of sexual harassment in § 106.30 to fulfill its obligations under Title VII. For example, the Faragher-Ellerth affirmative defense requires an employer to exercise reasonable care with respect to supervisor-on-employee harassment, while Title IX requires a recipient not to be deliberately indifferent. As one commenter stated, Title VII also requires a negligence standard if a co-worker harasses another co-worker. Title VII defines sexual harassment as severe or pervasive conduct, while Title IX defines sexual harassment as severe and pervasive. Under Title VII, an employer may be held vicariously liable for its 1645 Ellerth, 524 U.S. at 765. 1646 Id. E:\FR\FM\19MYR2.SGM 19MYR2 30452 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations supervisors’ actions, whereas Title IX requires a recipient to have actual knowledge of sexual harassment. Employers are aware that complying with Title IX and its implementing regulations does not satisfy compliance with Title VII. These final regulations expressly provide that nothing in this part may be read in derogation of an individual’s rights, including an employee’s rights, under Title VII, and these final regulations do not prevent or preclude a recipient from complying with Title VII. Additionally, these final regulations clearly provide that a complainant need not file a formal complaint for the recipient to provide supportive measures. Indeed, § 106.44(a) requires a recipient to offer supportive measures to a complainant, irrespective of whether the complainant files a formal complaint. Nothing in these final regulations prevents an employer from asserting that the consideration and provision of supportive measures may fulfill an employer’s obligation to take preventive or corrective measures for purposes of the Faragher-Ellerth affirmative defense. Similarly, these final regulations do not prevent an employer from asserting that an employee’s opportunity to file a formal complaint and initiate a grievance process under § 106.45 may fulfill an employer’s obligation to provide a preventive or corrective opportunity for purposes of the Faragher-Ellerth affirmative defense, especially as recipients are required under § 106.8 to notify all employees and applicants for employment of the Title IX Coordinator’s contact information and the grievance procedures and grievance process, including how to report or file a complaint of sex discrimination, how to report or file a formal complaint of sexual harassment, and how the recipient will respond. Employers will not have to choose between asserting the Faragher-Ellerth affirmative defense or complying with these final regulations.1647 Although employers may have different obligations and be 1647 The Department has revised § 106.45(b)(3)(i), which requires a mandatory dismissal in certain circumstances, to clarify that such a dismissal is solely for Title IX purposes, and does not preclude action under another provision of the recipient’s code of conduct. If a recipient has a code of conduct for employees that goes beyond what Title IX requires and these final regulations require, then a recipient may proceed to enforce its code of conduct despite dismissing a formal complaint (or allegations therein) for Title IX purposes. These regulations do not preclude a recipient from enforcing a code of conduct that is separate and apart from what Title IX requires; for example, with respect to investigating and adjudicating misconduct that does not meet the definition of ‘‘sexual harassment’’ as defined in § 106.30. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 subject to different standards under Title VII and Title IX, these final regulations may be implemented in a manner that complements these similar yet different obligations. The Department disagrees that it is providing more stringent standards for students, including minors, than adults to get help. As previously noted, a recipient must offer supportive measures to any complainant who reports sexual harassment, which will help ensure that all complainants receive help. These final regulations also contain some greater protections in the elementary and secondary context, where there are more minors, than in the higher education context. For example, the Department’s definition of actual knowledge in § 106.30 includes all employees working in the recipient’s education program or activity in the elementary and secondary context, and a recipient with actual knowledge of sexual harassment in an education program or activity against a person in the United States is required to respond promptly in a manner that is not deliberately indifferent under § 106.44(a). The Department is mindful of President Trump’s Executive Orders, and these final regulations are not duplicative. The Department is finally providing regulations that address sexual harassment as sex discrimination in education programs or activities under Title IX. The Department has the authority to issue these final regulations and is clearly stating in these final regulations that these regulations do not derogate an employee’s rights under Title VII. Finally, at least one commenter misunderstands what the Department means in § 106.6(f). The Department is not stating in § 106.6(f) that these final regulations do not apply to employees or that recipients who receive Federal financial assistance must only comply with Title VII with respect to employees. To the extent that Title IX may apply to a recipient’s employees, a recipient must comply with Title IX. If a recipient does not comply with Title IX, then a recipient may be liable under these final regulations and may be the subject of a complaint to OCR. As explained earlier, Title IX may apply to a recipient’s employees. The Department simply clarifies, through § 106.6(f), that individuals, including employees, also may have rights under Title VII, and these final regulations do not derogate those rights. Changes: None. Comments: Several commenters requested that the Department issue joint guidance with the EEOC to ensure PO 00000 Frm 00428 Fmt 4701 Sfmt 4700 Title VII and Title IX are interpreted consistently with each other and to minimize potential conflicts between the two frameworks. One such commenter argued that the Title IX grievance process should not apply to any adverse employment action against a student-employee where the job in question is not an integral part of the recipient’s educational program (for example, where the student accused of sexual harassment is fired from working at the campus cafeteria). Discussion: The Department appreciates the commenters’ desire for guidance on Title VII and Title IX. The Department acknowledges that the Supreme Court has interpreted Title VII and Title IX differently and we encourage people to rely on case law to understand the different legal frameworks for Title VII and Title IX. For example, adverse employment actions are a concept that exist under Title VII case law, but not Title IX case law. The Department of Education also cannot bind the EEOC to act or respond in a certain manner through this noticeand-comment rulemaking on Title IX. As previously explained, these final regulations require a recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States to respond promptly in a manner that is not deliberately indifferent. It is irrelevant whether the student-respondent is an employee if the sexual harassment occurs in an education program or activity of the recipient against a person in the United States. Depending on the facts and circumstances of such an incident of sexual harassment, the recipient may have obligations under both Title VII and Title IX. Changes: None. Comments: One commenter raised the specific issue of a potential conflict between § 106.44(b)(2) and Title VII implementing regulations. This commenter asserted that § 106.44(b)(2) would provide that the Department ordinarily accepts the recipient’s factual determinations regarding responsibility and would not deem it as deliberately indifferent solely because the Assistant Secretary would have reached a different outcome. This commenter asserted that § 106.44(b)(2) may conflict with the Title VII requirement that employee complaints or complaints solely alleging employment discrimination against an individual filed with the Department must be referred to the EEOC for their own investigation and evaluation under 28 CFR 42.605. The commenter emphasized that the EEOC would never E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations simply defer to an employer’s conclusion that its officials did nothing wrong. According to this commenter, the EEOC conducts its own investigation and makes an independent assessment of the facts. This commenter stated that in some circumstances a referring agency, such as the Department, is required to ‘‘give due weight to EEOC’s determination that reasonable cause exists to believe that Title VII has been violated’’ under 28 CFR 42.610(a). The commenter urged the Department to clarify which set of regulations apply in this context to avoid recipient confusion. Discussion: The Department appreciates the commenter’s concerns but disagrees that a conflict exists. The Department acknowledges that the Assistant Secretary will not secondguess a recipient’s determination regarding responsibility under § 106.44(b)(2). These final regulations, however, do not apply to the EEOC and do not dictate how the EEOC will administer Title VII or its implementing regulations. If the Assistant Secretary refers a complaint to the EEOC under Title VII or 28 CFR 42.605, then the EEOC will make a determination under its own regulations and not the Department’s regulations. Even if the Department is required in some circumstances to give due weight to the EEOC’s determination regarding Title VII under 28 CFR 42.610(a), the Department does not have authority to administer or enforce Title VII. There may be incidents of sexual harassment that implicate both Title VII and Title IX, and this Department will continue to administer Title IX and its implementing regulations and will defer to the EEOC to administer Title VII and its implementing regulations.1648 Changes: None. Comments: Several commenters raised a number of issues that did not directly relate to the provision in § 106.6(f) regarding Title VII. One commenter suggested that the Department collect racial data from campuses to ensure we know how many persons of color have been expelled under Title IX ‘‘campus kangaroo courts.’’ This commenter expressed concern that the Department may be inadvertently encouraging racial 1648 28 CFR 42.610(c) also states: ‘‘If the referring agency determines that the recipient has not violated any applicable civil rights provision(s) which the agency has a responsibility to enforce, the agency shall notify the complainant, the recipient, and the Assistant Attorney General and the Chairman of the EEOC in writing of the basis of that determination.’’ Accordingly, these regulations contemplate that each agency enforces the civil rights provisions that the agency has the responsibility to enforce. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 discrimination while trying to eliminate sex discrimination. Another commenter sought to remind the Department that, in addition to enforcing Title IX, the Department enforces Title VII and other civil rights laws and should vigorously enforce all of them to protect individual rights. One commenter asserted that the proposed regulations would apply to sexual harassment complaints and investigations involving more than eight million employees in primary and secondary schools, and more than four million employees at institutions of higher education, including a disproportionately female workforce in elementary and secondary schools and almost half of faculty in degree-granting institutions of higher education who are women. Discussion: The Department did not propose any reporting requirements from postsecondary institutions or other recipients in the NPRM and does not think that such reporting requirements are necessary to address any racial discrimination that may occur in proceedings under these final regulations. Students who experience racial discrimination in a proceeding under Title IX may file a complaint under Title VI with OCR, and the Department will vigorously enforce Title VI’s racial discrimination prohibitions. With respect to concerns about the number of students of color who may be expelled from school, we believe that the grievance process in § 106.45 will provide all parties, including persons of color, with sufficient due process protections. Contrary to the commenter’s assertions, the Department does not have the authority to enforce Title VII. The Department is committed to rigorously enforcing the civil rights laws that it is legally authorized to enforce. The Department is aware that these final regulations will impact recipients and the people in a recipient’s education program or activity and appreciates the commenter’s references to statistics about the people whom these final regulations will affect. Changes: None. Section 106.6(g) Exercise of Rights by Parents/Guardians Comments: Some commenters expressed concern about whether the proposed regulations allowed parents, on behalf of their child, to report sexual harassment, file a formal complaint, request particular supportive measures, review the evidence during a grievance process, and exercise similar rights given to a party under the proposed rules. Commenters wondered if a minor student’s parent would be permitted to PO 00000 Frm 00429 Fmt 4701 Sfmt 4700 30453 attend interviews, meetings, and hearings during a grievance process or whether that would be allowed only if the minor student’s parent was also the party’s advisor of choice under § 106.45(b)(5)(iv). Discussion: The Department recognizes that when a party is a minor or has a guardian appointed, the party’s parent or guardian may have the legal right to act on behalf of the party. For example, if the parent or guardian of a student has a legal right to act on behalf of a student, then the parent or guardian must be allowed to file the formal complaint on behalf of the student, although the student would be the ‘‘complainant’’ under the proposed regulation. In such a situation, the parent or guardian must be permitted to exercise the rights granted to the party under these final regulations, whether such rights involve requesting supportive measures or participating in a grievance process. Similarly, the parent or guardian must be permitted to accompany the student to meetings, interviews, and hearings during a grievance process to exercise rights on behalf of the student, while the student’s advisor of choice may be a different person from the parent or guardian. Whether or not a parent or guardian has the legal right to act on behalf of an individual would be determined by State law, court orders, child custody arrangements, or other sources granting legal rights to parents or guardians. Additionally, FERPA and its implementing regulations address the circumstances under which a parent or guardian is accorded certain rights granted thereunder, such as the opportunity to inspect and review a student’s education records as set forth at 34 CFR 99.10 and 99.12.1649 Thus, FERPA generally would address a parent’s or guardian’s opportunity to inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint pursuant to § 106.45(b)(5)(vi), provided such evidence constitutes a student’s education record. However, in circumstances in which FERPA would not accord a party the opportunity to inspect and review such evidence, these final regulations do so and provide a parent or guardian who has a legal right to act on behalf of a party with the same opportunity.1650 To clarify that these final regulations respect all legal rights of parents or guardians, we have added 1649 20 U.S.C. 1232g; 34 CFR part 99. (providing that the obligation to comply with this part is not obviated or alleviated by the FERPA statute or regulations). 1650 § 106.6(e) E:\FR\FM\19MYR2.SGM 19MYR2 30454 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations § 106.6(g) to address this issue; this provision applies not only to sexual harassment proceedings under Title IX but also to any issue of sex discrimination arising under Title IX. Changes: We have added § 106.6(g), which addresses exercise of rights by parents or guardians, and states that nothing in part 106 may be read in derogation of any legal right of a parent or guardian to act on behalf of a complainant, respondent, party, or other individual, subject to paragraph (e) of this section, including but not limited to filing a formal complaint. Section 106.6(h) Preemptive Effect Comments: Commenters requested that the final regulations clearly state whether these final regulations supersede enforcement of State nondiscrimination or civil rights laws with respect to provisions concerning sexual harassment. Some commenters reasoned that the final regulations should be a floor that does not preclude States from supplementing the legal requirements in these final regulations. Another commenter expressed concern that these final regulations will preempt State laws that the commenter described as designed to protect survivors of sexual violence. One commenter asserted that at least ten States have State laws that would conflict with the Department’s proposed rules.1651 One commenter argued that Virginia law is more protective of victims than the proposed rules, including prompt review of any sexual violence report by a university committee within 72 hours of the report, mandatory notification of law enforcement, robust privacy protections, extensive outside support for victims, annual review of sexual violence policies with certification to the Virginia Secretary of Education, provisions for transcript notations on perpetrators’ academic transcripts, and requiring certain injuries to children be reported by physicians, nurses, and teachers. Another commenter requested that the Department implement the Title IX regulations in a manner that allows institutions of higher education in Colorado to retain their existing processes and procedures; while this commenter did not assert that the proposed regulations directly conflict 1651 Commenter cited: California (Cal. Educ. Code § 67386, Cal. Educ. Code § 66290.1); Connecticut (Conn. Gen. Stat. Ann. § 10a–55m); Hawaii (Haw. Rev. Stat. Ann. § 304A–120), Illinois (110 Ill. Comp. Stat. Ann. 155); Maryland (Md. Code Ann., Educ. § 11–601); New Jersey (N.J. Stat. Ann. § 18A:61E–2); New York (N.Y. Educ. Law §§ 6439–49); Oregon (Or. Rev. Stat. Ann. § 350.255, Or. Rev. Stat. Ann. § 342.704); Texas (Tex. Educ. Code Ann. § 51.9363); and Virginia (Va. Code Ann. § 23.1–806). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 with the processes and procedures that institutions of higher education in Colorado use, the commenter asserted that changing current Title IX policies and procedures would be costly and Colorado institutions of higher education already have policies and procedures in place that address due process concerns and protect survivors. A commenter from Hawaii expressed concerns that a ‘‘2018 state Title IX bill’’ shows that Hawaii constituents take Title IX very seriously and argued that the NPRM makes it unclear how Hawaii would implement its State law if the NPRM were to take effect. At least one commenter advised the Department to include an explicit preemption clause in the final regulations, given the likelihood of conflict with State laws, unclear case law, and because education is an area where the Federal government does not occupy the entire field. This commenter relied for its arguments on the Tenth Amendment, and the Supreme Court’s ruling in National Federation of Independent Business v. Sebelius.1652 This commenter specifically noted that there is a provision in the Department’s current regulations implementing Title IX, which addresses preemption. Current 34 CFR 106.6(b) provides ‘‘The obligation to comply with this part is not obviated or alleviated by any State or local law or other requirement which would render any applicant or student ineligible, or limit the eligibility of any applicant or student, on the basis of sex, to practice any occupation or profession.’’ This commenter contended that 34 CFR 106.6(b) may cause a court to question why the regulations implementing Title IX contain only one provision that specifically addresses preemption. Discussion: The Department reiterates that nothing in these final regulations, including the provisions concerning sexual harassment with which commenters expressed concern, inherently prevents recipients from complying with State and local laws or policies. With respect to aspects of State laws that commenters asserted ‘‘diverge from’’ the NPRM, the Department disagrees that commenters identified an actual conflict between State law and these final regulations, as explained throughout this section of the preamble. Virginia law, as described by the commenter, does not conflict with these final regulations. These final regulations do not prohibit extensive outside support for victims, notations on academic transcripts, annual review of sexual violence policies, or any of the 1652 567 PO 00000 U.S. 519 (2012). Frm 00430 Fmt 4701 Sfmt 4700 other aspects of Virginia law that the commenter described. Similarly, these final regulations may not conflict with processes and procedures used by institutions of higher education in Colorado; to the extent that the commenter was asserting that Colorado institutions should not be required to expend resources changing aspects of their Title IX policies and procedures because Colorado law already ensures that Colorado institutions appropriately support survivors while addressing due process concerns, the Department has determined that a standardized Title IX grievance process and uniform requirements that recipients offer supportive measures to complainants constitute the most effective procedures and requirements to further Title IX’s non-discrimination mandate. While institutions may find it necessary to expend resources to come into compliance with these final regulations, the benefits of ensuring that every student, in every school, college, and university that receives Federal funds, can rely on predictable, transparent, legally binding rules for how a recipient responds to sexual harassment, outweigh the costs to recipients of altering procedures to come into compliance with the requirements in these final regulations. Recipients may continue to comply with State law to the extent that it does not conflict with the requirements in these final regulations addressing sexual harassment. The Department appreciates that many States have laws that address sexual harassment, sexual violence, sex offenses, sex discrimination, and other misconduct that negatively impacts students’ equal educational access. Nothing in these final regulations precludes a State, or an individual recipient, from continuing to address such matters while also complying with these final regulations. In the event of an actual conflict between State or local law and the provisions in §§ 106.30, 106.44, and 106.45, which address sexual harassment, the latter would have preemptive effect. Under conflict preemption, ‘‘a federal statute implicitly overrides state law . . . when state law is in actual conflict with federal law’’ either because it is ‘‘impossible for a private party to comply with both state and federal requirements’’ or because ‘‘state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’’ 1653 It is well-established that 1653 Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995) (internal quotation marks and citations omitted). The U.S. Department of Justice previously E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations ‘‘state laws can be pre-empted by federal regulations as well as by federal statutes.’’ 1654 The Supreme Court has held: ‘‘Pre-emption may result not only from action taken by Congress itself; a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation.’’ 1655 The Department is acting within the scope of its congressionally delegated authority in promulgating these final regulations under Title IX to address sexual harassment as a form of sex discrimination. In response to commenters’ requests for a regulation that expressly addresses whether these final regulations concerning sexual harassment preempt State or local law and to generally address commenters’ concerns about preemption, the Department has added § 106.6(h) which provides that to the extent of a conflict between State or local law and Title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. The Department acknowledges that its current regulations in 34 CFR 106.6(b) expressly address preemption with respect to any State or local law or other requirement which would render any applicant or student ineligible, or limit the eligibility of any applicant or student, on the basis of sex, to practice any occupation or profession. The Department does not wish for any recipient or court to conclude that 34 CFR 106.6(b) constitutes the only instance in which the Department intended to give preemptive effect to its regulations promulgated under Title IX. By adding § 106.6(h), the Department clearly and unequivocally states its intention that these final regulations concerning sexual harassment preempt State and local law to the extent of a conflict. The Department cannot state categorically that the final regulations concerning sexual harassment are always a ‘‘floor’’ because in some cases these final regulations may require more protections with respect to sexual expressed a similar position with respect to the preemptive effect of other regulations promulgated by the Department. Statement of Interest by the United States, Massachusetts v. Pa. Higher Educ. Assistance Agency, d/b/a FedLoan Servicing, No. 1784–CV–02682 (Mass. Super. Ct. filed Jan. 8, 2018). 1654 Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985) (‘‘state laws can be pre-empted by federal regulations as well as federal statutes’’); see Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 873 (2000). 1655 La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 396 (1986). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 harassment as a form of sex discrimination than what State law may require. Similarly, some State laws may require recipients to provide additional protections for both complainants and respondents that exceed these final regulations.1656 As long as State and local laws do not conflict with the final regulations concerning sexual harassment, recipients should comply with the State and local laws as well as these final regulations. Changes: The Department has added § 106.6(h), which provides that to the extent of a conflict between State or local law, and Title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. Comments: One commenter argued that the Department has no right to invade the police powers of a State like New York, which has already regulated extensively on the topic of campus sexual harassment and assault, and the NPRM would inappropriately ‘‘lessen the effectiveness’’ of New York’s ‘‘Enough is Enough’’ law as well as the New York’s Dignity for all Students Act (DASA), if not outright contradict it. For example, some commenters noted that New York’s ‘‘Enough is Enough’’ law requires extensive information outlining requirements that cover content, training, and distribution of specific information, requires postsecondary institutions to adopt a uniform definition of affirmative consent, requires ongoing training year-round to address topics related to sexual harassment, and requires periodic campus climate assessments, among other requirements. Other commenters also described aspects of New York’s ‘‘Enough is Enough’’ law. One commenter asserted that the proposed regulations require a recipient to dismiss a complaint if alleged misconduct did not occur within the institution’s program or activity, whereas New York law may still require a recipient to address such misconduct. One commenter stated that New York law requires affirmative consent for sexual activity. At least one commenter urged the Department to adopt the provisions in New York’s ‘‘Enough is Enough’’ law. 1656 The Department in its 2001 Guidance and specifically in the context of the due process rights of the accused, acknowledged that ‘‘additional or separate rights may be created for employees or students by State law.’’ 2001 Guidance at 22. In both the 2001 Guidance and these final regulations, the Department takes the position that any additional or separate rights do not relieve the recipient of complying with Title IX and its implementing regulations. See id. PO 00000 Frm 00431 Fmt 4701 Sfmt 4700 30455 Some commenters expressed concerns about the proposed rules permitting delays in a grievance process for longer than what is permitted under State law. According to one commenter, New York’s law specifies that ten days is the maximum number of days for a temporary delay when law enforcement action is taking place concurrently with a campus disciplinary process. Discussion: The Department does not believe that these final regulations generally conflict with State and local laws. To address commenters’ questions about preemption and for the reasons explained above, the Department has added § 106.6(h) which provides that to the extent of a conflict between State or local law and Title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. With respect to New York’s ‘‘Enough is Enough’’ law and DASA, these final regulations do not appear to directly conflict with the commenters’ description of State law requirements. These final regulations do not prevent a postsecondary institution from engaging in ongoing or year-round training (of employees, or students), conducting campus climate assessments, or adopting a particular definition of consent. Indeed, § 106.30 expressly states that the Assistant Secretary will not require recipients to adopt a particular definition of consent with respect to sexual assault, a provision that specifically addresses the issue raised by commenters, that some State laws require institutions to use an affirmative consent definition. Similarly, these final regulations acknowledge in revised § 106.45(b)(3)(i) that even though a recipient may be required to dismiss a formal complaint in certain circumstances, such a dismissal is only for Title IX purposes and does not preclude the recipient from action under another provision of the recipient’s code of conduct. Accordingly, if New York law requires a recipient to respond to conduct that these final regulations do not deem covered under Title IX, a recipient may do so. The Department has considered the provisions for addressing sexual harassment and sexual assault contained in various State laws, including in New York, and in use by various individual institutions. However, the Department does not wish to adopt wholesale New York’s ‘‘Enough is Enough’’ law or other State laws or institutional policies and explains throughout this preamble why these final regulations provide the best means E:\FR\FM\19MYR2.SGM 19MYR2 30456 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations for effectuating Title IX’s nondiscrimination mandate. These final regulations do not require a recipient to delay a grievance process for longer time periods than what is permitted under State law. The Department emphasizes that a recipient must respond ‘‘promptly’’ when it has actual knowledge of sexual harassment in its education program or activity pursuant to § 106.44(a). Section 106.45(b)(1)(v) regarding reasonably prompt time frames for the conclusion of the grievance process would not necessarily conflict with State laws by allowing delays during a grievance process, for good cause, including concurrent law enforcement activity. For example, there is no inherent conflict with a temporary ten-day delay, which according to a commenter is permissible under New York State law when a concurrent law enforcement action is taking place, as long as a recipient responds promptly when it has actual knowledge of sexual harassment in its education program or activity and also meets the requirement in § 106.45(b)(1)(v) to conclude its grievance process under reasonably prompt time frames the recipient has designated. Accordingly, the commenter’s example of a potentially conflicting State law does not in fact present an inherent conflict with these final regulations. Changes: None. Comments: Other commenters expressed concern that the proposed regulations may conflict with a union’s duty to provide representation during the grievance process. One commenter asserted that many State labor laws already provide that an employee subject to investigatory interviews is allowed to have a union representative present for a meeting that might lead to discipline. Discussion: There is no inherent conflict between these final regulations and any requirement that a union representative must be present for an investigatory interview that might lead to discipline. These final regulations require a recipient to provide a written notice upon receipt of a formal complaint of sexual harassment, to both parties, that the parties may have ‘‘an advisor of their choice, who may be, but is not required to be, an attorney’’ pursuant to § 106.45(b)(2)(i)(B), and also require (in § 106.45(b)(5)(iv)) a recipient to provide the parties with the same opportunities to have an advisor present during any grievance proceeding, without limiting the choice or presence of advisor for either the complainant or respondent. Nothing in these final regulations precludes a recipient from VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 complying with the State laws that the commenter describes; § 106.45(b)(5)(iv) means that a recipient cannot preclude a party from selecting a union representative as the party’s advisor of choice during a Title IX grievance process. Furthermore, while § 106.71 requires a recipient to keep confidential the identity of parties to a Title IX grievance process, which limits the discretion of a recipient to permit parties to have persons other than the party’s advisor of choice present during the grievance process, that provision limits the confidentiality obligation by expressly stating that the recipient must keep party identities confidential except as required by law. If a State law requires a recipient to permit a union representative to be present during a disciplinary proceeding, the recipient may not be in violation of these final regulations by permitting a party to a Title IX grievance process from being accompanied by both an advisor of choice and a union representative. We reiterate, however, that a party is always entitled under these final regulations to select a union representative as the party’s advisor of choice to advise and assist the party during the grievance process. In the event of an actual conflict between State labor laws or union contracts and the final regulations, then the final regulations would have preemptive effect. To generally address commenters’ questions about preemption and for the reasons explained above, the Department has added § 106.6(h) which provides that to the extent of a conflict between State or local law and Title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. Changes: None. Comments: One commenter asserted that § 106.8(d) conflicts with Minnesota State law, under which Minnesota institutions of higher education can address sexual misconduct occurring outside the United States. This commenter argued that, because study abroad programs are educational and approved by the home campus (located in the United States), the Department should ensure that recipients have the ability to protect students and employees by providing remedial services and imposing discipline over campus activities occurring outside the United States. Discussion: The final regulations, by recognizing the jurisdictional limitation in the Title IX statute, 20 U.S.C. 1681(a) (which states that ‘‘no person in the United States’’ may be discriminated PO 00000 Frm 00432 Fmt 4701 Sfmt 4700 against on the basis of sex), do not conflict with State laws that allow or require a recipient to address discrimination or misconduct that falls outside Title IX. Nothing in the final regulations precludes recipients from addressing sexual misconduct that occurs in a recipient’s study abroad programs. The Department has revised § 106.45(b)(3)(i) to clarify that a mandatory dismissal of allegations in a formal complaint of sexual harassment because the allegations concern sexual harassment that occurred outside the United States is a dismissal only for Title IX purposes and does not preclude action under another provision of the recipient’s code of conduct. Accordingly, a recipient may address conduct that occurs outside of the United States pursuant to its own code of conduct, including where a recipient is required to address such conduct under a State law. Changes: None. Comments: Some commenters argued that ending the single investigator model would conflict with State laws. Commenters stated that ending the single investigator model conflicts with State law requirements governing elementary and secondary school administrators because in the elementary and secondary school context, a site administrator typically has final responsibility for Title IX compliance. These commenters argued that the Department should not preclude a site administrator from being the Title IX Coordinator, the investigator, and the decision-maker, because the typical job description for a site administrator requires that person to be a knowledgeable investigator familiar with school district policy and the school community best positioned to fulfill the functions of a Title IX Coordinator, investigator, and decisionmaker. Commenters asserted that under State laws, site administrators must respond to, investigate, and intervene regarding discrimination complaints, including following established disciplinary procedures as applicable. One commenter reasoned that if the respondent is an employee then the site administrator with line authority may be in the best position to investigate due to confidentiality with personnel issues, and the Department should not create a conflicting process. Discussion: With respect to potential conflict with State laws regarding the prohibition of the single investigator model contained in § 106.45(b)(7)(i) of the final regulations, the final regulations preclude the decision-maker from being the same person as the Title IX Coordinator or the investigator, but E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations do not preclude the Title IX Coordinator from also serving as the investigator. Further, the final regulations do not prescribe which of the recipient’s administrators are in the most appropriate position to serve as a Title IX Coordinator, investigator, or decision-maker, and leave recipients discretion in that regard, including whether a recipient prefers to have certain personnel serve in certain Title IX roles when the respondent is an employee. Finally, although the final regulations, § 106.45(b)(7)(i) precludes the decision-maker from being the same person as the Title IX Coordinator or investigator, this provision does not preclude the investigator from, for instance, making recommendations in an investigative report, so long as the decision-maker exercises independent judgment in objectively evaluating relevant evidence to reach a determination regarding responsibility. Thus, the Department does not believe that the commenter’s description of the typical job duties of a site administrator under State laws poses an actual conflict with the final regulations. To generally address commenters’ questions about preemption and for the reasons explained above, the Department has added § 106.6(h) which provides that to the extent of a conflict between State or local law and Title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. Changes: None. Comments: Some commenters contended that the NPRM’s jurisdictional approach conflicts with State laws, which may pose enforcement problems, create confusion, impose additional cost burdens, and trigger lengthy litigation. These commenters noted, for example, that California explicitly requires institutions of higher education to have policies addressing sexual violence involving students both on campus and off campus and that New Jersey law includes a broader definition of sexual misconduct that includes conduct occurring in certain off-campus locations. Discussion: With respect to potential conflict with State laws that may have different jurisdictional schemes, the Department reiterates that nothing in the final regulations prevents recipients from initiating a student conduct proceeding or offering supportive measures to students who report sexual harassment that occurs outside the recipient’s education program or activity, and that the final regulations VerDate Sep<11>2014 21:40 May 18, 2020 Jkt 250001 do not distinguish between off-campus and on-campus conduct. Instead, these final regulations require a recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States to respond promptly in a manner that is not deliberately indifferent. The Department has revised § 106.45(b)(3)(i) to clarify that a mandatory dismissal of allegations in a formal complaint of sexual harassment because the alleged conduct did not occur in the recipient’s education program or activity is only for purposes of Title IX and does not preclude action under another provision of the recipient’s code of conduct. A recipient may address conduct that Title IX and these final regulations do not require a recipient to address, pursuant to its own code of conduct, including where the recipient is obligated to address the conduct under a State law. To generally address commenters’ questions about preemption and for the reasons explained above, the Department has added § 106.6(h) which provides that to the extent of a conflict between State or local law and Title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. Changes: None. Comments: Some commenters argued that the proposed rules should not require school districts to adopt and publish a grievance procedure that aligns with the proposed regulations, and that instead the Department should permit school districts to adopt and publish grievance procedures that align with their State’s requirements where States have acted on their own authority to require school districts to adopt grievance procedures related to nondiscrimination, sexual harassment, and due process in the context of student discipline. Commenters argued that if the Department does not permit school districts to do this, the final regulations will create uncertainty and impose an unnecessary burden on school districts, potentially conflicting with State laws. Discussion: Nothing in the final regulations inherently prevents school districts from adopting and publishing grievance procedures, and a grievance process that complies with § 106.45 for resolution of formal complaints of sexual harassment, that align with their State’s requirements where States have acted on their own authority to require school districts to adopt grievance procedures related to nondiscrimination, sexual harassment, and due process in the context of student discipline. However, in the event of an PO 00000 Frm 00433 Fmt 4701 Sfmt 4700 30457 actual conflict between these final regulations concerning sexual harassment and State laws or local laws, the final regulations would have preemptive effect over conflicting State or local law. To generally address commenters’ questions about preemption and for the reasons explained above, the Department has added § 106.6(h) which provides that to the extent of a conflict between State or local law and Title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. Changes: None. Comments: A few commenters argued that the NPRM proposes to set a national standard on various matters related to the investigation and adjudication of claims of sexual harassment, including sexual assault, by school districts and public and private institutions of higher education, that those same topics are the subject of State, local, and Tribal laws, but that the NPRM contains no discussion of preemption, contrary to both Executive Order 13132 and Executive Order 12988, and the 2009 Presidential Preemption Memorandum. A few commenters asserted that it is inappropriate for the Department to intrude on areas of traditional State and local control, such as regulation of education. Commenters argued that, under Executive Order 13132, the Department should have consulted with State and local officials before issuing the proposed rules because the Department is formulating policy that will have federalism implications and may limit States’ ability to protect their own constituents’ safety. One commenter contended that the Department is leaving States with an impossible choice between accepting Federal funding and protecting students’ full access to their education. This commenter also asserted that the NPRM could keep States from regulating in an area of traditional State authority without good cause, thus amounting to a constructive revocation of States’ power beyond the Department’s authority under statute. Another commenter asserted that the impact of the Supreme Court’s Sebelius decision 1657 on Title IX is unclear and argued that a law enacted under the Spending Clause may be analyzed for constitutionality under a contract theory or the unconstitutional conditions doctrine. This commenter contended that the Department is favoring a 1657 Commenter cited: Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012). E:\FR\FM\19MYR2.SGM 19MYR2 30458 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations contract theory and that if the unconstitutional conditions doctrine is applied, then the impact of these final regulations on State laws, recipients, and students will require a State-byState fact-intensive inquiry. According to this commenter, the uncertainty of how constitutional law will apply to these final regulations will create confusion for recipients who must comply with State laws as well as these final regulations. Discussion: As an initial matter, some commenters’ characterization of Executive Order 13132, 64 FR 43255 (Aug. 10, 1999) is inaccurate. That Order’s goal was ‘‘to guarantee the Constitution’s division of governmental responsibilities between the Federal government and the states’’ by ‘‘further[ing] the policies of the Unfunded Mandates Reform Act’’.1658 The purpose of that statute is ‘‘to end the imposition, in the absence of full consideration by Congress, of Federal mandates on State, local, and Tribal governments without adequate Federal funding, in a manner that may displace other essential State, local, and tribal governmental priorities.’’ 1659 In other words, when the Federal government proposes to impose an unfunded mandate on the States (including local governments) and Tribal governments with federalism implications and effects on State and local laws, Executive Order 13132 requires the Federal government to consult with State and local authorities. However, application of these final regulations is entirely dependent on whether an education program or activity receives Federal financial assistance; these final regulations are not a mandate (unfunded or otherwise).1660 Furthermore, as this preamble’s discussion pertaining to the Spending Clause of the U.S. Constitution demonstrates,1661 Title IX was enacted pursuant to that constitutional provision. ‘‘Congress may use its spending power to create incentives for States to act in accordance with Federal policies.’’ 1662 ‘‘[W]hen ‘pressure turns into compulsion,’ ’’—such as undue influence, coercion or duress—‘‘the legislation runs contrary to our system of federalism.’’ 1663 As the Spending Clause analysis demonstrates, the Federal government is not coercing recipients to comply with these final 1658 2 U.S.C. 1501 et seq. U.S.C. 1501(2). 1660 See 20 U.S.C. 1681(a). 1661 See the ‘‘Spending Clause’’ subsection of the ‘‘Miscellaneous’’ section of this preamble. 1662 Sebelius, 567 U.S. at 577–78. 1663 Id. (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)). regulations. Title IX and its implementing regulations fall within the authority of the Federal government: operators of education programs or activities must comply with Title IX’s non-discrimination mandate, if an education program or activity receives Federal financial assistance. By statute, Congress has conferred authority to the Department to promulgate regulations under Title IX to effectuate the purposes of Title IX.1664 Nor is there any support for the argument that the Federal government is precluding the States from regulating in an area of traditional State authority without good cause. Compliance with Title IX and its implementing regulations is ‘‘much in the nature of a contract: in return for Federal funds, the States agree to comply with federally imposed conditions.’’ 1665 The commenter’s assertion that protection of students’ equal access to education is an area of traditional State control indicates that these final regulations are not invalid even under the unconstitutional conditions doctrine of the Spending Clause analysis, because the States themselves are at liberty to enact these regulations.1666 Nothing in these final regulations prevents States from continuing to address discrimination on the basis of sex in education, or equal educational access on the basis of sex, in a manner that also complies with these final regulations. Moreover, these final regulations do not require the relinquishment of a constitutional right and expressly provide in § 106.6(d) that these final regulations do not require the restriction of any rights guaranteed against government action by the U.S. Constitution, including but not limited to the First, Fifth, and Fourteenth Amendments of the U.S. Constitution. Irrespective of whether a court applies a contract theory or the unconstitutional conditions doctrine, these final regulations pass constitutional muster. These final regulations are in pursuit of the general welfare, are unambiguous, and are related to a national concern.1667 Sexual harassment as a form of sex discrimination is an issue that is national in scope and significance, and Congress enacted Title IX to address sex discrimination on a Federal level. Nor does the 2009 Presidential Preemption Memorandum (‘‘2009 Obama Memorandum’’) support the 1659 2 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 commenters’ argument.1668 The objective of that 2009 Obama Memorandum was to proclaim the ‘‘general policy’’ that ‘‘preemption of State law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the States and with a sufficient legal basis for preemption.’’ 1669 The 2009 Obama Memorandum asserted that the States do have a potent role in protecting the health and safety of citizens and the environment.1670 The 2009 Obama Memorandum stated that Federal overreach through preemption obstructs States from ‘‘apply[ing] to themselves rules and principles that reflect their own particular circumstances and values.’’ 1671 On this ground, President Obama directed executive branch agencies not to include preemption statements in ‘‘regulatory preambles . . . except where preemption provisions are also included in the codified regulation’’ or in ‘‘codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132.’’ 1672 President Obama also directed agencies to ‘‘review regulations issued in the last 10 years that contain statements in regulatory preambles or codified provisions intended . . . to preempt State law, in order to decide whether such statements are justified under applicable legal principles governing preemption.’’ 1673 Even assuming that the 2009 Obama Memorandum applies, the Department has in fact complied with it, with respect to promulgation of these final regulations. Furthermore, Executive Order 12988, a Clinton Administration executive order (to which the 2009 Obama Memorandum does not cite), requires agencies, when promulgating regulations, to ‘‘make every reasonable effort . . . [to] specif[y] in clear language the preemptive effect, if any, to be given to the regulation.’’ The Department has complied with Executive Order 12988 as well, and these final regulations clearly state in § 106.6(h) that to the extent of a conflict between State or local law, and Title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is 1664 20 1668 See 1665 Pennhurst 1669 Id. U.S.C. 1682. State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17 (1981). 1666 See South Dakota v. Dole, 483 U.S. 203, 209– 12 (1987). 1667 See id. at 206–09. PO 00000 Frm 00434 Fmt 4701 Sfmt 4700 74 FR 24693 (2009). 1670 Id. 1671 Id. 1672 Id. 1673 Id. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations not obviated or alleviated by any State or local law. These final regulations also do not violate the Tenth Amendment. That Amendment states: ‘‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’’ 1674 The Supreme Court’s position is sufficiently clear on this topic. ‘‘[W]hile [the Federal government] has substantial power under the Constitution to encourage the States to provide for [a set of new rules concerning a national problem], the Constitution does not confer upon [the Federal government] the ability simply to compel the States to do so.’’ 1675 The Tenth Amendment ‘‘states but a truism that all is retained which has not been surrendered.’’1676 As the constitutional commenter and chronicler, the Honorable Joseph Story, Associate Justice, Supreme Court of the United States, explained, ‘‘[t]his amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities.’’ 1677 The Supreme Court always has maintained that ‘‘[t]he States unquestionably do retai[n] a significant measure of sovereign authority . . . to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Government.’’1678 Just as in New York v. United States, in which the ‘‘Petitioners d[id] not contend that [the Federal government] lacks the power to regulate the disposal of low level radioactive waste,’’ 1679 here too there can be no dispute that the Federal government retains the authority to regulate sexual harassment and assault, a national problem, in education programs or activities that receive Federal financial assistance, even though the same matters also fall within the traditional police powers of the States. The Department, through these final regulations, is not compelling the States to do anything. In exchange for Federal funds, recipients—including States and local educational 1674 U.S. 1675 New Const. amend. X. York v. United States, 505 U.S. 144, 149 (1992). 1676 United States v. Darby, 312 U.S. 100, 124 (1941). 1677 3 J. Story, Commentaries on the Constitution of the United States 752 (1833). 1678 Garcia v. San Antonio Metro. Transit Auth., 469 U. S. 528, 549 (1985) (citations and internal quotation marks omitted). 1679 New York, 505 U.S. at 159–60. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 institutions—agree to comply with Title IX and regulations promulgated to implement Title IX as part of the bargain for receiving Federal financial assistance, so that Federal funds are not used to fund sex-discriminatory practices. As a consequence, the final regulations are consistent with the Tenth Amendment. Although a commenter’s assertion that States possess general police powers is correct,1680 the Supreme Court also has held that Congress’s authority to act can be quite expansive under the powers granted to Congress under the U.S. Constitution, and such exercise of enumerated powers by Congress does not convert Federal government authority into general police powers.1681 The Department disagrees with a commenter’s assertion that these final regulations alter the nature of the bargain recipients accept in exchange for Federal financial assistance in violation of Congress’s Spending Clause authority, notwithstanding the Supreme Court’s holding in Sebelius that congressional expansion of the Medicaid program violated the Spending Clause. The Sebelius Court reasoned that the Affordable Care Act at issue in that case expanded the Medicaid program in a manner that ‘‘accomplishes a shift in kind, not merely degree.’’ 1682 The Sebelius Court explained that Congress exceeded its Spending Clause authority because it attempted to ‘‘transform[]’’ the original Medicaid program from a program ‘‘to cover medical services for four particular categories of the needy [individuals with disabilities, the blind, elderly, and needy families with dependent children]’’ into part of a ‘‘comprehensive national plan to provide universal health insurance coverage.’’ 1683 By contrast, the 1680 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 535–36 (2012) (affirming that States have general police powers). 1681 Id. at 536–37 (analyzing the Affordable Care Act under Congress’s enumerated powers to regulate interstate commerce and ‘‘tax and spend’’ and noting that the latter authority gives ‘‘the Federal Government considerable influence even in areas where it cannot directly regulate.’’). 1682 Id. at 583 (‘‘The Medicaid expansion, however, accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for four particular categories of the needy: The disabled, the blind, the elderly, and needy families with dependent children. See 42 U.S.C. 1396a(a)(10). Previous amendments to Medicaid eligibility merely altered and expanded the boundaries of these categories. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. It is no longer a program to care for the neediest among us, but rather an element of a comprehensive national plan to provide universal health insurance coverage.’’). 1683 Id. at 583–84. PO 00000 Frm 00435 Fmt 4701 Sfmt 4700 30459 Department’s Title IX regulations do not expand or stray from the original purpose and scope of the Title IX statute enacted by Congress. The subject of these final regulations remains the same as that described in the Title IX statute—ensuring that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. These final regulations do not expand the category of persons protected under Title IX (i.e., any person in the United States participating in or benefiting from an education program or activity). As discussed elsewhere in this preamble, the final regulations adopt and adapt the Supreme Court’s interpretation of Title IX recognizing sexual harassment as a form of sex discrimination. Furthermore, the Department’s Title IX regulations have, for decades, required recipients to adopt and publish grievance procedures for the prompt and equitable resolution of complaints of sex discrimination. Thus, the final regulations are akin to the Medicaid program amendments acknowledged by the Sebelius Court to have constituted an appropriate exercise of Spending Clause authority,1684 rather than the ‘‘transformation’’ of Title IX into coverage of subjects outside the scope of the original statute or an expansion of Title IX obligations ‘‘in kind’’ rather than ‘‘in degree.’’ The NPRM provided that this regulatory action does not unduly interfere with State, local, or tribal governments in the exercise of their governmental functions.1685 For example, the NPRM acknowledged that when a party is a minor, has been appointed a guardian, is attending an elementary or secondary school, or is under the age of 18, recipients have discretion to look to State law and local educational practice in determining whether the rights of the party shall be exercised by the parent(s) or guardian(s) instead of or in addition to the party.1686 The final regulations set forth this proposition more clearly in § 106.6(g). These final regulations also provide significant flexibility to recipients; for example, the final regulations in § 106.30 expressly provide that the Assistant Secretary will not require recipients to adopt a particular 1684 Id. at 583 (noting previous amendments affecting, and expanding, the Medicare program that constituted an expansion ‘‘in degree’’ and not ‘‘in kind’’). 1685 83 FR 61484. 1686 83 FR 61482. E:\FR\FM\19MYR2.SGM 19MYR2 30460 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations definition of consent with respect to sexual assault, such that States are free to prescribe a definition of consent for use in sexual assault cases in educational institutions without conflict with these final regulations. Similarly, these final regulations do not prohibit recipients from addressing conduct that is not covered under these final regulations, such that States are free to require recipients to address conduct that, for instance, did not occur in an education program or activity, or that does not meet the § 106.30 definition of sexual harassment. Finally, the NPRM also ‘‘encouraged State and local elected officials to review and provide comments on the[ ] proposed regulations,’’ and the Department has carefully considered and responded to such comments.1687 Recipients do not need to choose between Federal financial assistance and protecting students’ equal access to their education because these final regulations help ensure that students have equal access to a recipient’s education program or activity. For example, § 106.44(a) requires a recipient to treat complainants and respondents equitably by offering supportive measures as defined in § 106.30 to a complainant, and by following a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent. Supportive measures are designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party. Where a respondent is found responsible for sexually harassing a complainant, the recipient must effectively implement remedies for the complainant, which must be designed to restore or preserve equal access to the recipient’s education program or activity, pursuant to § 106.45(b)(1)(i) and § 106.45(b)(7)(iv). Changes: None. Comments: Many commenters identified substantive areas of potential conflict between State and local laws and the NPRM. Commenters noted that Illinois law requires Illinois IHEs to address, investigate, and resolve sexual misconduct complaints regardless of location; whereas the NPRM only applies to conduct within an education program or activity against a person in the United States. New Jersey law explicitly includes harassment occurring online and in certain offcampus locations. 1687 83 FR 61495. VerDate Sep<11>2014 19:08 May 18, 2020 A few commenters generally asserted that the proposed rules appeared to be inconsistent with other laws such as the Clery Act and VAWA. Other commenters argued that conflict regarding geographical application may also arise under VAWA and the Clery Act. One commenter stated that the NPRM may conflict with VAWA and the Clery Act regarding evidentiary standards. Some commenters noted that States such as California, Connecticut, Illinois, and New Mexico have laws requiring that school disciplinary boards use the preponderance of the evidence standard to evaluate sexual misconduct on campus. One commenter asserted that applying the same standard of evidence for complaints against students as it does for complaints against employees, including faculty, is problematic because the Connecticut General Statutes require that for cases of sexual assault, stalking, and intimate partner violence, the institution must use the preponderance of the evidence standard. Additionally, one commenter stated that Connecticut requires ‘‘affirmative consent.’’ One commenter generally argued that the NPRM would undermine State efforts to require or encourage schools to provide more robust supportive measures to students. This commenter did not explain further. One commenter stated that the NPRM would preempt State laws that include broader sexual harassment definitions, such as New Jersey law. Commenters raised the issue that Illinois law prohibits parties from crossexamining each other and permits only indirect questioning at the presiding school officials’ discretion, whereas the proposed rules require crossexamination through advisors. One commenter also argued that this provision conflicts with or is inconsistent with Illinois State law Preventing Sexual Violence in Higher Education, 110 ILCS 155, which requires all higher education institutions in Illinois to adopt a comprehensive policy concerning sexual violence, domestic violence, dating violence, and stalking consistent with governing Federal and State law, regarding the standard of evidence because Illinois State law requires use of the preponderance of the evidence standard to determine whether the alleged violation of the comprehensive policy occurred.1688 Another commenter expressed concern about providing documentation to both parties as part of the grievance process and 1688 110 Jkt 250001 PO 00000 Ill. Comp. Stat. 155/25(5). Frm 00436 Fmt 4701 Sfmt 4700 noted that such a provision conflicts with practices in Illinois courts where the State prevents the reporting party from providing the defendant with a copy of a police report, and the police report can only be provided to an attorney due to safety concerns. One commenter asserted that in Kentucky, evidence offered to provide that the reporting party engaged in other sexual behavior or evidence offered to prove the reporting party’s sexual disposition is inadmissible and opined that allowing this type of evidence to be introduced within a Title IX proceeding is a clear conflict between the proposed rules, and State law. Commenters asserted substantive conflicts with State law may arise regarding grievance procedures under the proposed rules, including with respect to privacy protections, equal opportunity for the parties to inspect and review evidence, admissibility of past sexual history, and the presumption of non-responsibility. One commenter opined that it would be confusing for school and university officials to conform to Federal regulations that conflict with local and State laws. Discussion: For some of the State laws that the commenters cited (such as Illinois and New Jersey laws that may include sexual misconduct complaints of conduct that occurs outside of an education program or activity, State laws encouraging more robust supportive measures, and the broader definition of sexual harassment in New Jersey’s law), there is no actual conflict because nothing in these final regulations prohibits a recipient from complying with these particular State laws. For example, if a State law contains stricter requirements such as stricter reporting requirements and timelines, and also addresses antibullying, then there is no inherent conflict with these final regulations. Similarly, if a State law requires a recipient to investigate and address conduct that these final regulations do not address, then these final regulations do not prevent a recipient from doing so. Indeed, the Department revised § 106.45(b)(3)(i), which concerns mandatory dismissals, to expressly state that such a dismissal is only for Title IX purposes and does not preclude action under another provision of the recipient’s code of conduct. Accordingly, recipients may continue to respond to conduct even if Title IX and these implementing regulations do not require a recipient to do so. Similarly, the Department revised the definitions in § 106.30 to address ‘‘Consent,’’ and § 106.30 expressly states that the E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Assistant Secretary will not require recipients to adopt a particular definition of consent with respect to sexual assault and, thus, there is no conflict with any State law that requires a particular definition of consent with respect to sexual assault. The Department disagrees that these final regulations conflict with State laws that require the use of the preponderance of the evidence standard because recipients are free to adopt the preponderance of the evidence standard under these final regulations. There also is nothing problematic with requiring that the same standard be used for complaints against employees as complaints against students. Indeed, if a State’s laws require institutions to use a preponderance of the evidence standard, then using that same standard for complaints against employees as complaints against students may level the field when a student files a formal complaint against an employee. Students should not be subject to a higher burden of proof for complaints against employees than complaints against students, especially as the power dynamic is typically skewed in favor of an employee in these circumstances. With respect to the Illinois law requiring higher education institutions to adopt policies, no conflict appears to exist because, as the commenter explains, such policies must be consistent with Federal law, which includes these final regulations. Also, with respect to Illinois law, these final regulations do not require the parties to directly cross-examine each other; instead, the cross-examination is conducted by a party’s advisor and personal questioning by one party of another is expressly prohibited under § 106.45(b)(6)(i). These final regulations also do not appear to conflict with court practices in Illinois regarding sharing documents with complainants and respondents. The commenter appears to reference a practice by Illinois courts and does not indicate that the State mandates that postsecondary institutions or elementary and secondary schools comply with a court practice to provide documents to an attorney rather than to a defendant. To the extent that these final regulations present an actual, direct conflict with Illinois State law, then these final regulations preempt State law pursuant to § 106.6(h). A recipient may choose not to accept Federal financial assistance, if the recipient does not wish to be subject to Title IX and these final regulations. The Department notes that these final regulations provide a robust rape shield provision in § 106.45(b)(6)(i)–(ii) that VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 provides: ‘‘Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.’’ To the extent that this rape shield provision directly conflicts with Kentucky State law, then these final regulations preempt State law. To generally address commenters’ questions about preemption and for the reasons explained above, the Department has added § 106.6(h) which provides that to the extent of a conflict between State or local law and Title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. These final regulations do not conflict with the Clery Act and VAWA or the Department’s regulations implementing the Clery Act and VAWA, in any aspect, including with respect to geographic requirements and the standard of evidence. If the Department interprets these final regulations as consistent with the Clery Act and VAWA, then recipients that are subject to these final regulations must be able to comply with these final regulations as well as the Department’s regulations implementing the Clery Act and VAWA. The Department addresses comments about the Clery Act in the ‘‘Clery Act’’ subsection of the ‘‘Miscellaneous’’ section. These final regulations do not conflict with the Clery Act, as amended by VAWA, and even incorporate the definitions of ‘‘dating violence,’’ ‘‘domestic violence,’’ and ‘‘stalking’’ in VAWA as part of the definition of sexual harassment in § 106.30. Recipients have been able to navigate the art of complying with numerous Federal regulations promulgated by various executive agencies while also complying with State laws. School and university officials will determine how to comply with the State and Federal legal obligations. The Department will provide technical assistance with respect to the obligations under these Federal regulations. Changes: None. Comments: Many commenters contended that there would be negative consequences from conflicts between the NPRM and other Federal and State law. Commenters argued against PO 00000 Frm 00437 Fmt 4701 Sfmt 4700 30461 imposing a one-size-fits-all approach, given the vast diversity among recipients in terms of size, resources, missions, and communities, and urged the Department to give recipients flexibility to tailor their own systems. Commenters expressed concern that the interaction between the NPRM and FERPA, the Clery Act, Title VI, and Title VII may be confusing and unclear. One commenter generally argued the NPRM would provide narrower protections and preempt many State anti-harassment laws, which would unfairly benefit respondents over complainants. Another commenter stated that the Department is jeopardizing recipients’ access to State funding because schools would be in an impossible position of having to comply with both State and Federal law. Commenters emphasized the widespread nature of the NPRM’s conflict with State laws across the country including laws in at least ten States, arguing that these conflicts could chill reporting, pose enforcement problems, impose additional cost burdens, and prompt lengthy litigation battles. One commenter asserted that the NPRM is so overly prescriptive that it would be difficult for institutions of higher education to simultaneously comply with it and the State of Washington’s Administrative Procedure Act (Washington’s APA) which, among other things, requires the presiding officer to be free of bias, prejudice, or other interest in the case, permits representation, contains notice procedures, allows the opportunity to respond and present evidence and argument, permits cross-examination, prohibits ex parte communications with the decision-maker, prohibits the investigator from being the presiding officer at the hearing, requires written orders, and permits appeal. Another commenter raised similar concerns about what the State of Washington requires and requested that the Department clarify these final regulations do not preclude a determination that a recipient’s actions constitute discrimination under State civil rights laws. Discussion: The Department acknowledges that State laws may impose different requirements than these final regulations and asserts that in most circumstances, compliance with both State law and the final regulations is feasible. State laws that have a different definition of sexual harassment or require a recipient’s response regardless of where misconduct occurs do not necessarily conflict with the final regulations. As previously explained, § 106.45(b)(3)(i), concerning mandatory E:\FR\FM\19MYR2.SGM 19MYR2 30462 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations dismissals of formal complaints, expressly provides that such a dismissal is only for Title IX purposes and does not preclude action under another provision of the recipient’s code of conduct. Accordingly, recipients are free to respond to conduct that these final regulations do not address. Similarly, the requirements in Washington’s APA, as described by the commenter, do not conflict with and may complement these final regulations. The requirements that the commenter describes in Washington’s APA actually mirror many of the requirements in these final regulations. For example, the final regulations require the Title IX Coordinator, investigator, and decisionmaker to be free from bias and conflicts of interest just as Washington’s APA requires the presiding officer to be free of bias, prejudice, or other interest in the case. The final regulations allow the parties to have an advisor (who may be, but is not required to be, an attorney), and Washington’s APA permits representation. Both these final regulations and Washington’s APA contain notice procedures, allow the opportunity to respond and present evidence and argument, permit crossexamination, prohibit the investigator from also being a decision-maker, and permit appeal. We seek to provide recipients flexibility to tailor their systems as they see fit where we believe such flexibility is appropriate. These final regulations do not preclude a State from determining whether a recipient’s actions constitute discrimination under State civil rights laws. To generally address commenters’ questions about preemption and for the reasons explained above, the Department has added § 106.6(h) which provides that to the extent of a conflict between State or local law and Title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. In various sections of this preamble, we explain how these final regulations are consistent with FERPA and other Federal statutory provisions.1689 Changes: None. Comments: Some commenters argued the NPRM may exceed the Department’s authority under Title IX and the Administrative Procedure Act (‘‘APA’’). A few commenters argued the NPRM is inconsistent with Title IX and its legislative purpose. This commenter 1689 E.g., the ‘‘Section 106.6(e) FERPA’’ subsection and the ‘‘Section 106.6(f) Title VII and Directed Question 3 (Application to Employees)’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. VerDate Sep<11>2014 21:40 May 18, 2020 Jkt 250001 requested that the Department not move forward with the proposed regulations until it publishes a substantive analysis addressing federalism and conflict of law issues created by it. This commenter also noted that the constitutional authority for Title IX could be either or both the Spending Clause and the Fourteenth Amendment. According to this commenter, the Fourteenth Amendment does not require a recipient to consent to conditions and, thus, reliance on such consent is misplaced to mitigate federalism concerns. However, this commenter cited case law suggesting that preemption and federalism analyses vary depending on which authority the Department is invoking. This commenter urged the Department to prove it has not exceeded its authority in issuing the proposed regulations. Discussion: Throughout the preamble and specifically in the ‘‘Miscellaneous’’ section (e.g., ‘‘Executive Orders and Other Requirements,’’ ‘‘Length of Public Comment Period/Requests for Extension,’’ ‘‘Conflicts with First Amendment, Constitutional Confirmation, and International Law,’’ ‘‘Different Standards for Other Harassment,’’ and ‘‘Spending Clause’’ subsections) the Department has thoroughly explained why it believes the final regulations are consistent with the APA 1690 and other Federal statutes. The Department adhered to the noticeand-comment rulemaking process required under the APA. The Department also already noted that with respect to these final regulations’ relationship with State law, the final regulations are not an unfunded mandate that implicate federalism and conflict of law issues, but rather condition Federal financial assistance on compliance with these final regulations. To generally address commenters’ questions about preemption and for the reasons explained above, the Department has added § 106.6(h) which provides that to the extent of a conflict between State or local law and Title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. The Department agrees that these final regulations could be justified under the Federal government’s Fourteenth Amendment authority, in addition to the straightforward Spending Clause authority. The Fourteenth Amendment’s Enforcement Clause, in § 5 of the Amendment, authorizes the Federal government to enforce it by appropriate 1690 5 PO 00000 U.S.C. 701 et seq. Frm 00438 Fmt 4701 Sfmt 4700 legislation. That power includes ‘‘the authority both to remedy and to deter violation of rights guaranteed [by the Fourteenth Amendment] by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.’’ 1691 The Supreme Court often has stated that ‘‘Congress may enact socalled prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.’’ 1692 ‘‘Legislation which deters or remedies constitutional violations can fall within the sweep of Congress’s enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into legislative spheres of autonomy previously reserved to the States.’’ 1693 In Hibbs, in which the Supreme Court considered whether a male State employee could recover money damages against the State because of its failure to comply with the family-care leave provision of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. 2601 et seq., the Court upheld the FMLA as a legitimate exercise of Congress’s § 5 power to combat unconstitutional sex discrimination, ‘‘even though there was no suggestion that the State’s leave policy was adopted or applied with a discriminatory purpose that would render it unconstitutional’’ under the Equal Protection Clause.1694 The Court explained that when the Federal government seeks to remedy or prevent discrimination on the basis of sex ‘‘§ 5 authorizes it to enact prophylactic legislation proscribing practices that are discriminatory in effect, if not in intent, to carry out the basic objectives of the Equal Protection Clause’’ including in the sphere of private discrimination.1695 After all, the Fourteenth Amendment’s enforcement power is a ‘‘broad power indeed.’’ 1696 These final regulations could thus be justified under this power, in addition to the Federal government’s Spending Clause powers.1697 And in all events, these regulations are consistent with the APA, 1691 Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000). 1692 Nev. Dep’t. of Human Resources v. Hibbs, 538 U.S. 721, 727–728 (2003). 1693 Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976) (citations and internal quotation marks omitted). 1694 Tennessee v. Lane, 541 U.S. 509, 519–20 (2004) (emphasis added). 1695 Id. at 520. 1696 Miss. Univ. for Women v. Hogan, 458 U.S. 718, 732 (1982). 1697 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 637 (1999); South Dakota v. Dole, 483 U.S. 203 (1987). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Title IX, and other Federal statutory provisions. Changes: None. Comments: A number of commenters asserted that informal resolution under the NPRM would conflict with State law. Commenters argued that the NPRM’s conflicts with State law regarding mediation could trigger enforcement problems, cause confusion for recipients and students, impose additional cost burdens, and prompt lengthy litigation. Discussion: The final regulations allow but do not require recipients to provide an informal resolution process pursuant to § 106.45(b)(9). If State law prohibits informal resolution, then a recipient does not need to offer an informal resolution process. Additionally, § 106.45(b)(9) provides that a recipient may not require the parties to participate in an informal resolution process. The Department believes that § 106.45(b)(9) leaves substantial flexibility with recipients as to whether to adopt informal resolution processes and how to structure and administer such processes, decreasing the likelihood that a recipient’s compliance with these final regulations causes conflict with the recipient’s compliance with any State law addressing mediations for campus sexual assault. To generally address commenters’ questions about preemption and for the reasons explained above, the Department has added § 106.6(h) which provides that, to the extent of a conflict between State or local law and Title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. Changes: None. Section 106.8(a) Designation of Coordinator Comments: Several commenters expressed general support for § 106.8(a), noting that it codifies good practices already implemented at many schools, standardizes the importance of the Title IX Coordinator’s role, and explicitly clarifies the independent compliance and investigatory responsibilities of the Title IX office. One commenter specifically appreciated the addition of the Title IX Coordinator’s email address to the required notification, and another appreciated that this provision requires institutions to specify the Title IX Coordinator’s ‘‘name or title’’ because recipients experience high turnover rates in the position of Title IX Coordinator. At least one commenter appreciated that this provision allows VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the Title IX Coordinator to delegate responsibilities to other staff members including the responsibility for implementing supportive measures. Some commenters requested clarification that Title IX Coordinators can delegate certain responsibilities or play more of a coordinating role rather than a direct role in certain circumstances. Many of these commenters asserted that the current regulations provide for this interpretation, but that proposed § 106.8(a) did not afford the same flexibility to Title IX Coordinators. For instance, commenters asked whether a Title IX Coordinator’s delegated employee can evaluate reports to determine whether they are covered by Title IX, determine which reports require formal proceedings, coordinate responses to all reports, or sign formal complaints on behalf of the Title IX Coordinator. Some commenters asked the Department to include an express list of nondelegable functions which the Title IX Coordinator must carry out personally. Some commenters recommended that the Department add language requiring a minimum standard of ‘‘at least one full-time, dedicated’’ employee for recipients with student populations under 10,000, and for recipients with student populations over 10,000 to employ one full-time Title IX Coordinator, at least one full-time investigator, and a full-time administrative assistant to ensure minimum capacity. Several commenters suggested that more than one Title IX Coordinator may be necessary to fulfill all the required functions of the office, further suggesting that the number of Title IX Coordinators or size of the office should be proportionate to the size of the student body. One commenter stated that § 106.8(a) made the Title IX Coordinator more inaccessible and invisible to complainants because it situated the Title IX Coordinator as an administrator at the school district level. Some commenters suggested that the Department should provide additional financial resources to institutions so that institutions can develop a more efficient and decentralized Title IX office under the direction of the Title IX Coordinator. Discussion: We appreciate the comments received in support of § 106.8(a). Based on the widespread use by commenters of the term ‘‘Title IX Coordinator,’’ the Department revised this provision to specifically label the employee designated under § 106.8(a) as the ‘‘Title IX Coordinator,’’ specify that recipients must refer to that person as PO 00000 Frm 00439 Fmt 4701 Sfmt 4700 30463 the ‘‘Title IX Coordinator,’’ and we use that label throughout the final regulations. Uniformity in the label by which the person designated in § 106.8(a) is referred will further the Department’s interest in ensuring that students in schools, colleges, and universities know that notifying their school’s ‘‘Title IX Coordinator’’ triggers their school’s legal obligations to respond to sexual harassment under these final regulations. The final regulations require recipients to identify the designated individual by the official title, ‘‘Title IX Coordinator,’’ as well as require recipients to notify students and employees (and others) of the electronic mail address of the Title IX Coordinator, in addition to providing their office address and telephone number, to better ensure that students and employees have accessible options for contacting a recipient’s Title IX Coordinator.1698 We have also revised § 106.8(a) to state that the recipient must not only designate but also ‘‘authorize’’ at least one Title IX Coordinator, to further reinforce that a recipient’s Title IX Coordinator (and/or any deputy Title IX Coordinators or other personnel to whom a Title IX Coordinator delegates tasks) must be authorized to coordinate the recipient’s obligations under these final regulations. Nothing in the final regulations restricts the tasks that a Title IX Coordinator may delegate to other personnel, but the recipient itself is responsible for ensuring that the recipient’s obligations are met, including the responsibilities specifically imposed on the recipient’s Title IX Coordinator under these final regulations, and the Department will hold the recipient responsible for meeting all obligations under these final regulations.1699 1698 We have also revised § 106.8(a) to expressly provide that every person has clear, accessible reporting channels to the Title IX Coordinator, by stating that any person may report sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sexual harassment), in person, by mail, by telephone, or by email, using the listed contact information for the Title IX Coordinator (or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report), and that a report may be made at any time (including during non-business hours) by using the listed telephone number or email address, or by mail to the listed office address. 1699 For example, under § 106.44(a) the recipient must respond to sexual harassment promptly in a non-deliberately indifferent manner, and as part of this obligation the recipient’s Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the E:\FR\FM\19MYR2.SGM Continued 19MYR2 30464 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Nothing in the final regulations precludes a recipient from designating multiple Title IX Coordinators, nor from designating ‘‘deputy’’ or ‘‘assistant’’ coordinators to whom a Title IX Coordinator delegates responsibilities, nor is a Title IX Coordinator prevented from working with other administrative offices and personnel within a recipient institution in order to ‘‘coordinate’’ the recipient’s efforts to comply with Title IX. Ultimately, the recipient itself is responsible for compliance with obligations under Title IX and these final regulations, and § 106.8(a) requires at least one recipient employee to serve as a Title IX Coordinator. If a recipient enrolls so many students that a single Title IX Coordinator is unable to coordinate the recipient’s Title IX compliance then the recipient may need to hire additional personnel, but the Department declines to require that result. The Department’s interest is in the recipient’s compliance with Title IX obligations, but the Department desires to leave recipients as much flexibility as possible to decide how to achieve compliance so that a recipient’s funds and resources are most efficiently allocated to achieve fulfilment of a recipient’s Title IX obligations as well as a recipient’s educational purpose and mission. Similarly, the Department declines to mandate that recipients with larger student populations employ more Title IX staff or that a Title IX Coordinator must be a full-time or dedicated position. The Department does not wish to prescribe a recipient’s administrative or personnel affairs; the Department’s interest is in prescribing each recipient’s obligations under Title IX. To emphasize that the recipient’s Title IX Coordinator must not be designated ‘‘in name only’’ to merely technically comply with this provision, we have revised § 106.8(a) to state that the recipient must designate ‘‘and authorize’’ a Title IX Coordinator to coordinate the recipient’s efforts to comply with Title IX. The Department recognizes that the position of Title IX Coordinator tends to be a high-turnover position, and that this creates challenges for recipients and their educational communities.1700 We complainant the process for filing a formal complaint. 1700 E.g., Sarah Brown, Life Inside the Title IX Pressure Cooker, Chronicle of Higher Education (Sept. 5, 2019) (‘‘Nationwide, the administrators who are in charge of dealing with campus sexual assault and harassment are turning over fast. Many colleges have had three, four, or even five different Title IX coordinators in the recent era of heightened enforcement, which began eight years ago. Twothirds of Title IX coordinators say they’ve been in their jobs for less than three years, according to a 2018 survey by the Association of Title IX VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 believe that revisions to § 106.8(a) in these final regulations help ensure that a recipient provides constant access to a Title IX Coordinator, without forcing recipients to divert educational resources to Title IX personnel unless the recipient has determined that the recipient needs additional personnel in order to fulfill the recipient’s Title IX obligations. The Department disagrees that proposed § 106.8(a) modified existing 34 CFR 106.8(a) in any manner that would result in the Title IX Coordinator being less accessible to students because a recipient’s Title IX Coordinator may be a single coordinator for an entire school district; the existing regulations, proposed regulations, and final regulations consistently and appropriately recognize that Title IX governs each ‘‘recipient’’ 1701 of Federal financial assistance which ‘‘operates an education program or activity,’’ 1702 not each individual school building. In order to better address the accessibility of a recipient’s Title IX Coordinator for all students (as well as employees and others), we have revised § 106.8(a) in these final regulations to expressly provide that any person may use the Title IX Coordinator’s contact information (which must include an office address, telephone number, and email address) to report sexual harassment. Therefore, even if the Title IX Coordinator’s office location is in an administrative building that is not easily accessible to all students, any person may contact the Title IX Coordinator (in person, by mail, telephone, or email) including in ways that allow reporting during non-business hours (i.e., by mail, telephone, or email).1703 Furthermore, if a recipient designates or authorizes Administrators, or ATIXA, the field’s national membership group. One-fifth have held their positions for less than a year.’’); Jacquelyn D. Wiersma-Mosley & James DiLoreto, The Role of Title IX Coordinators on College and University Campuses, 8 Behavioral. Sci. 4 (2018) (finding that most Title IX Coordinators have fewer than three years of experience, and approximately two-thirds are employed in positions in addition to serving as the Title IX Coordinator). 1701 34 CFR 106.2(i) (defining ‘‘recipient’’). 1702 34 CFR 106.2(i) (defining ‘‘recipient’’); 34 CFR 106.2(h) (defining ‘‘program or activity’’). 1703 We have added § 106.71 prohibiting retaliation against any individual for exercising rights under Title IX, and we emphasize that any person has the right to report sexual harassment to the recipient’s Title IX Coordinator. Thus, for example, a recipient may not intimidate, threaten, coerce, or discriminate against an employee who reports sexual harassment allegations (whether as the alleged victim or as a third party) to the Title IX Coordinator, even if the recipient’s code of conduct or employment policies state that such an employee is not permitted to report directly to the Title IX Coordinator (e.g., states that such an employee must only report ‘‘up’’ the employee’s chain of command.) PO 00000 Frm 00440 Fmt 4701 Sfmt 4700 employees to serve as deputy or assistant Title IX Coordinators (perhaps with the goal of having Title IX office personnel located on various satellite campuses, or in individual school buildings, to make Title IX personnel more accessible to students), then such employees are officials with authority to institute corrective measures on behalf of the recipient 1704 and notice to such employees conveys actual knowledge to the recipient, requiring the recipient’s prompt response under § 106.44(a). If the Title IX Coordinator is located in an administrative office or building that restricts, or impliedly restricts, access only to certain students (e.g., a women’s center), such a location could violate § 106.8(a) by not ‘‘authorizing’’ a Title IX Coordinator to comply with all the duties required of a Title IX Coordinator under these final regulations (for example, a Title IX Coordinator must intake reports and formal complaints of sexual harassment from any complainant regardless of the complainant’s sex). These final regulations are focused on clarifying recipients’ legal obligations under Title IX and do not address grants or funding that a recipient might use to hire Title IX personnel. We have revised § 106.8, for clarity and ease of reference, by describing the group of individuals and entities entitled to receive notice of the recipient’s non-discrimination policy, and notice of the recipient’s Title IX Coordinator’s contact information, in paragraph (a) rather than (as in the NPRM) in § 106.8(b)(1); thus, in provisions such as § 106.8(b)(2) reference is made to ‘‘persons entitled to a notification under paragraph (a)’’ rather than the NPRM’s reference to ‘‘persons entitled to a notification under paragraph (b)(1).’’ We have further revised § 106.8(a) by requiring reference to the recipient’s employee(s) designated to coordinate the recipient’s Title IX responsibilities as the recipient’s ‘‘Title IX Coordinator,’’ and references throughout § 106.8 (and throughout the entirety of these final regulations), including § 106.8(b)(1), now reference the ‘‘Title IX Coordinator’’ instead of ‘‘the employee designated pursuant to paragraph (a).’’ We have further revised § 106.8(b)(2)(i) to require the recipient to prominently display the contact information required to be listed for the Title IX Coordinator under paragraph (a) of this section, and the notice of non-discrimination 1704 Section 106.30 (defining ‘‘actual knowledge’’ to include notice to any official of the recipient who has authority to institute corrective measures on behalf of the recipient). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations described in paragraph (b)(1) of this section, on the recipient’s website, if any, and in each handbook or catalog that the recipient makes available to persons entitled to a notification under § 106.8(a). Changes: We have revised § 106.8(a) to clarify that the individual designated by the recipient is referred to as the ‘‘Title IX Coordinator’’ and added that the Title IX Coordinator must not only be designated but also ‘‘authorized’’ to coordinate the recipient’s Title IX obligations. We have moved the list of persons whom a recipient must notify of the recipient’s non-discrimination policy, and of the Title IX Coordinator’s contact information, to § 106.8(a) rather than listing those persons in § 106.8(b)(1). We have revised § 106.8(a) to state that any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be victimized by sex discrimination or sexual harassment) by using the listed contact information for the Title IX Coordinator, and stating that such a report may be made at any time (including during non-business hours) by using the telephone number or email address, or by mail to the office address, listed for the Title IX Coordinator. We have revised § 106.8(b)(2)(i) to require the recipient to prominently display on the recipient’s website the Title IX Coordinator’s contact information required to be listed under § 106.8(a), as well as the recipient’s notice of nondiscrimination required under § 106.8(b)(1). Section 106.8(b) Policy Dissemination of Removal of 34 CFR 106.9(c) Comments: Some commenters discussed the removal of 34 CFR 106.9 and the way the Department incorporated, but modified, provisions found in 34 CFR 106.9 into the final regulations at § 106.8(b). One commenter stated that for elementary and secondary schools, which are not subject to subpart C of the current part 106 (admissions and recruitment) and which do not solicit applicants for admission, proposed § 106.8(b) created confusion as to how to implement such a provision. The commenter believed that notice on the recipient’s website would be sufficient notice to stakeholders within the recipient’s community. Some commenters objected to removing the requirement in 34 CFR 106.9 that recipients take specific, continuing steps to notify specified people of the recipient’s non- VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 discrimination policy, and removal of the requirement that recipients distribute publications without discrimination on the basis of sex. Some commenters noted the Department expected that the availability of websites would address the removal of ‘‘taking continuing steps’’ but these commenters were not convinced that posting on websites achieves the same purpose. Other commenters asserted that changing the language around publications is not sufficient to ensure, as 34 CFR 106.9(c) did, that publications will be distributed without discrimination on the basis of sex. One commenter asserted that for example, under 34 CFR 106.9(c) a school district could not send school catalogs to parents of girls but not parents who have only boys, yet this would be allowed under the NPRM. At least one commenter stated that the Department failed to mention or justify the removal of the requirement to train recruiters on its non-discrimination policy, which the commenter argued is an important requirement to ensure that such a policy is not diluted in the field. One commenter generally expressed that 34 CFR 106.9 contains important mechanisms to prevent discrimination based on sex and their removal only makes Title IX protections weaker. Discussion: The Department appreciates commenters’ support for, and other commenters’ concerns about, removing 34 CFR 106.9 and incorporation of many of its provisions into § 106.8(b). As discussed further below, the Department believes that § 106.8(b) now more clearly and reasonably describes recipients’ obligations to notify its educational community of a recipient’s obligation not to engage in sex discrimination under Title IX. The Department appreciates commenters’ concerns that requiring the recipient’s nondiscrimination policy to be posted on a recipient’s website is not the same as requiring notice to each of the categories of persons and organizations listed under now-removed 34 CFR 106.9(a)(1).1705 However, the Department believes that recipients and their educational stakeholders should 1705 Now-removed 34 CFR 106.9(a)(1) refers to the following group of persons: Applicants for admission and employment, students and parents of elementary and secondary school students, employees, sources of referral of applicants for admission and employment, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient. Section § 106.8(a) alters this list by removing ‘‘sources of referral of applicants for admission and employment’’ and adding ‘‘legal guardians’’ of elementary and secondary school students. PO 00000 Frm 00441 Fmt 4701 Sfmt 4700 30465 benefit from the technological developments (such as wide use of websites) that have emerged in the decades since promulgation of Title IX regulations in 1975, to more efficiently and cost-effectively communicate important notices, including the required notice of non-discrimination. The Department believes that § 106.8(b)(1) now appropriately requires recipients to notify an appropriately broad list of persons and organizations of, as well as to post on its website and in handbooks and catalogs (in § 106.8(b)(2)), the recipient’s nondiscrimination policy (as well as the Title IX Coordinator’s contact information). The Department believes that these requirements reasonably reduce the burden on recipients to take ‘‘specific and continuing steps’’ to notify relevant persons of the recipient’s non-discrimination policy, without diminishing the goal of ensuring that a recipient’s educational community understands that the recipient has a policy of non-discrimination in accordance with Title IX (as well as knowing the contact information for the Title IX Coordinator so that any person may report sex discrimination, including sexual harassment). The Department understands commenters’ concerns that 34 CFR 106.9(c) specifically prohibited recipients from distributing publications on the basis of sex. Although similar language does not appear in § 106.8(b), the Department believes that such language is not necessary because if a commenter’s example did occur (e.g., a school sent a school catalog only to male students but not to female students), Title IX already prohibits different treatment on the basis of sex. The Department understands a commenter’s concern that removing reference to ‘‘sources of referral’’ (language that appears in 34 CFR 106.9(a)) from the group of persons and entities who must be notified of a recipient’s non-discrimination policy could dilute the understanding of a recipient’s non-discrimination policy ‘‘in the field.’’ We disagree, however, that recipients should continue to be required to send separate notice to all persons who act as recruiters for a recipient, because such persons are not always easily identifiable, and will have the benefit of the publicly available notice that § 106.8(b)(2) requires to be prominently displayed on each recipient’s website. Additionally, 34 CFR 106.51(a)(3) continues to prohibit a recipient from entering into any contractual or other relationship which directly or indirectly has the effect of subjecting employees or students to E:\FR\FM\19MYR2.SGM 19MYR2 30466 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations discrimination, including ‘‘relationships with employment and referral agencies’’ such that Title IX regulations continue to clearly prohibit a recipient from indirectly discriminating in employment by, for instance, working with a referral source that discriminates on the basis of sex.1706 Similarly, 34 CFR 106.21(a) continues to prohibit recipients from discriminating on the basis of sex with respect to admissions, and the Department will continue to hold recipients responsible for sex discriminatory admissions policies and practices regardless of whether any individual or entity recruits applicants on the recipient’s behalf. Changes: To more clearly acknowledge that the reference to ‘‘employment’’ in § 106.8(b)(1) is unrelated to the provision’s reference to ‘‘subpart C of this part’’ (which applies to admissions), the word ‘‘employment’’ is moved to follow reference to ‘‘subpart C’’ instead of appearing as ‘‘admissions and employment’’ preceding that reference. The list of persons whom a recipient must notify of the recipient’s non-discrimination policy has been moved from § 106.8(b)(1) to § 106.8(a) so that § 106.8(b)(1) now references ‘‘persons entitled to a notification under paragraph (a).’’ List of Publications Comments: Some commenters discussed the way that § 106.8(b)(2)(i) changes the provision in removed 34 CFR 106.9(b)(1) regarding the list of types of publications and other materials where recipients must publish the recipient’s non-discrimination policy required under § 106.8(b)(1). One commenter supported proposed § 106.8(b)(2)(i), stating that the provision streamlines the list of types of publications and asserted that requiring the recipient’s non-discrimination policy to be published on the recipient’s website, and in handbooks and catalogs, is more consistent with the ways institutions of higher education disseminate important information to students and employees. The commenter stated that the Department previously issued guidance on notices of non-discrimination in 2010 and recommended that if the proposed rules are adopted, the Department should clarify any parts of the sample notice provided in the 2010 guidance that have changed as a result. Other commenters opposed these changes. One commenter stated that the Department failed to provide a reason 1706 See also § 106.53(a) (‘‘A recipient shall not discriminate on the basis of sex in the recruitment and hiring of employees.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 for why the list of publications needed to be streamlined or why particular materials were removed from the list in 34 CFR 106.9(b) (e.g., application forms).1707 The commenter also argued that the Department failed to explain why it added handbooks to the list and how that item overlaps or not with items removed from that list, such as announcements and bulletins. The commenter stated that if the scope of handbooks is the same as, for instance, announcements and bulletins, then there is no reason for this change and if it is different than the practical effect will be to increase burden on recipients because the prior list of publications and materials remains in the Title IX regulations of 25 other Federal agencies. Discussion: The Department appreciates commenters’ support for, and concerns regarding, § 106.8(b). The Department streamlined the list of types of publications that must contain the recipient’s non-discrimination policy (and, under the final regulations, must also contain the Title IX Coordinator’s contact information) because the Department believes that the items listed in 34 CFR 106.9(b) that do not appear in § 106.8(b) were superfluous; for example, applicants for admission are required to receive notification of the recipient’s non-discrimination policy, so including ‘‘application forms’’ as a listed type of publication is unnecessary. As to ‘‘announcements’’ and ‘‘bulletins,’’ such items lack a clear definition, and as described below, the Department believes that the streamlined list of types of publications, combined with the new requirement to post on the recipient’s website, ensures that the recipient’s educational community is aware of the recipient’s non-discrimination policy (and Title IX Coordinator’s contact information). The Department added ‘‘handbooks’’ and retained ‘‘catalogs’’ on the list to reflect the reality of what types of publications schools most frequently use that ought to contain the recipient’s nondiscrimination policy (and Title IX Coordinator’s contact information). In addition, § 106.8(b)(2) requires that the non-discrimination policy must be posted prominently on the recipient’s website. The Department believes this list of types of publications is broad 1707 Now-removed 34 CFR 106.9(b)(1) listed the following types of publications in which a recipient needed to include the recipient’s nondiscrimination policy: Announcement, bulletin, catalog, or application form. Section 106.8(b)(1)(i) removes reference to announcements, bulletins, and application forms, retains reference to catalogs, adds handbooks, and § 106.8(b)(2)(i) adds a requirement to post the non-discrimination policy on the recipient’s website, if any. PO 00000 Frm 00442 Fmt 4701 Sfmt 4700 enough to achieve the purpose of ensuring that relevant individuals and organizations (i.e., the list of persons entitled to notice under § 106.8(a)) see the recipient’s non-discrimination policy on pertinent recipient materials without also retaining reference to ‘‘announcements,’’ ‘‘bulletins’’ and ‘‘application forms’’ from now-removed 34 CFR 106.9(b)(1). The Department does not agree with commenters who asserted that the Department is increasing the burden on recipients because the list of publications in removed 34 CFR 106.9(b)(1) (i.e., announcements, bulletins, catalogs, application forms) remains in the Title IX regulations of 25 other Federal agencies. The Department believes that these final regulations appropriately update relevant Title IX regulations enforced by the Department regardless of whether other agencies also adopt the same regulations, and nothing in § 106.8 makes it difficult for a recipient to comply with other agency regulations. The Department appreciates a commenter’s request to clarify whether § 106.8 changes anything in the sample notice of non-discrimination contained in the fact sheet on non-discrimination policies published by the Department in 2010.1708 These final regulations, including § 106.8, apply and control over any statements contained in Department guidance, and recipients should be aware that the sample notice contained in that 2010 fact sheet does not require reference to a ‘‘Title IX Coordinator’’ or an email address listed for a Title IX Coordinator, while § 106.8 does require that information. Changes: We have revised § 106.8(b)(2)(i) to require recipients to publish on their websites, if any, the contact information for their Title IX Coordinator required under § 106.8(a). Professional Organizations Comments: One commenter objected to the requirement in § 106.8(b)(1) to 1708 U.S. Dep’t. of Education, Office for Civil Rights, Fact Sheet, ‘‘Notice of Non-discrimination’’ (August 2010), https://www2.ed.gov/about/offices/ list/ocr/docs/nondisc.pdf. The 2001 Guidance at 20 encourages recipients to ensure that the school community has adequate notice of the school’s nondiscrimination policy, and of the procedures for filing complaints of sex discrimination, by having copies available at various locations throughout the school or campus, including a summary of the procedures in handbooks and catalogs sent to students and parents, and identifying personnel who can explain how the procedures work. These final regulations at § 106.8(b)–(c) similarly require notice of the recipient’s non-discrimination policy, and notice of the recipient’s grievance procedures for complaints of sex discrimination, and grievance process for formal complaints of sexual harassment, to members of the recipient’s educational community, as well as the contact information for the Title IX Coordinator. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations notify professional organizations, asserting that such organizations do not have much bearing at the elementary and secondary school level. The commenter further asserted that the proposed rules did not clarify how to identify appropriate professional organizations, nor whether the organization has a right of action or standing that warrants the need to provide it with separate notice. Finally, the commenter stated that the proposed rules did not clarify whether publishing the recipient’s non-discrimination policy on the recipient’s website as required under § 106.8(b)(2)(i) also fulfils the requirement under § 106.8(b)(1) that the recipient ‘‘must notify’’ the group of persons listed in that provision, which would include any applicable professional organizations. Discussion: The Department does not agree that the reference to ‘‘professional organizations’’ has little or no bearing in elementary and secondary schools, because the phrase appears in § 106.8(b)(1) as part of describing ‘‘all unions or professional organizations holding collective bargaining agreements or professional agreements with the recipient’’ and the Department believes that the persons and organizations in this description do have need to receive notice of a recipient’s non-discrimination policy. Whether an organization describes itself as a ‘‘union’’ or uses a different label, the term ‘‘or professional organizations holding collective bargaining agreements or professional agreements’’ encompasses the reality that many elementary and secondary schools have employees who are unionized or otherwise collectively bargain or hold professional agreements with the recipient. Such unions or similar organizations should receive notice that the recipient does not discriminate under Title IX (and should receive notice of the recipient’s Title IX Coordinator’s contact information), both for the protection of union or similar organization members as employees of the recipient with rights under Title IX, and because such employees may have duties and responsibilities flowing from a recipient’s Title IX obligations. For these reasons, the Department disagrees that ‘‘professional organizations’’ should be removed from the list of persons whom a recipient must notify of the recipient’s non-discrimination policy (and of the Title IX Coordinator’s contact information). The Department appreciates the opportunity to clarify that posting the recipient’s non-discrimination policy (and the Title IX Coordinator’s contact VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 information) prominently on a recipient’s website (required under § 106.8(b)(2)(i)) does not satisfy the recipient’s obligation to ‘‘notify’’ the persons listed in § 106.8(a) (i.e., applicants for admission and employment, students, parents or legal guardians of elementary and secondary school students, employees, unions and similar organizations) of the nondiscrimination policy and Title IX Coordinator’s contact information. These final regulations do not prescribe a particular form or method by which recipients ‘‘must notify’’ the foregoing group of persons and entities, in recognition that existing regulations at 34 CFR 106.9(a)(2), which became effective in 1975 and constituted the Department’s first Title IX implementing regulations, were concerned with prescribing the form of ‘‘initial’’ notice (within 90 days after the effective date of the 1975 regulations) of a recipient’s non-discrimination policy (and thus prescribed that notice could occur via publication in local newspapers, alumni or other recipientoperated newspapers or newsletters, and other written communications to students and employees). Most recipients have already complied with the regulatory requirement to send an ‘‘initial’’ notice within 90 days of the effective date of the 1975 regulations. As to every recipient, regardless of when the recipient first becomes subject to Title IX, the recipient under these final regulations ‘‘must notify’’ the list of persons and entities in § 106.8(a) by some effective method separate and apart from also complying with § 106.8(b)(2)(i) by posting required information on the recipient’s website. Changes: None. Parents of Elementary and Secondary School Students Comments: Commenters expressed concerns about the removal of parents of elementary and secondary school students from the list in proposed § 106.8(b)(1) 1709 of persons to whom recipients must send notice of their nondiscrimination policy (and Title IX Coordinator’s contact information). Commenters asserted that the Department did not provide a reason for why the list of individuals and entities needs to be streamlined, and argued that streamlining the list will not reduce the burden on school districts because the requirement to notify parents of 1709 As discussed previously, the list of persons whom a recipient ‘‘must notify’’ of the recipient’s non-discrimination policy, and of the Title IX Coordinator’s contact information, has been moved in the final regulations to § 106.8(a) instead of in proposed § 106.8(b)(1). PO 00000 Frm 00443 Fmt 4701 Sfmt 4700 30467 elementary and secondary school students remains in the Title IX regulations of 25 other Federal agencies. Commenters expressed concern that eliminating parents of elementary and secondary school students from this list would lead to underreporting of sexual harassment because if parents are not informed of the school’s nondiscrimination policy, parents will be deprived of the tools they need to protect their children’s rights under Title IX. One commenter was concerned with omitting parents of elementary and secondary school students from the list in proposed § 106.8(b)(1) in light of the fact that per the proposed rules, elementary and secondary school students could be subject to crossexamination and their parents would not have knowledge of the procedures involved in reporting sexual harassment. Commenters argued that most elementary and secondary school students are minors and rely on their parents in making decisions related to school. Commenters expressed concern that by removing parents of elementary and secondary school students from the list, the Department would be placing a large burden on minor students to be aware of a complex policy regarding sex discrimination. Commenters argued that the lack of notice to parents limits the potential for legal remedies because the proposed rules require actual knowledge of sexual harassment via notice to the Title IX Coordinator or an official with the authority to institute corrective measures on behalf of the recipient, and young students cannot be expected to know how to contact those officials. Commenters asserted that since the parents of elementary and secondary school students would no longer be required to receive notice of the non-discrimination policy, children would have the task of providing notice to these individuals and would have to understand that what they have experienced is sexual harassment and feel comfortable sharing the experience with a stranger. Discussion: The Department is persuaded by commenters’ arguments that streamlining the list of persons who must be notified of the recipient’s nondiscrimination policy (described in § 106.8(b)(1)) should not include eliminating ‘‘parents of elementary and secondary school students’’ from that list.1710 The Department is further 1710 As noted above, we have revised § 106.8 to move this list of persons whom a recipient ‘‘must notify’’ of the recipient’s non-discrimination policy and of the recipient’s Title IX Coordinator’s contact information to § 106.8(a), such that § 106.8(b)(1) E:\FR\FM\19MYR2.SGM Continued 19MYR2 30468 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations persuaded by commenters’ concerns that neglecting to include parents on this list places young students at unnecessary risk of not knowing their Title IX rights, and not having an effective means of asserting their rights because their parent has not been notified of the recipient’s nondiscrimination policy (and of the Title IX Coordinator’s contact information). Therefore, the final regulations not only restore ‘‘parents’’ to this list, but add ‘‘parents and legal guardians’’ of elementary and secondary school students (emphasis added), to ensure that a responsible adult with the ability to exercise rights on behalf of elementary and secondary school students receives notice of the recipient’s non-discrimination policy as well as notice of the recipient’s Title IX Coordinator’s contact information. We have also added § 106.6(g) to these final regulations, to expressly acknowledge the legal rights of parents and guardians to act on behalf of individuals with respect to exercise of rights under Title IX, including but not limited to filing a formal complaint of sexual harassment. Changes: The final regulations revise § 106.8(a) to add to the list of persons receiving notice of the recipient’s nondiscrimination policy, and notice of the recipient’s Title IX Coordinator’s contact information, ‘‘parents or legal guardians of elementary and secondary school students.’’ We have also added § 106.6(g) to these final regulations, to expressly acknowledge the legal rights of parents and guardians to act on behalf of individuals with respect to exercise of rights under Title IX. Subjectivity in Publications’ Implication of Discrimination Comments: Several commenters discussed the change in language from removed 34 CFR 106.9(b)(2) to § 106.8(b)(2)(ii).1711 One commenter expressed support for the change in language. The commenter stated that 34 CFR 106.9 is not sufficiently detailed to allow a school to know if a publication meets the Department’s standards and may lead to inconsistency in enforcement across OCR’s field offices. Some commenters opposed the change now refers back to the ‘‘persons entitled to a notification’’ listed in § 106.8(a). 1711 34 CFR 106.9(b)(2) (‘‘A recipient shall not use or distribute a publication of the type described in this paragraph which suggests, by text or illustration, that such recipient treats applicants, students, or employees differently on the basis of sex except as such treatment is permitted by this part.’’); cf. § 106.8(b)(2)(ii) (‘‘A recipient must not use or distribute a publication stating that the recipient treats applicants, students, or employees differently on the basis of sex except as such treatment is permitted by title IX or this part.’’). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 and asserted that the Department’s rationale for the change in language was to remove subjective determinations so that the requirement would be clearer for those enforcing it and for recipients seeking to comply with it but did not believe more clarity was needed. Some of these commenters asserted that the Department had yet to respond to a commenter’s Freedom of Information Act (FOIA) request for records about the subjectivity or lack of clarity in 34 CFR 106.9(b)(2) and argued that once the Department responds to the FOIA request the Department should reopen the public comment period to allow for additional evidence and arguments. Some commenters also contended that the elimination of the word ‘‘illustration’’ from 34 CFR 106.9(b)(2) is contrary to the Title IX regulations of 25 other Federal agencies (many of whom fund the same recipients as the Department) and is in tension with regulations issued by Federal agencies under other statutes prohibiting sex discrimination, which do extend to nontextual components of communications. Commenters argued that there is no indication in the NPRM or otherwise that any of these agencies have had difficulty enforcing such regulations, or that covered entities have sought greater clarity because such standards are too subjective. Discussion: The Department appreciates commenters’ arguments that 34 CFR 106.9(b)(2)’s phrasing that a recipient cannot use or distribute any publication that ‘‘suggests, by text or illustration’’ that the recipient treats people differently based on sex is superior to the phrasing in § 106.8(b)(2)(ii) that a recipient must not use or distribute a publication ‘‘stating that the recipient’’ treats people differently based on sex. The Department believes, however, that requiring recipients to (a) have a nondiscrimination policy, (b) notify relevant persons and entities of that policy, and (c) post that policy on the recipient’s website and in handbooks and catalogs, sufficiently ensures that a wide pool of people affiliated with the recipient, and the general public, understand a recipient’s obligation to not discriminate based on sex.1712 The Department does not believe that recipients’ graphic or pictorial illustrations that appear on a recipient’s various publications (e.g., pictures of 1712 We have revised § 106.8(b)(2)(ii) to refer to ‘‘title IX or this part’’ rather than simply ‘‘this part’’ to acknowledge that Title IX, 20 U.S.C. 1681 et seq. contains exemptions and exceptions to Title IX’s non-discrimination mandate, not all of which are reflected expressly in the Department’s implementing regulations. PO 00000 Frm 00444 Fmt 4701 Sfmt 4700 children in a classroom in a recipient’s catalog, or photos of students in caps and gowns on a recipient’s website) should be scrutinized by the Department for the purpose of deciding whether by virtue of such graphics, photos, or illustrations the recipient is ‘‘suggesting’’ that the recipient discriminates in violation of the recipient’s clearly stated policy that the recipient does not discriminate. Rather, the Department believes that recipients’ publications should take care not to ‘‘state’’ different treatment based on sex in contravention of the recipient’s required non-discrimination policy. The sufficiency of the Department’s response to any individual FOIA request is beyond the scope of this rulemaking. Further, the Department does not believe that evidence of specific instances in which a recipient or the Department actually found the ‘‘suggests, by text or illustration’’ language in 34 CFR 106.9(b)(2) to be confusing or unfairly subjective is necessary in order to justify the Department’s reconsideration of this language and the Department’s conclusion that the better policy is to evaluate ‘‘statements’’ made in recipient’s publications rather than ‘‘suggestions’’ made via illustrations. The Department acknowledges that § 106.8(b)(2)(ii) uses different language than the Title IX regulations of other Federal agencies. The Department believes that these final regulations appropriately update the Title IX regulations enforced by the Department, regardless of whether other agencies also adopt the same language in each provision, and nothing in § 106.8 creates a conflict with, or makes it difficult for a recipient to comply with, other agencies’ regulations. Changes: None. Judicial Requirements for Sex Discrimination Comments: One commenter stated that for more than 30 years, courts and agencies enforcing Title IX have applied the language in 34 CFR 106.9(b)(2) to address sex stereotyping without apparent difficulty and asserted that not including in § 106.8(b)(2)(ii) the language from 34 CFR 106.9(b)(2) regarding a publication that ‘‘suggests, by text or illustration’’ different treatment on the basis of sex (and replacing that language with language in § 106.8(b)(2)(ii) referencing a publication ‘‘stating’’ different treatment on the basis of sex) runs contrary to clearly established Supreme Court precedent that explicitly recognizes the right to be protected from discrimination and harassment based on E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations sex, including sex stereotyping. This commenter further asserted that for the same reason, § 106.8 is fundamentally inconsistent with the plain language of the Title IX statute (20 U.S.C. 1681) because the Supreme Court has held that a school can violate Title IX where a student is denied access to educational benefits and opportunities on the basis of sex, even in the absence of a facially discriminatory policy. This commenter also contended that § 106.8 is inconsistent with the Title IX statute and applicable case law because the language in § 106.8 prohibits explicit intentional discrimination yet allows implicit discrimination, which can deny students a fair and equal education. In support of this, the commenter stated that courts have consistently recognized and upheld Title IX regulations that prohibit policies found to have a discriminatory effect on one sex. Discussion: The Department does not believe that the reference in § 106.8(b)(2)(ii) to a recipient’s publication as ‘‘stating’’ that the recipient does not treat people differently based on sex instead of a publication that ‘‘suggests, by text or illustration’’ that a recipient treats people differently based on sex, constitutes rejection or modification of the way that Federal courts have applied sex stereotyping as a theory of sex discrimination. Nothing in the language of § 106.8(b)(2)(ii) restricts or changes the Department’s ability to evaluate a recipient’s publication for statements of different treatment on the basis of sex, including on a theory of sex stereotyping. Whether a publication ‘‘states’’ different treatment on the basis of sex, including based on a theory of sex stereotyping, is an inquiry distinct from whether the publication might be viewed as ‘‘suggesting’’ or implying different treatment on the basis of sex, including based on a theory of sex stereotyping. For reasons explained above, the Department does not believe it is reasonable or useful for the Department to scrutinize every graphic, picture, and illustration in a recipient’s publications to discern whether such illustrations suggest, or imply, different treatment that is not intended, not applied, and not reasonably perceived as such. Changes: None. Implicit Forms of Sex Discrimination Comments: A number of commenters offered examples of ways schools could suggest that they discriminate on the basis of sex without explicitly stating it, to explain commenters’ concerns regarding the proposed rules’ replacement of language from 34 CFR VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 106.9(b)(2) with the language in § 106.8(b)(2)(ii). One commenter argued that the Department provided no statistical or other evidence to show that the rationale for the provision has changed, or that sex stereotyping no longer needs to be remedied. The commenter contended that published policies and materials of a school can be susceptible to suggestions of sex stereotyping even where the publications do not ‘‘state’’ discriminatory practices. The commenter argued that both male and female students continue to be subjected to sex stereotyping in the forms of visual images, statements, and conduct that limits or denies their access to career and technical education paths based on sex. Commenters asserted that male students are discouraged from engaging in dance or theater because these occupations are not sufficiently ‘‘masculine,’’ and female students are discouraged from participating in science or engineering based on stereotypical conceptions of a woman’s ability to do math and science. One commenter asserted that it is rare for an entity to directly state that it discriminates and that there are many other ways a discriminatory message can come across; for example, a brochure used to recruit applicants to a nursing school should not contain 40 photos of female students and no photos of male students. Another commenter expressed concern that there are numerous symbols that get a point across as well as, if not better than, actually stating something (e.g., burning a cross on one’s lawn). One commenter asserted that overt racism and sexism are less common in the modern era and that statements hinting at a policy of sex discrimination are used in lieu of explicit statements. The commenter asserted that for example, instead of a recipient stating that it reserves Advanced Placement classes for collegebound men because a woman’s place is in the home, the recipient might state ‘‘we promote traditional gender roles and encourage women to take appropriate coursework to prepare for those roles.’’ The commenter argued that while both statements have the same message and refer to a school’s pattern of violating Title IX by forbidding women from taking the same classes as men, only one is explicit enough to contravene the proposed regulations. One commenter stated that while the commenter appreciated the Department’s efforts to instill objectivity into § 106.8(b)(2)(ii), the commenter was concerned that the provision would PO 00000 Frm 00445 Fmt 4701 Sfmt 4700 30469 allow schools to send discriminatory messages and then hide behind the fact that those messages did not explicitly state the schools were discriminating on the basis of sex. The commenter asserted that for example, a school may post a sign relating to sexual misconduct which includes images of a male student and the statement ‘‘don’t be that guy,’’ which suggests that the school thinks only men commit sexual assault even though the school may state that it has a policy of nondiscrimination. The commenter suggested that the Department use an objective standard that also prohibits non-textual indications of sex discrimination. Some commenters stated that the only example of the Department’s application of 34 CFR 106.9(b)(2) that they could locate was a case in which OCR determined that a school handbook describing a club as ‘‘open to all boys’’ violated 34 CFR 106.9(b)(2), even though the language did not state the club was ‘‘not open to all girls’’ because the description indicated that the club was intended for students of a particular sex. These commenters expressed concern that proposed § 106.8(b)(2)(ii) could overrule this decision, which would enable recipients to steer students into programs and activities based on sex. Discussion: For reasons described above, the Department does not believe it is appropriate to scrutinize the graphics, photos, and illustrations chosen by a recipient in its publications in order to determine whether a recipient’s publication ‘‘suggests’’ different treatment based on sex. The Department disagrees with the commenter who argued that a recipient should not be allowed to use a picture on a nursing school brochure depicting a group of women, without additional context about the brochure asserting that men were treated differently in such a nursing program. The Department does not believe that examining illustrations used in a recipient’s publications yields a reasonable, fair, or accurate assessment of whether a recipient engages in sex discrimination, and does not believe that expecting a proportionality requirement in the illustrative, graphic, and photographic depictions of all the kinds of students to whom a recipient’s programs are available bears a reasonable relation to whether the recipient treats students or employees differently on the basis of sex contrary to the recipient’s policy of nondiscrimination. To the extent that a commenter accurately describes an OCR enforcement action as concluding that a E:\FR\FM\19MYR2.SGM 19MYR2 30470 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recipient’s publication violated 34 CFR 106.9 because the publication described a program as ‘‘open to all boys,’’ such a result could also follow from application of § 106.8 because the publication could be found to ‘‘state’’ different treatment on the basis of sex. Thus, the enforcement action described by the commenter may not reach a different result under the final regulations. Similarly, a commenter’s example of a recipient publication showing a picture of a male with text stating ‘‘Don’t be that guy’’ and referring to sexual assault prevention could be evaluated under § 106.8 as to whether the publication states different treatment on the basis of sex, without using the language ‘‘suggests, by text or illustration’’ used in 34 CFR 106.9. Changes: None. Analogous Provisions in Other Laws Comments: Some commenters asserted that proposed § 106.8(b)(2)(ii) is not aligned with analogous provisions that Congress has enacted in laws prohibiting sex discrimination to address the problem of entities attempting to exclude a protected group by indicating they are not welcome; commenters referred to, for example, Title VII and the Fair Housing Act which prohibit notices, statements, or advertisements that indicate preference, limitation, or discrimination. The commenters argued that the word ‘‘indicate’’ used in these statutes is much closer to the word ‘‘suggest’’ in 34 CFR 106.9(b)(2) and asserted that it is unclear why the Department would want to create a regime where a recipient could not indicate that it did not hire or rent to women, but could suggest that it did not admit women to its education program. Discussion: The Department acknowledges commenters’ references to non-Title IX statutes that use words like ‘‘indicate’’ to prohibit discrimination on prescribed bases. However, for the reasons described above, the Department believes that under Title IX, prohibiting recipients from using publications ‘‘stating’’ that the recipient discriminates under Title IX sufficiently advises recipients not to make such statements in publications, without unnecessarily scrutinizing recipients’ publications’ pictures, graphics, and illustrations for a ‘‘suggestion’’ of discrimination where none is actually practiced by the recipient, and where statements in a publication do not convey different treatment on the basis of sex. Section 106.8(b)(2)(ii) allows the Department to analyze the context of such a publication and require a recipient to VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 change such statements as necessary to promote the purposes of Title IX. Changes: None. Suggested Modifications Comments: One commenter suggested that the Department require a recipient’s non-discrimination policy to be published in multiple locations on the website where appropriate, including for example, the recipient’s human resources page and admissions page. Another commenter suggested that the Department require recipients to post all of a recipient’s Title IX policies and procedures on their website in one easily accessible PDF document and located at a single website link. One commenter stated that the Department did not provide an adequate definition of the characteristics of display that would qualify as ‘‘prominent’’ and recommended that the Department clarify the definition of ‘‘prominent display’’ as that phrase is used in § 106.8(b)(2)(i). The commenter also recommended that the Department reiterate Federal standards regarding translation of materials into languages other than English. One commenter urged the Department to require recipients that have identified conflicts between the application of Title IX and the religious tenets of religious organizations that controls such recipients to include such information in their non-discrimination policy. The commenter asserted that requiring this information would promote consumer choice and is consistent with all other information that Federal law requires a school to disclose, particularly in higher education, and would enable a student to make a knowing and voluntary choice about whether to attend the school. The commenter also argued that requiring recipients to disclose inapplicability of Title IX to some or all of their programs in their non-discrimination policy should not be limited to religious institutions, and that it should also apply, for example, to an educational institution that receives Federal funds and believes that it is exempt from Title IX because it is training people for the merchant marines, or to a voluntary youth services organization or social fraternity or sorority whose membership practices are not subject to Title IX. One commenter requested clarification regarding the language in § 106.8(b)(2)(ii) that recipients must not use publications stating that they treat applicants, students, or employees differently ‘‘on the basis of sex’’ except as such treatment is permitted ‘‘by this part.’’ One commenter asked whether an educational institution within the scope PO 00000 Frm 00446 Fmt 4701 Sfmt 4700 of § 106.12(a) is required to (a) notify applicants, students, employees, and others that it does not discriminate on the basis of sex, even though that is not true, or (b) notify applicants, students, employees, and others that it does not discriminate on the basis of sex, except in circumstances identified in that notification that are permissible because of § 106.12(a). Discussion: The Department appreciates commenters’ suggestions for modifications to the way notice and publication of a recipient’s nondiscrimination policy is given in § 106.8. The Department notes that nothing in the final regulations prevents a recipient from choosing to adopt commenters’ suggestions, for example that the policy is placed on multiple, specific pages of the recipient’s website; ensuring the policy appears as a PDF linked document on the website; and that the notice appears in multiple languages. However, the Department believes that § 106.8 sets forth reasonable, enforceable requirements that achieve the purpose of ensuring that relevant persons and organizations know the recipient’s non-discrimination policy, without prescribing how the recipient must organize its website. There is no exemption for a recipient’s non-discrimination policy required under § 106.8, from laws, regulations, Federal standards, and recipient policies regarding translation of materials and information into languages other than English. The Department does not believe that recipients with religious or other exemptions to Title IX are making false representations by complying with § 106.8, because (a) a recipient’s nondiscrimination policy must state that the requirement not to discriminate extends to admission ‘‘unless subpart C of this part does not apply’’ and (b) the final regulations add ‘‘by title IX or this part’’ instead of just ‘‘by this part’’ in § 106.8(b)(2)(ii). These qualifiers encompass the reality that some recipients are exempt from Title IX in whole or in part due to the various statutory and regulatory exemptions, including the religious exemption whereby a recipient is exempt from Title IX to the extent that application of Title IX is inconsistent with a religious tenet of a religious organization that controls the recipient. Moreover, nothing in the final regulations precludes a recipient from stating on its website, in publications, and elsewhere that the recipient has a particular statutory or regulatory exemption under Title IX. Further, under § 106.8(b)(1) any person can inquire about application of Title IX to the recipient by referring E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations inquiries to the recipient’s Title IX Coordinator, the Assistant Secretary, or both. Changes: The final regulations use the phrase ‘‘permitted by title IX or this part’’ instead of ‘‘permitted by this part’’ to more comprehensively reference Title IX exemptions contained in the Title IX statute, as well those exemptions contained in Title IX regulations. Section 106.8(c) Adoption and Publication of Grievance Procedures Comments: Some commenters expressed support for § 106.8(c), asserting that it would bring clarity to the regulatory requirement that formal complaints of sexual harassment must use ‘‘prompt and equitable’’ grievance procedures. One commenter expressed concern that the proposed rules did not address ‘‘totalitarian’’ reporting methods such as third-party reporting, bystander intervention, and posting fliers all over campus that encourage students to make reporting a habit. Discussion: The Department appreciates commenters’ support for the proposed rules’ intention in § 106.8(c) to clarify that recipients must apply prompt and equitable grievance procedures to resolve complaints of sex discrimination generally, and to resolve formal complaints of sexual harassment. As explained below, we have revised § 106.8(c) to clarify that recipients must have ‘‘prompt and equitable’’ grievance procedures for complaints of sex discrimination, and must have in place a grievance process that complies with § 106.45 for formal complaints of sexual harassment. The Department believes that the notice and publication requirements in § 106.8(b) and the adoption and publication of grievance procedures provisions in § 106.8(c) adequately ensure that the recipient disseminates information about its obligation not to discriminate under Title IX, and how to report and file complaints about sex discrimination, including sexual harassment. The Department notes that while the definition of ‘‘actual knowledge’’ in § 106.30 provides for a recipient to obtain actual knowledge of sexual harassment via third-party reporting, the definition of ‘‘formal complaint’’ in § 106.30 precludes a third party from filing a formal complaint, which is defined as a document that must be filed by a complainant or signed by the Title IX Coordinator. As discussed elsewhere in this preamble, the final regulations neither require nor prohibit a recipient from disseminating information about bystander intervention designed to prevent sexual VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 harassment. A primary focus of these final regulations is to govern a recipient’s response to sexual harassment of which the recipient has become aware, and to provide accessible options for any person to report sexual harassment to trigger a recipient’s response obligations. Similarly, nothing in the final regulations requires or prohibits a recipient from posting flyers on campus encouraging students and others to report sexual harassment; recipients should retain flexibility to communicate with their educational community regarding the importance of reporting sexual harassment. The Department believes that Title IX’s nondiscrimination mandate is best served by ensuring that a recipient’s response obligations are triggered via notice of sexual harassment from any source, and that third-party reporting appropriately furthers the purposes of Title IX. We have revised § 106.8(a) to emphasize that ‘‘any person’’ may report sexual harassment (whether or not the person reporting is the person alleged to be the victim of sexual harassment) using the contact information listed for the Title IX Coordinator, and specifying that such a report may be made ‘‘at any time (including during non-business hours)’’ by using the telephone number or email address, or by mail to the office address, listed for the Title IX Coordinator. We have also revised the § 106.30 definition of ‘‘actual knowledge’’ to emphasize that ‘‘notice’’ includes (but is not limited to) a report to the Title IX Coordinator as described in § 106.8(a). The Department disagrees that accessible reporting channels, and the right of any person to report sexual harassment, constitute a ‘‘totalitarian’’ system or otherwise has negative consequences. As demonstrated by the data discussed in the ‘‘General Support and Opposition’’ section of this preamble, sexual harassment is a prevalent problem affecting the educational access of students at all educational levels, and a recipient’s knowledge of sexual harassment triggers the recipient’s non-deliberately indifferent response under these final regulations so that instances of sexual harassment are addressed in a manner that is not clearly unreasonable in light of the known circumstances.1713 Changes: We have revised § 106.8(a) to state that any person may report sex discrimination, including sexual harassment, whether or not the person 1713 Section 106.44(a) (describing a recipient’s general response obligations upon having actual knowledge of sexual harassment against a person in the United States in the recipient’s education program or activity). PO 00000 Frm 00447 Fmt 4701 Sfmt 4700 30471 reporting is the person alleged to be victimized by sex discrimination or sexual harassment, by using the contact information listed for the Title IX Coordinator, and stating that such a report may be made at any time (including during non-business hours) by using the telephone number or email address, or by mail to the office address, listed for the Title IX Coordinator. We have also revised the § 106.30 definition of ‘‘actual knowledge’’ to specify that ‘‘notice’’ conveying actual knowledge on the recipient includes reporting sexual harassment to the recipient’s Title IX Coordinator as described in § 106.8(a). Comments: Some commenters expressed confusion as to whether the ‘‘grievance procedures’’ referenced in § 106.8(c) would apply to sexual harassment, sex discrimination generally, or both. Some commenters criticized the § 106.45 grievance process as ‘‘extreme’’ and argued that recipients should not have to use the same ‘‘weaponized’’ process to address nonsexual harassment sex discrimination. Other commenters asserted that the proposed rules created a dual system of grievance procedures: ‘‘prompt and equitable’’ grievance procedures applicable to sex discrimination generally, and to ‘‘informal complaints’’ of sexual harassment, and separate grievance procedures (described in § 106.45) for formal complaints of sexual harassment. Some commenters asserted that the phrasing in proposed § 106.8(c) was unnecessarily confusing because ‘‘grievance procedures that provide for the prompt and equitable resolution of student and employee complaints . . . and of formal complaints’’ suggests that two separate processes are required; commenters recommended removing the phrase ‘‘student and employee complaints’’ to affirm that ‘‘prompt and equitable’’ grievance procedures are used only in response to ‘‘formal complaints.’’ Some commenters wondered if a complaint about retaliation would be handled under the § 106.45 grievance process, or under the ‘‘prompt and equitable’’ grievance procedures referenced in § 106.8(c). Some commenters argued that schools do not need more specific procedural rules than the directive in § 106.8(c) that grievance procedures must be ‘‘prompt and equitable’’ and that the ‘‘extreme’’ procedures in § 106.45 are not necessary. Other commenters argued that schools need more guidance as to how to handle non-sexual harassment sex discrimination complaints than the broad ‘‘prompt and equitable’’ requirement in § 106.8(c). Some E:\FR\FM\19MYR2.SGM 19MYR2 30472 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations commenters argued that while § 106.8(c) ‘‘claims’’ that procedures resolving formal complaints of sexual harassment must be ‘‘equitable,’’ the provisions of § 106.45 are inequitable. Some commenters asserted that recipients know they are supposed to ‘‘adopt and publish’’ grievance procedures yet, commenters claimed, most recipients still do not adopt and publish their grievance procedures or designate a Title IX Coordinator. Some commenters asserted that § 106.8(c) should only require recipients to ‘‘adopt and publish’’ grievance procedures that align with the recipient’s State laws regarding imposition of discipline in response to sexual harassment or sex discrimination. At least one commenter argued that § 106.8(c) should expressly require that recipients must ‘‘adopt and publish’’ the recipient’s entire grievance process ‘‘soup-to-nuts’’ so that parties to a sexual harassment complaint do not need to wait until the process has begun to be informed by the recipient of exactly what the grievance process entails; the commenter gave an example of the commenter’s university’s written grievance procedures that informed students in writing, on the university’s website, of several steps in the grievance process and then stated that ‘‘the remainder’’ of the recipients’ procedures would ‘‘be explained to a respondent and complainant’’ as needed, which the commenter asserted is unfair. One commenter urged the Department to modify § 106.8(c) to specifically require elementary and secondary schools to provide copies of the school’s complaint form, because the commenter asserted that many schools use their own customized form yet fail to make the form available, so students and employees do not know how to actually file a complaint. One commenter stated that because Title IX was written to prevent all discrimination, a recipient’s policy should not distinguish among, and should address, all types of harassment with basic common sense rules such as: (1) Every educational institution should have a harassment policy written by a representative group of educators and students or their parents and approved by the parent’s association or student council; (2) every student and/or parent should receive and sign an acknowledgement of that policy; (3) every educational institution should be responsible for inappropriate behavior on any of its educational and recreational areas; (4) complaints may be filed by an alleged victim or their representative who can be a parent, educational, medical or law enforcement professional; (5) VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 complaints must be acknowledged within a week and addressed by an independent board of individuals which should include parents, educational, medical or law enforcement professionals, and peers at the postsecondary level; (6) complaints should be forwarded to law enforcement when appropriate; (7) opportunity for redress should be allowed by a second independent board if the first verdict is unacceptable; and (8) a no bullying/no harassment curriculum should be mandatory for all students and all teaching professionals, and coaches should be required to attend training on this subject. One commenter recommended that students and employees should be notified promptly when a policy or procedure is changed in order for the community to be made aware of any alterations to the policies and procedures to which they are held accountable and by which they are protected. Discussion: In response to commenters’ concerns that the wording in § 106.8(c) did not clearly convey that under the final regulations a recipient must adopt a grievance process that complies with § 106.45 for handling formal complaints of sexual harassment, the final regulations revise § 106.8(c) to specify that a recipient must not only adopt and publish grievance procedures ‘‘for the prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by this part’’ but also a ‘‘grievance process that complies with § 106.45 for formal complaints as defined in § 106.30.’’ While a recipient is free to apply the § 106.45 grievance process to resolve complaints of nonsexual harassment sex discrimination, the final regulations only require a recipient to use the § 106.45 grievance process with respect to formal complaints of sexual harassment.1714 These final regulations do not recognize a response specifically for an ‘‘informal complaint’’ of sexual harassment. These final regulations require a recipient to investigate and adjudicate using a grievance process that complies with § 106.45 in response to any formal 1714 As discussed throughout this preamble, including in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, the Department has selected the specific procedures prescribed in the § 106.45 grievance process for the purpose of addressing the unique challenges presented by sexual harassment allegations, and such challenges may or may not be present with respect to other forms of sex discrimination, many of which result from official school policy rather than from the independent choices of individual students, employees, or third parties. PO 00000 Frm 00448 Fmt 4701 Sfmt 4700 complaint of sexual harassment,1715 and preclude a recipient from imposing disciplinary sanctions on a respondent without first following a grievance process that complies with § 106.45.1716 Thus, if a recipient has actual knowledge of sexual harassment allegations (whether via a verbal or written report or other means of conveying notice to a Title IX Coordinator, official with authority to institute corrective measures, or any elementary or secondary school employee), but neither the complainant (i.e., the person alleged to be the victim) nor the Title IX Coordinator decides to file a formal complaint, the recipient must respond promptly in a nondeliberately indifferent manner, including by offering supportive measures to the complainant, but cannot impose disciplinary sanctions without following the § 106.45 grievance process. We have also clarified, in § 106.71(a), that complaints of retaliation for exercise of rights under Title IX must be handled by the recipient under the ‘‘prompt and equitable’’ grievance procedures referenced in § 106.8(c) for handling of complaints of non-sexual harassment sex discrimination. We have also revised § 106.8(c) to expand the group of persons to whom notice of the ‘‘prompt and equitable grievance procedures’’ and ‘‘grievance process that complies with § 106.45’’ must be provided: Rather than sending such notice only to students and employees, recipients now also must send that notice to ‘‘persons entitled to a notification under paragraph (a) of this section’’ (i.e., § 106.8(a)), which, as discussed above, includes students, employees, applicants for admission and employment, parents or legal guardians of elementary and secondary school students, and unions and similar professional organizations). Moreover, this provision is revised to clarify that the notice about the grievance procedures (which apply to sex discrimination) and grievance process (which applies specifically to sexual harassment) must include ‘‘how to report or file a complaint of sex discrimination, how to report or file a formal complaint of sexual harassment, and how the recipient will respond.’’ These changes to § 106.8(c) thus ensure that more people affected by a recipient’s grievance procedures (for sex discrimination, and per § 106.71(a) of the final regulations, complaints of retaliation under Title IX) and grievance processes for Title IX sexual 1715 Section 1716 Section E:\FR\FM\19MYR2.SGM 106.44(b)(1). 106.44(a). 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations harassment, receive notice of those grievance procedures and grievance processes, including how to initiate those procedures and processes. These revisions to § 106.8(c) emphasize that a result of the final regulations is creation of a prescribed grievance process for Title IX sexual harassment (which is triggered when a complainant files, or a Title IX Coordinator signs, a formal complaint), while the handling of non-sexual harassment sex discrimination complaints brought by students and employees (for instance, complaints of sex-based different treatment in athletics, or with respect to enrollment in an academic course) remains the same as under current regulations (i.e., recipients must have in place grievance procedures providing for prompt and equitable resolution of such complaints). Thus, § 106.8(c) better ensures that students, employees, parents of elementary and secondary school students, applicants for admission and employment, and unions, all are aware of a recipient’s procedures and processes for intaking reports and complaints of all forms of sex discrimination including the particular reporting system, grievance process, and recipient responses required under these final regulations regarding sexual harassment. For reasons discussed throughout this preamble, including in the ‘‘General Support and Opposition for the Grievance Process in § 106.45’’ section of this preamble, the Department believes that the prescribed procedures that recipients must use in a Title IX sexual harassment grievance process are necessary to achieve the purposes of increasing the legitimacy and reliability of recipient determinations regarding responsibility for sexual harassment while decreasing the likelihood of sexbased bias influencing such determinations, and we clarify in revised § 106.8(c) that the § 106.45 grievance process is different from the directive that recipients’ handling of complaints of other types of sex discrimination must be ‘‘prompt and equitable.’’ We therefore decline to authorize recipients to substitute a State law grievance procedure for the § 106.45 grievance process. Because recipients must ‘‘adopt and publish’’ (and send notice to the group of people identified in § 106.8(a) of) a grievance process that complies with § 106.45, the Department believes that each recipient’s educational community will be aware of the procedures involved in a recipient’s grievance process without the unfairness of waiting until a person VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 becomes a party to discover what the recipient’s grievance process looks like. Non-sexual harassment sex discrimination often presents situations that differ from sexual harassment (for example, a complaint that school policy treats female applicants differently from male applicants, or that school practice is to devote more resources to male sports teams than to female sports teams), and the Department does not, in these final regulations, alter recipients’ obligation to handle complaints of nonsexual harassment sex discrimination by applying grievance procedures that provide for the ‘‘prompt and equitable resolution’’ of such complaints. The Department understands that despite 34 CFR 106.9 having required, for decades, recipients to adopt and publish prompt and equitable grievance procedures (and designate an employee to coordinate the recipient’s efforts to comply with Title IX), some recipients have not ‘‘adopted and published’’ grievance procedures for handling sex discrimination complaints, and have not designated a Title IX Coordinator. The Department intends to enforce these final regulations vigorously for the benefit of all students and employees in recipients’ education programs or activities, and any person may file a complaint with the Department alleging that a recipient is non-compliant with these final regulations. We have revised § 106.8(c) to more clearly require recipients to give notice to its educational community of how to report sex discrimination or sexual harassment, how to file a complaint of sex discrimination or a ‘‘formal complaint of sexual harassment,’’ and ‘‘how the recipient will respond.’’ We appreciate a commenter’s concern that some recipients use a specific form for students and employees when filing a sex discrimination complaint. Under these final regulations at § 106.30, a ‘‘formal complaint’’ of sexual harassment is defined as a ‘‘document signed by a complainant’’ and a formal complaint may be filed by a complainant in person or by mail to the office address, or by email, using the listed contact information for the Title IX Coordinator, or by any other method designated by the recipient. Thus, even if a recipient desires for complainants to only use a specific form for filing formal complaints, these final regulations permit a complainant to file a formal complaint by either using the recipientprovided form (or electronic submission system such as through an online portal provided for that purpose by the recipient), or by physically or digitally signing a document and filing it as PO 00000 Frm 00449 Fmt 4701 Sfmt 4700 30473 authorized (i.e., in person, by mail, or by email) under these final regulations. These final regulations do not preclude a recipient from following the steps suggested by a commenter with respect to involving parent and student groups in the development of a recipient’s anti-harassment policy, so long as the recipient adopts and publishes a grievance process for formal complaints of sexual harassment that complies with § 106.45, and so long as the recipient’s reporting system for responding to sexual harassment complies with § 106.8, § 106.30, and § 106.44 in these final regulations. Because recipients must ‘‘adopt and publish’’ the recipient’s grievance procedures (for sex discrimination) and grievance process (for formal complaints of sexual harassment), the recipient’s obligation is to ‘‘publish’’ (and send notice, as appropriate) when the recipient no longer uses one grievance procedure or grievance process and instead uses a different procedure or process. Changes: The final regulations revise § 106.8(c) by distinguishing between the ‘‘grievance procedures’’ for ‘‘prompt and equitable resolution’’ of complaints of non-sexual harassment sex discrimination, and the ‘‘grievance process that complies with § 106.45 for formal complaints’’ of sexual harassment; expands the list of people whom the recipient must notify of the foregoing procedures and processes (by referencing the revised list in § 106.8(a)); and adds clarifying language that the information provided must include how to report or file a complaint of sex discrimination, how to report or file a formal complaint of sexual harassment, and how the recipient will respond. Section 106.8(d) Application Outside the United States Comments: One commenter expressed general support for § 106.8(d). Some commenters argued that § 106.8(d) is inconsistent with the spirit of Title IX and the Clery Act. Commenters contended that, under the NPRM, no misconduct outside the United States would be covered, which frustrates the basic goal of Title IX to protect students when participating in educational programs or activities receiving Federal funds. Commenters also asserted that § 106.8(d) is inconsistent with the Clery Act because the Clery Act addresses conduct committed abroad on campuses of institutions of higher education. Commenters asserted that this inconsistency would impede the Title IX Coordinator’s ability to implement consistent responses to sexual E:\FR\FM\19MYR2.SGM 19MYR2 30474 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations misconduct and identify patterns that could threaten individuals and communities. Commenters argued that this conflict also creates the need for separate processes to address the same misconduct, which undermines the Department’s stated goal of streamlining processes to create more efficient systems. Discussion: The Department appreciates the general support for this provision and appreciates commenters’ concerns. Section 106.8(d) of the final regulations clarifies that the recipient’s non-discrimination policy, grievance procedures that apply to sex discrimination, and grievance process that applies to sexual harassment, do not apply to persons outside the United States. Contrary to the claims made by some commenters that this provision conflicts with the spirit of Title IX, the Department believes that by its plain text the Title IX statute does not have extraterritorial application. Indeed, 20 U.S.C. 1681 indicates that ‘‘No person in the United States shall, on the basis of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance’’ (emphasis added). We believe a plain language interpretation of a statute is most consistent with fundamental rule of law principles, ensures predictability, and gives effect to the intent of Congress. Courts have recognized a canon of statutory construction that ‘‘Congress ordinarily intends its statutes to have domestic, not extraterritorial, application.’’ 1717 This canon rests on presumptions that Congress is mainly concerned with domestic conditions and seeks to avoid unintended conflicts between our laws and the laws of other nations.1718 If Congress intended Title IX to have extraterritorial application, then it could have made that intention explicit in the text when it was passed in 1972. The Supreme Court most recently acknowledged the presumption against extraterritoriality in Morrison v. National Australian Bank,1719 and Kiobel v. Royal Dutch Petroleum.1720 In Morrison, the Court reiterated the ‘‘longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’’ 1721 1717 Small 1718 See v. United States, 544 U.S. 385 (2005). Smith v. United States, 507 U.S. 197, 204 (1993). 1719 561 U.S. 247 (2010). 1720 569 U.S. 108 (2013). 1721 Morrison v. Nat’l Australian Bank, 561 U.S. 247, 255 (2010). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 The Court concluded that ‘‘[w]hen a statute gives no clear indication of extraterritorial application, it has none.’’ 1722 As discussed in the ‘‘Section 106.44(a) ‘against a person in the U.S’’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble, the Department believes that restricting Title IX coverage to persons in the United States applies the statute as passed by Congress. However, in response to commenters’ assertions that § 106.8(d) was not faithful to the wording of the Title IX statute, the final regulations revise this provision’s header to read ‘‘Application outside the United States’’ and simplify the provision’s wording to more clearly accomplish the provision’s goal by stating: ‘‘The requirements of paragraph (c) of this section apply only to sex discrimination occurring against a person in the United States.’’ With respect to the concerns raised by commenters that § 106.8(d) would conflict with the Clery Act, the Department acknowledges certain misconduct committed overseas is reportable under the Clery Act where, for example, the misconduct occurs in a foreign location that a U.S.-based institution owns and controls. However, the Clery Act and Title IX do not have precisely the same scope or purpose, and the text of the Title IX statute and controlling case law on the topic of extraterritoriality support the conclusion that Title IX does not apply to sex discrimination that occurs outside the United States. The Department does not believe the interpretation of Title IX as embodied in these final regulations prevents or complicates a postsecondary institution’s compliance with reporting obligations under the Clery Act.1723 Changes: The final regulations revise § 106.8(d) so that its header reads ‘‘Application outside the United States’’ and simplify the wording to more clearly accomplish the provision’s goal by stating that the requirements of paragraph (c) of this section apply only to sex discrimination occurring against a person in the United States. Comments: A number of commenters raised the issue that § 106.8(d) may endanger students and faculty abroad. Commenters argued that sexual misconduct abroad, whether perpetrated by other students, faculty, graduate 1722 Id.; Kiobel v. Royal Dutch Petroleum, 569 U.S. 108, 115 (2013) (citing Morrison, 561 U.S. at 255). 1723 For further discussion on the intersection between these final regulations and the Clery Act, see the ‘‘Clery Act’’ subsection of the ‘‘Miscellaneous’’ section of this preamble. PO 00000 Frm 00450 Fmt 4701 Sfmt 4700 advisors, or other recipient employees, may significantly impact survivors’ academic and career trajectories.1724 Commenters argued that the effect of § 106.8(d) would be to force victims to drop out of their schools to avoid hostile environments created by misconduct committed abroad. Some commenters asserted that the U.S. generally has more robust disciplinary systems for addressing sexual misconduct than other countries. Commenters contended that for the Department to deny Title IX protections outside the United States would mean unfairly punishing students who simply were in the wrong place when they were assaulted. One commenter asserted that § 106.8(d) will also endanger recipient faculty and staff who are sexually assaulted while participating in conferences and other activities abroad. This commenter argued that Title IX should apply where both parties are affiliated with the recipient. A few commenters contended that the Department is ignoring the reality that study abroad programs and foreign educational activities are increasingly common. These commenters asserted that, beyond formal study abroad programs, many other undergraduate and graduate students are engaged in research, fieldwork, and data collection abroad, across a wide range of fields, and argued that the NPRM does not just impact study abroad programs, but also students temporarily visiting other countries for educational purposes. Discussion: For the same reasons discussed under the ‘‘Section 106.44(a) ‘against a person in the U.S’ ’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble, the Department believes that restricting Title IX to persons in the United States applies the statute as passed by Congress, and notes that Congress remains free to modify Title IX to overcome the judicial presumption against extraterritorial application of Title IX. Under these final regulations recipients remain free to adopt robust anti-harassment and assault policies that apply to the recipient’s programs or activities located abroad, to use recipients’ disciplinary systems to address sexual misconduct committed outside the United States, and to protect their students from such harm by offering supportive measures to students impacted by misconduct committed abroad. 1724 Commenters cited: Robin G. Nelson et al., Signaling Safety: Characterizing Fieldwork Experiences and Their Implications for Career Trajectories, 119 Am. Anthropologist 4 (2017). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Changes: None. Section 106.12 Educational Institutions Controlled by a Religious Organization Comments: Some commenters expressed support for the changes to § 106.12(b), on the basis that the changes offered additional flexibility to religious educational institutions, and religious freedom is a vital constitutional guarantee. Commenters also elaborated on the benefits of religious freedom, suggesting that religion helps preserve civic virtues, and instills positive moral values for both individuals and communities. Some commenters noted that freedom of religion is specifically contemplated by the U.S. Constitution, in the First Amendment’s Free Exercise Clause. Drawing on this fact, commenters noted that the freedom of religion has been a touchstone of American government since the country was founded. Other commenters stated that proposed § 106.12(b) is consistent with the Religious Freedom Restoration Act, since it avoids placing an unnecessary burden on religious institutions. Some commenters noted that proposed § 106.12(b) has the ancillary benefit of avoiding confusion for schools, since many institutions may not obtain a religious exemption before having a complaint against them filed, but now they will know that there is no such duty. The corollary to this point, asserted commenters, is that opponents of a school’s religious exemption may not incorrectly argue that a school has ‘‘waived’’ a right to invoke a religious exemption. Discussion: The Department appreciates and agrees with the comments in support of § 106.12(b), which align with the Title IX statute, the First Amendment, and the Religious Freedom Restoration Act, 42 U.S.C. 2000bb–1. The final regulations bring § 106.12(b) further in line with the relevant statutory framework in this context, which states that Title IX ‘‘shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization,’’ 20 U.S.C. 1681(a)(3), and that the term ‘‘program or activity,’’ as defined in 20 U.S.C. 1687, ‘‘does not include any operation of an entity which is controlled by a religious organization if the application of section 1681 of this title to such operation would not be consistent with the religious tenets of such organization.’’ No part of the statute requires that recipients receive an assurance letter VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 from OCR, and no part of the statute suggests that a recipient must be publicly on the record as a religious institution claiming a religious exemption before it may invoke a religious exemption in the context of Title IX. Nevertheless, the current regulations are not clear on whether recipients may claim the exemption under § 106.12(a) only by affirmatively submitting a letter to the Assistant Secretary for Civil Rights. However, longstanding OCR practice aligns with the statute, and the final regulations codify OCR’s practice. To the extent that a recipient would like to request an assurance letter from OCR, the agency will continue to respond to such requests, as an option for recipients that are educational institutions controlled by a religious organization. Changes: None. Comments: Commenters noted that religious educational institutions themselves are vital for American society, noting that schools, among other religious institutions, have contributed to the alleviation of social ills through philanthropic and humanitarian projects. Religious educational institutions, suggested commenters, are necessary for religious freedom, and the proposed rules are consistent with the robust views of religious freedom that have been expressed by the U.S. Constitution, the U.S. Supreme Court, and Congress itself when it enacted Title IX. To that end, commenters noted that the Federal government ought to be making it easier for religious institutions to operate and thrive, not harder. Commenters noted that it would be a waste of a school’s resources to apply for a religious exemption assurance letter, when no letter is in fact needed to invoke a religious exemption to Title IX. At least under the proposed rule, asserted the commenters, the Department’s entanglement with a religious institution’s tenets might be limited to those cases where a complaint is filed, or where the school affirmatively requests an exemption assurance letter. Discussion: The Department appreciates the positive feedback on the proposed revisions in § 106.12(b) and believes that the Department’s prior practice and the revisions to § 106.12(b) in these final regulations have the effect of promoting religious freedom. The final regulations codify longstanding OCR practices, and are consistent with the Title IX statute. Changes: None. Comments: Some commenters discussed current § 106.12, as well as the practice of OCR. Commenters stated PO 00000 Frm 00451 Fmt 4701 Sfmt 4700 30475 that the status quo requires a religious institution to affirmatively request an exemption, and that imposing such a duty inappropriately places the burden on religious educational institutions. Instead, the commenters suggested, the burden would more appropriately be placed on the government, by having to disprove the application of a religious exemption. Indeed, commenters suggested that the status quo could occasionally be turned against religious educational institutions, by denying religious exemptions or forcing schools to wait an excessively long period of time before obtaining a letter of assurance from OCR. Discussion: Contrary to commenters who suggested that the status quo requires schools to affirmatively request an assurance letter from OCR, OCR has previously interpreted the current regulation to mean that a school can invoke a religious exemption even after OCR has received a complaint regarding the educational institution. Additionally, the Department views both the status quo and the final regulations to require a recipient to invoke and establish its eligibility for an exemption, and does not view the final regulations as placing the burden on the Federal government to disprove any claim for religious exemption. However, it may be correct that many schools and individuals—such as these commenters themselves—have incorrectly read current § 106.12 to mean that a recipient must always seek or receive an assurance letter from OCR to assert the religious exemption before any complaint is filed against the school, if a religious exemption is to be invoked. These final regulations clarify that this is not the case. Changes: None. Comments: In the same vein, many commenters supported § 106.12(b) because the provision alleviated the need for schools to request an assurance letter in order to invoke a religious exemption. That purported need, the commenters asserted, was inconsistent with the authority granted by Congress to the Department of Education in Title IX itself. It was better, the commenters argued, to simply allow schools the option to obtain the assurance ahead of time, but not require it. Commenters suggested that forcing religious institutions to jump through hoops in order to invoke a religious exemption imperils schools’ deeply held religious beliefs. At least one commenter stated that religious educational institutions have a natural tendency to reduce their interactions with government, and thus allowing schools to maintain a religious E:\FR\FM\19MYR2.SGM 19MYR2 30476 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations exemption to Title IX even absent an assurance letter was appropriate. Discussion: The proposed revisions to § 106.12(b) codifies OCR’s practice of permitting recipients to invoke a Title IX religious exemption without having obtained an assurance letter. However, the Department agrees with the concern that the current regulation is not as clear as it could be on this point, and that appears to have resulted in some confusion among recipients who were unaware of OCR’s existing practice. Changes: None. Comments: Some commenters noted that § 106.12(b) will aid religious educational institutions, and assist with their legal compliance regimes under Title IX. For instance, one commenter asserted that a religious educational institution that had single-sex classes would understand that they do not have to comply with the single-sex provisions of the current Title IX regulations and instead would simply be able to maintain a religious exemption generally, if the classes were based on religious tenets or practices. In other cases, commenters stated, schools would be able to maintain more flexibility in their school policies, such as whether to allow students who were assigned one sex at birth to use the intimate facilities assigned to another sex; whether to offer birth control as part of their health services; and how to structure dormitory and other housing policies. Discussion: The Department appreciates the positive feedback on § 106.12(b) and agrees with commenters that stated that the final regulations will assist recipients with complying with Title IX. The final regulations codify longstanding OCR practices, and are consistent with the Title IX statute. Changes: None. Comments: Many commenters suggested that the proposed change in § 106.12(b) is a good way to prevent future administrations from maintaining a hostile posture toward religious educational institutions. These commenters suggested that the process of compelling a school to write a request letter to the Assistant Secretary for Civil Rights, and then waiting for OCR to respond, may raise fears that the Federal government is passing judgment on religious institutions, or that hostility toward certain categories of exemptions could trigger additional delays, or perhaps unduly close scrutiny of whether a religious educational institution really is eligible for such an exemption. Commenters also suggested that close scrutiny of religious exemption requests excessively VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 entangles OCR with religious educational institutions. Discussion: The Department is mindful of the concerns that educational institutions controlled by a religious organization sometimes express that OCR ‘‘entangles’’ itself with a recipient’s religious practices by scrutinizing them too closely, or by delaying the issuance of an assurance letter (even when such delay is due to administrative backlogs and is not an intentional delay). The Department appreciates the positive feedback on § 106.12(b) and believes that the final regulations will help the Department and its OCR administer these final regulations consistent with the U.S. Constitution by minimizing entanglement issues. The final regulations codify longstanding OCR practices, and are consistent with the Title IX statute. Changes: None. Comments: Some commenters sought to address concerns about religious exemptions generally, suggesting that religious institutions need to rely on Title IX less than other schools, since some acts—like sexual harassment or sexual assault—are generally considered abhorrent sins under most religious persuasions. Some comments mentioned Christianity, in particularly, as a religion that is committed to promoting the safest environment for students, free from discrimination and harassment. In that vein, commenters stated that Christian principles have caused Christian colleges to be exceptionally diligent in protecting students and employees from sexual harassment and sexual assault. Some commenters stated that it is inappropriate for a school to invoke a religious exemption in order to escape Title IX liability, since religious values disfavor discrimination, and discrimination is generally against a religious moral code. Commenters also stated that religious exemptions are contrary to the Bible, in that the Bible condemns sexual harassment and assault, and religious institutions should be leading the charge against such misconduct. One commenter stated that God made beings different from each other, and discrimination against students is contrary to God’s creation. Discussion: The Department appreciates the commenter’s concerns and perspectives. The Department notes that the religious exemption applies only to the extent application of this part would not be consistent with the religious tenets of such organization. Through 20 U.S.C. 1682, Congress authorized the Department to effectuate PO 00000 Frm 00452 Fmt 4701 Sfmt 4700 the provisions of Title IX, which includes a religious exemption. The Department does not take a position on whether it is appropriate for a school to invoke such an exemption and is effectuating the provisions of Title IX, including the religious exemption that Congress provided in 20 U.S.C. 1681(a)(3) through these final regulations, which are consistent with the First Amendment and the Religious Freedom Restoration Act. Changes: None. Comments: Several commenters noted that they supported § 106.12(b) because of its breadth, reading the provision to mean that any school, even with a minor religious affiliation, would be eligible for a religious exemption. The commenters asserted that this was the correct approach, and that the Department was wise to embrace such a broad religious exemption. Discussion: Title IX and current § 106.12 provide that they do not apply to an ‘‘educational institution which is controlled by a religious organization to the extent application of this part would not be consistent with the religious tenets of such organization.’’ The Department does not consider the final regulations to be broader than the scope of the current regulations or the statute. Changes: None. Comments: One commenter argued that there is a potential internal contradiction between § 106.8 and proposed § 106.12. While a recipient may have a duty to issue a general notice of non-discrimination, the commenter argued that they might—at the same time—maintain a religious exemption that permitted such discrimination. The commenter argued that this would allow schools to mislead students by sending out a misleading non-discrimination notice. The commenter contended that this ‘‘bait and switch’’ would undermine OCR’s credibility, and would mean that students at religious institutions will be deterred from filing complaints. To solve this problem, the commenter suggested schools claiming a religious exemption should have to include such a statement in the non-discrimination notice mandated by § 106.8. Discussion: Recipients are permitted to distribute publications under § 106.8(b)(2)(ii) that clarify that the recipient may treat applicants, students, or employees differently on the basis of sex to the extent ‘‘such treatment is permitted by Title IX or this part.’’ Nothing in the final regulations mandates that recipients deceive applicants, students, or employees regarding their non-discrimination practices, and recipients that assert a E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations religious exemption are not required to misstate their actual policies when disseminating their Title IX policy under § 106.8. Indeed, if a recipient provided inaccurate or false information in any notification required under § 106.8, then the recipient would not be in compliance with § 106.8. We note that nothing in the final regulations supersedes any other contractual or other remedy that an applicant, student, or employee may have against a recipient based on an alleged misstatement or false statement. Students at schools that assert a religious exemption also may always file a complaint with OCR. Changes: None. Comments: Numerous commenters expressed opposition to religious exemptions as a general matter, suggesting that such exemptions are commonly used to discriminate against students or employees, cause harm to students and employees, and often are not adequately disclosed in a public and transparent way so as to give students and employees appropriate notice that they would not be protected by Title IX. These commenters argued that the interests underlying the protection of civil rights outweigh the need to protect a religious institution’s discomfort regarding student behavior. Students at religious institutions, including LGBTQ students, asserted the commenters, deserve protection just as much as all other students. Commenters asserted that the Department owes a duty to students to protect their civil rights and argued that the proposed rules run contrary to that duty. In the same vein regarding transparency, some commenters argued that permitting recipients to invoke religious exemptions without having to make a public statement will pit students against their own schools. The commenters say that since a school is designed to cultivate critical thinkers, depriving students of transparency runs counter to this interest. Additionally, commenters stated that students who seek abortions, hormone therapy, or access to intimate facilities that are sexsegregated, may feel like their own school does not protect them, and may feel betrayed by their own institution, leading to an environment of distrust on campus. Worse, the commenters say, some students could feel bullied, threatened, or harassed once students see that the school itself is openly discriminating against its students. Commenters noted that the same could be true for employees, and not just students. Commenters argued that even if a school is entitled to assert a religious VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 exemption, proposed § 106.12(b) goes too far because it seems to encourage schools to lie in wait before formally invoking the religious exemption. Commenters stated that religious educational institutions should have a legal obligation to give students notice prior to enrolling or working at a school maintaining a religious exemption. For that reason, commenters stated, § 106.12(b) is in tension with the OCR’s usual assurance process for all recipients of Federal education funds, which requires a school to assure the Department that it will comply with non-discrimination laws as a condition of receiving Federal education dollars. Another commenter argued that for private religious elementary and secondary schools that educate students as part of their Free and Appropriate Public Education, it is highly troubling for parents not to know about Title IX exemptions prior to enrollment. One commenter alleged that allowing a recipient to invoke a religious exemption after a complaint has been filed with OCR is contrary to the due process principles that these final regulations are attempting to preserve and protect. Discussion: In response to the comments about the propriety of having any religious exemption or the need to protect civil rights over religious freedom, the Department notes that Title IX itself guarantees the religious exemption and these final regulations do not change our long-standing practice of honoring and applying the religious exemption in the appropriate circumstances. As some commenters in support of § 106.12(b) noted, the proposed regulations do not prevent OCR from investigating a complaint simply because the complaint involves an educational institution controlled by a religious organization. The recipient must additionally invoke a religious exemption based on religious tenets. Moreover, this does not prevent OCR from investigating or making a finding against a recipient if its religious tenets do not address the conduct at issue. In those cases, OCR will proceed to investigate, and if necessary, make a finding on the merits. The Department also appreciates the feedback on the potential policy implications of the proposed rule; however, the Department is limited by the Title IX statute,1725 and cannot make changes to the final regulations that are 1725 20 U.S.C. 1681(a)(3) (‘‘[T]his section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization’’). PO 00000 Frm 00453 Fmt 4701 Sfmt 4700 30477 inconsistent with the statute, regardless of the policy implications addressed by commenters. As mentioned, the final regulations codify longstanding OCR practices, and are consistent with the Title IX statute. The Department does not believe that its current practice or the final regulations violate the U.S. Constitution. The Department further asserts that § 106.12(b) in these final regulations is consistent with the First Amendment, including the Free Exercise Clause as well as the Establishment Clause, because the Department is not establishing a religion and is instead respecting a recipient’s right to freely exercise its religion. Additionally, § 106.12(b) in these final regulations is consistent with the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq., which applies to the Department, and requires the Department not to substantially burden a person’s exercise of religion unless certain conditions are satisfied.1726 As the Title IX statute does not require a recipient to request and receive permission from the Assistant Secretary to invoke the religious exemption, requiring a recipient to do so may constitute a substantial burden that is not in furtherance of a compelling government interest or the least restrictive means of furthering that compelling government interest under the Religious Freedom Restoration Act, 42 U.S.C. 2000bb–1. Such a requirement also is unnecessary in light of the other requirements in these final regulations that a recipient notify students, prospective students, and others about the recipient’s non-discrimination statement as well as its grievance procedures and grievance process to address sex discrimination, including sexual harassment. Section 106.8 requires all recipients to notify applicants for admission and employment, students, parents or legal guardians of elementary and secondary school students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient of its non-discrimination on the basis of sex as well as its grievance procedures and grievance process, including how to report or file a complaint of sex discrimination, how to report or file a formal complaint of sexual harassment, and how the recipient will respond. Additionally, § 106.8(b)(2)(ii) provides that a recipient 1726 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) (holding ‘‘person’’ within meaning of the Religious Freedom Restoration Act’s protection of a person’s exercise of religion includes for-profit corporations). E:\FR\FM\19MYR2.SGM 19MYR2 30478 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations must not use or distribute a publication stating that the recipient treats applicants, students, or employees differently on the basis of sex except as such treatment is permitted by Title IX or these final regulations. Accordingly, students and prospective students should receive adequate notice of the recipient’s non-discrimination statement as well as its grievance procedures and grievance process regarding sex discrimination, including sexual harassment, and such notice is consistent with due process principles. Such transparency helps guard against any misunderstandings, irrespective of whether a school asserts a religious exemption. The religious exemption in Title IX, 20 U.S.C. 1681(a)(3), applies to an educational institution which is controlled by a religious organization, and students and prospective students likely will know whether an educational institution is controlled by a religious organization so as not to be surprised by a recipient’s assertion of such a religious exemption. Additionally, the Department also notes that under § 106.8(b)(1) any person can inquire about the application of Title IX to a particular recipient by inquiring with the recipient’s Title IX Coordinator, the Assistant Secretary, or both. OCR is unaware of a religious school claiming an exemption from Title IX’s obligations to respond to sexual harassment on the basis that such a response conflicts with the religious tenets of an organization controlling the religious school. As the Department explains more thoroughly in the ‘‘Gender-based harassment’’ subsection of the ‘‘Sexual Harassment’’ subsection of the ‘‘Section 106.30 Definitions’’ section, these final regulations focus on prohibited conduct. The Department believes any person may experience sex discrimination, irrespective of the identity of the complainant or respondent. Nothing in the final regulations mandates that recipients deceive applicants, students, or employees regarding their non-discrimination practices, a recipient remains free to describe its religious exemption on its website, and nothing in the final regulations supersedes any other contractual or other remedy that an applicant, student, or employee may have against a recipient based an alleged misstatement or false statement. Changes: None. Comments: Some commenters ascribed particularly nefarious motives to recipients, arguing that schools often intentionally deceive applicants to the school in order to obtain application VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 fees or tuition revenues. These commenters alleged that religious educational institutions deliberately hid their purported exemptions from Title IX and would then blindside students once they were already enrolled in school. One commenter suggested bigoted university officials would use religious exemptions as a fig leaf to impose personal beliefs, such as denying transgender students medical coverage for hormone therapy. Discussion: Nothing in these final regulations mandates that recipients deceive applicants, students, or employees regarding their nondiscrimination practices, and nothing in the final regulations supersedes any other contractual or other remedy that an applicant, student, or employee may have against a recipient based an alleged misstatement or false statement. On the contrary, as explained above, these final regulations including § 106.8, promote transparency by requiring a recipient to provide notice of its non-discrimination statement as well as its grievance procedures and grievance process to address sex discrimination, including sexual harassment. Additionally, § 106.8(b)(1) allows inquiries about the application of Title IX and this part to a recipient to be referred to the recipient’s Title IX Coordinator, to the Assistant Secretary, or both. The Department disagrees with the suggestion that religious exemptions are tools for bigotry or should not be provided due to such characterizations. The First Amendment to the Constitution protects religious exercise, and Congress placed a religious exemption in Title IX and numerous other statutes. The Department’s experience is that exemptions for religious liberty overwhelmingly serve to advance freedom and diversity in education, not bigotry. To the extent that an official of a recipient invokes a religious exemption ‘‘as a fig leaf’’ in order to impose only personal beliefs, that recipient would not qualify for a religious exemption because the religious exemption requires the application of Title IX and its regulations to be inconsistent with the religious tenets of a religious organization and not just inconsistent with personal beliefs. Changes: None. Comments: Some commenters ascribed nefarious motives to the Department. Commenters asserted that the people drafting the proposed rules would not be in favor of religious exemptions if their wives, mothers, or daughters were the victims of sexual assault. One stated that honoring women and girls’ rights is what Jesus PO 00000 Frm 00454 Fmt 4701 Sfmt 4700 calls for and implied that the proposed regulations go against this principle. Some commenters objected that the inclusion of religious exemptions is clearly a political decision made by politicians in this administration who seek to avoid accountability for their own sexual misconduct. Other commenters stated that the drafters of the proposed rules do not have the interests of students at heart, and that the proposed rules are intentionally designed to institutionalize patriarchy and homophobia. Other commenters stated that the inclusion of the religious exemption provision was a political decision to curry favor with religious institutions and warned the Department not to divide people. Another commenter suggested that the provision was an effort by Secretary Betsy DeVos to establish a Christian fascist nation that favors a fundamentalist strain of Christianity. Discussion: Although the Department appreciates the feedback on the proposed rule, it rejects the assumptions of these commenters. As stated above, the Department’s goals for these final regulations are to establish a grievance process that is rooted in due process principles of notice and opportunity to be heard and that ensures impartiality before unbiased officials. Specifically, these goals are to (i) improve perceptions that Title IX sexual harassment allegations are resolved fairly and reliably, (ii) avoid intentional or unintentional injection of sex-based biases and stereotypes into Title IX proceedings, and (iii) promote accurate, reliable outcomes, all of which effectuate the purpose of Title IX to provide individuals with effective protection from discriminatory practices, including remedies for sexual harassment victims. As stated above, § 106.12 reflects the statutory exemption for religious educational institutions granted by Congress, and the religious exemption applies only to the extent that the tenets of a religious organization controlling a religious educational institution conflict with the application of Title IX. These final regulations apply to prohibit certain conduct and apply to anyone who has experienced such conduct, irrespective of a person’s sexual identity or orientation. The Department believes that these final regulations provide the best protections for all persons, including women and people who identify as LGBTQ, in an education program or activity of a recipient of Federal financial assistance who experience sex discrimination, including sexual harassment. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Contrary to commenters’ assertions, these final regulations do not establish a religion, and § 106.12(b) applies to all religions and not just Christianity. The Department disagrees that these final regulations are patriarchal. These final regulations empower complainants with a choice to consider and accept supportive measures that a recipient must offer under § 106.44(a) and/or to file a formal complaint to initiate a grievance process under § 106.45. The Department does not seek to curry favor with a particular population of recipients or individuals. The Department seeks to effectuate Title IX’s non-discrimination mandate consistent with the U.S. Constitution, including the First Amendment, as well as other Federal laws such as the Religious Freedom Restoration Act. Changes: None. Comments: Some commenters suggested that religious educational institutions could manipulate the revisions to § 106.12(b) to their benefit. For instance, one commenter asserted that a school might wait to see how a Title IX investigation by OCR is going, and then if OCR is on the verge of issuing a finding in the case, the school might invoke a religious exemption at the last minute. Other commenters stated that a school might invoke a religious exemption as a way to retaliate against students, or would abuse the ability to invoke a religious exemption even when the school’s tenets do not strictly contradict Title IX. One commenter asserted that recipients of all religious persuasions will suffer, when the public assumes that all religious schools discriminate against students. Another commenter suggested that OCR ought to closely scrutinize claims of religious exemptions, and that schools should not receive any deference when invoking a religious exemption or arguing that their tenets conflict with Title IX. The commenter argued that this would be like letting a corporation verify or change its own tax status while being investigated by the Internal Revenue Service, e.g., moving to non-profit status in the middle of a tax fraud investigation. Discussion: The Department appreciates the feedback on the potential policy implications of the proposed rules and believes that some of the commenters misunderstand § 106.12(b). Section 106.12(b) states: ‘‘In the event the Department notifies an institution that it is under investigation for noncompliance with this part and the institution wishes to assert an exemption set forth in paragraph (a) of this section, the institution may at that time raise its exemption by submitting VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part which conflict with a specific tenet of the religious organization, whether or not the institution had previously sought assurance of an exemption from the Assistant Secretary.’’ When the Department notifies a recipient that it is under investigation for noncompliance with this part or a particular section of this part, the recipient identifies the provisions of this part which conflict with a specific tent of the religious organization. Of course, a recipient must know what it is under investigation for, in order to assert an applicable exemption such as a religious exemption. Nonetheless, a recipient cannot invoke a religious exemption ‘‘at the last minute’’ because the recipient must be an educational institution which is controlled by a religious organization, and such control by a religious organization is not something that occurs ‘‘at the last minute.’’ The educational institution must have been controlled by a religious organization when the alleged noncompliance occurred, and the educational institution is only exempt from Title IX and these final regulations to the extent that Title IX or these final regulations are not consistent with the religious tenets of such organization. Additionally, retaliation is strictly prohibited under § 106.71, and a recipient cannot invoke a religious exemption to retaliate against a person. Similarly, a recipient may only assert an exemption to the extent that Title IX or these regulations are not consistent with the religious tenets of the religious organization that controls an educational institution. The Department is not aware of any assumption that all educational institutions which are controlled by a religious organization engage in discriminatory practices, and the Department’s experience has not been that all educational institutions which are controlled by a religious organization engage in discriminatory practices. Under long-standing OCR policy, OCR’s practice is generally to avoid questioning the tenet that an educational institution controlled by a religious organization has invoked to cover the conduct at issue. OCR does not believe it is in a position, generally, to scrutinize or question a recipient’s sincerely held religious beliefs, and the First Amendment likely prohibits questioning the reasonableness of a recipient’s sincerely held religious beliefs. However, recipients are not PO 00000 Frm 00455 Fmt 4701 Sfmt 4700 30479 entitled to any type of formal deference when invoking eligibility for a religious exemption, and recipients have the duty to establish their eligibility for an exemption, as well as the scope of any exemption. These final regulations, including § 106.12(b), make no changes to the conditions that must apply in order for a religious educational institution to qualify for the religious exemption. Changes: None. Comments: Some commenters stated that the Department failed to adequately provide a rationale for changing current 34 CFR 106.12(b) in the manner proposed in § 106.12(b), and argued that the Department failed to disclose the potential negative impacts of this change. The commenters suggested that the proposed rules ought to more carefully explain how compliance with Title IX is burdensome for religious institutions, given that the current procedures, according to commenters, are exceptionally generous to religious institutions. Additionally, these commenters stated that the Department should reassess the religious exemption to weigh more heavily a school’s potential to be dishonest and to discriminate. Commenters stated that they favored what they considered to be current OCR practice, under which, commenters asserted, most requests for exemptions came by letter before a complaint was opened, and under which OCR posts a publicly-available list of all schools that had invoked an exemption. Commenters contended that the Obama-era approach was popular among students and faculty, and was fair to all parties. Commenters also suggested that a requirement to force religious institutions to submit assurance requests ahead of time saves agency resources for OCR, so the preamble’s assertion that the prior practice is confusing and burdensome is an absurd thing to say. Commenters argued that proceeding with this rationale will mean violating the Administrative Procedure Act, because the current procedures are not confusing or burdensome, as set forth clearly in the current regulation. Commenters argued that the current procedures require religious institutions to establish which tenets of their religion are in conflict with Title IX, whereas the proposed regulations would not require schools to fully elaborate which of their tenets are contradicted by Title IX. Discussion: The Department appreciates the feedback on the potential policy implications of the proposed rule. The Department acknowledges that its practices in the E:\FR\FM\19MYR2.SGM 19MYR2 30480 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recent past regarding assertion of a religious exemption, including delays in responding to inquiries about the religious exemption and publicizing some requests for a religious exemption, may have caused educational institutions to become reluctant to exercise their rights under the Free Exercise Clause of the First Amendment, and the Department would like educational institutions to fully and freely enjoy rights guaranteed under the Free Exercise Clause of the U.S. Constitution without shame or ridicule. The Department may be liable for chilling a recipient’s First Amendment rights and also is subject to the Religious Freedom Restoration Act. The Department properly engaged in this notice-and-comment rulemaking to clarify that the Department, consistent with 20 U.S.C. 1681, will not place any substantial burden on a recipient that wishes to assert the religious exemption under Title IX. The Department is giving due weight to Congress’ express religious exemption for recipients in Title IX, and Congress did not require a recipient to first seek assurance of such a religious exemption from the Department. The First Amendment and the Religious Freedom Restoration Act, which apply to the Department as a Federal agency, cause the Department to err on the side of caution in not hindering a recipient’s ability to exercise its constitutional rights. Based on at least some commenters asserting that recipients needed more clarity on the current regulations, the Department respectfully disagrees with commenters arguing that confusion and burdens have not resulted from the text of the current regulations. In any event, the final regulations codify longstanding OCR practices, and are consistent with the Title IX statute. With respect to publishing a list of all recipients who have received assurances from OCR, OCR declines to set forth any formal policy in the final regulations. Such lists are necessarily incomplete, since they do not adequately describe the scope of every exemption, and because many recipients that are eligible for religious exemptions may nevertheless not seek assurance letters from OCR. However, nothing in the final regulations addresses publishing such a list, one way or another. In any event, correspondence between OCR and recipient institutions, including correspondence addressing religious exemptions, is subject to Freedom of Information Act requirements. Changes: None. Comments: Commenters argued that OCR’s practice regarding religious VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 exemptions has worked since 1975, and that the time period between 1975 and the present day spans numerous presidencies across both Democrat and Republican administrations. One commenter stated that no religious exemption request has ever been denied, so addressing this topic in formal rulemaking is unnecessary. Commenters contended that the change to the text of the religious exemption regulation is not responsive to any specific issue or wrong, and that the current regulation appropriately burdens the institution, as opposed to students. Commenters also stated that the revisions to § 106.12(b) would largely remove the Department and OCR out of the religious exemption process, since students may not challenge a school’s assertion of a religious exemption during the school’s handling of a complaint. That would be problematic, asserted commenters, because students would be blindsided by assertions of exemptions that have not yet been evaluated or ruled on by the Department and OCR, so a student challenging an exemption, asserted commenters, would have their complaint ignored or stayed while they waited for OCR to rule on the validity of the exemption assertion. Commenters suggested that placing the burden on a party not invoking the exemption is discordant with other areas of law, such as many States’ requirement that parents submit a religious objection to immunizations in writing, or that an entity bear the burden of establishing its entitlement to tax-exempt status. Indeed, say the commenters, the Department administers the Clery Act, which is another statute that burdens schools by requiring them to collect and report information. Discussion: The Department disagrees with commenters that assert § 106.12(b) should not be part of this notice-andcomment rulemaking. Some commenters have asserted that the current § 106.12(b) has caused confusion, and the Department wishes to clarify that neither Title IX nor these final regulations require a recipient to request an assurance of a religious exemption under 20 U.S.C. 1681(a)(3). Additionally, the Department wishes to avoid liability under the First Amendment and the Religious Freedom Restoration Act, and to the extent that § 106.12(b) may be ambiguous or vague, the Department would like to take this opportunity to revise § 106.12(b) to be even more consistent with Title IX, the First Amendment, and the Religious Freedom Restoration Act. PO 00000 Frm 00456 Fmt 4701 Sfmt 4700 Section 106.12(b) as proposed and as included in these final regulations does not burden students as the recipient must still invoke the exemption. Indeed, a recipient must still demonstrate that it is an educational institution which is controlled by a religious organization and that the application of Title IX or its implementing regulations would not be consistent with the religious tenets of such organization. The student does not bear the burden with respect to the religious exemption. The Department also disagrees that a complaint is placed on hold while the Department considers a recipient’s religious exemption. The Department processes complaints in the normal course of business and will consider any religious exemption in the normal course of an investigation just as it considers other exemptions under Title IX during an investigation. Accordingly, a student will not suffer from any delays in the Department’s processing of a complaint as a result of the revisions to § 106.12(b). There also should not be any delays with respect to the recipient’s processing of a student’s complaint such as a formal complaint under §§ 106.44 and 106.45. Section 106.44(a) requires a recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States to respond promptly in a manner that is not deliberately indifferent. Section 106.12(b) clarifies that a recipient does not need to submit a statement in writing to the Assistant Secretary to assert a religious exemption before asserting an exemption and, thus, there is no need for the Department to intervene or delay any complaint of sex discrimination, including a formal complaint of sexual harassment, that the recipient is processing to determine whether the recipient qualifies for a religious exemption. Students should not be blindsided and may always inquire about the application of Title IX and its implementing regulations to the recipient’s Title IX Coordinator, to the Assistant Secretary, or both. Additionally, a recipient that is an educational institution must be controlled by a religious organization in order to assert an exemption under Title IX, 20 U.S.C. 1681(a)(3), and students likely will know whether the educational institution is controlled by a religious organization. The Department reiterates that the burden remains on the recipient to establish and assert a religious exemption to Title IX, 20 U.S.C. 1681(a)(3). Congress expressly requires E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations postsecondary institutions that receive Federal student financial aid through the programs authorized by Title IV of the Higher Education Act of 1965, as amended, to make certain reports, including reports to the Department. The Department’s regulations, implementing the Clery Act, address the reporting requirements that Congress enacted. Congress, however, did not require educational institutions to report a religious exemption to the public or to the Department under Title IX, and the Department declines to impose any burden on the constitutional rights of recipients of Federal financial assistance that Congress did not impose. Additionally, as previously explained, the First Amendment and the Religious Freedom Restoration Act may prohibit any such additional burdens. Changes: None. Comments: One commenter objected to any form of assurance letter being sent by OCR, on the basis that such a process caused an undue entanglement with religion. The commenter suggested that the statute simply apply on its own terms, without the need for OCR to closely scrutinize the tenets of a religious educational institution. Discussion: The Department appreciates feedback on the proposed rule. The process of applying to OCR for an assurance letter is entirely optional, and nothing in the final regulations requires a school to obtain an assurance letter prior to invoking a religious exemption. The Department therefore sees no entanglement problem in allowing recipients to request an assurance letter, and generally avoids scrutinizing or questioning the theological tenets or sincerely held religious beliefs of a recipient that invokes the religious exemption in Title IX.1727 Changes: None. Comments: Several commenters asserted that the final regulations ought to be changed such that recipients are not entitled to religious exemptions under Title IX. Some commenters stated that the topic of religious exemptions might not be a significant one, and that it was unclear how many recipients had truly avoided an investigation or finding under Title IX due to a religious exemption. The commenter suggested that instead of modifying the regulations, the better course would be to study the issue further and determine how many recipients had successfully invoked a religious exemption to avoid a Title IX compliance issue in the last three to five years. 1727 20 U.S.C. 1681(a)(3). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Discussion: The Department appreciates the feedback on § 106.12(b) but does not believe it is necessary to examine OCR records to report on how many recipients have successfully invoked a religious exemption under Title IX. This is because the Title IX statute provides a religious exemption for recipients, and the Department cannot eliminate the religious exemption in the Title IX statute through its regulations. In any event, the final regulations codify longstanding OCR practices, and both the final regulations and OCR practice are consistent with the Title IX statute. Changes: None. Comments: A commenter suggested that part of the process ought to be a publication of a book by OCR that contains the full list of recipients that have obtained an assurance letter. Some commenters suggested, apart from a book, that OCR ought to publish on its website a list of all recipients that have obtained a religious exemption assurance letter. Another commenter suggested that OCR at least require recipients to inform a student who has filed a complaint that the recipient has invoked a religious exemption, particularly if no assurance letter has been previously requested. These measures, asserted commenters, would increase transparency for students and employees who may attend or work for educational institutions that maintain exemptions from Title IX. Discussion: The Department appreciates the feedback on the proposed rule. When OCR receives a complaint involving a recipient that invokes a religious exemption, OCR will proceed in accordance with OCR’s Case Processing Manual, including with respect to notifying a complainant that the recipient has invoked a religious exemption. OCR’s current practice does not require OCR to keep a complainant apprised of developments in an ongoing investigation of a recipient, and the Department has not proposed any procedural changes to the manner in which it processes complaints in this notice-and-comment rulemaking so as to give the public notice to comment on such a proposal. A complainant currently receives the opportunity to appeal the Department’s determination with respect to a complaint or the dismissal of a complaint and may raise any concerns about a recipient’s religious exemption as well as other matters on appeal.1728 The Department 1728 U.S. Dep’t. of Education, Office for Civil Rights, Case Processing Manual § 307 Appeals, https://www2.ed.gov/about/offices/list/ocr/docs/ ocrcpm.pdf. PO 00000 Frm 00457 Fmt 4701 Sfmt 4700 30481 does not wish to treat a religious exemption, which Title IX provides and which the Department is required to honor under Title IX and in abiding by the First Amendment and the Religious Freedom Restoration Act, differently than any other exemption from Title IX that a recipient may invoke. Title IX provides exemptions other than a religious exemption in 20 U.S.C. 1681(a) (e.g., exemptions for membership policies of social fraternities or sororities, father-son or mother-daughter activities, scholarship awards in ‘‘beauty’’ pageants). The Department does not notify a complainant of a recipient’s invocation of other exemptions provided in Title IX when the Department is processing a complaint and declines to do so for a religious exemption. Nothing in the final regulations prevents a recipient from informing the complainant of its invocation of a religious exemption. The Department notes that any person may direct an inquiry about the application of Title IX to a particular recipient to the recipient’s Title IX Coordinator, the Assistant Secretary, or both, pursuant to § 106.8(b)(1). On the subject of OCR publishing a book, list of names, or copies of the assurance letters that have been provided to recipients that address a recipient’s eligibility for a religious exemption, the Department often posts such correspondence on the OCR website. Additionally, such documents are subject to Freedom of Information Act requests, and attendant rules regarding public disclosure of commonly-requested documents. The Department does not believe that publishing a book or a list of names of recipients that have asserted eligibility for a religious exemption is necessary, and the final regulations do not address that issue, one way or another. Changes: None. Comments: Some commenters stated that they would prefer the Department to at least encourage recipients to post information about Title IX religious exemptions on the recipient’s website, so that people who are actively looking for that information can find it easily. Other commenters suggested that a recipient maintaining a religious exemption ought to be compelled to publish such information in their materials and policies, i.e., a student handbook, or a website. Discussion: The Department generally does not include in its regulations specific types of advice or encouragement for recipients and believes that the Title IX statute and § 106.12 appropriately guide recipients E:\FR\FM\19MYR2.SGM 19MYR2 30482 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations as to the scope and application of the religious exemption under Title IX. The Department does not require recipients to publish any exemptions from Title IX under 20 U.S.C. 1681(a)(3) that may apply to the recipient and does not wish to single out the religious exemption for special or different treatment. The Department believes that the requirements in these final regulations provide sufficient transparency. As previously stated, § 106.8 requires all recipients to notify applicants for admission and employment, students, parents or legal guardians of elementary and secondary school students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient of its notice of nondiscrimination on the basis of sex as well as its grievance procedures and grievance process, including how to report or file a complaint of sex discrimination, how to report or file a formal complaint of sexual harassment, and how the recipient will respond. Additionally, § 106.8(b)(2)(ii) provides that a recipient must not use or distribute a publication stating that the recipient treats applicants, students, or employees differently on the basis of sex except as such treatment is permitted by Title IX or these final regulations. Accordingly, students and prospective students should receive adequate notice of the recipient’s non-discrimination statement as well as its grievance procedures and grievance process regarding sex discrimination, including sexual harassment, and such notice is consistent with due process principles. Such transparency helps guard against any misunderstandings, irrespective of whether a school asserts a religious exemption. The religious exemption in Title IX, 20 U.S.C. 1681(a)(3), applies to an educational institution which is controlled by a religious organization, and students and prospective students likely will know whether an educational institution is controlled by a religious organization so as not to be surprised by a recipient’s assertion of such a religious exemption. Additionally, the Department also notes that under § 106.8(b)(1) any person can inquire about the application of Title IX to a particular recipient by inquiring with the recipient’s Title IX Coordinator, the Assistant Secretary, or both. Changes: None. Comments: Some commenters suggested that the religious exemptions language be altered, to carve out conduct that would be considered a crime. Other commenters suggested that VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the Department should clarify how a school that maintains a religious exemption ought to interact with a school that does not maintain a religious exemption, if an incident involves two students, one from each type of school. Specifically, a commenter asked whether a school with a religious exemption has a duty to cooperate with another school that was investigating a Title IX incident involving one of its students. Another commenter asked the Department to clarify whether a recipient that invoked a religious exemption still had the duty to provide the full extent of the grievance procedures in § 106.45. Discussion: The Department appreciates these nuanced questions about how recipients can comply with the final regulations under specific fact patterns. Generally, religious exemptions cannot be invoked to avoid punishment for criminal activity, and absent a specific example, the Department believes asserting a religious exemption to avoid punishment for a crime is unrealistic under Title IX. In any event, the Department does not punish recipients for criminal activity. The Department enforces the non-discrimination mandate in Title IX, which prohibits discrimination on the basis of sex. With respect to the other factual scenarios that commenters present, the Department and OCR are willing to provide technical assistance to recipients who seek answers to individual factual circumstances, or to stakeholders who may file complaints against recipients eligible for religious exemptions, but we do not believe it is appropriate to attempt to answer these questions at this stage and without the benefit of a complete set of facts. As with any regulation under Title IX, including § 106.45, an educational institution that is controlled by a religious institution is exempt from Title IX or its implementing regulations only to the extent that Title IX or one of its implementing regulations would not be consistent with the religious tenets of such organization. Changes: None. Comments: One commenter suggested a minor revision to § 106.12(b) to make clear that any future claims of institutional religious exemption under the proposed regulations are not predetermined by the scope or nature of any prior claims submitted in writing to the Assistant Secretary: ‘‘. . . whether or not the institution had previously sought assurance of the an exemption from the Assistant Secretary as to that provision or any other provision of this part.’’ PO 00000 Frm 00458 Fmt 4701 Sfmt 4700 Discussion: The Department agrees with the reasoning behind this change and changes ‘‘the’’ to ‘‘an’’ as the commenter suggested. The Department does not believe the commenter’s other suggested phrase, ‘‘as to that provision or any other provision of this part’’ is necessary to adequately explain the scope and application of this provision. Changes: The word ‘‘the’’ has been changed to ‘‘an’’ in the final sentence of § 106.12(b) of the final regulations. Comments: One commenter suggested that the Department ought to go beyond the proposed rule, and promulgate a definition for what it means to be ‘‘controlled by a religious organization,’’ so that recipients and the public would know which institutions are in fact eligible for religious exemptions, since there has been confusion previously. Additionally, the commenter asked that the definition take account of and be consistent with Supreme Court case law interpreting the Establishment Clause of the First Amendment. Discussion: Although the Department appreciates this feedback, it declines to make any changes to these final regulations because the scope of proposed changes to § 106.12 was limited by the Department’s proposal to change § 106.12(b) but not subsection (a). The Department decided to address what it means to be controlled by a religious organization for purposes of the religious exemption in Title IX through a subsequent notice of proposed rulemaking.1729 The Department will continue to offer technical assistance regarding compliance with these final regulations. Changes: None. Directed Questions 1730 Directed Question 1: Application to Elementary and Secondary Schools Comments: Some commenters commended the proposed rules for including elementary and secondary schools, suggesting that their inclusion would have a positive impact on these schools for Title IX purposes. Another commenter asserted that elementary and secondary schools, too, have sexual harassment issues that they must confront; it is not only a problem in 1729 85 FR 3190. Department addresses comments submitted in response to the NPRM’s Directed Questions 3–4, and 6–9, throughout sections of this preamble to which such directed questions pertain. For example, Directed Question 3 inquired about applicability to the proposed rules to employees, and comments responsive to that directed question are addressed in the ‘‘Section 106.6(f) Title VII and Directed Question 3 (Application to Employees)’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. 1730 The E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations postsecondary institutions. One commenter asserted that it was good to have different Title IX approaches for elementary and secondary schools as opposed to postsecondary institutions, since some procedures are appropriate for postsecondary institutions, but may not work for elementary and secondary schools; the commenter pointed to live hearings for postsecondary institutions but no hearing requirement for elementary and secondary schools as a good example of recognizing the differences between elementary and secondary education (ESE) and postsecondary education (PSE) contexts. Another commenter argued that elementary and secondary schools need flexibility to address sexual harassment issues that arise involving younger students. Discussion: The Department appreciates this feedback on the proposed rules. The Department agrees with commenters that some procedures are more appropriate for postsecondary institutions but not for other recipients, including elementary and secondary schools, and the final regulations reflect such differences. For example, § 106.30 defines ‘‘actual knowledge’’ more broadly in elementary and secondary schools and § 106.45(b)(6)(ii) does not require live hearings or crossexamination procedures for recipients who are not postsecondary institutions. Changes: We have revised § 106.30 defining ‘‘actual knowledge,’’ to include notice to any elementary and secondary school employee; and we have clarified the language in § 106.45(b)(6)(ii) to more expressly state that unlike postsecondary institutions, elementary and secondary schools are not required to hold hearings as part of the grievance process. Comments: Some commenters argued that the proposed rules ought to make additional distinctions between ESE students and PSE students. These distinctions, commenters asserted, should include removing the presumption of non-responsibility for students accused of sexual harassment in ESE contexts. Commenters argued that schools at the ESE level ought to be able to presume, in some cases, that a student is responsible for sexual harassment, or at least that no presumption ought to exist in any direction. Commenters argued that this was necessary because schools need to react to time-sensitive situations and exclude accused students or employees from the school atmosphere without having to go through the extensive grievance procedures contemplated by the proposed rule. Commenters also suggested that offering supportive VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 measures was often time-sensitive, such that a full grievance process is not appropriate. Other commenters supported significantly abbreviating the grievance procedures, on the basis that a full process was unworkable at the ESE level. Some commenters expressed concern that younger students would be put at a higher risk for sexual violence, because they might not know the types of touching that are appropriate or inappropriate to come forward to the designated school employee on their own. Discussion: The Department appreciates this feedback. The Department agrees that schools must have effective tools for responding to allegations of sexual harassment, and the final regulations protect this interest. The final regulations are designed to promote predictability and a clear understanding of every recipient’s legal obligations to respond to sexual harassment incidents, including promptly offering supportive measures to a complainant (i.e., a person alleged to be the victim of sexual harassment) whenever any ESE employee has notice of sexual harassment or allegations of sexual harassment. One of the ways in which these final regulations differentiate between ESE and PSE students is recognizing that ESE students cannot reasonably be expected to report sexual harassment only to certain school officials, or even teachers, and that ESE recipients and their employees stand in a special relationship regarding their students, captured by the legal doctrine that school districts act in loco parentis with respect to authority over, and responsibility for, their students. Thus, the final regulations (at § 106.30 defining ‘‘actual knowledge’’) trigger an ESE recipient’s response obligations any time an ESE employee has notice of sexual harassment. These final regulations obligate all recipients to promptly reach out to each complainant (i.e., a person alleged to be the victim of conduct that could constitute sexual harassment, regardless of who actually witnessed or reported the sexual harassment) and offer supportive measures, under § 106.44(a). These final regulations (at § 106.6(g)) also expressly acknowledge the importance of respecting the legal rights of parents or guardians to act on behalf of students in a Title IX matter, including but not limited to the choice to file a formal complaint asking the school to investigate sexual harassment allegations. These final regulations define ‘‘supportive measures’’ in § 106.30 in a manner that gives ESE PO 00000 Frm 00459 Fmt 4701 Sfmt 4700 30483 recipients wide discretion to quickly, effectively take steps to protect student safety, deter sexual harassment, and preserve a complainant’s equal educational access. As discussed in the ‘‘Supportive Measures’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, supportive measures cannot ‘‘unreasonably burden’’ the respondent but this does not mean that supportive measures cannot place any burden on a respondent, so actions such as changing a respondent’s class or activity schedule may fall under permissible supportive measures, and supportive measures must be offered without waiting to see if a grievance process is eventually initiated or not. Recipients also retain the authority to remove a respondent from education programs or activities on an emergency basis if the respondent presents an imminent threat to the physical health or safety of any individual, under § 106.44(c). We also reiterate that many actions commonly taken in the ESE context are not restricted under these final regulations; while a recipient may not punish or discipline a respondent without complying with the § 106.45 grievance process, actions such as holding an educational conversation with a respondent, explaining to the respondent in detail the recipient’s antisexual harassment policy and code of conduct expectations, and similar actions are not restricted unless paired with actions that are punitive, disciplinary, or unreasonably burdensome to the respondent. We disagree that a presumption of non-responsibility 1731 is less important for respondents in the ESE context than in the PSE context, because the presumption serves to reinforce that a recipient must not treat a respondent as responsible for Title IX sexual harassment unless such allegations have been proved or otherwise resolved under a process that complies with § 106.45, but as discussed above, this leaves wide flexibility for recipients to address the need for complainants’ equal educational access, protect safety, and deter sexual harassment, while a grievance process is pending or without any grievance pending. Changes: None. Comments: Many commenters argued that the grievance procedures in the NPRM generally do not work well for ESE recipients. Commenters argued that 1731 For further discussion see the ‘‘Section 106.45(b)(1)(iv) Presumption of NonResponsibility’’ subsection of the ‘‘General Requirements for § 106.45 Grievance Process’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30484 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations schools need to take swift action in the ESE setting, since young children are at particular risk of further harm. Commenters also argued that live hearings with cross-examination should not occur where young children are involved. The prospect of an employee or the employee’s advisor crossexamining a student in cases where a school opted to allow live hearings troubled some commenters. Some stated that prior written notice should not be required at the ESE level for every investigative interview. Commenters stated that these were flaws in the proposed rules that stemmed from the Department not adequately considering how differences in structure and populations affect Title IX enforcement, as between ESE and PSE contexts. Commenters contended that the extensive due process protections in the proposed rules would have the consequence of making school proceedings more intimidating for victims. They stated that setting up what amounts to an expressly adversarial process between students at ESEs is inappropriate. Some commenters argued that even referring to students as ‘‘complainants’’ and ‘‘respondents’’ had the unfortunate effect of creating litigation-like settings in ESE schools, and argued that the proposed rules would require significantly more process than what is required by the Supreme Court.1732 Commenters also stated that students themselves will be confused by the proposed rules, and many will need to hire legal counsel in order to fully understand their rights. Commenters argued that sexual harassment incidents disproportionately affect Black students and transgender students, so the proposed rules would hurt them especially. Some commenters argued that cases at the ESE level should never be subject to a clear and convincing evidence standard of evidence, yet the proposed rules would allow a recipient to choose that standard for resolving allegations of sexual harassment. Some stated that schools, especially underfunded schools, would not be able to afford many of the evidence-sharing provisions of the proposed rules, or the requirement that the investigator be a different person than the person who adjudicates a claim of sexual harassment. Commenters argued that many schools would be destroyed by having to comply with the proposed rules. Some commenters objected to the requirement that every determination 1732 Commenters cited: Goss v. Lopez, 419 U.S. 565 (1975). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 regarding responsibility for sexual harassment needed to be accompanied by specific findings and a written report, arguing that such a burden was too onerous for ESE schools. Some contended that poorer schools needed to rely on the single investigator model— as opposed to separate individuals being the Title IX Coordinator, the investigator, and the decision-maker for discipline—and that the proposed rules are unworkable at the ESE level. Other commenters contended that having to explain why each question is or is not asked during a hearing, if it occurs, will be cumbersome and unnecessary. Aside from the issue of financial burden, some commenters argued that the proposed rules were likely to cause confusion for school personnel, many of whom are not lawyers and who are not trained to administer or prepare for adversarial proceedings. The commenters argued that school officials will often make mistakes, and that confidence in the system will deteriorate to the point that students will opt not to report instances of sexual harassment. Commenters argued that the proposed rules insufficiently consider that schools know best how to handle their own students, and that imposing these burdens is not necessary to resolve claims of sexual harassment. Some commenters argued that even if recipients were able to implement the new grievance procedures properly, there would still be negative consequences for students and schools. For instance, some commenters argued that the grievance procedures are subject to manipulation, especially when students with financial resources are able to take advantage of the procedures against other students who may lack similar resources. Other commenters suggested that frequent dissatisfaction with the processes or with outcomes would lead to litigation in court. These commenters also argued that full compliance with these final regulations at the ESE level will be expensive and would outweigh any savings. Other commenters took issue with the informal resolution provisions of the proposed rules, stating that mediation is never appropriate at the ESE level, particularly if there are few requirements surrounding the content of the mediation or if the underlying allegation involves sexual assault. Commenters stated that since the informal resolution process can end the investigation into allegations of sexual harassment, it is problematic to rely on a student’s willingness to object to informal resolution—and to insist on the formal grievance procedures—to PO 00000 Frm 00460 Fmt 4701 Sfmt 4700 adequately cause the school to respond to sexual harassment. Other commenters stated that forms of informal resolution like mediation are inherently traumatic for victims of sexual harassment, and some argued that mediation generally utilizes ‘‘rape myths’’ and ‘‘victimblaming language’’ that ought to be avoided. Many commenters wanted the Department to expand the scope of the individuals whose knowledge could give rise to a school’s duty to respond to sexual harassment. Some commenters expressed concern that students do not know who might have authority to institute corrective measures and who does not, per the scope of the proposed rules. Some commenters suggested that at least mandatory reporters should be covered. Other commenters argued that regardless of who receives information about sexual harassment, the appropriate response is a ‘‘traumainformed’’ response, such that the person who alleges sexual harassment ought to be believed from the outset. The net of all of these issues, argued commenters, was that educational environments and learning would suffer. Schools would have difficulty effectively responding to sexual harassment, and preventing future incidents, asserted commenters. Commenters contended that the proposed rules would discourage young vulnerable students from reporting instances of sexual harassment, out of fear that they might have to endure lengthy and onerous procedures while trying to still maintain their academic progress. Discussion: The Department appreciates this feedback. The Department is promulgating consistent, predictable rules for recipients who must respond to allegations of sexual harassment, and has balanced the strong need to protect students from sexual harassment and the need to ensure that adequate processes are in place. The Department agrees with commenters who stated that the types of school personnel to whom notice should charge a recipient with ‘‘actual knowledge’’ in the ESE context should be expanded. As discussed in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section and the ‘‘Actual Knowledge’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, we have revised the final regulations to provide that notice to any elementary or secondary school employee triggers the ESE recipient’s response obligations. Within the confines of these final regulations, recipients may adjust their E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations procedures to minimize the amount of resources that must be spent with respect to each allegation of sexual harassment. The final regulations allow recipients the discretion to facilitate an informal resolution process,1733 and permit each recipient to conduct the grievance process under time frames the recipient has designated as reasonable for an ESE environment.1734 For emergencies posing imminent risks to any individual’s safety recipients may, consistent with the terms of the final regulations, invoke emergency removal procedures.1735 The Department disagrees that the final regulations are unworkable in the ESE environment, or that they will destroy recipients who must abide by them. Instead, the final regulations offer significant flexibility to recipients, while still maintaining the appropriate balance between a recipient’s duty to respond to allegations of sexual harassment and its duty to ensure due process protections that benefit both complainants and respondents.1736 Additionally, the Department expects that significant efficiencies will result, and the cost to implement required procedures will be reduced, as students, employees, and school personnel interact with consistent and predictable rules. To the extent that a recipient needs the advice of legal counsel to understand its duties, it will be easier for counsel to advise them on the requirements of concrete rules published in regulations than on Department guidance that does not represent legally binding obligations. What may be a cumbersome new procedure at first may soon become routine, and reduce confusion, as a recipient responds to all of its Title IX formal complaints with specific procedures. At the same time, many recommendations and best practices found in Department guidance remain viable policies and procedures for recipients while also complying with these final regulations, so the Department anticipates that not all recipients will find the need to change 1733 Section 106.45(b)(9) allows recipients to facilitate informal resolution of formal complaints, except as to allegations that an employee sexually harassed a student. We understand that some commenters, including some recipients, do not believe that informal resolution is appropriate at all in the ESE context, or is not appropriate for sexual assault allegations, and the final regulations allow each recipient to choose whether to offer any informal resolution processes at all. 1734 Section 106.45(b)(1)(v). 1735 Section 106.44(c). 1736 For further discussion see the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section and ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 their current Title IX policies and procedures wholesale. For further discussion of the similarities and differences among these final regulations and Department guidance documents, see the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section and ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. As to live hearings with crossexamination, we have clarified the language in the final regulations to emphasize that ESE recipients are not required to use a hearing model to adjudicate formal complaints of sexual harassment under these final regulations. Moreover, if an ESE recipient chooses to use a hearing model, that recipient does not then need to comply with the provisions in § 106.45(b)(6)(i), which applies only to postsecondary institution recipients. For further discussion see the ‘‘Section 106.45(b)(6)(ii) Elementary and Secondary School May Require Hearing and Must Have Opportunity to Submit Written Questions’’ subsection of the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. Nothing prevents schools from counseling students as to how the grievance procedures will work, or aiding and assisting the parties, on an equal basis, with additional supports as they go through the process. Additionally, many provisions of the final regulations require only that schools provide an equal opportunity to the parties, leave the recipient flexibility to the extent that a recipient would prefer to make the grievance process less formal or intimidating for students. We have also added § 106.6(g) in the final regulations, acknowledging the legal rights of parents or guardians to act on behalf of complainants, respondents, or other individuals with respect to exercising rights under Title IX, including participation in a grievance process. The Department disagrees that the final regulations will deter reporting, since having consistent, predictable rules for Title IX proceedings will likely make them less intimidating for ESE students and their parents, and students or employees may gain confidence in a process that expressly allows the complainant to choose whether reporting leads only to supportive measures or also leads to a grievance process.1737 Indeed, the Department believes that having predictable rules 1737 Section 106.44(a); § 106.30 (defining ‘‘formal complaint’’). PO 00000 Frm 00461 Fmt 4701 Sfmt 4700 30485 will encourage reporting by students or their parents, and ensure that students and employees who allege sexual harassment will not have to wonder how they will be treated upon reporting. As described in the ‘‘Deliberate Indifference’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, we have significantly revised § 106.8 and § 106.44(a) to emphasize that reporting sexual harassment is the right of any complainant (or third party, including a complainant’s parent) and recipients must offer supportive measures to every complainant (i.e., person alleged to be the victim of sexual harassment), regardless of whether a grievance process is also initiated against a respondent. The Department also disagrees that parties with significant financial resources will be able to manipulate the grievance process in an unjust manner any more than any other Title IX grievance procedures established in response to Department guidance, since the final regulations provide for meaningful participation of both parties at every stage in a grievance process. The grievance process is designed for students (including, as legally applicable, parents acting on behalf of their children) 1738 to navigate without legal representation, though every party has the right to an advisor of choice who may be, but need not be, an attorney.1739 The Department believes that one way to mitigate the possibility of a party unfairly using financial resources is to grant both complainants and respondents strong procedural rights (including the right to assistance and advice from an advisor of the party’s choosing) as they engage in the process. The Department agrees that schools themselves know best how to engage with their students, and recipients are encouraged to use their discretion and expertise within the confines of the final regulations. This includes what training to give to ESE employees regarding reporting sexual harassment to the Title IX Coordinator (knowing that notice to any ESE employee triggers the recipient’s response obligations under these final regulations), what training to give the Title IX Coordinator with respect to circumstances that might justify the Title IX Coordinator deciding to sign a formal complaint in situations where the complainant (and complainant’s parent, as applicable) does not want the recipient to investigate allegations, which 1738 Section 1739 Section E:\FR\FM\19MYR2.SGM 106.6(g). 106.45(b)(5)(iv). 19MYR2 30486 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations supportive measures may be appropriate in certain circumstances, what time frames to designate for completion of a grievance process, the use of ageappropriate explanatory language in the written notices that must be sent to parties under § 106.45, what standard of evidence to apply to resolving formal complaints, whether to use the Title IX Coordinator as the investigator or separate those roles, whether to use informal resolution, whether to offer grounds for appeal in addition to those required under § 106.45, the selection of remedies for a complainant where a respondent is found responsible for sexual harassment, and the choice of disciplinary sanctions against a respondent who is found responsible. The foregoing illustrations of discretion that ESE recipients possess is in addition to the ability of ESE recipients to address conduct that does not meet the definition of sexual harassment as defined in § 106.30, as well as other types of student misconduct, outside the confines of these final regulations; these final regulations apply only when the conditions of § 106.44(a) are present (i.e., an ESE employee has notice of conduct that could constitute sexual harassment as defined in § 106.30, that occurred in the recipient’s education program or activity, against a person in the United States). The § 106.45 grievance process is a required part of the recipient’s response only when the recipient is in receipt of a formal complaint (as defined in § 106.30), which must either be filed by a complainant (i.e., the person alleged to be the victim of sexual harassment, or a parent or guardian legally entitled to act on that person’s behalf) or signed by the Title IX Coordinator. In the absence of a formal complaint, the recipient’s response must consist of offering supportive measures designed to preserve the complainant’s equal access to education, as well as to protect the safety of all parties or deter sexual harassment. The Department does not believe that the final regulations present unduly burdensome, much less insurmountable, obstacles for ESE recipients to fulfill every recipient’s obligation to supportively and fairly address sexual harassment in a recipient’s education programs or activities. The Department disagrees that informal resolution is never appropriate for ESE institutions, or that ESE recipients may never use it in the context of allegations of sexual assault. In these cases, the final regulations provide adequate limitations and protections for parties regarding the use VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 of informal resolutions, and we reiterate that the final regulations do not mandate that any recipient offer or facilitate information resolution processes.1740 For the reasons explained in the ‘‘Section 106.45(b)(7)(i) Standard of Evidence and Directed Question 6’’ subsection of the ‘‘Determinations Regarding Responsibility’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, the Department disagrees that the clear and convincing evidence standard of evidence is never appropriate in the ESE setting, such that no ESE recipient should ever be able to adopt that standard to resolve formal complaints of sexual harassment. Changes: None. Comments: Commenters argued that students should not have to wait weeks, if not months, for adjudications of and responses to their allegations of sexual harassment. Lack of timely resolution would be made worse, some commenters argued, by the fact that the grievance process can be delayed for law enforcement investigations. Commenters argued that because nearly all sexual harassment allegations in the ESE context will require law enforcement intervention, the proposed rules would result in frequent, significantly delayed processes in the ESE context. Discussion: The Department appreciates this feedback and discusses these concerns in the ‘‘Section 106.45(b)(1)(v) Reasonably Prompt Time Frames’’ subsection of the ‘‘General Requirements for § 106.45 Grievance Process’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. We reiterate here that the final regulations do not require a recipient to delay a Title IX grievance process while a law enforcement investigation is pending; rather, § 106.45(b)(1)(v), only permits a recipient to provide for shortterm delays or extensions of the recipient’s own designated, reasonably prompt time frame for conclusion of the grievance process, when such shortterm delay or extension is based on ‘‘good cause,’’ and that provision gives as an example of good cause, concurrent law enforcement activity. ‘‘Good cause’’ under these final regulations would not justify a long or indefinite delay or extension of time frames for concluding the Title IX grievance process, regardless of whether a law enforcement investigation is still pending. Additionally, we reiterate that under § 106.44 a recipient’s prompt response 1740 Section PO 00000 106.45(b)(9). Frm 00462 Fmt 4701 Sfmt 4700 to every complainant (once a recipient is on notice that a complainant has been victimized by sexual harassment) is triggered with or without the filing of a formal complaint and without awaiting the conclusion of a grievance process if a formal complaint is filed. We therefore disagree that the § 106.45 grievance process poses a risk of undue delay for any complainant in the ESE context to expect and receive a prompt, supportive response from the ESE recipient designed to restore or preserve the complainant’s equal educational access. Changes: None. Comments: Commenters argued that the proposed rules’ definition of ‘‘sexual harassment’’ would be problematic for ESE populations. These commenters stated that young teens are particularly vulnerable to sexual harassment, but that the standard for determining whether a school has a duty to act— whether conduct was severe, pervasive, and objectively offensive—is too high a bar for ESE students. In this vein, commenters stated that ESE students will be traumatized from repeated incidents of sexual misconduct that do not rise to the level of the § 106.30 definition of sexual harassment. Other commenters noted that because this definition mirrors the standard for private rights of action in civil suits, the proposed rules would have the consequence of leading more people to court. The commenters argued that if one of the goals of the proposed rules is to reduce the amount of litigation involving Title IX, they do the opposite. Discussion: The Department appreciates this feedback, but for the reasons explained in the ‘‘Sexual Harassment’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble and in the ‘‘Definition of Sexual Harassment’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, the Department believes that the § 106.30 definition of sexual harassment is appropriate for application in elementary and secondary schools. We reiterate that under these final regulations, recipients remain free to address misconduct that does not meet that definition under State laws or a recipient’s own code of conduct, and as to such misconduct these final regulations (including the general response obligations in § 106.44 and the grievance process in § 106.45) do not apply. For reasons discussed throughout this preamble, including in the ‘‘Litigation Risk’’ subsection of the ‘‘Miscellaneous’’ section of this preamble, the Department believes that these final regulations may have the E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations benefit of reducing litigation, because these final regulations adopt the Supreme Court’s Gebser/Davis framework for addressing sexual harassment, yet adapt that framework in a manner that places on recipients specific legal obligations to support complainants that are not required in private Title IX lawsuits, and do so in a manner that we believe also ensures that the recipient’s response meets constitutional requirements of due process of law and respect for First Amendment rights (which public schools owe to students and employees) and concepts of fundamental fairness that private schools owe to students and employees. Thus, we believe that implementing these final regulations may have the ancillary benefit of reducing litigation arising from school responses to Title IX sexual harassment. Changes: None. Comments: Commenters argued that schools will be confused when trying to balance certain Federal rights with other ones, in cases where there is tension. Commenters argued that the proposed rules did not adequately discuss what should happen when one of the students involved in allegation of sexual harassment is a student with a disability and has rights under the IDEA or Section 504. One commenter stated that under the IDEA, school districts serve students from the age of three to the age of 21, so providing for one-size-fits-all policies, even just for students with a disability, might not be developmentally appropriate. Other commenters argued that the proposed rules may be in tension with rape shield laws, or that, at least, school personnel will have difficulty navigating the issues if there is ambiguity. Discussion: The final regulations do not supersede the IDEA, Section 504, or the ADA. The final regulations provide significant flexibility for recipients, and recipients may utilize this flexibility in challenging cases, including where a recipient must comply with both these final regulations, and applicable disability laws. Additionally, the final regulations provide complainants with rape shield protections, and deem questions and evidence regarding a complainant’s prior sexual behavior irrelevant (unless such questions or evidence are offered to prove that someone other than the respondent committed the alleged conduct, or if it concerns specific incidents of sexual behavior with the respondent and is offered to prove consent). These concerns are further addressed in the ‘‘Section 106.45(b)(6)(ii) Elementary and Secondary School Recipients May Require Hearing and Must Have VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Opportunity to Submit Written Questions’’ subsection of the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. Changes: None. Comments: Some commenters stated that they were concerned about the proposed rules creating a two-tiered system of complaints, which would be particularly challenging at the ESE level. The commenters argued that some allegations would rise to the level of sexual harassment contemplated by the proposed rules and would therefore trigger a school’s duty to respond and go through the grievance procedures. Other conduct, stated commenters, might be sexual in nature, and even severe or pervasive or objectively offensive—but not all three—and thus not trigger a duty to respond, and not trigger any need to go through the grievance procedures. But this conduct might still be prohibited by a school’s code of conduct, noted commenters, and a school could still discipline students for code of conduct violations. Commenters thought this would pose an awkward, confusing process for both students who allege unwelcome conduct occurred, and for students who were accused of unwelcome conduct. Discussion: As discussed above and throughout this preamble, these final regulations define sexual harassment that triggers a recipient’s response obligations to mean any of three types of misconduct (i.e., quid pro quo harassment by an employee, severe and pervasive and objectively offensive unwelcome conduct that denies a person equal educational access, or any of the four Clery Act/VAWA sex offenses—sexual assault, dating violence, domestic violence, or stalking). The Department believes that drawing a distinction between actionable sexual harassment under Title IX, and other misconduct that may be unwelcome but does not interfere with a person’s equal educational access (such as offensive speech protected by principles of free speech and academic freedom), helps a recipient reach the difficult balance between upholding the non-discrimination mandate of Title IX while comporting with constitutional rights and principles of fundamental fairness.1741 As explained in the ‘‘Sexual Harassment’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, Federal nondiscrimination laws such as Title IX (as interpreted under Department guidance) and Title VII (under which a standard 1741 See the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. PO 00000 Frm 00463 Fmt 4701 Sfmt 4700 30487 of ‘‘severe or pervasive’’ sexual harassment applies) have long utilized some threshold measure of when misconduct rises to the level of being actionable under the Federal nondiscrimination law (e.g., when a school must respond under Title IX, or an employer must respond under Title VII). The Department’s use in these final regulations of the Supreme Court’s Davis formulation of actionable sexual harassment as one of three categories of misconduct defined as actionable sexual harassment leaves recipients discretion to address other misconduct as the recipient deems appropriate (or as required under State laws), while focusing Title IX enforcement on responding to conduct that jeopardizes a person’s equal educational access. That response must support a complainant while being fair to both parties, including by offering supporting measures to a complainant and refraining from punishing a respondent without following a fair grievance process. The Department views this flexibility as a strength of these final regulations, rather than to the detriment of recipients or their students and employees. While this may create two different sets of procedures for recipients, this is a natural consequence of having to comply with a Federal nondiscrimination laws such as Title IX, which focuses on denial of equal educational access and does not cover all types of student misconduct, and appropriate enforcement of which may require processes that are above and beyond processes a school uses to address other types of student misconduct. Changes: None. Comments: Commenters suggested that if anything, ESE schools should provide more due process for respondents than PSE institutions, and not less, because students must generally attend ESE schools as a matter of compulsory State laws regarding education, whereas there is no compulsory education at the postsecondary level; commenters shared personal stories of themselves (or family members) being accused of sexual harassment as high school students and urged the Department to provide high school students with strong due process protections. One commenter alleged that ESE institutions are dominated by teachers’ unions on the left side of the political spectrum, and are therefore trained to believe all accusers, such that accused students cannot expect to get fair treatment unless it is mandated by Federal law. One other commenter argued that whatever the proposed rules provide, they should offer additional E:\FR\FM\19MYR2.SGM 19MYR2 30488 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations protections to parties who are students, as opposed to employees, given that there is no right or obligation related to having a job, but there are compulsory attendance rules for schools. One other commenter stated that the proposed rules do not account for schools that want to eschew the adversarial process in most cases and focus instead on practices generally referred to as ‘‘restorative justice.’’ These practices, asserted commenters, reduce implicit bias and protect school climate better than pure disciplinary models. Discussion: The Department believes that the final regulations protect due process for students and employees at both the ESE and PSE levels.1742 The final regulations effectively require that schools provide adequate due process protections to all students, irrespective of whether school personnel themselves are ideologically supportive of such rights, and at the same time require schools to respond supportively to protect complainants’ equal educational access. Additionally, the final regulations establish sufficient rights for ESE students to adequately defend themselves from accusations of sexual harassment, for example through the right to inspect and review all evidence directly related to the allegations including exculpatory evidence, whether obtained by a party or other source, the right to review the investigative report containing the recipient’s summary of relevant evidence, the right to an advisor of choice, and the right to pose written questions and follow-up questions to the other party and witnesses prior to a determination regarding responsibility being reached. At the same time, the foregoing procedural rights are granted equally to complainants, resulting in a truth-seeking grievance process that provides due process protections for all parties. Nothing in the final regulations prevents recipients from facilitating informal resolution processes, including what commenters referred to as restorative justice processes, within the confines of § 106.45(b)(9). Changes: None. Comments: Many commenters argued that the Department’s Directed Question 1 was itself flawed, because it asked whether different rules ought to apply to different institutions that are ESE or PSE institutions, while many ESE students interact with PSE institutions in a variety of ways. Commenters noted that some PSE institutions run daycares, 1742 See the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 elementary and secondary school sporting enrichment programs, host high-school students for events, and even enroll high-school students in dual-enrollment courses at the PSE level. Several community colleges commented to say that they had numerous ESE students enrolled in their courses, and that many of these students came onto their campuses physically during the day. The schools argued that it would be confusing to use certain procedures designated only for the PSE recipients when minors—and perhaps even young children who were simply enrolled in daycare at the institution— were involved in an allegation of sexual harassment. Some commenters noted that it was theoretically possible to have two minors who attend high school but who are dual-enrolled in college courses as parties to an investigation. In that case, asserted commenters, a school would have to use its own institution’s grievance procedures, despite the students being minors, which commenters argued cannot be what the proposed rules intended. Discussion: The Department agrees with commenters who suggested that no system will perfectly distinguish individuals who ought to be subject to more sophisticated procedures in every instance of alleged sexual harassment, but that distinguishing between ESE and PSE recipients is valuable as a proxy. These final regulations require a recipient to respond to sexual harassment whenever the recipient has notice of sexual harassment that occurred in the recipient’s own education program or activity, regardless of whether the complainant or respondent is an enrolled student or an employee of the recipient.1743 The manner in which a recipient must, or may, respond to the sexual harassment incident may differ based on whether the complainant or respondent are students, or employees, of the recipient. For example, if a complainant is not an enrolled student but attends a sports camp at the institution, the type of supportive measures reasonably available to help that complainant may differ from supportive measures that would assist an enrolled student. As another example, if the respondent is not enrolled or employed by the institution but commits sexual harassment in the recipient’s education program or activity, the recipient may in its discretion (via the Title IX Coordinator signing a formal complaint) initiate a grievance process against that respondent,1744 yet must still offer supportive measures to the complainant. Conversely, if the respondent is not enrolled or employed by the institution, the recipient may, in its discretion, dismiss a formal complaint filed by the complainant against that respondent,1745 and again, must still offer supportive measures to the complainant. While the Department understands that many students are dual-enrolled, and that some students in ESE are over the age of majority and some students in PSE are minors, we believe that these final regulations appropriately set forth legal obligations for all recipients to respond supportively to complainants and fairly to both complainants and respondents, and that the concept of an ESE recipient, or a PSE recipient, needing to take into account the ages of its students is neither unfamiliar nor infeasible for ESE and PSE recipients. With respect to concerns that complainants who are minors may suffer sexual harassment in a PSE institution’s education program or activity and thus the PSE institution would be applying grievance procedures to a formal complaint filed by that complainant, including procedures that are more difficult for minors to navigate in and participate in (for example, appearing at a live hearing and being subjected to cross-examination), these final regulations contain protections that mitigate the potential for retraumatization of all complainants at a live hearing. For instance, § 106.45(b)(6)(i) states that, at the request of either party, the recipient must provide for the live hearing (including cross-examination) to occur with the parties located in separate rooms with technology enabling the decision-maker and parties to simultaneously see and hear the party or the witness answering questions; forbids parties from personally questioning each other; and expressly states that 1743 Section 106.44(a) (general response obligations of a recipient); § 106.30 (defining ‘‘complainant’’ to mean ‘‘an individual’’ without restricting the definition to a student or employee); § 106.30 (defining ‘‘respondent’’ to mean ‘‘an individual’’ without restricting the definition to a student or employee); § 106.30 (defining ‘‘formal complaint’’ and stating that a formal complaint may be filed by a complainant who is participating, or attempting to participate, in the recipient’s education program or activity at the time of filing the formal complaint). 1744 Section 106.30 (defining ‘‘formal complaint’’ as a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent); § 106.44(b)(1) (requiring a recipient to follow the § 106.45 grievance process in response to any formal complaint and to meet all § 106.44(a) obligations which include offering the complainant supportive measures). 1745 Section 106.45(b)(3)(ii) (permitting discretionary dismissal of a formal complaint in specified instances, including where the respondent is no longer enrolled or employed by the recipient). PO 00000 Frm 00464 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations before any party must answer a crossexamination question the decisionmaker must first determine whether the question is relevant. Moreover, a complainant need not be subjected to cross-examination at a PSE institution’s live hearing, so long as the decisionmaker does not rely on any statement of that complainant in reaching a determination regarding responsibility.1746 Nothing in these final regulations precludes a recipient from training its investigators or decisionmakers in best practices for interviewing and questioning minors, so long as such training also meets the requirements for training of Title IX personnel set forth in § 106.45(b)(1)(iii). These provisions help ensure that cross-examination (which may seem daunting especially for a minor) is conducted in a reasonable, respectful, truth-seeking manner. These final regulations provide additional protections that are especially helpful for a minor student navigating a grievance process, whether conducted by an ESE institution or a PSE institution; for example, § 106.45(b)(5)(iv) allows each party to select an advisor of choice who may be, but need not be, an attorney, while § 106.6(g) recognizes the legal right of a parent to act on a complainant’s behalf throughout the grievance process. Changes: None. Comments: Some commenters argued that the proposed rules ought to be changed to contemplate different categories of ESE students, and therefore distinguish between allegations of sexual harassment that occur at elementary schools, middle schools, and high schools. Discussion: As discussed in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, consistency and predictability are important goals of these final regulations, balanced with the recognition that the type of due process owed may be different in particular situations, which the Department has concluded include the difference between the ESE and PSE context.1747 However, different processes for preschool, elementary school, middle school, and high school would significantly reduce the end goal of providing recipients, students, and employees with a consistent, predictable framework for recipient responses to Title IX sexual harassment. Within the framework of the final 1746 Section 106.45(b)(6)(i). example, the final regulations require postsecondary institutions to use a live hearing model for Title IX sexual harassment adjudications, while ESE recipients need not use any kind of hearing. § 106.45(b)(6)(i)–(ii). 1747 For VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 regulations, recipients retain significant discretion to employ age-appropriate rules and approaches (so long as such discretionary rules apply equally to complainants and respondents).1748 Changes: None. Comments: Commenters asserted that the proposed rules ought to be modified to state expressly that students can always rely on their parents or guardians for assistance as they proceed through the Title IX process at their school. Discussion: Nothing in the final regulations prevents students from relying on their parents or guardians for assistance or selecting a parent or guardian as an advisor of choice during a grievance process. Indeed, where parents or guardians have a legal right to act on behalf of a student, including during a grievance process, the final regulations expressly respect such right, and where a parent has the legal right to act on their child’s behalf, the parent may accompany their child throughout the grievance process in addition to an advisor of the party’s choice.1749 The Department expects that for many students, the participation of a parent or guardian in the grievance process will be a function of their underlying legal rights as parents or guardians, and the final regulations respect, and do not alter, those parental or guardianship rights. Changes: None. Comments: One commenter suggested that in the ESE setting, schools should have the duty only to investigate and draft a report and recommendation, but then provide the report and recommendation to an outside neutral party. That way, asserted the commenter, school personnel would not have to adjudicate the final result and potential disciplinary consequences of the Title IX process. Discussion: The final regulations are designed for school officials to perform the functions of investigators and decision-makers without the need to hire outside contractors. The final regulations do not preclude a recipient from outsourcing its investigative and adjudicative responsibilities under these final regulations, but the Department declines to require recipients to do so, and the recipient remains responsible for compliance with these final regulations whether a recipient meets its 1748 The introductory sentence of revised § 106.45(b) states that any provisions, rules, or practices other than those required by this section that a recipient adopts as part of its grievance process for handling formal complaints of sexual harassment as defined in § 106.30, must apply equally to both parties. 1749 Section 106.6(g); § 106.45(b)(5)(iv). PO 00000 Frm 00465 Fmt 4701 Sfmt 4700 30489 obligations by using its own personnel or by hiring outside contractors. Changes: None. Comments: Commenters suggested that the final regulations should include robust training requirements for school personnel, especially with respect to the differences between ESE and PSE institutions. Other commenters suggested that school personnel undergo trauma-informed training, such that they would better be able to observe symptoms of sexual harassment. Discussion: Recipients must, under § 106.45(b)(1)(iii), ensure that Title IX Coordinators, investigators, decisionmakers, and any person who facilitates an informal resolution process receive certain training, including on the definition of sexual harassment, the scope of the recipient’s education program or activity, how to conduct an investigation and grievance process, including hearings, appeals, and informal resolution processes, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias, and (as to investigators and decision-makers) how to determine issues of relevance. While these training materials must not rely on sex stereotypes and must promote impartial investigations and adjudications of sexual harassment, recipients may use their discretion to adopt additional components to training, including materials describing the impact of trauma. Changes: None. Comments: Commenters stated that the proposed rules would likely be in tension with numerous State laws that codify certain procedures before students can be disciplined, particularly if the discipline is suspension or expulsion. Commenters asserted this would have unpredictable consequences, such as schools perhaps having to conduct two separate investigatory or grievance procedures, in order to comply with both the proposed rules and State law. Commenters asserted that having to conduct two separate processes would be awkward, confusing, and potentially in conflict with one another. Some suggested as a solution adding a waiver requirement, so that the Secretary could permit schools to opt out of certain grievance procedures. Other commenters suggested a safe harbor provision, such that a school in compliance with State law need not separately comply with the proposed rules. Discussion: The Department appreciates this feedback but declines to make any changes to the final E:\FR\FM\19MYR2.SGM 19MYR2 30490 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations regulations in response to these comments. Recipients ought, to the maximum extent possible, seek to comply with all State and local laws, consistent with the final regulations. To the extent that a conflict cannot be resolved, the final regulations control. For further discussion of conflict with State laws, see the discussion in the ‘‘Section 106.6(h) Preemptive Effect’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. For reasons explained in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, the Department has determined that the provisions in § 106.45 constitute the important procedures needed to ensure that investigations and adjudications of Title IX sexual harassment allegations are fair, reliable, and viewed as legitimate, to effectuate the non-discrimination mandate of Title IX—an important Federal civil rights law. As to student or employee misconduct that does not constitute Title IX sexual harassment, these final regulations do not prescribe what kind of disciplinary procedures a recipient must or may use. The Department does not view this potential for ‘‘two separate processes’’ as a negative consequence of these final regulations; rather, these final regulations appropriately confine their application only to sex discrimination in the form of sexual harassment, and leave other misconduct under the purview of States and local schools. Changes: None. Comments: Some commenters asked whether the grievance procedures varied based on who the complainant was, who the respondent was, or which institution was conducting the process. These commenters also asked what should occur if there are multi-party allegations, and the school must interact with individuals of different grade levels. One commenter described a hypothetical situation of a professor in a PSE setting who teaches ESE students, perhaps as part of a dual-enrollment program. In the hypothetical, one of the ESE students accuses the professor of sexual harassment, but refuses to participate in cross-examination at a live hearing, since the proposed rules contemplate that procedure only for PSE institutions. The commenter asked if the school must discount the allegation, find the professor non-responsible for the accusation, and simply drop the issue, ignoring the possibility that the professor may then sexually harass other students. Discussion: The obligations of a recipient are tied to whether it is an ESE or a PSE institution, not to the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 individual parties involved in a specific allegation of sexual harassment. Whether sexual harassment involves two individuals or more is not relevant to the question of which procedures apply; however, in response to commenters who wondered how multiparty situations could be addressed, the final regulations add § 106.45(b)(4) giving recipients discretion to consolidate formal complaints where allegations arise from the same facts and circumstances, so that a single grievance process might involve multiple complainant and/or multiple respondents. Where sexual harassment is alleged in the education program or activity of a PSE institution, § 106.45(b)(6)(i) requires the recipient to adjudicate the allegations by holding a live hearing, with cross-examination conducted by party advisors (including a recipient-provided advisor if a party appears at the live hearing without an advisor of choice). That provision instructs the decision-maker not to rely on statements of a party who chooses not to appear or be cross-examined at the live hearing; however, the revised provision also directs the decisionmaker not to draw any inference about the determination regarding responsibility based on the refusal of a party to appear or be cross-examined. Thus, a recipient is not required to ‘‘drop the issue’’ or required to reach a non-responsibility finding whenever a complainant refuses to appear or be cross-examined; rather, the decisionmaker may proceed to objectively evaluate the evidence that remains (excluding the non-appearing party’s statements) and reach a determination regarding responsibility.1750 Further, a recipient must offer supportive measures to a complainant regardless of whether the complainant signs a formal complaint initiating a grievance process or refuses to participate in a grievance process, and nothing in the final regulations precludes a recipient from providing supportive measures designed to deter sexual harassment regardless of the outcome of a grievance process. Under § 106.44(d), a recipient may place a non-student employee-respondent on administrative leave during pendency of a grievance process, ensuring that regardless of the outcome of the grievance process the recipient may separate an employee from contact with students, in the recipient’s discretion. Changes: None. 1750 For further discussion of the consequences of a party or witness refusing or failing to appear at a live hearing or refusing to submit to crossexamination, see the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. PO 00000 Frm 00466 Fmt 4701 Sfmt 4700 Comments: Some commenters asked for more guidance about how ESE students should pose questions to each other during the grievance process, and how ESE students should be expected to respond, and whether a parent or advisor could help them craft responses. One commenter suggested that the proposed rules ought to expressly provide that a school should take account of the English proficiency of the parties involved in a sexual harassment complaint. Another commenter suggested that the final regulations should address instances where a young student alleges sexual harassment, but their parent is unsupportive or uninvolved in the student’s life and thus does not adequately help the student through the process. One commenter suggested that all cases of sexual harassment involving an ESE institution ought to begin with informal resolution processes to avoid the allegedly lengthy and onerous grievance processes. Another commenter suggested that a school ought to have a duty to appoint an advocate or trauma-informed counselor for every student alleging sexual harassment. Other commenters suggested that some provisions be clarified. For instance, commenters suggested that it be unambiguously expressed that live hearings are not required at the ESE level. Commenters also suggested an unambiguous provision about emergency removal being acceptable where a school determines that an imminent threat to health or safety exists in an ESE school. Another commenter suggested that parental rights should be more clearly spelled out than in the proposed regulations. One commenter suggested that OCR issue sub-regulatory guidance to aid ESE institutions in understanding the final regulations. Discussion: As discussed in the ‘‘Section 106.45(b)(6)(ii) Elementary and Secondary School Recipients May Require Hearing and Must Have Opportunity to Submit Written Questions’’ subsection of the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, we have revised § 106.45(b)(6)(ii) in line with commenters’ request to more clearly state that an elementary and secondary school recipient is not required to hold hearings to adjudicate formal complaints, and the aforementioned preamble discussion explains that if an ESE recipient does choose to hold a hearing (live or otherwise), these final regulations do not prescribe the procedures that must E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations occur at such a hearing held by an ESE recipient (e.g., cross-examination need not be provided), and that preamble discussion also addresses commenters’ concerns and questions about what the written submission of questions process must, and may, consist of under § 106.45(b)(6)(ii). As noted previously, we have added § 106.6(g) to expressly acknowledge the legal rights of parents or guardians to act on behalf of parties during a Title IX grievance process. Where a young student’s parent is unsupportive or unable to assist the student, the student is still entitled to an advisor of choice (under § 106.45(b)(5)(iv)) and nothing in the final regulations precludes a recipient from adopting a policy of offering to provide an advisor to students, as long as such a policy makes a recipient-offered advisor equally available (on the same terms) to complainants and respondents, per the revised introductory sentence of § 106.45(b). As noted previously, nothing in the final regulations precludes a recipient from training its Title IX personnel in trauma-informed approaches as long as such training also complies with the requirements in § 106.45(b)(1)(iii). The final regulations expressly acknowledge that recipients may need to adjust a grievance process to provide language assistance for parties; see § 106.45(b)(1)(v). For reasons discussed in the ‘‘Informal Resolution’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, we decline to require parties to attempt informal resolution prior to commencing the grievance process; we believe that the parties should only engage in informal resolution when that choice is the result of each party’s voluntary, informed, written consent.1751 We reiterate that a parent or guardian’s legal right to act on behalf of a complainant or respondent extends to every aspect of a grievance process, which would include deciding whether to voluntarily consent to participate in informal resolution. The Department believes that § 106.44(c) authorizing emergency removals of respondents who pose an imminent threat to the physical health or safety of one or more individuals appropriately addresses the need for ESE recipients to respond quickly and effectively to emergency risks that arise out of sexual harassment allegations. 1751 We have revised § 106.45(b)(9) regarding informal resolutions to preclude a recipient from offering or facilitating informal resolution to resolve allegations that an employee sexually harassed a student. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 That provision applies equally to all recipients, including ESE recipients. The Department will offer technical assistance to recipients, including ESE recipients, regarding implementation of these final regulations. However, for reasons described in the ‘‘Notice and Comment Rulemaking Rather than Guidance’’ section of this preamble, the Department believes that legally binding regulations will be more effective than Department guidance with respect to enforcing recipients’ Title IX obligations. Changes: None. Comments: One commenter stated that the proposed rules create a separate process for one type of discrimination but do not impose the same requirements for other types of discrimination, and elementary and secondary school districts already have age appropriate procedures in place to respond to claims of all types of discrimination. One commenter asserted that postsecondary institutions have significantly more resources than elementary and secondary schools and argued that the proposed rules should be tested at the postsecondary level prior to implementation in elementary and secondary schools. One commenter asserted that the proposed rules are problematic in the elementary and secondary school context because many of the school districts in the commenter’s State are small, with one administrator acting as Title IX Coordinator, who is typically the school district superintendent. The commenter stated that decisions regarding responsibility for behavioral violations and disciplinary actions, however, are typically left to school principals who are directly accountable for students. The same commenter asserted that implementing the proposed rules will be costly for small school districts, which will need to train additional staff and contract with thirdparty investigators. Discussion: These final regulations specifically address sexual harassment as a form of sex discrimination and are based on the premise that sexual harassment must be addressed through a specific grievance process, whether or not that process is also applied with respect to other types of discrimination. The ‘‘prompt and equitable’’ grievance procedures described in § 106.8 must be used to resolve complaints of sex discrimination, while the grievance process in § 106.45 must be used to resolve allegations of sexual harassment in formal complaints. The Department’s regulations under Title VI describe the process for addressing discrimination PO 00000 Frm 00467 Fmt 4701 Sfmt 4700 30491 based on race, color, and national origin. Different types of discrimination may require a different process, and a recipient is not required to address discrimination on the basis of race (for instance, under Title VI) in the same manner as sexual harassment under these final regulations implementing Title IX.1752 The Department disagrees that all elementary and secondary school districts have age-appropriate procedures to respond to allegations of sexual harassment as well as all other types of discrimination. Numerous commenters described experiences with ESE recipients who have not responded supportively and/or fairly to sexual harassment allegations, and the Department seeks to hold ESE recipients accountable for meeting legally binding response obligations under these final regulations. We disagree that all postsecondary institutions have more resources than elementary and secondary schools. The Department notes that these final regulations apply to smaller and larger postsecondary institutions. The Department disagrees that these final regulations should be tested in postsecondary institutions before being applicable to elementary and secondary schools because the final regulations have different requirements for postsecondary institutions than for elementary and secondary schools where appropriate, and require all recipients to respond supportively and fairly to sexual harassment in recipients’ education programs or activities. Testing these final regulations at postsecondary institutions will not necessarily result in a better outcome for elementary and secondary schools. There also should be some uniformity or similarity among recipients, whether elementary and secondary schools or postsecondary institutions, in addressing the same type of sex discrimination in the form of sexual harassment. The Department disagrees that these final regulations are unduly burdensome for smaller elementary and secondary schools. The Department does not require any recipient to use third-party investigators or otherwise to hire contractors to perform a recipient’s investigation and adjudication responsibilities under these final regulations. Any recipient, irrespective of size, may use existing employees to fulfill the role of Title IX Coordinator, investigator, and decision-maker, as long as these employees do not have a 1752 For further discussion see the ‘‘Different Standards for Other Harassment’’ subsection of the ‘‘Miscellaneous’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 30492 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations conflict of interest or bias and receive the requisite training under § 106.45(b)(1)(iii). These final regulations provide essential safeguards for complainants and respondents, and these safeguards should not be sacrificed due to concerns of administrative burden or financial cost. We note throughout this preamble areas in which the Department has revised these final regulations to relieve administrative burdens where doing so preserves the intention of important provisions of the grievance process (for example, § 106.45(b)(5)(vi) removes the requirement that evidence subject to the parties’ inspection and review be electronically sent to parties using a file sharing platform that restricts downloading and copying, and now permits the evidence to be sent either in electronic format or hard copy). The Department is not aware of any State or local laws that directly conflict with these final regulations and discusses preemption and conflicts with State laws in greater detail in the ‘‘Section 106.6(h) Preemptive Effective’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. Changes: None. Directed Question 2: Application Based on Type of Recipient or Age of Parties Comments: Numerous commenters stated that the proposed rules appropriately distinguished between ESE and PSE institutions, as opposed to distinguishing between students based on age. Some commenters noted that it would be difficult for schools to apply different procedures to different students, and it would be especially confusing when the students were different ages, such as 17 and 18. Commenters asserted that for multiparty allegations where both minors and adults are involved as both complainants or respondents, it would be hard for schools to know which policies to apply. Many commenters stated that once a student attends a PSE institution, the student should be treated as an adult for the purpose of the proposed rules. Some commenters cited FERPA in support of this proposition, contending that FERPA recognizes instances where ‘‘a student has reached 18 years of age or is attending an institution of postsecondary education.’’ Other commenters suggested that no system was perfect, but that using the institution that the student attends or employee works at is at least a rough proxy for which procedures should apply. One commenter asserted that since the real risk posed by the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 distinction between procedural regimes is having young children subject to procedures that are most effective for more sophisticated parties, the safer approach is to distinguish by institution, not age, since very few young children will be in a college setting. One commenter cited the varying school climates between ESE and PSE institutions as another reason that the distinction worked as a rough proxy for sophisticated parties. One commenter stated that it would do little good for the final regulations to distinguish parties by age, since the commenter argued that even two people who are over 18 can be in vastly different positional relationships to one another, in terms of power, authority, or mental development. Discussion: We appreciate the feedback offered by commenters, and the Department agrees that given the options, it is preferable to distinguish between the types of institution that are involved in a sexual harassment allegation rather than try to distinguish based on the ages of the parties involved. While no dividing line will ever be perfect, we expect that the line that the Department has chosen will minimize the situations where young students are subject to procedures conducted by a PSE institution, and we reiterate that even the most rigorous procedures required in PSE institutions (i.e., live hearings with crossexamination) may be applied in a manner that seeks to avoid retraumatizing any complainant, including a complainant who is underage.1753 Changes: None. Comments: Some commenters responded to the NPRM’s Directed Question 2 by disagreeing with the approach taken in the proposed rules, stating that it would be preferable to distinguish students and applicable grievance procedures by age, rather than the institution with jurisdiction over the incident. These commenters suggested that age, combined with maturity level, is the best way to determine whether a student ought to be subject to more sophisticated grievance procedures. Some commenters asserted that students who are under age 18 might be more likely to rely on their parents or guardians, who may be able to assist them with the process, whereas students over age 18 may not have the same ability. 1753 For further discussion see the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. PO 00000 Frm 00468 Fmt 4701 Sfmt 4700 Other commenters defended the use of age as a dividing line, stating that some very young students go to college if they advance swiftly through elementary and secondary school. Commenters also stated that students who are over age 18 have vastly different mental maturity and developmental abilities than those under age 18, although commenters did say that some individuals with neurodevelopmental disabilities who are over age 18 should not be subject to crossexamination. Other commenters asserted that it would be strange to have teachers and other employees at ESE institutions receive fewer due process rights than PSE employees, given that these individuals may need access to the same grievance procedures to ensure a fair hearing. For instance, the commenter suggested that it was anomalous to offer a professor the right to have their advisor cross-examine a complainant who was 17 years old, but enrolled in college, whereas a teacher accused by an 18 year old senior in an ESE setting would have no such right. Indeed, where two employees at an ESE institution are involved, commenters asserted, it is not clear why the parties are not entitled to the full breadth of the grievance procedures, since both are presumably sophisticated parties. Discussion: The Department appreciates this feedback and acknowledges that any dividing line may lead to anomalous results in some cases. We believe, however, that the final regulations can best ameliorate those situations by structuring the distinction in certain procedural requirements as between ESE and PSE institutions, rather than by the ages of involved parties. Nothing in the final regulations, however, prevents schools from, for example, holding live hearings at the ESE level when both parties are employees or over age 18. We agree with commenters who stated that requiring an institution to vary its procedures based on the ages of the parties would likely lead to undue confusion, particularly where the parties are of different ages, or where multi-party allegations occur. We note that § 106.6(g), acknowledging the legal rights of parents and guardians to act on behalf of parties in a Title IX grievance process, does not differentiate between when a parent or guardian’s rights apply to an ESE student versus a PSE student, except to recognize that application of parental rights must also be consistent with FERPA. Changes: None. Comments: Commenters stated that informal resolution is not appropriate at E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the ESE level, especially in cases involving a teacher who is accused of sexual harassment. Since adults sometimes groom their victims for sexual abuse, commenters argued that it would be inappropriate and harmful to permit a teacher to escape the grievance process by going through mediation or another informal resolution process when the ‘‘choice’’ to participate in informal resolution may not be truly voluntary on the part of the young victim. Discussion: The Department is persuaded by commenters’ concerns that grooming behaviors make ESE students susceptible to being pressured or coerced into informal resolution processes, and we have revised § 106.45(b)(9) to preclude all recipients from offering or facilitating informal resolution processes to resolve allegations that an employee sexually harassed a student. Changes: As discussed elsewhere in this preamble, we have revised § 106.45(b)(9)(iii) to prohibit ESE recipients (or any other recipients) from providing an informal resolution process to resolve allegations that an employee sexually harassed a student. Comments: Some commenters stated that the proposed rules should be revised to more consciously address students who are dual-enrolled in high school and college. Commenters asserted, for instance, that the PSE procedures (i.e., live hearings with cross-examination) should not apply to students who are minors, even if they are dual-enrolled in postsecondary institutions. Other commenters argued that the final regulations should be changed to focus more on age distinctions, but only for specific processes, such as cross-examination, which some commenters asserted would be fine for students over age 18. Some commenters suggested that a PSE institution ought to at least have the flexibility to apply the ESE grievance procedures for instances where all of the parties were dual-enrolled, or where all of the parties were minors. Some commenters responded to the directed question by suggesting even further breakdowns of students; for example, that the full grievance procedures should only apply to students who are adults and who are in a PSE setting; another set of procedures should apply to students in grades four through 12; and another set of procedures should apply to students in grades three and below. Other commenters responded to the directed question by proposing other modifications to the proposed rules. One commenter suggested that PSE VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 schools be able to adopt separate policies for individuals who are in their education program or activity, but who are not students or employees. These might include, according to the commenter, students who are merely enrolled at the PSE institution for athletic camp, 4–H programs, daycare students, or other individuals who are not taking normal college courses at the PSE institution. The commenter suggested that this was particularly appropriate where State law might already address these situations, such as when a daycare is operated on a PSE campus. Discussion: The Department appreciates this feedback but declines to make any changes to the final regulations based on these comments. In these final regulations, we seek to balance competing interests to adequately make Title IX processes consistent, predictable, and understandable for all parties, at all types of educational institutions, as well as in the context of recipients who operate education programs or activities but are not educational institutions (for example, some museums and libraries are recipients of Federal financial assistance covered under Title IX). The commenters’ suggestions would involve making further distinctions between students, than the differences acknowledged in the final regulations between ESE and PSE recipients. The more exceptions that are made to what is largely a uniform rule, the less likely it is that students and employees will know what to expect with respect to reporting sexual harassment and their school’s response to such a report, including what a grievance process will look like if a formal complaint is filed, and it could become more difficult for recipients to apply these final regulations in a consistent, transparent manner. The distinctions the final regulations do make between elementary and secondary schools, and postsecondary institutions, are those distinctions that the Department believes result in a consistent, transparent set of rules appropriately modified to take into account the generally younger ages of students in elementary and secondary schools.1754 Changes: None. 1754 For example, see the discussion in the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble regarding use of a live hearing model for adjudications in postsecondary institutions but not mandating hearings (live hearings or otherwise) for elementary and secondary schools or other recipients that are not postsecondary institutions. PO 00000 Frm 00469 Fmt 4701 Sfmt 4700 30493 Directed Question 5: Individuals With Disabilities Comments: While some commenters stated that the proposed rules adequately accounted for issues related to the needs of students and employees with disabilities, many commenters raised concerns and objections based on obstacles students with disabilities currently face in the context of Title IX proceedings, and expressed general opposition on the ground that the proposed rules fail to take into account the different needs, experiences, and challenges of students with disabilities. A few commenters suggested that the Department seek the counsel of, and defer to, organizations and professionals well-versed in issues faced by individuals with disabilities, so that the needs of individuals with disabilities are accommodated in all phases of a Title IX process. Several commenters stated that students with invisible disabilities such as ADHD (attention-deficit/ hyperactivity disorder), autism, and anxiety disorder, do not currently receive the resources and supports specific to their unique needs during Title IX proceedings. Some commenters presented personal stories of how their disabilities, or those of their children or students they know, were not accommodated during Title IX investigations and hearings. Some commenters were concerned about a recipient’s apparent discretion to provide appropriate reasonable accommodations individuals with disabilities during the investigation and adjudication process. Some commenters stated that their disability, or the disability of their child, would make the grievance process too difficult to undergo, and would result in fewer people with disabilities being able to report, which may even lead to more suicides. Some commenters believed the proposed rules failed to consider the need for accommodations for respondents with disabilities, particularly those on the autism spectrum, and that it is important that communications with those students are made in a manner that is clearly understandable to those students. Commenters asserted that many respondents with disabilities are not informed or aware that their rights under disability law also are available to them in a Title IX disciplinary proceeding. One commenter suggested, for example, that all Title IX-related communications, such as emails, should have a bold print statement of protection for students with disabilities. E:\FR\FM\19MYR2.SGM 19MYR2 30494 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Commenters noted that effective communication is essential to protect the rights of respondents who have disabilities, particularly communication disorders such as autism, nonverbal learning disorders, and expressive and receptive language disorders. Commenters stated that such students often lack appropriate social skills, do not understand nonliteral language, desperately want to ‘‘fit in,’’ are terrified of persons with authority, are quick to apologize for fear of ‘‘getting in trouble’’ and generally can be very manipulated as they are very misunderstood, and that these factors may lead to unfairly holding such students responsible for sexual harassment when a student may not actually be responsible. Several commenters stated that there is inadequate coordination between Title IX offices and disability services offices when a student with an invisible disability becomes involved in a Title IX proceeding, as either a complainant or a respondent. Often, commenters stated, students are unaware of either the necessity of receiving accommodations from disability services or of the necessity of waiving their privacy rights to allow the two offices to communicate. Some commenters stated that institutions of higher education should coordinate with their offices of disability services to identify students with disabilities who are involved in Title IX proceedings (while respecting student privacy rights), and should disseminate Title IX information in ways that are accessible to all students (including ensuring that websites are accessible and that information is provided in plain language for students with intellectual disabilities). Commenters asserted that failure of a student to access disability services can result in the complainant or respondent being placed at a distinct disadvantage during the Title IX proceedings. Some commenters suggested that one way to connect the university’s disability services with the Title IX office might be to have students who may need accommodations provide advance permission for a disability office to consult with a disciplinary office (including a Title IX office) should the student be subjected to a disciplinary proceeding, thereby alerting the Title IX office to the student’s disability and ensuring the student’s disability rights are protected. Discussion: The Department appreciates that some commenters believed that the proposed rules adequately accounted for issues faced by students and employees with disabilities, and understands the concerns from other commenters that VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the final regulations should more fully and expressly account for the needs, experiences, and challenges of students with disabilities. The Department appreciates that many stakeholders representing the interests of individuals with disabilities participated in the public comment process, and appreciates the opportunity here to emphasize the importance of recipients complying with all applicable disability laws when meeting obligations under these final regulations. The Department understands that a grievance process may be difficult to undergo for many students, regardless of disability status, and that such a process may be more challenging to navigate for individuals with disabilities. In response to commenters’ concerns, we have revised § 106.44(a) to require recipients to offer supportive measures as part of a prompt, non-deliberately indifferent response any time a recipient has notice of sexual harassment or allegations of sexual harassment against a person in the United States, in the recipient’s education program or activity. This prompt response must include the Title IX Coordinator promptly contacting the complainant (i.e., the person alleged to be the victim of conduct that could constitute sexual harassment, regardless of who reported the sexual harassment to the recipient) to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. The process for offering supportive measures after considering the complainant’s wishes is an interactive process that is not unlike the interactive process that the ADA requires. By ensuring that each complainant is offered supportive measures regardless of whether the reported incident results in a grievance process, more complainants, including individuals with disabilities, can feel safe reporting without fearing that a report automatically leads to participation in a grievance process.1755 The Department appreciates the descriptions from commenters of the importance of clear communication with students with disabilities, particularly those on the autism 1755 Supportive measures are also available for respondents. See § 106.30 (defining ‘‘supportive measures’’ to include services provided to respondents); § 106.45(b)(1)(ix) (ensuring that parties are informed of the type of supportive measures available to complainants and respondents). PO 00000 Frm 00470 Fmt 4701 Sfmt 4700 spectrum, and the importance that students understand that their rights under disability laws apply during a Title IX proceeding. The Department appreciates the opportunity to emphasize here that recipients must meet obligations under these final regulations while also meeting all obligations under applicable disability laws including the IDEA, Section 504, and the ADA. With respect to the intersection between these Title IX final regulations, and disability laws under which the Department has enforcement authority, the Department will continue to offer technical assistance to recipients. The Department acknowledges commenters’ concerns noting that a student with a disability may need to interact with separate offices within a recipient’s organizational structure (e.g., a disability services office, and a Title IX office). The Department emphasizes that recipients must comply with obligations under disability laws with respect to students, employees, or participants in a Title IX reporting or grievance process situation, regardless of the recipient’s internal organizational structure. These final regulations, which concern sexual harassment, do not address a recipient’s obligations under the ADA and do not preclude recipients from notifying students involved in a Title IX grievance process that the students may have rights to disability accommodations. To the extent that disability accommodations may overlap with supportive measures or remedies required under Title IX, the Department notes that if an accommodation involves a Title IX supportive measure or remedy, the final regulations specify that the Title IX Coordinator is responsible for the effective implementation of such supportive measures (§ 106.30 defining ‘‘supportive measures’’) and remedies (§ 106.45(b)(7)(iv) as added in the final regulations). These requirements are intended, in part, to ease the burden on a student in need of the supportive measure or remedy to receive the needed service especially when doing so involves coordination of multiple offices within the recipient’s organizational structure (for example, when a supportive measure involves changing a dorm room assignment and doing so through the housing office, and a student with a disability needs to ensure a housing unit modified to accommodate a disability, or when a remedy involves re-taking an exam and doing so through an academic affairs office). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Changes: We have revised § 106.44(a) to require recipients to offer supportive measures as part of a prompt, nondeliberately indifferent response to sexual harassment, and to require the recipient’s Title IX Coordinator to promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. Section 106.45(b)(7)(iv) now provides that Title IX Coordinators are responsible for the effective implementation of remedies. Comments: Some commenters expressed concern that the proposed rules would harm students with disabilities and make them more invisible and vulnerable to sexual abuse because they might not know the types of touching that are appropriate or inappropriate to come forward to the designated school employee on their own. Several commenters stated that students with disabilities that limit their ability to communicate may find it even more difficult to discuss incidents of a sexual nature. People with significant intellectual disabilities may not understand what is happening or have a way to communicate the sexual assault to a trusted person. Some commenters expressed concern that the proposed rules would isolate students with disabilities because a recipient’s disability office may no longer be required to report a sexual assault. Some commenters stated that the proposed rules discriminate against survivors with developmental disabilities, who are more vulnerable to sexual abuse and that such a disability might prevent such individuals from being able to communicate with school officials and provide evidence for their case. For example, commenters suggested, a student with a disability may only be comfortable communicating sensitive issues to their own teacher(s), and in some cases may only be able to communicate with appropriately trained special education staff. Other students, commenters asserted, with less significant disabilities, may realize they are being assaulted, but do not know they have a right to say no. In addition, they are rarely educated about sexuality issues (including consent) or provided assertiveness training. Even when a report is attempted, such students face barriers when making statements to police because they may not be viewed VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 as credible due to having a disability. Some people with intellectual disabilities also have trouble speaking or describing things in detail, or in proper time sequence. Other commenters stated that people with disabilities may also face challenges in accessing services to make a report in the first place; for example, someone who is deaf or deaf-blind may face challenges accessing communication tools, like a phone, to report the crime or get help. Discussion: The Department appreciates commenters’ concerns that students with disabilities may have challenges comprehending the types of touching that are inappropriate or understanding they have a right to say ‘‘no,’’ identifying when they have been sexually harassed, or communicating about an incident, and concerns that some students with disabilities are more vulnerable to sexual abuse than peers without the same disabilities. While the Department does not control school curricula and does not require recipients to provide instruction regarding sexuality or consent, nothing in these final regulations impedes a recipient’s discretion to provide educational information to students. Although the Assistant Secretary will not require recipients to adopt a particular definition of consent with respect to sexual assault, a recipient’s definition of consent should not violate any disability laws, and the Department will continue to enforce the disability laws that it is authorized to enforce. The Department also wishes to emphasize that a recipient’s obligation to respond to sexual harassment incidents does not depend on the reporting complainant using specific or particular language to describe an experience that may constitute Title IX sexual harassment. The Supreme Court has noted that whether conduct rises to the level of actionable harassment depends on a ‘‘constellation of surrounding circumstances, expectations, and relationships’’ including but not limited to ‘‘the ages of the harasser and the victim . . . .’’ 1756 Similarly, recognizing whether a student has disclosed a Title IX sexual harassment incident includes taking into account any disability the reporting student may have that may affect how that student describes or communicates about the incident. In response to commenters concerned that younger students, whether because of age, development, or disability, reasonably cannot be expected to report 1756 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 651 (1999) (internal citations omitted). PO 00000 Frm 00471 Fmt 4701 Sfmt 4700 30495 to a school’s Title IX Coordinator, the final regulations expand the definition of a recipient’s actual knowledge to include notice to any elementary or secondary school employee. Thus, in an elementary or secondary school context, the school’s response obligations are triggered when, for instance, an employee in the school’s disability office, or the teaching aide of a student with disabilities, has notice of a Title IX sexual harassment incident. These final regulations therefore expand the pool of school employees to whom any complainant, including a student with a disability, may disclose sexual harassment and expect the school to respond as required under Title IX, whether the student reports to a particular employee due to feeling more comfortable or due to only being able to communicate with special education staff. With respect to commenters’ concerns that individuals with certain disabilities may face challenges accessing communication tools, such as a phone or website, when trying to report a Title IX sexual harassment incident, the Department reiterates that recipients must meet obligations under these final regulations while also meeting all obligations under applicable disability laws including the IDEA, Section 504, and ADA, including with respect to accessibility of websites and services. With respect to the intersection between the Title IX final regulations and disability laws under which the Department has enforcement authority, the Department will continue to offer technical assistance to recipients. Changes: We have revised § 106.30 to expand the definition of ‘‘actual knowledge’’ to include notice to any employee of an elementary or secondary school. Comments: Commenters stated that the proposed rules seemed concerned with the rights and needs of respondents with disabilities (for instance, by expressly referencing the IDEA and ADA in the emergency removal provision in § 106.44(c) that applies to removing a respondent), but not with the rights and needs of students with disabilities who are sexually harassed, and commenters stated that these students face unique challenges that would be intensified if the proposed rules were implemented. Commenters asserted that some disabilities may put people at higher risk to be victims of crimes like sexual assault or abuse, for example because someone who needs regular assistance may rely on a person who is abusing them for care, and may be more likely to suffer physical and mental illnesses E:\FR\FM\19MYR2.SGM 19MYR2 30496 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations because of violence. Other commenters noted that students with disabilities already face unfair challenges such as removal from classes because of disproportionate discipline. Commenters also stated that people hold negative stereotypes about students with disabilities (such as being childlike for life, or sexually deviant) that make Title IX proceedings more difficult. Commenters stated that students with disabilities are less likely to be believed when they report and often have greater difficulty describing the harassment they experience, and that students with disabilities who also identify as members of other historically marginalized and underrepresented groups, such as LGBTQ individuals or persons of color, are more likely to be ignored, blamed, and punished when they report sexual harassment due to harmful stereotypes that label them as ‘‘promiscuous.’’ Discussion: To the extent that some commenters misconstrue the final regulations to consider only the rights and needs of students with disabilities who are accused of sexual harassment and not the unique challenges facing students with disabilities who are sexually harassed, the Department appreciates the opportunity to clarify that recipients must comply with all disability laws protecting the rights and accommodating the needs of students (and employees) with disabilities regardless of whether such students (and employees) are complainants or respondents in a Title IX sexual harassment situation. The Department also notes that § 106.44(a) has been revised to require recipients to provide supportive measures as part of its prompt and non-deliberately indifferent response to sexual harassment, and the Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. All complainants, including complainants with disabilities, will receive the benefit of supportive measures under § 106.44(a). The Department acknowledges that some disabilities may put people at greater risk of being sexually assaulted or abused and that individuals with disabilities may be more likely to suffer physical or mental illness due to violence. The final regulations prescribe a consistent framework for a recipient’s VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 response to Title IX sexual harassment for the benefit of every complainant, including individuals with disabilities and other demographic populations who may be at higher risk of sexual assault than the general population. To the extent that commenters accurately describe negative stereotypes applied against students with disabilities, and particularly against students with disabilities who are also students of color or LGBTQ students, the final regulations expressly require recipients to interact with every complainant and every respondent impartially and without bias. A recipient that ignores, blames, or punishes a student due to stereotypes about the student violates the final regulations. We have revised § 106.45(b)(1)(iii) prohibiting Title IX Coordinators, investigators, decisionmakers, and persons who facilitate informal resolutions, from having conflicts of interest or bias against complainants or respondents generally, or against an individual complainant or respondent, by requiring training that also includes ‘‘how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.’’ No complainant reporting Title IX sexual harassment should be ignored or met with judgment or disbelief, and the final regulations obligate recipients to meet response obligations impartially and free from bias. The Department will vigorously enforce the final regulations in a manner that holds recipients responsible for acting impartially without bias, including bias based on an individual’s disability status. In further response to commenters’ concerns that harmful stereotypes may also lead a recipient to unfairly punish students with disabilities reporting sexual harassment allegations, the Department has added § 106.71(a) to expressly prohibit retaliation and specifically stating that charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations, constitutes retaliation. This section is intended to draw recipients’ attention to the fact that punishing a complainant with non-sexual harassment conduct code violations (e.g., ‘‘consensual’’ sexual activity when the complainant has reported the activity to be nonconsensual, or underage drinking, or PO 00000 Frm 00472 Fmt 4701 Sfmt 4700 fighting back against physical aggression) is retaliation when done for the purpose of deterring the complainant from pursuing rights under Title IX. The Department notes that this provision applies to respondents as well. Changes: We have revised § 106.45(b)(1)(iii) to include in the required training how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. Additionally, we have added § 106.71(a), prohibiting retaliation and stating that charging an individual with a code of conduct violation that does not involve sexual harassment but arise out of the same facts or circumstances as sexual harassment allegations, for the purpose of interfering with rights under Title IX, constitutes retaliation. Comments: Some commenters asserted that even in the higher education context cross-examination would inhibit individuals with disabilities from receiving equal access to the process. These commenters asserted that the proposed rules made no exception for individuals with disabilities who would require a reasonable modification of the live cross-examination requirement in order to testify in the proceeding, so the required live cross-examination would place undue burden on individuals with various types of disabilities or force recipients to violate Section 504 or the ADA. For example, individuals with psychiatric disabilities such as posttraumatic stress disorder, social anxiety disorder, or generalized anxiety disorder are at particular risk of having their symptoms exacerbated by such a live cross-examination process, potentially causing serious harm to their wellbeing and their ability to function in interpersonal and academic environments. Additionally, commenters stated, individuals with various other disabilities, especially those who utilize various verbal and nonverbal communication methods and/or who have disabilities impacting their receptive or expressive language, may also feel undue pressure of needing to present details as evidence in such a time-constrained environment. Discussion: The Department reiterates that recipients must meet obligations under these final regulations while also meeting all obligations under applicable disability laws including the IDEA, Section 504, and ADA. It is unnecessary to specify as an ‘‘exception’’ to the live hearing requirements in § 106.45(b)(6)(i) that recipients must also comply with disability laws. The Department notes E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations that § 106.45(b)(1)(v) expressly contemplates that good cause for temporary delays or limited extensions of time frames relating to a grievance process may include ‘‘the need for language assistance or accommodation of disabilities.’’ With respect to the intersection between the Title IX final regulations and disability laws under which the Department has enforcement authority, the Department will continue to offer technical assistance to recipients. Changes: None. Comments: Some commenters argued that the proposed rules fail to recognize the difference between the procedural requirements elementary and secondary school students have under the IDEA and how Title IX, the ADA, and Section 504 each distinctively require equal educational opportunity for all students with disabilities at all levels (elementary, secondary, and postsecondary institutions that receive Federal funds). Some commenters asserted that many students will be denied access to free appropriate public education (FAPE) under the IDEA if bullying is carved out of the definition of sexual harassment, and that school districts should have the flexibility to investigate allegations of sexual harassment and impose disciplinary consequences in accordance with school district policies, as well as to determine what additional supports and services may be necessary to ensure a safe and welcoming environment for all students. Other commenters stated that an incident under Title IX may also trigger a need for an individualized education plan (IEP) team to meet to discuss behavior modifications. Some commenters requested that the final regulations clarify that segregation of elementary and secondary school students with disabilities from classroom settings should be rare and only allowed when in compliance with IDEA; that recipients must be made aware that a student with a disability does not have to be eligible for FAPE in order to be protected under the disability laws; and that, although IDEA may have additional requirements to provide FAPE, recipients must not be misled into thinking there are different standards for elementary and secondary school and postsecondary education environments when it comes to equal access to educational opportunities. Discussion: The Department reiterates that recipients, including elementary and secondary schools and postsecondary institutions, must meet obligations under the final regulations while also meeting all obligations under applicable disability laws including the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 IDEA, Section 504, and ADA. With respect to the intersection between these Title IX final regulations, and disability laws under which the Department has enforcement authority, the Department will continue to offer technical assistance to recipients. Recipients’ obligation to comply both with these final regulations and with disability laws applies to all aspects of responding to a Title IX sexual harassment incident including investigation, discipline, and segregating elementary and secondary school students with disabilities from classroom settings. Nothing in these final regulations precludes or impedes a recipient from determining what services may be necessary to ensure a safe, welcoming environment for all students. The Department does not fully understand the commenter’s concern that bullying will be ‘‘carved out’’ of the definition of Title IX sexual harassment. Section 106.30 defining sexual harassment for Title IX purposes does not reference bullying or carve it out. To the extent that conduct understood as ‘‘bullying’’ is also conduct on the basis of sex that meets the definition in § 106.30, such conduct is also Title IX sexual harassment. Additionally, these final regulations expressly prohibit retaliation in § 106.71, and to the extent that ‘‘bullying’’ constitutes retaliation as defined in § 106.71(a), such conduct is strictly prohibited. Changes: None. Comments: Some commenters asserted that students with disabilities are improperly accused and mistreated in Title IX hearings in the elementary and secondary school and college settings, where their due process rights are often ignored, and they are not treated equitably. One commenter expressed concern that the grievance procedures outlined in the proposed rules rely heavily on a written communication modality, which may mean that individuals with communication disorders and disabilities, may not have access to the complaint process and suggested that the proposed rules should be revised to include other modalities, such as oral, manual, augmentative and alternative communication (AAC) techniques, and assistive technologies, that allow individuals with disabilities and individuals who rely on AAC technology to use unaided systems such as gestures, facial expressions, or sign language, or they may use basic aided systems including picture boards or high-tech aided systems such as speechgenerating devices. Several commenters expressed concern that § 106.45(b)(7) (prescribing what a written PO 00000 Frm 00473 Fmt 4701 Sfmt 4700 30497 determination regarding responsibility must include) does not adequately protect students with disabilities. Some commenters stated that institutions of higher education should coordinate with their offices of disability services to identify students with disabilities who are involved in Title IX proceedings (while respecting student privacy rights), and disseminate Title IX information in ways that are accessible to all students (including website accessibility, and provided in plain language for students with intellectual disabilities). Commenters stated that electronic file sharing may create barriers for students with disabilities to review the materials confidentially, and that the proposed rules require documents in writing and other processes that are not accessible to many students with disabilities. Commenters stated that the final regulations should require recipients to be on notice that they must consider the unique needs of students with disabilities throughout the entire Title IX process, not just during an emergency removal determination (referring to § 106.44(c)). Some commenters specifically requested that recipients be instructed to provide training to any officials involved in Title IX proceedings (including any faculty or staff with reporting obligations under Title IX, and, per some commenters, campus police officers and per other commenters, all elementary and secondary school employees) that explicitly includes information about how to meet the needs of students with disabilities, the various ways in which students with invisible disabilities may behave as a complainant or respondent in a Title IX proceeding, and the intersection of Title IX, the ADA, and the IDEA. Similarly, commenters requested that the final regulations require schools to ensure that preexisting resource guides for students involved in Title IX proceedings also include specialized resources for students with invisible disabilities. Other commenters stated that institutions for higher education are not providing their faculty and staff with the necessary training for them to identify and accommodate the unique needs of students with invisible disabilities if one of these students were to become involved in a Title IX proceeding, as either a complainant or respondent. These commenters argued that as to prevention, due process, and supportive measures, there are numerous advantages in recognizing and addressing the intersection between students with disabilities and sexual E:\FR\FM\19MYR2.SGM 19MYR2 30498 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations harassment, both for alleged perpetrators and alleged victims. Commenters asserted that failure of a student to access disability services can result in the complainant or respondent being placed at a distinct disadvantage during the Title IX proceedings. Commenters suggested that one way to connect the university’s disability services with the Title IX office might be to have students who may need accommodations to provide advance permission for a disciplinary office to consult with the disability office, should the student be subjected to a disciplinary proceeding, thereby alerting the Title IX office of the student’s disability and ensuring the student’s disability rights are protected. Other commenters suggested that the Title IX office should provide all students with a notification form at the beginning of the process informing the student that if the student has a documented disability, the student may have the right to accommodations during the Title IX process, for example by modifying a university’s enrollment intake form to include the option: ‘‘If you are ever a party in any disciplinary proceeding on campus, do you give permission for the discipline officers to be given information about your disability and for the disability office to be notified?’’ Related to that waiver, some commenters requested that the Department instruct each school to properly inform students of their right to inform their parents about their involvement in a Title IX proceeding, and any additional ramifications that may arise from their decision to waive their confidentiality rights so as to ensure that any students exercise of such a waiver is done in an informed manner. Commenters also stated that the Department should expand the proposed rules to provide explicit support for complainants and respondents with disabilities, for example by allowing the presence of a ‘‘support person’’ separate and apart from the student’s Title IX advisor. Some commenters requested that the final regulations specify that recipients have an affirmative duty to communicate the nature of the allegation and inquire whether a person needs an accommodation in a way that people with an intellectual disability can understand and respond, and that campus police enforcing Title IX must be trained on how to interact with students with disabilities in ways that are not harmful to the learning environment. Some commenters stated that at small institutions of higher education there is VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 a conflict of interest if the Title IX investigator is also the ADA compliance officer, which diminishes the protection of students with disabilities. Some commenters stated that many colleges’ and universities’ Title IX offices do not have accessible facilities for students. Some commenters requested the Department consider how allowing parties to review even evidence the investigator deems irrelevant (§ 106.45(b)(5)(vi)) could result in disclosure of private disability-related information. Some commenters requested that other specific disability accommodations be described in the final regulations including: • accessible formatting of all written and recorded based documentation based upon the person’s individually specific needs; • adding language about accessible formatting of materials distributed by the recipient regarding Title IX information and relevant local resources; • the live hearing portion of this document should account for individuals with disabilities by guaranteeing accessible technology when separate room and same room hearings are conducted; • requiring recipients to offer reasonable accommodations to complainants who are unable to submit a written complaint due to, for example, a physical disability; • acknowledging that disabilityrelated accommodations may be necessary for any part of the proceeding that requires use of technology (such as the evidence review (§ 106.45(b)(5)(vi)) and testimony provided via video (§ 106.45(b)(6)(i)). Discussion: To the extent that commenters asserted that students with disabilities are improperly accused of Title IX violations due to the accused person having a disability, the Department notes that the definition of Title IX sexual harassment includes an element that the allegations constitute conduct that is ‘‘objectively offensive,’’ and that the Supreme Court has stated that application of the ‘‘severe, pervasive, and objectively offensive’’ portion of the definition ‘‘depends on a constellation of surrounding circumstances, expectations, and relationships . . . including, but not limited to, the ages of the harasser and the victim . . . .’’ 1757 The Department believes that any disability of the person accused (or of the person making the 1757 Davis, 526 U.S. at 651 (internal quotation marks and citations omitted). PO 00000 Frm 00474 Fmt 4701 Sfmt 4700 allegation) is also part of the ‘‘surrounding circumstances’’ to be taken into consideration when evaluating whether conduct meets the definition of sexual harassment. Even when conduct committed by a respondent with a disability constitutes sexual harassment (e.g., because the conduct constitutes sexual assault, or because the conduct is severe, pervasive, and objectively offensive), the Department does not second guess whether the recipient imposes a disciplinary sanction on a respondent who is found responsible for sexual harassment, and thus recipients have flexibility to carefully consider the kind of consequences that the recipient believes should follow in a situation where a respondent with a disability unintentionally committed conduct that constituted sexual harassment, perhaps not realizing the effect of the conduct on the victim. For example, the recipient could determine that counseling or behavioral intervention is more appropriate than disciplinary sanctions for a particular respondent. (We note that in such a circumstance, the complainant is still entitled to remedies designed to restore or preserve the complainant’s equal educational access.) To the extent that commenters have observed, or believe, that students with disabilities accused of sexual harassment often have their due process rights ignored, the final regulations do not permit disciplinary sanctions against any respondent for Title IX sexual harassment without the recipient first following the § 106.45 grievance process, which incorporates fundamental principles of due process. In response to the commenter’s concern that the grievance process relies heavily on a written communication modality, the Department reiterates that recipients must meet obligations under these final regulations while also meeting all obligations under applicable disability laws including the IDEA, Section 504, and ADA. Recipients’ obligations to comply both with these final regulations and with disability laws applies to all aspects of responding to a Title IX sexual harassment incident including throughout the § 106.45 grievance process. The Department is unsure what commenters mean by asserting that § 106.45(b)(7)(ii) (prescribing what a written determination regarding responsibility must include) does not adequately protect students with disabilities; this provision, along with § 106.45 in its entirety, applies equally to any party in a grievance process including individuals with disabilities, E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations and recipients are required to comply with § 106.45(b)(7)(ii) and to comply with applicable disability laws, including with respect to accessibility of written materials. Similarly, recipients must comply with § 106.45(b)(5)(vi) requiring recipients to send evidence to the parties while also complying with legal obligations under disability laws. The Department revised § 106.45(b)(5)(vi) to specifically provide that the recipient may provide the party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy format, and recipients should provide such evidence in a format that complies with any applicable disability laws. The Department appreciates commenters urging the Department to put recipients on notice that recipients must comply with applicable disability laws in all aspects of a Title IX response including throughout the grievance process, and not only with respect to removals under § 106.44(c), and the Department takes this opportunity to emphasize to recipients that such compliance is required. The Department declines to impose new requirements through these final regulations that recipients train employees on how to meet the needs of students with disabilities or training on recognizing the way students with invisible disabilities may behave as a complainant or respondent in a Title IX proceeding, or on the intersection of Title IX, the ADA, and the IDEA, or to provide resource guides that include specialized resources for students with invisible disabilities. Nothing in these final regulations precludes a recipient from providing employee training with respect to students with disabilities. In response to commenter’s concerns about bias against various groups (including bias stemming from negative stereotypes), we have revised § 106.45(b)(1)(iii) to require Title IX Coordinators, investigators, decisionmakers, and persons who facilitate an informal resolution process to be trained on how to serve impartially and avoid conflicts of interest and bias; such impartiality and avoidance of bias protect all parties including individuals with disabilities. As to questions regarding the intersection of Title IX, the ADA, and IDEA, the Department will continue to offer technical assistance to recipients who must comply with multiple laws under which the Department has enforcement authority. The Department acknowledges commenters’ concerns noting that a student with a disability may need to VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 interact with separate offices within a recipient’s organizational structure (e.g., a disability services office, and a Title IX office). The Department emphasizes that recipients must comply with obligations under disability laws with respect to students, employees, or participants in a Title IX reporting or grievance process situation, regardless of the recipient’s internal organizational structure. These final regulations, which concern sexual harassment, do not address a recipient’s obligations under the ADA and do not preclude recipients from notifying students involved in a Title IX grievance process or at the beginning of any Title IX process that the students may have rights to disability accommodations. With respect to allowing a ‘‘support person’’ to accompany a person with a disability during a grievance process, apart from an advisor of choice under § 106.45(b)(5)(iv), recipients must comply with any disability laws that require such an accommodation, and § 106.71(a), which requires recipient to keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as permitted by FERPA, required by law, or as necessary to conduct the grievance process. Thus, a recipient may be required under disability laws to permit a person with a disability to be accompanied throughout a grievance process by a support person, in addition to the party’s advisor of choice. Similarly, nothing in these final regulations precludes a recipient from affirmatively inquiring of each party whether any disability accommodation is needed, and recipients must comply with applicable legal obligations under disability laws including Child Find mandates under the IDEA. The Department notes that § 106.45(b)(1)(iii) prohibits conflicts of interest on the part of Title IX Coordinators, investigators, decisionmakers, or persons who facilitate informal resolution processes; however, the Department declines to prematurely judge whether or not a Title IX Coordinator also serving as a school’s ADA compliance officer presents a prohibited conflict of interest because such a determination is fact-specific. The Department will offer technical assistance to recipients regarding compliance with the final regulations. The Department reiterates that recipients must comply with applicable PO 00000 Frm 00475 Fmt 4701 Sfmt 4700 30499 disability laws in all aspects of a Title IX response including with respect to intake of reports and formal complaints, written communications with complainants and respondents, review of evidence under § 106.45(b)(5)(vi), and holding a live hearing with parties in separate rooms or holding live hearings virtually using technology in postsecondary institutions under § 106.45(b)(6)(i). With respect to the intersection between these Title IX final regulations, and disability laws under which the Department has enforcement authority, the Department will continue to offer technical assistance to recipients. Changes: The Department has revised § 106.45(b)(1)(iii) to include in the required training how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. The Department revised § 106.45(b)(5)(vi) to provide that recipients must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and we have removed the reference to a file sharing platform. Comments: Some commenters stated that recipients should be expected to carefully analyze their data on complainants and respondents with disabilities, and consider that information with respect to disproportionate outcomes and discipline for students by disability, race, sexual identity, sexual orientation, age, and other important demographics. Discussion: The Department does not disagree that analyzing data about a recipient’s Title IX grievance processes could provide the recipient with useful information that could help the recipient self-evaluate the fairness and effectiveness of its processes as well as the impact on various demographics of the recipient’s educational community. The Department, however, declines to burden recipients with the obligation to collect and analyze such data in these final regulations, the scope of which was defined by the Department’s proposals in the NPRM. These final regulations do not prohibit a recipient from engaging in such self-study or collecting data that will be useful for an assessment. The Department believes that these final regulations provide robust protections for complainants and respondents and that by complying with these final regulations, recipients will not discriminate on the basis of sex and will provide equal access to its education program or activities such that any self-assessment is not required in order to appropriately enforce Title IX, though self-assessment may be a E:\FR\FM\19MYR2.SGM 19MYR2 30500 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations valuable tool for recipients to undertake in the recipient’s discretion. Changes: None. Miscellaneous Executive Orders and Other Requirements Comments: Some commenters expressed concerns about the process for commenting electronically, both in terms of how the Department processed comments it received electronically and the functionality of the electronic system for submitting public comments, regulations.gov. With respect to how the Department processed comments, some commenters contended that the Department, in the NPRM, committed to posting, before the comment period ended, all of the public comments it received. One of these commenters referred to Administrative Conference of the United States (ACUS) recommendation 2018–6 (see 84 FR 2139) that encouraged agencies to allow access to comments already received to help inform others who are developing comments on the same proposed rule. With respect to the electronic commenting process, at least one commenter stated that the technical problems that regulations.gov experienced during the comment period prevented them from accessing the proposed rules as a reference for informing their public comment and that, consequently, there was a question as to the fairness of the commenting process. Some commenters expressed concern that the manner in which people must submit their comments is discriminatory, for example by race, class, educational status, ability status, and more. Commenters argued that the process for submitting public comments assumes that people write in EnglishStandardized English, leaving no room for dialects and vernaculars like African American Vernacular English, much less non-English languages, and assumes that people have a detailed understanding of the law and can comprehend the inaccessible way in which the proposed regulations were written. Discussion: The Department did not commit to electronically posting all of the comments it received before the comment period closed, and there is no legal requirement to do so. The language the commenter referred to is language we use in all of our NPRMs designed to inform interested parties that we provide avenues for review of all public comments, but that language did not specify that all comments received (and not yet posted) would be available to VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 review on regulations.gov before the comment period closed. The ACUS recommendation the commenter cited explicitly qualifies that an agency should post comments during the comment period ‘‘to the extent this is possible.’’ Reviewing and processing comments before they are posted takes time and resources, and the Department did so as expeditiously as possible. Regarding the concern that the NPRM was not available on regulations.gov on February 13–14 because of a server failure, the NPRM was available on regulations.gov from November 29, 2018, through February 12, 2019, and on February 15, the day when the comment period reopened. The Department originally provided a 60-day comment period for its proposed regulations that began on November 29, 2018, and the Department extended the comment period for two days until January 30, 2019,1758 and also reopened the comment period for one day on February 15, 2019.1759 We note that the outage the commenter referred to did not last for the entirety of February 13 and 14 and that www.regulations.gov was available for significant parts of both days. Additionally, the NPRM was available on other websites for viewing to help inform the development of comments, such as www.federalregister.gov and the Department’s website, on February 13– 14, 2019. The comment period for the proposed rules spanned a total of 63 days, which is longer than the 60-day comment period referenced in section 6(a) of Executive Order 12866. The Department followed applicable legal requirements for the manner in which public comments were submitted. The Department reviewed and considered comments submitted by any person regardless of race, class, educational status, ability status, or any other characteristic. The Department reviewed and considered comments regardless of whether a comment utilized language reflecting various dialects or vernaculars and regardless of whether a comment evidenced a detailed understanding of the law. Changes: None. Comments: At least one commenter stated that the Department failed to consult with the Department of Justice, the Small Business Administration (SBA), small entities, Native American tribes, and State and local officials pursuant to various laws and policies. Specifically, the commenter stated that Executive Order 12250 required the Department to obtain approval from the 1758 84 1759 PO 00000 FR 409. 84 FR 4018. Frm 00476 Fmt 4701 Sfmt 4700 Attorney General before we published the NPRM. The commenter also stated that the Department did not transmit a copy of the NPRM to the SBA’s Office of Advocacy (‘‘SBA Advocacy’’) which is required under § 603(a) of the Regulatory Flexibility Act. The commenter also claimed that the Department did not use of any of the reasonable techniques required under 5 U.S.C. 609(a) to assure that small entities have been given an opportunity to participate in the rulemaking. Similarly, the commenter stated that the Department did not consult with tribal officials under § 5(a) of Executive Order 13175, which the commenter believed was required because the NPRM proposed to regulate when and how tribally-operated schools will investigate and adjudicate complaints of sexual harassment. Lastly, the commenter stated that the Department did not consult with State and local officials as required under executive order. This commenter referenced a process that the Department allegedly used in 2000 to provide interested State and local elected officials opportunities for consultation through a biweekly electronic newsletter and to provide the National School Boards Association and others with opportunities for consultation through a listserv notification. The commenter stated that there was no language in the NPRM suggesting the Department complied with its internal process. In addition, the commenter stated that Executive Order 13132 requires the Department to consult with elected State and local officials ‘‘early in the process of developing the proposed regulation’’ under § 6(c)(1), and to publish a federalism summary impact statement under § 6(c)(2). Discussion: The Assistant Attorney General for Civil Rights reviewed the proposed rules and approved the NPRM to be published in the Federal Register in accordance with Executive Order 12250. Additionally, SBA Advocacy had the opportunity to review the NPRM and submitted a public comment, which we have addressed in this preamble, specifically in the ‘‘Regulatory Flexibility Act’’ subsection of the ‘‘Regulatory Impact Analysis’’ section of this document. Furthermore, 5 U.S.C. 609(a) applies only if a rule has a significant economic impact on a substantial number of small entities, and we have certified that this rule does not have such an impact. Even if § 609(a) applied, that section provides that one of the five techniques available to provide small entities the opportunity to participate in the rulemaking is to E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations publish the proposed rules in publications likely to be obtained by small entities. We published the NPRM in the Federal Register and specifically provided small entities the opportunity to comment on the proposed regulations. With regard to Native American tribal consultation, we note that the comment we received was not from a Native American tribe or from a representative of a Native American tribe. Nevertheless, section IV of the Department’s Consultation and Coordination with American Indian and Alaska Native Tribal Governments policy,1760 provides that the Department will conduct tribal consultation regarding actions that have a substantial and direct effect on tribes. The policy lists specific programs that serve Native American students or that have a specific impact on tribes and provides that for those programs, regulatory changes or other policy initiatives will often affect tribes, but for other programs that affect students as a whole, but are not focused solely on Native American students, the Department will include Native American tribes in the outreach normally conducted with other stakeholders who are affected by the action. Here, the action affects all students and entities in the U.S. equally and is not specifically impacting only tribes. Thus, Native American tribes had the same opportunity to comment on the proposed rules as other stakeholders. As previously noted in the ‘‘General Support and Opposition for the Grievance Process in § 106.45’’ section and the ‘‘Section 106.44(c) Emergency Removal’’ subsection of the ‘‘Additional Rules Governing Recipients’ Responses to Sexual Harassment’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble, at least one commenter stated that schools receiving funds from the Bureau of Indian Affairs are required to provide greater due process protections for students pursuant to Part 42 of Title 25 of the Code of Federal Regulations than what these final regulations require. Part 42 of Title 25 ‘‘govern[s] student rights and due process procedures in disciplinary proceedings in all Bureau-funded schools’’ and sets forth specific due process procedures and protections for all disciplinary proceedings in these schools.1761 The Department applauds the Bureau of Indian Affairs for 1760 U.S. Dep’t. of Education, Consultation and Coordination with American Indian and Alaska Native Tribal Governments Policy (‘‘Tribal Governments Policy’’) 2, https://www2.ed.gov/ about/offices/list/oese/oie/tribalpolicyfinal.pdf. 1761 25 CFR 42.1. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 requiring robust due process protections in disciplinary proceedings for students in Bureau-funded schools. To the extent that the regulations governing Bureaufunded schools may include due process protections that exceed what these final regulations require, such additional due process protections do not contradict these final regulations. There is no direct conflict between what these final regulations require and what the regulations governing Bureaufunded schools require, and nothing prevents a Bureau-funded school from complying with both these final regulations and the regulations in Part 42 of Title 25. Accordingly, these final regulations ‘‘would [not] have a substantial direct effect on Indian educational opportunities’’ such as to necessitate consultation with tribes under section IV of the Department’s Consultation and Coordination with American Indian and Alaska Native Tribal Governments policy.1762 The same commenter who supported the Department’s proposal for increased due process protection asserted that all students, and not just Native American students, should receive the due process protections required for Bureau-funded schools and suggested that not providing more robust due process protections may violate Title VI. The Department appreciates the commenter’s concern but notes that Title IX does not apply only to students in schools, whether elementary and secondary schools or postsecondary institutions. Not all recipients of Federal financial assistance are schools; recipients covered under Title IX include, for instance, museums and libraries that operate education programs or activities. Additionally, these final regulations specifically address sexual harassment and do not affect all student disciplinary proceedings. Title IX applies to all education programs or activities that receive Federal financial assistance,1763 and impacts students, employees, and third parties. These final regulations provide the most appropriate due process protections for a wide variety of recipients and individuals whom Title IX affects. The Department is not discriminating based on race, color, or national origin in promulgating these final regulations, but is requiring due process protections that will affect students, employees, and third parties in an education program or activity of recipients that may, for example, include schools, libraries, museums, and academic medical centers, among other types of recipients. Some commenters’ suggestion that Executive Order 13132, 64 FR 43255 (Aug. 10, 1999), requires the Department to have consulted with State and local officials before issuing the NPRM is inaccurate. That Order’s goal was ‘‘to guarantee the Constitution’s division of governmental responsibilities between the Federal government and the states’’ and to ‘‘further the policies of the Unfunded Mandates Reform Act.’’ 1764 The purpose of the Unfunded Mandates Reform Act is, in its own words, ‘‘to end the imposition, in the absence of full consideration by Congress, of Federal mandates on State, local, and tribal governments without adequate Federal funding, in a manner that may displace other essential State, local, and tribal governmental priorities.’’ 1765 In other words, when the Federal government imposed an unfunded mandate on the States (including local governments) and tribal governments carrying federalism implications and had effects on State and local laws, this Order required the Federal government to consult with State and local authorities. However, these final regulations are entirely premised as a condition of receiving Federal funds, and the recipient has the right to forgo such funds if the recipient does not wish to comply with these final regulations. Additionally, this Order states: ‘‘To the extent practicable and permitted by law, no agency shall promulgate any regulation that has federalism implications, that imposes substantial direct compliance costs on State and local governments, and that is not required by statute’’ unless the agency takes a few steps.1766 The use of ‘‘and’’ as well as ‘‘to the extent practicable’’ indicate that each of these requirements must be met before the agency is compelled to take those additional steps. These final regulations do not compel a recipient to accept Federal financial assistance. Moreover, these final regulations are consistent with Title IX and other Federal statutory provisions. Thus, Executive Order 13132 may not apply to these final regulations. But even if it were applicable here, the Department has complied with it by carefully considering and addressing comments from State and local officials and issuing, through this preamble, a federalism summary impact statement. 1764 2 U.S.C. 1501 et seq. U.S.C. 1501(2). 1766 Executive Order 13132, § 6(b) (emphasis added). 1765 2 1762 Tribal 1763 20 PO 00000 Governments Policy at 2. U.S.C. 1681(a). Frm 00477 Fmt 4701 Sfmt 4700 30501 E:\FR\FM\19MYR2.SGM 19MYR2 30502 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Finally, Executive Order 13132 does not provide a specific method to consult with State and local officials, and the Department is not required to use a biweekly electronic newsletter or listserv to provide opportunities for consultation with State and local officials or any other entity. Instead, the Department has carefully considered and addressed comments from State and local officials in promulgating these final regulations. Changes: None. Comments: Some commenters stated that the Department’s NPRM did not disclose enough of its scientific and technical findings and studies it relied on, which prevented the public from having the opportunity to assess the accuracy of the Department’s methodology and conclusions. These commenters asserted that, in this respect, the Department violated the Administrative Procedure Act (‘‘APA’’), 5 U.S.C. 701 et seq., and Executive Order 13563. Specifically, these commenters stated that the NPRM’s Regulatory Impact Analysis (RIA) mentioned that the Department examined public Title IX reports and investigations at 55 IHEs nationwide and drew some conclusions from this analysis but the Department did not specify which 55 IHEs were the subject of this review or make the reports publicly available. These commenters had a similar objection to the reference in the NPRM’s RIA to a sample of public Title IX documents reviewed by the Department because the Department did not make those documents available for review by the public during the comment period. According to these commenters, the failure to specify this information made it impossible for members of the public to determine whether any of the information was erroneous or whether the conclusions the Department drew from this review may be improper. These commenters had similar objections to the NPRM’s RIA discussion of different simulations of its model, including various footnotes within the RIA without making any of those models or the underlying data used to develop those models publicly available. These commenters believed that the NPRM’s Initial Regulatory Flexibility Analysis (IFRA) similarly failed to disclose information it referred to in two places: (1) The Department’s prior analyses that showed that enrollment and revenue are correlated for proprietary institutions; and (2) the Department’s analysis of a number of data elements available in the Integrated Postsecondary Education Data System (IPEDS). Additionally, these commenters stated that the NPRM’s RIA VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 and IRFA did not ascertain or account for the potential inaccuracy of some data the Department relied on, namely, the Civil Rights Data Collection (CRDC) and Clery Act data, which the commenters stated have accuracy deficiencies. According to the commenters, the Department’s reliance on this data without acknowledgement of the shortcomings for this purpose conflicts with the Department’s responsibilities under its Information Quality Act (IQA) Guidelines. Discussion: With respect to the analysis of the Title IX reports from 55 IHEs, the reports we reviewed are publicly available from IHEs’ websites and were not determinative of any assumptions or methodologies used within the NPRM’s RIA. As clearly discussed in the NPRM, the Department was concerned that the data available from the U.S. Senate Subcommittee on Financial and Contracting Oversight report may have only captured a subset of incidents that would otherwise be captured in the definition of ‘‘sexual assault’’ in the proposed rule. Our review of these reports confirmed that IHEs appeared to be including a much wider range of offenses in their Title IX enforcement than simply those that might be reasonably categorized as ‘‘sexual violence’’ by the subcommittee report. Members of the public did not need to review these specific reports to assess the veracity or reasonableness of that analysis. Indeed, a review of any Title IX report could have provided insight into whether it was likely that ‘‘sexual misconduct’’ and ‘‘sexual violence’’ were interchangeable terms and whether the former term subsumed activities not captured under the latter. In addition, our review informed our assumption that incidents of sexual misconduct only represented half of all current Title IX investigations. Again, members of the public did not need access to the specific reports we reviewed to ascertain the quality of this assumption. A review of any Title IX reports or their own experiences in enforcing Title IX would have provided insight into whether this assumption was reasonable. As discussed in the NPRM, the Department reasonably concluded that the term ‘‘sexual violence’’ used in the Subcommittee report was likely a subset of all incidents of ‘‘sexual misconduct’’ and that incidents of ‘‘sexual misconduct’’ were a subset of all incidents investigated under Title IX. The documents reviewed served only to independently validate those logical conclusions.1767 In light of the public 1767 83 PO 00000 FR 61485. Frm 00478 Fmt 4701 Sfmt 4700 availability of the data, any interested party had the opportunity to assess the logic presented in the NPRM for the decisions regarding how to code the data. Further, if the general public disagreed with our decision regarding how to code the data, the analysis provided alternative impact analyses that would have resulted from a different set of decisions regarding how to code those data in Table 1 from our Sensitivity Analysis in the NPRM. Finally, we note that the Title IX ‘‘reports’’ referenced in the NPRM’s RIA at 83 FR 61485 and the Title IX ‘‘documents’’ referenced at 83 FR 61487 are the same documents. With respect to the models and underlying data that we used in the NPRM’s RIA, we referenced the underlying data, such as the U.S. Senate Subcommittee on Financial and Contracting Oversight report. The footnotes in this discussion of the NPRM’s RIA explained the formulas and methods we used to make our calculations. We did not employ any calculations that we did not explain in the text of the document. We believe that the NPRM’s RIA included the specificity necessary to allow others to reproduce our analysis and test our conclusions. With respect to the NPRM’s IRFA and our reference to our prior analyses, we explained later in that section that our prior analyses were based on our review of revenue and enrollment figures (including Carnegie Size Definitions, IPEDS institutional size categories, and total FTE) from IPEDS data. Revenue and enrollment data are publicly available through IPEDS, so any interested party was capable of analyzing this data and offering evidence to challenge our conclusion that enrollment and revenue are correlated for proprietary institutions. The NPRM’s IRFA also referred to a prior rulemaking docket ED–2017–OPE– 0076i, as a resource for the public to find more information on the Department’s previous research on proprietary institutions. With respect to our use of CRDC and Clery Act data, we used the most appropriate data to which we have access. In addition, we specifically invited public comment on other data sources that would help inform our rulemaking. Specifically, we compared the Clery Act data to the U.S. Senate Subcommittee on Financial and Contracting Oversight report to try to understand how the number of investigations is correlated with the various types of IHEs. As described in the NPRM, this analysis informed our estimates that the proposed regulations E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations would decrease the number of investigations conducted per year. Ultimately, the Clery Act data, data from the Subcommittee report, and our logic and assumptions were made public for review. The public had ample opportunity to challenge those assumptions and provide alternative analyses. The CRDC data served the same purpose but as a tool for estimating the number of investigations within LEAs. We are not aware of data that is more reliable than the CRDC and Clery Act data that we could have used to inform our analysis, and no commenters provided us with an alternative high-quality comprehensive data source.1768 Changes: None. Comments: One commenter stated that this rulemaking should not be exempt from Executive Order 13771 because the cost savings are inaccurate and exaggerated. Discussion: As a result of the revisions to the proposed regulations, we agree that Executive Order 13771 applies to these final regulations and provide our revised economic analysis in support of this conclusion in the ‘‘Regulatory Impact Analysis’’ section of this preamble. Changes: The Department provides a revised economic analysis in the ‘‘Regulatory Impact Analysis’’ section of this preamble, which includes the application of Executive Order 13771 to these final regulations. Comments: One commenter asserted that the law requires the Department to analyze the distributional effects of the proposed rules and that the Department did not provide this analysis. This commenter believed that if the Department analyzed distributional effects, it would have found that the proposed rules would widen existing inequities for groups that already face considerable challenges, namely young people, women, pregnant or parenting students, undocumented students, students of color, individuals with disabilities, and LGBTQ students. Discussion: We note that the commenter cited, as support for its comment, a congressional bill from 2012 that has not been passed into law. Nevertheless, the NPRM’s RIA analyzed how the proposed rules would impact different types of institutions. We 1768 Although the Department may designate certain classes of scientific, financial, and statistical information as influential under its Guidelines, the Department does not designate the information in the Regulatory Impact Analysis in these final regulations or in its NPRM as influential and provides this information to comply with Executive Orders 12866 and 13563. U.S. Dep’t. of Education, Information Quality Guidelines (Oct. 17, 2005), https://www2.ed.gov/policy/gen/guid/iq/iqg.html. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 provided significant detail on the different impacts the proposed rules would have on two-year institutions as compared to four-year institutions and large institutions as compared to small institutions. We appreciate the concern about distributional effects among the different types of students, but it is unclear how these final regulations would have a differential impact on the types of students the commenter mentioned, for the purposes of our costbenefit analysis. We note that the proposed rules, and these final regulations, treat all students equally with respect to age, sex, pregnancy or parenting status, citizenship or legal residency status, race and ethnicity, disability status, sexual orientation, and gender identity. The Department explained that the NPRM’s RIA was not attempting to quantify the economic effects of sexual harassment or sexual assault because the NPRM’s RIA analysis was limited to the economic effects of the proposed regulations.1769 Changes: None. Comments: At least one commenter argued that the NPRM is unlawful because 20 U.S.C. 1098a (§ 492 of the Higher Education Act of 1965, as amended (‘‘HEA’’)) requires the Department to engage in negotiated rulemaking for the proposed regulations, which it did not do. In that section, Congress used the phrase ‘‘pertaining to this subchapter’’ when describing regulations for which negotiated rulemaking was required. Because the proposed regulations would affect all institutions that receive funds under Title IV of the HEA, commenters argued they are regulations ‘‘pertaining to’’ Title IV, for which negotiated rulemaking is required. One commenter proposed that the Department undergo a negotiated rulemaking, simplify the NPRM, and appoint a committee of practitioners (excluding lawyers and special interest groups) to discuss best practices and make recommendations. Commenters also argued that the HEA’s master calendar requirement (20 U.S.C. 1089(c)(1)) should apply to these regulations, meaning that regulations that have not been published by November 1 prior to the start of the award year will not become effective until the beginning of the second award year after such November 1 date, July 1. One commenter also stated that they had submitted a Freedom of Information Act (FOIA) request with respect to the Department’s interpretations of this and the negotiated rulemaking requirement and asserted that the Department did not respond in a satisfactory manner. 1769 83 PO 00000 FR 61462, 61485. Frm 00479 Fmt 4701 This commenter contended that this unsatisfactory response prejudiced the commenter’s ability to make arguments on these points, and that the comment period should be reopened after the Department fully responds. Discussion: The negotiated rulemaking requirement in section 492 of the HEA applies only to regulations that implement the provisions of Title IV of the HEA, all of which relate to student financial aid programs or specific grants designed to prepare individuals for postsecondary education programs. Specifically, Title IV contains seven parts: (1) Part A—Grants to Students at Attendance at Institutions of Higher Education; (2) Part B—Federal Family Education Loan Program; (3) Part C—Federal Work-Study Programs; (4) Part D—William D. Ford Federal Direct Student Loan Program; (5) Part E—Federal Perkins Loans; (6) Part F— Need Analysis; and (7) Part G—General Provisions Relating to Student Financial Assistance Programs. The requirements of section 492 do not apply to every Department regulation that impacts institutions of higher education; instead, they apply exclusively to regulations that implement Title IV of the HEA, in other words, that ‘‘pertain to’’ Title IV of the HEA. They do not apply to programs authorized by other titles of the HEA, such as the discretionary grant programs in Title VI, or the institutional aid programs in Titles III and V, all of which impact many institutions that also participate in the Title IV student aid programs. Title IX is not part of the HEA, rather it is part of the Education Amendments of 1972, and provides, generally, that no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.1770 Further, we believe the notice and comment rulemaking process for these final regulations was appropriate and adequate and that public comment provided the Department with the recommendations of practitioners and experts, and decline to undertake the negotiated rulemaking process suggested by one commenter. Similarly, the Title IV master calendar requirements do not apply to the Title IX regulations. The HEA provides that ‘‘any regulatory changes initiated by the Secretary affecting the programs under [Title IV] that have not been published in final form by November 1 prior to the start of the award year shall not become 1770 20 Sfmt 4700 30503 E:\FR\FM\19MYR2.SGM U.S.C. 1681(a). 19MYR2 30504 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations effective until the beginning of the second award year after such November 1 date.’’ 1771 While the Department has acknowledged that these Title IX regulations would impact institutions that participate in the Title IV student assistance programs, among others, that impact does not trigger the master calendar requirement. The requirement applies exclusively to regulations that affect Title IV programs. Title IX is not a ‘‘program under title IV.’’ Finally, we note that the sufficiency of the Department’s response to any individual FOIA request is beyond the scope of this rulemaking, and decline to comment on the content of such a request or its relationship to these final regulations. Since, as explained above, the HEA’s negotiated rulemaking and master calendar requirements are inapplicable to these regulations, it was unnecessary to discuss them in the NPRM in order to ensure the public’s meaningful ability to comment. Changes: None. Comments: Commenters argued that the proposed regulations would create inconsistencies between the Department’s approach to Title IX and that of the over 20 other agencies that enforce Title IX. They stated that more than 20 of those other agencies adopted their identical final Title IX regulations in 2000 based on a common NPRM. Because the Department’s new NPRM would depart from the common rule and other agencies may choose to maintain their existing regulations, commenters asserted that institutions could be subjected to conflicting obligations, and the Department itself could face difficulties in handling complaints. The commenters noted that the Regulatory Flexibility Act, Executive Order 12866, and Executive Order 13563 all require coordination between agencies and work to reduce inconsistencies. Further, one commenter cited examples of why it is not sufficient to predict or expect that other agencies will amend their Title IX regulations to comport with the Department’s revisions. For instance, they pointed to the Department’s singlesex Title IX regulations, which were adopted in 2006 but with which other agencies have yet to come into conformance. Discussion: The Department understands the importance of crossagency coordination, and the effect such coordination can have on stakeholders. While the Department cannot control what actions other agencies take to ensure this coordination with respect to their regulations, we have taken the 1771 20 1772 See Dep’t. of Commerce v. New York, 139 S. Ct. 2551, 2573 (2019). U.S.C. 1089(c)(1). VerDate Sep<11>2014 19:08 May 18, 2020 necessary steps to effectuate such coordination for these final regulations. The specifics of other rulemaking proceedings, while perhaps instructive, do not have direct bearing on this rulemaking proceeding. As commenters acknowledged, the Department included in the NPRM an initial regulatory flexibility analysis (IRFA). As discussed above, consistent with the requirements of Executive orders 12866 and 13563, the Department coordinated with other agencies by sharing the proposed regulations with the Office of Management and Budget (OMB) prior to publication of the NPRM. Through the interagency review process, OMB provided other Federal agencies, including SBA Advocacy and agencies that also administratively enforce Title IX, an opportunity to review and comment on the proposed regulations before they were published. This process is designed to avoid regulations that are inconsistent, incompatible, or duplicative with those of other agencies, and to promote coordination among agencies. Additionally, as noted above, the Assistant Attorney General for Civil Rights reviewed the proposed regulations and approved them to be published in the Federal Register in accordance with Executive Order 12250. Changes: None. Comments: Some commenters asserted that the proposed regulations will not withstand judicial scrutiny because they were developed under a pretextual rationale and are thus arbitrary and capricious. These commenters refer to public statements made by several Administration officials that they say demonstrate that those officials harbor sexist and discriminatory beliefs which motivated the content of the proposed regulations. The commenters say that this, together with the lack of data and lack of reasoned explanation for departure from past practice, makes it apparent that the proposed regulations are a pretext for implementing discriminatory policy. For instance, one commenter stated the Department had not produced any evidence to support its belief that these measures are needed to address sexbased discrimination, or even any evidence that sex-based discrimination exists against respondents in Title IX proceedings. Discussion: In order to permit meaningful review of an agency decision, an agency must disclose the basis of its action.1772 The Department is doing so through the rulemaking Jkt 250001 PO 00000 Frm 00480 Fmt 4701 Sfmt 4700 process for this agency action. Neither the Department, nor the Administration, nor its officials, have acted in bad faith or exhibited improper behavior with respect to these Title IX regulations. Instead, the Department has been clear about our reasons for the changes we proposed in the NPRM, and revisions made in these final regulations, to Title IX implementing regulations. As explained more thoroughly in the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section, we seek to better align Title IX implementing regulations with the text and purpose of Title IX and Supreme court precedent and other case law, which will help to ensure that recipients understand their legal obligations, including what conduct is actionable as sexual harassment under Title IX, the conditions that activate a mandatory response by recipients, and particular requirements that such a response must meet so that recipients protect the rights of their students to access education free from sex discrimination. Recognizing that every situation is unique, we wish to ensure that schools provide complainants with clear options and honor the wishes of the complainant (i.e., the person alleged to be the victim) about how a recipient should respond to the situation. Where a complainant elects to file a formal complaint alleging sexual harassment, we intend for the final regulations to ensure that a recipient’s investigation be fair and impartial, applying strong procedural protections for both parties, which will produce more reliable factual outcomes, furthering Title IX’s non-discrimination mandate consistent with constitutional protections and fundamental fairness. The Department believes that it has provided all the data required to be included in the NPRM.1773 We received over 124,000 public comments on the proposed regulations. We have reviewed and considered those comments and have made changes to the proposed regulations, reflected in these final regulations and discussed throughout this preamble, in response to many of those comments. The Department collected extensive anecdotal evidence through this noticeand-comment rulemaking that demonstrates the provisions in these final regulations are appropriate to address sex discrimination in the form of sexual harassment. Personal stories from both complainants and respondents are anecdotal evidence that the Department received through public 1773 83 E:\FR\FM\19MYR2.SGM FR 61464. 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations comment. Complainants generally would like recipients to provide supportive measures, at a minimum, and to allow complainants to retain some control over the response to any report of sexual harassment. Some complainants are also concerned that biased school-level Title IX proceedings have deprived complainants of due process protections. Similarly, many respondents specifically requested a grievance process with robust due process protections prior to the imposition of disciplinary sanctions. Changes: None. Comments: Some commenters asserted that various provisions of the NPRM violate the Administrative Procedure Act (‘‘APA’’), 5 U.S.C. 701 et seq., because they reflect a departure from past Department regulations, guidance, policies or practices, without adequate reasons, explanations, or examination of relevant data. Commenters cited various legal authorities to substantiate an agency’s responsibility to explain the basis for its decision making, particularly when changing position on a given issue. They asserted that the NPRM is arbitrary and capricious and will not receive Chevron deference. One commenter stated that the Department failed to explain which stakeholders were consulted on particular issues, and why their views on any change were persuasive. Commenters stated that the NPRM offered only conclusory statements for its dramatic changes in the Department’s longstanding interpretation of Title IX as expressed in Department guidance documents. Commenters argued that the Department failed to provide ‘‘adequate reasons’’ or ‘‘examine relevant data’’ to support its proposed regulations. Commenters argued that this also was illustrated by the data relied on in the NPRM’s RIA; commenters asserted that the Department predicated its cost calculations on limited data sets—like the CRDC and the Clery Act data sets— that have significant quality issues, explicitly acknowledged data constraints in developing its cost baseline, and provided an incomplete and unconvincing outline of the costs and benefits resulting from the implementation of the proposed regulations. According to the commenters, these facts indicate that the Department failed to provide the necessary ‘‘rational connection’’ between the underlying facts and its decision to engage in its proposed rulemaking. Commenters also contended that the Department failed to consider reliance VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 interests. Commenters stated that students and educational institutions have relied on the previous standards, expressed in Department guidance, to vindicate their statutory rights and to set their disciplinary procedures, respectively. Discussion: We agree with commenters that an agency must give adequate reasons for its decisions, and that when an agency changes its position, it must display awareness that it is changing position and show that there are good reasons for the new policy. In explaining its changed position, an agency must be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account. In such cases it is not that further justification is demanded by the mere fact of policy change, but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.1774 On the other hand, the agency need not demonstrate that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better.1775 Throughout the NPRM and this document, we provide such reasons, discussion, and justification for our changes, both from the status quo and from the NPRM. These reasons, discussions, and justifications address, as appropriate, data cited by commenters. In the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble, we discuss in particular our reasoning for adopting—but adapting for administrative enforcement—the Supreme Court’s three-part framework describing the conditions that trigger a recipient’s obligation to respond to sexual harassment, including the definition of actionable sexual harassment, the actual knowledge requirement, and the deliberate indifference standard. We discuss rationale for, and changes to, the § 106.45 grievance process in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble. We understand that recipients have relied 1774 See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125–26 (2016) (quoting FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009)). 1775 Fox, 556 U.S. at 515. An agency’s interpretation must also comport with procedural and substantive requirements in order to receive Chevron deference. See United States v. Mead Corp., 533 U.S. 218, 227 (2001); Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984). PO 00000 Frm 00481 Fmt 4701 Sfmt 4700 30505 on our prior guidance and discuss these and other changes from the Department’s past guidance in the foregoing and other applicable sections throughout this preamble. With respect to the comments about the Clery Act and CRDC data, as discussed in more detail above, we used the most appropriate data to which we had access. The costs and benefits of these final regulations, and our detailed analysis in determining them, are discussed in the ‘‘Regulatory Impact Analysis’’ section of this preamble. The NPRM discussed the various stakeholders the Department heard from in developing the proposed regulations (83 FR 61463–61464), and in developing these final regulations and revising the NPRM the Department considered the input of the over 124,000 comments we received on the NPRM. All of these stakeholders’ and commenters’ views were considered in development of the NPRM and these final regulations, and their input was taken into account with respect to each issue addressed in these final regulations. Changes: None. Length of Public Comment Period/ Requests for Extension Comments: Several commenters requested for the NPRM comment period to be extended, stating that commenters needed additional time to make their views known. Some commenters asked that the Department also publicize the extension of the comment period. One commenter stated that the law requires a minimum 60-day public comment period but did not specify which law imposed that requirement. Another commenter stated that the public comment period coincided with many colleges’ winter breaks. In addition to asking for an extension of the comment period, one commenter asked that the Department schedule public hearings at schools and colleges campuses throughout the country to encourage additional input from students, teachers, administrators, and advocates. One commenter argued that the Department inappropriately limited public commentary on the proposed regulations and failed to extend the comment period, making the proposal arbitrary and capricious under the Administrative Procedure Act (‘‘APA’’), 5 U.S.C. 701 et seq. One commenter thanked the Department for allowing a lengthy comment period on this significant NPRM. Discussion: The Department published the NPRM in the Federal Register on November 29, 2018 (83 FR 61462), for a 60-day comment period, with a deadline of January 28, 2019. E:\FR\FM\19MYR2.SGM 19MYR2 30506 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Following technical issues with the Federal eRulemaking portal, the Department extended the public comment period for an additional two days, through January 30, 2019, to ensure that the public had at least 60 days in total to submit comments on the Department’s NPRM using that portal (84 FR 409). In an abundance of caution, to the extent that some users may have experienced technical issues preventing the submission of comments using the Federal eRulemaking Portal, the Department again reopened the comment period for one day, on February 15, 2019 (84 FR 4018). The Department also publicized each of the two extensions on its website, prior to their publication in the Federal Register. The APA does not mandate a specific length for an NPRM comment period, but states that agencies must ‘‘give interested persons an opportunity to participate’’ in the proceeding.1776 This provision has generally been interpreted as requiring a ‘‘meaningful opportunity to comment.’’ 1777 Executive Order 12866 states that a meaningful opportunity to comment on any proposed regulation, in most cases, should include a comment period of not less than 60 days.1778 Case law interpreting the APA generally stipulates that comment periods should not be less than 30 days to provide adequate opportunity to comment.1779 In this case, commenters had 60 days, with extensions of time to account for the potential effects of technical issues, to submit their comments. The Department received over 124,000 public comments, many of which addressed the substance of the proposed regulations in great detail, indicating that the public in fact had ample opportunity to participate in the proceeding. Although some of the 60day period overlapped in part with many colleges’ winter breaks, students were able to submit comments regardless of whether school was in session. The Department believes it provided sufficient, meaningful opportunity for the public to comment on the proposed regulations, and that the public in fact did meaningfully participate in this rulemaking. Changes: None. 1776 5 U.S.C. 553(c). Asiana Airlines v. F.A.A., 134 F.3d 393, 396 (DC Cir. 1998) (internal citations omitted). 1778 Exec. Order No. 12866, Section 6(a); see also Exec. Order 13563, Section 2(b). 1779 See, e.g., Nat’l Retired Teachers Ass’n v. U.S. Postal Serv., 430 F. Supp. 141, 147 (D.D.C. 1977). 1777 E.g., VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Conflicts With First Amendment, Constitutional Confirmation, International Law Comments: First, a group of commenters argued that the NPRM is unlawful because it violates the First Amendment rights of institutions. Traditionally, these commenters contended, academic institutions have retained the freedom to determine for themselves ‘‘ ‘on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.’ ’’ 1780 As a result, the commenters argued, the NPRM infringes upon the First Amendment rights of institutions of higher education to determine their Title IX policies and procedures with sufficient latitude and autonomy because the proposed rules lack a compelling governmental interest and/or are not sufficiently narrowly tailored. Second, some commenters suggested that Secretary Elisabeth DeVos lacks the authority to issue the NPRM and to promulgate the final regulations because Vice President Michael Pence cast the deciding vote to confirm the Secretary after the Senators were equally divided on her confirmation; 1781 they contended that the Vice President is not constitutionally authorized to break a tie for a cabinet member’s confirmation, thereby rendering Secretary DeVos’ Senate confirmation itself invalid and rendering her actions legally unauthorized. Third, some commenters contended that the NPRM violates the United States’ international law obligations, including the International Covenant on Civil and Political Rights (‘‘ICCPR’’), which prohibits discrimination on the basis of sex, and its commitments under the 2030 Agenda for Sustainable Development (‘‘Sustainable Development Goals’’ or ‘‘Goals’’). Discussion: First, we appreciate some commenters’ concerns that the NPRM transgresses upon recipients’ First Amendment rights and share commenters’ commitment to the importance of interpreting Title IX in a manner that respects constitutional rights, including the rights of recipients under the First Amendment. However, we disagree that the NPRM, or the final regulations, impermissibly infringe on recipients’ First Amendment rights. These final regulations do not address 1780 Commenters cited: Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring) (quoting The Open Universities in South Africa 10–12). 1781 Commenters cited: U.S. Senate, Vote: On the Nomination (Confirmation Elisabeth Prince DeVos, of Michigan, to be Secretary of Education), Feb. 7, 2017. PO 00000 Frm 00482 Fmt 4701 Sfmt 4700 what a recipient may teach or how the recipient should teach. These final regulations also do not dictate who may be admitted to study or who may be permitted by a recipient to teach. When a recipient follows a grievance process that complies with § 106.45 and finds a respondent responsible for sexual harassment, these final regulations do not second guess whether or how the recipient imposes disciplinary sanctions on the respondent. Indeed, these final regulations expressly provide in § 106.44(b)(2) that the Assistant Secretary will not deem a recipient’s determination regarding responsibility to be evidence of deliberate indifference by the recipient, or otherwise evidence of discrimination under Title IX by the recipient, solely because the Assistant Secretary would have reached a different determination based on an independent weighing of the evidence. Accordingly, recipients retain discretion as to determinations of responsibility for sexual harassment, and the Department expressly defers to a recipient’s judgment with respect to disciplinary action against a respondent whom the recipient has determined to be responsible for sexual harassment. These final regulations do not impact a recipient’s decisions about who to admit to study, who to hire to teach, or what curricula a recipient uses for instructional materials. Even with respect to disciplinary action, these final regulations only apply to how a recipient responds to alleged sexual harassment as defined in § 106.30, and not to how a recipient might respond (including with disciplinary action) to alleged misconduct that does not constitute sex discrimination in the form of sexual harassment under Title IX. Recipients also may determine who may be admitted to study and teach at their schools and who may remain to study and teach at their schools through disciplinary sanctions, with respect to both sexual harassment and non-sexual harassment misconduct. We have revised § 106.45(b)(3)(i) to clarify that any dismissal of a formal complaint of sexual harassment or any allegations therein does not preclude action under another provision of the recipient’s code of conduct. Thus, recipients remain free to address conduct that is not covered under Title IX and these final regulations. These final regulations also clearly provide in § 106.6(d)(1) that nothing in Part 106 of Title 34 of the Code of Federal Regulations requires a recipient to restrict rights that would otherwise be protected from government action by the First Amendment of the U.S. Constitution, and recipients are not E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations required to infringe upon the First Amendment rights of students and employees. As an initial matter, commenters did not (and could not) claim an absolute First Amendment right of an academic institution to conduct its Title IX proceedings however it wishes. Title IX proceedings have long been part of the largely-undisputed regulatory framework.1782 As a result, this NPRM has not suddenly crossed a line making suspect its First Amendment validity. These final regulations are the product of compliance with rulemaking under the Administrative Procedure Act (‘‘APA’’), 5 U.S.C. 701 et seq., including robust public comment. Furthermore, neither Title IX nor the final regulations governs the recipients’ speech but only their conduct in exchange for their accepting Federal financial assistance. But even if commenters were to argue that the NPRM infringes on recipients’ freedom of association, that argument would fail because compelling governmental interests and narrowly tailored means to achieve those interests may qualify that right. Similarly, the recipient’s freedom to define and engage with its campus with respect to sexual harassment and assault is also subject to qualification. It is not an absolute right, and these final regulations, furthering the purposes underlying Title IX, appropriately qualify it. Controlling precedents demonstrate the foregoing. The Supreme Court has never held that the right to punish or exclude non-member students and employees by potentially harming their future careers and reputations is an unfettered right of speech or association. In Roberts v. United States Jaycees,1783 the Supreme Court held that the freedom of association could be limited ‘‘by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.’’ Likewise, in Boys Scouts of America v. Dale, the Supreme Court permitted the Boy Scouts to exclude 1782 34 CFR 106.8(b) has for decades required recipients to ‘‘adopt and publish grievance procedures that provide for the prompt and equitable resolution of student and employee complaints’’ of sex discrimination under Title IX. Department guidance has, since 1997, considered sexual harassment a form of sex discrimination under Title IX to which those prompt and equitable grievance procedures must apply, and has since 2001 interpreted the ‘‘prompt and equitable grievance procedures’’ in regulation to mean investigations of sexual harassment allegations that provide for ‘‘Adequate, reliable, and impartial investigation of complaints, including the opportunity to present witnesses and other evidence.’’ 2001 Guidance at 20. 1783 468 U.S. 609, 623 (1984). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 LGBTQ members as an exercise of the Scouts’ freedom of speech but only if their exclusion was largely necessary for the group to advocate a particular viewpoint: ‘‘[t]he freedom of expressive association . . . could be overridden by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.’’ 1784 In the Title IX context, though, students and employees are not ‘‘members’’ in the conventional sense and their inclusion does not therefore infringe on an institution’s freedom of speech or of association.1785 The NPRM, furthermore, has justified a compelling governmental interest in providing respondents accused of serious misconduct with a fair, truth-seeking grievance process, which is a pillar of the American legal tradition, and the final regulations further that interest in a manner that equally elevates the compelling governmental interest in ensuring that recipients provide remedies to victims of sexual harassment, ensures that complainants also benefit from the strong procedural protections set forth in the § 106.45 grievance process, and requires recipients to offer supportive measures to complainants with or without the filing of a formal complaint that initiates a grievance process. These interests are intertwined, since due process protections benefit both parties by permitting the parties to meaningfully participate in the grievance process and increase the accuracy of outcomes, thereby ensuring that complainants victimized by sexual harassment receive remedies designed to restore or preserve equal access to education while also ensuring that respondents are not treated as perpetrators of sexual harassment deserving of separation from educational opportunities unless that conclusion is the result of a fair, truthseeking process. Yet another reason the right to exclude is not as strong here as it was deemed to be in Dale is that if a group excludes a member because of the member’s status, the member is not ruined for life and no one will hold that against the excluded party. But if an inferior—typically, a student or employee—ends up being excluded because of an opprobrious moral failing like a sexual harassment violation, their prospects are ruined for a long time, perhaps for life. Similarly, if a recipient wrongfully determines that a complainant was not victimized by sexual harassment and on that basis 1784 530 U.S. 640, 647–48 (2000). 1785 Id. PO 00000 Frm 00483 Fmt 4701 Sfmt 4700 30507 does not provide remedies, the victim may suffer loss of educational opportunities that may derail the victim’s education and future for a long time, perhaps for life. This, too, affirms the final regulations’ compelling interest in protecting the integrity of a Title IX grievance process against a First Amendment challenge. The language the commenters cite from Justice Frankfurter’s concurrence in Sweezy—some institutional latitude to determine ‘‘on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study’’—that only Justice Harlan joined and that did not command controlling effect, is also inapposite on its own terms.1786 Those were not Justice Frankfurter’s words or even words he was quoting as having authoritative force. He was merely quoting in passing an excerpt from Open Universities in South Africa 10– 12, A statement of a conference of senior scholars from the University of Cape Town and the University of the Witwatersrand, including A. v. d. S. Centlivres and Richard Feetham, as Chancellors of the respective universities.1787 For First Amendment purposes, Justice Frankfurter specifically refused to equate a State legislative inquiry into the contents of the appellant’s lecture and into his knowledge of the Progressive Party and its members, with the Open Universities excerpt.1788 Further, Justice Frankfurter pointed out that certain specific kinds of ‘‘inroads on legitimacy must be resisted at their incipiency.’’ 1789 This was nonbinding dictum in the concurrence and has no bearing on the final regulations at hand.1790 In Keyishian v. Board of Regents of the University of the State of New York,1791 the Supreme Court stated: ‘‘Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.’’ The final regulations intentionally protect academic freedom by carefully adopting and adapting the Davis standard in the second prong of conduct defined as 1786 Sweezy v. New Hampshire, 354 U.S. 234, 263 (Frankfurter, J., concurring). 1787 See id. 1788 See id. 1789 Id. 1790 See, e.g., Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006) (‘‘[W]e are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.’’). 1791 385 U.S. 589, 603 (1967). E:\FR\FM\19MYR2.SGM 19MYR2 30508 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations sexual harassment in § 106.30, as explained in the ‘‘Sexual Harassment’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble. The most analogous case here is Rumsfeld v. Forum for Academic and Institutional Rights, Inc.1792 Rumsfeld suggests that the final regulations are consistent with the First Amendment. There, the Supreme Court upheld the Federal Solomon Amendment, which had conditioned law schools’ receipt of Federal financial assistance on their giving equal access to military recruiters on par with all other recruiters when institutions instead wished to send a message of disapproval of military policies on social issues. In fact, the ‘‘message’’ inherent in the law schools’ refusal to let the military recruiters in was stronger in many respects than any ‘‘message’’ that a recipient can assert here. Nonetheless, the Rumsfeld Court determined that ‘‘the compelled speech [t]here [wa]s plainly incidental to the . . . [Solomon] Amendment’s regulation of conduct.’’ 1793 So it is here; Congress has determined through passage of Title IX that recipients of Federal financial assistance must not permit sex discrimination to deprive any person of educational opportunities; with respect to sexual harassment as a form of sex discrimination, the Supreme Court has interpreted Title IX to require recipients to respond to sexual harassment that occurs between its students, and employees, under certain conditions, and the Department has determined that appropriate adoption, with adaptations, of the Supreme Court’s framework effectuates Title IX’s non-discrimination mandate consistent with constitutional rights (including free speech, academic freedom, and due process of law) and consistent with fundamental fairness. Furthermore, like the conduct at issue in Rumsfeld, the conduct here is not so ‘‘inherently expressive’’ that it deserves First Amendment protection.1794 There is nothing particularly expressive about a recipient’s desire to deny parties to a Title IX proceeding sufficient due process protections before reaching determinations regarding responsibility. In the same way that the law schools’ First Amendment freedom of expressive association was not violated in Rumsfeld, here too recipients’ freedom to expressively associate with students and employees is not violated. It is true that under Rumsfeld, the freedom of expressive association protects against laws that make ‘‘group membership less attractive’’ because such laws adversely 1792 547 U.S. 47 (2006). at 62. 1794 Id. at 64–66. 1793 Id. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 ‘‘affect[] the group’s ability to express its message.’’ 1795 But that is not the case here because the final regulations strive to ensure that a fair process will make the institution more attractive, or at least not less attractive, because the institution will be responsible for clearly, transparently, and fairly responding to sexual harassment allegations (including by always offering supportive measures to a complainant regardless of whether sexual harassment allegations are ever investigated or proved through a grievance process). Accordingly, the Department disagrees with commenters’ argument that the final regulations infringe on the First Amendment rights of recipients, including academic freedom. Second, we disagree with commenters’ concerns that Secretary DeVos might not be constitutionally empowered to issue the NPRM or the final regulations because the Vice President lacked the constitutional prerogative to cast the tie-breaking vote to confirm the Secretary. Because the Vice President is constitutionally empowered to cast the tie-breaking vote in executive nominations, President Donald J. Trump’s nomination of Secretary DeVos properly was confirmed by the United States Senate; and Secretary DeVos therefore may function as the Secretary of Education. Article I, Section 3, cl. 4 of the Constitution did confer on the Vice President the power to break ties when the Senators’ votes ‘‘be equally divided.’’ Secretary DeVos’ service as the United States Secretary of Education has therefore been lawful; no pall of constitutional doubt on account of her confirmation is cast on Secretary DeVos’ service. A commenter largely relies on one piece of scholarship to advance this claim.1796 But that source principally concerns the Vice President’s power to break Senate ties on judicial nominations, not Executive ones. Morse does not develop robustly an argument about the latter. Moreover, Morse acknowledges there is nothing ‘‘conclusive’’ about Executive nominations, and argues only that Vice Presidents are without constitutional authority to break ties in judicial nominations.1797 Morse cites three examples from 1806 (Vice President George Clinton voted to confirm John Armstrong as the Minister to Spain), 1795 Id. at 69. Samuel Morse, The Constitutional Argument Against the Vice President Casting TieBreaking Votes in the Senate, 2018 Cardozo L. Rev. de novo 142 (2018) (herein, ‘‘Morse,’’ ‘‘the source’’ or ‘‘the article’’). 1797 See d. at 151. 1796 See PO 00000 Frm 00484 Fmt 4701 Sfmt 4700 1832 (Vice President Calhoun cast a tiebreaking vote that defeated the nomination of Martin Van Buren as Minister to Great Britain), and 1925 (Vice President Charles G. Dawes almost cast the tie-breaking vote to confirm President Calvin Coolidge’s nominee for attorney general), respectively.1798 But even the evidence in this source points to the fact that the Vice President was always considered to hold the tiebreaking vote for Executive nominations (indeed for all Senate votes). Particularly the nineteenth century examples do seem to show that historically Vice Presidents have enjoyed this widely-acknowledged power.1799 Due to this time period’s chronological proximity to the Constitution’s ratifying generation, this is strong evidence that the original public meaning of the Constitution, left undisputed by intervening centuries of practice, confers the power of breaking Senate ties in executive nominations on Vice Presidents. As for the argument that the placement of this power in Article I, which generally deals with Congress, meant the power was limited to the legislative votes, this misconceives the context in which the provision exists: that section concerns length of Senate tenure, the roles of congressional personnel, and the Senate’s powers, including that of trying impeachments.1800 It is not limited to what the Senate can accomplish but rather encompasses matters about who in the Senate gets to do what, concerning all Senate business. In this section of Article I, the Vice President, as President of the Senate, accordingly is given the power to break ties. This was the most logical section in which to put this prerogative of the Vice President. And given how the power to cast tie-breaking votes is left openended, the most natural inference is that it applies to all Senate votes in all Senate business. Consequently, this evidence refutes the commenter’s claim about Secretary DeVos’ confirmation because: (1) This section in Article I simply concerned the functions and prerogatives of the Senate and its various officers, including the Vice President’s general tie-breaking authority; and (2) that the Senate’s power to try impeachments is included in the same section means that this section is just as applicable to Executive nominations as to anything else (that neither the commenter nor the article is 1798 See id. at 150–51. id. at 143–44 fn.4. 1800 See generally U.S. Const. art. I, § 3. 1799 See E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations challenging).1801 This analysis shows that Morse’s argument, and transitively that of the commenter, is flawed. Furthermore, one commenter’s reference to Senator King’s statement in 1850 as supporting a view that could lead anyone in the present day to conclude Secretary DeVos’s Senate confirmation is invalid is unhelpful because the overwhelming weight of text and history is against the merits of this pronouncement. Even at that time, King appears to have been one of a handful of people, if that, to express this view. It was not a widely accepted view, before or after. Finally, a commenter’s citation to John Langford’s Did the Framers Intend the Vice President to Have a Say in Judicial Appointments? Perhaps Not 1802 and the reference to the Federalist Papers also misconceive the constitutional text, design, and history. To be sure, Alexander Hamilton in The Federalist No. 69 does contrast the New York council at the time,1803 with the Senate of the national government the Framers were devising (‘‘[i]n the national government, if the Senate should be divided, no appointment could be made’’).1804 The commenter’s overall point is unpersuasive. As an initial matter, the Federalist Papers were persuasion pieces to convince the People (as sometimes addressed to ‘‘The People of New York,’’ etc.) to accept the Constitution. Therefore, while the Papers supply a framework and understanding closely linked to the Constitution’s text by some of the authors of that text, it does not supplant the original public meaning of that text itself. Moreover, all The Federalist No. 69 refers to is that the President himself may not cast the tie-breaking vote in the Senate. The Vice President, however, may do so, for he is not the Executive. For much of our Nation’s history, including when the Equally Divided Clause was written as part of the original Constitution, the President and the Vice President could be from different parties and fail to get along. This Clause gave the Vice President some power and authority independent of the President. There is an important context behind this. Prior to the Twelfth Amendment’s adoption, the Vice 1801 But see Morse 144, 146. Langford, Did the Framers Intend the Vice President to Have a Say in Judicial Appointments? Perhaps Not, Balkanization (Oct. 5, 2018). 1803 See ‘‘The Federalist No. 69,’’ at 389 (Alexander Hamilton) (Clinton Rossiter ed., Mentor 1999) (1961) (‘‘[I]f the [New York] council be divided, the governor can turn the scale, and confirm his own nomination.’’). 1804 Id. 1802 John VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Presidency was awarded to the presidential candidate who won the second most number of votes, regardless of which political party he represented.1805 In the 1796 election, for instance, voters chose the Federalist John Adams to be President.1806 But they chose Thomas Jefferson, a Democratic-Republican, as the election’s runner-up, so Jefferson became Adams’ Vice President.1807 Under the Twelfth Amendment, however, usually Presidents and Vice Presidents are elected on the same ticket. But this does not change the Equally Divided Clause, preserving the Vice President’s authority to break Senate ties for executive and other nominations. As a result, any argument to the contrary necessarily ignores the constitutional text, design, and history. Langford and the commenter at issue also misunderstand what Hamilton actually said in The Federalist No. 76, which was: ‘‘A man disposed to view human nature as it is . . . will see sufficient ground of confidence in the probity of the Senate, to rest satisfied, not only that it will be impracticable to the Executive to corrupt or seduce a majority of its members, but that the necessity of its co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate.’’ 1808 Langford reads this to mean that Alexander Hamilton was saying the Executive needs a majority of the voting Senators present to confirm nominations. Langford’s interpretation wrongly conflates the necessary with the sufficient, for Hamilton was saying only that it will suffice for a President to get a nominee confirmed with a majority of the Senate, not that he needs a Senate majority to get his nominee confirmed. This is all the more so because Senators may abstain from voting, so not every Senator will necessarily be voting. Doubtless Hamilton knew this because the Constitution gives the Senate the power to decide its own rules, including quorum, see U.S. Const. art. I, § 5, cl. 1, 2, and therefore, a President need not even ‘‘corrupt or seduce’’ a majority of the full Senate, The Federalist No. 76; all he needs is a majority of the voting Senators. Thus, Hamilton’s phrasing indicates not precision but a common parlance. It is, accordingly, too slender a reed (outside the constitutional text, at 1805 See U.S. Const. amend. XII. Jerry H. Goldfeder, Election Law and the Presidency, 85 Fordham L. Rev. 965, 974–75 (2016). 1807 See id. 1808 ‘‘The Federalist No. 76,’’ at 395 (Alexander Hamilton) (Clinton Rossiter ed., Mentor 2003). 1806 See PO 00000 Frm 00485 Fmt 4701 Sfmt 4700 30509 that) for Langford to base much of his thesis on, providing no support for the commenter’s argument. Langford is also incorrect in saying that ‘‘the Framers situated the Senate’s ‘advice and consent’ powers in Article II, not Article I,’’ where the Equally Divided Clause is located, means that the Vice President’s tie-breaking power does not apply to nominations. This argument fails because, as noted earlier, it made more sense for the original Constitution’s drafters and the ratifying generation to name the Vice President’s tie-breaking power right in the same section of Article I when they were spelling out that he would be the President of the Senate. It is a limitation on his role as President of the Senate as well as his prerogative. Article II, by contrast, says what the President can do; and as already noted, when the original Constitution was ratified, the President and the Vice President were two different and often conflicting entities. Langford assumes the modern view that President and Vice President work hand in hand; that was not the original Constitution’s presupposition, explaining why Langford’s argument (and the commenter’s) is flawed. Langford is also wrong to suggest that because ‘‘the Framers explicitly guarded against a closely divided Senate by requiring a two-thirds majority of Senators present to concur in order to consent to a particular treaty,’’ this might show that: ‘‘Perhaps the Framers assumed the default rule [of the Vice President’s tie-breaking power] would apply whereby a tie goes to the Vice President; perhaps, instead, the Framers meant to provide for the possibility of a divided Senate, in which case the nomination would fail.’’ However, the real reason for these placements is simple and has been alluded to earlier: The Treaty Clause belongs in Article II because the President is the first mover on treaties; the Senate’s role is reactive. Also, the Vice President is a different actor from the President under the Constitution. This placement, therefore, has nothing to do with the Vice President’s tie-breaking power, which remains universally applicable across Senate floor votes. And even Langford is inconclusive about the reason for this placement and structure of keeping the Treaty Clause separate from the Equally Divided Clause. Therefore, the Constitution permits the Vice President to cast the tiebreaking vote for executive nominations. Vice President Pence constitutionally cast the tie-breaking vote to confirm President Trump’s nomination of Secretary DeVos. The Secretary is a constitutionally appointed E:\FR\FM\19MYR2.SGM 19MYR2 30510 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations officer functioning in her present capacity and suffers from no want of authority to issue the NPRM or to promulgate the final regulations on this or any other matter pertaining to the Department of Education. Third, we appreciate some commenters’ concerns that the NPRM and the final regulations run afoul of the United States’ international law obligations, including the ICCPR and the Sustainable Development Goals, but we disagree with those contentions. With respect to the ICCPR, both the text of Title IX and the goals and procedures the final regulations operationalize are similar to the ICCPR. As background, the ICCPR is a covenant professing to adhere to the principle that the ‘‘inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.’’ 1809 Monitored by the United Nations Human Rights Committee, the ICCPR is a multilateral treaty the United Nations General Assembly adopted in 1966, though it did not come into force until 1976. It is true that Article 2 of the ICCPR prohibits sex discrimination, but so does Title IX. To the extent there is any difference between what is expected under the ICCPR and what is expected under Title IX with respect to prohibiting sex discrimination, the Secretary must follow Title IX because when the United States Senate ratified the ICCPR, one of its formal reservations was that Article 2 ‘‘of the Covenant [is] not self-executing.’’ 1810 This is in keeping with controlling Supreme Court precedent because while a treaty (such as the ICCPR) ‘‘may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be ‘selfexecuting’ and is ratified on that basis.’’ 1811 Under Foster and Medellı´n, a treaty is ‘‘equivalent to an act of the legislature,’’ and therefore selfexecuting, when it ‘‘operates of itself without the aid of any legislative provision.’’ 1812 Even if such intention were manifest in the ICCPR’s text, the Senate’s reservation would make short work of it. It follows that Article 2, 1809 Preamble, ICCPR. 1810 See Principle III(1), U.S. reservations, declarations, and understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781–01 (daily ed., April 2, 1992). 1811 See Medellı´n v. Texas, 552 U.S. 491 (2008) (citing Foster v. Neilson, 2 Pet. 253, 314 (1829), overruled on other grounds, United States v. Percheman, 7 Pet. 51 (1833)). 1812 Foster, 2 Pet. at 314. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 which is the Covenant’s principal relevant provision, is not binding on the United States. By contrast, the Department is directed and authorized by Congress to effectuate Title IX’s nondiscrimination mandate, pursuant to 20 U.S.C. 1682. On the merits, too, the commenter’s argument is unavailing. The ICCPR’s Article 2 states: 1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. Neither the commenter nor the ICCPR’s text nor still the commenter’s recent submission to the United Nations Human Rights Committee (‘‘UNHRC’’) 1813 explains how Title IX or the NPRM deviate from the ICCPR commitment into which the United States, along with its reservations, has entered. This submission contends that the NPRM and the likely final regulations ‘‘weaken[ ] protections for students who have experienced sexual harassment and assault in numerous 1813 See Letter from Yasmeen Hassan, Global Exec. Director, Equality Now, Dr. Ghada Khan, Network Coordinator, U.S. End FGM/C Network, & Jessica Neuwirth Co-President, ERA Coalition to Gabriella Habtrom, Human Rights Committee Secretariat, Office of the United Nations High Commissioner for Human Rights (Jan. 14, 2019). PO 00000 Frm 00486 Fmt 4701 Sfmt 4700 ways, including by raising the standard of evidence required to ‘clear and convincing,’ narrowing the definition of sexual harassment, and by requiring schools to begin the investigation procedure with the presumption that the alleged perpetrator is innocent.’’ 1814 The commenter’s submission continues: ‘‘The adoption of these guidelines will result in more limited protections for adolescent girls, who are already disproportionately likely to experience sexual violence.’’ 1815 Endeavoring to justify those arguments, the commenter further states: ‘‘The adoption of these regulations will also limit the United States’ ability to reach Sustainable Development Goals targets 5.2 (eliminate all forms of violence against all women and girls in the public and private spheres, including trafficking and sexual and other types of exploitation) and 16.2 (end abuse, exploitation, trafficking and all forms of violence against and torture of children).’’ 1816 But this contention is unavailing because the record cultivated by the NPRM and these final regulations already explains why the goal or the effect of the final regulations is not to remove women’s protections and expose them to violence or to do anything short of ending ‘‘abuse, exploitation, trafficking and all forms of violence against and torture of children.’’ 1817 There is no evidence that the final regulations permit or facilitate any of these abhorrent forms of misconduct. There is prominent international human rights case law from various tribunals demonstrating that children’s physical integrity and lives deserve protection; this precept occupies a role of opinio juris (opinion of law by prominent scholars and jurists) in international law.1818 When a government fails to investigate such abuses, such failure may give rise to violations of the child’s and family’s rights.1819 But it does not trump the text of the salient instrument, and combined with the fact that the United States reserved certain objections, those other international law sources do not dictate what the United States must do. The 1814 Id. 1815 Id. 1816 Id. 1817 Id. 1818 See Mapiripa ´ n Massacre v. Colombia, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 134 (15 Sept. 2005); Okkal( v. Turkey, No. 52067/99, Eur. Ct. H.R. (2006); Stoica v. Romania, no. 42722/02, Eur. Ct. H.R. (2008). 1819 See Leydi Dayan Sa ´ nchez v. Colombia, Report, Inter-Am. Ct. H.R. No. 43/08 (23 July 2008); Case of the ‘‘Street Children’’ (Villagran-Morales et al.) v. Guatemala, Judgment, Inter-Am. Ct. H.R. (May 26, 2001). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations final regulations will protect complainants by requiring recipients to offer supportive measures designed to restore or preserve the complainant’s equal educational access irrespective of whether the recipient also investigates the complainant’s sexual harassment allegations, and regardless of whether the respondent accused of sexually harassing the complainant is ever proved responsible or disciplined. When a recipient does investigate sexual harassment allegations in a Title IX grievance process, the final regulations ensure that both complainants and respondents receive strong, clear procedural rights in a fair, truth-seeking grievance process, and if the respondent is found responsible the recipient must effectively implement remedies for the complainant. Nothing in the United States’ international obligations prevents the achievement of these objectives set forth under the final regulations. As a result, the commenter’s suggestions for the UNHRC Secretariat to ask the United States regarding the ICCPR, are unnecessary because the final regulations will optimize ‘‘protections for students who have experienced sexual violence’’ and the final regulations remains ‘‘in line with international human rights standards.’’ 1820 Furthermore, ‘‘students in secondary schools,’’ under the final regulations, will continue to be ‘‘offered a safe educational environment in which schools are held accountable for failure to respond to incidents of sexual harassment and violence.’’ 1821 As for the Sustainable Development Goals, the United States is not legally obligated to abide by them because the United States never has assented to them—consent is the essential predicate for most international law norms to be binding on a sovereign nation—and they do not occupy the status of customary international law.1822 Customary 1820 Letter from Yasmeen Hassan, Global Exec. Director, Equality Now, Dr. Ghada Khan, Network Coordinator, U.S. End FGM/C Network, & Jessica Neuwirth Co-President, ERA Coalition to Gabriella Habtrom, Human Rights Committee Secretariat, Office of the United Nations High Commissioner for Human Rights 7 (Jan. 14, 2019). 1821 Id. 1822 See generally Oliva v. U.S. Dep’t. of Justice, 433 F.3d 229, 233–34 (2d Cir. 2005); Comm. of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939 (D.C. Cir. 1988); see also Andrew Guzman, The Consent Problem in International Law 5 (Berkeley Program in Law and Economics Working Paper, 2011); Anthony Aust, Handbook of International Law 4 (2005) (‘‘[International law] is based on the consent (express or implied) of states.’’); Laurence R. Helfer, Nonconsensual International Lawmaking, 2008 Univ. of Ill. L. Rev. 71, 72 (2008) (‘‘For centuries, the international legal system has been premised on the bedrock understanding that states must consent to the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 international law ‘‘may originate ‘in custom or comity, courtesy or concession,’ ’’ and ‘‘[being] ‘part of our law, . . . must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.’ ’’ 1823 Drafted in September 2015, the Goals cannot be customary international law because they have not, ‘‘over the long passage of years grow[n] ‘by the general assent of civilized nations, into a settled rule of international law.’ ’’ 1824 Even on the merits, though, the Goals are consistent with the final regulations. The Goals pledge that, by 2030, ‘‘[a]ll forms of discrimination and violence against women and girls will be eliminated, including through the engagement of men and boys.’’ 1825 Nothing in the final regulations promotes, perpetuates, or tolerates any ‘‘form[ ] of discrimination and violence against women and girls,’’ and indeed strives to ‘‘eliminate[ ]’’ ‘‘[a]ll forms of [sex] discrimination.’’ 1826 That is the objective of Title IX and the final regulations. These final regulations do not violate any of the United States’ international law obligations or, for that matter, norms or principles. Consequently, the final regulations are consistent with the United States’ international law obligations. Clery Act Background The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (‘‘Clery Act’’), 20 U.S.C. 1092(f), applies only to institutions of higher education that receive Federal student financial aid through the programs authorized by Title IV of the Higher Education Act of 1965, as amended (‘‘HEA’’). The Clery Act uses the term ‘‘victim.’’ 1827 Accordingly, this section of the preamble in which the Department responds to comments about the intersection of these final regulations with the Clery Act, uses the term ‘‘victim’’ in discussing the Clery Act and its implementing regulations. The Clery Act requires institutions of higher creation of international law.’’); United Nations, Transforming our world: The 2030 Agenda for Sustainable Development (2015). 1823 Oliva v. U.S. Dep’t. of Justice, 433 F.3d 229, 233 (2d Cir. 2005) (quoting The Paquete Habana, 175 U.S. 677, 694, 700 (1900)). 1824 Id. (quoting The Paquete Habana, 175 U.S. at 694). 1825 United Nations, Transforming our world: The 2030 Agenda for Sustainable Development (2015). 1826 Id. 1827 20 U.S.C. 1092(f). PO 00000 Frm 00487 Fmt 4701 Sfmt 4700 30511 education to disclose campus crime statistics and security information about certain criminal offenses, including sexual assault, that occur in a particular geographic area, including the public property immediately adjacent to a facility that is owned or operated by the institution for educational purposes.1828 VAWA 1829 amended the Clery Act to require institutions of higher education to report information about additional criminal offenses, including domestic violence, dating violence, and stalking.1830 VAWA included several amendments to the Clery Act that may be relevant to some parties implicated in a report of sexual harassment or a grievance process to resolve allegations of sexual harassment under Title IX and these final regulations. For example, the Clery Act, as amended by VAWA, requires that students and employees receive written notification of available victim services including counseling, advocacy, and legal assistance, as well as options for modifying a victim’s academic, living, transportation, or work arrangements.1831 The Clery Act also requires institutions of higher education to notify victims of their rights, including their right to report or not report a crime of sexual violence to law enforcement and campus authorities.1832 The Department promulgates these final regulations under Title IX and not under the Clery Act. These final regulations apply to all recipients of Federal financial assistance, and these recipients include many parties that are not institutions of higher education, receiving Federal student financial aid under Title IV of the HEA. For example, these final regulations apply to elementary and secondary schools, which are not subject to the Clery Act. These final regulations do not change, affect, or alter any rights, obligations, or responsibilities under the Clery Act. These final regulations only concern a recipient’s rights, obligations, and responsibilities under Title IX. Accordingly, the Department will not respond to any comments that solely concern compliance with the Clery Act and its implementing regulations because such comments go beyond the scope of the NPRM to promulgate regulations under Title IX.1833 1828 20 U.S.C. 1092(f)(1)(F); 20 U.S.C. 1092(f)(6)(A)(iv). 1829 Public Law 113–4. 1830 20 U.S.C. 1092(f)(6)(A)(i); 20 U.S.C. 1092(f)(7). 1831 20 U.S.C. 1092(f)(8)(B)(vii). 1832 20 U.S.C. 1092(f)(8)(C). 1833 83 FR 61462. E:\FR\FM\19MYR2.SGM 19MYR2 30512 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Comments, Discussion, and Changes Comments: One commenter expressed concern that § 106.45(b)(1)(vi) (Describe Range of Sanctions) conflicts with the Clery Act, which requires institutions to include a complete list of sanctions that may be imposed following an institutional disciplinary proceeding to support transparency in adjudications, and suggested that recipients should be required to provide a complete list of sanctions, not a range. Without such transparency, the commenter argued, there could be inconsistency in sanctioning, a distrust of the process, as well as confusion among recipients regarding the requirements under the Clery Act and the Department’s Title IX regulations. Discussion: If the Clery Act applies to an institution, the institution must, under 34 CFR 668.46(k)(1)(iii), provide a list of sanctions that the institution may impose following an institutional disciplinary proceeding based on an allegation of dating violence, domestic violence, sexual assault, or stalking. Such a list also satisfies the requirement in § 106.45(b)(1)(vi) to describe the range of sanctions that a recipient may impose on a respondent, and the Department has revised § 106.45(b)(1)(vi) to state that a recipient must describe the range of sanctions or provide a list of sanctions. Through this revision, the Department clarifies that a list of sanctions or a description of the range of sanctions satisfies § 106.45(b)(1)(vi). These final regulations apply to elementary and secondary schools in addition to postsecondary institutions. The Department believes it is appropriate for elementary and secondary schools and other recipients to retain discretion in imposing sanctions in cases involving sexual harassment, and requiring a recipient to describe the range of sanctions will help ensure that the parties know the sanctions that are appropriate in different circumstances, which could arise from a finding of responsibility. The requirements of the Clery Act were designed to fit the population, environment, and traditional processes used by institutions of higher education. The other recipients of Federal funds subject to the Title IX requirements have different populations, environments, and processes. The Department does not believe it is appropriate to prohibit recipients from crafting unique sanctions designed to specifically address the circumstances of a particular formal complaint as long as recipients stay within the range of sanctions described in their policies. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Accordingly, the Department will continue to allow recipients to describe the range of possible sanctions and acknowledges that listing all possible sanctions is also permissible. The Department further notes that the Clery Act regulations in § 668.46(k)(1)(iv) require an institution to describe ‘‘the range of protective measures that the institution may offer to the victim following an allegation of dating violence, domestic violence, sexual assault, or stalking.’’ Unlike the regulations implementing the Clery Act, these final regulations require that a recipient describe only the range of remedies that the recipient may implement following any determination of responsibility. The term ‘‘remedies’’ in these final regulations refers to measures that a recipient provides a complainant after a determination of responsibility for sexual harassment has been made against the respondent, as described in § 106.45(b)(1)(i). Section 106.45(b)(1)(i) provides that ‘‘remedies may include the same individualized services described in § 106.30 ‘supportive measures’; however, remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent.’’ To better align the requirement to describe the range of remedies with the revisions with respect to sanctions in § 106.45(b)(1)(vi), the Department revised § 106.45(b)(1)(vi) to provide that a recipient may either describe the range of possible remedies or list the possible remedies. The Department does not believe it serves the purposes of title IX to limit the type of ‘‘supportive measures,’’ as defined in § 106.30, that a recipient may provide and, thus, a recipient may describe the range of supportive measures, or list the possible supportive measures. A recipient retains discretion to tailor supportive measures to a party’s unique circumstances and may not foresee or anticipate all possible supportive measures. Changes: The Department revised § 106.45(b)(1)(vi) to state that a recipient may describe the range of possible sanctions and remedies or list the possible sanctions and remedies that the recipient may implement following any determination of responsibility. Comments: Some commenters expressed general concern with the proposed rules and asserted that they were inconsistent with the Clery Act without providing additional details. Some commenters noted that while the Department acknowledged that Title IX and the Clery Act’s jurisdictional schemes may overlap in certain situations, the Department failed to PO 00000 Frm 00488 Fmt 4701 Sfmt 4700 explain how institutions of higher education should resolve the conflicts between the two sets of rules when addressing sexual harassment and claimed that these different sets of rules would likely create widespread confusion for schools. Some commenters expressed concern that the proposed rules conflict with congressional intent regarding the appropriate level of due process and fairness, which the commenters contended was set forth by Congress in the Clery Act. One commenter asserted that Congress specifically defined what due process rights it demands for campus adjudications of sexual assault in the Clery Act and nowhere did Congress manifest an intent that the Department should consider the elevated due process protections for respondents outlined in the proposed rule. Another commenter stated that the Department enacted the Clery Act regulations following a negotiated rulemaking process designed to implement Congress’s intent. The commenter argued that in its Clery Act regulations the Department did not interpret the phrase ‘‘prompt, fair, and impartial investigation and resolution’’ in the Clery Act to require any of the elevated due process protections for respondents contained in the proposed Title IX rules and further noted that the Department disagreed with comments on the proposed Clery Act regulations arguing that the regulations eliminated essential due process protections. The commenter asserted that in response to such comments, the Department stated that the Clery Act statute and regulations require that the proceedings be fair, prompt, and impartial to both parties and be conducted by officials who receive relevant training and noted that in such cases, institutions are not making determinations of criminal responsibility, but are determining whether the institution’s own rules have been violated. The commenter argued that the Department’s interpretation of Title IX in the proposed rules is incompatible with its Clery Act regulations and the relevant Clery Act rulemaking process, which demonstrates that the Department’s Title IX rulemaking is arbitrary and capricious and an attempt by the Department to circumvent its own regulations and the clear intent of Congress with respect to procedural due process in campus sexual assault proceedings. Discussion: Although the commenters allude to conflicts between the regulations implementing the Clery Act, and these final regulations E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations implementing Title IX, they did not identify a true specific conflict. The Department acknowledges that its Clery Act regulations overlap with these final regulations and impose different requirements in some circumstances. It has always been true that some recipients that are subject to both the Clery Act regulations and the Title IX regulations must comply with both sets of regulations. The Department has long interpreted Title IX to apply to incidents of sexual harassment and, through guidance, has provided its views of how Title IX applies to prohibit sexual harassment. Even before the proposed regulations, institutions of higher education raised concerns that the Department has not been clear about how requirements under Title IX interact with requirements under the Clery Act. The Department has consistently stated that institutions of higher educations must comply with both Title IX and the Clery Act and provided guidance in the past. These final regulations more formally and clearly address the obligations of a recipient under Title IX than the Department’s past guidance. Contrary to creating confusion, the Department is addressing the intersection of the Clery Act and Title IX through these final regulations. Sexual harassment for purposes of Title IX means conduct on the basis of sex that meets the definition of sexual assault, dating violence, domestic violence, and stalking in the Clery Act. By aligning the definition of sexual harassment in § 106.30 with the Clery Act, the Department is attempting to resolve confusion or perceived conflicts about a recipient’s obligations under Title IX and how these obligations may overlap with some of the conduct that the Clery Act requires. The Department disagrees that these final regulations conflict with the level of due process and fairness, which the commenters contended was set forth by Congress in the Clery Act. Congress stated in 20 U.S.C. 1092(f)(8)(B)(iv)(I)(aa) that an institution’s proceedings must provide a ‘‘prompt, fair, and impartial investigation and resolution.’’ The Department’s regulations implementing the Clery Act adhered to the plain meaning of the statute and establish requirements sufficient for purposes of the Clery Act. Congress, however, did not set forth any parameters for the due process that the Department should require under Title IX to prohibit sex discrimination in a recipient’s education program or activity. The due process protections that the Department requires in these final regulations are VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 designed to address sex discrimination, specifically sexual harassment, in a recipient’s education program or activity for both parties, and not just the respondent. A complainant who chooses to file a formal complaint will benefit from a transparent grievance process under § 106.45 that provides both an investigation and a hearing. The Clery Act is part of Title IV of the HEA, which requires the Department to use negotiated rulemaking procedures in most cases. Congress does not require negotiated rulemaking to promulgate regulations implementing Title IX. The Department used notice-and-comment rulemaking to promulgate these final regulations in accordance with the Administrative Procedure Act, 5 U.S.C. 701 et seq., and that process was not arbitrary and capricious. The fact that there are differences between these final regulations and the regulations implementing the Clery Act do not render these final regulations arbitrary and capricious. The purpose of Title IX, which is to prohibit sex discrimination in a recipient’s education program or activity, is different than the purpose of the Clery Act, which is to require disclosure of certain campus security policies and campus crime statistics. Additionally, Title IX is a condition of receipt of Federal financial assistance, whereas the Clery Act is a condition of receipt of Federal student financial aid for students at institutions of higher education. The Department may legally impose different conditions as requirements for different types of funding. Changes: None. Comments: Some commenters asserted that the proposed rules conflict with the Clery Act’s requirements regarding geographic jurisdiction and coverage of conduct that occurs offcampus, online, and outside of the United States. One commenter found the Department’s failure to follow the Clery Act rules regarding geographic jurisdiction especially problematic in light of the fact that the proposed Title IX rules repeatedly cite and rely on the Clery Act regulations and argued that the Department cannot pick and choose which parts of the Clery Act are applicable to Title IX. One commenter asserted that pursuant to the Clery Act, complainants alleging incidents of sexual assault, dating violence, domestic violence, and stalking, regardless of location, must be given information about off-campus resources as well and questioned why complainants are treated differently under the proposed Title IX rules. Some commenters argued that the response PO 00000 Frm 00489 Fmt 4701 Sfmt 4700 30513 requirements in the Clery Act are not limited to Clery geography. These commenters noted that the Clery Act regulations require institutions to have a policy statement explaining the process and procedure for disclosures of sexual assault (and three other crimes) and asserted that the statement would apply whether the offense occurred on or off campus. The Clery Act final regulations further require institutions to follow the procedures described in their statement regardless of where the conduct occurred. In contrast, the commenters argued, the proposed Title IX rules requiring recipients to adopt policy and grievance procedures apply only to exclusion from participation, denial of benefits, or discrimination on the basis of sex occurring against a person in the United States. The commenters argued that the geographic limitations in the proposed Title IX rules conflict with the Department’s traditional interpretation, which required institutions to respond to harassment or violence that could limit participation in educational programs or activities wherever they occurred in the world, if the covered institution is in the United States. According to these commenters, the geographic limitations in the proposed Title IX rules are inconsistent with the way the Department has interpreted geographic jurisdiction under the Clery Act, and the proposed geographic limitation will have a significant impact on the access of some students to their education and lead to confusion among institutions. Discussion: These final regulations do not conflict with the Department’s regulations concerning Clery geography. Although these final regulations may apply to some incidents of sexual harassment that occur on areas included in an institution’s Clery geography, these final regulations are promulgated under Title IX, which prohibits discrimination on the basis of sex in a recipient’s education program or activity against a person in the United States. These final regulations are consistent with the statutory limitations that Congress applied to Title IX, 20 U.S.C. 1681. The Department is not ‘‘picking and choosing’’ which obligations from the Clery Act to incorporate in these Title IX final regulations. The Department is acknowledging that some conduct covered under Title IX also is covered under the Clery Act. These regulations apply more broadly than the Clery Act insofar as these regulations apply to recipients of Federal financial assistance that are not institutions of higher education whose E:\FR\FM\19MYR2.SGM 19MYR2 30514 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations students receive Federal student financial aid. The Department does not believe it is appropriate to impose on all recipients of Federal financial assistance the same obligations that recipients of Federal student financial aid have. Many recipients of Federal financial assistance such as elementary and secondary schools have never been subject to the requirements of the Clery Act and its geography and forcing them to comply with such requirements as a condition of Federal financial assistance is inappropriate for various reasons. For example, elementary and secondary schools generally are more limited in the geographic scope of their educational activities. The requirement to report crimes described in the Clery Act that occur on Clery geography is not as helpful in the elementary and secondary school context as it is in the postsecondary institution context. Many students attend public elementary and secondary schools that they are assigned to attend and do not have a choice as to which school to attend. Students at postsecondary institutions usually have more options as to which college or university to attend and learning about Clery/VAWA crimes that occur on Clery geography or the nearby geographic area of the institution may help them choose which institution is best for them and help raise awareness of the types and frequency of crimes at or near a particular institution. The Department does not agree that the Clery Act requires the ‘‘disclosure’’ of sexual assault. The Department acknowledges that the Clery Act and its implementing regulations require a postsecondary institution receiving Federal student financial aid, to report the number of incidents of sexual assault, dating violence, domestic violence, and stalking, among other crimes, that occur on Clery geography. The Department also acknowledges the Clery Act may require a postsecondary institution to issue a timely warning in certain circumstances. The Department acknowledges that some of the requirements in the Clery Act are not limited to crimes that occur on Clery geography. However, the Clery Act does not provide that an institution’s obligations regarding an incident that occurred on campus are necessarily the same as its obligations to an incident that occurred off campus. The Department’s Clery Act regulations provide in § 668.46(b)(11)(vii) that the institution will have ‘‘[a] statement that, when a student or employee reports to the institution that the student or employee has been a victim of dating violence, domestic violence, sexual assault, or stalking, whether the offense VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 occurred on or off campus, the institution will provide the student or employee a written explanation of the student’s or employee’s rights and options, as described in paragraphs (b)(11)(ii) through (vi) of this section.’’ This regulation does not state that the institution must provide students or employees with the exact same rights and options, irrespective of where the offense occurred. The Department appreciates the commenter who noted the differences between the Clery Act and Title IX and agrees that each statute has a different purpose. For the reasons explained more thoroughly in the ‘‘Adoption and Adaptation of the Supreme Court’s Framework to Address Sexual Harassment’’ section, the Department is adopting and adapting the rubric in the Supreme Court’s decisions in Gebser and Davis. The Department is faithfully administering the requirements in Title IX that ‘‘[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.’’ 1834 The Department explains its interpretations of ‘‘no person in the United States,’’ ‘‘education program or activity,’’ and other elements of Title IX in the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble. The only specific geographic limitation that these final regulations respect is a limitation that Congress imposed in Title IX by requiring the sex discrimination to be against a person in the United States. No other specific, geographic limitations exist in Title IX, and a recipient with actual knowledge of sexual harassment in its education program or activity against a person in the United States must respond promptly and in a manner that is not deliberately indifferent.1835 The Department disagrees with the commenters’ claim that these final regulations will lead to confusion. Imposing all the requirements in the Department’s regulations under the Clery Act on recipients of Federal financial assistance would result in greater confusion, especially for recipients who have never had to comply with the Department’s regulations implementing the Clery Act. Changes: None. Comments: Some commenters expressed general concerns with the lack of coverage for off-campus sexual harassment noting that especially at the 1834 20 U.S.C. 1681(a). 106.44(a). 1835 Section PO 00000 Frm 00490 Fmt 4701 Sfmt 4700 higher education level, many students live away from home and are likely to explore high-risk situations away from campus. These commenters argued that the proposed changes ignore the reality of the degree to which off-campus sexual harassment impacts a student who is forced to see their harasser on campus daily. These commenters asserted that schools should be required to provide services to students who are assaulted off-campus when the violence interferes with their education and schools should be required to discipline perpetrators who assault students offcampus, especially when the perpetrator is a student of the institution and recommended that the Department refer to the Clery Act rules on geographic jurisdiction. Some commenters expressed concern that the Clery Act requires institutions of higher education to report certain incidents of dating violence, domestic violence, stalking, and sexual assault that occur in certain off-campus locations and notify all students who report such incidents of their rights regardless of whether the offense occurred on or off-campus, but the proposed Title IX rules limit the ability of institutions of higher education to take action to address such incidents. Commenters concluded that § 106.45(b)(3) undermines the Clery Act’s mandate and creates a perverse system in which institutions would have to report incidents of sexual assault that occur off-campus in order to comply with the Clery Act, but would be required by the Department under Title IX to dismiss these complaints instead of investigating them. One commenter asserted that this would allow perpetrators to engage in sexual misconduct with impunity and prevent institutions from taking action to address incidents of sexual misconduct that impact survivors’ access to education. Another commenter asserted that since institutions of higher education are required to report incidents of sexual assault, dating violence, domestic violence, and stalking that occur in noncampus buildings and locations under the Clery Act, these institutions have acquired actual knowledge of such incidents, which, the commenter argued, cannot be ignored. The commenter argued that this conflict between the Clery Act and the proposed Title IX rules would allow schools to ignore off-campus sexual harassment even while reporting and having actual knowledge of these incidents which would likely lead to lawsuits over the inaction of the institutions. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Discussion: These final regulations require a recipient to respond to sexual harassment that occurs in its education program or activity, irrespective of whether the sexual harassment occurs on or off campus. For the reasons set forth earlier, it is imprudent to impose all requirements in the regulations implementing the Clery Act including requirements regarding Clery geography on recipients who are not subject to the Clery Act. The Clery Act requirements that institutions include certain off-campus incidents in crime statistics and provide certain information and opportunities to victims of incidents of dating violence, domestic violence, stalking, and sexual assault that occur in certain off-campus locations do not contradict these final regulations. As previously noted, the Clery Act regulations do not state that the institution must provide students or employees with the exact same rights and options, irrespective of where the offense occurred. The mandatory dismissal in § 106.45(b)(3)(i) also does not conflict with the Department’s regulations implementing the Clery Act. In these final regulations the Department is clarifying that a recipient must dismiss an allegation of sexual harassment in a formal complaint in certain circumstances and that such a dismissal under these final regulations does not preclude action under another provision of the recipient’s code of conduct. If recipients would like to address conduct that these final regulations do not address, recipients may do so. The Department agrees that if a recipient has actual knowledge of sexual harassment, the recipient must respond promptly in a manner that is not deliberately indifferent if the sexual harassment occurred in a recipient’s education program or activity against a person in the United States. The Department notes that under these final regulations, a recipient may be required to respond to incidents that occur off campus. Whether sexual harassment occurs in an education program or activity requires a different analysis than whether sexual assault, domestic violence, dating violence, or stalking occur on campus or off campus. Section 106.44(a) provides that for the purposes of §§ 106.30, 106.44, and 106.45, education program or activity includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which sexual harassment includes, and also includes any building owned or controlled by a student organization that is officially recognized by a VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 postsecondary institution. As discussed in the ‘‘Litigation Risk’’ subsection of the ‘‘Miscellaneous’’ section of this preamble, the Department believes that these final regulations may have the effect of decreasing litigation arising out of a recipient’s responses to sexual harassment. Changes: None. Comments: Some commenters raised general concerns that excluding study abroad programs does not reflect the current reality where many institutions across the United States have campuses and educational programs across the world and whose study abroad programs are offering an important component of the educational programs available to students. These commenters stated that schools should be required to provide services to students who are assaulted in a study abroad program when the violence interferes with their education and schools should be required to discipline perpetrators who assault students off-campus, especially when they are a student of the institution and recommended that the Department refer to the Clery Act rules on geographic jurisdiction for study abroad programs. One commenter argued that by not covering study abroad programs under Title IX the Department was creating a scenario in which a U.S. institution is required to have institutional policies to address incidents of sexual assault in a campus residence hall at an abroad location of the institution under the Clery Act, but such policies would need to be independent of the Title IX process even though it would address the same conduct. The commenter argued that this undermines the ability of the Title IX Coordinator to implement a consistent response to sex discrimination and identify patterns that could put individuals and the community at risk and creates a need for separate processes to address the same behavior, in direct opposition to the stated goal of the proposed Title IX rules to streamline processes and create more efficient systems. Discussion: The Department appreciates the commenter’s concerns about study abroad programs. As explained elsewhere in this preamble, the Department interprets Title IX as prohibiting discrimination on the basis of sex against persons in the United States. The Department notes that recipients of Federal financial assistance may respond to reports of sexual harassment that occur abroad, including in study abroad programs. The Department, however, cannot require a recipient to do so under Title IX. The Department also is not requiring PO 00000 Frm 00491 Fmt 4701 Sfmt 4700 30515 recipients to adopt different processes to address conduct that these regulations do not address. In the interest of efficiency, a recipient may use, but is not required to use, the processes and procedures in these final regulations to address conduct that these final regulations do not address. Changes: None. Comments: One commenter who represents a system of postsecondary institutions raised specific concerns regarding the conflict in geographic jurisdiction between the Clery Act and the proposed Title IX rules related to Greek letter organizations at such institutions. The commenter explained that under prior OCR interpretations, institutions would be required to take action if the incidents disclosed at Greek letter housing could limit access to education, regardless of the level of oversight of the group. Under the Clery Act, analogous sexual assault crimes might be reported if they occurred at Greek letter housing, but only if the house was owned or controlled by a student organization that is officially recognized and the deed or lease would have to be held by the organization, as private homes and businesses are not included. The commenter argued that the Clery Act definition is inconsistent with the proposed Title IX rules and expressed concern that this conflict will create confusion among institutions. The commenter expressed additional concerns that some institutions may be incentivized to no longer recognize Greek letter associations or reduce their recognition so that they would not be considered a program or activity based on the tests drawn from cases included in the proposed Title IX rules. The commenter argued that recognizing such associations can come with requirements such as mandatory insurance, risk management standards, and training requirements, which can reduce incidents of sexual harassment and assault so there are reasons for the Department to incentivize such recognition. Discussion: The Department agrees that with respect to Greek letter organizations, recipients of Federal financial assistance may have different obligations under these final regulations, implementing Title IX, than under the regulations implementing the Clery Act. These obligations, however, do not present a conflict, and the commenter does not identify any specific conflict with respect to Greek letter organizations. The Department recognizes that each recipient may have a different arrangement with Greek letter associations active at its institution and E:\FR\FM\19MYR2.SGM 19MYR2 30516 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations that the application of these final regulations will differ based upon the relationship between the recipient and the Greek letter association. Whether the Greek letter association is an education program or activity of the recipient will depend on the relationship between the recipient and the Greek letter association. These final regulations provide clarity and not confusion as to what an education program or activity includes, as § 106.44(a) states that for purposes of §§ 106.30, 106.44, and 106.45, an education program or activity includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution. The Department acknowledges that many but not all Greek letter associations are student organizations that own or control a building. As more fully explained in the ‘‘Section 106.44(a) ‘education program or activity’ ’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble, recipients may dictate the terms under which they recognize student organizations that own or control buildings, and the reference in § 106.44(a) to ‘‘buildings owned or controlled by a student organization that is officially recognized by a postsecondary institution’’ as part of a recipient’s ‘‘education program or activity’’ for purposes of responding to sexual harassment under these final regulations, includes buildings that are on campus and off campus. By contrast, the Clery Act’s definition of noncampus property excludes from Clery geography ‘‘a fraternity or sorority house that is located within the confines of the campus on land owned by the institution.’’ 1836 The Department does not intend to encourage or discourage recipients from recognizing Greek letter associations, and each recipient must determine what its relationship should be with Greek letter associations. However, where a postsecondary institution does choose to officially recognize a Greek letter association, buildings owned or controlled by that fraternity or sorority are part of the postsecondary institution’s education 1836 34 CFR 668.46 (definition of noncampus building or property); U.S. Dep’t. of Education, Office of Postsecondary Education, The Handbook for Campus Safety and Security Reporting, 2–18 to 2–19 (2016), https://www2.ed.gov/admins/lead/ safety/handbook.pdf. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 program or activity under these final regulations. Changes: None. Comments: One commenter claimed that while the Department indicated that the proposed language regarding emergency removals in § 106.44(c) tracks the Clery Act regulation at 34 CFR 668.46(g), in fact the corresponding Clery Act provision says nothing about the process owed to respondents subject to an interim suspension, and courts have held that due process required under an interim suspension is less elaborate than during a full hearing. One commenter stated that the Clery Act does not prescribe what analytical procedures should be used to determine if an emergency exists, it asks institutions to determine that process for their institution and then disclose that process in institutional policy and in their annual security reports. When such an emergency is confirmed, the Clery Act requires the institution to inform the campus community of the nature of the emergency and what actions they should take to protect themselves. The commenter argued that applying this construct to Title IX makes it seem as though the Department is asking the institution to apply the Clery Act standards to a Title IX process without considering or providing guidance on the implications of such changes to Clery-required emergency notification policies or practices. Some commenters requested clarification regarding how institutions should utilize the referenced Clery standard, ‘‘immediate threat to the health or safety of students and employees occurring on the campus’’ to determine whether a student should be removed from campus. One commenter expressed concern that without additional guidance or directives, this requirement makes it unclear how/to whom/when such circumstances would apply and how and by whom these requirements should be carried out so as to complement, as opposed to interfere with, an institution’s established emergency notification policy and procedures under the Clery Act. The commenter stated that the proposed Title IX rules require that an individual be given an opportunity to challenge the institution’s emergency removal immediately following their removal. The commenter asserted that a successful appeal of an emergency removal would require the institution to determine that its own process for assessing an immediate threat to the health or safety of the campus community was flawed, which would influence Clery Act enforcement as well. The commenter expressed concern PO 00000 Frm 00492 Fmt 4701 Sfmt 4700 that without more clarity and consultation with the Department’s Clery Act Compliance Division, separate parties on campus could be making separate analyses on the presence or absence of an immediate threat to the health or safety of the campus community—one in relation to an emergency removal and the other in relation to the institution’s obligations to determine whether a threat exists and its impact on the broader community— resulting in potential conflicts across departments and creating significant challenges for the Department in assessing an institution’s compliance with Title IX and the Clery Act. One commenter appreciated the ability for schools to remove a respondent that may be a threat to the complainant or the broader campus community, but believed additional clarification was needed as to what elements need to be included in the assessment. The commenter asked for more specific information including whether there are specific assessment tools that are recommended, what does assessment look like, who conducts this assessment, what conduct or behavior would constitute a broader threat, whether it is a standard threat assessment, what constitutes the process for a ‘‘challenge,’’ and who hears that challenge. For example, the commenter inquired whether the person who hears the challenge must be someone separate from the Title IX Coordinator, investigator, decision maker, or appeals person, whether ‘‘removal’’ includes removal from all ‘‘programs/activities,’’ such as extra-curricular activities like athletics; and if so, whether such a removal impacts who conducts the assessment, and to whom a ‘‘challenge’’ should be made. The commenter also noted that the Clery Act requires institutions to alert their campus communities to certain crimes in a manner that is timely and will aid in the prevention of similar crimes. Warnings are issued regarding criminal incidents to enable people to protect themselves. Warnings are issued after an assessment is conducted to determine if the crime that has occurred represents a serious or continuing threat to the campus community. The commenter asked whether it is the Department’s intention to require institutions to conduct a similar assessment before initiating the emergency removal of a respondent. Discussion: The Department noted in the NPRM that the language about an immediate threat to the health or safety of students appears in § 668.46(g) but did not intend to imply that the proposed regulations would have any effect on § 668.46(g) or its application. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations The Department acknowledges that the emergency removal provision in § 106.44(c) of these final regulations is different than the emergency notification provision in § 668.46(g) of the Clery Act regulations. The Department clarifies here that an institution that is subject to the Clery Act does not need to send an emergency notification each time an institution removes a respondent under § 106.44(c). Whether an institution needs to issue a timely warning is governed under the regulations implementing the Clery Act, and these final regulations do not address the conditions (i.e., Clery crime, Clery geography) that may require a recipient to issue a timely warning. The Department also notes that similar language about health or safety emergencies appears in §§ 99.31(a)(10) and 99.36 of the regulations implementing FERPA, and the Department revised the emergency removal provision in § 106.44(c) to better align with the health and safety emergency exception in the FERPA regulations, §§ 99.31(a)(10) and 99.36. Even though the Department uses similar language in the regulations implementing the Clery Act and FERPA, the Department is not requiring recipients to use the same analysis in Clery or in FERPA to determine whether an emergency removal may be appropriate under § 106.44(c). The Department defers to a recipient to conduct an individualized safety and risk analysis to determine whether an immediate threat to the physical health or safety of any student or other individual exists under § 106.44(c). The emergency removal process under § 106.44(c) is a separate process than the process that an institution uses to determine whether there is a threat that requires a timely warning or an emergency notification under the Clery Act, and a recipient may determine that there is a sufficient threat to justify an emergency removal under the Title IX regulations but not to require a timely warning or an emergency notification under the Clery Act regulations. Similarly, a recipient may determine that the circumstances justify issuing a timely warning or emergency notification but not an emergency removal. Section 106.44(c) leaves recipients with flexibility to decide who conducts the individualized safety and risk analysis, and who hears any postremoval challenge. Requiring a postremoval challenge opportunity under § 106.44(c) does not create a conflict with a recipient’s obligation under the Clery Act. Neither a recipient’s decision to invoke emergency removal under VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 § 106.44(c), nor the outcome of a respondent’s post-removal challenge, alters a recipient’s obligations under the Clery Act regulations. The recipient has discretion as to whether to remove the respondent from all of its education programs or activities or only some education programs and activities, and as long as a recipient is not deliberately indifferent with respect to whether an emergency removal is an appropriate response to sexual harassment under § 106.44(a), the Department will not second guess the recipient’s decision. The Department also defers to a recipient as to who hears a respondent’s challenge to a decision to remove the respondent. A Title IX Coordinator, investigator, or decisionmaker may have a role in the emergency removal process as long as such a role does not result in a conflict of interest with respect to the grievance process as prohibited in § 106.45(b)(1)(iii). The Department does not require that a recipient use the grievance process in § 106.45 to address an emergency removal and will defer to a recipient’s process as long as the recipient provides the respondent with notice and an opportunity to challenge the decision immediately following the removal. For further discussion of the emergency removal provision, see the ‘‘Section 106.44(c) Emergency Removal’’ subsection of the ‘‘Additional Rules Governing Recipients’ Responses to Sexual Harassment’’ section of this preamble. Changes: None. Comments: Some commenters raised concerns about conflicts between language in the proposed Title IX rules related to advisors of choice and crossexamination and the Clery Act. One commenter argued that the Clery Act reflects congressional intent regarding providing advisors and crossexamination in campus conduct processes and the proposed Title IX rules conflict with that intent. The commenter stated that congressional intent was clear from the language in the Clery Act, and the Department reasonably interpreted ‘‘advisor of their choice’’ to mean that an institution could not ban a participating student from choosing an attorney. The commenter stated, however, that the Department itself indicated that it did not believe that the statutory language in the Clery Act permitted it to require institutions to provide legal representation to a party in a situation in which one party has legal representation and the other party does not and in the Clery Act final regulations the Department stated that it would not impose such a burden on PO 00000 Frm 00493 Fmt 4701 Sfmt 4700 30517 institutions absent clear and unambiguous statutory authority. The commenter asserted that the commenter could find no statutory authority in Title IX for the Department to require advisors of choice to be provided to students at no cost. The commenter argued that if the Department could find no such authority in the Clery Act, which mentions advisors of choice, there can similarly be no such authority in Title IX, which does not reference advisors or attorneys, and which has not previously been interpreted by the Department to require institutions to provide such representation. Thus, the commenter claimed, because there is no authority or evidence that providing or not providing advisors has a disparate impact based on gender, such a requirement is therefore arbitrary and capricious under the law. The commenter similarly claimed that there is no statutory authority under Title IX to support a requirement that institutions allow advisors to participate in investigations and adjudications under Title IX and the Department could have, and did not, at least make an argument that the Clery Act required advisors to be permitted to participate in such proceedings. Discussion: Contrary to the commenter’s assertions, these final regulations do not require a recipient to provide legal representation for the parties. The Department is clarifying in §§ 106.45(b)(2)(i)(B), 106.45(b)(5)(iv) and 106.45(b)(6)(i) that an advisor may be, but is not required to be, an attorney. The Department’s position that an advisor does not need to be an attorney is consistent with the regulations implementing the Clery Act. In the preamble to the final regulations published October 20, 2014, implementing changes to the Clery Act, the Department stated: ‘‘We do not believe that [the Clery Act] permits us to require institutions to provide legal representation in any meeting or disciplinary proceeding in which the accused or the accuser has legal representation but the other party does not. Absent clear and unambiguous statutory authority, we would not impose such a burden on institutions.’’ 1837 The Department’s position has not changed with respect to the Clery Act, and these final regulations do not require institutions to provide legal representation to either the complainant or the respondent. As previously stated, the Clery Act has a different purpose than Title IX, and the Clery Act applies to recipients of Federal student financial aid and not 1837 79 E:\FR\FM\19MYR2.SGM FR 62774. 19MYR2 30518 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recipients of Federal financial assistance. Although the Clery Act does not require that an advisor be permitted to conduct cross-examination of witnesses testifying at a proceeding, the Department believes that for postsecondary institutions, crossexamination by a party’s advisor is the best approach to assessing allegations of sexual harassment when a formal complaint is filed under these final regulations. The ‘‘Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live Hearing with CrossExamination’’ subsection of the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section in this preamble fully explains the Department’s position regarding the requirement that an advisor be permitted to conduct crossexamination on behalf of a party during a hearing at a postsecondary institution. Under these final regulations, a postsecondary institution is not required to provide an advisor to a party for any purpose other than for crossexamination during the live hearing. Providing an advisor to a party who does not have an advisor for the purpose of cross-examination during a hearing prevents parties from directly crossexamining each other. Changes: The Department has revised §§ 106.45(b)(2)(i)(B), 106.45(b)(5)(iv) and 106.45(b)(6)(i) to specify that the advisor may be, but is not required to be, an attorney. Comments: Some commenters expressed concern that the requirement that institutions allow for crossexamination by an advisor of choice in sexual harassment cases under Title IX that are also within the Clery Act’s definition of sexual assault conflicts with the Clery Act regulations. The commenters noted that the Clery Act regulations explicitly allow institutions to establish restrictions regarding the extent to which the advisor of choice may participate in the proceedings, as long as the restriction applies to both parties, including prohibiting them from conducting or participating in direct cross-examination. At least one commenter stated that in the preamble to the Clery Act final regulations, the Department responded to concerns that advisors of choice may interfere with the process and make the investigation and adjudication of cases more legalistic and take it further away from the educational model. According to this commenter, the Department made several clear statements that institutions may restrict an advisor’s role, such as by prohibiting the advisor from speaking during the proceeding, addressing the disciplinary tribunal, or questioning VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 witnesses. This commenter contended that the Department’s regulations, implementing VAWA, clearly allow colleges and universities to prohibit advisors, including attorneys, from participating in any way, including prohibiting them from conducting or participating in direct or crossexamination. One commenter asserted that the establishment of advisors of choice in the Clery Act was designed to ensure that both parties receive individualized support throughout the process and asserted that this individual is designed to play a supportive role to the complainant or respondent. The commenter stated it was unclear why the Department chose to incorporate this Clery Act requirement into the proposed Title IX rules, particularly if such an advisor would then be expected to conduct a cross-examination. The commenter argued that incorporating this Clery Act requirement into the proposed Title IX rules and requiring that person to conduct crossexamination could lead to people who are untrained, or at best, with limited training offered to them by the institution performing a role they were never intended to perform under the existing Clery Act regulations and creates a destructive process for all parties involved. Discussion: There is no conflict between the regulations implementing the Clery Act and these final regulations implementing Title IX with respect to an advisor conducting crossexamination on behalf of a party. The regulations implementing the Clery Act in § 668.46(k)(2)(iii)–(iv) are similar to these final regulations and require that an institution provide an accuser and the accused with the same opportunities to have others present during any institutional disciplinary proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice and requires that an institution not limit the choice of advisor or presence for either the accuser or the accused. Under § 668.46(k)(2)(iv), an institution may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as these restrictions apply equally to both parties. Section 106.45(b)(5)(iv) contains almost the same language as § 668.46(k)(2)(iii)–(iv) with minor revisions to clarify that the advisor may be, but is not required to be, an attorney. Unlike the regulations implementing the Clery Act, these final regulations require that postsecondary institutions provide an advisor to the parties for the purpose of conducting PO 00000 Frm 00494 Fmt 4701 Sfmt 4700 cross-examination at the hearing. This requirement does not conflict with the Clery Act regulations, as this requirement applies to both parties. As previously noted, the Department may impose different requirements on recipients of Federal financial assistance with respect to Title IX, which prohibits sex discrimination, than on recipients of Federal financial student aid with respect to the Clery Act. The Department’s rationale for requiring that postsecondary institutions provide an advisor to the parties for the purpose of cross-examination at the live hearing or allow a party to have an advisor who conducts cross-examination at the live hearing is more fully explained in the ‘‘Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live Hearing with Cross-Examination’’ subsection of the ‘‘Hearings’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. Nothing in these final regulations precludes a recipient from preventing an advisor from being disruptive, and a recipient may implement rules about appropriate conduct at an interview, meeting, hearing, etc., to require all participants to behave in an orderly manner. Advisors may continue to provide support to the parties, and an advisor’s role is not limited to an adversarial role. Institutions also are welcome to provide training to advisors on cross-examination. The Department fully acknowledges that the role of advisors under these final regulations, implementing Title IX, differs in some respects from the rules relating to advisors under the Department’s Clery Act regulations. However, the rules regarding advisors under both sets of regulations are consistent with each other and do not preclude a recipient from complying with both. The Department does not believe that any such differences, including the requirement to perform crossexamination, will lead to a destructive process and believes that this requirement will lead to a fair, impartial process that will help assess allegations of sexual harassment, as defined in § 106.30. Changes: None. Comments: One commenter asserted that the requirements in the proposed Title IX rules related to the standard of evidence are inconsistent with the language in the Clery Act final regulations. The commenter stated that in the Clery Act final regulations, the Department allowed institutions to select between the preponderance of the evidence standard and the clear and convincing evidence standard without E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations an emphasis on one standard over the other or challenges to implementing the chosen standard. The commenter further stated that in response to comments on the proposed Clery Act rules that the Department should require the clear and convincing evidence standard because this standard better safeguards due process, the Department stated that an institution can comply with both Title IX and the Clery Act by using a preponderance standard. The commenter expressed concern that the Department’s proposed Title IX rules put significant bounds on when the preponderance of the evidence standard can be used versus the clear and convincing evidence standard with a clear intent to push recipients to use the clear and convincing evidence standard, which they argue is a reversal of previous Department policy without any explanation other than that campus conduct processes are not the same as civil litigation. The commenter further argued that the Department has not previously contended that the campus conduct process must hold the same level of process as a lawsuit in Federal court, and it is clear this was never Congress’s intent based on the language in the Clery Act final regulations. Discussion: Under these final regulations, the Department will allow recipients to adopt either a preponderance of the evidence standard or a clear and convincing evidence standard. The Department does not emphasize one standard over another and is not moving forward with its proposal to require that a recipient adopt the same standard for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction. The only requirement in § 106.45(b)(7) is that recipients use the same standard of evidence for complaints against students as it does for complaints against employees, including faculty. As explained in more detail elsewhere in this preamble and in the ‘‘Section 106.45(b)(1)(vii) Describe Standard of Evidence and Directed Question 6’’ subsection of the ‘‘General Requirements for § 106.45 Grievance Process’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, requiring a higher standard of evidence for a student’s formal complaint against an employee than a student’s formal complaint against another student is unfair, especially in light of the power deferential between a student and an employee such as a faculty member. The Department disagrees that it is imposing the same level of process that VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 a Federal district court requires. For example, these final regulations do not contain a comprehensive set of rules of evidence. Neither party may issue a subpoena to gather information from each other or the recipient for purposes of the grievance process under § 106.45. Congress’s intent in enacting the Clery Act is not particularly relevant in determining what Title IX requires to prohibit discrimination on the basis of sex in a recipient’s education program or activity against a person in the U.S. Changes: None. Comments: One commenter expressed support for § 106.45(b)(7) (Determinations Regarding Responsibility) because the requirement to share information about sanctions imposed on the respondent is consistent with both FERPA and the requirements under the Clery Act, for crimes of violence and nonforcible sex offenses. Some commenters expressed general concerns with some requirements in the proposed Title IX rules on the grounds that they violate complainants’ rights to privacy and disagreed with the Department’s assertion that these requirements track language in the Clery Act. Some of these commenters noted that the Clery Act requires an institution to maintain as confidential any accommodations and protective measures provided to the victim. One commenter expressed concern that § 106.45(b)(7) conflicts with § 668.46(k)(2)(v), implementing the Clery Act. The Clery Act regulations clarify that the disclosure of the ‘‘result’’ to the victim must include information on any sanctions imposed and the rationale for the results and sanction. Several commenters suggested that § 106.45(b)(7) should be modified to mirror the Clery Act. One commenter requested to know what the purpose of generally tracking the Clery Act language is in sections such as Section 106.45(b)(7). Several commenters argued that Section 106.45(b)(7) should align completely with the Clery Act, including requiring that an institution maintain as confidential any accommodations or protective measures provided to the victim. One commenter noted the differences between what the Clery Act requires to be included in a written determination regarding responsibility and what the proposed Title IX rules require and expressed concern that the proposed Title IX rules exceed what is required by the Clery Act. The commenter asserted that the additional content that must be included in the written determination regarding responsibility under Title IX are burdensome, repetitive, and PO 00000 Frm 00495 Fmt 4701 Sfmt 4700 30519 unnecessary, particularly given the requirements that the parties have already been provided the investigative report. Some commenters expressed specific concerns with § 106.45(b)(7) which requires recipients to create and make available to the complainant information that includes the determination regarding responsibility, disciplinary sanctions imposed on the respondent, and remedies provided to the complainant and aspects of § 106.45(b)(7) which requires that the recipient’s written determination, which is provided to both parties, include, among other things, any remedies provided by the recipient to the complainant designed to restore or preserve equal access to the recipient’s education program or activity. The commenters asserted that it is a violation of the complainant’s privacy to include information about remedies and supportive measures and, as such, that information should not be included in the recipient’s report nor disclosed to the respondent and that disclosure of such information about supportive measures and remedies provided to the complainant violated, among other things, the Clery Act. The commenters stated that compliance with Title IX’s mandate to prohibit discrimination based on sex is not served in any fashion by informing a respondent of the remedies and supportive measures that a complainant received and disclosing such information is also unconnected to the Department’s stated purpose of assuring compliance with proper procedure. The commenters argued that the Department’s assertion in the preamble that the language in the proposed regulations that the written determination include information on any remedy given to the complainant and be provided to both parties generally tracks the language of the Clery Act regulations is inaccurate because the Clery Act does not permit the disclosure of confidential student information. The commenters noted that while the Clery Act requires that the complainant and respondent receive notification of the result of the disciplinary proceeding, defined as ‘‘any initial, interim and final decision by any official or entity authorized to resolve disciplinary matters within the institution,’’ there is no provision in the Clery Act for providing information about supportive measures or remedies provided to the complainant. Moreover, the commenters argued that in the preamble to the Clery Act final regulations the Department stated that while institutions may need to disclose E:\FR\FM\19MYR2.SGM 19MYR2 30520 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations some information about a victim to a third party to provide necessary accommodations, institutions may disclose only information that is necessary to provide the accommodations or protective measures and should carefully consider who may have access to this information to minimize the risk to a victim’s confidentiality. To alleviate these concerns, the commenters recommended that the Department remove any requirement to include information regarding remedies and supportive measures accessed by the complainant from the requirements related to documentation of the recipient’s response to a Title IX complaint and instead follow FERPA and the Clery Act for the confidentiality of such information. Discussion: The Department appreciates the comments in support of these final regulations. Some commenters mistakenly thought that the proposed regulations require a recipient to share the supportive measures that a complainant receives with the respondent. Neither the proposed regulations nor these final regulations require a recipient to share with the complainant or respondent any supportive measures that either party receives. The definition of supportive measures in § 106.30 clearly states: ‘‘The recipient must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the recipient to provide the supportive measures.’’ Accordingly, a recipient is required to maintain confidentiality with respect to supportive measures as long as such confidentiality does not impair the ability of the recipient to provide the supportive measures. Similarly, a recipient is required to maintain records of supportive measures under § 106.45(b)(10)(C)(ii), and these records, unlike training materials as specified in § 106.45(b)(10), are not publicly available. The Department, thus, maintains the confidentiality of the parties with respect to supportive measures. There also is no conflict between § 668.46(k)(2)(v), implementing the Clery Act, and § 106.45(b)(7) regarding a written determination regarding responsibility. There are many similarities between these two provisions. For example, under both the Clery Act and these final regulations, both parties receive written notification of the results of the hearing simultaneously. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 These final regulations in § 106.45(b)(7) have been revised to clarify that for purposes of Title IX, the result includes the sanctions for the respondent and whether remedies will be provided by the recipient to the complainant. The Department agrees with commenters who noted that a respondent does not need to know the specific remedies that a complainant receives to restore or preserve equal access to the recipient’s education program or activity. For example, if the recipient changed a complainant’s housing arrangements as part of the remedy, there is no reason for the respondent to know about this change. Both parties, however, will know whether the recipient will provide remedies to the complainant but not what these exact remedies are. The Department states in § 106.45(b)(7)(ii)(E) that the parties must be informed in writing of ‘‘the result as to each allegation, including a determination regarding responsibility, any sanctions the recipient imposes on the respondent, and whether remedies will be provided by the recipient to the complainant designed to restore or preserve access to the recipient’s education program or activity.’’ These final regulations do not differ from the Clery Act regulations in requiring that both parties be notified of the result of any disciplinary proceeding. The Department acknowledges that these final regulations implementing Title IX, may require information in the written determination that the Clery Act regulations do not require, such as the findings of fact supporting the determination under § 106.45(b)(7)(ii)(C). (The Clery Act regulations in §§ 668.46(k)(2)(v)(A) and 668.46(k)(3)(iv) require that both parties receive written notification of the results of the hearing simultaneously and specify that the results of the hearing include any initial, interim, or final decision as well as the rationale for the result and the sanctions.) Parties should know the findings of fact that support a determination regarding sexual harassment. As explained in more detail in the section ‘‘Determinations Regarding Responsibility’’ of this preamble, the Department believes § 106.45(b)(7) serves the important function of ensuring that both parties know the factual basis for the outcome of the grievance process. Requiring decisionmakers to provide findings of fact helps verify whether the decision-maker is exercising independent judgment and making an evaluation free from bias. As previously explained, the Department PO 00000 Frm 00496 Fmt 4701 Sfmt 4700 may deviate from the Clery Act regulations, which apply to recipients of Federal student financial aid, in these Title IX final regulations, which apply to recipients of Federal financial assistance. The Department explains its rationale for adopting these requirements for a written determination pursuant to Title IX in the ‘‘Determinations Regarding Responsibility’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble. The Department has revised the proposed regulations to include a provision regarding retaliation in § 106.71(a) that requires a recipient to keep the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute or regulations or as required by law or to the extent necessary to carry out the purposes of this part, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. This provision helps ensure confidentiality and addresses some of the commenter’s concerns. These final regulations are consistent with FERPA, and FERPA applies fully to Title IX proceedings under these final regulations. The commenter does not explain how these final regulations deviate from FERPA, and the Department interprets its regulations under FERPA to be fully consistent with these final regulations. The Department notes that its revision to require the written determination to state whether a complainant will receive remedies and not what remedies the complainant receives aligns with FERPA. As explained in greater detail in the section on FERPA, the specific remedies that a complainant receives are part of the complainant’s education records and need not be disclosed to the respondent. The final regulations revise § 106.45(b)(7)(iv) to state that the Title IX Coordinator is responsible for effective implementation of remedies, thereby indicating that where a written determination states that the recipient will provide remedies to a complainant, the complainant can then communicate separately with the Title IX Coordinator to discuss the nature of such remedies. Changes: The Department revised the proposed regulations to include a provision regarding retaliation in § 106.71(a) that requires a recipient to E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute or regulations or as required by law or to the extent necessary to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. The Department also revised § 106.45(b)(7)(ii)(E) to state that the parties must be informed in writing of the result as to each allegation, including any sanctions the recipient imposes on the respondent and whether remedies will be provided by the recipient to the complainant. The Department further revised § 106.45(b)(7)(iv) to provide that the Title IX Coordinator is responsible for the effective implementation of remedies. Comments: One commenter expressed concern with the proposed rules defining sexual assault as defined by the Clery Act. The commenter asserted that the Clery Act defines sexual assault as carnal knowledge of another person and does not define consent, which the commenter argued is a necessary component of sexual activity. The commenter further stated that failing to include affirmative consent buys into rape myths including that silence is consent. Some commenters expressed concerns regarding the requirement in the proposed Title IX rules that supportive measures be non-punitive, nondisciplinary, and pose no unreasonable burden on the other party noting that there is no similar requirement in the Clery Act. The commenters specifically mentioned changes to the respondent’s class or residence following the filing of a formal complaint or a mutual restriction on contact between the parties as examples of accommodations that are fairly routine, but which may be prohibited under the proposed Title IX rules. The commenters asserted because there are no such restrictions on accommodations for survivors in the Clery Act, there should be no such restrictions on supportive measures under Title IX. One commenter also noted that the Clery Act does not limit accommodations to only those that are reasonably available and designed to preserve or restore access to the school’s program. A commenter also expressed concern that the requirement that the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 supportive services be provided somehow in relation to a complaint conflicts with the Clery Act requirements that victims not be required to file any kind of report to be entitled to interim protective measures and accommodations. One commenter asserted that the Clery Act even more directly requires that recipients minimize the burden on complainants rather than worrying about the burden on respondents and noted that the definition of supportive measures in the proposed Title IX rules is particularly problematic because the proposed Title IX rules also require that respondents be presumed not responsible. Some commenters expressed specific concerns that requiring respondents be presumed not responsible conflicts with the fair and impartial investigation required by the Clery Act, which requires that an institution make no predetermination in favor of either the complainant or respondent. These commenters asserted that this requirement in the proposed Title IX rules explicitly requires that recipients presume complainants are lying, thereby denying sexual misconduct victims the equitable, impartial treatment throughout grievance procedures to which they are entitled under Title IX and the Clery Act and would erode any confidence in the processes and institutions. Discussion: The Department appreciates the commenter’s concern about the definition of consent with respect to sexual assault and intentionally does not require recipients to adopt a particular definition of consent. The Department added language in § 106.30 to clarify that the Assistant Secretary will not require recipients to adopt a particular definition of consent with respect to sexual assault. Accordingly, recipients may adopt their own definition of consent. The Department is not buying into any ‘‘rape myths’’ by not endorsing a particular definition of consent and is giving recipients the discretion to adopt a definition that it deems appropriate. Allowing a recipient to adopt its own definition of consent also helps avoid any conflict with State or local laws that may require a recipient to adopt a particular definition of consent. The Department acknowledges that there are differences between the Clery Act regulations, and these final regulations implementing Title IX. Contrary to the commenter’s assertions, the Department does not require a complainant to file a formal complaint before considering whether to provide supportive measures. The Department clarifies in § 106.44(a) that a recipient PO 00000 Frm 00497 Fmt 4701 Sfmt 4700 30521 must offer supportive measures to a complainant irrespective of whether the complainant files a formal complaint. The Clery Act regulations are silent in this regard and do not require such consideration unless the complainant requests accommodations. The Clery Act regulations at § 668.46(b)(11)(v) provide that the institution must have ‘‘[a] statement that the institution will provide written notification to victims about options for, available assistance in, and how to request changes to academic, living, transportation, and working situations or protective measures [and that t]he institution must make such accommodations or provide such protective measures if the victim requests them and if they are reasonably available, regardless of whether the victim chooses to report the crime to campus police or local law enforcement.’’ The Department notes that this Clery Act regulation does not require any recipient to impose any accommodations that are disciplinary and punitive. The commenter is also mistaken that the Title IX regulations prohibit a recipient from providing a nocontact order. Both the proposed Title IX regulations 1838 and these final regulations allow for mutual restrictions on contact between the parties as stated in § 106.30, and § 106.30 does not expressly prohibit other types of nocontact orders such as a one-way nocontact order. Any supportive measures, however, must be non-disciplinary, non-punitive, and must not unreasonably burden the other party, under § 106.30. Additionally, a sanction for a respondent may consist of or include a one-way no-contact order that only prohibits the respondent from contacting the complainant. The Department does not agree with the commenter’s belief that the definition of supportive measures in these final regulations is particularly problematic in light of the presumption of non-responsibility for the respondent prescribed in § 106.45(b)(1)(iv). The definition of supportive measures in § 106.30 requires any supportive measures to be non-punitive and nondisciplinary because the respondent should receive due process through a grievance procedure under § 106.45 before the imposition of any sanctions or discipline, as stated in § 106.44(a). The presumption of non-responsibility does not provide any advantage to the respondent over the complainant and certainly does not require a recipient to believe that a complainant is lying. This presumption only helps ensure that a respondent is not treated as responsible 1838 83 E:\FR\FM\19MYR2.SGM FR 61496. 19MYR2 30522 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations prior to being proved responsible (subject to exceptions stated under these final regulations, such as § 106.44(c) emergency removal or § 106.44(d) administrative leave applied to a nonstudent employee-respondent). As discussed in the ‘‘Section 106.45(b)(1)(iv) Presumption of NonResponsibility’’ subsection of the ‘‘General Requirements for § 106.45 Grievance Process’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section of this preamble, the presumption does not allow, much less require, a recipient to presume that a respondent is truthful or credible. Notwithstanding the presumption of non-responsibility, credibility determinations cannot be based on a party’s status as a complainant or respondent, and recipients must reach determinations without prejudging the facts at issue and by objectively evaluating all relevant evidence.1839 Changes: The Department clarifies in § 106.44(a) that a recipient must offer supportive measures to a complainant irrespective of whether the complainant files a formal complaint. Comments: Some commenters expressed general concern that the proposed Title IX rules would tilt investigation procedures in favor of the respondent and have unclear time frames for investigations and thus conflict with the Clery Act requirement that investigations be ‘‘prompt, fair, and impartial.’’ Discussion: These final regulations do not tilt the investigation procedures in favor of the respondent and certainly do not allow a recipient to delay an investigation. The Department notes that the Clery Act and its implementing regulations do not include a specific time frame for an investigation. The Department has revised § 106.44(a) to clarify that when a recipient has actual knowledge of sexual harassment in its education program or activity against a person in the U.S., the recipient must respond ‘‘promptly.’’ These final regulations also provide in § 106.45(b)(1)(v) that a recipient must designate reasonably prompt time frames for conclusion of the grievance process, including reasonably prompt time frames for filing and resolving appeals and informal resolution process(es) if the recipient offers informal resolution process(es). Accordingly, these final regulations are consistent with the requirement in the Clery Act and its implementing regulations that investigations must be prompt, fair, and impartial. 1839 Section 106.45(b)(1)(ii). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Changes: The Department has revised § 106.44(a) to clarify that when a recipient has actual knowledge of sexual harassment in its education program or activity against a person in the U.S., the recipient must respond ‘‘promptly.’’ Comments: One commenter expressed concern that the definition of actual knowledge in the proposed Title IX rules, which limits the categories of employees to whom notice constitutes actual knowledge on the part of the institution, conflicts with the sections of the Clery Act that overlap in this area. The commenter asserted that this is especially cause for concern because the proposed Title IX rules adopt the Clery Act definition of sexual assault. The commenter argued that establishing requirements for an institution to respond to allegations of sexual harassment merely so they are not found deliberately indifferent does not exonerate institutions from complying with the Clery Act’s requirement to respond to reports of sexual assault. As a result, institutions would be compelled to develop parallel processes for reporting, investigating, adjudicating, and providing supportive measures for some cases, which does not align with the Department’s stated goal of wanting to streamline Title IX to make the existing response efforts more effective and less burdensome. Some commenters asserted that adopting ‘‘actual knowledge’’ will enable institutions to combine the mandatory reporter lists from Title IX and the Clery Act and will eliminate confusion over who is a mandatory reporter for what conduct. Another commenter stated that under the Clery Act, Campus Security Authorities (CSAs) are defined by the Department as the very wide-ranging group of individuals whose campus role gives them ‘‘significant responsibility for student and campus activities’’ and thus the responsibility to report crimes reported to them. The commenter stated that there is not a perfect overlap between CSAs and responsible employees under existing Title IX guidance, and there is sexual harassment which is actionable under Title IX but which does not rise to the level of a Clery-reportable crime, but the commenter argued that it is incoherent to say that if an individual has such significant responsibility for student and campus activities that they put the institution on notice of Clery-reportable crimes, that they do not also put the institution on notice of Title IXactionable harassment, especially when the same behavior spans both categories. The commenter argued that one of the reasons that the Department has taken PO 00000 Frm 00498 Fmt 4701 Sfmt 4700 this approach in the Clery context is that CSAs under the Clery Act are regularly and highly trained in the intricacies of their reporting responsibilities and determining precisely the elements of incident and geography that compose a Cleryreportable incident and event in the Daily Crime Log. It is not left to untrained and undertrained individuals to make these determinations, whereas removing the responsible employee designation for Title IX does precisely that. One commenter asserted that the proposed rules regarding employees obligated to report directly conflicts with the Clery Act without providing additional reasons regarding the commenter’s reasons for believing such a conflict exists. The commenter expressed concern that many students do not feel safe reporting incidents to university administrators and would feel safer disclosing information to a resident advisor or trusted faculty member and having responsible employees on college campuses ensures that students are at least contacted by the Title IX office to ensure they know there are supportive resources available to them. Discussion: The Department disagrees that ‘‘actual knowledge’’ as defined in § 106.30 and referenced in § 106.44(a) conflicts with the Clery Act and its implementing regulations. The Department defines ‘‘actual knowledge’’ in § 106.30 as notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator, to any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary and secondary school.1840 The Department disagrees that this definition limits the categories of employees to whom notice charges an elementary and secondary school recipient with actual knowledge, because under revised § 106.30 defining ‘‘actual knowledge,’’ notice to any employee of such a recipient riggers the recipient’s response obligations. The Department does not believe the § 106.30 definition of ‘‘actual knowledge’’ is limiting as to postsecondary institutions. The reference in § 106.30 to an ‘‘official of 1840 For discussion of the actual knowledge definition and requirement, see the ‘‘Actual Knowledge’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section, the ‘‘Actual Knowledge’’ subsection of the ‘‘Section 106.30 Definitions’’ section, and the ‘‘Section 106.44(a) ‘actual knowledge’ ’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this preamble. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the recipient who has authority to institute corrective measures on behalf of the recipient’’ does not limit the categories of postsecondary employees to whom notice might trigger the postsecondary institution’s response obligation, because the institution may in its discretion designate and grant authority to specific categories of employees to institute corrective measures on its behalf, thereby assuring that such employees’ knowledge of sexual harassment or alleged sexual harassment conveys actual knowledge to the recipient. The final regulations allow each recipient to make such determinations taking into account the recipient’s unique educational environment, including which employees the recipient’s students may expect to be required to report disclosures of sexual harassment to the Title IX Coordinator, versus any of the recipient’s employees in whom students at postsecondary institutions may benefit from confiding sexual harassment experiences without triggering a mandatory report to the Title IX Coordinator. The Department acknowledges that there are different requirements in the Clery Act and its implementing regulations. The obligations that recipients have under these final regulations and under the regulations implementing the Clery Act differ in some respects, but there is no inherent conflict between the two statutory schemes or their respective implementing regulations. The Department agrees with a commenter that compliance with these final regulations does not necessarily equate with compliance with the Clery Act regulations. The Department disagrees, however, that institutions would need a different grievance process than the process in § 106.45 to respond to allegations of sexual assault, domestic violence, dating violence, or stalking under these regulations implementing Title IX and under the Clery Act regulations because § 106.30 expands the definition of sexual harassment to include dating violence, domestic violence, and stalking under the Clery Act. Additionally, these final regulations clarify in § 106.45(b)(3) that dismissal of a formal complaint because the conduct does not fall under Title IX jurisdictional requirements does not preclude a recipient from addressing the conduct through the recipient’s own code of conduct. Nothing in the final regulations prevents a recipient from using the same grievance process required under § 106.45, to address other misconduct. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 The Department also disagrees that there is any conflict between these final regulations and the definition of campus security authorities (CSAs) under the Clery Act regulations. If a campus security authority is an official of the recipient who has authority to institute corrective measures on behalf of the recipient with respect to sexual harassment or allegations of sexual harassment, then notice of sexual harassment or allegations of sexual harassment to that official constitutes actual knowledge. If a campus security authority, however, does not have authority to institute corrective measures on behalf of the recipient with respect to sexual harassment or allegations of sexual harassment, then notice of sexual harassment or allegations of sexual harassment to that official would not constitute actual knowledge to the recipient. The Department’s 2001 Guidance referred to ‘‘responsible employees’’ in the Title IX context, but the Department no longer adheres to the rubric of ‘‘responsible employees’’ adopted in the 2001 Guidance. Instead, the Department is adopting a definition of actual knowledge in § 106.30 and a deliberate indifference standard in § 106.44(a). The Department notes that there have always been differences with respect to who may constitute a responsible employee under the Department’s Title IX guidance, including the 2001 Guidance, and who constitutes a CSA under the Department’s Clery Act regulations. Postsecondary institutions have long experience working with these requirements and are familiar with these differences. Under these final regulations, postsecondary institutions have more discretion (than under Department guidance) to determine which employees, other than the Title IX Coordinator, have authority to institute corrective measures on behalf of the recipient, and that is independent of whether such employees are CSAs under the Clery Act. Institutions may determine that all of their CSAs are officials who have the authority to institute corrective measures on behalf of the recipient with respect to sexual harassment or allegations of sexual harassment. It is very likely that at least some of an institution’s CSAs have authority to institute corrective measures on behalf of the recipient for purposes of the conduct defined as ‘‘sexual harassment’’ under § 106.30. For example, if a resident advisor has authority to institute corrective measures with respect to sexual harassment or allegations of sexual PO 00000 Frm 00499 Fmt 4701 Sfmt 4700 30523 harassment on behalf of the recipient, then notice to that resident advisor conveys actual knowledge to the recipient under these final regulations, which is a separate inquiry from whether that resident advisor is a CSA under the Clery Act regulations. A CSA has crime reporting obligations under the Clery Act. If a CSA is also an official with authority to institute corrective measures as to sexual harassment, then under these final regulations, notice of sexual harassment to that CSA requires the institution’s prompt response, whether or not the sexual harassment disclosed to that CSA constitutes a Clery Act crime that must be reported for Clery Act purposes. If a CSA is not an official with authority to institute corrective measures as to sexual harassment, then these final regulations allow the postsecondary institution to choose whether that CSA must report sexual harassment to the Title IX Coordinator or may remain a confidential resource for the postsecondary institution recipient’s students (and employees) instead of being required to report the sexual harassment to the Title IX Coordinator. Even if the institution designates certain CSAs as confidential resources for Title IX purposes, CSAs may still be required to report sexual harassment (when the conduct also consists of a Clery crime) for Clery Act purposes, which does not require the CSA to divulge the student’s name or identity. The ‘‘mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient’’ under § 106.30 of these final regulations. Nothing in these final regulations precludes a recipient from giving more employees or officials the requisite authority to institute corrective measures with respect to sexual harassment or allegations of sexual harassment. Similarly, nothing in these final regulations precludes a recipient from training more employees or officials about how to report sexual harassment. Changes: None. Comments: While supportive of the Department’s views on the importance of allowing parties to access evidence, one commenter was concerned that the way in which the access is provided is limited. The commenter stated that this provision is problematic because on many occasions one party has unrestricted access to some or all of the evidence while the other does not. The commenter asserted that only allowing E:\FR\FM\19MYR2.SGM 19MYR2 30524 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations one party access to versions of the records that would, for example, allow them to search materials would create a significant procedural disadvantage and violate the Clery Act, and would be inconsistent with the proposed Title IX rule requirement that the parties have equal access to the records. One commenter asserted that the Clery Act permits an institution to withhold irrelevant or prejudicial evidence from both parties, with the understanding that such evidence will not be brought into the investigation/ decision-making process, while the proposed Title IX rules at 106.45(b)(5)(vi) require that all evidence be disclosed, regardless of whether the investigator or decision-maker intends to rely on the information. The commenter argued that not only does the proposed Title IX language conflict with the Clery Act, it also has the potential for harmful information to be presented to both parties, regardless of relevancy. For example, commenters asserted, past victimization and mental health records of both involved parties may be brought into investigations and the decision-making process and be the subject of review and scrutiny by the opposing party, causing irreparable harm. Additionally, commenters argued, with students knowing that all evidence gathered will be brought into an investigation, it will significantly impair the university’s ability to gather relevant information and cause students to not want to file a complaint or participate in the formal process. Commenters also discussed other potential conflicts with the Clery Act. One commenter asserted that the definition of complainant, which states that a complainant is the direct victim of the sexual misconduct reported, prevents third-parties from intervening and conflicts with the Clery Act’s requirement that institutions of higher education respond properly to all reports of sexual violence and thwarts efforts to get students to intervene when they know their friends are experiencing sexual harassment but are too afraid to come forward. One commenter expressed concern that 106.45(b)(2) in the proposed Title IX rules does not mention that complainants are entitled to protection from retaliation regardless of whether their complaints are successful, as long as they acted in good faith and noted that the Clery Act requires institutions’ sexual misconduct policies to include prohibition of retaliation. One commenter expressed concern that the proposed definition of sexual harassment, that is unwelcome conduct ‘‘on the basis of sex’’ conflicts with the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 definitions of sexual harassment in the Clery Act which defines sexual harassment to include conduct based on gender or perceived gender. One commenter stated that under the Clery Act, mediation would be considered a proceeding; therefore, all Clery Act requirements related to disciplinary procedures would still apply regardless of whether such proceedings are considered informal under Title IX. Discussion: The commenter mistakenly asserts that parties would not have equal access to the records under the proposed or final Title IX regulations. Like the proposed regulations,1841 these final regulations specifically provide in § 106.45(b)(5)(vi) that the recipient must provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the recipient does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to the conclusion of an investigation. Additionally, prior to completion of the investigative report, the recipient must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format, and the parties must have at least ten days to submit a written response, which the investigator will consider prior to completion of the investigative report. Accordingly, the parties will have equal access to evidence under these final regulations. The Department disagrees that the Clery Act regulations require an institution to exclude irrelevant or prejudicial evidence. Pursuant to § 668.46(k)(3)(i)(B)(3), an institution must ‘‘provide[ ] timely and equal access to the accuser, the accused, and appropriate officials to any information that will be used during informal and formal disciplinary meetings and hearings.’’ There is no conflict between this provision and the provision in § 106.45(b)(5)(vi), requiring that a recipient provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint. A party’s mental health records or other sensitive information is not always directly related to the 1841 83 PO 00000 FR 61498. Frm 00500 Fmt 4701 Sfmt 4700 allegations raised in a formal complaint. Additionally, these final regulations do not require a party to submit mental health records or other treatment records as part of the grievance process under § 106.45. If a party chooses to submit such sensitive records and they are directly related to the allegations raised in a formal complaint, the party will have notice that the other party will have the opportunity to review and inspect such records. This requirement should not chill reporting and is essential to a fair, impartial hearing in which both parties have access to the evidence that may be used to prove or disprove the allegations raised in a formal complaint. Nothing in these final regulations prevents a bystander or someone who witnesses sexual harassment from reporting such sexual harassment to the Title IX Coordinator or other official who has authority to institute corrective measures on behalf of the recipient. When a person makes a report of sexual harassment to such an official, the recipient has actual knowledge. Pursuant to § 106.44(a), if a recipient has actual knowledge of sexual harassment in its education program or activity against a person in the United States, the recipient must respond promptly in a manner that is not deliberately indifferent. Accordingly, these final regulations do not preclude a recipient from responding to a report of sexual harassment simply because someone other than the person who experienced the sexual harassment reports it to the Title IX Coordinator or another official. The Department appreciates the comment about retaliation and agrees that these final regulations should address retaliation. Accordingly, the Department has included a retaliation provision in these final regulations. The retaliation provision in these final regulations, § 106.71 states in relevant part: ‘‘No recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or this part, or because the individual has made a report or complaint, testified, assisted, participated, or refused to participate in any manner in an investigation, proceeding, or hearing under this part.’’ This retaliation provision protects all persons who may be involved in a report, investigation, proceeding, or hearing under these final regulations. Contrary to the commenter’s assertions, the Clery Act regulations do not define sexual harassment. The Clery Act regulations provide definitions of sexual assault, dating violence, E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations domestic violence, and stalking, and none of these definitions refer to gender identity. These final regulations refer to sex because Title IX, 20 U.S.C. 1681, expressly prohibits discrimination ‘‘on the basis of sex.’’ The Department is not implementing the Clery Act or revising the Clery Act regulations in these final regulations. The Department’s Office of Postsecondary Education may provide technical assistance as to whether mediation may be a disciplinary proceeding that requires procedures under § 668.46(k) of the Clery Act regulations. With respect to these final regulations, the Department notes that most mediations do not require a standard of evidence or an investigation, and under these final regulations, both parties must provide voluntary, written consent to an informal resolution process under § 106.45(b)(9)(ii). Changes: None. Comments: A number of commenters requested modifications to the proposed rules. Several commenters referenced the requirement in 106.45(b)(7)(i)–(ii) of the proposed Title IX rules requiring that recipients create, make available to the complainant and respondent, and maintain for a period of three years records of any sexual harassment investigation, the results of that investigation, any appeal from that investigation, and all training materials relating to sexual harassment. The commenters suggested that instead of the proposed three-year period of retention, the Department instead require that such records be maintained for a period of seven years which is the period of retention required under the Clery Act. One commenter expressed opposition to the notion that the Title IX Coordinator is the only person that can receive information sufficient to put an institution of higher education on notice. The commenter was concerned that limiting notice to the Title IX Coordinator removes the responsibility to train employees and otherwise implement compliant policies and creates an environment easily manipulated so that the institution would never have notice sufficient to create liability. To address these concerns, the commenter recommended that the Department coordinate reporting and knowledge requirements under Title IX with the Clery Act with the caveat that individuals who are ‘‘victim advocates’’ should be excluded from reporting. The commenter argued that aligning the list of individuals for reporting and notice under Title IX and the Clery Act would align two Federal laws and also clarify for students who VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 has a duty to report knowledge of sexual harassment and simplify for institutions of higher education who among their faculty and staff have a duty to report what. This commenter recommended that persons classified under the proposed Clery/Title IX aligned reporting list be responsible for following campus protocols, informing students of who is qualified to receive a formal complaint, and notifying campus officials of becoming aware of the harassment without instigating a formal complaint. One commenter asserted a general conflict with the Clery Act mandates for CSAs and the proposed rules, stating that it is reasonable to assume that if a student went to a school official and disclosed having experienced sexual violence they would be provided with resources, since it is a school’s duty to keep students safe on campus. To address this concern, the commenter recommended that the Title IX regulation be consistent with the Clery Act and require schools to publicize what individuals are classified as mandated reporters on a campus and any information that is shared to a mandated reporter (or CSA) should result in supportive measures being offered to the person who makes a report. Discussion: The Department agrees with commenters who recommended a seven-year record retention period to align with the Clery Act regulations. Accordingly, the Department has revised § 106.45(b)(10) to require a seven-year retention period. Although the record retention period under these final regulations does not have to be the same as the record retention period under the regulations implementing the Clery Act, the Department believes it would be helpful to provide consistency and simplicity in this regard. Contrary to the commenter’s assertions, these final regulations do not require an individual to report sexual harassment only to the Title IX Coordinator. Any official who has authority to take corrective action on behalf of a recipient has actual knowledge, and a recipient with actual knowledge of sexual harassment in its education program or activity against a person in the U.S. must respond promptly and in a manner that is not deliberately indifferent under § 106.44(a). The Department appreciates the comments about campus security authorities and does not assume that every campus security authority has authority to institute corrective measures on behalf of a recipient with respect to sexual harassment or PO 00000 Frm 00501 Fmt 4701 Sfmt 4700 30525 allegations of sexual harassment. If a recipient chooses to designate that all campus security authorities have such authority, then a recipient may do so. The Clery Act requirement to have campus security authorities, however, does not apply in the elementary and secondary school context and adopting that terminology in these title IX rules will cause confusion for recipients that are not postsecondary institutions that receive Federal student financial aid. Additionally, the obligations under the Clery Act and its regulations are different than Title IX and its regulations, and creating a ‘‘Clery/Title IX aligned reporting list’’ requires that the same people be responsible for two different sets of regulatory requirements and obligations, which may be confusing. For example, the Clery Act and its regulations apply to some conduct such as burglary and arson that is not considered sexual harassment under the Title IX final regulations, and similarly, Title IX and its regulations may apply to some conduct that is not a Clery crime. Having a Title IX Coordinator who is specially trained to handle allegations of sexual harassment pursuant to § 106.45(b)(1)(iii) is important. A Title IX Coordinator performs unique functions that a Clery Act Coordinator and other persons who are responsible for compliance with the Clery Act do not perform, and anyone may report sexual harassment to the Title IX Coordinator. Although the Department does not require recipients to provide supportive measures in response to any report made to a campus security authority or a mandated reporter at a postsecondary institution, the Department has revised these final regulations to require a recipient to offer supportive measures in response to a report of sexual harassment, if the recipient has actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the U.S. pursuant to § 106.44(a). As previously explained, a recipient may choose to give all of its campus security authorities authority to institute corrective measures on behalf of the recipient with respect to sexual harassment or allegations of sexual harassment. With respect to the elementary and secondary context, notice to any employee of the elementary and secondary school conveys actual knowledge to the recipient under § 106.30. Changes: The Department has revised § 106.45(b)(10) to require a seven-year record retention period. The Department also revised these final regulations to require a recipient to offer supportive E:\FR\FM\19MYR2.SGM 19MYR2 30526 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations measures to a complainant, if the recipient has actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the U.S. pursuant to § 106.44(a). Comments: One commenter expressed concern that actual knowledge as defined under the proposed Title IX rules is too narrow and would provide an incentive for institutions to discourage employees, whom students may reasonably believe have the authority to take corrective action, from communicating reports of sexual harassment or assault to the Title IX Coordinator. The commenter asserted that the individuals to whom notice would constitute actual knowledge under the proposed Title IX rules is inconsistent with the Clery Act. For example, the commenter argued, a student could report a rape to an athletic coach who is a CSA under the Clery Act and the institution would then be required to include the reported crime in its crime statistics, and may even issue a timely warning to the campus community under the Clery Act, but then deny actual knowledge of the rape for Title IX purposes if the student does not then duplicate their initial report to the Title IX Coordinator. To address these concerns, the commenter recommended that the Department expand the definition of actual knowledge to include anyone who otherwise has the duty to report crimes to the institution for State and/ or Federal law purposes. Discussion: The Department defines ‘‘actual knowledge’’ in § 106.30 as notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary and secondary school. In elementary and secondary schools, if any employee of an elementary and secondary school has notice of sexual harassment or allegations of sexual harassment as described in the definition of ‘‘actual knowledge’’ in § 106.30, such notice conveys actual knowledge to a recipient and requires a recipient to respond to any alleged sexual harassment in a recipient’s education program or activity against a person in the U.S. Accordingly, if an athletic coach is an employee of an elementary and secondary school, then that coach would have actual knowledge if the coach has notice of sexual harassment or allegations of sexual harassment as defined in § 106.30. With respect to postsecondary institutions, the Department does not VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 assume that all campus security authorities (CSAs) have the authority to institute corrective measures on behalf of a recipient with respect to sexual harassment or allegations of sexual harassment, and as discussed previously, these final regulations give postsecondary institutions discretion to decide to authorize certain employees in a manner that makes those employees ‘‘officials with authority’’ as described in § 106.30, and to decide that other employees should remain confidential resources to whom a student at a postsecondary institution might disclose sexual harassment without automatically triggering a report by the employee to the Title IX Coordinator. With respect to the commenter’s hypothetical about a timely warning, a recipient that issues a timely warning also creates actual knowledge of sexual harassment because the timely warning would go to the entire campus community, including to officials who have the authority to institute corrective measures on behalf of the recipient. A recipient with actual knowledge of sexual harassment in its education program or activity against a person in the U.S. must respond promptly and in a manner that is not deliberately indifferent under § 106.44(a). Changes: None. Comments: Another commenter agreed that the Title IX Coordinator, investigator, or decision-maker should be fair and impartial, but was concerned that the language in § 106.45(b)(1)(iii) is confusing and does not provide administrators or students with a clear, defined, understandable standard. The commenter also stated that although the Department indicated that the proposed rules are based on the Clery Act, the language in the Clery Act is limited to addressing a conflict of interest or bias for or against the accuser or accused while the proposed Title IX rule seeks to address conflict of interest or bias generally, as well as on an individual basis. To address this concern, the commenter recommended that the standard be revised to more clearly define the standard expected, e.g., require that any individual designated by a recipient as a Title IX Coordinator, investigator, or decision-maker not have a personal bias or prejudice for or against complainants or respondents generally, and not have an interest, relationship, or other consideration that may compromise, or have the appearance of compromising, the Title IX Coordinator’s, investigator’s, or decision-maker’s judgement with respect to any individual complaint or respondent. PO 00000 Frm 00502 Fmt 4701 Sfmt 4700 One commenter expressed several concerns and requested clarification regarding conflicts of interest and bias. The commenter stated that § 106.45(b)(1)(iii) is similar, although somewhat broader, than the Department’s Clery Act regulations by requiring that proceedings be ‘‘[c]onducted by officials who do not have a conflict of interest for or against either party.’’ The commenter expressed concern that without a clear definition of ‘‘conflict of interest’’ or ‘‘bias’’ and in light of other confusing and conflicting aspects of the proposed rules, institutions will have difficulty implementing this requirement. The commenter also noted that to overcome the presumption that campus decisionmakers are free of bias in Title IX litigation, courts require proof that a campus official had an actual bias against the party because of that party’s sex, and the discriminatory actions flowed from that actual sex-based bias. The commenter expressed concern that absent additional clarification, the proposed rules suggest a reversal of the judicial presumption that campus decision-makers are free of bias. The commenter also asserted that the proposed rules would open the door to numerous claims that undermine the honesty in campus proceedings. The commenter stated that litigants in Title IX cases commonly argue that campus disciplinary officials were biased or conflicted because of their research agenda or pro-victim advocacy, but that the Department indicated in the Clery Act final regulations that a party could not support a claim of bias under § 668.46(k)(3)(i) based on an allegation that ‘‘ideologically inspired people dominate the pool of available participants’’ in a sexual misconduct proceeding, which is similar to holdings from Federal courts. The commenter was concerned that the proposed rules offer no clarity as to whether the Department would accept such claims, which the commenter described as frivolous. The commenter further stated that the proposed rules do not clearly indicate whether the Department will consider an official’s holding of two or more roles in the conduct process to be per se proof of bias or conflict of interest. The commenter stated that small community colleges, in particular, have limited staff resources to investigate and adjudicate campus sexual misconduct and stated that if the Department intends to prohibit any overlap in responsibilities among the Title IX Coordinator, investigator, or decision-maker, it must make that intention clear. The commenter E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations expressed concern that such a rule would provide due process protections exceeding those required by Federal and State courts and will strain already limited resources. Finally, the commenter expressed concern that the lack of clarity in the proposed rules regarding bias and conflicts of interest could impede efforts to bring traumainformed practice to campus disciplinary proceedings. The commenter stated that the Clery Act regulations require annual training for officials, and several States mandate trauma-informed training for campus officials who respond to sexual assault. The commenter further noted that although courts generally reject arguments that trauma-informed practice constitutes a form of sex discrimination in favor of reporting individuals, the lack of clarity in the proposed rules could lead to further litigation in the future. Discussion: The Department appreciates the commenter’s concerns and acknowledges that § 668.46(k)(3)(i)(C) of the Clery Act regulations requires a prompt, fair, and impartial proceeding that is ‘‘[c]onducted by officials who do not have a conflict of interest or bias for or against the accuser or the accused.’’ These final regulations in § 106.45(b)(1)(iii) require that any individual designated by a recipient as a Title IX Coordinator, investigator, decision-maker, or any person designated by a recipient to facilitate an informal resolution process, not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. The Department is not including the Clery Act language in these regulations. The Department believes that if a Title IX Coordinator, investigator, decision-maker, or person who facilities an informal resolution process has a conflict of interest or bias for or against complainants or respondents generally, then that conflict or bias will affect the grievance process under § 106.45. Although the requirement regarding conflict of interest and bias may go beyond what some courts require, the Department is committed to providing a fair, impartial process to address sexual harassment under Title IX. Eliminating conflicts of interest and bias from the grievance process under § 106.45 is important to help insure a fair, impartial process. The Department further notes that in the preamble to the final regulations, implementing the changes to the Clery Act, made by VAWA, the Department responded to commenters who asked VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 whether § 668.46(k)(3)(i)(C) may address ‘‘situations in which inappropriately partial or ideologically inspired people dominate the pool of available participants in a proceeding.’’ 1842 The Department responded that ‘‘without more facts we cannot declare here that such scenarios present a conflict of interest, but if they did, § 668.46(k)(3)(i)(C) would prohibit this practice.’’ 1843 In these final regulations implementing Title IX, the Department more clearly states that a conflict of interest or bias may be for or against complainants or respondents generally or an individual complainant or respondent for purposes of Title IX. The Department further notes that the Clery Act regulations do not further elaborate on what may constitute a conflict of interest or bias and further declines to do so in these final Title IX regulations. Recipients of Federal student financial aid have been able to determine what constitutes a conflict of interest or bias without definitions in the regulations implementing the Clery Act. Recipients of Federal financial assistance also enjoy some discretion to determine what may constitute a specific conflict of interest or bias with respect to the unique factual circumstances in a report of sexual harassment. The Department appreciates the commenter’s concerns about whether an official may serve in dual roles, and these final regulations specify when serving in dual roles is prohibited. For example, the decision-maker who makes a written determination regarding responsibility cannot be the same person as the Title IX Coordinator or the investigator under § 106.45(b)(7). The Department clarifies in these final regulations that the decision-maker for an appeal cannot be the Title IX Coordinator or any investigator or decision-maker that reached the determination regarding responsibility pursuant to § 106.45(b)(8)(iii). Recipients have discretion to train Title IX personnel in trauma-informed approaches or practices, so long as all requirements of these final regulations are met. A trauma-informed approach or training on trauma-informed practices may be appropriate 1844 as long as such 1842 U.S. Dep’t. of Education, Office of Postsecondary Education, Final Regulations Implementing Changes to the Clery Act Made by VAWA, 79 FR 62752, 62775 (Oct. 20, 2014). 1843 Id. 1844 E.g., Jeffrey J. Nolan, Fair, Equitable TraumaInformed Investigation Training (Holland & Knight updated July 19, 2019) (white paper summarizing trauma-informed approaches to sexual misconduct investigations, identifying scientific and media support and opposition to such approaches, and cautioning institutions to apply trauma-informed PO 00000 Frm 00503 Fmt 4701 Sfmt 4700 30527 an approach or training is consistent with § 106.45(b)(1)(iii), which requires recipients to train Title IX personnel (i.e., Title IX Coordinators, investigators, decision-makers, persons who facilitate informal resolutions) to serve impartially, without prejudging the facts at issue, using materials free from reliance on sex stereotypes, and requires Title IX personnel to avoid conflicts of interest and bias for or against complainants or respondents generally or an individual complainant or respondent. Changes: None. Comments: One commenter requested clarification regarding what is included in supportive measures under Title IX, especially given potential conflicts with the Clery Act. The commenter questioned whether supportive measures under Title IX would be defined to include victim advocacy, housing assistance, academic support, disability service, health and mental health service, legal assistance as they have in the past and requested clarification regarding whether antiretaliation measures are available. The commenter also noted that under the Clery Act, institutions must provide victims with written notification of their option to request changes in their academic, living, transportation, and working situations, and they must provide any accommodations or protective measures that are reasonably available once the student has requested them, regardless of whether the student has requested or received help from others or whether the student provides detailed information about the crime and questioned how this would be resolved in light of potential conflicts with the proposed Title IX rules and the limitations on the types of supportive measures institutions may provide under Title IX (e.g., non-punitive, nondisciplinary, not unreasonably burdensome to other party). One commenter stated that § 106.30 defines complainant as ‘‘an individual who has reported being the victim of conduct that could constitute harassment, or on whose behalf the Title IX Coordinator has filed a formal complaint, ’’ while the Clery Act uses the word ‘‘victim’’ throughout. The commenter requested clarification regarding the difference in language. Discussion: The Department appreciates the commenter’s concerns regarding supportive measures and disagrees that these final regulations conflict with the Clery Act regulations with respect to supportive measures. approaches carefully to ensure impartial investigations). E:\FR\FM\19MYR2.SGM 19MYR2 30528 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations The Department notes in its definition of supportive measures in § 106.30 that supportive measures may ‘‘include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absences, increased security and monitoring of certain areas of the campus, and other similar measures.’’ Supportive measures must be non-disciplinary and non-punitive individualized services under § 106.30. The Clery Act regulations do not require supportive measures to be disciplinary or punitive. Additionally, the Department revised these final regulations to require a recipient to offer supportive measures to a complainant in response to a report of sexual harassment in the recipient’s education program or activity against a person in the United States under § 106.44(a). A recipient’s Title IX Coordinator also must promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. These revisions clarify a recipient’s obligation with respect to supportive measures. With respect to the concern about retaliation, the Department added a provision in § 106.71 to prohibit retaliation, and this provision is explained in more detail in the section on ‘‘Retaliation’’ subsection of the ‘‘Miscellaneous’’ section in this preamble. The Department acknowledges that both the Clery Act and its implementing regulations include the term ‘‘victim,’’ while these final regulations include and define the term ‘‘complainant.’’ The Department again notes that the purpose of the Clery Act differs from the purpose of Title IX. The Clery Act generally concerns the disclosure of campus security policy and campus crime statistics, and the term ‘‘victim’’ is appropriate in the context of crime or criminal activity. Title IX concerns discrimination on the basis of sex, and these final regulations specifically address sex discrimination in the form of sexual harassment. The Department defines a complainant as ‘‘an individual who is alleged to be the victim of conduct that could constitute sexual harassment’’ under § 106.30 and uses the word ‘‘victim’’ in that context. Under these VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 final regulations, a recipient has an obligation to respond to a report of sexual harassment that occurs in its education program or activity against a person in the United States, irrespective of whether the complainant chooses to file a formal complaint. Defining a complainant as a person who has been alleged to be the victim of conduct that could constitute sexual harassment aligns better with a recipient’s obligations to respond to such a report under Title IX. Accordingly, the term ‘‘complainant’’ is more appropriate for the structure and purpose of these final regulations to address sexual harassment under Title IX. The Department explains its decision to remove the phrase ‘‘or on whose behalf the Title IX Coordinator has filed a formal complaint’’ from the definition of complainant in § 106.30 as explained in the ‘‘Complainant’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble. Changes: The Department has included a provision in § 106.71 to prohibit retaliation for the purpose of interfering with any right or privilege secured by Title IX or these final regulations or because the individual has made a report or complaint, testified, assisted, participated, or refused to participate in any manner in an investigation, proceeding, or hearing under these final regulations. The Department also has revised these regulations to require a recipient to offer supportive measures to a complainant in response to a report of sexual harassment in the recipient’s education program or activity against a person in the United States under § 106.44(a), irrespective of whether a complainant files a formal complaint. Pursuant to § 106.44(a), a recipient’s Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. harassment such as racial discrimination under Title VI and disability discrimination under Section 504, are treated differently. The commenters contended that the fact that the Department does not require elaborate grievance procedures under Title VI or Section 504 undercuts any rationale the Department has for proposing the § 106.45 grievance process under Title IX. Discussion: The Department disagrees that the NPRM or these final regulations are arbitrary and capricious under the APA due to the differences in the way the final regulations address sex discrimination under Title IX and the Department’s regulations addressing concerning racial and disability discrimination, respectively, under other statutes. The APA does not require the Department to devise identical or even similar rules to eliminate discrimination on the bases of sex, race or disability (or of any other kind), and commenters do not identify any legal obligation of that nature. The APA states, in relevant part, that ‘‘[t]he reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .’’ 5 U.S.C. 706(2)(A). This test inquires whether the agency ‘‘examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made,’’ and ‘‘whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’’ 1846 Furthermore, agency ‘‘action’’ is statutorily defined as ‘‘the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.’’ 1847 The statutory text’s placement of the modifier ‘‘an’’ indicates the APA is concerned with evaluating distinct final agency actions in their individual capacity rather than the collective whole of an agency’s actions. Moreover, no textual or structural indicator, nor legislative history,1848 contradicts this Different Standards for Other Harassment Comments: Some commenters argued that the NPRM is arbitrary and capricious under § 706 of the Administrative Procedure Act 1845 (‘‘APA’’) because it singles out sexual harassment for special rules, including procedural rules, while other forms of 1846 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal quotations marks and citations omitted). 1847 5 U.S.C. 551(13) (emphasis added to show singularity of final agency action). 1848 See Lawson v. FMR LLC, 571 U.S. 429, 459– 60 (2014) (Scalia, J., concurring in principal part and concurring in judgment) (‘‘Reliance on legislative history rests upon several frail premises. First, and most important: That the statute means what Congress intended. It does not . . . . Second: That there was a congressional ‘intent’ apart from that reflected in the enacted text . . . . Third: That the views expressed in a committee report or a floor 1845 See PO 00000 5 U.S.C. 701 et seq. Frm 00504 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations inference. Therefore, § 706(2)(A), incorporating § 551(13), is geared toward individual agency actions, not the whole corpus of all or all possibly similar agency actions. This means that § 706(2)(A) does not require one agency action under one statute to be consistent with another agency action under a different statute. That makes sense because a contrary interpretation of § 706(2)(A) would require consistency between (and among) even inter-agency regulations; and potentially would render one agency’s regulations arbitrary and capricious simply because they differ from another agency’s regulations. That might happen in the guise of arguing that no matter what, the Federal government is the regulatory promulgator. But this is not what the APA effectuates, as ‘‘Congress . . . does not, one might say, hide elephants in mouseholes.’’ 1849 If Congress were to take this dramatic step of opening up agency regulations for any kind of comparative review by the courts, its ‘‘textual commitment [would have] be[en] a clear one.’’1850 While the APA has at times been interpreted to render agency regulations, notably interpretive rules, arbitrary and capricious, and thus ultra vires, because they conflict with the regulation promulgated by the same agency that the new rule was interpreting, as Gonzales v. Oregon 1851 typifies, that principle does not apply to inter- or even intra-agency regulations deriving their delegations from different statutes. In addition to this major difference with Gonzales, this NPRM—unlike the interpretive rule struck down in Gonzales—‘‘would [not] substantially disrupt the [Title VI and Section 504] regime[s].’’ Id. at 254. The NPRM and the final regulations will have no impact whatsoever on the Title VI and Section 504 regimes, much less undermine those regimes. Consequently, while an agency regulation might be arbitrary or capricious in and of itself, it ordinarily cannot be so just because it differs somewhat from another regulation of the same agency stemming from different statutory provisions. Moreover, while agency authority is not unlimited, an agency’s discretion in this regard is statement represent those of all the Members of that House [or of the President].’’); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 56–58 (2012) (‘‘[T]he [statute’s] purpose must be derived from the text, not from extrinsic sources such as legislative history or an assumption about the legal drafter’s desires.’’). 1849 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). 1850 Id. 1851 546 U.S. 243, 255–58 (2006). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 expansive, for the arbitrary and capricious standard is a high bar that mere disagreement with the agency’s action will not satisfy.1852 All this is true for practical reasons too, because a contrary principle would wreak havoc on agency behavior regulating discrimination (and much else) in at least three fundamental respects. It would deny agencies latitude to gradually promulgate regulations governing different subject matters under different statutes. Moreover, it would raise gratuitous questions about whether to ‘‘equalize up’’ or ‘‘equalize down’’ the regulations across wide swaths of statutory regimes. And it would fail to account for the reasonable premise that the Federal government and its agencies are entitled to move cautiously, when they elect to do so at all, because of potentially significant differences between how different statutes address different subject matters and the impact that too expeditious a shift might have on the field. Illustratively, here the three different statutes noted by commenters address sex, racial, and disability discrimination, and these three subject matters raise complex questions of evidentiary standards, definitions, grievance procedures, remedies, and more. Treating them as interchangeable would, among other things, strip the Federal government of a studious, careful approach to studying the impact of one set of regulations attending one subject matter before transposing them to other regulations concerning a different subject matter. Such an extreme and gratuitous step ought not to be taken lightly nor foisted on an agency. The statutory texts attending Title VI, Title IX, and Section 504 give no indication that regulations arising from any of them must, or even may, serve as APA comparators for either or both of the others. Because that comparison would be an extraordinary act of intervention in the process of agency rulemaking, presumably Congress would have spoken clearly and unambiguously to that effect, for it does not hide momentous, law-altering ‘‘elephants’’ in statutory ‘‘mouseholes,’’ and certainly not tacitly or silently.1853 Congress, though, has done no such thing in this instance. Instead, Congress included specific statutory exemptions to Title IX that do not exist in Title VI or Section 504. For example, Congress 1852 See Assoc. of Data Processing Serv. Orgs., Inc. v. Bd. of Govs. of the Fed. Res. Sys., 745 F.2d 677, 684 (D.C. Cir. 1984). 1853 Whitman, 531 U.S. at 468. PO 00000 Frm 00505 Fmt 4701 Sfmt 4700 30529 included specific statutory exemptions to Title IX such as an exemption for educational institutions training individuals for military services or the merchant marine,1854 for father-son or mother-daughter activities at an educational institution,1855 and for pageants in which participation is limited to individuals of one sex only.1856 Such exemptions indicate congressional recognition that prohibition of sex discrimination under Title IX is not necessarily identical to prohibition of discrimination based on race, or disability, under other nondiscrimination statutes. As a further, similar example, Department regulations implementing Title IX have, since 1975, required recipients each to designate one or more employees to coordinate the recipient’s efforts to comply with Title IX; 1857 no corresponding regulatory requirement exists in the Department’s Title VI regulations, yet the fact that the Department’s Title IX implementing regulations differ in such a manner from the Department’s Title VI regulations have not rendered the Title IX regulations invalid under the APA or on any other basis. Structural safeguards already in place ensure there is some consistency across various agency regulations stemming from different statutory regimes. The Department and other agencies submit their regulations to the inter-agency review process facilitated by the Office of Management and Budget (OMB) under Executive Order 12866 so that other agencies are consulted and can provide their input. Consequently, the differences in the way the final regulations address sexual harassment as a form of sex discrimination under Title IX and the Department’s regulations concerning racial and disability discrimination, respectively, under other statutes do not suggest that the NPRM or these final regulations exceeds the Department’s authority under, or otherwise violates, the APA. Changes: None. Spending Clause Comments: Some commenters argued that the Legislative Vesting Clause in Article I of the Constitution—‘‘All legislative Powers herein granted shall be vested in a Congress of the United States,’’ U.S. Const. art. I, § 1, cl. 1— 1854 20 U.S.C. 1681(a)(4). U.S.C. 1681(a)(8). 1856 20 U.S.C. 1681(a)(9). 1857 See 34 CFR 106.8(a); these final regulations at § 106.8(a) retain, clarify, and strengthen the requirement that each recipient designate at least one Title IX Coordinator. 1855 20 E:\FR\FM\19MYR2.SGM 19MYR2 30530 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations requires that Congress may not delegate to the Department (indeed, to any agency) the power to implement regulations pertaining to specific subject matters. Commenters also argued that Congress has made no delegation to the Department that would allow the Department to promulgate regulations concerning sexual harassment and assault on campuses, because Title IX pertains to discrimination, not to harassment. Second, some commenters argued that the NPRM exceeds the Federal government’s constitutional authority under the Spending Clause, see U.S. Const. art. I, § 8, cl. 1, because the mandatory procedures set out in the NPRM may constitute unconstitutional conditions. For example, at least one commenter asserted that the Department should not mandate specific grievance procedures because what process is due in each particular case may differ depending on the circumstances. These commenters contended that the NPRM improperly alters the essence of the bargain struck between the government and funding recipients long after the terms were finalized and the NPRM cannot form part of a true mutual agreement. These commenters also asserted that the proposed rules are not a true agreement between the parties whom the terms of the proposed rules purport to bind—including every student in a federally funded institution—because students have no say in this agreement. One commenter argued that the Department cannot erode the First Amendment rights of academic institutions to determine who may be admitted to study and who may be permitted to continue to study through a fair process to determine responsibility and to sanction in a way that both educates the student as to the consequences of their actions and deters further similar deleterious activity. This commenter contended that the First Amendment or other constitutional rights of recipients do not automatically yield just because the action by the Federal government is declared to be taken under the Spending Clause. Discussion: While we appreciate commenters’ concerns, we disagree that the Department lacks the delegated authority to promulgate the final regulations. Certainly, commenters are correct that Article I of the U.S. Constitution provides, in the Legislative Vesting Clause, that ‘‘[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.’’ 1858 Article I then proceeds to enumerate 1858 U.S. Const. art. I, § 1, cl. 1 (emphasis added). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Congress’s authority on a power-bypower basis.1859 It also means the only source of elasticity for congressional power is the Necessary and Proper Clause, authorizing Congress to ‘‘make all Laws which shall be necessary and proper for carrying into Execution the [enumerated] Powers.’’ 1860 This is why the early Supreme Court explained that Congress may not transfer to another branch ‘‘powers which are strictly and exclusively legislative.’’ 1861 But, as the Supreme Court later recognized, the Constitution affords ‘‘Congress the necessary resources of flexibility and practicality [that enable it] to perform its function[s].’’ 1862 Congress, for instance, is permitted to ‘‘obtain[] the assistance of its coordinate Branches,’’ including by authorizing executive agencies implement the statutes passed by Congress, through agency regulations.1863 With respect to ‘‘our increasingly complex society, replete with ever changing and more technical problems,’’ the Supreme Court has reasoned that ‘‘Congress simply cannot do its job absent an ability to delegate power under broad general directives.’’ 1864 As a consequence, the Supreme Court has held that a statutory delegation will be upheld under the Legislative Vesting Clause so long as Congress ‘‘lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.’’ 1865 This ‘‘intelligible principle’’ doctrine, which represents a delicate constitutional balance between no congressional delegation whatsoever and delegation with complete abandon, is the backbone of much of the Federal administrative state today.1866 Congress does, of course, set forth various statutory restrictions on how and under which circumstances the agencies may operationalize congressional will through an agency’s implementing regulations.1867 But the precedent is clear that Congress constitutionally may delegate to the Department the power to implement regulations pertaining to specific subject matters. Congress has 1859 See generally U.S. Const. art. I. Const. art. I, § 8, cl. 18. 1861 Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42–43. 1862 Yakus v. United States, 321 U.S. 414, 425 (1944) (internal quotation marks omitted). 1863 Mistretta v. United States, 488 U.S. 361, 372 (1989). 1864 Id. 1865 Id. (internal quotation marks and citation omitted; emphasis added). 1866 Mistretta, 488 U.S. at 372. 1867 See, e.g., Administrative Procedure Act, 5 U.S.C. 701 et seq. 1860 U.S. PO 00000 Frm 00506 Fmt 4701 Sfmt 4700 done so with respect to Title IX, in 20 U.S.C. 1682. Agencies, such as the Department, are creatures of congressional will; an agency’s powers to act must emanate from Federal law.1868 Congress, in enacting Title IX, has conferred that power on the Department. The appropriate place to start is the statutory text, for ‘‘[u]nless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning.’’ 1869 As has been noted, Title IX’s text, 20 U.S.C. 1681(a) (emphasis added), states: ‘‘No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]’’ The Department’s authority to regulate sexual harassment in a recipient’s education program or activity as a form of sex discrimination pursuant to Title IX, is clear. The Supreme Court has noted that ‘‘[t]he express statutory means of enforc[ing] [Title IX] is administrative,’’ as ‘‘[t]h[at] statute directs Federal agencies that distribute education funding to establish requirements to effectuate the nondiscrimination mandate, and permits the agencies to enforce those requirements through ‘any . . . means authorized by law,’ including ultimately the termination of Federal funding.’’ 1870 The Supreme Court has held that sexual harassment is a form of sex discrimination under Title IX.1871 The Department’s prerogative of implementing Title IX with respect to recipient responses to sexual harassment as a form of sex discrimination is authorized by statute, approved of by the Supreme Court, and warrants deference. As to the assertion that the Department’s authority to regulate under Title IX does not extend to ensuring that a Title IX grievance process contains procedural rights and protections for complainants and respondents, we explain throughout this preamble and especially in the ‘‘Role of Due Process in the Grievance Process’’ section that the Department interprets and enforces Title IX (and indeed, any 1868 See Stark v. Wickard, 321 U.S. 288, 309 (1944). 1869 BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006) (citing Perrin v. United States, 444 U.S. 37, 42 (1979)). 1870 Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 280–81 (1998) (quoting 20 U.S.C. 1682) (emphasis added). 1871 See id. at 283 (affirming ‘‘the general proposition that sexual harassment can constitute discrimination on the basis of sex under Title IX’’). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations law under the Department’s regulatory purview) consistent with the U.S. Constitution, including constitutional rights to due process of law. The Department has the authority to address through regulation the manner in which recipients respond to sexual harassment to further Title IX’s non-discrimination mandate consistent with constitutional due process, has done so in these final regulations, and these final regulations are thus consistent with the separation of powers doctrine. The Department also disagrees that the proposed regulations, or final regulations, exceed the Federal government’s constitutional authority under the Spending Clause. To be sure, legislation enacted under Congress’s Spending Clause power is ‘‘much in the nature of a contract: in return for Federal funds, the States agree to comply with federally imposed conditions.’’ 1872 As a result, courts when construing such statutes ‘‘insis[t] that Congress speak with a clear voice,’’ for—as is true for contracts generally— here too ‘‘[t]here can . . . be no knowing acceptance [of the terms of this statutory contract] if a State is unaware of the conditions [the statute imposes] or is unable to ascertain what is expected of it.’’ 1873 But the Supreme Court held that recipients may be liable for monetary damages in Title IX lawsuits under a judicially implied private right of action, because while Title IX is in the nature of a contract, under Congress’s Spending Clause authority, recipients have been on notice since enactment of Title IX that the statute means that no recipient may engage in intentional discrimination on the basis of sex—and knowing about and ignoring sexual harassment in the recipient’s education program or activity constitutes the recipient committing intentional sex discrimination.1874 Undoubtedly, ‘‘Congress may use its spending power to create incentives for States to act in accordance with Federal policies.’’ 1875 That said, ‘‘when ‘pressure turns into compulsion,’ ’’ such as undue influence, coercion or duress—‘‘the legislation runs contrary to our system of federalism.’’ 1876 Federal statutes enacted under the Spending 1872 Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17 (1981). 1873 Id. (emphasis added). 1874 See Franklin v. Gwinnett Co. Pub. Sch., 503 U.S. 60, 74–75 (1992); see also the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble. 1875 Nat’l Fed’n of Ind. Bus. v. Sebelius, 567 U.S. 519, 577–78 (2012). 1876 Id. (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Clause ‘‘do not pose this danger when a State [or a private entity] has a legitimate choice whether to accept the Federal conditions in exchange for Federal funds.’’ 1877 When determining whether a Spending Clause program constitutes ‘‘economic dragooning’’ (impermissible),1878 or ‘‘ ‘relatively mild encouragement’ ’’ (permissible),1879 the Supreme Court asks whether the recipient is left with a ‘‘real option’’ to refuse the Federal offer.1880 If, for instance, State recipients have established an elaborate, decades-long setup to administer Medicaid funding, a Federal directive threatening all of it if some new terms were not complied with would exceed Congress’s Spending Clause authority.1881 But if a State will lose five percent of Federal highway funds if the State does not raise the minimum drinking age, that is within Congress’s spending power.1882 As a general rule of thumb, Federal policy enacted through the Spending Clause as a backdoor when Congress’s other enumerated powers do not so permit is disfavored. Other restrictions on the Federal government’s Spending Clause authority are that it must be in pursuit of ‘‘the general welfare;’’ be stated unambiguously; that conditions on Federal grants must be related ‘‘to the Federal interest in particular national projects or programs;’’ and that it not violate any other constitutional provision.1883 The final regulations are consistent with all the limitations on the Spending Clause authority of the Federal government. Indeed, this entire noticeand-comment rulemaking process provides the notice the Spending Clause, as construed in Pennhurst, requires.1884 To start, the final regulations do not change the fundamental aspects of the bargain struck between the government and funding recipients because these final regulations advance rather than curtail the core purposes of Title IX, and they represent a true mutual agreement under which recipients understand that the government requires operation of education programs or activities free from sex discrimination. This agreement has, for decades, been clearly understood to include a recipient’s 1877 Id. at 579 (emphasis added). at 582. 1879 Id. at 580–81 (quoting South Dakota v. Dole, 483 U.S. 203, 211 (1987)). 1880 Sebelius, 567 U.S. at 582. 1881 See id. at 575–85. 1882 See Dole, 483 U.S. at 211–12. 1883 Id. at 207–08 (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion)). 1884 See Pennhurst, 451 U.S. at 17. 1878 Id. PO 00000 Frm 00507 Fmt 4701 Sfmt 4700 30531 obligation to adopt and publish grievance procedures for the prompt and equitable resolution of student and employee complaints of sex discrimination.1885 The background principles of Title IX and the APA, including the Department’s authority to regulate as it has in this area, have been known to every recipient since passage of Title IX. Additionally, to this point, the final regulations are not a coercive ‘‘gun to the head’’ of the recipients or the States because recipients are perfectly free to refuse Title IX-centric Federal financial assistance; 1886 the recipients or States have not been operating under a promise or expectation of such funds being given in perpetuity; and there is no hint of compulsion on the recipients or States. Moreover, there is no suggestion the Department lacks the power to promulgate the final regulations through the Commerce Clause or Section 5 of the Fourteenth Amendment, so there is no possibility of the Spending Clause being used as a back door to achieve a Federal mandate on unwilling actors. Additionally, these final regulations undoubtedly advance the general welfare, are stated unambiguously and clearly, apply to the national concern of fairness to those affected by allegations of sexual harassment and assault in schools, colleges, and universities, and do not violate—indeed they further— other constitutional provisions such as equal protection of the laws, due process of law, and the First Amendment. The Department acknowledges that different procedural due process protections may be required in different situations. As more fully explained in the ‘‘Role of Due Process in the Grievance Process’’ section, the Department does not mandate the same grievance process for elementary and secondary schools as for postsecondary institutions because the Department recognizes that due process is a ‘‘flexible’’ concept dictated by the demands of a ‘‘particular situation,’’ 1887 and that addressing sexual harassment as a form of sex discrimination in elementary and secondary schools may present different demands than addressing sexual harassment as a form of sex discrimination in postsecondary institutions. The grievance process provided in these final regulations is adapted for a particular situation, 1885 34 CFR 106.8(b) originally promulgated by HEW (the Department’s predecessor) in 1975, and the similar requirement modified in the final regulations at § 106.8(c). 1886 Sebelius, 567 U.S. at 581. 1887 Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (internal citations omitted). E:\FR\FM\19MYR2.SGM 19MYR2 30532 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations namely to address sexual harassment as a form of sex discrimination. The Department acknowledges that these final regulations essentially constitute the terms of a contract between the Department and the recipient of Federal financial assistance. The Department does not enter into a contract or agreement with every student in a school that receives Federal financial assistance. Such an argument is absurd because such an argument would render the student and not the school responsible for fulfilling the nondiscrimination mandate in Title IX. The Department disagrees though that students have ‘‘no say’’ in this agreement because any student may submit a comment during the public comment period for the Department to consider. Accordingly, every student had the opportunity to essentially be a part of the negotiation, and commenters who identified as students submitted comments. The Department also is not encroaching upon the First Amendment rights of recipients as more fully explained in the ‘‘Conflicts with First Amendment, Constitutional Confirmation, International Law’’ subsection of the ‘‘Miscellaneous’’ section of this preamble. Recipients remain free to determine who may be admitted to study and who may be permitted to continue to study at elementary and secondary schools or at postsecondary institutions. The Department has repeatedly stated through its NPRM and in this preamble that it will not second guess the disciplinary decisions made by school administrators.1888 One of the reasons that the Department chooses to adopt and adapt the deliberate indifference standard from Davis is the Supreme Court developed this standard to interpret Title IX in a manner that leaves room for flexibility in the schools’ disciplinary decisions and does not place courts in the position of second-guessing school administrators’ disciplinary decisions.1889 The grievance process in § 106.45 does not demand a particular outcome and is simply a process designed to assess allegations of sexual harassment as a form of sex discrimination. A recipient still has significant discretion within the grievance process in § 106.45. For example, as previously noted in this preamble, a recipient may adopt reasonable rules of decorum or order to govern live hearings under this paragraph, provided that such rules 1888 83 FR 61466. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 (1999). 1889 Davis VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 apply equally to all participants and are consistent with this section. Additionally, these final regulations expressly state in § 106.6(d)(1) that nothing in Title IX implementing regulations requires a recipient to restrict any rights that would otherwise be protected from government action by the First Amendment of the U.S. Constitution. For all these reasons, the NPRM and these final regulations are within the Federal government’s Spending Clause authority. Changes: None. Litigation Risk Comments: At least one commenter stated that there is a nationwide trend of increased filings of sexual harassment and assault claims, and argued that therefore, it is reasonable to anticipate that because the Department has narrowed its jurisdiction under Title IX, the Nation will see both an increase in Title IX complaints in civil and criminal courts, as well as an increase in costly lawsuits alleging non-Title IX causes of action.1890 Several commenters asserted that the proposed rules will expose recipients to a greater risk of litigation from both complainants seeking redress for sex discrimination and respondents seeking to overturn a recipient’s finding of responsibility. Discussion: These final regulations do not address or alter any party’s right to sue a recipient under various causes of action that may arise from a recipient’s response to alleged sexual harassment. The Department, however, disagrees that as a result of these final regulations, there will be an increase in Title IX complaints in civil and criminal courts and in costly lawsuits alleging non-Title IX causes of action and believes that these regulations may result in decreased litigation. These final regulations align Title IX administrative enforcement more closely with the rubric that the Supreme Court adopted in Title IX cases 1891 while mandating that recipients support alleged victims of sexual harassment in ways that go beyond what the Supreme Court’s private lawsuit framework requires, while prescribing a standardized 1890 See Jamie D. Halper, In Wake of #MeToo, Harvard Title IX Office Saw 56 Percent Increase in Disclosures in 2018, Per Annual Report, The Harvard Crimson (Dec. 14, 2018); U.S. Equal Employment Opportunity Commission, EEOC Releases Preliminary FY 2018 Sexual Harassment Data (Oct. 4, 2018) (stating ‘‘charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from fiscal year 2017’’). 1891 For further discussion see the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section of this preamble. PO 00000 Frm 00508 Fmt 4701 Sfmt 4700 grievance process consistent with due process of law and fundamental fairness. These final regulations therefore provide greater clarity to a recipient of its obligations under Title IX and may decrease litigation based on claims that the recipient responded inadequately to protect an alleged victim, or denied a respondent due process of law or fundamental fairness in investigations or adjudications of sexual harassment allegations. For example, a recipient that complies with § 106.44(a) and § 106.44(b)(1), which includes but goes beyond the Supreme Court’s deliberate indifference liability standard, will promptly offer a complainant supportive measures when the recipient has actual knowledge of sexual harassment in its education program or activity against a person in the United States—whether or not the recipient also investigates and adjudicates the complainant’s allegations of sexual harassment. More specifically, under § 106.44(a), the Title IX Coordinator must promptly contact the complainant (i.e., the person alleged to have been victimized by sexual harassment) to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. If such a recipient was then sued by the complainant for providing a deliberately indifferent response, the recipient would at least be able to argue that it did not respond in a manner clearly unreasonable in light of the known circumstances because the recipient considered a complainant’s wishes with respect to supportive measures, offered supportive measures, and informed a complainant of the process for filing a formal complaint (and, under § 106.44(b)(1), the recipient would be obligated to investigate allegations in a formal complaint if the complainant exercised the option of filing a formal complaint). Similarly, a recipient that follows a the grievance process that complies with § 106.45 will provide robust due process protections to both the complainant and respondent that satisfy constitutional guarantees and, thus, may defend against allegations that it deprived a the respondent (or the complainant) of due process of law. The Department therefore believes that these final regulations may have the effect of decreasing litigation arising from how E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations recipients respond to sexual harassment. Changes: None. Comments: One commenter stated that the Department did not evaluate the impact of the proposed regulations on recipients’ legal budgets. One commenter stated that, in a United Educators (UE) study of 305 reports of sexual assault from 104 colleges and universities between 2011 and 2013, more than one in four reports resulted in legal action, costing schools about $200,000 per claim, with 84 percent of costs resulting from claims brought by survivors and other harassment victims and that another UE study of reports of sexual assault during 2011–2015 found that schools lost about $350,000 per claim, with some losses exceeding $1 million and one reaching $2 million. One commenter asserted that if students experiencing sexual harassment are no longer able to seek relief through their school or through OCR’s complaint resolution system, more lawsuits will be filed, and not just under Title IX. Another commenter argued that any savings schools made because of the Department’s rule changes will be eclipsed by the funds institutions will expend to defend the same accusations of Title IX violations in Federal and State courts. If the Department’s Title IX regulations align with the standards used by Federal courts for money judgments in private lawsuits under Title IX, the commenter argued that there would no longer be any advantage for complainants to seek agency-level redress from OCR over the court system, especially since under the proposed rules complainants would not be able to obtain money damages from a recipient as a remedy ordered by OCR for a recipient’s violation of Title IX regulations. The commenter cited a United Educators study in which the insurance company analyzed 1,000 claims in cases of Title IX litigation and found that, in just 100 of those cases, judgments and attorney’s fees cost $21.8 million. United Educators reported that the cost on average is $350,000 per case. The commenter argued that, using those numbers, a mere 1,050 additional cases would completely wipe out any savings from even the highest savings number estimated by the NPRM’s Regulatory Impact Analysis (RIA). The commenter argued that considering the detailed requirements and the gray areas of the proposed rules, 1,050 additional cases filed over the course of the same tenyear period referenced in the NPRM’s RIA should be considered a low estimate. One commenter asserted that the proposed rules would also expose schools to significant potential Title VII VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 liability due to the conflicts between Title VII and the proposed rules’ requirements, and possible liability under contradictory State, local, or tribal laws. Discussion: The Department’s RIA in the NPRM and its Regulatory Impact Analysis (RIA) in these final regulations address the costs of attorneys for recipients.1892 The Department notes that each recipient may choose to use attorneys to advise a recipient on compliance with these final regulations but is not required to do so. As discussed previously, the Department believes that litigation may decrease as a result of these final regulations. As discussed previously, these final regulations impose on recipients more obligations to support complainants, and protect due process rights of all parties, than what the Supreme Court has required in private actions under Title IX; thus, we disagree that complainants (or respondents) will find ‘‘no advantage’’ or no difference in seeking redress of a recipient’s alleged Title IX under the Department’s administrative enforcement standards, versus under the Supreme Court’s framework for judicial enforcement. For reasons discussed in the ‘‘Section 106.3(a) Remedial Action’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble, we have revised the proposed rules’ revision to existing 34 CFR 106.3(a) such that under the final regulations, § 106.3(a) removes the NPRM’s reference to monetary damages as a potential remedy that the Department may seek when administratively enforcing Title IX and its implementing regulations. The Department disagrees that these final regulations conflict with any obligations that a recipient may have under Title VII, as explained in greater detail in the ‘‘Section 106.6(f) Title VII and Directed Question 3 (Application to Employees)’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. Similarly, the Department is not aware of any State, local, or tribal laws or rules that directly conflict with these final regulations. The Department addresses any such possible conflicts in more detail in the ‘‘Section 106.6(h) Preemptive Effect’’ subsection of the ‘‘Clarifying Amendments to Existing Regulations’’ section of this preamble. Changes: We have revised § 106.3(a) to remove reference to damages as a possible remedy ordered by the Assistant Secretary when investigating a recipient for violations of Title IX or its 1892 See, PO 00000 e.g., 83 FR 61494. Frm 00509 Fmt 4701 Sfmt 4700 30533 implementing regulations, referring instead to the Department’s authority to enforce Title IX pursuant to 20 U.S.C. 1682. Comments: One commenter applauded the proposed rules as being long overdue but asserted that smaller schools will ‘‘suffer inordinately’’ under the proposed rules because the burden and costs of compliance would be more deeply felt by small schools, and small schools would serve as focal points for legal challenges to the implementation of these Title IX regulations. Discussion: The Department disagrees that smaller schools will ‘‘suffer inordinately’’ in complying with these final regulations, and the RIA in this document expressly addresses the effect of the final regulations on small entities. As explained in the ‘‘Regulatory Flexibility Act’’ subsection of the ‘‘Regulatory Impact Analysis’’ section of this preamble, we do not believe that these final regulations would place a substantial burden on small entities, including small elementary and secondary schools and small postsecondary institutions. Moreover, as discussed in the ‘‘Role of Due Process in the Grievance Process’’ section of this preamble, we do not believe that students (including complainants, and respondents) should receive fewer protections aimed at furthering Title IX’s non-discrimination mandate consistent with constitutional due process or fundamental fairness, depending on the size of their school. While the RIA estimates the cost burden of these final regulations, these final regulations are motivated by fulfilling the important mandate of Title IX to prohibit sex discrimination, including in the form of sexual harassment, consistent with the U.S. Constitution and fundamental fairness, and we believe that the benefits of these final regulations outweigh the compliance costs likely to result. Changes: None. Effective Date Comments: A number of commenters stated that the NPRM needed an effective date to allow recipients to implement policy changes, training, procedures, etc. to come into compliance with the provisions in the final regulations. A few commenters asked that the final regulations not take effect in the middle of a school year. A few commenters requested a 90-day implementation window and requested that the Department issue the final regulations in the month of May so that the requested 90-day implementation window takes place over the summer, when recipients have more time and E:\FR\FM\19MYR2.SGM 19MYR2 30534 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations ability to address and implement the changes constructively; some of these commenters asserted that requiring changes to be made in the middle of a school year will raise problems with applying two different sets of rules to sexual misconduct incidents occurring in the same school year based on an arbitrary cut-off date. Some commenters expressed concern that the proposed regulations indicated no provision for a time period allowing for transition from previously established procedures to the new procedures required. A few commenters asserted the Department should set an effective date at least eight months after publication of the final regulations because that time frame would align with the Higher Education Act’s master calendar. A few commenters argued that the changes necessary under the final regulations justify an effective date no earlier than three years after the date of publication of the final regulations; other commenters asserted that small institutions in particular will require an extended period of time to come into compliance. At least one commenter suggested a two-phase effective date— one effective date as to the topics covered in § 106.44(a)–(b), and a second (later) effective date for the other provisions of the final regulations including § 106.45, on the basis that changing grievance procedures is more complicated and will take more time for the Department to adequately explain to recipients. Another commenter, a State coordinating body for higher education, requested that the Department consider State and institutional budget cycles, especially in light of possible tuition and fee increases needed to help cover costs of implementing the proposed regulations. The commenter recommended that the final regulations allow for an implementation period of no less than 18 months, which would allow institutions time to accommodate budget cycles and to request additional resources for the subsequent fiscal year. Another commenter requested that the Department allow at least 12 months for full implementation of new Title IX rules and regulations. One commenter requested that the Department not adopt an early effective date because that would be inconsistent with the Department’s recent approach to regulations that require less significant program changes; the commenter noted that the Department allowed schools until July 2019 to comply with the 2014 Gainful Employment regulation and the 2016 Borrower Defense regulation, and the commenter asked that the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Department adopt a similar compliance period for the Title IX regulation. Some commenters requested that the Department clarify the standing of the 2001 Guidance once the final regulations become effective, and at least one commenter stated that the proposed regulations could be improved by clearly rescinding all the Department’s prior guidance documents regarding the subject of sexual harassment. Another commenter stated that the proposed regulations will have the unintended impact of altering the 2001 Guidance policies and practices that districts have implemented for nearly two decades. One commenter specifically asked the Department to clarify whether the final regulations will rescind and replace the 2001 Guidance, which addresses retaliation, and noted that confusion about the status of the 2001 Guidance limits the public’s ability to effectively comment on the NPRM because it prevents an understanding of the full extent of the changes to the administrative scheme. Discussion: Under the Administrative Procedure Act (‘‘APA’’), 5 U.S.C. 701 et seq., the effective date for the final regulations cannot be fewer than 30 days after the final regulations are published in the Federal Register unless special circumstances justify a statutorily-specified exception for an effective date earlier than 30 days from such publication. The Department has determined that no statutory exception justifies an effective date earlier than 30 days from publication of these final regulations. The Department has carefully considered commenters’ concerns, including the concern to have sufficient time to prepare for compliance with these final regulations and the request to have these final regulations become effective during the summer when many recipients of Federal financial assistance that are schools are out of session. In the ordinary course, the Department believes that 60 days would be sufficient for recipients to come into compliance with these final regulations. However, after the public comment period on the NPRM ended, and before publication in the Federal Register of these final regulations, on March 13, 2020, the President of the United States declared that a national emergency concerning the novel coronavirus disease (COVID–19) outbreak began on March 1, 2020, as stated in ‘‘Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID–19) Outbreak,’’ Proclamation 9994 of March 13, 2020, Federal Register Vol. 85, No. 53 at 15337–38. The Department appreciates that exigent circumstances PO 00000 Frm 00510 Fmt 4701 Sfmt 4700 exist as a result of the COVID–19 national emergency, and that these exigent circumstances require great attention and care on the part of States, local governments, and recipients of Federal financial assistance. The Department recognizes the practical necessity of allowing recipients of Federal financial assistance time to plan for implementing these final regulations, including to the extent necessary, time to amend their policies and procedures in order to comply. In response to commenters’ concerns about an effective date, and in consideration of the COVID–19 national emergency, the Department has determined that the final regulations are effective August 14, 2020. Recipients will thus have substantially more than the minimal 30 days to prepare for compliance with these final regulations. The Department recognizes that the length and scope of the current national emergency relating to COVID–19 is somewhat uncertain. But based on the information currently available to it, the Department believes that the effective date of August 14, 2020, adequately accommodates the needs of recipients, while fulfilling the Department’s obligations to enforce Title IX’s nondiscrimination mandate in the important context of sexual harassment. The Department appreciates the suggestions from commenters as to an appropriate length of time after publication of final regulations for the final regulations to become effective. As discussed in the ‘‘Executive Orders and Other Requirements’’ subsection of the ‘‘Miscellaneous’’ section of this preamble, these final regulations are not promulgated under the Higher Education Act and are not subject to the Master Calendar under that Act. The Department declines to align the effective date for the final regulations with the July 1 effective date of regulations under the Higher Education Act, including gainful employment and borrower defense to repayment regulations to which a commenter refers, because these final regulations concern improvement of civil rights protections for students and employees in the education programs and activities of all recipients of Federal financial assistance, not only those institutions to which the Higher Education Act applies. The Department notes that regardless of when the final regulations become effective, some Title IX sexual harassment reports occurring within the same education program or activity within the same school year may be handled under the current Title IX regulations while others will be addressed under the requirements of the E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations final regulations; this is not arbitrary, and occurs any time regulatory requirements are amended prospectively. The Department also declines other suggestions from commenters, including the creation of two separate effective dates for different provisions of the final regulations, because such an approach would create confusion rather than clarity. Additionally, some provisions in § 106.44 reference and incorporate requirements in § 106.45, and, thus, making § 106.44 effective before § 106.45 is not feasible. The Department cannot accommodate every recipient’s budget cycle as each State may have a different fiscal year and budget cycle. The effective date of August 14, 2020 coincides with many schools’ ‘‘summer break,’’ so that recipients may finalize Title IX policies and procedures to comply with these final regulations during a time when many schools are ‘‘out of session’’ and will afford substantially greater opportunity to come into compliance than the statutory minimum, which is appropriate given the current challenges posed by the COVID–19 national emergency. The Department notes that recipients have been on notice for more than two years that a regulation of this nature has been forthcoming from the Department, and recipients will have substantially more than the minimal 30 days to come into compliance with these final regulations, which become effective on August 14, 2020.1893 During this transition period between publication of these final regulations in the Federal Register, and the effective date of August 14, 2020, the Department will provide technical assistance to recipients to assist with questions about compliance. The Department also will continue to provide technical assistance after these regulations become effective, including during the investigation of a complaint, a compliance review, or a directed investigation by OCR, if the recipient requests technical assistance. On September 22, 2017, the Department expressly stated that its 2017 Q&A along with the 2001 Guidance ‘‘provide information about how OCR will assess a school’s compliance with Title IX.’’ 1894 The Department thus gave the public notice 1893 U.S. Dep’t. of Education, Office for Civil Rights, Dear Colleague Letter (Sept. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/ colleague-title-ix-201709.pdf (withdrawing the Department’s 2011 Dear Colleague Letter and 2014 Q&A) (‘‘The Department intends to implement such a policy [addressing campus sexual misconduct under Title IX] through a rulemaking process that responds to public comment.’’). 1894 2017 Q&A at 1. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 of how OCR will assess a school’s compliance with Title IX until these final regulations become effective. The Department’s NPRM also provided the public with notice of how the proposed regulations differ from the 2001 Guidance, and the Department explains departures taken in the final regulations from the 2017 Q&A, the 2001 Guidance, and also withdrawn guidance documents such as the 2011 Dear Colleague Letter, throughout this preamble.1895 To the extent that these final regulations differ from any of the Department’s guidance documents (whether such documents remain in effect or are withdrawn), these final regulations, when they become effective, and not the Department’s guidance documents, are controlling. Changes: The effective date of these final regulations is August 14, 2020. Retaliation Section 106.71 Retaliation Prohibited Comments: A few commenters commended the Department’s proposed regulations as a reasonable means of reducing sex discrimination and explicitly guarding against unlawful retaliation; at least one commenter stated that the proposed rules’ prohibitions against bias would make it difficult for recipients to engage in unlawful retaliation. In contrast, several commenters opposed the proposed regulations for not adequately addressing victims’ fears of not being believed and for failing to protect complainants from retaliation for reporting. Commenters stated that under the proposed rules, schools might not do enough to prevent an assailant from retaliating against a survivor. Other commenters stated that many survivors who do not report cite fear of retaliation as one of the main reasons. Many commenters generally called for greater protections for victims to ensure that their alleged assailants cannot control victims with fear, intimidation, or embarrassment. Two commenters suggested that the proposed regulations do not go far enough in incentivizing schools to prohibit retaliation against students who report, noting that schools could and should do more to address toxic cultures or systemic problems among the student body. Several commenters included personal stories 1895 E.g., the ‘‘Differences Between Standards in Department Guidance and These Final Regulations’’ subsection of the ‘‘Adoption and Adaption of the Supreme Court’s Framework to Address Sexual Harassment’’ section, and the ‘‘Similarities and Differences Between the § 106.45 Grievance Process and Department Guidance’’ subsection of the ‘‘Role of Due Process in the Grievance Process’’ section, of this preamble. PO 00000 Frm 00511 Fmt 4701 Sfmt 4700 30535 alleging they were retaliated against for reporting sexual harassment. Other commenters stated that, despite support for the proposed rules, following the Supreme Court’s decisions in Gebser and Davis is inadequate because those decisions do not address retaliation and, as such, the Department should draw a clear delineation between retaliation claims and sexual harassment claims. This commenter asserted that the Gebser/Davis requirement that schools must be on notice of sexual harassment before they can be held accountable does not apply to retaliation and urged the Department not to accidentally risk imposing an actual notice requirement in the context of retaliation. Several commenters suggested that the Department add a general prohibition of retaliation. Some commenters noted that retaliation is a serious concern for complainants when weighing whether to report and in deciding whether to participate in an investigation. Specifically, one commenter suggested that the final regulations adopt the language prohibiting retaliation from the withdrawn 2011 Dear Colleague Letter. A few commenters urged the Department to refer to its past guidance documents, which the commenters contended addressed retaliation more aptly than the current proposed rule. Many commenters noted that failing to include a clear prohibition on retaliation could chill reporting in the first place. One commenter requested that the final regulations contain an explicit provision protecting undocumented students from retaliatory immigration action similar to the provision in the withdrawn 2014 Q&A. Several other commenters requested that if the final regulations are to include a provision regarding retaliation, then it should explicitly not protect those who make false allegations from any adverse consequences that result. One commenter, who has worked with survivors, sought clarification on whether schools will need to include language regarding false statements in their procedures and how false accusations should be determined. Some commenters cautioned that broad retaliation prohibitions can threaten free speech, and particularly the ability of the falsely accused to defend themselves. As such, commenters contended, any prohibition should include language clarifying that denying allegations does not constitute a violation of Title IX. Several commenters sought clarity on how institutions were expected to handle retaliation claims under the proposed regulations. One commenter E:\FR\FM\19MYR2.SGM 19MYR2 30536 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations stated that if a student makes a formal complaint of sexual harassment, the proceedings would have to comply with § 106.45, but if the student alleged that they were retaliated against for filing the formal complaint, that allegation of retaliation would then be handled through the Title IX grievance process under § 106.8. Another commenter inquired as to whether the grievance procedures that apply to alleged sex discrimination under § 106.8 would also apply where a complainant alleges retaliation for submitting a formal complaint of sexual harassment. Discussion: The Department appreciates the commenters’ concerns and suggestions regarding retaliation. Retaliation against a person for exercising any right or privilege secured by Title IX or its implementing regulations is never acceptable, and the Supreme Court has held that retaliation for complaining about sex discrimination is, itself, intentional sex discrimination prohibited by Title IX.1896 The Department agrees with commenters that absent a clear prohibition of retaliation, reporting may be chilled. In response to these comments, the Department is adding § 106.71 to expressly prohibit retaliation. This retaliation provision contains language similar to the retaliation provision in § 100.7(e), implementing Title VI. Under the retaliation provision in § 106.71(a) in these final regulations, no recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under Title IX and its implementing regulations. Complaints alleging retaliation may be filed according to the ‘‘prompt and equitable’’ grievance procedures for sex discrimination required to be adopted under § 106.8(c). If the person who is engaging in the retaliatory acts is a student or a third party and is not an employee of the recipient, a recipient may take measures such as pursuing discipline against a student who engaged in retaliation or issuing a no1896 Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005) (holding that ‘‘retaliation against individuals because they complain of sex discrimination is ‘intentional conduct that violates the clear terms of the statute,’ Davis, 526 U.S., at 642, 119 S. Ct. 1661, and that Title IX itself therefore supplied sufficient notice’’ that retaliation is itself sex discrimination prohibited by Title IX). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 trespass order against a third party to address such retaliation. This retaliation provision is purposefully broad in scope and may apply to any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, any witness, or any other individuals who participate (or refuse to participate) in any manner in an investigation, proceeding, or hearing under Part 106 of Title 34 of the Code of Federal Regulations. Accordingly, threatening to take retaliatory immigration action for the purpose of interfering with any right or privileged secured by Title IX or its implementing regulations may constitute retaliation, and additional language in the actual text of the final regulations to express this point is unnecessary. The Department acknowledges that persons other than complainants, such as witnesses may face retaliation, and seeks to prohibit retaliation in any form and against any person who participates (or refuses to participate) in a report or proceeding under Title IX and these final regulations. The Department will hold a recipient responsible for responding to allegations of retaliation under § 106.71. The recipient’s ability to respond to retaliation will depend, in part, on the relationship between the recipient and the individual who commits the retaliation. For example, if a respondent’s friend who is not a recipient’s student or employee and is not otherwise affiliated with the recipient threatens a complainant, then the recipient should still respond to such a complaint of retaliation to the best of its ability. Even though the recipient may not require the person accused of retaliation to participate in a recipient’s equitable grievance procedures under § 106.8(c), the recipient should process the complaint alleging retaliation in accordance with its equitable grievance procedures and may decide to take appropriate measures, such as issuing a no-trespass order. The Department recognizes that retaliation may occur by punishing a person under a different code of conduct that does not involve sexual harassment but arises out of the same facts or circumstances as the report or formal complaint of sexual harassment. The Department also acknowledges that several commenters directed the Department to media articles documenting alleged incidents of such PO 00000 Frm 00512 Fmt 4701 Sfmt 4700 punishment against students reporting unwanted sexual conduct.1897 Commenters cited research on sexual assault in the military, which found that fear of disciplinary action for collateral misconduct was a significant impediment to encouraging victims to come forward, and that some perpetrators explicitly told victims not to report or they would get the victim in trouble for collateral offenses, such as underage drinking.1898 In order to address this particular form of retaliation, § 106.71(a) prohibits charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations. For example, if a recipient punishes a complainant or respondent for underage drinking, arising out of the same facts or circumstances as the report or formal complaint of sexual harassment, then such punishment constitutes retaliation if the punishment is for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations. If a recipient always takes a zero tolerance approach to underage drinking in its code of conduct and always imposes the same punishment for underage drinking, irrespective of the circumstances, then imposing such a punishment would not be ‘‘for the purpose of interfering with any right or privilege secured by’’ Title IX or these final regulations and thus would not constitute retaliation under these final regulations. The Department is aware that some recipients have adopted ‘‘amnesty’’ policies designed to encourage students to report sexual harassment; under typical amnesty policies, students who report sexual misconduct (whether as a victim or witness) will not face school disciplinary charges for school code of conduct violations relating to the sexual misconduct incident (e.g., underage drinking at the party where the sexual harassment occurred). Nothing in the final regulations precludes a recipient from adopting such amnesty policies. Section 106.71 does not create amnesty, but does prohibit charges against an individual for code of conduct 1897 E.g., Tyler Kingkade, When Colleges Threaten To Punish Students Who Report Sexual Violence, The Huffington Post (Sept. 9, 2015). 1898 Commenters cited: Human Rights Watch, Embattled: Retaliation Against Sexual Assault Survivors in the US Military (2015). E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations violations that do not involve sex discrimination or sexual harassment, including any sanctions that arise from such charges, when such charges or resulting sanctions arise out of the same facts or circumstances as a report or complaint of sex discrimination, or report or formal complaint of sexual harassment, and when such charges or resulting sanctions are imposed ‘‘for the purpose’’ of interfering with the exercise of any person’s rights under Title IX or these final regulations. Additionally, § 106.71(a) requires that recipients keep the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witnesses confidential except as may be permitted by the FERPA statute, 20 U.S.C. 1232g, or its implementing regulations, 34 CFR part 99, or as required by law, or to the extent necessary to carry out the purposes of the regulations implementing Title IX, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. The Department realizes that unnecessarily exposing the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, may lead to retaliation against them and would like to prevent such retaliation. The Department appreciates the commenter’s concerns that the Department may ‘‘accidentally’’ impose the notice or actual knowledge requirement for sexual harassment adapted from the Gebser/Davis framework to a claim of retaliation. The Department acknowledges that the actual knowledge requirement in these regulations applies to sexual harassment and does not apply to a claim of retaliation; the Supreme Court has not applied an actual knowledge requirement to a claim of retaliation. No requirement of actual knowledge appears in § 106.71(a). These final regulations in § 106.44(a) clearly require a recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States to respond promptly in a manner that is not deliberately indifferent. We agree with commenters who noted that a recipient may respond to an VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 allegation of retaliation according to the grievance procedures for sex discrimination required to be adopted under § 106.8(c). The retaliation provision in § 106.71(a) clarifies that a retaliation complaint may be filed with the recipient for handling under the ‘‘prompt and equitable’’ grievance procedures for resolving complaints of sex discrimination that a recipient is required to adopt and publish under § 106.8(c). We appreciate concerns of commenters who feared that speech protected under the First Amendment may be affected, if a recipient applies an anti-retaliation provision in an erroneous manner. To address this concern, the Department added a provision in § 106.71(b)(1) to clarify that the Department may not require a recipient to restrict rights protected under the First Amendment to prohibit retaliation. The Department recognizes that the First Amendment does not restrict the activities of private elementary and secondary schools or private postsecondary institutions. The Department, however, is subject to the First Amendment and may not administer these regulations in a manner that violates or causes a recipient to violate the First Amendment. Accordingly, § 106.71(b)(1) states that the ‘‘exercise of rights protected under the First Amendment does not constitute retaliation,’’ as defined in these final regulations. The Department also understands the concerns of commenters that lying should not be protected and that any retaliation provision should explicitly exclude from protection those who make false allegations or false statements during a grievance process. Accordingly, § 106.71(b)(2) provides that charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under the regulations implementing Title IX does not constitute retaliation. Section 106.71(b)(2) also provides, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith. These provisions in § 106.71(b) make it clear that exercising rights under the First Amendment of the U.S. Constitution or charging an individual with a code of conduct violation for making a materially false statement in bad faith does not constitute retaliation. This regulatory provision is intended to permit (but not require) recipients to encourage truthfulness throughout the grievance process by reserving the right PO 00000 Frm 00513 Fmt 4701 Sfmt 4700 30537 to charge and discipline a party for false statements made in bad faith, while cautioning recipients not to draw conclusions that any party made false statements in bad faith solely based on the outcome of the proceeding. The final regulations, in § 106.45(b)(2)(B), continue to require that written notice of the allegations of a formal complaint must inform the parties of any provision in the recipient’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process. The Department believes it is important for recipients to notify parties about any provisions in its code of conduct that prohibit knowingly making false statements or knowingly submitting false information during the grievance process, to emphasize the recipient’s commitment to the truthseeking nature of the grievance process, to incentivize honest, candid participation in it, and to caution both parties about possible consequences of lack of candor. Thus, under the final regulations, recipients retain flexibility and discretion to decide how a recipient wishes to handle situations involving false statements by parties, so long as the recipient’s approach does not constitute retaliation prohibited under § 106.71. The Department acknowledges that some commenters expressed a desire for the Department to return to recommendations regarding retaliation in its past guidance documents. We believe that the retaliation provision in these final regulations provides clearer, more robust protections than the recommendations in any of the Department’s past guidance documents. For example, the 2001 Guidance stated that Title IX prohibits retaliation and that schools should prevent any retaliation against the complainant but did not define what constitutes retaliation, expressly address retaliation against other parties or witnesses, or address how recipients should respond to retaliation.1899 The 2001 Guidance stated that ‘‘because retaliation is prohibited by Title IX, schools may want to include a provision in their procedures prohibiting retaliation against any individual who files a complaint or participates in a harassment inquiry.’’ 1900 These final regulations specifically define retaliation, expressly state that the recipient must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any 1899 2001 Guidance at 17, 20. 1900 Id. E:\FR\FM\19MYR2.SGM 19MYR2 30538 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witnesses unless certain exceptions apply, specify that complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination required to be adopted under § 106.8(c), and expressly address retaliation in specific circumstances, including in circumstances in which speech and expression under the First Amendment are at issue. Similarly, the retaliation provision in these final regulations is more precise than the guidance provided on retaliation in the withdrawn 2014 Q&A which did not address retaliation in the form of a recipient imposing charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, including sexual harassment, did not address First Amendment issues, and did not address materially false statements made in bad faith during the course of a grievance proceeding.1901 The 2014 Q&A prohibited retaliation but in a vague manner; although the 2014 Q&A provided that complainants, respondents, and others may report retaliation to the recipient, it did not specifically provide that complainants, respondents, and others may file a complaint alleging retaliation under a recipient’s grievance procedures for sex discrimination.1902 The retaliation provision in these final regulations also is responsive to comments received about retaliation in this rulemaking. Aside from the 2001 Guidance, the Department’s other guidance documents on this subject did not have the benefit of public comment. The Department’s final regulations, unlike the Department’s guidance documents, have the force and effect of law.1903 The Department also notes that it expressly withdrew the 2011 Dear Colleague Letter and 2014 Q&A in a letter dated September 22, 2017, and no longer relies on these guidance documents.1904 Accordingly, we are not adopting any of our prior policies on retaliation in these final regulations, but address retaliation 1901 2014 Q&A at 42–43 (discussing retaliation). 1902 Id. 1903 Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 97 (2015). 1904 U.S. Dep’t. of Education, Office for Civil Rights, Dear Colleague Letter (Sept. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/ colleague-title-ix-201709.pdf. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 in a comprehensive, clear manner through these final regulations. Changes: The Department added § 106.71 to clarify that retaliation is prohibited. The Department will not tolerate any recipient or other person intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under regulations implementing Title IX. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations, constitutes retaliation. The recipient must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, as required by law, or to the extent necessary to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination required to be adopted under § 106.8(c). The exercise of rights under the First Amendment does not constitute retaliation. Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under the regulations implementing Title IX does not constitute retaliation; however, a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith. Severability Comments: None. Discussion: We believe that each of the regulations discussed in this PO 00000 Frm 00514 Fmt 4701 Sfmt 4700 preamble would serve one or more important, related, but distinct purposes. Each provision provides a distinct value to the Department, recipients, elementary and secondary schools, institutions of higher education, students, employees, the public, taxpayers, the Federal government, and other recipients of Federal financial assistance separate from, and in addition to, the value provided by the other provisions. To best serve these purposes, we include provisions in the final regulations to make clear that these final regulations are designed to operate independently of each other and to convey the Department’s intent that the potential invalidity of one provision should not affect the remainder of the provisions. Changes: The Department adds severability clauses at the end of each subpart of Part 106, Title 34 of the Code of Federal Regulations in §§ 106.9, 106.18, 106.24, 106.46, 106.62, and 106.72. Regulatory Impact Analysis (RIA) The Department received numerous comments on our estimates of the relative costs and benefits of the proposed rule. In response to those comments, the Department has reviewed our assumptions and estimates. Among other changes, we have added a new category of recipients, updated our assumptions regarding the number of investigations occurring annually, increased time burdens for certain activities, added new cost categories, and made other changes as a result of the revisions to the proposed regulations. As a result of these changes, the Department estimates these final regulations will result in net costs. We discuss specific comments and our responses below. Costs of Sexual Harassment and Assault Comments: One commenter asserted that, in addition to the significant, individual adverse effects to persons who experience sexual harassment, recipients stand to undergo increased absenteeism by students, student turnover, and conflict among students, as well as decreased productivity and performance, participation in school activities, and loss of respect for and trust in the institution. These effects, the commenter argued, also include damage to the institution’s reputation. The same commenter added that the physical and mental health impacts of allowing sexual harassment to flourish, and failing to respond appropriately to sexual harassment, also come at a high cost to recipients, for example, in the form of a free appropriate public E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations education (FAPE) and disability services requirements. One commenter cited the statistic that about 34.1 percent of students who have experienced sexual assault drop out of college, which is higher than the overall dropout rate for college students. Additionally, about 40 percent or more of survivors experience post-traumatic stress disorder (PTSD), depression, and chronic pain following assaults, making them less likely to attend classes or participate in school programs. The commenter argued that, when students do not complete college, the tax dollars that help fund grants and subsidies are not being used efficiently. The commenter also predicted that schools with lower completion rates would have difficulty recruiting new students and retaining grants that fund their programs. Another commenter expressed concerns that the proposed rules seek to decrease the number of Title IX investigations at each school, which would send a signal to students that neither their school nor the Department will address claims of sexual harassment. Based on this, the commenter predicted that schools would likely see a significant decrease in both application and enrollment rates if they are required to adopt the proposed rules. Discussion: The commenters assume a causal relationship (without providing rigorous evidence) between the final regulations and a number of negative outcomes that does not necessarily exist or will ever materialize. The Department does not include the costs associated with underlying incidents of sexual harassment and assault as (1) we have no evidence to support the claim that the final regulations would have an effect on the underlying number of incidents of sexual harassment and assault, (2) we have no evidence that these final regulations would exacerbate the negative effects of sexual harassment and assault, and (3) the provision of supportive measures as defined in the final regulations may actually reduce some of the negative effects of sexual harassment and assault cited by commenters. The Department does not have evidence to support the claim that the final regulations will have an effect on the underlying number of incidents of sexual harassment. The Department conducted an analysis on Clery Act data reported before and after the issuance of the 2011 Dear Colleague Letter to assess whether the 2011 Dear Colleague Letter had an effect on the underlying rate of sexual harassment, as well as to identify any corollaries that could inform our VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 assumption regarding the final regulations. The analysis is included below. Acknowledging data quality limitations, the Department cannot conclude that the 2011 Dear Colleague Letter had an effect on the underlying rate of sexual harassment. The analysis is based on the best information available to the Department, but data quality limitations prevent a more rigorous analysis of the effects of the 2011 Dear Colleague Letter. Thus, there is insufficient evidence to determine conclusively whether the final regulations will have an effect on the underlying rate of sexual harassment. We interpret the comment regarding FAPE to refer to eligibility for special education and related services under the IDEA and Section 504. We have no reason to believe that a recipient’s compliance with these final regulations would alter a local educational agency’s child find responsibilities or a child with a disability’s right to a free appropriate public education (FAPE) under the IDEA or Section 504. In the analysis, below, of the 2011 Dear Colleague Letter and data received pursuant to the Clery Act and its implementing regulations, we find no evidence or support that the final regulations will affect the underlying incidents of sexual harassment. We do not find evidence to reject the hypothesis that the 2011 Dear Colleague Letter had no effect on the underlying number of incidents of sexual harassment and assault. Neither public comment nor internal deliberation yield sufficient evidence that the final regulations will affect the underlying incidents of sexual harassment. The bottom line is that the best available data (analysis of effects of the 2011 Dear Colleague Letter) is insufficient to yield any evidence or support that the final regulations will affect the underlying incidents of sexual harassment. We believe the analysis and its limitations support the claim that the Department has no rigorous evidence that the final regulations will have an effect on the underlying incidences of sexual harassment. 30539 2011 Dear Colleague Letter Analysis— Data Sources As noted in the NPRM and elsewhere in this notice, there is a general lack of high quality, comprehensive data on Title IX enforcement and incidents of sexual harassment and assault. The Department annually publishes data it receives under the Clery Act online.1905 We compiled data from 2007 through 2013 on Forcible Sex Offenses.1906 This period provides five years of data prior to release of the guidance and two years after release. After 2013, reporting categories changed, limiting a longerterm analysis. Specifically, beginning in 2014, institutions reported data on VAWA crimes rather than the previous categories of forcible sex offenses and non-forcible sex offenses. It is not clear how institutions viewed the relationship between the new and old categories and, absent further study, we do not think it prudent to assume that entities treated them interchangeably. In using these data, we had to assume that Clery Act reports are uniformly correlated with the underlying rate of sexual harassment and assault. That is, we do not assume that Clery Act data is totally comprehensive and captures all incidents of sexual harassment and assault, but we assumed it is correlated, meaning that the number of Clery Act reports increase and decrease in conjunction with increases and decreases in the underlying number of incidents of sexual harassment and assault. We note this is a major assumption and limitation of our analysis. Based on that assumption, if the 2011 Dear Colleague Letter affected the underlying rate of sexual harassment and assaults, we would anticipate a change in the number of Clery Act reports. We believe the Clery Act data would generate poor estimates of the effect of the 2011 Dear Colleague Letter in the following circumstances: 1. The number of forcible sex offenses reported under the Clery Act are not uniformly correlated across years with the underlying number of incidents of sexual harassment and assault; 2. The 2011 Dear Colleague Letter changed the reporting behavior of victims of sexual harassment and assault; 3. The 2011 Dear Colleague Letter changed the reporting behavior of institutions under the Clery Act. It is important to note that each of the above circumstances would not necessarily result in an inability to identify an effect of the 2011 Dear Colleague Letter. An inability to detect any effect in these circumstances (particularly 2 and 3) would actually require that the particular effects accrued in such a way that they were somehow otherwise offset in the underlying data (e.g., after the 2011 Dear Colleague Letter, victims were more 1905 U.S. Dep’t. of Education, Download Data, ‘‘Campus Safety and Security,’’ https://ope.ed.gov/ campussafety/. 1906 Note: The number of Non-Forcible forcible Sex Offenses was too low and variable to allow reliable modeling. PO 00000 Frm 00515 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 30540 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations likely to report incidents that occurred, but there was an overall decrease in the total number of incidents, resulting in no net change in the number of offenses reported). 2011 Dear Colleague Letter Analysis— Data Analysis 1907 As an initial analysis, we examined the average number of reports per year during the pre-guidance and postguidance periods. Across all locations, there were more reports in the postguidance period as described in Table II below. While this analysis establishes that there were more reports in the post2011 period, we cannot reject the null hypothesis that these differences were due to random variation. In order to more fully examine the relationship between the 2011 Dear Colleague Letter and the number of Clery Act reports, we first analyzed aggregate data using the following regression: (1) FSOt = b0 + b1POSTt + b2t + b3t2 + b4ENROLLt + et In the above equation, FSOt represents the number of forcible sex offenses reported under the Clery Act in a given year t, POSTt is a dummy variable for the post-2011 period, t is a variable for the untransformed year (e.g., 2012), ENROLLt is the total enrollment in a given year, and et is an error term. We allow for a quadratic relationship for t because the relationship between the year and the number of offenses reported is non-linear, as demonstrated in Figure I. A linear specification for the relationship between t and FSOt would therefore fail to accurately reflect the relationship between the variables and inappropriately assign that variation to another variable, most likely POSTt. In geographies with no time-series effects, we would anticipate both t and t2 to be non-significant. If the relationship is linear, we would expect only t2 to be non-significant. We discuss the limitations of allowing for a quadratic relationship in the concluding section below. The equation was applied across each geography. Results are presented in Table III. While POSTt is significant in the initial estimation for on-campus and noncampus geographies, it is no longer significant once covariates are added. Once we control for the baseline trend (i.e., pre-existing variation over time) and enrollment, POSTt is not significant in any panel. As demonstrated in Panels C and D of Table III, we cannot establish any trend over time for either public property or total offenses. For on1907 Data was available and analyzed both in aggregate and at the individual campus level. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 campus and noncampus offenses, we can establish a trend over time, but it is not attributable to POSTt. As such, we cannot reject the null hypothesis using the aggregate data. We note that the data used in this initial analysis are highly aggregated and Title IX enforcement occurs at the institution level. The Department annually collects data under the Clery Act at the individual campus level. Again, we used data on forcible sex offenses (as with the aggregate data) for the reasons outlined above. However, we also used data on the total number of robberies that were reported for each year. These data were used as a control for general trends in criminality on campus, particularly those that would be unlikely to be affected by a change in Title IX enforcement. Specifically, we want to ensure that any estimated change in the number of incidents of forcible sex offenses are not related to an overall change in the level of crime occurring on campus. We compiled data for 7,938 campuses from 2007 through 2013 and merged those data with data from the Integrated Postsecondary Education Data System (IPEDS), including institutional control (i.e., public, private non-profit, private for-profit), level (i.e., less-than-two-year, two-year, four-year), and enrollment. Factors such as institutional control and level of institution are potentially relevant to any campus-level effects because those factors are highly correlated with other factors that are likely to affect the number of incidents and potential effects of any change in Title IX enforcement. For example, students at four-year institutions are much more likely than those at two-year or less-than-two-year institutions to live on campus and conduct a greater proportion of their daily activities in an environment that could be construed as part of the institution’s education program or activity. Further, compliance activities between public and private institutions may look different given the degree of oversight from State or local governments. Summary data of the total number of on-campus forcible sex offenses reported under the Clery Act from 2007 through 2013 are presented in Table IV below. As with the aggregate data, we identify a clear non-linear relationship between the year and the number of forcible sex offenses reported under the Clery Act. See Figure II below. Using this information, we then estimated the following equation: (2) PO 00000 FSOict = b0 + b1POSTt + b2t + b3t2 + b4Xic +b5ROBct + b6ENROLLit + eict Frm 00516 Fmt 4701 Sfmt 4700 In Equation 2, FSOict represents the number of incidents of forcible sex offenses reported under the Clery Act on campus c of institution i in year t; POSTt is a dummy variable for observations in the post-2011 period; t and t2 allow for a quadratic relationship between the year and FSOict; Xic is a vector of institutional characteristics including institutional control and level; ROBct represents the number of robberies reported under the Clery Act on campus c in year t; ENROLLit represents the number of students enrolled in institution i in year t; and eict is an error term. Estimates for Equation 2 are presented in Table V below. Columns 1 and 2 show a statistically significant positive effect of the 2011 Dear Colleague Letter on the number of forcible sex offenses reported under the Clery Act. However, once we allow for a quadratic specification for t in Column 3, we no longer identify any effects of POSTT. Indeed, when variables for institutional control and level are added in Column 4 and controls for overall level of crime on campus and institutional enrollment are added in Columns 5 and 6, POSTt is the only variable which does not have a significant relationship with FSOICT. Based on these results, we can say that the overall number of reported forcible sex offenses is increasing over time at an increasing rate (positive coefficient on t2), private institutions tend to report fewer incidents of forcible sex offenses than public institutions (negative coefficients for dummy variables for private, non-profit and private, forprofit), four-year institutions report more forcible sex offenses than two-year and less-than-two-year institutions (negative coefficients on dummy variables for two-year and less-thantwo-year), campuses with higher crime rates report more forcible sex offenses (positive coefficient on robbery), and institutions with higher enrollment report more forcible sex offenses (positive coefficient on enrollment). The only variable in the model which fails to explain any variation is POSTt. The results with respect to POSTt do not appear to be the result of low statistical power. The standard error on the term is relatively small and would detect significant effects of less than 0.08 offenses per year. Controlling for all of the other variables in the model, the coefficient for POSTt is near zero. However, we continue to acknowledge limitations of the model as discussed below. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 2011 Dear Colleague Letter Analysis— Conclusion and Limitations Based on the analyses presented herein, we can find no basis on which to reject the null hypothesis (that is, to reject the contention that the 2011 Dear Colleague Letter had no effect on the underlying number of incidents of sexual harassment and assault). Given the information available, the Department has insufficient evidence to assume the final regulations will have an effect on the underlying rate of sexual harassment. We understand that any analysis of the 2011 Dear Colleague Letter could not definitively determine the effects of the final regulations on the underlying incidents of sexual harassment due to the significant differences in these two sets of policies. We are presenting the 2011 Dear Colleague Letter analysis as a means to show the best possible information and analysis available to the Department, as well as the Department’s limitations in assessing the effects of the final regulations on the underlying incidents of sexual harassment. Potential limitations of our analysis include: • Potential omitted variables. As depicted in Figures I and II, the number of forcible sex offenses reported under the Clery Act is non-linear over time, decreasing from 2007 through 2009 and then increasing again. This relationship was established before the release of the 2011 Dear Colleague Letter and continued thereafter. A linear specification to the model would ignore the underlying trends in the data and incorrectly attribute baseline variation to the 2011 Dear Colleague Letter, as evidenced in Column 2 of Table V. However, we did not interrogate what may have happened in 2009 that led to such a change in trend and the associated implications for the quality of the data or its suitability for the hypothesis-testing being attempted. • Quality of Clery Act data. Our results might differ with different or higher quality data. An ideal data set would include information on each institution’s pre- and post-2011 Dear Colleague Letter Title IX compliance framework as well as the actual number of incidents of sexual harassment and assault (and not only those reported by the institution under the Clery Act). It is widely understood that a large number of incidents of sexual harassment and assault go unreported to institutional or legal authorities and are 30541 therefore not captured in our data. Further, if the implementation of the 2011 Dear Colleague Letter changed the reporting behaviors of either victims or institutions, then our analyses herein would be invalid. • Correlation between Clery Act data and the underlying incidents of sexual harassment. Notwithstanding the preceding limitation of using Clery Act data, our analysis also assumes a correlation that we are unable to substantiate between Clery Act data and the underlying incidents of sexual harassment. This limitation is discussed at greater length above. • Appropriateness of controls. Assuming that robberies represent a reasonable control for other criminal offenses on campus, despite the varying time trends across types of crime reported by the National Center for Education Statistics.1908 Our analysis used an ordinary least squares specification, without additional augmentation (e.g., Tobit regression). However, we have no reason to believe that such a specification would have allowed us to make definitive conclusions about the potential effects of the final regulations. TABLE I—CLERY ACT REPORTS OF FORCIBLE SEX OFFENSES BY YEAR AND GEOGRAPHY Geography 2007 2008 2009 2010 2011 2012 2013 On Campus .................. Non Campus ................ Public Property ............. 2,736 294 448 2,670 271 329 2,602 296 366 2,981 308 331 3,425 379 394 4,075 445 429 5,052 588 376 Total ...................... 3,478 3,270 3,264 3,620 4,198 4,949 6,016 TABLE II—AVERAGE NUMMBER OF CLERY ACT REPORTS BY PERIOD 2007–2011 average Geography 2012–2013 average p On Campus .................................................................................................................................. Non Campus ................................................................................................................................ Public Property ............................................................................................................................ 2,883 310 374 4,564 517 403 0.15 0.19 0.47 Total ...................................................................................................................................... 3,566 5,483 0.15 Each p-value is for an F-test of the null hypothesis that the averages are the same across time periods. 1908 Institute of Education Sciences, National Center for Education Statistics, ‘‘Fast Facts,’’ https://nces.ed.gov/fastfacts/display.asp?id=804. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 PO 00000 Frm 00517 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 30542 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations TABLE III—AGGREGATE DATA REGRESSION RESULTS BY CLERY GEOGRAPHY Variable (1) (2) (3) (4) Year ................................................................................................................. ** 1,681 (360) ........................ Year2 ................................................................................................................ ........................ 954 (471) 207 (106) ........................ Enrollment ........................................................................................................ ........................ ........................ ¥85 (126) ** ¥447,622 (40,376) ** 111 (10) ........................ R2 ..................................................................................................................... 0.81 0.86 0.99 Year ................................................................................................................. ** 207 (49) ........................ Year2 ................................................................................................................ ........................ 114 (67) 27 (15) ........................ Enrollment ........................................................................................................ ........................ ........................ ¥32 (26) ** ¥62,688 (8,327) ** 16 (2) ........................ R2 ..................................................................................................................... 0.78 0.88 0.99 A. On Campus Post-2011 ......................................................................................................... ¥136 (145) * ¥380,702 (89,421) * 95 (22) ¥0.00 (¥0.83) 0.99 B. Non Campus VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 PO 00000 Frm 00518 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 ¥27 (34) * ¥69,378 (20,837) * 17 (5) 0.00 (0.00) 0.99 ER19MY20.000</GPH> Post-2011 ......................................................................................................... Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations 30543 TABLE III—AGGREGATE DATA REGRESSION RESULTS BY CLERY GEOGRAPHY—Continued Variable (1) (2) (3) (4) Year ................................................................................................................. 29 (40) ........................ Year2 ................................................................................................................ ........................ 73 (67) ¥13 (15) ........................ Enrollment ........................................................................................................ ........................ ........................ 35.4 (12) ¥16,230 (35,896) 4 (9) ........................ R2 ..................................................................................................................... 0.10 0.23 0.28 Year ................................................................................................................. 1376 (1010) ........................ Year2 ................................................................................................................ ........................ ¥298 (1,509) 478 (341) ........................ Enrollment ........................................................................................................ ........................ ........................ ¥622 (2,601) ¥138,800 (834,473) 35 (208) ........................ R2 ..................................................................................................................... 0.27 0.51 0.56 C. Public Property Post-2011 ......................................................................................................... 58 (45) ¥45,713 (89,678) 11 (22) 0.00 (0.00) 0.32 D. Total Post-2011 ......................................................................................................... 363 (306) ¥143,072 (1,890,451) 356 (470) 0.0028 (0.0036) 0.63 * p < 0.10. ** p < 0.05. TABLE IV—TOTAL NUMBER OF FORCIBLE SEX OFFENSES REPORTED UNDER CLERY BY INSTITUTIONAL CONTROL AND LEVEL OF INSTITUTION, 2007–2013 Level of institution Control Four-year Two-year Less than 2 year Total Public ............................................................................................................... Private, non-profit ............................................................................................ Private, for-profit .............................................................................................. 11,267 10,100 102 1,551 47 25 56 1 12 12,874 10,148 139 Total .......................................................................................................... 21,469 1,623 69 23,161 VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 PO 00000 Frm 00519 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 30544 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations TABLE V—CAMPUS LEVEL DATA REGRESSION RESULTS Explanatory variable (1) (2) (3) (4) (5) (6) Post-2011 ................................................. Year .......................................................... *** 0.13 (0.02) ........................ Year2 ........................................................ ........................ *** 0.15 (0.03) 0.01 (0.01) ........................ Private, non-profit (1 = yes) ..................... ........................ ........................ ¥0.00 (0.04) *** ¥48.88 (13.49) *** 0.01 (0.00) ........................ Private, for-profit (1 = yes) ....................... ........................ ........................ ........................ Two-year (1 = yes) .................................. ........................ ........................ ........................ Less than two year (1 = yes) ................... ........................ ........................ ........................ Robbery .................................................... ........................ ........................ ........................ ¥0.00 (0.10) *** ¥46.49 (13.08) *** 0.01 (0.00) *** ¥0.47 (0.02) *** ¥0.51 (0.02) *** ¥0.94 (0.02) *** ¥0.75 (0.03) ........................ Enrollment ................................................ ........................ ........................ ........................ ........................ 0.01 (0.04) *** ¥44.95 (12.62) *** 0.01 (0.00) *** ¥0.33 (0.02) *** ¥0.41 (0.02) *** ¥0.78 (0.02) *** ¥0.62 (0.03) *** 0.48 (0.01) ........................ R2 ............................................................. 0.00 0.00 0.00 0.06 0.13 0.01 (0.04) *** ¥49.25 (12.53) *** 0.01 (0.00) *** ¥0.14 (0.02) *** ¥0.23 (0.02) *** ¥0.70 (0.02) *** ¥0.47 (0.03) *** 0.45 (0.01) *** 0.00 (0.00) 0.14 *** P < 0.1. 1909 Cecilia Mengo & Beverly M. Black, Violence Victimization on a College Campus: Impact on GPA VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 also asserted that research demonstrates that chronic absence from school is a primary cause of low academic achievement and a powerful predictor of which students will eventually drop out of school.1910 Further, more than 40 and School Dropout, 18 Journal of Coll. Student Retention: Research, Theory & Practice 2 (2015). 1910 See U.S. Department of Education, et al., Key Policy Letters Signed by the Education Secretary or PO 00000 Frm 00520 Fmt 4701 Sfmt 4700 percent of college students who were sexually victimized also reported experiences of institutional betrayal, Deputy Secretary 1 (Oct. 7, 2015) [archived information], https://www2.ed.gov/policy/elsec/ guid/secletter/151007.html; Audrey Chu, I Dropped Out of College Because I Couldn’t Bear to See My Rapist on Campus, Vice (Sept. 26, 2017) https:// broadly.vice.com/en_us/article/qvjzpd/i-droppedout-of-college-because-i-couldnt-bear-to-see-myrapist-on-campus. E:\FR\FM\19MYR2.SGM 19MYR2 ER19MY20.001</GPH> Changes: None. Comments: Other commenters cited studies that found that 34 percent of students who have experienced sexual assault drop out of college, a rate that is higher than the overall dropout rate for college students.1909 Commenters Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations which impacts their abilities to continue their education. One commenter argued that when students do not complete college, their lifetime earning potential is significantly reduced and, if most students take out student loans, then the lowered income potential would impact these students’ ability to repay the loans they borrowed from the Federal government. Other commenters asserted that some students may choose to transfer out of a hostile environment by opting to pursue their education at a different institution. However, there are costs associated with this strategy. Some commenters stated that the bulk of the upfront costs relate to credits that become ‘stranded assets,’ when the investment that students, families, and public institutions make to help students acquire skills is lost. These students will need additional credits in order to receive a degree—if they receive one at all—and will spend more time out of the labor market. One commenter cited a 2014 study, stating that the Department, itself, found that the average transfer student loses 27 earned credits after transferring.1911 The commenter also cited the Government Accountability Office study that found that transfer students spend an extra 0.25 years in school before graduating.1912 Additionally, while pointing to a 2017 analysis from Complete College America, a commenter asserted that each additional year of schooling costs roughly $51,000 for students at two-year colleges and $68,000 for students at four-year colleges—and in both cases, the majority of those costs come from forgone earnings. One commenter asserted that the Department failed to attempt to calculate the incremental costs of lost scholarships for those who receive lower grades as a result of sexual violence or other sexual harassment and defaults on student loans as a result of losing tuition and/or scholarships. Another commenter stated that, if a survivor defaults on a Federal student loan, they are restricted from future Federal financial aid, vulnerable to predatory lending in attempts to pay heavy debts, and unable to discharge their student loans in bankruptcy. In 1911 Institute of Education Sciences, National Center for Education Statistics, Transferability of Postsecondary Credit Following Student Transfer or Coenrollment: Statistical Analysis Report (August 2014), https://nces.ed.gov/pubs2014/2014163.pdf. 1912 Government Accountability Office, Transfer Students: Postsecondary Institutions Could Promote More Consistent Consideration of Coursework by Not Basing Determinations on Accreditation (October 2005), https://www.gao.gov/new.items/d06 22.pdf. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 addition to lost education and professional growth, the commenter asserted, these losses lead to damaged credit that interferes with their ability to secure housing, employment, and even access utilities or a phone. Discussion: While we appreciate the commenters’ efforts to highlight the very real effects of sexual harassment and assault, the problems identified by the commenters largely arise from the underlying sexual harassment or assault rather than a recipient’s response to that misconduct. As discussed above, the Department does not have evidence to assume these final regulations would have any effect on the underlying number of incidents of sexual harassment and assault. It is also not apparent that a recipient’s response to sexual harassment and assault under these final regulations would be likely to exacerbate the negative effects highlighted by commenters. Indeed, as described above, we believe it is likely that, if these final regulations were to have any marginal effect on those outcomes, it would be to reduce their negative impacts due to the mandatory offer of supportive measures in § 106.44(a). As such, we decline to add these costs to our estimates. Changes: None. Comments: Multiple commenters asserted that the costs for mental health services would largely fall on complainants because of their experience as a victim of sexual harassment and assault. One commenter reported that sexual assault survivors are three times more likely to suffer from depression, six times more likely to have PTSD, 13 times more likely to abuse alcohol, 26 times more likely to abuse drugs, and four times more likely to contemplate suicide.1913 Several commenters asserted that women who are sexually assaulted or abused are more than twice as likely to experience PTSD, depression, and chronic pain as women who have not experienced such violence.1914 One commenter reported that an estimated 40 percent of rape victims suffer from severe emotional distress which requires mental health treatment. Another commenter reported that survivors continue to report poorer health, utilize healthcare twice as much, and continue to pay increased health care costs even five years after their 1913 Feminist Majority Foundation, ‘‘Fast facts— Sexual violence on campus’’ (2018), https:// feministcampus.org/wp-content/uploads/2018/11/ Fast-Facts.pdf. 1914 Anne B. Woods et al., The Mediation Effect of Posttraumatic Stress Disorder Symptoms on the Relationship of Intimate Partner Violence and IFN-g Levels, 36 Am. J. of Comm. Psychol. 1–2 (2005). PO 00000 Frm 00521 Fmt 4701 Sfmt 4700 30545 abuse has ended.1915 Several commenters argued that the costs the NPRM shifts to complainants would, in turn, shift to health insurance companies, and society will ultimately bear such costs. Another commenter stated that those who suffer sexual harassment and assault are more likely to require services from already overburdened health and counseling services. The commenter argued that this will mean greater costs for government and taxpayers, since public colleges and universities rely, in part, on government and tax-payer support. Several commenters reported that more than one-fifth of intimate partner rape survivors lose an average of eight days of paid work per assault. One commenter asserted that researchers found that women who experience dating violence in adolescence have lower starting salaries as adults than their counterparts and slower salary growth over time.1916 Similarly, commenters reference other research that found that survivors experience job instability for up to three years after an abusive relationship has ended.1917 The commenter stated that the costs from the economic ripple effect include $2,084 for forensic exams and $140 or more per counseling session when not offered by schools or covered by health insurance.1918 The commenter cited a 2017 study which found that the average cost of a victim’s sexual assault 1915 Amy E. Bonomi et al., Health Outcomes in Women with Physical and Sexual Intimate Partner Violence Exposure Intimate Partner Violence Exposure, 16 Journal of Women’s Health 7 (2007); Amy E. Bonomi et al., Health Care Utilization and Costs Associated with Physical and NonphysicalOnly Intimate Partner Violence, 44 Health Services Research 3 (2009). 1916 Adrienne E. Adams et al., The Effects of Adolescent Intimate Partner Violence on Women’s Educational Attainment and Earnings, 28 Journal of Interpersonal Violence 17 (2013). 1917 Adrienne E. Adams et al., The Impact of Intimate Partner Violence on Low-Income Women’s Economic Well-Being: The Mediating Role of Job Stability, 18 Violence Against Women 12 (2012). One commenter conducted a study that found that survivors of sexual harassment and assault face an ‘‘economic ripple effect.’’ Sara Shoener & Erika Sussman, Economic Ripple Effect of IPV: Building Partnerships for Systemic Change (2013), https:// csaj.org/library/view/economic-ripple-effect-of-ipvbuilding-partnerships-for-systemic-change. See also Sara Shoener, The Price of Safety: Hidden Costs and Unintended Consequences for Women in the Domestic Violence Service System (Vanderbilt Univ. Press 2016). 1918 Coreen Farris, et al., Enemy Within: Military Sexual Assault Inflicts Physical, Psychological, Financial Pain, 37 RAND Rev. 1 (2013); Farran Powell & Emma Kerr, What You Need to Know About College Tuition Costs, U.S. News & World Report (Sept. 18, 2019) ($5,150 of tuition per lost semester; the average U.S. university tuition in 2017–208 was $11,721.67 per semester), https:// www.usnews.com/education/best-colleges/payingfor-college/articles/what-you-need-to-know-aboutcollege-tuition-costs. E:\FR\FM\19MYR2.SGM 19MYR2 30546 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations claim filed against a college or university was approximately $350,000.1919 Many commenters asserted that the Department did not adequately consider certain costs that result from sexual harassment, including sexual assault. For example, numerous commenters reported that the lifetime costs of intimate partner violence include related health problems, lost productivity, and criminal justice costs, totaling an estimated $103,767 for women and $23,414 for men.1920 Other commenters reported that the Centers for Disease Control and Prevention estimates that the lifetime cost of rape is $122,461 per survivor, resulting in an annual national economic burden of $263 billion.1921 One commenter asserted that about one-third of the cost is borne by taxpayers, and more than half of this cost is due to loss of workplace productivity, and the rest is due to medical costs, criminal justice fees, and property loss and damage. Multiple commenters asserted that a single rape costs a victim between $87,000 to $240,776.1922 Many commenters stated that the average cost of being a rape victim is approximately $110,000 according to the Children’s Safety Network Economic and Insurance Resource Center. Comparatively, the average cost of being a robbery victim is $16,000, and the average cost of drunk driving is $36,000. Discussion: We do not believe it would be appropriate to include estimates regarding the cost of incidents of sexual harassment or assault themselves in our calculation of the likely effects of this regulatory action. As described above, we have no evidence indicating that Federal Title IX guidance or regulation has an effect on the underlying number of incidents of sexual harassment and assault. To the extent that such effects are relevant to our evaluation of the likely costs of 1919 Halley Sutton, Study Outlines Cost of Sexual Assault Litigation for Universities, 14 Campus Security Report 2 (2017). 1920 See Cynthia Hess & Alona Del Rosario, Institute for Women’s Policy Research, Dreams Deferred: A Survey on the Impact of Intimate Partner Violence on Survivors’ Education, Careers, and Economic Security 8 (2018), https://iwpr.org/ wp-content/uploads/2018/10/C474_IWPR-ReportDreams-Deferred.pdf. 1921 See Cora Peterson et al., Lifetime Economic Burden of Rape Among U.S. Adults, 52 AM. J. Prev. MED. 6, 691, 698 (2017), https://stacks.cdc.gov/ view/cdc/45804/cdc_45804_DS1.pdf. 1922 See The White House Council on Women and Girls, Rape and Sexual Assault: A Renewed Call to Action (2014), https://www.knowyourix.org/wpcontent/uploads/2017/01/sexual_assault_report_121-14.pdf; U.S. Dep’t. of Justice, National Institute of Justice, Research Report: Victim Costs and Consequences: A New Look (1996), https:// www.ncjrs.gov/pdffiles/victcost.pdf. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 these final regulations, we note that supportive measures, as defined in § 106.30, are ‘‘offered . . . without fee or charge to the complainant or the respondent.’’ As such, it could be reasonably argued that these final regulations would actually reduce costs for complainants, especially as § 106.44(a) requires recipients to offer supportive measures to a complainant as more fully explained in the ‘‘Section 106.44(a) Deliberate Indifference Standard’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section. Nonetheless, we decline to include such costs, as it is unclear the extent to which such services would be offered as part of supportive measures, the take-up rate on the part of complainants, or the amount of savings that would accrue to complainants as a result. We do, however, revise our cost estimates to include the cost of recipients offering supportive measures to complainants pursuant to § 106.44(a). Changes: We revise our cost estimates to include the cost of recipients offering supportive measures to complainants pursuant to § 106.44(a). Comments: Several commenters asserted that the RIA does not appear to account for the lost future tax revenue that would have been collected on the higher salaries of students who are afforded equal access to education free from discrimination, or the reduced future health care costs attributable to campuses that more effectively prevent sexual harassment and assault. Discussion: We decline to include the costs identified by the commenters. The effects noted by the commenters are sufficiently temporally and causally distant from the implementation of the final regulations that it would be difficult and impractical to quantify. Further, the comments assume that implementation of the final regulations will deny equal access to education to at least a subset of individuals, a proposition that we resoundingly reject. Changes: None. Comments: One commenter asserted that as the Department fails to justify its belief that there will be no quantifiable effect on the rate of underlying harassment, its conclusion about the impact on the underlying rate of sexual harassment is arbitrary and capricious. Moreover, the commenter argued the NPRM failed to consider the effect that its rules will have on perpetrators’ incentives, suggesting that the Department has failed to consider relevant issues or factors and that the proposed regulations are arbitrary and capricious. The commenter cited research that shows that offenders are PO 00000 Frm 00522 Fmt 4701 Sfmt 4700 more likely to be deterred from, and thus less likely to engage in, undesirable behaviors when there is reasonable certainty of some kind of accountability. For instance, in the criminal context, an increase in the probability of being apprehended is associated with a decrease in the criminal activity itself.1923 If, under the Department’s proposed rules, an abuser can more easily avoid accountability because schools are not legally required to act, any likelihood of deterrence resulting from the possibility of facing consequences is lowered. The commenter argued that the RIA failed to account for the potential effects of the proposed regulations on perpetrators’ incentives, which rendered this analysis arbitrary and capricious. Discussion: As described above, we have articulated our rationale for not including the costs of sexual harassment or assault itself in our estimates. Further, we have provided additional analysis that supports our original decision. We do not believe that the exclusion of these costs is arbitrary or capricious. Regarding ‘‘perpetrators’ incentives,’’ as noted elsewhere, and confirmed by our analysis of the 2011 Dear Colleague Letter, we do not believe that the behavior of perpetrators is driven by Title IX guidelines or regulations. We further note that the examples cited by the commenter pertain to the criminal context rather than an administrative one, and it is likely that incentives operate differently across those two contexts. Changes: None. Comments: One commenter asserted that the Department needs to perform a more exhaustive cost-benefit and regulatory impact analysis. The commenter suggested that the Department ought to obtain empirical estimates of the depressed rates of positive findings of actual sexual harassment resulting from a requirement of cross-examination, the rates of likely reduction of reporting, the likely effects on under-deterrence of some classes of sexual harassment, and the costs of increased occurrences of sexual harassment. Another commenter, a nonprofit that specializes in education law, asserted that the NPRM’s cost-benefit analysis was not performed in goodfaith, and the commenter called for the Department to start completely anew with a new set of assumptions that will reflect the actual effects of these 1923 See Valerie Wright, The Sentencing Project, Deterrence In Criminal Justice (2010), https:// www.sentencingproject.org/wp-content/uploads/ 2016/01/Deterrence-in-Criminal-Justice.pdf. E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations regulations rather than a desire to minimize cost calculations as much as possible. Another commenter asserted that the Department has an obligation to incorporate an estimate of reduced sexual harassment and sexual assault reporting rates. The commenter asserted that the estimated baseline fails to recognize unreported assaults. One commenter cited a recent report by one university on campus assault that stated that a significant percentage of individuals who do not report stated it was not reported because they did not think anything would be done about it (29.9 percent) or feared it would not be kept confidential (17.7 percent).1924 The same study concluded that a significant number of victims who do not report felt embarrassed or ashamed (32.9 percent). Fewer victims of penetrative acts involving incapacitation felt nothing would be done about it (8.9 percent) or felt embarrassed (20.5 percent). Additionally, the survey found that roughly 50 percent of sexual violence occurred off campus. The commenter argued that the proposed regulations, by allowing schools to ignore sexual violence off campus, would ignore 50 percent of already reported incidences of sexual violence. The commenter wished to see the RIA account for these findings. Discussion: We appreciate the commenters’ feedback, but we do not see sufficient cause across the entirety of public comment to warrant establishing a new model. Where commenters have identified clear deficiencies or inaccuracies with our estimates related to the effects of the final regulations, we have adjusted our assumptions accordingly. We note that the model was not derived based on a desire to minimize costs, but rather to effectively capture the likely impacts of this regulatory action. Regarding the impact of the final regulations and cross-examination on findings of responsibility, we are not aware of research establishing a clear causality or directionality in this relationship. Further, even if it were established that cross-examination reduced findings of responsibility in Title IX enforcement cases, it would not be immediately clear that such a reduction would be inherently negative. It is just as likely that such a reduction would be driven by a decrease in false positives (findings of responsibility 1924 See The Association of American Universities, Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct: University of Virginia (Westat 2015), https:// ias.virginia.edu/sites/ias.virginia.edu/files/ University%20of%20Virginia_2015_climate_final_ report.pdf. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 where none exists) as a reduction in true positives (findings of responsibility where it exists). In fact, there is good reason to believe that cross-examination improves adjudicators’ ability to effectively assess the results of an investigation.1925 As discussed elsewhere, the Department does not have any information to reliably suggest that the final regulations would result in a change in the number of incidents of sexual harassment and assault each year. However, our analysis takes into consideration an effect on the number of incidents that would result in a formal complaint. The NPRM assumed that a subset of investigations currently being conducted by recipients will result in reports (with supportive measures offered to the complainants) rather than formal complaints (although every complainant has the option of filing a formal complaint) and would, therefore, not trigger the grievance procedures described in § 106.45. We recognize that there are a number of reasons why a complainant may opt not to file a formal complaint and, in our view, our initial analysis took this effect into account. Changes: None. Comments: Another commenter asserted that the Department’s estimate that the proposed rules will reduce the number of off-campus investigations by 0.18 is arbitrary and is generated without clear explanation. The commenter argued that the RIA failed to provide a complete accounting of all estimated costs and how the costs were determined. For example, the RIA does not state whether the salary rates are market rates or rates provided under the Federal GS Schedule, nor does it state whether the Federal revenue per fulltime equivalent (FTE) is based on an inflation adjustment. Discussion: We disagree. We fully explained the basis for that estimate in the NPRM.1926 The estimate relied, in part, on the estimated number of investigations currently occurring and the relative number of incidents reported under the Clery Act that occur on campus and off campus. Changes: None. Overall Net Effects/Characterization of Savings Comments: Regarding the Paperwork Reduction Act, one commenter asserted that the commenter’s employer, a large non-profit, believes that the burden estimates are accurate, the quality and 1925 See Nicole Smith, The Old College Trial: Evaluating the Investigative Model for Adjudicating Claims of Sexual Misconduct, 117 Columbia L. Rev. 4 (2017). 1926 83 FR 61487. PO 00000 Frm 00523 Fmt 4701 Sfmt 4700 30547 usefulness of the information collected is justifiable, and that the reporting burden is appropriately minimized. Discussion: We appreciate the commenter’s support for our estimates. Changes: None. Comments: One commenter stated that they could not understand how the Department arrived at its projected cost totals. The NPRM stated that the Regulatory Impact Analysis estimates ‘‘the total monetary ‘cost-savings’ of these regulations over ten years would be in the range of $286.4 million to $367.7 million’’; however, the commenter could not find that cost savings figure reflected in the accounting statement. The commenter asked the Department to clarify how it arrived at its estimated total costs. Discussion: We recognize that the discrepancy between the total cost figures and those included in the accounting statement could be confusing to some commenters. The cost savings calculation of $286.4 to $367.7 million were calculated over a ten-year window. By contrast, the Accounting Statement included an annualized (per year) calculation of those same costs. Changes: None. Comments: Multiple commenters expressed concerns that the final regulations will increase operating costs for recipients. Several commenters asserted that the proposed procedural requirements will cost institutions more over time to implement than they currently pay in Title IX-related legal fees, settlements, and damage awards. One large State-coordinating body for higher education estimated the costs for implementing the proposed rules at $500,000 for institutions with few cases (0–4) to $1.8 million for institutions with many cases (up to 45). The range of costs was estimated per institution for implementation of investigation, hearing, and adjudication processes. Discussion: We appreciate commenters concerns and note that, in fact, the estimates in the NPRM assumed that a subset of institutions would not experience any cost savings as a result of the proposed rules. In the NPRM, we assumed that 50 percent of institutions of higher education (IHEs) would not see any reduction in the number of Title IX investigations per year as a result of the proposed rule. Although our analytical model generates different estimates for costs than those cited by the commenter (lower estimates for institutions with few cases, higher estimates for institutions with many cases), we do not have sufficient information at this time to identify the source of these differences. However, we are concerned about the possibility E:\FR\FM\19MYR2.SGM 19MYR2 30548 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations that such burdens, where they do accrue, would be potentially difficult for recipients to bear. Based on the assumptions included herein, and discussed at further length in the Regulatory Flexibility Act section of this notice, we do not believe that such burdens would pose significant challenges for most institutions. Changes: We have included additional information in the Regulatory Flexibility Act section to more clearly describe the likely magnitude of the effects of the final regulations on institutions of varying sizes. Comments: Numerous commenters argued that the cost savings estimated by the NPRM’s RIA is really just costshifting to complainants, respondents, and other parties. Several commenters asserted that the proposed rules would not reduce costs but simply shift costs from schools to the victims of sexual harassment. One commenter asserted that, by ignoring the NPRM’s costs to complainants, the Department ‘‘entirely failed to consider an important aspect of the problem,’’ which the commenter stated is a hallmark of arbitrary and capricious action. One commenter asserted that, while the Department acknowledged in the NPRM that 22 percent of survivors seek psychological counseling, it did not account for additional costs sexual harassment and assault survivors bear: 11 percent move residences and eight percent drop a class. Discussion: We agree that it would be inappropriate to consider transfers of costs or burdens across entities or individuals as cost savings. However, the cost estimates in the NPRM did not do as the commenter suggested. Even so, the commenters’ point is well taken that our estimates failed to take into account time burdens on complainants and respondents. For example, our initial estimates of the time associated with a hearing assumed time and costs for the Title IX Coordinator, a decision-maker, and advisors, but did not include the time required on the part of complainants and respondents to participate in the hearing. Therefore, we have added burden associated with the participation of complainants and respondents throughout the cost estimates. For K–12 students, we assume costs at the Federal minimum wage. For students enrolled in postsecondary institutions, we assume median hourly wage for all workers ($18.58 per hour). These costs are intended to represent the opportunity cost associated with devoting time to the particular activity measured as potential lost wages. Again, as discussed at length in the NPRM and VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 elsewhere in this notice, the Department declines to include costs associated with underlying incidents of sexual harassment and assault in our estimate of the potential costs of this regulatory action as doing so would be inappropriate. As previously explained, the Department also revised its cost estimates and has determined that the final regulations imposes net costs. Changes: We have added two additional categories of individuals to our cost models: K–12 students and postsecondary students. We revised our cost estimates and have concluded that the final regulations impose net costs. Comments: One commenter asserted that, under the proposed rules, schools will spend more time and resources engaging in a bureaucratic process instead of taking measures that would make the campus safer. The same commenter argued that publicly funded educational institutions should be allotting more time and resources to help tackle the issue of sexual misconduct and funds should be spent on better counseling, prevention measures, and implementing changes that will make schools safer such as lighting for walkways, sexual misconduct education, and specialized law enforcement services for survivors. One commenter asserted that institutions with more resources, such as private universities and charter schools, will be able to make more robust commitments to crossexamination in Title IX hearings—such as keeping a law firm on retainer to act as advisors for complainants and respondents—resulting in inequity in how sexual harassment is addressed nationwide. Another commenter stated that some recipients under these new regulations will feel obligated to provide attorneys to protect students and ensure fairness, even if it is not mandated by the final regulations, and the Department incorrectly underestimated the costs of retaining attorneys to serve as advisors. Discussion: We agree with the commenter that a broad range of activities and efforts can be undertaken by recipients to address issues of sexual misconduct. Those activities and efforts though are better determined by recipients themselves based on their own local context. We revised § 106.44(a) to require recipients to offer supportive measures to complainants as part of their non-deliberately indifferent response to sexual harassment. Supportive measures, as defined in § 106.30, are designed to restore or preserve equal access to the recipient’s education program or activity. Section PO 00000 Frm 00524 Fmt 4701 Sfmt 4700 106.44(a) requires the Title IX Coordinator to promptly contact a complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. As a result of these and other revisions, the Department has concluded that these final regulations impose net costs. Regarding the differential response to these final regulations by different types of entities, we note that regulated entities often vary in their response to new rules. In the NPRM, we specifically discussed entities that, for a variety of reasons, opt to engage in activities above and beyond those required. At the postsecondary level, we assumed that approximately 45 percent of recipients fell into this group.1927 Further, as noted elsewhere in this document, our initial estimates already assumed attorneys would serve as advisors. Changes: As a result of revisions to the proposed regulations, the Department revised its analysis and has determined that these final regulations impose net costs. Comments: Several commenters argued that the Department’s analysis both underestimates the cost of implementation and overestimates the savings. Commenters predicted that it is likely that the costs from the proposed rules would exceed any savings. One commenter asserted that the RIA never clearly relayed to the public that recipient-institutions covered by Title IX may be private education programs or other institutions such as museums, libraries, or science labs that have education programs and receive Federal financial assistance from the Department or other Federal agencies, such as the Department of Agriculture. The commenters asserted that the public should be aware of how broadly Title IX reaches across various institutions, and therefore, how great the scope of the costs will be. Discussion: We agree that our initial analysis failed to account for recipients that are not LEAs or IHEs. Therefore, we conducted an analysis of the grants made by the Department in FY 2018. In that year, the Department made 15,266 awards to 8,324 entities. Of those, 537 were identified as ‘‘other’’ entities (e.g., museums, libraries, cultural centers, and other non-profit organizations). We have therefore added 600 additional 1927 See E:\FR\FM\19MYR2.SGM 83 FR 61486. 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations entities to our analysis. We assume that approximately 90 percent of these entities will be in Group 1, as described in the NPRM, with an additional five percent in each of Groups 2 and 3. We note that we have no meaningful, systematic data on the number of incidents or investigations of sexual harassment occurring in these entities, though we note that many are small organizations devoted to providing technical assistance and outreach to families and have very few employees. Given the lack of information, we assume a baseline of two investigations per year per entity with a reduction to one under the final regulations.1928 As previously explained, as a result of changes from the proposed regulations to these final regulations, we also have revised our analysis and concluded that the final regulations impose net costs. Changes: We have added a new category of recipients to our model. As a result of revisions to the proposed regulations, the Department revised its analysis and has determined that these final regulations impose net costs. Comments: One commenter asserted that the RIA violates Executive Order 12866, which requires agencies to assess all costs and benefits of a proposed rule ‘‘to the fullest extent that these can be usefully estimated,’’ as the RIA fails to accurately estimate the true and full burden of the required policy changes. Discussion: We disagree. The Department has made a good-faith effort to fully and accurately account for all costs and benefits likely to accrue as a result of this regulatory action and, as a result, we believe we have met our burdens under Executive Order 12866. We also have revised our analysis and have concluded that these final regulations are economically significant and impost net costs. Changes: None. Comments: One commenter asserted that the Department has touted the savings of $286.4–$367.7 million dollars as a ‘‘selling point’’ for these rule changes. And yet, in relation to the endowments of most private colleges, the commenter asserted that the budgets of public university systems and the Department’s own request for $63 billion for FY 2019, show how the projected savings amount is a paltry sum. Discussion: We agree that the savings calculated in the NPRM do not constitute a significant percentage of overall revenues for elementary and 1928 For more information about the impact of this assumption on our estimates, see Table 5 in the Discussion of Costs, Benefits, and Transfers section below. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 secondary schools and postsecondary institutions in this country. Additionally, as a result of revisions to the proposed regulations, we have revised our analysis and determined that the final regulations impose net costs. Changes: We have revised our analysis and determined that the final regulations impose net costs. Comments: Another commenter asserted that, if the estimated savings of $286.4 to $367.7 million were distributed evenly across the 23,000 total universities, colleges, elementary, and secondary school districts, the savings would total $1,598.69 per institution per year. In the commenter’s view, this meager lump sum would not begin to cover the financial burden that the proposed rules would inflict upon institutions of higher education. Discussion: We believe the commenter may have misunderstood the estimates presented in the NPRM. We anticipated net cost savings of approximately $286.4 to $367.7 million. That figure takes into account all increases and decreases in costs. Therefore, it is not necessary that the net cost savings figure be sufficient to cover cost increases, as such an analysis would double count costs. We believe the commenter mistook our calculations for gross cost savings, rather than net. We note that our final cost estimates reflect a net cost of between $48.6 and $62.2 million over ten years. Changes: None. Comments: Another commenter, a law school, whose students currently benefit from over $10 million in scholarship awards, stated that compliance with the proposed regulations will reduce the amount of aid the school will be able to pay to future students. Discussion: We recognize that, to the extent recipients or parties realize costs as a result of the final regulations, they will need to identify sources of funding to cover those costs. Changes: None. Comments: Numerous commenters stated that the increase in requirements will cause schools to increase the funds they allocate for Title IX compliance. If they increase them, the cost will likely be passed onto students in the form of higher tuition or fees. If schools instead do not increase funding, they risk compliance gaps resulting from inadequate technology, staffing, or training. The commenters requested that the Department pay particular attention to the impact of the proposed rules on smaller institutions and to be sensitive to the measures that will increase costs. Discussion: In accordance with the Regulatory Flexibility Act, we have PO 00000 Frm 00525 Fmt 4701 Sfmt 4700 30549 reviewed the potential effects of this regulatory action on small entities. While we recognize that the burden on small entities may represent a larger proportion of their overall revenues, as discussed elsewhere, we do not believe that these final regulations impose an unreasonable burden on such entities. The Department believes that addressing sex discrimination in the form of sexual harassment, including sexual assault, is of paramount importance and is worth the cost. Changes: None. Motivation for Rulemaking Comments: Several commenters asserted that the NPRM’s monetary savings comes at the unacceptable cost of stripping Title IX protections from many sexual harassment and assault victims. They argue that the proposed changes undermine the purpose for which Title IX was designed. One commenter stated that cost-savings is an irrelevant consideration when it comes to the application of civil rights law. Another commenter argued that it is unethical to consider, much less draw up, economic estimates in such a matter of human well-being. The commenter argued that financial incentives should not determine how schools and universities handle sexual misconduct accusations. Another commenter stated, hyperbolically, that it would also save money if universities provided no education for women. One commenter asserted that the costsavings projections reflect fewer reports, not fewer assaults. Another commenter stated that the framework of these proposed regulations have an aim to reduce the financial cost of Title IX complaints through the mechanism of reducing the number of Title IX investigations, and therefore, Title IX protections available to students. Another commenter cited statistics that show approximately 61 percent of sexual assaults occur off campus. The commenter believed that the NPRM’s requirement that schools investigate only on-campus or school-related incidents will reduce the number of sexual harassment and assault reports, but will also significantly impair colleges’ ability to maintain a safe, nondiscriminatory environment for all students. Moreover, the commenter argued that the on-campus requirement could function to enable predatory behavior off campus. Other commenters asserted that, because sexual assault and other forms of sexual harassment are already vastly underreported, the Department should be working to combat the problems of underreporting and under-investigation E:\FR\FM\19MYR2.SGM 19MYR2 30550 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations instead of trying to reduce the number of investigations. One commenter pointed out that, even when students do report sexual harassment, schools often choose not to investigate their reports. The commenter cited a 2014 Senate Report, first cited by the Department, in which 21 percent of the largest private institutions of higher education conducted fewer investigations of sexual violence than reports received with some of these schools conducting seven times fewer investigations than reports received. Another commenter disputed the Department’s prediction that the number of sexual harassment investigations would fall. The commenter asserted that the Department’s focus on investigation outcomes ignores the prevalence of both sexual harassment and sexual assault and underreporting of both kinds of offenses on campuses. Discussion: While we recognize the commenters’ concerns with quantifying the effects of these regulations, which pertain to civil rights protections, we note that we are bound to do so by Executive Order. Further, in deciding among alternative approaches, the Department is bound to choose the option that maximizes benefits and minimizes costs. While discussing civil rights protections in such terms may cause discomfort for particular commenters, we are required to do so as part of the rulemaking process. Although we may not have cited the statistics regarding the prevalence of sexual harassment and sexual assault cited by the commenters, we note that we cited statistics relevant to our estimates. We are not required under the Administrative Procedure Act, relevant Executive Orders, or OMB circulars, to cite all statistics regarding an underlying issue when conducting rulemaking. We do not believe citing other such statistics would have materially affected the public’s ability to provide comment on the proposed regulations. We agree that our estimates assumed a reduction in the number of Title IX investigations conducted by recipients each year for the reasons detailed in the NPRM. However, we strongly disagree that such an effect means that fewer students are protected by Title IX. As explained in more detail in the section ‘‘Section 106.44(a) ‘education program or activity’ ’’ subsection of the ‘‘Section 106.44 Recipient’s Response to Sexual Harassment, Generally’’ section of this document, these final regulations align the scope of ‘‘education program or activity’’ with Supreme Court case law and the current statutory and regulatory VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 definitions of ‘‘program or activity’’ in 20 U.S.C. 1687 and 34 CFR 106.2(h). The Department revised § 106.44(a) to require recipients to offer supportive measures to complainants as part of recipients’ non-deliberately indifferent response to sexual harassment. Even if a complainant chooses not to file a formal complaint to initiate the grievance process under § 106.45, including an investigation, the Title IX Coordinator must promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. The Department revised its analysis to account for such changes from the proposed regulations to the final regulations, and the Department concludes that these final regulations impose net costs. Recipients may be required to respond to incidents that occur off campus under these final regulations, as off-campus incidents of sexual harassment are not categorically excluded in these final regulations.1929 Title IX, 20 U.S.C. 1681(a), requires all recipients to address sex discrimination, including sexual harassment, in the recipient’s education program or activity. Pursuant to § 106.44(a), a recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent. An ‘‘education program or activity’’ includes, but is not limited to, locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution, whether such a building is on campus or off campus. Accordingly, an education program or activity may be an oncampus program or activity or an offcampus program or activity. Recipients must respond to any allegation of sexual harassment against a person in the United States in its education program or activity, regardless of whether such 1929 See, e.g., the discussion in ‘‘Section 106.44(a) ‘education program or activity’ ’’ subsection in ‘‘Section 106.44 Recipient’s Response to Sexual Harassment Generally’’ section. PO 00000 Frm 00526 Fmt 4701 Sfmt 4700 education program or activity is on campus or off campus. While we recognize that a large number of incidents of sexual harassment and sexual assault go unreported, we do not believe it is an appropriate Federal role to compel individuals to report those incidents. Rather, we believe it is important to ensure that when recipients do receive reports, they have clear policies and procedures in place to promote a safe and supportive environment while also ensuring due process protections are applied whenever the recipient investigates and adjudicates sexual harassment allegations. We believe that ensuring recipients respond to such reports in a consistent and supportive manner is the best way to support potential complainants and respondents. We believe that, absent these regulations, complainants would face a far more uncertain response from their school and have far less clarity regarding whether the school has actually met its burdens under Title IX. As noted elsewhere, the Department’s primary goal in promulgating these regulations was never to reduce the number of investigations, but rather to ensure clear guidelines under Title IX for recipients to effectively address sexual harassment. Changes: The Department concludes that these final regulations impose net costs. The Department’s Model and Baseline Assumptions Comments: One commenter argued that the Department arbitrarily assumed a reduction in the number of off-campus investigations by IHEs of 0.18 per year. This commenter requested that the Department generate a more reliable figure with a clear explanation to justify the significant number of victims who can no longer seek Title IX recourse. Discussion: The Department rejects the contention that its calculation of a reduction in the number of off-campus investigations by IHEs of 0.18 per year under the NPRM was arbitrary. As the preamble in the NPRM made clear, this calculation rested on a series of assumptions and data sources, which were clearly detailed. The reduction referenced by the commenter was based, in part, on assumptions about the current compliance structure across institutions of varying sizes and an assumption that Clery Act reports correlate with all incidents of sexual harassment. All data that the Department relied upon is publicly available and was identified in the NPRM to ensure that the general public had the necessary E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations information to assess the validity of our assumptions and estimates. Furthermore, the Department provided alternative estimates, detailed in the ‘‘Sensitivity Analysis’’ section, which were designed to ensure the public understood the likely effect of our particular assumptions on the overall magnitude of our final estimates. We acknowledge, as we did in the NPRM, that we do not have high-quality, comprehensive data on the current number of investigations being conducted by IHEs, and so the Department had to rely on estimates. This is why we previously requested that the general public provide us with any alternative data that they believed would more accurately capture the baseline. Changes: As discussed elsewhere, the Department has revised its estimate of the baseline number of investigations currently occurring at IHEs to 5.70 and the estimated number of formal complaints occurring after implementation of the final regulations to 3.82. Comments: A number of commenters voiced agreement with the RIA that the changes proposed by the NPRM are likely to result in a net cost savings for recipients. Some of these commenters pointed to the more than two hundred lawsuits that have been filed since the 2011 Dear Colleague Letter alleging lack of due process as well as sex discrimination against respondents. One commenter asserted that, at the time the comment was written, colleges had lost more than 90 such lawsuits, and the commenter predicted that the due process protections implemented by the changes to Title IX would result in additional cost savings for colleges in the form of averted litigation costs. Another commenter asserted that, because of the changes set forth by the NPRM, schools would be able to divert resources away from lawsuits and towards other uses that would more directly benefit students. Discussion: We appreciate the support from some commenters. Changes: None. Comments: Numerous commenters asserted that reports and investigations will decrease under the proposed regulations because of additional obstacles to reporting and the costs of pursuing investigations. One commenter stated the RIA should estimate the rates for which sexual harassment and assault would increase and should also account for the burden of such increased rates on the parties. One commenter argued that sexual harassment and assault can be deterred, but the proposed rules would create obstacles to reporting VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 sexual harassment and sexual assault and, therefore, will reduce the amount of specific and general deterrence around such misconduct. Another commenter cited numerous articles, as well as the NPRM, for the proposition that sexual harassment and sexual assault can be deterred showing that the Department also acknowledges that proposition. Several commenters stated that, if the Department decides to implement § 106.45(b)(6), the predicted harms of retraumatization must be factored into a new cost-benefit and regulatory impact analysis. Other commenters argued that requiring complainants to submit to cross-examination will reduce the number of students pursing formal complaints of sexual harassment on campuses and will make campuses less safe. One commenter asserted that the Department omitted the cost to schools of students’ greater demand for psychological and medical services as a result of recipients investigating fewer complaints of sexual harassment and sexual assault. The commenter asserted that institutions of higher education are already spending significant amounts of money on campus mental health services. The commenter argued that imposing new barriers and creating new stressors would exacerbate the rising costs of mental health services. Discussion: We disagree that the proposed and final regulations create obstacles to reporting incidents of sexual harassment and sexual assault. Rather, both the proposed and final regulations clarify recipients’ burdens under Title IX. To address potential confusion regarding what constitutes a formal complaint, we have revised the definition of ‘‘formal complaint’’ in § 106.30. As noted elsewhere, we have no reason to conclude that these final regulations would increase the number of incidents of sexual harassment and assault. As discussed above, fundamental respect for due process will not result in trauma for complainants or an increased need for mental health services. Such claims are speculative, at best, to be appropriately included in Departmental estimates. Further, we note that complainants are not required under the final regulations to participate in cross-examination, and decision-makers are prohibited from basing a determination regarding responsibility on the absence of a party. Accordingly, to the extent complainants believed participation would likely cause harm, they could opt not to participate in the cross-examination, while still receiving supportive measures designed to restore or preserve PO 00000 Frm 00527 Fmt 4701 Sfmt 4700 30551 the complainant’s equal educational access. Changes: We have revised the definition of the term ‘‘formal complaint’’ in § 106.30. The definition of ‘‘formal complaint’’ in § 106.30 is revised to mean a document filed by a complainant, or signed by the Title IX Coordinator, requesting that the recipient investigate sexual harassment allegations; a formal complaint may be filed in person, by mail, or email; and the formal complaint may be a document or electronic submission with the complainant’s physical or digital signature or otherwise indicating that the complainant is the person filing the formal complaint. Comments: One commenter stated that the Department failed to use the term ‘‘transgender’’ in the proposed regulations. The commenter cautioned that this overt exclusion may make transgender students less likely to report on campus sexual harassment or sexual assault to the designated Title IX Coordinator. The commenter also cited a recent survey of transgender people, showing that 17 percent of K–12 students and 16 percent of college or vocational school students who were ‘‘out’’ or perceived as transgender reported leaving school because of mistreatment.1930 Discussion: We appreciate commenters’ concerns for the diverse range of students covered under Title IX. We agree that the term ‘‘transgender’’ did not appear in the NPRM. Such an omission does not, in any way, indicate that a student’s gender identity would cause them not to be protected from sex discrimination under Title IX. As more fully explained in the ‘‘Gender-based harassment’’ subsection of the ‘‘Sexual Harassment’’ subsection of the ‘‘Section 106.30 Definitions’’ section of this preamble, these final regulations focus on prohibited conduct, and anyone may experience sexual harassment as defined in § 106.30. Changes: None. Comments: One commenter asserted that one of the commenter’s non-profit’s clients has investigated over 650 cases since data tracking systems were developed in 2014 in response to a resolution agreement with OCR. Since that time, this K–12 district, which enrolls about 35,000 students in over 50 schools, has investigated and remediated an average of 33 complaints and 89 reports each year for the past 1930 See National Center for Transgender Equality, The Report of the 2015 U.S. Transgender Survey (Dec. 2016), https://www.transequality.org/sites/ default/files/docs/USTS-Full-Report-FINAL.PDF. E:\FR\FM\19MYR2.SGM 19MYR2 30552 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations four years. In the 2015–2016 school year, the district investigated and remediated 73 complaints and 126 reports of sexual and/or gender-based harassment. The same commenter asserted that recipients generally have poor or underdeveloped data management systems that result in the significant underreporting of the number of cases to Civil Rights Data Collection (CRDC) and other stakeholders. The commenter recommended that the Department increase the baseline estimate, as the commenter’s data shows recipients investigate, on average, 3.5 cases per week. This commenter asserted that the Centers for Disease Control and Prevention’s (CDC’s) Youth Risk Behavior Survey (YRBS) provides important context across a few key indicators.1931 Based on the most recently available national data from 2017, the commenter asserted that the CDC estimates that over 11 percent of female students and 3.5 percent of male students reported being physically forced to have sexual intercourse.1932 Across the recipients and States that participate in the YRBS, the indicators ranged from 7.5 percent to 15.3 percent for female students and from 2.5 percent to 16.1 percent for male students.1933 While not a direct indicator of the number of incidents of forced sexual intercourse that result in a Title IX complaint or report, the commenter reported this data to show that the number of potential Title IX sexual assault cases are likely significantly higher than the current baseline estimate of 3.5 cases annually.1934 This commenter also cited the California Department of Health Services and California Department of Education’s California Healthy Kids Survey (CHKS), which also provides contextual indicators. Statewide, about eight percent of students reported being bullied or harassed at school due to their gender at least once, and over four percent reported two or more instances of gender-based bullying or harassment.1935 Applying the four percent rate to the entire population of public school K–12 students in California, which was 6,220,413 in the 2017–18 school year, the commenter 1931 Commenter cited: Centers for Disease Control & Prevention, Division of Adolescent & School Health, Youth Risk Behavior Survey Data Summary and Trends Report: 2007–2017 (2018). 1932 Id. 1933 Id. 1934 Id. 1935 Commenter cited: Austin, G., Polik, et al., School climate, substance use, and student wellbeing in California, 2015–17 (WestEd 2018). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 argued that there are likely over 240,800 students who have been repeatedly bullied or harassed due to their gender in California. The commenter stated that the prevalence of gender-based harassment also ranges significantly by the race/ethnicity of survey respondents, from 6.1 percent among Asian students to 12.8 percent among Native Hawaiian/Pacific Islander students. Discussion: We recognize that, as with any diverse group of entities, there will be some level of variation. There will undoubtedly be LEAs that conduct more Title IX related investigations than average. In developing our assumptions, we did not intend to imply that the specific number we employed would apply to every recipient in every instance. Rather, we attempted to determine a reasonable average, based on the data available to us, of the effect across 15,505 LEAs nationwide. Further, while anecdotal evidence or data from the YRBS may be informative, it does not necessarily improve upon the systematic data reported by LEAs through the CRDC. Based on the commenter’s statement, the LEA being described is one of the largest LEAs in the country, which would necessarily place them as an outlier and not particularly helpful to inform our analysis. YRBS data do not represent all LEAs, and we have reason to believe that patterns in participation in YRBS may indicate problems with its external validity—that is, LEAs which participate in YRBS do not necessarily look the same as LEAs that do not participate and, therefore, the YRBS data may skew in important ways. Additionally, the prevalence of incidents of sexual harassment does not necessarily indicate the number of investigations that recipients perform. The YRBS data represents student selfreports on a confidential questionnaire, and it is very likely that a high number of the incidents that students may confidentially report as part of the study would never have been reported to a responsible employee of the recipient under the Department’s 2001 Revised Guidance on Sexual Harassment and 2017 Q&A, which represents the baseline against which the Department promulgates these final regulations. If a responsible employee did not know or reasonably should not have known about the alleged sexual harassment, then the recipient would not have investigated the alleged sexual harassment under the 2001 Revised Guidance and 2017 Q&A. Therefore, the data from YRBS does not clearly or predictably correlate with the number of PO 00000 Frm 00528 Fmt 4701 Sfmt 4700 investigations conducted by LEAs. Rather, a data collection reported by LEAs such as the CRDC is much more likely to capture the alleged incidents that recipients are required to investigate. Accordingly, the CRDC remains a better source to inform the baseline assumptions for these final regulations. Changes: None. Comments: One commenter asserted that the RIA’s cost savings estimates ignore the obligations the Clery Act imposes on schools to respond appropriately to complaints involving stalking, dating violence, domestic violence, and sexual assault. The commenter stated that, at the same time, recipients also remain obligated by Title IX to respond appropriately to general sex discrimination claims. The commenter stated that the NPRM’s purported cost savings are premised on the proposed rules’ more narrow definition of sexual harassment and sexual assault, as well as the mandate that institutions dismiss cases without any investigation if the complaint fails to state an actionable claim. One commenter asserted that the proposed regulations introduce potential for confusion as employees and administrative staff try to sort through which process to use in different circumstances. For example, if a student accused the student’s spouse of both sexual assault and domestic violence not amounting to sexual harassment, the commenter requested clarification as to whether the institution would be compelled to bifurcate the investigation into one that complies with the Department’s proposed formal complaint process and one that does not. Discussion: We appreciate that the definition of sexual harassment in the proposed rules may have generated some confusion, particularly with regard to its omission of particular incidents otherwise covered under the Clery Act. Therefore, we have revised the definition of ‘‘sexual harassment’’ to include sexual assault, dating violence, domestic violence, and stalking as defined in the Clery Act and VAWA, respectively, and have updated our estimates of the number of investigations to encompass the broader array of incidents that constitute sexual harassment under the final regulations. To do so, we used Clery Act data to identify a multiplier that could be used on our initial estimate to account for the new definition. Using 2017 Clery Act data, the Department found that there were approximately 1.416 reported incidents of dating violence, domestic violence, or stalking reported for every E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations incident of sexual assault. We multiplied our estimated number of investigations per year in the NPRM by 2.416 to arrive at a new baseline of 5.70 investigations per institution of higher education per year. Changes: We have revised the definition of ‘‘sexual harassment’’ under § 106.30 and revised our estimate of the number of investigations occurring annually. Comments: Many commenters asserted that the Clery Act and Title IX’s general prohibition against sex discrimination will require schools to continue to investigate complaints involving stalking, dating violence, domestic violence, and sexual assault. Discussion: We recognize that the distinction between incidents covered under the Clery Act and these final regulations may have generated some confusion. We have therefore amended the definition of ‘‘sexual harassment’’ to include sexual assault, dating violence, domestic violence, and stalking, as defined by the Clery Act and VAWA, respectively. A recipient’s obligations, however, remain different under the Clery Act and Title IX. Under these final regulations, implementing Title IX, a recipient must conduct an investigation, which is part of the grievance process in § 106.45, after a formal complaint is filed by a complainant or signed by the Title IX Coordinator. A recipient’s obligations under the Clery Act may be different, and the Department is not issuing regulations to implement the Clery Act through this notice-andcomment rulemaking. Changes: We have amended the definition of ‘‘sexual harassment’’ in § 106.30 to include sexual assault, dating violence, domestic violence, and stalking, as defined by the Clery Act and VAWA, respectively. Comments: One commenter asserted that the Department significantly inflated the current number of Title IX investigations in order to inflate the ‘‘cost savings’’ of reducing these investigations. Another commenter stated that, to estimate the number of Title IX investigations at institutions of higher education, the Department relied on a 2014 Senate report that allowed institutions of higher education to report whether they had conducted ‘‘0,’’ ‘‘1,’’ ‘‘2–5,’’ ‘‘6–10,’’ or ‘‘>10’’ investigations of sexual violence in the previous five years.1936 The commenter argued that the Department, without justification, rounded up for each of these categories. If a school reported 1936 Claire McCaskill, S. Subcomm. on Financial Contracting Oversight—Majority Staff, Sexual Violence on Campus, 113th Cong. (2014). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 that it had conducted ‘‘2–5’’ or ‘‘>10’’ investigations, the Department inputted ‘‘5’’ and ‘‘50,’’ respectively, into its model, far higher than the medians of 3.5 and 30 investigations for those two categories. Elsewhere, the Department inexplicably assumed that there are twice as many ‘‘sexual harassment investigations’’ as there are ‘‘sexual misconduct investigations,’’ without defining what these terms mean. Subsequently, the commenter argued that the ‘‘estimate’’ that each institution of higher education conducts 2.36 investigations per year is highly inflated. Discussion: Regarding the Department’s treatment and coding of the survey data available from the Senate subcommittee report, our analysis in the NPRM went into great detail regarding our rationales.1937 In addition, we provided the public with information regarding the sensitivity of our analyses to these decisions.1938 While we understand that some commenters may have thought that our estimated number of Title IX investigations was inflated, we note that many others thought we underestimated the current number. In either case, our assumptions were made using the best data available and were not made in the hopes of reaching a particular conclusion with regards to the likely effects of the proposed rules. Further, our categorization and description of terms were intended to align with the definitions used in the proposed regulations. We note that ‘‘sexual assault’’ is a subpart of the definition of ‘‘sexual harassment,’’ and we were attempting to distinguish between the two. As a result of revisions to the proposed regulations, the Department has revised its analysis and concluded that these final regulations impose net costs. Changes: None. Comments: Several commenters at small universities stated that the proposed regulations incorrectly assume that the proposed regulations will produce a decrease in costs due to a decrease in the number of formal investigations schools must perform. Although the proposed regulations and final regulations would not require schools to investigate allegations of sexual harassment that occurred outside of a recipient’s education program or activity or outside the United States, the commenters’ student conduct codes would compel them to continue to investigate such incidents, even if 1937 See 1938 See PO 00000 83 FR 61485. 83 FR 61485 fn. 18, 61489. Frm 00529 Fmt 4701 Sfmt 4700 30553 outside the purview of Title IX, so the proposed regulations and these final regulations would result in a net increase of duties and tasks for those schools that wish to investigate allegations of sexual harassment that occurred outside the recipient’s education program or activity or outside the United States. Discussion: We appreciate that, for a variety of reasons, some subset of postsecondary institutions and elementary and secondary schools may not experience any reduction in the number of investigations conducted annually. These recipients were included in analytical group 3 as discussed in the NPRM.1939 Given that such effects were already accounted for in our initial analysis, we do not believe a change is necessary. The Department has made revisions to its analysis based on the revisions to the proposed regulations. For example, the Department takes into account incidents that may occur in any building owned or controlled by a student organization that is officially recognized by a postsecondary institution as a result of changes to § 106.44(a), describing a recipient’s education program or activity. The Department used Clery Act data that captures reports from geographic areas such as noncampus property to err on the side of caution because noncampus property as defined in 34 CFR 668.46(a) includes more than just buildings owned or controlled by a student organization that is officially recognized by a postsecondary institution. In the NPRM, the Department assumed that a proportion of current investigations, equivalent to the proportion of total incidents reported under the Clery Act in the noncampus or public property geographies, would no longer require investigation under the proposed rules because of the scope of education program or activity under the proposed rules. The change in the final regulations would require some, but not all, incidents reported on noncampus property, as defined in 34 CFR 668.46(a), to be investigated by the recipient. While ideally the Department would be able to subdivide the incidents reported under the noncampus geography to isolate those occurring in buildings owned or controlled by student organizations that are officially recognized by the institution, we do not have data with that granularity of detail. Rather than arbitrarily identify a percentage of incidents occurring in such locations, the Department is now assuming that 1939 See E:\FR\FM\19MYR2.SGM 83 FR 61486. 19MYR2 30554 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations the reduction in investigations due to their occurring outside of the education program or activity of a recipient is equivalent to the proportion of total incidents reported under the Clery Act that occurred on public property. This approach effectively assumes that recipients will continue to investigate formal complaints of all incidents occurring on noncampus property, as defined in 34 CFR 668.46(a), which includes but is not limited to offcampus buildings owned or controlled by a student organization that is officially recognized by a postsecondary institution. Changes: The Department revised its analysis to include incidents that may occur in buildings owned or controlled by a student organization that is officially recognized by a postsecondary institution The Department has revised its estimate of the reduction in the number of investigations occurring under the final regulations. The Department now assumes that the number of investigations occurring each year will decrease from 5.70 to 3.82. Comments: Several commenters noted that the NPRM referenced ‘‘administrative assistants’’ several times as additional personnel to whom Title IX Coordinators can delegate tasks, but the commenters asserted that most Title IX Coordinators, especially those at small institutions, do not have administrative assistants and a majority handle all of their administrative work on their own. Discussion: We appreciate that many Title IX Coordinators may not have dedicated administrative assistants to accomplish tasks. However, our intention was to identify work that was likely to be passed off to another employee of the organization, such as an administrative assistant or office administrator, whose typical work activities are more likely to include administrative tasks, such as reserving rooms, coordinating meeting times, recordkeeping, and sending and tracking correspondence. To the extent that such staff are not utilized, recipients may realize costs that are either higher or lower than those described herein. If Title IX Coordinators accomplish the work more efficiently than would be possible with the aid of an administrative assistant, recipients may experience lower costs. To the extent that it will take Title IX Coordinators the same amount of time to accomplish tasks as it would take an administrative assistant to do the same task, recipients are likely to see higher costs as a result of the higher wage rates assumed for Title IX Coordinators. We continue to believe that many of the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 tasks associated with coordinating the grievance process—including scheduling facilities, staff, and resources and ensuring all appropriate notices are provided to all parties in a timely manner—would most appropriately fall to an employee in a position such as an administrative assistant, and we continue to include these positions in our analysis. Changes: None. Comments: Multiple commenters asserted that the RIA’s estimate for hourly costs of an attorney is too low. One commenter asserted that in the commenter’s State, the average hourly rate for civil attorneys is between $250 and $325. Based on the Department’s own estimate that a case would require 40 hours of attorney time for each party, and assuming that the parties qualified for the commenter’s State bar’s modest means program (which charges no more than $60, $80, or $100 per hour), parties would still be spending between $2,400 and $4,000. Another commenter stated that the Department provides no basis for this assumed rate for an attorney, which is significantly lower than the average hourly rate of attorneys in the commenter’s area.1940 Some commenters from small and rural colleges asserted that they lack inhouse legal counsel and must hire outside counsel to assist when legal questions arise. Numerous commenters from several small universities stated that, while a larger institution might be able to employ a full-time attorney for the $90.71 hourly rate the proposed rules assumed, small institutions that retain attorneys on an ad hoc basis for a limited number of cases will likely pay a much higher rate. For example, one commenter’s institution typically pays attorneys between $250 and $400 per hour, meaning that this institution’s costs are likely to significantly exceed the Department’s estimates. Another commenter at a small college asserted that the college typically retains attorneys for an amount averaging somewhere between $360 per hour and $530 per hour. Additional commenters from small institutions reported attorneys costing somewhere between $200 and $600 an hour. One commenter stated that, to calculate the cost of the 1940 See, e.g., Jay Reeves, Top 10 Hourly Rates by City, Lawyers Mutual Byte of Prevention Blog (Apr. 6, 2018), https://www.lawyersmutualnc.com/blog/ top-10-lawyer-hourly-rates-by-city (listing lawyer rates by practice area ranging from $86/hour to $340/hour); Hugh A. Simons, Read This Before You Set Your 2018 Billing Rates, Law Journal Newsletters (Nov. 2017), https://www.lawjournal newsletters.com/2017/11/01/read-this-before-youset-your-2018-billing-rates/ (indicating first year associates cost their employers approximately $111/ hour). PO 00000 Frm 00530 Fmt 4701 Sfmt 4700 proposed regulations, the average school attorney’s rate in the commenter’s State is about $300, which is much higher than the Department’s estimate. Discussion: We appreciate commenters’ concerns and recognize that many attorneys may charge hourly rates for services in excess of those used in our estimates. However, as discussed on page 61486 of the NPRM, we are relying on data from the Bureau of Labor Statistics (BLS) and utilized the median hourly wage rate for attorneys in the education sector. It is our general practice to use wage rates available from BLS for these types of estimates. Changes: None. Comments: One commenter, speaking for a community college that serves as the largest institution of higher education in the commenter’s State, asserted that the Department’s citation of Angela F. Amar et al., Administrators’ perceptions of college campus protocols, response, and student prevention efforts for sexual assault, 29 Violence & Victims 579 (2014), is problematic because it assumes that hearing boards are commonplace at institutions of higher education. The commenter’s review of the above article showed that 51 percent of respondents to the research study were from four-year private colleges and 38 percent were from four-year public colleges. The commenter asserted that the underlying assumptions cited by the Department on how colleges respond to conduct cases is skewed toward fouryear, primarily residential institutions and did not take into account the context in which many community colleges operate. The commenter asserted that the proposed regulations will require schools to create a hearing system for a small subset of cases, which will impose administrative and financial burdens as boards must be created from scratch, trained on the legal nuances of sexual harassment and discrimination, and would respond to a small portion of conduct cases. Discussion: We appreciate the commenter’s input and did not intend, by citation to a particular source, to indicate that the proposed regulations or our analysis were only pertinent to, or only considered, four-year institutions. The purpose of that particular citation was to help inform our understanding of the status quo. Our analysis assumed that 60 percent of IHEs use the Title IX Coordinator as the decision-maker in their current enforcement structure. We believe that assumption readily comports with the commenter’s concern about community colleges that may not have formal hearing boards or independent decision-makers currently E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations in place. We recognize that at least some subset of institutions will have to create new processes to comply with the final regulations, and our initial estimates took this into account. Specifically, we note that our estimates include development or revision of grievance procedures and include training for Title IX Coordinators, investigators, decision-makers, or any person designated by a recipient to facilitate an informal resolution process. We believe that these estimates capture the concerns raised by the commenter. Changes: None. Comments: Several commenters also disputed the RIA’s estimate that an IHE will perform 2.36 investigations each year. At the University of Iowa, according to the Office of Sexual Misconduct Response Coordinator 2017 annual report, 444 reports were taken and 58 investigations were completed in one year.1941 One commenter asked how the RIA sets the estimated average at 2.36 investigations of sexual harassment for each IHE per year, when statistics show sexual harassment and assault occurs much more often. One commenter reported that, according to the National Sexual Violence Resource Center, one in five women and one in 16 men are sexually assaulted while in college and more than 90 percent of sexual assault victims on college campuses do not report the assault.1942 Another commenter disagreed with the Department’s calculation of 2.36 investigations of sexual harassment per year, as most four-year institutions have well over 2.36 investigations each year. Discussion: As noted elsewhere, we are very aware that a subset of the nation’s largest IHEs will annually conduct more investigations than the average IHE. Such an outcome is assumed in any distribution. We clearly described in the NPRM our process for arriving at the estimated number of investigations occurring per year.1943 However, we have, for other reasons described elsewhere in these final regulations, revised our estimated number of investigations occurring per year. Changes: None. 1941 See University of Iowa Office of the Sexual Misconduct Response Coordinator, ‘‘Report Resolution and Outcomes,’’ https:// osmrc.uiowa.edu/about-us/2017-annual-report/ osmrc-case-and-outcome-data/report-resolutionand-outcomes. 1942 National Sexual Violence Resource Center, Info and Stats for Journalists: Statistics About Sexual Violence 2 (2015), https://www.nsvrc.org/ sites/default/files/publications_nsvrc_factsheet_ media-packet_statistics-about-sexual-violence_ 0.pdf. 1943 83 FR 61485–88. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Comments: One commenter asserted that, while the Department assumes an approximate reduction of 0.18 of the number of IHE investigations by disregarding off-campus sexual harassment, the Department fails to allocate time for the investigation that would need to occur for the jurisdictional analysis to establish where the incident occurs. Discussion: As explained earlier in the RIA, these final regulations do not categorically exclude allegations of sexual harassment that occur off campus. Recipients must respond to any allegations of sexual harassment in their education program or activity, whether the alleged sexual harassment occurs on campus or off campus.1944 We agree that, in some instances, recipients may need to expend resources to determine whether a particular incident occurred outside of the recipient’s education program or activity. We have added time for Title IX Coordinators and investigators to engage in such an analysis in approximately 50 percent of incidents. Changes: We have added a new cost category designed to capture the efforts of recipients to determine whether a particular incident occurred in a recipient’s education program or activity. Data Sources Comments: Several commenters argued that Clery Act data inaccurately reflects the number of investigations because it only tracks on-campus conduct, and, as a result, should not be used to estimate the general rate of investigations per reported sexual offense at four-year IHEs. Commenters pointed out that many cases that lead to investigations involve off-campus behavior. Numerous commenters also noted that Clery data fails to include instances of sexual harassment and discrimination. One commenter asserted that, while Clery Act data is an important resource, any user must seriously consider the limitations of that data source. The commenter stated that the American Association of University Women (AAUW) has investigated underreporting related to the Clery Act and concluded that reported campus safety and crime statistics reflect the fact that ‘‘some schools have built the necessary systems to . . . disclose accurate statistics—and others have 1944 See, e.g., the discussion in ‘‘Section 106.44(a) ‘education program or activity’ ’’ subsection in ‘‘Section 106.44 Recipient’s Response to Sexual Harassment Generally’’ section. PO 00000 Frm 00531 Fmt 4701 Sfmt 4700 30555 not.’’ 1945 The commenter cited other studies of Clery Act data and educational institutions that have identified similar concerns about underreporting, overreporting, and misreporting of data around sexual assault.1946 On the LEA level, commenters reported that the Department is even less clear about its calculations, simply stating that it ‘‘assumes that only 50 percent of the incidents reported in the CRDC would result in a formal complaint, for a reduction in the number of investigations of 1.62 per year.’’ The commenter asserted that the basis of the Department’s assumption regarding formal complaints is not provided. The commenter argued that, while the CRDC provides another important source of data for the public, it is also limited by the quality of data it imports.1947 Other commenters stated that inaccurate data is particularly a problem with the sexual harassment reports, on which the proposed regulations so heavily rely. Commenters reported that the AAUW has analyzed the CRDC sexual harassment data and determined that many school districts were simply reporting no incidents rather than collecting and reporting the true numbers of cases of sexual harassment that were reported or resulted in discipline. These commenters argued that to rely on such datasets to enact sweeping changes to Title IX law means that the projected costs are not being conducted in a rigorous or high-quality manner and are likely to be inaccurate.1948 1945 See, e.g., American Association of University Women, 89 Percent of Colleges Reported Zero Incidents of Rape in 2015 (May 10, 2017), https:// www.aauw.org/article/clery-act-data-analysis-2017/ ; American Association of University Women, 91 Percent of Colleges Reported Zero Incidents of Rape in 2014 (Nov. 23, 2015), https://www.aauw.org/ article/clery-act-data-analysis/. 1946 See, e.g., California State Auditor, Clery Act Requirements and Crime Reporting: Compliance Continues to Challenge California’s Colleges and Universities, Report 2017–032 (May 2018); National Academies of Sciences, Engineering, and Medicine, Innovations in Federal Statistics: Combining Data Sources While Protecting Privacy 44 (2017) (‘‘the data on sexual violence reported by many institutions in response to the [Clery] act’s requirements is of questionable quality’’). 1947 See, e.g., Evie Blad, How Bad Data from One District Skewed National Rankings on Chronic Absenteeism, Education Week (Jan. 9, 2019), https:// blogs.edweek.org/edweek/rulesforengagement/ 2019/01/chronic_absenteeism.html. 1948 See, e.g., American Association of University Women, Three-Fourths of Schools Report Zero Incidents of Sexual Harassment in Grades 7–12 (Oct. 24, 2017), https://www.aauw.org/article/ schools-report-zero-incidents-of-sexual-harassment/ ; Lisa Maatz, American Association of University Women, Why Are So Many Schools Not Reporting Sexual Harassment and Bullying Allegations?, The Huffington Post (October 24, 2016), https:// E:\FR\FM\19MYR2.SGM Continued 19MYR2 30556 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations One commenter asserted that the Department must seek to adopt the same attitude and standard as the Equal Employment Opportunity Commission Task Force on the study of harassment in the workplace, which issued a report in 2016 that explicitly acknowledged the dearth of data as it related to workplace harassment and did not accept data at face value, instead acknowledging that not all claims will be represented in available datasets given rampant underreporting and systemic data collection challenges. The commenter requested that the Department halts its rulemaking while it revisits its cost calculations, reviews the accuracy of the Clery Act and CRDC data on which its calculations rely, and makes its underlying calculations available to the public. One commenter contended that the Department relies on unreliable estimates of the number of reported sexual assaults to gauge the number of sexual assault investigations per year. The commenter admits that the Department is limited by a dearth of reliable evidence but asserts that the Department’s projections likely underestimate the average number of investigations universities perform each year. The same commenter asserted that, since many of the other costs are computed based on this average number of investigations, a gross underestimate of the number of investigations would have a large effect on the overall costsavings analysis, suggesting lower costs of implementation than is true. Discussion: As an initial matter, it is important to note that the Department clearly identified data limitations in the NPRM and requested that members of the public identify any comprehensive data sources which might improve our estimates. We also should note that Clery Act data was not used as the primary basis for our assessment of the number of investigations currently being conducted per year. Rather, the data was used to help provide context to the calculations derived from the Senate subcommittee report.1949 Regarding the CRDC data, we equally recognized and acknowledged data quality issues, but in the absence of higher quality comprehensive data, we opted to rely upon the information we had. We also explained our rationale for how we coded the survey data at great length in www.huffingtonpost.com/lisa-maatz/why-are-somany-schoolsn_b_12626620.html; American Association of University Women, Two-Thirds of Public Schools Reported Zero Incidents of Sexual Harassment in 2013–14 (July 12, 2016), https:// www.aauw.org/article/schools-report-zero-sexualharassment/. 1949 See 83 FR 61485. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the NPRM and provided alternative estimates in the Sensitivity Analysis section of the NPRM to more clearly highlight for the public the impact of these assumptions on the results of our analysis. While we recognize that outliers exist in the universe of recipients, our assumptions were intended to capture the overall average. We have made other changes to our assumptions as described elsewhere to attempt to address some of the commenters’ concerns regarding potential underestimation of implementation costs. Indeed, as a result of revisions to the proposed regulations, the Department has determined that these final regulations are economically significant and impose net costs. Changes: None. Comments: Another commenter asked why the Department failed to consult the large and robust body of research produced through the academic, peerreview research process that is the hallmark of the research enterprise. Discussion: The Department consulted relevant research studies in developing cost estimates as evidenced by the citations included in the NPRM.1950 Changes: None. Other Comments: One commenter contended that the proposed regulations would reduce the number of sexual harassment and sexual assault investigations and, thus, would enable more sexual assaulters to pass background checks and become employed in Federal agencies. The commenter asserted that, pursuant to Executive Order 12866, to make a reliable estimate of the potential costs to Federal agencies, the Department would need to conduct a review of the U.S. Office of Personnel Management background investigations to determine how many allegations of incidences of sexual harassment and assault were discovered through contact with record 1950 E.g., Jacquelyn D. Wiersma-Mosley & James DiLoreto, The Role of Title IX Coordinators on College and University Campuses, 8 Behav. Sci. 4, 5–6 (2018), https://www.mdpi.com/2076-328X/8/4/ 38/htm (click on ‘‘Full-Text PDF’’) (page references herein are to this PDF version); Tara N. Richards, An updated review of institutions of higher education’s responses to sexual assault: Results from a nationally representative sample, 34 Journal of Interpersonal Violence 1, 11–12 (2016); Heather M. Karjane et al., Campus Sexual Assault: How America’s Institutions of Higher Education Respond 62–94, Final Report, NIJ Grant # 1999–WA–VX– 0008 (Education Development Center, Inc. 2002); Angela F. Amar et al., Administrators’ perceptions of college campus protocols, response, and student prevention efforts for sexual assault, 29 Violence & Victims 579 (2014). PO 00000 Frm 00532 Fmt 4701 Sfmt 4700 providers at IHEs and LEAs, and, of those, determine how many would not have been required to be investigated under the proposed regulations. The commenter argued that hiring individuals with a history of sexual assault would be dangerous for Federal workers as well as the public, and criminology literature shows that college-student rapists commonly repeat their offenses against more victims over time. Discussion: We decline to conduct the analysis suggested by the commenter. We are uncertain that such an analysis could be effectively and efficiently conducted. Even if it could, we are uncertain of its value in completing our analysis. It is unclear how the commenter would expect us to incorporate the results of this review into our estimates. Moreover, the definition of ‘‘sexual harassment’’ in § 106.30 of these final regulations includes sexual assault as defined in the Clery Act, and these final regulations require recipients to respond to allegations of sexual assault pursuant to § 106.44(a). Changes: None. Comments: One institution suggested that the Department consider creating a lighter set of procedural requirements to lessen the burden on small schools by allowing schools to apply less strict requirements, if the school has a student body with fewer than 3,000 students and formally investigates fewer than ten Title IX complaints in a year. Discussion: We appreciate the suggestion but decline to set different standards for small entities. We believe that students at all schools are entitled to reliable determinations regarding responsibility under Title IX and that such determinations should be made in a manner that is consistent with constitutional due process and fundamental fairness. We do not believe that requiring a fair, reliable grievance process for students at small entities creates an unnecessary burden for small schools. Changes: None. Comments: One commenter asserted that the proposed regulations should not be exempt from Executive Order 13771, as the cost savings are inaccurate and exaggerated. Therefore, the commenter suggested that the Department should identify two deregulatory actions for each additional regulation added herein, keeping in mind that a review of the plain language of the requirements reveals nearly 50 new regulatory obligations. Discussion: As a result of revisions to the proposed regulations and other changes, the Department has revised its E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations analysis and has determined that these final regulations are economically significant under Executive Order 12866 and impose net costs under Executive Order 13771. In accordance with Executive Order 13771, the Department will identify two deregulatory actions. Changes: The Department has revised its analysis and has determined that these final regulations are economically significant and impose net costs. Comments: One commenter asserted that the RIA failed to clarify that each of the LEA recipient organizations covered by Title IX include many individual public schools and that each school should have a Title IX Coordinator to meet the demands of the proposed regulations. The commenter expressed concern that hiring a Title IX Coordinator for each school in an LEA would be cost prohibitive. One commenter stated that LEAs should also have Title IX Coordinators, and they should have responsibility for helping to train and assist school-level Title IX Coordinators. The commenter asserted the fact that the RIA provided no numbers of schools in LEAs is confusing. Discussion: We agree that hiring a new staff member to serve as a Title IX Coordinator for each school in the country would generate extremely large expenses above and beyond those estimated in the proposed or final regulations. The final regulations, however, do not require such action. The final regulations do not require that a Title IX Coordinator be a newly hired individual, only that a recipient designate and authorize at least one employee to serve as the Title IX Coordinator.1951 We do not believe it is likely that recipients will opt to comply with this requirement in the final regulations by hiring an additional staff member whose sole role is to serve as the Title IX Coordinator, given that 34 CFR 106.8 already requires the designation of a responsible employee. Additionally, individual elementary and secondary schools are generally not recipients as defined in the final regulations pursuant to § 106.30; they are operational units of the recipient entity, which is the local education agency. These final regulations do not require each operating component of each recipient to independently designate and authorize a Title IX Coordinator. Instead, the LEA is the recipient and would therefore be responsible for designating and authorizing an employee to serve as the Title IX Coordinator. Changes: None. 1951 Section 106.8(a). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Comments: Several commenters asserted that the RIA’s estimate that the Title IX Coordinator can review and revise their regulations, in an average time of eight hours, is not tenable because changes to policy and procedures at institutions of higher education require broad consultation and participation of stakeholders across the institution, including but not limited to students, faculty, student affairs staff, academic affairs staff, human resources professionals, senior staff members, and even trustees. Multiple commenters stated that policy changes demand significant time and prescribed processes for approval, adoption, and ratification at the institutional and system level, resulting in the need for substantial human and financial resources to make those changes. One commenter estimated that, at the commenter’s institution, changing their policies and procedures would take about two to six months, because changing a policy means involving a board of trustees, the president, a direct supervisor, faculty governance, and receiving student feedback. Discussion: We recognize that the process for drafting and approving new policies and procedures can vary widely across recipients. We recognize that the estimate of two to six months provided by the commenter encompasses the overall process and does not represent two to six months of full-time, active work. Therefore, we have revised our estimates of the average amount of time needed by recipients to revise their grievance procedures and have added additional time for administrators to review and approve the final policies and procedures. At the LEA level, we now assume this process will take six hours from the Title IX Coordinator and 24 hours from an attorney. We also assume two hours from an administrator to review and approve the policies. At the IHE level, we assume this process will take 12 hours from the Title IX Coordinator and 48 hours from an attorney. We have also added four hours for an administrator to review and approve the policies. For other entities, we assume the process will take four hours for a Title IX Coordinator, 16 hours from an attorney, and two hours from an administrator. Changes: We have revised our estimates of the amount of time necessary for recipients to revise their policies and grievance procedures and added time for review and approval of the policies and procedures by administrators. Comments: Several commenters asserted that the proposed regulations represent a dramatic increase in the cost PO 00000 Frm 00533 Fmt 4701 Sfmt 4700 30557 of administering Title IX, since most Title IX Coordinators at small institutions are smaller roles, often comprising of one of several ‘‘hats’’ a single administrator will wear. One commenter asserted that the proposed regulations would require schools to increase the amount of time spent on each investigation, despite a reduction in formal investigations. Several commenters asserted that under the proposed regulations, many small institutions would be required to employ a dedicated Title IX Coordinator, a separate investigator, and a separate decision-maker, all of whom will need mandatory Title IX training. Additionally, commenters stated that the school will need to provide a mediator to facilitate the informal, mediated resolution, and hearing advisors to both parties if they do not provide one for themselves. According to comments, under this rubric, small institutions would be required to retain up to six individuals to handle a small number of formal investigations. One commenter stated that, according to a 2018 study, ‘‘most Title IX Coordinators were in part-time positions with less than three years of experience.’’ 1952 Discussion: We have considered the overall impact of these final regulations and, as discussed herein, we believe that the average recipient will see a net decrease in burden under these final regulations and that any increase in time spent by recipients on any individual investigation will be more than offset by the fewer number of investigations. Particularly for smaller entities, we do not believe that the workload for a Title IX Coordinator would necessitate the hiring of a dedicated staff member. While recipients may choose to hire a dedicated staff member as the Title IX Coordinator, we do not believe that in most instances, such an approach would be warranted solely as a result of these final regulations. For example, although the investigator may not be the same person as the decision-maker under § 106.45(b)(7)(i), these final regulations do not preclude the Title IX Coordinator from also serving as the recipient’s investigator as long as the Title IX Coordinator does not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent under § 106.45(b)(1)(iii). The same holds true for the other positions 1952 Jacquelyn D. Wiersma-Mosley & James DiLoreto, The Role of Title IX Coordinators on College and University Campuses, 8 Behav. Sci. 4 (2018), https://www.mdpi.com/2076-328X/8/4/38/ htm (click on ‘‘Full-Text PDF’’) (page references herein are to this PDF version). E:\FR\FM\19MYR2.SGM 19MYR2 30558 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations described by the commenters. These final regulations do not require a recipient to provide an informal resolution process pursuant to § 106.45(b)(9) and do not preclude the Title IX Coordinator from serving as the person designated by a recipient to facilitate an informal resolution process. The Department acknowledges that many recipients will designate a person other than the Title IX Coordinator to facilitate an informal resolution process and that § 106.45(b)(1)(iii) requires that a recipient to train any person designated by the recipient to facilitate an informal resolution process. Accordingly, the Department adjusts its cost estimates to include the training of the person designated by the recipient to facilitate an informal resolution process and other costs associated with an informal resolution process. Changes: The Department adjusts its cost estimates to include the training of the person designated by the recipient to facilitate an informal resolution process and other costs associated with an informal resolution process. Section 106.44(a) Supportive Measures Comments: Multiple commenters asserted that coordinating supportive measures for complainants, while also accommodating the respondent due to the presumption of innocence, will be time-consuming and costly for schools. One commenter asserted that, if the respondent is found responsible and suspended or expelled, the conflict is removed, which removes the need, and cost, for staff to coordinate additional supportive measures for complainants. The commenter expressed concern that the proposed regulations would require schools to divert additional resources towards supportive measures, including no-contact orders, scheduling checks to ensure students will not cross paths, working with the Registrar’s Office and the complainant to switch classes, and making other academic accommodations for multiple semesters, for perhaps multiple years. One commenter reported that providing supportive measures to a student takes one to two hours per semester for each student, for an active caseload of 30 to 40 students per year. At most, the staff member spends two full working weeks at the beginning of each semester coordinating supportive measures by making calls to set up accommodations and checking for potential conflicts. The commenter projects the tangible financial costs of this work on supportive measures to be about six weeks of the commenter’s yearly salary. Numerous commenters noted that the RIA failed to estimate the costs of providing additional supportive measures, despite the NPRM acknowledging that the proposed rules encouraged recipients to direct complainants towards services that qualify as supportive measures. These commenters also asserted that increasing campus escort services and other security services will require additional staff hires and working hours. One commenter argued that the NPRM’s assumption that counseling services are already largely offered for free to students is not accurate, as many students are still responsible for co-pays for mental health services and not all students have health insurance. The commenter cited a news article which reported that, as of 2016, 8.7 percent of all students or 1.7 million individuals remained uninsured. Discussion: We disagree with commenters that we failed to account for supportive measures in the NPRM. We discussed at great length the complexities of accurately capturing the full range of costs associated with the proposed requirement, solicited specific feedback from the general public, and estimated time burdens for several staff.1953 We appreciate the commenter who asserted that the provision of supportive measures takes approximately one to two hours per semester per student given that our initial estimates assumed three hours per year per student. Further, we appreciate that the commenter provided a potential upper bound for our estimates—two working days per semester for a caseload of 30 students or approximately two hours per student per year at the beginning of the semester. We recognize that Title IX Coordinators, coordinating the provision of supportive measures for larger numbers of students, will have greater time burdens than those serving fewer students and, therefore, our estimates are intended to capture the average burden across all students and recipients. We are unclear on the specific concern raised by the commenter regarding the provision of supportive measures after a respondent is removed from campus, but we note that our assumptions regarding the provision of supportive measures is not related to the outcome of the grievance process. Regarding the costs of the supportive measures themselves, we note that we did not receive estimates from the public for us to consider. We note that a large number of supportive measures likely to be offered by recipients such as changing class assignments or allowing a complainant to have more time to complete an assignment or to take a test would have little to no cost for the recipient. Other supportive measures, which may be offered less frequently (for example, providing campus security escorts), would necessarily have much higher average costs. Without information from the public on an appropriate cost, we have opted, in these final estimates, to include an average cost of $250 per provision of supportive measures to reflect the cost to recipients to provide the services. We recognize that, in many instances, this will represent an overestimate of the actual costs borne by recipients and that, in a smaller number of instances, it will represent an underestimate. To provide greater clarity to the public regarding the impact of this assumption on our final cost estimates, we calculated three alternative models, in addition to the mainline estimate, to assess the sensitivity of our analysis to this assumption. TABLE VI—SENSITIVITY ANALYSIS OF COSTS OF SUPPORTIVE MEASURES Estimated cost of supportive measures .................................................................... Estimated total cost of final regulations .................................................................... 1953 See $100 ($708,607) $250 $82,953,995 83 FR 61487. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 PO 00000 Frm 00534 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 $1000 $501,267,005 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Changes: The Department has included a cost of $250 for supportive measures. Section 106.45(b)(1)(iii) Title IX Coordinators, Investigators, and Decision-Makers Must Be Properly Trained Comments: Many commenters raised the issue that ending the single investigator model would result in burdensome compliance costs on schools. Commenters emphasized that the NPRM would require schools to hire and train multiple individuals to fill different roles, thus increasing compliance costs. Commenters argued that this would be especially burdensome for smaller community colleges and rural schools with fewer resources and available staff. The NPRM would potentially require recipients to hire and train six people, including a Title IX Coordinator, an investigator, a decision-maker, two party advisors, and an appeals decision-maker. Commenters noted that schools are not courts of law, and yet training costs would be significant under the NPRM, such as legal training for decisionmakers on conducting quasi-judicial proceedings, ruling on objections, and managing attorneys. Schools would have to meet these costs even if they rarely have Title IX complaints and investigations. Staff at many schools necessarily wear multiple hats and perform multiple functions, and conducting simultaneous Title IX investigations could be impossible under the proposed regulations. Further, commenters argued that it is already challenging for recipients to find adequate talent and hiring staff with sufficient expertise in these roles. These commenters asserted the increased litigation risk as a result of the proposed regulations would discourage people from serving in these roles. One commenter suggested the NPRM would likely require recipients to spend about $400,000 on salary to manage Title IX cases, which undermines the Department’s contention that the proposed regulations would save recipients money. One commenter asserted that the compliance burden is especially heavy given the uncertain future funding of IHEs and skepticism of higher education at the State level. Commenters argued that the Department should not impose regulations that require additional staffing and resources without providing the necessary funding, and many institutions may have no choice but to pass along these substantial costs to students. Discussion: We appreciate the commenters’ concerns and agree that VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 the practical effects of proposed regulations on regulated entities should be a primary concern when engaging in rulemaking. As explained throughout this preamble, we believe that the costs and burdens on regulated entities serve the important purpose of furthering Title IX’s non-discrimination mandate. We note that, while it is possible that recipients could respond to these final regulations by hiring additional staff, we believe commenters overstate both the likelihood and the magnitude of such a response. Generally, we believe that the actual regulatory requirements for Title IX Coordinators, investigators, advisors, and decision-makers are flexible and the change in the necessary time commitments at the average recipient entity are so negligible that it is highly unlikely that these final regulations would result in a critical need for more staffing at recipient entities. Recipients are already required to designate a responsible employee under 34 CFR 106.8(a), which is essentially the same person as the Title IX Coordinator in these final regulations, so it is unclear that these final regulations will necessitate hiring an additional staff member to fulfill a role already fulfilled by another employee. Regarding investigators, it is unclear why that role could not be fulfilled by an individual already conducting other investigations on behalf of the recipient, and as previously stated, these final regulations do not preclude the Title IX Coordinator from also serving as the recipient’s investigator. Although the commenters specifically noted hiring attorneys, we believe they are referring to the requirements, under § 106.45(b)(6)(i), relating to providing certain parties with advisors for the purposes of conducting cross-examination during live hearings. We note that § 106.45(b)(6)(i) does not require those advisors to be attorneys, nor does it require them to have any specialized legal training. Further, given that recipients are only required to provide advisors in the event that a party does not have an advisor of choice present at the live hearing, we think the number of instances in which such recipients would provide such advisors would be so minimal that institutions would be highly unlikely to hire two additional, highly paid staff to fulfill those roles. Instead, we think that most recipients have administrative and other staff who may serve as an assigned advisor to a party in those instances where a postsecondary institution is required to hold a live hearing and one or both parties appear at the live hearing without the party’s own advisor of PO 00000 Frm 00535 Fmt 4701 Sfmt 4700 30559 choice. Finally, with regard to decisionmakers, the requirements in the final regulations are flexible enough that it is unclear why an individual already serving in a decision-making capacity would be unable to fill such a role. We note that recipients may opt to provide additional training to Title IX Coordinators, investigators, decisionmakers, and any person designated by a recipient to facilitate an informal resolution process about their roles and how to execute them effectively. As such, we have revised our estimates related to the training of staff. Regarding the alternative estimate relating to the salary burden on recipients to comply with these final regulations, we disagree. It would be inappropriate to assume such a high burden would be undertaken by the average recipient given the relative cost and time commitments. We note that, based on wage rate data from BLS, hiring a full-time Title IX Coordinator, an investigator, and a decision-maker would cost, on average, less than $325,000 per year. Not including the burden reductions associated with fewer Title IX investigations under these final regulations, we estimate the hour burden across these three roles to be less than 400 hours per year on average, or about six percent of the three full-time equivalents (FTEs). The Department recognizes that all recipients face a degree of uncertainty in their future funding, and we believe that regulatory actions that reduce costs for recipients, such as these final regulations, provide much needed flexibility for recipients in responding to that uncertainty and help to minimize the financial burden passed onto students. Changes: We have increased the amount of time estimated for training of Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process from 4 hours to 8 hours and have added additional training in each subsequent year. Comments: Several commenters asserted the Department’s estimate that Title IX Coordinators, investigators, and decision-makers would need only 16 hours of training is unrealistic. Numerous commenters also noted that the RIA’s assumption that institutions will only be training one person for each role with respect to the Title IX Coordinator, investigator, and decisionmaker is unrealistic for large universities. Additionally, several commenters stated that the NPRM failed to account for the costs associated with retraining members of the campus community who are no longer E:\FR\FM\19MYR2.SGM 19MYR2 30560 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations mandatory reporters because they would not be ‘‘responsible employees’’ or employees who are required to respond to allegations of sexual harassment under the proposed regulations. Several commenters asserted that the RIA significantly underestimated the amount of time and resources small institutions would need to appropriately train Title IX Coordinators, investigators, and adjudicators. One commenter asserted that the Department projected these trainings as ‘‘one time’’ but neglected to consider the significant ongoing cost of training new staff members as a result of employment attrition and ensuring that all participants in the process have substantive ongoing training and preparation to ensure that their competency reflects the most up-to-date practices. Discussion: We appreciate that our estimates of training may have been too low. As a result, we have increased our estimates of the time associated with training staff to eight hours for Title IX Coordinators, investigators, decisionmakers, and any person who facilitates an informal resolution process. We have also added training for 50 percent of personnel each year to account for turnover in staff or training of additional staff. We do not believe it is reasonable to include retraining for all staff of all recipients to ensure that they are aware that they are not considered ‘‘responsible employees’’ or employees to whom notice of sexual harassment or allegations of sexual harassment conveys actual knowledge to the recipient under the final regulations. We believe that such a purpose could be just as easily achieved by a distribution of the recipient’s policies. Further, these final regulations charge an LEA with actual knowledge (and thus obligations to respond to sexual harassment) whenever any employee has notice of sexual harassment, so LEAs that already train nearly all their employees to be ‘‘responsible employees’’ likely will not alter that training under these final regulations, and for IHEs, these final regulations leave each institution flexibility to decide whether the institution desires all (or nearly all, or some subset) of its employees to be ‘‘mandatory reporters’’ who must report notice of sexual harassment to the Title IX Coordinator. Accordingly, not all IHEs will modify their current policies regarding which employees are considered ‘‘responsible employees.’’ Changes: We have increased the duration and frequency of training activities for Title IX Coordinators, investigators, decision-makers, and any VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 person designated by a recipient to facilitate an informal resolution process. We now assume eight hours of training for each staff member with additional training each subsequent year. Comments: One commenter asserted that even if K–12 school districts could hire an adequate number of individuals to train, the cost of training and the ability to spare the time for that training is burdensome. Another commenter stated that the RIA failed to acknowledge the costs that K–12 schools will need to spend to train their Title IX Coordinators. The same commenter also stated that the calculations do not appear to consider the amount of time employees will have to spend scheduling sessions to make information available, going back and forth about follow-up questions, additional travel time, etc. The commenter contended that these calculations do not appear to consider the overall burden this activity will place on already over-extended school personnel. Discussion: As noted elsewhere, we have revised our estimates to include additional time for training Title IX Coordinators, investigators, decisionmakers, and any person designated by a recipient to facilitate an informal resolution process. We are unclear why an LEA would be required under these final regulations to hire multiple staff members to conduct training. Further, it appears that the commenter is assuming the training of multiple Title IX Coordinators within LEAs. While recipients may identify individuals at each school to support Title IX compliance efforts, they are not required to do so under the final regulations, which require each recipient to designate and authorize ‘‘at least one’’ employee to serve as a Title IX Coordinator pursuant to § 106.8(a). Section 106.30 defines an elementary and secondary school as an LEA, a preschool, or a private elementary or secondary school. Furthermore, the final regulations do not require training to be conducted in-person such that travel to and from training sessions is required; the final regulations also do not preclude training of Title IX Coordinators to be conducted online or virtually. To the extent that LEAs opted to provide training for school-level staff, we believe it is most likely that such trainings would be included in or replace existing training offered by the LEA and therefore the effects associated with the final regulations would be de minimis. Changes: We have revised our estimates to include additional time for training Title IX Coordinators, PO 00000 Frm 00536 Fmt 4701 Sfmt 4700 investigators, decision-makers, and any person designated by a recipient to facilitate an informal resolution process. Section 106.45(b)(5) Investigation of Formal Complaints Comments: Some commenters expressed concern about the financial and administrative cost the proposed regulations will impose on recipients. Commenters contend that recipients are better equipped to conduct grievance procedures without outside advisors, and that allowing parties to have advisors will subject recipients to more litigation. Other commenters argued that training advisors, implementing evidentiary rules, and conducting campus procedures like a courtroom would be too costly for many recipients, especially K–12 institutions. Discussion: We appreciate commenters’ concerns, but we do not believe that allowing parties to have advisors will necessarily subject recipients to a greater litigation risk. We believe the final regulations clearly establish the expectations for recipients in a manner that is consistent with constitutional due process for misconduct proceedings, and, in so doing, may actually reduce undue litigation risk. We also note that we have, to the maximum extent possible, calculated the likely costs of complying with these final regulations and believe that while many recipients will experience net costs, and the final regulations overall impose estimated net costs, the benefits of predictably, transparently protecting every student’s civil rights under Title IX in a manner consistent with constitutional rights, outweigh the costs of compliance. Changes: None. Comments: Multiple commenters also noted that it would be expensive for universities to provide technology for parties to review the investigative report and other evidence that does not allow the parties to print or otherwise share the evidence with others. Several commenters asserted that, under the proposed regulations, small schools will have to bear the significant costs of electronic file-sharing platforms for making evidence available to parties and advisors. According to comments, services that provide these types of systems can add thousands of extra dollars to administrative systems on an annual basis. Discussion: We agree that the proposed regulations may have proved confusing with respect to the requirement for recipients to provide the evidence to the parties in an electronic format for inspection and review. The proposed regulations E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations allowed but did not require recipients to use a file-sharing platform, and the Department omits the reference to the file-sharing platform in these final regulations to alleviate any confusion. The Department revised § 106.45(b)(5)(vi) to state that recipients may provide the evidence to the parties in an electronic format or a hard copy. Changes: We have revised § 106.45(b)(5)(vi) to state that recipients may provide the evidence to the parties in an electronic format or a hard copy for inspection and review. Comments: One commenter asserted the requirement in the proposed regulations that the Title IX Coordinator must give the parties ten days to inspect and review evidence in § 106.45(b)(5)(vi), and another ten days to respond to the investigative report in § 106.45(b)(5)(vii), would result in a significant drain on resources and would draw out the processing time of every investigation. The commenter claimed that these two ten-day requirements would especially increase the administrative burden on small institutions. Discussion: The Department is not convinced by the commenter’s argument that these two ten-day periods would result in any delays in processing a formal complaint. These two ten-day periods allow both parties to inspect and review the evidence that may support or not support the allegations and also to review and respond to the investigative report. Each recipient may choose whether to give the parties ten calendar days or ten business days, and recipients retain discretion in this regard. It is not clear from the comment why providing parties adequate time to inspect and review the evidence and to review and respond to the investigation report would create a unique administrative burden for small entities. Changes: None. Section 106.45(b)(6) Hearings Comments: Several commenters noted that the NPRM’s requirement for live hearings with cross-examination would pose a significant cost to respondents who must hire an advisor competent at cross-examination, which will most likely be an attorney. Discussion: We believe it is important to note that neither complainants nor respondents are required to hire advisors, and the final regulations expressly state that a party’s advisor of choice may be, but need not be, an attorney. If a party does not have an advisor to conduct cross-examination on behalf of that party, it is incumbent upon a postsecondary institution to provide an advisor for that party at a VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 live hearing under § 106.45(b)(6)(i) for the limited purpose of conducting crossexamination on behalf of the party who does not bring an advisor of choice to the hearing. Section 106.45(b)(6)(i) expressly states that such an advisor provided by the recipient does not need to be an attorney. There are no requirements that advisors (whether a party’s advisor of choice or a recipientprovided advisor at a live hearing) have any specialized training. People other than attorneys may conduct crossexamination, and not all attorneys regularly conduct cross-examination. For example, attorneys who special in transactional matters are usually not as skilled in conducting crossexamination. Regardless of these factors, our initial estimates included costs associated with an attorney to fulfill these advisor roles to provide an upperbound of the likely costs of the live hearings. We note that our model makes no distinction between whether advisors are secured by complainants, respondents, or recipients—such a factor would not affect our estimate. Changes: None. Comments: Many commenters asserted that they would need to spend money on training staff to adjudicate at grievance proceedings or on hiring attorneys to adjudicate. One commenter stated that even though the NPRM notes the use of hearing boards has become a relatively common practice at the IHE level, this does not mean that all IHEs are using staff to handle Title IX hearings. The commenter stated that due to the legal liability and complexity of these cases, an increasing number of IHEs have hired outside hearing officers to handle their hearings and appeals. For the commenter’s university, the expense per case runs from $5,000 to $20,000. The commenter acknowledges, however, that many IHEs already hire outside hearing officers, and predicts the practice will continue at universities and colleges around the country. Additionally, the same commenter predicted that costs for Title IX hearings have and will continue to increase regardless of whether these specific regulations become effective. Another commenter disputed the Department’s estimate that with respect to 60 percent of IHEs, the Title IX Coordinator also serves as the decisionmaker. The commenter argued that only allowing costs for an additional adjudicator in 40 percent of hearings is arbitrary and in direct contradiction to the proposed regulation, at § 106.45(b)(7)(i), which precludes the decision-maker from being the same person as the Title IX Coordinator or the investigator. PO 00000 Frm 00537 Fmt 4701 Sfmt 4700 30561 Discussion: We believe it is important to first clarify the Department’s estimates and discussion in the NPRM. We note that the commenter may have misunderstood the Department’s discussion of the individual serving as the decision-maker in the NPRM. In the NPRM, we noted that ‘‘we also assume that the Title IX Coordinator serves as the decision-maker in 60 percent of IHEs.’’ 1954 That statement was intended to address our assumption regarding the baseline, and our underlying estimates and calculations assumed that Title IX Coordinators would no longer serve in such capacities. As noted in the NPRM, the assumption that Title IX Coordinators currently serve as decision-makers in 60 percent of IHEs was based on research cited in the notice.1955 We also note that our estimates, which assume that all live hearings will be conducted with independent decision-makers moving forward was consistent with the proposed regulations. Further, whether or not recipients currently use decisionmakers who are employees, or contract out to use independent or professional decision-makers, recipients retain these options under the final regulations. Finally, regarding the specific individual conducting the live hearing, we assumed that such an individual would be an adjudicator employed in the education sector. We believe that this assumption aligns with the commenter’s recommendation. Changes: None. Comments: Several commenters asserted that many schools would need to spend significant funds on either training existing faculty and staff to perform cross-examinations or on hiring attorneys to perform crossexaminations. Many commenters stated that due to the nature of the proposed hearing and the legal acumen that would be required of advisors to effectively represent their party, that advisor would likely be an attorney. Commenters noted that providing one or more attorneys with the requisite knowledge will come at considerable expense to the recipient. At the same time, multiple commenters warned that the RIA’s estimate for hourly costs of an attorney are too low. Discussion: We appreciate commenters’ concerns regarding the requirements in § 106.45(b)(6)(i) that if a party does not have an advisor present at the live hearing, the recipient must provide without fee or charge to that party, an advisor of the recipient’s choice, who may be, but is not required 1954 83 FR 61488. 1955 Id. E:\FR\FM\19MYR2.SGM 19MYR2 30562 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations to be, an attorney, to conduct crossexamination on behalf of that party. Such advisors need not be provided with specialized training or be attorneys because the essential function of such an advisor provided by the recipient is not to ‘‘represent’’ a party but rather to relay the party’s cross-examination questions that the party wishes to have asked of other parties or witnesses so that parties never personally question or confront each other during a live hearing. While it would be within the discretion of recipients to hire attorneys to fulfill these roles, we believe it is more likely that recipients will opt to assign another member of its faculty or staff to conduct the cross-examination. In the NPRM, we estimated the costs of the proposed regulations using attorneys to fulfill these roles in order to provide a conservative estimate of the costs of each of these hearings. Regarding the hourly cost of attorneys used in the NPRM, those figures were based on the median hourly wage for attorneys in the education sector as reported by the BLS. BLS wage data is widely considered to be reliable estimates for use in such analyses, and we do not believe it would be appropriate to single out a specific personnel category and use a different, and less rigorous, source. Changes: None. Comments: Several commenters asserted that it would be financially burdensome to provide audio-visual technology for the parties to listen and watch the live hearing in a different room while it is not their turn to be cross-examined. One commenter stated that the proposed regulations fail to account for the costs of this additional technology, including not just the purchase of software, but also the costs of launching and maintaining the technology. One commenter asserted that recipients would incur additional costs to create or renovate building space necessary to hold the live hearings and cross-examinations. Numerous commenters also asserted that the technology required to allow cross-examinations in other rooms would be costly for small institutions, as these smaller schools do not have dedicated space or current set-ups with the technology needed to grant a request for parties to be in separate rooms at live hearings. Additionally, several commenters asserted that the NPRM failed to account for the additional costs of money, time, and training that recipients would pay to implement a new system of documentation in its investigations and adjudications. One commenter asserted that the Department never estimated the costs for VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 transcription and translation services that may be needed at the live hearings. Discussion: We understand that very few recipients, as part of their regular operations, maintain separate hearing rooms equipped with closed-circuit cameras or other live audio and visual conferencing technology. However, the final regulations do not require recipients to construct such spaces or equip them with expensive technology. The final regulations create no requirements on the space in which the hearing is held and, therefore, we believe most recipients will be able to identify a suitable space within their existing facilities such as an office, classroom, or conference room. Indeed, we believe that it would be the most efficient use of resources for recipients to use their limited available funding for creating new spaces to conduct these live hearings. Section 106.45(b)(6)(i) of these final regulations requires recipients, at the request of either party, to allow for the live hearing, including cross-examination, to occur with the parties in separate rooms and with technology allowing the decision-maker and parties to simultaneously see and hear the party or the witness answering questions. We note that this could be accomplished with an expensive closedcircuit television or video-conferencing system and, to the extent that recipients already possess such technologies, they could use them to meet the requirements of this part. We also recognize that a large number of recipients do not have such technology or equipment readily available to them. In such instances, recipients would be faced with either purchasing such equipment or using existing equipment paired with various software solutions. We believe that very few recipients are likely to, as a result of the final regulations, invest in costly new equipment for a relatively infrequent occurrence—that is, a recipient is unlikely to spend several thousand dollars on equipment and software it only intends to use one to three times per year. We believe it is much more likely that recipients will opt to use existing equipment, such as webcams, laptops, or cell phones, paired with free or relatively inexpensive software solutions. We note that there are more than a dozen free video web conferencing platforms that recipients could use to ensure that decisionmakers and parties could simultaneously see and hear the party or witness who is answering questions. Further, the requirements for creating audio or audiovisual recordings or a transcript of hearings can be met at very PO 00000 Frm 00538 Fmt 4701 Sfmt 4700 low or no cost using commonly available voice memo apps or software or tape recorders. However, to ensure that we account for these costs where they may occur, we have revised our assumptions to include a cost for the various technology requirements associated with the final regulations. As discussed above, we believe that recipients are unlikely to incur these costs and, as such, this approach represents an overestimate of likely costs incurred by recipients to comply with this requirement. Changes: We have revised our estimates to include a cost of $100 per hearing to meet the audiovisual requirements in § 106.45(b)(6)(i). Comments: One commenter asserted that it is unreasonable to assume adequate representation could occur with representation by an attorney for only one hour, or two hours for a nonattorney, for a hearing, particularly one involving a complex investigation of a sexual assault. Discussion: We appreciate the commenters’ feedback. We agree that it is likely that an advisor who may be, but is not required to be, an attorney, may need to spend additional time with a complainant or respondent outside of the hearing itself for a variety of purposes. As such, we have increased our estimated time commitment of advisors to eight hours per hearing at the LEA level and 60 hours at the IHE level. Changes: We have increased our estimates of the time necessary on the part of an advisor with respect to hearings. Section 106.45(b)(7) Determinations Regarding Responsibility Comments: One commenter suggested that moving from the preponderance of the evidence standard to the clear and convincing evidence standard would increase costs to recipients because of the resulting protests, uproar, instability on campus, and litigation risk. Discussion: The Department revised § 106.45(b)(7)(i) of the final regulations such that recipients would have a clear choice between applying the preponderance of the evidence standard or the clear and convincing evidence standard to reach determinations regarding responsibility. Given this change, the Department cannot reliably predict how many recipients would choose the clear and convincing evidence standard, the number or degree of protests that would stem from such a choice, or the extent to which recipients would be exposed to litigation. We also presume that a recipient will consider all factors in E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations choosing which standard to apply, including the effects mentioned by the commenter. Ultimately, because the final regulations permit a recipient to choose the standard of evidence it wishes to use, none of the costs mentioned by the commenter are directly attributable to the final regulations. Changes: The Department has revised § 106.45(b)(7)(i) of the final regulations such that recipients would have a clear choice between applying the preponderance of the evidence standard or the clear and convincing evidence standard to reach determinations regarding responsibility. We have removed the limitation contained in the NPRM that would have permitted recipients to use the preponderance of the evidence standard only if they used that standard for non-sexual misconduct that has the same maximum disciplinary sanction. Comments: Several commenters asserted that small institutions lack the human resources to comply with the prohibition of the single investigator model, and they expressed concern about how to afford the staff necessary to comply with the requirements in the proposed regulations. Commenters from small to mid-sized rural colleges, and mixed urban and rural colleges, stated that the Title IX Coordinator often wears multiple hats by also serving as the Human Resources Director, Dean of Students, or Administrative Vice President, as well as fulfilling other operational duties. Discussion: We recognize that these final regulations may require a number of recipients to alter their current policies and practices. We note that although the investigator may not be the same person as the decision-maker under § 106.45(b)(7)(i), these final regulations do not preclude the Title IX Coordinator from also serving as the recipient’s investigator as long as the Title IX Coordinator does not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent under § 106.45(b)(1)(iii). As noted in the ‘‘Regulatory Flexibility Act’’ section of this notice, we do not believe that the costs associated with complying with these final regulations will unnecessarily burden small entities. Changes: None. Section 106.45(b)(8) Appeals Comments: Commenters argued that § 106.45(b)(8) of the final regulations will be costly for recipients to implement. Commenters also requested that the Department modify the VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 proposed regulations to allow the same person who made the initial determination of responsibility to also make the appeal determination because otherwise the cost may be too great, especially for smaller and rural K–12 school districts and community colleges. Discussion: We decline the commenters’ suggested change. We believe it is important for the decisionmaker reviewing appeals to be a different person than the person who made the initial decision, in part, because the decision-maker on appeal is asked to review the determination reached by the original decision-maker (including based on any claim of bias or conflict of interest on the part of the decision-maker). However, we note that our initial estimates only assumed training for a single decision-maker and did not include training for the additional individual who would be necessary for reviewing appeals because the proposed regulations, unlike the final regulations. Section 106.45(b)(8) of these final regulations requires recipients to offer appeals, equally to both parties, on three specified bases, and to ensure that the decision-maker on appeal is not the same person who served as the Title IX Coordinator, investigator, or decision-maker making the original determination. We have therefore updated our estimates to include a second decision-maker for appeals. Our initial burden estimates related to the appeals process do not need to be updated to account for this change. Changes: We have revised our estimates to account for the separate decision-maker necessary to review appeals. Section 106.45(b)(9) Informal Resolution Comments: Several commenters asserted that the RIA’s estimate that ten percent of all formal complaints at the LEA and IHE level would be resolved through informal resolution is too low. One commenter recommended that the Department utilize the 34 percent figure reported by Wiersma-Mosley and DiLoreto.1956 Discussion: The Department is persuaded by these comments that more than ten percent of formal complaints may be resolved through informal resolution and adjusts this assumption upward in the final regulations. The 34 1956 Jacquelyn D. Wiersma-Mosley & James DiLoreto, The Role of Title IX Coordinators on College and University Campuses, 8 Behav. Sci. 4, 6 (2018), https://www.mdpi.com/2076-328X/8/4/38/ htm (click on ‘‘Full-Text PDF’’) (page references herein are to this PDF version). PO 00000 Frm 00539 Fmt 4701 Sfmt 4700 30563 percent figure reported by WiersmaMosley and DiLoreto applies only to postsecondary institutions and not elementary and secondary schools, and, thus, is not the most reliable figure.1957 Additionally, these final regulations do not require recipients to provide an informal resolution process and expressly prohibit recipients from providing an informal resolution process to resolve allegations that an employee sexually harassed a student pursuant to § 106.45(b)(9)(iii). We do not think it is appropriate to assume that 34 percent of all formal complaints will be resolved through informal resolution when the Department has precluded at least some formal complaints from being resolved through the informal resolution process. Accordingly, we adjust the assumption in the NPRM that ten percent of all formal complaints will be resolved through informal resolution and assume that 25 percent of all formal complaints will be resolved through informal resolution.1958 Changes: The Department assumes that 25 percent of all formal complaints will be resolved through informal resolution. Executive Orders 12866, 13563, and 13771 Regulatory Impact Analysis Under Executive Order 12866, the Office of Management and Budget (OMB) must determine whether this regulatory action is ‘‘significant’’ and, therefore, subject to the requirements of the Executive Order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a ‘‘significant regulatory action’’ as an action likely to result in a rule that may— (1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an ‘‘economically significant’’ rule); 1957 See the discussion in the ‘‘Informal Resolution’’ subsection of the ‘‘Section 106.45 Recipient’s Response to Formal Complaints’’ section. There are different views about informal resolution, and the Department does not wish to overestimate the number of recipients that may choose to offer an informal resolution process or assume the scope of any informal resolution process. 1958 An assumption of 25 percent will provide a more conservative estimate with respect to the net cost savings that recipients may realize as a result of the informal resolution process. The Department does not wish to overestimate the net cost savings as a result of the informal resolution process. E:\FR\FM\19MYR2.SGM 19MYR2 30564 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations (2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles stated in the Executive Order. This final regulatory action is an economically significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866. Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866 and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2020, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. OMB has determined that the final regulations are a significant regulatory action under Executive 13771. We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency— (1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify); (2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations; (3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and (5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Executive Order 13563 also requires an agency ‘‘to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.’’ The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include ‘‘identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.’’ We are issuing these final regulations only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. The information in this RIA measures the effect of these policy decisions on stakeholders and the Federal government as required by and in accordance with Executive Orders 12866 and 13563.1959 Based on the analysis that follows, the Department believes that these regulations are consistent with the principles in Executive Orders 12866 and 13563. We also have determined that this regulatory action does not unduly interfere with State, local, or tribal governments in the exercise of their governmental functions. In this RIA we discuss the need for the regulatory action, the potential costs and benefits, assumptions, limitations, and data sources. Although the majority of costs associated with information collection are discussed within this RIA, elsewhere in this notice under the Paperwork Reduction Act of 1965, we also identify and further explain burdens specifically associated with information collection requirements. Consistent with the statement in Executive Order 13563 that the Nation’s regulatory system must ‘‘measure, and seek to improve, the actual results of regulatory requirements,’’ we also intend to evaluate the economic impact of these final regulations on a voluntary, post-implementation basis. As additional data becomes available, we plan to analyze it and take appropriate steps, including employing the analysis in any future rulemaking. Need for Regulatory Action Based on its extensive review of the critical issues addressed in this 1959 Although the Department may designate certain classes of scientific, financial, and statistical information as influential under its Guidelines, the Department does not designate the information in the Regulatory Impact Analysis in these final regulations as influential and provides this information to comply with Executive Orders 12866 and 13563. U.S. Dep’t. of Education, Information Quality Guidelines (Oct. 17, 2005), https:// www2.ed.gov/policy/gen/guid/iq/iqg.html. PO 00000 Frm 00540 Fmt 4701 Sfmt 4700 rulemaking, the Department has determined that current regulations and guidance did not provide sufficiently clear standards for how recipients must respond to allegations of sexual harassment, including defining what conduct constitutes sexual harassment. To address this concern, we promulgate these final regulations to recognize and address sexual harassment as a form of sex discrimination under Title IX for the purpose of ensuring that recipients understand their legal obligations, including what conduct is actionable as harassment under Title IX, when and how a recipient must respond to allegations of sexual harassment, and particular requirements that such a response must meet in order to ensure that the recipient is protecting the rights of all persons, including students, to be free from sex discrimination in the recipient’s education program or activity. In addition to addressing sexual harassment, the Department has concluded it is also necessary to amend some of the existing regulations that apply to all sex discrimination and not just sexual harassment under Title IX. We amend existing regulations by stating that Title IX does not require recipients to infringe upon existing constitutional protections, that the Assistant Secretary for Civil Rights may require a recipient to take remedial action to remedy a violation of 34 CFR part 106, consistent with 20 U.S.C. 1682, and that recipients that qualify for a religious exemption under Title IX need not submit a letter to the Department as a prerequisite to claiming the exemption. Additionally, we amend existing regulations regarding the designation of a Title IX Coordinator (referred to as a responsible employee in existing regulation 34 CFR 106.8(a)), dissemination of the recipient’s notice that it does not discriminate on the basis of sex, and adoption of grievance procedures to address sex discrimination and a grievance process to address sexual harassment, including how to report or file a complaint of sex discrimination, how to report or file a formal complaint of sexual harassment, and how the recipient will respond. Discussion of Costs, Benefits, and Transfers The Department has analyzed the costs of complying with the final regulations. Due to uncertainty about the current capacity of recipients, lack of high-quality comprehensive data about the status quo, and the specific choices that recipients will make regarding how to comply with these final regulations, the Department cannot E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations estimate these costs with absolute precision. However, as discussed below, we estimate these final regulations to result in a net cost of between $48.6 and $62.2 million over ten years. The Department has reviewed the comments submitted in response to the NPRM and has revised some assumptions in response to the feedback we received. Our rationale for such revisions is described elsewhere in this notice. For the sake of transparency of this analysis, even in instances where our estimates did not change, we have provided our initial rationale herein. To accurately estimate the costs of these final regulations, the Department needed to establish an appropriate baseline for current practice. In doing so, it was necessary to know the current number of Title IX investigations occurring in LEAs and IHEs. In 2014, the U.S. Senate Subcommittee on Financial and Contracting Oversight released a report 1960 which included survey data from 440 four-year IHEs regarding the number of investigations of sexual violence that had been conducted during the previous five-year period. Two of the five possible responses to the survey were definite numbers (0, 1), while the other three were ranges (2–5, 6–10, >10). Responses were also disaggregated by the size of the institution (large, medium, or small). Although the report does not clearly identify a definition of ‘‘sexual violence’’ provided to survey respondents, the term would appear to capture only a subset of the types of incidents that may result in a Title IX investigation. Indeed, when the Department examined public reports of Title IX reports and investigations at 55 IHEs nationwide, incidents of sexual misconduct represented, on average, 45 percent of investigations conducted. Further, a number of the types of incidents that were categorized as ‘‘sexual misconduct’’ in those reports may, or may not, have been categorized as ‘‘sexual violence,’’ depending on the survey respondent. To address the fact that the subcommittee report may fail to capture all incidents of sexual misconduct at responding IHEs, the Department first top-coded the survey data. To the extent that survey respondents treated the terms ‘‘sexual misconduct’’ and ‘‘sexual violence’’ interchangeably, this top-coding approach may result in an overestimate of the number of sexual misconduct investigations conducted at institutions. By top-coding the ranges (e.g., ‘‘5’’ for 1960 Claire McCaskill, S. Subcomm. on Financial Contracting Oversight—Majority Staff, Sexual Violence on Campus, 113th Cong. (2014). VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 any respondent indicating ‘‘2–5’’) and assuming 50 investigations for any respondent indicating more than ten investigations, the Department was able to estimate the average number of sexual misconduct investigations conducted by four-year institutions in each size category. We then divided this estimate by five to arrive at an estimated number of investigations per year. To address the fact that incidents of sexual misconduct only represent a subset of all Title IX investigations conducted by IHEs in any given year, we then multiplied this result by two, assuming (consistent with our convenience sample of public Title IX reporting) that sexual misconduct investigations represented approximately 50 percent of all Title IX investigations conducted by institutions. Because the report only surveyed four-year institutions, the Department needed to impute similar data for twoyear and less-than-two-year institutions, which represent approximately 57 percent of all institutions in the report. In order to do so, the Department analyzed sexual offenses reported under the Clery Act and combined this data with total enrollment information from the Integrated Postsecondary Education Data System (IPEDS) for all Title IVeligible institutions within the United States, as these institutions must comply with the Clery Act. Assuming that the number of reports of sexual offenses under the Clery Act is positively correlated with the number of investigations, the Department arrived at a general rate of investigations per reported sexual offense at four-year IHEs by institutional enrollment. These rates were then applied to two-year and lessthan-two-year institutions within the same category using the average number of sexual offenses reported under the Clery Act for such institutions to arrive at an average number of investigations per year by size and level of institution. These estimates were then weighted by the number of institutions in each category to arrive at an estimated average 2.36 investigations of sexual harassment per IHE per year. A number of commenters indicated that our initial estimate of the current number of investigations occurring at IHEs was too low. As described in this Regulatory Impact Analysis section of this notice, we have upwardly revised this estimate. Based on public comment, it was clear that our coding of the Senate subcommittee data may have been inadequate to fully account for the full range of investigations currently being undertaken by IHEs. We therefore took those data and used Clery data to determine a multiplier which may help PO 00000 Frm 00541 Fmt 4701 Sfmt 4700 30565 us better transform the more limited scope of the Senate subcommittee data into the broader array of incidents that IHEs currently investigate. As noted in the NPRM and elsewhere in this notice, we recognize that there are weaknesses with the Clery data, such as the fact that Clery data may not capture all incidents of sexual harassment that occur on campus. However, we believe it is the best proxy for us to use in transforming the more direct data we have from the Senate subcommittee report. Clery data can provide useful information about the relationships between various types of incidents because Clery data is likely to be positively correlated with the actual underlying number of incidents— that is, when the underlying number of instances of sexual harassment increase (particularly sexual assaults, dating violence, domestic violence, and stalking), the number of incidents reported under the Clery Act will also increase. Although we requested that the public inform us of any better approach to estimating these baselines, we did not receive any quality alternatives. For all of these reasons, we are proceeding with using our initial estimates of the baseline number of investigations increased by a factor of 1.416, which accounts for the inclusion of dating violence, domestic violence, and stalking incidents. We now assume a baseline of 5.70 investigations per year per IHE. As noted in the NPRM, the Department does not have information on the average number of investigations of sexual harassment occurring each year in LEAs. As part of the Civil Rights Data Collection (CRDC), the Department does, however, gather information on the number of incidents of harassment based on sex in LEAs each year. During school year 2015–2016, LEAs reported an average of 3.23 of such incidents. Therefore, the Department assumes that LEAs, on average, currently conduct approximately 3.23 Title IX investigations each year. The Department issued guidance regarding Title IX compliance in 2011, which resulted in recipients conducting more investigations of incidents of sexual harassment as the 2011 Dear Colleague Letter provided that ‘‘[r]egardless of whether a harassed student, his or her parent, or a third party files a complaint under the school’s grievance procedures or otherwise requests action on the student’s behalf, a school that knows, or reasonably should know, about possible harassment must promptly investigate E:\FR\FM\19MYR2.SGM 19MYR2 30566 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations to determine what occurred . . . .’’ 1961 In 2017, the Department rescinded that guidance and published alternative, interim guidance while this regulatory action was underway. The Department reaffirmed that the interim guidance is not legally binding on recipients. Wiersma-Mosley and DiLoreto 1962 did not identify substantial rollback of Title IX activities among IHEs compared to Richards,1963 who found substantial changes relative to Karjane, Fisher, and Cullen.1964 Consistent with those studies, we believe it is highly likely that a subset of recipients have continued Title IX enforcement in accordance with the prior, now rescinded guidance, due to the uncertainty of the regulatory environment, and that it is reasonable to assume that some subset of recipients either never complied with the 2011 Dear Colleague Letter or the 2014 Q&A or amended their compliance activities after the rescission of that guidance. We do not, however, know with absolute certainty how many recipients fall into each category, making it difficult to accurately predict the likely effects of this regulatory action. In general, the Department assumes that recipients fall into one of three groups: (1) Recipients who have complied with the statutory and regulatory requirements and either did not comply with the 2011 Dear Colleague Letter or the 2014 Q&A or who reduced Title IX activities to the level required by statute and regulation after the rescission of the 2011 Dear Colleague Letter or the 2014 Q&A and will continue to do so; (2) recipients who continued Title IX activities at the level required by the 2011 Dear Colleague Letter or the 2014 Q&A but will amend their Title IX activities to the level required under current statute and the proposed regulations issued in this proceeding; and (3) recipients who continued Title IX activities at the level required under the 2011 Dear Colleague Letter or the 2014 Q&A and will continue to do so after final regulations are issued. In this structure, we believe that recipients in the second group are most likely to experience a net cost savings under these final regulations. We therefore estimate savings for this group of recipients only. We estimate no cost savings for recipients in the first and third groups. In estimating the number of recipients in each group, we assume that most LEAs and IHEs are generally risk averse regarding Title IX compliance, and so we assume that very few would have adjusted their enforcement efforts after the rescission of the 2011 Dear Colleague Letter or the 2014 Q&A or would have failed to align their activities with the guidance initially. Therefore, we estimate that only five percent of LEAs and five percent of IHEs fall into Group 1. Given the particularly acute financial constraints on LEAs, we assume that a vast majority (90 percent) will fall into Group 2—meeting all requirements of the proposed regulations and applicable laws, but not using limited resources to maintain a Title IX compliance structure beyond such requirements. Among IHEs, we assume that, for a large subset of recipients, various pressures will result in retention of the status quo in every manner that is permitted under the final regulations. Our model accounts for their decision to do so, and we only assume that 50 percent of IHEs experience any cost savings from these final regulations (placing them in Group 2). Therefore, we estimate that Group 3 will consist of five percent of LEAs and 45 percent of IHEs. We did not receive public comment directly responsive to these estimates and have therefore maintained them in this final cost analysis. We have revised our baseline assumptions by adding entities other than LEAs and IHEs into our model. These entities are recipients of Federal education funding but may not operate a traditional education program (e.g., museums, libraries, cultural centers). We are not aware of the extent to which such entities are currently conducting Title IX investigations and therefore assume that they are conducting two such investigations per year with a reduction of 50 percent after these final regulations become effective. We should note that generally, these other entities are very small and have few employees and no full-time students. We therefore think it unlikely they would have a baseline number of investigations much higher than our assumption. However, to provide full transparency to the general public, we have included the information in Table VII, which shows the impact on our estimates of alternative assumptions about the baseline number of investigations and the reduction in that number resulting from these final regulations: TABLE VII—SENSITIVITY ANALYSIS OF OTHER ENTITIES BASELINE ASSUMPTION Reduction as a result of the rule Baseline number of investigations 90% 15/YEAR .................................................................................................................... 2/YEAR ...................................................................................................................... 1/YEAR ...................................................................................................................... We further assume that 90 percent of other entities will be in the first analytical group as discussed in the NPRM, with a remaining five percent in each of the other two groups. This assumption is based on a belief that entities, given their small size and limited capacity, would be more likely 1961 2011 Dear Colleague Letter at 4. D. Wiersma-Mosley & James DiLoreto, The Role of Title IX Coordinators on College and University Campuses, 8 Behav. Sci. 4 (2018), https://www.mdpi.com/2076-328X/8/4/38/ htm (click on ‘‘Full-Text PDF’’) (page references herein are to this PDF version). 1962 Jacquelyn VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 50% $116,766,845 72,452,766 69,043,990 $195,526,067 82,953,995 74,294,605 10% $274,285,289 93,455,225 79,545,220 to adopt a minimal Title IX compliance framework, to the extent that they have one currently in operation. We maintain our assumption about how LEAs and IHEs fall into those analytical groups. For comparability purposes between the final regulations and the NPRM, we have retained the number of LEAs and IHEs we used in the NPRM. Unless otherwise specified, our model uses median hourly wages for personnel employed in the education sector as reported by the Bureau of Labor 1963 Tara N. Richards, An updated review of institutions of higher education’s responses to sexual assault: Results from a nationally representative sample, 34 Journal of Interpersonal Violence 1 (2016). 1964 Heather M. Karjane et al., Campus Sexual Assault: How America’s Institutions of Higher Education Respond 62–94, Final Report, NIJ Grant # 1999–WA–VX–0008 (Education Development Center, Inc. 2002), https://www.ncjrs.gov/pdffiles1/ nij/grants/196676.pdf. PO 00000 Frm 00542 Fmt 4701 Sfmt 4700 E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Statistics 1965 and an employer cost for employee compensation rate of 1.46.1966 We assume all recipients will need to take time to review and understand these final regulations. At the LEA level, we assume four hours for the Title IX Coordinator (assuming a loaded wage rate of $65.22 per hour for educational administrators), and eight hours for an attorney (at a rate of $90.71 per hour). At the IHE level, we assume eight hours for the Title IX Coordinator and 16 hours for an attorney. We did not receive public comment on these estimates and have therefore not revised them from the NPRM. For other entities, we assume four hours for the Title IX Coordinator and eight hours for an attorney. We note that our estimates in the NPRM incorrectly omitted costs for reviewing the final regulations at the IHE level and some personnel at the LEA level. We have corrected that error for these estimates. We therefore estimate the cost of this activity as approximately $30,324,610. We assume that all recipients will need to revise their grievance procedures. We assume that at the LEA level this will take six hours for the Title IX Coordinator and 24 hours for an attorney with an additional two hours for an administrator to review and approve them. At the IHE level, we assume this will take 12 hours for the Title IX Coordinator and 28 hours for an attorney with an additional four hours for an administrator to review and approve them. These estimates were revised from the NPRM in response to public comment. For other entities, we assume this will take four hours for a Title IX Coordinator and 16 hours for an attorney with an additional two hours for an administrator to review and approve them. We therefore estimate the cost of this activity as approximately $82,441,460. We assume 40 percent of LEAs, 20 percent of IHEs,1967 and all other 1965 U.S. Dep’t. of Labor, Bureau of Labor Statistics, May 2017 National Industry-Specific Occupational Employment and Wage Estimates: Sector 61—Educational Services (Mar. 30, 2018), https://www.bls.gov/oes/current/naics2_61.htm. 1966 U.S. Dep’t. of Labor, Bureau of Labor Statistics, Economic News Release: Table 1. Civilian Workers, by Major Occupational and Industry Group (Sept. 18, 2018), https://www.bls.gov/ news.release/ecec.t01.htm. 1967 Richards, and Wiersma-Mosley & DiLoreto at 5, found that approximately 80 percent of IHEs (81 percent and 79 percent, respectively) posted their policies and procedures. Jacquelyn D. WiersmaMosley & James DiLoreto, The Role of Title IX Coordinators on College and University Campuses, 8 Behav. Sci. 4 (2018), available at https:// www.mdpi.com/2076-328X/8/4/38/htm (click on ‘‘Full-Text PDF’’) (page references herein are to this PDF version); Tara N. Richards, An updated review of institutions of higher education’s responses to sexual assault: Results from a nationally VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 entities will need to post their nondiscrimination statement. At the LEA level, we assume this will take one half hour each for a Title IX Coordinator and an attorney and two hours for a web developer (at $44.12 per hour). At the IHE level, we assume this will take one hour each for the Title IX Coordinator and an attorney and two hours for a web developer. We did not receive public comment on these estimates and have therefore not revised them from the NPRM. For other entities, we assume this will take one hour each from the Title IX Coordinator and an attorney and two hours for a web developer. We therefore estimate the cost of this activity as approximately $1,494,020. We assume that all recipients will need to train their Title IX Coordinators, an investigator, any person designated by a recipient to facilitate an informal resolution process (e.g., a mediator), and two decision-makers (assuming an additional decision-maker for appeals). We assume this training will take approximately eight hours for all staff at the LEA and IHE level. These estimates have been revised since the NPRM due to public comment. For other entities, we assume only four hours of training for the Title IX Coordinator, as we believe that their smaller organizational footprint and more limited staffing may result in a shorter training time for such staff. We therefore estimate the cost of this activity as approximately $52,135,230 in Year 1 and $26,067,620 in each subsequent year. The final regulations require recipients to conduct an investigation only if a formal complaint of sexual harassment is filed by the complainant or signed by the Title IX Coordinator. In reviewing a sample of public Title IX documents, the Department noted that larger IHEs were more likely than smaller IHEs to conduct investigations only in the event of formal complaints, as opposed to investigating all reports they received. Consistent with this observation, the Department found that the rate of average investigations relative to the number of reports of sexual offenses under the Clery Act was lower at large (more than 10,000 students) at four-year institutions than it was at smaller four-year institutions. As a result, the Department used the Clery Act data to impute the likely effect of these regulations on various institutions. Specifically, we assumed in the NPRM that, under these regulations, the gap in the rate of investigations between large IHEs and smaller ones representative sample, 34 Journal of Interpersonal Violence 1 (2016). PO 00000 Frm 00543 Fmt 4701 Sfmt 4700 30567 would decrease by approximately 50 percent. However, we believe that, given revisions to the definition of ‘‘formal complaint’’ in § 106.30, it will be easier and more likely for complainants to file a formal complaint if they wish to do so. Thus, we now only assume a smaller reduction in the number of investigations than we did in the NPRM—a 40 percent ‘‘gap closing’’ as opposed to the 50 percent included in the NPRM. This figure was not reduced further because we believe that the inclusion of dating violence, domestic violence, and stalking to the definition of ‘‘sexual harassment’’ may offset the effects from an easier formal complaint process. Specifically, we believe that, due to the nature of dating violence and domestic violence, individuals may be less likely to file a formal complaint than they would in instances of sexual assault. Therefore, we estimate that the requirement to investigate only in the event of formal complaints would result in a reduction in the average number of investigations per IHE per year of 1.60. This reduction is equivalent to all IHEs in Group 2 experiencing a reduction in investigations of approximately 28 percent. In addition, the proposed regulations only require investigations in the event of sexual harassment within a recipient’s education program or activity. Again, assuming that Clery Act reports correlate with all incidents of sexual harassment (as defined in these final regulations), we assume a further reduction in the number of investigations per IHE per year of approximately 0.29, using the number of public property and reported-by-police reports as a proxy for the number of offcampus sexual harassment investigations currently being conducted by IHEs.1968 As noted in our responses to comments, we believe that this approach will result in a likely underestimate of the cost savings from the final regulations as at least some proportion of noncampus incidents reported under the Clery Act would also not have to be investigated under the final regulations, but the Department does not assume any savings from a reduction in such investigations. As a 1968 The Department notes that this likely represents a severe under-estimate of the actual proportion of incidents of sexual harassment that occur off campus and recognizes some off-campus incidents may be part of a recipient’s education program or activity as described in § 106.44(a). According to a study from United Educators, approximately 41 percent of sexual assault claims examined occurred off campus. United Educators, Facts from United Educator’s Report Confronting Campus Sexual Assault (2015), https://www.ue.org/ sexual_assault_claims_study/. E:\FR\FM\19MYR2.SGM 19MYR2 30568 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations result, we estimate that each IHE in Group 2 will experience a reduction in the number of Title IX investigations of approximately 1.89 per year. At the LEA level, given the lack of information regarding the actual number of investigations conducted each year, the Department assumes that only 50 percent of the incidents reported in the CRDC would result in a formal complaint, for a reduction in the number of investigations of 1.62 per year. We did not receive public comment on this assumption and are therefore retaining it in these final estimates. Although we estimate that the number of investigations under the proposed regulations will decrease at both the IHE and LEA levels, Title IX Coordinators are still expected to respond to informal complaints or reports of sexual harassment. Such responses will not be dictated by the recipient’s grievance procedures, and § 106.44(a) requires the Title IX Coordinator to promptly contact the complainant to discuss the availability of the supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint.1969 Although the final regulations require such supportive measures to be offered without fee or charge, we do not estimate specific costs associated with the provision of particular supportive measures. Although such costs for supportive measures were not included in the NPRM, the Department has added a flat cost of $250 per set of supportive measures provided in response to public comment. We have also revised our initial estimates to include time burdens for students to each set of supportive measures provided. Further, the number of informal complaints or reports of sexual harassment has been adjusted due to changes in assumptions regarding the baseline number of investigations and the proportion of those that will result in formal complaints under the final regulations. At the LEA level, we assume that each response to a report of sexual harassment will take three hours from the Title IX Coordinator, eight hours for an administrative assistant, and 12 1969 In Angela F. Amar et al., Administrators’ perceptions of college campus protocols, response, and student prevention efforts for sexual assault, 29 Violence & Victims 579 (2014), the most common campus services provided at the IHE level were mental health services, health services, law enforcement, and victim assistance/advocacy. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 hours each for two students (at the K– 12 level, we assume the Federal minimum wage for students). At the IHE level, we assume each informal complaint will require three hours from the Title IX Coordinator, 16 hours from an administrative assistant, and 24 hours each for two students (at the postsecondary level, we assume median hourly wage for all workers, or $18.58 per hour). For other entities, we assume each response to an informal complaint will require three hours from the Title IX Coordinator, eight hours from an administrative assistant, and 12 hours each for two students (for other entities, we average the wage rates for K–12 and postsecondary students). Across all recipients, we assume a flat cost of $250 per set of supportive measures provided. We therefore estimate the cost of this activity as approximately $31,164,490 per year. In response to public comment, we have added a new category of costs not included in the NPRM. We recognize that there may be instances in which recipients expend time and resources to determine if a particular incident occurred within the recipient’s education program or activity or in a circumstance in which the recipient would be otherwise required to investigate. At the LEA and IHE level, we assume this would take approximately four hours for a Title IX Coordinator and 12 hours from an investigator. We do not assume that these types of investigations will be likely at other entities, given their small scope and limited activities where they would exercise substantial control over respondents outside of clearly defined events and circumstances. We therefore assume that this activity would cost approximately $10,338,310 per year. For formal complaints, we made several revisions to our initial assumptions based on public comment. First, we increased the amount of time an attorney or advisor would spend on any individual investigation. Second, we included two students as part of each investigation. Third, we added a nominal $100 cost per hearing to accommodate the recordkeeping and technology requirements (e.g., video conferencing to meet the crossexamination requirements when parties request separate rooms). Finally, we have revised the number of formal investigations that occur based on the assumptions described above. At the LEA level, we therefore assume that a formal investigation will require eight hours from the Title IX Coordinator, 16 hours from an administrative assistant, eight hours each for two advisors (using the wage rate for attorneys), 20 hours for PO 00000 Frm 00544 Fmt 4701 Sfmt 4700 an investigator, eight hours for the decision-maker, and 12 hours each for two students. At the IHE level, we assume a formal investigation will take 24 hours from a Title IX Coordinator, 40 hours from an administrative assistant, 60 hours each for two advisors, 40 hours for an investigator, 16 hours for a decision-maker, and 24 hours each for two students. For other entities, we assume each formal investigation will require eight hours from a Title IX Coordinator, 16 hours for an administrative assistant, eight hours each for two advisors, 20 hours for an investigator, eight hours for a decisionmaker, and 12 hours each for two students. We therefore estimate the reduction in burden associated with the reduced number of investigations as approximately $189,134,990 per year. As in the NPRM, we assume that some subset of recipients may not currently be conducting investigations in a manner that would comply with the requirements of these final regulations. For those recipients, we assume an increased cost to comply. At the LEA level, we believe these requirements will require an additional two hours for a Title IX Coordinator, three hours from an administrative assistant, eight hours each for two advisors, ten hours from an investigator, and eight hours from a decision-maker. At the IHE level, these requirements will result in an increase of six hours for the Title IX Coordinator, ten hours for an administrative assistant, 60 hours each for two advisors, 20 hours for an investigator, and 16 hours from a decision-maker. For other entities, we believe this will result in an increase of two hours for the Title IX Coordinator, four hours for an administrative assistant, one hour each for two advisors, ten hours for an investigator, and four hours for a decision-maker. We also assume the same additional nominal charge for all entities associated with recordkeeping and technology requirements. For analytical group one, we therefore estimate formal investigations to result in a cost increase of $21,867,410 per year. As in the NPRM we assume that 50 percent of all decisions result in appeal. We revised our estimates in this section from the NPRM to increase the time commitment on the part of advisors and to add students. At the LEA level, we assume that each appeal will require 4 hours from the Title IX Coordinator, eight hours from an administrative assistant, eight hours each for two advisors, eight hours for a decisionmaker, and 12 hours each for two students. At the IHE level, we assume each appeal would require E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations approximately 12 hours from the Title IX Coordinator, 20 hours from an administrative assistant, 16 hours each for two advisors, 8 hours for a decisionmaker, and 24 hours each for two students. For other entities, we assume each appeal will require four hours for the Title IX Coordinator, eight hours for an administrative assistant, 8 hours each for two advisors, eight hours for a decision-maker, and 12 hours each for two students. We therefore estimate a total cost of this activity as approximately $62,024,720 per year. As in the NPRM, we assume that some proportion of formal complaints will be resolved through an informal resolution process. In response to public comment, we now assume that 25 percent of formal complaints will be resolved through an informal resolution process. In such instances, we assume such a process will reduce half the time burden on investigators and advisors, all of the time burden for decision-makers, and all of the costs associated with recordkeeping and technology requirements for the live hearing.1970 We further assume that it will increase the time burdens on administrative assistants and the time for a person designated by a recipient to facilitate an informal resolution process. We note that in the NPRM, we included additional time for the Title IX Coordinator who may help facilitate an informal resolution process. In response to public comment and to changes from the proposed regulations to the final regulations, we acknowledge that recipients may and are likely to designate a person other than the Title IX Coordinator to facilitate an informal resolution process. We have therefore reassigned this time burden to a person other than the Title IX Coordinator designated by the recipient to facilitate an informal resolution process and assume that the informal resolution will not create additional time burdens for the Title IX Coordinator relative to a grievance process under § 106.45. At the LEA level and in other entities, we assume an increase of four hours for an administrative assistant and four hours 1970 The Department assumes that 25 percent of formal complaints will be resolved through an informal resolution process under § 106.45(b)(9) because such an assumption will provide a more conservative estimate with respect to the net cost savings that recipients may realize as a result of the informal resolution process. The Department does not wish to overestimate the net cost savings as a result of the informal resolution process. In the ‘‘Paperwork Reduction Act of 1965’’ section, the Department assumes 100 percent participation with respect to the informal resolution process because such an assumption provides the most conservative estimate with respect to burden. Accordingly, the Department errs on the side of underestimating any net cost savings and overestimating burden. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 for a person designated by the recipient to facilitate an informal resolution process. At the IHE level, we assume each informal resolution will require an additional eight hours for an administrative assistant and an additional 8 hours for a person designated by the recipient to facilitate an informal resolution process. We therefore assume that informal resolutions will result in a net cost savings of $29,694,690 per year. As described in the NPRM, the final regulations require recipients to maintain certain documentation regarding their Title IX activities. We assume that the recordkeeping and documentation requirements would have a higher first year cost associated with establishing the system for documentation with a lower out-year cost for maintaining it. At the LEA level, we assume that the Title IX Coordinator would spend four hours in Year 1 establishing the system and an administrative assistant would spend eight hours doing so. At the IHE level, we assume recipients are less likely to use a paper filing system and are likely to use an electronic database for managing such information. Therefore, we assume it will take a Title IX Coordinator 24 hours, an administrative assistant 40 hours, and a database administrator 40 hours (at $50.71/hr) to set up the system. In later years, we assume that the systems will be relatively simple to maintain. At the LEA level, we assume it will take the Title IX Coordinator two hours and an administrative assistant four hours to do so. At the IHE level, we assume four hours from the Title IX Coordinator, 40 hours from an administrative assistant, and eight hours from a database administrator. We did not receive public comment on these time estimates and, therefore, have not revised these assumptions from the NPRM. Given their size and organizational complexity, we assume that other entities will face the same time burdens associated with complying as LEAs. We therefore estimate the recordkeeping requirements to cost approximately $39,114,530 in Year 1 and $15,189,260 in each subsequent year. In total, we estimate these final regulations to generate a net cost of between $48.6 and $62.2 million over ten years. Regulatory Alternatives Considered The Department considered the following alternatives to the proposed regulations: (1) Leaving the current regulations and current guidance in place and issuing no proposed regulations at all; (2) leaving the current PO 00000 Frm 00545 Fmt 4701 Sfmt 4700 30569 regulations in place and reinstating the 2011 Dear Colleague Letter or the 2014 Q&A; and (3) issuing proposed regulations that added to the current regulations broad statements of general principles under which recipients must promulgate grievance procedures. Alternative (2) was rejected by the Department for the reasons expressed in the preamble of the NPRM 1971 and for the reasons described throughout this preamble: The procedural and substantive problems with the 2011 Dear Colleague Letter and 2014 Q&A that prompted the Department to rescind that guidance remained as concerning now as when the guidance was rescinded. Additionally, the Department determined that restoring that guidance would once again leave recipients unclear about how to ensure they implemented prompt and equitable grievance procedures. Alternative (1) was rejected by the Department because current regulations are entirely silent on whether Title IX and those implementing regulations expressly cover sexual harassment. The Department chose not to address a crucial topic like sexual harassment through guidance which would have left this serious issue subject only to nonlegally binding guidance rather than regulatory prescriptions. The lack of legally binding standards would leave survivors of sexual harassment with fewer legal protections and both alleged victims and persons accused of sexual harassment with no predictable, consistent expectation of the level of fairness or due process available from recipients’ grievance procedures. Alternative (3) was rejected by the Department because the problems with the status quo regarding recipients’ Title IX procedures, as identified by numerous stakeholders and experts, made it clear that a regulation that was too vague or broad (e.g., ‘‘respond supportively to persons who report sexual harassment’’ or ‘‘provide due process protections before disciplining a student for sexual harassment’’) would not provide sufficient predictability or consistency across recipients to achieve the benefits sought by the Department. After careful consideration of various alternatives, the Department believes that the proposed regulations represent the most prudent and cost effective way of achieving the desired benefits of (a) ensuring that recipients know their specific legal obligations with respect to responses to sexual harassment, (b) ensuring that schools and colleges take all reports of sexual harassment seriously (including by offering 1971 83 E:\FR\FM\19MYR2.SGM FR 61489. 19MYR2 30570 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations supportive measures to help complainants preserve equal educational access irrespective of whether allegations are investigated), (c) ensuring that schools and colleges treat all persons accused of sexual harassment fairly and provide both parties strong procedural rights in any grievance process resolving sexual harassment allegations, and (d) ensuring that victims of sexual harassment in recipients’ education programs or activities are provided with remedies. Accounting Statement As required by OMB Circular A–4, in the following table we have prepared an accounting statement showing the classification of expenditures associated with the provisions of these final regulations. This table provides our best estimate of the changes in annual monetized costs, benefits, and transfers as a result of the final regulations. TABLE VIII—ACCOUNTING STATEMENT Category Benefits Clarity, specificity, and permanence with respect to recipient schools and colleges knowing their legal obligations under Title IX with respect to sexual harassment. A legal framework for schools’ and colleges’ response to sexual harassment that ensures all reports of sexual harassment are treated seriously and alleged victims are offered supportive measures, all persons accused are treated fairly, and both parties to any grievance process resolving sexual harassment allegations are given due process protections. Preserve constitutional rights, recognize religious exemptions in the absence of written request .............................. Not Quantified. Not Quantified. Not Quantified. Costs Reading and understanding the rule ........................................................................................................... Revision of grievance procedures ............................................................................................................... Posting of non-discrimination statement ..................................................................................................... Training of Title IX Coordinators, investigators, decision-makers, and any person designated by a recipient to facilitate an informal resolution process ................................................................................... Response to informal reports ...................................................................................................................... Reduction in the number of investigations .................................................................................................. Increased investigation requirements .......................................................................................................... Appeal process ............................................................................................................................................ Informal resolution of complaints ................................................................................................................. Creation and maintenance of documentation ............................................................................................. Regulatory Flexibility Act This analysis, required by the Regulatory Flexibility Act, presents an estimate of the effect of the final regulations on small entities. The U.S. Small Business Administration (SBA) Size Standards define proprietary institutions of higher education as small businesses if they are independently owned and operated, are not dominant in their field of operation, and have total annual revenue below $7,000,000. Nonprofit institutions are defined as small entities if they are independently owned and operated and not dominant in their field of operation. Public institutions and local educational agencies are defined as small organizations if they are operated by a government overseeing a population below 50,000. As described in the NPRM, for purposes of assessing the impacts on small entities, the Department is defining a ‘‘small’’ IHE as a two-year IHE with an enrollment of less than 500 FTE or a four-year IHE with an enrollment of less than 1,000 FTE. Pursuant to conversations with the SBA, the Department has opted to define ‘‘small’’ LEAs as those with annual revenues of less than $7,000,000. The VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Department estimates there are approximately 631 small IHEs and 7,900 small LEAs. Based on the model described above, an IHE conducting approximately 5.70 investigations per year with no reduction under the new rules and no investigations resulting in informal resolution would see an increase in costs of approximately $28,065 per year. According to data from IPEDS, in FY 2017, small IHEs had, on average, total revenues of approximately $9,925,999. Therefore, we would anticipate that the final regulations could generate a burden on small IHEs equal to approximately 0.28 percent of annual revenue. We therefore do not believe that these regulations would place a substantial burden on small IHEs. Based on the model above, an LEA conducting an average of 3.23 investigations per year with no reduction under the new rules and no investigations resulting in informal resolutions would see an increase in costs of approximately $11,978 per year. In 2015–2016, small LEAs had an average total revenue of approximately $4,565,342. Therefore, we estimate that the final regulations could generate a cost burden on small LEAs of PO 00000 Frm 00546 Fmt 4701 Sfmt 4700 3% 7% $3,451,427 9,383,159 170,044 $4,035,086 10,969,915 198,799 29,034,530 70,343,754 (178,796,679) 21,867,415 62,024,722 (25,665,969) 17,912,337 29,536,255 70,343,754 (178,796,679) 21,867,415 62,024,722 (25,665,969) 18,372,828 approximately 0.26 percent of total revenues. We therefore do not believe that these final regulations would place a substantial burden on small LEAs. The Department certifies that this rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. Paperwork Reduction Act of 1995 As part of its continuing effort to reduce paperwork and the burden of responding, the Department provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This requirement helps ensure that the public understands the Department’s collection instructions; respondents can provide the requested data in the desired format; reporting burden (time and financial resources) is minimized; collection instruments are clearly understood; and the Department can properly assess the impact of collection requirements on respondents. The Department’s typical practice is to calculate burden over a three-year period. For transparency and to provide E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations full information with respect to impact, the Department provides burden calculations for both a three-year period as well as the seven-year record retention period in the information below. The following sections contain information collection requirements: Proposed § 106.44(b)(3) Supportive Measures Safe Harbor in Absence of a Formal Complaint [Removed in Final Regulations] These final regulations do not include § 106.44(b)(3) as proposed in the NPRM, which provided recipients a safe harbor with respect to supportive measures. Accordingly, there is no burden to include. § 106.45(b)(2) Written Notice of Allegations Section 106.45(b)(2) requires all recipients, upon receipt of a formal complaint, to provide written notice to the complainant and the respondent, informing the parties of the recipient’s grievance process and providing sufficient details of the sexual harassment allegations being investigated. This written notice will help ensure that the nature and scope of the investigation, and the recipient’s procedures, are clearly understood by the parties at the commencement of an investigation. We estimate that most recipients will need to create a form, or modify one already used, to comply with these requirements. With respect to all recipients, including elementary and secondary schools, postsecondary institutions, and other recipients of Federal financial assistance, we estimate that it will take the Title IX Coordinator one hour to create or modify a form to use for these purposes, and that an attorney will spend 0.5 hours reviewing the form for compliance with § 106.45(b)(2). We estimate there will be no cost in out-years, and that the cost of maintaining such a form is captured under the recordkeeping requirements of § 106.45(b)(10) described below, for a total Year 1 cost of $2,650,654. The total burden for this requirement over three years or over seven years, which is the length of time that a recipient must maintain records under § 106.45(b)(10)(i), is 35,958 hours under OMB Control Number 1870–NEW, because this form only needs to be created once. § 106.45(b)(9) Informal Resolution Section 106.45(b)(9) requires that recipients who wish to provide parties with the option of informal resolution of formal complaints, may offer this option VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 to the parties but may only proceed by: First, providing the parties with written notice disclosing the sexual harassment allegations, the requirements of an informal resolution process, any consequences from participating in the informal resolution process; and second, obtaining the parties’ voluntary, written consent to the informal resolution process. This provision permits—but does not require—recipients to allow for voluntary participation in an informal resolution as a method of resolving the allegations in formal complaints without completing the investigation and adjudication. This provision prohibits recipients from offering or facilitating an informal resolution process to resolve allegations that an employee sexually harassed a student. We estimate that not all elementary and secondary schools, postsecondary institutions, or other recipients will choose to offer informal resolution as a feature of their grievance process; of those recipients that do, we estimate that most recipients will need to create a form, or modify one already used, to comply with the requirements of this section. With respect to all recipients, including elementary and secondary schools, postsecondary institutions, and other recipients of Federal financial assistance, we estimate that it will take Title IX Coordinators one (1) hour to create or modify a form to use for these purposes, and that an attorney will spend 0.5 hours reviewing the form for compliance with § 106.45(b)(9). We estimate there will be no cost in outyears, and that the cost of maintaining such a form is captured under the recordkeeping requirements of § 106.45(b)(9) described above, for a total Year 1 cost of $2,650,654. The total burden for this requirement over three years or over seven years, which is the length of time that a recipient must maintain records under § 106.45(b)(10), is 35,958 hours under OMB Control Number 1870–NEW, because this form only needs to be created once. Even though not all recipients may choose to offer an informal resolution process, we are estimating this burden for 100 percent of recipients to provide the most conservative estimate of any burden. § 106.45(b)(10) Recordkeeping Section 106.45(b)(10) requires recipients to maintain certain documentation regarding their Title IX activities. Recipients will be required to maintain for a period of seven years records of: Sexual harassment investigations, including any determination regarding responsibility and any audio or audiovisual recording or transcript required under PO 00000 Frm 00547 Fmt 4701 Sfmt 4700 30571 § 106.45(b)(6)(i), any disciplinary sanctions imposed on the respondent, and any remedies provided to the complainant designed to restore or preserve equal access to the recipient’s education program or activity; any appeal and the result therefrom; any informal resolution; and all materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process. Additionally, for each response required under § 106.44(a), a recipient must create, and maintain for a period of seven years, records of any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment. In each instance, the recipient must document the basis for its conclusion that its response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to the recipient’s education program or activity. The Department clarifies in these final regulations that if a recipient does not provide a complainant with supportive measures, then such documentation must include the reasons why such a response was not clearly unreasonable in light of the known circumstances. This information will allow a recipient and OCR to assess on a longitudinal basis the prevalence of sexual harassment affecting access to a recipient’s programs and activities, whether a recipient is complying with Title IX when responding to reports and formal complaints of sexual harassment, and the necessity for additional or different measures, including any remedial actions under § 106.3(a). We estimate the volume of records to be created and retained may represent a decline from current recordkeeping due to clarification elsewhere in these final regulations 1) that an investigation under § 106.45 needs to be conducted only if a complainant files or a Title IX Coordinator signs a formal complaint and the allegations in the formal complaint are not dismissed under § 106.45(b)(3) and 2) that an informal resolution process may be used to resolve allegations in a formal complaint pursuant to § 106.45(b)(9); both of these provisions will likely result in fewer investigative records being generated. We estimate that recipients will have a higher first-year cost associated with establishing the system for documentation with a lower out-year cost for maintaining it. With respect to elementary and secondary schools, we assume that the Title IX Coordinator will spend 4 hours in Year 1 E:\FR\FM\19MYR2.SGM 19MYR2 30572 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations establishing the system and an administrative assistant will spend 8 hours doing so. With respect to postsecondary institutions, we assume recipients are less likely to use a paper filing system and are likely to use an electronic database for managing such information. Therefore, we assume it will take a Title IX Coordinator 24 hours, an administrative assistant 40 hours, and a database administrator 40 hours to set up the system for a total Year 1 estimated cost of approximately $39,114,530 for 16,606 elementary and secondary schools, 6,766 postsecondary institutions, and 600 other entities that are recipients of Federal financial assistance. Given their size and organizational complexity, we assume that other entities that are recipients of Federal financial assistance that are not elementary and secondary schools or postsecondary institutions will face the same time burdens associated with complying as elementary and secondary schools. In later years, we assume that the systems will be relatively simple to maintain. At the elementary and secondary school level as well as for other recipients of Federal financial assistance that are not elementary and secondary schools or postsecondary institutions, we assume it will take the Title IX Coordinator 2 hours and an administrative assistant 4 hours to do so. At the postsecondary institution level, we assume 4 hours from the Title IX Coordinator, 40 hours from an administrative assistant, and 8 hours from a database administrator. In total, we estimate an ongoing cost of approximately $15,189,260 per year. We estimate that elementary and secondary schools and other recipients of Federal financial assistance will take 12 hours and postsecondary institutions will take 104 hours to establish and maintain a recordkeeping system for the required sexual harassment documentation during Year 1. In outyears, we estimate that elementary and secondary schools and other recipients of Federal financial assistance will take 6 hours annually and postsecondary institutions will take 52 hours annually to maintain the recordkeeping requirement for Title IX sexual harassment documentation. The total burden for this recordkeeping over three years is 398,544 hours for elementary and secondary schools, 1,407,328 hours for postsecondary institutions, and 14,400 for other recipients of Federal financial assistance. The Department calculates burden over a seven-year period because § 106.45(b)(10)(i) requires recipients to maintain certain records for a period of seven years. The total burden for this recordkeeping requirement over seven years is 797,088 hours for elementary and secondary schools, 2,814,656 hours for postsecondary institutions, and 28,800 hours for other recipients of Federal financial assistance. Collectively, we estimate the burden over seven years for elementary and secondary schools, postsecondary institutions, and other recipients of Federal financial assistance for recordkeeping of Title IX sexual harassment documents will be 3,640,544 hours under OMB Control Number 1870–NEW. COLLECTION OF INFORMATION Regulatory section Information collection OMB Control No. and estimated burden [change in burden] 106.45(b)(2) ......................... This regulatory provision requires recipients to provide parties with written notice when investigating a formal complaint. This regulatory provision requires recipients to provide written notice to parties wishing to participate in informal resolution of a formal complaint. This regulatory provision requires recipients to maintain certain documentation related to Title IX activities. OMB 1870–NEW. The burden over the first seven years will be $2,650,654 and 35,958 hours. .......................................................................................... $135,551,398; 3,712,460 hours. 106.45(b)(9) ......................... 106.45(b)(10) ....................... TOTAL .......................... OMB 1870–NEW. The burden over the first seven years will be $2,650,654 and 35,958 hours. OMB 1870–NEW. The burden over the first seven years will be $130,250,090 and 3,640,544 hours. Individuals with disabilities can obtain this document in an accessible format (e.g., Braille, large print, audiotape, or compact disc) on request to the person listed under FOR FURTHER INFORMATION CONTACT. You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Through the advanced search feature at this site, you can limit your search to documents published by the Department. Electronic Access to This Document List of Subjects in 34 CFR Part 106 Authority: 20 U.S.C. 1681 et seq., unless otherwise noted. The official version of this document is the document published in the Federal Register. Free internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.gpo.gov/fdsys. You can view this document at that site, as well as all other documents of this Department published in the Federal Register, in text or PDF. To use PDF, you must have Adobe Acrobat Reader, which is available free at the site. Education, Sex discrimination, Civil rights, Sexual harassment. ■ Betsy DeVos, Secretary of Education. § 106.3 Remedial and affirmative action and self-evaluation. Accessible Format VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 For the reasons discussed in the preamble, the Secretary amends part 106 of title 34 of the Code of Federal Regulations as follows: PO 00000 Frm 00548 Fmt 4701 Sfmt 4700 PART 106—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE 1. The authority citation for part 106 continues to read as follows: ■ 2. Section 106.3 is amended by revising paragraph (a) to read as follows: (a) Remedial action. If the Assistant Secretary finds that a recipient has discriminated against persons on the basis of sex in an education program or activity under this part, or otherwise violated this part, such recipient must take such remedial action as the Assistant Secretary deems necessary to E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations remedy the violation, consistent with 20 U.S.C. 1682. * * * * * ■ 3. Section 106.6 is amended by revising the section heading and adding paragraphs (d), (e), (f), (g), and (h) to read as follows: § 106.6 Effect of other requirements and preservation of rights. * * * * * (d) Constitutional protections. Nothing in this part requires a recipient to: (1) Restrict any rights that would otherwise be protected from government action by the First Amendment of the U.S. Constitution; (2) Deprive a person of any rights that would otherwise be protected from government action under the Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution; or (3) Restrict any other rights guaranteed against government action by the U.S. Constitution. (e) Effect of Section 444 of General Education Provisions Act (GEPA)/ Family Educational Rights and Privacy Act (FERPA). The obligation to comply with this part is not obviated or alleviated by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99. (f) Title VII of the Civil Rights Act of 1964. Nothing in this part may be read in derogation of any individual’s rights under title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. or any regulations promulgated thereunder. (g) Exercise of rights by parents or guardians. Nothing in this part may be read in derogation of any legal right of a parent or guardian to act on behalf of a ‘‘complainant,’’ ‘‘respondent,’’ ‘‘party,’’ or other individual, subject to paragraph (e) of this section, including but not limited to filing a formal complaint. (h) Preemptive effect. To the extent of a conflict between State or local law and title IX as implemented by §§ 106.30, 106.44, and 106.45, the obligation to comply with §§ 106.30, 106.44, and 106.45 is not obviated or alleviated by any State or local law. * * * * * ■ 4. Section 106.8 is revised to read as follows: § 106.8 Designation of coordinator, dissemination of policy, and adoption of grievance procedures. (a) Designation of coordinator. Each recipient must designate and authorize at least one employee to coordinate its efforts to comply with its responsibilities under this part, which VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 employee must be referred to as the ‘‘Title IX Coordinator.’’ The recipient must notify applicants for admission and employment, students, parents or legal guardians of elementary and secondary school students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient, of the name or title, office address, electronic mail address, and telephone number of the employee or employees designated as the Title IX Coordinator pursuant to this paragraph. Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report. Such a report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address, listed for the Title IX Coordinator. (b) Dissemination of policy—(1) Notification of policy. Each recipient must notify persons entitled to a notification under paragraph (a) of this section that the recipient does not discriminate on the basis of sex in the education program or activity that it operates, and that it is required by title IX and this part not to discriminate in such a manner. Such notification must state that the requirement not to discriminate in the education program or activity extends to admission (unless subpart C of this part does not apply) and employment, and that inquiries about the application of title IX and this part to such recipient may be referred to the recipient’s Title IX Coordinator, to the Assistant Secretary, or both. (2) Publications. (i) Each recipient must prominently display the contact information required to be listed for the Title IX Coordinator under paragraph (a) of this section and the policy described in paragraph (b)(1) of this section on its website, if any, and in each handbook or catalog that it makes available to persons entitled to a notification under paragraph (a) of this section. (ii) A recipient must not use or distribute a publication stating that the recipient treats applicants, students, or employees differently on the basis of sex except as such treatment is permitted by title IX or this part. (c) Adoption of grievance procedures. A recipient must adopt and publish PO 00000 Frm 00549 Fmt 4701 Sfmt 4700 30573 grievance procedures that provide for the prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by this part and a grievance process that complies with § 106.45 for formal complaints as defined in § 106.30. A recipient must provide to persons entitled to a notification under paragraph (a) of this section notice of the recipient’s grievance procedures and grievance process, including how to report or file a complaint of sex discrimination, how to report or file a formal complaint of sexual harassment, and how the recipient will respond. (d) Application outside the United States. The requirements of paragraph (c) of this section apply only to sex discrimination occurring against a person in the United States. ■ 5. Section 106.9 is revised to read as follows: § 106.9 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. ■ 6. Section 106.12 is amended by revising paragraph (b) to read as follows: § 106.12 Educational institutions controlled by religious organizations. * * * * * (b) Assurance of exemption. An educational institution that seeks assurance of the exemption set forth in paragraph (a) of this section may do so by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part that conflict with a specific tenet of the religious organization. An institution is not required to seek assurance from the Assistant Secretary in order to assert such an exemption. In the event the Department notifies an institution that it is under investigation for noncompliance with this part and the institution wishes to assert an exemption set forth in paragraph (a) of this section, the institution may at that time raise its exemption by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part which conflict with a specific tenet of the religious organization, whether or not the institution had previously sought assurance of an exemption from the Assistant Secretary. * * * * * ■ 7. Add § 106.18 to subpart B to read as follows: E:\FR\FM\19MYR2.SGM 19MYR2 30574 § 106.18 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. ■ 8. Add § 106.24 to subpart C to read as follows: § 106.24 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. ■ 9. Add § 106.30 to subpart D to read as follows: § 106.30 Definitions. (a) As used in this part: Actual knowledge means notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary and secondary school. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the recipient with actual knowledge is the respondent. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the recipient. ‘‘Notice’’ as used in this paragraph includes, but is not limited to, a report of sexual harassment to the Title IX Coordinator as described in § 106.8(a). Complainant means an individual who is alleged to be the victim of conduct that could constitute sexual harassment. Consent. The Assistant Secretary will not require recipients to adopt a particular definition of consent with respect to sexual assault, as referenced in this section. Formal complaint means a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the recipient investigate the allegation of sexual harassment. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed. A formal complaint VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information required to be listed for the Title IX Coordinator under § 106.8(a), and by any additional method designated by the recipient. As used in this paragraph, the phrase ‘‘document filed by a complainant’’ means a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by the recipient) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or otherwise a party under this part or under § 106.45, and must comply with the requirements of this part, including § 106.45(b)(1)(iii). Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment. Sexual harassment means conduct on the basis of sex that satisfies one or more of the following: (1) An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct; (2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or (3) ‘‘Sexual assault’’ as defined in 20 U.S.C. 1092(f)(6)(A)(v), ‘‘dating violence’’ as defined in 34 U.S.C. 12291(a)(10), ‘‘domestic violence’’ as defined in 34 U.S.C. 12291(a)(8), or ‘‘stalking’’ as defined in 34 U.S.C. 12291(a)(30). Supportive measures means nondisciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the recipient’s educational environment, or deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, PO 00000 Frm 00550 Fmt 4701 Sfmt 4700 mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The recipient must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the recipient to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures. (b) As used in §§ 106.44 and 106.45: Elementary and secondary school means a local educational agency (LEA), as defined in the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act, a preschool, or a private elementary or secondary school. Postsecondary institution means an institution of graduate higher education as defined in § 106.2(l), an institution of undergraduate higher education as defined in § 106.2(m), an institution of professional education as defined in § 106.2(n), or an institution of vocational education as defined in § 106.2(o). ■ 10. Add § 106.44 to subpart D to read as follows: § 106.44 Recipient’s response to sexual harassment. (a) General response to sexual harassment. A recipient with actual knowledge of sexual harassment in an education program or activity of the recipient against a person in the United States, must respond promptly in a manner that is not deliberately indifferent. A recipient is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances. For the purposes of this section, §§ 106.30, and 106.45, ‘‘education program or activity’’ includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution. A recipient’s response must treat complainants and respondents equitably by offering supportive measures as defined in § 106.30 to a complainant, and by following a grievance process that complies with § 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent. The Title IX Coordinator E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations must promptly contact the complainant to discuss the availability of supportive measures as defined in § 106.30, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. The Department may not deem a recipient to have satisfied the recipient’s duty to not be deliberately indifferent under this part based on the recipient’s restriction of rights protected under the U.S. Constitution, including the First Amendment, Fifth Amendment, and Fourteenth Amendment. (b) Response to a formal complaint. (1) In response to a formal complaint, a recipient must follow a grievance process that complies with § 106.45. With or without a formal complaint, a recipient must comply with § 106.44(a). (2) The Assistant Secretary will not deem a recipient’s determination regarding responsibility to be evidence of deliberate indifference by the recipient, or otherwise evidence of discrimination under title IX by the recipient, solely because the Assistant Secretary would have reached a different determination based on an independent weighing of the evidence. (c) Emergency removal. Nothing in this part precludes a recipient from removing a respondent from the recipient’s education program or activity on an emergency basis, provided that the recipient undertakes an individualized safety and risk analysis, determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal, and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal. This provision may not be construed to modify any rights under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act. (d) Administrative leave. Nothing in this subpart precludes a recipient from placing a non-student employee respondent on administrative leave during the pendency of a grievance process that complies with § 106.45. This provision may not be construed to modify any rights under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act. 11. Add § 106.45 to subpart D to read as follows: ■ VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 § 106.45 Grievance process for formal complaints of sexual harassment. (a) Discrimination on the basis of sex. A recipient’s treatment of a complainant or a respondent in response to a formal complaint of sexual harassment may constitute discrimination on the basis of sex under title IX. (b) Grievance process. For the purpose of addressing formal complaints of sexual harassment, a recipient’s grievance process must comply with the requirements of this section. Any provisions, rules, or practices other than those required by this section that a recipient adopts as part of its grievance process for handling formal complaints of sexual harassment as defined in § 106.30, must apply equally to both parties. (1) Basic requirements for grievance process. A recipient’s grievance process must— (i) Treat complainants and respondents equitably by providing remedies to a complainant where a determination of responsibility for sexual harassment has been made against the respondent, and by following a grievance process that complies with this section before the imposition of any disciplinary sanctions or other actions that are not supportive measures as defined in § 106.30, against a respondent. Remedies must be designed to restore or preserve equal access to the recipient’s education program or activity. Such remedies may include the same individualized services described in § 106.30 as ‘‘supportive measures’’; however, remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent; (ii) Require an objective evaluation of all relevant evidence—including both inculpatory and exculpatory evidence— and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness; (iii) Require that any individual designated by a recipient as a Title IX Coordinator, investigator, decisionmaker, or any person designated by a recipient to facilitate an informal resolution process, not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, receive training on the definition of sexual harassment in § 106.30, the scope of the recipient’s education program or activity, how to conduct an investigation and grievance PO 00000 Frm 00551 Fmt 4701 Sfmt 4700 30575 process including hearings, appeals, and informal resolution processes, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. A recipient must ensure that decisionmakers receive training on any technology to be used at a live hearing and on issues of relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, as set forth in paragraph (b)(6) of this section. A recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence, as set forth in paragraph (b)(5)(vii) of this section. Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment; (iv) Include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process; (v) Include reasonably prompt time frames for conclusion of the grievance process, including reasonably prompt time frames for filing and resolving appeals and informal resolution processes if the recipient offers informal resolution processes, and a process that allows for the temporary delay of the grievance process or the limited extension of time frames for good cause with written notice to the complainant and the respondent of the delay or extension and the reasons for the action. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities; (vi) Describe the range of possible disciplinary sanctions and remedies or list the possible disciplinary sanctions and remedies that the recipient may implement following any determination of responsibility; (vii) State whether the standard of evidence to be used to determine responsibility is the preponderance of the evidence standard or the clear and convincing evidence standard, apply the same standard of evidence for formal complaints against students as for formal complaints against employees, including faculty, and apply the same standard of evidence to all formal complaints of sexual harassment; E:\FR\FM\19MYR2.SGM 19MYR2 30576 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations (viii) Include the procedures and permissible bases for the complainant and respondent to appeal; (ix) Describe the range of supportive measures available to complainants and respondents; and (x) Not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege. (2) Notice of allegations—(i) Upon receipt of a formal complaint, a recipient must provide the following written notice to the parties who are known: (A) Notice of the recipient’s grievance process that complies with this section, including any informal resolution process. (B) Notice of the allegations of sexual harassment potentially constituting sexual harassment as defined in § 106.30, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment under § 106.30, and the date and location of the alleged incident, if known. The written notice must include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process. The written notice must inform the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney, under paragraph (b)(5)(iv) of this section, and may inspect and review evidence under paragraph (b)(5)(vi) of this section. The written notice must inform the parties of any provision in the recipient’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process. (ii) If, in the course of an investigation, the recipient decides to investigate allegations about the complainant or respondent that are not included in the notice provided pursuant to paragraph (b)(2)(i)(B) of this section, the recipient must provide notice of the additional allegations to the parties whose identities are known. (3) Dismissal of a formal complaint— (i) The recipient must investigate the allegations in a formal complaint. If the conduct alleged in the formal complaint would not constitute sexual harassment as defined in § 106.30 even if proved, VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 did not occur in the recipient’s education program or activity, or did not occur against a person in the United States, then the recipient must dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under title IX or this part; such a dismissal does not preclude action under another provision of the recipient’s code of conduct. (ii) The recipient may dismiss the formal complaint or any allegations therein, if at any time during the investigation or hearing: A complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein; the respondent is no longer enrolled or employed by the recipient; or specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein. (iii) Upon a dismissal required or permitted pursuant to paragraph (b)(3)(i) or (b)(3)(ii) of this section, the recipient must promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties. (4) Consolidation of formal complaints. A recipient may consolidate formal complaints as to allegations of sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances. Where a grievance process involves more than one complainant or more than one respondent, references in this section to the singular ‘‘party,’’ ‘‘complainant,’’ or ‘‘respondent’’ include the plural, as applicable. (5) Investigation of a formal complaint. When investigating a formal complaint and throughout the grievance process, a recipient must— (i) Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the recipient and not on the parties provided that the recipient cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains that party’s voluntary, written consent to do so for a grievance process under this section PO 00000 Frm 00552 Fmt 4701 Sfmt 4700 (if a party is not an ‘‘eligible student,’’ as defined in 34 CFR 99.3, then the recipient must obtain the voluntary, written consent of a ‘‘parent,’’ as defined in 34 CFR 99.3); (ii) Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence; (iii) Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence; (iv) Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the complainant or respondent in any meeting or grievance proceeding; however, the recipient may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties; (v) Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate; (vi) Provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the recipient does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation. Prior to completion of the investigative report, the recipient must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report. The recipient must make all such evidence subject to the parties’ inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination; and (vii) Create an investigative report that fairly summarizes relevant evidence E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations and, at least 10 days prior to a hearing (if a hearing is required under this section or otherwise provided) or other time of determination regarding responsibility, send to each party and the party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response. (6) Hearings. (i) For postsecondary institutions, the recipient’s grievance process must provide for a live hearing. At the live hearing, the decisionmaker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such crossexamination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally, notwithstanding the discretion of the recipient under paragraph (b)(5)(iv) of this section to otherwise restrict the extent to which advisors may participate in the proceedings. At the request of either party, the recipient must provide for the live hearing to occur with the parties located in separate rooms with technology enabling the decision-maker(s) and parties to simultaneously see and hear the party or the witness answering questions. Only relevant crossexamination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the decision-maker(s) must first determine whether the question is relevant and explain any decision to exclude a question as not relevant. If a party does not have an advisor present at the live hearing, the recipient must provide without fee or charge to that party, an advisor of the recipient’s choice, who may be, but is not required to be, an attorney, to conduct crossexamination on behalf of that party. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. If a party or witness does not submit to crossexamination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer crossexamination or other questions. Live hearings pursuant to this paragraph may be conducted with all parties physically present in the same geographic location or, at the recipient’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other. Recipients must create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review. (ii) For recipients that are elementary and secondary schools, and other recipients that are not postsecondary institutions, the recipient’s grievance process may, but need not, provide for a hearing. With or without a hearing, after the recipient has sent the investigative report to the parties pursuant to paragraph (b)(5)(vii) of this section and before reaching a determination regarding responsibility, the decision-maker(s) must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party. With or without a hearing, questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. The decision-maker(s) must explain to the party proposing the questions any decision to exclude a question as not relevant. (7) Determination regarding responsibility. (i) The decision-maker(s), who cannot be the same person(s) as the Title IX Coordinator or the investigator(s), must issue a written determination regarding responsibility. To reach this determination, the recipient must apply the standard of evidence described in paragraph (b)(1)(vii) of this section. (ii) The written determination must include— PO 00000 Frm 00553 Fmt 4701 Sfmt 4700 30577 (A) Identification of the allegations potentially constituting sexual harassment as defined in § 106.30; (B) A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held; (C) Findings of fact supporting the determination; (D) Conclusions regarding the application of the recipient’s code of conduct to the facts; (E) A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the recipient imposes on the respondent, and whether remedies designed to restore or preserve equal access to the recipient’s education program or activity will be provided by the recipient to the complainant; and (F) The recipient’s procedures and permissible bases for the complainant and respondent to appeal. (iii) The recipient must provide the written determination to the parties simultaneously. The determination regarding responsibility becomes final either on the date that the recipient provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely. (iv) The Title IX Coordinator is responsible for effective implementation of any remedies. (8) Appeals. (i) A recipient must offer both parties an appeal from a determination regarding responsibility, and from a recipient’s dismissal of a formal complaint or any allegations therein, on the following bases: (A) Procedural irregularity that affected the outcome of the matter; (B) New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and (C) The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter. (ii) A recipient may offer an appeal equally to both parties on additional bases. (iii) As to all appeals, the recipient must: E:\FR\FM\19MYR2.SGM 19MYR2 30578 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations (A) Notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties; (B) Ensure that the decision-maker(s) for the appeal is not the same person as the decision-maker(s) that reached the determination regarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator; (C) Ensure that the decision-maker(s) for the appeal complies with the standards set forth in paragraph (b)(1)(iii) of this section; (D) Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome; (E) Issue a written decision describing the result of the appeal and the rationale for the result; and (F) Provide the written decision simultaneously to both parties. (9) Informal resolution. A recipient may not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to an investigation and adjudication of formal complaints of sexual harassment consistent with this section. Similarly, a recipient may not require the parties to participate in an informal resolution process under this section and may not offer an informal resolution process unless a formal complaint is filed. However, at any time prior to reaching a determination regarding responsibility the recipient may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication, provided that the recipient— (i) Provides to the parties a written notice disclosing: The allegations, the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, provided, however, that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint, and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared; (ii) Obtains the parties’ voluntary, written consent to the informal resolution process; and (iii) Does not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 (10) Recordkeeping. (i) A recipient must maintain for a period of seven years records of— (A) Each sexual harassment investigation including any determination regarding responsibility and any audio or audiovisual recording or transcript required under paragraph (b)(6)(i) of this section, any disciplinary sanctions imposed on the respondent, and any remedies provided to the complainant designed to restore or preserve equal access to the recipient’s education program or activity; (B) Any appeal and the result therefrom; (C) Any informal resolution and the result therefrom; and (D) All materials used to train Title IX Coordinators, investigators, decisionmakers, and any person who facilitates an informal resolution process. A recipient must make these training materials publicly available on its website, or if the recipient does not maintain a website the recipient must make these materials available upon request for inspection by members of the public. (ii) For each response required under § 106.44, a recipient must create, and maintain for a period of seven years, records of any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment. In each instance, the recipient must document the basis for its conclusion that its response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to the recipient’s education program or activity. If a recipient does not provide a complainant with supportive measures, then the recipient must document the reasons why such a response was not clearly unreasonable in light of the known circumstances. The documentation of certain bases or measures does not limit the recipient in the future from providing additional explanations or detailing additional measures taken. ■ 12. Add § 106.46 to subpart D to read as follows: § 106.46 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. ■ 13. Add § 106.62 to subpart E to read as follows: § 106.62 Severability. If any provision of this subpart or its application to any person, act, or PO 00000 Frm 00554 Fmt 4701 Sfmt 4700 practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. ■ 14. Subpart F is revised to read as follows: Subpart F—Retaliation Sec. 106.71 Retaliation. 106.72 Severability. Subpart F–Retaliation § 106.71 Retaliation. (a) Retaliation prohibited. No recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by title IX or this part, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by title IX or this part, constitutes retaliation. The recipient must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination required to be adopted under § 106.8(c). (b) Specific circumstances. (1) The exercise of rights protected under the First Amendment does not constitute retaliation prohibited under paragraph (a) of this section. (2) Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding E:\FR\FM\19MYR2.SGM 19MYR2 Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules and Regulations under this part does not constitute retaliation prohibited under paragraph (a) of this section, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith. § 106.72 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. ■ 15. Add subpart G to read as follows: Subpart G—Procedures Sec. 106.81 Procedures. 106.82 Severability. VerDate Sep<11>2014 19:08 May 18, 2020 Jkt 250001 Subject Index to Title IX Preamble and Regulation [Removed] Subpart G—Procedures § 106.81 Procedures. The procedural provisions applicable to title VI of the Civil Rights Act of 1964 are hereby adopted and incorporated herein by reference. These procedures may be found at 34 CFR 100.6–100.11 and 34 CFR part 101. The definitions in § 106.30 do not apply to 34 CFR 100.6– 100.11 and 34 CFR part 101. § 106.82 Severability. If any provision of this subpart or its application to any person, act, or practice is held invalid, the remainder of the subpart or the application of its provisions to any person, act, or practice shall not be affected thereby. PO 00000 Frm 00555 Fmt 4701 Sfmt 9990 30579 16. Remove the Subject Index to Title IX Preamble and Regulation. ■ 17. In addition to the amendments set forth above, in 34 CFR part 106, remove the parenthetical authority citation at the ends of §§ 106.1, 106.2, 106.3, 106.4, 106.5, 106.6, 106.7, 106.11, 106.12, 106.13, 106.14, 106.15, 106.16, 106.17, 106.21, 106.22, 106.23, 106.31, 106.32, 106.33, 106.34, 106.35, 106.36, 106.37, 106.38, 106.39, 106.40, 106.41, 106.42, 106.43, 106.51, 106.52, 106.53, 106.54, 106.55, 106.56, 106.57, 106.58, 106.59, 106.60, and 106.61. ■ [FR Doc. 2020–10512 Filed 5–12–20; 4:45 pm] BILLING CODE 4000–01–P E:\FR\FM\19MYR2.SGM 19MYR2

Agencies

DEPARTMENT OF EDUCATION

[Federal Register Volume 85, Number 97 (Tuesday, May 19, 2020)]
[Rules and Regulations]
[Pages 30026-30579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10512]



[[Page 30025]]

Vol. 85

Tuesday,

No. 97

May 19, 2020

Part II





Department of Education





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34 CFR Part 106





 Nondiscrimination on the Basis of Sex in Education Programs or 
Activities Receiving Federal Financial Assistance; Final Rule

Federal Register / Vol. 85, No. 97 / Tuesday, May 19, 2020 / Rules 
and Regulations

[[Page 30026]]


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DEPARTMENT OF EDUCATION

34 CFR Part 106

[Docket ID ED-2018-OCR-0064]
RIN 1870-AA14


Nondiscrimination on the Basis of Sex in Education Programs or 
Activities Receiving Federal Financial Assistance

AGENCY: Office for Civil Rights, Department of Education.

ACTION: Final rule.

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SUMMARY: The Secretary of Education amends the regulations implementing 
Title IX of the Education Amendments of 1972 (Title IX). The final 
regulations specify how recipients of Federal financial assistance 
covered by Title IX, including elementary and secondary schools as well 
as postsecondary institutions, (hereinafter collectively referred to as 
``recipients'' or ``schools''), must respond to allegations of sexual 
harassment consistent with Title IX's prohibition against sex 
discrimination. These regulations are intended to effectuate Title IX's 
prohibition against sex discrimination by requiring recipients to 
address sexual harassment as a form of sex discrimination in education 
programs or activities. The final regulations obligate recipients to 
respond promptly and supportively to persons alleged to be victimized 
by sexual harassment, resolve allegations of sexual harassment promptly 
and accurately under a predictable, fair grievance process that 
provides due process protections to alleged victims and alleged 
perpetrators of sexual harassment, and effectively implement remedies 
for victims. The final regulations also clarify and modify Title IX 
regulatory requirements regarding remedies the Department may impose on 
recipients for Title IX violations, the intersection between Title IX, 
Constitutional protections, and other laws, the designation by each 
recipient of a Title IX Coordinator to address sex discrimination 
including sexual harassment, the dissemination of a recipient's non-
discrimination policy and contact information for a Title IX 
Coordinator, the adoption by recipients of grievance procedures and a 
grievance process, how a recipient may claim a religious exemption, and 
prohibition of retaliation for exercise of rights under Title IX.

DATES: These regulations are effective August 14, 2020.

FOR FURTHER INFORMATION CONTACT: Alejandro Reyes, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 4E308, Washington, DC 20202. 
Telephone: (202) 453-6639. Email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION:

Table of Contents

Effective Date
Executive Summary
    Purpose of This Regulatory Action
    Summary of the Major Provisions of This Regulatory Action
Timing, Comments, and Changes
Adoption and Adaption of the Supreme Court's Framework To Address 
Sexual Harassment
    Differences Between Standards in Department Guidance and These 
Final Regulations
    Definition of Sexual Harassment
    Actual Knowledge
    Deliberate Indifference
Role of Due Process in the Grievance Process
    Due Process Principles
    Summary of Sec.  106.45
    Similarities and Differences Between the Sec.  106.45 Grievance 
Process and Department Guidance
Public Comment
Analysis of Comments and Changes
Personal Stories
Notice and Comment Rulemaking Rather Than Guidance
General Support and Opposition
    Commonly Cited Sources
    Data--Overview
    Prevalence Data--Elementary and Secondary Schools
    Prevalence Data--Postsecondary Institutions
    Prevalence Data--Women
    Prevalence Data--Men
    Prevalence Data--LGBTQ Persons
    Prevalence Data--Persons of Color
    Prevalence Data--Individuals With Disabilities
    Prevalence Data--Immigrants
    Impact Data
    Cost Data
    Reporting Data
    Stereotypes/Punishment for ``Lying''
    False Allegations
General Support and Opposition for Supreme Court Framework Adopted 
in Sec.  106.44(a)
General Support and Opposition for the Grievance Process in Sec.  
106.45
Section 106.30 Definitions
    Actual Knowledge
    Support for Actual Knowledge Requirement and General Safety 
Concerns
    Student Populations Facing Additional Barriers to Reporting
    Chilling Reporting
    Generally Burdening Complainants
    Employees' Obligations
    Elementary and Secondary Schools
    Large Schools
    Miscellaneous Comments and Questions
    Complainant
    Consent
    Elementary and Secondary Schools
    Formal Complaint
    Support for Formal Complaint Definition
    No Formal Complaint Required To Report Sexual Harassment
    Burden on Complainants To File a Formal Complaint
    Anonymous Reporting and Anonymous Filing of Formal Complaints
    Officials Other Than the Title IX Coordinator Filing a Formal 
Complaint
    Complexity of a Document Labeled ``Formal Complaint''
    Parents' and Guardians' Rights To File a Formal Complaint
    Methods of Reporting and Methods of Filing a Formal Complaint
    Miscellaneous Concerns About the Formal Complaint Definition
    Postsecondary Institution
    Respondent
    Sexual Harassment
    Overall Support and Opposition for the Sec.  106.30 Sexual 
Harassment Definition
    Prong (1) Quid pro quo
    Prong (2) Davis standard
    Davis Standard Generally
    So Severe
    And Pervasive
    Objectively Offensive
    Effectively Denies Equal Access
    Prong (3) Sexual Assault, Dating Violence, Domestic Violence, 
Stalking
    Gender-Based Harassment
    Supportive Measures
    Overall Support and Opposition
    No-Contact Orders
    Other Language/Terminology Comments
Section 106.44 Recipient's Response to Sexual Harassment, Generally
    Section 106.44(a) ``Actual Knowledge''
    The Recipient's Self-Interest
    Burdening the Complainant
    Elementary and Secondary Schools
    Confusion for Employees
    Intersection Between Actual Knowledge and Deliberate 
Indifference
    Modeling Reporting on the Military System
    Section 106.44(a) ``education program or activity''
    General Support and Opposition for ``Education Program or 
Activity'' as a Jurisdictional Condition
    Online Sexual Harassment
    Consistency With Title IX Statutory Text
    Constitutional Equal Protection
    Institutional Autonomy and Litigation Risk
    Requests for Clarification
    Section 106.44(a) ``Against a Person in the U.S.''
    Impact on Study Abroad Participants
    Consistency With Federal Law and Departmental Practice
    Constitutional Equal Protection
    Impact on International or Foreign Exchange Students in the U.S.
    Section 106.44(a) Deliberate Indifference Standard
    Recipient's Response in Specific Circumstances
    Section 106.44(b) Proposed ``Safe Harbors,'' Generally
    Section 106.44(b)(1) Mandate To Investigate Formal Complaints 
and Safe Harbor
    Proposed Sec.  106.44(b)(2) Reports by Multiple Complainants of 
Conduct by

[[Page 30027]]

Same Respondent [Removed in Final Regulations]
    Proposed Sec.  106.44(b)(3) Supportive Measures Safe Harbor in 
Absence of a Formal Complaint [removed in final regulations]
    Section 106.44(b)(2) OCR Will Not Re-Weigh the Evidence
    Additional Rules Governing Recipients' Responses to Sexual 
Harassment
    Section 106.44(c) Emergency Removal
    Overall Support and Opposition to Emergency Removals
    Intersection With the IDEA, Section 504, and ADA
    Post-Removal Challenges
    No Stated Time Limitation for the Emergency Removal
    ``Removal''
    ``Individualized Safety and Risk Analysis''
    ``Provides the Respondent With Notice and an Opportunity To 
Challenge the Decision Immediately Following the Removal''
    How OCR Will Enforce the Provision
    Section 106.44(d) Administrative Leave
Section 106.45 Recipient's Response to Formal Complaints
    General Requirements for Sec.  106.45 Grievance Process
    Section 106.45(a) Treatment of Complainants or Respondents Can 
Violate Title IX
    Section 106.45(b)(1)(i) Equitable Treatment of Complainants and 
Respondents
    Section 106.45(b)(1)(ii) Objective Evaluation of All Relevant 
Evidence
    Section 106.45(b)(1)(iii) Impartiality and Mandatory Training of 
Title IX Personnel; Directed Question 4 (Training)
    Section 106.45(b)(1)(iv) Presumption of Non-Responsibility
    Purpose of the Presumption
    Students of Color, LGBTQ Students, and Individuals With 
Disabilities
    The Complainant's Right to Due Process Protections
    False Allegations
    Inaccurate Findings of Non-Responsibility
    Recipients Should Apply Dual Presumptions or No Presumption
    The Adversarial Nature of the Grievance Process
    Supportive Measures
    Miscellaneous Concerns
    Section 106.45(b)(1)(v) Reasonably Prompt Time Frames
    Support
    Opposition--Lack of Specified Time Limit
    Effects on Recipients
    Concerns Regarding Concurrent Law Enforcement Activity
    Alternative Proposals
    Clarification Requests
    Section 106.45(b)(1)(vi) Describe Range or List of Possible 
Sanctions and Remedies
    Section 106.45(b)(1)(vii) Describe Standard of Evidence
    Section 106.45(b)(1)(viii) Procedures and Bases for Appeal
    Section 106.45(b)(1)(ix) Describe Range of Supportive Measures
    Section 106.45(b)(1)(x) Privileged Information
    Written Notice of Allegations
    Section 106.45(b)(2) Written Notice of Allegations
    Retaliation
    Warning Against False Statements
    Investigative Process
    Administrative Burden on Schools
    Elementary and Secondary Schools
    Confidentiality and Anonymity for Complainants
    General Modification Suggestions
    General Clarification Requests
    Dismissal and Consolidation of Formal Complaints
    Section 106.45(b)(3)(i) Mandatory Dismissal of Formal Complaints
    Section 106.45(b)(3)(ii)-(iii) Discretionary Dismissals/Notice 
of Dismissal
    Section 106.45(b)(4) Consolidation of Formal Complaints
    Investigation
    Section 106.45(b)(5)(i) Burdens of Proof and Gathering Evidence 
Rest on the Recipient
    Section 106.45(b)(5)(ii) Equal Opportunity To Present Witnesses 
and Other Inculpatory/Exculpatory Evidence
    Section 106.45(b)(5)(iii) Recipients Must Not Restrict Ability 
of Either Party To Discuss Allegations or Gather and Present 
Relevant Evidence
    Section 106.45(b)(5)(iv) Advisors of Choice
    Supporting Presence and Participation of Advisors
    Fairness Considerations
    Conflicts of Interest, Confidentiality, and Union Issues
    Modification Requests
    Section 106.45(b)(5)(v) Written Notice of Hearings, Meetings, 
and Interviews
    Section 106.45(b)(5)(vi) Inspection and Review of Evidence 
Directly Related to the Allegations, and Directed Question 7
    Section 106.45(b)(5)(vii) An Investigative Report that Fairly 
Summarizes Relevant Evidence
    Hearings
    Cross-Examination Generally
    Support for Cross-Examination
    Retraumatizing Complainants
    Reducing Truth-Seeking
    Demeanor Evaluation Is Unreliable
    Trauma Responses
    Reliance on Rape Myths
    Cross-Examination as a Due Process Requirement
    Discourages Participation
    Financial Inequities
    Changes the Nature of the Grievance Process
    Section 106.45(b)(6)(ii) Should Apply to Postsecondary 
Institutions
    False Accusations Occur Infrequently
    Excluding Cross-Examination Questions
    Section 106.45(b)(6)(i) Postsecondary Institution Recipients 
Must Provide Live Hearing With Cross-Examination
    Self-Representation Versus Cross-Examination Conducted by 
Advisors
    Explain Decision to Exclude Questions
    No Reliance on Statements of a Party Who Does Not Submit to 
Cross-Examination
    Rape Shield Protections
    Separate Rooms for Cross-Examination Facilitated by Technology; 
Directed Question 9
    Discretion To Hold Live Hearings and Control Conduct of Hearings
    Section 106.45(b)(6)(ii) Elementary and Secondary School 
Recipients May Require Hearing and Must Have Opportunity To Submit 
Written Questions
    Determinations Regarding Responsibility
    Section 106.45(b)(7)(i) Single Investigator Model Prohibited
    Benefits of Ending the Single Investigator Model
    Consistency with Case Law
    Alternative Approaches to Ending Single Investigator Model
    Chilling Reporting and Other Harmful Effects
    Respecting the Roles of Title IX Coordinators and Investigators
    Preserving Recipient Autonomy
    Consistency With Federal Law and Employment Practices
    Limiting the Prohibition of the Single Investigator Model
    Requests for Clarification
    Section 106.45(b)(7)(i) Standard of Evidence and Directed 
Question 6
    Mandating a Higher Standard of Evidence
    Supporting Sec.  106.45(b)(7)(i)
    One-Sided Condition on Choice of Evidentiary Standard
    Same Evidentiary Standard in Student and Faculty Cases
    Requiring the Preponderance of the Evidence Standard
    Improving Accuracy of Outcomes
    Safety Concerns
    Consistency of Standards of Evidence Across Recipients
    Standards of Evidence Below the Preponderance of the Evidence
    Questioning the Department's Legal Authority
    Alternative Approaches and Clarification Requests
    Section 106.45(b)(7)(ii) Written Determination Regarding 
Responsibility Must Include Certain Details
    Section 106.45(b)(7)(iii) Timing of When the Decision Becomes 
Final
    [Sec.  106.45(b)(7)(iv) Title IX Coordinator Responsible for 
Effective Implementation of Remedies: Addressed Under Sec.  
106.45(b)(7)(iii)]
    Transcript Notations
    Appeals
    Section 106.45(b)(8) Appeals
    Informal Resolution
    Section 106.45(b)(9) Informal Resolution
    Supporting and Expanding Informal Resolution
    Terminology Clarifications
    Written Notice Implications
    Voluntary Consent
    Safety Concerns Based on Confidentiality
    Consistency With Other Law and Practice
    Training Requirements
    Non-Binding Informal Resolution
    Survivor-Oriented Protections
    Restorative Justice
    Avoiding Formal Process
    Electronic Disclosures
    Expulsion Through Informal Resolution
    Clarification Requests
    Recordkeeping
    Section 106.45(b)(10) Recordkeeping and Directed Question 8
Clarifying Amendments to Existing Regulations

[[Page 30028]]

    Section 106.3(a) Remedial Action
    Section 106.6(d)(1) First Amendment
    Section 106.6(d)(2) Due Process
    Section 106.6(d)(3) Other Constitutional Rights
    Section 106.6(e) FERPA
    Background
    Comments, Discussion, and Changes
    Section 106.6(f) Title VII and Directed Question 3 (Application 
to Employees)
    Section 106.6(g) Exercise of Rights by Parents/Guardians
    Section 106.6(h) Preemptive Effect
    Section 106.8(a) Designation of Coordinator
    Section 106.8(b) Dissemination of Policy
    Removal of 34 CFR 106.9(c)
    List of Publications
    Professional Organizations
    Parents of Elementary and Secondary School Students
    Subjectivity in Publications' Implication of Discrimination
    Judicial Requirements for Sex Discrimination
    Implicit Forms of Sex Discrimination
    Analogous Provisions in Other Laws
    Suggested Modifications
    Section 106.8(c) Adoption and Publication of Grievance 
Procedures
    Section 106.8(d) Application Outside the United States
    Section 106.12 Educational Institutions Controlled by a 
Religious Organization
Directed Questions
    Directed Question 1: Application to Elementary and Secondary 
Schools
    Directed Question 2: Application Based on Type of Recipient or 
Age of Parties
    Directed Question 5: Individuals With Disabilities
Miscellaneous
    Executive Orders and Other Requirements
    Length of Public Comment Period/Requests for Extension
    Conflicts With First Amendment, Constitutional Confirmation, 
International Law
    Clery Act
    Background
    Comments, Discussion, and Changes
    Different Standards for Other Harassment
    Spending Clause
    Litigation Risk
    Effective Date
Retaliation
    Section 106.71 Retaliation Prohibited
Severability
Regulatory Impact Analysis (RIA)
    Costs of Sexual Harassment and Assault
    Overall Net Effects/Characterization of Savings
    Motivation for Rulemaking
    The Department's Model and Baseline Assumptions
    Data Sources
    Other
    Section 106.44(a) Supportive Measures
    Section 106.45(b)(1)(iii) Title IX Coordinators, Investigators, 
and Decision-Makers Must Be Properly Trained
    Section 106.45(b)(5) Investigation of Formal Complaints
    Section 106.45(b)(6) Hearings
    Section 106.45(b)(7) Determinations Regarding Responsibility
    Section 106.45(b)(8) Appeals
    Section 106.45(b)(9) Informal Resolution
Executive Orders 12866, 13563, and 13771
    Regulatory Impact Analysis
    Need for Regulatory Action
    Discussion of Costs, Benefits, and Transfers
    Regulatory Alternatives Considered
    Accounting Statement
Regulatory Flexibility Act
Paperwork Reduction Act of 1995
Accessible Format
Electronic Access to This Document

Effective Date

    On March 13, 2020, the President of the United States declared that 
a national emergency concerning the novel coronavirus disease (COVID-
19) outbreak began on March 1, 2020, as stated in ``Declaring a 
National Emergency Concerning the Novel Coronavirus Disease (COVID-19) 
Outbreak,'' Proclamation 9994 of March 13, 2020, Federal Register Vol. 
85, No. 53 at 15337-38. The Department appreciates that exigent 
circumstances exist as a result of the COVID-19 national emergency, and 
that these exigent circumstances require great attention and care on 
the part of States, local governments, and recipients of Federal 
financial assistance. The Department recognizes the practical necessity 
of allowing recipients of Federal financial assistance time to plan for 
implementing these final regulations, including to the extent 
necessary, time to amend their policies and procedures necessary to 
comply. Taking into account this national emergency, as well as 
consideration of public comments about an effective date as discussed 
in the ``Effective Date'' subsection of the ``Miscellaneous'' section 
of this preamble, the Department has determined that these final 
regulations are effective August 14, 2020.

Executive Summary

Purpose of This Regulatory Action

    Enacted in 1972, Title IX prohibits discrimination on the basis of 
sex in education programs and activities that receive Federal financial 
assistance.\1\ In its 1979 opinion Cannon v. University of Chicago,\2\ 
the Supreme Court stated that the objectives of Title IX are two-fold: 
first, to ``avoid the use of Federal resources to support 
discriminatory practices'' and second, to ``provide individual citizens 
effective protection against those practices.'' \3\ The U.S. Department 
of Education (the ``Department'' or ``we'') may issue rules 
effectuating the dual purposes of Title IX.\4\ We refer herein to Title 
IX's prohibition on sex discrimination and purposes as described by the 
Supreme Court as Title IX's non-discrimination mandate.
---------------------------------------------------------------------------

    \1\ 20 U.S.C. 1681 (``No person in the United States shall, on 
the basis of sex, be excluded from participation in, be denied the 
benefits of, or be subjected to discrimination under any education 
program or activity receiving Federal financial assistance . . . 
.'').
    \2\ 441 U.S. 677 (1979).
    \3\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).
    \4\ 20 U.S.C. 1682 (``Each Federal department and agency which 
is empowered to extend Federal financial assistance to any education 
program or activity . . . is authorized and directed to effectuate 
the provisions of section 1681 of this title with respect to such 
program or activity by issuing rules, regulations, or orders of 
general applicability which shall be consistent with achievement of 
the objectives of the statute authorizing the financial assistance 
in connection with which the action is taken.'').
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    The Department's predecessor, the Department of Health, Education, 
and Welfare (HEW), first promulgated regulations under Title IX, 
effective in 1975.\5\ Those regulations reinforced Title IX's non-
discrimination mandate, addressing prohibition of sex discrimination in 
hiring, admissions, athletics, and other aspects of recipients' 
education programs or activities. The 1975 regulations also required 
recipients to designate an employee to coordinate the recipient's 
efforts to comply with Title IX and to adopt and publish grievance 
procedures providing for prompt and equitable resolution of complaints 
that a recipient is discriminating based on sex.
---------------------------------------------------------------------------

    \5\ 40 FR 24128 (June 4, 1975) (codified at 45 CFR part 86). In 
1980, Congress created the United States Department of Education. 
Public Law 96-88, sec. 201, 93 Stat. 669, 671 (1979); Exec. Order 
No. 12212, 45 FR 29557 (May 2, 1980). By operation of law, all of 
HEW's determinations, rules, and regulations continued in effect and 
all functions of HEW's Office for Civil Rights, with respect to 
educational programs, were transferred to the Secretary of 
Education. 20 U.S.C. 3441(a)(3). The regulations implementing Title 
IX were recodified without substantive change in 34 CFR part 106. 45 
FR 30802, 30955-65 (May 9, 1980).
---------------------------------------------------------------------------

    When HEW issued its regulations in 1975, the Federal courts had not 
yet addressed recipients' Title IX obligations with respect to sexual 
harassment as a form of sex discrimination. In the decades since HEW 
issued the 1975 regulations, the Department has not promulgated any 
Title IX regulations to address sexual harassment as a form of sex 
discrimination. Beginning in 1997, the Department addressed this 
subject through a series of guidance documents, most notably the 2001 
Guidance \6\

[[Page 30029]]

(which revised similar guidance issued in 1997 \7\), the withdrawn 2011 
Dear Colleague Letter,\8\ the withdrawn 2014 Q&A,\9\ and the 2017 
Q&A.\10\ The Department understands that agency guidance is not 
intended to represent legal obligations; however, we also acknowledge 
that in part because the Title IX statute and the Department's 
implementing regulations have (until these final regulations) not 
addressed sexual harassment, recipients and the Department have relied 
on the Department's guidance to set expectations about how recipients 
should respond to sexual harassment and how the Department investigates 
recipients for possible Title IX violations with respect to responding 
to sexual harassment.\11\ These final regulations impose, for the first 
time, legally binding rules on recipients with respect to responding to 
sexual harassment, and the nature of the legal obligations imposed 
under these final regulations is similar in some ways, and different in 
some ways, to the way the Department approached this subject in its 
guidance documents. Those similarities and differences are explained 
throughout this preamble, including in the ``Adoption and Adaption of 
the Supreme Court's Framework to Address Sexual Harassment'' and ``Role 
of Due Process in the Grievance Process'' sections of this preamble.
---------------------------------------------------------------------------

    \6\ U.S. Dep't. of Education, Office for Civil Rights, Revised 
Guidance on Sexual Harassment: Harassment of Students by School 
Employees, Other Students, or Third Parties (Jan. 19, 2001) 
(hereinafter, ``2001 Guidance''), https://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf.
    \7\ U.S. Dep't. of Education, Office for Civil Rights, Sexual 
Harassment Guidance: Harassment of Students By School Employees, 
Other Students, or Third Parties, 62 FR 12034 (Mar. 13, 1997) 
(hereinafter, ``1997 Guidance''), https://www2.ed.gov/about/offices/list/ocr/docs/sexhar01.html#skipnav2.
    \8\ U.S. Dep't. of Education, Office for Civil Rights, Dear 
Colleague Letter: Sexual Violence (April 4, 2011) (hereinafter 
``2011 Dear Colleague Letter''), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf, withdrawn by, U.S. Dep't. of 
Education, Office for Civil Rights, Dear Colleague Letter (Sept. 22, 
2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.
    \9\ U.S. Dep't. of Education, Office for Civil Rights, Questions 
and Answers on Title IX and Sexual Violence (April 29, 2014) 
(hereinafter ``2014 Q&A''), https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf, withdrawn by, U.S. Dep't. of 
Education, Office for Civil Rights, Dear Colleague Letter (Sept. 22, 
2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.
    \10\ U.S. Dep't. of Education, Office for Civil Rights, Q&A on 
Campus Sexual Misconduct (Sept. 22, 2017) (hereinafter, ``2017 
Q&A''), https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf.
    \11\ For example, OCR found numerous institutions in violation 
of Title IX for failing to adopt the preponderance of the evidence 
standard in its investigations of sexual harassment, even though the 
notion that the preponderance of the evidence standard is the only 
standard that might be applied under Title IX is set forth in the 
2011 Dear Colleague Letter and not in the Title IX statute, current 
regulations, or other guidance. E.g., U.S. Dep't. of Education, 
Office for Civil Rights, Letter of Findings to Harvard Law School 7 
(Dec. 10, 2014) (``Harvard Law Letter''), https://www2.ed.gov/documents/press-releases/harvard-law-letter.pdf (``[I]n order for a 
recipient's grievance procedures to be consistent with the Title IX 
evidentiary standard, the recipient must use a preponderance of the 
evidence standard for investigating allegations of sexual 
harassment, including sexual assault/violence.'') OCR in its letter 
of findings against Harvard Law School noted that Harvard's 
procedures provide that ``formal disciplinary sanctions shall be 
imposed only upon clear and convincing evidence.'' Harvard Law 
Letter at 10. OCR found the following: ``This higher standard of 
proof was inconsistent with the preponderance of the evidence 
standard required by Title IX for investigating allegations of 
sexual harassment or violence.'' Id.; see also U.S. Dep't. of 
Education, Office for Civil Rights, Letter of Findings to S. 
Methodist Univ. 4 (Dec. 11, 2014), https://www2.ed.gov/documents/press-releases/southern-methodist-university-letter.pdf; U.S. Dep't. 
of Education, Office for Civil Rights, Letter of Findings to 
Princeton Univ. 6, 11, 18 (Nov. 5, 2014), https://www2.ed.gov/documents/press-releases/princeton-letter.pdf; U.S. Dep't. of 
Education, Office for Civil Rights, Letter of Findings to Tufts 
Univ. 5 (Apr. 28, 2014), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/01102089-a.pdf; U.S. Dep't. of Education, 
Office for Civil Rights, Letter of Findings to Yale Univ. 4-5 (June 
15, 2012), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/01112027-a.pdf. Many recipients changed their Title 
IX policies and procedures to conform to the 2001 Guidance, and then 
to the 2011 Dear Colleague Letter, in part based on OCR enforcement 
actions that found recipients in violation for failing to comport 
with interpretations of Title IX found only in guidance. E.g., Blair 
A. Baker, When Campus Sexual Misconduct Policies Violate Due Process 
Rights, 26 Cornell J. of Law & Pub. Pol'y 533, 542 (2016) (The 2011 
Dear Colleague Letter has ``forced universities to change their 
former policies drastically, with regards to their specific 
procedures as well as the standard of proof, out of fear that the 
Department of Education will pursue their school for a violation of 
Title IX. In sum, the Dear Colleague Letter applied pressure on 
colleges to maintain a victim-friendly environment, which is 
admirable and necessary, but in turn has created a situation that 
can be insensitive to the accused and `tilted in favor of the 
alleged victim.' These situations do not have to be mutually 
exclusive; and there must be a solution in which victim-friendly is 
not synonymous with procedurally adverse to respondents.'') 
(internal citations omitted); Lauren P. Schroeder, Cracks in the 
Ivory Tower: How the Campus Sexual Violence Elimination Act Can 
Protect Students from Sexual Assault, 45 Loy. Univ. Chi. L. J. 1195, 
1202 (2014) (``[Because] Title IX is such a short statute with 
little direction, schools look to specific guidance materials 
provided by the Department of Education to determine the specific 
requirements of Title IX.'').
---------------------------------------------------------------------------

    Prior to these final regulations, the Department's last policy 
statement on Title IX sexual harassment was its withdrawal of the 2011 
Dear Colleague Letter \12\ and concomitant issuance of the 2017 Q&A. 
The 2017 Q&A along with the 2001 Guidance represent the ``status quo'' 
or ``baseline'' against which these final regulations make further 
changes to the Department's enforcement of Title IX obligations.\13\ 
However, the withdrawal of the 2011 Dear Colleague Letter and issuance 
of the 2017 Q&A did not require or result in wholesale changes to the 
set of expectations guiding recipients' responses to sexual harassment 
or to many recipients' Title IX policies and procedures. The Department 
understands from public comments and media reports that many (if not 
most) recipients chose not to change their Title IX policies and 
procedures following the withdrawal of the 2011 Dear Colleague Letter 
and issuance of the 2017 Q&A.\14\ This lack of change by recipients is 
a reasonable response to the following facts: Guidance is not legally 
enforceable; \15\ the 2017 Q&A expressly stated to recipients that the 
2017 Q&A was issued as an interim, non-binding interpretation of Title 
IX sexual harassment responsibilities while the Department conducted 
rulemaking to arrive at legally binding regulations addressing this 
subject; \16\ and both the 2017 Q&A and the withdrawn 2011 Dear 
Colleague Letter relied heavily on the 2001 Guidance.\17\ The 2017 Q&A 
along with the 2001 Guidance, and not the withdrawn 2011 Dear Colleague 
Letter, remain the baseline against which these final regulations make 
further changes to enforcement of Title IX obligations.
---------------------------------------------------------------------------

    \12\ The 2014 Q&A (withdrawn at the same time as the 2011 Dear 
Colleague Letter was withdrawn) expounded on the same approach taken 
by the Department in the withdrawn 2011 Dear Colleague Letter; 
throughout this preamble, references to and discussion of the 2011 
Dear Colleague Letter may be understood to assume that the same or 
similar approach was taken in the 2014 Q&A unless otherwise noted.
    \13\ 2017 Q&A at 1 (``[T]hese questions and answers--along with 
the [2001 Guidance] previously issued by the Office for Civil 
Rights--provide information about how OCR will assess a school's 
compliance with Title IX'' in ``the interim'' while the Department 
``engage[s] in rulemaking on the topic of schools' Title IX 
responsibilities concerning complaints of sexual misconduct, 
including peer-on-peer sexual harassment and sexual violence.'').
    \14\ E.g., Alice B. Lloyd, Colleges Stick With Obama-Era Title 
IX Guidance, Washington Examiner (Aug. 2, 2018) (describing the 2017 
Q&A and withdrawal of the 2011 Dear Colleague Letter as giving 
recipients ``the option to adjust their procedures'' for example 
with respect to which standard of evidence to use in sexual 
harassment cases, and designating a longer investigation time frame 
than the 60 calendar day time frame specified in the 2011 Dear 
Colleague Letter, and describing reasons why most recipients have 
chosen not to change Title IX policies and procedures).
    \15\ Perez v. Mortgage Bankers Ass'n, 575 U.S. 92, 96-98 (2015).
    \16\ 2017 Q&A at 1.
    \17\ Compare 2017 Q&A at 1-4, 6-7 with 2011 Dear Colleague 
Letter at 2, 3-9, 11, 13.
---------------------------------------------------------------------------

    These final regulations largely address the same topics addressed 
in the Department's current and past guidance, including withdrawn 
guidance. Throughout this preamble we explain points of difference, and 
similarity, between these final regulations, and the Department's 
guidance. As such discussion makes clear, some of the Title IX policies 
and procedures that

[[Page 30030]]

recipients have in place due to following the 2001 Guidance and the 
withdrawn 2011 Dear Colleague Letter remain viable policies and 
procedures for recipients to adopt while complying with these final 
regulations. Because these final regulations represent the Department's 
interpretation of a recipient's legally binding obligations, rather 
than best practices, recommendations, or guidance, these final 
regulations focus on precise legal compliance requirements governing 
recipients. In many regards, as discussed throughout this preamble, 
these final regulations leave recipients the flexibility to choose to 
follow best practices and recommendations contained in the Department's 
guidance or, similarly, best practices and recommendations made by non-
Department sources, such as Title IX consultancy firms, legal and 
social science scholars, victim advocacy organizations, civil 
libertarians and due process advocates, and other experts.
    Based on extensive review of the critical issues addressed in this 
rulemaking, the Department has determined that current regulations do 
not provide clear direction for how recipients must respond to 
allegations of sexual harassment because current regulations do not 
reference sexual harassment at all. Similarly, the Department has 
determined that Department guidance is insufficient to provide clear 
direction on this subject because it is not legally enforceable,\18\ 
has created confusion and uncertainty among recipients,\19\ and has not 
adequately advised recipients as to how to uphold Title IX's non-
discrimination mandate while at the same time meeting requirements of 
constitutional due process and fundamental fairness.\20\ Therefore, the 
Department issues these final regulations addressing sexual harassment, 
to better align the Department's Title IX regulations with the text and 
purpose of Title IX, the U.S. Constitution, Supreme Court precedent and 
other case law, and to address the practical challenges facing 
students, employees, and recipients with respect to sexual harassment 
allegations in education programs and activities.
---------------------------------------------------------------------------

    \18\ For further discussion, see the ``Notice and Comment 
Rulemaking Rather Than Guidance'' section of this preamble.
    \19\ Janet Napolitano, ``Only Yes Means Yes'': An Essay on 
University Policies Regarding Sexual Violence and Sexual Assault, 33 
Yale L. & Pol'y Rev. 387, 393-97 (2015) (The Honorable Janet 
Napolitano, the President of the University of California, who is a 
former Governor and Attorney General of Arizona and a former United 
States Secretary of Homeland Security, writing that OCR's guidance 
documents ``left [campuses] with significant uncertainty and 
confusion about how to appropriately comply after they were 
implemented'' and specifically noted that the ``2011 Dear Colleague 
Letter generated significant compliance questions for campuses.''); 
see also Task Force on Fed. Regulation of Higher Education, 
Recalibrating Regulation of Colleges and Universities at 12 (2015) 
(the Task Force on Federal Regulation of Higher Education, appointed 
by a bipartisan group of U.S. Senators, noting: ``[A] guidance 
document meant to clarify uncertainty only led to more confusion. A 
2011 `Dear Colleague' letter on Title IX responsibilities regarding 
sexual harassment contained complex mandates and raised a number of 
questions for institutions. As a result, the Department was 
compelled to issue further guidance clarifying its letter. This took 
the form of a 53-page `Questions and Answers' document [the 
withdrawn 2014 Q&A] that took three years to complete. Still, that 
guidance has raised further questions. Complexity begets more 
complexity.'').
    \20\ See the ``Role of Due Process in the Grievance Process'' 
section of this preamble.
---------------------------------------------------------------------------

    The final regulations define and apply the following terms, as 
discussed in the ``Section 106.30 Definitions'' section of this 
preamble: ``actual knowledge,'' ``complainant,'' ``elementary and 
secondary schools,'' ``formal complaint,'' ``postsecondary 
institution,'' ``respondent,'' ``sexual harassment,'' and ``supportive 
measures''; each term has a specific meaning under these final 
regulations. For clarity of understanding when reading this preamble, 
``complainant'' means any individual who is alleged to be the victim of 
sexual harassment, and ``respondent'' means any individual who is 
reported to be the perpetrator of sexual harassment. A person may be a 
complainant, or a respondent, even where no formal complaint has been 
filed and no grievance process is pending. A ``formal complaint'' is a 
document that initiates a recipient's grievance process, but a formal 
complaint is not required in order for a recipient to have actual 
knowledge of sexual harassment, or allegations of sexual harassment, 
that activates the recipient's legal obligation to respond promptly, 
including by offering supportive measures to a complainant. References 
in this preamble to a complainant, respondent, or other individual with 
respect to exercise of rights under Title IX should be understood to 
include situations in which a parent or guardian has the legal right to 
act on behalf of the individual.\21\
---------------------------------------------------------------------------

    \21\ For further discussion see the ``Section 106.6(g) Exercise 
of Rights by Parents/Guardians'' subsection of the ``Clarifying 
Amendments to Existing Regulations'' section of this preamble.
---------------------------------------------------------------------------

    Alleged victims of sexual harassment often have options to pursue 
legal action through civil litigation or by pressing criminal charges. 
Title IX does not replace civil or criminal justice systems. However, 
the way in which a school, college, or university responds to 
allegations of sexual harassment in an education program or activity 
has serious consequences for the equal educational access of 
complainants and respondents. These final regulations require 
recipients to offer supportive measures to every complainant, 
irrespective of whether the complainant files a formal complaint. 
Recipients may not treat a respondent as responsible for sexual 
harassment without providing due process protections. When a recipient 
determines a respondent to be responsible for sexual harassment after 
following a fair grievance process that gives clear procedural rights 
to both parties, the recipient must provide remedies to the 
complainant.

Summary of the Major Provisions of This Regulatory Action

    These final regulations are premised on setting forth clear legal 
obligations that require recipients to: Promptly respond to individuals 
who are alleged to be victims of sexual harassment by offering 
supportive measures; follow a fair grievance process to resolve sexual 
harassment allegations when a complainant requests an investigation or 
a Title IX Coordinator decides on the recipient's behalf that an 
investigation is necessary; and provide remedies to victims of sexual 
harassment.
    Regarding sexual harassment, the final regulations:
    [ssquf] Define the conduct constituting sexual harassment for Title 
IX purposes;
    [ssquf] Specify the conditions that activate a recipient's 
obligation to respond to allegations of sexual harassment and impose a 
general standard for the sufficiency of a recipient's response, and 
specify requirements that such a response much include, such as 
offering supportive measures in response to a report or formal 
complaint of sexual harassment;
    [ssquf] Specify conditions that require a recipient to initiate a 
grievance process to investigate and adjudicate allegations of sexual 
harassment; and
    [ssquf] Establish procedural due process protections that must be 
incorporated into a recipient's grievance process to ensure a fair and 
reliable factual determination when a recipient investigates and 
adjudicates a formal complaint of sexual harassment.
    Additionally, the final regulations: Affirm that the Department's 
Office for Civil Rights (``OCR'') may require recipients to take 
remedial action for discriminating on the basis of sex or otherwise 
violating the Department's regulations implementing Title IX, 
consistent with 20 U.S.C. 1682; clarify that in responding to any claim 
of sex discrimination under Title IX, recipients are not required to 
deprive an individual of rights guaranteed under

[[Page 30031]]

the U.S. Constitution; acknowledge the intersection of Title IX, Title 
VII, and FERPA, as well as the legal rights of parents or guardians to 
act on behalf of individuals with respect to Title IX rights; update 
the requirements for recipients to designate a Title IX Coordinator, 
disseminate the recipient's non-discrimination policy and the Title IX 
Coordinator's contact information, and notify students, employees, and 
others of the recipient's grievance procedures and grievance process 
for handling reports and complaints of sex discrimination, including 
sexual harassment; eliminate the requirement that religious 
institutions submit a written statement to the Assistant Secretary for 
Civil Rights to qualify for the Title IX religious exemption; and 
expressly prohibit retaliation against individuals for exercising 
rights under Title IX.

Timing, Comments, and Changes

    On November 29, 2018, the Secretary published a notice of proposed 
rulemaking (NPRM) for these parts in the Federal Register.\22\ The 
final regulations contain changes from the NPRM (interchangeably 
referred to in this preamble as the ``NPRM,'' the ``proposed rules,'' 
or the ``proposed regulations''), and these changes are fully explained 
in the ``Analysis of Comments and Changes'' and other sections of this 
preamble.
---------------------------------------------------------------------------

    \22\ 83 FR 61462 (Nov. 29, 2018) (to be codified at 34 CFR pt. 
106).
---------------------------------------------------------------------------

    Throughout this preamble, the Department uses the terms 
``institutions of higher education'' (or ``IHEs'') interchangeably with 
``postsecondary institutions'' (or ``PSEs''). The Department uses the 
phrase ``elementary and secondary schools'' (or ``ESEs'') 
interchangeably with ``local educational agencies'' (or ``LEAs'' or 
``K-12'').
    Throughout this preamble, the Department refers to Title IX of the 
Education Amendments of 1972, as amended, as ``Title IX,'' \23\ to the 
Individuals with Disabilities Education Act as the ``IDEA,'' \24\ to 
Section 504 of the Rehabilitation Act of 1973 as ``Section 504,'' \25\ 
to the Americans with Disabilities Act as the ``ADA,'' \26\ to Title VI 
of the 1964 Civil Rights Act as ``Title VI,'' \27\ to Title VII of the 
1964 Civil Rights Act as ``Title VII,'' \28\ to section 444 of the 
General Education Provisions Act (GEPA), which is commonly referred to 
as the Family Educational Rights and Privacy Act of 1974, as ``FERPA,'' 
\29\ to the Jeanne Clery Disclosure of Campus Security Policy and 
Campus Crime Statistics Act as the ``Clery Act,'' \30\ and to the 
Violence Against Women Reauthorization Act of 2013 as ``VAWA.'' \31\
---------------------------------------------------------------------------

    \23\ 20 U.S.C. 1681 et seq.
    \24\ 20 U.S.C. 1400 et seq.
    \25\ 29 U.S.C. 701 et seq.
    \26\ 42 U.S.C. 12101 et seq.
    \27\ 42 U.S.C. 2000d et seq.
    \28\ 42 U.S.C. 2000e et seq.
    \29\ 20 U.S.C. 1232g.
    \30\ 20 U.S.C. 1092(f).
    \31\ 34 U.S.C. 12291 et seq. (formerly codified at 42 U.S.C. 
13925).
---------------------------------------------------------------------------

    The Department uses the phrase ``Title IX sexual harassment'' to 
refer to the conduct defined in Sec.  106.30 to be sexual harassment as 
well as the conditions described in Sec.  106.44(a) that require a 
recipient to respond to sexual harassment under Title IX and these 
final regulations.\32\ When the Department uses the term ``victim'' (or 
``survivor'') or ``perpetrator'' to discuss these final regulations, 
the Department assumes that a reliable process, namely the grievance 
process described in Sec.  106.45, has resulted in a determination of 
responsibility, meaning the recipient has found a respondent 
responsible for perpetrating sexual harassment against a 
complainant.\33\
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    \32\ Section 106.44(a) requires a recipient with actual 
knowledge of sexual harassment in an education program or activity 
of the recipient against a person in the United States to respond 
promptly in a manner that is not deliberately indifferent, meaning 
not clearly unreasonable in light of the known circumstances.
    \33\ As noted in the ``Executive Summary'' section of this 
preamble, ``respondent,'' ``sexual harassment,'' and ``complainant'' 
are defined terms in Sec.  106.30.
---------------------------------------------------------------------------

    Throughout the preamble, the Department references and summarizes 
statistics, data, research, and studies that commenters submitted. The 
Department's reference to or summarization of these items, however, 
does not speak to their level of accuracy. Whether specifically cited 
or not, we considered all relevant information submitted to us in our 
analysis and promulgation of these final regulations.
    The Department references statistics, data, research, and studies 
throughout this preamble. Such reference to or summarization of these 
items does not indicate that the Department independently has 
determined that the entirety of each item is accurate.
    Many commenters referenced the impact of sexual harassment or the 
proposed rules on individuals who belong to, or identify with, certain 
demographic groups, and used a variety of acronyms and phrases to 
describe such individuals; for example, various commenters referred to 
``LGBT'' or ``LGBTQ+'' and ``persons of color'' or ``racial 
minorities.'' For consistency, throughout this preamble we use the 
acronym ``LGBTQ'' while recognizing that other terminology may be used 
or preferred by certain groups or individuals, and our use of ``LGBTQ'' 
should be understood to include lesbian, gay, bisexual, transgender, 
queer, questioning, asexual, intersex, nonbinary, and other sexual 
orientation or gender identity communities. We use the phrase ``persons 
of color'' to refer to individuals whose race or ethnicity is not white 
or Caucasian. We emphasize that every person, regardless of demographic 
or personal characteristics or identity, is entitled to the same 
protections against sexual harassment under these final regulations, 
and that every individual should be treated with equal dignity and 
respect.
    Finally, several provisions in the NPRM have been renumbered in the 
final regulations.\34\ In response to commenters who asked for 
clarification as to whether the definitions in Sec.  106.30 apply to a 
term in a specific regulatory provision, some of the regulatory 
provisions specifically refer to a term ``as defined in Sec.  106.30'' 
to provide additional clarity.\35\ Notwithstanding these points of 
additional clarification in certain regulatory provisions, the 
definitions in Sec.  106.30 apply to the entirety of 34 CFR part 106. 
For consistency, references in this preamble are to the provisions as 
numbered in the final, and not the proposed, regulations.

[[Page 30032]]

Citations to ``34 CFR 106.__'' in the body of the preamble and the 
footnotes are citations to the Department's current regulations and not 
the final regulations.
---------------------------------------------------------------------------

    \34\ Provisions proposed in the NPRM, as renumbered in these 
final regulations, are:
    Proposed Sec.  106.44(b)(2) eliminated in the final regulations.
    Proposed Sec.  106.44(b)(3) eliminated in the final regulations.
    Proposed Sec.  106.44(b)(4) eliminated in the final regulations.
    Proposed Sec.  106.44(b)(5) in the final regulations as Sec.  
106.44(b)(2).
    Proposed Sec.  106.45(b)(3)(i) in the final regulations as Sec.  
106.45(b)(5)(i).
    Proposed Sec.  106.45(b)(3)(ii) in the final regulations as 
Sec.  106.45(b)(5)(ii).
    Proposed Sec.  106.45(b)(3)(iii) in the final regulations as 
Sec.  106.45(b)(5)(iii).
    Proposed Sec.  106.45(b)(3)(iv) in the final regulations as 
Sec.  106.45(b)(5)(iv).
    Proposed Sec.  106.45(b)(3)(v) in the final regulations as Sec.  
106.45(b)(5)(v).
    Proposed Sec.  106.45(b)(3)(vi) in the final regulations as 
Sec.  106.45(b)(6)(ii).
    Proposed Sec.  106.45(b)(3)(vii) in the final regulations as 
Sec.  106.45(b)(6)(i).
    Proposed Sec.  106.45(b)(3)(viii) in the final regulations as 
Sec.  106.45(b)(5)(vi).
    Proposed Sec.  106.45(b)(3)(ix) in the final regulations as 
Sec.  106.45(b)(5)(vii).
    Proposed Sec.  106.45(b)(4) in the final regulations as Sec.  
106.45(b)(7).
    Proposed Sec.  106.45(b)(5) in the final regulations as Sec.  
106.45(b)(8).
    Proposed Sec.  106.45(b)(6) in the final regulations as Sec.  
106.45(b)(9).
    Proposed Sec.  106.45(b)(7) in the final regulations as Sec.  
106.45(b)(10).
    \35\ E.g., Sec. Sec.  106.8(c), 106.44(a), 106.45(b) 
(introductory sentence), 106.45(b)(1)(i), 106.45(b)(2), 
106.45(b)(3)(i), 106.45(b)(7).
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Adoption and Adaption of the Supreme Court's Framework To Address 
Sexual Harassment

    Seven years after the passage of Title IX, the Supreme Court in 
Cannon v. University of Chicago \36\ held that a judicially implied 
private right of action exists under Title IX. Thirteen years after 
that, in Franklin v. Gwinnett County Public Schools \37\ the Supreme 
Court held that money damages are an available remedy in a private 
lawsuit alleging a school's intentional discrimination in violation of 
Title IX. The Cannon Court explained that Title IX has two primary 
objectives: Avoiding use of Federal funds to support discriminatory 
practices and providing individuals with effective protection against 
discriminatory practices.\38\ Those two purposes are enforced both by 
administrative agencies that disburse Federal financial assistance to 
recipients, and by courts in private litigation. These two avenues of 
enforcement (administrative enforcement by agencies, and judicial 
enforcement by courts) have different features: For instance, 
administrative enforcement places a recipient's Federal funding at 
risk,\39\ while judicial enforcement does not.\40\ But the goal of both 
avenues of enforcement (administrative and judicial) is the same: To 
further the non-discrimination mandate of Title IX.
---------------------------------------------------------------------------

    \36\ 441 U.S. 677, 717 (1979).
    \37\ 503 U.S. 60, 76 (1992).
    \38\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979) 
(``Title IX, like its model Title VI, sought to accomplish two 
related, but nevertheless somewhat different, objectives. First, 
Congress wanted to avoid the use of federal resources to support 
discriminatory practices; second, it wanted to provide individual 
citizens effective protection against those practices.'').
    \39\ 20 U.S.C. 1682.
    \40\ Franklin, 503 U.S. at 76.
---------------------------------------------------------------------------

    In deciding whether to recognize a judicially implied right of 
private action, the Cannon Court considered whether doing so would 
conflict with administrative enforcement of Title IX. The Cannon Court 
concluded that far from conflicting with administrative enforcement, 
judicial enforcement would complement administrative enforcement 
because some violations of Title IX may lend themselves to the 
administrative remedy of terminating Federal financial assistance, 
while other violations may lend themselves to a judicial remedy in 
private litigation.\41\ The Cannon Court recognized that judicial and 
administrative enforcement both help ensure ``the orderly enforcement 
of the statute'' to achieve Title IX's purposes.\42\
---------------------------------------------------------------------------

    \41\ Cannon, 441 U.S. at 704-06.
    \42\ Id. at 705-06 (``The award of individual relief to a 
private litigant who has prosecuted her own suit is not only 
sensible but is also fully consistent with--and in some cases even 
necessary to--the orderly enforcement of the statute.''); see also 
id. at 707 (``the individual remedy will provide effective 
assistance to achieving the statutory purposes.'').
---------------------------------------------------------------------------

    In Franklin, the Supreme Court acknowledged that sexual harassment 
and sexual abuse of a student by a teacher may mean the school itself 
engaged in intentional sex discrimination.\43\ The Franklin Court held 
that money damages is an available remedy in a private lawsuit under 
Title IX, reasoning that even though Title IX is a Spending Clause 
statute, schools have been on notice since enactment of Title IX that 
intentional sex discrimination is prohibited under Title IX.\44\
---------------------------------------------------------------------------

    \43\ Franklin, 503 U.S. at 74-75 (holding intentional 
discrimination by the school is alleged where the school's employee 
sexually harassed a student).
    \44\ Id. at 74 (noting that under Pennhurst State Sch. & Hosp. 
v. Halderman, 451 U.S. 1 (1981), monetary damages may be appropriate 
to remedy an intentional violation of a Spending Clause statute 
because entities subject to the statute are on notice that 
intentional violations of a statute may subject the entity to 
monetary damages); see also Gebser v. Lago Vista Indep. Sch. Dist., 
524 U.S. 274, 281 (1998) (noting that in Franklin, the plaintiff 
alleged that ``school administrators knew about the harassment but 
took no action, even to the point of dissuading her from initiating 
charges'').
---------------------------------------------------------------------------

    In 1998, six years after Franklin, in Gebser v. Lago Vista 
Independent School District \45\ the Supreme Court analyzed the 
conditions under which a school district will be liable for money 
damages for an employee sexually harassing a student. The Gebser Court 
began its analysis by stating that while Franklin acknowledged that a 
school employee sexually harassing a student may constitute the school 
itself committing intentional discrimination on the basis of sex, it 
was necessary to craft standards defining ``the contours of that 
liability.'' \46\ The Gebser Court held that where a school has actual 
knowledge of an employee sexually harassing a student but responds with 
deliberate indifference to such knowledge, the school itself has 
engaged in discrimination, subjecting the school to money damages in a 
private lawsuit under Title IX.\47\ The following year, in 1999, in 
Davis v. Monroe County Board of Education,\48\ the Supreme Court held 
that where sexual harassment is committed by a peer rather than an 
employee, the same standards of actual knowledge and deliberate 
indifference apply.\49\ The Davis Court additionally crafted a 
definition of when sex-based conduct becomes actionable sexual 
harassment, defining the conduct as ``so severe, pervasive, and 
objectively offensive'' that it denies its victims equal access to 
education.\50\
---------------------------------------------------------------------------

    \45\ 524 U.S. 274 (1998).
    \46\ Id. at 281 (``Franklin thereby establishes that a school 
district can be held liable in damages in cases involving a 
teacher's sexual harassment of a student; the decision, however, 
does not purport to define the contours of that liability. We face 
that issue squarely in this case.'').
    \47\ Id. at 290.
    \48\ 526 U.S. 629 (1999).
    \49\ Id. at 650 (holding that ``funding recipients are properly 
held liable in damages only where they are deliberately indifferent 
to sexual harassment, of which they have actual knowledge, that is 
so severe, pervasive, and objectively offensive that it can be said 
to deprive the victims of access to the educational opportunities or 
benefits provided by the school.'').
    \50\ See id.
---------------------------------------------------------------------------

    The Supreme Court's Gebser and Davis cases built upon the Supreme 
Court's previous Title IX decisions in Cannon and Franklin to establish 
a three-part framework describing when a school's response to sexual 
harassment constitutes the school itself committing discrimination. The 
three parts of this framework are: Conditions that must exist to 
trigger a school's response obligations (actionable sexual harassment, 
and the school's actual knowledge) and the deliberate indifference 
liability standard evaluating the sufficiency of the school's response. 
We refer herein to the ``Gebser/Davis framework,'' consisting of a 
definition of actionable sexual harassment, the school's actual 
knowledge, and the school's deliberate indifference.
    The Gebser/Davis framework is the appropriate starting point for 
ensuring that the Department's Title IX regulations recognize the 
conditions under which a school's response to sexual harassment 
violates Title IX. Whether the available remedy is money damages (in 
private litigation) or termination of Federal financial assistance (in 
administrative enforcement), the Department's regulations must 
acknowledge that when a school itself commits sex discrimination, the 
school has violated Title IX.
    In crafting the Gebser/Davis framework, the Supreme Court 
emphasized that because a private lawsuit under Title IX subjects a 
school to money damages, it was important for the Court to set 
standards for a school's liability premised on the school's knowledge 
and deliberate choice to permit sexual harassment, analogous to the way 
that the Title IX statute provides that a school's Federal

[[Page 30033]]

financial assistance is terminated by the Department only after the 
Department first advises the school of a Title IX violation, attempts 
to secure voluntary compliance, and the school refuses to come into 
compliance.\51\ Nothing in Gebser or Davis purports to restrict the 
Gebser/Davis framework only to private lawsuits for money damages.\52\ 
Rather, the Supreme Court justified that framework as appropriate for 
recognizing when a school's response to sexual harassment constitutes 
intentional discrimination by the school, warranting exposure to money 
damages in a private Title IX lawsuit. Neither Gebser nor Davis opined 
as to what the appropriate conditions (e.g., definition of sexual 
harassment, actual knowledge) and liability standard (e.g., deliberate 
indifference) must or should be for the Department's administrative 
enforcement.
---------------------------------------------------------------------------

    \51\ See, e.g., Gebser, 524 U.S. at 288-90 (examining the 
administrative enforcement scheme set forth in the Title IX statute, 
20 U.S.C. 1682, and concluding that ``[b]ecause the express remedial 
scheme under Title IX is predicated upon notice to an `appropriate 
person' and an opportunity to rectify any violation, 20 U.S.C. 1682, 
we conclude, in the absence of further direction from Congress, that 
the implied damages remedy should be fashioned along the same 
lines'' and adopting the actual knowledge and deliberate 
indifference standards).
    \52\ The Department notes that courts also have used the Gebser/
Davis framework in awarding injunctive relief, not only in awarding 
monetary damages. E.g., Fitzgerald v. Barnstable Sch. Dist., 555 
U.S. 246, 255 (2009) (``In addition, this Court has recognized an 
implied private right of action . . . In a suit brought pursuant to 
this private right, both injunctive relief and damages are 
available.'') (internal citations omitted; emphasis added); Hill v. 
Cundiff, 797 F.3d 948, 972-73 (11th Cir. 2015) (reversing summary 
judgment against plaintiff's claims for injunctive relief because a 
jury could find that the alleged conduct was ``severe, pervasive, 
and objectively offensive'' under Davis); B.H. ex rel. Hawk v. 
Easton Area Sch. Dist., 725 F.3d 293, 322-23 (3d Cir. 2013) 
(upholding preliminary injunction against school for banning 
students from wearing bracelets because the school failed to show 
that the ``bracelets would breed an environment of pervasive and 
severe harassment'' under Davis); Haidak v. Univ. of Mass. at 
Amherst, 299 F. Supp. 3d 242, 270 (D. Mass. 2018) (denying 
plaintiff's request for a preliminary injunction because he failed 
to show that the school was deliberately indifferent to an 
environment of severe and pervasive discriminatory conduct under 
Davis), aff'd in part, vacated in part, remanded by Haidak v. Univ. 
of Mass.-Amherst, 933 F.3d 56 (1st Cir. 2019).
---------------------------------------------------------------------------

    The Department has regulatory authority to select conditions and a 
liability standard different from those used in the Gebser/Davis 
framework, because the Department has authority to issue rules that 
require recipients to take administrative actions to effectuate Title 
IX's non-discrimination mandate. For example, longstanding Department 
regulations require recipients to designate an employee to coordinate 
the recipient's efforts to comply with Title IX,\53\ to file an 
assurance of compliance with the Department,\54\ and to adopt and 
publish grievance procedures for handling complaints of sex 
discrimination.\55\ Failure to do any of the foregoing does not, by 
itself, mean the school has committed sex discrimination, but the 
Department lawfully may enforce such administrative requirements 
because the Department has authority to issue and enforce rules that 
effectuate the purpose of Title IX.\56\
---------------------------------------------------------------------------

    \53\ 34 CFR 106.8(a).
    \54\ 34 CFR 106.4(a).
    \55\ 34 CFR 106.8(b).
    \56\ See, e.g., Gebser, 524 U.S. at 292 (``And in any event, the 
failure to promulgate a grievance procedure does not itself 
constitute `discrimination' under Title IX. Of course, the 
Department of Education could enforce the requirement 
administratively: Agencies generally have authority to promulgate 
and enforce requirements that effectuate the statute's non-
discrimination mandate, 20 U.S.C. 1682, even if those requirements 
do not purport to represent a definition of discrimination under the 
statute. E.g., Grove City [v. Bell, 465 U.S. 555, 574-575 (1984), 
superseded by statute on a different point by the Civil Rights 
Restoration Act of 1987] (permitting administrative enforcement of 
regulation requiring college to execute an `Assurance of Compliance' 
with Title IX). We have never held, however, that the implied 
private right of action under Title IX allows recovery in damages 
for violation of those sorts of administrative requirements.'').
---------------------------------------------------------------------------

    These final regulations begin with the Gebser/Davis framework, so 
that when a school itself commits sex discrimination by subjecting its 
students or employees to sexual harassment, that form of discrimination 
is clearly prohibited by these final regulations. The Department adopts 
the Gebser/Davis framework in these final regulations by defining 
``sexual harassment,'' defining ``actual knowledge,'' and describing 
``deliberate indifference,'' consistent with Gebser and Davis.
    The Department does not simply codify the Gebser/Davis framework. 
Under the Department's statutory authority to issue rules to effectuate 
the purpose of Title IX, the Department reasonably expands the 
definitions of sexual harassment and actual knowledge, and the 
deliberate indifference standard, to tailor the Gebser/Davis framework 
to the administrative enforcement context.
    The Department believes that adapting the Gebser/Davis framework is 
appropriate for administrative enforcement, because the adapted 
conditions (definitions of sexual harassment and actual knowledge) and 
liability standard (deliberate indifference) reflected in these final 
regulations promote important policy objectives with respect to a 
recipient's legal obligations to respond to sexual harassment. As 
explained in more detail in the ``Actual Knowledge'' and ``Sexual 
Harassment'' subsections of the ``Section 106.30 Definitions'' section 
of this preamble, and the ``Section 106.44(a) Deliberate Indifference 
Standard'' subsection of the ``Section 106.44(a) Recipient's Response 
to Sexual Harassment, Generally'' section of this preamble, the 
Department believes that:
     Including the Davis definition of sexual harassment for 
Title IX purposes as ``severe, pervasive, and objectively offensive'' 
conduct that effectively denies a person equal educational access helps 
ensure that Title IX is enforced consistent with the First Amendment. 
At the same time, the Department adapts the Davis definition of sexual 
harassment in these final regulations by also expressly including quid 
pro quo harassment and Clery Act/VAWA sex offenses. This expanded 
definition of sexual harassment \57\ ensures that quid pro quo 
harassment and Clery Act/VAWA sex offenses trigger a recipient's 
response obligations, without needing to be evaluated for severity, 
pervasiveness, offensiveness, or denial of equal access, because 
prohibiting such conduct presents no First Amendment concerns and such 
serious misconduct causes denial of equal educational access;
---------------------------------------------------------------------------

    \57\ The final regulations define sexual harassment in Sec.  
106.30 as follows: Sexual harassment means conduct on the basis of 
sex that satisfies one or more of the following:
    (1) An employee of the recipient conditioning the provision of 
an aid, benefit, or service of the recipient on an individual's 
participation in unwelcome sexual conduct;
    (2) Unwelcome conduct determined by a reasonable person to be so 
severe, pervasive, and objectively offensive that it effectively 
denies a person equal access to the recipient's education program or 
activity; or
    (3) ``Sexual assault'' as defined in 20 U.S.C. 1092(f)(6)(A)(v), 
``dating violence'' as defined in 34 U.S.C. 12291(a)(10), ``domestic 
violence'' as defined in 34 U.S.C. 12291(a)(8), or ``stalking'' as 
defined in 34 U.S.C. 12291(a)(30).
---------------------------------------------------------------------------

     Using the Gebser/Davis concept of actual knowledge, 
adapted in these final regulations by including notice to any 
recipient's Title IX Coordinator,\58\ or notice to any elementary and 
secondary school employee,\59\ furthers the Department's policy goals 
of ensuring that elementary and secondary schools

[[Page 30034]]

respond whenever a school employee knows of sexual harassment or 
allegations of sexual harassment, while respecting the autonomy of 
students at postsecondary institutions to decide whether or when to 
report sexual harassment; and
---------------------------------------------------------------------------

    \58\ As discussed throughout this preamble, the final 
regulations ensure that every recipient gives its educational 
community clear, accessible options for reporting sexual harassment 
to the recipient's Title IX Coordinator. See, e.g., Sec.  106.8.
    \59\ The final regulations define ``actual knowledge'' in Sec.  
106.30 as notice of sexual harassment or allegations of sexual 
harassment to a recipient's Title IX Coordinator or any official of 
the recipient who has authority to institute corrective measures on 
behalf of the recipient, or to any employee of an elementary or 
secondary school.
---------------------------------------------------------------------------

     Using the deliberate indifference standard, adapted in 
these final regulations by specifying actions that every recipient must 
take in response to every instance of actual knowledge of sexual 
harassment,\60\ ensures that recipients respond to sexual harassment by 
offering supportive measures designed to restore or preserve a 
complainant's equal educational access without treating a respondent as 
responsible until after a fair grievance process. The deliberate 
indifference standard achieves these aims without unnecessarily second 
guessing a recipient's decisions with respect to appropriate supportive 
measures, disciplinary sanctions, and remedies when the recipient 
responds to sexual harassment incidents, which inherently present fact-
specific circumstances.\61\
---------------------------------------------------------------------------

    \60\ The final regulations require recipients to respond 
promptly by: offering supportive measures to every complainant 
(i.e., an individual who is alleged to be the victim of sexual 
harassment); refraining from imposing disciplinary sanctions on a 
respondent without first following a prescribed grievance process; 
investigating every formal complaint filed by a complainant or 
signed by a Title IX Coordinator; and effectively implementing 
remedies designed to restore or preserve a complainant's equal 
educational access any time a respondent is found responsible for 
sexual harassment. Sec.  106.44(a); Sec.  106.44(b)(1); Sec.  
106.45(b)(3)(i); Sec.  106.45(b)(1)(i); Sec.  106.45(b)(7)(iv).
    \61\ As explained below in the ``Deliberate Indifference'' 
subsection of the preamble, the final regulations apply a deliberate 
indifference standard for evaluating a recipient's decisions with 
respect to selection of supportive measures and remedies, and these 
final regulations do not mandate or scrutinize a recipient's 
decisions with respect to disciplinary sanctions imposed on a 
respondent after a respondent has been found responsible for sexual 
harassment.

The Department chooses to build these final regulations upon the 
foundation established by the Supreme Court, to provide consistency 
between the rubrics for judicial and administrative enforcement of 
Title IX, while adapting that foundation for the administrative 
process, in a manner that achieves important policy objectives unique 
to sexual harassment in education programs or activities.

Differences Between Standards in Department Guidance and These Final 
Regulations

    The Department's guidance on schools' responses to sexual 
harassment recommended conditions triggering a school's response 
obligations, and a liability standard, that differed in significant 
ways from the Gebser/Davis framework and from the approach taken in 
these final regulations. With respect to the three-part Gebser/Davis 
framework (i.e., a definition of sexual harassment, actual knowledge 
condition, and deliberate indifference standard), the Department's 
guidance recommended a broader definition of actionable sexual 
harassment, a constructive notice condition, and a standard closer to 
strict liability than to deliberate indifference.
    The Department's 1997 Guidance used a definition of sexual 
harassment described as ``sexually harassing conduct (which can include 
unwelcome sexual advances, requests for sexual favors, and other 
verbal, nonverbal, or physical conduct of a sexual nature) by an 
employee, by another student, or by a third party'' and indicated that 
a school's response was necessary whenever sexual harassment became 
``sufficiently severe, persistent, or pervasive to limit a student's 
ability to participate in or benefit from an education program or 
activity, or to create a hostile or abusive educational environment.'' 
\62\ The 1997 Guidance recommended that schools take action on the 
basis of constructive notice rather than actual knowledge.\63\ Instead 
of a deliberate indifference standard, the 1997 Guidance indicated that 
the Department would find a school in violation where the school's 
response failed to stop the harassment and prevent its recurrence.\64\
---------------------------------------------------------------------------

    \62\ 1997 Guidance (``Sexually harassing conduct (which can 
include unwelcome sexual advances, requests for sexual favors, and 
other verbal, nonverbal, or physical conduct of a sexual nature) by 
an employee, by another student, or by a third party that is 
sufficiently severe, persistent, or pervasive to limit a student's 
ability to participate in or benefit from an education program or 
activity, or to create a hostile or abusive educational 
environment.'').
    \63\ 1997 Guidance (``[A] school will always be liable for even 
one instance of quid pro quo harassment by a school employee . . . 
whether or not it knew, should have known, or approved of the 
harassment at issue.''); id. (``a school will be liable under Title 
IX if its students sexually harass other students if . . . the 
school knows or should have known of the harassment'').
    \64\ 1997 Guidance (``Once a school has notice of possible 
sexual harassment of students--whether carried out by employees, 
other students, or third parties--it should take immediate and 
appropriate steps to investigate or otherwise determine what 
occurred and take steps reasonably calculated to end any harassment, 
eliminate a hostile environment if one has been created, and prevent 
harassment from occurring again.'').
---------------------------------------------------------------------------

    The 2001 Guidance acknowledged that in the time period between the 
Department issuing the 1997 Guidance and the 2001 Guidance, the Supreme 
Court's Gebser and Davis cases addressed the subject of school 
responses to sexual harassment under Title IX.\65\ The 2001 Guidance 
reasoned that because those Supreme Court cases were decided in the 
context of private lawsuits for money damages under Title IX, the 
Department was not obligated to adopt the same standards for 
administrative enforcement.\66\ The 2001 Guidance noted that the Gebser 
and Davis decisions analogized to Title IX's statutory administrative 
enforcement scheme, which provides that a school receives notice and an 
opportunity to correct a violation before an agency terminates Federal 
financial assistance.\67\ The 2001 Guidance reasoned that because a 
school always receives notice of a violation and opportunity to 
voluntarily correct a violation before the Department may terminate 
Federal financial assistance, the Department was not required to use 
the actual knowledge condition or deliberate indifference standard, and 
the 2001 Guidance continued the 1997 Guidance's approach to 
constructive notice and strict liability.\68\
---------------------------------------------------------------------------

    \65\ 2001 Guidance at iii-iv.
    \66\ Id. at ii, iv.
    \67\ Id. at iii-iv (``The Gebser Court recognized and contrasted 
lawsuits for money damages with the incremental nature of 
administrative enforcement of Title IX. In Gebser, the Court was 
concerned with the possibility of a money damages award against a 
school for harassment about which it had not known. In contrast, the 
process of administrative enforcement requires enforcement agencies 
such as OCR to make schools aware of potential Title IX violations 
and to seek voluntary corrective action before pursuing fund 
termination or other enforcement mechanisms.'').
    \68\ Id. at 10 (a ``school has notice of harassment if a 
responsible school employee actually knew or, in the exercise of 
reasonable care, should have known about the harassment.'') 
(``Schools are responsible for taking prompt and effective action to 
stop the harassment and prevent its recurrence'' and the recipient 
is ``also responsible for remedying any effects of the harassment on 
the victim . . . .'').
---------------------------------------------------------------------------

    The 2001 Guidance nonetheless asserted that consistency between the 
judicial and administrative rubrics was desirable, and with respect to 
a definition of sexual harassment, the 2001 Guidance stated that a 
multiplicity of definitions (i.e., one definition for private lawsuits 
and another for administrative enforcement) would not serve the purpose 
of consistency between judicial and administrative enforcement.\69\ The 
2001 Guidance asserted that the Davis definition of actionable sexual 
harassment used different words (i.e., severe, pervasive, and 
objectively offensive) but was consistent with the definition of sexual 
harassment used in the 1997 Guidance (i.e., severe, persistent, or 
pervasive).\70\

[[Page 30035]]

The 2001 Guidance proceeded to describe sexual harassment as 
``unwelcome conduct of a sexual nature'' \71\ that is ``severe, 
persistent, or pervasive'' \72\ and asserted that this definition was 
consistent with the Davis definition because both definitions ``are 
contextual descriptions intended to capture the same concept--that 
under Title IX, the conduct must be sufficiently serious that it 
adversely affects a student's ability to participate in or benefit from 
the school's program.'' \73\
---------------------------------------------------------------------------

    \69\ Id. at vi (``schools benefit from consistency and 
simplicity in understanding what is sexual harassment for which the 
school must take responsive action. A multiplicity of definitions 
would not serve this purpose.'').
    \70\ Id. at v-vi.
    \71\ 2001 Guidance at 2. The 2001 Guidance, like the 1997 
Guidance, emphasized that sexual harassment can include unwelcome 
sexual advances, requests for sexual favors, and other verbal, 
nonverbal, or physical conduct of a sexual nature, by an employee, 
student, or third party. Similarly, ``sexual harassment'' defined in 
these final regulations in Sec.  106.30, includes the foregoing 
conduct of a sexual nature, as well as other unwelcome conduct ``on 
the basis of sex'' even if the conduct is devoid of sexual content.
    \72\ 2001 Guidance at vi.
    \73\ Id.
---------------------------------------------------------------------------

    The withdrawn 2011 Dear Colleague Letter continued to define sexual 
harassment as ``unwelcome conduct of a sexual nature'' and added that 
``[s]exual violence is a form of sexual harassment prohibited by Title 
IX'' without defining sexual violence.\74\ The withdrawn 2011 Dear 
Colleague Letter continued the approach from the 2001 Guidance that 
sexual harassment must be ``sufficiently serious that it interferes 
with or limits a student's ability to participate in or benefit from 
the school's program'' but omitted the description of actionable sexual 
harassment as ``severe, persistent, or pervasive'' that had been 
utilized in the 1997 Guidance and the 2001 Guidance.\75\ The withdrawn 
2011 Dear Colleague Letter continued to recommend that schools act upon 
constructive notice (rather than actual knowledge) and to hold schools 
accountable under a strict liability standard rather than deliberate 
indifference.\76\
---------------------------------------------------------------------------

    \74\ 2011 Dear Colleague Letter at 3.
    \75\ 2011 Dear Colleague Letter at 3 (``As explained in OCR's 
2001 Guidance, when a student sexually harasses another student, the 
harassing conduct creates a hostile environment if the conduct is 
sufficiently serious that it interferes with or limits a student's 
ability to participate in or benefit from the school's program. The 
more severe the conduct, the less need there is to show a repetitive 
series of incidents to prove a hostile environment, particularly if 
the harassment is physical. Indeed, a single or isolated incident of 
sexual harassment may create a hostile environment if the incident 
is sufficiently severe. For instance, a single instance of rape is 
sufficiently severe to create a hostile environment.'').
    \76\ 2011 Dear Colleague Letter at 4 (``If a school knows or 
reasonably should know about student-on-student harassment that 
creates a hostile environment, Title IX requires the school to take 
immediate action to eliminate the harassment, prevent its 
recurrence, and address its effects.''); id. at 4 fn. 12 (``This is 
the standard for administrative enforcement of Title IX and in court 
cases where plaintiffs are seeking injunctive relief. . . . The 
standard in private lawsuits for monetary damages is actual 
knowledge and deliberate indifference. See Davis v. Monroe Cnty. Bd. 
of Educ., 526 U.S. 629, 643, 648 (1999).'').
---------------------------------------------------------------------------

    The 2017 Q&A used the definition of actionable sexual harassment as 
described in the 2001 Guidance, stating that ``when sexual misconduct 
is so severe, persistent, or pervasive as to deny or limit a student's 
ability to participate in or benefit from the school's programs or 
activities, a hostile environment exists and the school must respond.'' 
\77\ The 2017 Q&A relied on the 2001 Guidance's condition of 
constructive notice rather than actual knowledge.\78\ Although the 2017 
Q&A did not expressly address the deliberate indifference versus strict 
liability standard, it directed recipients to the 2001 Guidance for 
topics not addressed in the 2017 Q&A,\79\ including what it means for a 
school to ``respond appropriately'' when the school ``knows or 
reasonably should know'' \80\ of a sexual misconduct incident, thereby 
retaining the 2001 Guidance's reliance on constructive notice and 
strict liability.
---------------------------------------------------------------------------

    \77\ 2017 Q&A at 1.
    \78\ 2017 Q&A at 2 (citing to the 2001 Guidance for the 
proposition that ``where the school knows or reasonably should know 
of an incident of sexual misconduct, the school must take steps to 
understand what occurred and to respond appropriately'') (emphasis 
added).
    \79\ See 2017 Q&A at 1 (``The Department of Education intends to 
engage in rulemaking on the topic of schools' Title IX 
responsibilities concerning complaints of sexual misconduct, 
including peer-on-peer sexual harassment and sexual violence. The 
Department will solicit input from stakeholders and the public 
during that rulemaking process. In the interim, these questions and 
answers--along with the [2001] Revised Sexual Harassment Guidance 
previously issued by the Office for Civil Rights--provide 
information about how OCR will assess a school's compliance with 
Title IX.'') (emphasis added).
    \80\ Id.
---------------------------------------------------------------------------

    To the extent that the Department intended for schools to 
understand the 1997 Guidance, the 2001 Guidance, the withdrawn 2011 
Dear Colleague Letter, or the 2017 Q&A as descriptions of a school's 
legal obligations under Title IX, those guidance documents directed 
schools to apply standards that failed to adequately address the unique 
challenges presented by sexual harassment incidents in a school's 
education program or activity.
    The Department believes that sexual harassment affects ``the equal 
access to education that Title IX is designed to protect'' \81\ and 
this problem warrants legally binding regulations addressing sexual 
harassment as a form of sex discrimination under Title IX, instead of 
mere guidance documents which are not binding and do not have the force 
and effect of law.\82\ The starting place for describing such legal 
obligations is adoption of the Gebser/Davis framework because that 
framework describes when sexual harassment constitutes a school itself 
discriminating on the basis of sex in violation of Title IX. At the 
same time, the Department adapts the three-part Gebser/Davis framework 
to further the purposes of Title IX in the context of administrative 
enforcement, holding schools responsible for taking more actions than 
what the Gebser/Davis framework requires.
---------------------------------------------------------------------------

    \81\ Davis, 526 U.S. at 652.
    \82\ Perez v. Mortgage Bankers' Ass'n, 575 U.S. 92, 97 (2015).
---------------------------------------------------------------------------

    The Department's adaptions of the three-part Gebser/Davis framework 
achieve important policy objectives that arise in the context of a 
school's response to reports, allegations, or incidents of sexual 
harassment in a school's education program or activity, including 
respect for freedom of speech and academic freedom,\83\ respect for 
complainants' autonomy,\84\ protection of complainants' equal 
educational access while respecting the decisions of State and local 
educators to determine appropriate supportive measures, remedies, and 
disciplinary sanctions,\85\ consistency with constitutional due process 
and fundamental fairness, and clear legal obligations that enable 
robust administrative enforcement of Title IX violations.\86\ The 
adaptions of the Gebser/Davis framework in these final regulations do 
not codify the Department's guidance yet provide recipients with 
flexibility, subject to the legal requirements in these final 
regulations, to respond to a greater range of misconduct, operate on a 
condition of constructive notice, or respond under a strict liability 
standard, if the recipient chooses to adopt those guidance-based 
standards for itself, or if the recipient is

[[Page 30036]]

required under State or other laws to adopt those standards.
---------------------------------------------------------------------------

    \83\ For further discussion see the ``Sexual Harassment'' 
subsection of the ``Section 106.30 Definitions'' section of this 
preamble.
    \84\ For discussion of the way that an actual knowledge 
standard, and a requirement for recipients to investigate upon 
receipt of a formal complaint, respect complainant's autonomy, see 
the ``Actual Knowledge'' and ``Formal Complaint'' subsections of the 
``Section 106.30 Definitions'' section of this preamble.
    \85\ For further discussion, see the ``Deliberate Indifference'' 
subsection of this ``Adoption and Adaption of the Supreme Court's 
Framework to Address Sexual Harassment'' section and the ``Section 
106.44(a) Deliberate Indifference Standard'' subsection of the 
``Section 106.44 Recipient's Response to Sexual Harassment, 
Generally'' section of this preamble.
    \86\ For further discussion, see the ``Role of Due Process in 
the Grievance Process'' section of this preamble.
---------------------------------------------------------------------------

Definition of Sexual Harassment

    Importantly, the final regulations continue the 1997 Guidance and 
2001 Guidance approach of including as sexual harassment unwelcome 
sexual advances, requests for sexual favors, and other verbal, 
nonverbal, or physical conduct of a sexual nature by an employee, by 
another student, or by a third party.\87\ Section 106.30 provides that 
``sexual harassment'' is conduct ``on the basis of sex'' including 
``unwelcome conduct.'' This definition therefore includes unwelcome 
conduct of a sexual nature, or other unwelcome conduct on the basis of 
sex, consistent with Department guidance. Equally as important is 
recognizing that these final regulations continue the withdrawn 2011 
Dear Colleague Letter's express acknowledgment that sexual violence is 
a type of sexual harassment; the difference is that these final 
regulations expressly define sex-based violence, by reference to the 
Clery Act and VAWA.
---------------------------------------------------------------------------

    \87\ 2001 Guidance at 2; 1997 Guidance.
---------------------------------------------------------------------------

    The way in which these final regulations differ from guidance in 
defining actionable sexual harassment is by returning to the 2001 
Guidance's premise that a consistent definition of sexual harassment 
used in both judicial and administrative enforcement is appropriate. 
Despite the 2001 Guidance's assertion that using ``different words'' 
from the Davis definition of actionable sexual harassment did not 
result in inconsistent definitions for use in judicial and 
administrative enforcement, the Department has reconsidered that 
assertion because that assertion did not bear out over time.\88\ These 
final regulations thus use (as one of three categories of conduct that 
constitutes sexual harassment) the Davis Court's phrasing verbatim: 
unwelcome conduct that a reasonable person would determine is ``so 
severe, pervasive, and objectively offensive'' that it effectively 
denies a person equal access to education.\89\ The Department chooses 
to return to the premise expressed in the 2001 Guidance: The Department 
has an interest in providing recipients with ``consistency and 
simplicity in understanding what is sexual harassment for which the 
school must take responsive action. A multiplicity of definitions would 
not serve this purpose.'' \90\
---------------------------------------------------------------------------

    \88\ The ``Sexual Harassment'' subsection of the ``Section 
106.30 Definitions'' section of this preamble discusses in greater 
detail how the Davis definition of sexual harassment as ``severe, 
pervasive, and objectively offensive'' comports with First Amendment 
protections, and the way in which a broader definition, such as 
severe, persistent, or pervasive (as used in the 1997 Guidance and 
2001 Guidance), has led to infringement of rights of free speech and 
academic freedom of students and faculty.
    \89\ Davis, 526 U.S. at 650 (``We thus conclude that funding 
recipients are properly held liable in damages only where they are 
deliberately indifferent to sexual harassment, of which they have 
actual knowledge, that is so severe, pervasive, and objectively 
offensive that it can be said to deprive the victims of access to 
the educational opportunities or benefits provided by the 
school.''); Sec.  106.30 (defining ``sexual harassment'' to include 
conduct ``on the basis of sex'' including ``unwelcome conduct'' that 
a reasonable person would determine to be so severe, pervasive, and 
objectively offensive that it effectively denies a person equal 
access to the recipient's education program or activity).
    \90\ 2001 Guidance at vi.
---------------------------------------------------------------------------

    In addition to using the Davis definition verbatim (i.e., conduct 
that is so severe, pervasive, and objectively offensive that it 
effectively denies a person equal access to education), the proposed 
regulations defined ``sexual harassment'' to also include sexual 
assault as defined in the Clery Act. In these final regulations, the 
Department retains reference to sexual assault under the Clery Act, and 
additionally incorporates the definitions of dating violence, domestic 
violence, and stalking in the Clery Act as amended by VAWA.\91\ 
Incorporating these four Clery Act/VAWA offenses clarifies that sexual 
harassment includes a single instance of sexual assault, dating 
violence, domestic violence, or stalking. Such incorporation is 
consistent with the Supreme Court's observation in Davis that a single 
instance of sufficiently severe harassment on the basis of sex may have 
the systemic effect of denying the victim equal access to an education 
program or activity.\92\ However, the Department's inclusion of sexual 
assault, dating violence, domestic violence, and stalking in the Sec.  
106.30 definition of sexual harassment, without requiring those sex 
offenses to meet the Davis elements of severity, pervasiveness, and 
objective offensiveness, appropriately guards against, for instance, 
some sexual assaults or incidents of dating violence or domestic 
violence being covered under Title IX while other sexual assaults or 
incidents of dating violence or domestic violence are deemed not to be 
``pervasive'' enough to meet the Davis standard. Similarly, this 
approach guards against a pattern of sex-based stalking being deemed 
``not severe'' even though the pattern of behavior is ``pervasive.'' 
Such incorporation also provides consistency and clarity with respect 
to the intersection among Title IX, the Clery Act, and VAWA.\93\
---------------------------------------------------------------------------

    \91\ Section 106.30 (defining ``sexual harassment'' to include 
sexual assault, dating violence, domestic violence or stalking as 
defined in the Clery Act and VAWA statutes).
    \92\ See Davis, 526 U.S. at 652-53 (noting that with respect to 
``severe, gender-based mistreatment'' even ``a single instance of 
sufficiently severe one-on-one peer harassment could be said to'' 
have ``the systemic effect of denying the victim equal access to an 
educational program or activity.''). Although the withdrawn 2011 
Dear Colleague Letter expressly disclaimed reliance on Davis, that 
guidance also stated that ``The more severe the conduct, the less 
need there is to show a repetitive series of incidents to prove a 
hostile environment, particularly if the harassment is physical. 
Indeed, a single or isolated incident of sexual harassment may 
create a hostile environment if the incident is sufficiently severe. 
For instance, a single instance of rape is sufficiently severe to 
create a hostile environment.'' 2011 Dear Colleague Letter at 3.
    \93\ Although elementary and secondary schools are not subject 
to the Clery Act, elementary and secondary school recipients must 
look to the definitions of sexual assault, dating violence, domestic 
violence, and stalking as defined in the Clery Act and VAWA in order 
to address those forms of sexual harassment under Title IX. These 
final regulations do not, however, alter the regulations implemented 
under the Clery Act or an institution of higher education's 
obligations, if any, under regulations implementing the Clery Act.
---------------------------------------------------------------------------

    The final regulations retain the proposed rules' definition of 
``quid pro quo'' harassment in the definition of sexual harassment.\94\ 
The Department recognized quid pro quo sexual harassment in its 1997 
Guidance and 2001 Guidance, and cited to court cases that recognized 
quid pro quo sexual harassment under Title IX.\95\
---------------------------------------------------------------------------

    \94\ Section 106.30 defines ``sexual harassment'' to include: An 
employee of the recipient conditioning the provision of an aid, 
benefit, or service of the recipient on the individual's 
participation in unwelcome sexual conduct. This type of harassment 
is commonly referred to as quid pro quo sexual harassment.
    \95\ See, e.g., 2001 Guidance at 5, 10 (citing Alexander v. Yale 
University, 459 F. Supp. 1, 4 (D. Conn. 1977), aff'd, 631 F.2d 178 
(2d Cir. 1980) (stating that a claim ``that academic advancement was 
conditioned upon submission to sexual demands constitutes [a claim 
of] sex discrimination in education . . .'')); see also Crandell v. 
New York Coll., Osteopathic Med., 87 F. Supp. 2d 304, 318 (S.D.N.Y. 
2000) (finding that allegations that a supervisory physician 
demanded that a student physician spend time with him and have lunch 
with him or receive a poor evaluation, in light of the totality of 
his alleged sexual comments and other inappropriate behavior, 
constituted a claim of quid pro quo harassment); Kadiki v. Va. 
Commonwealth Univ., 892 F. Supp. 746, 752 (E.D. Va. 1995). The 2011 
Dear Colleague Letter focused on peer harassment but expressly 
referred to the 2001 Guidance for the appropriate approach to sexual 
harassment by employees (i.e., quid pro quo harassment). 2011 Dear 
Colleague Letter at 2, fn. 8 (``This letter focuses on peer sexual 
harassment and violence. Schools' obligations and the appropriate 
response to sexual harassment and violence committed by employees 
may be different from those described in this letter. Recipients 
should refer to the 2001 Guidance for further information about 
employee harassment of students.''); see also 2017 Q&A at 1 (not 
referencing quid pro quo sexual harassment, but directing recipients 
to look to the 2001 Guidance regarding matters not specifically 
addressed in the 2017 Q&A). Quid pro quo sexual harassment also is 
recognized under Title VII. E.g., Burlington Indus., Inc. v. 
Ellerth, 524 U.S. 742, 752-53 (1998).

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

[[Page 30037]]

    The Honorable Janet Napolitano, the President of the University of 
California, who is a former Governor and Attorney General of Arizona 
and a former United States Secretary of Homeland Security, observed 
that under the Department's guidance recipients had to grapple with ``a 
broad continuum of conduct, from offensive statements to gang rape'' 
\96\ and the Department's guidance, especially after the 2001 Guidance 
was supplemented and altered by the withdrawn 2011 Dear Colleague 
Letter, caused recipients ``uncertainty and confusion about how to 
appropriately comply.'' \97\ By utilizing precise definitions of 
conduct that constitutes sexual harassment, the Department aims to 
reduce uncertainty and confusion for recipients, students, and 
employees, while ensuring conduct that jeopardizes equal educational 
access remains conduct to which a recipient must respond under Title 
IX.
---------------------------------------------------------------------------

    \96\ Janet Napolitano, ``Only Yes Means Yes'': An Essay on 
University Policies Regarding Sexual Violence and Sexual Assault, 33 
Yale L. & Pol'y Rev. 387, 388 (2015).
    \97\ Id.
---------------------------------------------------------------------------

    Some commenters requested that the Department more closely align 
its definition of actionable sexual harassment with the definition that 
the Supreme Court uses in the context of discrimination because of sex 
in the workplace under Title VII. Specifically, commenters urged the 
Department to use a definition of sexual harassment that is ``severe or 
pervasive'' because that definition is used under Title VII \98\ and 
the 1997 Guidance and 2001 Guidance relied on Title VII case law in 
using the definition of sexual harassment that is ``severe, persistent, 
or pervasive.'' \99\ However, in Davis, a case concerning sexual 
harassment of a fifth-grade student by another student, the Supreme 
Court did not adopt the Title VII definition of sexual harassment for 
use under Title IX, defining actionable sexual harassment for Title IX 
purposes as conduct that is ``severe, pervasive, and objectively 
offensive.'' \100\
---------------------------------------------------------------------------

    \98\ Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) 
(``For sexual harassment to be actionable, it must be sufficiently 
severe or pervasive to alter the conditions of [the victim's] 
employment and create an abusive working environment.'') (internal 
quotation marks and citation omitted) (emphasis added).
    \99\ 2001 Guidance at vi (stating that ``the definition of 
hostile environment sexual harassment found in OCR's 1997 guidance . 
. . derives from Title VII caselaw'').
    \100\ Davis, 526 U.S. at 652 (``Rather, in the context of 
student-on-student harassment, damages are available only where the 
behavior is so severe, pervasive, and objectively offensive that it 
denies its victims the equal access to education that Title IX is 
designed to protect.'') (emphasis added).
---------------------------------------------------------------------------

    The Department is persuaded by the Supreme Court's reasoning that 
elementary and secondary ``schools are unlike the adult workplace and 
that children may regularly interact in a manner that would be 
unacceptable among adults.'' \101\ These final regulations also are 
consistent with the Equal Access Act, requiring that public secondary 
schools provide equal access to limited public forums without 
discriminating against the students ``on the basis of the religious, 
political, philosophical, or other content of speech.'' \102\
---------------------------------------------------------------------------

    \101\ Davis, 526 U.S. at 651-52 (citing Meritor, 477 U.S. at 
67).
    \102\ 20 U.S.C. 4071(a).
---------------------------------------------------------------------------

    Similarly, an institution of higher education differs from the 
workplace. In this regard, these final regulations are consistent with 
the sense of Congress in the Higher Education Act of 1965, as amended, 
that ``an institution of higher education should facilitate the free 
and open exchange of ideas.'' \103\ The sense of Congress is that 
institutions of higher education should facilitate the free and robust 
exchange of ideas,\104\ but such an exchange may prove disruptive, 
undesirable, or impermissible in the workplace. Moreover, workplaces 
are generally expected to be free from conduct and conversation of a 
sexual nature, and it is common for employers to prohibit or discourage 
employees from engaging in romantic interactions at work.\105\ By 
contrast, it has become expected that college and university students 
enjoy personal freedom during their higher education experience,\106\ 
and it is not common for an institution to prohibit or discourage 
students from engaging in romantic interactions in the college 
environment.\107\
---------------------------------------------------------------------------

    \103\ 20 U.S.C. 1101a(a)(2)(C).
    \104\ 20 U.S.C. 1101a(a)(2)(C).
    \105\ See, e.g., Vicki Schultz, The Sanitized Workplace, 112 
Yale L. J. 2061, 2191 (2003) (examining the trend through the 
twentieth century toward a societal expectation that workplaces must 
be rational environments ``devoid of sexuality and other distracting 
passions'' in which employers ``increasingly ban or discourage 
employee romance'' and observing that both feminist theory and 
classical-management theory supported this trend, the former on 
equality grounds and the latter on efficiency grounds, but arguing 
that workplaces should instead focus on sex equality without 
``chilling intimacy and solidarity among employees of both a sexual 
and nonsexual variety.''); cf. Rebecca K. Lee, The Organization as a 
Gendered Entity: A Response to Professor Schultz's ``The Sanitized 
Workplace'', 15 Columbia J. of Gender & Law 609 (2006) (rebutting 
the notion that a sexualized workplace culture would be beneficial 
for sex equality, arguing that the ``probable harms'' would 
``outweigh the possible benefits of allowing sexuality to prosper in 
the work organization'' and defending the ``sexuality-constrained 
organizational paradigm in light of concerns regarding the role of 
work, on-the-job expectations, and larger workplace dynamics.'').
    \106\ Kristen Peters, Protecting the Millennial College Student, 
16 S. Cal. Rev. of L. & Social Justice 431, 437 (2007) (noting that 
the doctrine of in loco parentis in the higher education context 
diminished in the 1960s and ``[b]y the early 1970s, college students 
had successfully vindicated their contractual and civil rights, 
redefining the college-student relationship to emphasize student 
freedom and abrogate college authority.'') (internal citations 
omitted).
    \107\ Justin Neidig, Sex, Booze, and Clarity: Defining Sexual 
Assault on a College Campus, 16 William & Mary J. of Women & the L. 
179, 180-81 (2009) (``College is an exciting and often confusing 
time for students. This new experience is defined by coed dorms, 
near constant socializing that often involves alcohol, and the 
ability to retreat to a private room with no adult supervision. The 
environment creates a socialization process where appropriate 
behavior is defined by the actions of peers, particularly when it 
comes to sexual behavior.'') (internal citations omitted).
---------------------------------------------------------------------------

    The Department does not wish to apply the same definition of 
actionable sexual harassment under Title VII to Title IX because such 
an application would equate workplaces with educational environments, 
whereas both the Supreme Court and Congress have noted the unique 
differences of educational environments from workplaces and the 
importance of respecting the unique nature and purpose of educational 
environments. As discussed further in the ``Sexual Harassment'' 
subsection of the ``Section 106.30 Definitions'' section of this 
preamble, applying the same definition of actionable sexual harassment 
under Title VII to Title IX may continue to cause recipients to chill 
and infringe upon the First Amendment freedoms of students, teachers, 
and faculty by broadening the scope of prohibited speech and 
expression.
    The Department's use of the Davis definition of sexual harassment 
in these final regulations returns to the Department's intent stated in 
the 2001 Guidance: That the Department's definition of sexual 
harassment should be consistent with the definition of sexual 
harassment in Davis. The Davis definition of sexual harassment adopted 
in these final regulations, adapted by the Department's inclusion of 
quid pro quo harassment and the four Clery Act/VAWA offenses, will help 
prevent infringement of First Amendment freedoms, clarify confusion by 
precisely defining sexual violence independent from the Davis 
definition, clarify the intersection among Title IX, the Clery Act, and 
VAWA with respect to sex-based offenses, and ensure that recipients 
must respond to students and employees victimized by sexual harassment 
that jeopardizes a person's equal educational access.
    Recipients may continue to address harassing conduct that does not 
meet the Sec.  106.30 definition of sexual harassment, as acknowledged 
by the Department's change to Sec.  106.45(b)(3)(i)

[[Page 30038]]

to clarify that dismissal of a formal complaint because the allegations 
do not meet the Title IX definition of sexual harassment, does not 
preclude a recipient from addressing the alleged misconduct under other 
provisions of the recipient's own code of conduct.\108\
---------------------------------------------------------------------------

    \108\ Section 106.45(b)(3). Similarly, nothing in these final 
regulations prevents a recipient from addressing conduct that is 
outside the Department's jurisdiction due to the conduct 
constituting sexual harassment occurring outside the recipient's 
education program or activity, or occurring against a person who is 
not located in the United States.
---------------------------------------------------------------------------

Actual Knowledge

    The Department adopts and adapts the Gebser/Davis framework's 
condition of ``actual knowledge.'' \109\ The Supreme Court held that a 
recipient with actual knowledge of sexual harassment commits 
intentional discrimination (if the recipient responds in a deliberately 
indifferent manner).\110\ Because Title IX is a statute ``designed 
primarily to prevent recipients of Federal financial assistance from 
using the funds in a discriminatory manner,'' \111\ it is a recipient's 
own misconduct--not the sexually harassing behavior of employees, 
students, or other third parties--that subjects the recipient to 
liability in a private lawsuit under Title IX, and the recipient cannot 
commit its own misconduct unless the recipient first knows of the 
sexual harassment that needs to be addressed.\112\ Because Congress 
enacted Title IX under its Spending Clause authority, the obligations 
it imposes on recipients are in the nature of a contract.\113\ The 
Supreme Court held that ``a damages remedy will not lie under Title IX 
unless an official who at a minimum has authority to address the 
alleged discrimination and to institute corrective measures on the 
recipient's behalf has actual knowledge of discrimination in the 
recipient's programs and fails adequately to respond.'' \114\ The 
Supreme Court reasoned that it would be ``unsound'' for the Court to 
allow a private lawsuit (with the potential for money damages) against 
a recipient when the statute's administrative enforcement scheme 
imposes a requirement that before an agency may terminate Federal funds 
the agency must give notice to ``an appropriate person'' with the 
recipient who then may decide to voluntarily take corrective action to 
remedy the violation.\115\ The Supreme Court reasoned that a ``central 
purpose of requiring notice of the violation `to the appropriate 
person' and an opportunity for voluntary compliance before 
administrative enforcement proceedings can commence is to avoid 
diverting education funding from beneficial uses where a recipient was 
unaware of discrimination in its programs and is willing to institute 
prompt corrective measures.'' \116\
---------------------------------------------------------------------------

    \109\ Davis, 526 U.S. at 642 (stating that actual knowledge 
ensures that liability arises from ``an official decision by the 
recipient not to remedy the violation'') (citing Gebser, 524 U.S. at 
290) (internal quotation marks omitted).
    \110\ Gebser, 524 U.S. at 287-88 (``If a school district's 
liability for a teacher's sexual harassment rests on principles of 
constructive notice or respondeat superior, it will likewise be the 
case that the recipient of funds was unaware of the discrimination. 
It is sensible to assume that Congress did not envision a 
recipient's liability in damages in that situation.'').
    \111\ Gebser, 524 U.S. at 292; Cannon, 441 U.S. at 704 (noting 
that the primary congressional purposes behind Title IX were ``to 
avoid the use of Federal resources to support discriminatory 
practices'' and to ``provide individual citizens effective 
protection against those practices.'').
    \112\ E.g., Julie Davies, Assessing Institutional Responsibility 
for Sexual Harassment in Education, 77 Tulane L. Rev. 387, 402 
(2002) (analyzing the Gebser/Davis framework and noting, ``The Court 
concluded that a funding recipient's contract with the federal 
government encompassed only a promise not to discriminate, not an 
agreement to be held liable when employees discriminate.'').
    \113\ Gebser, 524 U.S. at 286; Davis, 526 U.S. at 640.
    \114\ Gebser, 524 U.S. at 290.
    \115\ Id. at 289-90 (``Because the express remedial scheme under 
Title IX is predicated upon notice to an `appropriate person' and an 
opportunity to rectify any violation, 20 U.S.C. 1682, we conclude, 
in the absence of further direction from Congress, that the implied 
damages remedy should be fashioned along the same lines. An 
`appropriate person' under Sec.  1682 is, at a minimum, an official 
of the recipient entity with authority to take corrective action to 
end the discrimination.'').
    \116\ Id. at 289. The Court continued, ``When a teacher's sexual 
harassment is imputed to a school district or when a school district 
is deemed to have `constructively' known of the teacher's 
harassment, by assumption the district had no actual knowledge of 
the teacher's conduct. Nor, of course, did the district have an 
opportunity to take action to end the harassment or to limit further 
harassment.'' Id.
---------------------------------------------------------------------------

    The Supreme Court thus rejected theories of vicarious liability 
(e.g., respondeat superior) and constructive notice as the basis for a 
recipient's Title IX liability in private Title IX lawsuits.\117\ The 
Supreme Court noted that the Department's 1997 Guidance held schools 
responsible under vicarious liability and constructive notice 
theories.\118\ Neither Gebser nor Davis indicated whether the 
Department's administrative enforcement of Title IX should continue to 
rely on vicarious liability and constructive notice as conditions 
triggering a recipient's response obligations.
---------------------------------------------------------------------------

    \117\ Id.; Davis, 526 U.S. at 650.
    \118\ Gebser, 524 U.S. at 282 (plaintiffs in Gebser advocated 
for private lawsuit liability based on vicarious liability and 
constructive notice in part by looking at the Department's 1997 
Guidance which relied on both theories).
---------------------------------------------------------------------------

    These final regulations adopt the actual knowledge condition from 
the Gebser/Davis framework so that these final regulations clearly 
prohibit a recipient's own intentional discrimination,\119\ but adapt 
the Gebser/Davis condition of actual knowledge to include notice to 
more recipient employees than what is required under the Gebser/Davis 
framework,\120\ in a way that takes into account the different needs 
and expectations of students in elementary and secondary schools, and 
in postsecondary institutions, with respect to sexual harassment and 
sexual harassment allegations.\121\ These final regulations apply an 
adapted condition of actual knowledge in ways that are similar to, and 
different from, the Department's approach in guidance as to when notice 
of sexual harassment triggers a recipient's response obligations. In 
other words, we tailor the Supreme Court's condition of actual 
knowledge to the unique context of administrative enforcement.
---------------------------------------------------------------------------

    \119\ Section 106.30 (defining ``actual knowledge'' to include 
notice to any recipient's officials with authority to institute 
corrective measures on behalf of the recipient, thereby mirroring 
the Gebser/Davis condition of actual knowledge).
    \120\ Section 106.30 (defining ``actual knowledge'' to include 
notice to any recipient's Title IX Coordinator, a position each 
recipient must designate and authorize for the express purpose of 
coordinating a recipient's compliance with Title IX obligations, 
including specialized training for the Title IX Coordinator, 
requirements not found in the Gebser/Davis framework); Sec.  
106.8(a); Sec.  106.45(b)(1)(iii).
    \121\ Section 106.30 (defining ``actual knowledge'' to include 
notice to ``any employee'' in an elementary and secondary school, a 
condition not found in the Gebser/Davis framework).
---------------------------------------------------------------------------

    The Department's guidance used a ``responsible employees'' rubric 
to describe the pool of employees to whom notice triggered the 
recipient's response obligations. The ``responsible employees'' rubric 
in guidance did not differentiate between elementary and secondary 
schools, and postsecondary institutions. For all recipients, Department 
guidance stated that a ``responsible employee'' was an employee who 
``has the authority to take action to redress the harassment,'' or 
``who has the duty to report to appropriate school officials sexual 
harassment or any other misconduct by students or employees,'' or an 
individual ``who a student could reasonably believe has this authority 
or responsibility.'' \122\ Under the

[[Page 30039]]

responsible employees rubric in guidance, the recipient was liable when 
a responsible employee ``knew,'' or when a responsible employee 
``should have known,'' about possible harassment.\123\
---------------------------------------------------------------------------

    \122\ 2001 Guidance at 13-14; 1997 Guidance (while not using the 
same three-part definition of ``responsible employees'' as the 2001 
Guidance, giving examples of a ``responsible employee'' to include 
``a principal, campus security, bus driver, teacher, an affirmative 
action officer, or staff in the office of student affairs''); 2011 
Dear Colleague Letter at 4 (while not using the term ``responsible 
employees,'' stating that a school must respond whenever it ``knows 
or reasonably should know'' about sexual harassment); id. at 2 
(stating that ``This letter supplements the 2001 Guidance by 
providing additional guidance and practical examples regarding the 
Title IX requirements as they relate to sexual violence'' thus 
indicating that the 2011 Dear Colleague Letter did not alter the 
2001 Guidance's approach to responsible employees); 2014 Q&A at 14 
(``According to OCR's 2001 Guidance, a responsible employee includes 
any employee: who has the authority to take action to redress sexual 
violence; who has been given the duty of reporting incidents of 
sexual violence or any other misconduct by students to the Title IX 
coordinator or other appropriate school designee; or whom a student 
could reasonably believe has this authority or duty.''); 2017 Q&A 1-
2 (citing to the 2001 Guidance for the proposition that a school 
must respond whenever the school ``knows or reasonably should know'' 
of a sexual misconduct incident and that in addition to a Title IX 
Coordinator other employees ``may be responsible employees'').
    \123\ 1997 Guidance (a school is liable where it ``knows or 
should have known''); 2001 Guidance at 13 (``A school has notice if 
a responsible employee knew, or in the exercise of reasonable care 
should have known, about the harassment.'') (internal quotation 
marks omitted); 2011 Dear Colleague Letter at 4; 2014 Q&A at 2 
(``OCR deems a school to have notice of student-on-student sexual 
violence if a responsible employee knew, or in the exercise of 
reasonable care should have known, about the sexual violence.''); 
2017 Q&A at 1.
---------------------------------------------------------------------------

    For reasons discussed below, these final regulations do not use the 
``responsible employees'' rubric, although these final regulations 
essentially retain the first of the three categories of the way 
guidance described ``responsible employees.'' \124\ As discussed below, 
these final regulations depart from the ``should have known'' condition 
that guidance indicated would trigger a recipient's response 
obligations.
---------------------------------------------------------------------------

    \124\ The Sec.  106.30 definition of ``actual knowledge'' 
including notice to ``any official of the recipient who has 
authority to institute corrective measures on behalf of the 
recipient'' is the equivalent of the first portion of the definition 
of ``responsible employees'' in Department guidance (e.g., 2001 
Guidance at 13), that included any employee who ``has the authority 
to take action to redress the harassment.'' See also Merle H. 
Weiner, A Principled and Legal Approach to Title IX Reporting, 85 
Tenn. L. Rev. 71, 140 (2017) (``The Supreme Court's definition of an 
`appropriate person' '' as an `official who at a minimum has 
authority to address the alleged discrimination and to institute 
corrective measures' is ``very close to the first category [of 
responsible employees] in OCR's guidance.'') (citing Gebser, 524 
U.S. at 290).
---------------------------------------------------------------------------

    Rather than using the phrase ``responsible employees,'' these final 
regulations describe the pool of employees to whom notice triggers the 
recipient's response obligations. That pool of employees is different 
in elementary and secondary schools than in postsecondary institutions. 
For all recipients, notice to the recipient's Title IX Coordinator or 
to ``any official of the recipient who has authority to institute 
corrective measures on behalf of the recipient'' (referred to herein as 
``officials with authority'') conveys actual knowledge to the recipient 
and triggers the recipient's response obligations. Determining whether 
an individual is an ``official with authority'' is a legal 
determination that depends on the specific facts relating to a 
recipient's administrative structure and the roles and duties held by 
officials in the recipient's own operations. The Supreme Court viewed 
this category of officials as the equivalent of what 20 U.S.C. 1682 
calls an ``appropriate person'' for purposes of the Department's 
resolution of Title IX violations with a recipient.\125\ Lower Federal 
courts applying the Gebser/Davis actual knowledge condition have 
reached various results with respect to whether certain employees in an 
elementary and secondary school, or in a postsecondary institution, are 
officials with authority to whom notice conveys actual knowledge to the 
recipient.\126\ Because these final regulations adopt the Gebser/Davis 
condition describing a recipient's actual knowledge as resulting from 
notice to an official with authority, but also include the recipient's 
Title IX Coordinator and any elementary and secondary school employee, 
the fact-specific nature of whether certain officials of the recipient 
qualify as officials with authority does not present a barrier to 
reporting sexual harassment and requiring schools, colleges, and 
universities to respond promptly.
---------------------------------------------------------------------------

    \125\ Gebser, 524 U.S. at 290 (``Because the express remedial 
scheme under Title IX is predicated upon notice to an `appropriate 
person' and an opportunity to rectify any violation, 20 U.S.C. 1682, 
we conclude, in the absence of further direction from Congress, that 
the implied damages remedy should be fashioned along the same lines. 
An `appropriate person' under Sec.  1682 is, at a minimum, an 
official of the recipient entity with authority to take corrective 
action to end the discrimination.'').
    \126\ With respect to elementary and secondary schools, see 
Julie Davies, Assessing Institutional Responsibility for Sexual 
Harassment in Education, 77 Tulane L. Rev. 387, 398, 424-26 (2002) 
(reviewing cases decided under the Gebser/Davis framework and noting 
that courts reached different results regarding teachers, 
principals, school boards, and superintendents, and concluding that 
``The legal authority of individuals to receive notice is clearly 
relevant and a basis for their inclusion as parties to whom notice 
may be given, but courts must also evaluate the factual reality.'') 
With respect to postsecondary institutions, see Merle H. Weiner, A 
Principled and Legal Approach to Title IX Reporting, 85 Tenn. L. 
Rev. 71, 139 (2017) (``Overall, this category is rather narrow and 
the identity of the relevant employees rests on an institution's own 
policies regarding who has the authority to take action to redress 
sexual violence.'').
---------------------------------------------------------------------------

    Under these final regulations, in elementary and secondary schools, 
notice to ``any employee'' (in addition to notice to the Title IX 
Coordinator or to any official with authority) triggers the recipient's 
response obligations, so there is no longer a need to use the 
responsible employees rubric. Under these final regulations, an 
elementary and secondary school must respond whenever any employee has 
notice of sexual harassment or allegations of sexual harassment, so 
there is no need to distinguish among employees who have ``authority to 
redress the harassment,'' have the ``duty to report'' misconduct to 
appropriate school officials, or employees who ``a student could 
reasonably believe'' have that authority or duty.\127\ In the 
elementary and secondary school setting where school administrators, 
teachers, and other employees exercise a considerable degree of control 
and supervision over their students, the Department believes that 
requiring a school district to respond when its employees know of 
sexual harassment (including reports or allegations of sexual 
harassment) furthers Title IX's non-discrimination mandate in a manner 
that best serves the needs and expectations of students.\128\ The 
Department is persuaded by commenters who asserted that students in 
elementary and secondary schools often talk about sexual harassment 
experiences with someone other than their teacher, and that it is 
unreasonable to expect young students to differentiate among employees 
for the purpose of which employees' knowledge triggers the school's 
response obligations and which do not. Elementary and secondary schools 
generally operate under the doctrine of in loco parentis, under which 
the school stands ``in the place of'' a parent with respect to certain 
authority over, and responsibility for, its students.\129\ Further, 
employees at

[[Page 30040]]

elementary and secondary schools typically are mandatory reporters of 
child abuse under State laws for purposes of child protective 
services.\130\ The Department is persuaded that employees at elementary 
and secondary schools stand in a unique position with respect to 
students and that a school district should be held accountable for 
responding to sexual harassment under Title IX when the school 
district's employees have notice of sexual harassment or sexual 
harassment allegations.
---------------------------------------------------------------------------

    \127\ See 2001 Guidance at 13.
    \128\ Davis, 526 U.S. at 646 (noting that a public school's 
power over its students is ``custodial and tutelary, permitting a 
degree of supervision and control that could not be exercised over 
free adults'') (citing Veronica Sch. Dist. v. Acton, 515 U.S. 646, 
655 (1995)).
    \129\ Todd A. Demitchell, The Duty to Protect: Blackstone's 
Doctrine of In Loco Parentis: A Lens for Viewing the Sexual Abuse of 
Students, 2002 BYU Educ. & L. J. 17, 19-20 (2002) (``Acting in the 
place of parents is an accepted and expected role assumed by 
educators and their schools. This doctrine has been recognized in 
state statutes and court cases. For example, the United States 
Supreme Court noted that there exists an `obvious concern on the 
part of parents, and school authorities acting in loco parentis, to 
protect children--especially in a captive audience--from exposure to 
sexually explicit, indecent, or lewd speech. [Citing to Bethel Sch. 
Dist. No. 403 v. Fraser ex rel. Fraser, 478 U.S. 675, 684 (1986).] 
According to the Supreme Court, school officials have authority over 
students by virtue of in loco parentis and a concomitant duty of 
protection. It has been asserted that in loco parentis is a sub-set 
of government's broad common law power of parens patriae.'') 
(internal citations omitted).
    \130\ See Ala. Code Sec.  26-14-3; Alaska Stat. Sec.  47.17.020; 
Ariz. Rev. Stat. Sec.  13-3620; Ark. Code Ann. Sec.  12-18-402; Cal. 
Penal Code Sec.  11165.7; Colo. Rev. Stat. Sec.  19-3-304; Conn. 
Gen. Stat. Sec.  17a-101; Del. Code Ann. tit. 16, Sec.  903; DC Code 
Sec.  4-1321.02; Fla. Stat. Sec.  39.201; Ga. Code Ann. Sec.  19-7-
5; Haw. Rev. Stat. Sec.  350-1.1; Idaho Code Ann. Sec.  16-1605; 325 
Ill. Comp. Stat. Sec.  5/4; Ind. Code Sec.  31-33-5-1; Iowa Code 
Sec.  232.69; Kan. Stat. Ann. Sec.  38-2223; Ky. Rev. Stat. Ann. 
Sec.  620.030; La. Child Code Ann. art. 603(17); Me. Rev. Stat. tit. 
22, Sec.  4011-A; Md. Code Ann., Fam. Law Sec.  5-704; Mass. Gen. 
Laws ch. 119, Sec.  21; Mich. Comp. Laws Sec.  722.623; Minn. Stat. 
Sec.  626.556; Miss. Code. Ann. Sec.  43-21-353; Mo. Ann Stat. Sec.  
210.115; Mont. Code Ann. Sec.  41-3-201; Neb. Rev. Stat. Sec.  28-
711; Nev. Rev. Stat. Sec.  432B.220; N.H. Rev. Stat. Ann. Sec.  169-
C:29; N.J. Stat. Ann. Sec.  9:6-8.10; N.M. Stat. Ann. Sec.  32A-4-3; 
N.Y. Soc. Serv. Law Sec.  413; N.C. Gen. Stat. Ann. Sec.  7B-301; 
N.D. Cent. Code Ann. Sec.  50-25.1-03; Ohio Rev. Code Ann. Sec.  
2151.421; Okla. Stat. tit. 10A, Sec.  1-2-101; Or. Rev. Stat. Sec.  
419B.010; 23 Pa. Cons. Stat. Ann Sec.  6311; R.I. Gen. Laws Sec.  
40-11-3(a); S.C. Code Ann. Sec.  63-7-310; S.D. Codified Laws Sec.  
26-8A-3; Tenn. Code Ann. Sec.  37-1-403; Tex. Fam. Code Sec.  
261.101; Utah Code Ann. Sec.  62A-4a-403; Vt. Stat. Ann. tit. 33, 
Sec.  4913; Va. Code Ann. Sec.  63.2-1509; Wash. Rev. Code Sec.  
26.44.030; W. Va. Code Sec.  49-2-803; Wis. Stat. Sec.  48.981; Wyo. 
Stat. Ann. Sec.  14-3-205.
---------------------------------------------------------------------------

    In postsecondary institutions, where in loco parentis does not 
apply,\131\ notice to the Title IX Coordinator or any official with 
authority conveys actual knowledge to the recipient. Triggering a 
recipient's response obligations only when the Title IX Coordinator or 
an official with authority has notice respects the autonomy of a 
complainant in a postsecondary institution better than the responsible 
employee rubric in guidance. As discussed below, the approach in these 
final regulations allows postsecondary institutions to decide which of 
their employees must, may, or must only with a student's consent, 
report sexual harassment to the recipient's Title IX Coordinator (a 
report to whom always triggers the recipient's response obligations, no 
matter who makes the report). Postsecondary institutions ultimately 
decide which officials to authorize to institute corrective measures on 
behalf of the recipient. The Title IX Coordinator and officials with 
authority to institute corrective measures on behalf of the recipient 
fall into the same category as employees whom guidance described as 
having ``authority to redress the sexual harassment.'' \132\ In this 
manner, in the postsecondary institution context these final 
regulations continue to use one of the three categories of 
``responsible employees'' described in guidance.
---------------------------------------------------------------------------

    \131\ E.g., Wagner v. Holtzapple, 101 F. Supp. 3d 462, 472-73 
(M.D. Penn. 2015) (noting that ``the law surrounding the student-
university relationship has changed considerably in a relatively 
short period of time. `The early period of American higher 
education, prior to the 1960s, was exclusively associated with the 
doctrine of in loco parentis.' '') (citing to Jason A. Zwara, 
Student Privacy, Campus Safety, and Reconsidering the Modern 
Student-University Relationship, 38 Journal of Coll. & Univ. L. 419, 
432-33, 436 (2012) (``In loco parentis was applied in the early 
period of higher education law to prevent courts or legislatures 
from intervening in the student-university relationship, thus 
insulating the institution from criminal or civil liability or 
regulation . . . . Courts began to shift away from in loco parentis 
beginning in the civil rights era of the 1960s through a number of 
cases addressing student claims for constitutional rights, in 
particular due process rights and free speech'' and courts now 
generally view the student-university relationship as one governed 
by contract) (internal quotation marks and citations omitted)).
    \132\ The Sec.  106.30 definition of ``actual knowledge'' as 
including notice to ``any official of the recipient who has 
authority to institute corrective measures on behalf of the 
recipient'' is the equivalent of the portion of the definition of 
``responsible employees'' in Department guidance (e.g., 2001 
Guidance at 13) that included any employee who ``has the authority 
to take action to redress the harassment.'' See also Merle H. 
Weiner, A Principled and Legal Approach to Title IX Reporting, 85 
Tenn. L. Rev. 71, 140 (2017) (``The Supreme Court's definition of an 
`appropriate person''' as an `official who at a minimum has 
authority to address the alleged discrimination and to institute 
corrective measures' is ``very close to the first category [of 
responsible employees] in OCR's guidance.'') (citing Gebser, 524 
U.S. at 290).
---------------------------------------------------------------------------

    With respect to postsecondary institutions, these final regulations 
depart from using the other two categories of ``responsible employees'' 
described in guidance (those who have a ``duty to report'' misconduct, 
and those whom a ``student could reasonably believe'' have the 
requisite authority or duty). As discussed below, in the postsecondary 
institution context, requiring the latter two categories of employees 
to be mandatory reporters (as Department guidance has) may have 
resulted in college and university policies that have unintentionally 
discouraged disclosures or reports of sexual harassment by leaving 
complainants with too few options for disclosing sexual harassment to 
an employee without automatically triggering a recipient's response. 
Elementary and secondary school students cannot be expected to 
distinguish among employees to whom disclosing sexual harassment 
results in a mandatory school response, but students at postsecondary 
institutions may benefit from having options to disclose sexual 
harassment to college and university employees who may keep the 
disclosure confidential. These final regulations ensure that all 
students and employees are notified of the contact information for the 
Title IX Coordinator and how to report sexual harassment for purposes 
of triggering a recipient's response obligations, and the Department 
believes that students at postsecondary institutions benefit from 
retaining control over whether, and when, the complainant wants the 
recipient to respond to the sexual harassment that the complainant 
experienced.
    In both the elementary and secondary school context and the 
postsecondary institution context, the final regulations use the same 
broad conception of what might constitute ``notice'' as the 
Department's guidance used. Notice results whenever any elementary and 
secondary school employee, any Title IX Coordinator, or any official 
with authority: Witnesses sexual harassment; hears about sexual 
harassment or sexual harassment allegations from a complainant (i.e., a 
person alleged to be the victim) or a third party (e.g., the 
complainant's parent, friend, or peer); receives a written or verbal 
complaint about sexual harassment or sexual harassment allegations; or 
by any other means.\133\ These final regulations emphasize that any 
person may always trigger a recipient's response obligations by 
reporting sexual harassment to the Title IX Coordinator using contact 
information that the recipient must post on the recipient's 
website.\134\ The person who reports does not need to be the 
complainant (i.e., the person alleged to be the victim); a report may 
be made by ``any person'' \135\ who believes that sexual harassment may 
have occurred and requires a recipient's response.
---------------------------------------------------------------------------

    \133\ E.g., 2001 Guidance at 13.
    \134\ Section 106.30 (defining ``actual knowledge'' to mean 
notice, where ``notice'' includes but is not limited to a report to 
the Title IX Coordinator as described in Sec.  106.8(a)); Sec.  
106.8(b) (requiring the Title IX Coordinator's contact information 
to be displayed prominently on the recipient's website); Sec.  
106.8(a) (stating that any person may report sexual harassment 
(whether or not the person reporting is the person alleged to be the 
victim) using the contact information listed for the Title IX 
Coordinator or any other means that results in the Title IX 
Coordinator receiving the person's verbal or written report, and 
that a report may be made at any time, including during non-business 
hours, by using the listed telephone number or email address, or by 
mail to the listed office address, for the Title IX Coordinator).
    \135\ Section 106.8(a) (specifying that ``any person may 
report'' sexual harassment).
---------------------------------------------------------------------------

    The final regulations depart from the constructive notice condition 
described in Department guidance that stated that

[[Page 30041]]

a recipient must respond if a recipient's responsible employees 
``should have known'' about sexual harassment. The Department's 
guidance gave only the following examples of circumstances under which 
a recipient ``should have known'' about sexual harassment: When ``known 
incidents should have triggered an investigation that would have led to 
discovery of [ ] additional incidents,'' or when ``the pervasiveness'' 
of the harassment leads to the conclusion that the recipient ``should 
have known'' of a hostile environment.\136\
---------------------------------------------------------------------------

    \136\ 2001 Guidance at 13-14 (``[A] school has a duty to respond 
to harassment about which it reasonably should have known, i.e., if 
it would have learned of the harassment if it had exercised 
reasonable care or made a reasonably diligent inquiry. For example, 
in some situations if the school knows of incidents of harassment, 
the exercise of reasonable care should trigger an investigation that 
would lead to a discovery of additional incidents. In other cases, 
the pervasiveness of the harassment may be enough to conclude that 
the school should have known of the hostile environment--if the 
harassment is widespread, openly practiced, or well-known to 
students and staff (such as sexual harassment occurring in the 
hallways, graffiti in public areas, or harassment occurring during 
recess under a teacher's supervision.'') (internal citations 
omitted); 1997 Guidance (same); 2014 Q&A at 2 (same). The 2011 Dear 
Colleague Letter at 1-2, and the 2017 Q&A at 1, did not describe the 
circumstances under which a school ``should have known'' but 
referenced the 2001 Guidance on this topic.
---------------------------------------------------------------------------

    The Department has reconsidered the position that a recipient's 
response obligations are triggered whenever employees ``should have 
known'' because known incidents ``should have triggered an 
investigation that would have led to discovery'' of additional 
incidents.\137\ The final regulations impose clear obligations as to 
when a recipient must investigate allegations. Unlike the Department's 
guidance, which did not specify the circumstances under which a 
recipient must investigate and adjudicate sexual harassment 
allegations, the final regulations clearly obligate a recipient to 
investigate and adjudicate whenever a complainant files, or a Title IX 
Coordinator signs, a formal complaint.\138\ The Department will hold 
recipients responsible for a recipient's failure or refusal to 
investigate a formal complaint.\139\ However, the Department does not 
believe it is feasible or necessary to speculate on what an 
investigation ``would have'' revealed if the investigation had been 
conducted. Even if there are additional incidents of which a recipient 
``would have'' known had the recipient conducted an investigation into 
a known incident, each of the additional incidents involve complainants 
who also have the clear option and right under these final regulations 
to file a formal complaint that requires the recipient to investigate, 
or to report the sexual harassment and trigger the recipient's 
obligation to respond by offering supportive measures (and explaining 
to the complainant the option of filing a formal complaint).\140\ If a 
recipient fails to meet its Title IX obligations with respect to any 
complainant, the Department will hold the recipient liable under these 
final regulations, and doing so does not necessitate speculating about 
what an investigation ``would have'' revealed.
---------------------------------------------------------------------------

    \137\ 2001 Guidance at 13.
    \138\ Section 106.44(b)(1) (stating a recipient must investigate 
in response to a formal complaint); Sec.  106.30 (defining ``formal 
complaint'' as a written document filed by a complainant or signed 
by a Title IX Coordinator requesting that the recipient investigate 
allegations of sexual harassment against a respondent, where 
``document filed by a complainant'' also includes an electronic 
submission such as an email or use of an online portal if the 
recipient provides one for filing formal complaints).
    \139\ Section 106.44(b)(1).
    \140\ Section 106.8(a) (stating any person may report sexual 
harassment using the Title IX Coordinator's listed contact 
information); Sec.  106.8(b) (stating recipients must prominently 
display the Title IX Coordinator's contact information on their 
websites); Sec.  106.44(a) (stating recipients must respond promptly 
to actual knowledge of sexual harassment by, among other things, 
offering supportive measures to the complainant regardless of 
whether a formal complaint is filed, and by explaining to the 
complainant the process for filing a formal complaint).
---------------------------------------------------------------------------

    The Department has reconsidered the position that a recipient's 
response obligations are triggered whenever employees ``should have 
known'' due to the ``pervasiveness'' of sexual harassment.\141\ In 
elementary and secondary schools, the final regulations charge a 
recipient with actual knowledge whenever any employee has notice. Thus, 
if sexual harassment is ``so pervasive'' that some employee ``should 
have known'' about it (e.g., sexualized graffiti scrawled across 
lockers that meets the definition of sexual harassment in Sec.  
106.30), it is highly likely that at least one employee did know about 
it and the school is charged with actual knowledge. There is no reason 
to retain a separate ``should have known'' standard to cover situations 
that are ``so pervasive'' in elementary and secondary schools. In 
postsecondary institutions, when sexual harassment is ``so pervasive'' 
that some employees ``should have known'' it is highly likely that at 
least one employee did know about it. However, in postsecondary 
institutions, for reasons discussed below, the Department believes that 
complainants will be better served by allowing the postsecondary 
institution recipient to craft and apply the recipient's own policy 
with respect to which employees must, may, or must only with a 
complainant's consent, report sexual harassment and sexual harassment 
allegations to the Title IX Coordinator. With respect to whether a 
Title IX Coordinator or official with authority in a postsecondary 
institution ``should have known'' of sexual harassment, the Department 
believes that imposing a ``should have known'' standard unintentionally 
creates a negative incentive for Title IX Coordinators and officials 
with authority to inquire about possible sexual harassment in ways that 
invade the privacy and autonomy of students and employees at 
postsecondary institutions, and such a negative consequence is not 
necessary because the final regulations provide every student, 
employee, and third party with clear, accessible channels for reporting 
to the Title IX Coordinator,\142\ which gives the Title IX Coordinator 
notice and triggers the recipients' response obligations,\143\ without 
the need to require Title IX Coordinators and officials with authority 
to potentially invade student and employee privacy or autonomy.\144\
---------------------------------------------------------------------------

    \141\ 2001 Guidance at 13-14.
    \142\ Section 106.8(a) (requiring every recipient to list the 
office address, telephone number, and email address for the Title IX 
Coordinator and stating that any person may report sexual harassment 
by using the listed contact information, and that a report may be 
made at any time (including during non-business hours) by using the 
telephone number or email address, or by mail to the office address, 
listed for the Title IX Coordinator); Sec.  106.8(b) (requiring 
recipients to list the Title IX Coordinator's contact information on 
recipient websites).
    \143\ Section 106.30 (defining ``actual knowledge'' to mean 
notice to the Title IX Coordinator and stating that ``notice'' 
includes but is not limited to a report to the Title IX Coordinator 
as described in Sec.  106.8(a)).
    \144\ The 2014 Q&A acknowledged one of the drawbacks of a 
condition that triggers a postsecondary institution's response 
obligations whenever a Title IX Coordinator or official with 
authority ``should have known'' about a student's disclosure of 
sexual harassment: Under such a condition, whenever the Title IX 
Coordinator or other officials with authority know about public 
awareness events (such as ``Take Back the Night'' events) where 
survivors are encouraged to safely talk about their sexual assault 
experiences, those recipient officials would be obligated to (a) 
attend such events and (b) respond to any sexual harassment 
disclosed at such an event by contacting each survivor, offering 
them supportive measures, documenting the institution's response to 
the disclosure, and all other recipient's response obligations, 
including an investigation. 2014 Q&A at 24. Failure to do so would 
be avoiding having learned about campus sexual assault incidents 
that could have been discovered with due diligence (i.e., the Title 
IX Coordinator and other university officials ``should have known'' 
about the experiences disclosed by survivors at such events). Id. 
Understanding the drawbacks of this kind of rule, the 2014 Q&A 
carved out an exception, but without explaining how or why the 
exception would apply only to ``public awareness events'' and not, 
for example, also extend to Title IX Coordinators and other 
postsecondary institution officials with authority needing to 
inquire into students' (and employees') private affairs whenever 
there was any indication that a student or employee may be suffering 
the impact of sexual harassment. Id. (``OCR wants students to feel 
free to participate in preventive education programs and access 
resources for survivors. Therefore, public awareness events such as 
`Take Back the Night' or other forums at which students disclose 
experiences with sexual violence are not considered notice to the 
school for the purpose of triggering an individual investigation 
unless the survivor initiates a complaint.'').

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[[Page 30042]]

    The Department's guidance did not use the term ``mandatory 
reporters'' but the 2001 Guidance expected responsible employees to 
report sexual harassment to ``appropriate school officials'' \145\ and 
the withdrawn 2014 Q&A specified that responsible employees must report 
to the Title IX Coordinator.\146\ As of 2017 many (if not most) 
postsecondary institutions had policies designating nearly all their 
employees as ``responsible employees'' and ``mandatory reporters.'' 
\147\ The ``explosion'' in postsecondary institution policies making 
nearly all employees mandatory reporters (sometimes referred to as 
``wide-net'' or universal mandatory reporting) was due in part to the 
broad, vague way that ``responsible employees'' were defined in 
Department guidance.\148\ The extent to which a wide-net or universal 
mandatory reporting system for employees in postsecondary institutions 
is beneficial, or detrimental, to complainants, is difficult to 
determine,\149\ and research (to date) is inconclusive.\150\ What 
research does demonstrate is that respecting an alleged victim's 
autonomy,\151\ giving alleged victims control over how official systems 
respond to an alleged victim,\152\

[[Page 30043]]

and offering clear options to alleged victims \153\ are critical 
aspects of helping an alleged victim recover from sexual harassment. 
Unsupportive institutional responses increase the effects of trauma on 
complainants,\154\ and institutional betrayal may occur when an 
institution's mandatory reporting policies require a complainant's 
intended private conversation about sexual assault to result in a 
report to the Title IX Coordinator.\155\
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    \145\ 2001 Guidance at 13.
    \146\ 2014 Q&A at 14; cf. id. at 22 (exempting responsible 
employees who have counseling roles from being obligated to report 
sexual harassment to the Title IX Coordinator in a way that 
identifies the student).
    \147\ Merle H. Weiner, A Principled and Legal Approach to Title 
IX Reporting, 85 Tenn. L. Rev. 71, 77-78 (2017) (``Today the 
overwhelming majority of institutions of higher education designate 
virtually all of their employees as responsible employees and exempt 
only a small number of `confidential' employees. Kathryn Holland, 
Lilia Cortina, and Jennifer Freyd recently examined reporting 
policies at 150 campuses and found that policies at 69 percent of 
the institutions made all employees mandatory reporters, policies at 
19 percent of the institutions designated nearly all employees as 
mandatory reporters, and only 4 percent of institutional policies 
named a limited list of reporters. The authors concluded, `[T]hese 
findings suggest that the great majority of U.S. colleges and 
universities--regardless of size or public vs. private nature--have 
developed policies designating most if not all employees (including 
faculty, staff, and student employees) as mandatory reporters of 
sexual assault.' At some institutions, these reporting obligations 
have even been incorporated into employees' contracts.'') (citing an 
``accepted for publication'' version of Kathryn Holland et al., 
Compelled disclosure of college sexual assault, 73 Am. Psychologist 
3, 256 (2018)).
    \148\ Merle H. Weiner, A Principled and Legal Approach to Title 
IX Reporting, 85 Tenn. L. Rev. 71, 79-80 (2017) (analyzing the 
``explosion'' of universal or near-universal mandatory reporting 
policies, which the author calls ``wide-net reporting policies'' and 
finding a root of that trend in Department guidance: ``The question 
was raised whether this language [in Department guidance] meant all 
employees had to be made responsible employees. For example, John 
Gaal and Laura Harshbarger, writing in the Higher Education Law 
Report asked, `And does OCR really mean that any employee who has 
any `misconduct' reporting duty is a `responsible employee' ? . . . 
We simply do not know.' Administrators started concluding, 
erroneously, that any employee who has an obligation to report any 
other misconduct at the institution must be labeled a responsible 
employee. Several OCR resolution letters issued at the end of 2016 
bolstered this broad interpretation.'') (internal citations omitted; 
ellipses in original).
    \149\ Merle H. Weiner, A Principled and Legal Approach to Title 
IX Reporting, 85 Tenn. L. Rev. 71, 82-83 (2017) (stating 
institutions with ``wide-net reporting policies'' defend such 
policies by ``claiming that they are best for survivors'' for 
reasons such as enabling institutions to ``identify victims in order 
to offer them resources and support'' and allowing institutions ``to 
collect data on the prevalence of sexual assault and to ensure that 
perpetrators are identified and disciplined.'') (internal citations 
omitted); cf. id. at 83-84 (stating institutional justifications 
``make wide-net reporting policies appear consistent with the spirit 
of Title IX, insofar as they seem consistent with institutional 
commitments to reduce campus sexual violence . . . . Even if wide-
net policies were once thought beneficial to help break a culture of 
silence around sexual violence in the university setting, the 
utilitarian calculus has now changed and these policies do more harm 
than good.'') (internal citations omitted); id. at 84 (summarizing 
the ``harm survivors experience when they are involuntarily thrust 
into a system designed to address their victimization'' and arguing 
that ``wide-net'' mandatory reporting policies ``undermine 
[survivors'] autonomy and sense of institutional support, 
aggravating survivors' psychological and physical harm. These 
effects can impede survivors' healing, directly undermining Title 
IX's objective of ensuring equal access to educational opportunities 
and benefits regardless of gender. In addition, . . . because of the 
negative consequences of reporting, wide-net reporting policies 
discourage students from talking to any faculty or staff on campus. 
Fewer disclosures result in fewer survivors being connected to 
services and fewer offenders being held accountable for their acts. 
Holding perpetrators accountable is critical for creating a climate 
that deters acts of violence. Because wide-net policies chill 
reporting, these policies violate the spirit of Title IX.'') 
(internal citations omitted).
    \150\ Merle H. Weiner, A Principled and Legal Approach to Title 
IX Reporting, 85 Tenn. L. Rev. 71, 78-79 (2017) (``The number of 
institutions with broad policies, sometimes known as universal 
mandatory reporting or required reporting, and hereafter called 
`wide-net' reporting policies, has grown over time. Approximately 
fifteen years ago, in 2002, only 45 percent of schools identified 
some mandatory reporters on their campuses, and these schools did 
not necessarily categorize almost every employee in that manner. The 
trend since then is notable, particularly because it contravenes the 
advice from a [study published in 2002 using funds provided by the 
National Institute of Justice, Heather M. Karjane et al., Campus 
Sexual Assault: How America's Institutions of Higher Education 
Respond 120, Final Report, NIJ Grant #1999-WA-VX-0008 (Education 
Development Center, Inc. 2002)]. The authors of that study suggested 
that wide-net reporting policies were unwise. After examining almost 
2,500 institutions of higher education, they warned: `Any policy or 
procedure that compromises, or worse, eliminates the student 
victim's ability to make her or his own informed choices about 
proceeding through the reporting and adjudication process--such as 
mandatory reporting requirements that do not include an anonymous 
reporting option or require the victim to participate in the 
adjudication process if the report is filed--not only reduces 
reporting rates but may be counterproductive to the victim's healing 
process.''') (internal citations omitted); id. at 102 (concluding 
that wide-net reporting policies ``clearly inhibit the willingness 
of some students to talk to a university employee about an unwanted 
sexual experience. This effect is not surprising in light of studies 
on the effect of mandatory reporting in other contexts. Studies 
document that women sometimes refuse to seek medical care when their 
doctors are mandatory reporters, or forego calling the police when a 
state has a mandatory arrest law.'') (internal citations omitted); 
id. at 104-05 (citing to ``conflicting research'' about whether 
college and university mandatory reporting policies chill reporting, 
concluding that available research has not empirically demonstrated 
the alleged benefits of mandatory reporting policies in colleges and 
universities, and arguing that without further research, colleges 
and universities should carefully design reporting policies that 
``can accommodate both the students who would be more inclined and 
less inclined to report with a mandatory reporting policy.'') 
(internal citations omitted).
    \151\ Margaret Garvin & Douglas E. Beloof, Crime Victim Agency: 
Independent Lawyers for Sexual Assault Victims, 13 Ohio St. J. of 
Crim. Law 67, 69-70 (2015) (explaining that ``autonomy'' has come to 
mean ``the capacity of an individual for self-governance combined 
with the actual condition of self-governance in an absolute state of 
freedom to choose unconstrained by external influence'' and the 
related concept of ``agency'' has emerged to mean ``self-
definition'' (``fundamental determination of how one conceives of 
oneself both as an individual and as a community member'') and 
``self-direction'' (``the charting of one's direction in life'')) 
(internal citations omitted); id. at 71-72 (agency ``is critically 
important for crime victims. Research reveals that for some victims 
who interact with the criminal justice system, participation is 
beneficial. It can allow them to experience improvement in 
depression and quality of life, provide a sense of safety and 
protection, and validate the harm done by the offender. For other 
victims, interaction with the criminal justice system leads to a 
harm beyond that of the original crime, a harm that is often 
referred to as `secondary victimization' and which is recognized to 
have significant negative impacts on victims. . . . A significant 
part of what accounts for the difference in experience is whether 
victims have the ability to meaningfully choose whether, when, how, 
and to what extent to meaningfully participate in the system and 
exercise their rights. In short, the difference in experience is 
explained by the existence--or lack of--agency.'') (internal 
citations omitted).
    \152\ E.g., Patricia A. Frazier et al., Coping Strategies as 
Mediators of the Relations Among Perceived Control and Distress in 
Sexual Assault Survivors, 52 Journal of Counseling Psychol. 3 (2005) 
(control over the recovery process was associated with less 
emotional distress for sexual assault victims, partly because that 
kind of ``present control'' was associated with less social 
withdrawal and more cognitive restructuring.); Ryan M. Walsh & 
Steven E. Bruce, The Relationships Between Perceived Levels of 
Control, Psychological Distress, and Legal System Variables in a 
Sample of Sexual Assault Survivors, 17 Violence Against Women 603, 
611 (2011) (finding that ``a perception by victims that they are in 
control of their recovery process'' is an ``important factor'' 
reducing post-traumatic stress and depression).
    \153\ E.g., Nancy Chi Cantalupo, For the Title IX Civil Rights 
Movement: Congratulations and Cautions, 125 Yale J. of L. & 
Feminism. 281, 291 (2016) (arguing against State law proposals that 
would require mandatory referral to law enforcement of campus sexual 
assault incidents in part because such laws would limit ``the number 
and diversity of reporting options that victims can use''); Merle H. 
Weiner, A Principled and Legal Approach to Title IX Reporting, 85 
Tenn. L. Rev. 71, 117 (2017) (``Schools expose survivors to harm 
when they turn a disclosure into either an involuntary report to law 
enforcement or an involuntary report to the Title IX office.'').
    \154\ Lindsey L. Monteith et al., Perceptions of Institutional 
Betrayal Predict Suicidal Self-Directed Violence Among Veterans 
Exposed to Military Sexual Trauma, 72 J. of Clinical Psychol. 743, 
750 (2016); see also Rebecca Campbell et al., An Ecological Model of 
the Impact of Sexual Assault on Women's Mental Health, 10 Trauma, 
Violence & Abuse 225, 234 (2009) (survivors of sexual violence 
already feel powerless, and policies that increase a survivor's lack 
of power over their situation contribute to the trauma they have 
already experienced).
    \155\ Merle H. Weiner, Legal Counsel for Survivors of Campus 
Sexual Violence, 29 Yale J. of L. & Feminism 123, 140-141 (2017) 
(identifying one type of institutional betrayal as the harm that 
occurs when ``the survivor thinks she is speaking to a confidential 
resource, but then finds out the advocate cannot keep their 
conversations private''); Michael A. Rodriguez, Mandatory Reporting 
Does Not Guarantee Safety, 173 W. J. of Med. 225, 225 (2000) 
(mandatory reporting by doctors of patient intimate partner abuse 
may negatively impact victims by making them less likely to seek 
medical care and compromising the patient's autonomy).
---------------------------------------------------------------------------

    Throughout these final regulations the Department aims to respect 
the autonomy of complainants and to recognize the importance of a 
complainant retaining as much control as possible over their own 
circumstances following a sexual harassment experience, while also 
ensuring that complainants have clear information about how to access 
the supportive measures a recipient has available (and how to file a 
formal complaint initiating a grievance process against a respondent if 
the complainant chooses to do so) if and when the complainant desires 
for a recipient to respond to the complainant's situation.\156\ The 
Department recognizes the complexity involved in determining best 
practices with respect to which employees of postsecondary institutions 
should be mandatory reporters versus which employees of postsecondary 
institutions should remain resources in whom students may confide 
without automatically triggering a report of the student's sexual 
harassment situation to the Title IX Coordinator or other college or 
university officials.\157\
---------------------------------------------------------------------------

    \156\ Section 106.44(a) (describing a recipient's general 
response obligations).
    \157\ E.g., Merle H. Weiner, A Principled and Legal Approach to 
Title IX Reporting, 85 Tenn. L. Rev. 71, 188 (2017) (``The 
classification of employees as [mandatory] reporters should include 
those who students expect to have the authority to redress the 
violence or the obligation to report it, and should exclude those 
who students turn to for support instead of for reporting. Faculty 
should not be designated reporters, but high-level administrators 
should be. Schools should carefully consider how to classify 
employees who are resident assistants, campus police, coaches, 
campus security authorities, and employment supervisors. A well-
crafted policy will be the product of thoughtful conversations about 
online reporting, anonymous reporting, third-party reports, and 
necessary exceptions for situations involving minors and imminent 
risks of serious harm.'').
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    Through the actual knowledge condition as defined and applied in 
these final regulations, the Department intends to ensure that every 
complainant in a postsecondary institution knows that if or when the 
complainant desires for the recipient to respond to a sexual harassment 
experience (by offering supportive measures, by investigating 
allegations, or both), the complainant has clear, accessible channels 
by which to report and/or file a formal complaint.\158\ The Department 
also intends to leave postsecondary institutions wide discretion to 
craft and implement the recipient's own employee reporting policy to 
decide (as to employees who are not the Title IX Coordinator and not 
officials with authority) which employees are mandatory reporters 
(i.e., employees who must report sexual harassment to the Title IX 
Coordinator), which employees may listen to a student's or employee's 
disclosure of sexual harassment without being required to report it to 
the Title IX Coordinator, and/or which employees must report sexual 
harassment to the Title IX Coordinator but only with the complainant's 
consent. No matter how a college or university designates its employees 
with respect to mandatory reporting to the Title IX Coordinator, the 
final regulations ensure that students at postsecondary institutions, 
as well as employees, are notified of the Title IX Coordinator's 
contact information and have clear reporting channels, including 
options accessible even during non-business hours,\159\ for reporting 
sexual harassment in order to trigger the postsecondary institution's 
response obligations.
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    \158\ Section 106.8(a) (requiring recipients to notify students, 
employees, and others of the contact information for their Title IX 
Coordinators and stating that any person may report sexual 
harassment by using that contact information, and that reports can 
be made during non-business hours by mail to the listed office 
address or by using the listed telephone number or email address); 
Sec.  106.8(b) (requiring a recipient to post the Title IX 
Coordinator's contact information on the recipient's website); Sec.  
106.30 (defining ``formal complaint'' and providing that any 
complainant may file a formal complaint by using the email address, 
or by mail to the office address, listed for the Title IX 
Coordinator, or by any additional method designated by the 
recipient).
    \159\ Section 106.8 (stating that a report of sexual harassment 
may be made at any time, including during non-business hours, by 
using the telephone number or email address, or by mail to the 
office address, listed for the Title IX Coordinator, and requiring 
recipients to prominently display the Title IX Coordinator's contact 
information on the recipient's website).
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    As to all recipients, these final regulations provide that the mere 
ability or obligation to report sexual harassment or to inform a 
student about how to report sexual harassment, or having been trained 
to do so, does not qualify an individual (such as a volunteer parent, 
or alumnus) as an official with authority to institute corrective 
measures on behalf of the recipient.\160\ The Department does not wish 
to discourage recipients from training individuals who interact with 
the recipient's students about how to report sexual harassment, 
including informing students about how to report sexual harassment. 
Accordingly, the Department will not assume that a person is an 
official with authority solely based on the fact that the person has 
received training on how to report sexual harassment or has the ability 
or obligation to report sexual harassment. Similarly, the Department 
will not conclude that volunteers and independent contractors are 
officials with authority, unless the recipient has granted the 
volunteers or independent contractors authority to institute corrective 
measures on behalf of the recipient.
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    \160\ Section 106.30 (defining ``actual knowledge'').
---------------------------------------------------------------------------

Deliberate Indifference

    Once a recipient is charged with actual knowledge of sexual 
harassment in its education program or activity, it becomes necessary 
to evaluate the recipient's response. Although the Department is not 
required to adopt the deliberate indifference standard articulated in 
the Gebser/Davis framework, we believe that deliberate indifference, 
with adaptions for administrative enforcement, constitutes the best 
policy approach to further Title IX's non-discrimination mandate.
    As the Supreme Court explained in Davis, a recipient acts with 
deliberate indifference only when it responds to

[[Page 30044]]

sexual harassment in a manner that is ``clearly unreasonable in light 
of the known circumstances'' \161\ because for a recipient with actual 
knowledge to respond in a clearly unreasonable manner constitutes the 
recipient committing intentional discrimination.\162\ The deliberate 
indifference standard under the Gebser/Davis framework is the starting 
point under these final regulations, so that the Department's 
regulations clearly prohibit instances when the recipient chooses to 
permit discrimination. The Department tailors this standard for 
administrative enforcement, to hold recipients accountable for 
responding meaningfully every time the recipient has actual knowledge 
of sexual harassment through a general obligation to not act clearly 
unreasonably in light of the known circumstances, and specific 
obligations that each recipient must meet as part of its response to 
sexual harassment.
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    \161\ Davis, 526 U.S. at 648-49.
    \162\ Gebser, 524 U.S. at 290 (deliberate indifference ensures 
that the recipient is liable for ``its own official decision'' to 
permit discrimination).
---------------------------------------------------------------------------

    Based on consideration of the text and purpose of Title IX, the 
reasoning underlying the Supreme Court's decisions in Gebser and Davis, 
and more than 124,000 public comments on the proposed regulations, the 
Department adopts, but adapts, the deliberate indifference standard in 
a manner that imposes mandatory, specific obligations on recipients 
that are not required under the Gebser/Davis framework. The Department 
developed these requirements in response to commenters' concerns that 
the standard of deliberate indifference gives recipients too much 
leeway in responding to sexual harassment, and in response to 
commenters who requested greater clarity about how the Department will 
apply the deliberate indifference standard.
    The Department revises Sec.  106.44(a) to specify that a 
recipient's response: must be prompt; must consist of offering 
supportive measures to a complainant; \163\ must ensure that the Title 
IX Coordinator contacts each complainant (i.e., person who is alleged 
to be the victim of sexual harassment) to discuss supportive measures, 
consider the complainant's wishes regarding supportive measures, inform 
the complainant of the availability of supportive measures with or 
without the filing of a formal complaint, and explain to the 
complainant the process for filing a formal complaint. This mandatory, 
proactive, and interactive process helps ensure that complainants 
receive the response that will most effectively address the 
complainant's needs in each circumstance. Additionally, revised Sec.  
106.44(a) specifies that the recipient's response must treat 
complainants and respondents equitably, meaning that for a complainant, 
the recipient must offer supportive measures, and for a respondent, the 
recipient must follow a grievance process that complies with Sec.  
106.45 before imposing disciplinary sanctions. If a respondent is found 
to be responsible for sexual harassment, the recipient must effectively 
implement remedies for the complainant, designed to restore or preserve 
the complainant's equal educational access, and may impose disciplinary 
sanctions on the respondent.\164\ These final regulations thus hold 
recipients accountable for responses to sexual harassment designed to 
protect complainants' equal educational access, and provide due process 
protections to both parties before restricting a respondent's 
educational access. By using a deliberate indifference standard to 
evaluate a recipient's selection of supportive measures and remedies, 
and refraining from second guessing a recipient's disciplinary 
decisions, these final regulations leave recipients legitimate and 
necessary flexibility to make decisions regarding the supportive 
measures, remedies, and discipline that best address each sexual 
harassment incident. Sexual harassment allegations present context-
driven, fact-specific, needs and concerns for each complainant, and 
like the Supreme Court, the Department believes that recipients have 
unique knowledge of their own educational environment and student body, 
and are best positioned to make decisions about which supportive 
measures and remedies meet each complainant's need to restore or 
preserve the right to equal access to education, and which disciplinary 
sanctions are appropriate against a respondent who is found responsible 
for sexual harassment.
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    \163\ Under Sec.  106.44(a) the recipient must respond in a 
manner that is not clearly unreasonable in light of the known 
circumstances, and under Sec.  106.30 defining ``supportive 
measures,'' the Title IX Coordinator is responsible for the 
effective implementation of supportive measures. Thus, a recipient 
must provide supportive measures (that meet the definition in Sec.  
106.30) unless, for example, a complainant does not wish to receive 
supportive measures. Under Sec.  106.45(b)(10) a recipient must 
document the reasons why the recipient's response was not 
deliberately indifferent and specifically, if a recipient does not 
provide a complainant with supportive measures, the recipient must 
document the reasons why such a response was not clearly 
unreasonable in light of the known circumstances.
    \164\ Section 106.45(b)(1)(i); see also Brian Bardwell, No One 
is an Inappropriate Person: The Mistaken Application of Gebser's 
``Appropriate Person'' Test to Title IX Peer-Harassment Cases, 68 
Case W. Res. L. Rev. 1343, 1364-65 (2018) (``Title IX certainly does 
not suggest that offenders should not be punished for creating a 
hostile environment, but its implementation has consistently focused 
more heavily on taking actions on behalf of the students whom that 
environment has denied the benefit of their education.''). The 
Department's focus in these final regulations is on ensuring that 
recipients take action to restore and preserve a complainant's equal 
educational access, leaving recipients discretion to make 
disciplinary decisions when a respondent is found responsible.
---------------------------------------------------------------------------

    The Department's guidance set forth a liability standard more like 
reasonableness, or even strict liability,\165\ instead of deliberate 
indifference, to evaluate a recipient's response to sexual harassment. 
The 2001 Guidance, withdrawn 2011 Dear Colleague Letter, and 2017 Q&A, 
took the position that a recipient's response to sexual harassment must 
effectively stop harassment and prevent its recurrence.\166\ The 
Department's guidance did not distinguish between an ``investigation'' 
to determine how to appropriately respond to the complainant (for 
instance, by providing supportive measures) and an

[[Page 30045]]

investigation for the purpose of potentially punishing a 
respondent.\167\ Similarly, the 2001 Guidance, withdrawn 2011 Dear 
Colleague Letter, and 2017 Q&A used the phrases ``interim measures'' or 
``interim steps'' to describe measures to help a complainant maintain 
equal educational access.\168\ However, unlike these final regulations' 
definition of ``supportive measures'' in Sec.  106.30, the Department 
guidance implied that such measures were only available during the 
pendency of an investigation (i.e., during an ``interim'' period), did 
not mandate offering supportive measures, did not clarify whether 
respondents also may receive supportive measures,\169\ and did not 
specify that supportive measures should not be punitive, disciplinary, 
or unreasonably burden the other party. The Department's guidance 
recommended remedies for victims \170\ and disciplinary sanctions 
against harassers \171\ but did not specify that remedies are mandatory 
for complainants, and disciplinary sanctions cannot be imposed on a 
respondent without following a fair investigation and adjudication 
process, thereby lacking clarity as to whether interim punitive or 
disciplinary action is appropriate. These final regulations clarify 
that supportive measures cannot be punitive or disciplinary against any 
party and that disciplinary sanctions cannot be imposed against a 
respondent unless the recipient follows a grievance process that 
complies with Sec.  106.45.\172\ The Department's guidance instructed 
recipients to investigate even when the complainant did not want the 
recipient to investigate,\173\ and directed recipients to honor a 
complainant's request for the complainant's identity to remain 
undisclosed from the respondent, unless a public institution owed 
constitutional due process obligations that would require that the 
respondent know the complainant's identity.\174\ These final 
regulations obligate a recipient to initiate a grievance process when a 
complainant files, or a Title IX Coordinator signs, a formal 
complaint,\175\ so that the Title IX Coordinator takes into account the 
wishes of a complainant and only initiates a grievance process against 
the complainant's wishes if doing so is not clearly unreasonable in 
light of the known circumstances. Unlike the Department's guidance, 
these final regulations prescribe that the only recipient official who 
is authorized to initiate a grievance process against a respondent is 
the Title IX Coordinator (by signing a formal complaint). As discussed 
in the ``Formal Complaint'' subsection of the ``Section 106.30 
Definitions'' section of this preamble, the Department believes this 
restriction will better ensure that a complainant's desire not to be 
involved in a grievance process or desire to keep the complainant's 
identity undisclosed to the respondent will be overridden only by a 
trained individual (i.e., the Title IX Coordinator) and only when 
specific circumstances justify that action. These final regulations 
clarify that the recipient's decision not to investigate when the 
complainant does not wish to file a formal complaint will be evaluated 
by the Department under the deliberate indifference standard; that is, 
whether that decision was clearly unreasonable in light of the known 
circumstances.\176\ Similarly, a Title IX Coordinator's decision to 
sign a formal complaint initiating a grievance process against the 
complainant's wishes \177\ also will be

[[Page 30046]]

considered under the deliberate indifference standard. At the same 
time, these final regulations ensure that a recipient must offer 
supportive measures to a complainant, regardless of whether the 
complainant decides to file, or the Title IX Coordinator decides to 
sign, a formal complaint.\178\ With or without a grievance process that 
determines a respondent's responsibility, these final regulations 
require a recipient to offer supportive measures to a complainant, 
tailored to each complainant's unique circumstances,\179\ similar to 
the Department's 2001 Guidance that directed a recipient to take 
timely, age-appropriate action, ``tailored to the specific situation'' 
with respect to providing ``interim'' measures to help a 
complainant.\180\ These final regulations, however, clarify that 
supportive measures must be offered not only in an ``interim'' period 
during an investigation, but regardless of whether an investigation is 
pending or ever occurs. While the Department's guidance did not address 
emergency situations arising out of sexual harassment allegations, 
these final regulations expressly authorize recipients to remove a 
respondent from the recipient's education programs or activities on an 
emergency basis, with or without a grievance process pending, as long 
as post-deprivation notice and opportunity to challenge the removal is 
given to the respondent.\181\ A recipient's decision to initiate an 
emergency removal will also be evaluated under the deliberate 
indifference standard.
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    \165\ 2001 Guidance at iv, vi (in response to public comment 
concerned that requiring an ``effective'' response by the school, 
with respect to stopping and preventing recurrence of harassment, 
meant a school would have to be ``omniscient,'' the 2001 Guidance in 
its preamble insisted that ``Effectiveness is measured based on a 
reasonableness standard. Schools do not have to know beforehand that 
their response will be effective.''). Nonetheless, the 2001 Guidance 
stated the liability standard as requiring ``effective corrective 
actions to stop the harassment [and] prevent its recurrence,'' which 
ostensibly holds a recipient strictly liable to ``stop'' and 
``prevent'' sexual harassment. 2001 Guidance at 10, 12. Whether or 
not the liability standard set forth in Department guidance is 
characterized as one of ``reasonableness'' or ``strict liability,'' 
in these final regulations the Department desires to utilize a ``not 
clearly unreasonable in light of the known circumstances'' liability 
standard (i.e., deliberate indifference) as the general standard for 
a school's response, so that schools must comply with all the 
specific requirements set forth in these final regulations, and a 
school's actions with respect to matters that are not specifically 
set forth are measured under a liability standard that preserves the 
discretion of schools to take into account the unique factual 
circumstances of sexual harassment situations that affect a school's 
students and employees.
    \166\ 2001 Guidance at 15 (stating recipients ``should take 
immediate and appropriate steps to investigate or otherwise 
determine what occurred and take prompt and effective steps 
reasonably calculated to end any harassment, eliminate a hostile 
environment if one has been created, and prevent harassment from 
occurring again''); id. at 10 (``Schools are responsible for taking 
prompt and effective action to stop the harassment and prevent its 
recurrence.''); id. at 12 (a recipient ``is responsible for taking 
immediate effective action to eliminate the hostile environment and 
prevent its recurrence.''); 2011 Dear Colleague Letter at 4 
(recipients must ``take immediate action to eliminate the harassment 
[and] prevent its recurrence''); 2017 Q&A at 3 (referencing the 2001 
Guidance's approach to preventing recurrence of sexual misconduct).
    \167\ 2001 Guidance at 15 (``Regardless of whether the student 
who was harassed, or his or her parent, decides to file a formal 
complaint or otherwise request action on the student's behalf . . . 
the school must promptly investigate to determine what occurred and 
then take appropriate steps to resolve the situation. The specific 
steps in an investigation will vary depending upon the nature of the 
allegations, the source of the complaint, the age of the student or 
students involved, the size and administrative structure of the 
school, and other factors. However, in all cases the inquiry must be 
prompt, thorough, and impartial.''); 2011 Dear Colleague Letter at 
4-5.
    \168\ Compare Sec.  106.30 (defining ``supportive measures'' as 
individualized services provided to a complainant or respondent that 
are non-punitive, non-disciplinary, and do not unreasonably burden 
the other party yet are designed to restore or preserve a person's 
equal access to education) with 2001 Guidance at 16 (``It may be 
appropriate for a school to take interim measures during the 
investigation of a complaint. For instance, if a student alleges 
that he or she has been sexually assaulted by another student, the 
school may decide to place the students immediately in separate 
classes or in different housing arrangements on a campus, pending 
the results of the school's investigation) (emphasis added). 2011 
Dear Colleague Letter at 16 (``Title IX requires a school to take 
steps to protect the complainant as necessary, including taking 
interim steps before the final outcome of the investigation. . . . 
The school should notify the complainant of his or her options to 
avoid contact with the alleged perpetrator and allow students to 
change academic or living situations as appropriate.'') (emphasis 
added); 2017 Q&A at 2-3 (``It may be appropriate for a school to 
take interim measures during the investigation of a complaint'' and 
insisting that schools not make such measures available only to one 
party) (emphasis added). Describing such individualized services in 
Sec.  106.30 as ``supportive measures'' rather than as ``interim'' 
measures or ``interim'' steps reinforces that supportive measures 
must be offered to a complainant whether or not a grievance process 
is pending, and reinforces that the final regulations authorize 
initiation of a grievance process only where the complainant has 
filed, or the Title IX Coordinator has signed, a formal complaint. 
Sec.  106.44(a); Sec.  106.44(b)(1); Sec.  106.30 (defining ``formal 
complaint'').
    \169\ See, e.g., 2017 Q&A at 3 (providing that schools must not 
make interim measures available only to one party).
    \170\ 2001 Guidance at 10 (``The recipient is, therefore, also 
responsible for remedying any effects of the harassment on the 
victim, as well as for ending the harassment and preventing its 
recurrence. This is true whether or not the recipient has `notice' 
of the harassment.''); id. at 16-17. The 2011 Dear Colleague Letter 
took a similar approach, requiring schools to ``take immediate 
action to eliminate the harassment, prevent its recurrence, and 
address its effects.'' 2011 Dear Colleague Letter at 4; see also id. 
at 15 (``effective corrective action may require remedies for the 
complainant'').
    \171\ See 2001 Guidance at 16 (``Appropriate steps should be 
taken to end the harassment. For example, school personnel may need 
to counsel, warn, or take disciplinary action against the harasser, 
based on the severity of the harassment or any record of prior 
incidents or both.''); 2011 Dear Colleague Letter at 15 (addressing 
sexual harassment may necessitate ``counseling or taking 
disciplinary action against the harasser''); 2017 Q&A at 6 
(``Disciplinary sanction decisions must be made for the purpose of 
deciding how best to enforce the school's code of student conduct 
while considering the impact of separating a student from her or his 
education. Any disciplinary decision must be made as a proportionate 
response to the violation.'').
    \172\ Section 106.30 (defining ``supportive measures''); Sec.  
106.44(a); Sec.  106.45(b)(1).
    \173\ 2001 Guidance at 15 (``Regardless of whether the student 
who was harassed, or his or her parent, decides to file a formal 
complaint or otherwise request action on the student's behalf 
(including in cases involving direct observation by a responsible 
employee), the school must promptly investigate to determine what 
occurred and then take appropriate steps to resolve the 
situation.''); 2011 Dear Colleague Letter at 4.
    \174\ 2001 Guidance at 17-18 (if the complainant desires that 
the complainant's identity not be disclosed to the alleged harasser, 
but constitutional due process owed by a public school means that 
``the alleged harasser could not respond to the charges of sexual 
harassment without that information'' then ``in evaluating the 
school's response, OCR would not expect disciplinary action against 
an alleged harasser.''); 2011 Dear Colleague Letter at 5 (``If the 
complainant requests confidentiality or asks that the complaint not 
be pursued, the school should take all reasonable steps to 
investigate and respond to the complaint consistent with the request 
for confidentiality or request not to pursue an investigation. If a 
complainant insists that his or her name or other identifiable 
information not be disclosed to the alleged perpetrator, the school 
should inform the complainant that its ability to respond may be 
limited'' if due process owed by a public institution requires 
disclosure of the complainant's identity to the respondent.); 2014 
Q&A at 21-22 (``When weighing a student's request for 
confidentiality that could preclude a meaningful investigation or 
potential discipline of the alleged perpetrator, a school should 
consider a range of factors. . . . A school should take requests for 
confidentiality seriously, while at the same time considering its 
responsibility to provide a safe and nondiscriminatory environment 
for all students, including the student who reported the sexual 
violence.'').
    \175\ Section 106.44(b)(1); Sec.  106.45(b)(3)(i); Sec.  106.30 
(defining ``formal complaint'').
    \176\ Section 106.44(a); Sec.  106.45(b)(10)(ii) (requiring a 
recipient to document its reasons why it believes its response to a 
sexual harassment incident was not deliberately indifferent).
    \177\ Complainants may not wish for a recipient to investigate 
allegations for a number of legitimate reasons. The Department 
understands that a recipient may, under some circumstances, reach 
the conclusion that initiating a grievance process when a 
complainant does not wish to participate is necessary, but endeavors 
through these final regulations to respect a complainant's autonomy 
with respect to how a recipient responds to a complainant's 
individual situation by, for example, requiring such a conclusion to 
be reached by the specially trained Title IX Coordinator (whose 
obligations include having communicated with the complainant about 
the complainant's wishes) and requiring the recipient to document 
the reasons why the recipient believes that its response was not 
deliberately indifferent. Sec.  106.44(a); Sec.  106.45(b)(10).
    \178\ Section 106.44(a).
    \179\ Section 106.44(a) (requiring the recipient to offer 
supportive measures to a complainant, and requiring the Title IX 
Coordinator to discuss supportive measures with a complainant and 
consider the complainant's wishes regarding supportive measures); 
Sec.  106.30 (defining ``supportive measures'' as ``individualized 
services'').
    \180\ 2001 Guidance at 16.
    \181\ Section 106.44(c).
---------------------------------------------------------------------------

    These final regulations impose specific requirements on recipients 
responding to sexual harassment, and failure to comply constitutes a 
violation of these Title IX regulations and, potentially, 
discrimination under Title IX. In addition to the specific requirements 
imposed by these final regulations, all other aspects of a recipient's 
response to sexual harassment are evaluated by what was not clearly 
unreasonable in light of the known circumstances.\182\ Recipients must 
also document their reasons why each response to sexual harassment was 
not deliberately indifferent.\183\
---------------------------------------------------------------------------

    \182\ Section 106.44(b)(2) (providing that recipient responses 
to sexual harassment must be non-deliberately indifferent, meaning 
not clearly unreasonable in light of the known circumstances, and 
must comply with all the specific requirements in Sec.  106.44(a), 
regardless of whether a formal complaint is ever filed).
    \183\ Section 106.45(b)(10). As revised, this provision states 
that if a recipient does not provide supportive measures as part of 
its response to sexual harassment, the recipient specifically must 
document why that response was not clearly unreasonable in light of 
the known circumstances (for example, perhaps the complainant did 
not want any supportive measures).
---------------------------------------------------------------------------

    In this manner, the Department believes that these final 
regulations create clear legal obligations that facilitate the 
Department's robust enforcement of a recipient's Title IX 
responsibilities. The mandatory obligations imposed on recipients under 
these final regulations share the same aim as the Department's guidance 
(i.e., ensuring that recipients take actions in response to sexual 
harassment that are reasonably calculated to stop harassment and 
prevent recurrence of harassment); however, these final regulations do 
not unrealistically hold recipients responsible where the recipient 
took all steps required under these final regulations, took other 
actions that were not clearly unreasonable in light of the known 
circumstances, and a perpetrator of harassment reoffends. Recipients 
cannot be guarantors that sexual harassment will never occur in 
education programs or activities,\184\ but recipients can and will, 
under these final regulations, be held accountable for responding to 
sexual harassment in ways designed to ensure complainants' equal access 
to education without depriving any party of educational access without 
due process or fundamental fairness.\185\
---------------------------------------------------------------------------

    \184\ Under the liability standard set forth in Department 
guidance, recipients were expected to take actions that ``stop the 
harassment and prevent its recurrence.'' See, e.g., 2001 Guidance at 
12. Even if a recipient expelled a respondent, issued a no-trespass 
order against the respondent, and took all other conceivable 
measures to try to eliminate and prevent the recurrence of the 
sexual harassment, under that liability standard the recipient was 
still responsible for any unforeseen and unexpected recurrence of 
sexual harassment. The Department believes the preferable way of 
ensuring that recipients remedy sexual harassment in its education 
programs or activities is set forth in these final regulations, 
whereby a recipient must take specified actions, and a recipients' 
decisions with respect to discretionary actions are evaluated in 
light of the known circumstances.
    \185\ As discussed in the ``Role of Due Process in the Grievance 
Process'' section of this preamble, implementing remedies and 
sanctions without due process protections sometimes resulted in the 
denial of another party's equal access to the recipient's education 
programs or activities because the other party was not afforded 
notice and a meaningful opportunity to respond to the allegations of 
sexual harassment.
---------------------------------------------------------------------------

    Additionally, the Department clarifies in Sec.  106.44(a) that the 
Department may not require a recipient to restrict rights protected 
under the U.S. Constitution, including the First Amendment, the Fifth 
Amendment, and the Fourteenth Amendment, to satisfy the recipient's 
duty to not be deliberately indifferent under this part. This language 
incorporates principles articulated in the 2001 Guidance \186\ and 
mirrors Sec.  106.6(d) in the NPRM, which remains the same in these 
final regulations and states that nothing in Part 106 of Title 34 of 
the Code of Federal Regulations, which includes these final 
regulations, requires a recipient to restrict rights protected under 
the U.S. Constitution. With this revision in Sec.  106.44(a) the 
Department reinforces the premise of Sec.  106.6(d), cautioning 
recipients not to view restrictions of constitutional rights as a means 
of satisfying the duty not to be deliberately indifferent to sexual 
harassment under Title IX.
---------------------------------------------------------------------------

    \186\ 2001 Guidance at 22.
---------------------------------------------------------------------------

Role of Due Process in the Grievance Process

    As discussed above in the ``Adoption and Adaption of the Supreme 
Court's Framework to Address Sexual Harassment'' section of this 
preamble, the Supreme Court has held that sexual harassment is a form 
of sex discrimination under Title IX, and that a recipient commits 
intentional sex discrimination when the recipient knows of conduct that 
could constitute actionable sexual harassment and responds in a manner 
that is deliberately indifferent.\187\ However, the Supreme Court's 
Title IX cases have not specified conditions under which a recipient 
must initiate disciplinary proceedings against a person accused of 
sexual harassment, or what procedures must apply in any such 
disciplinary proceedings, as part of a recipient's non-deliberately 
indifferent response to sexual harassment.\188\ Similarly, the

[[Page 30047]]

Supreme Court has not addressed procedures that a recipient must use in 
a disciplinary proceeding resolving sexual harassment allegations under 
Title IX in order to meet constitutional due process of law 
requirements (for recipients who are State actors), or requirements of 
fundamental fairness (for recipients who are not State actors).
---------------------------------------------------------------------------

    \187\ See the ``Adoption and Adaption of the Supreme Court's 
Framework to Address Sexual Harassment'' section of this preamble.
    \188\ See, e.g., Davis, 526 U.S. at 654 (holding that 
plaintiff's complaint should not be dismissed as a matter of law 
because plaintiff ``may be able to show both actual knowledge and 
deliberate indifference on the part of the Board, which made no 
effort whatsoever either to investigate or to put an end to the 
harassment'' without indication as to whether an investigation was 
required, or what due process procedures must be applied during such 
an investigation); see also Grayson Sang Walker, The Evolution and 
Limits of Title IX Doctrine on Peer Sexual Assault, 45 Harv. C.R.-
C.L. L. Rev. 95, fn. 139 (2010) (``Davis was silent on the scope, 
thoroughness, and timeliness of any investigation that a school may 
undertake and the procedures that should apply at a grievance 
hearing. To the extent that Davis can be interpreted as a call for 
some type of investigation and adjudication of sexual harassment 
complaints, the instruction represents the triumph of form over 
substance.'').
---------------------------------------------------------------------------

    At the time initial regulations implementing Title IX were issued 
by HEW in 1975, the Federal courts had not yet addressed recipients' 
Title IX obligations to address sexual harassment as a form of sex 
discrimination; thus, the equitable grievance procedures required in 
the 1975 rule did not contemplate the unique circumstances that sexual 
harassment allegations present, where through an equitable grievance 
process a recipient often must weigh competing narratives about a 
particular incident between two (or more) individuals and arrive at a 
factual determination in order to then decide whether, or what kind of, 
actions are appropriate to ensure that no person is denied educational 
opportunities on the basis of sex.
    The Department's guidance since 1997 has acknowledged that 
recipients have an obligation to respond to sexual harassment that 
constitutes sex discrimination under Title IX by applying the ``prompt 
and equitable'' grievance procedures in place for resolution of 
complaints of sex discrimination required under the Department's 
regulations.\189\ With respect to what constitutes equitable grievance 
procedures, the 2001 Guidance (which revised but largely retained the 
same recommendations as the 1997 Guidance) interpreted 34 CFR 106.8 
(requiring recipients to adopt and publish equitable grievance 
procedures) to mean procedures that provide for: ``Adequate, reliable, 
and impartial investigation of complaints [of sexual harassment], 
including the opportunity to present witnesses and other evidence.'' 
\190\ The 2001 Guidance advised, ``The specific steps in an 
investigation will vary depending upon the nature of the allegations, 
the source of the complaint, the age of the student or students 
involved, the size and administrative structure of the school, and 
other factors. However, in all cases the inquiry must be prompt, 
thorough, and impartial.'' \191\
---------------------------------------------------------------------------

    \189\ 1997 Guidance (``Schools are required by the Title IX 
regulations to have grievance procedures through which students can 
complain of alleged sex discrimination, including sexual 
harassment.''); 2001 Guidance at 19; 2011 Dear Colleague Letter at 
6; 2017 Q&A at 3; 34 CFR 106.8(b) (``A recipient shall adopt and 
publish grievance procedures providing for prompt and equitable 
resolution of student and employee complaints alleging any action 
which would be prohibited by this part.'').
    \190\ 2001 Guidance at 20 (also specifying that equitable 
grievance procedures must provide for ``[d]esignated and reasonably 
prompt time frames for the major stages of the complaint process'' 
and ``[n]otice to the parties of the outcome of the complaint''); 
2011 Dear Colleague Letter at 8 (``Any procedures used to adjudicate 
complaints of sexual harassment or sexual violence, including 
disciplinary procedures, however, must meet the Title IX requirement 
of affording a complainant a prompt and equitable resolution.''); 
id. at 9-10 (citing to the 2001 Guidance for the requirements that 
equitable grievance procedures must include ``[a]dequate, reliable, 
and impartial investigation of complaints, including the opportunity 
for both parties to present witnesses and other evidence,'' 
``[d]esignated and reasonably prompt time frames for the major 
stages of the complaint process,'' and ``[n]otice to parties of the 
outcome of the complaint'' and unlike the 2001 Guidance, which was 
silent on what standard of evidence to apply, the 2011 Dear 
Colleague Letter took the position that recipients must use only the 
preponderance of the evidence standard for sexual harassment 
complaints); id. at 11, fn. 29 (adding that in an equitable 
grievance process ``[t]he complainant and the alleged perpetrator 
must be afforded similar and timely access to any information that 
will be used at the hearing'' consistent with FERPA and while 
protecting privileged information and withholding from the alleged 
perpetrator information about the complainant's sexual history).
    \191\ 2001 Guidance at 15; see also id. at 20 (``Procedures 
adopted by schools will vary considerably in detail, specificity, 
and components, reflecting differences in audiences, school sizes 
and administrative structures, State or local legal requirements, 
and past experience.'') As explained further in the ``Similarities 
and Differences Between the Sec.  106.45 Grievance Process and 
Department Guidance'' subsection below in this section of the 
preamble, and throughout this preamble, the 2011 Dear Colleague 
Letter and 2017 Q&A took additional positions with respect to 
procedures that should be part of ``prompt and equitable'' grievance 
procedures; however, Department guidance has not set forth specific 
procedures necessary to ensure that grievance procedures are 
``adequate, reliable, and impartial'' while also complying with due 
process.
---------------------------------------------------------------------------

    The 2001 Guidance advised: ``The rights established under Title IX 
must be interpreted consistent with any federally guaranteed due 
process rights involved in a complaint proceeding'' and ``Procedures 
that ensure the Title IX rights of the complainant, while at the same 
time according due process to both parties involved, will lead to sound 
and supportable decisions.''\192\ The withdrawn 2011 Dear Colleague 
Letter mentioned due process only with respect to recipients that are 
State actors (i.e., public institutions), implied that due process only 
benefits respondents, and implied that due process may need to yield to 
protect complainants: ``Public and state-supported schools must provide 
due process to the alleged perpetrator. However, schools should ensure 
that steps taken to accord due process rights to the alleged 
perpetrator do not restrict or unnecessarily delay the Title IX 
protections for the complainant.'' \193\ The 2017 Q&A did not expressly 
reference the need for constitutional due process but directed 
recipients to look to the 2001 Guidance as to matters not addressed in 
the 2017 Q&A.\194\
---------------------------------------------------------------------------

    \192\ 2001 Guidance at 22.
    \193\ 2011 Dear Colleague Letter at 12. The withdrawn 2014 Q&A 
combined the due process positions of the 2001 Guidance and 
withdrawn 2011 Dear Colleague Letter: ``The rights established under 
Title IX must be interpreted consistently with any federally 
guaranteed due process rights. Procedures that ensure the Title IX 
rights of the complainant, while at the same time according any 
federally guaranteed due process to both parties involved, will lead 
to sound and supportable decisions. Of course, a school should 
ensure that steps to accord any due process rights do not restrict 
or unnecessarily delay the protections provided by Title IX to the 
complainant.'' 2014 Q&A at 13.
    \194\ 2017 Q&A at 1.
---------------------------------------------------------------------------

    These final regulations build on a premise of the 2001 Guidance and 
withdrawn 2011 Dear Colleague Letter--that Title IX cannot be 
interpreted in a manner that denies any person due process of law under 
the U.S. Constitution. These final regulations reaffirm the premise 
expressed in the 2001 Guidance--that due process protections are 
important for both complainants and respondents, do not exist solely to 
protect respondents, and result in ``sound and supportable'' decisions 
in sexual harassment cases.\195\ These final regulations, however, 
provide recipients with prescribed procedures that ensure that Title IX 
is enforced consistent with both constitutional due process, and 
fundamental fairness, so that whether a student attends a public or 
private institution, the student has the benefit of a consistent, 
transparent grievance process with strong procedural protections 
regardless of whether the student is a complainant or respondent.
---------------------------------------------------------------------------

    \195\ 2001 Guidance at 22.
---------------------------------------------------------------------------

    Neither the 2001 Guidance, nor the withdrawn 2011 Dear Colleague 
Letter, nor the 2017 Q&A, informed recipients of what procedures might 
be necessary to ensure that a grievance process is both ``adequate, 
fair, and reliable'' and consistent with constitutional due process. 
While the Department's guidance appropriately and beneficially drew 
recipients' attention to the need to take sexual harassment seriously 
under Title IX, the lack of specificity in how

[[Page 30048]]

to meet Title IX obligations while ensuring due process protections for 
complainants and respondents,\196\ has led to increasing numbers of 
lawsuits \197\ and OCR complaints \198\ against recipients since 
issuance of the now-withdrawn 2011 Dear Colleague Letter, alleging that 
recipients have mishandled Title IX sexual harassment cases resulting 
in injustice for complainants and for respondents. Public debates have 
emerged questioning whether recipients should leave criminal matters 
like sexual assault to the criminal justice system,\199\ or whether 
Title IX requires recipients to ``do both''--respond meaningfully to 
allegations of sexual harassment (including sexual assault) on 
campuses, while also providing due process protections for both 
parties.\200\ The Department believes that recipients can and must ``do 
both,'' because sexual harassment impedes the equal educational access 
that Title IX is designed to protect and because no person's 
constitutional rights or right to fundamental fairness should be 
denied. These final regulations help recipients achieve both.
---------------------------------------------------------------------------

    \196\ E.g., Matthew R. Triplett, Sexual Assault on College 
Campuses: Seeking the Appropriate Balance Between Due Process and 
Victim Protection, 62 Duke L. J. 487, 489-90 (2012) (``Many colleges 
and universities responded to the April 4, 2011 Dear Colleague 
Letter . . . by amending their procedures for adjudicating 
allegations of sexual assault. Meanwhile, the letter itself has 
sparked a debate about the appropriate balance between protecting 
victims of assault and ensuring adequate due process for the accused 
in the context of campus adjudications. . . . [T]he Dear Colleague 
Letter suffers from a fatally inadequate discussion of the 
appropriate balance between victim protection and due process. 
Specifically, the document has raised more questions than it has 
answered, leaving the interests of both victims and accused students 
in flux. Because institutions simultaneously face statutory duties 
to respond properly to victims' claims of assault and constitutional 
or contractual obligations to provide due process to the accused, 
better-defined policies . . . are needed. Without such guidance, 
institutions are left with a choice. They may closely follow the 
OCR's guidelines on victim protection, thereby risking possible due-
process claims from alleged perpetrators, or they may independently 
attempt to balance victim-protection and due-process interests and 
risk Title IX violations for inadequate victim protection. Under 
either approach, institutions face potential liability, and both 
victims and alleged perpetrators may be insufficiently protected.'') 
(internal citations omitted); Sara Ganim & Nelli Black, An Imperfect 
Process: How Campuses Deal with Sexual Assault, CNN.com (Dec. 21, 
2015) (Alison Kiss, then-leader of the Clery Center for Security on 
Campus explained that ``schools were so eager to reverse years of 
mistreatment of victims . . . that some put procedures into place 
that led to an unfair process.'' Kiss stated: ``We want to see 
[college sexual assault disciplinary hearings] informed by trauma, 
and understand the dynamics that some of these crimes have. But they 
certainly have to be a hearing that's fair and that's impartial.''); 
Emily D. Safko, Are Campus Sexual Assault Tribunals Fair?: The Need 
for Judicial Review and Additional Due Process Protections in Light 
of New Case Law, 84 Fordham L. Rev. 2289, 2293 (2016) (observing 
that prior to Federal policy calling attention to campus sexual 
assault, ``[m]any have argued that schools have systematically 
failed to hold students accountable for their actions. These 
shortcomings, coupled with the prevalence of sexual misconduct on 
college campuses, provoked national debate and spurred colleges, 
Congress, and the White House to act. Colleges have begun to reform 
their policies, especially in light of an April 2011 `Dear 
Colleague' letter addressed to all Title IX institutions from [OCR]. 
Over time, however, these reforms have drawn criticism for 
`overcorrecting' the problem by overlooking the important and 
legally mandated protection of the interests and rights of those 
accused of misconduct.'') (internal citations omitted).
    \197\ E.g., Taylor Mooney, How Betsy DeVos plans to change the 
rules for handling sexual misconduct on campus, CBS News (Nov. 24, 
2019) (``Prior to 2011, the number of lawsuits filed against 
universities for failing to provide due process in Title IX cases 
averaged one per year. It is expected there will be over 100 such 
lawsuits filed in 2019 alone.'').
    \198\ E.g., Chronicle of Higher Education, Title IX: Tracking 
Sexual Assault Investigations (graph showing significant increase in 
number OCR Title IX investigations following the 2011 Dear Colleague 
Letter).
    \199\ E.g., Sarah L. Swan, Between Title IX and the Criminal 
Law: Bringing Tort Law to the Campus Sexual Assault Debate, 64 Univ. 
Kan. L. Rev. 963, 963 (2016) (``In a recent televised debate, four 
law professors partnered up to argue for, or against, the following 
proposition: `Courts, not campuses, should decide sexual assault 
cases.' Their staged debate reflected the heated discussion 
occurring in society more broadly over the most appropriate forum 
and method for addressing campus sexual assault. As campus sexual 
assault has finally ascended to the status of a national concern, 
attracting the attention of even the White House, two main camps 
have emerged: those who believe campus sexual assault is a crime, 
and thus best dealt with in the criminal courts, using criminal law 
tools; and those who believe campus sexual assault is a civil rights 
violation, and thus best dealt with through university disciplinary 
proceedings, using Title IX.'') (internal citation omitted); 
Alexandra Brodsky, Against Taking Rape ``Seriously'': The Case 
Against Mandatory Referral Laws for Campus Gender Violence, 53 Harv. 
C.R.-C.L. L. Rev. 131, 131 (2018) (analyzing State laws proposed in 
recent years that would mandate referral of campus sexual assault 
incidents to law enforcement and arguing that mandatory referral 
laws would decrease victim well-being and reduce the already-low 
number of victims willing to report sexual assault to campus Title 
IX offices).
    \200\ E.g., Association of Title IX Administrators (ATIXA), 
ATIXA Position Statement: Why Colleges Are in the Business of 
Addressing Sexual Violence 3-4 (Feb. 17, 2017) (noting that 
instances of recipients' failure to provide due process has led to 
public debate over whether Title IX should even cover criminal 
conduct such as sexual assault; observing that courts have recently 
begun doing a good job ``scolding'' recipients who do not provide 
due process and that OCR cases have included reprimanding recipients 
who failed to provide due process to the accused; and opining that 
``Some are genuinely concerned that colleges don't afford adequate 
due process to accused students. ATIXA shares these due process 
concerns. Unlike Title IX opponents however, we do not view this as 
a zero sum game, where providing for the needs of victims/survivors 
must inherently compromise the rights that attach to those who are 
accused of sexual violence. In fact, colleges must do both, and must 
do both better.''); Erin E. Buzuvis, Title IX and Procedural 
Fairness: Why Disciplined-Student Litigation Does Not Undermine the 
Role of Title IX in Campus Sexual Assault, 78 Mont. L. Rev. 71, 71-
72 (2017) (``In the last five years, the Department of Education has 
increased its efforts to enforce [Title IX], both resulting from and 
contributing to increased public attention to the widespread problem 
of sexual assault among students, particularly in higher education. 
The increase in both enforcement and public attention has motivated 
colleges and universities to improve their policies and practices 
for addressing sexual assault, including their disciplinary 
processes. . . . In some cases, disciplined-student plaintiffs have 
prevailed in overturning their punishment, causing many to suggest 
that colleges and universities are `overcorrecting' for earlier 
deficiencies in their procedures that lead to under-enforcement of 
campus policies banning sexual misconduct. Much of this rhetoric 
places blame on Title IX for universities' problems with compliance 
and calls, either implicitly or expressly, for repeal of Title IX's 
application to sexual assault.'') (internal citations omitted).
---------------------------------------------------------------------------

    Beginning in mid-2017 when the Department started to examine how 
schools, colleges, and universities were applying Title IX to sexual 
harassment under then-applicable guidance (e.g., the 2001 Guidance and 
the now-withdrawn 2011 Dear Colleague Letter), one of the themes 
brought to the Department's attention during listening sessions and 
discussions with stakeholders \201\ was that, in the absence of 
regulations explaining what fair, equitable procedures compliant with 
constitutional due process consist of, recipients have interpreted and 
applied the concept of equitable grievance procedures in the sexual 
harassment context unevenly across schools, colleges, and universities, 
at times employing procedures incompatible with constitutionally 
guaranteed due process \202\ and principles of fundamental fairness, 
and lacking impartiality and reliability.\203\ As noted

[[Page 30049]]

throughout this preamble including in the ``Personal Stories'' section, 
commenters described how grievance procedures applied under the 2001 
Guidance and withdrawn 2011 Dear Colleague Letter have lacked basic 
procedural protections for complainants and respondents and have 
appeared biased for or against complainants, or respondents.\204\ The 
result has been unpredictable Title IX adjudication systems under which 
complainants and respondents too often have been thrust into 
inconsistent, biased proceedings that deprive one or both parties of a 
fair process \205\ and have resulted in some determinations regarding 
responsibility viewed as unjust and unfair to complainants, and other 
determinations regarding responsibility viewed as unjust and unfair to 
respondents.\206\
---------------------------------------------------------------------------

    \201\ The Department met with stakeholders expressing a variety 
of positions for and against the then-applicable Department guidance 
documents, including advocates for survivors of sexual violence; 
advocates for accused students; organizations representing schools 
and colleges; attorneys representing survivors, the accused, and 
institutions; Title IX Coordinators and other school and college 
administrators; child and sex abuse prosecutors; scholars and 
experts in law, psychology, and neuroscience; and numerous 
individuals who have experienced school-level Title IX proceedings 
as a complainant or respondent.
    \202\ E.g., Blair A. Baker, When Campus Sexual Misconduct 
Policies Violate Due Process Rights, 26 Cornell J. of Law & Pub. 
Pol'y 533, 550-51 (2016) (``Since the 2011 Dear Colleague Letter, 
many students have sued their schools for procedural due process 
violations, alleging they had been found wrongfully responsible for 
sexual misconduct. In these cases, courts have begun to recognize 
the precarious factors of various universities' disciplinary 
procedures when evaluating whether or not a school violated a 
student's due process rights. As discussed, these factors include, 
but are not limited to, whether the school provided the student with 
adequate notice of the charges against him or her, afforded the 
student the right to confront, and provided the student with a right 
to counsel.'') (internal citations omitted).
    \203\ E.g., Association of Title IX Administrators (ATIXA), 
ATIXA Position Statement: Why Colleges Are in the Business of 
Addressing Sexual Violence 3-4 (Feb. 17, 2017) (acknowledging that 
due process has been denied in some recipients' Title IX proceedings 
but insisting that ``Title IX isn't the reason why due process is 
being compromised . . . . Due process is at risk because of the 
small pockets of administrative corruption . . . and because of the 
inadequate level of training currently afforded to administrators. 
College administrators need to know more about sufficient due 
process protections and how to provide these protections in 
practice.'') (emphasis added). The Department agrees that recipients 
need to know more about sufficient due process protections and what 
such protections need to look like in practice, and this belief 
underlies the Department's approach to the Sec.  106.45 grievance 
process which prescribes specific procedural features instead of 
simply directing recipients to provide due process protections, or 
be fair, for complainants and respondents. Edward N. Stoner II & 
John Wesley Lowery, Navigating Past the ``Spirit Of 
Insubordination'': A Twenty-First Century Model Student Conduct Code 
With a Model Hearing Script, 31 Journal of Coll. & Univ. L. 1, 10-11 
(2004) (noting that the trend among colleges and universities has 
been to put into place written student disciplinary codes but, 
whether an institution is public or private, a ``better practice'' 
is to describe in the written disciplinary code exactly what process 
will be followed rather than making broad statements about ``due 
process'' or ``fundamental fairness''). The Department agrees that 
it is more instructive and effective for the Department to describe 
what procedures a process must follow, rather than leaving 
recipients to translate broad concepts like ``due process'' and 
``fundamental fairness'' into Title IX sexual harassment grievance 
processes, and unlike the NPRM the final regulations do not 
reference ``due process'' but rather prescribe specific procedural 
features that a grievance process must contain and apply.
    \204\ As noted in the ``Executive Summary'' section of this 
preamble, withdrawal of the 2011 Dear Colleague Letter and issuance 
of the 2017 Q&A as interim guidance has not resulted in very many 
recipients changing their Title IX policies and procedures; thus, 
the grievance processes that serve as commenters' examples of biased 
or unfair proceedings are largely processes established in response 
to the 2001 Guidance or withdrawn 2011 Dear Colleague Letter, and 
not in response to the 2017 Q&A. Without the legally binding nature 
of these final regulations, the Department does not believe that 
recipients will modify their Title IX policies and procedures in a 
way that consistently ensures meaningful responses to sexual 
harassment and protection of due process for complainants and 
respondents.
    \205\ E.g., Diane Heckman, The Assembly Line of Title IX 
Mishandling Cases Concerning Sexual Violence on College Campuses, 
336 West's Educ. L. Reporter 619, 631 (2016) (stating that since 
2014 ``there has been an influx of lawsuits contending post-
secondary schools have violated Title IX due to their failure to 
properly handle sexual assault claims. What is unusual is that both 
sexes are bringing such Title IX mishandling cases due to lack of or 
failure to follow proper process and due process from each party's 
perspective. A staggering number of cases involve incidents of 
alcohol or drug usage or intoxication triggering the issue of the 
negating a voluntary consent between the participants.'') (internal 
citations omitted).
    \206\ Examples of college Title IX sexual assault cases applying 
seemingly flawed and biased processes to reach decisions viewed as 
unjust, leading to claims that such situations are occurring with 
regularity across the country to the detriment of complainants and 
respondents, include: Nicolo Taormina, Not Yet Enough: Why New 
York's Sexual Assault Law Does Not Provide Enough Protection to 
Complainants or Defendants, 24 Journal of L. & Pol'y 595, 595-600 
(2016) (detailing the case of a college student where medical 
evidence showed violent rape of the complainant by multiple 
respondents yet a college hearing panel reached a determination of 
non-responsibility in a seemingly biased, non-objective process; 
arguing that such a story is not unique and that New York's ``Enough 
is Enough'' law, as well as Federal Title IX guidance, ``lack [ ] 
strict requirements'' mandating a consistent grievance process and 
this ``can lead to unfairness and injustice.''); Cory J. 
Schoonmaker, An ``F'' in Due Process: How Colleges Fail When 
Handling Sexual Assault, 66 Syracuse L. Rev. 213, 213-15 (2016) 
(detailing the case of a college student expelled from college after 
being found responsible following allegations of sexual assault by 
the respondent's ex-girlfriend, under a seemingly biased, non-
objective process and where a criminal grand jury returned a ``no 
charge'' decision indicating there was not enough evidence to 
sustain the complainant's allegations even using a standard lower 
than preponderance of the evidence; arguing that such a story is not 
unique and that ``campus authorities are not equipped, nor are they 
capable, of effectively investigating and punishing accusations of 
sexual assault.'').
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    Compelling stories of complainants whose allegations of sexual 
assault go ``unheeded by the institutions they attend and whose 
education suffers as a consequence'' \207\ and of respondents who have 
been ``found responsible and harshly punished for [sexual assault] in 
sketchy campus procedures'' \208\ have led to debate around the issue 
of how recipients investigate and adjudicate sexual harassment 
(especially sexual assault) under Title IX, and the ``challenge is to 
find a way to engage the stories from these different perspectives'' 
because ``federal regulators and regulated institutions could do 
better.'' \209\
---------------------------------------------------------------------------

    \207\ Deborah L. Brakeman, The Trouble With ``Bureaucracy,'' 7 
Cal. L. Rev. Online 66, 67, 77 (2016) (providing ``counterpoints'' 
to the points raised in Jacob E. Gersen & Jeannie Suk Gersen, The 
Sex Bureaucracy, 104 Calif. L. Rev. 881 (2016), as part of the 
``productive conversation our nation has been having about campus 
sexual assault, its pervasiveness, and the balance struck by the 
public policies addressing it'').
    \208\ Id. at 67.
    \209\ Id. at 77.
---------------------------------------------------------------------------

    The Department believes that the Federal courts' recognition of 
sexual harassment (including sexual assault) as sex discrimination 
under Title IX, the Department's guidance advising recipients on how to 
respond to allegations of sexual harassment, and these final 
regulations, represent critical efforts to promote Title IX's non-
discrimination mandate. With respect to grievance procedures (referred 
to in these final regulations as a ``grievance process'' recipients 
must use for responding to formal complaints of sexual harassment), 
these final regulations build upon the foundation set forth in the 
Department's guidance, yet provide the additional clarity and 
instruction missing from the Department's guidance as to how recipients 
must provide for the needs of complainants, with strong procedural 
rights that ensure due process protections for both complainants and 
respondents. These procedural rights reflect the very serious nature of 
sexual harassment and the life-altering consequences that may follow a 
determination regarding responsibility for such conduct. We believe 
that the procedures in the Sec.  106.45 grievance process will ensure 
that recipients apply a fair, truth-seeking process that furthers the 
interests of complainants, respondents, and recipients in accurately 
resolving sexual harassment allegations.\210\
---------------------------------------------------------------------------

    \210\ E.g., Ashley Hartmann, Reworking Sexual Assault Response 
on University Campuses: Creating a Rights-Based Empowerment Model to 
Minimize Institutional Liability, 48 Wash. Univ. J. of L. & Pol'y 
287, 313 (2015) (``As students file complaints with the Department 
of Education, bring Title IX suits with increasing frequency, and 
turn to the media for resolution in the court of public opinion, 
universities are often forced to prioritize complaints that have the 
potential to be most costly to the institution. This forced choice 
is often the result of sexual assault response procedures that focus 
too narrowly on the rights of either the victim or the accused 
student. Failing to create sexual assault response that respects the 
rights and needs of both the victim and the accused student has the 
potential to leave one student feeling powerless. This 
disenfranchisement opens the university to liability from either 
perspective, creating a zero-sum game in which university response 
caters to the student who has more social, political, or economic 
capital. A reformed process of how universities respond to sexual 
assault should work to meet the needs of all students while 
minimizing university liability.'') (internal citation omitted).
---------------------------------------------------------------------------

    The Sec.  106.45 grievance process does not codify current 
Department guidance but does build upon the principles recommended in 
guidance, while prescribing specific procedures to be consistently 
applied by recipients to improve the perception and reality that 
recipients are reaching determinations regarding responsibility that 
represent just outcomes. At least one State recently considered 
codifying the

[[Page 30050]]

withdrawn 2011 Dear Colleague Letter, and decided instead that an 
approach much like what these final regulations set forth would be 
advisable. The Honorable Edmund G. Brown, Jr., former Governor of 
California, vetoed a California bill in 2017 that would have codified 
parts of the withdrawn 2011 Dear Colleague Letter, and Governor Brown's 
---------------------------------------------------------------------------
veto statement asserted:

    Sexual harassment and sexual violence are serious and 
complicated matters for colleges to resolve. On the one side are 
complainants who come forward to seek justice and protection; on the 
other side stand accused students, who, guilty or not, must be 
treated fairly and with the presumption of innocence until the facts 
speak otherwise. Then, as we know, there are victims who never come 
forward, and perpetrators who walk free. Justice does not come 
easily in this environment. . . . [T]houghtful legal minds have 
increasingly questioned whether federal and state actions to prevent 
and redress sexual harassment and assault--well-intentioned as they 
are--have also unintentionally resulted in some colleges' failure to 
uphold due process for accused students. Depriving any student of 
higher education opportunities should not be done lightly, or out of 
fear of losing state or federal funding.\211\
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    \211\ Edmund G. Brown, Jr., Governor's Veto Message (Oct. 15, 
2017) (responding to California Senate Bill 169).

Governor Brown then convened a task force, or working group, to make 
recommendations about how California institutions of higher education 
should address allegations of sexual misconduct. That working group 
released a memorandum detailing those recommendations,\212\ and many of 
these recommendations are consistent with the approach taken in these 
final regulations as to how postsecondary institutions should respond 
to sexual harassment allegations.\213\
---------------------------------------------------------------------------

    \212\ Governor Edmund G. Brown, Jr.'s Working Group to Address 
Allegations of Student Sexual Misconduct on College and University 
Campuses in California, Recommendations of the Post-SB 169 Working 
Group (Nov. 14, 2018) (referred to hereinafter as ``Recommendations 
of the Post-SB 169 Working Group,'' (Nov. 14, 2018)). The Post-SB 
169 Working Group was comprised of three members: a senior 
administrator and professor at UC Berkeley, an Assistant Dean at 
UCLA School of Law, and a retired California Supreme Court justice. 
The Post-SB 169 Working Group spent over a year reviewing California 
State law, current and prior Federal Title IX guidance, the American 
Bar Association Task Force recommendations, and legal scholarship on 
the topic of institutional responses to sexual misconduct before 
reaching its consensus recommendations.
    \213\ See id. It is notable that of the 21 separate topics 
covered by the Post-SB 169 Working Group, 20 of those topics reached 
recommendations consistent with the provisions in these final 
regulations. Only one topic reached a recommendation that would be 
precluded under the final regulations: The Post-SB 169 Working Group 
recommends that cross-examination at a live hearing occur by the 
parties submitting questions through the decision-maker(s), while 
the final regulations, Sec.  106.45(b)(6)(i), require that the 
parties' advisors conduct the cross-examination. Every other 
recommendation reached by the Working Group is either required by, 
or permitted under, these final regulations. For further discussion 
of live hearings and cross-examination in postsecondary institution 
adjudications, see the ``Hearings'' subsection of the ``Section 
106.45 Recipient's Response to Formal Complaints'' section of this 
preamble.
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Due Process Principles

    Whether due process is conceived in terms of constitutional due 
process of law owed by State actors, or as principles of fundamental 
fairness owed by private actors, the final regulations prescribe a 
grievance process grounded in principles of due process for the benefit 
of both complainants and respondents, seeking justice in each sexual 
harassment situation that arises in a recipient's education program or 
activity. ``Due process describes a procedure that justifies outcome; 
it provides reasons for asserting that the treatment a person receives 
is the treatment he [or she] deserves.'' \214\ ``Due process is a 
fundamental constitutional principle in American jurisprudence. It 
appears in criminal law, civil law, and administrative law . . . . 
[D]ue process is a peculiarly American phenomenon: no other legal 
system has anything quite like it. Due process is a legal principle 
which has been shaped and developed through the process of applying and 
interpreting a written constitution.'' \215\ Due process is ``a 
principle which is used to generate a number of specific rights, 
procedures, and practices.'' \216\ Due process ``may be thought of as a 
demand that a procedure conform to the requirements of formal justice, 
and formal justice is a basic feature of our idea of the rule of law.'' 
\217\ ``Research demonstrates that people's views about their outcomes 
are shaped not solely by how fair or favorable an outcome appears to be 
but also by the fairness of the process through which the decision was 
reached. A fair process provided by a third party leads to higher 
perceptions of legitimacy; in turn, legitimacy leads to increased 
compliance with the law.'' \218\ ``Fair process'' or ``procedural 
justice'' increases outcome legitimacy and thus increased compliance 
because it is likely to lead to an accurate outcome, and sends a signal 
about an individual's value and worth with respect to society in 
general.\219\ The grievance process prescribed in these final 
regulations provides a fair process rooted in due process protections 
that improves the accuracy and legitimacy of the outcome for the 
benefit of both parties.
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    \214\ David Resnick, Due Process and Procedural Justice, Nomos 
XVIII 214 (1977).
    \215\ Id. at 206-207.
    \216\ Id. at 208.
    \217\ Id. at 209.
    \218\ Rebecca Holland-Blumoff, Fairness Beyond the Adversary 
System: Procedural Justice Norms for Legal Negotiation, 85 Fordham 
L. Rev. 2081, 2084 (2017) (internal citations omitted).
    \219\ See id.
---------------------------------------------------------------------------

    In Rochin v. California,\220\ the Supreme Court reasoned that 
deciding whether proceedings in a particular context (there, State 
criminal charges against a defendant) met the constitutional guarantee 
of due process of law meant ascertaining whether the proceedings 
``offend those canons of decency and fairness which express the notions 
of justice . . . even toward those charged with the most heinous 
offenses.'' \221\ Such ``standards of justice are not authoritatively 
formulated anywhere as though they were specifics'' yet are those 
standards ``so rooted in the traditions and conscience of our people as 
to be ranked as fundamental'' or are ``implicit in the concept of 
ordered liberty.'' \222\ Sexual harassment (defined in these final 
regulations to include sexual assault) qualifies as one of ``the most 
heinous offenses'' that one individual may perpetrate against another. 
Perpetration of sexual harassment impedes the equal educational access 
that Title IX was enacted to protect. These final regulations aim to 
ensure that a determination that a respondent committed sexual 
harassment is a ``sound and supportable'' \223\ determination so that 
recipients remedy sexual harassment committed in education programs or 
activities. Because sexual harassment is a ``heinous offense[ ],'' 
these final regulations rely on and incorporate ``standards of 
justice'' fundamental to notions of ``decency and fairness'' \224\ so 
that recipients, parties, and the public view recipients' 
determinations regarding responsibility as just and warranted, while 
recognizing that Title IX grievance processes are not criminal 
proceedings and the constitutional protections granted to criminal 
defendants do not apply.\225\
---------------------------------------------------------------------------

    \220\ 342 U.S. 165 (1952).
    \221\ Id. at 169 (internal quotation marks and citations 
omitted).
    \222\ Id. (internal quotation marks and citations omitted).
    \223\ See 2001 Guidance at 22.
    \224\ Rochin v. California, 342 U.S. 165, 169 (1952). As 
discussed throughout this preamble, due process of law is not 
confined to the criminal law context; due process of law applies in 
civil and administrative proceedings as well, even though the 
precise procedures that are due differ outside the criminal context.
    \225\ For example, these final regulations do not permit 
application of the criminal standard of evidence (beyond a 
reasonable doubt), do not grant respondents a right of self-
representation with respect to confronting witnesses, do not grant 
respondents a right to effective assistance of counsel, and do not 
purport to protect respondents from ``double jeopardy'' (i.e., by 
preventing a complainant from appealing a determination of non-
responsibility).

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[[Page 30051]]

    The Department, as an agency of the Federal government, is subject 
to the U.S. Constitution, including the Fifth Amendment, and will not 
interpret Title IX to compel a recipient, whether public or private, to 
deprive a person of due process rights.\226\ `` `Once it is determined 
that due process applies, the question remains what process is due.' '' 
\227\ Procedural due process of law requires at a minimum notice and a 
meaningful opportunity to be heard.\228\ Due process `` `is not a 
technical conception with a fixed content unrelated to time, place and 
circumstances.' '' \229\ Instead, due process ```is flexible and calls 
for such procedural protections as the particular situation 
demands.''\230\ ``The fundamental requirement of due process is the 
opportunity to be heard `at a meaningful time and in a meaningful 
manner.' '' \231\
---------------------------------------------------------------------------

    \226\ 83 FR 61480-81; see, e.g., Peterson v. City of Greenville, 
373 U.S. 244 (1963); Truax v. Raich, 239 U.S. 33, 38 (1915); 2001 
Guidance at 22 (``The rights established under Title IX must be 
interpreted consistent with any federally guaranteed due process 
rights involved in a complaint proceeding'').
    \227\ Goss v. Lopez, 419 U.S. 565, 577 (quoting Morrissey, 408 
U.S. at 481).
    \228\ Goss, 419 U.S. at 580 (``At the very minimum, therefore, 
students facing suspension and the consequent interference with a 
protected property interest must be given some kind of notice and 
afforded some kind of hearing.''); Mathews v. Eldridge, 424 U.S. 
319, 333 (1976).
    \229\ Mathews, 424 U.S. at 334 (quoting Cafeteria Workers v. 
McElroy, 367 U.S. 886, 895 (1961)).
    \230\ Mathews, 424 U.S. at 334 (quoting Morrissey v. Brewer, 408 
U.S. 471, 481 (1972) (internal quotation marks omitted)).
    \231\ Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 
U.S. 545, 552 (1965)).
---------------------------------------------------------------------------

    The Department recognizes that the Supreme Court has not ruled on 
what constitutional due process looks like in the ``particular 
situation'' \232\ of Title IX sexual harassment adjudications, and that 
Federal appellate courts have taken different approaches to which 
specific procedures are constitutionally required under the general 
proposition that due process in the educational discipline context 
requires some kind of notice and some kind of opportunity to be 
heard,\233\ and for private institutions not subject to constitutional 
requirements, which specific procedures are required to comport with 
fundamental fairness.\234\ In these final regulations, the Department 
deliberately declines to adopt wholesale the procedural rules that 
govern, for example, Federal civil lawsuits, Federal criminal 
proceedings, or proceedings before administrative law judges. 
Understanding that schools, colleges, and universities exist first and 
foremost to provide educational services to students, are not courts of 
law, and are not staffed with judges and attorneys or vested with 
subpoena powers, the standardized Title IX sexual harassment grievance 
process in Sec.  106.45 contains procedural requirements, rights, and 
protections that the Department believes are reasonably designed for 
implementation in the setting of an education program or activity.
---------------------------------------------------------------------------

    \232\ Mathews, 424 U.S. at 334 (internal quotation marks and 
citations omitted).
    \233\ See Goss, 419 U.S. at 578-79 (holding that in the public 
school context ``the interpretation and application of the Due 
Process Clause are intensely practical matters'' that require at a 
minimum notice and ``opportunity for hearing appropriate to the 
nature of the case'') (internal quotation marks and citations 
omitted); see also, e.g., Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 
2018) (holding that where university Title IX sexual misconduct 
proceeding turned on credibility of parties, the university must 
provide a hearing with opportunity for parties to cross-examine each 
other); cf. Haidak v. Univ. of Massachusetts-Amherst, 933 F.3d 56, 
70 (1st Cir. 2019) (declining to require the same opportunity for 
cross-examination as required by the Sixth Circuit but requiring 
university to conduct ``reasonably adequate questioning'' designed 
to ferret out the truth, if the university declined to grant 
students the right to cross-examine at a hearing); see also, e.g., 
Doe v. Trustees of Boston Coll., 942 F.3d 527 (1st Cir. 2019) 
(interpreting State law guarantee of ``basic fairness'' in a private 
college's sexual misconduct disciplinary proceeding).
    \234\ Lisa Tenerowicz, Student Misconduct at Private Colleges 
and Universities: A Roadmap for ``Fundamental Fairness'' in 
Disciplinary Proceedings, 42 Boston Coll. L. Rev. 653 (2001) (``In 
the absence of constitutional protections, courts generally have 
required that private school disciplinary procedures adhere to a 
`fundamental' or `basic' fairness standard and not be arbitrary or 
capricious. More precisely, state and federal courts have often held 
that a private school's disciplinary decisions are fundamentally 
fair if they comport with the rules and procedures that the school 
itself has promulgated.'') (internal citation omitted.)
---------------------------------------------------------------------------

    While due process of law in some contexts (for example, criminal 
proceedings) is especially concerned with protecting the rights of 
accused defendants, the Department views due process protections as a 
critical part of a Title IX grievance process for the benefit of both 
complainants and respondents, as well as recipients. Both parties 
benefit from equal opportunities to participate by putting forward the 
party's own view of the allegations. Both parties, as well as 
recipients, benefit from a process geared toward reaching factually 
accurate outcomes. The Sec.  106.45 grievance process prescribed in the 
final regulations is consistent with constitutional due process 
guarantees \235\ and conceptions of fundamental fairness,\236\ in a 
manner designed to accomplish the critical goals of ensuring that 
recipients resolve sexual harassment allegations to improve parties' 
sense of fairness and lead to reliable outcomes, while lessening the 
risk that sex-based bias will improperly affect outcomes.\237\ In the 
words of the Honorable Ruth Bader Ginsburg, Associate Justice, 
discussing the #MeToo movement and the search for balance between sex 
equality and due process, ``It's not one or the other. It's both. We 
have a system of justice where people who are accused get due process, 
so it's just applying to this field what we have applied generally.'' 
\238\

[[Page 30052]]

The final regulations seek to apply fundamental principles of due 
process to the ``particular situation'' \239\ of Title IX sexual 
harassment allegations. We believe the framework of the Sec.  106.45 
grievance process furthers Title IX's non-discrimination mandate 
consistent with constitutional guarantees of due process of law and 
conceptions of fundamental fairness.
---------------------------------------------------------------------------

    \235\ See Goss v. Lopez, 419 U.S. 565, 583-84 (1975) (``On the 
other hand, requiring effective notice and informal hearing 
permitting the student to give his [or her] version of the events 
will provide a meaningful hedge against erroneous action. At least 
the disciplinarian will be alerted to the existence of disputes 
about facts and arguments about cause and effect. He may then 
determine himself to summon the accuser, permit cross-examination, 
and allow the student to present his own witnesses. In more 
difficult cases, he may permit counsel. In any event, his discretion 
will be more informed and we think the risk of error substantially 
reduced.''); Nicola A. Boothe-Perry, Enforcement of Law Schools' 
Non-Academic Honor Codes: A Necessary Step Towards Professionalism?, 
89 Neb. L. Rev. 634, 662-63 (2012) (``Thus, while well-settled that 
there is no specific procedure required for due process in school 
disciplinary proceedings, the cases establish the bare minimum 
requirements of: (1) Adequate notice of the charges; (2) reasonable 
opportunity to prepare for and meet them; (3) an orderly hearing 
adapted to the nature of the case; and (4) a fair and impartial 
decision . . . . Where disciplinary measures are imposed pursuant to 
non-academic reasons (e.g., fraudulent conduct), as opposed to 
purely academic reasons, the courts are inclined to reverse 
decisions made by the institutions without these minimal procedural 
safeguards.'') (internal citations omitted).
    \236\ E.g., Kathryn M. Reardon, Acquaintance Rape at Private 
Colleges and Universities: Providing for Victims' Educational and 
Civil Rights, 38 Suffolk Univ. L. Rev. 395, 406-07 (2005) (``Courts 
around the nation have taken a relatively consistent stance on what 
type of process private colleges and universities owe to their 
students. . . . Courts expect that schools will adhere to basic 
concepts of fairness in dealing with students in disciplinary 
matters. Schools must employ the procedures set out in their own 
policies, and those policies must not be offensive to fundamental 
notions of fairness.'').
    \237\ For discussion of sex-based bias in Title IX grievance 
proceedings, the ``Section 106.45(a) Treatment of Complainants or 
Respondents Can Violate Title IX'' subsection of the ``General 
Requirements for Sec.  106.45 Grievance Process'' subsection of the 
``Section 106.45 Recipient's Response to Formal Complaints'' section 
of this preamble.
    \238\ Jeffrey Rosen, Ruth Bader Ginsburg Opens Up About #MeToo, 
Voting Rights, and Millennials, The Atlantic (Feb. 15, 2018) 
(``Rosen: What about due process for the accused? Ginsburg: Well, 
that must not be ignored and it goes beyond sexual harassment. The 
person who is accused has a right to defend herself or himself, and 
we certainly should not lose sight of that. Recognizing that these 
are complaints that should be heard. There's been criticism of some 
college codes of conduct for not giving the accused person a fair 
opportunity to be heard, and that's one of the basic tenets of our 
system, as you know, everyone deserves a fair hearing. Rosen: Are 
some of those criticisms of the college codes valid? Ginsburg: Do I 
think they are? Yes. Rosen: I think people are hungry for your 
thoughts about how to balance the values of due process against the 
need for increased gender equality. Ginsburg: It's not one or the 
other. It's both. We have a system of justice where people who are 
accused get due process, so it's just applying to this field what we 
have applied generally.'').
    \239\ Mathews, 424 U.S. at 334 (internal quotation marks and 
citations omitted).
---------------------------------------------------------------------------

    Precisely because due process is a ``flexible'' concept dictated by 
the demands of a ``particular situation,'' \240\ the Department 
recognizes, and these final regulations reflect, that due process 
protections in the ``particular situation'' of a recipient's response 
to sexual harassment may dictate different procedures than what might 
be appropriate in other situations (e.g., the noneducational context of 
a criminal trial \241\ or the administrative context of a government 
agency's determination of eligibility for public benefits,\242\ or the 
educational context involving allegations of student academic 
misconduct \243\). Allegations of sexual harassment in an educational 
environment present unique challenges for the individuals involved, and 
for the recipient, with respect to how to best ensure that parties are 
treated fairly and accurate outcomes result.
---------------------------------------------------------------------------

    \240\ Id.
    \241\ For instance, in the criminal context, the U.S. 
Constitution imposes specific due process of law requirements that 
the Supreme Court has not required to be given to defendants in 
noncriminal matters, such as the right to be provided with effective 
assistance of counsel, the right to personally confront witnesses, 
and the right to have guilt determined under a standard of evidence 
described as ``beyond a reasonable doubt.'' See, e.g., I.N.S. v. 
Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (``Consistent with the 
civil nature of the proceeding, various protections that apply in 
the context of a criminal trial do not apply in a deportation 
hearing.'').
    \242\ E.g., Mathews, 424 U.S. at 348 (``The ultimate balance [of 
due process owed] involves a determination as to when, under our 
constitutional system, judicial-type procedures must be imposed upon 
administrative action to assure fairness.'').
    \243\ The Supreme Court has distinguished between the level of 
deference courts should give schools with respect to student 
discipline resulting from academic misconduct or academic failure, 
and other types of student misconduct. E.g., Bd. of Curators of the 
Univ. of Mo. v. Horowitz, 435 U.S. 78, 86 (1978) (stating that the 
Court will grant greater deference to public schools in decision 
making in academic, as opposed to disciplinary, dismissals and, 
would require more stringent procedural requirements in dismissals 
based upon purely disciplinary matters).
---------------------------------------------------------------------------

    Furthermore, due process protections in the ``particular 
situation'' \244\ of elementary and secondary schools may differ from 
protections necessitated by the ``particular situation'' of 
postsecondary institutions. Thus, some procedural rules in the Sec.  
106.45 grievance process apply only to postsecondary institution 
recipients,\245\ in recognition that postsecondary institutions present 
a different situation than elementary and secondary schools because, 
for instance, most students in elementary and secondary schools tend to 
be under the age of majority such that certain procedural rights 
generally cannot be exercised effectively (even by a parent acting on 
behalf of a minor \246\). For example, unlike postsecondary 
institutions, elementary and secondary schools are not required to hold 
a hearing under these final regulations.\247\ The final regulations aim 
to accomplish the objective of a consistent, predictable Title IX 
grievance process while respecting the fact that elementary and 
secondary schools differ from postsecondary institutions.
---------------------------------------------------------------------------

    \244\ Mathews, 424 U.S. at 334 (internal quotation marks and 
citations omitted).
    \245\ Section 106.45(b)(6)(i) requires postsecondary 
institutions to use a live hearing model to adjudicate formal 
complaints, while Sec.  106.45(b)(6)(ii) does not require elementary 
or secondary schools to hold any kind of hearing to adjudicate 
formal complaints.
    \246\ The final regulations expressly recognize legal rights of 
parents and guardians to act on behalf of an individual with respect 
to exercising Title IX rights. Sec.  106.6(g).
    \247\ Section 106.45(b)(6)(i)-(ii).
---------------------------------------------------------------------------

    However, the Department does not believe that the public or private 
status of a recipient, or the size of the recipient's student body, 
constitutes a different ``particular situation'' \248\ that 
necessitates or advises different procedural protections. The 
Department recognizes that some recipients are State actors with 
responsibilities to provide due process of law to students and 
employees under the U.S. Constitution, including the Fourteenth 
Amendment, while other recipients are private institutions that do not 
have constitutional obligations to their students and employees. As 
previously explained, the Department, as an agency of the Federal 
government, will not interpret or enforce Title IX in a manner that 
would require any recipient, including a private recipient, to deprive 
a person of constitutional due process rights.\249\ As a matter of 
policy, the Department cannot justify requiring a different grievance 
process for complainants and respondents based on whether the recipient 
is a public or private entity, or based on whether the recipient 
enrolls a large number or small number of students. Additionally, many 
private schools owe students and employees fundamental fairness, often 
recognized by contract and under State laws \250\ and while conceptions 
of fundamental fairness may not always equate to constitutional due 
process requirements, there is conceptual and practical overlap between 
the two.\251\ Title IX applies to all recipients of Federal financial 
assistance, whether the recipient is a public or private entity and 
regardless of the size of the recipient's student body. Fair, reliable 
procedures that best promote the purposes of Title IX are as important 
in public schools, colleges, and universities as in private ones, and 
are as important in large institutions as in small ones. The final 
regulations therefore prescribe a consistent grievance process for 
application by all recipients without distinction as to public or 
private status, or the size of the institution.\252\
---------------------------------------------------------------------------

    \248\ Mathews, 424 U.S. at 334 (internal quotation marks and 
citations omitted).
    \249\ The Department also cannot interpret Title IX to compel a 
private recipient to deprive a person of their due process rights 
because the Department, as an agency of the Federal government, is 
subject to the U.S. Constitution. In Peterson v. City of Greenville, 
373 U.S. 244, 247-48 (1963), the U.S. Supreme Court held that the 
City of Greenville through an ordinance could not compel a private 
restaurant to operate in a manner that treated patrons differently 
on the basis of race in violation of the Equal Protection Clause of 
the Fourteenth Amendment. Similarly, in Truax v. Raich, 239 U.S. 33, 
38 (1915), the Supreme Court held that Arizona cannot use a State 
statute to compel private entities to employ a specific percentage 
of native-born Americans as employees in violation of the Equal 
Protection Clause of the Fourteenth Amendment. Like the City of 
Greenville and the State of Arizona, the Department cannot compel 
private schools to comply with Title IX in a manner that would 
require the private recipient to violate a person's due process 
rights.
    \250\ E.g., Doe v. College of Wooster, 243 F. Supp. 3d 875, 890-
91 (N.D. Ohio 2017) (``[C]ourts consider whether the disciplinary 
process afforded by the [private] academic institution was 
`conducted with notions of basic fairness' ''); Psi Upsilon of Pa. 
v. Univ. of Pa., 591 A.2d 755, 758 (Pa. 1991) (holding that 
``disciplinary procedures established by the [private] institution 
must be fundamentally fair'').
    \251\ See Holly Hogan, The Real Choice in a Perceived ``Catch-
22'': Providing Fairness to Both the Accused and Complaining 
Students in College Sexual Assault Disciplinary Proceedings, 38 
Journal of L. & Educ. 27 (2009) (``Even when the due process clause 
does not apply to a private university's disciplinary proceedings, a 
private university must nevertheless comply with its own procedural 
rules. . . . Because private higher education institutions often 
model their disciplinary proceedings on due process requirements, as 
a practical matter'' the same principles apply to both private and 
public institutions) (internal citations omitted).
    \252\ As discussed in the ``Regulatory Impact Analysis'' section 
of this preamble, the Department considered the impact of these 
final regulations on small entities, but as a policy matter, does 
not believe that different procedures should apply based on the size 
of a recipient's student body or the amount of a recipient's 
revenues.

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[[Page 30053]]

    The grievance process prescribed in the final regulations is 
important for effective enforcement of Title IX and is consistent with 
constitutional due process and conceptions of fundamental fairness. The 
Sec.  106.45 grievance process is designed for the particular 
``practical matters'' \253\ presented by allegations of sexual 
harassment in the educational context. The Department acknowledges that 
constitutional due process does not require the specific procedures 
included in the Sec.  106.45 grievance process. However, the Sec.  
106.45 grievance process is consistent with the constitutional 
requirement to provide notice and a meaningful opportunity to be heard, 
and does so for the benefit of complainants and respondents, to address 
policy considerations unique to sex discrimination in the form of 
sexual harassment in education programs and activities. For example, if 
a recipient dismisses a formal complaint or any allegations in the 
formal complaint, the complainant should know why any of the 
complainant's allegations were dismissed and should also be able to 
challenge such a dismissal by appealing on certain grounds.\254\ Even 
though constitutional due process may not require the specific 
procedure of a written notice of the dismissal stating the reasons for 
the dismissal, or the right to appeal the dismissal, such strong due 
process protections help ensure that a recipient is not erroneously 
dismissing an allegation due to a procedural irregularity, lack of 
knowledge of newly discovered evidence, or a conflict of interest or 
bias.\255\ As discussed throughout this preamble and especially in the 
``Section 106.45 Recipient's Response to Formal Complaints'' section, 
each of the procedural requirements in Sec.  106.45 is prescribed 
because the Department views the requirement as important to ensuring a 
fair process for both parties rooted in the fundamental due process 
principles of notice and meaningful opportunities to be heard.\256\
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    \253\ See Goss, 419 U.S. at 578-79.
    \254\ See Sec.  106.45(b)(3); Sec.  106.45(b)(8)(i).
    \255\ Id.
    \256\ See Goss, 419 U.S. at 578-79 (holding that in the public 
school context ``the interpretation and application of the Due 
Process Clause are intensely practical matters'' that require at a 
minimum notice and ``opportunity for hearing appropriate to the 
nature of the case'') (internal quotation marks and citations 
omitted).
---------------------------------------------------------------------------

    In issuing these final regulations with a standardized grievance 
process for Title IX sexual harassment, the Department has carefully 
considered the public comments on the NPRM. The public comments have 
been crucial in promulgating the procedures that are most needed to (i) 
improve perceptions that Title IX sexual harassment allegations are 
resolved fairly and reliably, (ii) avoid intentional or unintentional 
injection of sex-based biases and stereotypes into proceedings that too 
often have been biased for or against parties on the basis of sex, 
mostly because the underlying allegations at issue involve issues of 
sex-based conduct, and (iii) promote accurate, reliable outcomes so 
that victims of sexual harassment receive remedies restoring and 
preserving equal educational opportunities and respondents are not 
treated as responsible unless a determination of responsibility is 
factually reliable.

Summary of Sec.  106.45

    As a whole, Sec.  106.45 contains ten groups of provisions \257\ 
that together are intended to provide a standardized framework that 
governs recipients' responses to formal complaints of sexual harassment 
under Title IX:
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    \257\ Although not located in Sec.  106.45, the final 
regulations also add Sec.  106.71 to expressly prohibit retaliation 
against any individual exercising rights under Title IX, 
specifically protecting any individual's right to participate or 
refuse to participate in a Title IX grievance process.
---------------------------------------------------------------------------

    (1) Section 106.45(a) acknowledges that a recipient's treatment of 
a complainant, or a respondent, could constitute sex discrimination 
prohibited under Title IX.
    (2) Section 106.45(b)(1)(i)-(x) requires recipients to adopt a 
grievance process that:
     Treats complainants and respondents equitably by 
recognizing the need for complainants to receive remedies where a 
respondent is determined responsible and for respondents to face 
disciplinary sanctions only after a fair process determines 
responsibility;
     objectively evaluates all relevant evidence both 
inculpatory and exculpatory, and ensures that rules voluntarily adopted 
by a recipient treat the parties equally;
     requires Title IX Coordinators, investigators, decision-
makers, and persons who facilitate informal resolutions to be free from 
conflicts of interest and bias and trained to serve impartially without 
prejudging the facts at issue;
     presumes the non-responsibility of respondents until 
conclusion of the grievance process;
     includes reasonably prompt time frames for the grievance 
process;
     informs all parties of critical information about the 
recipient's procedures including the range of remedies and disciplinary 
sanctions a recipient may impose, the standard of evidence applied by 
the recipient to all formal complaints of sexual harassment under Title 
IX (which must be either the preponderance of the evidence standard, or 
the clear and convincing evidence standard), the recipient's appeal 
procedures, and the range of supportive measures available to both 
parties; and
     protects any legally recognized privilege from being 
pierced during a grievance process.
    (3) Section 106.45(b)(2) requires written notice of the allegations 
to both parties, including informing the parties of the right to select 
an advisor of choice.
    (4) Sections 106.45(b)(3)-(b)(4) require recipients to investigate 
formal complaints, describe when a formal complaint is subject to 
mandatory or discretionary dismissal, require the recipient to notify 
the parties of any dismissal, and authorize discretionary consolidation 
of formal complaints when allegations of sexual harassment arise out of 
the same facts or circumstances.
    (5) Section 106.45(b)(5)(i)-(vii) requires recipients to 
investigate formal complaints in a manner that:
     keeps the burden of proof and burden of gathering evidence 
on the recipient while protecting every party's right to consent to the 
use of the party's own medical, psychological, and similar treatment 
records;
     provides the parties equal opportunity to present fact and 
expert witnesses and other inculpatory and exculpatory evidence;
     does not restrict the parties from discussing the 
allegations or gathering evidence;
     gives the parties equal opportunity to select an advisor 
of the party's choice (who may be, but does not need to be, an 
attorney);
     requires written notice when a party's participation is 
invited or expected for an interview, meeting, or hearing;
     provides both parties equal opportunity to review and 
respond to the evidence gathered during the investigation; and
     sends both parties the recipient's investigative report 
summarizing the relevant evidence, prior to reaching a determination 
regarding responsibility.
    (6) Section 106.45(b)(6) requires a live hearing with cross-
examination conducted by the parties' advisors at postsecondary 
institutions, while making hearings optional for elementary and 
secondary schools (and other recipients that are not postsecondary

[[Page 30054]]

institutions) so long as the parties have equal opportunity to submit 
written questions for the other parties and witnesses to answer before 
a determination regarding responsibility is reached.
    (7) Section 106.45(b)(7) requires a decision-maker who is not the 
same person as the Title IX Coordinator or the investigator to reach a 
determination regarding responsibility by applying the standard of 
evidence the recipient has designated in the recipient's grievance 
process for use in all formal complaints of sexual harassment (which 
must be either the preponderance of the evidence standard or the clear 
and convincing evidence standard), and the recipient must 
simultaneously send the parties a written determination explaining the 
reasons for the outcome.
    (8) Section 106.45(b)(8) requires recipients to offer appeals 
equally to both parties, on the bases that procedural deficiencies, 
newly discovered evidence, or bias or conflict of interest affected the 
outcome.
    (9) Section 106.45(b)(9) allows recipients to offer and facilitate 
informal resolution processes, within certain parameters to ensure such 
informal resolution only occurs with the voluntary, written consent of 
both parties; informal resolution is not permitted to resolve 
allegations that an employee sexually harassed a student.
    (10) Section 106.45(b)(10) requires recipients to maintain records 
and documentation concerning sexual harassment reports, formal 
complaints, investigations, and adjudications; and to publish materials 
used for training Title IX Coordinators, investigators, decision-
makers, and persons who facilitate informal resolutions on the 
recipient's website or make these materials available upon request for 
inspection by members of the public.
    The Department has concluded that the above provisions, rooted in 
due process principles of notice and a meaningful opportunity to be 
heard and the importance of an impartial process before unbiased 
officials, set forth the procedures adapted for the practical realities 
of sexual harassment allegations in an educational context that are 
most needed to (i) improve perceptions that Title IX sexual harassment 
allegations are resolved fairly and reliably, (ii) avoid intentional or 
unintentional injection of sex-based biases and stereotypes into Title 
IX proceedings, and (iii) promote accurate, reliable outcomes, all of 
which effectuate the purpose of Title IX to provide individuals with 
effective protection from discriminatory practices.

Similarities and Differences Between the Sec.  106.45 Grievance Process 
and Department Guidance

    The Department's guidance in 1997, 2001, 2011, and 2017 has 
interpreted the Department's regulatory requirement in 34 CFR 106.8(b) 
for recipients to ``adopt and publish grievance procedures providing 
for prompt and equitable resolution of student and employee complaints 
alleging any action which would be prohibited by this part'' as 
applying to complaints of sexual harassment.\258\ The Sec.  106.45 
grievance process, and the Department's guidance, largely address the 
same topics related to an ``equitable'' grievance process, and the 
final regulations are in many respects consistent with the Department's 
guidance. For example, these final regulations and the Department's 
guidance all address equal opportunity for both parties to present 
witnesses and evidence.\259\ The Department's guidance has always 
stated that grievance procedures must provide for ``adequate, reliable, 
and impartial investigation of complaints,'' \260\ and these final 
regulations adopt that premise and explicitly instruct recipients to 
investigate and adjudicate in a manner that is (and ensure that Title 
IX personnel receive training to be) impartial and unbiased,\261\ and 
to objectively evaluate all relevant evidence, including inculpatory 
and exculpatory evidence.\262\ These final regulations also expressly 
protect information protected by legally recognized privileges,\263\ 
ensure that a party's treatment records are not used in a grievance 
process without the party's voluntary, written consent,\264\ require 
that both parties receive copies of evidence gathered during the 
investigation that is ``directly related to the allegations'' in the 
formal complaint,\265\ require that both parties be sent a copy of the 
recipient's investigative report that summarizes all relevant evidence 
including inculpatory and exculpatory evidence,\266\ and deem questions 
and evidence about a complainant's prior sexual behavior to be 
irrelevant (with two limited exceptions).\267\ The Department believes 
that these requirements build upon the expectation set forth in prior 
guidance, that grievance procedures must provide for the ``adequate, 
reliable, and impartial investigation of complaints.'' \268\
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    \258\ 1997 Guidance (recipients are required by regulations to 
adopt and publish grievance procedures providing for the ``prompt 
and equitable'' resolution of sex discrimination complaints and 
these procedures apply to complaints of sexual harassment); 2001 
Guidance at 19; 2011 Dear Colleague Letter at 8; 2017 Q&A at 3.
    \259\ 1997 Guidance (to be ``equitable'' grievance procedures 
should provide for ``the opportunity to present witnesses and other 
evidence''); 2001 Guidance at 20; 2011 Dear Colleague Letter at 9; 
2017 Q&A at 3; see also Sec.  106.45(b)(5)(ii) (grievance process 
must give both parties equal opportunity to present witnesses, 
including fact and expert witnesses, and other inculpatory and 
exculpatory evidence); Sec.  106.45(b)(5)(iii) (recipients may not 
restrict the ability of parties to gather evidence).
    \260\ 1997 Guidance (grievance procedures must provide for 
``adequate, reliable, and impartial investigation of complaints''); 
2001 Guidance at 20; 2011 Dear Colleague Letter at 9; 2017 Q&A at 3; 
2017 Q&A at 4 (adding that an ``equitable'' investigation should 
include using a trained investigator to ``objectively evaluate the 
credibility of parties and witnesses, synthesize all available 
evidence--including both inculpatory and exculpatory evidence--and 
take into account the unique and complex circumstances of each 
case.'').
    \261\ Section 106.45(b)(1)(iii).
    \262\ Section 106.45(b)(1)(ii); Sec.  106.45(b)(5)(vii); Sec.  
106.45(b)(6).
    \263\ Section 106.45(b)(1)(x).
    \264\ Section 106.45(b)(5)(i).
    \265\ Section 106.45(b)(5)(vi).
    \266\ Section 106.45(b)(5)(vii).
    \267\ Section 106.45(b)(6).
    \268\ 2001 Guidance at 20.
---------------------------------------------------------------------------

    Some provisions in Sec.  106.45 address topics by requiring 
procedures that Department guidance did not address, or addressed as a 
recommendation. For instance, Sec.  106.45(b)(2) requires written 
notice of the allegations with sufficient details to permit parties to 
prepare for an initial interview, which the recipient must send to both 
parties ``upon receipt of a formal complaint,'' and Sec.  
106.45(b)(5)(v) requires written notice to the parties in advance of 
any meeting, interview, or hearing conducted as part of the 
investigation or adjudication. The 1997 Guidance, 2001 Guidance, and 
withdrawn 2011 Dear Colleague Letter were silent on the need for 
written notice. The 2017 Q&A stated that recipients ``should'' send 
written notice of allegations at the start of an investigation, but 
only ``to the responding party'' and stated that both parties 
``should'' receive written notice to enable meaningful participation in 
any interview or hearing.\269\ The final regulations make these written 
notices mandatory, for the benefit of both parties. As a further 
example, the 1997 Guidance, 2001 Guidance, and 2017 Q&A did not require 
any specific adjudicatory model, and while the withdrawn 2011 Dear 
Colleague Letter referred to ``the hearing'' \270\ (thus presuming that 
adjudications take place after a hearing), no guidance document 
specifically addressed whether or not recipients should, or must, hold 
live

[[Page 30055]]

hearings. Section 106.45(b)(6) clarifies that only postsecondary 
institutions must hold live hearings; other recipients (including 
elementary and secondary schools) may use a hearing or non-hearing 
model for adjudication. Similarly, the 1997 Guidance, 2001 Guidance, 
and 2017 Q&A did not address whether the parties have rights to 
confront or cross-examine other parties and witnesses,\271\ and while 
the withdrawn 2011 Dear Colleague Letter ``strongly discourage[d]'' 
recipients ``from allowing the parties personally to question or cross-
examine each other during the hearing'' \272\ the withdrawn 2011 Dear 
Colleague Letter did not discourage or prohibit cross-examination by 
the parties' advisors, as required for postsecondary institutions under 
Sec.  106.45(b)(6)(i).
---------------------------------------------------------------------------

    \269\ 2017 Q&A at 4.
    \270\ 2011 Dear Colleague Letter at 12.
    \271\ The 2017 Q&A did not require a hearing or cross-
examination, but stated that any rights regarding procedures such as 
cross-examination must be given equally to both parties. 2017 Q&A at 
5.
    \272\ 2011 Dear Colleague Letter at 12.
---------------------------------------------------------------------------

    In some significant respects, Sec.  106.45 departs from positions 
taken in the Department's guidance by allowing recipients flexibility 
or discretion in a manner discouraged by guidance. For example, Sec.  
106.45(b)(1)(v) permits recipients to designate the recipient's own 
``reasonably prompt time frames'' for conclusion of a grievance 
process. While the 1997 Guidance \273\ and 2001 Guidance \274\ were 
silent on what ``prompt'' resolution of complaints meant, the withdrawn 
2011 Dear Colleague Letter recommended a 60 calendar day time 
frame.\275\ The 2017 Q&A did not recommend a particular time frame for 
``prompt'' resolution and referenced the 2001 Guidance approach on this 
subject.\276\ Similarly, Sec.  106.45(b)(1)(vii) and Sec.  
106.45(b)(7)(i) permit each recipient to select between one of two 
standards of evidence to use in resolving formal complaints of sexual 
harassment. While the 1997 Guidance and 2001 Guidance were silent on 
the appropriate standard of evidence, the withdrawn 2011 Dear Colleague 
Letter acknowledged that at the time, many recipients used the 
preponderance of the evidence standard, some recipients used the clear 
and convincing evidence standard, and took the position that only the 
preponderance of the evidence standard could be consistent with Title 
IX's non-discrimination mandate.\277\ The 2017 Q&A approved of using 
either the preponderance of the evidence standard or the clear and 
convincing evidence standard but cautioned recipients not to apply the 
preponderance of the evidence standard unless the recipient also used 
that standard for non-sexual misconduct proceedings.\278\ Finally, 
Sec.  106.45(b)(9) allows recipients the option of facilitating 
informal resolution processes (except as to allegations that an 
employee sexually harassed a student) so long as both parties 
voluntarily agree to attempt an informal resolution. Both the 2001 
Guidance \279\ and withdrawn 2011 Dear Colleague Letter \280\ 
discouraged schools from using mediation (or other informal resolution) 
to resolve sexual assault allegations. The 2017 Q&A allowed informal 
resolution \281\ but unlike Sec.  106.45(b)(9)(iii), did not prohibit 
informal resolution of allegations that an employee sexually harassed a 
student.
---------------------------------------------------------------------------

    \273\ 1997 Guidance (a recipient's grievance procedures should 
provide for ``designated and reasonably prompt timeframes for the 
major stages of the complaint process'').
    \274\ 2001 Guidance at 20 (recipients' grievance procedures 
should provide for ``designated and reasonably prompt timeframes for 
the major stages of the complaint process'').
    \275\ 2011 Dear Colleague Letter at 12 (``Based on OCR 
experience, a typical investigation takes approximately 60 calendar 
days following receipt of the complaint. Whether OCR considers 
complaint resolutions to be timely, however, will vary depending on 
the complexity of the investigation and the severity and extent of 
the harassment.'').
    \276\ 2017 Q&A at 3.
    \277\ 2011 Dear Colleague Letter at 11 (``Thus, in order for a 
school's grievance procedures to be consistent with Title IX 
standards, the school must use a preponderance of the evidence 
standard.'').
    \278\ 2017 Q&A at 5, fn. 19.
    \279\ 2001 Guidance at 21 (``In some cases, such as alleged 
sexual assaults, mediation will not be appropriate even on a 
voluntary basis.'').
    \280\ 2011 Dear Colleague Letter at 8 (``Moreover, in cases 
involving allegations of sexual assault, mediation is not 
appropriate even on a voluntary basis.'').
    \281\ 2017 Q&A at 4.
---------------------------------------------------------------------------

    For the purpose of ensuring that recipients reach accurate 
determinations regarding responsibility so that victims of sexual 
harassment receive remedies in furtherance of Title IX's non-
discrimination mandate in a manner consistent with constitutional due 
process and fundamental fairness, the Sec.  106.45 grievance process 
prescribes more detailed procedural requirements than set forth in the 
Department's guidance in some respects, and leaves recipients with 
greater flexibility than guidance in other respects.

Public Comment

    In response to our invitation in the NPRM, we received more than 
124,000 comments on the proposed regulations. We discuss substantive 
issues under topical headings, and by the sections of the final 
regulations to which they pertain.

Analysis of Comments and Changes

    An analysis of the public comments and changes in the final 
regulations since the publication of the NPRM follows.

Personal Stories

    Comments: Numerous commenters shared with the Department 
experiences they have had as complainants or respondents, or people 
supporting complainants or respondents.
    Relating to complainants, such personal experiences included the 
following:
     A wide variety of individuals shared their stories 
identifying as survivors or victims, whether or not they were also 
involved as complainants in Title IX proceedings. These included 
females, males, LGBTQ individuals, individuals with disabilities, 
persons of color, individuals who grew up in both rural and urban 
settings, veterans who were assaulted in the military, and individuals 
who described being sexually assaulted or harassed more than 50 years 
ago. The personal stories recounted sexual harassment and assault 
incidents occurring at all stages in life, including elementary school 
students, high school students, undergraduate students at public and 
private universities, graduate students at public and private 
universities, faculty at public and private universities, and other 
university employees.
     Commenters shared stories as individuals who knew victims 
and witnessed the aftermath of trauma. These individuals included 
parents and grandparents of students who had been assaulted, classmates 
and friends of victims, teachers at all levels, professors, counselors, 
coaches, Title IX Coordinators, rape crisis advocates, graduate 
students and teaching assistants, resident advisors, social workers, 
and health care professionals.
     The Department received comments from individuals who 
described harassment or assault by a wide variety of individuals. These 
included stalkers, intimate partners and ex-partners, friends, 
classmates, coaches, teachers and professors, non-students or non-
employees on campus, and parents or family members.
     The Department received comments from individuals who 
described harassment or assault from before Title IX existed, after 
Title IX was enacted, prior to and after the Department's withdrawn 
2011 Dear Colleague Letter and withdrawn 2014 Q&A, and prior to and 
after the Department's 2017 Q&A. We heard from individuals who 
described harassment or assault in a

[[Page 30056]]

wide variety of locations, including on campuses of postsecondary 
institutions in locations such as student housing, classrooms, and, 
libraries, on elementary and secondary school grounds, locker rooms, 
off-campus housing and parties, while commuting to and from school, 
school-sponsored events, bars and parking lots, and study abroad 
programs.
     The Department received comments from individuals who 
described a range of traumatic incidents. Some commenters described 
inappropriate comments, inappropriate text messages or social media 
communication, and inappropriate touching. Other commenters recounted 
incidents of rape or attempted rape, gang rape, or forcible rape. Some 
commenters described being raped while they were passed out, while 
others described being drugged and raped, waking up with no memory but 
suffering symptoms of rape, or being pressured or intimidated into 
consenting to sex.
     The Department received comments from individuals who did 
not report their experiences for various reasons, including fearing 
that no one would believe them, not knowing who to report to or the 
process for reporting, feeling too ashamed to report, or not wanting to 
relive the trauma and wanting to put the incident behind them.
     The Department received comments from individuals about 
many detrimental effects that sexual harassment and assault can have on 
victims. Individuals described what it is like to be raped, sexually 
assaulted, and sexually harassed, what they felt during the attack, and 
what they felt afterward. Commenters told the Department that rape and 
sexual assault, in particular, changed their lives forever, and has 
severe consequences emotionally, physically, academically, and 
professionally. Commenters also told us about severe post-traumatic 
stress disorder (PTSD) following sexual assault, about developing 
disabling physical or mental conditions due to rape, about pregnancy 
and sexually transmitted diseases resulting from rape, and about the 
lasting impact on their personal lives. Individuals told us about 
negative consequences they experienced in the aftermath of sexual 
assault, including nightmares, emotional breakdowns, lack of sleep, 
inability to focus or concentrate, changed eating habits, loss of 
confidence and self-esteem, stress, immense shame, lack of trust, and 
loneliness.
     Commenters described carrying the pain of victimization 
with them for life, even after more than half a century. Some 
commenters shared that they constantly live in fear of seeing their 
attacker again. Some commenters told us that their experiences affected 
future relationships and caused them to have trust issues for long 
periods of time, sometimes for life. Some commenters told us their 
assaults led to drug and alcohol abuse.
     Some commenters shared stories of friends or loved ones 
who committed suicide following sexual harassment or assault. Other 
commenters told us personally about suicidal thoughts and attempted 
suicide. We heard from some individuals who described still feeling 
unsafe once the complaint process began and individuals who suffered 
increased trauma from having to see their attackers on campus or at a 
disciplinary proceeding.
     Individuals shared the severe impact of sexual harassment 
or assault on their educational experience, including the ability to 
learn and balance pressures of life. Commenters shared that sexual 
assault or harassment caused them to fail at school, or withdraw or 
drop out. Some commenters described the lifetime financial costs of 
dealing with the aftermath of sexual assault including legal and 
medical costs that exceeded $200,000, and lost income as a result of 
dropping out of school.
     The Department also received stories from individuals 
about the dynamics of sexual assault and harassment. Commenters told us 
that sexual abuse is based on power and inequity and that women are 
victims of male privilege. Several commenters shared personal stories 
about how serial offenders keep offending due to the power dynamic. 
Several commenters shared personal stories describing how sexual 
harassment by professors at schools was well known, but the schools did 
nothing.
     The Department also received stories from many individuals 
about how the current system was inadequate to protect victims of 
sexual assault or deliver justice. Commenters shared that they did not 
press charges or report because they had no confidence in the school 
system or criminal justice system. Commenters told us that they 
believed their institution was hiding the true numbers of campus rapes. 
Commenters told us that many Title IX reports are ignored by schools 
and by police officers. One individual told us that when the individual 
reported, city police told the individual it was a campus police issue, 
while campus police refused to take action because the individual had 
not reported while being raped, leaving the individual to be raped many 
more times by the same perpetrator while the authorities did nothing. 
Individuals told us that perpetrators bully victims into keeping quiet, 
telling them no one will believe them.
     Individuals shared stories about how their institutions 
failed them. Some were told by their institutions or teachers that no 
one would believe them or told not to file a complaint. Some commenters 
shared that complaints were not taken seriously by school officials and 
that lack of action caused them to drop out of school to avoid their 
attacker. Commenters described experiences as complainants and told us 
that the Title IX Coordinator seemed more interested in proving the 
respondent innocent than helping the complainant.
     Several complainants told us they were blamed and shamed 
by authority figures including having their clothing choices 
questioned, decisions questioned, intelligence questioned, motives 
questioned, and being told they should have resisted more or been 
louder in saying ``no.''
     Individuals shared their experiences showing that it is 
difficult to prove rape in ``he said/she said'' situations. Individuals 
told us that respondents were found to not be at fault by hearing 
panels, including in instances where insufficient evidence was found 
despite multiple complainants reporting against the same respondent.
     Several individuals told us the current process took too 
long, sometimes nine months to over a year or more to get a resolution. 
One commenter described reporting sexual harassment at a university, 
along with other women who had reported the same harassing faculty 
member, but the university's process took so long and was so painful 
that the commenter left the university without finishing her degree, 
abandoning her career in a STEM (science, technology, engineering, 
medicine) field and resulting in $75,000 lost to taxpayers, wasted on 
funding a degree she did not finish.
     Individuals told us that respondents were given minimal 
punishment that did not fit the severity of the offense, or that 
victims were forced to encounter their perpetrators even after the 
respondents were found responsible. They told us that their 
perpetrators were well respected students or athletes in school, or 
prominent professors at universities, which caused the perpetrators to 
receive light punishments or no punishment at all. They told us they 
could not get attackers banned from their dorms or classes.

[[Page 30057]]

     We also heard from individuals who faced retaliation for 
filing complaints. These individuals faced continued harassment by 
respondents, received lower grades from professors reported as 
harassers, or lost scholarships due to rebuffing sexual advances from 
teachers.
     We also heard from several commenters about how the Title 
IX system was able to deliver justice for them in the aftermath of 
sexual harassment or assault, including commenters who believed that 
the withdrawn 2011 Dear Colleague Letter was the reason why their 
school responded appropriately to help them after they had been 
sexually assaulted. They told us that the counselors and resources 
available to help victims were the only reason they could survive the 
trauma or the Title IX process. They told us that the Title IX 
Coordinator was able to help them in ways that allowed them to stay in 
school. They also told us of instances where the campus system was 
finally able to remove a serial sexual predator. The father of a 
stalked student told us that he feared participation in a Title IX 
proceeding, but that because of Title IX, the stalker was excluded, and 
the campus is a safer place. One student stated a college made 
necessary changes after the student filed a Title IX complaint.
     A number of individuals told us that the proposed 
regulations would not be adequate to help victims, based on their own 
experiences with the Title IX process. Commenters expressed concern 
that the proposed rules would cause students to drop out of school and 
lose scholarships. Other commenters asserted the proposed rules would 
enable serial rapists and harassers.
     Some individuals told us they never would have reported 
under the proposed rules because of the cross-examination requirement. 
Individuals who went through cross-examination in the criminal context 
told us how they suffered to get justice and that it is a traumatic 
experience that led to PTSD and more therapy. Several of these 
individuals told us defense attorneys badgered or humiliated them.
     One commenter expressed concern that, under the proposed 
rules' definition of sexual harassment, it could be argued that the 
rape that a friend endured was not a sufficiently severe impairment to 
the friend's educational access to be covered by Title IX.
     One commenter, who was a professor, told us that years ago 
a professor from another school who was interviewing for a position at 
the commenter's institution molested the commenter during an off-campus 
dinner. The commenter believed that under that institution's current 
policies, the commenter had a clear-cut reporting line, and the 
offender would, at a minimum, have received no further consideration 
for this job. This commenter claimed, however, that under the 
Department's proposed rules, even as a faculty member the commenter 
would not be protected.
     Commenters were also concerned about confidentiality. 
Several individuals stated they told a trusted coach or teacher, who 
was forced under current rules to report even though the individuals 
wanted the conversation to remain confidential. Other individuals 
stated they would not have reported under the proposed rules due to 
fear of backlash because of the public nature of reports or 
proceedings. One commenter recounted a friend's experience and stated 
that because the commenter's friend's name was not kept confidential 
during Title IX proceedings, the commenter's friend quit playing school 
basketball and dropped out of school to get mental health counseling, 
due to the public embarrassment from the Title IX proceeding.
    Relating to respondents, such personal experiences included the 
following:
     A wide variety of individuals submitted personal stories 
of respondents. These included student-respondents in past or present 
Title IX proceedings, individuals with disabilities such as autism, 
male and female respondents, respondents of color, faculty-respondents, 
and graduate-student respondents. We also heard from individuals who 
were associated with respondents such as friends and classmates, 
parents and family members, including parents of both males and females 
and parents of respondents with disabilities, such as OCD (obsessive-
compulsive disorder) and autism. Some personal stories came from 
professors and teachers who had seen the system in action. Some 
personal stories came from self-proclaimed liberals, Democrats, 
feminists, attorneys of respondents, and a religious leader.
     A number of the personal stories shared in comments 
explained the devastating effects that an allegation of sexual assault 
or harassment can have on a respondent, even if the respondent is never 
formally disciplined. Commenters contended that one false accusation 
can ruin someone's life, and told us that the consequences follow 
respondents for life. Other commenters stated that false allegations, 
and resulting Title IX processes, destroyed the futures of respondents 
and kept them from becoming lawyers, doctors, military officers, 
academics, and resulted in loss of other career opportunities.
     Many commenters told us that false allegations and the 
Title IX process caused severe emotional distress for respondents and 
their families. This included several stories of respondents attempting 
suicide after allegedly false allegations, several stories of 
respondents suffering from severe trauma, including anxiety disorders, 
stress, and PTSD, several stories of respondents suffering clinical 
depression, and several stories of respondents suffering from lack of 
sleep and changed eating habits.
     Several commenters told us that, as to respondents who 
were allowed to stay in school, being falsely accused of sexual 
misconduct affected their grades and academic performance, and ability 
to concentrate. Several commenters described the immense public shame 
and ridicule that resulted from a false allegation of sexual assault.
     Several professors commented that their academic freedom 
was curtailed due to unfair anti-sexual harassment policies.
     Several commenters described severe financial consequences 
to respondents and their families due to needing to hire legal 
representation to defend against allegedly false allegations. 
Commenters described incurring costs that ranged from $10,000 in legal 
fees to over $100,000 in legal and medical bills, including 
psychological treatment, to complete the process of clearing a 
respondent's name in the wake of a Title IX complaint. One comment was 
from parents who described feeling forced to put their house up for 
sale to pay to exonerate their child from baseless allegations.
     Several commenters stated that the status quo system 
disproportionately affects certain groups of respondents, including 
males, males of color, males of lower socioeconomic status, and 
students with disabilities. One commenter argued that the system is 
tilted in favor of females of means who are connected to the school's 
donor base.
     A number of respondents or other commenters described 
respondents being falsely accused and/or unfairly treated by their 
school in the Title IX process. Commenters shared numerous situations 
where there was an abundance of evidence indicating consent from both 
parties, but the respondent either was still found responsible for 
sexual assault or was forced to endure an expensive and

[[Page 30058]]

traumatic process before being found non-responsible.
     Several commenters told us stories where complainants were 
ex-intimate partners who did not report sexual assault allegations 
until weeks or months after a breakup, usually coinciding with the 
respondent finding a new intimate partner, under circumstances that the 
commenters believed showed that the complainant's motive was jealousy.
     Commenters shared stories of situations where two students 
engaged in sexual activity and allegations disputed over consent where 
both parties had been drinking, and commenters believed that many 
schools treated any intoxication as making a male respondent 
automatically liable for sexual assault even when neither party had 
been drinking so much that they were incapacitated.
     Commenters shared stories of situations where respondents 
were accused by complainants whom respondents had never met or did not 
recognize. Commenters shared stories of situations where respondents 
had befriended or comforted individuals who had experienced trauma and 
eventually found themselves being accused of sexual assault, 
harassment, or stalking.
     Commenters described their experiences with Title IX cases 
using negative terms to portray unfairness such as ``Kafka-esque,'' 
``1984-like,'' ``McCarthy-esque,'' and ``medieval star chamber.''
     We heard from several commenters who specifically argued 
that the withdrawn 2011 Dear Colleague Letter was the cause of the 
unfair Title IX process for respondents. One commenter expressed that 
the withdrawn 2011 Dear Colleague Letter destroyed the commenter's 
family.
     Many commenters opined that various parts of the proposed 
regulations would have helped prove their innocence or avoided or 
lessened the emotional, reputational, and financial hardships they 
experienced due to false accusations.
     A number of commenters expressed that they believed that 
Title IX investigations were biased in favor of the complainant and 
gave examples such as allowing only evidence in the complainant's 
favor, failing to give the hearing panel any opportunity to gauge the 
complainant's credibility, disallowing the respondent's witnesses from 
testifying but allowing testimony from all of the complainant's 
witnesses, and giving the complainant more time to prepare for a 
hearing or access to more evidentiary materials than the respondent was 
given.
     A number of commenters discussed the lack of due process 
protections in their experience with Title IX proceedings. Several 
students and professors detailed how they were expelled or fired 
without being permitted to give their side of the story. Several 
commenters described cases where respondents were suspended 
indefinitely from college without due process over an allegedly 
unprovable and false accusation of sexual harassment. Several 
commenters expressed how institutions took unilateral disciplinary 
action against respondents with no investigation. Two commenters noted 
that respondents' requests for autism accommodations were denied or 
appropriate disability accommodations were never offered.
     A number of commenters discussed how respondents were not 
allowed to have representation present when they met with the Title IX 
investigator or during their hearing. Several commenters stated that 
their advisor or lawyer was not allowed to speak during the hearing.
     A number of commenters described a lack of notice of the 
charges against them, of the details of the offenses they had allegedly 
committed, or of the evidence being used against them. Several 
commenters noted that the Title IX investigation produced a report 
describing evidence that respondents were not shown until after the 
opportunity to respond had passed. Several commenters complained that 
respondents were given no access to investigation documents.
     A number of commenters wrote that respondents felt like 
they were presumed guilty from the beginning by their institution. 
Several commenters expressed that they felt like the burden of proof 
rested completely on the respondent to prove innocence and they felt 
this was both unfair and un-American.
     A number of commenters described cases where respondents 
were denied the ability to cross-examine complainants, and even when 
the institution asked the complainant some questions, the institution 
refused to ask follow up questions during the hearing. Several 
commenters recounted cases where investigators did not ask the 
complainant follow up questions even though there were inconsistencies 
in the complainant's story.
     Several commenters told us that the university's Title IX 
decision-maker did not ask the questions that respondents submitted 
during the hearing. One commenter described a case where a respondent 
was not allowed to ask the complainant any questions at all; the 
respondent had to submit any questions ahead of time to a committee 
chairperson who, in turn, chose which questions to ask the complainant, 
and chose not to ask the complainant questions that the commenter had 
wanted asked.
     One attorney of a respondent described a situation where 
both the respondent and the complainant were allowed to submit only a 
written statement before the Title IX office made the final 
determination. The complainant stated that the conduct at issue between 
the two was, at least initially, consensual. But due to the absence of 
cross-examination, the respondent's attorney was never allowed to ask 
the complainant how the respondent was supposed to know when the 
conduct became nonconsensual.
     One commenter stated that the respondent was told by the 
institution that ``hearsay was absolutely admissible'' yet the 
respondent had no opportunity to cross-examine witnesses making hearsay 
statements.
     Several commenters discussed that it took six to 12 months 
to clear their names from allegedly false accusations. One commenter 
stated the process took eight months to clear the respondent's name and 
the respondent was banned from school during that time.
     Several commenters were fearful of retaliation from 
institutions because they believed their school was biased in favor of 
complainants. Several commenters stated that their university invented 
new charges once the original charges against a respondent fell apart.
     Several commenters contended that a broad definition of 
sexual harassment led to nonsensical outcomes. One commenter shared 
that a high school boy was charged with creating a hostile environment 
on the basis of gender after a group of girls accessed his private 
social media account and took screen shots of comments that the girls 
found offensive. Another commenter described how a dedicated young 
professor, who was very popular with students, was forced to take anger 
management courses at his own expense and then denied continued 
employment because a female college student reported him to the Title 
IX office for making a passionate argument in favor of a local issue of 
workplace politics. One parent shared a story about their daughter, who 
was accused of sexual exploitation on her campus, put through a hearing 
process, and given sanctions, for posting (to a private account) a 
video clip of herself walking down a common space

[[Page 30059]]

hallway when someone was having loud sex in the background. One 
commenter mentioned an incident where a professor was investigated 
under Title IX just for disagreeing about another professor's Title IX 
investigation.
     One respondent, who also identified as a sexual assault 
survivor, stated that, before her own personal experience told her 
otherwise, she believed that false or wrongful accusations were 
unimaginable and rare, but that her personal experience as a respondent 
showed her that false or wrongful accusations of sexual misconduct are 
much more common than the general population knows or would believe.
    Discussion: The Department has thoughtfully and respectfully 
considered the personal experiences of the many individuals who have 
experienced sexual harassment; been accused of it; have looked to their 
schools, colleges, and universities for supportive, fair responses; and 
have made the sacrifice in time and mental and emotional effort to 
convey their experiences and perspectives to the Department through 
public comment. Many of the themes in these comments echo those raised 
with the Department in listening sessions with stakeholders, leading to 
the Secretary of Education's speech in September 2017 \282\ in which 
she emphasized the importance of Title IX and the high stakes of sexual 
misconduct. The Secretary observed, after having personally spoken with 
survivors, accused students, and school administrators, that ``the 
system established by the prior administration has failed too many 
students.'' \283\ In the Secretary's words, ``One rape is one too many. 
One assault is one too many. One aggressive act of harassment is one 
too many. One person denied due process is one too many.'' \284\
---------------------------------------------------------------------------

    \282\ Betsy DeVos, U.S. Sec'y of Education, Prepared Remarks on 
Title IX Enforcement (Sept. 7, 2017), https://www.ed.gov/news/speeches/secretary-devos-prepared-remarks-title-ix-enforcement.
    \283\ Id.
    \284\ Id.
---------------------------------------------------------------------------

    The Secretary stated that in endeavoring to find a ``better way 
forward'' that works for all students, ``non-negotiable principles'' 
include the right of every survivor to be taken seriously and the right 
of every person accused to know that guilt is not predetermined.\285\ 
It is with those principles in mind that the Department prepared the 
NPRM, and because of robust public comment including from individuals 
personally affected by these issues, these final regulations even 
better reflect those principles.
---------------------------------------------------------------------------

    \285\ Id.
---------------------------------------------------------------------------

    Changes: In response to the personal stories shared by individuals 
affected by sexual harassment, the final regulations ensure that 
recipients offer supportive measures to complainants regardless of 
participation in a grievance process, and that respondents cannot be 
punished until the completion of a grievance process,\286\ in addition 
to numerous changes throughout the final regulations discussed in 
various sections of this preamble.
---------------------------------------------------------------------------

    \286\ Section 106.44(a). As discussed throughout this preamble, 
there are exceptions to this premise: Any respondent may be removed 
from an education program or activity on an emergency basis under 
Sec.  106.44(c); a non-student employee-respondent may be placed on 
administrative leave during pendency of a grievance process under 
Sec.  106.44(d); an informal resolution process, in which the 
parties voluntarily participate, may end in an agreement under which 
the respondent agrees to a disciplinary sanction or other adverse 
consequence, without the recipient completing a grievance process, 
under Sec.  106.45(b)(9).
---------------------------------------------------------------------------

Notice and Comment Rulemaking Rather Than Guidance

    Comments: Many commenters, including some who supported the 
substance of the proposed rules and others who opposed the substance, 
commended the Department for following formal rulemaking procedures to 
implement Title IX reforms instead of imposing rules through sub-
regulatory guidance. Many commenters asserted that the notice-and-
comment rulemaking process is critical for gathering informed feedback 
from all stakeholders and strengthening the rule of law, and leads to 
legal clarity and certainty for institutions and students. Several 
commenters stated that because the new regulations will be mandatory, 
they will provide a transparent standard that colleges must meet and a 
clear standard under which complainants can hold their institutions 
accountable.
    One commenter described the public comment process as demonstrating 
the values of transparency, fairness, and public dialogue, and 
appreciated the Department exhibiting those values with this process. 
One commenter called notice-and-comment a ``beautiful tool'' which 
helps Americans participate in the democracy and freedom our land 
offers; another called it an important step that helps the public have 
confidence in the Department's rules. One commenter thanked the 
Department for taking time to solicit public comment instead of rushing 
to impose rules through guidance because public comment leads to rules 
that are carefully thought out to ensure that there are not loopholes 
or irregularities in the process that is adopted.
    Another commenter opined that having codified rules will make it 
easier for colleges and universities to comply with Title IX and will 
ensure that sexual harassment policies are consistent, making policies 
and processes related to Title IX sexual harassment investigations more 
transparent to students, faculty and staff, and the public at large. 
One commenter, a student conduct practitioner, stated that the 
management of Title IX cases has felt like a rollercoaster for many 
years, and having clear regulations will be beneficial for the 
commenter's profession and the students served by that profession.
    Several commenters noted that previous sub-regulatory guidance did 
not give interested stakeholders the opportunity to provide feedback. 
One commenter opined that although prior administrations acted in good 
faith by issuing a series of Title IX guidance documents, prior 
administrations missed a critical opportunity by denying stakeholders 
the opportunity to publicly comment, resulting in many institutions of 
higher education lacking a clear understanding of their legal 
obligations; the commenter asserted that public comment reduces 
confusion for many administrators, Title IX Coordinators, respondents, 
and complainants, and avoids needless litigation.
    One commenter stated that by opening this issue up to the public, 
the Department has demonstrated sincerity in constructing rules that 
fully consider the issues and concerns regularly seen by practitioners 
in the field; the commenter thanked the Department for the time and 
effort put into clarifying and modifying Title IX regulatory 
requirements to be relevant and effective for today's issues.
    One commenter asserted that the proposed regulations address the 
inherent problem with ``Dear Colleague'' letters not being a 
``regulation.'' One commenter argued that no administration should have 
the ability to rewrite the boundaries of statutory law with a mere 
``Dear Colleague'' letter. One commenter applauded the use of the 
rulemaking process for regulating in this area and encouraged the 
abandonment of ``regulation through guidance.'' This commenter reasoned 
that institutions that comply with regulations are afforded certain 
safe harbors from liability as a matter of law, but institutions that 
complied with the Department's Title IX guidance were still subjected 
to litigation. This commenter asserted that recipients were left in a 
``Catch 22'' because Title IX

[[Page 30060]]

participants' attorneys freely second guessed the Department's Title IX 
guidance, forcing institutions to choose to follow the Department's 
guidance yet subject themselves to liability (or at least the prospect 
of an expensive litigation defense) from parties who had their own 
theories about discriminatory practices at odds with the Department's 
guidance, or else follow a non-discriminatory process different from 
the Department's guidance and thereby invite enforcement actions from 
OCR under threat of loss of Federal funds.
    Another commenter expressed appreciation that the Department seeks 
to provide further clarity to a complicated area of civil rights law 
and contended that since 2001 the Department has made numerous policy 
pronouncements, some of which have been helpful and others that have 
caused unnecessary confusion; that the 2001 Guidance was meant to 
ensure that cases of sexual violence are treated as cases of sexual 
harassment; that the withdrawn 2011 Dear Colleague Letter rightly 
addressed the failure of many institutions to address the needs of 
reporting parties; but by relying on guidance instead of regulations 
the Department's ability to provide technical assistance to 
institutions was undermined, and the guidance created further 
confusion.
    One commenter opposed the proposed rules and opined that changing 
the 1975 Title IX regulations is very serious and change should only be 
made based on substantial consensus and evidence that any changes are 
critically needed and cannot be accomplished by traditionally effective 
guidance such as previous letters and helpful Q&As from the Department. 
Another commenter opined that under our system of checks and balances, 
because Congress passed Title IX, Congress should have to approve a 
regulation like this, issued under Title IX.
    Discussion: The Department agrees with the many commenters who 
acknowledged the importance of prescribing rules for Title IX sexual 
harassment only after following notice-and-comment rulemaking 
procedures required by the Administrative Procedure Act (``APA''), 5 
U.S.C. 701 et seq., instead of relying on non-binding sub-regulatory 
guidance. The Department believes that sex discrimination in the form 
of sexual harassment is a serious subject that deserves this serious 
rulemaking process. Moreover, the Department believes that sub-
regulatory guidance cannot achieve the goal of enforcing Title IX with 
respect to sexual harassment because this particular form of sex 
discrimination requires a unique response from a recipient, and only 
law and regulation can hold recipients accountable. The Department 
acknowledges that Congress could address Title IX sexual harassment 
through legislation, but Congress has not yet done so. Congress has, 
however, granted the Department the authority and direction to 
effectuate Title IX's non-discrimination mandate,\287\ and the 
Department is persuaded that the problem of sexual harassment and how 
recipients respond to it presents a need for the Department to exercise 
its authority by issuing these final regulations.\288\
---------------------------------------------------------------------------

    \287\ 20 U.S.C. 1682 (``Each Federal department and agency which 
is empowered to extend Federal financial assistance to any education 
program or activity . . . is authorized and directed to effectuate 
the provisions of section 1681 of this title with respect to such 
program or activity by issuing rules, regulations, or orders of 
general applicability which shall be consistent with achievement of 
the objectives of the statute authorizing the financial assistance 
in connection with which the action is taken.'').
    \288\ The Department notes that the Congress has the opportunity 
to review these final regulations under the Congressional Review 
Act, 5 U.S.C. 801 et seq.
---------------------------------------------------------------------------

    Changes: None.

General Support and Opposition

    Comments: Many commenters expressed overall support for the 
proposed rules. One commenter stated that the proposed rules are a 
reasonable means by which the Department can ensure that colleges and 
universities do not engage in unlawful discrimination. One commenter 
supported the proposed rules because they clearly address the problem 
of sex discrimination, gender bias, and gender stereotyping and 
asserted that there is widespread public support for the proposed rules 
based on public polling, opinion editorials, and media articles. Some 
commenters supported the proposed rules because they protect all 
students, including LGBTQ students and male students. One commenter 
expressed general support for the proposed rules, but was concerned 
that changing the rules still will not help victims who are afraid to 
speak up.
    Some commenters expressed support for the proposed rules because 
they provide clarity and flexibility to institutions of higher 
education, and some asserted that the proposed rules appropriately 
establish firm boundaries regarding student safety and protections, 
while granting institutions flexibility to customize responses based on 
an institution's unique attributes. These commenters believed the 
proposed rules included a number of improvements that will assist 
institutions in advancing these goals. One commenter expressed support 
for the alignment between the proposed rules and the Clery Act because 
that will help institutions comply with all regulations and ensure a 
fair process. One commenter supported the clarity and flexibility in 
the proposed rules regarding the standards by which schools will be 
judged in implementing Title IX, the circumstances that require a Title 
IX response, and the amount of time schools have to resolve a sexual 
harassment proceeding. One commenter supported the clear directives in 
the proposed rules regarding how investigations must proceed and the 
written notice that must be provided to both parties, the opportunity 
for schools to use a higher evidentiary standard, the definition of 
sexual harassment, and the discussion of supportive measures. Another 
commenter characterized the proposed rules as containing several 
changes to when and where Title IX applies that offer welcome 
clarification to regulated entities by limiting subjective agency 
discretion, rolling back previous overreach, and creating certainty by 
substituting formal rules for nebulous guidance.
    Some commenters expressed support for the proposed rules because 
they represent a return to fairness and due process for both parties, 
which will benefit everyone. Some of these commenters referenced 
personal stories in their comments and expressed their opinions that 
many accusations are false and lives are being ruined. Some of these 
commenters also criticized withdrawn Department guidance for not 
providing adequate due process and for being punitive. One such 
commenter also criticized the prior Administration for not meeting with 
organizations or groups advocating for due process or fairness to the 
accused. Other commenters criticized the status quo system as being 
arbitrary and capricious, and biased, and stated that decision-makers 
often do not have the professional autonomy to render decisions 
incompatible with institutional interests.
    Some commenters asserted that the proposed rules would assist 
victims by ensuring that they are better informed and able to have 
input in the way their case is handled. Some commenters stated that the 
proposed rules are important for defining the minimum requirements for 
campus due process and will help ensure consistency among schools. One 
commenter asserted that the proposed rules take a crucial step toward 
addressing systemic bias in favor of complainants who are almost always

[[Page 30061]]

female and against respondents who are almost always male. The 
commenter stated that such bias is illustrated by schools that adopt 
pro-victim processes while claiming that favoring alleged victims is 
not sex discrimination. One commenter contended that men's rights are 
under attack and advocacy groups have hijacked Title IX enforcement to 
engineer cultural change not authorized by the law, engendering hostile 
relationships and mistrust on campuses between men and women, and 
contended that current codes of conduct are unconstitutional because of 
their disparate impact on men.
    A number of commenters expressed general support for the proposed 
rules and suggested additional modifications. Some of these commenters 
recommended that the Department make the proposed rules retroactive for 
students who were disciplined unfairly under the previous rules, 
including requiring schools to reopen and reexamine old cases and then 
apply these new rules, if requested to do so by a party involved in the 
old case. Some commenters stated that colleges should only be 
responsible for sexual assault or harassment perpetrated by employees 
of the school, and student-on-student sexual misconduct should not be 
the school's responsibility because it is outside the scope of Title 
IX. One of these commenters stated that it would be even better if the 
Department stopped enforcing Title IX. This commenter asserted that 
Title IX was passed to ensure that schools do not discriminate against 
females and it has achieved that objective, and the Department has the 
right to adopt the minority view in Davis,\289\ that schools should not 
be held accountable for student-on-student sexual harassment.
---------------------------------------------------------------------------

    \289\ Commenter cited: Davis v. Monroe Cnty. Bd. of Educ., 526 
U.S. 629, 661-62 (1999) (Kennedy, J., dissenting) (``Discrimination 
by one student against another therefore cannot be `under' the 
school's program or activity as required by Title IX. The majority's 
imposition of liability for peer sexual harassment thus conflicts 
with the most natural interpretation of Title IX's `under a program 
or activity' limitation on school liability.'') (internal citations 
omitted).
---------------------------------------------------------------------------

    One commenter expressed concern that some education systems are not 
covered by Title IX even though they receive Federal funding; this 
commenter specifically referenced fraternities and sororities and 
stated that this lack of Title IX coverage of Greek life should be 
reevaluated. One commenter suggested that the Department establish a 
procedure for the accused to file a complaint with the U.S. Secretary 
of Education. This commenter also suggested that there be a review 
board for Title IX accusations, the members of which are detached from 
the administration of the school. One commenter expressed concern that 
schools may not comply with the proposed rules and argued that the only 
lever that will work is a credible threat to cut off Federal funding 
for lack of compliance. One commenter expressed concern about funds 
from the U.S. Department of Justice's Office on Violence Against Women 
(OVW), which the commenter claimed funds studies that are being written 
only by those who support victims' rights; the commenter asserted that 
OVW funds are being used by campus Title IX offices to investigate and 
adjudicate allegations of campus sexual assault. This commenter 
recommended that the Department specify that OVW-funded programs must 
comply with the new Title IX regulations. One commenter expressed 
concern over the costs students faced to defend themselves in a Title 
IX process under the previous rules and suggested that OCR may want to 
undertake a study on to what extent OCR's previous policies resulted in 
a serious adverse impact on lower- and moderate-income students and/or 
students of color since these students likely had fewer resources to 
pay for their defense.
    Discussion: The Department appreciates commenters' variety of 
reasons expressing support for the Department's approach. The 
Department agrees that the final regulations will promote protection of 
all students and employees from sex discrimination, provide clarity as 
to what Title IX requires of schools, colleges, and universities, help 
align Title IX and Clery Act obligations, provide consistency while 
leaving flexibility for recipients, benefit all parties to a grievance 
process by focusing on a fair, impartial process, and require 
recipients to offer supportive measures to complainants as part of a 
response to sexual harassment.
    The Department understands commenters' desire to require recipients 
who have previously conducted grievance processes in a way that the 
commenters view as unfair to reopen the determinations reached under 
such processes. However, the Department will not enforce these final 
regulations retroactively.\290\
---------------------------------------------------------------------------

    \290\ Federal agencies authorized by statute to promulgate rules 
may only create rules with retroactive effect where the authorizing 
statute has expressly granted such authority. See 5 U.S.C. 551 
(referring to a ``rule'' as agency action with ``future effects'' in 
the Administrative Procedure Act); Bowen v. Georgetown Univ. Hosp., 
488 U.S. 204, 208 (1988) (``Retroactivity is not favored in the law. 
Thus, congressional enactments and administrative rules will not be 
construed to have retroactive effect unless their language requires 
this result.'').
---------------------------------------------------------------------------

    The Department will continue to recognize, as has the Supreme 
Court, that sexual harassment, including peer-on-peer sexual 
harassment, is a form of sex discrimination prohibited under Title IX, 
and will continue vigorously to enforce Title IX with respect to all 
forms of sex discrimination.
    Commenters questioning whether specific organizations receiving 
Federal financial assistance (including programs funded through OVW) 
are covered by Title IX may direct inquiries to the organization's 
Title IX Coordinator or to the Assistant Secretary, or both, pursuant 
to Sec.  106.8(b)(1). Complaints alleging that a recipient has failed 
to comply with Title IX will continue to be evaluated and investigated 
by the Department. Section 106.45(b)(8) requires appeals from 
determinations regarding responsibility to be decided by decision-
makers who are free from conflicts of interest. Recipients are subject 
to Title IX obligations, including these final regulations, with 
respect to all of the recipient's education programs or activities; 
there is no exemption from Title IX coverage for fraternities and 
sororities, and in fact these final regulations specify in Sec.  
106.44(a) that the education program or activity of a postsecondary 
institution includes any building owned or controlled by a student 
organization officially recognized by the postsecondary institution.
    The Department appreciates commenters' concerns about the impact of 
Title IX grievance procedures implemented under withdrawn Department 
guidance or under status quo policies that commenters believed were 
unfair. While the Department did not commission a formal study into the 
impact of previous guidance, the Department conducted extensive 
stakeholder outreach prior to issuing the proposed rules and has 
received extensive input through public comment on the NPRM, and 
believes that the final regulations will promote Title IX enforcement 
more aligned with the scope and purpose of Title IX (while respecting 
every person's constitutional due process rights and right to 
fundamental fairness) than the Department's guidance has achieved.
    Changes: None.
    Comments: Numerous commenters, including physicians, parents, 
students, State coalitions against rape, advocacy groups, sexual 
assault survivors, ministers, mental health therapists, social workers, 
and employees at educational institutions expressed general opposition 
to the proposed rules. A number of commenters emphasized the critical 
progress spurred

[[Page 30062]]

on by Title IX. Some commenters emphasized how Title IX has broken down 
barriers and improved educational access for millions of students for 
decades, especially for girls and women, including increasing access to 
higher education, promoting gender equity in athletics, and protecting 
against sexual harassment. Many of these commenters expressed concern 
that the proposed rules would undermine this progress towards sex 
equality and combating sexual harassment when protections are still 
greatly needed. Some argued that the proposed rules would weaken 
protections for young women at the very time when the #MeToo movement 
has shown the pervasiveness of sexual harassment and how much 
protections are still needed. Other commenters asserted that women and 
girls still depend on Title IX to ensure equal access in all aspects of 
education.
    A few commenters asserted that the proposed rules violate Christian 
or Jewish teachings or expressed the view that the proposed rules are 
immoral, unethical, or regressive. Commenters described the proposed 
rules using a variety of terms, such as disgusting, unfair, indecent, 
dishonorable, un-Christian, lacking compassion, callous, sickening, 
morally bankrupt, cruel, regressive, dangerous, or misguided. Other 
commenters expressed concern that the proposed rules would ``turn back 
the clock'' to a time when schools ignored sexual assault, excused male 
misbehavior as ``boys will be boys,'' and treated sexual harassment as 
acceptable. Many commenters asserted that the prior Administration's 
protections for victims of sexual assault should not be rolled back.
    Some commenters expressed the belief that the proposed rules are 
inconsistent with the purpose and intent of Title IX because they would 
allow unfair treatment of women, force women to choose between their 
safety and education, increase the cultural tolerance of sexual assault 
and predatory behaviors, make it harder for young women to complete 
their education without suffering the harms of sex-based harassment, 
and obstruct Title IX's purpose to protect and empower students 
experiencing sex discrimination. A few commenters expressed concern 
that the proposed rules would harm graduate students, who suffer sexual 
harassment at high rates.
    Some commenters expressed the belief that the proposed rules are 
contrary to sex equality. Commenters asserted that Title IX protects 
all people from sexual assault, benefits both women and men, and that 
all students deserve equality and protection from sex discrimination 
and sexual harassment. Commenters expressed belief that: Sexism hurts 
everyone, including men; men are far more likely to be sexually 
assaulted than falsely accused of it; both men and women are victims of 
rape and deserve protection; men on campus are not under attack and 
need protection as victims more than as falsely accused respondents; 
and the proposed rules were written to protect males or to protect 
males more than females, but should protect male and female students 
equally. Other commenters characterized the proposed rules as part of a 
broader effort by this Administration to dismantle protections for 
women and other marginalized groups.
    One commenter argued that the Department should spend more time 
interviewing victims of sexual assault than worrying about whether the 
accused's life will be ruined. Other commenters stated that Title IX 
should be protected and left alone. One commenter stated that any 
legislation that limits the rights of the victim in favor of the 
accused should be scrutinized for intent. One commenter stated that the 
proposed rules only cater to the Department and its financial bottom 
line. One commenter supported protecting Title IX and giving girls' 
sports a future. One commenter asserted that we are losing female STEM 
(science, technology, engineering, math) leaders that the Nation needs 
right now.
    One commenter urged the Department to create rules that protect 
survivors, prevent violence and sexual harassment and punish offenders, 
teach about boundaries and sexuality, and provide counseling and mental 
health resources to students. One commenter suggested that the 
Department should use more resources to educate about sexual consent 
communication, monitor drinking, and provide sexual education because 
this will protect both male and female students. Some commenters 
suggested alternate practices to the approaches advanced in the 
proposed rules, such as: behavioral therapy for offenders and bystander 
intervention training; best practices for supporting survivors in 
schools; community-based restorative justice programs; and independent 
State investigatory bodies independent of school systems with trained 
investigators. Some commenters expressed concern that the proposed 
rules ignore efforts to prevent sexual harassment or to address its 
root causes.
    Discussion: The Department appreciates that many commenters with a 
range of personal and professional experiences expressed opposition to 
the proposed regulations. The Department agrees that Title IX has 
improved educational access for millions of students since its 
enactment decades ago and believes that these final regulations 
continue our national effort to make Title IX's non-discrimination 
mandate a meaningful reality for all students.
    The Department notes that although some commenters formed opinions 
of the proposed rules based on Christian or Jewish teachings or other 
religious views, the Department does not evaluate legal or policy 
approaches on that basis. The Department believes that the final 
regulations mark progress under Title IX, not regression, by treating 
sexual harassment under Title IX as a matter deserving of legally 
binding regulatory requirements for when and how recipients must 
respond. In no way do the final regulations permit recipients to ``turn 
back the clock'' to ignore sexual assault or excuse sexual harassment 
as ``boys will be boys'' behavior; rather, the final regulations 
obligate recipients to respond promptly and supportively to 
complainants and provide a grievance process fair to both parties 
before determining remedies and disciplinary sanctions.
    The Department disagrees that changing the status quo approach to 
Title IX will negatively impact women, children, students of color, or 
LGBTQ individuals, because the final regulations define the scope of 
Title IX and recipients' legal obligations under Title IX without 
regard to the race, ethnicity, sexual orientation, age, or other 
characteristic of a person.
    The Department is committed to the rule of law and robust 
enforcement of Title IX's non-discrimination mandate for the benefit of 
individuals in protected classes designated by Congress in Federal 
civil rights laws such as Title IX. Contrary to a commenter's 
assertion, the Department is acutely concerned about the way that 
sexual harassment--and recipients' responses to it--have ruined lives 
and deprived students of educational opportunities. The Department aims 
through these final regulations to create legally enforceable 
requirements for the benefit of all persons participating in education 
programs or activities, including graduate students, for whom 
commenters asserted that sexual harassment is especially prevalent.
    The Department understands that some commenters opposed the 
proposed regulations because they want Title IX to be protected and 
left alone. For reasons explained in the ``Notice and Comment 
Rulemaking Rather Than

[[Page 30063]]

Guidance'' and ``Adoption and Adaption of the Supreme Court's Framework 
to Address Sexual Harassment'' sections of this preamble, the 
Department believes that the final regulations create a framework for 
responding to Title IX sexual harassment that effectuates the Title IX 
non-discrimination mandate better than the status quo under the 
Department's guidance documents.
    The Department disagrees that the proposed regulations in any 
manner limit the rights of alleged victims in favor of the accused; 
rather, for reasons explained in the ``Section 106.45 Recipient's 
Response to Formal Complaints'' section of this preamble, the 
prescribed grievance process gives complainants and respondents equally 
strong, clear procedural rights during a grievance process.\291\ Those 
procedural rights reflect the seriousness of sexual harassment, the 
life-altering consequences that flow from a determination regarding 
responsibility, and the need for each determination to be factually 
accurate. The Department's intent is to promulgate Title IX regulations 
that further the dual purposes of Title IX: preventing Federal funds 
from supporting discriminatory practices, and providing individuals 
with protections against discriminatory practices. The final 
regulations in no way cater to the Department or the Department's 
financial bottom line and the Department will enforce the final 
regulations vigorously to protect the civil rights of students and 
employees. While the proposed regulations mainly address sex 
discrimination in the form of sexual harassment, the Department will 
also continue to enforce Title IX in non-sexual harassment contexts 
including athletics and equal access to areas of study such as STEM 
fields.
---------------------------------------------------------------------------

    \291\ See also the ``Role of Due Process in the Grievance 
Process'' section of this preamble.
---------------------------------------------------------------------------

    The Department believes that the final regulations protect 
survivors of sexual violence by requiring recipients to respond 
promptly to complainants in a non-deliberately indifferent manner with 
or without the complainant's participation in a grievance process, 
including offering supportive measures to complainants, and requiring 
remedies for complainants when respondents are found responsible. For 
reasons discussed in the ``Deliberate Indifference'' subsection of the 
``Adoption and Adaption of the Supreme Court's Framework to Address 
Sexual Harassment'' section of this preamble, the Department does not 
require or prescribe disciplinary sanctions and leaves those decisions 
to the discretion of recipients, but recipients must effectively 
implement remedies designed to restore or preserve a complainant's 
equal educational access if a respondent is found responsible for 
sexual harassment following a grievance process that complies with 
Sec.  106.45.
    The Department understands commenters' beliefs that the Department 
should create rules that monitor drinking, teach about interpersonal 
boundaries, sexuality, bystander intervention, and sexual consent 
communication, and provide counseling and mental health resources to 
students. The final regulations do not preclude recipients from 
offering counseling and mental health services, and while the 
Department does not mandate educational curricula, nothing in the final 
regulations impedes recipients' discretion to provide students (or 
employees) with educational information. While these final regulations 
are concerned with setting forth requirements for recipients' responses 
to sexual harassment, the Department agrees with commenters that 
educators, experts, students, and employees should also endeavor to 
prevent sexual harassment from occurring in the first place. The 2001 
Guidance took a similar position on prevention of sexual 
harassment.\292\
---------------------------------------------------------------------------

    \292\ The 2001 Guidance under the heading ``Prevention'' states: 
``Further, training for administrators, teachers, and staff and age-
appropriate classroom information for students can help to ensure 
that they understand what types of conduct can cause sexual 
harassment and that they know how to respond.'' 2001 Guidance at 19.
---------------------------------------------------------------------------

    The Department appreciates and has considered the many alternative 
approaches proposed by commenters, including that the Department should 
require behavioral therapy for offenders, establish best practices for 
supporting survivors, require restorative justice programs, require 
that State investigatory bodies independent of school systems conduct 
Title IX investigations, and address the root causes of sexual 
harassment. The Department does not require particular sanctions--or 
therapeutic interventions--for respondents who are found responsible 
for sexual harassment, and leaves those decisions in the sound 
discretion of State and local educators. Under the final regulations, 
recipients and States remain free to consider alternate investigation 
and adjudication models, including regional centers that outsource the 
investigation and adjudication responsibilities of recipients to highly 
trained, interdisciplinary experts. Some regional center models 
proposed by commenters and by Title IX experts rely on recipients to 
form voluntary cooperative organizations to accomplish this purpose, 
while other, similar models involve independent, professional 
investigators and adjudicators who operate under the auspices of State 
governments. The Department will offer technical assistance to 
recipients with respect to pursuing a regional center model for meeting 
obligations to investigate and adjudicate sexual harassment allegations 
under Title IX.
    Similarly, recipients remain free to adopt best practices for 
supporting survivors and standards of competence for conducting 
impartial grievance processes, while meeting obligations imposed under 
the final regulations. The final regulations address recipients' 
required responses to sexual harassment incidents; identifying the root 
causes and reducing the prevalence of sexual harassment in our Nation's 
schools remains within the province of schools, colleges, universities, 
advocates, and experts.
    Changes: None.
    Comments: Some commenters contended that the proposed rules would 
have a negative impact on specific populations, including women, 
persons of color, children, and LGBTQ individuals, and supported 
keeping Title IX as-is. One commenter believed that many people hold an 
inaccurate stereotype that sexual assault does not happen at all-
women's colleges and felt that the proposed rules would make it harder 
for students in such environments to get justice or to feel safe in 
their own dorms.
    Some commenters were concerned about the negative impact of the 
proposed rules on victims and the message the proposed rules send to 
the public. Commenters asserted that the proposed rules perpetuate the 
acceptance of sexual assault and harassment and will result in people 
not believing victims despite how difficult it is to come forward. 
Commenters expressed concern that the proposed rules will place an 
additional burden on victims and make it less likely victims will come 
forward, allowing perpetrators to go unpunished. One commenter asserted 
that the proposed rules signal to the public and potential sexual 
harassers and assaulters that their actions will be excused by the 
Department and not sufficiently investigated by their campuses. Some 
commenters contended that the proposed rules, if enacted, would: 
Protect abusers and those accused of assault; insulate harassers from 
punishment or make them feel like they

[[Page 30064]]

can sexually harass others without consequence; give boys and young men 
who behave badly or have a sense of entitlement a free pass when it 
comes to their actions against girls, rather than teaching men to 
respect women; make it easier for harassers to get away with it rather 
than ensuring accountability; allow rapists to escape consequences; 
continue a culture of impunity; strengthen rape culture; perpetuate 
systemic gender oppression; undermine efforts to ensure young people 
understand consent; disempower survivors and reinforce myths that they 
are at fault for being assaulted; prevent deterrence of sexual abuse; 
and be designed to protect rich and privileged boys.
    Many commenters expressed general concern that the proposed rules 
would make schools less safe for all students, including LGBTQ 
students. Commenters identified an array of harms they believed the 
proposed rules would impose on victims. Commenters argued the proposed 
rules would: Make it less likely victims will be protected, believed, 
or supported; make it harder for survivors to report their sexual 
assaults, to get their cases heard, to prove their claims, and to 
receive justice, despite a process that is already difficult, painful, 
convoluted, confusing, and lacking in resources, and in which victims 
fear coming forward; attack survivors in ways that make it harder for 
them to get help; restrict their rights and harm them academically and 
psychologically (e.g., dropping out of school, trauma, post-traumatic 
stress disorder, institutional betrayal, suicide). Commenters argued 
that the proposed rules would: discourage survivors from coming forward 
and subject them to retraumatizing experiences in order to seek 
redress; make schools dangerous by making it easier for perpetrators to 
get away with heinous acts of gender-based violence; encourage sexually 
predatory behavior; fail to prioritize the safety of survivors and 
students; make students feel less safe at school and on campus; 
jeopardize students' well-being; increase the helplessness survivors 
feel; and leave victims without recourse. Commenters argued that the 
proposed rules: Put victims at greater risk of retaliation by schools 
eager to hide misconduct from the public; treat some people as less 
than others based on gender; signal that survivors do not matter and 
that sexual assault can be ignored; hurt real women or show disdain for 
women and girls; and deny victims due process. Commenters believed that 
the proposed rules were antithetical to bodily autonomy and 
reproductive justice values, fail to advance the goal of stopping 
sexual violence, and shift the costs and burdens to those already 
suffering from trauma.
    Discussion: The Department disagrees that the proposed regulations 
will negatively impact women, people of color, LGBTQ individuals, or 
any other population. The proposed regulations are designed to provide 
supportive measures for all complainants and remedies for a complainant 
when a respondent is found responsible for sexual harassment, and the 
Department believes that, contrary to commenters' assertions, the final 
regulations will help protect against sex discrimination regardless of 
a person's race or ethnicity, age, sexual orientation, or gender 
identity and will give complainants greater autonomy to receive the 
kind of school-level response to a reported incident of sexual 
harassment that will best help the complainant overcome the effects of 
sexual harassment and retain educational access. The Department notes 
that the final regulations do not differentiate between sexual assault 
occurring at an all-women's college and sexual assault occurring at a 
college enrolling women and men.
    The Department believes that students, employees, recipients, and 
the public will benefit from the clarity, consistency, and 
predictability of legally enforceable rules for responding to sexual 
harassment set forth in the final regulations, and believes that the 
final regulations will communicate and incentivize these goals, 
contrary to some commenters' assertions that the final regulations will 
communicate negative messages to the public. The final regulations, 
including the Sec.  106.45 grievance process, are motivated by fair 
treatment of both parties in order to avoid sex discrimination in the 
way either party is treated and to reach reliable determinations so 
that victims receive remedies that restore or preserve access to 
education after suffering sex discrimination in the form of sexual 
harassment. The Department recognizes that anyone can be a victim, and 
anyone can be a perpetrator, of sexual harassment, and that each 
individual deserves a fair process designed to accurately resolve the 
truth of allegations.
    The Department disagrees that the proposed regulations perpetuate 
acceptance of sexual harassment, rape culture, or systemic sex 
inequality; continue a culture of impunity; will result in people not 
believing victims; will disempower survivors or increase victim 
blaming, are designed to protect rich, privileged boys; or will make 
schools less safe. The Department recognizes that reporting a sexual 
harassment incident is difficult for many complainants for a variety of 
reasons, including fear of being blamed, not believed, or retaliated 
against, and fear that the authorities to whom an incident is reported 
will ignore the situation or fail or refuse to respond in a meaningful 
way, perhaps due to negative stereotypes that make women feel shamed in 
the aftermath of sexual violence. The final regulations require 
recipients to respond promptly to every complainant in a manner that is 
not clearly unreasonable in light of the known circumstances, including 
by offering supportive measures (irrespective of whether a formal 
complaint is filed) and explaining to the complainant options for 
filing a formal complaint. The final regulations impose duties on 
recipients and their Title IX personnel to maintain impartiality and 
avoid bias and conflicts of interest, so that no complainant or 
respondent is automatically believed or not believed. Complainants must 
be offered supportive measures, and respondents may receive supportive 
measures, whether or not a formal complaint has been filed or a 
determination regarding responsibility has been made.
    The Department is sensitive to the effects of trauma on sexual 
harassment victims and appreciates that choosing to make a report, file 
a formal complaint, communicate with a Title IX Coordinator to arrange 
supportive measures, or participate in a grievance process are often 
difficult steps to navigate in the wake of victimization. The 
Department disagrees, however, that the final regulations place 
additional burdens on victims or make it more difficult for victims to 
come forward. Rather, the final regulations place burdens on recipients 
to promptly respond to a complainant in a non-deliberately indifferent 
manner. The Department disagrees that the final regulations will excuse 
sexual harassment or result in insufficient investigations of sexual 
harassment allegations. Section 106.44(a) obligates recipients to 
respond by offering supportive measures to complainants, and Sec.  
106.45 obligates recipients to conduct investigations and provide 
remedies to complainants when respondents are found responsible. Thus, 
a recipient is not permitted under the final regulations to excuse or 
ignore sexual harassment, nor to avoid investigating where a formal 
complaint is filed.
    Changes: We have revised Sec.  106.44(a) to state that as part of a 
recipient's

[[Page 30065]]

response to a complainant, the recipient must offer the complainant 
supportive measures, irrespective of whether a complainant files a 
formal complaint, and the Title IX Coordinator must contact the 
complainant to discuss availability of supportive measures, consider 
the complainant's wishes regarding supportive measures, and explain to 
the complainant the process for filing a formal complaint.
    Comments: One commenter asked what statistics the proposed rules 
were based on and stated that the proposed rules seem to not have been 
thought through. A number of commenters expressed concerns that the 
proposed rules are not based on sufficient facts, evidence, or 
research, lack adequate justification, or demonstrate a lack of 
competence, knowledge, background, and awareness. A number of these 
commenters suggested gathering further evidence, best practices, and 
input from students, educators, administrators, advocates, survivors, 
and others. One commenter stated that the way to make American life and 
society safer was to address domestic violence on campuses.
    Some commenters expressed concerns that the proposed rules would 
reduce reporting and investigations of sexual assault. Some commenters 
argued that many elements of the proposed rules are based on the 
misleading claim that those accused of sexual misconduct should be 
protected against false accusations even though research shows that 
false accusations are rare. Several commenters contended that women are 
more likely to be sexually assaulted than a man is to be falsely 
accused and similarly, a man is more likely to be sexually assaulted 
than to be falsely accused of sexual assault.
    One commenter stated that the proposed rules would create a two-
tiered system to deal with sexual assault cases and would put undue 
financial burden on the marginalized to pay for representation in an 
already flawed reporting system. One commenter stated that Title IX 
should protect all female students from rape, and they should be 
believed until facts prove them wrong.
    Some commenters expressed opposition because the proposed rules 
protect institutions. Some of these commenters contended that the 
proposed rules would allow schools to avoid dealing with cases of 
sexual misconduct and abdicate their responsibility to take accusations 
seriously. One of these commenters argued it was the Department's job 
to protect the civil rights of students, not to help shield schools 
from accountability. One commenter argued that the proposed regulations 
had been pushed for by education lobbyists. Some commenters expressed 
concerns about reducing schools' Title IX obligations noting that 
schools have a long history of not adequately addressing sexual 
misconduct, have reputational, financial, and other incentives not to 
fully confront such behavior, and need to be kept accountable under 
Title IX. A few commenters felt that the proposed regulations would 
give school officials too much discretion and that the proposed 
regulations would result in inconsistencies among institutions in 
handling cases and in the support provided to students.
    A number of commenters felt that the proposed rules prioritize the 
interests of schools, by narrowing their liability and saving them 
money, over protections for students. One commenter stated that 
universities that discriminate on the basis of sex should get no 
Federal money. One commenter was concerned that the proposed rules 
would create an environment in which institutions will refuse to take 
responsibility to avoid the financial aspect of having to make 
restitution rather than focusing on the well-being of victims. One 
commenter contended that the proposed rules enable school 
administrators to sexually abuse students by reducing a school's 
current Title IX responsibilities. One commenter stated that the 
proposed rules would hurt victims and perpetrators and leave 
institutions vulnerable to lawsuits.
    Other commenters expressed a belief that the changes may violate 
constitutional safeguards, such as the rights to equal protection and 
to life and liberty. Some commenters believed that the proposed rules 
are in line with regressive laws regarding rape, sexual assault, and 
women's rights in less democratic countries. A few commenters felt that 
the proposed rules would signal an increased tolerance internationally 
for sexual violence, cause international students to avoid U.S. 
colleges where sexual assault is more prevalent, or compromise the 
country's ability to compete internationally in STEM fields where U.S. 
women are reluctant to focus given the prevalence of sexual harassment.
    Discussion: The final regulations reflect the Department's legal 
and policy decisions of how to best effectuate the non-discrimination 
mandate of Title IX, after extensive internal deliberation, stakeholder 
engagement, and public comment. The Department is aware of statistics 
that describe the prevalence of sexual harassment in educational 
environments and appreciates the many commenters who directed the 
Department's attention to such statistics.\293\ The Department believes 
that these final regulations are needed precisely because statistics 
support the numerous personal accounts the Department has heard and 
that commenters have described regarding the problem of sexual 
harassment. The perspectives of survivors of sexual violence have been 
prominent in the public comments considered by the Department 
throughout the process of promulgating these final regulations. In 
response to commenters concerned about addressing domestic violence, 
the Department has revised the definition of ``sexual harassment'' in 
Sec.  106.30 to expressly include domestic violence (and dating 
violence, and stalking) as those offenses are defined under VAWA, 
amending the Clery Act.
---------------------------------------------------------------------------

    \293\ Many such statistics are referenced in the ``Commonly 
Cited Sources'' and ``Data--Overview'' subsections of this ``General 
Support and Opposition'' section of the preamble.
---------------------------------------------------------------------------

    The Department does not believe the final regulations will reduce 
reporting or investigations of conduct that falls under the purview of 
Title IX. Section 106.44(a) requires recipients to respond supportively 
to complainants regardless of whether a complainant also wants to file 
a formal complaint. When a formal complaint is filed, the Sec.  106.45 
grievance process prescribes a consistent framework, fair to both 
complainants and respondents, with respect to the investigation and 
adjudication of Title IX sexual harassment allegations. Thus, both 
complainants and respondents receive due process protections, and where 
a Sec.  106.45 grievance process concludes with a determination that a 
respondent is responsible, the complainant is entitled to remedies. 
Whether false accusations of sexual harassment occur frequently or 
infrequently, the Sec.  106.45 grievance process requires allegations 
to be investigated and adjudicated impartially, without bias, based on 
objective evaluation of the evidence relevant to each situation.
    As to all sexual harassment covered by Title IX, including sexual 
assault, the final regulations obligate recipients to respond and 
prescribe a consistent, predictable grievance process for resolution of 
formal complaints. Nothing in the final regulations precludes a 
recipient from applying the Sec.  106.45 grievance process to address 
sexual assaults that the recipient is not required to address under 
Title IX. The Department disagrees that the proposed regulations put 
undue financial burden on marginalized individuals to pay for 
representation. Contrary to the commenter's assertions,

[[Page 30066]]

Sec.  106.45(b)(5)(iv) gives each party the right to choose an advisor 
to assist the party, but does not require that the advisor be an 
attorney (or other advisor who may charge the party a fee for their 
representation).\294\
---------------------------------------------------------------------------

    \294\ The Department also notes that where cross-examination is 
required at a live hearing (for postsecondary institutions), the 
cross-examination must be conducted by an advisor (parties must 
never personally question each other), and if a party does not have 
their own advisor of choice at the live hearing, the postsecondary 
institution must provide that party (at no fee or charge) with an 
advisor of the recipient's choice, for the purpose of conducting 
cross-examination, and such a provided advisor may be, but does not 
need to be, an attorney. Sec.  106.45(b)(6)(i).
---------------------------------------------------------------------------

    The Department believes that schools, colleges, and universities 
desire to maintain a safe environment and that many have applied 
substantial effort and resources to address sexual harassment in 
particular; however, the Department acknowledges that reputational and 
financial interests have also influenced recipients' approaches to 
sexual violence problems. Contrary to some commenters' assertions, the 
proposed regulations neither ``protect institutions'' nor shield them 
from liability, but rather impose clear legal obligations on recipients 
to protect students' civil rights. The Department disagrees that the 
proposed regulations give recipients too much discretion; instead, the 
Department believes that the deliberate indifference standard requiring 
a response that is not clearly unreasonable in the light of known 
circumstances, combined with particular requirements for a prompt 
response that includes offering supportive measures to complainants, 
strikes an appropriate balance between requiring all recipients to 
respond meaningfully to each report, while permitting recipients 
sufficient flexibility and discretion to address the unique needs of 
each complainant.
    While the Department is required to estimate costs and cost savings 
associated with the final regulations, cost considerations have not 
driven the Department's legal and policy approach as to how best to 
ensure that the benefits of Title IX extend to all persons 
participating in education programs or activities. With respect to 
sexual harassment covered by Title IX, the final regulations require 
recipients to take accusations seriously and deal with cases of sexual 
misconduct, not avoid them. Regardless of whether a recipient wishes to 
dodge responsibility (to avoid reputational, financial, or other 
perceived institutional harms), recipients are obligated to comply with 
all Title IX regulations and the Department will vigorously enforce 
Title IX obligations. The Department disagrees with a commenter's 
contention that the final regulations enable school administrators to 
sexually abuse students; Sec.  106.30 defines Title IX sexual 
harassment to include quid pro quo harassment by any recipient's 
employee, and includes sexual assault perpetrated by any individual 
whether the perpetrator is an employee or not. Indeed, if a school 
administrator engages in any conduct on the basis of sex that is 
described in Sec.  106.30, then the recipient must respond promptly 
whenever any elementary or secondary school employee (or any school, 
college, or university Title IX Coordinator) has notice of the conduct.
    The Department believes that the framework in these final 
regulations for responding to Title IX sexual harassment effectuates 
the non-discrimination mandate of Title IX for the protection and 
benefit of all persons in recipients' education programs and activities 
and disagrees that the final regulations leave institutions vulnerable 
to lawsuits. A judicially implied right of private action exists under 
Title IX, and other Federal and State laws permit lawsuits against 
schools, but the Department's charge and focus is to administratively 
enforce Title IX, not to address the potential for lawsuits against 
institutions. However, by adapting for administrative purposes the 
general framework used by the Supreme Court for addressing Title IX 
sexual harassment (while adapting that framework for administrative 
enforcement) and prescribing a grievance process rooted in due process 
principles for resolving allegations, the Department believes that 
these final regulations may have the ancillary benefit of decreasing 
litigation.
    The Department notes that Sec.  106.6(d) expressly addresses the 
intersection between the final regulations and constitutional rights, 
stating that nothing in these final regulations requires a recipient to 
restrict rights guaranteed under the U.S. Constitution. This would 
include the rights to equal protection and substantive due process 
referenced by commenters concerned that the proposed rules violate 
those constitutional safeguards. The Department does not rely on the 
laws regarding rape and women's rights in other countries to inform the 
Department's Title IX regulations, but believes that Title IX's 
guarantee of non-discrimination on the basis of sex in education 
programs or activities represents a powerful statement of the 
importance of sex equality in the United States, and that these final 
regulations effectuate and advance Title IX's non-discrimination 
mandate by recognizing for the first time in the Department's 
regulations sexual harassment as a form of sex discrimination.
    Changes: We have revised the definition of ``sexual harassment'' in 
Sec.  106.30 to include dating violence, domestic violence, and 
stalking as those offenses are defined under VAWA, amending the Clery 
Act. We have revised Sec.  106.44(a) to require recipients to offer 
supportive measures to each complainant.
    Comments: A few commenters argued that any use of personal blogs as 
a citation or source in Federal regulation is inappropriate and that 
using a blog as a source in a footnote in the NPRM (for example, a blog 
maintained by K.C. Johnson, co-author of the book Campus Rape Frenzy), 
is inappropriate and unprofessional; one commenter contested the 
accuracy of Professor Johnson's compilation on that blog of information 
regarding lawsuits filed against institutions relating to Title IX 
campus proceedings. Commenters argued that although people's personal 
experiences can be highly valuable, using a blog as a citation in 
rulemaking does not reflect evidence-based practice. Similarly, a few 
commenters criticized the Department's footnote reference in the NPRM 
to Laura Kipnis's book Unwanted Advances as, among things, evidence 
that the Department's sources listed in the NPRM suggest undue 
engagement with materials that promote pernicious gender stereotypes.
    A few commenters referenced media reports of statements made by 
President Trump, Secretary DeVos, and former Acting Assistant Secretary 
for Civil Rights Candice Jackson as indications that the Department 
approached the NPRM with a motive of gender bias against women. A few 
commenters asserted that the Department's footnote citations in the 
NPRM suggest systematic inattention to the intersection of race and 
gender relating to Title IX and urged the Department to adopt an 
intersectional approach because failure to pay attention to how gender 
interacts with other social identities will result in a failure to 
effectively meet the Department's goal that all students are able to 
pursue their educations in federally-funded institutions free from sex 
discrimination.
    Discussion: The source citations in the NPRM demonstrate a range of 
perspectives about Title IX sexual harassment and proceedings including 
views both supportive and critical of the status quo approach to campus 
sexual harassment, all of which the Department considered in preparing 
the NPRM. The

[[Page 30067]]

Department believes that whether commenters are correct or not in 
characterizing certain NPRM footnoted references as personal opinions 
instead of case studies, the views expressed in the NPRM references 
warranted consideration. Similarly, the Department has reviewed and 
considered the views, perspectives, experiences, opinions, information, 
analyses, and data expressed in public comments, and the wide range of 
feedback is beneficial as the Department considers the most appropriate 
ways in which to regulate recipients' responses to sexual harassment 
under Title IX in schools, colleges, and universities.
    The Department maintains that no reported statement on the part of 
the President, Secretary, or former Acting Assistant Secretary for 
Civil Rights suggests bias against women. The Department proceeded with 
the NPRM, and the final regulations, motivated by the commitment to the 
``non-negotiable principles'' of Title IX regulations that Secretary 
DeVos stated in a speech about Title IX: The right of every survivor to 
be taken seriously and the right of every person accused to know that 
guilt is not predetermined.\295\
---------------------------------------------------------------------------

    \295\ Betsy DeVos, U.S. Sec'y of Education, Prepared Remarks on 
Title IX Enforcement (Sept. 7, 2017), https://www.ed.gov/news/speeches/secretary-devos-prepared-remarks-title-ix-enforcement.
---------------------------------------------------------------------------

    The Department appreciates that some commenters made assertions 
that the impact of sexual harassment, and the impact of lack of due 
process procedures, may differ across demographic groups based on sex, 
race, and the intersection of sex and race (as well as other 
characteristics such as disability status, sexual orientation, and 
gender identity). The Department emphasizes that these final 
regulations apply to all individuals reporting, or accused of, Title IX 
sexual harassment, irrespective of race or other demographic 
characteristics. The Department believes that these final regulations 
provide the best balance to supportively, fairly, and accurately 
address allegations of sexual harassment for the benefit of every 
individual.
    Changes: None.
    Comments: Some commenters argued that the proposed regulations will 
cause social discord and make campuses unsafe because survivors will 
underreport and rates of sexual harassment will increase. Many 
commenters expressed concern that the proposed rules will discourage or 
have a chilling effect on reporting sexual harassment and violence, 
that reporting rates are already low, that the proposed rules would 
make things worse, and that schools could use the proposed rules to 
discourage students from reporting against faculty or staff in order to 
maintain the school's reputation. Commenters contended that this will 
adversely impact the ability of victims, especially from marginalized 
populations, to access their education.
    Discussion: The Department disagrees that these final regulations 
will cause social discord or make campuses unsafe, because a 
predictable, consistent set of rules for when and how a recipient must 
respond to sexual harassment increases the likelihood that students and 
employees know that sexual harassment allegations will be responded to 
promptly, supportively, and fairly. The Department acknowledges data 
showing that reporting rates are lower than prevalence rates with 
respect to sexual harassment, including sexual violence, but disagrees 
that the final regulations will discourage or chill reporting. In 
response to commenters' concerns that students need greater clarity and 
ease of reporting, the final regulations provide that a report to any 
Title IX Coordinator, or any elementary or secondary school employee, 
will obligate the school to respond,\296\ require recipients to 
prominently display the contact information for the Title IX 
Coordinator on recipients' websites,\297\ and specify that any person 
(i.e., the complainant or any third party) may report sexual harassment 
by using the Title IX Coordinator's listed contact information, and 
that a report may be made at any time (including during non-business 
hours) by using the listed telephone number or email address (or by 
mail to the listed office address).\298\ Recipients must respond by 
offering the complainant supportive measures, regardless of whether the 
complainant also files a formal complaint or otherwise participates in 
a grievance process.\299\ Such supportive measures are designed 
precisely to help complainants preserve equal access to their 
education.
---------------------------------------------------------------------------

    \296\ Section 106.30 (defining ``actual knowledge'').
    \297\ Section 106.8(b).
    \298\ Section 106.8(a).
    \299\ Section 106.44(a).
---------------------------------------------------------------------------

    Changes: The Department has expanded the definition of ``actual 
knowledge'' in Sec.  106.30 to include reports to any elementary or 
secondary school employee. We have revised Sec.  106.8 to require 
recipients to prominently display on recipient websites the contact 
information for the recipient's Title IX Coordinator, and to state that 
any person may report sexual harassment by using the Title IX 
Coordinator's listed contact information, and that reports may be made 
at any time (including during non-business hours) by using the 
telephone number or email address, or by mailing to the office address, 
listed for the Title IX Coordinator. We have revised Sec.  106.44(a) to 
require recipients to offer supportive measures to every complainant 
whether or not a formal complaint is filed.
    Comments: Many commenters stated that student survivors often rely 
on their academic institutions to allow them some justice and 
protection from their assailant and that the provisions provided by 
Title IX, as enforced under the Department's withdrawn 2011 Dear 
Colleague Letter and withdrawn 2014 Q&A, are important for the 
continued safety of student victims during and after assault and 
harassment investigations.
    One commenter shared the commenter's own research showing that one 
of the benefits of the post-2011 Dear Colleague Letter era is that 
campuses have prioritized fairness and due process, creating more 
robust investigative and adjudicative procedures that value neutrality 
and balance the rights of claimants and respondents. Overall, campus 
administrators that this commenter has interviewed and surveyed say 
that the attention to Title IX has led to vast improvements on their 
campuses. Some commenters urged the Department to codify the withdrawn 
2011 Dear Colleague Letter.
    Other commenters asserted that research suggests that few accused 
students face serious sanctions like expulsion. Commenters referred to 
a study that found up to 25 percent of respondents were expelled for 
being found responsible of sexual assault prior to the withdrawn 2011 
Dear Colleague Letter,\300\ while a media outlet reported that data 
obtained under the Freedom of Information Act showed that among 100 
institutions of higher education and 478 sanctions for sexual assault 
issued between 2012 and 2013, only 12 percent of those sanctions were 
expulsions.\301\ Commenters argued that studies suggest that campuses 
with strong protections for victims also have the strongest protections 
for due process, such that campuses that have devoted the most time and 
resources to addressing campus sexual assault are, in fact, protecting 
due process. Inconsistent

[[Page 30068]]

implementation, commenters argued, is not a reason to change the 
regulations.
---------------------------------------------------------------------------

    \300\ Commenters cited: Kristen Lombardi, A Lack of Consequences 
for Sexual Assault, The Center for Public Integrity (Feb. 24, 2010).
    \301\ Commenters cited: Nick Anderson, Colleges often reluctant 
to expel for sexual violence, The Washington Post (Dec. 15, 2014).
---------------------------------------------------------------------------

    Other commenters argued that there is insufficient factual support 
for the Department's claim that educational institutions were confused 
about their legal obligations under previous guidance. They noted that 
the Department did not commission any research or study to specifically 
analyze schools' understanding of their legal obligation or determine 
whether there were any areas in which administrators were confused 
about their responsibilities. Commenters argued that under the 
withdrawn 2011 Dear Colleague Letter, compliance with expectations 
under Title IX significantly increased in nearly every major category 
including compliance with important aspects of due process, such as 
providing notice and procedural information to students participating 
in campus sexual violence proceedings. Commenters stated that under the 
prior administration, the pendulum did not swing ``too far'' in favor 
of victims, but instead was placed exactly where it should have been 
for a population that had previously been dismissed, ignored, and 
disenfranchised. Commenters argued that any issues with the Title IX 
grievance process are the result of individual colleges or Title IX 
Coordinators not following the process correctly and not due to issues 
with the process itself. Commenters argued that the solution should be 
additional resources and training for colleges rather than revising the 
process to favor respondents and make it more difficult for victims to 
report thereby increasing the already abysmal rate of under reporting.
    Commenters asserted that the current Title IX regulations and 
withdrawn guidance have been supported by universities and the public. 
Commenters pointed out that when the Department called for public 
comment on Department regulations in 2017 before withdrawing the 2011 
Dear Colleague Letter, 12,035 comments were filed: 99 Percent (11,893) 
were in support of Title IX and 96 percent of them explicitly supported 
the 2011 Dear Colleague Letter. When all of the individual comments as 
well as the petitions and jointly-signed comments are included, 
commenters stated that 60,796 expressions of support were filed by the 
public, and 137 comments were in opposition. Commenters requested that 
the Department build off the framework of the 2011 Dear Colleague 
Letter for a fair and compassionate method of reporting and 
adjudication so that both the victims and the accused are treated 
justly. Many of these commenters argued that due process is important, 
yet due process rights were always important in previous Department 
guidance and certainly are best practice. If the Department moves 
forward with its plans to revise the regulations regarding sexual 
assault and harassment, commenters argued the Department would be 
knowingly encouraging a continued culture of rape on campuses all 
across our country.
    Discussion: The Department agrees with commenters who noted that 
many student survivors rely on their academic institutions to provide 
justice and protection from their assailant; for these reasons, the 
final regulations require recipients to offer supportive measures to 
every complainant whether or not a grievance process is pending, and 
prescribe a grievance process under which complainants and respondents 
are treated fairly and under which a victim of sexual harassment must 
be provided with remedies designed to restore or preserve the victim's 
equal access to education. The Department recognizes that educational 
institutions largely have strived in good faith over the last several 
years to provide meaningful support for complainants while applying 
grievance procedures fairly and that many institutions have made 
improvements in their Title IX compliance over the past several years. 
However, the Department disagrees with commenters' assertions that the 
only deficiency with Department guidance (including withdrawn guidance 
such as the 2011 Dear Colleague Letter and current guidance such as the 
2001 Guidance) was inconsistent implementation. Because guidance 
documents do not have the force and effect of law, the Department's 
Title IX guidance could not impose legally binding obligations on 
recipients. By following the regulatory process, the Department through 
these final regulations ensures that students and employees can better 
hold their schools, colleges, and universities responsible for legally 
binding obligations with respect to sexual harassment allegations. The 
Department appreciates that members of the public expressed support for 
the 2011 Dear Colleague Letter in 2017; however, the need for 
regulations to replace mere guidance on a subject as serious as sexual 
harassment weighed in favor of undertaking the rulemaking process to 
develop these final regulations. The Department believes that issuing 
regulations rather than guidance brings clarity, permanence, and 
accountability to Title IX enforcement. As discussed in the ``Adoption 
and Adaption of the Supreme Court's Framework to Address Sexual 
Harassment'' section and the ``Role of Due Process in the Grievance 
Process'' section of this preamble, the approach in these final 
regulations is similar in some ways, and different in other ways, from 
Department guidance, including the 1997 Guidance, the 2001 Guidance, 
the withdrawn 2011 Dear Colleague Letter, the withdrawn 2014 Q&A, and 
the 2017 Q&A. The Department believes that these final regulations 
provide protections for complainants while ensuring that investigations 
and adjudications of sexual harassment are handled in a grievance 
process designed to impartially evaluate all relevant evidence so that 
determinations regarding responsibility are accurate and reliable, 
ensuring that victims of sexual harassment receive justice in the form 
of remedies.
    The Department disputes that the approach in these final 
regulations governing recipient responses to sexual harassment in any 
way encourages a culture of rape; to the contrary, the Department 
specifically included sexual assault in the definition of Title IX 
sexual harassment to ensure no confusion would exist as to whether even 
a single instance of rape is tolerable under Title IX.
    Changes: None.
    Comments: The Department received many comments opposing the 
proposed rules, including personal experiences shared by: Survivors; 
parents, relatives, and friends of survivors; students; educators 
(current and retired); medical and mental health professionals who 
treat and work with sexual assault victims; Title IX college officials; 
law enforcement officials; business owners; religious figures; and 
commenters who have been accused of sexual assault, who recounted the 
devastating effects of sexual assault on survivors, stated their 
opposition to the proposed rules, and affirmed their belief the 
proposed rules will retraumatize victims, worsen Title IX protections, 
and embolden predators by making schools less safe. Some commenters 
believed that if a student is being harassed in the classroom, the 
proposed rules would lessen the teacher's ability to protect the class 
effectively.
    Commenters also stated that the proposed rules failed to 
acknowledge how traumatic experiences like sexual violence can impact 
an individual's neurobiological and physiological functioning. Such 
commenters asserted that the brain processes traumatic experiences 
differently than day-to-day, non-threatening experiences; often 
physiological reactions, emotional

[[Page 30069]]

responses, and somatic memories react at different times in different 
parts of the brain, resulting in a non-linear recall (or lack of recall 
at all) of the traumatic event. Other commenters argued that trauma-
informed approaches result in sexual harassment investigations and 
adjudications that prejudge the facts and bias proceedings in favor of 
complainants.
    Commenters viewed the proposed rules as allowing schools to 
intervene only when they deem the abuse is pervasive and severe enough, 
leaving many survivors in the position to prove their abuse is worthy 
of their school's attention and action. These commenters asserted that 
Title IX needs reformation and greater enforcement so that survivors 
have more recourse in their healing experiences, in addition to 
preventing these incidents from occurring in the first place, as this 
is a deeply cultural and systemic problem. Some commenters asserted 
that those who start these harassing behaviors at a young age will 
escalate such behaviors in future years, and, as such, the proposed 
rules would negatively impact the behaviors of our future generations 
by curtailing punishment and reporting at an early age.
    Some commenters stated that, through the proposed rules, many 
sexual assaults would not be covered by Title IX, and survivors, 
especially students of color, would not feel protected against possible 
discrimination and retaliation should they consider disclosure of 
sexual crimes against them. These commenters argued this would impact 
all future statistical reporting on nationwide sexual assaults and 
harassment, thereby affecting funding sources that support survivors of 
sexual assault that rely on accurate data collection.
    Another commenter asserted that the Centers for Disease Control and 
Prevention has concluded that while risk factors do not cause sexual 
violence they are associated with a greater likelihood of perpetration, 
and that ``weak community sanctions against sexual violence 
perpetrators'' was a risk factor at the community level while ``weak 
laws and policies related to sexual violence and gender equity'' is a 
risk factor at the societal level.\302\ The commenter argued that the 
perception and reality is that the proposed rules will weaken efforts 
to hold perpetrators accountable and increase the likelihood of sexual 
violence perpetration.
---------------------------------------------------------------------------

    \302\ Commenters cited: Centers for Disease Control and 
Prevention, National Center for Injury Prevention and Control, 
Division of Violence Prevention, Sexual Violence, Risk and 
Protective Factors, https://www.cdc.gov/violenceprevention/sexualviolence/riskprotectivefactors.html (last reviewed by the CDC 
on Jan. 17, 2020); Jenny Dills et al., Continuing the Dialogue: 
Learning from the Past and Looking to the Future of Intimate Partner 
Violence and Sexual Violence Prevention, National Center for Injury 
Prevention and Control, Centers for Disease Control and Prevention 
(2019).
---------------------------------------------------------------------------

    Discussion: The Department appreciates that commenters of myriad 
backgrounds and experiences emphasized the devastating effects of 
sexual assault on survivors and the need for strong Title IX 
protections that do not retraumatize victims. The Department believes 
that the final regulations provide victims with strong protections from 
sexual harassment under Title IX and set clear expectations for when 
and how a school must respond to restore or preserve complainants' 
equal educational access. Nothing in the final regulations reduces or 
limits the ability of a teacher to respond to classroom behavior. If 
the in-class behavior constitutes Title IX sexual harassment, the 
school is responsible for responding promptly without deliberate 
indifference, including offering appropriate supportive measures to the 
complainant, which may include separating the complainant from the 
respondent, counseling the respondent about appropriate behavior, and 
taking other actions that meet the Sec.  106.30 definition of 
``supportive measures'' while a grievance process resolves any factual 
issues about the sexual harassment incident. If the in-class behavior 
does not constitute Title IX sexual harassment (for example, because 
the conduct is not severe, or is not pervasive), then the final 
regulations do not apply and do not affect a decision made by the 
teacher as to how best to discipline the offending student or keep 
order in the classroom.
    The Department understands from anecdotal evidence and research 
studies that sexual violence is a traumatic experience for survivors. 
The Department is aware that the neurobiology of trauma and the impact 
of trauma on a survivor's neurobiological functioning is a developing 
field of study with application to the way in which investigators of 
sexual violence offenses interact with victims in criminal justice 
systems and campus sexual misconduct proceedings.\303\ The final 
regulations require impartiality in investigations and emphasize the 
truth-seeking function of a grievance process. The Department wishes to 
emphasize that treating all parties with dignity, respect, and 
sensitivity without bias, prejudice, or stereotypes infecting 
interactions with parties fosters impartiality and truth-seeking. 
Further, the final regulations contain provisions specifically intended 
to take into account that complainants may be suffering results of 
trauma; for instance, Sec.  106.44(a) has been revised to require that 
recipients promptly offer supportive measures in response to each 
complainant and inform each complainant of the availability of 
supportive measures with or without filing a formal complaint. To 
protect traumatized complainants from facing the respondent in person, 
cross-examination in live hearings held by postsecondary institutions 
must never involve parties personally questioning each other, and at a 
party's request, the live hearing must occur with the parties in 
separate rooms with technology enabling participants to see and hear 
each other.\304\
---------------------------------------------------------------------------

    \303\ E.g., Jeffrey J. Nolan, Fair, Equitable Trauma-Informed 
Investigation Training (Holland & Knight updated July 19, 2019) 
(white paper summarizing trauma-informed approaches to sexual 
misconduct investigations, identifying scientific and media support 
and opposition to such approaches, and cautioning institutions to 
apply trauma-informed approaches carefully to ensure impartial 
investigations).
    \304\ Section 106.45(b)(6)(i).
---------------------------------------------------------------------------

    The Department disagrees that the final regulations make survivors 
prove their abuse is worthy of attention or action, because the Sec.  
106.30 definition of sexual harassment includes sexual assault, 
domestic violence, dating violence, and stalking. Such abuse 
jeopardizes a complainant's equal educational access and is not subject 
to scrutiny or question as to whether such abuse is worthy of a 
recipient's response. Title IX coverage of sexual assault requires that 
the recipient have actual knowledge that the incident occurred in the 
recipient's education program or activity against a person in the 
United States. We have revised the Sec.  106.30 definition of ``actual 
knowledge'' to include notice to any elementary and secondary school 
employee, and to expressly include a report to the Title IX Coordinator 
as described in Sec.  106.8(a) (which, in turn, requires a recipient to 
notify its educational community of the contact information for the 
Title IX Coordinator and allows any person to report using that contact 
information, whether or not the person who reports is the alleged 
victim or a third party). We have revised the Sec.  106.30 definition 
of ``complainant'' to mean any individual ``who is alleged to be the 
victim'' of sexual harassment, to clarify that a recipient must offer 
supportive measures to any person alleged to be the victim, even if the 
complainant is not the person who

[[Page 30070]]

made the report of sexual harassment. We have revised Sec.  106.44(a) 
to require the Title IX Coordinator promptly to contact a complainant 
to discuss supportive measures, consider the complainant's wishes with 
respect to supportive measures, and explain to the complainant the 
process and option of filing a formal complaint. Within the scope of 
Title IX's reach, no sexual assault needs to remain unaddressed.
    The Department understands that sexual harassment occurs throughout 
society and not just in educational environments, that data support the 
proposition that harassing behavior can escalate if left unaddressed, 
and that prevention of sexual harassment incidents before they occur is 
a worthy and desirable goal. The final regulations describe the Title 
IX legal obligations to which the Department will vigorously hold 
schools, colleges, and universities accountable in responding to sexual 
harassment incidents. Identifying the root causes and reducing the 
prevalence of sexual harassment across our Nation's schools and 
campuses remains within the province of schools, colleges, 
universities, advocates, and experts.
    In response to commenters' concerns that many complainants fear 
retaliation for reporting sexual crimes, the final regulations add 
Sec.  106.71 expressly prohibiting retaliation, which protects 
complainants (and respondents and witnesses) regardless of race, 
ethnicity, or other characteristic. The Department intends for 
complainants to understand that their right to report under Title IX 
(including the right to participate or refuse to participate in a 
grievance process) is protected against retaliation. The Department is 
aware that nationwide data regarding the prevalence and reporting rates 
of sexual assault is challenging to assess, but does not believe that 
these final regulations will impact the accuracy of such data 
collection efforts.
    The Department does not dispute the proposition that weak sanctions 
against sexual violence perpetrators and weak laws and policies related 
to sexual violence and sex equality are associated with a greater 
likelihood of perpetration. The Department believes that Title IX is a 
strong law, and that these final regulations constitute strong policy, 
standing against sexual violence and aiming to remedy the effects of 
sexual violence in education programs and activities. Because Title IX 
is a civil rights law concerned with equal educational access, these 
final regulations do not require or prescribe disciplinary sanctions. 
The Department's charge under Title IX is to preserve victims' equal 
access to access, leaving discipline decisions within the discretion of 
recipients.
    Changes: We have revised the Sec.  106.30 definition of ``actual 
knowledge'' to include notice to any elementary and secondary school 
employee, and to expressly include a report to the Title IX Coordinator 
as described in Sec.  106.8(a). We have revised Sec.  106.8(a) to 
expressly allow any person (whether the alleged victim, or a third 
party) to report sexual harassment using the contact information that 
must be listed for the Title IX Coordinator. We have revised the Sec.  
106.30 definition of ``complainant'' to mean any individual ``who is 
alleged to be the victim'' of sexual harassment. We have revised Sec.  
106.44(a) to require the Title IX Coordinator promptly to contact a 
complainant to discuss supportive measures, consider the complainant's 
wishes with respect to supportive measures, and explain to the 
complainant the process and option of filing a formal complaint. We 
have also added Sec.  106.71, prohibiting retaliation against 
individuals exercising rights under Title IX including participating or 
refusing to participate in a Title IX grievance process.
    Comments: Some commenters suggested alternate approaches to the 
proposed rules or offered alternative practices. For example, 
commenters suggested: Zero-tolerance policies; requiring schools to 
install cameras in public or shared spaces on campus to discourage 
sexual harassment, provide proof and greater fairness for all parties 
involved, and decrease the cost and time spent in such cases; requiring 
recipients to provide an accounting of all funds used to comply with 
Title IX; creating Federal or State-individualized written protocols 
with directions on interviewing parties in Title IX investigations; 
requiring schools to adopt broader harassment policies that allow 
complaints to be addressed by an independent board with parent, 
educational, medical or law enforcement professionals, and peers with 
appeal to a second board; providing increased funding and staff for 
Title IX programs; third-party monitoring of Title IX compliance; and 
requiring universities to provide more thorough reports on gender-based 
violence in their systems. Some commenters emphasized the importance of 
prevention practices, suggesting various approaches such as: Adopting 
the prevention measures in the withdrawn 2011 Dear Colleague Letter; 
setting incentives to reward schools for fewer Title IX cases; and 
curtailing schools' use of confidential sexual harassment settlement 
payments that hide or erase evidence of harassment and protect 
predatory behavior.
    Other commenters requested more training for organizations such as 
fraternities, arguing that sexual assault statistics would improve by 
enforcing better standards of behavior at fraternities. Commenters 
proposed the Department should rate schools on their compliance to 
Title IX standards similar to FIRE's ``Spotlight on Due Process'' \305\ 
or the Human Rights Campaign's Equality Index.\306\ Commenters proposed 
that any new rule should build upon, rather than abrogate, the 
requirements of the Campus Sex Crimes Prevention Act of 2000, which 
requires institutions of higher education to advise the campus 
community where it can obtain information about sex offenders provided 
by the State. One commenter urged the Department to add into the final 
regulations the statutory exemptions from the Title IX non-
discrimination mandate found in the Title IX statute including Boys 
State/Nation or Girls State/Nation conferences (20 U.S.C. 1681(a)(7)); 
father-son or mother-daughter activities at educational institutions 
(20 U.S.C. 1681(a)(8)); and institution of higher education scholarship 
awards in ``beauty'' pageants (20 U.S.C. 1681(a)(9)).
---------------------------------------------------------------------------

    \305\ Commenters cited: Foundation for Individual Rights in 
Education (FIRE), Spotlight on Due Process 2018 (2018), https://www.thefire.org/resources/spotlight/due-process-reports/due-process-report-2018/#top.
    \306\ Commenters referenced how the Human Rights Campaign (HRC) 
rates workplaces and health care providers on an Equality Index, for 
example the Corporate Equality Index Archive, https://www.hrc.org/resources/corporate-equality-index-archives.
---------------------------------------------------------------------------

    Another commenter requested that the final regulations commit to 
ensuring culturally-sensitive services for students of color, who 
experience higher rates of sexual violence and more barriers to 
reporting, to help make prevention and support more effective. 
Commenters proposed to have each educational institution follow a 
guideline when employing staff from ``Women Centers'' as Title IX 
Coordinators and staff in Title IX offices, and as student residence 
hall directors, to ensure that there is fair judgment in every case of 
sexual misconduct that occurs. Commenters argued that justice for all 
could be served by less press coverage of high-profile incidents and 
that investigations should be kept private until all facts are 
gathered, preserving the reputation of all involved.
    Discussion: The Department appreciates and has considered the 
numerous approaches suggested by commenters, some of whom urged the

[[Page 30071]]

Department to take additional measures and others who desired 
alternatives to the proposed rules.
    The Department has determined, in light of the Supreme Court's 
framework for responding to Title IX sexual harassment and extensive 
stakeholder feedback concerning those procedures most needed to improve 
the consistency, fairness, and accuracy of Title IX investigations and 
adjudications, that the final regulations reasonably and appropriately 
obligate recipients to respond supportively and resolve allegations 
fairly without encroaching on recipients' discretion to control their 
internal affairs (including academic, administrative, and disciplinary 
decisions). Many of the commenters' suggestions for additions or 
alternatives to the final regulations concern subjects that lie within 
recipients' discretion and it may be possible for recipients to adopt 
them while also complying with these final regulations. To the extent 
that the commenters' suggestions require action by the Department, we 
decline to implement or require those practices, in the interest of 
preserving recipients' flexibility and retaining the focus of these 
regulations on prescribing recipient responses to Title IX sexual 
harassment. The Department cannot enforce Title IX in a manner that 
requires recipients to restrict any rights protected under the First 
Amendment, including freedom of the press.\307\ We have added Sec.  
106.71 which prohibits retaliation against an individual for the 
purpose of interfering with the exercise of Title IX rights. Section 
106.71(a) requires recipients to keep confidential the identity of any 
individual who has made a report or complaint of sex discrimination, 
including any individual who has made a report or filed a formal 
complaint of sexual harassment, any complainant, any individual who has 
been reported to be the perpetrator of sex discrimination, any 
respondent, and any witness (unless permitted by FERPA, or required 
under law, or as necessary to conduct proceedings under Title IX), and 
Sec.  106.71(b) states that exercise of rights protected by the First 
Amendment is not retaliation. Section 106.30 defining ``supportive 
measures'' instructs recipients to keep confidential the provision of 
supportive measures except as necessary to provide the supportive 
measures. These provisions are intended to protect the confidentiality 
of complainants, respondents, and witnesses during a Title IX process, 
subject to the recipient's ability to meet its Title IX obligations 
consistent with constitutional protections.
---------------------------------------------------------------------------

    \307\ See Peterson v. City of Greenville, 373 U.S. 244 (1963); 
Truax v. Raich, 239 U.S. 33, 38 (1915); Sec.  106.6(d)(1).
---------------------------------------------------------------------------

    The statutory exceptions to Title IX mentioned by at least one 
commenter (i.e., Boys State or Girls' State conferences, father-son or 
mother-daughter activities, certain ``beauty'' pageant scholarships) 
have full force and effect by virtue of their express inclusion in 20 
U.S.C. 1681(a), and the Department declines to repeat those exemptions 
in these final regulations, which mainly address a recipient's response 
to sexual harassment.
    Changes: We have added Sec.  106.71 which prohibits retaliation 
against an individual for the purpose of interfering with the exercise 
of Title IX rights. Section 106.71(a) requires recipients to keep 
confidential the identity of any individual who has made a report or 
complaint of sex discrimination, including any individual who has made 
a report or filed a formal complaint of sexual harassment, any 
complainant, any individual who has been reported to be the perpetrator 
of sex discrimination, any respondent, and any witness (unless 
permitted by FERPA, or required under law, or as necessary to conduct 
proceedings under Title IX), and Sec.  106.71(b) states that exercise 
of rights protected by the First Amendment is not retaliation.
    Comments: Some commenters suggested broadening the scope of the 
proposed rules to address other issues, for example: Providing guidance 
on pregnancy and parenting obligations under Title IX; evaluating 
coverage of fraternities and sororities under Title IX; funding to 
protect women and young adults on campus; girls losing access to 
sports, academic, and vocational programs as schools choose to save 
money by cutting girls' programs; investigating whether speech and 
conduct codes impose a disparate impact on men; covering other forms of 
harassment (e.g., race, age, national origin).
    A few commenters expressed concern about the lack of clarity for 
cases alleging harassment on multiple grounds, such as whether the 
proposed provisions regarding mandatory dismissal, the clear and 
convincing evidence standard, interim remedies, and cross-examination 
would apply to the non-sex allegations. A few commenters requested that 
the final regulations address student harassment of staff and faculty 
by changing ``employee'' or ``student'' to ``member'' in the final 
regulations.
    Discussion: The NPRM focused on the problem of recipient responses 
to sexual harassment, and the scope of matters addressed by the final 
regulations is defined by the subjects presented in the NPRM. 
Therefore, the Department declines to address other topics outside of 
this original scope, such as pregnancy, parenting, or athletics under 
Title IX, coverage of Title IX to fraternities and sororities, whether 
speech codes discriminate based on sex, funding intended to protect 
women or young adults on campus, funding cuts to girls' programs by 
recipients, or forms of harassment other than sexual harassment. The 
Department notes that inquiries about the application of Title IX to 
particular organizations may be referred to the organization's Title IX 
Coordinator or to the Assistant Secretary as indicated in Sec.  
106.8(b)(1), and that complaints alleging sex discrimination that does 
not constitute sexual harassment may be referred to the recipient's 
Title IX Coordinator for handling under the equitable grievance 
procedures that recipients must adopt under Sec.  106.8(c).
    The Department appreciates commenters' questions regarding the 
handling of allegations that involve sexual harassment as well as 
harassment based on race (or on a basis other than sex) and appreciates 
the opportunity to clarify that the response obligations in Sec.  
106.44 and the grievance process in Sec.  106.45 apply only to 
allegations of Title IX sexual harassment; the final regulations impose 
no new obligations or requirements with respect to non-Title IX sexual 
harassment and do not alter existing regulations under civil rights 
laws such as Title VI (discrimination on the basis of race, color, or 
national origin) or regulations under disability laws such as IDEA, 
Section 504, or ADA. The Department will continue to enforce 
regulations under those laws and recipients must comply with all 
regulations that apply to a particular allegation of discrimination 
(including allegations of harassment on multiple bases) accordingly.
    The Department declines to change the words ``students'' and 
``employees'' to ``members'' in the final regulations, because doing so 
could create inconsistencies with the current regulations, and the 
meaning of the term ``member'' is not readily understood by reference 
to other State and Federal laws, in the way that ``employee'' is. 
However, the Department appreciates the opportunity to reiterate that 
the

[[Page 30072]]

definitions of ``complainant'' \308\ and ``respondent'' \309\ do not 
restrict either party to being a student or employee, and, therefore, 
the final regulations do apply to allegations that an employee was 
sexually harassed by a student.
---------------------------------------------------------------------------

    \308\ Section 106.30 (Complainant ``means an individual who is 
alleged to be the victim of conduct that could constitute sexual 
harassment.'').
    \309\ Section 106.30 (Respondent ``means an individual who has 
been reported to be the perpetrator of conduct that could constitute 
sexual harassment.'').
---------------------------------------------------------------------------

    Changes: None.
    Comments: Commenters expressed concern that there is no point in 
revising a rule without enforcement and proposed that the Department 
should use its enforcement authority to sanction non-compliance of 
Title IX, since no school has ever had its funding withdrawn. Other 
commenters asked the Department to disallow private rights of action 
and the payment of attorney fees, damages, or costs. Other commenters 
proposed that the Department revise OCR's existing Case Processing 
Manual to: Eliminate biases toward specific groups when handling 
charges of rape, sexual harassment, and assault; protect undocumented 
students who file Title IX complaints with OCR so they do not have to 
fear doing so would lead to their deportation; avoid psychological bias 
by OCR investigators; and revise the 180-day complaint timeliness 
requirement to allow for complaints to be filed after the 180-day 
filing time frame with OCR for allegations involving sexual misconduct, 
under certain conditions. Other commenters proposed adding a provision 
that expressly releases institutions that are currently subject to 
settlement agreements with the Department from provisions that set 
forth ongoing obligations that are inconsistent with the new 
regulations.
    Discussion: The Department agrees with commenters who asserted that 
administrative enforcement of Title IX obligations is vital to the 
protection of students' and employees' civil rights, and the Department 
will vigorously enforce the final regulations. Nothing in these final 
regulations alters the existing statutory and regulatory framework 
under which the Department exercises its administrative authority to 
take enforcement actions against recipients for non-compliance with 
Title IX including the circumstances under which a recipient's Federal 
financial assistance may be terminated. The Department does not have 
authority or ability to affect the existence of judicially-implied 
private rights of action under Title IX or the remedies available 
through such private lawsuits.
    Changes to OCR's Case Processing Manual are outside the scope of 
this rulemaking process. The Department will not enforce the final 
regulations retroactively; whether prospective enforcement of the final 
regulations will impact any existing resolution agreements between 
recipients and OCR requires examination of the circumstances of those 
resolution agreements. The Department will provide technical assistance 
to recipients with questions about the enforceability of existing 
resolution agreements.
    Changes: None.
    Comments: Some commenters expressed general support for Title IX 
without reference to sexual misconduct or the proposed rules, for 
example, asserting: That Title IX is important to rebuilding the 
country's education system; that Title IX has made great strides for 
equality in girls' sports; and that Title IX has helped equalize the 
power imbalance between women and men. Other commenters expressed 
opposition to Title IX generally, for example, arguing: That Title IX 
has become a war on men, is biased against men, has set up kangaroo 
courts against males, and has fed into destructive identity politics; 
that women and men are different and men need to be men; and that Title 
IX is no longer needed because women outperform men in several areas 
(e.g., college admissions).
    A number of commenters expressed support for equality and non-
discrimination, or support for safe schools, public education, 
environments conducive to learning, schools operating in loco parentis, 
the well-being of children, protection of sex workers, fighting rape 
culture, respect for everyone's feelings, or anti-bullying, without 
expressing a position on the proposed rules. Without expressing a view 
about the proposed rules, some commenters expressed concern about a 
young woman murdered at a prominent university, and others expressed 
concern that it is too easy to get away with rape already due to ``date 
rape'' drugs, online dating sites, and powerful networks of people with 
bad intentions helping cover up incidents. A few commenters asked 
rhetorical questions such as: Does the government as ``Protector of 
Citizens'' devalue sexual assaults in educational institutions? Three 
million college students will be sexually assaulted this year: What are 
you going to do about it? What if something happened to your child?
    A few commenters suggested changes to other agencies' rules, such 
as one suggestion that the Department of Labor employment 
discrimination rules should address the loss of jobs for female coaches 
due to gender-separate sports teams.
    Discussion: The Department appreciates the range of opinions 
expressed by commenters on the general impact of Title IX. The 
Department believes that Title IX has improved educational access for 
millions of students since its enactment decades ago, and believes that 
these final regulations continue the national effort to make Title IX's 
non-discrimination mandate a meaningful reality for all students. The 
Department also appreciates commenters' viewpoints about topics related 
to gender equality and sexual abuse unrelated to the proposed rules. As 
an executive branch agency of the Federal government charged with 
enforcing Title IX, the Department believes that sexual assaults in 
education programs or activities warrant the extensive attention and 
concern demonstrated by the obligations set forth in these final 
regulations and that these final regulations will provide millions of 
college (and elementary and secondary school) students with clarity 
about what to expect from their educational institutions in response to 
any incident of sexual assault or other sexual harassment that 
constitutes sex discrimination under Title IX.
    Comments regarding other agencies' regulations are outside the 
scope of this rulemaking process and the Department's jurisdiction.
    The Department notes that for comments submitted with no 
substantive text, names of survivor advocacy organizations, or pictures 
or graphics depicting, e.g., feminist icons, protest marches featuring 
cardboard signs with slogans such as ``We Stand With Survivors'' or 
``Hands Off IX,'' and similar depictions, the Department has considered 
the viewpoints that such pictures, graphics, and slogans appear to 
convey.
    Changes: None.

Commonly Cited Sources

    In explaining opposition to many provisions of the NPRM (most 
commonly, use of the Supreme Court's framework to address sexual 
harassment, i.e., the definition of sexual harassment, the actual 
knowledge requirement, the deliberate indifference standard, the 
education program or activity and ``against a person in the U.S.'' 
jurisdictional limitations, and aspects of the grievance process, e.g., 
permitting a clear and convincing evidence standard, live hearings with 
cross-examination in postsecondary institutions, presumption of the 
respondent's non-responsibility,

[[Page 30073]]

permitting informal resolution processes such as mediation) commenters 
urged the Department to consult works in the literature concerning the 
prevalence and impact of sexual harassment, dynamics of sexual 
violence, sexual abuse, and violence against women, institutional 
betrayal, rates of reporting, and reasons why victims do not report 
sexual harassment. These sources included:

 W. David Allen, The Reporting and Underreporting of Rape, 
73 S. Econ. J. 3 (2007).
 The Association of American Universities, Report on the AAU 
Campus Climate Survey on Sexual Assault and Sexual Misconduct 
(Westat 2015) (commonly referred to as ``AAU/Westat Report'' or 
``AAU Survey'').
 American Association of University Women, Crossing the 
Line: Sexual Harassment at School (2011).
 American Association of University Women Educational 
Foundation, Drawing the Line: Sexual Harassment on Campus (2005).
 Elizabeth A. Armstrong et al., Silence, Power, and 
Inequality: An Intersectional Approach to Sexual Violence, 44 Ann. 
Rev. of Sociology 99 (2018).
 Claudia Avina & William O'Donohue, Sexual harassment and 
PTSD: Is sexual harassment diagnosable trauma?, 15 Journal of 
Traumatic Stress 1 (2002).
 Victoria Banyard et al., Academic Correlates of Unwanted 
Sexual Contact, Intercourse, Stalking, and Intimate Partner 
Violence: An Understudied but Important Consequence for College 
Students, Journal of Interpersonal Violence (2017).
 Kelly Alison Behre, Ensuring Choice and Voice for Campus 
Sexual Assault Victims: A Call for Victims' Attorneys, 65 Drake L. 
Rev. 293 (2017).
 Joseph H. Beitchman et al., A review of the long-term 
effects of child sexual abuse, 16 Child Abuse & Neglect 1 (1992).
 Jennifer J. Berdahl, Harassment based on sex: Protecting 
social status in the context of gender hierarchy, 32 Acad. of Mgmt. 
Rev. 641 (2007).
 Jennifer J. Berdahl & Jana Raver, ``Sexual harassment,'' in 
APA Handbook of Indus. and Organizational Psychol. (Sheldon Zedeck 
ed., 2010).
 Linda L. Berger et al., Using Feminist Theory to Advance 
Equal Justice under Law, 17 Nev. L. J. 539 (2017).
 Dana Bolger, Gender Violence Costs: Schools' Financial 
Obligations Under Title IX, 125 Yale L. J. 2106 (2016).
 Kimberly H. Breitenbecher, Sexual assault on college 
campuses: Is an ounce of prevention enough?, 9 Applied & Preventive 
Psychol. 1 (2000).
 Rebecca Campbell & Sheela Raja, The Sexual Assault and 
Secondary Victimization of Female Veterans: Help-Seeking Experiences 
with Military and Civilian Social Systems, 29 Psychol. of Women 
Quarterly 1 (2005).
 Rebecca Campbell, What Really Happened? A Validation Study 
of Survivors' Help-Seeking Experiences with the Legal and Medical 
Systems, 20 Violence & Victims 1 (2005).
 Rebecca Campbell, The psychological impact of rape victims' 
experiences with the legal, medical and mental health systems, 63 
Am. Psychol. 8 (2008).
 Nancy Chi Cantalupo, Burying Our Heads in the Sand: Lack of 
Knowledge, Knowledge Avoidance, and the Persistent Problem of Campus 
Peer Sexual Violence, 43 Loy. Univ. Chi. L. J. 205 (2011).
 Nancy Chi Cantalupo & William C. Kidder, A Systematic Look 
at a Serial Problem: Sexual Harassment of Students by University 
Faculty, 2018 Utah L. Rev. 671 (2018).
 Amy Chmielewski, Defending the Preponderance of the 
Evidence Standard in College Adjudications of Sexual Assault, 2013 
BYU Educ. & L. J. 143 (2013).
 Colleen Cleere & Steven Jay Lynn, Acknowledged Versus 
Unacknowledged Sexual Assault Among College Women, 28 Journal of 
Interpersonal Violence 12 (2013).
 Samantha Craven et al., Sexual grooming of children: Review 
of literature and theoretical considerations, 12 Journal of Sexual 
Aggression 3 (2006).
 Andrea Anne Curcio, Institutional Failure, Campus Sexual 
Assault and Danger in the Dorms: Regulatory Limits and the Promise 
of Tort Law, 78 Mont. L. Rev. 31 (2017).
 David DeMatteo et al., Sexual Assault on College Campuses: 
A 50-State Survey of Criminal Sexual Assault Statutes and Their 
Relevance to Campus Sexual Assault, 21 Psychol., Pub. Pol'y, & L. 3 
(2015).
 Dorothy Espelage et al., Longitudinal Associations Among 
Bullying, Homophobic Teasing, and Sexual Violence Perpetration Among 
Middle School Students, 30 Journal of Interpersonal Violence 14 
(2014).
 Lisa Fedina et al., Campus Sexual Assault: A Systematic 
Review of Prevalence Research From 2000 to 2015, 19 Trauma, 
Violence, & Abuse 1 (2018).
 Louise F. Fitzgerald et al., Measuring sexual harassment: 
Theoretical and psychometric advances, 17 Basic & Applied Social 
Psychol. 4 (1995).
 Louise F. Fitzgerald et al., The incidence and dimensions 
of sexual harassment in academia and the workplace, 32 Journal of 
Vocational Behavior 2 (1988).
 Rachel E. Gartner & Paul R. Sterzing, Gender 
Microaggressions as a Gateway to Sexual Harassment and Sexual 
Assault: Expanding the Conceptualization of Youth Sexual Violence, 
31 Affilia: J. of Women & Social Work 4 (2016).
 Suzanne B. Goldberg, Keep Cross-examination Out of College 
Sexual-Assault Cases, Chronicle of Higher Education (Jan. 10, 2019).
 Joanne L. Grossman & Deborah L. Brake, A Sharp Backward 
Turn: Department of Education Proposes to Protect Schools, Not 
Students, in Cases of Sexual Violence, Verdict (Nov. 29, 2018).
 Sarah Harsey et al., Perpetrator Responses to Victim 
Confrontation: DARVO and Victim Self-Blame, 26 Journal of 
Aggression, Maltreatment & Trauma 6 (2017).
 Judith Lewis Herman, The mental health of crime victims: 
impact of legal intervention, 16 Journal of Traumatic Stress 2 
(2003).
 Heather R. Hlavka, Normalizing Sexual Violence: Young Women 
Account for Harassment and Abuse, 28 Gender & Soc'y 3 (2014).
 Ivy K. Ho et al., Sexual Harassment and Posttraumatic 
Stress Symptoms among Asian and White Women, 21 Journal of 
Aggression, Maltreatment & Trauma 1 (2012).
 Kathryn J. Holland & Lilia M. Cortina, ``It happens to 
girls all the time'': Examining sexual assault survivors' reasons 
for not using campus supports, 59 Am. J. of Community Psychol. 1-2 
(2017).
 Kathryn J. Holland & Lilia M. Cortina, The evolving 
landscape of Title IX: Predicting mandatory reporters' responses to 
sexual assault disclosures, 41 Law & Hum. Behavior 5 (2017).
 Wendy Adele Humphrey, ``Let's Talk About Sex'': Legislating 
and Educating on the Affirmative Consent Standard, 50 Univ. of S.F. 
L. Rev. 1 (2016).
 Irina Iles et al., The unintended consequences of rape 
disclosure: The effects of disclosure content, listener gender, and 
year in college on listener's reactions, Journal of Interpersonal 
Violence (2018).
 Jeffrey S. Jones et al., Why women don't report sexual 
assault to the police: The influence of psychosocial variables and 
traumatic injury, 36 Journal of Emergency Med. 4 (2009).
 Carol E. Jordan et al., An Exploration of Sexual 
Victimization and Academic Performance Among College Women, 15 
Trauma, Violence, & Abuse 3 (2014).
 Kaiser Family Foundation & The Washington Post, Survey of 
Current and Recent College Students on Sexual Assault (2015).
 Shamus Khan et al., ``I Didn't Want to Be `That Girl''': 
The Social Risks of Labeling, Telling, and Reporting Sexual Assault, 
5 Sociological Sci. 432 (2018).
 National Victim Center and Crime Victims Research and 
Treatment Center, Rape in America: A Report to the Nation (1992).
 Gay, Lesbian and Straight Education Network (GLSEN), The 
2017 National School Climate Survey: The Experiences of Lesbian, 
Gay, Bisexual, Transgender, and Queer Youth in Our Nation's Schools 
(2018).
 Mary P. Koss, The Scope of Rape: Incidence and Prevalence 
of Sexual Aggression and Victimization in a National Sample of 
Higher Education Students, 55 Journal of Consulting & Clinical 
Psychol. 2 (1987).
 Mary P. Koss, ``Hidden Rape: Sexual Aggression and 
Victimization in a National Sample of Students in Higher 
Education,'' in Confronting Rape and Sexual Assault 51-69 (M.E. Odom 
& J. Clay-Warner eds., 1998).

[[Page 30074]]

 Christopher Krebs et al., Bureau of Justice Statistics 
Research and Development Series: Campus Climate Survey Validation 
Study Final Technical Report (2016).
 Christopher Krebs et al., College Women's Experiences with 
Physically Forced, Alcohol- or Other Drug-Enabled, and Drug-
Facilitated Sexual Assault Before and Since Entering College, 57 
Journal of Am. Coll. Health 6 (2009).
 Emily Leskinen et al., Gender harassment: Broadening our 
understanding of sex-based harassment at work, 35 Law & Hum. 
Behavior 1 (2011).
 David Lisak & Paul Miller, Repeat Rape and Multiple 
Offending Among Undetected Rapists, 17 Violence & Victims 1 (2002).
 David Lisak et al., False Allegations of Sexual Assault: An 
Analysis of Ten Years of Reported Cases, 16 Violence Against Women 
12 (2010).
 Kimberly A. Lonsway et al., False reports: Moving beyond 
the issue to successfully investigate and prosecute non-stranger 
sexual assault, 3 The Voice 1 (2009).
 Kimberly A. Lonsway & Joanne Archambault, The ``justice 
gap'' for sexual assault cases: Future directions for research and 
reform, 18 Violence Against Women 2 (2012).
 Catharine A. MacKinnon, In Their Hands: Restoring 
Institutional Liability for Sexual Harassment in Education, 125 Yale 
L. J. 2038 (2016).
 Shana L. Maier, ``I have heard horrible stories . . .'': 
rape victim advocates' perceptions of the revictimization of rape 
victims by the police and medical system, 14 Violence Against Women 
7 (2008).
 Shana L. Maier, The emotional challenges faced by Sexual 
Assault Nurse Examiners: ``ER nursing is stressful on a good day 
without rape victims'', 7 Journal of Forensic Nursing 4 (2011).
 Patricia Yancey Martin, Rape Work: Victims, Gender, and 
Emotions in Organization and Community Context (Taylor & Francis 
Group 2005).
 Patricia Yancey Martin, The Rape Prone Culture of Academic 
Contexts: Fraternities and Athletics, 30 Gender & Soc'y 1 (2016).
 Anne-Marie Mcalinden, Setting 'Em Up': Personal, Familial 
and Institutional Grooming in the Sexual Abuse of Children, 15 
Social & Legal Stud. 3 (2006).
 Elizabeth McDonald & Yvette Tinsley, Use of Alternative 
Ways of Giving Evidence by Vulnerable Witnesses: Current Proposals, 
Issues and Challenges, Victoria Univ. of Wellington L. Rev. (July 2, 
2012) (forthcoming Victoria University of Wellington Legal Research 
Paper No. 2/2011).
 Sarah McMahon et al., Measuring Bystander Attitudes and 
Behavior to Prevent Sexual Violence, 62 Journal of Am. Coll. Health 
1 (2014).
 Cecilia Mengo & Beverly M. Black, Violence Victimization on 
a College Campus: Impact on GPA and School Dropout, 18 Journal of 
Coll. Student Retention: Research, Theory & Practice 2 (2015).
 Audrey Miller et al., Stigma-Threat motivated nondisclosure 
of sexual assault and sexual revictimization: A prospective 
analysis, 35 Psychol. of Women Quarterly 1 (2011).
 Ted R. Miller et al., Victim Costs of Violent Crime and 
Resulting Injuries, 12 Health Affairs 4 (1993).
 Emma Millon et al., Stressful Life Memories Relate to 
Ruminative Thoughts in Women with Sexual Violence History, 
Irrespective of PTSD, Frontiers in Psychiatry (Sept. 5, 2018).
 National Association of Student Affairs Administrators in 
Higher Education (NASPA) & Education Commission of the States, State 
Legislative Developments on Campus Sexual Violence: Issues in the 
Context of Safety (2015).
 Charlene L. Muehlenhard, et al., Evaluating the One-in-Five 
Statistic: Women's Risk of Sexual Assault While in College, 54 The 
J. of Sex Research 4-5 (2017).
 National Academies of Science, Engineering, and Medicine, 
Sexual Harassment of Women: Climate, Culture, and Consequences in 
Academic Sciences, Engineering, and Medicine (Frasier F. Benya et 
al. eds., 2018).
 Jim Parsons & Tiffany Bergin, The impact of criminal 
justice involvement on victims' mental health, 23 Journal of 
Traumatic Stress 2 (2010).
 Debra Patterson & Rebecca Campbell, Why rape survivors 
participate in the criminal justice system, 38 Journal of Community 
Psychol. 2 (2010).
 Cora Peterson et al., Lifetime Economic Burden of Rape 
Among U.S. Adults, 52 Am. J. of Preventive Med. 6 (2017).
 Melissa Platt et al., ``A Betrayal Trauma Perspective on 
Domestic Violence,'' in Violence Against Women in Families and 
Relationships 185-207 (Evan Stark & Eve S. Buzawa eds., Greenwood 
Press 2009).
 Sharyn Potter et al., Long-term impacts of college sexual 
assaults on women survivors' educational and career attainments, 66 
Journal of Am. Coll. Health 6 (2018).
 Elizabeth Quinlan et al., Enhancing Care and Advocacy for 
Sexual Assault Survivors on Canadian Campuses, 46 Canadian J. of 
Higher Education 2 (2016).
 Andrea J. Ritchie, Invisible No More: Police Violence 
against Black Women and Women of Color (Beacon Press 2017).
 Andrea Roberts et al., Pervasive trauma exposure among US 
sexual orientation minority adults and risk of posttraumatic stress 
disorder, 100 Am. J. of Pub. Health 12 (2010).
 Emily A. Robey-Phillips, Federalism in Campus Sexual 
Violence: How States Can Protect Their Students When a Trump 
Administration Will Not, 29 Yale J. of L. & Feminism 373 (2018).
 Marina N. Rosenthal et al., Still second class: Sexual 
harassment of graduate students, 40 Psychol. of Women Quarterly 3 
(2016).
 Maria Rotundo et al., A Meta-Analytic Review of Gender 
Differences in Perceptions of Sexual Harassment, 86 Journal of 
Applied Psychol. 5 (2001).
 Chaira Sabina & Lavina Ho, Campus and college victim 
responses to sexual assault and dating violence: Disclosure, service 
utilization, and service provision, 15 Trauma, Violence, & Abuse 3 
(2014).
 Marjorie R. Sable et al., Barriers to Reporting Sexual 
Assault for Women and Men: Perspectives of College Students, 55 Am. 
Coll. Health 3 (2006).
 Lauren Schroeder, Cracks in the Ivory Tower: How the Campus 
Sexual Violence Elimination Act Can Protect Students from Sexual 
Assault, 45 Loy. Univ. Chi. L. J. 1195 (2014).
 Diana Scully & Joseph Marolla, Convicted rapists' 
vocabulary of motive: Excuses and justifications, 31 Social Problems 
5 (1984).
 Charol Shakeshaft, Educator Sexual Misconduct: A Synthesis 
of Existing Literature (2004) (prepared for the U.S. Dep't. of 
Education).
 Tracey J. Shors & Emma Millon, Sexual trauma and the female 
brain, 41 Frontiers in Neuroendocrinology 87 (2016).
 Carly Parnitzke Smith & Jennifer J. Freyd, Dangerous Safe 
Havens: Institutional Betrayal Exacerbates Sexual Trauma, 26 Journal 
of Traumatic Stress 1 (2013).
 Carly Parnitzke Smith & Jennifer J. Freyd, Institutional 
betrayal, 69 Am. Psychol. 6 (2014).
 Carly Parnitzke Smith & Jennifer J. Freyd, Insult, then 
injury: Interpersonal and institutional betrayal linked to health 
and dissociation, 26 Journal of Aggression, Maltreatment & Trauma 10 
(2017).
 Centers for Disease Control and Prevention, National Center 
for Injury Prevention and Control, The National Intimate Partner and 
Sexual Violence Survey (NISVS): 2010-2012 State Report (2017).
 Kathryn M. Stanchi & Jan M. Levine, Gender and Legal 
Writing: Law Schools' Dirty Little Secrets, 16 Berkeley Women's L. 
J. 3 (2001).
 Kathryn M. Stanchi & Linda L. Berger, ``Gender Justice: The 
Role of Stories and Images,'' in Metaphor, Narrative and the Law 
(Michael Hanne & Robert Weisberg eds., Cambridge Univ. Press 2018).
 Kathryn M. Stanchi, Feminist Legal Writing, 39 San Diego L. 
Rev. 387 (2002).
 Kathryn M. Stanchi, Who Next, the Janitors? A Socio-
Feminist Critique of the Status Hierarchy of Law Professors, 73 
Univ. of Missouri-Kansas L. Rev. 2 (2004).
 Tara K. Streng & Akiko Kamimura, Sexual Assault Prevention 
and Reporting on College Campuses in the US: A Review of Policies 
and Recommendations, 6 Journal of Education & Practice 3 (2015).
 Janet K. Swim et al., Everyday sexism: Evidence for its 
incidence, nature, and psychological impact from three daily diary 
studies, 57 Journal of Social Issues 1 (2001).
 John F. Tedesco & Steven V. Schnell, Children's reactions 
to sex abuse investigation and litigation, 11 Child Abuse & Neglect 
2 (1987).

[[Page 30075]]

 Bessel A. van der Kolk & Rita Fisler, Dissociation & the 
fragmentary nature of traumatic memories: Overview & exploratory 
study, 8 Journal of Traumatic Stress 4 (1995).
 Bessel A Van Der Kolk, The Body Keeps the Score: Brain, 
Mind, and Body in the Healing of Trauma (Penguin Books 2014).
 Erica van Roosmalen & Susan A. McDaniel, Sexual harassment 
in academia: A hazard to women's health, 28 Women & Health 2 (1999).
 Grayson S. Walker, The Evolution and Limits of Title IX 
Doctrine on Peer Sexual Assault, 45 Harv. C.R.-C.L. L. Rev. 95 
(2010).
 Wendy Walsh et al., Disclosure and Service Use on a College 
Campus After an Unwanted Sexual Experience, 11 Journal of Trauma & 
Dissociation 2 (2010).
 Lavinia M. Weizel, The Process That is Due: Preponderance 
of the Evidence as the Standard of Proof for University 
Adjudications of Student-on-Student Sexual Assault Complaints, 53 
Boston Coll. L. Rev. 1613 (2012).
 Nicole Westmarland & Sue Alderson, The Health, Mental 
Health, and Well-Being Benefits of Rape Crisis Counseling, 28 
Journal of Interpersonal Violence 17 (2013).
 Jacqueline M. Wheatcroft et al., Revictimizing the Victim? 
How Rape Victims Experience the UK Legal System, 4 Victims & 
Offenders 3 (2009).
 Helen Whittle et al., A Comparison of Victim and Offender 
Perspectives of Grooming and Sexual Abuse, 36 Deviant Behavior 7 
(2015).
 Jacquelyn D. Wiersma-Mosley & James DiLoreto, The Role of 
Title IX Coordinators on College and University Campuses, 8 
Behavioral Sci. 4 (2018).
 Joyce E. Williams & Karen A. Holmes, The Second Assault: 
Rape and Public Attitudes (Praeger Publishers 1981).
 Laura C. Wilson & Katherine E. Miller, Meta-Analysis of the 
Prevalence of Unacknowledged Rape, 17 Trauma, Violence, & Abuse 2 
(2016).
 Kate B Wolitzky-Taylor et al., Reporting rape in a national 
sample of college women, 59 Journal of Am. Coll. Health 7 (2011).
 Anne B. Woods et al., The mediation effect of posttraumatic 
stress disorder symptoms on the relationship of intimate partner 
violence and IFN-[gamma] levels, 36 Am. J. of Community Psychol. 1-2 
(2005).
 Corey R. Yung, Concealing Campus Sexual Assault: An 
Empirical Examination, 21 Psychol., Pub. Pol'y, & L. 1 (2015).
 Sarah Zydervelt et al., Lawyers' Strategies for Cross-
examining Rape Complainants: Have we Moved Beyond the 1950s?, 57 
British J. of Criminology 3 (2016).

The Department has considered the sources cited to by commenters. For 
reasons described in this preamble, the Department believes that the 
final regulations create a predictable framework governing recipients' 
responses to allegations of sexual harassment in furtherance of Title 
IX's non-discrimination mandate.

Data--Overview

    Many commenters referred the Department to statistics, data, 
research, and studies about the prevalence of sexual harassment, the 
impact of sexual harassment, the cost to victims of sexual harassment, 
underreporting of sexual harassment, problematic patterns of survivors 
facing negative stereotypes or being accused of ``lying'' when 
reporting sexual harassment, and rates of false accusations. Many 
commenters pointed to such data and information as part of general 
opposition to the proposed rules, expressing concern that the proposed 
rules as a whole would exacerbate the prevalence and negative impact of 
sexual harassment for all victims and with respect to specific 
demographic groups. Many commenters cited to such data and information 
in opposition to specific parts of the proposed rules, most commonly: 
Use of the Supreme Court's framework to address sexual harassment 
(i.e., the definition of sexual harassment, the actual knowledge 
requirement, the deliberate indifference standard), the education 
program or activity and ``against a person in the U.S.'' jurisdictional 
limitations, and aspects of the grievance process (e.g., permitting a 
clear and convincing evidence standard, live hearings with cross-
examination in postsecondary institutions, presumption of the 
respondent's non-responsibility, permitting informal resolution 
processes such as mediation). The Department has carefully considered 
the data and information presented by commenters with respect to the 
aforementioned aspects of the final regulations and with respect to the 
overall approach and framework of the final regulations.

Prevalence Data--Elementary and Secondary Schools

    Comments: Many commenters referred the Department to statistics, 
data, research, and studies showing the prevalence of sexual harassment 
against children and adolescents, and in elementary and secondary 
schools, including as follows:
     Data show that sexual assault is most prevalent among 
adolescents as compared to any other group. School was reported as the 
most common location for this peer-on-peer victimization to occur. 
Fifty-one percent of high school girls and 26 percent of high school 
boys experienced adolescent peer-on-peer sexual assault 
victimization.\310\
---------------------------------------------------------------------------

    \310\ Commenters cited: Amy M. Young et al., Adolescents' 
Experiences of Sexual Assault by Peers: Prevalence and Nature of 
Victimization Occurring Within and Outside of School, 38 Journal of 
Youth & Adolescence 1072 (2009).
---------------------------------------------------------------------------

     One in four young women experiences sexual assault before 
the age of 18.\311\
---------------------------------------------------------------------------

    \311\ Commenters cited: Girls, Inc., 2018 Strong, Smart, and 
Bold outcomes survey report (2018) (citing David Finklehor et al., 
The lifetime prevalence of child sexual abuse and sexual assault 
assessed in late adolescence, 55 Journal of Adolescent Health 3 
(2014)).
---------------------------------------------------------------------------

     One study found that ten percent of children were targets 
of educator sexual misconduct by the time they graduated from high 
school.\312\
---------------------------------------------------------------------------

    \312\ Commenters cited: Charol Shakeshaft, Educator Sexual 
Misconduct: A Synthesis of Existing Literature (2004) (prepared for 
the U.S. Dep't. of Education).
---------------------------------------------------------------------------

     Nearly half (48 percent) of U.S. students are subject to 
sexual harassment or assault at school before they graduate high school 
(56 percent of girls and 40 percent of boys).\313\ There were at least 
17,000 official reports of sexual assaults of K-12 students by their 
peers between 2011 and 2015.\314\ A longitudinal study found that 68 
percent of girls and 55 percent of boys surveyed had at least one 
sexual harassment victimization experience in high school.\315\ A 
survey of 2,064 students in grades eight through11 indicated: 83 
percent of girls have been sexually harassed; 78 percent of boys have 
been sexually harassed; 38 percent of the students were harassed by 
teachers or school employees; 36 percent of school employees or 
teachers were harassed by students; and 42 percent of school employees 
or teachers had been harassed by each other.\316\
---------------------------------------------------------------------------

    \313\ Commenters cited: American Association of University 
Women, Crossing the Line: Sexual Harassment at School (2011).
    \314\ Commenters cited: Robin McDowell et al., Hidden Horror of 
school sex assaults revealed by AP, Associated Press (May 1, 2017).
    \315\ Commenters cited: Dorothy Espelage et al., Longitudinal 
Associations Among Bullying, Homophobic Teasing, and Sexual Violence 
Perpetration Among Middle School Students, 30 Journal of 
Interpersonal Violence 14 (2014).
    \316\ Commenters cited: American Association of University Women 
Educational Foundation, Hostile Hallways: Bullying Teasing, and 
Sexual Harassment in School (2001).
---------------------------------------------------------------------------

     One sexual assault study surveyed 18,030 high school 
students and found that 18.5 percent reported victimization and eight 
percent reported perpetration in the past year; although females were 
more likely to report unwanted sexual activities due to feeling 
pressured, there were no significant sex differences among those 
reporting physical force or unwanted sexual activities due to

[[Page 30076]]

alcohol or drug use.\317\ In another study in which 18,090 high school 
students completed a survey, 30 percent disclosed sexual harassment 
victimization (37 percent of females, 21 percent of males) and 8.5 
percent reported perpetration (five percent of females, 12 percent of 
males).\318\
---------------------------------------------------------------------------

    \317\ Commenters cited: Corrine M. Williams et. al., 
Victimization and Perpetration of Unwanted Sexual Activities Among 
High School Students: Frequency and Correlates, 20 Violence Against 
Women 10 (2014).
    \318\ Commenters cited: Emily R. Clear et al., Sexual Harassment 
Victimization and Perpetration Among High School Students, 20 
Violence Against Women 10 (2014).
---------------------------------------------------------------------------

     In one study designed to examine sexual harassment 
victimization among American middle school youth (grades five through 
eight), verbal victimization was more frequent than physical 
victimization and sexual assault; the types of sexual harassment 
experienced and the perpetrators varied by sex, race, and grade level; 
nearly half (43 percent) of middle school students experienced verbal 
sexual harassment the previous year; 21 percent of middle school 
students reported having been pinched, touched, or grabbed in a sexual 
way, 14 percent reported having been the target of sexual rumors, and 
nine percent had been victimized with sexually explicit graffiti in 
school locker rooms or bathrooms.\319\
---------------------------------------------------------------------------

    \319\ Commenters cited: Dorothy L. Espelage et al., 
Understanding types, locations, & perpetrators of peer-to-peer 
sexual harassment in U.S. middle schools: A focus on sex, racial, 
and grade differences, 71 Children & Youth Serv. Rev. 174 (2016).
---------------------------------------------------------------------------

     One study's data reveal that, while boys' violence towards 
girls comprises a substantial proportion of sexual violence in the 
middle school population, same-sex violence and girls' violence towards 
boys are also prevalent.\320\
---------------------------------------------------------------------------

    \320\ Commenters cited: Ethan Levin, Sexual Violence Among 
Middle School Students: The Effects of Gender and Dating Experience, 
32 Journal of Interpersonal Violence 14 (2015).
---------------------------------------------------------------------------

     In the 2010-2011 school year, 36 percent of girls, 24 
percent of boys, and 30 percent of all students in grades seven through 
12 experienced sexual harassment online.\321\
---------------------------------------------------------------------------

    \321\ Commenters cited: American Association of University 
Women, Crossing the Line: Sexual Harassment at School (2011).
---------------------------------------------------------------------------

     Analysis of the Civil Rights Data Collection for 2015-16, 
with data from 96,000 public and public charter P-12 educational 
institutions including magnet schools, special education schools, 
alternative schools, and juvenile justice facilities showed that: More 
than three-fourths (79 percent) of the 48,000 public schools with 
students in grades seven through 12 disclosed zero reported allegations 
of harassment or bullying on the basis of sex, showing that students 
experience far more sexual harassment than schools report.\322\
---------------------------------------------------------------------------

    \322\ Commenters cited: American Association of University 
Women, Schools are Still Underreporting Sexual Harassment and 
Assault (Nov. 2, 2018), https://www.aauw.org/article/schools-still-underreporting-sexual-harassment-and-assault/.
---------------------------------------------------------------------------

    Discussion: The data referred to by commenters, among other data, 
indicates that sexual harassment affects children, adolescents, and 
students throughout elementary and secondary schools across the 
country. When sexual harassment constitutes sex discrimination covered 
by Title IX, the final regulations hold schools accountable for 
responding in ways that restore or preserve a complainant's equal 
access to education.
    Changes: None.

Prevalence Data--Postsecondary Institutions

    Comments: Many commenters referred the Department to statistics, 
data, research, and studies showing the prevalence of sexual harassment 
in postsecondary institutions, including as follows:
     One in five college women experience attempted or 
completed sexual assault in college; \323\ some studies state one in 
four.\324\ One in 16 men are sexually assaulted while in college.\325\ 
One poll reported that 20 percent of women, and five percent of men, 
are sexually assaulted in college.\326\
---------------------------------------------------------------------------

    \323\ Commenters cited: Christopher Krebs et al., Bureau of 
Justice Statistics Research and Development Series: Campus Climate 
Survey Validation Study Final Technical Report (2016); Lisa Wade, 
American Hookup: The New Culture of Sex on Campus (W.W. Norton & Co. 
2016).
    \324\ Commenters cited: The Association of American 
Universities, Report on the AAU Campus Climate Survey on Sexual 
Assault and Sexual Misconduct (Westat 2015).
    \325\ Commenters cited: National Sexual Violence Resource 
Center: Info and Stats for Journalists, Statistics About Sexual 
Violence (2015) (citing National Institute of Justice, The Campus 
Sexual Assault (CSA) Study: Final Report (2007)).
    \326\ Commenters cited: Kaiser Family Foundation & The 
Washington Post, Survey of Current and Recent College Students on 
Sexual Assault (2015).
---------------------------------------------------------------------------

     62 percent of women and 61 percent of men experience 
sexual harassment during college.\327\
---------------------------------------------------------------------------

    \327\ Commenters cited: American Association of University Women 
Educational Foundation, Drawing the Line: Sexual Harassment on 
Campus (2005).
---------------------------------------------------------------------------

     Among undergraduate students, 23.1 percent of females and 
5.4 percent of males experience rape or sexual assault; among graduate 
and undergraduate students 11.2 percent experience rape or sexual 
assault through physical force, violence, or incapacitation; 4.2 
percent have experienced stalking since entering college.\328\
---------------------------------------------------------------------------

    \328\ Commenters cited: Rape, Abuse & Incest National Network 
(RAINN), Campus Sexual Violence: Statistics, https://www.rainn.org/statistics/campus-sexual-violence.
---------------------------------------------------------------------------

     More than 50 percent of college sexual assaults occur in 
August, September, October, or November, and students are at an 
increased risk during the first few months of their first and second 
semesters in college; 84 percent of the women who reported sexually 
coercive experiences experienced the incident during their first four 
semesters on campus.\329\
---------------------------------------------------------------------------

    \329\ Commenters cited: Matthew Kimble et al., Risk of Unwanted 
Sex for College Women: Evidence for a Red Zone, 57 Journal of Am. 
Coll. Health 3 (2010).
---------------------------------------------------------------------------

     Seven out of ten rapes are committed by someone known to 
the victim; \330\ for most women victimized by attempted or completed 
rape, the perpetrator was a boyfriend, ex-boyfriend, classmate, friend, 
acquaintance, or coworker.\331\
---------------------------------------------------------------------------

    \330\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, Bureau of Justice Statistics, National Crime 
Victimization Survey (2015).
    \331\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, National Institute of Justice, Research Report: 
The Sexual Victimization of College Women (2000).
---------------------------------------------------------------------------

     A study showed that 63.3 percent of men at one university 
who self-reported acts qualifying as rape or attempted rape admitted to 
committing repeat rapes.\332\
---------------------------------------------------------------------------

    \332\ Commenters cited: David Lisak & Paul Miller, Repeat Rape 
and Multiple Offending Among Undetected Rapists, 17 Violence & 
Victims 1 (2002).
---------------------------------------------------------------------------

     Of college students in fraternity and sorority life, 48.1 
percent of females and 23.6 percent of males have experienced 
nonconsensual sexual contact, compared with 33.1 percent of females and 
7.9 percent of males not in fraternity and sorority life.\333\
---------------------------------------------------------------------------

    \333\ Commenters cited: Jennifer J. Freyd, The UO Sexual 
Violence and Institutional Betrayal Surveys: 2014, 2015, and 2015-
2016, https://dynamic.uoregon.edu/jjf/campus/.
---------------------------------------------------------------------------

     Fifty-eight percent of female academic faculty and staff 
experienced sexual harassment across all U.S. colleges and 
universities, and one in ten female graduate students at most major 
research universities reports being sexually harassed by a faculty 
member.\334\
---------------------------------------------------------------------------

    \334\ Commenters cited: National Academies of Science, 
Engineering, and Medicine, Sexual Harassment of Women: Climate, 
Culture, and Consequences in Academic Sciences, Engineering, and 
Medicine (Frasier F. Benya et al. eds., 2018).
---------------------------------------------------------------------------

     Twenty-one to 38 percent of college students experience 
faculty/staff-perpetrated sexual harassment and 39 to 64.5 percent 
experience student-

[[Page 30077]]

perpetrated sexual harassment during their time at their 
university.\335\
---------------------------------------------------------------------------

    \335\ Commenters cited: Marina N. Rosenthal et al., Still second 
class: Sexual harassment of graduate students, 40 Psychol. of Women 
Quarterly 3 (2016).
---------------------------------------------------------------------------

    Discussion: The data referred to by commenters, among other data, 
indicates that sexual harassment affects students and employees in 
postsecondary institutions across the country. When sexual harassment 
constitutes sex discrimination covered by Title IX, the final 
regulations hold colleges and universities accountable for responding 
in ways that restore or preserve a complainant's equal access to 
education.
    Changes: None.

Prevalence Data--Women

    Comments: Many commenters referred the Department to statistics, 
data, research, and studies showing the prevalence of sexual harassment 
against girls and women, including as follows:
     Sexual assault disproportionately harms women; 84 percent 
of sexual assault and rape victims are female.\336\ Among females, the 
highest rate of domestic abuse victimization occurs between the ages of 
16-24, ages when someone is most likely to be a high school or college 
student.\337\ Among college-aged female homicide victims, 42.9 percent 
were killed by an intimate partner.\338\
---------------------------------------------------------------------------

    \336\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, Bureau of Justice Statistics, National Crime 
Victimization Survey (2017).
    \337\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, Bureau of Justice Statistics Factbook: Violence by 
Intimates (1998).
    \338\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, Bureau of Justice Statistics, Homicide Trends in 
the United States: 1980-2008: Annual Rates for 2009 and 2010 (2011).
---------------------------------------------------------------------------

     One out of every six American women has been the victim of 
an attempted or completed rape in her lifetime (14.8 percent completed 
rape, 2.8 percent attempted rape for a total of 17.6 percent).\339\ The 
national rape-related pregnancy rate is five percent among victims of 
reproductive age (aged 12 to 45); among adult women an estimated 32,101 
pregnancies result from rape each year.\340\ Fifty-six percent of girls 
ages 14-18 who are pregnant or parenting are kissed or touched without 
their consent.\341\
---------------------------------------------------------------------------

    \339\ Commenters cited: Rape, Abuse & Incest National Network 
(RAINN), Campus Sexual Violence: Statistics, https://www.rainn.org/statistics/campus-sexual-violence.
    \340\ Commenters cited: Melissa M. Holmes, Rape-related 
pregnancy: Estimates and descriptive characteristics from a national 
sample of women, 17 Am. J. of Obstetrics & Gynecology 2 (1996).
    \341\ Commenters cited: National Women's Law Center (NWLC), Let 
Her Learn: Stopping Push Out for Girls who are Pregnant or Parenting 
(2017).
---------------------------------------------------------------------------

     A few commenters argued that the prevalence rate for 
sexual assault against college-age women is lower than shown by the 
above data, with the rate of rape and sexual assault being lower for 
female college students (6.1 per 1,000) than for female college-age 
nonstudents (7.6 per 1,000).\342\
---------------------------------------------------------------------------

    \342\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, Bureau of Justice Statistics Special Report: Rape 
and Sexual Assault Victimization Among College-Age Females, 1995-
2013 (2014).
---------------------------------------------------------------------------

    Discussion: The data referred to by commenters, among other data, 
indicates that sexual harassment affects girls and women in significant 
numbers. When sexual harassment constitutes sex discrimination covered 
by Title IX, the final regulations hold schools accountable for 
responding in ways that restore or preserve a complainant's equal 
access to education.
    Changes: None.

Prevalence Data--Men

    Comments: Many commenters referred the Department to statistics, 
data, research, and studies showing the prevalence of sexual harassment 
against boys and men, including as follows:
     Approximately one in six men have experienced some form of 
sexual violence in their lifetime.\343\ Sixteen percent of men were 
sexually assaulted by the age of 18.\344\ Approximately one in 33 
American men has experienced an attempted or completed rape in their 
lifetime.\345\
---------------------------------------------------------------------------

    \343\ Commenters cited: Centers for Disease Control and 
Prevention, National Center for Injury Prevention and Control, The 
National Intimate Partner and Sexual Violence Survey (NISVS): 2010 
Summary Report (Nov. 2011).
    \344\ Commenters cited: Shanta R. Dube, Long-term consequences 
of childhood sexual abuse by gender of victim, 28 Am. J. of 
Preventive Med. 5 (2005).
    \345\ Commenters cited: Rape, Abuse, & Incest National Network 
(RAINN), Scope of the Problem: Statistics, https://www.rainn.org/statistics/scope-problem.
---------------------------------------------------------------------------

     College-age male victims accounted for 17 percent of rape 
and sexual assault victimizations against students and four percent 
against nonstudents.\346\ Approximately 15 percent of college men are 
victims of forced sex during their time in college.\347\
---------------------------------------------------------------------------

    \346\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, Bureau of Justice Statistics, Special Report: Rape 
and Sexual Assault Victimization Among College-Age Females, 1995-
2013 (2014).
    \347\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, National Institute of Justice, Research Report: 
The Sexual Victimization of College Women (2000).
---------------------------------------------------------------------------

     Approximately 26 percent of gay men, and 37 percent of 
bisexual men, experience rape, physical violence, or stalking by an 
intimate partner.\348\
---------------------------------------------------------------------------

    \348\ Commenters cited: Human Rights Campaign, Sexual Assault 
and the LGBTQ Community, https://www.hrc.org/resources/sexual-assault-and-the-lgbt-community; Centers for Disease Control and 
Prevention, National Center for Injury Prevention and Control, The 
National Intimate Partner and Sexual Violence Survey (NISVS): An 
Overview of 2010 Findings on Victimization by Sexual Orientation.
---------------------------------------------------------------------------

     Men are more likely to be assaulted than falsely accused 
of assault.\349\
---------------------------------------------------------------------------

    \349\ Commenters cited: Tyler Kingkade, Males are More Likely to 
Suffer Sexual Assault Than to be Falsely Accused of it, The 
Huffington Post (Dec. 8, 2014).
---------------------------------------------------------------------------

    Discussion: The data referred to by commenters, among other data, 
indicates that sexual harassment affects boys and men in significant 
numbers. When sexual harassment constitutes sex discrimination covered 
by Title IX, the final regulations hold schools accountable for 
responding in ways that restore or preserve a complainant's equal 
access to education.
    Changes: None.

Prevalence Data--LGBTQ Persons

    Comments: Many commenters referred the Department to statistics, 
data, research, and studies showing the prevalence of sexual harassment 
against LGBTQ individuals, including as follows:
     A 2015 survey found that 47 percent of transgender people 
are sexually assaulted at some point in their lifetime: Transgender 
women have been sexually assaulted at a rate of 37 percent; nonbinary 
people assigned male at birth have been sexually assaulted at a rate of 
41 percent; transgender men have been sexually assaulted at a rate of 
51 percent; and nonbinary people assigned female at birth have been 
sexually assaulted at a rate of 58 percent.\350\ Another study, which 
drew from interviews of over 16,500 adults, indicated that gay and 
bisexual individuals experienced a higher lifetime prevalence of sexual 
violence than their heterosexual counterparts.\351\
---------------------------------------------------------------------------

    \350\ Commenters cited: National Center for Transgender 
Equality, The Report of the 2015 U.S. Transgender Survey (Dec. 
2016).
    \351\ Commenters cited: Centers for Disease Control and 
Prevention, National Center for Injury Prevention and Control, The 
National Intimate Partner and Sexual Violence Survey (NISVS): An 
Overview of 2010 Findings on Victimization by Sexual Orientation.
---------------------------------------------------------------------------

     A study found that transgender students, who represented 
1.8 percent of high school respondents to a survey, faced far higher 
rates of assault and harassment than their peers: 24 percent of 
transgender students had been forced to have sexual intercourse, 
compared to four percent of male cisgender students and 11 percent of 
female cisgender students; 23 percent of transgender students 
experienced sexual dating

[[Page 30078]]

violence, compared to four percent of male cisgender students and 12 
percent of female cisgender students; more than one-quarter (26 
percent) experienced physical dating violence, compared to six percent 
of male cisgender students and nine percent of female cisgender 
students; transgender students were more likely to face bullying and 
violence in school overall compared to cisgender students.\352\
---------------------------------------------------------------------------

    \352\ Commenters cited: Michelle M. Johns et al., Transgender 
Identity and Experiences of Violence Victimization, Substance Use, 
Suicide Risk, and Sexual Risk Behaviors Among High School Students--
19 States and Large Urban School Districts, 2017, 68 Morbidity & 
Mortality Weekly Report 3 (Jan. 25, 2019).
---------------------------------------------------------------------------

     Lesbian, gay, and bisexual students are more likely to 
experience nonconsensual sexual contact by physical force or 
incapacitation than heterosexual students: 14 percent of gay or lesbian 
students and 25 percent of bisexual students reported experiencing 
nonconsensual sexual contact while in college or graduate school 
compared to 11 percent of heterosexual students.\353\
---------------------------------------------------------------------------

    \353\ Commenters cited: The Association of American 
Universities, Report on the AAU Campus Climate Survey on Sexual 
Assault and Sexual Misconduct (Westat 2015).
---------------------------------------------------------------------------

     A 2018 study found that 57.3 percent of LGBTQ students 
were sexually harassed at school during the past year.\354\ Another 
survey showed that 38 percent of LGBTQ girls had been kissed or touched 
without their consent.\355\ Eighty-six percent of high school 
transgender individuals had experienced a form of sexual violence due 
to their gender identity, often perpetrated by other students.\356\ 
Nearly 25 percent of transgender, genderqueer, and gender nonconforming 
or questioning students experience sexual violence during their 
undergraduate education.\357\
---------------------------------------------------------------------------

    \354\ Commenters cited: Gay, Lesbian and Straight Education 
Network (GLSEN), The 2017 National School Climate Survey: The 
Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth 
in Our Nation's Schools (2018).
    \355\ Commenters cited: National Women's Law Center (NWLC), Let 
Her Learn: Stopping Push Out for Girls who are Pregnant or Parenting 
(2017).
    \356\ Commenters cited: Rebecca L. Stotzer, Violence Against 
Transgender People: A Review of United States Data, 14 Aggression & 
Violent Behavior 3 (2009).
    \357\ Commenters cited: The Association of American 
Universities, Report on the AAU Campus Climate Survey on Sexual 
Assault and Sexual Misconduct (Westat 2015).
---------------------------------------------------------------------------

     Twenty-two percent of lesbian, gay, and bisexual youth 
have experienced sexual violence, more than double the rate reported by 
heterosexual youth.\358\ According to another survey: 44 percent of 
lesbians and 61 percent of bisexual women experience rape, physical 
violence, or stalking by an intimate partner, compared to 35 percent of 
heterosexual women; 26 percent of gay men and 37 percent of bisexual 
men experience rape, physical violence, or stalking by an intimate 
partner, compared to 29 percent of heterosexual men; 46 percent of 
bisexual women have been raped, compared to 17 percent of heterosexual 
women; 13 percent of lesbians and 22 percent of bisexual women have 
been raped by an intimate partner, compared to nine percent of 
heterosexual women; 40 percent of gay men and 47 percent of bisexual 
men have experienced sexual violence other than rape, compared to 21 
percent of heterosexual men; and 46.4 percent of lesbians, 74.9 percent 
of bisexual women, and 43.3 percent of heterosexual women, reported 
sexual violence other than rape during their lifetimes, while 40.2 
percent of gay men, 47.4 percent of bisexual men, and 20.8 percent of 
heterosexual men reported sexual violence other than rape during their 
lifetimes.\359\
---------------------------------------------------------------------------

    \358\ Commenters cited: Centers for Disease Control & 
Prevention, Division of Adolescent & School Health, Youth Risk 
Behavior Survey Data Summary and Trends Report: 2007-2017 (2018).
    \359\ Commenters cited: Centers for Disease Control and 
Prevention, National Center for Injury Prevention and Control, The 
National Intimate Partner and Sexual Violence Survey (NISVS): An 
Overview of 2010 Findings on Victimization by Sexual Orientation.
---------------------------------------------------------------------------

     More than eight in ten LGBTQ students experienced 
harassment or assault at school and more than half (57 percent) were 
sexually harassed at school; 70 percent of LGBTQ students said that 
they were verbally harassed, 29 percent said that they were physically 
harassed, and 12 percent said that they were physically assaulted 
because of their sexual orientation; 60 percent of LGBTQ students said 
that they were verbally harassed, 24 percent said that they were 
physically harassed, and 11 percent said that they were physically 
assaulted because of their gender expression.\360\
---------------------------------------------------------------------------

    \360\ Commenters cited: Gay, Lesbian and Straight Education 
Network (GLSEN), The 2017 National School Climate Survey: The 
Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth 
in Our Nation's Schools (2018).
---------------------------------------------------------------------------

     A survey of students in grades nine through 12 found that 
lesbian, gay, and bisexual (``LGB'') students were more likely to say 
that they experienced bullying than heterosexual students: One-third of 
LGB students said that they had been bullied on school property in the 
past year compared to 17 percent of heterosexual students; 27 percent 
of LGB students reported that they had been electronically bullied in 
the past year compared to 13 percent of heterosexual students; nearly 
half of middle and high school students report being sexually harassed, 
with harassment especially extensive among LGBTQ students, causing 
nearly one-third to say that they felt unsafe or uncomfortable enough 
to miss school.\361\
---------------------------------------------------------------------------

    \361\ Commenters cited: Laura Kann et al., Youth Risk Behavior 
Surveillance--United States, 2017, 67 Morbidity & Mortality Weekly 
Report 8 (Jun. 15, 2018).
---------------------------------------------------------------------------

     Seventy-three percent of LGBTQ college students have been 
sexually harassed, compared to 61 percent of non-LGBTQ students; \362\ 
75.2 percent of undergraduate and 69.4 percent of graduate/professional 
students who identify as transgender, queer, and gender nonconforming 
reported being sexually harassed, compared with 62 percent of cisgender 
female undergraduates, 43 percent of cisgender male undergraduates, 44 
percent of cisgender female graduate students, and 30 percent of 
cisgender male graduate students.\363\
---------------------------------------------------------------------------

    \362\ Commenters cited: American Association of University Women 
Educational Foundation, Drawing the Line: Sexual Harassment on 
Campus (2005).
    \363\ Commenters cited: The Association of American 
Universities, Report on the AAU Campus Climate Survey on Sexual 
Assault and Sexual Misconduct (Westat 2015).
---------------------------------------------------------------------------

    Discussion: The data referred to by commenters, among other data, 
indicates that sexual harassment affects LGBTQ individuals in 
significant numbers. When sexual harassment constitutes sex 
discrimination covered by Title IX, the final regulations hold schools 
accountable for responding in ways that restore or preserve a 
complainant's equal access to education.
    Changes: None.

Prevalence Data--Persons of Color

    Comments: Many commenters referred the Department to statistics, 
data, research, and studies showing the prevalence of sexual harassment 
against persons of color, including as follows:
     Women who have intersecting identities, for example women 
who are women of color and LGBTQ, experience certain types of 
harassment, including gender and sexual harassment, at even greater 
rates than other women, and often experience sexual harassment as a 
manifestation of both gender and other kinds of discrimination.\364\ A 
survey of 1,003 girls between the ages of 14 and 18, with a focus on 
Black, Latina, Asian, Native American, and LGBTQ individuals, found 
that 31 percent had

[[Page 30079]]

survived sexual assault.\365\ Of women who identify as multiracial, 
32.3 percent are sexually assaulted.\366\
---------------------------------------------------------------------------

    \364\ Commenters cited: National Academies of Science, 
Engineering, and Medicine, Sexual Harassment of Women: Climate, 
Culture, and Consequences in Academic Sciences, Engineering, and 
Medicine (Frasier F. Benya et al. eds., 2018).
    \365\ Commenters cited: National Women's Law Center (NWLC), Let 
Her Learn: Stopping Push Out for Girls who are Pregnant or Parenting 
(2017).
    \366\ Commenters cited: Matthew J. Breiding et al., Prevalence 
and Characteristics of Sexual Violence, Stalking, and Intimate 
Partner Violence Victimization--National Intimate Partner and Sexual 
Violence Survey, United States, 2011, 63 Morbidity & Mortality 
Weekly Report 8 (Sept. 5, 2014).
---------------------------------------------------------------------------

     Of Black women in school, 16.5 percent reported being 
raped in high school and 36 percent were raped in college.\367\ Among 
Black women, 21.2 percent are survivors of sexual assault.\368\ Sixty 
percent of Black girls are sexually harassed before the age of 18.\369\
---------------------------------------------------------------------------

    \367\ Commenters cited: Carolyn M. West & Kalimah Johnson, 
Sexual Violence in the Lives of African American Women: Risk, 
Response, and Resilience, VAWnet.org: National Online Resource 
Center on Domestic Violence (2013).
    \368\ Centers for Disease Control and Prevention, National 
Center for Injury Prevention and Control, STOP SV: A Technical 
Package to Prevent Sexual Violence (2016).
    \369\ Commenters cited: Hannah Giorgis, Many women of color 
don't go to the police after sexual assault for a reason, The 
Guardian (Mar. 25, 2015).
---------------------------------------------------------------------------

     Among Hispanic women, 13.6 percent are survivors of sexual 
assault.\370\
---------------------------------------------------------------------------

    \370\ Centers for Disease Control and Prevention, National 
Center for Injury Prevention and Control, STOP SV: A Technical 
Package to Prevent Sexual Violence (2016).
---------------------------------------------------------------------------

     In a 2015 study of 313 participants of Korean, Chinese, 
Filipino, and other Asian backgrounds: 53.5 percent of female 
participants reported experiencing sexual violence, including forced 
sexual relations (12.4 percent), sexual harassment (17.3 percent), 
unwanted touching (31.7 percent), or pressure to have unwanted sex 
(25.2 percent); out of all participants, 38.7 percent said they knew 
someone who had experienced sexual violence, and, of those, 70 percent 
said they knew two or more survivors. Of male participants, 8.1 percent 
reported experiencing sexual violence; 56.1 percent of the survivors 
first experienced sexual violence when they were ten to 19 years old 
and 26.3 percent when they were in their twenties.\371\
---------------------------------------------------------------------------

    \371\ Commenters cited: KAN-WIN, Community Survey Report on 
Sexual Violence in the Asian American/Immigrant Community (2017), 
https://www.kanwin.org/downloads/sareport.pdf.
---------------------------------------------------------------------------

     Of Asian Pacific Islander women, 23 percent experienced 
sexual violence. Of Asian Pacific Islander men, nine percent 
experienced sexual violence.\372\
---------------------------------------------------------------------------

    \372\ Commenters cited: Centers for Disease Control and 
Prevention, National Center for Injury Prevention and Control, The 
National Intimate Partner and Sexual Violence Survey (NISVS): 2010-
2012 State Report (2017).
---------------------------------------------------------------------------

     Of women who identify as American Indian or Alaska Native, 
over one-quarter have experienced rape and 56 percent have experienced 
rape, physical violence, or stalking by an intimate partner in their 
lifetime.\373\ Seven out of every 1,000 American Indian (including 
Alaska Native) women experience rape or sexual assault, compared to two 
out of every 1,000 women of all races.\374\
---------------------------------------------------------------------------

    \373\ Commenters cited: Centers for Disease Control and 
Prevention, National Center for Injury Prevention and Control, The 
National Intimate Partner and Sexual Violence Survey (NISVS): 2010 
Summary Report (Nov. 2011).
    \374\ Commenters cited: U.S. Department of Justice, Office of 
Justice Programs, Bureau of Justice Statistics, American Indians and 
Crime (1999).
---------------------------------------------------------------------------

    Discussion: The data referred to by commenters, among other data, 
indicates that sexual harassment affects persons of color, particularly 
girls and women of color and persons with intersecting identities, in 
significant numbers. When sexual harassment constitutes sex 
discrimination covered by Title IX, the final regulations hold schools 
accountable for responding in ways that restore or preserve a 
complainant's equal access to education.
    Changes: None.

Prevalence Data--Individuals With Disabilities

    Comments: Many commenters referred the Department to statistics, 
data, research, and studies showing the prevalence of sexual harassment 
against individuals with disabilities, including as follows:
     Students with disabilities are 2.9 times more likely than 
their peers to be sexually assaulted.\375\ As many as 40 percent of 
women with disabilities experience sexual assault or physical violence 
in their lifetimes.\376\ Almost 20 percent of women with disabilities 
will have undesired sex with an intimate partner.\377\
---------------------------------------------------------------------------

    \375\ Commenters cited: National Women's Law Center (NWLC), Let 
Her Learn: Stopping Push Out for Girls who are Pregnant or Parenting 
(2017).
    \376\ Commenters cited: University of Michigan Sexual Assault 
Awareness and Prevention Center, Sexual Assault and Survivors with 
Disabilities, https://sapac.umich.edu/article/56.
    \377\ Commenters cited: Disabled World, People with Disabilities 
and Sexual Assault (2012), https://www.disabled-world.com/disability/sexuality/assaults.php.
---------------------------------------------------------------------------

     An exploratory study conducted to learn the rates of abuse 
among university students who have identified as having a disability 
found: 22 Percent of participants reported some form of abuse over the 
last year and nearly 62 percent had experienced some form of physical 
or sexual abuse before the age of 17; only 27 percent reported the 
incident, and 40 percent of students with disabilities who reported 
abuse in the past year said they had little or no knowledge of abuse-
related resources.\378\
---------------------------------------------------------------------------

    \378\ Commenters cited: Patricia A. Findley et al., Exploring 
the experiences of abuse of college students with disabilities, 31 
Journal of Interpersonal Violence 17 (2015).
---------------------------------------------------------------------------

     More than 90 percent of all people with developmental 
disabilities will experience sexual assault.\379\ Forty-nine percent of 
people with developmental disabilities who are victims of sexual 
violence will experience ten or more abusive incidents.\380\ Thirty 
percent of men and 80 percent of women with intellectual disabilities 
have been sexually assaulted.\381\
---------------------------------------------------------------------------

    \379\ Commenters cited: University of Michigan Sexual Assault 
Awareness and Prevention Center, Sexual Assault and Survivors with 
Disabilities, https://sapac.umich.edu/article/56.
    \380\ Commenters cited: Valenti-Hein & Schwartz, The Sexual 
Abuse Interview for Those with Developmental Disabilities (James 
Stanfield Co. 1995).
    \381\ Commenters cited: Disabled World, People with Disabilities 
and Sexual Assault (2012), https://www.disabled-world.com/disability/sexuality/assaults.php.
---------------------------------------------------------------------------

     Individuals with intellectual disabilities are sexually 
assaulted and raped at more than seven times the rate of individuals 
without disabilities; women with intellectual disabilities are 12 times 
more likely to be sexually assaulted or raped than women without 
disabilities.\382\
---------------------------------------------------------------------------

    \382\ Commenters cited: Joseph Shapiro, The Sexual Assault 
Epidemic No One Talks About, NPR (Jan. 8, 2018).
---------------------------------------------------------------------------

     Fifty-four percent of boys who are deaf and 25 percent of 
girls who are deaf, have been sexually assaulted, compared to ten 
percent of boys who are hearing and 25 percent of girls who are 
hearing.\383\
---------------------------------------------------------------------------

    \383\ Commenters cited: Disabled World, People with Disabilities 
and Sexual Assault (2012), https://www.disabled-world.com/disability/sexuality/assaults.php.
---------------------------------------------------------------------------

    Discussion: The data referred to by commenters, among other data, 
indicates that sexual harassment affects individuals with disabilities 
in significant numbers. When sexual harassment constitutes sex 
discrimination covered by Title IX, the final regulations hold schools 
accountable for responding in ways that restore or preserve a 
complainant's equal access to education.
    Changes: None.

Prevalence Data--Immigrants

    Comments: Commenters referred the Department to data showing that 
immigrant girls and young women are almost twice as likely as their 
non-

[[Page 30080]]

immigrant peers to have experienced incidents of sexual assault.\384\
---------------------------------------------------------------------------

    \384\ Commenters cited: National Immigrant Women's Advocacy 
Project, Empowering Survivors: Legal Rights of Immigrant Victims of 
Sexual Assault (Leslye Orloff ed., 2013), https://www.evawintl.org/library/documentlibraryhandler.ashx?id=456 (using the term 
``immigrant'' to include documented persons, refugees and migrants, 
others present in the United States on temporary visas, such as 
visitors, students, temporary workers, as well as undocumented 
individuals.).
---------------------------------------------------------------------------

    Discussion: The data referred to by commenters, among other data, 
indicates that sexual harassment affects immigrant girls and women in 
significant numbers. When sexual harassment constitutes sex 
discrimination covered by Title IX, the final regulations hold schools 
accountable for responding in ways that restore or preserve a 
complainant's equal access to education.
    Changes: None.

Impact Data

    Comments: Many commenters referred the Department to statistics, 
data, research, and studies showing the impact of sexual harassment on 
victims, including as follows:
     Among students who are harassed, a vast majority of 
students (87 percent) report that the harassment had a negative effect 
on them, causing 37 percent of girls to not want to go to school, 
versus 25 percent of boys; female students were more likely in every 
case to say they continued to feel detrimental effects for ``quite a 
while'' compared with male students.\385\
---------------------------------------------------------------------------

    \385\ Commenters cited: American Association of University 
Women, Crossing the Line: Sexual Harassment at School (2011).
---------------------------------------------------------------------------

     Approximately half of LGBTQ students who said that they 
experienced frequent or severe verbal harassment because of their 
sexual orientation or gender identity missed school at least once a 
month, and about 70 percent who said they experienced frequent or 
severe physical harassment missed school more than once a month.\386\
---------------------------------------------------------------------------

    \386\ Commenters cited: Gay, Lesbian and Straight Education 
Network (GLSEN), The 2017 National School Climate Survey: The 
Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth 
in Our Nation's Schools (2018).
---------------------------------------------------------------------------

     In one study of transgender students, of those who faced 
harassment, 16 percent left college or vocational school because of the 
severity of the mistreatment they faced; and 17 percent of people who 
were out as transgender when they were K-12 students said that they 
experienced such severe harassment as a student that they had to leave 
school as a result.\387\
---------------------------------------------------------------------------

    \387\ Commenters cited: National Center for Transgender 
Equality, The Report of the 2015 U.S. Transgender Survey (Dec. 
2016).
---------------------------------------------------------------------------

     The negative emotional effects of sexual harassment take a 
toll on girls' education, resulting in decreased productivity and 
increased absenteeism from school; in the 2010-2011 school year, 18 
percent of abused children and teens did not want to go to school, 13 
percent found it hard to study, 17 percent had trouble sleeping, and 
eight percent stayed home from school.\388\
---------------------------------------------------------------------------

    \388\ Commenters cited: American Association of University 
Women, Crossing the Line: Sexual Harassment at School (2011).
---------------------------------------------------------------------------

     The impact of sexual harassment on students occurs at all 
grade levels and includes lowered motivation to attend class, paying 
less attention in class, lower grades, avoiding teachers with a 
reputation for engaging in harassment, dropping classes, changing 
majors, changing advisors, avoiding informal activities that enhance 
the educational experience, feeling less safe on campus, and dropping 
out of school.\389\
---------------------------------------------------------------------------

    \389\ Commenters cited: National Academies of Science, 
Engineering, and Medicine, Sexual Harassment of Women: Climate, 
Culture, and Consequences in Academic Sciences, Engineering, and 
Medicine (Frasier F. Benya et al. eds., 2018).
---------------------------------------------------------------------------

     Twenty percent of children and youth in schools have an 
identified mental health problem; \390\ bullying, sexual harassment, 
and sexual assault contribute to mental health challenges for 
individuals when left unreported.
---------------------------------------------------------------------------

    \390\ Commenters cited: Amy J. Houtrow & Megumi J. Okumura, 
Pediatric Mental Health Problems and Associated Burden on Families, 
6 Vulnerable Children & Youth Studies 3 (2011).
---------------------------------------------------------------------------

     Adverse childhood experiences can contribute significantly 
to negative adult physical and mental health outcomes and affect more 
than 60 percent of adults; every instance of sexual harassment against 
women undermines their potential for long-term economic productivity 
and, by extension, the productivity of their family, their community, 
and the United States.\391\
---------------------------------------------------------------------------

    \391\ Commenters cited: American Academy of Pediatrics, Adverse 
Childhood Experiences and the Lifelong Consequences of Trauma 
(2014), https://www.aap.org/en-us/Documents/ttb_aces_consequences.pdf.
---------------------------------------------------------------------------

     Secondary victimization and institutional betrayal have 
been shown to exacerbate trauma symptoms following a sexual assault, 
including increased anxiety, and more than 40 percent of college 
students who were sexually victimized reported experiences of 
institutional betrayal.\392\
---------------------------------------------------------------------------

    \392\ Commenters cited: Carly Parnitzke Smith & Jennifer J. 
Freyd, Dangerous Safe Havens: Institutional Betrayal Exacerbates 
Sexual Trauma, 26 Journal of Traumatic Stress 1 (2013); John Briere 
& Carol E. Jordan, Violence Against Women: Outcome Complexity and 
Implications for Assessment and Treatment, 19 Journal of 
Interpersonal Violence 11 (2004).
---------------------------------------------------------------------------

     Being a victim of sexual assault can cause both immediate 
and long-term physical and mental health consequences; at least 89 
percent of victims face emotional and physical consequences.\393\ 
Approximately 70 percent of rape or sexual assault victims experience 
moderate to severe distress, a larger percentage than for any other 
violent crime.\394\ The dropout rate of sexual harassment victims is 
much higher than percentage of college students who drop out of school; 
34 percent of victims dropout of college.\395\ Many schools have 
expelled survivors when their grades suffer as a result of trauma.\396\
---------------------------------------------------------------------------

    \393\ Commenters cited: Andrew Van Dam, Less than 1% of rapes 
lead to felony convictions. At least 89% of victims face emotional 
and physical consequences, The Washington Post (Oct. 6, 2018).
    \394\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, Bureau of Justice Statistics, Special Report: 
Socio-emotional impact of violent crime (2014).
    \395\ Commenters cited: Cecilia Mengo & Beverly M. Black, 
Violence Victimization on a College Campus: Impact on GPA and School 
Dropout, 18 Journal of Coll. Student Retention: Research, Theory & 
Practice 2 (2015).
    \396\ Commenters cited: Alexandra Brodsky, How much does sexual 
assault cost college students every year, The Washington Post (Nov. 
18, 2014).
---------------------------------------------------------------------------

     Eighty-one percent of women and 35 percent of men report 
significant short- or long-term impacts of sexual assault, such as 
post-traumatic stress disorder (PTSD); women who are sexually assaulted 
or abused are over twice as likely to have PTSD, depression, and 
chronic pain following the violence compared to non-abused women.\397\ 
Thirty percent of the college women who said they had been raped 
contemplated suicide after the incident.\398\ Male victims of sexual 
abuse experience problems such as depression, suicidal ideation, 
anxiety, sexual dysfunction, loss of self-esteem, and long-term 
relationship difficulties.\399\
---------------------------------------------------------------------------

    \397\ Commenters cited: Centers for Disease Control and 
Prevention, National Center for Injury Prevention and Control, The 
National Intimate Partner and Sexual Violence Survey (NISVS): 2010 
Summary Report (Nov. 2011).
    \398\ Commenters cited: National Victim Center and Crime Victims 
Research and Treatment Center, Rape in America: A Report to the 
Nation (1992).
    \399\ Commenters cited: Lara Stemple, The Sexual Victimization 
of Men in America: New Data Challenge Old Assumptions, 104 Am. J. of 
Pub. Health 6 (2014).
---------------------------------------------------------------------------

     Rape victims suffer long-term negative outcomes including 
PTSD, depression, generalized anxiety, eating disorders, sexual 
dysfunction, alcohol and illicit drug use, nonfatal suicidal behavior 
and suicidal threats, attempted and completed suicide, physical 
symptoms in the absence of medical conditions, low self-esteem, self-
blame, and severe preoccupations with physical appearances; short-term 
negative impacts include shock, denial,

[[Page 30081]]

fear, confusion, anxiety, withdrawal, shame or guilt, nervousness, 
distrust of others, symptoms of PTSD, emotional detachment, sleep 
disturbances, flashbacks, and mental replay of the assault.\400\
---------------------------------------------------------------------------

    \400\ Commenters cited: Nicole P. Yuan, The Psychological 
Consequences of Sexual Trauma, VAWnet.org: National Resource Center 
on Domestic Violence (2006); Centers for Disease Control and 
Prevention, National Center for Injury Prevention and Control, 
Division of Violence Prevention, Preventing Sexual Violence (last 
reviewed by the CDC on Jan. 17, 2020), https://www.cdc.gov/violenceprevention/sexualviolence/fastfact.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fviolenceprevention%2Fsexualviolence%2Fconsequences.html; Rape, Abuse, & Incest 
National Network (RAINN), Victims of Sexual Violence: Statistics, 
https://www.rainn.org/statistics/victims-sexual-violence.
---------------------------------------------------------------------------

     If a sexual assault survivor ends up dropping out of high 
school, the survivor will earn 84 percent less than a typical graduate 
from a four-year college; student debt is a greater burden for low 
income students who drop out, as those students will earn significantly 
less; and dropping out can have dire consequences as the lack of a high 
school diploma or General Equivalency Diploma (GED) directly correlates 
with higher risks of experiencing homelessness.\401\
---------------------------------------------------------------------------

    \401\ Commenters cited: Eduardo Porter, Dropping Out of College, 
and Paying the Price, The New York Times (June 26, 2013).
---------------------------------------------------------------------------

    Discussion: The data referred to by commenters, among other data, 
indicate that many sexual harassment victims suffer serious, negative 
consequences. Because sexual harassment causes serious detriment to 
victims, when sex discrimination covered by Title IX takes the form of 
sexual harassment, the final regulations require recipients to respond 
to complainants by offering supportive measures (irrespective of 
whether the complainant files a formal complaint), and when a 
complainant chooses to file a formal complaint, requiring remedies for 
a complainant when a respondent is found responsible. Supportive 
measures, and remedies, are designed to restore or preserve equal 
access to education.
    Recognizing that Title IX governs the conduct of recipients 
themselves, the Department believes that the final regulations 
appropriately prescribe the actions recipients must take in response to 
reports and formal complaints of sexual harassment, so that 
complainants are not faced with institutional betrayal from a 
recipient's refusal to respond, or non-supportive response.
    Changes: None.

Cost Data

    Comments: Many commenters referred to data showing that rape and 
sexual assault survivors often incur significant financial costs such 
as medical and psychological treatment, lost time at work, and leaves 
of absence from school, including as follows:
     The average lifetime cost of being a rape victim is 
estimated at $122,461, which calculates to roughly $3.1 trillion of 
lifetime costs across the 25 million reported victims in the United 
States.\402\ A single rape costs a victim between $87,000 to 
$240,776.\403\
---------------------------------------------------------------------------

    \402\ Commenters cited: Cora Peterson et al., Lifetime Economic 
Burden of Rape Among U.S. Adults, 52 Am. J. Preventive Med. 6 
(2017).
    \403\ Commenters cited: Ted R. Miller et al., Victim Costs of 
Violent Crime and Resulting Injuries, 12 Health Affairs 4 (1993).
---------------------------------------------------------------------------

     More than one-fifth of intimate partner rape survivors 
lose an average of eight days of paid work per assault, and that does 
not include the subsequent job loss, psychological trauma, and cost (of 
treatment and to society at large).\404\
---------------------------------------------------------------------------

    \404\ Commenters cited: Centers for Disease Control and 
Prevention, National Center for Injury Prevention and Control, Costs 
of Intimate Partner Violence Against Women in the United States 
(2003).
---------------------------------------------------------------------------

    Many commenters asserted that the proposed rules would exacerbate 
the economic costs suffered by sexual assault survivors.
    Discussion: The Department understands that sexual assault 
survivors often incur significant financial costs, both in the short-
term and long-term. The final regulations require recipients to offer 
supportive measures to complainants and provide remedies to 
complainants when a fair grievance process has determined that a 
respondent is responsible for sexual harassment. Supportive measures 
and remedies are designed to restore or preserve equal access to 
education. The Department believes these responses by recipients will 
help complainants avoid costs that flow from loss of educational 
opportunities.
    Changes: None.

Reporting Data

    Comments: Many commenters referred the Department to statistics, 
data, research, and studies regarding rates of reporting of sexual 
harassment and sexual violence, and reasons why some victims do not 
report their victimization to authorities, including as follows:
     Only about half of all adolescent victims of peer-on-peer 
sexual assault will tell anyone about having been sexually harassed or 
assaulted and only six percent will actually report the incident to an 
official who might be able help them. Such underreporting may be due to 
individual student fears of reporting to school authorities or law 
enforcement; procedural gaps in how institutions record or respond to 
incidents; a reluctance on the part of institutions to be associated 
with these problems; or a combination of these factors.\405\
---------------------------------------------------------------------------

    \405\ Commenters cited: Amy M. Young et al., Adolescents' 
Experiences of Sexual Assault by Peers: Prevalence and Nature of 
Victimization Occurring Within and Outside of School, 38 Journal of 
Youth & Adolescence 1072 (2009).
---------------------------------------------------------------------------

     At least 35 percent of college students who experience 
sexual harassment do not report it \406\ because shame, fear of 
retaliation, and fear of not being believed prevent victims from coming 
forward. Only five to 28 percent of sexual harassment incidents are 
reported to Title IX offices; less than 30 percent of the most serious 
incidents of nonconsensual sexual contact are reported to an 
organization or agency like a university's Title IX office or law 
enforcement; the most common reason for not reporting was the victim 
did not consider the incident serious enough, while other reasons 
included embarrassment, shame, feeling it would be too emotionally 
difficult, and lack of confidence that anything would be done about 
it.\407\
---------------------------------------------------------------------------

    \406\ Commenters cited: American Association of University Women 
Educational Foundation, Drawing the Line: Sexual Harassment on 
Campus (2005).
    \407\ Commenters cited: The Association of American 
Universities, Report on the AAU Campus Climate Survey on Sexual 
Assault and Sexual Misconduct (Westat 2015).
---------------------------------------------------------------------------

     Survivors often do not report cases of sexual violence to 
their schools because they do not know how to report on their campus, 
because of fear of being disbelieved, or because of fear of having 
their assault not taken seriously.\408\ Some survivors choose not to 
report sexual violence to authorities for a multitude of reasons, one 
of which is a fear that their perpetrator will retaliate or escalate 
the violence.\409\
---------------------------------------------------------------------------

    \408\ Commenters cited: Kathryn J. Holland & Lilia M. Cortina, 
``It happens to girls all the time'': Examining sexual assault 
survivors' reasons for not using campus supports, 59 Am. J. of 
Community Psychol. 1-2 (2017).
    \409\ Commenters cited: Marjorie R. Sable et al., Barriers to 
Reporting Sexual Assault for Women and Men: Perspectives of College 
Students, 55 Journal of Am. Coll. Health 3 (2006); Ruth E. Fleury et 
al., When Ending the Relationship Does Not End the Violence, 6 
Violence Against Women 12 (2000); T.K. Logan & Robert Walker, 
Stalking: A Multidimensional Framework for Assessment and Safety 
Planning, 18 Trauma, Violence, & Abuse 2 (2017).
---------------------------------------------------------------------------

     Research shows that students are deterred from reporting 
sexual harassment and assault for the following reasons: Policies that 
compromise or restrict the victim's ability to make informed choices 
about how to proceed; concerns about confidentiality; a desire to avoid 
public disclosure; uncertainty

[[Page 30082]]

as to whether they can prove the sexual violence or whether the 
perpetrator will be punished; campus policies on drug and alcohol use; 
policies requiring victims to participate in adjudication; trauma 
response; the desire to avoid the perceived or real stigma of having 
been victimized.\410\
---------------------------------------------------------------------------

    \410\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, National Institute of Justice, Sexual Assault on 
Campus: What Colleges and Universities Are Doing About It (2005).
---------------------------------------------------------------------------

     According to one study, 20 percent of students ages 18-24 
did not report assault because they feared reprisal, nine percent 
believed the police would not or could not do anything to help, and 
four percent reported, but not to police.\411\
---------------------------------------------------------------------------

    \411\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, Bureau of Justice Statistics, Special Report: Rape 
and Sexual Assault Victimization Among College-Age Females, 1995-
2013 (2014).
---------------------------------------------------------------------------

     One national survey found that of 770 rapes on campus 
during the 2014-2015 academic year, only 40 were reported to 
authorities under the Clery Act guidelines.\412\
---------------------------------------------------------------------------

    \412\ Commenters cited: New Jersey Task Force on Campus Sexual 
Assault, 2017 Report and Recommendations (June 2017).
---------------------------------------------------------------------------

     Campus sexual assault is grossly underreported with only 
two percent of incapacitated sexual assault survivors and 13 percent of 
forcible rape survivors reporting to crisis or healthcare centers and 
even fewer to law enforcement.\413\ About 65 percent of surveyed rape 
victims reported the incident to a friend, a family member, or roommate 
but only ten percent reported to police or campus officials.\414\
---------------------------------------------------------------------------

    \413\ Commenters cited: National Sexual Violence Resource 
Center: Info and Stats for Journalists, Statistics About Sexual 
Violence (2015) (citing National Institute of Justice, The Campus 
Sexual Assault (CSA) Study: Final Report (2007)).
    \414\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, Office for Victims of Crime, 2017 National Crime 
Victims' Rights Week Resource Guide: Crime and Victimization Fact 
Sheets (2017).
---------------------------------------------------------------------------

     Male victims often resist reporting due to contemporary 
social narratives, including jokes about prison rape, the notion that 
``real men'' can protect themselves, the fallacy that gay male victims 
likely ``asked for it,'' and the belief that reporting itself is ``un-
masculine.'' \415\
---------------------------------------------------------------------------

    \415\ Commenters cited: Lara Stemple, The Sexual Victimization 
of Men in America: New Data Challenge Old Assumptions, 104 Am. J. of 
Pub. Health 6 (2014).
---------------------------------------------------------------------------

     Some students--especially students of color, undocumented 
students, LGBTQ students, and students with disabilities--are less 
likely than their peers to report sexual assault to the police due to 
increased risk of being subjected to police violence or 
deportation.\416\ Survivors of color may not want to report to the 
police and add to the criminalization of men and boys of color; for 
these students, schools are often the only avenue for relief. Many 
LGBTQ students and students of color may feel mistrustful, unwelcomed, 
invisible, or discriminated against, which makes reporting their 
experience of sexual assault even more difficult.\417\
---------------------------------------------------------------------------

    \416\ Commenters cited: Jennifer Medina, Too Scared to Report 
Sexual Abuse. The Fear: Deportation, The New York Times (April 30, 
2017); National Center for Transgender Equality, The Report of the 
2015 U.S. Transgender Survey (Dec. 2016); Audrey Chu, I Dropped Out 
of College Because I Couldn't Bear to See My Rapist on Campus, Vice 
(Sept. 26, 2017).
    \417\ Commenters cited: L. Ebony Boulware, Race and trust in the 
health care system, 118 Pub. Health Reports 4 (2003).
---------------------------------------------------------------------------

     LGBTQ students also experience unique barriers that 
prevent them from reporting these incidents: \418\ The most common 
reason students gave for their failure to report were doubts that the 
school staff would do anything about the harassment; almost two-thirds 
(60 percent) of students who did report their harassment said that 
school staff did nothing in response or just told the students to 
ignore the harassment; and more than one in five students were told to 
change their behavior to avoid harassment, such as changing the way 
they dress or acting less ``gay.'' Another reason LGBTQ students gave 
for not reporting was fear they would be ``outed'' to the school staff 
or their families, or face additional violence from their harasser. 
Over 40 percent of LGBTQ students stated that they did not report 
because they were not comfortable with school staff, often because of 
the belief that staff was discriminatory or complicit in the 
harassment.
---------------------------------------------------------------------------

    \418\ Commenters cited: Gay, Lesbian and Straight Education 
Network (GLSEN), The 2017 National School Climate Survey: The 
Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth 
in Our Nation's Schools (2018).
---------------------------------------------------------------------------

     Sixty-nine percent of sexual abuse survivors said that 
police officers discouraged them from filing a report and one-third of 
survivors had police refuse to take their report; 80 percent of sexual 
assault survivors are reluctant to seek help and 91 percent report 
feeling depressed after their interaction with law enforcement.\419\
---------------------------------------------------------------------------

    \419\ Commenters cited: Rebecca Campbell, Survivors' Help-
Seeking Experiences with the Legal and Medical Systems, 20 Violence 
& Victims 1 (2005).
---------------------------------------------------------------------------

     Native American women are reluctant to report crimes 
because of the belief that nothing will be done; according to a 2010 
study, the government declined to prosecute 67 percent of sexual abuse, 
homicide, and other violent crimes against Native American women.\420\
---------------------------------------------------------------------------

    \420\ Commenters cited: Gender Based Violence and Intersecting 
Challenges Impacting Native American & Alaskan Village Communities, 
VAWnet.org: National Online Resource Center on Domestic Violence 
(2016), https://vawnet.org/sc/gender-based-violence-and-intersecting-challenges-impacting-native-american-alaskan-village.
---------------------------------------------------------------------------

     Students with disabilities are less likely to be believed 
when they report sexual harassment experiences and often have greater 
difficulty describing the harassment they experience, because of 
stereotypes that people with disabilities are less credible or because 
they may have greater difficulty describing or communicating about the 
harassment they experienced, particularly if they have a cognitive or 
developmental disability.\421\
---------------------------------------------------------------------------

    \421\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, National Institute for Justice, The Many 
Challenges Facing Sexual Assault Survivors with Disabilities (2017).
---------------------------------------------------------------------------

    Discussion: The Department appreciates commenters' concerns that 
sexual harassment is underreported and references to data explaining 
the variety of factors that contribute to complainants choosing not to 
report incidents of sexual harassment.
    We have revised the final regulations in several ways in order to 
provide students, employees, and third parties with clear, accessible 
reporting channels, predictability as to how a recipient must respond 
to a report, informed options on how a complainant may choose to 
proceed, and requirements that Title IX personnel serve impartially, 
free from bias. Under the final regulations, any person may report 
sexual harassment to trigger the recipient's response obligations, and 
the complainant (i.e., the person alleged to be the victim) retains the 
right to receive available supportive measures irrespective of whether 
the complainant also decides to file a formal complaint that initiates 
a grievance process.
    To emphasize that any person may report sexual harassment (not just 
the complainant), we have revised Sec.  106.8 to state that any person 
may report sexual harassment (whether or not the person reporting is 
the person alleged to be the victim of conduct that could constitute 
sexual harassment) using the contact information listed for the Title 
IX Coordinator, which must include an office address, telephone number, 
and email address, or by any other means that results in the Title IX 
Coordinator receiving the person's verbal or written report. In 
elementary and secondary schools, Sec.  106.30 defining ``actual 
knowledge'' now provides that notice of sexual harassment to any 
employee triggers the recipient's response

[[Page 30083]]

obligations, and in postsecondary institutions, students retain more 
autonomy and control over deciding whether, when, or to whom to 
disclose a sexual harassment experience without automatically 
triggering a report to the Title IX office.\422\ The Department 
therefore aims to give every complainant (i.e., person alleged to be 
the victim) and all third parties clear reporting channels (which 
differ for postsecondary institution students than for elementary and 
secondary school students), and predictability as to the recipient's 
response obligations (i.e., under revised Sec.  106.44(a) the Title IX 
Coordinator must contact the complainant to discuss supportive 
measures, consider the complainant's wishes with respect to supportive 
measures, and explain the option for filing a formal complaint).
---------------------------------------------------------------------------

    \422\ See discussion in the ``Actual Knowledge'' subsection of 
the ``Adoption and Adaption of the Supreme Court's Framework to 
Address Sexual Harassment'' section of this preamble.
---------------------------------------------------------------------------

    Every Title IX Coordinator must be free from conflicts of interest 
and bias and, under revised Sec.  106.45(b)(1)(iii), trained in how to 
serve impartially and avoid prejudgment of the facts at issue. No 
recipient is permitted to ignore a sexual harassment report, regardless 
of the identity of the person alleged to have been victimized, and 
whether or not a school administrator might be inclined to apply 
harmful stereotypes against believing complainants generally or based 
on the complainant's personal characteristics or identity. The 
Department will enforce the final regulations vigorously to ensure that 
each complainant receives the response owed to them by the recipient.
    We have added Sec.  106.71 prohibiting retaliation against any 
individual exercising Title IX rights (including the right to refuse to 
participate in a grievance process). When complainants do decide to 
initiate a grievance process, or participate in a grievance process, 
recipients also may choose to offer informal resolution processes as 
alternatives to a full investigation and adjudication of the formal 
complaint, with the voluntary consent of both the complainant and 
respondent, which may encourage some complainants to file a formal 
complaint where they may have been reluctant to do so if a full 
investigation and adjudication was the only option. Where a respondent 
is found responsible for sexual harassment as defined in Sec.  106.30, 
the recipient must provide remedies to the complainant designed to 
restore or preserve the complainant's equal access to education. In 
response to comments concerned that such remedies may not be effective, 
the final regulations expressly require the Title IX Coordinator to be 
responsible for the effective implementation of remedies.
    The final regulations present a consistent, predictable framework 
for when and how a recipient must respond to Title IX sexual 
harassment. Although reporting sexual harassment is often inherently 
difficult, complainants who desire supportive measures, or factual 
investigation and adjudication, or both, may expect prompt, meaningful 
responses from their schools, colleges, or universities.
    Changes: We have revised Sec.  106.8 to state that any person may 
report sexual harassment (whether or not the person reporting is the 
person alleged to be the victim of sexual harassment) by using the 
contact information listed for the Title IX Coordinator, which must 
include an office address, telephone number, and email address; reports 
may be made at any time, including during non-business hours, by using 
the telephone number or email address or by mailing to the office 
address. We have revised Sec.  106.30 defining ``actual knowledge'' to 
provide that notice of sexual harassment to any elementary and 
secondary school employee constitutes actual knowledge to the 
recipient, and to state that ``notice'' includes but is not limited to 
reporting to the Title IX Coordinator as described in Sec.  106.8(a).
    We have revised Sec.  106.44(a) to specifically require the Title 
IX Coordinator to contact the complainant to discuss supportive 
measures, consider the complainant's wishes with respect to supportive 
measures, and explain the process for filing a formal complaint. We 
have revised Sec.  106.45(b)(1)(iii) to require that Title IX personnel 
be trained on how to serve impartially, without prejudgment of the 
facts. We have added Sec.  106.71 prohibiting retaliation against any 
person exercising rights under Title IX, and Sec.  106.45(b)(7)(iv) 
requiring Title IX Coordinators to be responsible for effective 
implementation of any remedies.

Stereotypes/Punishment for ``Lying''

    Comments: Some commenters asserted that the proposed rules will be 
particularly harmful to women and girls of color, who experience 
explicit and implicit bias in the investigation of claims of sexual 
harassment and assault. Commenters argued that due to harmful race and 
sex stereotypes that label women of color as ``promiscuous,'' schools 
are more likely to ignore, blame, and punish women and girls of color 
who report sexual harassment.\423\ Student concerns about reporting are 
especially common among members of historically marginalized 
communities, who are often more likely to be disbelieved or even 
punished by schools for reporting sexual assault. Commenters stated 
that Black women and girls are commonly stereotyped as ``Jezebels,'' 
Latina women and girls as ``hot-blooded,'' Asian American and Asian 
Pacific Islander women and girls as ``submissive, and naturally 
erotic,'' Native American women and girls as ``sexually violable as a 
tool of war and colonization,'' and multiracial women and girls as 
``tragic and vulnerable, historically, products of sexual and racial 
domination.'' Commenters stated that schools are also more likely to 
punish Black women and girls by labeling them as aggressors based on 
stereotypes that they are ``angry'' and ``aggressive.'' Commenters 
pointed out that the Department's 2013-14 Civil Rights Data Collection 
shows that Black girls are five times more likely than white girls to 
be suspended in K-12, and that while Black girls represented 20 percent 
of all preschool enrolled students, they were 54 percent of preschool 
students who were suspended. Commenters argued that schools should 
require all officials involved in Title IX proceedings to attend 
implicit bias trainings.
---------------------------------------------------------------------------

    \423\ Commenters cited: Nancy Chi Cantalupo, And Even More of Us 
Are Brave: Intersectionality & Sexual Harassment of Women Students 
of Color, 42 Harv. J. of L. & Gender 1 (2018); National Women's Law 
Center & Girls for Gender Equity, Listening Session on the Needs of 
Young Women of Color (2015); Sonja C. Tonnesen, Commentary: ``Hit It 
and Quit It'': Responses to Black Girls' Victimization in School, 28 
Berkeley J. of Gender, L. & Justice 1 (2013); NAACP Legal Defense 
and Educational Fund, Inc. & National Women's Law Center, Unlocking 
Opportunity for African American Girls: A Call to Action for 
Educational Equity (2014).
---------------------------------------------------------------------------

    One commenter argued that the negative effects of harmful 
stereotypes are exacerbated by the fact that the proposed rules would 
allow schools to punish students whom the school believes are lying, 
and this could have a significant effect on survivors of color. 
Commenters asserted that many Black girls who defend themselves against 
perpetrators are often misidentified as the aggressors. Similarly, 
commenters asserted that the proposed rules would allow a school to 
punish any person, including a witness, who ``knowingly provides false 
information'' to the school, which makes it even easier for schools to 
punish girls and women of color who report sexual harassment for 
``lying'' about it, when such a conclusion by the school is often based

[[Page 30084]]

on negative stereotypes rather than the truth.
    Commenters also expressed concern that many students who report 
sexual assault and other forms of sexual harassment to their school 
face discipline instead of support: For example, schools punish 
complainants for engaging in so-called ``consensual'' sexual activity; 
for engaging in premarital sex; for defending themselves against their 
harassers; or for merely talking about their assault with other 
students in violation of a ``gag order'' or nondisclosure agreement 
imposed by their school.
    Discussion: The Department shares the concerns of commenters who 
asserted, and cited to data and articles showing, that some 
complainants, including or especially girls of color, face school-level 
responses to their reports of sexual harassment infected by bias, 
prejudice, or stereotypes. In response to such concerns, the Department 
adds to Sec.  106.45(b)(1)(iii), prohibiting Title IX Coordinators, 
investigators, and decision-makers, and persons who facilitate informal 
resolution processes from having conflicts of interest or bias against 
complainants or respondents generally, or against an individual 
complainant or respondent, training that also includes ``how to serve 
impartially, including by avoiding prejudgment of the facts at issue, 
conflicts of interest, and bias.'' No complainant reporting Title IX 
sexual harassment or respondent defending against allegations of sexual 
harassment should be ignored or be met with prejudgment, and the final 
regulations require recipients to meet response obligations impartially 
and free from bias. The Department will vigorously enforce the final 
regulations in a manner that holds recipients responsible for 
responding to complainants, and treating all parties during any Sec.  
106.45 grievance process, impartially without prejudgment of the facts 
at issue or bias, including bias against an individual's sex, race, 
ethnicity, sexual orientation, gender identity, disability or 
immigration status, financial ability, or other characteristic. Any 
person can be a complainant, and any person can be a respondent, and 
every individual is entitled to impartial, unbiased treatment 
regardless of personal characteristics. The Department declines to 
specify that training of Title IX personnel must include implicit bias 
training; the nature of the training required under Sec.  
106.45(b)(1)(iii) is left to the recipient's discretion so long as it 
achieves the provision's directive that such training provide 
instruction on how to serve impartially and avoid prejudgment of the 
facts at issue, conflicts of interest, and bias, and that materials 
used in such training avoid sex stereotypes.
    In response to commenters' concerns that biases and stereotypes may 
lead a recipient to punish students reporting sexual harassment 
allegations, the Department adds Sec.  106.71(a) to expressly prohibit 
retaliation and specifically state that intimidation, threats, 
coercion, discrimination, or charging an individual with a code of 
conduct violation, arising out of the same facts or circumstances as a 
report or formal complaint of sexual harassment, for the purpose of 
interfering with any right or privilege secured by Title IX, 
constitutes retaliation. This provision draws recipients' attention to 
the fact that punishing a complainant with non-sexual harassment 
conduct code violations (e.g., ``consensual'' sexual activity when the 
complainant has reported the activity to be nonconsensual, or underage 
drinking, or fighting back against physical aggression) is retaliation 
when done for the purpose of deterring the complainant from pursuing 
rights under Title IX. The Department notes that this section applies 
to respondents as well.
    In further response to commenters' concerns about parties being 
unfairly punished for lying, Sec.  106.71(b)(2) provides that charging 
an individual with a code of conduct violation for making a materially 
false statement in bad faith in the course of a grievance proceeding 
does not constitute retaliation but a determination regarding 
responsibility, alone, is not sufficient to conclude that any party 
made a materially false statement in bad faith. This provision leaves 
open the possibility that punishment for lying or making false 
statements might be retaliation, unless the recipient has concluded 
that the party made a materially false statement in bad faith (and that 
conclusion cannot be based solely on the outcome of the case).
    While commenters are correct that Sec.  106.45(b)(2) requires the 
written notice of allegations to inform the parties of any provision in 
the recipient's code of conduct that prohibits knowingly making false 
statements or knowingly submitting false information during the 
grievance process, this provision appropriately alerts parties where 
the recipient's own code of conduct has a policy against making false 
statements during a disciplinary proceeding so that both parties 
understand that risk. Section 106.71 protects complainants--and 
respondents and witnesses--from being charged with code of conduct 
violations arising from the same facts or circumstances as sexual 
harassment allegations if such a charge is brought for the purpose of 
curtailing rights or privileges secured by Title IX or these final 
regulations, and leaves open the possibility that punishment for lying 
might be retaliation unless the disciplined party made a materially 
false statement in bad faith.
    The Department notes that commenters' concerns that complainants 
are sometimes punished unfairly for merely talking about their assault 
with fellow students in violation of a school-imposed ``gag order'' is 
addressed by Sec.  106.45(b)(5)(iii).
    Changes: The Department has revised Sec.  106.45(b)(1)(iii) to 
include in the required training how to serve impartially, including by 
avoiding prejudgment of the facts at issue, conflicts of interest, and 
bias. We have added Sec.  106.71(a), which prohibits retaliation and 
states that charging an individual with a code of conduct violation 
that does not involve sexual harassment but arises out of the same 
facts or circumstances as sexual harassment allegations, for the 
purpose of interfering with rights under Title IX, constitutes 
retaliation. The Department has also added Sec.  106.71(b)(2) to 
provide that charging an individual with a code of conduct violation 
for making a materially false statement in bad faith does not 
constitute retaliation, provided that a determination regarding 
responsibility, alone, is not sufficient to conclude that any party 
made a such a false statement.

False Allegations

    Comments: A number of commenters referred the Department to 
statistics, data, research, and studies relating to the frequency of 
false accusations of sexual misconduct. Most commenters who raised the 
issue of false allegations cited data for the proposition that 
somewhere between two to ten percent of sexual assault reports are 
false or unfounded.\424\ Commenters asserted that despite the low 
frequency of false allegations, police officers tend to believe false 
allegations of rape are much more common than they actually

[[Page 30085]]

are,\425\ reflecting a society-wide misconception about women falsely 
alleging rape.
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    \424\ Commenters cited: National Sexual Violence Resource 
Center, False Reporting: Overview (2012); David Lisak et al., False 
Allegations of Sexual Assault: An Analysis of Ten Years of Reported 
Cases, 16 Violence Against Women 12 (2010); Kimberly A. Lonsway, et 
al., False reports: moving beyond the issue, 3 The Voice 1 (2009); 
U.S. Dep't. of Justice, Federal Bureau of Investigation, Crime in 
the United States: 1996 Uniform Crime Reports (1997); State of 
Victoria, Office of Women's Policy, Study of Reported Rapes in 
Victoria 2000-2003: Summary Research Report (2006).
    \425\ Commenters cited: David Lisak et al., False Allegations of 
Sexual Assault: An Analysis of Ten Years of Reported Cases, 16 
Violence Against Women 12 (2010).
---------------------------------------------------------------------------

    Many commenters concluded that such data shows that nationwide, 
overreporting and false allegations are not nearly as concerning as 
underreporting and perpetrators ``getting away with it,'' and thus 
protection of respondents from false allegations should not be the 
motive or purpose of Title IX rules.
    Other commenters argued that whether the rate of false allegations 
is as low as two to ten percent or somewhat higher, the reality is that 
some complainants do bring false or unfounded accusations for a variety 
of reasons.\426\ A few commenters referred to the Duke lacrosse rape 
case and the University of Virginia gang rape situation as specific 
instances where rape accusations were revealed to be false only after 
prejudgment of the facts in favor of the complainants had led to unfair 
penalization of the accused students. One commenter referred to a 2017 
National Center for Higher Education Risk Management (NCHERM) report 
that noted that the recent trend of increased reports ``brings 
allegations of all kinds out of the woodwork, some based strongly in 
fact, others that are baseless, and most that are somewhere in 
between.'' \427\
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    \426\ Commenters cited, e.g., Cassia Spohn & Katharine Tellis, 
Policing and Prosecuting Sexual Assault in Los Angeles City and 
County: A Collaborative Study in Partnership with the Los Angeles 
Police Department, the Los Angeles County Sheriff's Department, and 
the Los Angeles County District Attorney's Office (2012) 
(``Complainants' motivations for filing false reports, which fell 
into five overlapping categories, included a desire to avoid trouble 
or a need for an alibi for consensual sex with someone other than a 
current partner, a desire to retaliate against a current or former 
partner, a need for attention or sympathy, and guilt or remorse as a 
result of consensual sexual activity. Many complainants in the 
unfounded cases also had mental health issues that made it difficult 
for them to separate fact from fantasy.'').
    \427\ Commenters cited: National Center for Higher Education 
Risk Management (NCHERM), The 2017 NCHERM Group Whitepaper: Due 
Process and the Sex Police 15 (2017) (``What is needed for all of 
our students is a balanced process that centers on their respective 
rights while showing favoritism to neither. Not only is that best, 
it is required by law. Title IX Coordinators write to us, worried 
that their annual summaries show that they are finding no violation 
of policy 60% of the time in their total case decisions. They feel 
like somehow that is wrong, or not as it should be, as if there is 
some proper ratio of findings that we are supposed to be reaching. . 
. . With all the training and education being directed at students, 
more are coming forward, and that education brings allegations of 
all kinds out of the woodwork, some based strongly in fact, others 
that are baseless, and most that are somewhere in between.'').
---------------------------------------------------------------------------

    One commenter, on behalf of an organization representing student 
affairs professionals in higher education, described campus sexual 
assault proceedings as complicated under the best of circumstances 
because these cases involve navigating allegations that frequently 
involve different personal recollections of what happened, with few or 
no witnesses or physical evidence, and possibly colored by alcohol use 
by one or both parties. Commenters argued that just because a victim 
does not have corroborating evidence does not mean that a sexual 
assault claim is false.
    Discussion: Under the final regulations, recipients must offer 
supportive measures to a complainant; the final regulations make this 
an explicit part of a recipient's prompt, non-deliberately indifferent 
response.\428\ Such a requirement advances the non-discrimination 
mandate of Title IX by imposing an obligation on recipients to support 
complainants even without a factual determination regarding the 
allegations. In order to determine that a complainant has been 
victimized and is entitled to remedies (which, unlike supportive 
measures, need not avoid burdening a respondent),\429\ allegations of 
Title IX sexual harassment must be resolved through the Sec.  106.45 
grievance process, designed to reach reliable factual determinations. 
This approach is necessary to promote accurate resolution of 
allegations in each situation presented in a formal complaint, 
regardless of how frequently or infrequently false accusations 
statistically occur.
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    \428\ Section 106.44(a).
    \429\ The final regulations revise Sec.  106.45(b)(1)(i) to 
expressly state that remedies, unlike supportive measures, may be 
punitive or disciplinary and need not avoid burdening the 
respondent. This distinction between supportive measures and 
remedies is because remedies are required after a respondent has 
been determined responsible under a grievance process that complies 
with Sec.  106.45.
---------------------------------------------------------------------------

    The Department disputes that a choice must be made between caring 
about underreporting and caring about overreporting, or prioritizing 
protection of complainants' right to receive support and remedies, over 
protection of respondents from unfounded accusations. The Department 
understands that false allegations may occur infrequently, but believes 
that in every case in which Title IX sexual harassment is alleged, the 
facts must be resolved accurately to further the non-discrimination 
mandate of Title IX, including providing remedies to victims and 
ensuring that no party is treated differently based on sex. Under the 
final regulations, complainants are entitled to a prompt response that 
is not clearly unreasonable under the known circumstances, which 
response must include offering supportive measures even in the absence 
of factual investigation into the allegations. Complainants and 
respondents are owed an impartial grievance process that reaches 
reliable factual determinations of the allegations before remedies are 
owed to a victim or disciplinary sanctions are imposed on the 
respondent. Such an approach protects the interests of complainants and 
respondents in each unique situation, without assuming the truth or 
falsity of particular allegations based on statistical information 
about the prevalence or reasons for false accusations.
    The Department appreciates the commenters who described campus 
sexual assault proceedings as difficult to navigate and complex because 
they nearly always involve different personal recollections about what 
happened, with few or no witnesses or physical evidence, possibly 
influenced by alcohol use by one or both parties. Some commenters 
emphasized, and the Department agrees, that the difficult, complex 
nature of Title IX sexual harassment situations cautions against 
concluding that allegations are ``false'' based solely on the outcome 
of the case, because lack of evidence sufficient to conclude 
responsibility does not necessarily imply that the allegations were 
unfounded or false. In response to commenters addressing this topic, 
these final regulations contain a provision expressly prohibiting 
retaliation \430\ and specifying that charging an individual with a 
code of conduct violation for making a materially false statement in 
bad faith does not constitute retaliation, but a determination 
regarding responsibility, alone, is not sufficient to conclude that any 
party made a materially false statement in bad faith. This provision 
cautions recipients to avoid stating or implying to complainants whose 
formal complaints end in a determination of non-responsibility that the 
determination, alone, means that the complainant's allegations were 
false or show bad faith on the part of the complainant, because such 
statements or implications may constitute retaliation. The Department 
further notes that the new provision in Sec.  106.71(b)(2) applies 
equally to respondents and complainants, such that a determination of 
responsibility against a respondent, alone, is insufficient to justify 
punishing the respondent for making a materially false

[[Page 30086]]

statement in bad faith. The Department agrees with commenters who 
asserted that a complainant's allegations may be determined to be 
accurate and valid even if there is no evidence corroborating the 
complainant's statements. The final regulations are designed to result 
in accurate outcomes regardless of the type of evidence available in 
particular cases.
---------------------------------------------------------------------------

    \430\ Section 106.71.
---------------------------------------------------------------------------

    Changes: The Department has added Sec.  106.71(b)(2), which 
provides that charging an individual with a code of conduct violation 
for making a materially false statement in bad faith does not 
constitute retaliation, provided that a determination regarding 
responsibility, alone, is not sufficient to conclude that such a false 
statement was made.

General Support and Opposition for Supreme Court Framework Adopted in 
Sec.  106.44(a)

    Comments: A number of commenters expressed general support for 
Sec.  106.44(a). Several commenters supported the provision because 
they believed it was fair and thoughtful or made common sense. 
Commenters stated that this provision brings clarity and 
accountability. One commenter opined that the proposed rules would 
restore public confidence in these proceedings.
    Other commenters expressed satisfaction that the provisions in 
Sec.  106.44(a) are consistent with basic constitutional principles and 
operative practices in our criminal justice system. A number of 
commenters argued that the proposed rules were necessary because the 
processes under previous rules have been inadequate. Some commenters 
argued that this provision is necessary because there needs to be more 
due process provided after the withdrawn 2011 Dear Colleague Letter. 
Commenters expressed concern the previous approach in guidance lacked 
protections for the accused, and the proposed rules balance protection 
for the accused with justice for victims. Commenters asserted the 
proposed rules bring back the rule of law to these proceedings. Other 
commenters expressed concern that past Department guidance has led to 
violations of students' free speech rights. Another commenter asserted 
that by nature, universities are ill-equipped to handle criminal 
assault charges and asserted that if universities are going to deal 
with serious charges like sexual assault, it is critical that the 
sanctions they wield, which often can have significant consequences, 
are applied only after a fair process to determine facts and guilt; the 
commenter supported the process that the proposed regulations provide.
    Commenters expressed support for the Department's general approach 
because it is flexible. Commenters supported the ``not clearly 
unreasonable standard'' in particular for this reason. Commenters also 
expressed support for this approach because it brings clarity to a very 
confusing and complicated issue. Some commenters expressed support for 
the proposed rules because they are pro-women. Other commenters 
asserted that the proposed rules add needed clarity to what is required 
by recipients under Title IX. Some commenters also stated that 
responding to sexual harassment is a uniquely difficult challenge 
because, unlike sexual assault, it is intertwined with free speech.
    Commenters also expressed support for the Department's choice to 
respect survivors' autonomy in deciding whether to initiate a grievance 
process in the higher education setting. Some commenters suggested 
expanding the deliberately indifferent standard to include the 
respondent so that recipients must respond in a manner that is not 
deliberately indifferent toward a complainant or respondent. Other 
commenters asserted that not all cases of sexual harassment warrant 
discipline because sometimes a reporting party just wants the 
respondent to understand why what they did was wrong.
    Some commenters suggested adding a statute of limitations 
requirement in the filing of a complaint that aligns to that 
jurisdiction so as to preserve evidence and protect both parties.
    Other commenters expressed disapproval of the notion of third-party 
reporting and bystander intervention because posters plastered all over 
campuses that command students to make reporting a habit have a 
totalitarian feel. Other commenters asked if the Department would 
consider encouraging schools to inquire into anonymous and third-party 
reports as a means of preventing harassment from worsening.
    Discussion: The Department appreciates the comments in support of 
the deliberate indifference standard in Sec.  106.44(a). The deliberate 
indifference standard provides consistency with the Title IX rubric for 
judicial and administrative enforcement and gives a recipient 
sufficient flexibility and discretion to address sexual harassment. At 
the same time, for reasons explained in the ``Adoption and Adaption of 
the Supreme Court's Framework to Address Sexual Harassment'' section of 
this preamble, the Department has tailored a deliberate indifference 
standard for administrative enforcement purposes by adding specific 
obligations that every recipient must meet as part of every response to 
sexual harassment, including offering supportive measures to 
complainants through the Title IX Coordinator engaging in an 
interactive discussion with the complainant about the complainant's 
wishes, and explaining to the complainant the option and process for 
filing a formal complaint.
    The Department acknowledges that some commenters think that these 
final regulations are pro-women while others think that these final 
regulations are pro-men. The final regulations are structured to avoid 
any favoritism on the basis of sex, and the Department will enforce 
them in a manner that does not discriminate on the basis of sex.
    The Department appreciates the commenters who would like the 
Department to make it clear that the deliberate indifference standard 
applies to both complainants and respondents. To address this concern, 
the Department is revising Sec.  106.44(a) to clarify that a recipient 
must treat complainants and respondents equitably, which for a 
respondent means following a grievance process that complies with Sec.  
106.45 before the imposition of any disciplinary sanctions or other 
actions that are not supportive measures as defined in Sec.  106.30.
    We also appreciate commenters who would like us to respect the 
autonomy of the complainant. A complainant may only want supportive 
measures, may wish to go through an informal process, or may want to 
file a formal complaint. The Department revised Sec.  106.44(a) to 
clarify that an equitable response for a complainant means offering 
supportive measures irrespective of whether the complainant also 
chooses to file a formal complaint. Additionally, a recipient may 
choose to offer an informal resolution process under Sec.  106.45(b)(9) 
(except as to allegations that an employee sexually harassed a 
student). These final regulations thus respect a complainant's autonomy 
in determining how the complainant would like to proceed after a 
recipient becomes aware (through the complainant's own report, or any 
third party reporting the complainant's alleged victimization) that a 
complainant has allegedly suffered from sexual harassment.
    The Department does not wish to impose a statute of limitations for 
filing a formal complaint of sexual harassment under Title IX. Each 
State may have a different statute of limitations for filing a 
complaint, which goes against the Department's objective of creating

[[Page 30087]]

uniformity and consistency. Additionally, a State's statute of 
limitations for each category of sexual harassment may be different as 
jurisdictions may have a different statute of limitations for criminal 
offenses versus civil torts, adding yet another level of complexity to 
a recipient's response. The Department notes that a complainant must be 
participating in or attempting to participate in the education program 
or activity of the recipient with which the formal complaint is filed 
as provided in the revised definition of ``formal complaint'' in Sec.  
106.30; this provision tethers a recipient's obligation to investigate 
a complainant's formal complaint to the complainant's involvement (or 
desire to be involved) in the recipient's education program or activity 
so that recipients are not required to investigate and adjudicate 
allegations where the complainant no longer has any involvement with 
the recipient while recognizing that complainants may be affiliated 
with a recipient over the course of many years and sometimes 
complainants choose not to pursue remedial action in the immediate 
aftermath of a sexual harassment incident. The Department believes that 
applying a statute of limitations may result in arbitrarily denying 
remedies to sexual harassment victims. At the same time, the Sec.  
106.45 grievance process contains procedures designed to take into 
account the effect of passage of time on a recipient's ability to 
resolve allegations of sexual harassment. For example, if a formal 
complaint of sexual harassment is made several years after the sexual 
harassment allegedly occurred, Sec.  106.45(b)(3)(ii) provides that if 
the respondent is no longer enrolled or employed by the recipient, or 
if specific circumstances prevent the recipient from gathering evidence 
sufficient to reach a determination as to the formal complaint or 
allegations therein, then the recipient has the discretion to dismiss 
the formal complaint or any allegations therein.
    Similarly, the Department does not take a position in the NPRM or 
these final regulations on whether recipients should encourage 
anonymous reports of sexual harassment, but we have revised Sec.  
106.8(a) and Sec.  106.30 defining ``actual knowledge'' to emphasize 
that third party (including ``bystander'') reporting, as well as 
anonymous reporting (by the complainant or by a third party) is a 
permissible manner of triggering a recipient's response 
obligations.\431\ Irrespective of whether a report of sexual harassment 
is anonymous, a recipient with actual knowledge of sexual harassment or 
allegations of sexual harassment in an education program or activity of 
the recipient against a person in the United States, must respond 
promptly in a manner that is not deliberately indifferent generally and 
must meet the specific obligations set forth in revised Sec.  
106.44(a). On the other hand, if a recipient cannot identify any of the 
parties involved in the alleged sexual harassment based on the 
anonymous report, then a response that is not clearly unreasonable 
under light of these known circumstances will differ from a response 
under circumstances where the recipient knows the identity of the 
parties involved in the alleged harassment, and the recipient may not 
be able to meet its obligation to, for instance, offer supportive 
measures to the unknown complainant.
---------------------------------------------------------------------------

    \431\ Section 106.8(a) states that any person may report sexual 
harassment (whether or not the person reporting is the person 
alleged to be the victim of sexual harassment) by using the contact 
information listed for the Title IX Coordinator, and that such a 
report may be made ``at any time (including during non-business 
hours)'' by using the listed telephone number or email address, or 
by mail to the listed office address. Section 106.30 defines 
``actual knowledge'' and includes a statement that ``notice'' 
charging a recipient with actual knowledge includes a report to the 
Title IX Coordinator as described in Sec.  106.8(a). See also 
discussion of anonymous reporting in the ``Formal Complaint'' 
subsection of the ``Section 106.30 Definitions'' section of this 
preamble.
---------------------------------------------------------------------------

    Changes: The Department revised Sec.  106.44(a) to require 
recipients to respond promptly in a manner that is not deliberately 
indifferent. We also added to that paragraph: A recipient's response 
must treat complainants and respondents equitably by offering 
supportive measures as defined in Sec.  106.30 to a complainant, and by 
following a grievance process that complies with Sec.  106.45 before 
the imposition of any disciplinary sanctions or other actions that are 
not supportive measures as defined in Sec.  106.30, against a 
respondent. The Title IX Coordinator must promptly contact the 
complainant to discuss the availability of supportive measures as 
defined in Sec.  106.30, consider the complainant's wishes with respect 
to supportive measures, inform the complainant of the availability of 
supportive measures with or without the filing of a formal complaint, 
and explain to the complainant the process for filing a formal 
complaint.
    The Department also has revised Sec.  106.45(b)(3)(ii) to state 
that if a respondent is no longer enrolled or employed by a recipient, 
or if specific circumstances prevent the recipient from gathering 
evidence sufficient to reach a determination as to the formal complaint 
or allegations therein, then the recipient may dismiss the formal 
complaint or any allegations therein.
    We have also revised Sec.  106.8(a) and Sec.  106.30 defining 
``actual knowledge'' to expressly state that any person may report 
sexual harassment in person, by mail, telephone, or email, by using the 
contact information required to be listed for the Title IX Coordinator.
    Comments: A number of commenters asserted that Sec.  106.44(a) does 
not adequately protect students in both elementary and secondary and 
postsecondary education. Some commenters stated that no harassment at 
all should be tolerated under Title IX. Other commenters asserted that 
the provision would hinder Title IX enforcement. Still other commenters 
opined that the provision creates a situation in which systematic 
sexual harassment and misconduct can continue. Other commenters gave 
examples of the need to protect students evidenced by high-profile 
sexual abuse scandals at postsecondary institutions. Some commenters 
asserted that the proposed rules change schools' current 
responsibilities to take prompt and effective steps to end harassment, 
arguing that the current standard is more protective of students than 
the new deliberate indifference standard. Other commenters stated that 
the provision allows schools to ``check boxes'' in investigating 
complaints of sexual misconduct and will lead to a less prompt, less 
equitable response. Commenters stated the proposed rules would require 
schools to ignore all sexual harassment unless the student has been 
denied equal access to education, even if the student has to sit next 
to their harasser or rapist in class every day, which creates a hostile 
environment for victims and negatively affects victims' ability to 
proceed with their education. Commenters argued schools will become 
more dangerous because the proposed rules perpetuate rape culture.
    Discussion: The Department agrees with commenters inasmuch as 
proposed Sec.  106.44(a), in conjunction with the way that actual 
knowledge was defined in Sec.  106.30, did not adequately protect 
students in the elementary and secondary context. As discussed in the 
``Actual Knowledge'' subsection of the ``Adoption and Adaption of the 
Supreme Court's Framework to Address Sexual Harassment'' section of 
this preamble, we have revised Sec.  106.30 defining actual knowledge 
to include notice to any elementary and secondary school employee.

[[Page 30088]]

    We also agree with commenters to the extent that proposed Sec.  
106.44(a) did not impose sufficient specific, mandatory requirements as 
to what a recipient's non-deliberately indifferent response must 
consist of in order to protect complainants and be fair to respondents, 
in the context of elementary and secondary schools as well as the 
postsecondary institution context. As revised, Sec.  106.44(a) requires 
all recipients to treat complainants and respondents equitably when 
responding to a report or formal complaint of sexual harassment (by 
offering supportive measures to complainants, and by disciplining 
respondents only after applying a grievance process that complies with 
Sec.  106.45).
    When a recipient has actual knowledge of sexual harassment in its 
education program or activity, the Department will not tolerate, and 
the final regulations do not allow recipients to tolerate, sexual 
harassment, including systematic sexual harassment or the perpetuation 
of a rape culture. Contrary to commenters' assertions, recipients will 
not be allowed to ignore sexual harassment until it leads to the denial 
of equal access to education and must respond to every report of sexual 
harassment by offering supportive measures by engaging in an 
interactive discussion with the complainant to consider the 
complainant's wishes regarding available supportive measures, with or 
without the filing of a formal complaint. Supportive measures for 
complainants may include a different seating assignment or other 
accommodation so that the complainant does not need to sit next to the 
respondent in class every day. By requiring a recipient to offer 
supportive measures, these final regulations do not create or further a 
hostile environment and expressly require recipients to provide 
measures designed to restore or preserve a complainant's equal access 
to education.
    In response to comments, the Department also revised Sec.  
106.44(a) to clarify that a recipient must respond promptly in a manner 
that is not deliberately indifferent. This clarifies that whether or 
not a formal complaint triggers a grievance process, the recipient must 
promptly offer supportive measures to the complainant. Where a formal 
complaint does trigger a grievance process, Sec.  106.45(b)(1)(v) 
requires recipients to have a reasonably prompt time frame for the 
conclusion of the grievance process, including any appeals or informal 
resolution process.
    Changes: As previously noted, the Department revised Sec.  
106.44(a) to require that the recipient respond promptly, and by 
offering supportive measures to complainants while refraining from 
punishing a respondent without following the Sec.  106.45 grievance 
process.
    Comments: Commenters expressed concern that the trauma suffered by 
victims is too great to hold schools to the deliberate indifference 
standard, which commenters characterized as too low a standard. 
Commenters noted the severe long-term effects of sexual assault and 
harassment on victims, including depression and suicide. Commenters 
expressed concern with the ``clearly unreasonable'' standard because 
false reporting is much less likely to happen than actual rape. 
Commenters stated the proposed rules promote the misconception that 
survivors are making false accusations of sexual assault.
    Commenters expressed concern that the proposed rules allow 
perpetrators in positions of authority to abuse the system. Commenters 
stated that by allowing institutions to create complex and opaque 
systems for reporting sexual harassment or sexual assault, perpetrators 
in positions of authority can continue to victimize students over long 
periods.
    Discussion: The Department disagrees that the deliberate 
indifference standard in Sec.  106.44(a) is too low of a standard to 
protect complainants and hold schools, colleges, and universities 
responsible for responding to sexual harassment in education programs 
or activities. As adapted from the Gebser/Davis framework and revised 
in these final regulations, this standard requires recipients to offer 
supportive measures to a complainant through an interactive process 
whereby the Title IX Coordinator must contact the complainant to 
discuss availability of supportive measures (with or without the filing 
of a formal complaint), consider the complainant's wishes regarding 
supportive measures, and explain to the complainant the process for 
filing a formal complaint. The Department has not previously imposed a 
legally binding requirement on recipients to offer supportive measures 
to a complainant in response to a report of sexual harassment. The 
Department acknowledges that sexual assault and sexual harassment may 
have severe, long-term consequences, which is why the Department 
requires recipients to respond promptly and to offer a complainant 
supportive measures. The final regulations' emphasis on supportive 
measures recognizes that educational institutions are uniquely 
positioned to take prompt action to protect complainants' equal access 
to education when the educational institution is made aware of sexual 
harassment in its education program or activity, often in ways that 
even a court-issued restraining order or criminal prosecution of the 
respondent would not accomplish (e.g., approving a leave of absence for 
a complainant healing from trauma, or accommodating the re-taking of an 
examination missed in the aftermath of sexual violence, or arranging 
for counseling or mental health therapy for a sexual harassment victim 
experiencing PTSD symptoms). While we recognize that the range of 
supportive measures (defined in Sec.  106.30 as individualized 
services, reasonably available, without fee or charge to the party) 
will vary among recipients, we believe that every recipient has the 
ability to consider, offer, and provide some kind of individualized 
services reasonably available, designed to meet the needs of a 
particular complainant to help the complainant stay in school and on 
track academically and with respect to the complainant's educational 
benefits and opportunities, as well as to protect parties' safety or 
deter sexual harassment. These final regulations impose on recipients a 
legal obligation to do what recipient educational institutions have the 
ability and responsibility to do to respond promptly and supportively 
to help complainants, while treating respondents fairly.
    Commenters erroneously asserted that the Department is adopting the 
standard in Sec.  106.44(a) because of a belief that false reporting 
occurs more frequently than rape; these final regulations are not 
premised on, and do not promote, this notion. As explained previously, 
the Department is adopting this standard to require recipients to 
respond promptly and in a manner that provides a complainant with 
supportive measures and presents the complainant with more control over 
the process by which the recipient will respond to the report of sexual 
harassment.
    This standard will not allow perpetrators in positions of authority 
to abuse the system or to continue to victimize students over long 
periods of time. Contrary to the commenters' assertions, these final 
regulations do not allow institutions to create complex and opaque 
systems for reporting sexual harassment or sexual assault. These final 
regulations require recipients to notify all students and employees 
(and parents and guardians of elementary and secondary school students) 
of the name or title, office address, electronic mail address, and 
telephone number of the employee or employees designated

[[Page 30089]]

as the Title IX Coordinator pursuant to Sec.  106.8(a) so that students 
and employees will know to whom they may report sexual harassment and 
how to make such a report, including options for reporting during non-
business hours. Each recipient also must prominently display the 
contact information required to be listed for the Title IX Coordinator 
on its website, if any, and in each handbook or catalog that it makes 
available to applicants for admission and employment, students, parents 
or legal guardians of elementary and secondary school students, 
employees, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient, 
pursuant to Sec.  106.8(c). Additionally, a recipient must respond when 
the recipient has actual knowledge of sexual harassment, even if the 
complainant (i.e., the person alleged to be the victim) is not the 
person who reports the sexual harassment. As explained above, ``actual 
knowledge'' is defined in Sec.  106.30 as notice of sexual harassment 
or allegations of sexual harassment to a recipient's Title IX 
Coordinator or any official of the recipient who has authority to 
institute corrective measures on behalf of the recipient, or to any 
employee of an elementary and secondary school. Far from being complex 
or opaque, the final regulations ensure that recipients and their 
educational communities (including their students, employees, and 
parents of elementary and secondary school students) understand how to 
report sexual harassment and what the recipient's response will be. 
Regardless of whether a recipient desires to absolve itself of actual 
knowledge of sexual harassment, a recipient cannot avoid actual 
knowledge triggering prompt response obligations, because any person 
(not only the complainant--i.e., the alleged victim--but any third 
party) may report sexual harassment allegations to the Title IX 
Coordinator, to an official with authority to take corrective action, 
or to any elementary or secondary school employee.\432\ The final 
regulations require recipients to post on their websites the contact 
information for the recipient's Title IX Coordinator and to send notice 
to every student, employee, and parent of every elementary and 
secondary school student of the Title IX Coordinator's contact 
information.\433\ The final regulations thus create clear, accessible 
channels for any person to report sexual harassment in a way that 
triggers a recipient's response obligations. A recipient must promptly 
respond if it has actual knowledge that any person, including someone 
in a position of authority, is sexually harassing or assaulting 
students; failure to do so violates these final regulations. As 
previously stated, the deliberate indifference standard is flexible and 
may require a different response depending on the unique circumstances 
of each report of sexual harassment. If a recipient has actual 
knowledge of a pattern of alleged sexual harassment by a perpetrator in 
a position of authority, then a response that is not deliberately 
indifferent or clearly unreasonable may require the recipient's Title 
IX Coordinator to sign a formal complaint obligating the recipient to 
investigate in accordance with Sec.  106.45, even if the complainant 
(i.e., the person alleged to be the victim) does not wish to file a 
formal complaint or participate in a grievance process.
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    \432\ See Sec.  106.30 defining ``actual knowledge'' and Sec.  
106.44(a) requiring a prompt response to actual knowledge of sexual 
harassment in a recipient's program or activity against a person in 
the United States.
    \433\ Section 106.8 (expressly stating that any person may 
report sexual harassment by using the contact information required 
to be listed for the Title IX Coordinator or by any other means that 
results in the Title IX Coordinator receiving the person's verbal or 
written report; requiring the contact information to be prominently 
displayed on recipients' websites; and stating that reports may be 
made at any time including during non-business hours by using the 
listed telephone number or email address or by mail to the listed 
office address).
---------------------------------------------------------------------------

    Changes: None.
    Comments: A number of commenters expressed concern that the 
proposed rules create more obstacles for survivors. Commenters stated 
that the proposed rules are not based in science and that reducing 
existing standards by not providing support and services to survivors 
of sexual assault and harassment is harmful and out of step with data 
and research. Other commenters expressed concern that the proposed 
rules prevent survivors from coming forward by cutting off their access 
to resources. Commenters expressed concern that the proposed rules are 
unfair to, unreasonable, or indifferent toward survivors and allows 
schools to do very little to help survivors. Commenters stated the 
proposed rules make it impossible for survivors to seek meaningful 
redress from their schools after having experienced sexual harassment.
    Some commenters expressed concern that the standard for opening an 
investigation is too high. Other commenters suggested that the standard 
for opening an investigation into an individual student's complaint of 
harassment should not be as high as the standard for actually holding a 
school liable as an institution. Commenters stated that the Title IX 
Coordinator determining if a complaint meets certain criteria is an 
unnecessary obstacle.
    Commenters argued that requiring a formal complaint places 
additional burdens on the individual who has experienced trauma. 
Commenters stated the process could retraumatize the survivor and 
discourage others from coming forward. Commenters stated a plaintiff 
would normally be able to access equitable relief to remedy 
unintentional discrimination through a court order, but the Department 
would not attempt to secure a remedy on the same facts.
    Discussion: Contrary to commenters' assertions, these final 
regulations remove obstacles for complainants by clearly requiring 
recipients to offer supportive measures irrespective of whether the 
complainant files a formal complaint and without any showing of proof 
of the complainant's allegations. The final regulations provide greater 
choice and control for complainants. Complainants may choose whether to 
receive supportive measures without filing a formal complaint, may 
choose to receive supportive measures and file a formal complaint, or 
may choose to receive supportive measures and request any informal 
resolution process that the recipient may offer. Accordingly, these 
final regulations respect complainants' autonomy and require recipients 
to consider the wishes of each complainant with respect to the type of 
response that best suits a complainant's particular needs.\434\
---------------------------------------------------------------------------

    \434\ While the final regulations at Sec.  106.30 (defining 
``formal complaint'') give Title IX Coordinators discretion to sign 
a formal complaint even where the complainant does not wish to 
participate in a grievance process, the final regulations also 
protect every complainant's right not to participate. Sec.  106.71 
(prohibiting retaliation against any person exercising rights under 
Title IX, including participation or refusal to participate in any 
grievance process).
---------------------------------------------------------------------------

    We disagree that the standard for opening an investigation is the 
same standard for holding a recipient liable and that this standard is 
too high. If a recipient has actual knowledge of sexual harassment (or 
allegations of sexual harassment) in its education program or activity 
against a person in the United States, then it must begin an 
investigation as soon as the complainant requests an investigation by 
filing a formal complaint (or when the Title IX Coordinator determines 
that circumstances require or justify signing a formal complaint). The 
actual knowledge standard is discussed in

[[Page 30090]]

greater depth under the ``Actual Knowledge'' subsection of the 
``Section 106.30 Definitions'' section of this preamble.
    Title IX Coordinators have always had to consider whether a report 
satisfies the criteria in the recipient's policy, and these final 
regulations are not creating new obstacles in that regard. The criteria 
that the Title IX Coordinator must consider are statutory criteria 
under Title IX or criteria under case law interpreting Title IX's non-
discrimination mandate with respect to discrimination on the basis of 
sex in the recipient's education program or activity against a person 
in the United States, tailored for administrative enforcement.\435\ 
Additionally, these final regulations do not preclude action under 
another provision of the recipient's code of conduct, as clearly stated 
in revised Sec.  106.45(b)(3)(i), if the conduct alleged does not meet 
the definition of Title IX sexual harassment.
---------------------------------------------------------------------------

    \435\ See the ``Adoption and Adaption of the Supreme Court's 
Framework to Address Sexual Harassment'' section of this preamble.
---------------------------------------------------------------------------

    The Department understands commenters' concerns that requiring 
complainants to go through a formal complaint process may cause further 
trauma, which is why the Department's final regulations provide that a 
recipient must offer supportive measures even if the complainant does 
not choose to file a formal complaint. We do not think that giving a 
complainant the choice to file a formal complaint will further 
traumatize the complainant. Giving complainants the option to choose a 
formal complaint process rather than mandating such a process gives 
complainants more autonomy and control over their circumstances, which 
survivor advocates have emphasized is crucial to supporting survivors, 
and may make more complainants feel comfortable enough to report 
allegations of sexual harassment. Where a complainant does file a 
formal complaint raising allegations of sexual harassment, both parties 
must have full and fair opportunity to participate in a fair grievance 
process designed to reach an accurate outcome. The final regulations 
endeavor to take into account the fact that navigating a formal process 
can be difficult for both complainants and respondents.\436\
---------------------------------------------------------------------------

    \436\ E.g., Sec.  106.45(b)(5)(iv) gives both parties equal 
opportunity to be assisted by an advisor of choice.
---------------------------------------------------------------------------

    The Department does not understand the comment that these final 
regulations do not require recipients to address unintentional 
discrimination that a court would address. These final regulations 
require a recipient to respond to allegations of sexual harassment as 
defined in Sec.  106.30, irrespective of whether the alleged conduct 
was intentional or unintentional on the part of the respondent \437\ 
and similarly, a recipient's response obligations will be enforced 
without any regard for whether a recipient ``intentionally'' violated 
these final regulations. If a complainant received a court order 
remedying unintentional discrimination, the recipient would have to 
follow any court order that by its terms applied to that recipient.
---------------------------------------------------------------------------

    \437\ Section 106.30 defining ``sexual harassment'' does not 
impose an independent intent or mens rea requirement on conduct that 
constitutes sexual harassment; however, the Department notes that 
the sexual offense of ``fondling,'' which is an offense under 
``sexual assault'' as defined under the Clery Act and made part of 
Title IX sexual harassment under Sec.  106.30, includes as an 
element of fondling touching ``for the purpose of sexual 
gratification.'' Courts have interpreted similar ``purpose of'' 
elements in sex offense legislation as an intent requirement, and 
recipients should take care to apply that intent requirement to 
incidents of alleged fondling so that, for example, unwanted 
touching committed by young children--with no sexualized intent or 
purpose--is distinguished from Title IX sexual harassment and can be 
addressed by a recipient outside these final regulations.
---------------------------------------------------------------------------

    Changes: We have revised Sec.  106.44(a) to require recipients to 
treat complainants and respondents equitably meaning offering 
supportive measures to a complainant and refraining from disciplining a 
respondent with following the Sec.  106.45 grievance process; 
specifically, a recipient's Title IX Coordinator must contact the 
complainant to discuss the availability of supportive measures (with or 
without the filing of a formal complaint), consider the complainant's 
wishes with respect to supportive measures, and explain to the 
complainant the process for filing a formal complaint.
    Comments: Some commenters argued that the proposed rules would 
allow a school to treat survivors poorly and impose little or no 
sanctions for rapists. Other commenters stated the proposed rules would 
dissolve free speech for survivors.
    Some commenters expressed concern that the proposed rules allow 
schools to evade responsibility and accountability. Other commenters 
expressed concern that the proposed rules give too much deference to 
school districts. At least one commenter expressed concern that the 
Department's decision to adopt the deliberate indifference standard 
essentially negates the Department's ability to perform regulatory 
oversight, one of its primary functions. Commenters argued that 
deferring to a school district's determination is not always 
appropriate, and accountability is necessary to ensure schools are free 
of sexual harassment. Other commenters expressed concern that 
universities can expediently reduce liability by simply checking boxes 
and doing nothing. Commenters argued that the responsibilities of 
university administrators and educators extend beyond the minimal 
standard set by the rule. Commenters expressed concern that the 
proposed rules allow the Department to defer to local leaders rather 
than ensuring universally agreed-upon standards. Other commenters 
argued that institutions need to be labeled publicly as offenders.
    Discussion: As previously noted, the recipient cannot ignore a 
complainant's report of sexual harassment, and these final regulations 
do not prevent punishment of perpetrators of sexual assault; the 
recipient must offer supportive measures to the complainant under Sec.  
106.44(a) and Title IX Coordinators must be trained to serve 
impartially, without prejudgment of the facts and without bias, under 
Sec.  106.45(b)(1)(iii). A recipient may impose disciplinary sanctions 
upon a respondent after a grievance process that complies with Sec.  
106.45. Requiring recipients to offer supportive measures to the 
complainant and follow a grievance process under Sec.  106.45 prior to 
disciplining the respondent helps ensure that a recipient's response 
treats complainants and respondents fairly. Moreover, the final 
regulations add Sec.  106.71 to assure complainants and respondents 
that the recipient cannot retaliate against any party.
    Contrary to commenters' assertions, these final regulations do not 
dissolve free speech for complainants. The Department revised Sec.  
106.44(a) to clarify that no recipient is required to restrict a 
person's rights under the U.S. Constitution, including the First 
Amendment, to satisfy its obligation not to be deliberately indifferent 
in response to sexual harassment. Although this premise is expressed in 
Sec.  106.6(d), which applies to the entirety of Part 106 of Title 34 
of the Code of Federal Regulations, in recognition of commenters' 
concerns that a recipient subject to constitutional restraints may 
believe that the recipient must restrict constitutional rights in order 
to comply with the recipient's obligation to respond to a Title IX 
sexual harassment incident, the Department reinforces in Sec.  
106.44(a) that responding in a non-deliberately indifferent manner to a 
complainant does not require restricting constitutional rights.\438\
---------------------------------------------------------------------------

    \438\ Similarly, the Department emphasizes the purpose of Sec.  
106.6(d) in new Sec.  106.71(b) (prohibiting retaliation) to remind 
recipients that in the context of deciding if conduct constitutes 
retaliation, the Department will interpret the retaliation 
prohibition in a manner consistent with constitutional rights such 
as rights under the First Amendment.

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

[[Page 30091]]

    The Department is not negating its duties or unduly deferring to a 
recipient with respect to compliance with Title IX. The Department is 
clarifying the recipient's legally enforceable obligations through 
these final regulations and providing greater consistency. Every 
complainant who reports sexual harassment, as defined in Sec.  106.30, 
will know that the recipient must offer supportive measures in response 
to such a report, and every respondent will know that a recipient must 
provide a grievance process under Sec.  106.45 prior to imposing 
disciplinary sanctions. The Department will continue to exercise 
regulatory oversight in enforcing these final regulations. Recipients, 
including universities, will not be able to simply check off boxes 
without doing anything. Recipients will need to engage in the detailed 
and thoughtful work of informing a complainant of options, offering 
supportive measures to complainants through an interactive process 
described in revised Sec.  106.44(a), and providing a formal complaint 
process with robust due process protections beneficial to both parties 
as described in Sec.  106.45. Where a formal complaint triggers a 
grievance process, Sec.  106.45 requires recipients to do much more 
than simply have a process ``on paper'' or ``check off boxes.'' These 
final regulations require a recipient to investigate and adjudicate a 
complaint in a way that gives both parties a meaningful opportunity to 
participate, including by requiring the recipient to objectively 
evaluate relevant evidence, permitting parties to inspect and review 
evidence, and providing the parties a copy of an investigative report 
prior to any hearing or other determination regarding responsibility. 
These procedures, and all the provisions in Sec.  106.45, must be 
followed by the recipient using personnel who are free from bias and 
conflicts of interest and who are trained to serve impartially.
    With respect to commenters who asserted that recipients should have 
greater obligations than those imposed under these final regulations, 
the Department notes that nothing in these final regulations precludes 
action under another provision of the recipient's code of conduct that 
these final regulations do not address. For example, a recipient may 
choose to address conduct outside of or not in its ``education program 
or activity,'' even though Title IX does not require a recipient to do 
so. The Department believes that these final regulations hold 
recipients to appropriately high, legally enforceable standards of 
compliance to effectuate Title IX's non-discrimination mandate.
    The Department disagrees that all institutions should be labeled 
publicly as offenders for violating Title IX. The Department will make 
findings against recipients that violate these final regulations and 
will continue to make such letters of findings publicly available.
    Changes: The Department revised Sec.  106.44(a) to clarify that the 
Department will not deem a recipient not deliberately indifferent based 
on the recipient's restriction of rights protected under the U.S. 
Constitution, including the First Amendment, the Fifth Amendment, and 
the Fourteenth Amendment.
    Comments: A number of commenters argued that the 2011 Dear 
Colleague Letter was better for protecting survivors and was fair to 
both sides. One commenter urged the Department to reject the NPRM and 
to reinstate the 2011 Dear Colleague Letter and 2014 Q&A to keep 
students safe. This commenter argued that Title IX is a critical safety 
net because applicable State laws and school policies may vary widely 
and leave students unprotected. The commenter also cited studies 
showing a widespread problem of educator sexual misconduct against 
students.\439\ Another commenter suggested that the proposed rules 
should be replaced with affirmative obligations from the 2011 Dear 
Colleague Letter requiring the recipient to take immediate action to 
eliminate the harassment, prevent its reoccurrence, and address its 
effects.
---------------------------------------------------------------------------

    \439\ Commenters cited, e.g.: Magnolia Consulting, 
Characteristics of School Employee Sexual Misconduct: What We Know 
from a 2014 Sample (Feb. 1, 2018), https://magnoliaconsulting.org/news/2018/02/characteristics-school-employee-sexual-misconduct 
(noting one in three employee-respondents in elementary and 
secondary schools sexually abuse multiple student victims).
---------------------------------------------------------------------------

    A number of commenters argued that the 2001 Guidance was adequate 
and protected survivors. Commenters asserted that the 2001 Guidance 
standards were superior to the Gebser/Davis standards. Other commenters 
expressed concern that even under the 2001 Guidance standards, schools 
failed to adopt policies that would develop responses to sexual 
harassment designed to reduce occurrence and remedy effects. Similarly, 
commenters expressed concern that many cases demonstrate that even when 
students and parents were well informed on the 2001 Guidance standards, 
and brought legitimate concerns directly to institutions, institutions 
continued to fail students. Commenters argued that schools conducted an 
in-name-only investigation and refused to discipline respondents, 
resulting in escalating sexual harassment, in some cases leading to 
rape.
    A number of commenters opposed the use of the Gebser/Davis 
standards. Commenters disapproved of the use of the higher bar erected 
by the U.S. Supreme Court in the very specific and narrow context of a 
civil Title IX lawsuit seeking monetary damages against a school due to 
its response (or lack thereof) to actual notice of sexual harassment. 
Commenters argued these standards have no place in the far different 
context of administrative enforcement with its iterative process and 
focus on voluntary corrective action by schools. Other commenters 
argued that the 2001 Guidance directly addressed this precedent, 
concluding that it was inappropriate for the Department to limit its 
enforcement activities by applying the more stringent standard, stating 
that the Department would continue to enforce the broader protections 
provided under Title IX, and noting that the Department acknowledges 
that it is ``not required to adopt the liability standards applied by 
the Supreme Court in private suits for money damages.'' Other 
commenters expressed concern about the Davis progeny, where Federal 
courts have determined that only the most severe cases can meet the 
deliberate indifference standard. Other commenters suggested that the 
liability standard should be higher than what was set by the Supreme 
Court, and that recipients must be on clear notice of what conduct is 
prohibited and that recipients must be held liable only for conduct 
over which they have control.
    Discussion: Although the Department is not required to adopt the 
deliberate indifference standard articulated by the Supreme Court, we 
are persuaded by the rationales relied on by the Supreme Court and 
believe that the deliberate indifference standard represents the best 
policy approach. As the Supreme Court reasoned in Davis, a recipient 
acts with deliberate indifference only when it responds to sexual 
harassment in a manner that is ``clearly unreasonable in light of the 
known circumstances.'' \440\ The Department believes this standard 
holds recipients accountable for providing a meaningful response to 
every report, without depriving recipients of legitimate and necessary

[[Page 30092]]

flexibility to make disciplinary decisions and provide supportive 
measures that best respond to particular incidents of sexual 
harassment. Sexual harassment incidents present context-driven, fact-
specific needs and concerns for each complainant, and the Department 
believes that teachers and local school leaders with unique knowledge 
of the school climate and student body are best positioned to make 
decisions about supportive measures and potential disciplinary 
measures; thus, unless the recipient's response to sexual harassment is 
clearly unreasonable in light of the known circumstances, the 
Department will not second guess such decisions.\441\ In response to 
commenters' concerns that the liability standard of deliberate 
indifference gives recipients too much leeway to respond to the sexual 
harassment ineffectively, the Department has specified certain steps a 
recipient must take in all circumstances. For example, a response that 
is not deliberately indifferent must include promptly informing each 
complainant of the method for filing a formal complaint, offering 
supportive measures for that complainant, and imposing discipline on a 
respondent only after complying with the grievance process set forth in 
Sec.  106.45. Where a respondent has been found responsible for sexual 
harassment, any disciplinary sanction decision rests within the 
discretion of the recipient, and the Department's concern under Title 
IX is to mandate that the recipient provide remedies, as appropriate, 
to the victim, designed to restore or preserve the victim's equal 
educational access.\442\
---------------------------------------------------------------------------

    \440\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648-49 
(1999).
    \441\ Id. Indeed, the Supreme Court observed in Davis that 
courts must not second guess recipients' disciplinary decisions. As 
a matter of policy, the Department believes that the Department 
should not second guess recipients' disciplinary decisions through 
the administrative enforcement process. When a recipient finds a 
respondent responsible for Title IX sexual harassment, the 
Department requires the recipient to effectively implement remedies 
for the complainant, and will not second guess the recipient's 
determination of responsibility solely based on the fact that the 
Department would have weighed the evidence in the case differently 
than the recipient's decision-maker did. Sec. Sec.  106.45(b)(1)(i), 
106.45(b)(7)(iv), 106.44(b)(2).
    \442\ Section 106.45(b)(1)(i).
---------------------------------------------------------------------------

    The Department acknowledges that the deliberate indifference 
standard in Sec.  106.44(a) departs from standards set forth in prior 
guidance and applied in OCR enforcement of Title IX. In its previous 
guidance and enforcement practices, the Department took the position 
that constructive notice--as opposed to actual knowledge--triggered a 
recipient's duty to respond to sexual harassment; that recipients had a 
duty to respond to a broader range of sex-based misconduct than the 
sexual harassment defined in the proposed rules; and that recipients' 
response to sexual harassment should be effective and should be judged 
under a reasonableness or even strict liability standard, rather than 
under the deliberate indifference standard.\443\
---------------------------------------------------------------------------

    \443\ 2001 Guidance at iv, vi.
---------------------------------------------------------------------------

    Based on its consideration of the text and purpose of Title IX, of 
the reasoning underlying the Court's decisions in Gebser and Davis, and 
over 124,000 comments, the Department departs from its prior guidance 
that set forth a standard different from the deliberate indifference 
standard. We discuss the reasons for the ways in which we have adopted, 
but tailored, the three-part Gebser/Davis framework in these final 
regulations, in the ``Adoption and Adaption of the Supreme Court's 
Framework to Address Sexual Harassment'' section of this preamble, 
including the ways in which these final regulations are similar to, and 
different from, Department guidance.
    In response to commenters who asserted that recipients should only 
be liable for conduct over which they have control, the Department 
agrees with that statement and, in response, adds to Sec.  106.44(a) 
the statement that ``education program or activity'' includes 
locations, events, or circumstances over which the recipient exercised 
substantial control over both the respondent and the context in which 
the harassment occurs. The Department derives this language from the 
holding in Davis that a recipient should be held liable for 
``circumstances wherein the recipient exercises substantial control 
over both the harasser and the context in which the known harassment 
occurs.'' \444\ Accordingly, the Department does not need to adopt a 
higher standard than what the Gebser/Davis framework set forth in order 
to hold a recipient responsible for circumstances under the recipient's 
control. These final regulations apply to employees who sexually harass 
a student and will provide uniformity and consistency with respect to 
how a recipient responds to employee-on-student sexual harassment.
---------------------------------------------------------------------------

    \444\ Davis, 526 U.S. at 645.
---------------------------------------------------------------------------

    The Department acknowledges that some recipients failed to satisfy 
the requirements in the Department's past guidance and does not believe 
that the past failures of these recipients require the Department to 
adopt a different standard. The standards we adopt cannot ensure 
recipients' compliance in every instance. Any failure to comply would 
be handled as an enforcement matter, but such failure to comply, alone, 
does not warrant changing the standard.
    Changes: In addition to the changes previously noted, Sec.  
106.44(a) now includes a statement that ``education program or 
activity'' includes locations, events, or circumstances over which the 
recipient exercised substantial control over both the respondent and 
the context in which the harassment occurs.
    Comments: Commenters expressed concern that the proposed rules 
would result in less predictable outcomes for schools. Commenters 
reasoned that if the Department applies a standard for monetary damages 
to its administrative enforcement scheme, plaintiffs will ask the 
courts to play the role that the Department abdicated. Commenters 
expressed concern that the proposed rules will cause a massive increase 
in lawsuits against colleges because individuals who would have filed 
administrative complaints with the Department will instead file court 
actions for equitable relief against recipients of Federal funds thus 
depriving schools of an opportunity to comply voluntarily. Commenters 
asserted that such a system would be both less efficient and far slower 
than the status quo, because the costs of litigation would dwarf the 
costs of negotiating a voluntary resolution agreement and recipients of 
Federal funds would be unable to engage in informal negotiations with 
the court over the extent of the remedy. Commenters argued that if the 
Department adopts the same standards as the Court adopted for monetary 
damages, students with viable claims will likely bypass the Department 
altogether, undercutting the Department's efforts to promote systemic 
reforms that would benefit individuals without the means to engage in 
litigation.
    Commenters expressed concern that the Department is the wrong 
entity to enact Title IX reforms and that survivors should be the ones 
who create or enact these regulations. Commenters likened the proposed 
rules to laws restricting abortions inasmuch as people who are not 
women should not dictate how a woman's body is treated, with respect to 
having an abortion or how a school responds to the sexual assault of a 
woman's body.
    Discussion: The Department respectfully disagrees that the proposed 
rules or these final regulations would result in less predictable 
outcomes for schools. As previously explained, the Department revised 
Sec.  106.44(a) to specify that a recipient must offer supportive 
measures to a complainant,

[[Page 30093]]

and must include a grievance process that complies with Sec.  106.45 
before the imposition of any disciplinary sanctions or other actions 
that are not supportive measures as defined in Sec.  106.30. 
Additionally, as explained in more detail below, the Department has 
revised Sec.  106.44(b) to remove the safe harbors that were proposed 
in the NPRM, replacing the concept of safe harbors with more specific 
obligations: Mandatory steps that a recipient must take as part of 
every response to sexual harassment, in Sec.  106.44(a); and a 
requirement to investigate and adjudicate in accordance with Sec.  
106.45 in response to a formal complaint, in Sec.  106.44(b).
    The Department disagrees that it is abdicating its role to courts 
and that litigation will significantly increase as a result of these 
final regulations. The Department recognizes that its approach to Title 
IX enforcement may have caused much litigation in the past, as 
recipients that complied with the Department's recommendations in past 
guidance may have risked not providing adequate due process 
protections, resulting in litigation. Going forward, the Department 
believes that the balanced approach in these final regulations will 
provide complainants with supportive, meaningful responses to all 
reports, and provide both parties with due process protections during 
investigations and adjudications, which may result in decreased 
litigation against recipients by complainants and respondents. The 
Department will be the arbiter of whether a recipient complies with the 
requirements of these final regulations. Additionally, failure to 
comply with the Department's regulations may not always result in legal 
liability before a court. For example, although the final regulations 
require that a recipient must offer supportive measures to a 
complainant, a court may determine that a recipient was not 
deliberately indifferent even though that recipient did not offer 
supportive measures. If a recipient complies with the Department's 
regulations and offers supportive measures in response to a complaint 
of sexual harassment, then such action may persuade a court that the 
recipient was not deliberately indifferent. Accordingly, the Department 
retains its proper role as the enforcer of its regulations, and these 
final regulations may help decrease litigation.
    Congress charged the Department with the responsibility to 
administer Title IX, and the Department has carefully considered the 
input of survivors as well as other communities through the notice-and-
comment rulemaking process before issuing these final regulations. The 
Department is sensitive to the unique trauma that sexual violence often 
inflicts on women (as well as men, and LGBTQ individuals); while the 
Department disagrees with a commenter's assertion that these 
regulations are similar to laws restricting abortions, we endeavor in 
these final regulations to give each complainant (regardless of sex) 
more control over the response of the complainant's school, college, or 
university in the wake of sexual harassment that violates a woman or 
other complainant's physical and emotional dignity and autonomy.
    Changes: We have removed the ``safe harbor'' provisions in proposed 
Sec.  106.44(b).
    Comments: Commenters expressed concern that new sets of formal 
relationships between faculty members and students are established 
every four months, when students enroll in new courses each academic 
term and that any given student may not currently be under the 
supervision of a particular faculty member, but that situation could 
change in a matter of a few weeks. Such reconfigurations every semester 
add to the difficulty of determining whether a particular circumstance 
is or is not within the scope of Title IX pursuant to Sec.  106.44(a).
    Discussion: The Department is aware that students will change 
classes and also have different instructors throughout their education, 
and these final regulations provide the same clarity and consistency in 
case law under the Supreme Court's rubric in Gebser/Davis. The 
Department notes that ``program or activity'' has been defined in 
detail by Congress \445\ and is reflected in existing Department 
regulations.\446\ The Department will interpret a recipient's education 
``program or activity'' in accordance with the Title IX statute and its 
implementing regulations, which generally provide that an educational 
institution's program or activity includes ``all of the operations of'' 
a postsecondary institution or elementary and secondary school. For 
instance, incidents that occur in housing that is part of a recipient's 
operations such as dormitories that a recipient provides for students 
or employees whether on or off campus are part of the recipient's 
education program or activity. For example, a recipient must respond to 
an alleged of sexual harassment between two students in one student's 
dormitory room provided by the recipient. In order to clarify that a 
recipient's ``education program or activity'' may also include 
situations that occur off campus, the Department adds to Sec.  
106.44(a) the statement that ``education program or activity'' includes 
locations, events, or circumstances over which the recipient exercised 
substantial control over both the respondent and the context in which 
the harassment occurs. This helps clarify that even if a situation 
arises off campus, it may still be part of the recipient's education 
program or activity if the recipient exercised substantial control over 
the context and the alleged harasser. While such situations may be fact 
specific, recipients must consider whether, for example, a sexual 
harassment incident between two students that occurs in an off-campus 
apartment (i.e., not a dorm room provided by the recipient) is a 
situation over which the recipient exercised substantial control; if 
so, the recipient must respond to notice of sexual harassment that 
occurred there. The Department has also revised Sec.  106.45(b)(1)(iii) 
to specifically require recipients to provide Title IX personnel with 
training about the scope of the recipient's education program or 
activity, so that recipients accurately identify situations that 
require a response under Title IX. We further note that we have revised 
Sec.  106.45(b)(3) to clarify that even if alleged sexual harassment 
did not occur in the recipient's education program or activity, 
dismissal of a formal complaint for Title IX purposes does not preclude 
the recipient from addressing that alleged sexual harassment under the 
recipient's own code of conduct. Recipients may also choose to provide 
supportive measures to any complainant, regardless of whether the 
alleged sexual harassment is covered under Title IX.
---------------------------------------------------------------------------

    \445\ 20 U.S.C. 1687.
    \446\ 34 CFR 106.2(h).
---------------------------------------------------------------------------

    The Department is revising the definition of ``formal complaint'' 
in Sec.  106.30 to make it clear that the student must be participating 
in or attempting to participate in the education program or activity of 
the recipient with which the formal complaint is filed; no similar 
condition exists with respect to reporting sexual harassment.\447\ 
Changing classes or changing instructors does not necessarily mean that 
a student

[[Page 30094]]

is not participating or attempting to participate in a recipient's 
education program or activity. To the extent that a recipient needs 
further clarity in this regard, the Department will be relying on 
statutory and regulatory definitions of a recipient's education 
``program or activity.'' \448\
---------------------------------------------------------------------------

    \447\ We have revised Sec.  106.8(a) to clarify that any person 
may report sexual harassment (whether or not the person reporting is 
also the person who is alleged to be the victim of sexual 
harassment) by using any of the listed contact information for the 
Title IX Coordinator, and a report can be made at any time 
(including during non-business hours) by using the telephone number 
or email address, or by mail to the office address, listed for the 
Title IX Coordinator.
    \448\ For further discussion, see the ``Section 106.44(a) 
`education program or activity' '' subsection of the ``Section 
106.44 Recipient's Response to Sexual Harassment, Generally'' 
section of this preamble.
---------------------------------------------------------------------------

    Changes: The Department has revised Sec.  106.44(a) to state that 
``education program or activity'' includes locations, events, or 
circumstances over which the recipient exercised substantial control 
over both the respondent and the context in which the harassment 
occurs.
    Comments: Commenters stated the proposed rules constitute clear 
violations of the purpose of Title IX. Commenters expressed concern 
that the proposed regulations will eliminate the Department's 
enforcement of Title IX or hurt Title IX, or are contrary to the 
congressional purpose of Title IX. Commenters expressed concern that 
OCR would not be able to investigate a school or begin the processes 
required for enforcement unless a school's actions already reached the 
levels necessary for enforcement, effectively eliminating OCR's ability 
to seek the informal means of enforcement built into the statute, such 
as resolution agreements with schools.
    Discussion: These final regulations adhere closely to both the 
plain meaning of Title IX and to Federal case law interpreting Title 
IX; therefore, they are not a violation of the text or purpose of Title 
IX. These final regulations provide greater clarity for recipients, as 
recipients will know how the Department requires recipients to respond 
to reports of sexual harassment.
    OCR will continue to vigorously enforce Title IX to achieve 
recipients' compliance, including by reaching voluntary resolution 
agreements. Nothing in these final regulations prevents the Department 
from carrying out its enforcement obligations under Title IX. For 
example, if the Department receives a complaint that a recipient did 
not offer supportive measures in response to a report of sexual 
harassment, the Department may enter into a resolution agreement with 
the recipient in which the recipient agrees to offer supportive 
measures for that complainant and for other complainants prospectively.
    Changes: None.
    Comments: Commenters suggested the final regulations should abolish 
or limit peer harassment liability for schools. Commenters argued that 
the Davis decision applying peer harassment liability does not prevent 
the Department from abolishing such liability as long as there are 
informed reasons for doing so. Commenters asserted that courts will 
defer to agency reinterpretations of statutes when the agency supplies 
a reasoned explanation for its decision, under Chevron deference.\449\
---------------------------------------------------------------------------

    \449\ Commenters cited: Chevron, U.S.A., Inc. v. Natural Res. 
Defense Council, Inc., 467 U.S. 837, 844-45 (1984) (holding that 
``considerable weight should be accorded to an executive 
department's construction of a statutory scheme it is entrusted to 
administer'').
---------------------------------------------------------------------------

    Discussion: The Department acknowledged in the NPRM that it is not 
required to adopt the deliberate indifference standard articulated by 
the Supreme Court.\450\ As explained in the ``Adoption and Adaption of 
the Supreme Court's Framework to Address Sexual Harassment'' section of 
this preamble, the Department is persuaded by the policy rationales 
relied on by the Court and continues to believe that the Supreme 
Court's rubric for addressing sexual harassment--including peer sexual 
harassment--is the best policy approach, with the adaptions made in 
these final regulations for administrative enforcement.
---------------------------------------------------------------------------

    \450\ 83 FR 61468. For discussion of the way these final 
regulations adopt the Supreme Court's deliberate indifference 
liability standard, but tailor that standard to achieve policy aims 
of administrative enforcement of Title IX's non-discrimination 
mandate, see the ``Deliberate Indifference'' subsection of the 
``Adoption and Adaption of the Supreme Court's Framework to Address 
Sexual Harassment'' section of this preamble.
---------------------------------------------------------------------------

    Changes: None.

General Support and Opposition for the Grievance Process in Sec.  
106.45

    Comments: Many commenters favored the Sec.  106.45 grievance 
process on grounds that it would provide greater clarity, bring 
fairness to all parties, increase public confidence in school-level 
Title IX proceedings, and decrease the likelihood that recipients will 
be sued in court for mishandling Title IX sexual harassment cases. 
Several commenters expressed support for Sec.  106.45 on the ground 
that whether false accusations occur at a low rate or a higher rate, 
false accusations against accused students and employees, and their 
support networks of family and friends, have devastating consequences. 
Several commenters included personal stories of being falsely accused, 
or having family members falsely accused, including where the 
complainant recanted the allegations after the commenter's loved one 
had committed suicide. One commenter asserted that the ``fraud 
triangle'' theory that explains the dynamics around fraud-related 
offenses can also illustrate the importance of due process protections 
in the sexual misconduct context, because rationalization is one of the 
three legs of the triangle (the other two being pressure and 
opportunity), and due process protections serve to discourage people 
from rationalizing dishonesty by ensuring that allegations are 
investigated before being acted upon.
    Some commenters believed that Sec.  106.45 will rectify sex 
discrimination against men, and some believed that it will correct sex 
discrimination against women. A few commenters supported the due 
process protections in Sec.  106.45 on the ground that lack of due 
process in any system, whether courts of law or educational institution 
tribunals, often results in persons of color and persons of low 
socioeconomic status being wrongly or falsely convicted or punished. 
Several commenters asserted that men of color are more likely than 
white men to be accused of sexual misconduct and a system that lacks 
due process thus results in men of color being unfairly denied 
educational opportunities. One commenter asserted that due process 
exists not only to protect all individuals irrespective of sex, race, 
or ethnicity from persecution by those in power but also exists to 
ensure those in authority are enacting real justice, and that when due 
process is abandoned it is always the most marginalized and vulnerable 
who suffer; other commenters echoed that theme. A few commenters 
claimed that innocent people do not need due process, or that due 
process only helps those who are guilty.
    Several commenters noted that principles of due process developed 
over centuries of Western legal history, while imperfect, are most apt 
to find truth in matters involving high-stakes factual disputes, and 
that no cause or movement justifies abandoning such principles to 
equate an accusation with a determination of responsibility. A few 
commenters expressed support for the due process protections in Sec.  
106.45 by noting that Supreme Court Justice Ruth Bader Ginsburg has 
expressed public support for enhancing campus due process, and that 
public opinion polls have shown public support for due process on 
college campuses.
    Some commenters supported Sec.  106.45 because Title IX sexual 
harassment proceedings often involve contested proceedings with 
plausible competing narratives and a lack of disinterested witnesses, 
and the proposed rules do not give an advantage to either

[[Page 30095]]

complainants or respondents, but rather provide a web of protections 
for both sides formulated to ensure as fair and unbiased a result as 
possible. One commenter recounted a personal experience managing a 
university's sexual assault response program and opined that because 
that university's process was widely viewed as fair and impartial to 
both sides, the program held students responsible where the evidence 
showed responsibility, including against star athletes; the commenter 
believed that due process was essential to the program's 
credibility.\451\
---------------------------------------------------------------------------

    \451\ Commenters cited: Gary Pavela & Gregory Pavela, The 
Ethical and Educational Imperative of Due Process, 38 Journal of 
Coll. & Univ. L. 567 (2012) (arguing that ``due process--broadly 
defined as an inclusive mechanism for disciplined and impartial 
decision making--is essential to the educational aims of 
contemporary higher education and to fostering a sense of legitimacy 
in college and university policies.'').
---------------------------------------------------------------------------

    At least one commenter supported the Sec.  106.45 grievance process 
as a lawful method of implementing Title IX's directive that the 
Department ``effectuate the provisions of'' Title IX, citing 20 U.S.C. 
1681 and 1682, arguing that the Department's proposed grievance 
process: Adopts procedures designed to reduce or eliminate sex 
discrimination; prevents violations of substantive non-discrimination 
mandates; and constitutes a reasonable means of guarding against sex 
discrimination and unlawful retaliation, particularly because the Sec.  
106.45 requirements are sex neutral and narrowly tailored to prevent 
sex discrimination. One commenter asserted with approval that the Sec.  
106.45 grievance process not only expressly prohibits bias and 
conflicts of interest, but also promotes full and fair adversarial 
procedures and requires decision-makers to give reasons that explain 
their decisions--all of which have been shown to prevent biased 
outcomes.
    One commenter suggested improving Sec.  106.45 by clarifying 
whether the procedures in the ``investigations'' section apply 
throughout the entire grievance process or only to the investigation 
portion of a grievance process. Another commenter expressed concern 
that recipients wishing to avoid applying the Sec.  106.45 grievance 
process will process complaints about sexual misconduct outside their 
Title IX offices under non-Title IX code of conduct provisions and 
suggested the Department take action to ensure that recipients cannot 
circumvent Sec.  106.45 by charging students with non-Title IX student 
conduct code violations. One commenter asked the Department to clarify 
whether Sec.  106.45 applies to non-sexual harassment sex 
discrimination complaints.
    Discussion: The Department appreciates the variety of reasons for 
which commenters expressed support for the Sec.  106.45 grievance 
process. The provisions in Sec.  106.45 are grounded in principles of 
due process to promote equitable treatment of complainants and 
respondents and protect each individual involved in a grievance process 
without bias against an individual's sex, race, ethnicity, 
socioeconomic status, or other characteristics, by focusing the 
proceeding on unbiased, impartial determinations of fact based on 
relevant evidence. The Department understands that some commenters 
believe Sec.  106.45 primarily benefits women and others believe such 
provisions primarily benefit men; however, the Department agrees with 
still other commenters who support Sec.  106.45 because its procedural 
protections provide all complainants and respondents with a consistent, 
reliable process without regard to sex. The Department will enforce 
Sec.  106.45 in a manner that does not discriminate based on sex. The 
Department agrees that due process of law exists to protect all 
individuals, and disagrees with commenters who claim that only guilty 
people need due process protections; the evolution of the American 
concept of due process of law has revolved around recognition that for 
justice to be done, procedural protections must be offered to those 
accused of even the most heinous offenses--precisely because only 
through a fair process can a just conclusion of responsibility be made. 
Further, the Sec.  106.45 grievance process grants procedural rights to 
complainants and respondents so that both parties benefit from strong, 
clear due process protections.
    In response to a commenter's request, the final regulations include 
two changes to clarify that procedures and requirements listed in Sec.  
106.45 apply throughout the entirety of a grievance process. First, the 
Department uses the phrase ``grievance process'' and ``a grievance 
process that complies with Sec.  106.45'' throughout the final 
regulations rather than ``grievance procedures'' or ``due process 
protections'' to reinforce that the entirety of Sec.  106.45 applies 
when a formal complaint necessitates a grievance process. Second, and 
in particular response to the commenter's concern, the final 
regulations revise the investigation portion of Sec.  106.45 to begin 
with the phrase ``When investigating a formal complaint, and throughout 
the grievance process, a recipient must . . .'' (emphasis added) to 
clarify that the procedures and protections in Sec.  106.45(b)(5) apply 
to investigations but also throughout the grievance process.
    The Department appreciates the commenter's concern that Sec.  
106.45 not be circumvented by processing sexual harassment complaints 
under non-Title IX provisions of a recipient's code of conduct. The 
definition of ``sexual harassment'' in Sec.  106.30 constitutes the 
conduct that these final regulations, implementing Title IX, address. 
Allegations of conduct that do not meet the definition of ``sexual 
harassment'' in Sec.  106.30 may be addressed by the recipient under 
other provisions of the recipient's code of conduct, and we have 
revised Sec.  106.45(b)(3) to clarify that intent; however, where a 
formal complaint alleges conduct that meets the Title IX definition of 
``sexual harassment,'' a recipient must comply with Sec.  106.45.\452\
---------------------------------------------------------------------------

    \452\ Section 106.45(b) (``For the purpose of addressing formal 
complaints of sexual harassment, a recipient's grievance process 
must comply with the requirements of this section.'').
---------------------------------------------------------------------------

    In response to a commenter's request for clarification, Sec.  
106.45 applies to formal complaints alleging sexual harassment under 
Title IX, but not to complaints alleging sex discrimination that does 
not constitute sexual harassment (``non-sexual harassment sex 
discrimination''). Complaints of non-sexual harassment sex 
discrimination may be filed with a recipient's Title IX Coordinator for 
handling under the ``prompt and equitable'' grievance procedures that 
recipients must adopt and publish pursuant to Sec.  106.8(c).
    Changes: To clarify that the ten groups of provisions that comprise 
Sec.  106.45 \453\ apply as a cohesive whole to the handling of a 
formal complaint of sexual harassment, the Department has changed 
terminology throughout the final regulations to refer to ``a grievance 
process complying with Sec.  106.45'' (for example, in Sec.  
106.44(a)), and uses the phrase ``grievance process'' rather than 
``grievance procedures'' within Sec.  106.45. Additionally, Sec.  
106.45(b)(5) now clarifies that the procedures a recipient must follow 
during investigation of a formal complaint also must apply throughout 
the entire grievance process.
---------------------------------------------------------------------------

    \453\ See the ``Summary of Sec.  106.45'' subsection of the 
``Role of Due Process in the Grievance Process'' section of this 
preamble.
---------------------------------------------------------------------------

    Comments: Two commenters representing trade associations of men's 
fraternities and women's sororities requested that the Department 
specify that an individual's Title IX sexual harassment violation must 
be

[[Page 30096]]

adjudicated as an individual case unless specific evidence clearly 
implicates group responsibility, in which case the recipient must apply 
a separate grievance process (with the same due process protections 
contained in Sec.  106.45) to adjudicate group or organizational 
responsibility. These commenters asserted that in the past few years 
more than 20 postsecondary institutions have suspended entire systems 
of fraternities and sororities upon reports of a group member sexually 
harassing a complainant, and that such action chills and deters victims 
from reporting sexual harassment because some victims do not wish to 
see broad groups of people punished for the wrongdoing of an individual 
perpetrator.
    One commenter supported Sec.  106.45 but asked the Department to 
require recipients to punish individuals who make false accusations.
    Discussion: The final regulations address recipients' obligations 
to respond to sexual harassment, and Sec.  106.45 obligates a recipient 
to follow a consistent grievance process to investigate and adjudicate 
allegations of sexual harassment. In Sec.  106.30, ``respondent'' is 
defined as ``an individual who has been reported to be the perpetrator 
of conduct that could constitute sexual harassment.'' The Sec.  106.45 
grievance process, therefore, contemplates a proceeding against an 
individual respondent to determine responsibility for sexual 
harassment.\454\ The Department declines to require recipients to apply 
Sec.  106.45 to groups or organizations against whom a recipient wishes 
to impose sanctions arising from a group member being accused of sexual 
harassment because such potential sanctions by the recipient against 
the group do not involve determining responsibility for perpetrating 
Title IX sexual harassment but rather involve determination of whether 
the group violated the recipient's code of conduct. Application of non-
Title IX provisions of a recipient's code of conduct lies outside the 
Department's authority under Title IX. For the same reason, the 
Department declines to require a recipient to punish individuals who 
make false accusations, even if the accusations involve sexual 
harassment. An individual, or group of individuals, who believe a 
recipient has treated them differently on the basis of sex in a manner 
prohibited under Title IX may file a complaint of sex discrimination 
with the recipient's Title IX Coordinator for handling under the 
``prompt and equitable'' grievance procedures recipients must adopt and 
publish pursuant to Sec.  106.8(c).
---------------------------------------------------------------------------

    \454\ As discussed in the ``Dismissal and Consolidation of 
Formal Complaints'' subsection of the ``Section 106.45 Recipient's 
Response to Formal Complaints'' section of this preamble, Sec.  
106.45(b)(4) gives recipients the discretion to consolidate formal 
complaints involving multiple parties where the allegations of 
sexual harassment arise from the same facts or circumstances; in 
such consolidated matters, the grievance process applies to more 
than one complainant and/or more than one respondent, but each party 
is still an ``individual'' and not a group or organization.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Many commenters expressed concern that the Sec.  106.45 
grievance process unduly restricts recipients' flexibility and 
discretion in structuring and applying recipients' codes of conduct and 
that it ignores unique needs of the wide array of schools, colleges, 
and universities that differ in size, location, mission, public or 
private status, and resources, and imposes a Federal one-size-fits-all 
mandate on recipients. In support of granting flexibility and 
discretion to recipients, several commenters pointed the Department to 
Federal and State court opinions for the proposition that the internal 
decisions of colleges and universities, including academic and 
disciplinary matters, are given considerable deference by courts.\455\
---------------------------------------------------------------------------

    \455\ Commenters cited, e.g.: Regents of Univ. of Mich. v. 
Ewing, 474 U.S. 214, 225 (1985); New Jersey v. T.L.O., 469 U.S. 325 
(1985); Doe v. Hamilton Cnty. Bd. of Educ., 329 F. Supp. 3d 543, 470 
(E.D. Tenn. 2018).
---------------------------------------------------------------------------

    Many commenters expressed concerns that the Sec.  106.45 grievance 
process is too quasi-judicial to be applied in a setting where schools 
and colleges are not courts of law and that it ignores the educational 
purpose of school discipline. A few commenters requested that the 
Department incorporate more features of legal and court systems into 
Sec.  106.45, including importing the Federal Rules of Evidence, the 
Federal Rules of Civil Procedure, and the Federal Rules of Criminal 
Procedure, and some of the rights afforded to criminal defendants under 
the U.S. Constitution such as protection against double jeopardy, 
protection against self-incrimination, and provision of public 
defenders (or provision of attorneys for both parties in a school-level 
Title IX proceeding).
    Many commenters objected to Sec.  106.45 on the ground that it will 
be burdensome and costly for many recipients to adopt and implement.
    Some commenters believed that Sec.  106.45 heightens the 
adversarial aspects of a grievance process, and others asserted that 
increasing the adversarial nature of the process undermines Title IX as 
a civil rights mechanism. Some commenters asserted that adversarial 
proceedings advantage students with greater financial resources who can 
afford to hire an attorney over socioeconomically disadvantaged 
students.
    Discussion: The Department acknowledges the vast diversity among 
schools, colleges, and universities, the variety of systems 
historically used to enforce codes of conduct, and the desirability of 
each recipient retaining flexibility and discretion to manage its own 
affairs. With respect to Title IX sexual harassment, however, 
recipients are not simply enforcing their own codes of conduct; rather, 
they are complying with a Federal civil rights law, the protections and 
benefits of which extend uniformly to every person in the education 
program or activity of a recipient of Federal financial assistance. The 
need for Title IX to be consistently, predictably enforced weighs in 
favor of Federal rules standardizing the investigation and adjudication 
of sexual harassment allegations under these final regulations, 
implementing Title IX.
    The Department agrees with commenters that numerous Federal and 
State court opinions confirm the proposition that schools, colleges, 
and universities deserve considerable deference as to their internal 
affairs including academic and disciplinary decisions. The final 
regulations respect the right of recipients to make such decisions 
without being second guessed by the Department. The final regulations 
do not address recipients' academic decisions (including curricula, or 
dismissals for failure to meet academic standards), and do not second 
guess disciplinary decisions. The Department does not require 
disciplinary sanctions after a determination of responsibility, and 
does not prescribe any particular form of sanctions.\456\ Rather, Sec.  
106.45 prescribes a grievance process focused on reaching an accurate 
determination regarding responsibility so that recipients and the 
Department can

[[Page 30097]]

ensure that victims of sexual harassment receive remedies designed to 
restore or preserve a victim's equal access to the recipient's 
education program or activity. Because Sec.  106.45 provides a 
grievance process designed to effectuate the purpose of Title IX, a 
Federal civil rights statute, the Title IX grievance process is not 
purely an internal decision of the recipient. The Department believes 
that the Sec.  106.45 grievance process will promote consistency, 
transparency, and predictability for students, employees, and 
recipients, ensuring that enforcement of Title IX sexual harassment 
rules does not vary needlessly from school to school or college to 
college. The Department notes that courts have traditionally 
distinguished between student dismissal for misconduct, where more due 
process is required, and dismissal for academic failure, where less due 
process is owed, because of the subjectivity of a school's conclusion 
that a student has failed to meet academic standards. Where misconduct 
is at issue, however, conclusions about whether the misconduct took 
place involve objective factual determinations rather than subjective 
academic judgments, and procedures rooted in fundamental due process 
principles can ``safeguard'' the accuracy of determinations about 
misconduct.\457\
---------------------------------------------------------------------------

    \456\ The Department acknowledges that this approach departs 
from the 2001 Guidance, which stated that where a school has 
determined that sexual harassment occurred, effective corrective 
action ``tailored to the specific situation'' may include particular 
sanctions against the respondent, such as counseling, warning, 
disciplinary action, or escalating consequences. 2001 Guidance at 
16. For reasons described throughout this preamble, the final 
regulations modify this approach to focus on remedies for the 
complainant who was victimized rather than on second guessing the 
recipient's disciplinary sanction decisions with respect to the 
respondent. However, the final regulations are consistent with the 
2001 Guidance's approach inasmuch as Sec.  106.45(b)(1)(i) clarifies 
that ``remedies'' may consist of individualized services similar to 
those described in Sec.  106.30 as ``supportive measures'' except 
that remedies need not avoid disciplining or burdening the 
respondent.
    \457\ Lisa L. Swem, Due Process Rights in Student Disciplinary 
Matters, 14 Journal of Coll. & Univ. L. 359, 361-62 (1987) (citing 
Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78 (1978) 
where the Supreme Court held that procedures leading to medical 
student's dismissal for failing to meet academic standards did not 
violate due process of law under the Fourteenth Amendment) (noting 
that courts often distinguish between student dismissal for 
misconduct, where more due process is required, and dismissal for 
academic failure, where less due process is owed, because of the 
subjectivity of a school's conclusion that a student has failed to 
meet academic standards); Horowitz, 435 U.S. at 95 fn. 5 (Powell, 
J., concurring) (``A decision relating to the misconduct of a 
student requires a factual determination as to whether the conduct 
took place or not. The accuracy of that determination can be 
safeguarded by the sorts of procedural protections traditionally 
imposed under the Due Process Clause.'').
---------------------------------------------------------------------------

    Within the standardized Sec.  106.45 grievance process, recipients 
retain significant flexibility and discretion, including decisions to: 
Designate the reasonable time frames that will apply to the grievance 
process; use a recipient's own employees as investigators and decision-
makers or outsource those functions to contractors; determine whether a 
party's advisor of choice may actively participate in the grievance 
process; select the standard of evidence to apply in reaching 
determinations regarding responsibility; use an individual decision-
maker or a panel of decision-makers; offer informal resolution options; 
impose disciplinary sanctions against a respondent following a 
determination of responsibility; and select procedures to use for 
appeals.
    The Department agrees with commenters that schools, colleges, and 
universities are educational institutions and not courts of law. The 
Sec.  106.45 grievance process does not attempt to transform schools 
into courts; rather, the prescribed framework provides a structure by 
which schools reach the factual determinations needed to discern when 
victims of sexual harassment are entitled to remedies. The Department 
declines to import into Sec.  106.45 comprehensive rules of evidence, 
rules of civil or criminal procedure, or constitutional protections 
available to criminal defendants. The Department recognizes that 
schools are neither civil nor criminal courts, and acknowledges that 
the purpose of the Sec.  106.45 grievance process is to resolve formal 
complaints of sexual harassment in an education program or activity, 
which is a different purpose carried out in a different forum from 
private lawsuits in civil courts or criminal charges prosecuted by the 
government in criminal courts. The Department believes that the final 
regulations prescribe a grievance process with procedures fundamental 
to a truth-seeking process reasonably adapted for implementation in an 
education program or activity.
    The Department understands commenters' objections that Sec.  106.45 
will be burdensome and costly for many recipients to adopt and 
implement. The Department also appreciates that many of these 
commenters, and additional commenters, recognized that receipt of 
Federal financial assistance requires recipients to comply with 
regulations effectuating Title IX's non-discrimination mandate and that 
the benefits of protecting civil rights outweigh the monetary costs of 
compliance. While the Department is required to estimate the benefits 
and costs of every regulation, and has considered those benefits and 
costs for these final regulations, our decisions regarding the final 
regulations rely on legal and policy considerations designed to 
effectuate Title IX's civil rights objectives, and not on the estimated 
cost likely to result from these final regulations.
    The Department further acknowledges commenters' concerns that 
schools, colleges, and universities exist primarily to educate, and are 
not courts with a primary purpose, focus, or expertise in administering 
proceedings to resolve factual disputes. Many commenters expressed a 
similar concern, that recipients may view a recipient's code of conduct 
as an educational process rather than a punitive process, and these 
recipients are thus uncomfortable with a grievance process premised on 
adversarial aspects of resolving the truth of factual allegations. With 
respect to Title IX sexual harassment, however, in order to carry out a 
recipient's responsibility to provide appropriate remedies to victims 
suffering from that form of sex discrimination, the recipient must 
administer a grievance process designed to reach reliable factual 
determinations and do so in a manner free from sex-based bias. In the 
context of sexual harassment that process is often inescapably 
adversarial in nature where contested allegations of serious misconduct 
carry high stakes for all participants. The standardized framework of 
the Sec.  106.45 grievance process will thus assist recipients in 
complying with the recipients' Title IX obligation to provide remedies 
for sexual harassment victims when a respondent is found responsible 
for sexual harassment, by providing recipients with a prescribed 
structure for resolving highly contested factual disputes between 
members of the recipient's own community consistent with due process 
principles, in recognition that recipients may not already have such a 
structure in place.
    Recipients retain the right and ability to use the disciplinary 
process as an educational tool rather than a punitive tool because the 
Sec.  106.45 grievance process leaves recipients with wide discretion 
to utilize informal resolution processes \458\ and does not mandate or 
second guess disciplinary sanctions.\459\ Rather, the Sec.  106.45 
grievance process focuses on the purpose of Title IX: To give 
individuals protections against discriminatory practices and ensure 
that recipients provide victims of sexual harassment with remedies to 
help overcome the denial of equal access to education caused by sex 
discrimination in the form of sexual harassment.\460\
---------------------------------------------------------------------------

    \458\ Section 106.45(b)(9).
    \459\ Section 106.44(b)(2).
    \460\ As discussed throughout this preamble, including in the 
``Section 106.44(a) Deliberate Indifference Standard'' subsection of 
the ``Section 106.44 Recipient's Response to Sexual Harassment, 
Generally'' section of this preamble, the final regulations also 
mandate that recipients offer supportive measures to complainants 
with or without a formal complaint so that complainants receive 
meaningful assistance from their school in restoring or preserving 
equal access to education even in situations that do not result in 
an investigation and adjudication under Sec.  106.45.
---------------------------------------------------------------------------

    The Department disagrees with commenters who believe that Sec.  
106.45

[[Page 30098]]

heightens the adversarial nature of the grievance process. The 
Department believes that sexual harassment allegations inherently 
present an adversarial situation; as some commenters pointed out, 
campus sexual misconduct situations often present plausible competing 
narratives under circumstances that pose challenges to reaching 
accurate factual determinations.\461\ A grievance process that 
standardizes procedures by which parties participate equally serves the 
purpose of reaching reliable determinations resolving factual disputes 
presented in formal complaints alleging sexual harassment, in a manner 
free from sex-based bias, and increasing confidence in the outcomes of 
such cases. Acknowledging that sexual harassment allegations present 
adversarial circumstances and that parties may benefit from guidance, 
advice, and assistance in such a setting, the Department requires 
recipients to allow the parties to select advisors of choice to assist 
each party throughout the grievance process.\462\ In recognition that 
Title IX governs recipients, not parties, the Department obligates the 
recipient to carry both the burden of proof and the burden of 
collecting evidence sufficient to reach a determination regarding 
responsibility, while also providing parties equal opportunity (but not 
the burden or obligation) to gather and present witnesses and other 
evidence, review and challenge the evidence collected, and question 
other parties and witnesses.\463\
---------------------------------------------------------------------------

    \461\ See, e.g., EduRisk by United Educators, Confronting Campus 
Sexual Assault: An Examination of Higher Education Claims 1 (2015) 
(``Recent legal and regulatory mandates require virtually all 
colleges and universities to investigate and adjudicate reports of 
sexual assault. An analysis of claims reported to United Educators 
(UE) reveals that institutions respond to cases of sexual assault 
that the criminal justice system often considers too difficult to 
succeed at trial and obtain a conviction. Our data indicates these 
challenging cases involve little or no forensic evidence, delays in 
reporting, use of alcohol, and differing accounts of consent.'').
    \462\ Section 106.45(b)(5)(iv).
    \463\ Section 106.45(b)(5)(i) through (vii); Sec.  106.45(b)(6). 
We also note that Sec.  106.45(b)(9) gives recipients the discretion 
to offer and facilitate informal resolution processes, such as 
mediation or restorative justice, subject to each party voluntarily 
agreeing after giving informed, written consent. Informal resolution 
may present a way to resolve sexual harassment allegations in a less 
adversarial manner than the investigation and adjudication 
procedures that comprise the Sec.  106.45 grievance process. 
Informal resolution may only be offered after a formal complaint has 
been filed, so that the parties understand what the grievance 
process entails and can decide whether to voluntarily attempt 
informal resolution as an alternative. Recipients may never require 
any person to participate in information resolution, and may never 
condition enrollment, employment, or enjoyment of any other right or 
privilege upon agreeing to informal resolution. Informal resolution 
is not an option to resolve allegations that an employee sexually 
harassed a student.
---------------------------------------------------------------------------

    The Department does not agree that an adversarial process runs 
contrary to Title IX as a civil rights mechanism. To the extent that 
commenters raising this concern believe that adversarial systems, 
historically or generally, disadvantage people already marginalized due 
to sex, race, ethnicity, and other characteristics, the Department will 
enforce all provisions of Sec.  106.45 without regard to any party's 
sex, race, ethnicity, or other characteristic, and expects recipients 
to implement Sec.  106.45 without bias of any kind. The Department 
further notes that the Sec.  106.45 grievance process is one particular 
part of a recipient's response to a formal complaint; Sec.  106.44(a) 
obligates a recipient to provide a prompt, non-deliberately indifferent 
response to each complainant including offering supportive measures, 
whether or not the complainant files a formal complaint or participates 
in a Sec.  106.45 grievance process. The Department believes that Sec.  
106.45 serves the important purpose of effectuating Title IX as a civil 
rights non-discrimination mandate, and the final regulations provide 
for complainants to receive supportive measures to preserve or restore 
equal access to education even where a complainant does not wish to 
participate in the adversarial aspects of a Sec.  106.45 grievance 
process.
    The Department acknowledges that a party's choice of advisor may be 
limited by whether the party can afford to hire an advisor or must rely 
on an advisor to assist the party without fee or charge. The Department 
wishes to emphasize that the status of any party's advisor (i.e., 
whether a party's advisor is an attorney or not), the financial 
resources of any party, and the potential of any party to yield 
financial benefits to a recipient, must not affect the recipient's 
compliance with Sec.  106.45, including the obligation to objectively 
evaluate relevant evidence and use investigators and decision-makers 
free from bias or conflicts of interest.
    Changes: In response to comments concerning specific topics 
addressed in Sec.  106.45, the Department has made changes in the final 
regulations that increase recipients' flexibility and discretion while 
preserving the benefits of a standardized grievance process that 
promotes reliable fact-finding.\464\
---------------------------------------------------------------------------

    \464\ See, e.g., the discussion in the ``Other Language/
Terminology Comments'' subsection of the ``Section 106.30 
Definitions'' section of this preamble (noting that recipients may 
decide whether to calculate time frames using calendar days, school 
days, or other method); Sec.  106.45(b)(6)(i) (allowing, but not 
requiring, live hearings to be held virtually through use of 
technology); Sec.  106.45(b)(5)(vi) (removing the requirement that 
evidence in the investigation be provided to the parties using a 
file-sharing platform); Sec.  106.45(b)(7)(i) (removing the 
requirement that the preponderance of the evidence standard may be 
used only if that standard is also used for recipients' non-sexual 
harassment code of conduct violations).
---------------------------------------------------------------------------

    Comments: Some commenters argued that educational institutions 
should not have the authority to adjudicate criminal accusations, that 
sexual assault and harassment should be treated like a crime, and that 
investigations into sex crimes should be solely in the hands of law 
enforcement (such as the police, district attorneys, State attorney's 
offices, or U.S. Department of Justice). Some commenters believed the 
alleged victim should be required to report directly to law enforcement 
and schools should facilitate survivors' access to the appropriate 
authorities. Some commenters expressed concern that the proposed rules 
exclude law enforcement from the investigation process. Several 
commenters concluded that student conduct hearings are too different 
from criminal trials to be capable of addressing criminal allegations. 
One commenter believed that universities are incapable of fair 
assessment in criminal sex offense matters because universities have a 
strong desire to be seen as advocates for social change; another 
commenter believed schools have already made a mockery out of campus 
sexual assault proceedings shown by a practice the commenter 
characterized as ``the first to accuse wins'' that has led to an 
epidemic of false allegations. One commenter argued that the Department 
must decide if recipients can defer completely to the criminal justice 
system regarding sexual assault, or else require recipients to 
implement procedures that are fair, transparent, and adhere to 
constitutional protections. One commenter believed that alleged 
assailants should be held responsible in a court of law and that 
victims should have the right to pursue court action at any point in 
time.
    Some commenters argued that the proposed rules are too similar to 
criminal court procedures that should not apply to Title IX proceedings 
because a university disciplinary proceeding does not result in loss of 
life or liberty for the respondent. Other commenters expressed support 
for the proposed rules on the belief that the proposed rules require 
many due process protections existing in criminal proceedings, which 
these commenters supported because the high

[[Page 30099]]

consequences in Title IX cases justify procedural safeguards similar to 
those in court systems. One commenter suggested that before resorting 
to the formal ``court-like'' proceedings in the proposed rules, parties 
to a sexual assault allegation should always first attempt mediation.
    Several commenters suggested that the Department establish 
``regional centers'' for investigation and adjudication of Title IX 
sexual harassment (or at least as to sexual assault), or at least 
advise colleges and universities that such recipients can join with 
other similar institutions in their geographic area to form regional 
centers charged with conducting the investigations and adjudications 
required under the proposed rules. These commenters asserted using such 
a regional center model may benefit recipients because instead of 
performing investigations and conducting hearings with recipients' own 
personnel (who may not have sufficient training and experience, and who 
have inherent potential conflicts of interest), recipients could 
outsource these functions to centers employing personnel with 
sufficient expertise and experience to perform investigations and 
adjudications without conflicts of interest, impartially, and in 
compliance with the final regulations. One commenter examined 
variations on potential models for such regional centers, noting that 
one model might involve a consortium of institutions forming 
independent 501(c)(3) organizations to cooperatively handle member 
institutions' needs for investigation and adjudication of Title IX 
sexual harassment, and a variation of that model would involve those 
functions handled under the auspices of State government (such as a 
State attorney general's office); this commenter urged the Department 
to remind recipients that such models exist as possible methods for 
better handling obligations under these final regulations, contended 
that suggesting such models without mandating them is consistent with 
the Department's overall approach of not dictating specific details 
more than might be reasonably necessary, and expressed the belief that 
different types of regional centers with different structures can be 
tried out and continually improved and refined for what works best in 
practice for different types of institutions, thus innovating better 
ways for recipients to competently handle Title IX sexual harassment 
allegations.
    Discussion: The Department understands the concerns of some 
commenters who believe that educational institutions should not have 
authority to adjudicate criminal accusations and that law enforcement 
and criminal justice systems are the appropriate bodies to investigate, 
prosecute, and penalize criminal charges. However, the Supreme Court 
has held that sexual misconduct that constitutes a crime under State 
law may also constitute sex discrimination under Title IX, and the 
Department has the responsibility of enforcing Title IX.\465\ The 
Department is not regulating sex crimes, per se, but rather is 
addressing a type of discrimination based on sex. That some Title IX 
sexual harassment might constitute criminal conduct does not alter the 
importance of identifying and responding to sex discrimination that is 
prohibited by Title IX. By requiring recipients to address sex 
discrimination that takes the form of sexual harassment in a 
recipient's education program or activity, the Department is not 
requiring recipients to adjudicate criminal charges or replace the 
criminal justice system. Rather, the Department is requiring recipients 
to adjudicate allegations that sex-based conduct has deprived a 
complainant of equal access to education and remedy such situations to 
further Title IX's non-discrimination mandate.
---------------------------------------------------------------------------

    \465\ See, e.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 
U.S. 274, 278, 292 (1998) (holding that a sex offense by a teacher 
against a student--and noting that the offense was one for which the 
teacher had been arrested--constituted sex discrimination prohibited 
under Title IX).
---------------------------------------------------------------------------

    The Department recognizes that some Title IX sexual harassment also 
constitutes criminal conduct under a variety of State laws and that the 
potential exists for the same set of allegations to result in 
proceedings under both Sec.  106.45 and criminal laws. Where 
appropriate, the final regulations acknowledge this intersection; \466\ 
however, a recipient cannot discharge its legal obligation to provide 
education programs or activities free from sex discrimination by 
referring Title IX sexual harassment allegations to law enforcement (or 
requiring or advising complainants to do so),\467\ because the purpose 
of law enforcement differs from the purpose of a recipient offering 
education programs or activities free from sex discrimination. Whether 
or not particular allegations of Title IX sexual harassment also meet 
definitions of criminal offenses, the recipient's obligation is to 
respond supportively to the complainant and provide remedies where 
appropriate, to ensure that sex discrimination does not deny any person 
equal access to educational opportunities. Nothing in the final 
regulations prohibits or discourages a complainant from pursuing 
criminal charges in addition to a Sec.  106.45 grievance process.
---------------------------------------------------------------------------

    \466\ Section 106.45(b)(1)(v) provides that the recipient's 
designated reasonably prompt time frame for completion of a 
grievance process is subject to temporary delay or limited extension 
for good cause, which may include concurrent law enforcement 
activity. Section 106.45(b)(6)(i) provides that the decision-maker 
cannot draw any inference about the responsibility or non-
responsibility of the respondent solely based on a party's failure 
to appear or answer cross-examination questions at a hearing; this 
provision applies to situations where, for example, a respondent is 
concurrently facing criminal charges and chooses not to appear or 
answer questions to avoid self-incrimination that could be used 
against the respondent in the criminal proceeding. Further, subject 
to the requirements in Sec.  106.45 such as that evidence sent to 
the parties for inspection and review must be directly related to 
the allegations under investigation, and that a grievance process 
must provide for objective evaluation of all relevant evidence, 
inculpatory and exculpatory, nothing in the final regulations 
precludes a recipient from using evidence obtained from law 
enforcement in a Sec.  106.45 grievance process. Sec.  
106.45(b)(5)(vi) (specifying that the evidence directly related to 
the allegations may have been gathered by the recipient ``from a 
party or other source'' which could include evidence obtained by the 
recipient from law enforcement) (emphasis added); Sec.  
106.45(b)(1)(ii).
    \467\ The 2001 Guidance takes a similar position: ``In some 
instances, a complainant may allege harassing conduct that 
constitutes both sex discrimination and possible criminal conduct. 
Police investigations or reports may be useful in terms of fact 
gathering. However, because legal standards for criminal 
investigations are different, police investigations or reports may 
not be determinative of whether harassment occurred under Title IX 
and do not relieve the school of its duty to respond promptly and 
effectively.'' 2001 Guidance at 22.
---------------------------------------------------------------------------

    The Department disagrees with commenters who argued that recipients 
are not capable of addressing Title IX sexual harassment allegations 
when such allegations also constitute allegations of criminal activity. 
The Department has carefully constructed the Sec.  106.45 grievance 
process for application by a recipient in an education program or 
activity keeping in mind that schools, colleges, and universities exist 
first and foremost to educate and do not function as courts of law. The 
Department understands commenters' assertions that some recipients 
desire to advocate social change and that some have conducted unfair, 
biased sexual misconduct proceedings; however, the Department believes 
that the Sec.  106.45 grievance process reflects a standardized 
framework that recipients are capable of applying to reach fair, 
unbiased determinations about sex discrimination in the form of sexual 
harassment in recipients' education programs or activities. The 
procedures required under Sec.  106.45 are those the Department has 
determined are most likely to lead to reliable outcomes in the context 
of Title IX sexual harassment. The Sec.  106.45

[[Page 30100]]

grievance process is inspired by principles of due process; however, 
the final regulations do not incorporate by reference constitutional 
due process required for criminal defendants, precisely because 
recipients are reaching conclusions about sex discrimination in a very 
different context than criminal courts reaching conclusions about 
defendants' guilt or innocence of criminal charges. While the final 
regulations permit recipients wide discretion to facilitate informal 
resolution of formal complaints of sexual harassment,\468\ the 
Department declines to require parties to attempt mediation before 
initiating the formal grievance process. Every party should know that a 
formal, impartial, fair process is available to resolve Title IX sexual 
harassment allegations; where a recipient believes that parties may 
benefit from mediation or other informal resolution process as an 
alternative to the formal grievance process, the decision to attempt 
mediation or other form of informal resolution should remain with each 
party.
---------------------------------------------------------------------------

    \468\ Section 106.45(b)(9) allows informal resolution processes, 
but only with the written, voluntary consent of both parties, notice 
to the parties about ramifications of such processes, and with the 
exception that no such informal resolution may be offered with 
respect to allegations that an employee sexually harassed a student.
---------------------------------------------------------------------------

    The Department appreciates commenters' recommendations for using 
regional center models and similar models involving voluntary, 
cooperative efforts among recipients to outsource the investigation and 
adjudication functions required under the final regulations. The 
Department believes these models represent the potential for innovation 
with respect to how recipients might best fulfill the obligation to 
impartially reach accurate factual determinations while treating both 
parties fairly. The Department encourages recipients to consider 
innovative solutions to the challenges presented by the legal 
obligation for recipients to fairly and impartially investigate and 
adjudicate these difficult cases, and the Department will provide 
technical assistance for recipients with questions about pursuing 
regional center models.
    Changes: None.
    Comments: Several commenters challenged the Department's legal 
authority to prescribe a standardized grievance process on the ground 
that the Department's charge under Title IX is to prevent sex 
discrimination, not to enforce constitutional due process or ensure 
that respondents are disciplined fairly. These commenters pointed to 
Federal court opinions holding that unfair discipline in a sexual 
harassment proceeding does not, by itself, demonstrate that a 
respondent was subjected to discrimination on the basis of sex, and 
Federal court opinions holding that a university using a ``victim-
centered approach,'' or otherwise allegedly favoring sexual assault 
complainants over respondents, is not necessarily discriminating 
against respondents based on sex.\469\ These commenters argued that the 
Department cannot therefore prescribe a grievance process premised on 
the fairness of discipline as a way of furthering Title IX's 
prohibition against sex discrimination.
---------------------------------------------------------------------------

    \469\ See, e.g., cases cited by commenters referenced in the 
``Section 106.45(a) Treatment of Complainants or Respondents Can 
Violate Title IX'' subsection of the ``General Requirements for 
Sec.  106.45 Grievance Process'' subsection of the ``Section 106.45 
Recipient's Response to Formal Complaints'' section of this 
preamble.
---------------------------------------------------------------------------

    At least one commenter argued that the Supreme Court held in Gebser 
that a school's failure to adopt grievance procedures for resolving 
sexual harassment does not itself constitute discrimination under Title 
IX, and the commenter argued that this shows that failure to have any 
grievance procedures at all, much less a grievance process with 
specific procedural protections, does not violate Title IX absent a 
showing that such a failure was motivated by a student's sex.
    Several commenters opposed Sec.  106.45 by noting that Federal 
courts have not required the particular procedures required under Sec.  
106.45, and challenging the Department's rationale for prescribing a 
grievance process that provides more procedural protections than the 
Supreme Court has required under constitutional due process. Some 
commenters argued that the Department's authority under Title IX 
permits the Department to regulate recipients' grievance procedures 
only to ensure that the formal complaint process does not discriminate 
against any party based on sex.
    Several commenters requested that the Department reserve the 
``stringent'' grievance process required under Sec.  106.45 only for 
complaints that allege sexual assault, involve allegations of violence, 
or otherwise subject a respondent to a potential sanction of expulsion.
    A few commenters asserted that to the extent that bias and lack of 
impartiality in school-level Title IX proceedings have resulted in sex 
discrimination sometimes against women and other times against men, the 
provisions in Sec.  106.45 prohibiting bias, conflicts of interest, and 
sex stereotypes used in training materials, and requiring objective 
evaluation of all relevant evidence and equal opportunity for the 
parties to present, review, and challenge testimony and other evidence, 
will reduce the likelihood that sex discrimination will occur in Title 
IX proceedings because even if school officials harbor intentional or 
unintentional sex-based biases or prejudices, such improper biases and 
prejudices are less likely to affect the handling of the matter when 
the process requires application of procedures grounded in principles 
of due process.
    Some commenters objected to the use of the words ``due process'' 
and ``due process protections'' in Sec.  106.45, believing that using 
the term ``due process'' blurs the line between constitutional due 
process owed by recipients that are State actors, and a ``fair 
process'' that all recipients, including private institutions, 
generally owe by contract with students and employees. These commenters 
believe that using the term ``due process'' in Sec.  106.45 will lead 
to confusion and misplaced expectations for students, and possibly lead 
to increased litigation as students try to enforce constitutional due 
process against private institutions that do not owe constitutional 
protections. These commenters suggested that the phrase ``fair 
process'' replace ``due process'' in Sec.  106.45.
    Discussion: The Sec.  106.45 grievance process prescribed by the 
final regulations directly serves the purposes of Title IX by providing 
a framework under which recipients reliably determine the facts of 
sexual harassment allegations in order to provide appropriate remedies 
for victims of sexual harassment when the recipient has determined the 
respondent is responsible. The Department recognizes that some 
recipients are State actors with responsibilities to provide due 
process of law to students and employees under the U.S. Constitution, 
while other recipients are private institutions that do not have 
constitutional obligations to their students and employees. The 
Department believes that conforming to the Sec.  106.45 grievance 
process likely will meet constitutional due process obligations in 
Title IX sexual harassment proceedings, and as the Department has 
recognized in guidance for nearly 20 years, Title IX rights must be 
interpreted consistent with due process guarantees.\470\ However, 
independent of constitutional due process, the purpose of the Sec.  
106.45 grievance process is to provide

[[Page 30101]]

individuals with effective protection from discriminatory practices, 
including remedies for sexual harassment victims, by consistent 
application of procedures that improve perceptions that Title IX sexual 
harassment allegations are resolved fairly, avoid injection of sex-
based biases and stereotypes into Title IX proceedings, and promote 
reliable outcomes.
---------------------------------------------------------------------------

    \470\ 2001 Guidance at 22.
---------------------------------------------------------------------------

    The Department agrees with commenters who asserted that unfair 
imposition of discipline, even in a way that violates constitutional 
due process rights, does not necessarily equate to sex discrimination 
prohibited by Title IX, and this is reflected in the final regulations. 
Section 106.45(a), for example, states that a recipient's treatment of 
a respondent ``may also constitute discrimination on the basis of sex 
under title IX'' (emphasis added). The Sec.  106.45 grievance process 
aims to provide both parties with equal rights and opportunities to 
participate in the process, and to promote impartiality without favor 
to complainants or respondents, both because treating a complainant or 
respondent differently based on sex would violate Title IX, and because 
a process lacking principles of due process risks bias that in the 
context of sexual harassment allegations is likely to involve bias 
based on stereotypes and generalizations on the basis of sex.
    To the extent that the Supreme Court has not held that the specific 
procedures required under Sec.  106.45 are required under 
constitutional due process, Sec.  106.45 is both consistent with 
constitutional due process, and an appropriate exercise of the 
Department's authority to prescribe a consistent framework for handling 
the unique circumstances presented by sexual harassment 
allegations.\471\ For reasons discussed in this preamble with respect 
to each provision in Sec.  106.45, the Department believes that each 
provision appropriately incorporates principles of due process that 
provide individuals with effective protection from discriminatory 
practices, including remedies for sexual harassment victims, by 
improving perceptions that Title IX sexual harassment allegations are 
resolved fairly, avoiding injection of sex-based biases and stereotypes 
into Title IX proceedings, and promoting reliable outcomes.
---------------------------------------------------------------------------

    \471\ See discussion in the ``Role of Due Process in the 
Grievance Process'' section of this preamble.
---------------------------------------------------------------------------

    While commenters correctly observe that the Supreme Court's Title 
IX opinions do not equate failure to adopt a grievance procedure with 
sex discrimination under Title IX,\472\ the Supreme Court has also 
acknowledged that the Department, under its administrative authority to 
enforce Title IX, may impose regulatory requirements (such as adoption 
and publication of grievance procedures) that further the purpose of 
Title IX to prevent recipients of Federal financial assistance from 
engaging in sex discriminatory practices and provide individuals with 
effective protection against sex discriminatory practices.\473\ The 
Department believes that Sec.  106.45 not only incorporates basic 
principles of due process appropriately translated into the particular 
context of sexual harassment in education programs and activities but 
also serves to prevent, reduce, and root out sex-based bias that might 
otherwise cause recipients to favor one party over the other.
---------------------------------------------------------------------------

    \472\ See, e.g., Gebser, 524 U.S. at 291-92.
    \473\ Id. at 292 (``Agencies generally have authority to 
promulgate and enforce requirements that effectuate the statute's 
non-discrimination mandate, 20 U.S.C. 1682, even if those 
requirements do not purport to represent a definition of 
discrimination under the statute.'').
---------------------------------------------------------------------------

    The Department appreciates commenters' recognition that many 
provisions of Sec.  106.45, which serve the purpose of increasing the 
reliability of fact-finding, also decrease the likelihood that sex-
based biases, prejudices, or stereotypes will affect the investigation 
and adjudication process in violation of Title IX's prohibition against 
sex discrimination. The Sec.  106.45 grievance process effectuates 
Title IX's non-discrimination mandate both by reducing the opportunity 
for sex discrimination to impact investigation and adjudication 
procedures through the recipient's own actions during the handling of a 
complaint, and by promoting a reliable fact-finding process so that 
recipients are held liable for providing remedies to victims of sex 
discrimination in the form of sexual harassment perpetrated in the 
recipient's education program or activity. While the Department 
believes that the Sec.  106.45 grievance process provides an 
appropriately fair framework for many types of school disciplinary 
matters, the Department is authorized to prescribe Sec.  106.45 for 
resolution of formal complaints of Title IX sexual harassment because 
consistent processes reaching reliable factual determinations are 
needed in order to provide remedies to sexual harassment victims (to 
further Title IX's purpose) and because Title IX sexual harassment 
allegations inherently invite intentional or unintentional application 
of sex-based assumptions, generalizations, and stereotypes (which 
violate Title IX's non-discrimination mandate).
    The Department declines to apply the Sec.  106.45 grievance process 
only to formal complaints alleging sexual assault, involving 
allegations of violence, or otherwise subjecting a respondent to 
expulsion. As discussed under Sec.  106.44(a) and Sec.  106.30, the 
Department has defined sexual harassment to include three categories of 
misconduct on the basis of sex (quid pro quo harassment by an employee; 
severe, pervasive, and objectively offensive unwelcome conduct; and 
sexual assault, dating violence, domestic violence, or stalking as 
defined under the Clery Act and VAWA). Each of these categories of 
misconduct is a serious violation that jeopardizes a victim's equal 
access to education. Formal complaints alleging any type of sexual 
harassment, as defined in Sec.  106.30, must be handled under a process 
designed to reliably determine the facts surrounding each allegation so 
that recipients provide remedies to victims subjected to that serious 
misconduct. The final regulations do not prescribe any particular form 
of disciplinary sanction for sexual harassment. Therefore, the 
Department declines to apply Sec.  106.45 only when a respondent faces 
expulsion; rather, Sec.  106.45 applies to formal complaints alleging 
Title IX sexual harassment regardless of what potential discipline a 
recipient may impose on a respondent who is found responsible.
    In response to commenters concerned that the term ``due process'' 
or ``due process protections'' needlessly confuses whether the 
Department is referring to a fair process that applies equally to both 
public and private institutions, or constitutional due process that 
only public institutions are required to provide, the final regulations 
use the phrase ``grievance process that complies with Sec.  106.45'' 
instead of ``due process'' or ``due process protections.'' \474\ In 
this way, the Department clarifies that all recipients must, where 
indicated, apply the Sec.  106.45 grievance process, which requires 
procedures the Department believes draw from principles of due process 
but remain distinct from constitutional due process owed by public 
institutions.
---------------------------------------------------------------------------

    \474\ E.g., Sec.  106.8(c); Sec.  106.44(a); Sec.  
106.45(b)(1)(i).
---------------------------------------------------------------------------

    Changes: The final regulations use the phrase ``grievance process 
that complies with Sec.  106.45'' instead of ``due process'' or ``due 
process protections.''
    Comments: A few commenters noted that existing Title IX regulations 
provide

[[Page 30102]]

for prompt and equitable grievance procedures to resolve complaints of 
sex discrimination, and argued that existing regulations and the 2001 
Guidance advising that an equitable grievance procedure means ensuring 
adequate, reliable, and impartial investigations of complaints, have 
long provided adequate due process protections for all parties, and 
thus the more detailed procedural requirements in Sec.  106.45 are 
unnecessary and only serve to protect respondents at the expense of 
complainants. A few commenters pointed out that at least two of the 
Department's Title IX enforcement actions in 2015 and 2016 concluded 
under then-applicable guidance that university complaint resolution 
processes were inequitable for complainants, respondents, or both. 
These commenters argued that this shows that the Department's guidance 
has sufficiently protected each party's right to a fair process.
    Discussion: As discussed in the ``Role of Due Process in the 
Grievance Process'' section of this preamble, the Department in its 
guidance has interpreted the regulatory requirement for recipients to 
adopt equitable grievance procedures to mean such procedures must 
ensure adequate, reliable, and impartial investigations of complaints. 
While the Department still believes that adequate, reliable, and 
impartial investigation of complaints is necessary for the handling of 
sexual harassment complaints under Title IX, setting forth that 
interpretation of equitable grievance procedures in guidance lacks the 
force and effect of law. Furthermore, the Department does not believe 
that codifying the ``adequate, reliable, and impartial investigation of 
complaints'' standard into the final regulations would sufficiently 
promote consistency and reliability because such a conclusory standard 
does not helpfully interpret for recipients what procedures rooted in 
principles of due process are needed to achieve fairness and factual 
reliability in the context of Title IX sexual harassment allegations.
    To the extent that the Department has in the past used enforcement 
actions to identify particular ways in which a recipient's grievance 
process failed to ensure ``adequate, reliable, and impartial 
investigations,'' the enforcement actions and resulting letters of 
finding and resolution agreements apply only to the particular 
recipient under investigation and do not substitute for the 
transparency of regulations that specify the actions required of all 
recipients. Through these final regulations, we seek to provide with 
more certainty that recipients' investigations will be held to 
consistent standards of adequacy, reliability, and impartiality.
    Changes: None.
    Comments: One commenter characterized the requirements of Sec.  
106.45 as elaborate and multitudinous, predicted that many recipients 
will fail to comply with every requirement, and asked the Department to 
answer (i) whether the Department will find a recipient in violation of 
Sec.  106.45 only if the recipient violated a provision with deliberate 
indifference? (ii) Will the Department require parties to preserve 
objections based on a recipient's failure to follow Sec.  106.45 by 
raising the objection before the decision-maker and on appeal? (iii) 
Will any violation of Sec.  106.45 result in the Department requiring 
the recipient to set aside its determination regarding responsibility 
and hold a new hearing, or only if the violation of Sec.  106.45 
affected the outcome?
    Discussion: In response to the commenter's questions, the 
Department will enforce Sec.  106.45 by holding recipients responsible 
for compliance regardless of any intent on the part of the recipient to 
violate Sec.  106.45. The Department notes that under existing 
regulations and OCR enforcement practice, the Department does not 
pursue termination of Federal financial assistance unless a recipient 
refuses to correct a violation after the Department has notified the 
recipient of the violation. The Department will not impose on parties a 
requirement to preserve objections based on a recipient's failure to 
comply with Sec.  106.45, because the recipient's obligation to comply 
exists whether or not the recipient is informed of the violation by a 
party. The corrective action a recipient must take after the Department 
identifies violations of statutory or regulatory requirements depends 
on the facts of each particular enforcement action, and the Department 
cannot predict every circumstance that may present itself in the future 
and, thus, declines to state under which circumstances a Sec.  106.45 
violation may require a recipient to set aside a determination 
regarding responsibility.
    Changes: None.
    Comments: Many commenters believe that due process protections 
unfairly favor respondents over complainants, and expressed concern 
that the proposed rules will cause sexual harassment victims to suffer 
additional trauma because investigations will be biased against 
complainants, will favor harassers over victims, and retraumatize 
survivors of sexual violence. A few commenters shared personal stories 
of feeling deterred from filing a sexual assault complaint because the 
legal process, including the Title IX campus process, would be 
harrowing or intimidating. Some commenters asserted that because 
complainants are disproportionately female, due process that benefits 
respondents constitutes sex discrimination against women.
    Some commenters asserted that treating complainants and respondents 
equally is insufficient to address the reality that sexual violence is 
prevalent throughout American society and because women historically 
have faced biased responses when women report being victims of sexual 
violence, equity under Title IX requires procedures that favor 
complainants. At least one commenter asserted that Title IX exists to 
address systemic gender inequality in education and was not enacted 
from a place of neutrality. A few commenters asserted that because rape 
victims often face blame and disbelief when they try to report being 
raped, and only approximately five in every 1,000 perpetrators of rape 
will face criminal conviction,\475\ the system is already tilted in 
favor of perpetrators and Title IX needs to provide complainants with 
more protections than respondents.
---------------------------------------------------------------------------

    \475\ Commenters cited: Rape, Abuse & Incest National Network 
(RAINN), Campus Sexual Violence: Statistics, https://www.rainn.org/statistics/campus-sexual-violence.
---------------------------------------------------------------------------

    Several commenters asserted that because studies have shown the 
rate of false reports of sexual assault to be low and because rates of 
sexual assault are high, Title IX must offer protections to 
complainants rather than seek to protect rights of respondents. Other 
commenters asserted that the rate of false or unfounded accusations of 
sexual misconduct may be higher than ten percent, and others disputed 
that the prevalence of campus sexual assault is as high as 20 percent.
    Other commenters argued that relatively few respondents found 
responsible for sexual misconduct are actually expelled,\476\ showing 
that the scales are not tipped in favor of complainants because even 
when found responsible, perpetrators are not receiving harsh sanctions.
---------------------------------------------------------------------------

    \476\ Commenters cited: Kristen Lombardi, A Lack of Consequences 
for Sexual Assault, The Center for Public Integrity (Feb. 24, 2010) 
(noting that up to 25 percent of respondents are expelled); Nick 
Anderson, Colleges often reluctant to expel for sexual violence, The 
Washington Post (Dec. 15, 2014) (noting that only 12 percent of 
sanctions against respondents were expulsions).
---------------------------------------------------------------------------

    Commenters asserted that a regulation concerned with avoiding 
violations of respondents' due process rights ignores the way 
complainants are still being pushed out of school due to inadequate,

[[Page 30103]]

unfair responses to their reports of sexual harassment. Several 
commenters described retaliatory, punitive school and college responses 
to girls and women who reported suffering sexual harassment. At least 
one commenter asserted that while data show that boys of color are not 
disciplined in elementary and secondary schools for sexual harassment 
at rates much higher than white boys, data show that girls of color not 
only suffer sexual harassment at higher rates than white girls, but 
also are more likely to have their reports of sexual harassment ignored 
or be blamed or punished for reporting.
    Discussion: The Department disagrees that due process protections 
generally, and the procedures drawn from due process principles in 
Sec.  106.45 particularly, unfairly favor respondents over complainants 
or sexual harassment perpetrators over victims, or that Sec.  106.45 is 
biased against complainants, victims, or women. Section 106.45(a) 
states that a recipient's treatment of a complainant, or a respondent, 
may constitute sex discrimination prohibited by Title IX. Section 
106.45(b)(1)(iii) requires Title IX Coordinators, investigators, 
decision-makers, and individuals who facilitate any informal resolution 
process to be free of bias or conflicts of interest for or against 
complainants or respondents and to be trained on how to serve 
impartially. Section 106.45(b)(1)(ii) precludes credibility 
determinations based on a person's status as a complainant, respondent, 
or witness. With the exceptions noted below, the other provisions of 
Sec.  106.45 also apply equally to both parties. The exceptions are 
three provisions that distinguish between complainants and respondents; 
each exception results from the need to take into account the party's 
position as a complainant or respondent specifically in the context of 
Title IX sexual harassment, to reasonably promote truth-seeking in a 
grievance process particular to sexual harassment allegations. Thus, 
Sec.  106.45(b)(1)(i) requires recipients to treat complainants and 
respondents equitably by providing remedies for a complainant where a 
respondent has been found responsible, and by imposing disciplinary 
sanctions on a respondent only after following a Sec.  106.45 grievance 
process; because remedies concern a complainant and disciplinary 
sanctions concern a respondent, this provision requires equitable 
treatment rather than strictly equal treatment. Section 
106.45(b)(1)(iv) requires recipients to presume the respondent is not 
responsible until conclusion of the grievance process, because such a 
presumption reinforces that the burden of proof remains on recipients 
(not on the respondent, or the complainant) and reinforces correct 
application of the standard of evidence. Section 106.45(b)(6)(i)-(ii) 
protects complainants (but not respondents) from questions or evidence 
about the complainant's prior sexual behavior or sexual predisposition, 
mirroring rape shield protections applied in Federal courts. The Sec.  
106.45 grievance process, therefore, treats complainants and 
respondents equally in nearly every regard, with three exceptions (one 
imposing equitable treatment for both parties, one applicable only to 
respondents, and one applicable only to complainants). The Department 
disagrees with commenters who argued that any provision conferring a 
right or protection only to respondents treats complainants inequitably 
or constitutes sex discrimination against women. The sole provision 
that applies only to respondents (Sec.  106.45(b)(1)(iv)) does not 
treat complainants inequitably because the provision helps ensure that 
the burden of proof remains on the recipient, not on the complainant 
(or respondent), and the presumption serves to reinforce correct 
application of whichever standard of evidence the recipient has 
selected. The Department also notes that any person regardless of sex 
may be a complainant or a respondent, and, thus, provisions that treat 
complainants and respondents equitably based on party status or apply 
only to complainants or only to respondents for the purpose of 
fostering truth-seeking, do not discriminate based on sex but rather 
distinguish interests unique to a person's party status.
    The Department is sensitive to the concerns from commenters that 
the experience of a grievance process may indeed feel traumatizing or 
intimidating to complainants,\477\ yet the facts surrounding sexual 
harassment incidents must be reliably determined in order to provide 
remedies to a victim. In deference to the autonomy of each complainant 
to decide whether to participate in a grievance process, the final 
regulations require recipients to offer supportive measures to each 
complainant whether or not the complainant files a formal complaint or 
otherwise participates in a grievance process.\478\
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    \477\ The Department does not equate the trauma experienced by a 
sexual harassment victim with the experience of a perpetrator of 
sexual harassment or the experience of a person accused of sexual 
harassment. Nonetheless, the Department acknowledges that a 
grievance process may be difficult and stressful for both parties. 
Further, supportive measures may be offered to complainants and 
respondents (see Sec.  106.30 defining ``supportive measures''), and 
Sec.  106.45(b)(5)(iv) requires recipients to provide both parties 
the same opportunity to select an advisor of the party's choice. 
These provisions recognize that the stress of participating in a 
grievance process affects both complainants and respondents and may 
necessitate support and assistance for both parties.
    \478\ Section 106.44(a); Sec.  106.30 (defining ``supportive 
measures'').
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    The Department disagrees that the historical or general societal 
bias against women or against victims of sexual harassment requires or 
justifies a grievance process designed to favor women or complainants. 
Title IX protects every ``person'' (20 U.S.C. 1681) without regard for 
the person's sex or status as a complainant or respondent; the 
statute's use of the word ``person'' and not ``female'' or ``woman'' 
indicates that contrary to a commenter's assertion otherwise, Title IX 
was designed to operate neutrally with respect to the sex of persons 
protected by the non-discrimination mandate.
    Whether or not commenters correctly describe the criminal justice 
system as ``tilted in favor of perpetrators'' demonstrated by data 
showing that only five in every 1,000 perpetrators of rape face 
criminal conviction, the grievance process under Title IX protects 
against, and through enforcement the Department will not tolerate, 
blaming or shaming women or any person pursuing a formal complaint of 
sexual harassment. Section 106.45 is premised on the principle that an 
accurate resolution of each allegation of sexual harassment requires 
objective evaluation of all relevant evidence without bias and without 
prejudgment of the facts. Under Sec.  106.45, neither complainants nor 
respondents are automatically or prematurely believed or disbelieved, 
until and unless credibility determinations are made as part of the 
grievance process.\479\ Implementation of the Sec.  106.45 grievance 
process will increase the likelihood that whatever biases and 
prejudices exist in criminal justice systems will not affect Title IX 
grievance processes because Title IX Coordinators, investigators, 
decision-makers and any person who facilitates an informal resolution 
process must receive training on how to serve impartially, including by 
avoiding prejudgment of the facts at issue,

[[Page 30104]]

conflicts of interest, and bias under Sec.  106.45(b)(1)(iii). 
Additionally, either party may file an appeal on the ground that the 
Title IX Coordinator, investigator, or decision-maker had a conflict of 
interest or bias for or against complainants or respondents generally, 
or the individual complainant or respondent, that affected the outcome 
of the matter, under Sec.  106.45(b)(8). Accordingly, proceedings to 
investigate and adjudicate a formal complaint of sexual harassment 
under these final regulations are designed to reach accurate 
determinations regarding responsibility so that students and employees 
are protected from sex discrimination in the form of sexual harassment.
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    \479\ Contrary to many commenters' assertions, the presumption 
of non-responsibility does not permit (much less require) recipients 
automatically or prematurely to ``believe respondents'' or 
``disbelieve complainants.'' See discussion in the ``Section 
106.45(b)(1)(iv) Presumption of Non-Responsibility'' subsection of 
the ``General Requirements for Sec.  106.45 Grievance Process'' 
subsection of the ``Section 106.45 Recipient's Response to Formal 
Complaints'' section of this preamble.
---------------------------------------------------------------------------

    The Department believes that Sec.  106.45 serves the purposes of 
Title IX by focusing on accurate factual determinations regardless of 
whether the rate of campus sexual assault, and the rate of false or 
unfounded accusations, is as high as some commenters stated or as low 
as other commenters stated. Every complainant and every respondent 
deserve an impartial, truth-seeking process to resolve the allegations 
in each particular situation, regardless of the frequency or 
infrequency of victimization and false accusations. Similarly, every 
allegation warrants an accurate factual resolution regardless of how 
many recipients decide that expulsion is the appropriate sanction 
against respondents found responsible for sexual harassment. No matter 
what decision a recipient makes with respect to disciplinary sanctions, 
Title IX requires recipients to provide victims with remedies designed 
to restore or preserve the victim's access to education, and that 
obligation can be met only after a reliable determination regarding 
responsibility.
    In response to commenters' concerns that girls and women who report 
sexual harassment are sometimes ignored or retaliated against by their 
school, the Department does not believe that such wrongful acts and 
omissions by recipients justify a grievance process that favors 
complainants over respondents. The final regulations require recipients 
to respond promptly to every report of sexual harassment (of which the 
recipient has actual knowledge, and that occurs in the recipient's 
education program or activity, against a person in the United States) 
in a non-deliberately indifferent manner, and, thus, any recipient 
ignoring a complainant's report of sexual harassment would violate the 
final regulations, and the Department will vigorously enforce 
recipients' obligations.
    In response to many commenters concerned about retaliation, the 
final regulations include Sec.  106.71 stating retaliation against any 
individual making a report, filing a complaint, or participating in a 
Title IX investigation or proceeding is prohibited. Whether or not the 
commenter correctly asserted that boys of color are not punished for 
sexual harassment at much higher rates than white boys but that girls 
of color are ignored and retaliated against at rates higher than white 
girls, the protections extended to complainants and respondents under 
the final regulations apply without bias against an individual's sex, 
race, ethnicity, or other characteristic of the complainant or 
respondent.
    Changes: Section 106.71 prohibits retaliation against any 
individual making a report, filing a complaint, or participating in a 
Title IX investigation or proceeding.
    Comments: Some commenters suggested that the Department should 
proactively intervene and monitor the recipient's disciplinary 
practices to ensure they are fair, proportionate, and not 
discriminatory. Some commenters wanted Sec.  106.45 to specifically 
address topics such as the quality of the information gathered during 
the investigation, the candid participation of parties and witnesses, 
and the skills and experience (as well as the content of training) of 
Title IX Coordinators, investigators, and decision-makers, arguing that 
Sec.  106.45 leaves too much discretion to recipients to devise their 
own strategies and approaches for the grievance process that may run 
contrary to improving the reliability of outcomes for the parties.
    Some commenters proposed adding a provision clarifying that nothing 
in these regulations shall be interpreted to prevent the accused 
student from choosing to have their case adjudicated in an 
administrative law setting, provided that the institution advises the 
accused student in writing that it is the accused student's sole choice 
as to whether to have their case decided under those procedures or 
those offered on campus.
    Some commenters proposed that a case should not be adjudicated 
unless there is quantifiable evidence to determine reasonable cause and 
suggested forming a compliance team to review the complaint and 
response from the accused to assess the validity of the accusation. 
Other commenters asserted that recipients have limited resources and 
should triage cases with priority based on severity of the conduct 
alleged. One commenter requested a requirement that attorneys working 
on these tribunals must have passed the State bar exam of the 
university's host State(s) and be a current member of the bar. Some 
commenters expressed concern about the power imbalance between students 
and professors, asserting that this power imbalance is already a 
deterrent to reporting an incident. Some postsecondary institutions 
commented that their institution already follows most of the procedures 
in Sec.  106.45. Several commenters supported adopting the grievance 
procedures already in use by specific institutions, published by 
advocacy organizations, or under Federal laws applicable to Native 
American Institutions.
    Discussion: The Department understands commenters' requests for 
intervention in and monitoring of the fairness, proportionality, and 
prevention of any discrimination in disciplinary sanctions that 
recipients impose at the conclusion of a Sec.  106.45 grievance 
process. The grievance process for Title IX sexual harassment is 
intended and designed to ensure that recipients reach reliable outcomes 
and provide remedies to victims of sexual harassment. The Department 
does not prescribe whether disciplinary sanctions must be imposed, nor 
restrict recipient's discretion in that regard. As the Supreme Court 
noted, Federal courts should not second guess schools' disciplinary 
decisions,\480\ and the Department likewise believes that disciplinary 
decisions are best left to the sound discretion of recipients. The 
Department believes that a standardized framework for resolution of 
Title IX sexual harassment allegations provides needed consistency in 
how recipients reach reliable outcomes. The Department's authority to 
effectuate the purposes of Title IX justifies the Department's concern 
for reaching reliable outcomes, so that sexual harassment victims 
receive appropriate remedies, but the Department does not believe that 
prescribing Federal rules about disciplinary decisions is necessary in 
order to further Title IX's non-discrimination mandate. The Department 
notes that while Title IX does not give the Department a basis to 
impose a Federal standard of fairness or proportionality onto 
disciplinary decisions, Title IX does, of course, require that actions 
taken by a recipient must not constitute sex discrimination; Title IX's 
non-discrimination mandate applies as much to a recipient's 
disciplinary actions as to any other action taken by a recipient with 
respect to its education programs or activities.
---------------------------------------------------------------------------

    \480\ Davis, 526 U.S. at 648-49.

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[[Page 30105]]

    The Department understands that some commenters would like the 
Department to issue more specific requirements to address topics such 
as the quality of information or evidence gathered during 
investigation, the candid participation of parties and witnesses, and 
the skills, experience, and type of training, of Title IX Coordinators, 
investigators, and decision-makers. We believe, however, that Sec.  
106.45 strikes an appropriate balance between prescribing procedures 
specific enough to result in a standardized Title IX sexual harassment 
grievance process that promotes impartiality and avoidance of bias, 
while leaving flexibility for recipients to make reasonable decisions 
about how to implement a Sec.  106.45-compliant grievance process. For 
example, while Sec.  106.45 does not set parameters around the 
``quality'' of evidence that can be relied on, Sec.  106.45 does 
prescribe that all relevant evidence, inculpatory and exculpatory, 
whether obtained by the recipient from a party or from another source, 
must be objectively evaluated by investigators and decision-makers free 
from conflicts of interest or bias and who have been trained in (among 
other matters) how to serve impartially.
    The Department appreciates the commenters' request that the 
Department provide for alternatives to a Sec.  106.45 grievance process 
including, for example, adjudication in a State administrative law 
setting. The Department has tailored the Sec.  106.45 grievance process 
to provide the procedures and protections we have determined are most 
needed to promote reliable outcomes resolving Title IX sexual 
harassment allegations in the context of education programs or 
activities that receive Federal financial assistance. While the 
Department does not dispute that other administrative proceedings could 
provide similarly reliable outcomes, for purposes of enforcing Title 
IX, a Federal civil rights statute, Sec.  106.45 provides a 
standardized framework. The Department notes that nothing in the final 
regulations precludes a recipient from carrying out its 
responsibilities under Sec.  106.45 by outsourcing such 
responsibilities to professionally trained investigators and 
adjudicators outside the recipient's own operations. The Department 
declines to impose a requirement that Title IX Coordinators, 
investigators, or decision-makers be licensed attorneys (or otherwise 
to specify the qualifications or experience needed for a recipient to 
fill such positions), because leaving recipients as much flexibility as 
possible to fulfill the obligations that must be performed by such 
individuals will make it more likely that all recipients reasonably can 
meet their Title IX responsibilities.
    The Department declines to add a reasonable cause threshold into 
Sec.  106.45. The very purpose of the Sec.  106.45 grievance process is 
to ensure that accurate determinations regarding responsibility are 
reached, impartially and based on objective evaluation of relevant 
evidence; the Department believes that goal could be impeded if a 
recipient's administrators were to pass judgment on the sufficiency of 
evidence to decide if reasonable or probable cause justifies completing 
an investigation. In response to commenters' concerns that the proposed 
rules did not permit reasonable discretion to dismiss allegations where 
an adjudication seemed futile, the final regulations add Sec.  
106.45(b)(3)(ii), allowing the recipient, in its discretion, to dismiss 
a formal complaint, if the complainant notifies the Title IX 
Coordinator in writing that the complainant wishes to withdraw it, if 
the respondent is no longer enrolled or employed by the recipient, or 
if specific circumstances prevent the recipient from collecting 
evidence sufficient to reach a determination (for example, where the 
complainant has ceased participating in the process). The Department 
rejects the notion that Title IX sexual harassment cases can or should 
be ``triaged'' or treated differently based on a purported effort to 
distinguish them based on severity. The Department has defined Title IX 
sexual harassment as any of three categories of sex-based conduct each 
of which constitutes serious behavior likely to effectively deny a 
victim equal access to education, and thus any type of sexual 
harassment as defined in Sec.  106.30 warrants the Sec.  106.45 
grievance process.
    The Department appreciates that some commenters on behalf of 
certain postsecondary institutions believed that their institution's 
policies already embody most or many of the requirements of Sec.  
106.45. The Department has reviewed and considered the grievance 
procedures utilized in the codes of conduct in use by many different 
recipients, as well as the recommended fair procedures set forth by 
advocacy organizations, and the Federal laws applicable to Native 
American Institutions with respect to student misconduct proceedings, 
as referenced by commenters. While the Department declines to adopt 
wholesale the procedures used or recommended by any particular 
institution or organization, the Department notes that Sec.  106.45 
contains provisions that some commenters, including submissions on 
behalf of institutions and organizations, described or recommended in 
their comments.
    Changes: Section 106.45(b)(3)(ii) allows the recipient, in its 
discretion, to dismiss a formal complaint if the complainant notifies 
the Title IX Coordinator in writing that the complainant wishes to 
withdraw it, if the respondent is no longer enrolled or employed by the 
recipient, or if specific circumstances prevent the recipient from 
gathering evidence sufficient to reach a determination.

Section 106.30 Definitions \481\
---------------------------------------------------------------------------

    \481\ The NPRM proposed that the definitions in Sec.  106.30 
apply only to Subpart D, Part 106 of Title 34 of the Code of Federal 
Regulations. 83 FR 61496. Aside from the words ``elementary and 
secondary school'' and ``postsecondary institution,'' the words that 
are defined in Sec.  106.30 do not appear elsewhere in Part 106 of 
Title 34 of the Code of Federal Regulations. Upon further 
consideration and for the reasons articulated in this preamble, 
including in the ``Section 106.6(f) Title VII and Directed Question 
3 (Application to Employees)'' subsection of the ``Clarifying 
Amendments to Existing Regulations'' section of this preamble, the 
Department believes that the definitions in Sec.  106.30 should 
apply to Part 106 of Title 34 of the Code of Federal Regulations, 
except for the definitions of the words ``elementary and secondary 
school'' and ``postsecondary institution.'' The definitions of 
``elementary and secondary school'' and ``postsecondary 
institution'' in Sec.  106.30 will apply only to Sec. Sec.  106.44 
and 106.45. This revision is not a substantive revision because this 
revision does not change the definitions or meaning of existing 
words in Part 106 of Title 34 of the Code of Federal Regulations. 
Ensuring that the definitions in Sec.  106.30 apply throughout Part 
106 of Title 34 of the Code of Federal Regulations will provide 
clarity and consistency for future application. We also have 
clarified in Sec.  106.81 that the definitions in Sec.  106.30 do 
not apply to 34 CFR 100.6-100.11 and 34 CFR part 101, which are 
procedural provisions applicable to Title VI. Section 106.81 
incorporates these procedural provisions by reference into Part 106 
of Title 34 of the Code of Federal Regulations.
---------------------------------------------------------------------------

Actual Knowledge

Support for Actual Knowledge Requirement and General Safety Concerns
    Comments: Several commenters who supported the definition of actual 
knowledge in Sec.  106.30 and the actual knowledge requirement in Sec.  
106.44(a) stated that using an actual knowledge requirement empowers 
victims of sexual harassment to choose when and to whom to report 
sexual misconduct, which commenters believed would help facilitate 
building more trusting relationships between students and school 
administrators. Multiple commenters also supported the way that the 
proposed regulations allow recipients to design internal reporting 
processes as recipients see fit, including mandatory reporting by all 
employees to the Title IX Coordinator or others with

[[Page 30106]]

the authority to institute corrective measures on the recipient's 
behalf. One commenter cited the Supreme Court's Davis decision and 
stated that, while the commenter supported the Department's actual 
knowledge requirement, institutions should publicize a list of the 
officials who have authority to institute corrective measures, in a 
location easily accessible and known to the student body, so that those 
who wish to file complaints know how to do so.
    Some commenters referred to the constructive notice standard set 
forth in Department guidance as a ``mandatory reporting'' system. Some 
commenters supported replacing constructive notice with actual 
knowledge, arguing that the mandatory reporting system recommended by 
Department guidance has resulted in requiring college and university 
employees to report allegations of sexual harassment and sexual 
violence even when a victim reported to an employee in confidence and 
even when the victim expressed no interest in an investigation.
    Other commenters objected to the Department removing ``mandatory 
reporter'' requirements and replacing constructive notice with actual 
knowledge. Several commenters asserted that the actual knowledge 
definition in Sec.  106.30 and actual knowledge requirement in Sec.  
106.44(a) will harm survivors, especially women, by allowing ``lower 
level employees'' to intentionally bury reports of sexual harassment 
against serial perpetrators. Those commenters expressed concern that 
Title IX Coordinators will be less informed, which will make campuses 
more dangerous for students.
    Several commenters asserted that survivors of campus assault have 
frequently experienced Title IX personnel being more concerned with 
protecting the recipient's institutional interests than with the 
welfare of victims. Commenters who work in postsecondary institutions, 
or for corporations, asserted that they are familiar with this dynamic 
in the context of human resources departments. Many commenters stated 
that the longstanding constructive notice standard (requiring a school 
to respond if a responsible employee knew or should have known of 
sexual harassment) was sufficient to ensure that employees would be 
held accountable for purposefully turning their backs on students who 
seek to report sexual harassment. Commenters asserted that employees at 
a particular university failed to take any action after students 
disclosed another employee's abuse to them, which resulted in a serial 
sexual perpetrator victimizing many people. Commenters expressed 
concern that the actual knowledge requirement requires the Department 
to be too trusting of recipients, and cited incidents of coaches and 
employees mishandling reports of sexual harassment at a number of 
institutions of higher education.
    Discussion: The Department appreciates commenters' support for the 
Sec.  106.30 definition of ``actual knowledge'' and the requirement in 
Sec.  106.44(a) that recipients respond to sexual harassment when the 
recipient has actual knowledge. As explained in the ``Actual 
Knowledge'' subsection of the ``Adoption and Adaption of the Supreme 
Court's Framework to Address Sexual Harassment'' we have revised the 
Sec.  106.30 definition of ``actual knowledge'' to differentiate 
between elementary and secondary schools, and postsecondary 
institutions, with respect to which school or college employees who 
have ``notice'' of sexual harassment require the school or college to 
respond. Under revised Sec.  106.30, notice to ``any employee'' of an 
elementary or secondary school charges the recipient with actual 
knowledge.
    The Department disagrees with commenters that the actual knowledge 
requirement, as adopted from the Gebser/Davis framework and adapted in 
these final regulations for administrative enforcement, will result in 
recipients being less informed about, or less responsive to, patterns 
of sexual harassment and threats to students. With respect to 
postsecondary institutions, notice of sexual harassment or allegations 
of sexual harassment to the recipient's Title IX Coordinator or to an 
official with authority to institute corrective measures on behalf of 
the recipient (herein, ``officials with authority'') will trigger the 
recipient's obligation to respond. Postsecondary institution students 
have a clear channel through the Title IX Coordinator to report sexual 
harassment, and Sec.  106.8(a) requires recipients to notify all 
students and employees (and others) of the Title IX Coordinator's 
contact information, so that ``any person'' may report sexual 
harassment in person, by mail, telephone, or email (or by any other 
means that results in the Title IX Coordinator receiving the person's 
verbal or written report), and specifies that a report may be made at 
any time (including during non-business hours) by mail to the Title IX 
Coordinator's office address or by using the listed telephone number or 
email address. In the postsecondary institution context, the Department 
believes that making sure that complainants and third parties have 
clear, accessible ways to report to the Title IX Coordinator rather 
than requiring the recipient to respond each time any postsecondary 
institution employee has notice, better respects the autonomy of 
postsecondary school students (and employees) to choose whether and 
when to report sexual harassment.\482\
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    \482\ The Department recognizes the many examples pointed to by 
commenters, of postsecondary institutions failing to respond 
appropriately to notice of sexual harassment allegations when at 
least some university employees knew of the alleged sexual 
harassment, resulting in some situations where serial predators 
victimized many people. We note that such failures by institutions 
occurred under the status quo; that is, under the Department's 
approach to notice in the Department's guidance. In these final 
regulations, the Department aims to respect the autonomy of students 
at postsecondary institutions, while ensuring that such students 
(and employees) clearly understand how to report sexual harassment. 
We believe that the best way to avoid reports ``falling through the 
cracks'' or successfully being ``swept under the rug'' by 
postsecondary institutions, is not to continue (as Department 
guidance did) to insist that all postsecondary institutions must 
have universal or near-universal mandatory reporting. As discussed 
in the ``Actual Knowledge'' subsection of the ``Adoption and 
Adaption of the Supreme Court's Framework to Address Sexual 
Harassment'' section of this preamble, whether universal mandatory 
reporting for postsecondary institutions benefits victims or harms 
victims is a complicated issue as to which research is conflicting. 
We believe that allowing each postsecondary institution to implement 
its own policy regarding which employees must report sexual 
harassment to the Title IX Coordinator (and which may remain 
confidential resources for students at postsecondary institutions) 
is a better approach than requiring universal mandatory reporting. 
The benefits of universal mandatory reporting policies may not 
outweigh the negative impact of such policies, in terms of helping 
victims. Allowing postsecondary institutions to choose for 
themselves what kind of mandatory reporting policies to have is only 
beneficial if combined (as in these final regulations) with strong 
requirements that every postsecondary institution inform students 
and employees about how to report to the Title IX Coordinator and 
that every institution has in place accessible options for any 
person to report to the Title IX Coordinator. This is the approach 
taken in these final regulations, so that, for example, if an 
alleged victim discloses sexual harassment to a university ``low-
level'' employee and the school does not respond by reaching out to 
the alleged victim (called ``the complainant'' in these final 
regulations) then the alleged victim also knows how to contact the 
Title IX Coordinator, a specially trained employee who must respond 
promptly to the alleged victim by offering supportive measures and 
confidentially discussing with the alleged victim the option of 
filing a formal complaint. A report to the Title IX Coordinator may 
also be made by any third party, such as the alleged victim's parent 
or friend. Thus, whether or not the ``low level'' employee to whom 
an alleged victim disclosed sexual harassment appropriately kept 
that disclosure confidential, or wrongfully violated the 
institution's mandatory reporting policy, the alleged victim is not 
left without recourse or options and the institution is not able to 
avoid responding to the alleged victim, because the alleged victim 
knows that any report made to the Title IX Coordinator, via any of 
several accessible options (e.g., email or phone, which information 
must be prominently displayed on recipients' websites) that can be 
used day or night, will trigger the institution's prompt response 
obligations. Sec.  106.8; Sec.  106.30 (defining ``actual 
knowledge'' to include, but not be limited to, a report to the Title 
IX Coordinator).

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[[Page 30107]]

    With respect to elementary and secondary schools, the Department is 
persuaded by commenters' concerns that it is not reasonable to expect 
young students to report to specific school employees or to distinguish 
between a desire to disclose sexual harassment confidentially to a 
school employee, versus a desire to report sexual harassment for the 
purpose of triggering the school's response obligations. We have 
revised the Sec.  106.30 definition of actual knowledge to specifically 
state that notice to any employee of an elementary or secondary school 
charges the recipient with actual knowledge, triggering the recipient's 
obligation to respond to sexual harassment (including promptly offering 
supportive measures to the complainant). Accordingly, students in 
elementary and secondary schools do not need to report allegations of 
sexual harassment to a specific employee such as a Title IX Coordinator 
to trigger a recipient's obligation to respond to such allegations. A 
student in an elementary or secondary school may report sexual 
harassment to any employee. Similarly, if an employee of an elementary 
or secondary school personally observes sexual harassment,\483\ then 
the elementary or secondary school recipient must respond to and 
address the sexual harassment in accordance with these final 
regulations. As previously noted in the ``Adoption and Adaption of the 
Supreme Court's Framework to Address Sexual Harassment,'' elementary 
and secondary schools operate under the doctrine of in loco parentis, 
and employees at elementary and secondary schools typically are 
mandatory reporters of child abuse under State laws for purposes of 
child protective services.\484\ In addition to any obligations imposed 
on school employees under State child abuse laws, these final 
regulations require the recipient to respond to allegations of sexual 
harassment by offering supporting measures to any person alleged to be 
the victim of sexual harassment and taking the other actions required 
under Sec.  106.44(a).
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    \483\ Section 106.30 defines ``complainant'' to mean ``an 
individual who is alleged to be the victim of conduct that could 
constitute sexual harassment'' and therefore, an employee witnessing 
or hearing about conduct that ``could constitute'' sexual harassment 
defined in Sec.  106.30 triggers the elementary and secondary school 
recipient's response obligations, including having the Title IX 
Coordinator contact the complainant (and, where appropriate, the 
complainant's parent or legal guardian) to confidentially discuss 
the availability of supportive measures. Section 106.44(a). In other 
words, if an elementary or secondary school employee witnesses 
conduct but does not know ``on the spot'' whether the conduct meets 
the Sec.  106.30 definition of sexual harassment (for example, 
because the employee cannot discern whether the conduct amounted to 
a sexual assault, or whether the conduct was ``unwelcome'' 
subjectively to the complainant, or whether non-quid pro quo, non-
sexual assault conduct was ``severe''), the person victimized by the 
conduct is a ``complainant'' entitled to the school's prompt 
response if the conduct ``could'' constitute sexual harassment.
    \484\ See Ala. Code Sec.  26-14-3; Alaska Stat. Sec.  47.17.020; 
Ariz. Rev. Stat. Sec.  13-3620; Ark. Code Ann. Sec.  12-18-402; Cal. 
Penal Code Sec.  11165.7; Colo. Rev. Stat. Sec.  19-3-304; Conn. 
Gen. Stat. Sec.  17a-101; Del. Code Ann. tit. 16, Sec.  903; DC Code 
Sec.  4-1321.02; Fla. Stat. Sec.  39.201; Ga. Code Ann. Sec.  19-7-
5; Haw. Rev. Stat. Sec.  350-1.1; Idaho Code Ann. Sec.  16-1605; 325 
Ill. Comp. Stat. Sec.  5/4; Ind. Code Sec.  31-33-5-1; Iowa Code 
Sec.  232.69; Kan. Stat. Ann. Sec.  38-2223; Ky. Rev. Stat. Ann. 
Sec.  620.030; La. Child Code Ann. art. 603(17); Me. Rev. Stat. tit. 
22, Sec.  4011-A; Md. Code Ann., Fam. Law Sec.  5-704; Mass. Gen. 
Laws ch. 119, Sec.  21; Mich. Comp. Laws Sec.  722.623; Minn. Stat. 
Sec.  626.556; Miss. Code. Ann. Sec.  43-21-353; Mo. Ann Stat. Sec.  
210.115; Mont. Code Ann. Sec.  41-3-201; Neb. Rev. Stat. Sec.  28-
711; Nev. Rev. Stat. Sec.  432B.220; N.H. Rev. Stat. Ann. Sec.  169-
C:29; N.J. Stat. Ann. Sec.  9:6-8.10; N.M. Stat. Ann. Sec.  32A-4-3; 
N.Y. Soc. Serv. Law Sec.  413; N.C. Gen. Stat. Ann. Sec.  7B-301; 
N.D. Cent. Code Ann. Sec.  50-25.1-03; Ohio Rev. Code Ann. Sec.  
2151.421; Okla. Stat. tit. 10A, Sec.  1-2-101; Or. Rev. Stat. Sec.  
419B.010; 23 Pa. Cons. Stat. Ann Sec.  6311; R.I. Gen. Laws Sec.  
40-11-3(a); S.C. Code Ann. Sec.  63-7-310; S.D. Codified Laws Sec.  
26-8A-3; Tenn. Code Ann. Sec.  37-1-403; Tex. Fam. Code Sec.  
261.101; Utah Code Ann. Sec.  62A-4a-403; Vt. Stat. Ann. tit. 33, 
Sec.  4913; Va. Code Ann. Sec.  63.2-1509; Wash. Rev. Code Sec.  
26.44.030; W. Va. Code Sec.  49-2-803; Wis. Stat. Sec.  48.981; Wyo. 
Stat. Ann. Sec.  14-3-205.
---------------------------------------------------------------------------

    The Department agrees with commenters who noted that nothing in the 
proposed or final regulations prevents recipients (including 
postsecondary institutions) from instituting their own policies to 
require professors, instructors, or all employees to report to the 
Title IX Coordinator every incident and report of sexual harassment. A 
recipient also may empower as many officials as it wishes with the 
requisite authority to institute corrective measures on the recipient's 
behalf, and notice to these officials with authority constitutes the 
recipient's actual knowledge and triggers the recipient's response 
obligations. Recipients may also publicize lists of officials with 
authority. We have revised Sec.  106.8 to require recipients to notify 
students, employees, and parents of elementary and secondary school 
students (among others) of the contact information for the recipient's 
Title IX Coordinator, to specify that any person may report sexual 
harassment in person, by mail, telephone, or email using the Title IX 
Coordinator's contact information (or by any other means that results 
in the Title IX Coordinator receiving the person's verbal or written 
report), to state that reports may be made at any time (including 
during non-business hours) by using the listed telephone number or 
email address, and to require a recipient to post the Title IX 
Coordinator's contact information on the recipient's website.
    The Department appreciates commenters' concerns about recipients 
purposely ignoring reports of sexual harassment. As the Department has 
acknowledged through guidance documents since 1997, schools, colleges, 
and universities have too often ignored sexual harassment affecting 
students' and employees' equal access to education. These final 
regulations ensure that every recipient is legally obligated to respond 
to sexual harassment (or allegations of sexual harassment) of which the 
recipient has notice. The final regulations use a definition of actual 
knowledge to address the unintended consequences that the constructive 
notice standard created for both recipients and students. As explained 
more fully in the ``Actual Knowledge'' subsection in the ``Adoption and 
Adaption of the Supreme Court's Framework to Address Sexual 
Harassment'' section of this preamble, the Department believes that the 
approach in these final regulations regarding notice of sexual 
harassment that triggers a recipient's response obligations is 
preferable to the constructive notice standard set forth in Department 
guidance. Additionally, as some commenters noted, the constructive 
notice standard coupled with the Department's mandate to investigate 
all allegations of sexual harassment \485\ may have actually chilled 
reporting. Investigations almost always require some intrusion into the 
complainant's privacy, and some complainants simply wanted supportive 
measures but were not ready or did not desire to participate in a 
grievance process. These final regulations provide complainants with 
more control over whether or when to report sexual harassment,\486\ and 
clearly obligate a

[[Page 30108]]

recipient to offer supportive measures to a complainant with or without 
a formal complaint ever being filed.
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    \485\ 2011 Dear Colleague Letter at 4-5; 2001 Guidance at 15.
    \486\ As noted previously, these final regulations ensure that 
reporting or disclosing sexual harassment to any elementary or 
secondary school employee triggers the recipient's response 
obligations, while postsecondary institutions are permitted to 
choose which of their employees must be mandatory reporters. This 
broader definition of ``actual knowledge'' for elementary and 
secondary schools does not reflect that the Department values the 
autonomy of elementary and secondary school students less than the 
autonomy of students at postsecondary institutions. The final 
regulations respect the autonomy of all complainants. However, 
recognizing the general differences between adults in postsecondary 
institutions, versus young students in elementary and secondary 
schools, we believe the better policy is to ensure that an 
elementary or secondary school responds promptly whenever any 
employee has notice of sexual harassment, while a postsecondary 
institution must respond promptly whenever a Title IX Coordinator or 
official with authority has notice of sexual harassment. This 
approach does not give as much control to a younger student over 
whether disclosure of sexual harassment results in a response from 
the Title IX Coordinator, compared to the control retained by a 
student at a postsecondary institution to disclose sexual harassment 
without automatically triggering a report to the Title IX 
Coordinator. However, the final regulations respect the autonomy of, 
and give options and control to, all complainants, by protecting 
each complainant's right to choose, for example, how to respond to 
the Title IX Coordinator's discussion of available supportive 
measures and whether to file a formal complaint asking the school to 
investigate the sexual harassment allegations. This approach ensures 
that an elementary or secondary school student is, for example, 
considering supportive measures and the option of filing a formal 
complaint with the Title IX Coordinator, who can involve the 
student's parent or legal guardian as appropriate. Thus, the final 
regulations respect the autonomy of all complainants and aim to give 
all complainants options and control over how a school responds to 
their sexual harassment experience, yet achieves these aims 
differently for elementary and secondary school students, than for 
students at postsecondary institutions.
---------------------------------------------------------------------------

    With respect to commenters' concerns that recipients have knowingly 
ignored reports of sexual harassment in the past, and may continue to 
do so in the future, such action constitutes deliberate indifference, 
if the other requirements of Sec.  106.44(a) are met. When a recipient 
with actual knowledge of sexual harassment in its education program or 
activity refuses to respond to sexual harassment or a report of sexual 
harassment, such a refusal is clearly unreasonable under Sec.  
106.44(a) and constitutes a violation of these final regulations.
    Changes: The Department expands the definition of actual knowledge 
in Sec.  106.30 to include notice to ``any employee of an elementary 
and secondary school'' with respect to recipients that are elementary 
and secondary schools. We have also revised Sec.  106.8 to require that 
recipients must prominently display the Title IX Coordinator's contact 
information on the recipient's website, and to state that any person 
may report sexual harassment in person, by mail, by telephone, or by 
email using that contact information (or by any other means that 
results in the Title IX Coordinator receiving the person's verbal or 
written report), and that a report may be made at any time (including 
during non-business hours) by using the telephone number or email 
address, or by mail to the office address, listed for the Title IX 
Coordinator.
Student Populations Facing Additional Barriers to Reporting
    Comments: Several commenters asserted that designating a single 
individual as the person to whom notice triggers a recipient's 
obligation to respond creates significant hurdles to reporting for 
certain populations of students, including students with disabilities, 
immigrant students, international students, transgender students, and 
homeless students.
    Numerous commenters noted that students with disabilities are more 
vulnerable to sexual abuse than their peers without disabilities, are 
less likely to report experiences of abuse, and are less likely to have 
access to school officials who have the requisite authority to 
implement corrective measures under Sec.  106.30. One commenter 
asserted that, while the actual knowledge requirement favors the rights 
and needs of students with disabilities who are accused of sexual 
harassment, this requirement disfavors students with disabilities who 
are victims of sexual harassment. The commenter expressed concern that 
students with disabilities may only be comfortable communicating 
sensitive issues to their own teachers, and in some cases may only be 
able to communicate with appropriately trained special education staff.
    One commenter stated that, because immigrant students are even less 
likely to know to whom they should report, members of immigrant 
communities are disadvantaged by the actual knowledge requirement. 
Another commenter asserted that international students are more likely 
to confide in a teacher or advisor with whom they have close contact, 
because cultural and linguistic barriers may make it difficult for 
international students to navigate official administrative channels.
    Several commenters noted that transgender students, as well as non-
binary students and students who identify with other gender identity 
communities, are less likely to report or seek services than students 
from other demographics. Commenters argued that replacing the 
constructive notice standard with the actual knowledge standard will 
reduce the services and support received by transgender students and 
students who identify with other gender identity communities.
    One commenter asserted that the actual knowledge requirement 
disadvantages students who are homeless, students from economically 
disadvantaged backgrounds, or students from dysfunctional families; the 
commenter described having seen bruises, cuts, and left-over tape 
residue from when a student was hospitalized after getting into the 
student's parents' crystal methamphetamine. The commenter asserted 
that, under the proposed rules, students will lose support from 
teachers, placing students in greater danger. The commenter argued that 
it is imperative that all elementary and secondary school teachers be 
mandatory reporters.
    Discussion: The Department requires all recipients to address sex 
discrimination against all students, including students in vulnerable 
populations. The revised definition of ``actual knowledge'' in Sec.  
106.30 includes notice to any elementary and secondary school employee, 
addressing the concerns raised by commenters that in the elementary and 
secondary school context, students with disabilities, LGBTQ students, 
students who are immigrants, and others, face barriers to reporting 
sexual harassment only to certain employees or officials. We have also 
revised Sec.  106.8 to ensure that all students and employees are 
notified of the Title IX Coordinator's contact information, to require 
that contact information to be prominently displayed on the recipient's 
website, and to clearly state that any person may report sexual 
harassment to the Title IX Coordinator using any of several accessible 
options, including by phone or email at any time of day or night. Thus, 
as to students at postsecondary institutions, clear, accessible 
reporting options are available for any student (or third party, such 
as an alleged victim's friend or a bystander witness to sexual 
harassment) to contact the Title IX Coordinator and trigger the 
postsecondary institution's mandatory response obligations. We believe 
that the final regulations thus provide all students, including 
students with disabilities, LGBTQ students, students who are 
immigrants, and others, with accessible ways of reporting, and do not 
leave any student facing barriers or challenges with respect to how to 
report to the Title IX Coordinator.\487\
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    \487\ Section 106.8(a) (``Any person may report sex 
discrimination, including sexual harassment (whether or not the 
person reporting is the person alleged to be the victim of conduct 
that could constitute sex discrimination or sexual harassment), in 
person, by mail, by telephone, or by electronic mail, using the 
contact information listed for the Title IX Coordinator [which, 
under Sec.  106.8(b) must be posted on the recipient's website], or 
by any other means that results in the Title IX Coordinator 
receiving the person's verbal or written report. Such a report may 
be made at any time (including during non-business hours) by using 
the telephone number or electronic mail address, or by mail to the 
office address, listed for the Title IX Coordinator.'') (emphasis 
added).

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[[Page 30109]]

    With respect to commenters who assert that the Department is 
removing a ``mandatory reporting'' requirement or eliminating 
``mandatory reporters,'' as discussed in the ``Actual Knowledge'' 
subsection of the ``Adoption and Adaption of the Supreme Court's 
Framework to Address Sexual Harassment'' section of this preamble, the 
adapted actual knowledge requirement in these final regulations 
distinguishes between elementary and secondary schools (where notice to 
any employee now triggers the recipient's response obligations) and 
postsecondary institutions (where notice to the Title IX Coordinator 
and officials with authority triggers the recipient's response 
obligations, but postsecondary institution recipients have discretion 
to determine which of their employees should be mandatory reporters, 
and which employees may keep a postsecondary student's disclosure about 
sexual harassment confidential).
    In response to commenters' concerns, in elementary and secondary 
schools, all students (including those in vulnerable populations) can 
report sexual harassment to any school employee to trigger the 
recipient's obligation to respond. While the imputation of knowledge 
based solely on the theories of vicarious liability \488\ or 
constructive notice is insufficient, notice to any elementary and 
secondary school employee--including a teacher, teacher's aide, bus 
driver, cafeteria worker, counselor, school resource officer, 
maintenance staff worker, or other school employee--charges the 
recipient with actual knowledge, triggering the recipient's response 
obligations. This expanded definition of actual knowledge in elementary 
and secondary schools gives all students, including those with 
disabilities who may face challenges communicating, a wide pool of 
trusted employees of elementary and secondary schools (i.e., any 
employee) to whom the student can report. As to all recipients, Sec.  
106.30 defining ``actual knowledge'' is also revised to expressly state 
that ``notice'' includes a report to the Title IX Coordinator as 
described in Sec.  106.8(a).\489\ These final regulations thus ensure 
that all students and employees have clear, accessible reporting 
channels, and ensure that elementary and secondary school students can 
disclose sexual harassment to any school employee and the recipient 
will be obligated to respond promptly and supportively in accordance 
with Sec.  106.44(a).
---------------------------------------------------------------------------

    \488\ The Department has revised the Sec.  106.30 definition of 
actual knowledge by replacing ``respondeat superior'' with 
``vicarious liability.'' ``Vicarious liability'' conveys the same 
meaning as ``respondeat superior,'' but ``vicarious liability'' is 
more colloquial and is less likely to be confused with the word 
``respondent'' used throughout these final regulations.
    \489\ We have revised Sec.  106.8(a) to expressly state that any 
person may report sexual harassment using the contact information 
required to be listed for the Title IX Coordinator (which must 
include an office address, telephone number, and email address), or 
by any other means that results in the Title IX Coordinator 
receiving the person's verbal or written report, and that a report 
may be made at any time (including during non-business hours) by 
using the listed telephone number or email address, or by mail to 
the listed office address.
---------------------------------------------------------------------------

    While the Department acknowledges commenters' concerns about actual 
knowledge introducing an additional hurdle to the reporting process for 
certain students at postsecondary institutions, the Department believes 
the actual knowledge requirement will bring benefits to students that 
outweigh potential concerns. Under these final regulations, the 
recipient must notify and inform students of the right to report sexual 
harassment to the Title IX Coordinator, a trained professional who is 
well positioned to contact the complainant to confidentially discuss 
the complainant's wishes regarding supportive measures (which must be 
offered regardless of whether the complainant also chooses to file a 
formal complaint), and explain the process of filing a formal 
complaint. Students may choose to confide in postsecondary institution 
employees to whom notice does not trigger the recipient's response 
obligations, without such confidential conversations necessarily 
resulting in the student being contacted by the Title IX Coordinator. 
This results in greater respect for the autonomy of a college student 
over what kind of institutional response will best serve the student's 
needs and wishes. This gives students at postsecondary institutions 
greater control over whether or when to report than does a requirement 
of universal mandatory reporting.
    The Department understands commenters' concerns that some students 
may not feel comfortable discussing a sexual harassment experience with 
a stranger. Partly in response to such concerns, the final regulations 
designate any school employee as someone with whom an elementary or 
secondary school student can share a report and know that the recipient 
is then responsible for responding promptly. The Department believes it 
is reasonable to expect students at a university or college to 
communicate with the Title IX Coordinator or other official with 
authority, as students would with other professionals, including 
doctors, therapists, and attorneys, many of whom college students do 
not know personally when they first seek assistance with sensitive, 
personal issues. At the same time, these final regulations permit each 
postsecondary institution to decide whether or not to implement a 
universal mandatory reporting policy. As discussed in the ``Actual 
Knowledge'' subsection of the ``Adoption and Adaption of the Supreme 
Court's Framework to Address Sexual Harassment'' section of this 
preamble, there is conflicting research about whether universal 
mandatory reporting policies for postsecondary institutions benefit 
victims, or harm victims.
    Although these final regulations do not expressly require 
recipients to allow complainants to bring a supportive friend to an 
initial meeting with the Title IX Coordinator, nothing in these final 
regulations prohibits complainants from doing so. Indeed, many people 
bring a friend or family member to doctors' visits for extra support, 
whether to assist a person with a disability or for emotional support, 
and the same would be true for a complainant reporting to a Title IX 
Coordinator. Once a grievance process has been initiated, these final 
regulations require recipients to provide the parties with written 
notice of each party's right to select an advisor of choice, and 
nothing precludes a party from choosing a friend to serve as that 
advisor of choice.\490\
---------------------------------------------------------------------------

    \490\ Section 106.45(b)(2); Sec.  106.45(b)(5)(iv).
---------------------------------------------------------------------------

    The Department agrees with the commenter who asserted that 
recipients should publish information to help students locate the Title 
IX Coordinator and other staff to whom notice conveys actual knowledge 
on the recipient. These final regulations in Sec.  106.8 require 
recipients to designate and authorize a Title IX Coordinator, notify 
all students and employees of the name or title, office address, 
electronic mail address, and telephone number of the Title IX 
Coordinator, and prominently display the contact information for the 
Title IX Coordinator on recipients' websites.
    The Department disagrees that the actual knowledge requirement 
favors respondents over complainants. The final regulations' approach 
to designating Title IX Coordinators, officials with authority, and 
elementary and secondary school employees as persons to whom notice 
triggers the recipients' response obligations, is designed to ensure 
that recipients are held responsible for meaningful responses to known 
incidents of sexual

[[Page 30110]]

harassment, including by providing equitable responses to the 
complainant and respondent,\491\ while taking into account the 
different needs and expectations of elementary and secondary school 
students, and postsecondary institution students. In elementary and 
secondary schools the recipient must respond to sexual harassment when 
notice is given to any school employee; in postsecondary institutions 
where complainants are more capable of exercising autonomy over when to 
report and seek institutional assistance, the complainant (or any third 
party) may report to a Title IX Coordinator or official with authority. 
We reiterate that ``notice'' may come to a Title IX Coordinator, an 
official with authority, or an elementary and secondary school 
employee, from any source (i.e., from the person alleged to be the 
victim of sexual harassment, from any third party such as a friend, 
parent, or witness to sexual harassment, or from the employee's or 
official's first-hand observation of conduct that could constitute 
sexual harassment).
---------------------------------------------------------------------------

    \491\ Section 106.44(a) (requiring the recipient to respond 
equitably by offering supportive measures to a complainant and by 
refraining from taking disciplinary action against a respondent 
without first following a grievance process that complies with Sec.  
106.45).
---------------------------------------------------------------------------

    Changes: The Department has revised the Sec.  106.30 definition of 
``actual knowledge'' to specify that actual knowledge includes notice 
of sexual harassment to ``any employee'' in an elementary and secondary 
school. The Department revised the Sec.  106.30 definition of ``actual 
knowledge'' by replacing ``respondeat superior'' with ``vicarious 
liability.''
Chilling Reporting
    Comments: Many commenters asserted that sexual assault is 
chronically underreported, and that an actual knowledge requirement 
would create an additional barrier to reporting and chill victims' 
willingness to try to report sexual harassment. Several commenters 
noted that studies show that, although only five percent of rapes are 
reported to officials, nearly two-thirds of victims tell someone about 
their experience (e.g., friends or family),\492\ and commenters argued 
that limiting the employees who are mandatory reporters will result in 
the Title IX Coordinator knowing about even fewer incidents and helping 
even fewer victims, whereas the current system centralizes reporting so 
that fewer victims fall through the cracks. Numerous commenters 
asserted that sexual harassment and assault is a sensitive issue that 
many individuals only feel comfortable discussing within a trusted 
relationship, if they feel bold enough to discuss it at all.
---------------------------------------------------------------------------

    \492\ Commenters cited: Massachusetts Institute of Technology, 
Survey Results: 2014 Community Attitudes on Sexual Assault (2014).
---------------------------------------------------------------------------

    Another commenter characterized the proposed rules' definition of 
actual knowledge in Sec.  106.30 as ``loose.'' According to this 
commenter, the proposed rules' definition of actual knowledge would 
allow for a situation where a student reports to an agent whom the 
student trusts and thinks that the report has been conveyed to the 
recipient, but for some reason, that agent does not properly report the 
incident. The commenter contended that in this situation the school can 
claim that it did not have actual knowledge of the incident and 
therefore the school cannot be held accountable for inaction. Multiple 
commenters stated that complainants should be able to go to any school 
official with whom the student feels comfortable, to report sexual 
harassment, and that complainants should not be forced to go to a few 
specific people within the school.
    Several commenters opposed the actual knowledge definition in Sec.  
106.30, asserting that most students do not know which employees have 
the authority to redress sexual harassment and would not even know who 
to contact. Also, multiple commenters cited a study that found that 
survivors often do not report their sexual assaults because of fear of 
being disbelieved or fear that their assault will not taken 
seriously,\493\ and many commenters argued that the actual knowledge 
requirement will exacerbate these fears, thereby resulting in even less 
reporting of sexual harassment. Commenters argued that narrowing the 
scope of trusted adults to whom survivors of sexual assault can speak 
to receive support is an unjust violation of their right to safety.
---------------------------------------------------------------------------

    \493\ Commenters cited: Kathryn J. Holland & Lilia M. Cortina, 
``It happens to girls all the time'': Examining sexual assault 
survivors' reasons for not using campus supports, 59 Am. J. of 
Community Psychol. 1-2 (2017).
---------------------------------------------------------------------------

    Numerous commenters asserted that giving complainants greater 
control over whether and when to report will encourage more people to 
come forward to report sexual misconduct. A few commenters stated that 
the actual knowledge requirement pushes back against mandatory 
reporting policies that undermine a student's trust in professors and 
university employees. Commenters argued that because recipients often 
require employees to report allegations of sexual harassment to the 
Title IX office even when disclosures are made to employees in 
confidence, including in instances in which the complainant expresses 
no interest in an investigation, and the proposed rules would not 
require recipients to have these mandatory reporting policies, the 
actual knowledge requirement would encourage more complainants to 
report sexual harassment because the complainants have greater control 
over what action a school takes in response to each situation, 
including whether the report will proceed to an investigation without 
the complainant's permission. One commenter asserted that mandatory 
reporter policies frequently serves as a deterrent to complainants who 
are seeking resources rather than adjudication. The commenter stated 
that mandatory reporting enhances the risks of revictimization and 
penalizes students who wish to come forward and seek services rather 
than a grievance process.
    Another commenter asserted that postsecondary institution 
recipients should have to require that any employee to whom a student 
discloses sexual harassment provide the student with information about 
how to report to the Title IX office, the option of reporting, and the 
availability of supportive services. The commenter argued that a 
student should be told (by any employee in whom a student confides a 
sexual harassment experience) that unless the student makes a report, 
the institution will not know of the incident and will therefore do 
nothing about it. Several commenters supporting Sec.  106.30 asserted 
that the final regulations should allow complainants to meet directly 
with the Title IX Coordinator who can provide the array of options 
available to them before deciding to file a formal complaint. One 
commenter expressed support of the proposed rules' allowance of greater 
informality in adjudications, because research shows that victims want 
more informal options, with less mandatory reporting.\494\
---------------------------------------------------------------------------

    \494\ Commenters cited: National Academies of Science, 
Engineering, and Medicine, Sexual Harassment of Women: Climate, 
Culture, and Consequences in Academic Sciences, Engineering, and 
Medicine (Frasier F. Benya et al. eds., 2018).
---------------------------------------------------------------------------

    Discussion: As discussed above, the final regulations revise the 
definition of actual knowledge to include notice to any elementary and 
secondary school employee, thus alleviating many commenters' concerns 
about requiring young students to both know how, and be willing to, 
report sexual harassment incidents to a particular school official

[[Page 30111]]

or to the Title IX Coordinator. As discussed above, the actual 
knowledge requirement in the postsecondary institution context means 
notice to the Title IX Coordinator or an official with authority, and 
the Department believes this approach respects a postsecondary 
institution complainant's autonomy and choice over whether or when to 
report sexual harassment, while still ensuring that complainants and 
third parties have clear, accessible ways of reporting sexual 
harassment.
    The Department agrees with commenters who pointed out that the 
actual knowledge requirement in the postsecondary institution context 
appropriately gives more control and autonomy to each complainant to 
choose to discuss a private incident confidentially (for example, with 
a trusted professor or resident advisor), or to report the incident in 
order to seek supportive measures or a grievance process against the 
respondent. Numerous commenters asserted that preserving a survivor's 
autonomy and control in the aftermath of a traumatic experience of 
sexual violence can be crucial to the survivor's ability to heal and 
recover.\495\ The Department agrees with commenters who asserted that 
victims want more informal options with less mandatory reporting 
because mandatory reporting policies may have the unintended 
consequence of penalizing complainants who wish to come forward and 
seek supportive measures, by subjecting complainants to contact with 
the Title IX office, (which can lead to a formal grievance process even 
without the complainant choosing to file a formal complaint),\496\ when 
that was not what some complainants desired.\497\ Therefore, the 
Department believes the actual knowledge requirement may benefit 
complainants at postsecondary institutions whose reports were chilled 
under a system of constructive notice. In the postsecondary institution 
context, the final regulations respect a complainant's decision about 
whether or when to report, and ensure that a complainant may receive 
supportive measures irrespective of whether they file a formal 
complaint of sexual harassment.\498\
---------------------------------------------------------------------------

    \495\ E.g., Carly Parnitzke Smith & Jennifer J. Freyd, Dangerous 
Safe Havens: Institutional Betrayal Exacerbates Sexual Trauma, 26 
Journal of Traumatic Stress 1, 120 (2013) (describing 
``institutional betrayal'' as when an important institution, or a 
segment of it, acts in a way that betrays its member's trust); Merle 
H. Weiner, Legal Counsel for Survivors of Campus Sexual Violence, 29 
Yale J. of L. & Feminism 123, 140-141 (2017) (identifying one type 
of institutional betrayal as the harm that occurs when ``the 
survivor thinks she is speaking to a confidential resource, but then 
finds out the advocate cannot keep their conversations private'').
    \496\ Under the final regulations, a complainant always retains 
the option of initiating a grievance process (by filing a formal 
complaint) and is never required to file a formal complaint in order 
to receive supportive measures. Sec.  106.44(a); Sec.  106.44(b)(1); 
Sec.  106.30 (defining ``formal complaint''). However, a Title IX 
Coordinator may, when it is not clearly unreasonable in light of the 
known circumstances, sign a formal complaint that initiates a 
grievance process against a respondent even when that is not what 
the complainant wished to have happen. Sec.  106.30 (defining 
``formal complaint''); Sec.  106.44(a). Thus, universal mandatory 
reporting policies may sometimes result in involving a complainant 
in a grievance process when that is not what the complainant wanted, 
and the final regulations aim to make that less likely in the 
postsecondary institution context by allowing each postsecondary 
institution to decide for itself whether to have a universal 
mandatory reporting policy.
    \497\ E.g., Carmel Deamicis, Which Matters More: Reporting 
Assault or Respecting a Victim's Wishes?, The Atlantic (May 20, 
2013) (describing a campus ``speak-out'' event at which sexual 
violence survivors were supposed to be able to safely share their 
stories with other but the university's mandatory reporting policy 
required any residential advisor who ``recognizes the voice of a 
speaker'' to report ``that person's name and story'' to the 
university's Title IX Coordinator, resulting in many resident 
advisors choosing to respect victims' anonymity even knowing that to 
do so violated campus policy because ``[w]hen a policy doesn't 
embody the values it's supposed to protect, sometimes it's worth 
breaking''); id. (noting that the university's mandatory reporting 
policy was a direct result of the Department's withdrawn 2011 Dear 
Colleague Letter, describing professors and staff members ``angrily 
arguing against the new policy'' because they ``can't believe the 
school is asking them to violate their students' trust,'' quoting a 
victim advocate as wondering ``if you want to help victims in their 
time of need, why not leave it up to the victim?'' and quoting a 
student volunteer at the speak-out as stating: ``Sexual harassment 
or assault is a crime of power . . . . The survivor is stripped of 
their power and control, and one of the only aspects that remains in 
their control is if, how, when, and to whom to share their story'' 
and mandatory reporting ``removes that last aspect of control that a 
survivor has.''); Allie Grasgreen, Mandatory Reporting Perils, 
Inside Higher Ed (Aug. 30, 2013) (quoting Title IX activist Andrea 
Pino as stating: ``Mandatory reporting is supposed to alleviate that 
lack of transparency but putting students in this predicament in 
which they do not feel like they can trust people for 
confidentiality is doing the opposite . . . . It's literally putting 
students in situations in which they can't be honest.'').
    \498\ Section 106.44(a) (requiring a recipient's response to 
include informing the complainant of the availability of supportive 
measures with or without the filing of a formal complaint and 
explaining to the complainant the option for filing a formal 
complaint). While elementary and secondary school students retain 
less control over when disclosure of sexual harassment triggers the 
school's mandatory response obligations, these students (with 
involvement of their parents as appropriate) do retain control over 
whether to accept supportive measures, and whether to also file a 
formal complaint. Sec.  106.44(a); Sec.  106.6(g).
---------------------------------------------------------------------------

    In response to commenters' concerns that under the proposed rules 
complainants would have difficulty finding the Title IX Coordinator or 
that there would be an increased potential for misunderstandings about 
whether a complainant wanted the school to investigate, the final 
regulations strengthen existing regulatory requirements that recipients 
notify students and employees (and parents of elementary and secondary 
school students) of the contact information for the Title IX 
Coordinator, post the Title IX Coordinator's contact information on the 
recipient's website, and disseminate information about how to report 
sexual harassment and file a formal complaint.\499\ Additionally, 
revised Sec.  106.44(a) requires the Title IX Coordinator to contact 
each complainant (which includes a parent or legal guardian, as 
appropriate) to inform the complainant of the option of filing a formal 
complaint while assuring the complainant that supportive measures are 
available irrespective of whether the complainant chooses to file a 
formal complaint.
---------------------------------------------------------------------------

    \499\ Section 106.8.
---------------------------------------------------------------------------

    Under the rubric of actual knowledge, as applied by Federal courts 
interpreting Supreme Court precedent, whether certain recipient 
employees are officials with authority is a fact specific inquiry. 
Accordingly, the final regulations: (1) Continue, as proposed in the 
NPRM, to ensure that notice to a recipient's Title IX Coordinator 
conveys actual knowledge, and (2) broaden the definition of actual 
knowledge for elementary and secondary schools to include notice to any 
school employee.\500\ In this manner, the final regulations ensure that 
students in elementary and secondary schools can discuss, disclose, or 
report a sexual harassment incident to any school employee, conveying 
actual knowledge to the school and requiring the school to respond 
appropriately, while postsecondary institutions have discretion to 
offer college and university students options to discuss or disclose 
sexual harassment experiences with institutional employees for the 
purpose of emotional support, or for the purpose of receiving 
supportive measures and/or initiating a grievance process against the 
respondent.
---------------------------------------------------------------------------

    \500\ Section 106.30 (defining ``actual knowledge'').
---------------------------------------------------------------------------

    The Department acknowledges that the actual knowledge standard 
relies on the Title IX Coordinator as an essential component of the 
process to address sexual harassment, especially in the postsecondary 
institution context. Recipients have been required to designate a Title 
IX Coordinator for decades, and the Department believes that these 
final regulations ensure that all students have clear, accessible 
options for making reports that convey

[[Page 30112]]

actual knowledge to the recipient.\501\ Nothing in these final 
regulations prevents a postsecondary institution or any other recipient 
from requiring employees who are not Title IX Coordinators or officials 
with authority, to report allegations of sexual harassment to the Title 
IX Coordinator when such employees become aware of such 
allegations.\502\
---------------------------------------------------------------------------

    \501\ Section 106.30 defines ``actual knowledge'' to include 
notice to any elementary and secondary school employee, or to any 
Title IX Coordinator, and expressly states that ``notice'' includes 
but is not limited to a report to the Title IX Coordinator as 
described in Sec.  106.8(a) (which, in turn, states that any person 
may report to the Title IX Coordinator in person or by mail to the 
office address, by telephone, or by email, using the contact 
information for the Title IX Coordinator that the recipient must 
send to students, employees, and parents and guardians of elementary 
and secondary school students). Sec.  106.8(b) (requiring recipients 
to prominently display the Title IX Coordinator's contact 
information on recipients' websites).
    \502\ We have also revised Sec.  106.30 defining ``actual 
knowledge'' to state that the mere fact that an individual is 
required to, or has been trained to, report sexual harassment, does 
not mean that individual is an ``official with authority.'' We made 
this revision so that a recipient may require and/or train 
contractors, volunteers, or others to report to a Title IX 
Coordinator (or other appropriate school personnel) without 
automatically converting any such individual into a person to whom 
notice charges the recipient with actual knowledge.
---------------------------------------------------------------------------

    The Department disagrees that the actual knowledge requirement will 
chill reports because complainants might worry that the Title IX 
Coordinator will not believe or take their reports seriously, or that 
the actual knowledge requirement violates complainants' ``right to 
safety.'' These final regulations require that a recipient's Title IX 
Coordinator receives training on how to serve impartially and without 
bias pursuant to Sec.  106.45(b)(1)(iii), and must offer each 
complainant information about supportive measures (designed in part to 
protect the complainant's safety) and how to file a formal complaint, 
under Sec.  106.44(a). If a Title IX Coordinator responds to a 
complainant by not taking a report seriously, or with bias against the 
complainant, the recipient has violated these final regulations.
    Changes: Section 106.30 defining ``actual knowledge'' is revised to 
include notice to any elementary and secondary school employee. Section 
106.44(a) adds specific requirements that the recipient must offer 
supportive measures to a complainant, and the Title IX Coordinator must 
contact each complainant to discuss availability of supportive measures 
with or without the filing of a formal complaint, consider the wishes 
of the complainant with respect to supportive measures, and explain the 
process for filing a formal complaint.
Generally Burdening Complainants
    Comments: Many commenters asserted that the actual knowledge 
definition and requirement places the burden squarely on victims to 
report harm. One commenter asserted that under the proposed rules, 
complainants--rather than recipients--would bear the responsibility to 
report sexual harassment and assault. Numerous commenters stated that 
postsecondary students are not yet full adults, and that the proposed 
regulations unrealistically assume that an 18 year old freshman in 
college is ready to face the process required by the proposed 
regulations.
    Many commenters asserted that eliminating the ``responsible 
employees'' rubric used in Department guidance will delay, if not 
totally hinder, the ability of complainants to get prompt assistance in 
the aftermath of trauma. Commenters stated that complainants will need 
to navigate the school's bureaucracy to locate and contact the Title IX 
Coordinator, which will take time, and in the meantime this will force 
complainants to continue to see their perpetrators in classes or 
dormitories while the complainant navigates the school's bureaucracy. 
Another commenter asked why the proposed regulations removed the term 
``responsible employees'' that was used in Department guidance.
    Discussion: The Department acknowledges that the actual knowledge 
requirement in the final regulations departs from the constructive 
notice approach relied on in previous Department guidance, wherein the 
Department took the position that any ``responsible employee'' (in both 
elementary and secondary schools, and postsecondary institutions) who 
knew or should have known about sexual harassment triggered the 
recipient's obligation to address sexual harassment.\503\ However, we 
disagree that the actual knowledge definition in Sec.  106.30 (as 
revised) and the actual knowledge requirement in Sec.  106.44(a), 
burden complainants or will result in delayed responses to reported 
sexual harassment. In response to commenters' concerns that students 
and employees may not know how to report to the Title IX Coordinator, 
we have revised Sec.  106.8 to better ensure that students, employees, 
and others have clear, accessible options for reporting to the Title IX 
Coordinator (including options that can be utilized during non-business 
hours), and to emphasize that reports may be made by complainants 
(i.e., the person alleged to be the victim of sexual harassment) or by 
any other person. Revised Sec.  106.8 now requires recipients to notify 
all students, employees, and parents of elementary and secondary school 
students (and others) of the Title IX Coordinator's contact 
information, to post that contact information prominently on the 
recipient's website, and specifies that ``any person'' may report using 
the listed contact information for the Title IX Coordinator.
---------------------------------------------------------------------------

    \503\ E.g., 2001 Guidance at 13.
---------------------------------------------------------------------------

    We appreciate a commenter's inquiry about the omission of 
``responsible employees'' in these final regulations. There are two 
ways in which the final regulations alter references to ``responsible 
employees.'' First, existing Title IX regulations have long used a 
heading, ``Designation of responsible employee,'' preceding 34 CFR 
106.8(a); this reference to ``responsible employee'' has always, in 
reality, been a reference to the recipient's Title IX Coordinator, and 
the Department is revising Sec.  106.8(a) to reflect this reality by 
using the phrase ``Designation of Title IX Coordinator'' in the header 
for Sec.  106.8(a) and specifying in that section that the employee 
designated and authorized by the recipient to coordinate the 
recipient's Title IX responsibilities is known as, and must be referred 
to as, the ``Title IX Coordinator.'' Second, the term ``responsible 
employee'' appears throughout the Department's past guidance documents. 
In the 2001 Guidance, the Department defined a responsible employee as 
``any employee who has the authority to take action to redress the 
harassment, who has the duty to report to appropriate school officials 
sexual harassment or any other misconduct by students or employees, or 
an individual who a student could reasonably believe has this authority 
or responsibility.'' \504\ As explained in the ``Actual Knowledge'' 
subsection of the ``Adoption and Adaption of the Supreme Court 
Framework to Address Sexual Harassment'' section of this preamble, 
these final regulations do not use the ``responsible employees'' rubric 
that was set forth in Department guidance. In the elementary and 
secondary school context, there is no need to decide which employees 
are ``responsible employees'' because under revised Sec.  106.30 
defining ``actual knowledge,'' notice to any elementary and secondary 
school employee triggers the recipient's response obligations. In the 
postsecondary institution context, these final regulations do not use 
the responsible employees rubric in its entirety, although the first of 
the three

[[Page 30113]]

categories described in guidance as ``responsible employees'' are still 
used in these final regulations, because notice to an official with 
authority is the equivalent of the category referred to in guidance as 
an employee who has the authority to redress the harassment. In the 
postsecondary institution context, the Department believes that 
complainants will benefit from allowing postsecondary institutions to 
decide which of their employees (aside from the Title IX Coordinator, 
and officials with authority) may listen to a student's disclosure of 
sexual harassment without being mandated to report the sexual 
harassment incident to the Title IX Coordinator.
---------------------------------------------------------------------------

    \504\ 2001 Guidance at 13.
---------------------------------------------------------------------------

    A recipient (including a postsecondary institution recipient) may 
give authority to as many officials as it wishes to institute 
corrective measures on behalf of the recipient, and notice to such 
officials with authority will trigger the recipient's response 
obligations. A recipient also may choose to train employees and other 
individuals, such as parent or alumni volunteers, on how to report or 
respond to sexual harassment, even if these employees and individuals 
do not have the authority to take corrective measures on the 
recipient's behalf. The Department will not penalize recipients for 
such training by declaring that having trained people results in notice 
to those people charging the recipient with actual knowledge. The 
Department recognizes that recipients may not engage in such training 
efforts if such efforts may increase the recipient's liability.\505\ 
Accordingly, these final regulations specify in the definition of 
actual knowledge in Sec.  106.30 that: The ``mere ability or obligation 
to report sexual harassment or to inform a student about how to report 
sexual harassment, or having been trained to do so, does not qualify an 
individual as one who has authority to institute corrective measures on 
behalf of the recipient.''
---------------------------------------------------------------------------

    \505\ Id. Under the 2001 Guidance and subsequent guidance 
documents, a recipient was required to ``ensure that employees are 
trained so that . . . responsible employees know that they are 
obligated to report harassment to appropriate school officials.'' 
2001 Guidance at 13. Accordingly, training an employee may have 
increased the recipient's liability, as such training indicated the 
recipient's intention to treat the trained employees as responsible 
employees. (For reasons explained in this subsection ``Actual 
Knowledge'' under the section ``Section 106.30 Definitions'' as well 
as the ``Actual Knowledge'' subsection of the ``Adoption and 
Adaption of the Supreme Court's Framework to Address Sexual 
Harassment'' section of this preamble, the Department no longer 
adheres to the rubric of ``responsible employees'' for reasons that 
differ for elementary and secondary schools, than for postsecondary 
institutions.) These final regulations require training for Title IX 
Coordinators, investigators, decision-makers, and any person who 
facilitates an informal resolution process. Sec.  106.45(b)(1)(iii). 
A recipient may train more employees or other persons without fear 
of creating liability because the ``mere ability or obligation to 
report sexual harassment or having been trained to do so, does not 
qualify an individual as one who has authority to institute 
corrective measures on behalf of the recipient,'' as described in 
the definition of ``actual knowledge'' in Sec.  106.30.
---------------------------------------------------------------------------

    The Department disagrees that the actual knowledge requirement will 
delay implementation of emergency or urgently needed supportive 
measures compared to policies developed under a constructive notice 
requirement. In elementary and secondary schools the final regulations 
provide that reporting to any school employee triggers the school's 
prompt response. Once the elementary or secondary school has actual 
knowledge of sexual harassment, under revised Sec.  106.44(a), the 
recipient must promptly offer the complainant supportive measures, and 
the Title IX Coordinator must promptly contact the complainant to 
discuss the availability of supportive measures as defined in Sec.  
106.30, consider the complainant's wishes with respect to supportive 
measures, inform the complainant of the availability of supportive 
measures with or without the filing of a formal complaint, and explain 
to the complainant the process for filing a formal complaint. The same 
obligations to respond promptly are triggered in postsecondary 
institutions whenever the Title IX Coordinator or an official with 
authority has notice of sexual harassment.
    Although commenters asserted that some complainants, even at 
postsecondary institutions, are too young, immature, or traumatized to 
contact a Title IX Coordinator, the Department notes that nothing in 
the final regulations prevents a complainant from first discussing the 
harassment situation with a trusted mentor or having a supportive 
friend with them to meet with or otherwise report to the Title IX 
Coordinator. The Department reiterates that under the final 
regulations, a complainant may report to the Title IX Coordinator and 
receive supportive measures without filing a formal complaint or 
otherwise participating in a grievance process, that reports can be 
made using any of the contact information for the Title IX Coordinator 
including office address, telephone number, or email address, and that 
reports by phone or email may be made at any time, including during 
non-business hours. Thus, we believe that the final regulations provide 
clear, accessible reporting options and will not cause delays in the 
responsibility or ability of a Title IX Coordinator to receive a report 
and then respond promptly, including by discussing with the complainant 
services that may be urgently needed to preserve a complainant's equal 
educational access, protect the complainant's safety, and/or deter 
sexual harassment, offering supportive measures to the complainant, and 
remaining responsible for effective implementation of the supportive 
measures.\506\
---------------------------------------------------------------------------

    \506\ Section 106.30 (defining ``supportive measures'' in 
pertinent part to mean individualized services, reasonably 
available, offered without fee or charge, designed to restore or 
preserve a complainant's equal access to the recipient's education 
program or activity without unreasonably burdening the other party, 
and/or designed to protect the complainant's safety or deter sexual 
harassment, and stating that the Title IX Coordinator is responsible 
for effective implementation of supportive measures).
---------------------------------------------------------------------------

    Changes: The Department revised the definition of actual knowledge 
in Sec.  106.30 to add that the mere ability or obligation to report 
sexual harassment or to inform a student about how to report sexual 
harassment, or having been trained to do so, does not qualify an 
individual, as one who has the authority to institute corrective 
measures on behalf of the recipient. We have also revised Sec.  
106.44(a) to require the recipient promptly to offer the complainant 
supportive measures and to require the Title IX Coordinator promptly to 
contact the complainant to discuss the availability of supportive 
measures as defined in Sec.  106.30, consider the complainant's wishes 
with respect to supportive measures, inform the complainant of the 
availability of supportive measures with or without the filing of a 
formal complaint, and explain to the complainant the process for filing 
a formal complaint.
Employees' Obligations
    Comments: Several commenters expressed concern that the definition 
of actual knowledge means that some employees previously designated as 
``responsible employees'' or mandatory reporters under Department 
guidance would no longer undergo training about sexual violence on 
campus. Many commenters believed that under the proposed rules, fewer 
employees would be mandatory reporters and thus would be untrained when 
students disclose an incident of sexual harassment. Many commenters 
asserted that, without mandatory reporting, professors, coaches, 
resident advisors, or teaching assistants may respond to victims based 
on personal preferences or biases (perhaps because the employee knows 
the accused student, or is biased against believing complainants), and 
argued that this will impact victims' ability to obtain assistance from 
unbiased, trained

[[Page 30114]]

personnel. Several commenters argued that this, in turn, will expose 
recipients to increased litigation for failure to respond to sexual 
misconduct known by their faculty and staff but not reported to their 
Title IX offices.
    Another commenter asked the Department to reexamine existing 
regulations under the Clery Act to determine whether student employees 
who are campus security authorities (CSAs) under the Clery Act have 
conflicting duties under the proposed regulations and the Clery Act 
regulations.
    Another commenter asked the Department to clarify why coaches and 
athletic trainers were not designated in the proposed rules as 
responsible employees, when this poses a conflict with NCAA (National 
Collegiate Athletic Association) guidelines.
    One commenter asked what officials the Department considers to have 
the ``authority to initiate corrective measures,'' believing that the 
language in the proposed rules could be interpreted to limit that role 
to only the Title IX Coordinator. Relatedly, several commenters 
requested that the Department provide clarity on what constitutes 
``authority to initiate corrective measures'' and what types of 
corrective measures would be included; commenters argued that all staff 
and faculty have at least some ability to initiate some types of 
corrective measures.
    At least one commenter asserted that requiring institutions, such 
as the commenter's community college, to respond only when the 
institution has actual notice, is a positive development. The commenter 
asserted that the commenter's institution employs part-time and 
contract employees, and vendors, outside the institution's direct 
control with no authority to institute corrective measures. This 
commenter therefore appreciated the flexibility offered under the 
proposed rules, for postsecondary institutions to design their own 
mandatory reporting policies. One commenter, a graduate student 
instructor, asserted that the actual knowledge definition was helpful 
to clarify the commenter's role and asserted that current guidance is 
unclear.
    One commenter, a Title IX Coordinator at a university, asserted 
that the constructive notice standard is difficult to implement. The 
commenter stated that those not directly involved in Title IX 
compliance or student conduct, such as full-time faculty, seem to have 
trouble understanding the complexity of the law in that area, even with 
training.
    Discussion: The 2001 Guidance indicated that responsible employees 
should be trained to report sexual harassment to appropriate school 
officials.\507\ Not all employees, however, were responsible employees 
and, thus, not all employees had an obligation to report sexual 
harassment to the Title IX Coordinator or other school officials. With 
respect to training, the Department in its 2001 Guidance stated: 
``Schools need to ensure that employees are trained so that those with 
authority to address [sexual] harassment know how to respond 
appropriately, and other responsible employees know that they are 
obligated to report [sexual] harassment to appropriate officials.'' 
\508\ Under the 2001 Guidance, such ``[t]raining for employees . . . 
include[s] practical information about how to identify [sexual] 
harassment and, as applicable, the person to whom it should be 
reported.'' \509\ As discussed previously, these final regulations no 
longer use a responsible employees rubric, and instead define the pool 
of employees to whom notice triggers a recipient's response obligations 
differently for elementary and secondary schools, and for postsecondary 
institutions. Like the 2001 Guidance, these final regulations 
incentivize recipients to train their employees; however, rather than 
mandate training of all employees, these final regulations require 
robust, specific training of every recipient's Title IX Coordinator 
\510\ and place specific response obligations on Title IX 
Coordinators.\511\ The Department believes that this approach most 
effectively ensures that recipients meet their Title IX obligations: 
the Department will hold recipients accountable for meeting Title IX 
obligations, the Department requires Title IX Coordinators to be well 
trained, and the Department leaves recipients discretion to determine 
the kind of training to other employees that will best enable the 
recipient, and its Title IX Coordinator, to meet Title IX obligations. 
Accordingly, the Department disagrees with commenters that removing any 
``mandatory reporting'' requirement or the ``responsible employee'' 
rubric allows employees to freely respond to victims out of personal 
preferences or biases. For example, an elementary or secondary school 
recipient must promptly offer supportive measures to a complainant 
under Sec.  106.44(a) whenever one of its employees has notice of 
sexual harassment, and the Title IX Coordinator specifically must 
contact the complainant. This ensures that the recipient is responsible 
for having an employee specially trained in Title IX matters (including 
the obligation to be free from bias, impartial, and having been trained 
with materials that do not rely on sex stereotypes) \512\ communicates 
with the complainant. Regardless of the training a recipient gives to 
employees, the Department will hold the recipient accountable for 
meeting the recipient's response obligations under Sec.  106.44(a) and 
for designating and authorizing a Title IX Coordinator \513\ who has 
been trained to serve free from bias. For reasons discussed previously, 
including in the ``Actual Knowledge'' subsection of the ``Adoption and 
Adaption of the Supreme Court's Framework to Address Sexual 
Harassment'' section of this preamble, the Department believes that 
allowing postsecondary institution recipients to decide how its 
employees (other than the Title IX Coordinator, and officials with 
authority) respond to notice of sexual harassment appropriately 
respects the autonomy of postsecondary students to choose to disclose 
sexual harassment to employees for the purpose of triggering the 
postsecondary institution's Title IX response obligations, or for 
another purpose (for example, receiving emotional support without 
desiring to ``officially'' report). In order to ensure that all 
students and employees have clear, accessible reporting channels, we 
have revised Sec.  106.8 to require a recipient to notify its 
educational community of the contact information for the Title IX 
Coordinator \514\ and post

[[Page 30115]]

that contact information prominently on the recipient's website, and to 
expressly state that ``any person'' may report sexual harassment at any 
time, including during non-business hours, by using the telephone 
number or email address (or by mail to the office address) listed for 
the Title IX Coordinator, to emphasize that giving the Title IX 
Coordinator notice of sexual harassment that triggers the recipient's 
response obligations does not require scheduling an in-person 
appointment with the Title IX Coordinator.
---------------------------------------------------------------------------

    \507\ 2001 Guidance at 13.
    \508\ 2001 Guidance at 13.
    \509\ Id.
    \510\ Section 106.45(b)(1)(iii).
    \511\ E.g., Sec.  106.44(a) (the Title IX Coordinator must 
promptly contact each person alleged to be the victim of sexual 
harassment--i.e., each complainant--regardless of who reported the 
complainant's sexual harassment victimization, and must discuss with 
the complainant the availability of supportive measures with or 
without the filing of a formal complaint, the complainant's wishes 
with respect to supportive measures, and the option of filing a 
formal complaint that initiates a grievance process against a 
respondent).
    \512\ Section 106.45(b)(1)(iii) (describing mandatory training, 
and requirements to be free from bias, for the Title IX 
Coordinator).
    \513\ Section 106.8(a).
    \514\ Section 106.8(a) is also revised to require recipients to 
refer to the employee designated and authorized to coordinate the 
recipient's Title IX obligations as ``the Title IX Coordinator,'' in 
order to further clarify for students and employees the Title IX 
Coordinator's role and function. Thus, for example, a recipient may 
designate one employee to coordinate multiple types of anti-
discrimination and diversity efforts, yet the recipient must use the 
title ``Title IX Coordinator'' in its notices to students and 
employees, on its website, and so forth so that the recipient's 
educational community knows who to contact to report sex 
discrimination, including sexual harassment.
---------------------------------------------------------------------------

    Additionally, if a postsecondary institution would like to train 
all employees or require all employees to report sexual harassment to 
the Title IX Coordinator through policies that these final regulations 
do not require, then the postsecondary institution may do so without 
fearing that the Department will hold the postsecondary institution 
responsible for responding to sexual harassment allegations unless the 
recipient's employee actually did give notice to the recipient's Title 
IX Coordinator (or to an official with authority).\515\ The Department 
revised Sec.  106.30 defining ``actual knowledge'' to expressly state 
that the mere ability or obligation to inform a student about how to 
report sexual harassment or having been trained to do so will not 
qualify an individual as one who has authority to institute corrective 
measures on behalf of the recipient. Postsecondary institutions, thus, 
may train as many employees as they would like or impose mandatory 
reporting requirements on their employees without violating these final 
regulations, and may make those training decisions based on what the 
recipient believes is in the best interest of the recipient's 
educational community. A postsecondary institution's decisions 
regarding employee training and mandatory reporting for employees may, 
for example, take into account that students at postsecondary 
institutions may benefit from knowing they can discuss sexual 
harassment experiences with a trusted professor, resident advisor, or 
other recipient employee without such a discussion automatically 
triggering a report to the Title IX office, or may take into account 
whether the postsecondary institution has Clery Act obligations that 
require training on reporting obligations for CSAs, or whether the 
institution is expected to adhere to NCAA guidelines.
---------------------------------------------------------------------------

    \515\ As noted by a commenter on behalf of a community college, 
this flexibility applies in the postsecondary institution context 
regarding how the institution decides to train, or have a mandatory 
reporting policy for, all employees who are not the Title IX 
Coordinator or an official with authority, such as the institution's 
part-time employees or vendors who are independent contractors to 
whom the institution has not given authority to institute corrective 
measures on behalf of the institution. In the elementary and 
secondary school context, this flexibility is more limited, because 
the final regulations hold the school responsible for responding 
whenever any employee has notice of sexual harassment. However, this 
flexibility (to train individuals, or to require individuals to 
report sexual harassment to the Title IX Coordinator) still applies 
to elementary and secondary school recipients, for example with 
respect to independent contractor vendors, or non-employee 
volunteers who interact with students.
---------------------------------------------------------------------------

    With respect to both elementary and secondary schools as well as 
postsecondary institutions, the Department does not limit the manner in 
which the recipient may receive notice of sexual harassment. Although 
imputation of knowledge based solely on vicarious liability or 
constructive notice is insufficient to constitute actual knowledge, a 
Title IX Coordinator, an official with authority to institute 
corrective measures on behalf of the recipient, and any employee of an 
elementary and secondary school may receive notice through an oral 
report of sexual harassment by a complainant or anyone else, a written 
report, through personal observation, through a newspaper article, 
through an anonymous report, or through various other means. The 
Department will not permit a recipient to ignore sexual harassment if 
the recipient has actual knowledge of such sexual harassment in its 
education program or activity against a person in the U.S., and such a 
recipient is required to respond to sexual harassment as described in 
Sec.  106.44(a).
    The Department disagrees with commenters who are concerned that the 
actual knowledge requirement would expose recipients to increased 
litigation. Because the Department developed the actual knowledge 
requirement on the foundation of the Supreme Court's Title IX cases, 
the Department disagrees that recipients will be subject to increased 
litigation risk by adhering to these final regulations.\516\ Indeed, if 
recipients comply with these final regulations, these final regulations 
may have the effect of decreasing litigation because recipients with 
actual knowledge would be able to demonstrate that they were not 
deliberately indifferent in responding to a report of sexual 
harassment. Recipients would be able to demonstrate that they offered 
supportive measures in response to a report of sexual harassment, 
irrespective of whether the complainant chose to file a formal 
complaint, and informed the complainant about how to file such a formal 
complaint.
---------------------------------------------------------------------------

    \516\ See the ``Adoption and Adaption of the Supreme Court's 
Framework to Address Sexual Harassment'' section, and the 
``Litigation Risk'' subsection of the ``Miscellaneous'' section, of 
this preamble.
---------------------------------------------------------------------------

    The Department has examined these final regulations in light of its 
regulations implementing the Clery Act, and has determined that these 
final regulations do not create any conflicts with respect to CSAs and 
their obligations under the regulations implementing the Clery Act. For 
discussion about these final regulations and the regulations 
implementing the Clery Act, see the discussion in the ``Clery Act'' 
subsection of the ``Miscellaneous'' section of this preamble. The 
Department is not under an obligation to conform these final 
regulations with NCAA compliance guidelines and declines to do so. Any 
recipient may give coaches and trainers authority to institute 
corrective measures on behalf of the recipient such that notice to 
coaches and trainers conveys actual knowledge to the recipient as 
defined in Sec.  106.30. Additionally, or alternatively, any recipient 
may train coaches and athletic trainers to report notice of sexual 
harassment to the recipient's Title IX Coordinator. We reiterate that 
as to elementary and secondary schools, notice to a coach or trainer 
charges the recipient with actual knowledge, if the coach or trainer is 
an employee.
    As discussed in the ``Adoption and Adaption of the Supreme Court's 
Framework to Address Sexual Harassment'' section of this preamble, the 
Supreme Court developed the concept of officials with authority to 
institute corrective measures on behalf of the recipient based on the 
administrative enforcement requirement in 20 U.S.C. 1682 that an agency 
must give notice of a Title IX violation to ``an appropriate person'' 
affiliated with the recipient before an agency seeks to terminate the 
recipient's Federal funding, and that an appropriate official is one 
who can make a decision to correct the violation. Whether a person 
constitutes an official of the recipient who has authority to institute 
corrective measures on behalf of the recipient is a fact-specific 
determination \517\ and the

[[Page 30116]]

Department will look to Federal case law applying the Gebser/Davis 
framework. Because determining which employees may be officials with 
authority'' is fact-specific, the Department focuses administrative 
enforcement on (1) requiring every recipient to designate a Title IX 
Coordinator, notice to whom the Department deems as conveying actual 
knowledge to the recipient, and (2) applying an expanded definition of 
actual knowledge in the elementary and secondary school context to 
include notice to any school employee. The Department notes that 
recipients may, at their discretion, expressly designate specific 
employees as officials with authority for purposes of Title IX sexual 
harassment, and may inform students of such designations.
---------------------------------------------------------------------------

    \517\ E.g., Julie Davies, Assessing Institutional Responsibility 
for Sexual Harassment in Education, 77 Tulane L. Rev. 387, 398, 425-
26 (2002) (``The requirement of actual notice to a person with 
corrective authority is more complex than it appears on its face. A 
person who has corrective authority in one sphere, such as a teacher 
with regard to students in his class, may lack such authority in 
other contexts. While one can understand the potential unfairness to 
educational institutions if liability were imposed for failure to 
take action when harassing conduct is described in some general 
manner to someone who is not in a capacity to evaluate, investigate, 
or intercede in any way, courts cannot rely exclusively on a job 
description. The legal authority of individuals to receive notice is 
clearly relevant and a basis for their inclusion as parties to whom 
notice may be given, but courts must also evaluate the factual 
reality. Reference to legal power to take the ultimate corrective 
action gives an incomplete picture of how power is wielded. The 
Court's policy goals permit a construction that is broad and 
flexible, both as to what constitutes notice and who is in a 
position to take action.'') (internal citations omitted); Brian 
Bardwell, No One is an Inappropriate Person: The Mistaken 
Application of Gebser's ``Appropriate Person'' Test to Title IX 
Peer-Harassment Cases, 68 Case W. Res. L. Rev. 1343, 1356-64 (2018) 
(analyzing case law applying the ``official with authority'' 
standard and noting that some courts focus on whether the 
``appropriate person'' to whom sexual harassment was reported had 
authority to discipline the harasser, or the authority to remediate 
the situation for the victim, or both types of authority, and 
arguing that only a broader interpretation of an ``appropriate 
person'' serves the goals of Title IX, such that any school employee 
authorized to ``take action to ensure that a victim continues to 
enjoy the full benefits of her [or his] education, despite having 
been harassed or assaulted'' should be deemed authority to institute 
``corrective action'' and satisfy the Gebser actual knowledge 
condition). The final regulations essentially take this broader 
approach in the elementary and secondary school context, where 
notice to any employee charges the school with actual knowledge, but 
in the postsecondary institution context leaves institutions 
flexibility to choose the officials to whom the institution grants 
authority to institute corrective measures on the recipient's 
behalf. Recognizing that case law under the Gebser/Davis framework 
has taken different approaches to what constitutes ``corrective 
action'' the final regulations emphasize a recipient's obligation to 
ensure that its entire educational community knows how to readily, 
accessibly report sexual harassment to the Title IX Coordinator.
---------------------------------------------------------------------------

    Changes: The Department revised Sec.  106.30 to expressly state 
that the mere ability or obligation to inform a student about how to 
report sexual harassment or having been trained to do so will not 
qualify an individual as one who has authority to institute corrective 
measures on behalf of the recipient.
Elementary and Secondary Schools
    Comments: Many commenters expressed concerns about how the Sec.  
106.30 definition of ``actual knowledge'' will apply to students at 
elementary and secondary schools. Commenters asserted that elementary 
and secondary school students suffer a particular harm when adult 
employees prey upon them, and those same adults can pressure those 
students to stay silent. Some commenters asserted that the proposed 
rules conflict with robust State laws and regulations that require 
mandatory reporting of suspected child abuse or domestic violence. 
Several commenters characterized the actual knowledge requirement as 
dramatically narrowing the scope of elementary and secondary school 
employees' obligation to respond to sexual harassment by using an 
actual knowledge requirement instead of a constructive notice 
requirement. These commenters contended that the proposed rules' actual 
knowledge requirement would harm children because it would exclude 
school district personnel who regularly interact with students, 
including school principals, paraeducators, school counselors, coaches, 
school bus drivers, and others, from the group of officials to whom 
notice charges the school with actual knowledge.
    Discussion: The Department is persuaded that students in elementary 
and secondary schools who are typically younger than students in 
postsecondary institutions must be able to report sexual harassment to 
an employee other than a teacher, Title IX Coordinator, or official 
with authority, to trigger the school's mandatory response obligations. 
We agree that it is unreasonable to expect young children to seek out 
specific employees for the purpose of disclosing Title IX sexual 
harassment. Elementary and secondary school employees other than the 
Title IX Coordinator, teachers, or officials with authority may observe 
or witness sexual harassment or have notice of sexual harassment 
through other means such as a third-party report, and we agree that in 
the elementary and secondary school context such notice must trigger 
the school's mandatory response obligations because otherwise, a young 
complainant may not be offered supportive measures or know of the 
option to file a formal complaint that initiates a grievance process 
against the respondent. Further, we recognize that in the elementary 
and secondary school context, a young student's ability to make 
decisions regarding appropriate supportive measures, or about whether 
to file a formal complaint, would be impeded without the involvement of 
a parent or guardian who has the legal authority to act on the 
student's behalf. Accordingly, the Department expands the definition of 
actual knowledge in Sec.  106.30 to include ``any employee of an 
elementary and secondary school'' and adds Sec.  106.6(g) expressly 
recognizing the legal rights of parents and guardians to act on behalf 
of a complainant (or respondent) in any Title IX matter. While the 
imputation of knowledge based solely on the theories of vicarious 
liability or constructive notice is insufficient, notice of sexual 
harassment to elementary and secondary school employees, who may 
include school principals, teachers, school counselors, coaches, school 
bus drivers, and all other employees, will obligate the recipient to 
respond to Title IX sexual harassment.
    The actual knowledge requirement is not satisfied when the only 
official or employee of the recipient with actual knowledge of the 
harassment is the respondent, because the recipient will not have 
opportunity to appropriately respond if the only official or employee 
who knows is the respondent. We understand that in some situations, a 
school employee may perpetrate sexual harassment against a student and 
then pressure the complainant to stay silent, and that if the 
complainant does not disclose the misconduct to anyone other than the 
employee-perpetrator, this provision means that the school is not 
obligated to respond. However, if the complainant tells another school 
employee about the misconduct, the school is charged with actual 
knowledge and must respond. Further, if the complainant tells a parent, 
or a friend, or a trusted adult in the complainant's life, that third 
party has the right to report sexual harassment to the school's Title 
IX Coordinator, obligating the school to promptly respond, even if that 
third party has no affiliation with the school.\518\
---------------------------------------------------------------------------

    \518\ Section 106.8(a) (emphasizing that ``any person'' may 
report sexual harassment to the Title IX Coordinator).
---------------------------------------------------------------------------

    As previously explained in the ``Employees' Obligations'' 
subsection of this ``Actual Knowledge'' section, the definition of 
actual knowledge in these final regulations does not necessarily narrow 
the scope of an elementary or secondary school's obligation to respond 
to Title IX sexual harassment as compared to the approach taken in 
Department guidance. Under the 2001 Guidance, a school had ``notice if 
a responsible employee `knew or in the exercise of reasonable care 
should have

[[Page 30117]]

known,' about the harassment.'' \519\ Responsible employees, however, 
did not include all employees. Under these final regulations, notice of 
sexual harassment or allegations of sexual harassment to any employee 
of an elementary or secondary school charges the recipient with actual 
knowledge to the elementary or secondary school and triggers the 
recipient's obligation to respond. The Department's revised definition 
of actual knowledge with respect to elementary and secondary schools, 
thus, arguably broadens and does not narrow an elementary or secondary 
school's obligation to respond to Title IX sexual harassment compared 
to the approach taken in Department guidance.
---------------------------------------------------------------------------

    \519\ 2001 Guidance at 13.
---------------------------------------------------------------------------

    The Department recognizes that most State laws require elementary 
and secondary school employees to report sexual harassment when it 
constitutes a form of child abuse. Even though the Department is not 
required to align these Federal regulations with mandatory reporter 
requirements in State laws, the Department chooses to do so in the 
context of elementary and secondary schools. The Department's prior 
guidance did not require an elementary or secondary school to respond 
to Title IX sexual harassment when any employee had notice of Title IX 
sexual harassment.\520\ These final regulations do so. The Department 
acknowledges that State laws may exceed the requirements in these final 
regulations as long as State laws do not conflict with these final 
regulations as explained more fully in the ``Section 106.6(h) 
Preemptive Effect'' subsection of the ``Clarifying Amendments to 
Existing Regulations'' section of this preamble. Commenters have not 
identified a conflict with respect to the actual knowledge definition 
in Sec.  106.30, and any State law, in the context of elementary and 
secondary schools.
---------------------------------------------------------------------------

    \520\ Id.
---------------------------------------------------------------------------

    Changes: The Department revised Sec.  106.30 to specify that notice 
of sexual harassment to any employee of an elementary and secondary 
school constitutes actual knowledge to the recipient, and triggers the 
recipient's obligation to respond to sexual harassment.
Large Schools
    Comments: Multiple commenters asserted that students at large 
institutions--such as schools with more than one campus or with 
enrollments over 5,000 students--are disadvantaged by the actual 
knowledge requirement because students will be required to seek out a 
single administrator (the Title IX Coordinator) whose office may be 
located on a different campus or in another zip code and who has 
responsibilities for tens of thousands of other students, faculty, and 
staff.
    Several commenters also questioned how the proposed rules, 
including the actual knowledge definition in Sec.  106.30, will burden 
Title IX Coordinators. Commenters asserted that the requirement for 
actual knowledge will significantly burden Title IX Coordinators who 
must now receive and process all sexual harassment and assault reports. 
Commenters expressed concern that for larger campuses, this could 
overwhelm an already overtaxed position on campuses, cause higher 
turnover rates for the position of Title IX Coordinator, and result in 
ineffective administration of Title IX. Many commenters argued that the 
proposed rules, and their focus on the Title IX Coordinator's 
responsibilities, would add to schools' overall administrative burdens.
    Discussion: The Department's regulatory authority under Title IX 
extends to recipients of Federal financial assistance which operate 
education programs or activities.\521\ Requirements such as designation 
of a Title IX Coordinator therefore apply to each ``recipient,'' for 
example to a school district, or to a university system, regardless of 
the recipient's size in terms of student enrollment or number of 
schools or campuses. Title IX's non-discrimination mandate extends to 
every recipient's education programs or activities.\522\ These final 
regulations at Sec.  106.8(a), similar to current 34 CFR 106.9, require 
recipients to designate ``at least one'' employee to serve as a Title 
IX Coordinator. As the Department has recognized in guidance 
documents,\523\ some recipients serve so many students, or find it 
administratively convenient for other reasons, that the recipient may 
need to or wish to designate multiple employees as Title IX 
Coordinators, or designate a Title IX Coordinator and additional staff 
to serve as deputy Title IX Coordinators, or take other administrative 
steps to ensure that the Title IX Coordinator can adequately fulfill 
the recipient's Title IX obligations, including all obligations imposed 
under these final regulations. The Department is sensitive to the 
financial and resource challenges faced by many recipients, the 
Department's responsibility is to regulate in a manner that best 
effectuates the purposes of Title IX, to prevent recipients that allow 
discrimination on the basis of sex from receiving Federal financial 
assistance, and to provide individuals with effective protections 
against discriminatory practices.\524\ The Department is aware that 
many recipients face high turnover rates with respect to the Title IX 
Coordinator position \525\ and that some recipients struggle to 
understand the critical role that Title IX Coordinators need to have in 
fulfilling a recipient's Title IX responsibilities. However, the 
Department intends through these final regulations to further stress 
the critical role of each recipient's Title IX Coordinator, a role that 
is emphasized

[[Page 30118]]

throughout the final regulations \526\ in ways that the Department is 
aware will require recipients to carefully ``designate and authorize'' 
Title IX Coordinators. The Department revised Sec.  106.8(a) to require 
a recipient to give the Title IX Coordinator authority (i.e., 
authorize) to meet specific responsibilities as well as to coordinate 
the recipient's overall efforts to comply with Title IX and these final 
regulations. The Department believes this emphasis on the need for 
recipients to rely heavily on Title IX Coordinators to fulfill 
recipient's obligations will result in more recipients effectively 
responding to Title IX sexual harassment because recipients will be 
incentivized to properly train and authorize qualified individuals to 
serve this important function. The Department understands some 
commenters' concerns that Title IX Coordinators will be burdened by, 
and that recipients will face administrative burdens under, these final 
regulations, but the Department believes that the obligations in these 
final regulations are the most effective way to effectuate Title IX's 
non-discrimination mandate, and believes that the function of a Title 
IX Coordinator is necessary to increase the likelihood that recipients 
will fulfill those obligations. At the same time, the Department will 
not impose a requirement on recipients to designate multiple Title IX 
Coordinators, so that recipients devote their resources in the most 
effective and efficient manner. If a recipient needs more than one 
Title IX Coordinator in order to meet the recipient's Title IX 
obligations, the recipient will take that administrative step, but the 
Department declines to assume the conditions under which a recipient 
needs more than one Title IX Coordinator in order to meet the 
recipient's Title IX obligations.
---------------------------------------------------------------------------

    \521\ 20 U.S.C. 1681(a) (referring to any education program or 
activity that receives Federal financial assistance); 34 CFR 
106.2(i) (defining ``recipient'' to mean ``any State or political 
subdivision thereof, or any instrumentality of a State or political 
subdivision thereof, any public or private agency, institution, or 
organization, or other entity, or any person, to whom Federal 
financial assistance is extended directly or through another 
recipient and which operates an education program or activity which 
receives such assistance, including any subunit, successor, 
assignee, or transferee thereof'').
    \522\ See 20 U.S.C. 1687 (defining ``program or activity''); 34 
CFR 106.2(h) (defining ``program or activity'').
    \523\ E.g., 2001 Guidance at 21 (``Because it is possible that 
an employee designated to handle Title IX complaints may himself or 
herself engage in harassment, a school may want to designate more 
than one employee to be responsible for handling complaints in order 
to ensure that students have an effective means of reporting 
harassment.''); 2011 Dear Colleague Letter at 7 (stating that each 
recipient must designate one Title IX Coordinator but may designate 
more than one). The Department's Title IX implementing regulations 
have, since 1975, required each recipient to designate at least one 
employee to coordinate the recipient's efforts to comply with Title 
IX. 34 CFR 106.8(a). These final regulations are thus consistent 
with current regulations and with all past Department guidance on 
this matter, but impose new legal obligations on recipients to, for 
example, include an email address for the Title IX Coordinator and 
require all the contact information for the Title IX Coordinator to 
be posted on the recipient's website. Sec.  106.8.
    \524\ See, e.g., Cannon v. Univ. of Chicago, 441 U.S. 677, 704 
(1979) (describing the purposes of Title IX).
    \525\ E.g., Sarah Brown, Life Inside the Title IX Pressure 
Cooker, Chronicle of Higher Education (Sept. 5, 2019) (``Nationwide, 
the administrators who are in charge of dealing with campus sexual 
assault and harassment are turning over fast. Many colleges have had 
three, four, or even five different Title IX coordinators in the 
recent era of heightened enforcement, which began eight years ago. 
Two-thirds of Title IX coordinators say they've been in their jobs 
for less than three years, according to a 2018 survey by the 
Association of Title IX Administrators, or ATIXA, the field's 
national membership group. One-fifth have held their positions for 
less than a year.''); Jacquelyn D. Wiersma-Mosley & James DiLoreto, 
The Role of Title IX Coordinators on College and University 
Campuses, 8 Behavioral. Sci. 4 (2018) (finding that most Title IX 
Coordinators have fewer than three years of experience, and 
approximately two-thirds are employed in positions in addition to 
serving as the Title IX Coordinator).
    \526\ E.g., Sec.  106.8(a) (stating recipients now must not only 
designate, but also ``authorize'' a Title IX Coordinator, and must 
notify students and employees (and others) of the Title IX 
Coordinator's contact information); Sec.  106.8(b)(2) (requiring a 
recipient to post contact information for any Title IX Coordinators 
on the recipient's website); Sec.  106.30 (defining ``actual 
knowledge'' and stating notice to a Title IX Coordinator gives the 
recipient actual knowledge and ``notice'' includes but is not 
limited to a report to the Title IX Coordinator as described in 
Sec.  106.8(a)); Sec.  106.30 (defining ``formal complaint'' and 
stating a Title IX Coordinator may sign a formal complaint 
initiating a Sec.  106.45 grievance process); Sec.  106.44(a) 
(stating the Title IX Coordinator must contact each complainant to 
discuss the availability of supportive measures); Sec.  106.30 
(defining ``supportive measures'' and mandating that Title IX 
Coordinators are responsible for effective implementation of 
supportive measures); Sec.  106.45(b)(1)(iii) (stating Title IX 
Coordinators must be free from conflicts of interest and bias, and 
must be trained on, among other things, how to serve impartially); 
Sec.  106.45(b)(3)(ii) (stating a complainant may notify the Title 
IX Coordinator that the complainant wishes to withdraw a formal 
complaint); Sec.  106.45(b)(7)(iv) (mandating that Title IX 
Coordinators are responsible for the effective implementation of 
remedies).
---------------------------------------------------------------------------

    Because of the crucial role of Title IX Coordinators, the final 
regulations update and strengthen the requirements that recipients 
notify students, employees, parents of elementary and secondary school 
students, and others, of the Title IX Coordinator's contact information 
and about how to make a report or file a formal complaint.\527\ In 
further response to commenters' concerns that students may not know how 
to contact a Title IX Coordinator, the final regulations require the 
Title IX Coordinator's contact information (which must include an 
office address, telephone number, and email address) to be posted on 
recipients' websites,\528\ expressly state that any person may report 
sexual harassment using the listed contact information for the Title IX 
Coordinator or any other means that results in the Title IX Coordinator 
receiving the person's verbal or written report, specify that such a 
report may be made ``at any time (including during non-business 
hours)'' using the Title IX Coordinator's listed telephone number or 
email address.\529\ The final regulations also revise the definition of 
``formal complaint'' to specify that a formal complaint may be filed in 
person, by mail, or by email using the listed contact information for 
the Title IX Coordinator.\530\ The Department's intent is to increase 
the likelihood that students and employees know how to contact, and 
receive supportive measures and accurate information from, a trained 
Title IX Coordinator.\531\ Requiring the contact information for a 
Title IX Coordinator to include an office address, email address, and 
telephone number pursuant to Sec.  106.8(a) obviates some commenters' 
concerns that complainants will need to travel to physically report in 
person or face-to-face with a Title IX Coordinator.\532\ Thus, even if 
the recipient's Title IX Coordinator is located on a different campus 
from the student or in an administrative building outside the school 
building where a student attends classes, any person may report to the 
Title IX Coordinator using the Title IX Coordinator's listed contact 
information, providing accessible reporting options.\533\ The 
Department believes these requirements concerning a Title IX 
Coordinator are sufficient to hold recipients accountable for complying 
with these final regulations, while leaving recipients flexibility to 
decide, in a recipient's discretion, whether designation of multiple 
Title IX Coordinators, or deputy Title IX Coordinators, might be 
necessary and where any Title IX office(s) should be located, given a 
recipient's needs in terms of enrollment, geographic campus locations, 
and other factors.
---------------------------------------------------------------------------

    \527\ E.g., Sec.  106.8(a); Sec.  106.8(c). These requirements 
apply specifically to reports and formal complaints of sexual 
harassment, but also apply to reports and complaints of non-sexual 
harassment forms of sex discrimination.
    \528\ Section 106.8(b)(2).
    \529\ Section 106.8(a).
    \530\ Section 106.30 (defining ``formal complaint'').
    \531\ Section 106.45(b)(1)(iii) (describing required training 
for Title IX Coordinators and other Title IX personnel).
    \532\ This requirement also mirrors the requirement (updated to 
include modern communication via email) in the 2001 Guidance that 
the ``school must notify all of its students and employees of the 
name, office address, and telephone number of the employee or 
employees designated'' to coordinate its efforts to comply with and 
carry out its Title IX responsibilities. 2001 Guidance at 21.
    \533\ For additional accessibility and ease of reporting, 
revised Sec.  106.8(a) further states that any person may report at 
any time (including during non-business hours) by using the 
telephone number or email address, or by mail to the office address, 
listed for the Title IX Coordinator.
---------------------------------------------------------------------------

    Changes: Section 106.8(a) is revised to require that recipients 
must not only designate, but also ``authorize'' a Title IX Coordinator 
to coordinate the recipient's Title IX obligations. This provision is 
also revised to require recipients to notify students, employees, 
parents of elementary and secondary school students, and others, of the 
Title IX Coordinator's contact information including office address, 
telephone number, and electronic mail address and to state that any 
person may report to the Title IX Coordinator using the contact 
information listed for the Title IX Coordinator (or any other means 
that results in the Title IX Coordinator receiving the person's verbal 
or written report). This provision is also revised to state that a 
report may be made at any time (including during non-business hours) by 
using the telephone number or email address or by mail to the office 
address, listed for the Title IX Coordinator. Section 106.8(b)(2) is 
revised to require the contact information for Title IX Coordinator(s) 
to be prominently displayed on the recipient's website and in each of 
the recipient's handbooks or catalogs.
Miscellaneous Comments and Questions
    Comments: One commenter recommended that the final sentence of 
Sec.  106.30 be deleted, and that the word ``apparent'' be inserted 
before ``authority'' in the first sentence of the same provision.
    One commenter asked whether a Title IX Coordinator can initiate a 
grievance process in the absence of a signed

[[Page 30119]]

complaint (for example, when evidence is readily available and/or an 
ongoing threat to campus exists). The same commenter also asked whether 
the Title IX Coordinator may serve as a complainant or whether such a 
case must proceed outside the Title IX process.
    Several commenters asked whether the Department would provide 
training recommendations dedicated to addressing a responsible 
employee's obligation to respond to sexual assault reports. Some of 
these commenters also asked whether the Department would provide 
guidance on disseminating this information to students.
    One commenter recommended adding to the final regulations a 
statement that meeting with confidential resources on campus, such as 
organizational ombudspersons who comply with industry standards of 
practice and codes of ethics, does not constitute notice conveying 
actual knowledge to a recipient. The commenter reasoned that 
organizational ombudspersons are not ``responsible employees'' under 
the Department's current guidance, and that to ensure that 
organizational ombudspersons continue to be a valuable resource 
providing informal, confidential services to complainants and 
respondents, the final regulations should note that organizational 
ombudspersons are a confidential resource exempt from the categories of 
persons to whom notice charges a recipient with actual knowledge.
    Discussion: The Department declines to follow a commenter's 
suggestion to delete the sentence of Sec.  106.30 \534\ concerning 
reporting obligations and training, or to insert the word ``apparent'' 
before the word ``authority'' in the first sentence of Sec.  
106.30.\535\ The framework for holding a recipient responsible for the 
recipient's response to peer-on-peer or employee-on-student sexual 
harassment adopted in the final regulations is the Gebser/Davis 
condition of actual knowledge, adapted as the Department has deemed 
reasonable for the administrative enforcement context with differences 
in elementary and secondary schools, and postsecondary institutions. 
The sentence of the actual knowledge definition regarding reporting 
obligations represents a proposition applied by Federal courts under 
the Supreme Court's Gebser/Davis framework.\536\ If an employee's mere 
ability or obligation to report ``up'' the employee's supervisory chain 
were sufficient to qualify that employee as an ``official with 
authority to institute corrective measures,'' then the rationale 
underlying actual knowledge would be undercut because virtually every 
employee might have the ``ability'' to report ``up.'' \537\ For the 
reasons described above and in the ``Actual Knowledge'' subsection of 
the ``Adoption and Adaption of the Supreme Court's Framework to Address 
Sexual Harassment'' section of this preamble, the Department believes 
that administrative enforcement of Title IX's non-discrimination 
mandate is best served by distinguishing between elementary and 
secondary schools (where notice to any employee triggers a recipient's 
response obligations) and postsecondary institutions (where notice to 
the Title IX Coordinator or officials with authority triggers a 
recipient's response obligations).
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    \534\ The last sentence of Sec.  106.30 defining ``actual 
knowledge'' to which a commenter referred, is now the second to last 
sentence in that section in the final regulations and provides: 
``The mere ability or obligation to report sexual harassment or to 
inform a student about how to report sexual harassment, or having 
been trained to do so, does not qualify an individual as one who has 
authority to institute corrective measures on behalf of the 
recipient.'' (Emphasis added. The italicized portions in this 
quotation have been added in the final regulations.).
    \535\ The first sentence of Sec.  106.30, defining ``actual 
knowledge'' in the final regulations, provides: ``Actual knowledge 
means notice of sexual harassment or allegations of sexual 
harassment to a recipient's Title IX Coordinator or any official of 
the recipient who has authority to institute corrective measures on 
behalf of the recipient, or to any employee of an elementary and 
secondary school.'' (Emphasis added. The italicized portions in this 
quotation have been added in the final regulations.).
    \536\ Davis, 526 U.S. at 646-48, Gebser, 524 U.S. at 289-91.
    \537\ See id.
---------------------------------------------------------------------------

    As explained above, the final sentence in Sec.  106.30 does not 
have as much applicability for recipients that are elementary and 
secondary schools under the final regulations due to the Department's 
expanded definition of actual knowledge in that context to include 
notice to any school employee. As explained in the ``Employees' 
Obligations'' subsection of this ``Actual Knowledge'' section, we have 
revised the final sentence in Sec.  106.30 to expressly state that the 
mere ability or obligation to report sexual harassment or to inform a 
student about how to report sexual harassment, or having been trained 
to do so, does not qualify an individual as one who has authority to 
institute corrective measures on behalf of the recipient. Accordingly, 
elementary and secondary schools may choose to train non-employees such 
as volunteers about how to report sexual harassment or require 
volunteers to do so even though these final requirements do not impose 
such a requirement, and such schools would not face expanded Title IX 
liability by doing so. Similarly, a postsecondary institution may 
choose to require all employees to report sexual harassment or to 
inform a student about how to report sexual harassment, or train all 
employees to do so, without fearing adverse repercussions from the 
Department. Recipients might not be willing to engage in training or 
impose reporting requirements that these final regulations do not 
impose, if doing so would cause the recipient to incur additional 
liability.
    Pursuant to Sec.  106.8, the burden is on the recipient to 
designate a Title IX Coordinator, and the definition of ``actual 
knowledge'' in revised Sec.  106.30 clearly provides that notice of 
sexual harassment or allegations of sexual harassment to a recipient's 
Title IX Coordinator constitutes actual knowledge, which triggers a 
recipient's obligation to respond to sexual harassment. The recipient 
must notify all its students, employees, and others of the name or 
title, office address, email address, and telephone number of the 
employee or employees designated as the Title IX Coordinator (and post 
that contact information on its website), under Sec.  106.8. 
Accordingly, all students and employees have clear, accessible channels 
through which to make a report of sexual harassment such that a 
recipient is obligated to respond to that report. Additionally, notice 
to other officials who have the authority to institute corrective 
measures on behalf of the recipient will convey actual knowledge to a 
recipient, and a recipient may choose to identify such officials by 
providing a list of such officials to students and employees. The level 
of authority that a person may have to take corrective measures is 
generally known to students and employees. For example, employees 
generally know that a supervisor but not a co-worker has authority to 
institute corrective measures. Similarly, a student in a postsecondary 
institution likely understands that deans generally have the authority 
to institute corrective measures. Students in elementary and secondary 
schools may report sexual harassment or allegations of sexual 
harassment to any employee. Students in postsecondary institutions can 
always report sexual harassment to the Title IX Coordinator.
    For reasons discussed in the ``Formal Complaint'' subsection of the 
``Section 106.30 Definitions'' section of this preamble, the final 
regulations retain the discretion of a Title IX Coordinator to sign a 
formal complaint initiating a grievance process against a respondent, 
but the final regulations clarify that in such situations, the Title IX 
Coordinator

[[Page 30120]]

is not a complainant or otherwise a party to the grievance 
process.\538\ The Department believes this preserves the ability of a 
recipient to utilize the Sec.  106.45 grievance process when safety or 
similar concerns lead a recipient to conclude that a non-deliberately 
indifferent response to actual knowledge of Title IX sexual harassment 
may require the recipient to investigate and potentially sanction a 
respondent in situations where the complainant does not wish to file a 
formal complaint.
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    \538\ Section 106.30 (defining ``formal complaint'' by stating 
that a formal complaint may be filed by a complainant or signed by a 
Title IX Coordinator, and adding language providing that where a 
Title IX Coordinator signs a formal complaint, the Title IX 
Coordinator is not a complainant or otherwise a party in the 
grievance process, and must remain free from conflicts of interest 
and bias).
---------------------------------------------------------------------------

    Although the Department recognizes that recipients may desire 
guidance on training (particularly now that the final regulations in 
Sec.  106.45(b)(10)(i)(D) require the recipients to publish all 
training materials on recipient websites), the Department declines to 
recommend certain training practices or techniques aside from the 
requirements of Sec.  106.45(b)(1)(iii),\539\ leaving flexibility to 
recipients to determine how to meet training requirements in a manner 
that best fits the recipient's unique educational community. Regarding 
the dissemination of information to students, the Department notes that 
Sec.  106.8 requires recipients to notify students and employees of the 
recipient's policy of non-discrimination under Title IX, the Title IX 
Coordinator's contact information, and information about how to report 
and file complaints of sex discrimination and how to report and file 
formal complaints of sexual harassment.
---------------------------------------------------------------------------

    \539\ Section 106.45(b)(1)(iii) (requiring training of Title IX 
Coordinators, investigators, decision-makers, and any person who 
facilitates informal resolution processes).
---------------------------------------------------------------------------

    The Department appreciates the opportunity to emphasize that 
whether a person affiliated with a recipient, such as an organizational 
ombudsperson, is or is not an ``official with authority to institute 
corrective measures'' requires a fact-specific inquiry, and understands 
the commenter's assertion that an organizational ombudsperson adhering 
to industry standards and codes of ethics should be deemed 
categorically a ``confidential resource'' and not an official with 
authority. The Department encourages postsecondary institution 
recipients to examine campus resources such as organizational 
ombudspersons and determine whether, given how such ombudspersons work 
within a particular recipient's system, such ombudspersons are or are 
not officials with authority to take corrective measures so that 
students and employees know with greater certainty the persons to whom 
parties can discuss matters confidentially without such discussion 
triggering a recipient's obligation to respond to sexual harassment. We 
note that with respect to elementary and secondary schools, notice to 
any employee, including an ombudsperson, triggers the recipient's 
response obligations.
    Changes: None.

Complainant

    Comments: A few commenters supported the proposed rules' definition 
of ``complainant'' in Sec.  106.30 as an appropriate, sensible 
definition. Commenters asserted that using neutral terms like 
``complainant'' and ``respondent'' avoids injecting bias generated by 
referring to anyone who makes an allegation as a ``victim.'' One 
commenter asserted that labeling an accuser a ``victim'' before there 
has been any investigation or adjudication turns the principle of 
innocent until proven guilty on its head.\540\
---------------------------------------------------------------------------

    \540\ Commenter cited: Doe v. Brandeis Univ., 177 F. Supp. 3d 
561, 573 (D. Mass. 2016) (``Whether someone is a `victim' is a 
conclusion to be reached at the end of a fair process, not an 
assumption to be made at the beginning.'').
---------------------------------------------------------------------------

    In contrast, many commenters urged the Department to use a term 
such as ``reporting party'' instead of ``complainant.'' Commenters 
argued that ``complainant'' suggests that a person is making a 
complaint (as opposed to reporting), or that the term ``complainant'' 
suggests a negative connotation that a person is ``complaining'' about 
discrimination which could create a barrier to reporting, and that 
``reporting party'' is current, best practice terminology that better 
avoids bias and negative implications that a person is ``complaining.'' 
One commenter asserted that the Clery Act uses the term ``victim'' 
throughout its statute and regulations and asked why the Sec.  106.30 
definition of ``complainant'' uses the word victim without referring to 
that person as a victim throughout the proposed regulations.
    Some commenters asserted that the definition of complainant 
unfairly excluded third parties (non-victims, such as bystanders or 
witnesses to sexual harassment) from reporting sexual harassment 
because the definition of complainant referred to an individual ``who 
has reported being the victim'' and because the definition also stated 
that the person to whom the individual has reported must be the Title 
IX Coordinator or other person to whom notice constitutes actual 
knowledge. Commenters argued that in order to further Title IX's non-
discrimination mandate, a school must be required to respond to sexual 
harassment regardless of who has reported it and regardless of the 
school employee to whom a person reports. Commenters argued that if the 
survivor is the only person who can be a complainant, even fewer sexual 
assaults will be reported, and that third-party intervention can save 
lives and educational opportunities.\541\ Commenters argued that some 
students are non-verbal due to young age, disability, language 
barriers, or severe trauma, and the definition of complainant would 
exclude these students because these students are incapable of being 
the individual ``who has reported being the victim.'' Commenters argued 
that Federal courts have held schools liable for deliberate 
indifference to third-party reports of sexual harassment and the 
proposed rules should not set a lower threshold by excusing schools 
from responding to reports that come from anyone other than the 
victim.\542\ Commenters asserted that the definition of complainant 
should be modified to include parents of minor students, or parents of 
students with disabilities. A few commenters supported the definition 
of complainant believing that the definition appropriately excluded 
third-party reporting; these commenters argued that a school should 
only respond to alleged sexual harassment where the victim has 
personally reported the conduct.
---------------------------------------------------------------------------

    \541\ Commenters cited: Jackson v. Birmingham Bd. of Educ., 544 
U.S. 167, 180 (2005) (``teachers and coaches . . . are often in the 
best position to vindicate the rights of their students because they 
are better able to identify discrimination and bring it to the 
attention of administrators. Indeed, sometimes adult employees are 
`the only effective adversar[ies]' of discrimination in schools.'') 
(internal citation omitted; brackets in original).
    \542\ Id.
---------------------------------------------------------------------------

    Some commenters suggested changing the definition of complainant to 
a person who has reported being ``the victim of sex-based 
discriminatory conduct'' instead of a person who has reporting being 
the victim of ``sexual harassment,'' arguing that the general public 
understands sexual harassment to be broader than how ``sexual 
harassment'' is defined in Sec.  106.30 and these regulations should 
only apply to sex discrimination under Title IX.
    One commenter asserted that the phrase ``or on whose behalf the 
Title IX Coordinator has filed a formal complaint'' in the definition 
of ``complainant'' created confusion because proposed Sec.  
106.44(b)(2)

[[Page 30121]]

required a Title IX Coordinator to file a formal complaint upon 
receiving multiple reports against a respondent, but that proposed 
provision did not indicate on which complainant's behalf such a formal 
complaint would be filed.
    Discussion: The Department appreciates commenters' support for the 
proposed definition of ``complainant'' in Sec.  106.30 as a sensible, 
neutral term to describe a person alleged to be the victim of sexual 
harassment. We appreciate commenters who asserted that ``reporting 
party'' would be a preferable term due to concerns that ``complainant'' 
suggests that the person has filed a complaint (as opposed to having 
reported conduct), or that there is a negative connotation to the word 
``complainant'' suggesting that the person is complaining about 
discrimination. The Department does not disagree that a term such as 
``reporting party'' could be an appropriate equivalent term for 
``complainant'' in terms of neutrality; however, the Department 
believes that both terms reflect the neutral, impartial intent of 
describing a person who is an alleged victim but a fair process has not 
yet factually determined whether the person was victimized. Further, 
the final regulations ensure that a person must be treated as a 
``complainant'' any time such a person has been alleged to be the 
victim of sexual harassment; ``reporting party'' would imply that the 
alleged victim themselves had to be the person who reported. The 
Department retains the word ``complainant'' in these final regulations, 
instead of using ``reporting party,'' also to avoid potential confusion 
with respect to the phrase ``reporting party,'' and the use throughout 
the final regulations of the word ``party'' to refer to either a 
complainant or respondent, and also to reinforce that a recipient must 
treat a person as a complainant (i.e., an alleged victim) no matter who 
reported to the school that the alleged victim may have suffered 
conduct that may constitute sexual harassment. We believe that the 
context of the final regulations makes it clear that a ``complainant'' 
(as the definition states in the final regulations) is a person who is 
alleged to be the victim of sexual harassment irrespective of whether a 
formal complaint has been filed. The Department notes that 
``complainant'' and ``complaint'' are commonly used terms in various 
proceedings designed to resolve disputed allegations without 
pejoratively implying that a person is unjustifiably ``complaining'' 
about something but instead neutrally describing that the person has 
brought allegations or charges of some kind.\543\ While the definition 
of ``complainant'' uses the word ``victim'' to refer to the complainant 
as a person alleged to be the victim of sexual harassment, we do not 
use the word victim throughout the final regulations because the word 
``victim'' suggests a factual determination that a person has been 
victimized by the conduct alleged, and that conclusion cannot be made 
unless a fair process has reached that determination. We acknowledge 
that the Clery Act uses the word ``victim'' throughout that statute and 
regulations, but we believe the term ``complainant'' more neutrally, 
accurately describes a person who is allegedly a victim without 
suggesting that the facts of the situation have been prejudged.
---------------------------------------------------------------------------

    \543\ For example, OCR refers to a ``complainant'' as a person 
who files a ``complaint'' with OCR, alleging a civil rights law 
violation. E.g., U.S. Dep't. of Education, Office for Civil Rights, 
How the Office for Civil Rights Handles Complaints (Nov. 2018), 
https://www2.ed.gov/about/offices/list/ocr/complaints-how.html.
---------------------------------------------------------------------------

    The proposed definition of complainant did not prevent third-party 
reporting, and while the final regulations revise the Sec.  106.30 
definition of complainant, the final regulations also do not prevent 
third-party reporting. Under both the proposed and final regulations, 
any person (i.e., the victim of alleged sexual harassment, a bystander, 
a witness, a friend, or any other person) may report sexual harassment 
and trigger a recipient's obligation to respond to the sexual 
harassment.\544\ Nothing in the final regulations requires an alleged 
victim to be the person who reports; any person may report that another 
person has been sexually harassed.
---------------------------------------------------------------------------

    \544\ Section 106.44(a) (stating that a recipient with actual 
knowledge of sexual harassment in the recipient's education program 
or activity against a person in the United States must respond 
promptly and in a manner that is not clearly unreasonable in light 
of the known circumstances, including by offering supportive 
measures to the complainant, informing the complainant of the 
availability of supportive measures with or without the filing of a 
formal complaint, considering the complainant's wishes with respect 
to supportive measures, and explaining to the complainant how to 
file a formal complaint).
---------------------------------------------------------------------------

    We agree that third party reporting of sexual harassment promotes 
Title IX's non-discrimination mandate. In response to commenters' 
concerns, we have revised Sec.  106.8(a) to expressly state that ``any 
person'' may report sexual harassment ``whether or not the person 
reporting is the person alleged to be the victim'' by using the Title 
IX Coordinator's listed contact information. Further, such a report may 
be made at any time including during non-business hours, using the 
telephone number or email address (or by mail to the office address) 
listed for the Title IX Coordinator. We have also revised Sec.  106.30 
defining ``actual knowledge'' to expressly state that ``notice'' 
triggering a recipient's response obligations includes reporting to the 
Title IX Coordinator as described in Sec.  106.8(a). The intent of 
these final regulations is to ensure that any person (whether that 
person is the alleged victim, or anyone else) has clear, accessible 
channels for reporting sexual harassment to trigger a recipient's 
response obligations (which include promptly offering supportive 
measures to the person alleged to be the victim). While any person 
(including third parties) can report, the person to whom notice (i.e., 
a report) of sexual harassment is given must be the Title IX 
Coordinator or official with authority to take corrective action, or 
any employee in the elementary and secondary school context, in order 
to trigger the recipient's response obligations--but any person can 
report.\545\ The benefits of third-party reporting do not, however, 
require the third party themselves to become the ``complainant'' 
because, for example, supportive measures must be offered to the 
alleged victim, not to the third party who reported the complainant's 
alleged victimization. Similarly, while we agree that where a parent or 
guardian has a legal right to act on behalf of an individual, the 
parent or guardian must be allowed to report the individual's 
victimization (and to make other decisions on behalf of the individual, 
such as considering which supportive measures would be

[[Page 30122]]

desirable and whether to exercise the option of filing a formal 
complaint), in such a situation the parent or guardian does not, 
themselves, become the complainant; rather, the parent or guardian acts 
on behalf of the complainant (i.e., the individual allegedly victimized 
by sexual harassment). We have added Sec.  106.6(g) to expressly 
acknowledge the legal rights of parents or guardians to act on behalf 
of a complainant (or any other individual with respect to exercising 
Title IX rights).
---------------------------------------------------------------------------

    \545\ For reasons explained in the ``Adoption and Adaption of 
the Supreme Court's Framework to Address Sexual Harassment'' 
section, and the ``Actual Knowledge'' subsection of the ``Section 
106.30 Definitions'' section, of this preamble, the final 
regulations expand the definition of actual knowledge in the 
elementary and secondary school context, but the final regulations 
retain the requirement that a recipient must have actual knowledge 
of sexual harassment in order to be required to respond. We have 
revised the definition of actual knowledge to state expressly that 
notice conveying actual knowledge includes, but is not limited to, 
reporting sexual harassment to the Title IX Coordinator as described 
in Sec.  106.8(a). We have revised Sec.  106.8(a) to expressly state 
that any person may report sexual harassment (whether or not the 
person reporting is the person alleged to be the victim of sexual 
harassment, or is a third party) by using the contact information 
for the Title IX Coordinator (which must include an office address, 
telephone number, and email address), and stating that a report may 
be made at any time (including during non-business hours) by using 
the Title IX Coordinator's listed telephone number or email address 
(or by mailing to the listed office address). Thus, any person 
(including a non-victim third party) may report sexual harassment, 
but in order to trigger a recipient's response obligations the 
report must give notice to a Title IX Coordinator or to an official 
with authority to institute corrective measures, or to any employee 
in the elementary and secondary school context.
---------------------------------------------------------------------------

    We agree with commenters that allowing third-party reporting is 
necessary to further Title IX's non-discrimination mandate for a 
variety of reasons, including, as commenters asserted, that some 
complainants (i.e., alleged victims) cannot verbalize their own 
experience or report it (whether verbally or in writing) yet when 
parents, bystanders, witnesses, teachers, friends, or other third 
parties report sexual harassment to a person to whom notice charges the 
recipient with actual knowledge, then the recipient must be obligated 
to respond. In response to commenters' confusion as to whether the 
proposed definition of complainant in Sec.  106.30 allowed or 
prohibited third-party reporting, and in agreement with commenters' 
assertions that third-party reporting is a critical part of furthering 
Title IX's purposes, we have revised the definition of complainant in 
the final regulations to state (emphasis added): ``An individual who is 
alleged to be the victim of conduct that could constitute sexual 
harassment'' and removed the sentence in the NPRM that referenced to 
whom the report of sexual harassment was made. This revision clarifies 
that the person alleged to be the victim does not need to be the same 
person who reported the sexual harassment. This revision also ensures 
that any person reported to be the victim of sexual harassment (whether 
the report was made by the alleged victim themselves or by a third 
party) will be treated by the recipient as a ``complainant'' entitled 
to, for example, the right to be informed of the availability of 
supportive measures and of the process for filing a formal complaint, 
under Sec.  106.44(a).
    The final regulations, like the proposed rules, draw a distinction 
between a recipient's general response to reported incidents of sexual 
harassment (including offering supportive measures to the complainant), 
on the one hand, and the circumstances that obligate a recipient to 
initiate a grievance process, on the other hand. With respect to a 
grievance process, the final regulations retain the proposed rules' 
approach that a recipient is obligated to begin a grievance process 
against a respondent (that is, to investigate and adjudicate 
allegations) only where a complainant has filed a formal complaint or a 
Title IX Coordinator has signed a formal complaint. Other than the 
Title IX Coordinator (who is in a specially trained position to 
evaluate whether a grievance process is necessary under particular 
circumstances even without a complainant desiring to file the formal 
complaint or participate in the grievance process), a person who does 
not meet the definition of ``complainant'' under Sec.  106.30 cannot 
file a formal complaint requiring the recipient to initiate a grievance 
process. Other than a Title IX Coordinator, third parties cannot file 
formal complaints.\546\ The Department believes the final regulations 
appropriately delineate between the recipient's obligation to respond 
promptly and meaningfully to actual knowledge of sexual harassment in 
its education program or activity (including where the actual knowledge 
comes from a third party), with the reality that permitting third 
parties to file formal complaints would result in situations where a 
complainant's autonomy is not respected (i.e., where the complainant 
does not wish to file a formal complaint or participate in a grievance 
process),\547\ and other situations where recipients are required to 
undertake investigations that may be futile in terms of lack of 
evidence because the complainant does not wish to participate.
---------------------------------------------------------------------------

    \546\ As discussed above, a parent or guardian with the legal 
right to act on a complainant's behalf may file a formal complaint 
on the complainant's behalf. Sec.  106.6(g).
    \547\ As one aspect of respect for complainant autonomy, every 
complainant retains the right to refuse to participate in a 
grievance process, and the Department has added Sec.  106.71 to the 
final regulations, prohibiting retaliation generally, and 
specifically protecting the right of any individual who chooses not 
to participate in a grievance process. When a grievance process is 
initiated in situations where the complainant did not wish to file a 
formal complaint, this results in the complainant being treated as a 
party throughout the grievance process (e.g., the recipient must 
send both parties written notice of allegations, a copy of the 
evidence for inspection and review, written notice of interviews 
requested, a copy of the investigative report, written notice of any 
hearing, and a copy of the written determination regarding 
responsibility). This means that the complainant will receive 
notifications about the grievance process even where the complainant 
does not wish to participate in the process. The Department agrees 
with commenters who urged the Department to recognize the importance 
of a survivor's autonomy and control over what occurs in the 
aftermath of a sexual harassment incident. The Department thus 
desires to restrict situations where a grievance process is 
initiated contrary to the wishes of the complainant to situations 
where the Title IX Coordinator (and not a third party) has 
determined that signing a formal complaint even without a 
complainant's participation is necessary because not initiating a 
grievance process against the respondent would be clearly 
unreasonable in light of the known circumstances. Although a 
complainant who did not wish to file a formal complaint and does not 
want to participate in a grievance process may not want to receive 
notifications throughout the grievance process, the recipient must 
treat the complainant as a party by sending required notices, and 
must not retaliate against the complainant for choosing not to 
participate. Nothing in the final regulations precludes a recipient 
from communicating to a non-participating complainant that the 
recipient is required under these final regulations to send the 
complainant notices throughout the grievance process and that such a 
requirement is intended to preserve the complainant's right to 
choose to participate, not to pressure the complainant into 
participating. Such a practice adopted by a recipient would need to 
be applied equally to respondents who choose not to participate in a 
grievance process; see introductory sentence of Sec.  106.45(b).
---------------------------------------------------------------------------

    In response to commenters' concerns that the definitions of 
``complainant'' and ``formal complaint'' do not allow for situations 
where a parent or guardian appropriately must be the person who makes 
the decision to file a formal complaint on behalf of a minor child or 
student with a disability, the final regulations add Sec.  106.6(g) 
acknowledging that nothing about the final regulations may be read in 
derogation of the legal rights of parents or guardians to act on behalf 
of any individual in the exercise of rights under Title IX, including 
filing a formal complaint on a complainant's behalf. In such a 
situation, the parent or guardian does not become the ``complainant'' 
yet Sec.  106.6(g) clarifies that any parent or guardian may act on 
behalf of the complainant (i.e., the person alleged to be the victim of 
sexual harassment). If a parent or guardian has a legal right to act on 
a person's behalf, the parent or guardian may always be the one who 
files a formal complaint for a complainant. This parental or 
guardianship authority to act on behalf of a party applies throughout 
all aspects of a Title IX matter, from reporting sexual harassment to 
considering appropriate and beneficial supportive measures, and from 
choosing to file a formal complaint to participating in the grievance 
process.\548\
---------------------------------------------------------------------------

    \548\ See discussion in the ``Section 106.6(g) Exercise of 
Rights by Parents/Guardians'' subsection of the ``Clarifying 
Amendments to Existing Regulations'' section of this preamble.
---------------------------------------------------------------------------

    We decline commenters' suggestions to define a complainant as a 
person reported to be the victim of ``sex-discriminatory conduct'' 
instead of ``conduct that could constitute sexual harassment,'' because 
these final regulations specifically address a recipient's response to 
allegations of sexual harassment and clearly define

[[Page 30123]]

the term ``sexual harassment'' in Sec.  106.30.
    In the response to commenters' concerns that the phrase ``or on 
whose behalf the Title IX Coordinator has filed a formal complaint'' in 
the proposed definition of Sec.  106.30 created confusion in situations 
where the Title IX Coordinator would have been required to file a 
formal complaint upon receiving multiple reports against a 
respondent,\549\ we have removed the phrase ``or on whose behalf the 
Title IX Coordinator has filed a formal complaint'' from the definition 
of complainant in Sec.  106.30. Numerous commenters urged the 
Department to respect the autonomy of survivors, and we have concluded 
that when a Title IX Coordinator signs a formal complaint, that action 
is not taken ``on behalf of'' a complainant (who may not wish to file a 
formal complaint or participate in a grievance process).\550\ Removal 
of this phrase is more consistent with the Department's goal of 
ensuring that every complainant receives a prompt, meaningful response 
when a recipient has actual knowledge of sexual harassment in a manner 
that better respects a complainant's autonomy by not implying that a 
Title IX Coordinator has the ability to act ``on behalf of'' a 
complainant when the Title IX Coordinator signs a formal complaint. 
Removal of this phrase also helps clarify that when a Title IX 
Coordinator signs a formal complaint, that action does not place the 
Title IX Coordinator in a position adverse to the respondent; the Title 
IX Coordinator is initiating an investigation based on allegations of 
which the Title IX Coordinator has been made aware, but that does not 
prevent the Title IX Coordinator from being free from bias or conflict 
of interest with respect to any party.
---------------------------------------------------------------------------

    \549\ For reasons discussed in the ``Proposed Sec.  106.44(b)(2) 
[removed in the final regulations]'' subsection of the ``Recipient's 
Response in Specific Circumstances'' section of this preamble, we 
have removed the provision in the NPRM that would have required the 
Title IX Coordinator to file a formal complaint upon receiving 
multiple reports against a respondent. However, the final 
regulations still grant a Title IX Coordinator the discretion to 
decide to sign a formal complaint, and the Title IX Coordinator's 
decision will be evaluated based on what was not clearly 
unreasonable in light of the known circumstances.
    \550\ We have also revised the definition of ``formal 
complaint'' in Sec.  106.30 to clarify that signing a formal 
complaint does not mean the Title IX Coordinator has become a 
complainant or otherwise a party to the grievance process.
---------------------------------------------------------------------------

    Changes: The final regulations revise the definition of 
``complainant' in Sec.  106.30 by revising this provision to state that 
complainant means ``an individual who is alleged to be the victim of 
conduct that could constitute sexual harassment'' thereby removing the 
phrase ``who has reported to be the victim,'' the phrase ``or on whose 
behalf the Title IX Coordinator has filed a formal complaint,'' and the 
sentence describing to whom a complainant had to make a report.
    The final regulations add Sec.  106.6(g) addressing ``Exercise of 
rights by parents or guardians'' and providing that nothing in the 
final regulations may be read in derogation of any legal right of a 
parent or guardian to act on behalf of a ``complainant,'' 
``respondent,'' ``party,'' or other individual.

Consent

    Comments: Some commenters supported the proposed rules because the 
proposed rules did not mandate an ``affirmative consent'' standard for 
recipients to use in adjudicating sexual assault allegations. One 
commenter expressed general support for the proposed rules and asserted 
that courts across the country are ruling in favor of accused males for 
reasons including schools' misuse of affirmative consent policies. One 
commenter agreed with the fact that the proposed rules do not mandate 
affirmative consent, arguing that affirmative consent often ends up 
shifting the burden to the accused to prove innocence. One commenter 
supported the proposed rules, asserting that under current policies the 
responsibility to obtain and prove consent is on men, but the commenter 
believed that under the proposed rules women will speak up and learn to 
be more assertive.
    One commenter expressed concern about not defining consent in the 
proposed rules, asserting that with respect to rape, consent 
definitions may vary across States and in some States there is no 
consent element. One commenter discussed the importance of consent 
because every person at every moment has the right to do whatever they 
choose with their own body, and argued that sexual consent should be as 
obvious as other kinds of consent in our society; for example, asserted 
the commenter, a restaurant does not beg a patron incessantly to finish 
a burger until the patron feels reluctantly forced to eat. This 
commenter referenced internet videos sharing personal examples of the 
results of violations of consent.\551\
---------------------------------------------------------------------------

    \551\ Commenter cited, e.g.: Jennifer Gunsaullus, Sex and The 
Price of Masculinity: My personal story of consent violation, The 
Good Men Project (Aug. 8, 2016), https://goodmenproject.com/featured-content/sex-and-the-price-of-masculinity-gmp/.
---------------------------------------------------------------------------

    One commenter recommended that language be added requiring the 
complainant to prove absence of consent as opposed to requiring the 
respondent to prove presence of consent. The commenter asserted that 
this would make it clear that the burden of proof stays with the 
complainant (or the school). One commenter urged the Department to 
adopt the concept of implied consent as a safe harbor against sexual 
assault claims in dating situations. One commenter advocated a 
definition of sexual assault that recognizes that consent can be 
negated by explicit and implicit threats, so that ``coercive sexual 
violence'' that ``often includes a layer of nominal and deeply guilt 
inducing ambiguity'' (due to a victim verbally expressing consent but 
only because of fear based on the perpetrator's threats) would also be 
covered under Title IX.
    One commenter stated that some institutions use affirmative consent 
while others use ``no means no'' and asked the Department to clarify 
whether recipients are expected to use a specific definition for 
consent because sexual assault depends on whether a victim consented.
    Several commenters stated that universities should strive to 
provide clear rules with respect to what is considered consensual 
sexual conduct.
    Some commenters urged the Department to provide additional 
clarification for how schools should handle consent in situations where 
both students were drunk. One commenter suggested that the Department 
should clarify that Title IX's non-discrimination language means that 
when male and female students are both drunk and have sex, the school 
may not automatically assign blame to the male and victimhood to the 
female because, the commenter asserted, this approach is based on 
outdated gender stereotypes and violates Title IX. Another commenter 
opined that while drunken hookups are never a good idea, colleges must 
recognize that students do get intoxicated and have sex, as do many 
non-students, yet a young couple getting married and drinking champagne 
are not raping each other if they consummate the marriage later that 
night while their blood alcohol is beyond the legal limit to drive; the 
commenter asserted that colleges can make their policies stricter than 
the law, but must make that language clear. A few commenters asserted 
that schools have often failed to recognize the idea that when school 
policies states that any sign of intoxication means consent is invalid, 
that policy should go both ways (i.e., applied equally to men and 
women).
    One commenter, a female university student, expressed concern that 
under

[[Page 30124]]

current consent rules, being drunk while consenting is often not truly 
considered consent, and that in situations where both parties could be 
perceived as assaulting each other--because both had been drinking so 
that neither party gave valid consent--the woman's position is usually 
the only one taken into account, leading the commenter to believe that 
if a woman has an encounter she regrets, but did not communicate lack 
of consent at the time, she can report to the school and it will be 
investigated without getting the partner's perspective in a fair 
manner. Another commenter supported treating women and men equally when 
it comes to drug or alcohol-infused sex.
    Some commenters provided articles discussing the meaning of 
consent, including whether the level of intoxication is relevant to the 
definition of consent. One commenter stated that one of the areas 
recipients appear to be struggling with is that lack of consent may be 
based on temporary or permanent mental or physical incapacity of the 
victim, and the commenter recommended that the Department inform 
recipients that inebriation is not equivalent to incapacitation.
    Several commenters were concerned that the proposed rules did not 
impose an affirmative consent standard. One commenter argued that 
failing to include affirmative consent buys into rape myths including 
that silence is consent. One commenter criticized the proposed rules 
for ignoring the best practice standard of affirmative consent, or the 
``yes means yes'' model for consent to any sexual activity, and the 
commenter argued that not imposing an affirmative consent standard will 
do a disservice to people who do not give a clear ``No,'' who freeze, 
or revoke consent, and that this will override the important work many 
institutions have done to get students to understand the value and 
intricacies of affirmative consent. One commenter stated that 
affirmative consent policies are not best practices, are often 
confusing and difficult to enforce in a consistent, non-arbitrary 
manner, and end up shifting the burden onto a respondent to prove 
innocence; this commenter cited a law review article noting that 
affirmative consent policies often require the accused to show clear, 
unambiguous (and in some policies, ``enthusiastic'') consent.\552\ One 
commenter argued that affirmative consent policies violate Title IX 
because such policies discriminate against men.\553\ Another commenter 
asserted that based on personal experience representing respondents in 
campus Title IX proceedings, many schools require the respondent to 
prove that there was consent, either by using an affirmative consent 
standard or by placing undue emphasis on a common provision in 
institutional policies and practices, that consent to one sexual act 
does not necessarily imply consent to another sexual act but that in 
either scenario, institutions often shift the burden of proof to 
respondents to prove their innocence, which the commenter asserted is 
inconsistent with centuries-old understandings of due process.
---------------------------------------------------------------------------

    \552\ Commenter cited: Jacob E. Gerson & Jeannie Suk Gersen, The 
Sex Bureaucracy, 104 Cal. L. Rev. 881 (2016).
    \553\ Commenter cited: Samantha Harris, University of Miami Law 
Prof: Affirmative Consent Effectively Shifts Burden of Proof to 
Accused, Foundation for Individual Rights in Education (FIRE) (Sept. 
11, 2015), https://www.thefire.org/university-of-miami-law-prof-affirmative-consent-effectively-shifts-burden-of-proof-to-accused/.
---------------------------------------------------------------------------

    One commenter was concerned that the proposed rules do not prevent 
a school from using an affirmative consent standard and recommended 
that the Department clarify that an affirmative consent standard 
violates Title IX because it unfairly shifts the burden of proof to 
respondents and has a disparate impact on men because, the commenter 
argued, women are content to let men initiate sexual conduct even when 
sexual advances turn out to be welcome. One commenter expressed concern 
about affirmative consent and asserted that college administrators have 
no right to regulate the private lives of adults when neither person is 
compelled by threats or force. One commenter opined that while 
affirmative consent makes sense when gauging overt sexual initiatives 
between strangers, it is a ridiculous standard to apply to people in 
sexual relationships, or even to the typical college party situation, 
because under affirmative consent, waking up a lover with a kiss is 
sexual assault, as is every thrust if consent is not somehow re-
communicated in between.
    One commenter expressed concern that some sexual assault laws say 
that ``not saying no'' can be considered assault. One commenter argued 
that ``overthinking'' about sexual consent causes men not to approach 
women as much, and the commenter stated this is not good for society 
because it causes educated folks not to approach each other.
    Another commenter stated that while the idea of affirmative consent 
sounds good, in practice it seems as if colleges look at this as the 
responsibility of one person, usually the male; the commenter suggested 
rebranding affirmative consent as affirmative communication, and 
recommended that colleges make clear that both parties have a duty to 
seek consent, but also that both parties are responsible for 
communicating discomfort or communicating if they do not want to 
proceed with sexual activity.
    One commenter recommended that the Department address training 
standards for decision-makers, including faculty, to address what 
commenters believed is shoddy research from dubious sources used in 
training materials that contributes to unjust decisions. The commenter 
referenced training around topics such as the amount of inebriation 
that violates consent and situations in which both parties are too 
drunk to consent.
    One commenter expressed concern that the proposed rules would 
permit the introduction of evidence regarding the complainant's sexual 
history, when offered to prove consent. The commenter asserted that by 
permitting this evidence to prove consent, but not providing a 
definition of consent, the proposed rules will lead to an increase in 
ambiguity and the possibility of abuse by the accused in using evidence 
about a complainant's sexual history.
    Discussion: The third prong of the Sec.  106.30 definition of 
sexual harassment includes ``sexual assault'' as used in the Clery Act, 
20 U.S.C. 1092(f)(6)(A)(v), which, in turn, refers to the FBI's Uniform 
Crime Reporting Program (FBI UCR) and includes forcible and nonforcible 
sex offenses such as rape, fondling, and statutory rape which contain 
elements of ``without the consent of the victim.'' The Department 
acknowledges that the Clery Act, FBI UCR, and these final regulations 
do not contain a definition of consent. The Department believes that 
the definition of what constitutes consent for purposes of sexual 
assault within a recipient's educational community is a matter best 
left to the discretion of recipients, many of whom are under State law 
requirements to apply particular definitions of consent for purposes of 
campus sexual misconduct policies. The Department's focus in these 
final regulations is on recipients' response to sexual harassment when 
such conduct constitutes sex discrimination prohibited by Title IX. The 
Department believes that the definition of sexual assault used by the 
Federal government for crime reporting purposes appropriately captures 
conduct that constitutes sex discrimination under Title IX, regardless 
of whether the ``without the consent'' element in certain sex offenses 
is as narrow as some State criminal laws define consent, or

[[Page 30125]]

broader as some State laws have required for use in campus sexual 
assault situations. Recipients may consider relevant State laws in 
adopting a definition of consent. For these reasons, the Department 
declines to impose a federalized definition of consent for Title IX 
purposes, notwithstanding commenters who would like the Department to 
adopt an affirmative consent standard, a ``no means no'' standard, an 
implied consent doctrine, or definitions of terms commonly used to 
indicate the absence or negation of consent (such as coercion, duress, 
or incapacity). In response to commenters asking for clarification, the 
Department has revised Sec.  106.30 to include an entry for ``Consent'' 
confirming that the Department will not require recipients to adopt a 
particular definition of consent with respect to sexual assault.
    The Department agrees that recipients must clearly define consent 
and must apply that definition consistently, including as between men 
and women and as between the complainant and respondent in a particular 
Title IX grievance process because to do otherwise would indicate bias 
for or against complainants or respondents generally, or for or against 
an individual complainant or respondent, in contravention of Sec.  
106.45(b)(1)(iii), and could potentially be ``treatment of a 
complainant'' or ``treatment of a respondent'' that Sec.  106.45(a) 
recognizes may constitute sex discrimination in violation of Title IX. 
We have revised the introductory sentence of Sec.  106.45(b)(3) to 
state that any rules or practices that a recipient adopts and applies 
to its grievance process must equally apply to both parties.
    The Department appreciates the variety of commenters' views 
regarding whether intoxication negates consent, whether verbal pressure 
amounts to coercion negating consent, and whether affirmative consent 
standards do, or do not, represent a best practice. However, for the 
reasons discussed above, the Department declines to impose on 
recipients a particular definition of consent, or terms used to 
describe the absence or negation of consent (such as coercion or 
incapacity).
    The Department disagrees that affirmative consent standards 
inherently place the burden of proof on a respondent, but agrees with 
commenters who observed that to the extent recipients ``misuse 
affirmative consent'' (or any definition of consent) by applying an 
instruction that the respondent must prove the existence of consent, 
such a practice would not be permitted under a Sec.  106.45 grievance 
process.\554\ Regardless of how a recipient's policy defines consent 
for sexual assault purposes, the burden of proof and the burden of 
collecting evidence sufficient to reach a determination regarding 
responsibility, rest on the recipient under Sec.  106.45(b)(5)(i). The 
final regulations do not permit the recipient to shift that burden to a 
respondent to prove consent, and do not permit the recipient to shift 
that burden to a complainant to prove absence of consent.
---------------------------------------------------------------------------

    \554\ Section 106.45(b)(5)(i) (stating burden of proof must rest 
on the recipient and not on the parties).
---------------------------------------------------------------------------

    The final regulations require Title IX Coordinators, investigators, 
decision-makers, and any person who facilitates an informal resolution, 
to be trained on how to conduct an investigation and grievance process; 
this would include how to apply definitions used by the recipient with 
respect to consent (or the absence or negation of consent) 
consistently, impartially, and in accordance with the other provisions 
of Sec.  106.45.
    Because a recipient's definition of consent must be consistently 
applied, the Department does not believe that the reference to consent 
in the ``rape shield'' protections contained in Sec.  106.45(b)(6)(i)-
(ii) will cause the proceedings contemplated in those provisions to be 
ambiguous or subject to abuse by a respondent. While the Department 
declines to impose a definition of consent on recipients, a recipient 
selecting its own definition of consent must apply such definition 
consistently both in terms of not varying a definition from one 
grievance process to the next and as between a complainant and 
respondent in the same grievance process. The scope of the questions or 
evidence permitted and excluded under the rape shield language in Sec.  
106.45(b)(6)(i)-(ii) will depend in part on the recipient's definition 
of consent, but, whatever that definition is, the recipient must apply 
it consistently and equally to both parties, thereby avoiding the 
ambiguity feared by the commenter. In further response to the 
commenter's concern, we have revised Sec.  106.45(b)(1)(iii) 
specifically to require investigators and decision-makers to be trained 
on issues of relevance, including how to apply the rape shield 
provisions (which deem questions and evidence about a complainant's 
prior sexual history to be irrelevant with two limited exceptions). 
Because a recipient cannot place the burden of proving consent on a 
respondent (or on a complainant to prove absence of consent), while 
questions and evidence subject to the rape shield language in Sec.  
106.45(b)(6)(i)-(ii) may come from a respondent, it is not the 
respondent's burden to prove or establish consent; questions and 
evidence may also be posed or presented by the recipient during the 
recipient's investigation and adjudication.
    Changes: The Department revises Sec.  106.30 to state that the 
Assistant Secretary will not require recipients to adopt a particular 
definition of consent with respect to sexual assault.
    Comments: Some commenters emphasized the need to teach about sexual 
consent. One commenter supported providing greater consent education to 
students, including treating both parties equally with respect to 
situations where both parties were under the influence of alcohol or 
drugs. One commenter stated that there needs to be more teaching about 
consent because there is a lot of confusion, and another commenter 
urged the Department to make it mandatory for every freshman in college 
to attend a course on bullying, sexual harassment, and consent.
    One commenter expressed general opposition for the proposed rules, 
asserting that children should live in a world that takes consent and 
assault seriously. One commenter, who works as a counselor at a 
university, expressed opposition to the proposed rules, stating that 
they would undo the important work of educators to instill in young 
people an understanding of how consent works. One commenter who works 
as a prevention educator teaching students about consent argued that 
the proposed rules paint women as liars, which makes useless the work 
of teaching students that consent should be celebrated, and ends up 
failing the young people of our country. One commenter expressed 
general opposition to the proposed rules and stated ``consent first.'' 
One commenter expressed general opposition to the proposed rules and 
asserted a belief in sex education and teaching consent. One commenter 
stated that the commenter's school requires mandatory courses on 
sexuality and rape prevention that stress the importance of consent, 
open communication, and bystander intervention. The commenter stated 
that even with this training the commenter has still been subjected to 
sexual harassment in college and asserted that the absence of Title IX 
protections will ruin the commenter's ability to learn.
    Discussion: The Department appreciates commenters who expressed a 
belief in the importance of educating students about consent, healthy 
relationships and communication, drug

[[Page 30126]]

and alcohol issues, and sexual assault prevention (as well as bullying 
and harassment, generally). The Department shares commenters' beliefs 
that measures preventing sexual harassment from occurring in the first 
place are beneficial and desirable. Although the Department does not 
control school curricula and does not require recipients to provide 
instruction regarding sexual consent, nothing in these final 
regulations impedes a recipient's discretion to provide educational 
information to students.
    Changes: None.

Elementary and Secondary Schools

    Comments: At least one commenter requested clarity as to the 
definition of ``schools.''
    Discussion: In the proposed regulations, the Department referred to 
recipients that are elementary and secondary schools,\555\ but did not 
provide a definition for ``elementary and secondary schools.'' To 
provide clarity, the Department adds a definition of ``elementary and 
secondary schools'' that aligns with the definition of ``educational 
institutions'' in 34 CFR 106.2(k), which is a definition that applies 
to Part 106 of Title 34 of the Code of Federal Regulations. Section 
106.2(k) defines an educational institution in relevant part as a local 
educational agency as defined in the Elementary and Secondary Education 
Act of 1965, which has been amended by the Every Student Succeeds Act 
(hereinafter ``ESEA''), a preschool, or a private elementary or 
secondary school. Consistent with the first part of the definition in 
34 CFR 106.2(k), the Department includes a definition of ``elementary 
and secondary schools'' to mean a local educational agency (LEA), as 
defined in the ESEA, a preschool, or a private elementary or secondary 
school. The remainder of the entities described as educational 
institutions in 34 CFR 106.2(k) constitute postsecondary institutions 
as explained in the section, below, on the definition of 
``postsecondary institutions.'' The definitions of ``elementary and 
secondary school'' and ``postsecondary institution'' apply only to 
Sec. Sec.  106.44 and 106.45 of these final regulations.
---------------------------------------------------------------------------

    \555\ 83 FR 61498.
---------------------------------------------------------------------------

    Changes: The Department includes a definition of elementary and 
secondary schools as used in Sec. Sec.  106.44 and 106.45 to mean a LEA 
as defined in the ESEA, a preschool, or a private elementary or 
secondary school.

Formal Complaint

Support for Formal Complaint Definition
    Comments: Some commenters supported the definition of a ``formal 
complaint'' in Sec.  106.30, and asserted that requiring a formal 
complaint to initiate an investigation is reasonable and appropriate, 
and will bring clarity to the process of investigating allegations of 
sexual harassment. Some commenters supported the formal complaint 
definition as a benefit to complainants by giving complainants control 
over what happens to their report, and a benefit to institutions by 
ensuring the institution has written documentation indicating that the 
complainant wanted an investigation to begin.
    Commenters supported requiring a formal complaint before an 
investigation begins because, commenters asserted, complainants may 
wish for informal discussions to remain confidential and the formal 
complaint requirement will empower complainants to decide when to 
report and when to start an investigation. Commenters asserted that the 
process for filing a formal complaint described in Sec.  106.30 did not 
seem much different or more burdensome from other formal processes that 
students are accustomed to following in college, such as registering 
for classes or applying to study abroad. Commenters asserted that under 
the withdrawn 2011 Dear Colleague Letter, survivor advocates often 
worked with survivors who found themselves involved in Title IX 
processes that the survivor had not wished to initiate, due to 
disclosing sexual assault to an individual the survivor did not know 
was required to report to the Title IX Coordinator. Commenters asserted 
that many survivors choose not to report for a variety of reasons,\556\ 
and involuntary participation in a conduct process goes against 
standard knowledge of trauma and sexual violence recovery that 
emphasizes the importance of allowing survivors to retain control of 
their recovery to the extent possible. Commenters argued that when 
victims are unexpectedly or unwillingly involved in Title IX processes, 
this contradicts best practices because healing from the trauma of 
sexual violence is promoted when victims are able to maintain control 
of their recovery. Commenters argued that implementing a formal 
complaint process will empower survivors to report to higher education 
institutions if and when they are ready, and to file a formal complaint 
to institutions by the victim's own informed choice, on their own 
terms, by their own volition.
---------------------------------------------------------------------------

    \556\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, Bureau of Justice Statistics, Criminal 
Victimization: 2016 Revised 5 (2018).
---------------------------------------------------------------------------

    Other commenters supported the formal complaint definition as a 
benefit to respondents, so that schools begin investigations only after 
a complainant has signed a document describing the allegations; 
commenters argued this is important for due process given the serious 
nature of the accusations at issue and the potential punishment. 
Commenters asserted that requiring a formal complaint will encourage 
only complainants with serious accusations to come forward.
    One commenter expressed support for the formal complaint 
requirement, but urged the Department to require that formal complaints 
be filed ``without undue delay'' because, the commenter asserted, 
passage of time can prejudice a fair investigation due to memories 
fading and evidence being lost.
    Discussion: The Department appreciates the support from commenters 
for the definition of ``formal complaint'' in Sec.  106.30 and the 
requirement that recipients must investigate the allegations in a 
formal complaint.\557\ We agree that defining a formal complaint and 
requiring a recipient to initiate a grievance process in response to a 
formal complaint brings clarity to the circumstances under which a 
recipient is required to initiate an investigation into allegations of 
sexual harassment. The Department believes that complainants, 
respondents, and recipients benefit from the clarity and transparency 
of specifying the conditions that trigger the initiation of a grievance 
process. As explained below, in response to commenters' concerns and 
questions we have revised the definition of ``formal complaint'' \558\ 
and made revisions throughout the final regulations,\559\ to

[[Page 30127]]

clarify how a recipient must respond to any report or notice of sexual 
harassment, versus when a recipient specifically must respond by 
initiating a grievance process.
---------------------------------------------------------------------------

    \557\ E.g., Sec.  106.44(b)(1); Sec.  106.45(b)(3)(i).
    \558\ As discussed throughout this section of the preamble, we 
have revised the Sec.  106.30 definition of ``formal complaint'' to 
broaden the definition of what constitutes a written, signed 
document, simplify, clarify, and make more accessible the process 
for filing, and provide that signing a formal complaint does not 
mean a Title IX Coordinator becomes a party to a grievance process.
    \559\ For example, we have revised Sec.  106.44(a) to clarify 
specific steps a recipient must take as part of a prompt, non-
deliberately indifferent response, including offering supportive 
measures with or without the filing of a formal complaint, and 
explaining to a complainant how to file a formal complaint, so that 
if a complainant wants to exercise the option of filing, the 
complainant (including a parent or legal guardian, as appropriate) 
knows how to do so. We have added Sec.  106.6(g) to acknowledge the 
legal rights of parents or guardians to act on behalf of a 
complainant, respondent, or other party, including with respect to 
the filing of a formal complaint.
---------------------------------------------------------------------------

    The Department believes that the final regulations benefit 
complainants by obligating recipients to offer complainants supportive 
measures regardless of whether the complainant files a formal 
complaint, and informing complainants of how to file a formal 
complaint; obligating recipients to initiate a grievance process if the 
complainant decides to file a formal complaint; and giving strong due 
process protections to a complainant who decides to participate in a 
grievance process.
    The Department believes that the final regulations benefit 
respondents by ensuring that recipients do not impose disciplinary 
sanctions against a respondent without following a grievance process 
that complies with Sec.  106.45,\560\ and that the prescribed grievance 
process gives strong due process protections to both parties.
---------------------------------------------------------------------------

    \560\ Revised Sec. Sec.  106.44(a) and 106.45(b)(1)(i) state 
that a recipient must treat respondents equitably by not imposing 
disciplinary sanctions or other actions that are not ``supportive 
measures'' as defined in Sec.  106.30, against a respondent without 
first following the Sec.  106.45 grievance process. Exceptions to 
this prohibition are that any respondent may be removed from an 
education program or activity on an emergency basis, whether or not 
a grievance process is pending, under Sec.  106.44(c), and a non-
student employee respondent may be placed on administrative leave 
during the pendency of an investigation, under Sec.  106.44(d), for 
reasons described in the ``Additional Rules Governing Recipients' 
Responses to Sexual Harassment'' subsection of the ``Section 106.44 
Recipient's Response to Sexual Harassment, Generally'' section of 
this preamble.
---------------------------------------------------------------------------

    The Department believes that the final regulations benefit 
recipients by specifying a recipient's obligation to respond promptly 
and without deliberate indifference to every complainant (i.e., a 
person alleged to be the victim of sexual harassment), while clarifying 
the recipient's obligation to conduct an investigation and adjudication 
of allegations of sexual harassment when the complainant files, or the 
Title IX Coordinator signs, a formal complaint.
    We do not agree that a formal complaint requirement encourages only 
complainants with ``serious accusations'' to come forward. While 
certain acts of sexual harassment may have even greater traumatic, 
harmful impact than other such acts, the Department believes that all 
conduct that constitutes sexual harassment under Sec.  106.30 is 
serious misconduct that warrants a serious response. All the conduct 
defined as ``sexual harassment'' in Sec.  106.30 is misconduct that is 
likely to deny a person equal access to education, and recipients must 
respond promptly and supportively to every known allegation of sexual 
harassment whether or not a complainant wants to also file a formal 
complaint.\561\ Filing a formal complaint is not required for a 
complainant to receive supportive measures.
---------------------------------------------------------------------------

    \561\ Section 106.44(a) (requiring a prompt, non-deliberately 
indifferent response any time a recipient has actual knowledge of 
sexual harassment in the recipient's education program or activity, 
against a person in the United States).
---------------------------------------------------------------------------

    We decline to impose a requirement that formal complaints be filed 
``without undue delay.'' The Department believes that imposing a 
statute of limitations or similar time limit on the filing of a formal 
complaint would be unfair to complainants because, as many commenters 
noted, for a variety of reasons complainants sometimes wait various 
periods of time before desiring to pursue a grievance process in the 
aftermath of sexual harassment, and it would be difficult to discern 
what ``undue'' delay means in the context of a particular complainant's 
experience. Title IX obligates recipients to operate education programs 
or activities free from sex discrimination, and we do not believe Title 
IX's non-discrimination mandate would be furthered by imposing a time 
limit on a complainant's decision to file a formal complaint. The 
Department does not believe that a statute of limitations or ``without 
undue delay'' requirement is needed to safeguard the rights of 
respondents, because the extensive due process protections afforded 
under the Sec.  106.45 grievance process appropriately safeguard the 
fundamental fairness and reliability of Title IX proceedings by 
requiring procedures that take into account any effect of passage of 
time on party or witness memories or the availability or quality of 
other evidence.\562\ We have, however, revised the Sec.  106.30 
definition of formal complaint to state that at the time of filing a 
formal complaint, the complainant must be participating in or 
attempting to participate in the recipient's education program or 
activity. This ensures that a recipient is not required to expend 
resources investigating allegations in circumstances where the 
complainant has no affiliation with the recipient, yet refrains from 
imposing a time limit on a complainant's decision to file a formal 
complaint.
---------------------------------------------------------------------------

    \562\ For example, the final regulations provide both parties 
equal opportunity to gather, present, and review relevant evidence, 
such that parties can note whether passage of time has resulted in 
unavailability of evidence and raise arguments about how the 
decision-maker should weigh the evidence that remains. Further, the 
final regulations provide in Sec.  106.45(b)(3)(ii) that a recipient 
has discretion to dismiss a formal complaint where specific 
circumstances prevent the recipient from meeting the recipient's 
burden to gather sufficient evidence. Passage of time could in 
certain fact-specific circumstances result in the recipient's 
inability to gather evidence sufficient to reach a determination 
regarding responsibility.
---------------------------------------------------------------------------

    Changes: As discussed in more detail throughout this section of the 
preamble, we have revised the Sec.  106.30 definition of ``formal 
complaint'' to: Broaden the definition of what constitutes a written, 
signed document, simplify the process for filing, state that at the 
time of filing the formal complaint the complainant must be 
participating or attempting to participate in the recipient's education 
program or activity, and clarify that signing a formal complaint does 
not mean a Title IX Coordinator becomes a party to a grievance process.
    We have revised Sec.  106.44(a) to clarify specific steps a 
recipient must take as part of a prompt, non-deliberately indifferent 
response to actual knowledge of any sexual harassment incident 
(regardless of whether any formal complaint has been filed), including 
offering supportive measures to the complainant irrespective of whether 
a formal complaint is filed, and explaining to the complainant how to 
file a formal complaint. We have added Sec.  106.6(g) to acknowledge 
the legal rights of parents or guardians to act on behalf of a 
complainant, respondent, or other party, including with respect to 
filing a formal complaint.
No Formal Complaint Required To Report Sexual Harassment
    Comments: Several commenters believed that the proposed rules 
required complainants to file formal complaints in order to report 
sexual harassment, or that a formal complaint meeting the definition in 
Sec.  106.30 was required before a school would have to take any action 
to help a student who reported sexual harassment, including offering 
supportive measures. Commenters argued that effective reporting systems 
must be flexible enough to give survivors as much control as possible 
over how they report sexual harassment and assault, including the 
option to remain anonymous or to report the crime without pursuing 
charges. Commenters asserted that when a victim reports shortly after a 
sexual harassment incident, the victim is often overwhelmed with 
emotions, and requiring them to provide formal, written, signed 
documentation would be

[[Page 30128]]

an enormous emotional task that would cause some victims to question 
whether reporting is worth it at all.
    Commenters argued that requiring a formal complaint before a school 
must respond to notice of sexual harassment would violate the Supreme 
Court's standards in Davis, which requires an institutional response 
without a written or signed complaint. Commenters argued that a 
``formal complaint standard'' imposes a more rigorous notice standard 
than the Davis standard, contradicts the Department's stated intent to 
use the Davis standard, and leaves recipients vulnerable to private 
litigation.
    Some commenters believed that the proposed rules would require 
survivors to file formal complaints such that every report would 
trigger an investigation; commenters argued that this would violate 
survivors' autonomy and reduce the likelihood that survivors would come 
forward to get help. Commenters argued that formal complaints 
initiating a grievance process should not be required in order to 
report sexual assault, because not every survivor wants an 
investigation after experiencing sexual assault. Commenters argued that 
requiring survivors to report sexual harassment by filing formal 
complaints, involving writing down details of a traumatic experience in 
a signed document, would deter survivors from ever coming forward. 
Commenters believed that the proposed rules would require a formal 
complaint in order for the recipient to respond to a report and argued 
that this would chill reporting of sexual assault, which would affect 
the number of Clery crime reports and artificially make campuses appear 
safer than they are. Commenters argued that instead, schools should 
have to respond to any information about sexual harassment, assess the 
information, and take appropriate steps to stop the harassment.
    Commenters believed that the proposed rules created two different 
``prompt and equitable'' grievance systems--one process for a school's 
response to a ``formal complaint'' of sexual harassment, and a 
different process for a school's response to an ``informal complaint'' 
of sexual harassment.
    Discussion: Contrary to some commenters' understanding, neither the 
proposed rules, nor the final regulations, requires a formal complaint 
as a condition for any person to report sexual harassment to trigger a 
recipient's obligation to respond promptly and meaningfully. Like the 
proposed rules, the final regulations obligate a recipient to respond 
\563\ in a manner that is not clearly unreasonable in light of the 
known circumstances, whenever a recipient has actual knowledge of 
sexual harassment in the recipient's education program or activity, 
against a person in the United States.\564\ The requirement that a 
recipient must investigate allegations in a formal complaint does not 
change the fact that a recipient must respond, every time the recipient 
has actual knowledge, in a way that is not deliberately indifferent--
even in the absence of a formal complaint.\565\ The requirement that a 
recipient must investigate allegations in a formal complaint provides 
clarity to complainants, respondents, and recipients as to when a 
recipient's response must also consist of investigating allegations. 
Under the final regulations, a Title IX Coordinator has discretion to 
sign a formal complaint that initiates a grievance process; thus, if a 
non-deliberately indifferent response to actual knowledge of sexual 
harassment necessitates investigating allegations, the recipient (via 
the Title IX Coordinator) has the authority to take that action. As 
discussed in the ``Adoption and Adaption of the Supreme Court's 
Framework to Address Sexual Harassment,'' the conditions triggering a 
recipient's response obligations (i.e., actionable sexual harassment, 
and actual knowledge) are built on the foundation of the same concepts 
used in the Gebser/Davis framework. Similarly, the deliberate 
indifference standard is built on the same concept used in the Gebser/
Davis framework, but these final regulations tailor that standard to 
require the recipient to take actions in response to every instance of 
actual knowledge of sexual harassment, including specific obligations 
that are not required under the Gebser/Davis framework. These final 
regulations clarify that a recipient's response obligations must always 
include offering supportive measures to the complainant, and must also 
include initiating a grievance process against the respondent when the 
complainant files, or the Title IX Coordinator signs, a formal 
complaint. The formal complaint definition, and the requirement that 
recipients must investigate formal complaints, therefore comport with 
the Gebser/Davis framework used in private Title IX lawsuits and do not 
increase recipients' vulnerability to legal challenges.
---------------------------------------------------------------------------

    \563\ The final regulations revise Sec.  106.44(a) to require a 
recipient to respond ``promptly.''
    \564\ Revised Sec.  106.44(a) specifies that a recipient's 
response must include offering supportive measures to a complainant 
(i.e., the person alleged to be the victim of conduct that could 
constitute sexual harassment), and requires the Title IX Coordinator 
promptly to contact the complainant to discuss the availability of 
supportive measures with or without the filing of a formal 
complaint, consider the complainant's wishes, and explain to the 
complainant the option of filing a formal complaint.
    \565\ Section 106.44(b)(1) (stating that with or without a 
formal complaint, a recipient must comply with all the response 
obligations described in Sec.  106.44(a)).
---------------------------------------------------------------------------

    While we adopt the Gebser/Davis framework, we adapt that framework 
by requiring recipients to take certain steps as part of every non-
deliberately indifferent response to actual knowledge of sexual 
harassment, irrespective of whether a formal complaint is filed.\566\ 
We have revised Sec.  106.44(a) to specify that a recipient's prompt, 
non-deliberately indifferent response must include offering supportive 
measures to each complainant (i.e., a person who is alleged to be the 
victim), and specifically having the Title IX Coordinator contact the 
complainant to discuss the availability of supportive measures with or 
without the filing of a formal complaint, consider the complainant's 
wishes regarding supportive measures, and explain to the complainant 
the process for filing a formal complaint.
---------------------------------------------------------------------------

    \566\ Section 106.44(b)(1) clarifies that whether or not a 
formal complaint requiring investigation has also been filed, the 
recipient must provide the prompt, non-deliberately indifferent 
response described in Sec.  106.44(a), which includes offering 
supportive measures to the complainant.
---------------------------------------------------------------------------

    We agree with commenters who asserted that requiring a complainant 
to sign formal documentation describing allegations of sexual 
harassment in order to report and receive supportive measures would 
place an unreasonable burden on survivors, and the final regulations 
obligate recipients to respond promptly and meaningfully--including by 
offering supportive measures--whenever the recipient has actual 
knowledge that a person has been allegedly victimized by sexual 
harassment in the recipient's education program or activity, regardless 
of whether the complainant or Title IX Coordinator initiates a 
grievance process by filing or signing a formal complaint. The manner 
by which a recipient receives actual knowledge need not be a written 
statement, much less a formal complaint; actual knowledge may be 
conveyed on a recipient via ``notice'' from any person--not only from 
the complainant (i.e., person alleged to be the victim)--regardless of 
whether the person who reports does so anonymously.\567\ The final 
regulations

[[Page 30129]]

thus effectuate the purpose of Title IX's non-discrimination mandate by 
requiring recipients to respond to information about sexual harassment 
in the recipient's education program or activity, from whatever source 
that information comes,\568\ while reserving the specific obligation to 
respond by investigating and adjudicating allegations to situations 
where the complainant (i.e., the person alleged to be the victim) or 
Title IX Coordinator has decided to file a formal complaint. The formal 
complaint definition thus ensures that complainants retain more 
autonomy and control over when the complainant's reported victimization 
leads to a formal grievance process, and recipients are not forced to 
expend resources investigating situations over the wishes of a 
complainant, unless the Title IX Coordinator has determined that such 
an investigation is necessary. We agree with commenters that not every 
complainant wants a recipient to respond to reported sexual harassment 
by initiating a grievance process; some complainants want an 
investigation, others do not, and some do not initially desire an 
investigation but later decide they do want to file formal ``charges.'' 
The final regulations ensure that every complainant is informed of the 
option and process for filing a formal complaint, yet never require a 
complainant to file a formal complaint in order to receive supportive 
measures. We believe that by respecting complainants' autonomy the 
final regulations will not chill reporting of sexual harassment, but 
instead will provide complainants with clearer options and greater 
control over the process.\569\
---------------------------------------------------------------------------

    \567\ Section 106.30 (defining ``actual knowledge''). Where a 
person reports anonymously (regardless of whether the person is the 
complainant (i.e., the person alleged to be the victim) or a third 
party), the nature of the recipient's non-deliberately indifferent 
response may depend on whether the report contains information 
identifying the alleged victim; for example, Sec.  106.44(a) 
requires a recipient to respond to actual knowledge by offering the 
complainant supportive measures, but a recipient may not be capable 
of taking that action if the person who reported refuses to identify 
the complainant. A recipient's response is judged on whether the 
response is clearly unreasonable in light of the known 
circumstances, which includes what information the recipient 
received about the identity of the complainant.
    \568\ To ensure that a recipient's educational community has 
clear, accessible reporting options, and understands that any person 
may report sexual harassment to trigger the recipient's obligation 
to offer supportive measures and explain the option of filing a 
formal complaint to a person allegedly victimized by sexual 
harassment, we have revised Sec.  106.8 to: State that any person 
may report, using contact information that a recipient must list for 
the Title IX Coordinator; state that reports may be made in person, 
by mail, phone, or email, or by any other method that results in a 
Title IX Coordinator receiving the person's written or verbal 
report; and require recipients to post the Title IX Coordinator's 
contact information on the recipient's website. We have also revised 
Sec.  106.30 (defining ``actual knowledge'') to provide that notice 
of sexual harassment allegations to any elementary or secondary 
school employee triggers the school's response obligations.
    \569\ Denying a survivor control over how a disclosure of sexual 
assault is handled by the survivor's school can also constitute a 
harmful form of institutional betrayal, and the final regulations 
desire to mitigate such harm by giving the complainant a clear, 
accessible option to file, or not file, a formal complaint (while 
receiving supportive measures either way) and by protecting the 
complainant's right to participate, or choose not to participate, in 
a grievance process whether the grievance process is initiated by 
the complainant or by the Title IX Coordinator. See, e.g., Merle H. 
Weiner, Legal Counsel for Survivors of Campus Sexual Violence, 29 
Yale J. of L. & Feminism 123, 140-141 (2017) (identifying one type 
of institutional betrayal as the harm that occurs when ``the 
survivor thinks she [or he] is speaking to a confidential resource, 
but then finds out the advocate cannot keep their conversations 
private''); Carly Parnitzke Smith & Jennifer J. Freyd, Dangerous 
Safe Havens: Institutional Betrayal Exacerbates Sexual Trauma, 26 J. 
of Traumatic Stress 1, 120 (2013) (describing ``institutional 
betrayal'' as when an important institution, or a segment of it, 
acts in a way that betrays its member's trust). Where a Title IX 
Coordinator signs a formal complaint knowing the complainant did not 
wish to do so, the recipient must respect the complainant's wishes 
regarding whether to participate or not in the grievance process. 
Sec.  106.71 (prohibiting retaliation).
---------------------------------------------------------------------------

    Contrary to some commenters' understanding, the final regulations 
do not create two separate systems of ``prompt and equitable grievance 
procedures'' for how a recipient responds to sexual harassment based on 
whether the recipient receives a formal complaint or informal 
complaint. Rather, the final regulations obligate the recipient to 
respond to every known allegation of sexual harassment (regardless of 
how, or from whom, the recipient receives notice) promptly and non-
deliberately indifferently, and obligate the recipient to respond by 
initiating a grievance process when the recipient receives a formal 
complaint of sexual harassment. If commenters referred to an ``informal 
complaint of sexual harassment'' to describe a report or disclosure of 
sexual harassment that is not a ``formal complaint'' as defined in 
Sec.  106.30, the final regulations require recipients to respond 
promptly and non-deliberately indifferently (including by offering the 
complainant supportive measures) to such a report or disclosure, but 
the recipient need not initiate investigation or adjudication 
procedures unless the recipient receives a ``formal complaint of sexual 
harassment.'' Furthermore, Sec.  106.44(a) precludes recipients from 
responding to reports, disclosures, or notice of alleged sexual 
harassment by imposing disciplinary sanctions on a respondent without 
first following a grievance process that complies with Sec.  106.45. 
The ``prompt and equitable'' grievance procedures to which commenters 
referred still must be adopted, published, and used by a recipient to 
address complaints of non-sexual harassment sex discrimination, under 
Sec.  106.8(c), while recipients must respond to formal complaints of 
sexual harassment by following a grievance process that complies with 
Sec.  106.45.
    Changes: None.
Burden on Complainants To File a Formal Complaint
    Comments: Commenters argued that requiring a formal complaint in 
order to begin an investigation places an unfair burden on victims who 
want an investigation but should not have to comply with specific 
paperwork and procedures, or because requiring a victim to put their 
name in writing and flesh out the details of a harrowing experience in 
a written narrative may be retraumatizing. Commenters argued that many 
institutions follow a principle that a victim should only have to make 
a single statement about an incident, and therefore a victim's written 
or oral disclosure to a police officer, or to any responsible campus 
employee, should be sufficient to trigger an investigation. Commenters 
asserted that some State protocols for sexual assault investigations 
(for example, in New Hampshire) caution against collecting written 
statements from victims.
    Commenters argued that making victims sign a document with a 
statement of facts is inappropriate due to the potential effect of such 
a document on any future litigation. Commenters argued that it is 
unfair to make victims sign a written statement to start an 
investigation because the written statement could be wrongfully used to 
discredit a victim during the investigation if the victim's later 
statements show any inconsistencies with the formal complaint, and 
victims in the immediate aftermath of sexual violence may have trouble 
focusing or recalling details, due to trauma.\570\ One commenter 
proposed a detailed alternate process for starting investigations, 
under which the complainant would orally describe an incident to a 
compliance team, the compliance team would inform the complainant of 
the option for signing a written statement initiating an investigation, 
and the complainant would have 72 hours to decide whether to sign such 
a written statement.
---------------------------------------------------------------------------

    \570\ Commenters cited: Russell W. Strand, The Forensic 
Experiential Trauma Interview (FETI), https://responsesystemspanel.whs.mil/Public/docs/meetings/20130627/01_Victim_Overview/Rumburg_FETI_Interview.pdf.

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[[Page 30130]]

    Commenters argued that any report of a sexual assault, to any 
school or college employee, whether oral or written, formal or 
informal, should be sufficient to start an investigation because 
otherwise a significant number of sexual assaults will go un-
investigated, and because schools could ignore openly hostile 
environments just because no one filed a formal document. Commenters 
argued there are many ways schools can investigate a report without 
involving the victim, so victims should never be forced to file 
complaints but schools should still investigate all credible reports. 
Commenters argued that the burden of starting an investigation should 
be on the school, not on the survivor to jump through the hoop of 
filing a formal complaint. Commenters argued that in order to maintain 
a safe, non-discriminatory learning environment, institutions must not 
be confined by the formalities of signatures on a complaint before they 
are able to move forward with an investigation. Commenters argued that 
if schools can ignore known sexual harassment just because no one has 
filed a formal complaint, institutions of higher education will have 
even less incentive to try to stop sex abuse scandals by their 
employees. Commenters argued that it is expecting a student to undergo 
too much risk to file a written complaint against a faculty member who 
is sexually abusing the student, so more students will fall prey to 
serial abuse by faculty.
    Commenters argued that the Sec.  106.30 definition of ``formal 
complaint'' would preclude third parties (such as teachers, witnesses, 
or school employees other than the Title IX Coordinator) from filing 
complaints to initiate grievance procedures, representing a departure 
from past Department guidance and reducing schools' efforts to redress 
offending behavior. Other commenters supported restricting third 
parties from filing formal complaints because confiding in a resident 
advisor or professor should not trigger an obligation for that employee 
to file a formal complaint on the victim's behalf. Some commenters 
argued that no investigation should be initiated without the consent of 
the victim because the victim should be the one with the power to 
initiate a formal process, and victims should be given the opportunity 
to be educated on the law, process, and rights of victims.
    Commenters argued that the burden of filing a formal complaint 
would fall especially hard on K-12 students because the proposed safe 
harbor in Sec.  106.44(b)(2) only ensured that students in higher 
education would receive supportive measures in the absence of a formal 
complaint, so younger students, who may not even be capable of writing 
down a description of sexual harassment, would get no help at all.
    Discussion: The Department appreciates commenters' concerns that 
requiring complainants who wish to initiate an investigation to sign a 
written document may seem like an unnecessary ``paperwork'' procedure, 
or that a victim may find it retraumatizing to write out details of a 
sexual harassment experience. However, absent a written document signed 
by the complainant alleging sexual harassment against a respondent and 
requesting an investigation,\571\ the Department believes that 
complainants and recipients may face confusion about whether an 
investigation is initiated because the complainant desires it, because 
the Title IX Coordinator believes it necessary, both, or neither. We 
reiterate that when a recipient has actual knowledge of sexual 
harassment, the recipient must offer supportive measures to the 
complainant whether or not a formal complaint is ever filed. However, a 
complainant's decision to initiate a grievance process should be clear, 
to avoid situations where a recipient involves a complainant in a 
grievance process when that was neither what the complainant wanted nor 
what the Title IX Coordinator believed was necessary. A grievance 
process is a weighty, serious process with consequences that affect the 
complainant, the respondent, and the recipient. Clarity as to the 
nature and scope of the investigation necessitates that a formal 
complaint initiating the grievance process contain allegations of 
sexual harassment against the respondent, so the recipient may then 
prepare the written notice of allegations to be sent to both parties 
(under Sec.  106.45(b)(2)), which advises both parties of essential 
details of allegations under investigation, and of important rights 
available to both parties under the grievance process.
---------------------------------------------------------------------------

    \571\ As discussed herein, the final regulations broaden the 
meaning of a ``document filed by a complainant'' to include a 
document or electronic submission (such as an email, or use of an 
online portal provided for this purpose by the recipient) that 
contains the complainant's physical or digital signature, or 
otherwise indicates that the complainant is the person filing the 
formal complaint.
---------------------------------------------------------------------------

    The Department acknowledges the principle, followed by some 
institutions and State protocols, that avoids asking victims for 
written statements or avoids asking victims to recount allegations more 
than once. We reiterate that a complainant may report (once, and 
verbally) in order to require a recipient to respond promptly by 
offering supportive measures. Reports of sexual harassment (whether 
made by the alleged victim themselves or by any third party) do not 
need to be in writing, much less in the form of a signed document.\572\ 
The final regulations desire to ensure that every complainant receives 
this prompt, supportive response regardless of whether a grievance 
process is ever initiated. The formal complaint requirement ensures 
that a grievance process is the result of an intentional decision on 
the part of either the complainant or the Title IX Coordinator. A 
complainant (or a third party) may report sexual harassment to a school 
for a different purpose than desiring an investigation. Thus, if an 
investigation is an action the complainant desires, the complainant 
must file a written document requesting an investigation. No written 
document is required to put a school on notice (i.e., convey actual 
knowledge) of sexual harassment triggering the recipient's response 
obligations under Sec.  106.44(a).
---------------------------------------------------------------------------

    \572\ Section 106.8(a).
---------------------------------------------------------------------------

    The Sec.  106.30 definition of ``formal complaint'' requires a 
document ``alleging sexual harassment against a respondent,'' but 
contains no requirement as to a detailed statement of facts. Whether or 
not statements made during a Title IX grievance process might be used 
in subsequent litigation, clarity, predictability, and fairness in the 
Title IX process require both parties, and the recipient, to understand 
that allegations of sexual harassment have been made against the 
respondent before initiating a grievance process. We reiterate that no 
written statement is required in order to receive supportive 
measures,\573\ and that there is no time limit on a complainant's 
decision to file a formal complaint, so the decision to sign and file a 
formal complaint need not occur in the immediate aftermath of sexual 
violence when a survivor may have the greatest difficulty focusing, 
recalling details, or making decisions. A complainant may disclose or 
report immediately (if the complainant desires) to receive supportive 
measures and receive information about the option for filing a formal 
complaint, and that disclosure or report may be verbal, in writing, or 
by any other means of giving

[[Page 30131]]

notice.\574\ But such a disclosure or report may be entirely separate 
from a complainant's later decision to pursue a grievance process by 
filing a formal complaint. We disagree with a commenter's suggestion to 
require a complainant to decide within 72 hours whether to file a 
formal complaint; even with the detailed steps in such a process 
suggested by the commenter, for reasons explained above it does not 
further Title IX's non-discrimination mandate to impose a time limit on 
a complainant's decision to file a formal complaint.
---------------------------------------------------------------------------

    \573\ We have revised Sec.  106.8(a) to specify that any person 
may report sexual harassment using the Title IX Coordinator's 
contact information (including during non-business hours by using 
the listed telephone number or email address) ``or by any other 
means that results in the Title IX Coordinator receiving the 
person's verbal or written report.''
    \574\ See Sec.  106.30 defining ``actual knowledge'' to mean 
``notice'' to the Title IX Coordinator, to any official with 
authority to take corrective action, or to any elementary or 
secondary school employee, where ``notice'' includes (but is not 
limited to) a report of sexual harassment to the Title IX 
Coordinator as described in Sec.  106.8(a).
---------------------------------------------------------------------------

    The Department disagrees that every report of a sexual assault to 
any recipient employee should be sufficient to start an investigation. 
We believe that every allegation of sexual harassment of which the 
recipient becomes aware \575\ must be responded to, promptly and 
meaningfully, including by offering supportive measures to the person 
alleged to be the victim of conduct that could constitute sexual 
harassment.\576\ However, we believe that complainants should retain as 
much control as possible \577\ over whether a school's response 
includes involving the complainant in a grievance process. When a 
complainant believes that investigation and adjudication of allegations 
is in the complainant's best interest, the complainant should be able 
to require the recipient to initiate a grievance process.\578\ When a 
Title IX Coordinator believes that with or without the complainant's 
desire to participate in a grievance process, a non-deliberately 
indifferent response to the allegations requires an investigation, the 
Title IX Coordinator should have the discretion to initiate a grievance 
process. Not investigating every report of sexual harassment will not 
allow schools to ignore complainants or ignore ``openly hostile 
environments,'' because Sec.  106.44(a) requires the recipient to 
respond promptly in a manner that is not unreasonable in light of the 
known circumstances, to every instance of alleged sexual harassment in 
the recipient's education program or activity of which the recipient 
becomes aware, including offering supportive measures to the 
complainant with or without a grievance process. Part of whether a 
decision not to investigate is ``clearly unreasonable'' may include a 
Title IX Coordinator's communication with the complainant to understand 
the complainant's desires with respect to a grievance process against 
the respondent. When a Title IX Coordinator determines that an 
investigation is necessary even where the complainant (i.e., the person 
alleged to be the victim) does not want such an investigation, the 
grievance process can proceed without the complainant's participation; 
however, the complainant will still be treated as a party in such a 
grievance process. The grievance process will therefore impact the 
complainant even if the complainant refuses to participate. The 
Department desires to respect a complainant's autonomy as much as 
possible and thus, if a grievance process is initiated against the 
wishes of the complainant, that decision should be reached thoughtfully 
and intentionally by the Title IX Coordinator, not as an automatic 
result that occurs any time a recipient has notice that a complainant 
was allegedly victimized by sexual harassment. We do not believe this 
places ``the burden'' of starting an investigation on the complainant. 
Rather, the final regulations enable a complainant, or the Title IX 
Coordinator, to initiate an investigation. The final regulations 
appropriately leave recipients flexibility to investigate allegations 
even where the complainant does not wish to file a formal complaint 
where initiating a grievance process is not clearly unreasonable in 
light of the known circumstances (including the circumstances under 
which a complainant does not desire an investigation to take place), so 
that recipients may, for example, pursue a grievance process against a 
potential serial sexual perpetrator. The recipient is required to 
document its reasons why its response to sexual harassment was not 
deliberately indifferent, under Sec.  106.45(b)(10), thereby 
emphasizing the need for a decision to initiate a grievance process 
over the wishes of a complainant to be intentionally, carefully made 
taking into account the circumstances of each situation.
---------------------------------------------------------------------------

    \575\ As discussed above, a recipient is charged with actual 
knowledge of sexual harassment when notice is given to a Title IX 
Coordinator, an official with authority to take corrective action, 
or any elementary or secondary school employee. Sec.  106.30 
(defining ``actual knowledge'').
    \576\ Section 106.44(a) Sec.  106.30 (defining ``complainant'').
    \577\ A complainant's control over a school's response may be 
circumscribed by a recipient's obligations under laws other than 
these final regulations; for example, State laws mandating schools 
to report suspected child sexual abuse to law enforcement or child 
welfare authorities. However, these final regulations protect a 
complainant against being intimidated, threatened, coerced, or 
discriminated against for participating, or refusing to participate, 
in a Title IX grievance process. Sec.  106.71.
    \578\ Section 106.6(g) (acknowledging that where a parent or 
guardian has the legal right to act on a complainant's behalf, the 
parent or guardian may file a formal complaint on behalf of the 
complainant).
---------------------------------------------------------------------------

    The Sec.  106.30 definition of ``formal complaint'' does preclude 
third parties from filing formal complaints.\579\ For the reasons 
discussed above, we believe that respecting a complainant's autonomy to 
the greatest degree possible means that an investigation against a 
complainant's wishes or without a complainant's willingness to 
participate, should happen only when the Title IX Coordinator has 
determined that the investigation is necessary under the particular 
circumstances.\580\ We reiterate that any person may disclose or report 
a sexual harassment incident, whether that person is the complainant 
(i.e., the individual who is alleged to be the victim) or any third 
party, such as a teacher, witness, parent, or school employee.\581\ 
When the disclosure or report gives notice of sexual harassment 
allegations to a Title IX Coordinator,\582\ an official with authority 
to institute corrective measures on the recipient's behalf, or any 
elementary and secondary school employee,\583\ the recipient must 
respond promptly in a non-deliberately indifferent manner. Thus, even 
if neither the complainant nor the Title IX Coordinator decides to file 
a formal complaint, the recipient must still respond to the reported 
sexual harassment incident by offering supportive measures to the 
complainant and informing the complainant of the option of filing a 
formal complaint.\584\
---------------------------------------------------------------------------

    \579\ Cf. Sec.  106.6(g).
    \580\ See Michelle L. Meloy & Susan L. Miller, The Victimization 
of Women: Law, Policies, and Politics 147-48 (Oxford University 
Press 2010) (anti-violence policies must embrace ``notions of victim 
empowerment for self-protection by allowing victims to drop criminal 
charges''). The Title IX equivalent of this premise is that the 
Department should not require schools to investigate in the absence 
of a complainant's consent. The formal complaint definition in Sec.  
106.30 ensures that schools must investigate when the complainant 
desires that action (see also Sec.  106.44(b)(1)), and ensures that 
a school only overrides a complainant's desire for the school not to 
investigate if the Title IX Coordinator has determined on behalf of 
the recipient that an investigation is needed, and in such 
circumstances the final regulations protect the complainant's right 
to refuse to participate in the grievance process. Sec.  106.71.
    \581\ Section 106.8(a) (expressly stating that any person may 
report sexual harassment using the listed contact information for 
the Title IX Coordinator, whether or not the person reporting is the 
person alleged to be the victim of conduct that could constitute 
sexual harassment).
    \582\ Section 106.30 (defining ``actual knowledge'' and 
expressly stating that ``notice'' includes a report to the Title IX 
Coordinator as described in Sec.  106.8(a)).
    \583\ Section 106.30 (defining ``actual knowledge'').
    \584\ Sections 106.44(a), 106.44(b)(1).

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[[Page 30132]]

    We disagree that no formal complaint should ever be filed without 
the consent of the victim, because some circumstances may require a 
recipient (via the Title IX Coordinator) to initiate an investigation 
and adjudication of sexual harassment allegations in order to protect 
the recipient's educational community or otherwise avoid being 
deliberately indifferent to known sexual harassment. However, we have 
added Sec.  106.71 to prohibit retaliation against any person 
exercising rights under Title IX, including the right not to 
participate in a Title IX grievance process, so that a complainant is 
protected from being coerced, intimated, threatened, or otherwise 
discriminated against based on the complainant's refusal to participate 
in a grievance process. We agree that complainants should be given the 
opportunity to be informed of the law, process, and victims' rights, 
and the final regulations require recipients to notify students, 
employees, and parents of elementary and secondary school students 
(among others) of the recipient's Title IX non-discrimination policy, 
contact information for the Title IX Coordinator, how to report sexual 
harassment, and the recipient's grievance process for formal complaints 
of sexual harassment.\585\ The final regulations further require 
recipients to offer supportive measures to a complainant, discuss with 
each individual complainant the availability of supportive measures 
with or without the filing of a formal complaint, and explain to the 
complainant the process for filing a formal complaint.\586\
---------------------------------------------------------------------------

    \585\ Section 106.8.
    \586\ Section 106.44(a).
---------------------------------------------------------------------------

    In response to commenters' concerns that elementary and secondary 
school students might not receive supportive measures in the absence of 
a formal complaint because the supportive measures safe harbor in 
proposed Sec.  106.44(b)(2) applied only to postsecondary institutions, 
we have removed the safe harbor in proposed Sec.  106.44(b)(2), and 
revised Sec.  106.44(a) to require all recipients to offer supportive 
measures to every complainant, obviating the need for a ``safe harbor'' 
that results from providing supportive measures. As to all recipients, 
the final regulations enable the complainant (i.e., the individual who 
is alleged to be the victim) or the Title IX Coordinator, to file a 
formal complainant that initiates a grievance process. As discussed 
below in this section of the preamble, the final regulations also 
acknowledge the legal right of a parent to act on behalf of their 
child, addressing the concern that children are expected to write or 
sign a formal complaint.
    Changes: We have removed the supportive measures safe harbor in 
proposed Sec.  106.44(b)(2) and have revised Sec.  106.44(a) to require 
all recipients to offer supportive measures to each complainant 
irrespective of whether a formal complaint is ever filed. We have added 
Sec.  106.6(g) acknowledging the legal rights of parents or guardians 
to act on behalf of a complainant, respondent, or other individual, 
including but not limited to the filing of a formal complaint. We have 
added Sec.  106.71 to prohibit retaliation against any person 
exercising rights under Title IX, including the right not to 
participate in a Title IX grievance process.
Anonymous Reporting and Anonymous Filing of Formal Complaints
    Comments: Commenters requested clarification as to whether the 
proposed rules discouraged or prohibited anonymous reporting; some 
commenters asserted that anonymous reports may disclose valid 
information about openly hostile environments on campus that should be 
investigated even though the reporting party is anonymous. Commenters 
argued that disallowing confidential and anonymous reporting would 
deter reporting because research shows that concern about 
confidentiality is one reason why victims of sexual crimes do not 
report.\587\ Commenters argued that requiring a signed statement may 
act as a deterrent to reporting, citing to a report finding that 
several police departments have permitted victims to report anonymously 
in an effort to allow a victim more options and control over whether to 
participate in an investigation, and that police find it advantageous 
because they can learn more about crimes committed in the area, and 
anonymous reporting may allow them to track a predator who commits 
multiple offenses.\588\ Commenters argued that prohibiting victims from 
filing formal complaints anonymously would conflict with State law 
(such as in Illinois, and Texas) where institutions are required to 
provide an option for anonymous reporting and State law (such as Texas) 
that requires electronic reporting to be an option.
---------------------------------------------------------------------------

    \587\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, National Institute of Justice, Sexual Assault on 
Campus: What Colleges and Universities Are Doing About It (2005).
    \588\ Commenters cited: Human Rights Watch, Improving Police 
Response to Sexual Assault (2013).
---------------------------------------------------------------------------

    Discussion: The Department appreciates the opportunity to clarify 
that the final regulations do not prohibit recipients from implementing 
anonymous (sometimes called ``blind'') reporting options. Anonymous or 
blind reporting options that have been implemented by law enforcement 
agencies, for example, may enable the police to gain more information 
about crimes and may assist in identifying patterns of repeat 
offenders, while providing victims with ``another option for healing--
an option that falls in between not reporting the crime, and being 
involved in a full criminal investigation.'' \589\ As commenters noted, 
anonymous reports sometimes disclose valid information about sexual 
harassment on campus. Under the final regulations, when a recipient has 
actual knowledge of alleged sexual harassment in the recipient's 
education program or activity the final regulations require a recipient 
to respond in a manner that is not clearly unreasonable in light of the 
known circumstances. A recipient has actual knowledge whenever notice 
of sexual harassment is given to the Title IX Coordinator, an official 
with authority to institute corrective measures, or any elementary and 
secondary school employee.\590\ The final regulations do not restrict 
the form that ``notice'' might take, so notice conveyed by an anonymous 
report may convey actual knowledge to the recipient and trigger a 
recipient's response obligations. A recipient's non-deliberately 
indifferent response must include offering supportive measures to a 
complainant (i.e., person alleged to be the victim of sexual 
harassment).\591\ A recipient's ability to offer supportive measures to 
a complainant, or to consider whether to initiate a grievance process 
against a respondent, will be affected by whether the report disclosed 
the identity of the complainant or respondent. In order for a recipient 
to provide supportive measures to a complainant, it is not possible for 
the complainant to remain anonymous because at least one school 
official (e.g., the Title IX Coordinator) will need to know the 
complainant's identity in order to offer and implement any supportive 
measures. Section 106.30 defining ``supportive measures'' directs the 
recipient to maintain as confidential any supportive measures provided 
to

[[Page 30133]]

either a complainant or a respondent, to the extent that maintaining 
confidentiality does not impair the recipient's ability to provide the 
supportive measures. A complainant (or third party) who desires to 
report sexual harassment without disclosing the complainant's identity 
to anyone may do so, but the recipient will be unable to provide 
supportive measures in response to that report without knowing the 
complainant's identity. If a complainant desires supportive measures, 
the recipient can, and should, keep the complainant's identity 
confidential (including from the respondent), unless disclosing the 
complainant's identity is necessary to provide supportive measures for 
the complainant (e.g., where a no-contact order is appropriate and the 
respondent would need to know the identity of the complainant in order 
to comply with the no-contact order, or campus security is informed 
about the no-contact order in order to help enforce its terms).
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    \589\ National Resource Center on Domestic Violence, VAWnet, 
Introduction to Sabrina Garcia & Margaret Henderson, Blind Reporting 
of Sexual Violence, 68 FBI Law Enforcement Bulletin 6 (June 1999), 
https://vawnet.org/material/blind-reporting-sexual-violence.
    \590\ Section 106.30 (defining ``actual knowledge'').
    \591\ Section 106.44(a).
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    Separate and apart from whether a grievance process is initiated, 
the final regulations require recipients to respond non-deliberately 
indifferently even where sexual harassment allegations were conveyed to 
the recipient via an anonymous report (made by the complainant 
themselves, or by a third party), including offering the complainant 
supportive measures if the anonymous report identified a complainant 
(i.e., person alleged to be a victim of sexual harassment). Nothing in 
the final regulations precludes a recipient from implementing reporting 
systems that facilitate or encourage an anonymous or blind reporting 
option. Thus, recipients who are obligated under State laws to offer 
anonymous reporting options may not face any conflict with obligations 
under the final regulations. The final regulations do not preclude 
recipients from offering electronic reporting systems, so recipients 
obligated to do so under State laws may not face any conflict with 
obligations under the final regulations. To ensure that complainants 
(and third parties, because any person may report sexual harassment) 
have clear, accessible reporting options, we have revised Sec.  
106.8(a) to expressly state that any person may report sexual 
harassment using the Title IX Coordinator's listed contact information, 
and such a report may be made at any time (including during non-
business hours) by using the listed telephone number or email address 
(or by mail to the listed office address) for the Title IX Coordinator. 
Recipients may additionally offer other types of electronic reporting 
systems.
    A formal complaint initiates a grievance process (i.e., an 
investigation and adjudication of allegations of sexual harassment). A 
complainant (i.e., a person alleged to be the victim of sexual 
harassment) cannot file a formal complaint anonymously because Sec.  
106.30 defines a formal complaint to mean a document or electronic 
submission (such as an email or using an online portal provided for 
this purpose by the recipient) that contains the complainant's physical 
or digital signature or otherwise indicates that the complainant is the 
person filing the formal complaint. The final regulations require a 
recipient to send written notice of the allegations to both parties 
upon receiving a formal complaint. The written notice of allegations 
under Sec.  106.45(b)(2) must include certain details about the 
allegations, including the identity of the parties, if known.
    Where a complainant desires to initiate a grievance process, the 
complainant cannot remain anonymous or prevent the complainant's 
identity from being disclosed to the respondent (via the written notice 
of allegations). Fundamental fairness and due process principles 
require that a respondent knows the details of the allegations made 
against the respondent, to the extent the details are known, to provide 
adequate opportunity for the respondent to respond. The Department does 
not believe this results in unfairness to a complainant. Bringing 
claims, charges, or complaints in civil or criminal proceedings 
generally requires disclosure of a person's identity for purposes of 
the proceeding. Even where court rules permit a plaintiff or victim to 
remain anonymous or pseudonymous, the anonymity relates to 
identification of the plaintiff or victim in court records that may be 
disclosed to the public, not to keeping the identity of the plaintiff 
or victim unknown to the defendant.\592\ The final regulations ensure 
that a complainant may obtain supportive measures while keeping the 
complainant's identity confidential from the respondent (to the extent 
possible while implementing the supportive measure), but in order for a 
grievance process to accurately resolve allegations that a respondent 
has perpetrated sexual harassment against a complainant, the 
complainant's identity must be disclosed to the respondent, if the 
complainant's identity is known. However, the identities of 
complainants (and respondents, and witnesses) should be kept 
confidential from anyone not involved in the grievance process, except 
as permitted by FERPA, required by law, or as necessary to conduct the 
grievance process, and the final regulations add Sec.  106.71 to impose 
that expectation on recipients.\593\
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    \592\ See, e.g., Jayne S. Ressler, #WorstPlaintiffEver: Popular 
Public Shaming and Pseudonymous Plaintiffs, 84 Tenn. L. Rev. 779, 
828 (2017) (arguing that Federal and State courts should adopt 
broader rules allowing plaintiffs to file civil lawsuits anonymously 
or pseudonymously, and emphasizing that this anonymity relates to 
whether a plaintiff is named in court records that may be viewed by 
the public, but does not affect the defendant's knowledge of the 
identity of the plaintiff) (``The plaintiff's anonymity would extend 
only to court filings and any other documents that would be released 
to the public. In other words, the defendant would have the same 
information about the plaintiff had the plaintiff filed the case 
under her own name.'').
    \593\ Section 106.71(a) (prohibiting retaliation and providing 
in relevant part that the recipient must keep confidential the 
identity of any individual who has made a report or complaint of sex 
discrimination, including any individual who has made a report or 
filed a formal complaint of sexual harassment, any complainant, any 
individual who has been reported to be the perpetrator of sex 
discrimination, any respondent, and any witness except as may be 
permitted by FERPA, or required by law, or to the extent necessary 
to carry out the purposes of 34 CFR part 106, including the conduct 
of any investigation, hearing, or judicial proceeding arising 
thereunder).
---------------------------------------------------------------------------

    When a formal complaint is signed by a Title IX Coordinator rather 
than filed by a complainant, the written notice of allegations in Sec.  
106.45(b)(2) requires the recipient to send both parties details about 
the allegations, including the identity of the parties if known, and 
thus, if the complainant's identity is known it must be disclosed in 
the written notice of allegations. However, if the complainant's 
identity is unknown (for example, where a third party has reported that 
a complainant was victimized by sexual harassment but does not reveal 
the complainant's identity, or a complainant has reported anonymously), 
then the grievance process may proceed if the Title IX Coordinator 
determines it is necessary to sign a formal complaint, even though the 
written notice of allegations does not include the complainant's 
identity.\594\
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    \594\ If the complainant's identity is discovered during the 
investigation, the recipient would need to send supplemental notice 
of allegations to the parties and treat the complainant as a party 
throughout the grievance process. See Sec.  106.45(b)(2)(ii). 
Without a complainant (i.e., a person alleged to be the victim of 
sexual harassment) at some point being identified during an 
investigation, a recipient may find itself unable to meet the 
recipient's burden to gather evidence sufficient to reach a 
determination regarding responsibility. For example, without knowing 
a complainant's identity a recipient may not be able to gather 
evidence necessary to establish elements of conduct defined as 
``sexual harassment'' under Sec.  106.30, such as whether alleged 
conduct was unwelcome, or without the consent of the victim. In such 
a situation, the final regulations provide for discretionary 
dismissal of the formal complaint, or allegations therein. Sec.  
106.45(b)(3)(ii). A recipient's decision (made via the Title IX 
Coordinator) to initiate a grievance process over the wishes of a 
complainant, or where the complainant does not wish to participate, 
or where the complainant's identity is unknown, is evaluated under 
the deliberate indifference standard set forth in Sec.  106.44(a).

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[[Page 30134]]

    The Department agrees with commenters that concerns about 
confidentiality often affect a victim's willingness to report sexual 
assault. The final regulations aim to give complainants as much control 
as possible over: Whether and how to report that the complainant has 
been victimized by sexual harassment; whether, or what kinds, of 
supportive measures may help the complainant maintain equal access to 
education; and whether to initiate a grievance process against the 
respondent. Each of the foregoing decisions can be made by a 
complainant with awareness of the implications for the complainant's 
anonymity or confidentiality. The final regulations ensure that 
complainants have any or all of the following options: the ability to 
report anonymously (though a recipient will be unable to provide 
supportive measures without knowing the complainant's identity); the 
ability to report and receive supportive measures while keeping the 
complainant's identity confidential from the respondent (unless the 
respondent must know the complainant's identity in order for the 
recipient to implement a supportive measure); and the right to file a 
formal complaint against the respondent, realizing that doing so means 
the respondent will know the complainant's identity, yet as to people 
outside the grievance process the complainant's identity must be kept 
confidential except as permitted by FERPA, required by law, or as 
necessary to conduct the grievance process.
    Changes: We have added Sec.  106.71(a) requiring recipients to keep 
confidential the identity of any individual who has made a report or 
complaint of sex discrimination, including any individual who has made 
a report or filed a formal complaint of sexual harassment, any 
complainant, any individual who has been reported to be the perpetrator 
of sex discrimination, any respondent, and any witness, except as 
permitted by FERPA, required by law, or as necessary to carry out the 
purposes of 34 CFR part 106 to conduct any investigation, hearing, or 
judicial proceeding arising thereunder, which includes a grievance 
process.
Officials Other Than the Title IX Coordinator Filing a Formal Complaint
    Comments: Commenters asked for clarification as to whether 
``officials with authority to institute corrective measures on behalf 
of the recipient'' are authorized to file a formal complaint, or 
whether the Title IX Coordinator is the sole employee authorized to 
file a formal complaint. Commenters requested that Sec.  106.30 be 
modified so that the complainant, the Title IX Coordinator, or ``any 
institutional administrator'' can file a formal complaint; commenters 
argued that there are many administrators who have a significant 
interest in ensuring that the recipient investigates potential 
violations of school policy. Commenters requested clarification as to 
whether by filing a formal complaint, the Title IX Coordinator becomes 
a party in the investigation, and if this means that the Title IX 
Coordinator must be given the rights that the grievance procedures give 
to complainants, or if not, then commenters wondered who would be 
treated as the complainant in cases where the victim did not sign the 
formal complaint. Commenters argued that a Title IX Coordinator who 
signs a formal complaint initiating grievance procedures against a 
respondent is no longer neutral or impartial, is biased, and/or has a 
conflict of interest, especially where the Title IX Coordinator will 
also be the investigator.
    Discussion: We appreciate the opportunity to clarify that the final 
regulations do not permit a formal complaint to be filed or signed by 
any person other than the complainant (i.e., the person alleged to be 
the victim of sexual harassment or the alleged victim's parent or 
guardian on the alleged victim's behalf, as appropriate) or the Title 
IX Coordinator. While it is true that school administrators other than 
the Title IX Coordinator may have significant interests in ensuring 
that the recipient investigate potential violations of school policy, 
for reasons explained above, the decision to initiate a grievance 
process in situations where the complainant does not want an 
investigation or where the complainant intends not to participate 
should be made thoughtfully and intentionally, taking into account the 
circumstances of the situation including the reasons why the 
complainant wants or does not want the recipient to investigate. The 
Title IX Coordinator is trained with special responsibilities that 
involve interacting with complainants, making the Title IX Coordinator 
the appropriate person to decide to initiate a grievance process on 
behalf of the recipient. Other school administrators may report sexual 
harassment incidents to the Title IX Coordinator, and may express to 
the Title IX Coordinator reasons why the administrator believes that an 
investigation is warranted, but the decision to initiate a grievance 
process is one that the Title IX Coordinator must make.\595\
---------------------------------------------------------------------------

    \595\ This does not preclude recipient employees or 
administrators other than the Title IX Coordinator from implementing 
supportive measures for the complainant (or for a respondent). The 
final regulations, Sec.  106.30 defining ``supportive measures,'' 
require that the Title IX Coordinator is responsible for the 
effective implementation of supportive measures; however, this does 
not preclude other recipient employees or administrators from 
implementing supportive measures for a complainant (or a respondent) 
and in fact, effective implementation of most supportive measures 
requires the Title IX Coordinator to coordinate with administrators, 
employees, and offices outside the Title IX office (for example, 
notifying campus security of the terms of a no-contact order, or 
working with the school registrar to appropriately reflect a 
complainant's withdrawal from a class, or communicating with a 
professor that a complainant needs to re-take an exam).
---------------------------------------------------------------------------

    The Department does not view a Title IX's Coordinator decision to 
sign a formal complaint as being adverse to the respondent. A Title IX 
Coordinator's decision to sign a formal complaint is made on behalf of 
the recipient (for instance, as part of the recipient's obligation not 
to be deliberately indifferent to known allegations of sexual 
harassment), not in support of the complainant or in opposition to the 
respondent or as an indication of whether the allegations are credible, 
have merit, or whether there is evidence sufficient to determine 
responsibility. To clarify this, we have removed the phrase ``or on 
whose behalf the Title IX Coordinator has filed a formal complaint'' 
from the proposed rules' definition of ``complainant'' in Sec.  106.30. 
We have also revised the Sec.  106.30 definition of ``formal 
complaint'' to state that when the Title IX Coordinator signs a formal 
complaint, the Title IX Coordinator does not become a complainant, or 
otherwise a party, to a grievance process, and must still serve free 
from bias or conflict of interest for or against any party.
    In order to ensure that a recipient has discretion to investigate 
and adjudicate allegations of sexual harassment even without the 
participation of a complainant, in situations where a grievance process 
is warranted, the final regulations leave that decision in the 
discretion of the recipient's Title IX Coordinator. However, deciding 
that allegations warrant an investigation does not necessarily show 
bias or prejudgment of the facts for or against the complainant or 
respondent. The

[[Page 30135]]

definition of conduct that could constitute sexual harassment, and the 
conditions necessitating a recipient's response to sexual harassment 
allegations, are sufficiently clear that a Title IX Coordinator may 
determine that a fair, impartial investigation is objectively warranted 
as part of a recipient's non-deliberately indifferent response, without 
prejudging whether alleged facts are true or not. Even where the Title 
IX Coordinator is also the investigator,\596\ the Title IX Coordinator 
must be trained to serve impartially,\597\ and the Title IX Coordinator 
does not lose impartiality solely due to signing a formal complaint on 
the recipient's behalf.
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    \596\ Section 106.45(b)(7) specifies that the decision-maker 
must be a different person from the Title IX Coordinator or 
investigator, but the final regulations do not preclude a Title IX 
Coordinator from also serving as the investigator.
    \597\ Section 106.45(b)(1)(iii).
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    Changes: We have revised the Sec.  106.30 definition of ``formal 
complaint'' to mean a document ``filed by a complainant or signed by 
the Title IX Coordinator'' and clarified that when a Title IX 
Coordinator signs a formal complaint, the Title IX Coordinator is not a 
complainant or otherwise a party during the grievance process, and the 
Title IX Coordinator must comply with these final regulations including 
the obligation in Sec.  106.45(b)(1)(iii) to be free from bias or 
conflict of interest. We have also revised the definition of 
``complainant'' in Sec.  106.30 to remove the phrase ``or on whose 
behalf the Title IX Coordinator has filed a formal complaint.''
Complexity of a Document Labeled ``Formal Complaint''
    Comments: Commenters argued that the document initiating a 
grievance process should be labeled something other than a ``formal 
complaint'' because calling it a formal complaint makes it sound as 
though the survivor is complaining, or whining, about having been 
assaulted.
    Commenters argued that requiring signed complaints is one aspect of 
the proposed rules that would make the Title IX campus system too much 
like the legal system, and survivors already feel deterred from 
pursuing justice through criminal and legal systems. Commenters argued 
that the Sec.  106.30 definition of formal complaint was so legalistic 
that lawyers would have to get involved in every Title IX matter.
    Commenters argued that students may think they have triggered a 
grievance procedure by reporting to the Title IX Coordinator only to 
find out that no investigation has begun because the student did not 
file a document meeting the requirements of a ``formal complaint.'' 
Commenters argued that requiring a complainant to sign a written 
document with specific language about ``requesting initiation of a 
grievance procedure'' would result in some complainants believing they 
had filed a formal complaint when the exact paperwork was not filled 
out or signed correctly. Commenters asked whether a recipient would be 
deliberately indifferent if the recipient failed to tell a complainant 
who intended to file a formal complaint that the document filed failed 
to meet the requirements in Sec.  106.30 and thus no grievance 
procedures had begun. Commenters requested clarification as to how a 
Title IX Coordinator should treat an ``informal complaint'' that did 
not meet the precise definition of a formal complaint. Commenters 
argued that the definition of ``formal complaint'' means that a 
recipient could dismiss a meritorious complaint, or refuse to 
investigate, solely for immaterial technical reasons, such as the 
document not being signed or failing to include specific language 
``requesting initiation'' of the grievance procedures. Commenters 
argued that the definition of ``formal complaint'' would provide an 
arbitrary bureaucratic loophole that would excuse recipients for their 
willful indifference when paperwork is not completed perfectly.
    Commenters argued that the Sec.  106.30 definition of ``formal 
complaint'' would make it difficult or impossible for some students to 
file a formal complaint. Commenters stated, for example, that young 
children may not have learned how to write. Commenters stated that, for 
example, individuals with certain disabilities may have difficulty 
communicating in writing. Commenters suggested that the definition be 
modified so that a formal complaint is ``signed (or affirmed via 
another effective communication modality)'' because otherwise, a 
student with a disability--especially with a communication disability 
or disorder--may be unable to file. Commenters suggested the definition 
be expanded to accommodate the needs of individuals with disabilities 
by accepting different communication modalities including oral, manual, 
AAC (augmentative and alternative communication) techniques, and 
assistive technologies.
    Discussion: The final regulations continue to use the phrase 
``formal complaint'' to describe the document that initiates a 
grievance process resolving sexual harassment allegations. The word 
``complaint'' is commonly used in proceedings designed to resolve 
disputed allegations, and the word is used neutrally to describe that 
the person has brought allegations or charges of some kind, not 
pejoratively to imply that a person is unjustifiably ``complaining'' or 
``whining.'' \598\
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    \598\ For example, OCR refers to a ``complainant'' as a person 
who files a ``complaint'' with OCR alleging a civil rights law 
violation. E.g., U.S. Dep't. of Education, Office for Civil Rights, 
How the Office for Civil Rights Handles Complaints (Nov. 2018), 
https://www2.ed.gov/about/offices/list/ocr/complaints-how.html.
---------------------------------------------------------------------------

    ``Formal complaint'' is a specific term used in these final 
regulations to describe a document that initiates a grievance process 
against a respondent alleging Title IX sexual harassment. A grievance 
process that is consistent, transparent, and fair is necessarily a 
formal process, and parties should be apprised that initiating a 
grievance process is a serious matter. This does not necessitate 
involvement of lawyers or convert a recipient's Title IX grievance 
process into a court proceeding. However, we agree with commenters that 
the way that a formal complaint was described in proposed Sec.  106.30 
\599\ was more restrictive than necessary and did not take into account 
the common use of electronic or digital transmissions. We have revised 
and simplified the definition of a ``formal complaint'' to mean ``a 
document filed by the complainant or signed by the Title IX Coordinator 
alleging sexual harassment against a respondent and requesting that the 
recipient investigate the allegation of sexual harassment.''
---------------------------------------------------------------------------

    \599\ Proposed Sec.  106.30 defined ``formal complaint'' as ``a 
document signed by a complainant or by the Title IX Coordinator 
alleging sexual harassment against a respondent and requesting 
initiation of the recipient's grievance procedures consistent with 
Sec.  106.45.''
---------------------------------------------------------------------------

    The Sec.  106.30 definition of a formal complaint describes the 
purpose of the document, not requirements for specific language that 
can be used as a bureaucratic loophole for a recipient to avoid 
initiating a grievance process. The purpose of the formal complaint is 
to clarify that the complainant (or Title IX Coordinator) believes that 
the recipient should investigate allegations of sexual harassment 
against a respondent. The Department does not assume that recipients 
will treat complainants attempting to file a formal complaint 
differently from students who attempt to file similar school paperwork; 
for example, when a form is missing a signature, recipients generally 
inquire with the student to correct the paperwork. Recipients are under 
an obligation under Sec.  106.44(a) to respond promptly in a way that 
is not clearly unreasonable in light of the known circumstances and 
this obligation

[[Page 30136]]

extends to the circumstances under which a recipient processes a formal 
complaint (or a document or communication that purports to be a formal 
complaint). Under the final regulations, recipients also must document 
the basis for the recipient's conclusion that the recipient's response 
was not deliberately indifferent; \600\ this provides an additional 
safeguard against a recipient intentionally treating imperfect 
paperwork as grounds for refusing to take action upon receipt of a 
document that purports to be a formal complaint.
---------------------------------------------------------------------------

    \600\ Section 106.45(b)(10)(ii).
---------------------------------------------------------------------------

    We appreciate commenters' concerns that some students may be 
incapable of signing a document (for example, young students who have 
not learned how to write, or students with certain disabilities). To 
address these concerns, we have revised the Sec.  106.30 definition of 
``formal complaint'' to describe a ``document signed by a complainant'' 
as ``a document or electronic submission (such as by electronic mail or 
through an online portal provided for this purpose by the recipient) 
that contains the complainant's physical or digital signature, or 
otherwise indicates that the complainant is the person filing the 
formal complaint.'' We have also added Sec.  106.6(g) recognizing the 
legal rights of parents and guardians to act on behalf of complainants, 
including with respect to filing a formal complaint of sexual 
harassment.
    Changes: We have revised the Sec.  106.30 definition of ``formal 
complaint'' to describe a document, filed by a complainant or signed by 
a Title IX Coordinator, alleging sexual harassment, against a 
respondent, and requesting that the recipient investigate the 
allegation of sexual harassment. We have also revised the Sec.  106.30 
definition of ``formal complaint'' to explain that the phrase 
``document filed by a complainant'' refers to a document or electronic 
submission (such as an email or through an online portal provided for 
this purpose by the recipient) that contains the complainant's physical 
or digital signature, or otherwise indicates that the complainant is 
the person filing the formal complaint.
Parents' and Guardians' Rights To File a Formal Complaint
    Comments: Commenters asserted that the proposed rules did not 
acknowledge that parents can file formal complaints on behalf of minor 
students and that the proposed rules therefore expect, for example, a 
third grade student to write down and sign a complaint document before 
getting help after experiencing sexual harassment. Commenters asserted 
that the formal complaint definition would leave minor students who may 
be incapable of writing and signing a document unprotected unless the 
Title IX Coordinator chooses to file a formal complaint on the 
student's behalf. Commenters argued that it is inappropriate to require 
a minor to sign any document because minors lack the legal capacity to 
bind themselves by signature. Commenters wondered what schools must do 
if a parent later disagrees with their child's decision to file a 
formal complaint or if the minor's parent is not consulted prior to 
filing. Other commenters wondered how a school must handle a situation 
where the parent, but not the child, wishes to file a formal complaint. 
Commenters wondered if the proposed rules would allow a Title IX 
Coordinator to help a complainant fill out the contents of a formal 
complaint.
    Discussion: To address commenters' concerns that the proposed rules 
did not contemplate the circumstances under which a parent might have 
the right to file a formal complaint on their child's behalf, we have 
added Sec.  106.6(g), which acknowledges the legal rights of parents 
and guardians to act on behalf of a complainant, respondent, or other 
individual with respect to exercise of rights under Title IX, including 
but not limited to the filing of a formal complaint. Thus, if a parent 
has the legal right to act on behalf of their child, the parent may act 
on the student's behalf by, for example, signing a formal complaint 
alleging that their child was sexually harassed and asking the 
recipient to investigate. The parent does not, in that circumstance, 
become the complainant (because ``complainant'' is defined as an 
individual who is alleged to be the victim of sexual harassment) \601\ 
but the final regulations clarify that a parent's (or guardian's) legal 
right to act on behalf of the complainant (or respondent) is not 
altered by these final regulations. The extent to which a recipient 
must abide by the wishes of a parent, especially in circumstances where 
the student is expressing a different wish from what the student's 
parent wants, depends on the scope of the parent's legal right to act 
on the student's behalf.
---------------------------------------------------------------------------

    \601\ Section 106.30 (defining ``complainant'' to mean an 
individual ``an individual who is alleged to be the victim of 
conduct that could constitute sexual harassment'') (emphasis added).
---------------------------------------------------------------------------

    Nothing in these final regulations precludes a Title IX Coordinator 
from assisting a complainant (or parent) from filling out a document 
intended to serve as a formal complaint; however, a Title IX 
Coordinator must take care not to offer such assistance to pressure the 
complainant (or parent) to file a formal complaint as opposed to simply 
assisting the complainant (or parent) administratively to carry out the 
complainant's (or parent's) desired intent to file a formal complaint. 
No person may intimidate, threaten, or coerce any person for the 
purpose of interfering with a person's rights under Title IX, which 
includes the right not to participate in a grievance process.\602\
---------------------------------------------------------------------------

    \602\ Section 106.71 (prohibiting retaliation and specifically 
protecting any individual's right to participate or to choose not to 
participate in a grievance process).
---------------------------------------------------------------------------

    Changes: We have added Sec.  106.6(g) to the final regulations, 
acknowledging the legal rights of parents or guardians to act on behalf 
of a complainant, respondent, or other individual. We have added Sec.  
106.71 prohibiting retaliation and specifically protecting any 
individual's right to participate, or not participate, in a grievance 
process.
Methods of Reporting and Methods of Filing a Formal Complaint
    Comments: Some commenters believed that the proposed rules would 
require students to report in person to a Title IX Coordinator (which, 
commenters asserted, is challenging for many students including those 
in schools that have satellite campuses and a single Title IX 
Coordinator located on a different campus). Commenters argued that a 
student who goes through the inconvenience of locating the Title IX 
Coordinator to make an in-person report, and then later decides to 
pursue a formal process, would need to once again go meet the Title IX 
Coordinator in-person to file a formal complaint. These commenters 
argued that the narrow, formal definition of ``formal complaint'' 
proposed in Sec.  106.30 would impose unnecessary barriers for 
complainants and result in fewer formal complaints being filed. 
Commenters argued that requiring complainants to file formal complaints 
only with the Title IX Coordinator--who may be a school official with 
whom the complainant has no relationship--will make survivors less 
comfortable with the reporting process, when already only about ten 
percent of campus sexual assaults are reported.\603\
---------------------------------------------------------------------------

    \603\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, National Institute of Justice, Research Report: 
The Sexual Victimization of College Women (2000).
---------------------------------------------------------------------------

    Commenters argued that a formal complaint should be allowed to be 
filed by telephone, email, or in-person, at the complainant's 
discretion. Commenters wondered whether Title IX Coordinators

[[Page 30137]]

have the discretion to help a complainant fill out a formal complaint; 
whether a Title IX Coordinator could write out a complainant's verbal 
report and have the complainant sign the document; and whether the 
complainant's signature could be an electronic signature. Commenters 
argued that without clarifying that the complainant may sign 
electronically, the proposed rules would make it impossible for 
complainants who are not physically present on campus (for example, due 
to studying abroad, or being enrolled in an online course) to file 
formal complaints. Other commenters expressed concern that electronic 
reporting systems would not be allowed under the proposed regulations. 
Commenters stated that many recipients (both elementary and secondary 
schools, and postsecondary institutions) use exclusively online, 
electronic submission systems; commenters suggested that Sec.  106.30 
should specify that a formal complaint may be ``submitted'' or 
``filed'' (but not ``signed'') to clarify that electronic submission 
systems can be used for the Title IX Coordinator to receive a formal 
complaint.
    Discussion: Neither the proposed rules, nor the final regulations, 
required students to report in person to a Title IX Coordinator. 
However, to address commenters' concerns in this regard and to clarify 
that reporting to a Title IX Coordinator, and filing a formal complaint 
with the Title IX Coordinator, should be as accessible as possible for 
complainants, we have revised the Sec.  106.30 definition of ``formal 
complaint'' to explain that a formal complaint may be filed with the 
Title IX Coordinator in person, by mail, or by electronic mail by using 
the contact information required to be listed for the Title IX 
Coordinator under Sec.  106.8(a), and by any additional method 
designated by the recipient. A formal complaint cannot be filed by 
telephone, because a formal complaint consists of a written document 
(or electronic submission, such as an email or use of an online portal 
provided by the recipient for the purpose of accepting formal 
complaints); however, ``any additional method designated by the 
recipient'' may include an online submission system, and the final 
regulations now expressly reference the option for recipients to offer 
online portals for submission of formal complaints. The Department has 
also revised Sec.  106.8(b) to specify that the contact information 
required to be listed for the Title IX Coordinator under Sec.  106.8(a) 
must be prominently displayed on the recipient's website (if the 
recipient has a website) and in any of the recipient's handbooks or 
catalogs. As discussed above, neither the proposed rules, nor the final 
regulations, restrict the form in which notice (e.g., a report of 
alleged sexual harassment) is given to the Title IX Coordinator, an 
official with authority to institute corrective measures, or an 
elementary or secondary school employee. Such notice may be given to 
the Title IX Coordinator via the same contact information listed for 
the Title IX Coordinator in Sec.  106.8(a) (including in person or by 
mail at the Title IX Coordinator's office address, by telephone, or by 
email), or by other means of communicating with the Title IX 
Coordinator.\604\ The final regulations thus ensure that complainants 
have multiple clear, accessible methods for reporting (e.g., in person, 
telephone, mail, electronic mail) and multiple methods for filing 
formal complaints (e.g., in person, mail, electronic mail, any online 
portal provided by the recipient to allow electronic submissions of 
formal complaints), to reduce the inconvenience of ``locating'' the 
Title IX Coordinator in order to report or to file a formal 
complaint.\605\
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    \604\ Section 106.8(a) (expressly stating that any person may 
report sexual harassment by using any of the listed contact 
information for the Title IX Coordinator or by any other means that 
results in the Title IX Coordinator receiving the person's verbal or 
written report, and such a report may be made ``at any time 
(including during non-business hours) by using the telephone number 
or electronic mail address, or by mail to the office address, listed 
for the Title IX Coordinator.'').
    \605\ We also reiterate that any person may report sexual 
harassment triggering the recipient's response obligations, although 
only a complainant (or Title IX Coordinator) may initiate a 
grievance process by filing or signing a formal complaint. We have 
revised Sec.  106.8(a) to emphasize the fact that any person may 
report sexual harassment, whether or not the person reporting is the 
person alleged to be the victim of conduct that could constitute 
sexual harassment, and we have also revised Sec.  106.30, defining 
``actual knowledge,'' to state that ``notice'' constituting actual 
knowledge includes, but is not limited to, a report to the Title IX 
Coordinator as described in Sec.  106.8(a). We have further revised 
Sec.  106.8 to require recipients to notify all students, employees, 
parents and guardians of elementary and secondary school students, 
and others of the Title IX Coordinator's contact information, 
including prominently displaying that contact information on the 
recipient's website. These provisions ensure that all persons (not 
only complainants themselves) have a clear, accessible method of 
reporting sexual harassment.
---------------------------------------------------------------------------

    We understand commenters' concerns that a student may not have a 
preexisting relationship with a Title IX Coordinator; however, we 
reiterate that filing a formal complaint is not necessary in order to 
report and receive supportive measures. The revisions to Sec.  106.30 
defining ``formal complaint'' give complainants the options of filing a 
formal complaint in person, by mail, by email, and ``any additional 
method designated by the recipient'' so that the recipient has 
discretion to designate other methods for a formal complaint to be 
filed; further, a ``document filed by a complainant'' is stated to mean 
a mean a document or electronic submission (such as by electronic mail 
or through an online portal provided for this purpose by the recipient) 
that contains the complainant's physical or digital signature or 
otherwise indicates that the complainant is the person filing the 
formal complaint. The final regulations therefore authorize a recipient 
to utilize electronic submission systems, both for reporting and for 
filing formal complaints. The final regulations do not preclude a Title 
IX Coordinator from helping a complainant fill out a formal complaint, 
so long as what the complainant files is a document or electronic 
submission that contains the complainant's physical or digital 
signature, or otherwise indicates that the complainant is the person 
filing the formal complaint.
    Changes: We have revised the Sec.  106.30 definition of ``formal 
complaint'' to specify that a formal complaint may be filed with the 
Title IX Coordinator in person, by mail, or by electronic mail, by 
using the contact information required to be listed for the Title IX 
Coordinator under Sec.  106.8(a), and by any additional method 
designated by the recipient. We have further revised this provision to 
state that ``document filed by a complainant'' means a document or 
electronic submission (such as by electronic mail or through an online 
portal provided for this purpose by the recipient) that contains the 
complainant's digital or physical signature, or otherwise indicates 
that the complainant is the person filing the formal complaint.
Miscellaneous Concerns About the Formal Complaint Definition
    Comments: Commenters wondered whether a complainant can file a 
formal complaint after having graduated. Commenters wondered whether a 
formal complaint could be filed against an unknown or unidentified 
respondent; commenters opined that the formal grievance procedures in 
Sec.  106.45 seemed ``elaborate'' for circumstances where the 
perpetrator was not identified and thus there would be no possibility 
of punishment through a grievance proceeding. Commenters suggested that 
complainants should be allowed to make a formal complaint about 
systemic culture of harassment on a campus, not only against an 
individual respondent.

[[Page 30138]]

    Discussion: The Department appreciates commenters' questions 
regarding whether a complainant may file a formal complaint after the 
complainant has graduated. The definition of ``complainant'' is any 
individual alleged to be the victim of conduct that could constitute 
sexual harassment; there is no requirement that the complainant must be 
a student, employee, or other designated relationship with the 
recipient in order to be treated as a ``complainant'' entitled to a 
prompt, non-deliberately indifferent response from the recipient. To 
clarify the circumstances under which a complainant may file a formal 
complaint (thereby requiring the recipient to investigate sexual 
harassment allegations) we have revised the Sec.  106.30 definition of 
``formal complaint'' to state that a complainant must be participating 
in, or attempting to participate in, the recipient's education program 
or activity at the time of filing a formal complaint. A complainant who 
has graduated may still be ``attempting to participate'' in the 
recipient's education program or activity; for example, where the 
complainant has graduated from one program but intends to apply to a 
different program, or where the graduated complainant intends to remain 
involved with a recipient's alumni programs and activities. Similarly, 
a complainant who is on a leave of absence may be ``participating or 
attempting to participate'' in the recipient's education program or 
activity; for example, such a complainant may still be enrolled as a 
student even while on leave of absence, or may intend to re-apply after 
a leave of absence and thus is still ``attempting to participate'' even 
while on a leave of absence. By way of further example, a complainant 
who has left school because of sexual harassment, but expresses a 
desire to re-enroll if the recipient appropriately responds to the 
sexual harassment, is ``attempting to participate'' in the recipient's 
education program or activity. Because a complainant is entitled under 
these final regulations to a prompt response that must include offering 
supportive measures, the Department's intention is that recipients will 
promptly implement individualized services designed to restore or 
preserve the complainant's equal access to education,\606\ regardless 
of whether a complainant files a formal complaint, so that if a 
complainant later decides to file a formal complaint, the complainant 
has already been receiving supportive measures that help a complainant 
maintain educational access.
---------------------------------------------------------------------------

    \606\ Section 106.44(a); Sec.  106.30 (defining ``supportive 
measures'').
---------------------------------------------------------------------------

    The Sec.  106.30 definition of ``formal complaint'' states that a 
formal complaint is a document that alleges sexual harassment ``against 
a respondent,'' but the final regulations do not require a complainant 
to identify the respondent in a formal complaint. However, Sec.  
106.44(a) prohibits a recipient from imposing disciplinary sanctions on 
a respondent without first following a grievance process that complies 
with Sec.  106.45.\607\ Section 106.45(b)(2) requires the recipient to 
send the parties written notice of allegations including the identities 
of the parties, if known, ``upon receipt of a formal complaint.'' Thus, 
a recipient in receipt of a complainant's formal complaint, where the 
complainant has refused to identify the respondent, will be unable to 
comply with the Sec.  106.45 grievance process and will not be 
permitted to impose disciplinary sanctions against a respondent. In 
such a circumstance, the recipient still must promptly respond by 
offering supportive measures to the complainant, pursuant to Sec. Sec.  
106.44(a) and 106.44(b)(1).
---------------------------------------------------------------------------

    \607\ See also Sec.  106.45(b)(1)(i).
---------------------------------------------------------------------------

    Nothing in the final regulations precludes a recipient from 
responding to a complainant's request to investigate sexual harassment 
that allegedly has created a hostile environment on campus; however, a 
recipient cannot impose disciplinary sanctions against a respondent 
accused of sexual harassment unless the recipient first follows a 
grievance process that complies with Sec.  106.45. A complaint filed by 
a complainant would not constitute a formal complaint triggering a 
recipient's obligation to investigate unless it is a document alleging 
sexual harassment against a respondent, and the recipient would not be 
able to impose disciplinary sanctions against a respondent unless the 
respondent's identity is known so that the recipient follows a 
grievance process that complies with Sec.  106.45. A recipient must 
investigate a complainant's formal complaint even if the complainant 
does not know the respondent's identity, because an investigation might 
reveal the respondent's identity, at which time the recipient would be 
obligated to send both parties written notice of the allegations under 
Sec.  106.45(b)(2) and fulfill all other requirements of the Sec.  
106.45 grievance process.
    Changes: We have revised Sec.  106.30 defining ``formal complaint'' 
to provide that at the time of filing a formal complaint, a complainant 
must be participating in or attempting to participate in the education 
program or activity of the recipient with which the formal complaint is 
filed.

Postsecondary Institution

    Comments: Some commenters assumed that the Department's use of the 
term ``institution of higher education'' in the NPRM means an 
institution as defined in the Department's regulations implementing 
Title IV of the Higher Education Act of 1965, as amended, (``HEA'') and 
thus concluded that the Department must undergo negotiated rulemaking 
in order to promulgate these final regulations.
    Discussion: The Department's use of the term ``institution of 
higher education'' in the NPRM did not refer to ``institution of higher 
education'' as defined in the Department's regulations implementing 
Title IV of the HEA. As explained in more detail elsewhere in this 
preamble including the ``Executive Orders and Other Requirements'' 
subsection of the ``Miscellaneous'' section of this preamble, the 
Department is promulgating these regulations under Title IX and not 
under the HEA. Accordingly, the Department is not subject to the 
requirement of negotiated rulemaking under Title IV of the HEA.
    To make it exceedingly clear that these final regulations do not 
refer to ``institutions of higher education'' in the context of the 
HEA, the Department revised the final regulations to refer to 
``postsecondary institutions'' instead of ``institutions of higher 
education.'' The Department derives its definition of ``postsecondary 
institution'' from the existing definitions in Part 106 of Title 34 of 
the Code of Federal Regulations. The definition of ``educational 
institution'' in Sec.  106.2(k) is a definition that applies to Part 
106 of Title 34 of the Code of Federal Regulations. Section 106.2(k) 
defines an educational institution in relevant part as an applicant or 
recipient of the type defined by paragraph (l), (m), (n), or (o) of 
Sec.  106.2. Paragraphs (l), (m), (n), and (o) of Sec.  106.2 define an 
institution of graduate higher education, an institution of 
undergraduate higher education, an institution of professional 
education, and an institution of vocational education, respectively. 
Accordingly, the Department defines a postsecondary institution as an 
institution of higher education as defined in Sec.  106.2(l), an 
institution of undergraduate higher education as defined in Sec.  
106.2(m), an institution of professional education as defined in Sec.  
106.2(n), and an institution of vocational education as defined in

[[Page 30139]]

Sec.  106.2(o). In this manner, the Department defines the subset of 
educational institutions as defined in Sec.  106.2(k) that constitute 
postsecondary institutions as defined in Sec.  106.30. The remainder of 
the entities described as educational institutions in Sec.  106.2(k) 
constitute elementary and secondary schools as explained in the section 
above on the definition of ``elementary and secondary school.'' The 
definition of ``postsecondary institution'' applies only to Sec. Sec.  
106.44 and 106.45 of these final regulations.
    Changes: The Department revises Sec.  106.30 to define a 
``postsecondary institution'' as used in Sec. Sec.  106.44 and 106.45 
to mean an institution of higher education as defined in Sec.  
106.2(l), an institution of undergraduate higher education as defined 
in Sec.  106.2(m), an institution of professional education as defined 
in Sec.  106.2(n), and an institution of vocational education as 
defined in Sec.  106.2(o), and replaces ``institutions of higher 
education'' with ``postsecondary institutions'' throughout the final 
regulations.

Respondent

    Comments: At least one commenter appreciated that the Department 
clarified in its proposed definition that only a person in their 
individual capacity could be subjected to a Title IX investigation 
rather than an entire organization. Several commenters suggested that 
the Department alter the language from ``respondent'' to ``responding 
party.'' Other commenters recommended adding the word ``accused'' 
instead of the word ``reported'' in an effort to eliminate bias from 
the proceedings. One commenter asserted that the word ``reported'' 
implies that only a mere accusation exists and the commenter argued 
that a mere accusation should not make a person a respondent. One 
commenter requested that the Department clarify that a respondent need 
not be a student, but may be a faculty or staff member. Another 
commenter asked for clarification regarding what constitutes a person 
``reported to be a perpetrator'' since schools' obligations to the 
parties are only triggered when someone actually becomes a respondent 
or complainant.
    Discussion: We acknowledge commenters' concerns with the language 
in the Sec.  106.30 definition of ``respondent.'' However, the 
Department declines to alter the term ``respondent'' to ``responding 
party'' because the two terms do not vary in a significant way and the 
term ``respondent'' is just as neutral as the proposed modification, 
without introducing potential confusion from use of ``responding 
party'' when throughout the final regulations the word ``party'' is 
used to refer to either a complainant or a respondent. The Department 
also disagrees with the specific concern that using the language 
``reported'' as opposed to ``accused'' to define the respondent, has 
the potential to bias the proceedings. The Department believes that the 
term ``reported'' carries a less negative connotation than the term 
``accused'' without disadvantaging the complainant. We also acknowledge 
the suggestion that the final regulations clarify that a respondent can 
be a student, a faculty member, or other employee of the recipient, and 
the suggestion that the Department clarify whether a formal complaint 
is required for a party to become a ``respondent.'' The Department 
believes that Sec.  106.30 contains sufficiently clear, broad language 
indicating that any ``individual'' can be a respondent, whether such 
individual is a student, faculty member, another employee of the 
recipient, or other person with or without any affiliation with the 
recipient. The Department intentionally does not limit a ``respondent'' 
to include only individuals against whom a formal complaint has been 
filed, because even where a grievance process is not initiated, the 
recipient still has general response obligations under Sec.  106.44(a) 
that may affect the person alleged to have committed sexual harassment 
(i.e., the respondent). While the terms ``complainant'' and 
``respondent'' are commonly used when a formal proceeding is pending, 
in an effort to eliminate confusion and to promote consistency 
throughout the final regulations, the Department uses the terms 
``complainant'' and ``respondent'' to identify the parties in 
situations where a formal complaint has not been filed as well as where 
a grievance process is pending.
    Changes: None.

Sexual Harassment

Overall Support and Opposition for the Sec.  106.30 Sexual Harassment 
Definition
    Comments: Many commenters expressed support for the Sec.  106.30 
definition of sexual harassment. One commenter commended the 
Department's Sec.  106.30 definition because it makes clear that Title 
IX governs misconduct by colleges, not students, and addresses the real 
problem of sexual harassment while acknowledging that not all forms of 
unwanted sexual behavior--inappropriate and problematic as they may 
be--rise to the level of a Title IX violation on the part of colleges 
and universities. One commenter expressed strong support for shifting 
Title IX regulations to provide a clear, rational, understandable 
definition of what, precisely, constitutes sexual harassment and 
assault as opposed to current vague guidelines. One commenter stated 
that although some misinformed commenters and advocates have claimed 
the proposed rules would not require a school to respond to allegations 
of rape, the third prong of the Sec.  106.30 definition clearly 
prohibits criminal sexual conduct itemized in incorporated regulation 
34 CFR 668.46(a) including a single instance of rape. This commenter 
further expressed support for the second prong of the definition, which 
is limited to unwelcome conduct that is ``severe, pervasive, and 
objectively offensive,'' which, the commenter stated, has proven to be 
the most controversial prong yet has three advantages: (1) It provides 
greater clarity and consistency for colleges and universities; (2) it 
minimizes the risk that federal definitions of sexual harassment will 
violate academic freedom and the free speech rights of members of the 
campus community; and (3) it recognizes that the Department's job is 
not to write new law. This commenter argued that if stakeholders desire 
a more expansive definition of sexual harassment, they should direct 
their concerns to Congress, and stated that the proposed rules clearly 
leave schools with the discretion to use their own, broader definitions 
of misconduct that do not fall within the school's Title IX 
obligations.
    Several commenters supported the Sec.  106.30 definition because 
they asserted that it would protect free speech and academic freedom 
while still requiring recipients to respond to sexual harassment that 
constitutes sex discrimination. One commenter argued that Title IX 
grants the Department authority to impose procedural requirements on 
schools to effectuate the purpose of Title IX but not to redefine what 
discrimination is, and when it comes to peer harassment particularly, 
application of broad definitions modeled on Title VII (which, the 
commenter asserted, does not require denial of equal access or 
severity), rather than Title IX's narrower definition, has led to 
numerous infringements on student and faculty speech and expression. 
This commenter stated that based on the Department's experience 
observing how a broader definition has been applied, the Department 
reasonably may wish to adopt a narrower, clearer definition of

[[Page 30140]]

harassment to avoid free speech problems, citing a Supreme Court case 
for the proposition that courts will not allow agencies to adopt 
regulations broadly interpreting a statute in a manner that raises 
potential constitutional problems.\608\ This commenter argued that the 
Department cannot ban all unwelcome verbal conduct (i.e., speech), or 
even seriously offensive speech, and that correcting an overly broad 
definition of harassment is an appropriate exercise of an agency's 
authority. The commenter argued that a broad definition may result in 
an agency finding liability that a court later reverses or subjecting a 
recipient to a lengthy, speech-chilling investigation that courts later 
view as a free speech violation; \609\ thus, an agency needs to define 
harassment narrowly to avoid free speech problems ex ante rather than 
try to rely on ad-hoc First Amendment exceptions to a broad definition.
---------------------------------------------------------------------------

    \608\ Commenters cited: Edward J. DeBartolo Corp. v. Fla. Gulf 
Coast Bldg. and Const. Trades Council, 485 U.S. 568, 574-575 (1988) 
(rejecting agency's broad interpretation of law because it would 
raise possible free speech problems); NAACP v. Button, 371 U.S. 415, 
438 (1963) (stating broad prophylactic rules in the area of free 
expression are forbidden because the First Amendment demands 
precision of regulation).
    \609\ Commenters cited: Rodriguez v. Maricopa Cmty. Coll. Dist., 
605 F.3d 703 (9th Cir 2010); White v. Lee, 227 F.3d 1214 (9th Cir. 
2000); Lyle v. Warner Bros., 132 P.3d 211, 300 (Cal. 2006) (Chin, 
J., concurring); Meltebeke v. Bureau of Labor & Indus., 903 P.2d 351 
(Or. 1995).
---------------------------------------------------------------------------

    Several commenters supported the Sec.  106.30 definition, arguing 
that the proposed rules correctly defined the harassment a college must 
respond to as severe, pervasive conduct that denies equal access to an 
education--not conduct or speech that is merely ``unwelcome,'' as other 
commenters would like. One commenter argued that students and faculty 
must be able to discuss sexual issues, even if that offends some people 
who hear it, and the fact that speech is deeply offensive to a listener 
is not a sufficient reason to suppress it.\610\ One commenter asserted 
that, contrary to the suggestion of other commenters who have argued 
that individual instances of unwelcome speech should be suppressed to 
prevent any possibility of a hostile environment later developing, such 
a prophylactic rule to prevent harassment would be a sweeping rule, 
grossly overbroad in violation of the First Amendment.\611\ The 
commenter further argued that this First Amendment rule fully applies 
to colleges because the Supreme Court rejected the idea that ``First 
Amendment protections should apply with less force on college campuses 
than in the community at large. Quite to the contrary, `the vigilant 
protection of constitutional freedoms is nowhere more vital than in the 
community of American schools.' '' \612\ Thus, the commenter asserted, 
even vulgar or indecent college speech is protected.\613\ This 
commenter argued that because the First Amendment does not permit broad 
prophylactic rules against harassing speech, for a college to punish 
speech that is not severe and pervasive is a violation of the First 
Amendment.\614\ The commenter further argued that even if speech is 
severe or pervasive, and thus could otherwise violate Federal 
employment laws like Title VII, faculty speech that offends co-workers 
may be protected under academic freedom when it does not target a 
specific employee based on race or gender \615\ and the Supreme Court 
intentionally has adopted a narrower definition of harassment under 
Title IX than under Title VII, requiring that conduct be both severe 
and pervasive enough to deny equal educational access, as opposed to 
merely fostering a hostile environment through severe or pervasive 
conduct.\616\ By contrast to the second prong of the Sec.  106.30 
definition, the commenter argued that the Department does have 
authority to require schools to process claims of groping-based 
assaults, even if the groping did not by itself deny educational 
access, as a prophylactic rule to prevent such conduct from recurring 
and spreading, and potentially causing more harm to the victim that 
culminates in denial of educational access; according to this 
commenter, the difference is that because ignoring even a misdemeanor 
sexual assault creates a high risk that such conduct will persist or 
spread to the point of denying access and prophylactic rules are 
constitutionally acceptable when applied to conduct (such as sexual 
assault), not speech.
---------------------------------------------------------------------------

    \610\ Commenters cited: Snyder v. Phelps, 562 U.S. 443 (2011).
    \611\ Commenters cited: NAACP v. Button, 371 U.S. 415, 438 
(1963).
    \612\ Commenters cited: Healy v. James, 408 U.S. 169, 180 
(1972).
    \613\ Commenters cited: Papish v. Bd. of Curators, 410 U.S. 667 
(1973).
    \614\ Commenters cited: DeJohn v. Temple Univ., 537 F.3d 301 (3d 
Cir. 2008).
    \615\ Commenters cited: Rodriguez v. Maricopa Cmty. Coll. Dist., 
605 F.3d 703 (9th Cir. 2010).
    \616\ Commenters cited: Davis v. Monroe Dep't. of Educ., 526 
U.S. 629, 633, 650, 651, 652, 654 (1999) (noting that the Court 
repeated the severe ``and'' pervasive formulation five times).
---------------------------------------------------------------------------

    One commenter asserted that we live in a hypersensitive age in 
which disagreeable views are considered an assault on students' 
emotional safety or health, even though such disagreement is protected 
by the First Amendment.\617\ This commenter agreed with the proposed 
rules' requirement that speech must interfere with educational 
``access'' and not merely create a hostile environment because from a 
First Amendment perspective, under schools' hostile learning 
environment harassment codes, students and campus newspapers have been 
charged with racial or sexual harassment for expressing commonplace 
views about racial or sexual subjects, such as criticizing feminism, 
affirmative action, sexual harassment regulations, homosexuality, gay 
marriage, or transgender rights, or discussing the alleged racism of 
the criminal justice system.\618\ The commenter argued that to prevent 
speech on campus about racial or sexual subjects from being 
unnecessarily chilled or suppressed, a more limited definition of 
sexual harassment is necessary than the expansive hostile environment 
concept.\619\ Another commenter stated that courts have struck down 
campus racial and gender harassment codes that banned speech that 
created a hostile environment, but did not cause more tangible harm to 
students.\620\ This commenter argued that if a regulation or campus 
code bans hostile environments created from verbal conduct, without 
requiring more tangible harm, people can and will file complaints, and 
bring lawsuits, over constitutionally protected speech that offended 
them and that including a vague First Amendment exception in such codes 
or regulations is not enough to protect free speech because when 
liability or punishment is imposed, the decision-maker doing so will 
just claim that the penalty is not based on the content of the speech 
and that any First Amendment exception does not apply. The commenter 
argued that to protect free speech, the very definition of harassment 
must include a

[[Page 30141]]

requirement that verbal conduct deny access to an education.
---------------------------------------------------------------------------

    \617\ Commenters cited: Jonathan Haidt & Greg Lukianoff, The 
Coddling of the American Mind (Penguin Press 2018).
    \618\ Commenters cited: Jerome Woehrle, Free Speech Shrinks Due 
to Bans on Hostile or Offensive Speech, Liberty Unyielding (Nov. 23, 
2017), https://libertyunyielding.com/2017/11/23/free-speech-shrinks-due-bans-hostile-offensive-speech/ (citing various sources including 
books and articles).
    \619\ Commenters cited: Rodriguez v. Maricopa Cmty. Coll. Dist., 
605 F.3d 703 (9th Cir. 2010) (dismissing racial harassment lawsuit 
over instructor's racially insensitive emails about immigration 
based on the First Amendment, even though the emails were offensive 
to Hispanic employees).
    \620\ Commenters cited: Dambrot v. Cent. Mich. Univ., 55 F.3d 
1177 (6th Cir. 1995); UWM Post v. Bd. of Regents of Univ. of Wis. 
Sys., 774 F. Supp. 1163 (E.D. Wis. 1991).
---------------------------------------------------------------------------

    The commenter argued that the Sec.  106.30 definition of harassment 
properly requires that verbal conduct be severe, not just pervasive or 
persistent as prior Department guidance suggested. The commenter 
asserted that just because offensive ideas are pervasive or persistent 
on a college campus does not strip the ideas of First Amendment 
protection and thus, only severe verbal conduct, such as fighting 
words, threats, and intentional infliction of severe emotional 
distress, should be prohibited. One commenter similarly argued that the 
same result is appropriate in the elementary and secondary school 
context, arguing that the Supreme Court's Davis decision expressly 
required that conduct be severe and pervasive for Title IX liability, 
unlike workplace conduct under Title VII, and that the Court did so 
precisely because of the inevitability that elementary and secondary 
school students frequently behave in ways that would be unacceptable 
among adult workers.\621\ The commenter surmised that the Davis Court 
also likely did so to address free speech concerns raised by amici, who 
discussed serious problems with using the broader workplace severe or 
pervasive standard for college students' speech. According to this 
commenter, college students have broader free speech rights than 
employees do, and the harassment definition as to their verbal conduct 
thus needs to be narrower under Title IX than under Title VII. 
Similarly, another commenter asserted that colleges are not like 
workplaces where it may be natural to ban offensive speech to maximize 
efficiency or prevent a hostile or offensive environment; rather, 
colleges exist for the purpose of exchanging ideas and pursuing the 
truth even if words and ideas offend listeners.\622\ Thus, the 
commenter asserted, schools should not be required to punish speakers 
unless their speech interferes with access to an education; according 
to this commenter, discussion of unpleasant sexual realities and 
unpopular viewpoints should not be silenced.
---------------------------------------------------------------------------

    \621\ Commenters cited: Davis, 526 U.S. 629, 652 (1999).
    \622\ Commenters cited: Dambrot v. Cent. Mich. Univ., 55 F.3d 
1177 (6th Cir. 1995) (holding hostile environment harassment code 
was unconstitutionally vague and overbroad and was not a valid 
prohibition of fighting words).
---------------------------------------------------------------------------

    One commenter asserted that the Davis standard, incorporated into 
the second prong of the Sec.  106.30 definition, allows schools to 
prohibit sexual violence, to discipline those who commit it, and to 
remedy its effects and also allows schools to punish students when they 
determine that a student has engaged in expression (without 
accompanying physical or other conduct) that is discriminatory based on 
sex and that interferes with a student's access to education because of 
its severity, pervasiveness, and objective offensiveness.\623\ This 
commenter stated it is precisely because expression, and not just 
physical conduct, may be restricted or punished as harassment that the 
Supreme Court carefully crafted the Davis standard for Title IX, 
reiterating it multiple times in its majority opinion and 
distinguishing it from the employment standard applied under Title VII.
---------------------------------------------------------------------------

    \623\ Commenters further argued that there is no doubt that 
First Amendment interests are implicated when expression on public 
college campuses is regulated; as the Supreme Court has established, 
``If there is a bedrock principle underlying the First Amendment, it 
is that the government may not prohibit the expression of an idea 
simply because society finds the idea itself offensive or 
disagreeable.'' Texas v. Johnson, 491 U.S. 397, 414 (1989). The 
Supreme Court has also rejected the idea that ``because of the 
acknowledged need for order, First Amendment protections should 
apply with less force on college campuses than in the community at 
large. Quite to the contrary, `the vigilant protection of 
constitutional freedoms is nowhere more vital than in the community 
of American schools.' '' Healy v. James, 408 U.S. 169, 180 (1972) 
(internal citations omitted). Further, these protections apply even 
to highly offensive speech on campus: ``[T]he mere dissemination of 
ideas--no matter how offensive to good taste--on a state university 
campus may not be shut off in the name alone of `conventions of 
decency.' '' Papish v. Bd. of Curators, 410 U.S. 667, 670 (1973) 
(internal citations omitted).
---------------------------------------------------------------------------

    One commenter asserted that, to the extent the proposed regulations 
appear to be a departure from a legally sound approach, as some critics 
have alleged, that is only because the Departments of Education and 
Justice have, in recent years, insisted upon an unconstitutionally 
broad definition of sexual harassment unsupported by statutes, 
regulations, or case law while the new proposed definition is in fact a 
welcome return to consistency with the law itself. This commenter 
further noted that while Davis sets forth constitutional guidelines for 
what may and may not be punished under Title IX, it does not preclude 
recipients from addressing conduct that does not meet that standard, in 
non-punitive ways including for example providing the complainant with 
supportive measures, responding to the conduct in question with 
institutional speech, or offering programming designed to foster a 
welcoming campus climate more generally.
    One commenter supported the Sec.  106.30 definition based on belief 
that the Federal government should not make a solution to problems of 
interpersonal relations (and sometimes intimate relations) a 
precondition to the receipt of Federal funds because schools do not 
hold a ``magic bullet'' to prevent all student relationships from going 
bad, and university resources should not be diverted to respond to 
civil rights investigations or litigation based on just a student's 
post-hoc, subjective feelings of being harassed or disrespected. 
Another commenter believed the new definition would stop schools from 
acting as the ``sex police.'' This commenter argued that schools have 
interpreted the current, extremely broad, definition to include asking 
too many times for sex; nine second stares; fist bumps; and wake up 
kisses, effectively requiring schools to police the sex lives of 
students. One commenter supported the Sec.  106.30 definition asserting 
that harassment definitions should not assume weaknesses or 
vulnerabilities that the genders have spent decades trying to erase. 
Other commenters supported the definition believing it would benefit 
those truly sexually harassed or assaulted and put a stop to false 
accusations after regretful hookups. One commenter asserted that a 
clear definition of sexual harassment actionable under Title IX is 
crucial to ensure that no woman feels ignored or mistreated by a 
particular investigator or administrator and thus making the definition 
consistent with Supreme Court precedent is an important advancement for 
women.
    Discussion: The Department appreciates commenters' support for the 
Sec.  106.30 definition of sexual harassment. The Department agrees 
that the final regulations utilize a sexual harassment definition 
appropriate for furthering Title IX's non-discrimination mandate while 
acknowledging the unique importance of First Amendment freedoms in the 
educational context. As described in the ``Adoption and Adaption of the 
Supreme Court's Framework to Address Sexual Harassment'' section of 
this preamble, the NPRM proposed a three-pronged definition of sexual 
harassment recognizing quid pro quo harassment by any recipient 
employee (first prong), unwelcome conduct on the basis of sex that is 
so severe, pervasive, and objectively offensive that it effectively 
denies a person equal access to education (second prong), and sexual 
assault (third prong).
    Overall, as revised in these final regulations, this three-part 
definition in Sec.  106.30 adopts the Supreme Court's formulation of 
actionable sexual harassment, yet adapts the formulation

[[Page 30142]]

for administrative enforcement in furtherance of Title IX's broad non-
discrimination mandate by adding other categories (quid pro quo; sexual 
assault and three other Clery Act/VAWA offenses \624\) that, unlike the 
Davis formulation, do not require elements of severity, pervasiveness, 
or objective offensiveness. The Department assumes that a victim of 
quid pro quo sexual harassment or the sex offenses included in the 
Clery Act, as amended by VAWA, has been effectively denied equal access 
to education. The Sec.  106.30 definition captures categories of 
misconduct likely to impede educational access while avoiding a chill 
on free speech and academic freedom. The Department agrees with 
commenters noting that the Department has a responsibility to enforce 
Title IX while not interfering with principles of free speech and 
academic freedom, which apply in elementary and secondary schools as 
well as postsecondary institutions in a manner that differs from the 
workplace context where Title VII prohibits sex discrimination.
---------------------------------------------------------------------------

    \624\ These final regulations expressly include four Clery Act/
VAWA offenses as sexual harassment as defined in Sec.  106.30: 
Sexual assault, dating violence, domestic violence, and stalking.
---------------------------------------------------------------------------

    The Department agrees that the Supreme Court carefully and 
deliberately crafted the Davis standard for when a recipient must 
respond to sexual harassment in recognition that school environments 
are unlike workplace environments. Precisely because expressive speech, 
and not just physical conduct, may be restricted or punished as 
harassment, it is important to define actionable sexual harassment 
under Title IX in a manner consistent with respect for First Amendment 
rights, and principles of free speech and academic freedom, in 
education programs and activities. Likewise, the Department agrees with 
the commenter who noted the distinction between a standard for when 
speech is actionable versus a standard for when physical conduct is 
actionable; the former requires a narrowly tailored formulation that 
refrains from effectively applying, or encouraging recipients to apply, 
prior restraints on speech and expression, while the latter raises no 
constitutional concerns with respect to application of broader 
prohibitions. Thus, quid pro quo harassment \625\ and the four Clery 
Act/VAWA offenses constitute per se actionable sexual harassment, while 
the ``catch-all'' Davis formulation that covers purely verbal 
harassment also requires a level of severity, pervasiveness, and 
objective offensiveness. The ``catch-all'' Davis formulation is a 
narrowly tailored standard to ensure that speech and expression are 
prohibited only when their seriousness and impact avoid First Amendment 
concerns.
---------------------------------------------------------------------------

    \625\ While quid pro quo harassment by a recipient's employee 
involves speech, the speech is, by definition, designed to compel 
conduct; thus, the Department believes that a broad prohibition 
against an employee conditioning an educational benefit on 
participation in unwelcome sexual conduct does not present 
constitutional concerns with respect to protection of speech and 
expression. See, e.g., Saxe v. State Coll. Area Sch. Dist., 240 F.3d 
200, 207 (3d Cir. 2001) (``government may constitutionally prohibit 
speech whose non-expressive qualities promote discrimination. For 
example, a supervisor's statement `sleep with me or you're fired' 
may be proscribed not on the ground of any expressive idea that the 
statement communicates, but rather because it facilitates the threat 
of discriminatory conduct. Despite the purely verbal quality of such 
a threat, it surely is no more `speech' for First Amendment purposes 
than the robber's demand `your money or your life.' '') (emphasis in 
original).
---------------------------------------------------------------------------

    The Department does not intend, through these final regulations, to 
encourage or discourage recipients from governing the sex and dating 
lives of students, or to opine on whether or not recipients have become 
the ``sex police;'' whether such a trend is positive or negative is 
outside the purview of these final regulations. The Department's 
definition of sexual harassment is designed to hold recipients 
accountable for meaningful, fair responses to sexual harassment that 
violates a person's civil right to be free from sex discrimination, not 
to dictate a recipient's role in the sex or dating lives of its 
students. The Department emphasizes that any person can be a victim, 
and any person can be a perpetrator, of sexual harassment, and like the 
Title IX statute itself, these final regulations are drafted to be 
neutral toward the sex of each party.\626\
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    \626\ Compare 20 U.S.C. 1681(a) (``No person in the United 
States shall, on the basis of sex, be excluded . . .'') (emphasis 
added) with Sec.  106.30 (defining ``complainant'' to mean ``an 
individual who is alleged to be the victim . . .'') (emphasis 
added).
---------------------------------------------------------------------------

    Changes: We have revised the Sec.  106.30 definition of sexual 
harassment in four ways: First, by moving the clause ``on the basis of 
sex'' from the second prong to the introductory sentence of the entire 
definition to align with Title IX's focus on discrimination ``on the 
basis of sex'' for all conduct that constitutes sexual harassment; 
second, by specifying that the Davis elements in the second prong 
(severe, pervasive, objectively offensive, denial of equal access) are 
determined under a reasonable person standard; third, by adding the 
other three Clery Act/VAWA sex offenses (dating violence, domestic 
violence, and stalking) to the sexual assault reference in the third 
prong; and fourth, by referencing the Clery Act and VAWA statutes 
rather than the Clery Act regulations.
    Comments: Many commenters opposed the Sec.  106.30 definition of 
sexual harassment, with some commenters arguing that the definition is 
unfair, would make schools unsafe and vulnerable and retraumatize 
survivors, is misogynistic, and promotes a hostile environment. 
Commenters also stated that it would negatively impact all students, 
especially LGBTQ students including transgender and non-binary people 
who are already more reluctant to report for fear of facing bias. Many 
commenters directed the Department to information and data about 
prevalence, impact, and other dynamics of sexual harassment that is 
addressed in the ``General Support and Opposition'' section of this 
preamble, arguing that the ``narrowed'' or ``stringent'' definition of 
sexual harassment in the NPRM would increase the prevalence, impact, 
and costs of sexual harassment on all victims and decrease or chill 
reporting of sexual harassment including disproportionately negative 
consequences for particular demographic populations. Many commenters 
asserted that the proposed definition fails to encompass the wide range 
of types of sexual harassment that students frequently face. Many 
commenters argued that requiring schools to only investigate the most 
serious cases gives a green light to all kinds of inappropriate 
behavior that should also be investigated. A few commenters contended 
that screening out harassment claims that do not meet certain 
thresholds contributes to a society-wide problem where from a young age 
girls are told in subtle and less subtle ways to be good, nice, and 
quiet, that girls don't matter as much as boys, and that speaking up to 
say something against a boy will not be taken seriously.
    One commenter asserted that Alexander v. Yale established that 
sexual harassment and assault in schools is not only a crime, but also 
impedes equitable access to education.\627\ Several commenters asserted 
that any act of rape or assault denies the victim the ability to 
successfully participate in college and that a person who is raped or 
assaulted is traumatized, which affects all aspects of college 
participation and academic performance. Many commenters contended that 
if enacted, the proposed rules would raise a question for a victim: Was 
my rape/assault bad enough

[[Page 30143]]

or severe enough to warrant someone listening to me?
---------------------------------------------------------------------------

    \627\ Commenters cited: Alexander v. Yale Univ., 459 F. Supp. 1 
(D. Conn. 1977).
---------------------------------------------------------------------------

    Several commenters asserted that by narrowing the definition of 
sexual harassment, the proposed rules would invalidate the adverse 
experiences to which victims have been subjected. One commenter argued 
that while there is no silver bullet to fixing the problem of sexual 
assault and harassment, narrowing what actions are deemed assault in 
the realm of Title IX will muddy the waters even further; the commenter 
argued that what people perceive as vague is necessary to ensure 
victims are being treated fairly. Several commenters asserted that as 
all victims of harassment are unique, so are forms of harassment unique 
and should remain widely defined.
    Several commenters argued that the definitions of sexual harassment 
need to be developed further to include cultural differences in sexual 
harassment and discrimination. Other commenters asserted that the Sec.  
106.30 definition of sexual harassment is very limiting compared to 
what students on campus really feel and experience; further, students 
may understand an experience differently based on race, sex, and 
cultural factors leading to misunderstanding as to what sexual assault 
or sexual harassment is or is not. A few commenters argued that sexual 
violence or sexual violation would be a better term to use than sexual 
harassment. At least one commenter asserted that accused students 
sometimes do not recognize their behavior as violent and wondered how 
that reality plays into Title IX reform. At least one commenter 
characterized the use of qualifiers like severe and pervasive in the 
sexual harassment definition as creating a fact-bound focus on the 
behavior of the victim, an unfair result given that much of the conduct 
complained about may also be criminal.
    Discussion: The Department disagrees that the three-pronged 
definition of sexual harassment in Sec.  106.30 is unfair, 
misogynistic, will make schools unsafe, leave students vulnerable, 
retraumatize survivors, promote a hostile environment, or disadvantage 
LGBTQ students. As described above, the definition is rooted in Supreme 
Court Title IX precedent and principles of free speech and academic 
freedom, applies equally to all persons regardless of sexual 
orientation or gender identity, provides clear expectations for when 
schools legally must respond to sexual harassment, and leaves schools 
discretion to address misconduct that does not meet the Title IX 
definition. The Department appreciates the data and information 
commenters referred to regarding the prevalence and impact of sexual 
harassment on students (and employees) of all ages and characteristics. 
Precisely because sexual harassment affects so many students in such 
detrimental ways, the Department has chosen, for the first time, to 
exercise its authority under Title IX to codify regulations that 
mandate school responses to assist survivors in the aftermath of sexual 
harassment.
    The Department does not disagree with commenters' characterizations 
of the Davis standard as ``narrow'' or even ``stringent,'' but we 
contend that as a whole, the range of conduct prohibited under Title IX 
is adequate to ensure that abuse of authority (i.e., quid pro quo), 
physical violence, and sexual touching without consent (i.e., the four 
Clery Act/VAWA offenses) trigger a school's obligation to respond 
without scrutiny into the severity or impact of the conduct, while 
verbal and expressive conduct crosses into Title IX sex discrimination 
(in the form of sexual harassment) when such conduct is so serious that 
it effectively denies a person equal access to education. As a whole, 
the definition of sexual harassment in Sec.  106.30 is significantly 
broader than the Davis standard alone,\628\ and in certain ways broader 
than the judicial standards applied to workplace sexual harassment 
under Title VII.\629\ The final regulations provide students, 
employees, and recipients clear direction that when incidents of quid 
pro quo harassment or Clery Act/VAWA offenses are reported to the 
recipient, the recipient must respond without inquiring into the 
severity or pervasiveness of such conduct. The Department understands 
commenters' concerns that the Davis standard's elements (severity, 
pervasiveness, and objective offensiveness) will exclude from Title IX 
incidents of verbal harassment that do not meet those elements. 
However, the Department does not agree that this standard for verbal 
harassment (and physical conduct that does not constitute a Clery Act/
VAWA offense included in these final regulations) will discourage 
students or employees from reporting harassment, fail to require 
recipient responses to a wide range of sexual harassment frequently 
faced by students, or send the message that girls do not matter as much 
as boys. The Department believes that State and local educators desire 
a safe, learning-conducive environment for students and employees, and 
that recipients will evaluate incidents under the Davis standard from 
the perspective of a reasonable person in the shoes of the complainant, 
such that the ages, abilities, and relative positions of authority of 
the individuals involved in an incident will be taken into account. To 
reinforce this, the final regulations revise the second prong of the 
sexual harassment definition to specify that the Davis elements are 
``determined by a reasonable person'' to be so severe, pervasive, and 
objectively offensive that a person is effectively denied equal access 
to education. The Department does not dispute commenters' 
characterization that only serious situations will be actionable under 
this definition, but following the Supreme Court's reasoning in Davis, 
that stricture is appropriate in educational environments where younger 
students are still learning social skills and older students benefit 
from robust exchange of ideas, opinions, and beliefs.
---------------------------------------------------------------------------

    \628\ This is because the Davis standard, alone, evaluates even 
physical assaults and violence through the lens of whether an 
incident is severe, pervasive, and objectively offensive so as to 
deny a person equal access; however, under these final regulations 
these elements do not apply to sex-based incidents of quid pro quo 
harassment, sexual assault, dating violence, domestic violence, or 
stalking.
    \629\ Under Title VII, sexual harassment (including quid pro 
quo, hostile environment, and even sexual assault) must be shown to 
alter the conditions of employment. See Meritor Sav. Bank v. Vinson, 
477 U.S. 57, 67 (1986). Under these final regulations, quid pro quo 
harassment, sexual assault, dating violence, domestic violence, and 
stalking do not require a showing of alteration of the educational 
environment. As previously stated, the Department assumes that a 
victim of quid pro quo sexual harassment or the criminal sex 
offenses included in the Clery Act, as amended by VAWA, has been 
effectively denied equal access to education.
---------------------------------------------------------------------------

    Contrary to commenters' assertions, neither the Davis standard nor 
the sexual harassment definition holistically gives a green light to 
inappropriate behavior. Rather, the three-pronged definition of sexual 
harassment in Sec.  106.30 provides clear requirements for recipients 
to respond to sexual harassment that constitutes sex discrimination 
prohibited under Title IX, while leaving recipients flexibility to 
address other forms of misconduct to the degree, and in the manner, 
best suited to each recipient's unique educational environment.
    The Department agrees with commenters that for decades, sexual 
harassment has been a recognized form of sex discrimination that 
impedes equal access to education, and that rape and assault traumatize 
victims in ways that negatively affect participation in educational 
programs and activities. For this reason, contrary to the 
misunderstanding of many commenters, the Department intentionally 
included sexual assault as a per se type of sexual harassment rather 
than leaving sexual assault to be evaluated for severity or

[[Page 30144]]

pervasiveness under the Davis standard. No student or employee 
traumatized by sexual assault needs to wonder whether a rape or sexual 
assault was ``bad enough'' or severe enough to report and expect a 
meaningful response from the survivor's school, college, or university. 
Far from narrowing what constitutes sexual assault, the Department 
incorporates the offense of sexual assault used in the Clery Act, which 
broadly defines sexual assault to include all the sex offenses listed 
by the FBI's Uniform Crime Reporting system. The Department agrees that 
all victims of harassment are unique, and that harassment can take a 
myriad of unique forms. For this reason, the Department defines sexual 
harassment to include the four Clery Act/VAWA offenses, leaves the 
concept of quid pro quo harassment broad and applicable to any 
recipient employee, and does not limit the endless variety of verbal or 
other conduct that could meet the Davis standard. While understanding 
that sexual harassment causes unique harm to victims distinct from the 
harm caused by other misconduct, the final regulations define sexual 
harassment similar to the way in which fraud is understood in the legal 
system, where ``Fraud is a generic term, which embraces all the 
multifarious means which human ingenuity can devise and which are 
resorted to by one individual to gain an advantage over another by 
false suggestions or by the suppression of the truth.'' \630\ 
Similarly, sexual harassment under Sec.  106.30 is a broad term that 
encompasses the ``multifarious means which human ingenuity can devise'' 
to foist unwelcome sex-based conduct on a victim jeopardizing 
educational pursuits. Thus, the Department agrees with commenters that 
some level of open-endedness is necessary to ensure that relevant 
misconduct is captured. The Department believes that the Sec.  106.30 
definition provides standards that are clear enough so that victims, 
perpetrators, and recipients understand the type of conduct that will 
be treated as sex discrimination under Title IX, and open-ended enough 
to not artificially foreclose behaviors that may constitute actionable 
sexual harassment.
---------------------------------------------------------------------------

    \630\ Stapleton v. Holt, 250 P.2d 451, 453-54 (Okla. 1952).
---------------------------------------------------------------------------

    The Department understands commenters' concerns that cultural 
differences can impact the way that sexual harassment is experienced. 
Cultural and other personal factors can affect sexual harassment and 
sexual violence dynamics, and the Department believes the definition of 
sexual harassment must remain applicable to all persons, regardless of 
cultural or other identity characteristics. To the extent that cultural 
or other personal factors affect a person's understanding about what 
constitutes sexual harassment, the Department notes that with one 
exception,\631\ no type of sexual harassment depends on the intent or 
purpose of the perpetrator or victim. Thus, if a perpetrator commits 
misconduct that meets one or more of the three prongs, any 
misunderstanding due to cultural or other differences does not negate 
the commission of a sexual harassment violation. Similarly, a 
respondent's lack of comprehension that conduct constituting sexual 
harassment violates the bodily or emotional autonomy and dignity of a 
victim does not excuse the misconduct, though genuine lack of 
understanding may (in a recipient's discretion) factor into the 
sanction decision affecting a particular respondent, or a recipient's 
willingness to facilitate informal resolution of a formal complaint of 
sexual harassment.
---------------------------------------------------------------------------

    \631\ The one exception is the offense of ``fondling,'' included 
in the Clery Act under the term ``sexual assault.'' Under the Clery 
Act (referring to the FBI's Uniform Crime Reporting system), 
fondling is a sex offense that means the ``touching of the private 
body parts of another person for the purpose of sexual 
gratification, without the consent of the victim[.]'' E.g., U.S. 
Dep't. of Education, Office of Postsecondary Education, The Handbook 
for Campus Safety and Security Reporting 3-6 (2016), https://www2.ed.gov/admins/lead/safety/handbook.pdf. (emphasis added).
---------------------------------------------------------------------------

    While the Department appreciates commenters' suggestions that 
``sexual violence'' or ``sexual violations'' would be preferred terms 
in place of ``sexual harassment,'' for clarity and ease of common 
understanding, the Department uses ``sexual harassment'' as the Supreme 
Court used that term when acknowledging that sexual harassment can 
constitute a form of sex discrimination covered by Title IX.
    The Department disagrees that the Davis standard inappropriately or 
unfairly creates a fact-bound focus on the victim's behavior; rather, 
elements of severity, pervasiveness, and objective offensiveness focus 
factually on the nature of the misconduct itself--not on the victim's 
response to the misconduct. To reinforce and clarify that position, we 
have revised Sec.  106.30 defining ``sexual harassment'' to expressly 
state that the Davis elements of severity, pervasiveness, objective 
offensiveness, and effective denial of equal access, are evaluated from 
the perspective of a ``reasonable person,'' so that the complainant's 
individualized reaction to sexual harassment is not the focus when a 
recipient is identifying and responding to Title IX sexual harassment 
incidents or allegations.
    Changes: We have revised the Sec.  106.30 definition of sexual 
harassment by specifying that the elements in the Davis standard 
(severe, pervasive, objectively offensive, and denial of equal access) 
are determined under a reasonable person standard.
    Comments: Several commenters asserted that the Sec.  106.30 
definition ignores a multitude of objectionable actions thereby 
excusing large swaths of harassing activity from scrutiny under Title 
IX. Other commenters objected to the Sec.  106.30 definition on the 
ground that there are a wide variety of circumstances in which 
unwelcome conduct on the basis of sex would violate Title IX, but which 
would fall outside the proposed definition of sexual harassment; 
several such commenters argued that the net effect of the proposed 
definition would be to exempt from enforcement by the Department 
several distinct categories of Title IX violations, and under Title IX 
the Department has no authority to create such exemptions.
    A few commenters asserted that some sexual predators engage in 
grooming behaviors intended to sexualize an abuser's relationships with 
children gradually while building a sense of trust with intended 
victims.\632\ Commenters asserted that grooming behaviors can include 
behaviors such as making inappropriate jokes, sharing pornographic 
photos or videos, inappropriately entering locker rooms when students 
are undressing, singling out children for gifts, trips or special 
tasks, and finding times and places to be alone with children. 
Commenters argued that under the proposed rules, these behaviors might 
not meet the definition of sexual harassment, yet responding to such 
behaviors is essential to preventing child sexual abuse.
---------------------------------------------------------------------------

    \632\ Commenters cited: Helen C. Whittle et al., A Comparison of 
Victim and Offender Perspectives of Grooming and Sexual Abuse, 36 
Deviant Behavior 7 (2015).
---------------------------------------------------------------------------

    Some commenters expressed concern that the Sec.  106.30 definition 
discounts certain types of sex-based harassment that, although 
ostensibly ``less severe,'' nonetheless adversely affect survivors' 
participation in educational programs. A few such commenters 
categorized types of sex-based harassment \633\ as: (i)

[[Page 30145]]

``Sexual assault'' defined as involving any unwelcome sexual contact, 
which the commenters stated is covered by the proposed rules' 
definition of harassment; (ii) ``sex-based harassment'' as an umbrella 
term to mean behavior that derogates, demeans, or humiliates an 
individual based on that individual's sex but does not involve physical 
contact, and which comes in three forms: ``Sexual coercion'' or quid 
pro quo involving bribes or threats that make an important outcome 
contingent on the victim's sexual cooperation; ``unwanted sexual 
attention'' involving expressions of romantic or sexual interest that 
are unwelcome, unreciprocated, and offensive to the recipient; and 
``gender harassment'' encompassing verbal and nonverbal behaviors not 
aimed at sexual cooperation but that convey insulting, hostile, and 
degrading attitudes about one sex (though devoid of sexual content). 
These commenters asserted that while sexual coercion remains covered 
under the Sec.  106.30 definition (under the first prong regarding quid 
pro quo harassment), unwanted sexual attention is covered only if it is 
so severe, pervasive, and objectively offensive that it effectively 
denies a person equal access to education, and gender harassment is not 
covered at all by the regulatory definition even though it is the most 
common type of sex-based harassment in academia as well as the 
workplace. These commenters also asserted that research shows that 
gender harassment that is either severe or occurs frequently over a 
period of time can result in the same level of negative professional, 
academic, and psychological outcomes as isolated incidents of sexual 
coercion.\634\ These commenters concluded that the only way to truly 
combat sexual harassment is to enact policies that address and prevent 
the most common form of sexual harassment (i.e., gender harassment).
---------------------------------------------------------------------------

    \633\ Commenters cited: Louise Fitzgerald et al., Measuring 
sexual harassment: Theoretical and psychometric advances, 17 Basic & 
Applied Social Psychol. 4 (1995); Jennifer L. Berdahl, Harassment 
based on sex: Protecting social status in the context of gender 
hierarchy, 32 Acad. of Mgmt. Rev. 641 (2007); Emily Leskinen et al., 
Gender harassment: Broadening our understanding of sex-based 
harassment at work, 35 Law & Hum. Behavior 1 (2011); National 
Academies of Science, Engineering, and Medicine, Sexual Harassment 
of Women: Climate, Culture, and Consequences in Academic Sciences, 
Engineering, and Medicine (Frasier F. Benya et al. eds., 2018).
    \634\ Commenters cited: National Academies of Science, 
Engineering, and Medicine, Sexual Harassment of Women: Climate, 
Culture, and Consequences in Academic Sciences, Engineering, and 
Medicine 69 (Frasier F. Benya et al. eds., 2018). Commenters further 
noted that sexual minorities experience gender harassment at more 
than double the rates of heterosexuals. Id. at 46.
---------------------------------------------------------------------------

    Several commenters expressed concern that the proposed rules do not 
expressly address how technology has changed in the decades since Title 
IX was enacted (e.g., email, the internet) and asserted that the final 
regulations must squarely address cyber-harassment on the basis of sex, 
which commenters stated is a severe and growing trend for 
students.\635\ In addition to asking that online or cyber-harassment be 
explicitly referenced, several of these commenters also asserted that 
the appropriate standard for judging whether cyber-harassment must be 
responded to is whether such harassment meets the description of 
harassment set forth in the Department's 2001 Guidance.
---------------------------------------------------------------------------

    \635\ Commenters cited: American Association of University 
Women, Crossing the Line: Sexual Harassment at School (2011), for 
the proposition that: In the 2010-2011 school year, 36 percent of 
girls, 24 percent of boys, and 30 percent of all students who took 
the survey in grades seven through 12 experienced sexual harassment 
online; 18 percent of these students did not want to go to school, 
13 percent found it hard to study, 17 percent had trouble sleeping, 
and eight percent wanted to stay home from school. Commenters also 
asserted that college students, too, face online sexual harassment, 
and in support of this assertion, some commenters cited to: David 
Goldman, Campus Uproar Over Yik Yak App After Sex, Harassment, 
Murder, CNN.com (May 7, 2015), https://money.cnn.com/2015/05/07/technology/yik-yak-university-of-mary-washington/.
---------------------------------------------------------------------------

    Several commenters asserted that school boards in elementary and 
secondary schools will encounter confusion among the proposed Title IX 
sexual harassment regulatory definition, State laws governing bullying, 
abuse, or crimes that mandate reports to law enforcement or child 
welfare agencies, and school discipline violations, each of which has 
its own procedures that must be followed. Similarly, several commenters 
asserted that postsecondary institutions will encounter confusion due 
to differences between the Sec.  106.30 definition of sexual harassment 
and various State laws that define sexual harassment or sexual 
misconduct more broadly; these commenters referenced laws in states 
such as California, New York, New Jersey, Illinois, and others.
    At least one commenter asserted that the requirement that any of 
the conduct defined as sexual harassment under Sec.  106.30 must be 
``on the basis of sex'' lacks guidance as to how that element must be 
applied; one commenter wondered if this element means that a 
complainant must try to prove the respondent's state of mind when most 
respondents would simply deny acting on the basis of the victim's sex 
and insist that the action was based on romance, anger, emotion, etc., 
or whether a complainant would need to provide statistics to show a 
disparate impact on people of the victim's sex in order to show that 
the respondent's conduct was ``on the basis of sex.''
    At least one commenter urged the Department to seek input from 
stakeholders, including education leaders, on what types of technical 
assistance would be most helpful to school districts seeking to 
implement the regulatory definition.
    Discussion: The Department acknowledges that not every instance of 
subjectively unwelcome conduct is captured under the three-pronged 
definition of sexual harassment in Sec.  106.30. However, the 
Department believes that the conduct captured as actionable under Title 
IX constitutes precisely the sex-based conduct that the Supreme Court 
has indicated amounts to sex discrimination under Title IX, as well as 
physical conduct that might not meet the Davis definition (e.g., a 
single instance of rape, or a single instance of quid pro quo 
harassment). The Department disagrees that it is exempting categories 
of Title IX violations from coverage under Title IX; to the contrary, 
the Sec.  106.30 definition ensures that sex discrimination in the form 
of sexual harassment clearly falls under recipients' Title IX 
obligations to operate education programs and activities free from sex 
discrimination.
    The Department appreciates commenters' concerns regarding grooming 
behaviors, which can facilitate sexual abuse. While the sexual 
harassment definition does not identify ``grooming behaviors'' as a 
distinct category of misconduct, some of the conduct identified by 
commenters and experts as constituting grooming behaviors may 
constitute Sec.  106.30 sexual harassment, and behaviors that do not 
constitute sexual harassment may still be recognized as suspect or 
inappropriate and addressed by recipients outside Title IX obligations.
    Similarly, the Department understands commenters' and experts' 
assertions that unwelcome conduct that is not ``severe'' can still 
adversely impact students and employees. The 2018 comprehensive report 
on ``Sexual Harassment of Women'' by the National Academies of 
Sciences, Engineering, and Medicine (NASEM) \636\ helpfully synthesizes 
decades of sexual harassment research and analysis to classify sex-
based harassment as either sexual assault, or any of three types of 
sex-based harassment (sexual coercion, unwanted sexual attention, or 
gender harassment). The Department agrees with commenters' assertions 
that sexual

[[Page 30146]]

assault and sexual coercion \637\ are covered under the regulatory 
definition, and agrees that unwanted sexual attention is covered if 
such conduct meets the second prong (the Davis standard), but the 
Department disagrees with commenters' assertion that what NASEM and 
others label as ``gender harassment'' is not covered under Sec.  
106.30. What the Department understands NASEM and commenters to mean by 
gender harassment is verbal and nonverbal behaviors, devoid of sexual 
content, that convey insulting, hostile, degrading attitudes about a 
particular sex. The language of the second prong of the Sec.  106.30 
definition describes conduct on the basis of sex that is unwelcome, 
determined by a reasonable person to be so severe, pervasive, and 
objectively offensive that it effectively denies a person equal access 
to education. That description encompasses what commenters label as 
``gender harassment'' (as well as what commenters label ``unwanted 
sexual attention'') where the verbal or other conduct meets the Davis 
elements. Thus, the Sec.  106.30 definition appropriately covers what 
NASEM and commenters describe as the most common type of sex-based 
harassment in academia and the workplace, as well as other types of 
sexual harassment identified by such commenters and experts. The 
Department appreciates the efforts made by NASEM and others to analyze 
the prevalence of sexual harassment within academia and to recommend 
approaches to reduce that prevalence, and believes that these final 
regulations appropriately regulate sexual harassment as a form of Title 
IX sex discrimination, while respecting the Department's legal 
obligations to enforce the civil rights statute as passed by Congress, 
and apply statutory interpretations consistent with First Amendment and 
other constitutional protections. The Department understands that 
research demonstrates that the negative impact of persistent (though 
not severe) harassment may be similar to the impact of a single 
instance of severe harassment. However, guided by the Supreme Court's 
Davis opinion, the Department believes that unwelcome conduct (that 
does not constitute quid pro quo harassment or a Clery Act/VAWA offense 
included in Sec.  106.30) rises to a civil rights violation where the 
seriousness (determined by a reasonable person to be so severe, 
pervasive, objectively offensive, that it negatively impacts equal 
access) jeopardizes educational opportunities. While non-severe 
instances of unwelcome harassment may negatively impact a person, and 
recipients retain authority to address such instances, Title IX is 
focused on sex discrimination that jeopardizes educational access.
---------------------------------------------------------------------------

    \636\ Commenters cited: National Academies of Science, 
Engineering, and Medicine, Sexual Harassment of Women: Climate, 
Culture, and Consequences in Academic Sciences, Engineering, and 
Medicine (Frasier F. Benya et al. eds., 2018).
    \637\ Commenters referred to ``sexual coercion'' as quid pro quo 
harassment.
---------------------------------------------------------------------------

    The Department understands that technology has evolved in the 
decades since Title IX was enacted, and that the means for perpetrating 
sexual harassment in modern society may include use of electronic, 
digital, and similar methods. The Sec.  106.30 sexual harassment 
definition does not make sexual harassment dependent on the method by 
which the harassment is carried out; use of email, the internet, or 
other technologies may constitute sexual harassment as much as use of 
in-person, postal mail, handwritten, or other communications. For 
reasons described throughout this section of the preamble, and in the 
``Adoption and Adaption of the Supreme Court's Framework to Address 
Sexual Harassment'' section of this preamble, the Department believes 
that the Sec.  106.30 definition is superior to the definition of 
sexual harassment in the 2001 Guidance.
    The Department acknowledges that a myriad of State and Federal laws 
overlap in addressing misconduct, some of which may be criminal, 
violative of State civil rights laws, or safety-related (such as anti-
bullying legislation), and that elementary and secondary schools, as 
well as postsecondary institutions, face challenges in meeting 
obligations under various laws, as well as recipients' own policies. 
The Department notes that a recipient's agreement to accept Federal 
financial assistance obligates the recipient to comply with Title IX 
with respect to education programs or activities, and that compliance 
with Title IX does not obviate the need for a recipient also to comply 
with other laws. The Department does not view a difference between how 
``sexual harassment'' is defined under these final regulations and a 
different or broader definition of sexual harassment under various 
State laws as creating undue confusion for recipients or a conflict as 
to how recipients must comply with Title IX and other laws. While 
Federal Title IX regulations require a recipient to respond to sexual 
harassment as defined in Sec.  106.30, a recipient may also need to 
respond to misconduct that does not meet that definition, pursuant to a 
State law. The Department more thoroughly discusses the interaction 
between these final regulations and State laws in the ``Section 
106.6(h) Preemptive Effect'' subsection of the ``Clarifying Amendments 
to Existing Regulations'' section.
    The Department appreciates commenters' concerns about how to apply 
the prerequisite element that sexual harassment is conduct ``on the 
basis of sex.'' The Department notes that the Title IX statute 
prohibits exclusion, denial of benefits, and subjection to 
discrimination ``on the basis of sex,'' and the Department cannot 
remove that qualifier in describing conduct prohibited under Title IX 
because Congress intended for Title IX to provide individuals with 
effective protections against discriminatory practices \638\ ``on the 
basis of sex.'' \639\ Discriminatory practices on other bases or 
protected characteristics are not part of Title IX's non-discrimination 
mandate. To clarify that all the conduct defined as sexual harassment 
must be ``on the basis of sex,'' the final regulations revise Sec.  
106.30 by removing that phrase from the second prong, and inserting it 
into the introductory sentence that now begins ``Sexual harassment 
means conduct on the basis of sex that satisfies one or more of the 
following'' and then goes on to list the three prongs of the 
definition.
---------------------------------------------------------------------------

    \638\ See Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).
    \639\ 20 U.S.C. 1681(a).
---------------------------------------------------------------------------

    The Department appreciates the opportunity to clarify that whether 
conduct is ``on the basis of sex'' does not require probing the 
subjective motive of the respondent (e.g., whether a respondent 
subjectively targeted a complainant because of the complainant's or the 
respondent's actual or perceived sex, as opposed to because of anger or 
romantic feelings). Where conduct is sexual in nature, or where conduct 
references one sex or another, that suffices to constitute conduct ``on 
the basis of sex.'' In Gebser and again in Davis, the Supreme Court 
accepted sexual harassment as a form of sex discrimination without 
inquiring into the subjective motive of the perpetrator (a teacher in 
Gebser and a student in Davis).\640\ The Department follows the

[[Page 30147]]

Supreme Court's approach in interpreting conduct ``on the basis of 
sex'' to include conduct of a sexual nature, or conduct referencing or 
aimed at a particular sex.\641\
---------------------------------------------------------------------------

    \640\ See, e.g., Davis, 526 U.S. at 643 (assuming without 
analysis that sexual harassment constitutes sex discrimination, in 
stating that Gebser recognized that ``whether viewed as 
discrimination or subjecting students to discrimination, Title IX 
unquestionably . . . placed on [the Board] the duty not to permit 
teacher-student harassment in its schools'') (internal quotation 
marks and citation omitted); id. at 650 (``having previously 
determined that `sexual harassment' is `discrimination' in the 
school context under Title IX, we are constrained to conclude that 
student-on-student sexual harassment, if sufficiently severe, can 
likewise rise to the level of discrimination actionable under the 
statute.''); id. at 650-51 (equating physical threats directed at 
female students, not of a sexual nature, with sexual harassment and 
thereby sex discrimination by stating: ``The most obvious example of 
student-on-student sexual harassment . . . would thus involve the 
overt, physical deprivation of access to school resources. Consider, 
for example, a case in which male students physically threaten their 
female peers every day, successfully preventing the female students 
from using a particular school resource--an athletic field or a 
computer lab, for instance.'').
    \641\ This approach finds analytic support in works such as 
Kathleen M. Franke, What's Wrong with Sexual Harassment?, 49 Stan. 
L. Rev. 691, 771-72 (1997), noting that ``to date, the Supreme Court 
has been disinclined to do more than summarily conclude that sexual 
harassment is a form of sex discrimination'' under Title VII and 
supporting an approach to ``because of sex'' that focuses on the 
conduct, not the perpetrator's motive, but arguing that a 
theoretical justification for why sexual harassment constitutes sex 
discrimination that justifies such ``evidentiary short cuts'' should 
rely on recognition that sexual harassment is a ``tool or instrument 
of gender regulation,'' undertaken ``in the service of hetero-
patriarchal norms'' that are ``punitive in nature [and] produce 
gendered subjects: Feminine women as sex objects and masculine men 
as sex subjects'' making sexual harassment a form of sex 
discrimination ``precisely because its use and effect police hetero-
patriarchal gender norms[.]'' With a theoretical understanding of 
why sexual harassment might constitute sex discrimination as a 
backdrop, sex discrimination can be inferred in individual cases 
from the existence of sexual harassment, justifiably obviating a 
need to require ``proof'' that a particular plaintiff experienced 
sexual harassment on the basis of, or because of, the plaintiff's 
and/or defendant's sex, instead keeping the focus of each case on 
the misconduct itself. Id.
---------------------------------------------------------------------------

    The Department appreciates a commenter's recommendation to seek 
input from stakeholders on what types of technical assistance would be 
most helpful to school districts in implementing the final regulations, 
and the Department will act on that recommendation by seeking such 
input from school districts and other recipients with respect to robust 
technical assistance to help recipients implement the Sec.  106.30 
definition and other provisions of the final regulations.
    Changes: We have revised Sec.  106.30 defining ``sexual 
harassment'' by moving the phrase ``on the basis of sex'' from the 
second prong to the introductory sentence applying to all three prongs 
of the definition of sexual harassment, such that any of the conduct 
defined as ``sexual harassment'' must be ``on the basis of sex.''
Prong (1) Quid Pro Quo
    Comments: At least two commenters questioned whether the quid pro 
quo prong of the Sec.  106.30 definition would apply only if the 
employee's conditioning of an educational benefit was express (as 
opposed to implied, or reasonably perceived by the victim as a threat 
to withhold a benefit), and if this prong required a subjective intent 
on the part of the recipient's employee to deny the aid or benefit even 
if such intent was not communicated when the harassment occurred. One 
such commenter asserted that it is important for potential harassers 
and potential victims to understand what conduct is prohibited and thus 
the final regulations need to specify whether the quid pro quo nature 
of the harassment must be expressly communicated, or may be implied by 
the circumstances; this commenter stated that even courts do not 
require that a harasser explicitly articulate all the terms and 
conditions of the ``bargain of exchange'' being proposed in a quid pro 
quo harassment situation.
    At least one commenter asserted that the final regulations need to 
clarify that ``consenting'' to unwelcome sexual conduct, or avoiding 
potential adverse consequences without providing the requested sexual 
favors, does not mean that quid pro quo harassment did not occur.
    One commenter believed that quid pro quo harassment needs to also 
be severe, pervasive, and objectively offensive.
    A few commenters asserted that the quid pro quo prong of the sexual 
harassment definition should be expanded to include more persons than 
just ``employees'' of the recipient, because students may also hold 
positions of authority over other students (for example, team captains, 
club presidents, graduate assistants, resident advisors) and non-
employees often have regular, recipient-approved contact with students 
and function as agents of the recipient (for example, people 
supervising internships or clinical experiences, employees of vendors 
or contracted service providers, volunteers who regularly participate 
in programs or activities, or board of trustees members who serve as 
unpaid volunteers). One such commenter argued that the quid pro quo 
prong is too narrow because all people (not just employees) providing 
any services as part of a recipient's business should not condition 
services on sexual favors but also should not perpetrate any unwelcome 
sexual conduct or create a hostile environment.
    One commenter urged the Department to clarify that in the 
elementary and secondary school context, even a consensual, welcome 
sexual relationship between a student and teacher counts as sexual 
harassment because such a relationship is an abuse of the teacher's 
power over the student; the commenter asserted that the teacher-student 
relationship in Gebser may have been consensual but was still sexual 
harassment.
    Discussion: The Department appreciates the opportunity to clarify 
that the first prong of the Sec.  106.30 definition, describing quid 
pro quo harassment, applies whether the ``bargain'' proposed by the 
recipient's employee is communicated expressly or impliedly. Making 
educational benefits or opportunities contingent on a person's 
participation in unwelcome conduct on the basis of sex strikes at the 
heart of Title IX's mandate that education programs and activities 
remain free from sex discrimination; thus, the Department interprets 
the quid pro quo harassment description broadly to encompass situations 
where the quid pro quo nature of the incident is implied from the 
circumstances.\642\ For the same reason, the Department declines to 
require that quid pro quo harassment be severe and pervasive; abuse of 
authority in the form of even a single instance of quid pro quo 
harassment (where the conduct is not ``pervasive'') is inherently 
offensive and serious enough to jeopardize equal educational 
access,\643\ and although

[[Page 30148]]

such harassment may involve verbal conduct there is no risk of chilling 
protected speech or academic freedom by broadly prohibiting quid pro 
quo harassment because such verbal conduct by definition is aimed at 
compelling a person to submit to unwelcome conduct as a condition of 
maintaining educational benefits.\644\ The Department notes that when a 
complainant acquiesces to unwelcome conduct in a quid pro quo context 
to avoid potential negative consequences, such ``consent'' does not 
necessarily mean that the sexual conduct was not ``unwelcome'' or that 
prohibited quid pro quo harassment did not occur.\645\
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    \642\ As the Davis Court recognized, the relationship between a 
teacher and student makes it even more likely than with peer 
harassment that sexual harassment threatens the equal educational 
access guaranteed by Title IX. See Davis, 526 U.S. at 653 (``The 
fact that it was a teacher who engaged in harassment in Franklin and 
Gebser is relevant. The relationship between the harasser and the 
victim necessarily affects the extent to which the misconduct can be 
said to breach Title IX's guarantee of equal access to educational 
benefits and to have a systemic effect on a program or activity. 
Peer harassment, in particular, is less likely to satisfy these 
requirements than is teacher-student harassment.'').
    \643\ Similarly, where quid pro quo harassment may not be 
``severe'' (for example, where the unwelcome sexual conduct consists 
of rubbing student's back or other conduct that may not meet the 
``severity'' element and would not constitute sexual assault but 
does consist of unwelcome conduct of a sexual nature), quid pro quo 
harassment is inherently serious enough to jeopardize equal 
educational access. Thus, quid pro quo harassment constitutes sexual 
harassment under Sec.  106.30, without being evaluated for severity, 
pervasiveness, and objective offensiveness. Determining whether 
unwelcome sexual conduct is proposed, suggested, or directed at a 
complainant, by a recipient's employee, as part of the employee 
``conditioning'' an educational benefit on participation in the 
unwelcome conduct, does not require the employee to expressly tell 
the complainant that such a bargain is being proposed, and the age 
and position of the complainant is relevant to this determination. 
For example, elementary and secondary school students are generally 
expected to submit to the instructions and directions of teachers, 
such that if a teacher makes a student feel uncomfortable through 
sex-based or other sexual conduct (e.g., back rubs or touching 
students' shoulders or thighs), it is likely that elementary and 
secondary school students will interpret that conduct as implying 
that the student must submit to the conduct in order to maintain 
educational benefits (e.g., not getting in trouble, or continuing to 
please the teacher and earn good grades). This approach to sexual 
harassment by a recipient's employees is in line with the Gebser/
Davis framework, where the Supreme Court noted that any sexual 
harassment by a teacher or school employee likely deprives a student 
of equal educational opportunities. See Davis, 526 U.S. at 653. In 
situations where an employee did not intend to commit quid pro quo 
harassment (for instance, where the teacher did not realize that 
what the teacher believed were friendly back rubs had sexual 
overtones and made students feel uncomfortable), the recipient may 
take the specific factual circumstances into account in deciding 
what remedies are appropriate for the complainants and what 
disciplinary sanctions are appropriate for the respondent.
    \644\ Quid pro quo harassment should be interpreted broadly in 
part because although a teacher, coach, or other employee 
perpetrating a quid pro quo conditioning of benefits may use speech 
in proposing or inflicting such a Hobson's choice on a student, that 
speech is incidental to the conduct (sex discriminatory abuse of 
authority) and a broad rule prohibiting such conduct raises no 
constitutional concerns. See, e.g., Saxe v. State Coll. Area Sch. 
Dist., 240 F.3d 200, 207 (3d Cir. 2001) (``government may 
constitutionally prohibit speech whose non-expressive qualities 
promote discrimination. For example, a supervisor's statement `sleep 
with me or you're fired' may be proscribed not on the ground of any 
expressive idea that the statement communicates, but rather because 
it facilitates the threat of discriminatory conduct. Despite the 
purely verbal quality of such a threat, it surely is no more 
`speech' for First Amendment purposes than the robber's demand `your 
money or your life.' '') (emphasis in original).
    \645\ The approach in these final regulations to quid pro quo 
harassment is consistent with the 2001 Guidance at 5 (stating that 
quid pro quo harassment does not depend on whether ``the student 
resists and suffers the threatened harm or submits and avoids the 
threatened harm'' and that a prohibited quid pro quo bargain may 
occur ``explicitly or implicitly'').
---------------------------------------------------------------------------

    The Department believes that the quid pro quo harassment 
description is appropriately and sufficiently broad because it applies 
to all of a recipient's employees, so that it includes situations 
where, for instance, a teacher, faculty member, or coach holds 
authority and control over a student's success or failure in a class or 
extracurricular activity, and the Department declines to expand the 
description to include non-employee students, volunteers, or others not 
deemed to be a recipient's employee. The Department understands 
commenters' concerns that non-employees are sometimes in positions 
sanctioned by the recipient to exercise control over students (or 
employees) or to distribute benefits on behalf of the recipient. 
However, the Department is persuaded by the Supreme Court's rationale 
in Gebser that Title IX and Title VII differ with respect to statutory 
reliance on agency principles.\646\ The Department believes that the 
Sec.  106.30 quid pro quo harassment prong reasonably holds recipients 
responsible for the conduct of the recipient's employees without 
expanding that liability to all agents of a recipient. However, the 
unwelcome conduct of a non-employee individual may constitute sexual 
harassment under the second or third prongs of the Sec.  106.30 
definition.
---------------------------------------------------------------------------

    \646\ Gebser, 524 U.S. at 283 (``Moreover, Meritor's rationale 
for concluding that agency principles guide the liability inquiry 
under Title VII rests on an aspect of that statute not found in 
Title IX: Title VII, in which the prohibition against employment 
discrimination runs against `an employer,' 42 U.S.C. 2000e-2(a), 
explicitly defines `employer' to include `any agent,' Sec.  
2000e(b). . . . Title IX contains no comparable reference to an 
educational institution's `agents,' and so does not expressly call 
for application of agency principles.'').
---------------------------------------------------------------------------

    In response to a commenter's request that the final regulations 
state that sexual conduct between a teacher and student counts as 
sexual harassment even where the conduct is consensual and welcome from 
the student's viewpoint, the third prong of the Sec.  106.30 definition 
refers to ``sexual assault'' as described in the Clery Act, which in 
turn references sex offenses under the FBI's Uniform Crime Reporting 
system, including statutory rape (that is, sex with a person who is 
under the statutory age of consent).\647\ With respect to students who 
are underage in their jurisdiction, a sexual relationship like that in 
Gebser between a teacher and student \648\ would therefore count as 
sexual harassment under Sec.  106.30, regardless of whether the victim 
nominally consented or welcomed the sexual activity. Furthermore, the 
Department interprets ``unwelcome'' as used in the first and second 
prongs of the Sec.  106.30 definition of sexual harassment as a 
subjective element; thus, even if a complainant in a quid pro quo 
situation pretended to welcome the conduct (for instance, due to fear 
of negative consequences for objecting to the employee's suggestions or 
advances in the moment), the complainant's subjective statement that 
the complainant found the conduct to be unwelcome suffices to meet the 
``unwelcome'' element.
---------------------------------------------------------------------------

    \647\ 20 U.S.C. 1092(f)(6)(A)(v).
    \648\ Gebser, 524 U.S. at 278 (describing the relationship 
between the teacher and student in that case as involving sexual 
intercourse).
---------------------------------------------------------------------------

    Changes: None.
Prong (2) Davis Standard
Davis Standard Generally
    Comments: Several commenters supported the second prong of the 
Sec.  106.30 definition of sexual harassment, which is derived from the 
Supreme Court's Davis opinion. One commenter stated that previous 
Department guidance changed the ``and'' to ``or'' in the ``severe, 
pervasive, and objectively offensive'' formulation and asserted that 
this resulted in over-enforcement and sparked criticism from experts 
and law professors, including the Association of Title IX 
Administrators (ATIXA).\649\ This commenter argued that while victim 
advocates have argued that the Davis standard should apply only to 
private lawsuits against schools, it seems illogical to subject schools 
to two separate standards of responsibility concerning the same 
conduct, and the Davis standard does not let schools ``off the hook.''
---------------------------------------------------------------------------

    \649\ Commenters cited: Eugene Volokh, Open Letter from 16 Penn 
Law Professors about Title IX and Sexual Assault Complaints, Volokh 
Conspiracy (Feb. 19, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/02/19/open-letter-from-16-penn-law-school-professors-about-title-ix-and-sexual-assault-complaints/; Law 
Professors' Open Letter Regarding Campus Free Speech and Sexual 
Assault (May 16, 2016), https://www.lankford.senate.gov/imo/media/doc/Law-Professor-Open-Letter-May-16-2016.pdf; Jacob E. Gerson & 
Jeannie Suk Gersen, The Sex Bureaucracy, 104 Cal. L. Rev. 881 
(2016); National Center for Higher Education Risk Management 
(NCHERM), The 2017 NCHERM Group Whitepaper: Due Process and the Sex 
Police 2, 15 (2017) (``Some pockets in higher education have twisted 
the 2011 Office for Civil Rights (OCR) Dear Colleague Letter (DCL) 
and Title IX into a license to subvert due process and to become the 
sex police. . . . [T]his Whitepaper [and another ATIXA publication] 
push back strongly against both of those trends in terms of best 
practices.'').
---------------------------------------------------------------------------

    On the contrary, many commenters opposed the second prong of the 
Sec.  106.30 definition because it uses a standard designed to award 
money damages in private litigation, not administrative enforcement 
designed to promote equal educational opportunity. Some commenters 
argued that Gebser does not actually define sexual harassment and that 
Davis cited to the Supreme Court's Meritor opinion indicating intent to 
utilize the same definition for sexual harassment under Title IX as the 
Court has used under Title VII. One commenter argued that the Davis 
Court inaccurately paraphrased the Meritor decision when stating 
``and'' instead of ``or'' (in

[[Page 30149]]

``severe, pervasive, and objectively offensive''), and asserted there 
is nothing in the Davis opinion that indicates that the Court intended 
to apply a higher standard for hostile environment harassment under 
Title IX than under Title VII.
    At least one commenter asserted that if students cannot receive 
different recourse from the Department than they can in Federal courts, 
then students will find civil litigation to be a better avenue which 
will lead to costly redirection of school resources toward defending 
Title IX litigation, a result exacerbated by the fact that the final 
regulations expressly prohibit awards of money damages in Department 
enforcement actions while money damages are available in private 
lawsuits.
    At least one commenter argued that with regard to student-on-
student harassment, the Supreme Court in Davis did not modify Gebser by 
defining ``sexual harassment'' in some limited way; rather, Davis 
addressed the amount and type of sexual harassment (as that phrase is 
commonly understood) which, if engaged in by a student harasser, would 
constitute ``discrimination'' and thus violate Title IX. At least one 
commenter argued that the NPRM failed to recognize the difference 
between the anti-discrimination clause and the anti-exclusion clause of 
the Title IX statute \650\ by incorrectly assigning the purpose of the 
anti-discrimination clause to the anti-exclusion clause. One such 
commenter argued that the purpose of the anti-discrimination clause is 
to forbid gender-based adverse action under a covered program or 
activity, regardless of whether that action has any impact on the 
victim's access to that program or activity while the purpose of the 
anti-exclusion clause is to protect access to a program or activity, 
regardless of whether the misconduct potentially affecting access 
occurs under, or outside, that program or activity.
---------------------------------------------------------------------------

    \650\ Title IX, codified at 20 U.S.C. 1681(a): ``No person in 
the United States shall, on the basis of sex, be excluded from 
participation in, denied the benefits of, or be subjected to 
discrimination under any education program or activity receiving 
Federal financial assistance[.]''
---------------------------------------------------------------------------

    One commenter argued that the NPRM's definition of hostile 
environment sexual harassment does not allow for the central method of 
analysis that both courts and existing Department guidance have 
instructed schools to use in evaluating sexual harassment complaints: 
Balancing relevant factors in recognition of the totality of the 
circumstances. The commenter asserted that this holistic approach is 
crucial for recipients to fulfill their Title IX responsibilities to 
prevent the discriminatory conduct's occurrence and end it when it does 
occur. At least one commenter similarly argued that the ``severe and 
pervasive'' prong of the definition creates ambiguity from lack of 
guidance on how to apply the standard and without such guidance schools 
will screen out situations that should be addressed.
    A few commenters noted that the second prong of the Sec.  106.30 
definition appropriately requires actionable harassment to be severe, 
pervasive, and objectively offensive yet leaves recipients flexibility 
to address misconduct that does not meet that standard through codes of 
conduct outside the Title IX context.
    Discussion: The Department appreciates commenters' support for the 
Davis definition of actionable sexual harassment embodied in the second 
prong of the Sec.  106.30 definition. The Department agrees that 
adopting the Davis standard for harassment that does not constitute 
quid pro quo harassment or a Clery Act/VAWA offense, included in Sec.  
106.30, appropriately holds recipients responsible for addressing 
serious, unwelcome sex-based conduct that deprives a person of equal 
access to education, while avoiding constitutional concerns raised by 
subjecting speech and expression to the chilling effect of prior 
restraints. The Department agrees that aligning the Title IX sexual 
harassment definition in administrative enforcement and private 
litigation contexts provides clear, consistent expectations for 
recipients without letting recipients ``off the hook.'' The Department 
chooses to adopt in these final regulations the Davis standard defining 
actionable sexual harassment, as one of three parts of a sexual 
harassment definition. This approach provides consistency with the 
Title IX rubric for judicial and administrative enforcement and gives a 
recipient flexibility and discretion to address sexual harassment while 
ensuring that complainants can rely on their school, college, or 
university to meaningfully respond to a sexual harassment incident.
    The Department understands the argument of many commenters that 
adoption of the Gebser/Davis framework is not legally required and 
therefore the Department should adopt a broader approach to 
administrative enforcement than that applied by the Supreme Court in 
private Title IX lawsuits. The Supreme Court did not restrict its 
Gebser/Davis approach to private lawsuits for money damages, and the 
Department believes that the Supreme Court's framework provides the 
appropriate starting point for administrative enforcement of Title IX, 
with adaptions of that framework to hold recipients responsible for 
more than what the Gebser/Davis framework alone would require.\651\
---------------------------------------------------------------------------

    \651\ For further discussion, see the ``Adoption and Adaption of 
the Supreme Court's Framework to Address Sexual Harassment'' section 
of this preamble.
---------------------------------------------------------------------------

    The Department disagrees with a commenter who asserted that the 
Davis Court mistakenly or inaccurately ``paraphrased'' the Meritor 
description of actionable workplace harassment; rather, the Department 
believes that the Davis Court intentionally and accurately acknowledged 
the ``severe or pervasive'' formulation in Meritor yet determined that 
the ``severe and pervasive'' standard was more appropriate in the 
educational context. The Department notes that the Davis Court repeated 
the ``severe and pervasive'' formulation five times \652\ showing that 
the Court noted differences between an educational and workplace 
environment that warranted a different standard under Title IX than 
under Title VII.\653\
---------------------------------------------------------------------------

    \652\ Davis, 526 U.S. at 633, 650, 651, 652, 654.
    \653\ Id. at 651 (``Courts, moreover, must bear in mind that 
schools are unlike the adult workplace and that children may 
regularly interact in a manner that would be unacceptable among 
adults. . . . Indeed, at least early on, students are still learning 
how to interact appropriately with their peers.'').
---------------------------------------------------------------------------

    The Department disagrees with the commenter who asserted that the 
Department's adoption of Davis standards will lead to increased 
litigation against recipients because students will see no difference 
between recourse from the Department and recourse available in private 
litigation. While one of the three prongs of the Sec.  106.30 sexual 
harassment definition is adopted from Davis, the other two prongs 
differ from the Davis standard; moreover, the other parts of the 
Gebser/Davis framework adopted by the Department in the final 
regulations adapt that framework in a way that broadens the scope of a 
complainant's rights vis-[agrave]-vis a recipient (for example, the 
actual knowledge condition in the final regulations is defined broadly 
to include notice to any Title IX Coordinator and any elementary or 
secondary school employee, in addition to officials with authority to 
take corrective action; the deliberate indifference standard expressly 
requires a recipient to offer supportive measures to a complainant and 
for a Title IX Coordinator to discuss supportive measures with a 
complainant, with or without the filing of a formal complaint and to 
explain to a complainant the process for filing a formal complaint).

[[Page 30150]]

Therefore, while rooted in the Supreme Court's framework, the final 
regulations appropriately impose requirements on recipients that 
benefit complainants, which Federal courts applying the Davis framework 
do not impose.\654\ We have also revised Sec.  106.3(a) to remove 
reference to whether the Department will or will not seek money damages 
as part of remedial action required of a recipient for Title IX 
violations; for further discussion, see the ``Section 106.3(a) Remedial 
Action'' subsection of the ``Clarifying Amendments to Existing 
Regulations'' section of this preamble.
---------------------------------------------------------------------------

    \654\ Consistent with constitutional due process and fundamental 
fairness, these final regulations also ensure that a recipient's 
supportive response to a complainant treats respondents equitably by 
refraining from punishing or disciplining a respondent without 
following a grievance process that complies with Sec.  106.45. Sec.  
106.44(a); Sec.  106.45(b)(1)(i); Sec.  106.30 (defining 
``supportive measures'' as non-punitive, non-disciplinary, not 
unreasonably burdensome to the other party); see also the ``Role of 
Due Process in the Grievance Process'' section of this preamble.
---------------------------------------------------------------------------

    The Department agrees with a commenter's characterization of Davis 
as not so much redefining sexual harassment as describing the amount 
and type of sexual harassment that constitutes sex discrimination under 
Title IX. Likewise, while the Department refers to a ``definition'' of 
sexual harassment in Sec.  106.30, the Department notes that the 
provision describes what amount and type of sexual harassment is 
actionable under Title IX; that is, what conditions activate a 
recipient's legal obligation to respond.
    The Department disagrees with commenters who argued that the Davis 
standard in the second prong of Sec.  106.30 fails to recognize the 
difference between the anti-discrimination clause and the anti-
exclusion clause of Title IX. In Davis, the Supreme Court acknowledged 
that Title IX contains three separate clauses (anti-exclusion, denial 
of benefits, anti-discrimination), yet with respect to actionable 
sexual harassment under Title IX the Davis Court repeatedly used the 
formulation of sexual harassment that is ``severe, pervasive, and 
objectively offensive,'' at one point seeming to equate it with the 
denial of benefits clause and at others seeming to equate it with the 
``subjected to discrimination'' clause.\655\ Regardless of which of the 
three Title IX statutory clauses the Davis Court attached to its sexual 
harassment standard, the Court emphasized several times that the 
harassment must ``deprive the victims of access to the educational 
opportunities or benefits provided by the school'' \656\ or must have 
``effectively denied equal access to an institution's resources and 
opportunities'' \657\ or ``that it denies its victims the equal access 
to education that Title IX is designed to protect.'' \658\ The Supreme 
Court's understanding of sexual harassment as prohibited conduct under 
Title IX requires sexual harassment to meet a seriousness standard 
involving denial of equal access to education, regardless of whether 
the sexual harassment is viewed as causing denial of benefits, 
exclusion from participation, or subjection to discrimination.
---------------------------------------------------------------------------

    \655\ 526 U.S. at 650 (``The statute's other prohibitions, 
moreover, help give content to the term `discrimination' in this 
context. Students are not only protected from discrimination, but 
also specifically shielded from being `excluded from participation 
in' or `denied the benefits of' any `education program or activity 
receiving Federal financial assistance.' 20 U.S.C. 1681(a). The 
statute makes clear that, whatever else it prohibits, students must 
not be denied access to educational benefits and opportunities on 
the basis of gender. We thus conclude that funding recipients are 
properly held liable in damages only where they are deliberately 
indifferent to sexual harassment, of which they have actual 
knowledge, that is so severe, pervasive, and objectively offensive 
that it can be said to deprive the victims of access to the 
educational opportunities or benefits provided by the school.''); 
id. at 644-45 (holding that a recipient is liable where its 
``deliberate indifference `subjects' its students to harassment--
``That is, the deliberate indifference must, at a minimum, `cause 
[students] to undergo' harassment or `make them liable or 
vulnerable' to it.'') (internal citations omitted).
    \656\ Id. at 650.
    \657\ Id. at 651.
    \658\ Id. at 652.
---------------------------------------------------------------------------

    The Department disagrees that the Sec.  106.30 definition of sexual 
harassment precludes or disallows a totality of the circumstances 
analysis to evaluate whether alleged conduct does or does not meet the 
definition. The Davis Court noted that evaluation of whether conduct 
rises to actionable sexual harassment depends on a constellation of 
factors including the ages and numbers of parties involved,\659\ and 
nothing in the final regulations disallows or disapproves of that 
common sense approach to determinations of severity, pervasiveness, and 
objective offensiveness. To reinforce this, the final regulations 
include language in the second prong of the Sec.  106.30 definition 
stating that the Davis elements are determined under a reasonable 
person standard. The Department does not believe that recipients will 
``screen out'' situations that should be addressed due to lack of 
guidance on how to apply the ``severe and pervasive'' elements; the 
Department is confident that recipients' desire to provide students 
with a safe, non-discriminatory learning environment will lead 
recipients to evaluate sexual harassment incidents using common sense 
and taking circumstances into consideration, including the ages, 
disability status, positions of authority of involved parties, and 
other factors.
---------------------------------------------------------------------------

    \659\ Id. at 651.
---------------------------------------------------------------------------

    The Department appreciates commenters who stated, accurately, that 
the final regulations leave recipients flexibility to address 
misconduct that does not meet the Sec.  106.30 definition of sexual 
harassment, through a recipient's own code of conduct that might impose 
behavioral expectations on students and faculty distinct from Title 
IX's non-discrimination mandate, and we have revised Sec.  106.45(b)(3) 
to clarify that even when a recipient must dismiss a formal complaint 
because the alleged conduct does not meet the definition of sexual 
harassment in Sec.  106.30, such dismissal is only for purposes of 
Title IX and does not preclude the recipient from responding to the 
allegations under the recipient's own code of conduct.
    Changes: We have revised the Sec.  106.30 definition of sexual 
harassment by specifying that the elements in the Davis standard 
(severe, pervasive, objectively offensive, and denial of equal access) 
are determined under a reasonable person standard. We have revised 
Sec.  106.45(b)(3)(i) to clarify that dismissal of a formal complaint 
because the alleged conduct does not constitute sexual harassment as 
defined in Sec.  106.30 is a dismissal for purposes of Title IX but 
does not preclude the recipient from responding to the allegations 
under the recipient's own code of conduct. We have also revised Sec.  
106.3(a) to remove reference to whether the Department will or will not 
seek money damages as part of remedial action required of a recipient 
for Title IX violations.
    Comments: Many commenters argued that the definition for Title IX 
sexual harassment should be aligned with the definition for Title VII, 
under which employers are liable for harassment that is sufficiently 
severe or pervasive to alter the conditions of employment.\660\ Some 
commenters argued that under the proposed rules, schools would be held 
to a lower standard under Title IX to protect students (some of whom 
are minors) than the standard of protection for employees under Title 
VII. Some such commenters asserted that everyone

[[Page 30151]]

on campus benefits from a culture in which sexual assault and 
harassment are deterred as they would be in a work environment and that 
Title IX, which applies to students, must not be weaker than Title 
VII.\661\ Several commenters argued that the Title VII standard 
protects against visual and graphic displays, slurs, comments, and an 
array of other activities that are severe or pervasive on the basis of 
sex, while the NPRM would deny students the same protections by 
requiring conduct be both severe and pervasive.
---------------------------------------------------------------------------

    \660\ Commenters cited: Meritor Sav. Bank v. Vinson, 477 U.S. 
57, 67 (1986) (holding under Title VII ``For sexual harassment to be 
actionable, it must be sufficiently severe or pervasive to alter the 
conditions of [the victim's] employment and create an abusive 
working environment.'') (internal quotation marks and citation 
omitted; brackets in original) (emphasis added); U.S. Equal Emp. 
Opportunity Comm'n, Enforcement Guidance on Vicarious Employer 
Liability for Unlawful Harassment by Supervisors (Jun. 18, 1999).
    \661\ Commenters cited: Ellison v. Brady, 924 F.2d 872 (9th Cir. 
1991) for the proposition that if an employer is aware of and allows 
the continuation of sexual harassment creating a hostile work 
environment, it is a violation of Title VII.
---------------------------------------------------------------------------

    Other commenters argued that college students must be able to 
succeed in college without being told that sexual assault and 
harassment is just something they must endure so they can finally get 
jobs at companies that do protect them from assault and harassment. 
Some commenters further argued that colleges and universities do a 
severe disservice to would-be harassers and assaulters by creating an 
environment where, unlike their future work environments, harassment 
and assault are tolerated. A few commenters asserted that because 
students can simultaneously be both students and employees it is 
necessary for the prohibited conduct to be the same under both Title 
VII and Title IX.
    Many commenters asserted that the hostile environment standard 
expressed in the 2001 Guidance or the withdrawn 2011 Dear Colleague 
Letter should be adopted in the final regulations, such that sexual 
harassment is ``unwelcome conduct of a sexual nature'' and such 
harassment is actionable when the conduct is ``sufficiently serious 
that it interferes with or limits a student's ability to participate in 
or benefit from the school's programs.'' Some commenters asserted that 
the ``looser'' definition from Department guidance provides greater 
protection for victims compared to the subjectivity and gray areas 
created by ill-fitting terminology used in the Sec.  106.30 definition. 
Many commenters argued that ``unwelcome conduct of a sexual nature'' is 
a simple definition of harassment that avoids the self-doubt and 
discouragement victims may feel if victims are required under the 
proposed rules to wonder if the harassment they experience fits the 
Sec.  106.30 definition. Some commenters argued that the Sec.  106.30 
definition makes it too easy to dismiss cases as not severe enough when 
any case of unwelcome sexual conduct should be clearly prohibited out 
of common sense and fairness.
    Some commenters asserted that the Department's guidance definition 
is more in line with the reality of the type of misconduct that occurs 
most often. Other commenters pointed to the ``Factors Used to Evaluate 
Hostile Environment Sexual Harassment'' section of the 2001 Guidance 
\662\ outlining a variety of factors used to determine if a hostile 
environment has been created and argued that schools should continue to 
use these factors to evaluate conduct in order to draw common sense 
conclusions about what conduct is actionable.
---------------------------------------------------------------------------

    \662\ Commenters cited: 2001 Guidance at 5-7 (listing factors 
including: The degree to which the conduct affected one or more 
students' education; the type, frequency, and duration of the 
conduct; the identity of the relationship between the alleged 
harasser and the subject or subjects of the harassment; the number 
of individuals involved; the age and sex of the alleged harasser and 
the subject or subjects of the harassment; the size of the school, 
location of the incidents, and context in which they occurred; other 
incidents at the school; and incidents of gender-based, but 
nonsexual harassment).
---------------------------------------------------------------------------

    Discussion: The Department acknowledges, as has the Supreme Court, 
that both Title VII and Title IX prohibit sex discrimination. 
Significant differences in these statutes, however, lead to different 
standards for actionable harassment in the workplace, and in schools, 
colleges, and universities. The Department disagrees with commenters 
who asserted that an identical standard for prohibited conduct in the 
workplace and in an educational environment is the appropriate outcome. 
In the elementary and secondary school context, students and recipients 
benefit from an approach to non-discrimination law that distinguishes 
between school and workplace settings.\663\ In the higher education 
context, as some commenters noted, students and faculty must be able to 
discuss sexual issues even if that offends some people who hear the 
discussion.\664\ Similarly, as a commenter stated, the Supreme Court 
rejected the idea that ``First Amendment protections should apply with 
less force on college campuses than in the community at large. Quite to 
the contrary, `the vigilant protection of constitutional freedoms is 
nowhere more vital than in the community of American schools.' '' \665\ 
Thus, even vulgar or indecent college speech is protected.\666\ The 
Davis standard ensures that speech and expressive conduct is not 
peremptorily chilled or restricted, yet may be punishable when the 
speech becomes serious enough to lose protected status under the First 
Amendment.\667\ The rationale for preventing a hostile workplace 
environment free from any severe or pervasive sexual harassment that 
alters conditions of employment does not raise the foregoing concerns 
(i.e., allowing for the social and developmental growth of young 
students learning how to interact with peers in the elementary and 
secondary school context; fostering robust exchange of speech, ideas, 
and beliefs in a college setting). Thus, the Department does not 
believe that aligning the definitions of sexual harassment under Title 
VII and Title IX furthers the purpose of Title IX or benefits students 
and employees participating in education programs or activities.\668\
---------------------------------------------------------------------------

    \663\ See Davis, 526 U.S. at 650 (``Courts, moreover, must bear 
in mind that schools are unlike the adult workplace and that 
children may regularly interact in a manner that would be 
unacceptable among adults. . . . Indeed, at least early on, students 
are still learning how to interact appropriately with their 
peers.'').
    \664\ See Snyder v. Phelps, 562 U.S. 443 (2011).
    \665\ Healy v. James, 408 U.S. 169, 180 (1972) (internal 
citation omitted).
    \666\ Papish v. Bd. of Curators, 410 U.S. 667 (1973).
    \667\ The Department notes that requiring severity, 
pervasiveness, objective offensiveness, and resulting denial of 
equal access to education for a victim, matches the seriousness of 
conduct and consequences of other types of speech unprotected by the 
First Amendment, such as fighting words, threats, and defamation.
    \668\ See Azhar Majeed, The Misapplication of Peer Harassment 
Law on College and University Campuses and the Loss of Student 
Speech Rights, 35 Journal of Coll. & Univ. L. 385, 449 (2009) 
(arguing that restrictions on workplace speech ``ultimately do not 
take away from the workplace's essential functions--to achieve the 
desired results, make the client happy, and get the job done'' and 
free expression in the workplace ``is typically not necessary for 
that purpose'' such that workplaces are often ``highly regulated 
environments'' while ``[o]n the other hand, freedom of speech and 
unfettered discussion are so essential to a college or university 
that compromising them fundamentally alters the campus environment 
to the detriment of everyone in the community'' such that free 
speech and academic freedom are necessary preconditions to a 
university's success.).
---------------------------------------------------------------------------

    The Davis standard embodied in the second prong of the Sec.  106.30 
definition differs from the third prong prohibiting sexual assault (and 
in the final regulations, dating violence, domestic violence, and 
stalking) because the latter conduct is not required to be evaluated 
for severity, pervasiveness, offensiveness, or causing a denial of 
equal access; rather, the latter conduct is assumed to deny equal 
access to education and its prohibition raises no constitutional 
concerns. In this manner, the final regulations obligate recipients to 
respond to single instances of sexual assault and sex-related violence 
more broadly than employers' response obligations under Title VII, 
where even physical conduct must be severe or pervasive and alter the 
conditions of

[[Page 30152]]

employment, to be actionable.\669\ The Department therefore disagrees 
that the final regulations provide students less protection against 
sexual assault than employees receive in a workplace, or that sexual 
assault is tolerated to a greater extent under these Title IX 
regulations than under Title VII.
---------------------------------------------------------------------------

    \669\ E.g., Meritor, 477 U.S. at 67 (``not all workplace conduct 
that may be described as harassment affects a term, condition, or 
privilege of employment within the meaning of Title VII'') (internal 
quotation marks and citation omitted); Brooks v. City of San Mateo, 
229 F.3d 917, 927 (9th Cir. 2000) (where the plaintiff alleged a 
sexual assault in the form of fondling plaintiff's breast: ``The 
harassment here was an entirely isolated incident. It had no 
precursors, and it was never repeated. In no sense can it be said 
that the city imposed upon Brooks the onerous terms of employment 
for which Title VII offers a remedy.''). Under the final 
regulations, a single instance of sexual assault (which includes 
fondling) requires a recipient's prompt response, including offering 
the complainant supportive measures and informing the complainant of 
the option of filing a formal complaint. Sec.  106.30 (defining 
``sexual harassment'' to include ``sexual assault''); Sec.  
106.44(a).
---------------------------------------------------------------------------

    For reasons discussed above and in the ``Adoption and Adaption of 
the Supreme Court Framework to Address Sexual Harassment'' section of 
this preamble, the Department believes that the Davis definition in 
Sec.  106.30 provides a definition for non-quid pro quo, non-Clery Act/
VAWA offense sexual harassment better aligned with the purpose of Title 
IX than the definition of hostile environment harassment in the 2001 
Guidance or the withdrawn 2011 Dear Colleague Letter. The Davis Court 
carefully crafted its formulation of actionable sexual harassment under 
Title IX for private lawsuits under Title IX, and the Department is 
persuaded by the Supreme Court's reasoning that administrative 
enforcement of Title IX is similarly best served by requiring a 
recipient to respond to sexual harassment that is so severe, pervasive, 
and objectively offensive that it effectively denies a person equal 
access to education. The Department believes that rooting a definition 
of sexual harassment in the Supreme Court's interpretation of Title IX 
provides more clarity without unnecessarily chilling speech and 
expressive conduct; these advantages are lacking in the looser 
definitions used in Department guidance. The Davis definition in Sec.  
106.30 utilizes the phrase unwelcome conduct on the basis of sex, which 
is broader than the ``unwelcome conduct of a sexual nature'' phrase 
used in Department guidance.\670\ The other elements in Sec.  106.30 
(severe, pervasive, and objectively offensive) provide a standard of 
evaluation more precise than the ``sufficiently serious'' description 
in Department guidance, yet serve a similar purpose--ensuring that 
conduct addressed as a Title IX civil rights issue represents serious 
conduct unprotected by the First Amendment or principles of free speech 
and academic freedom. As discussed further below, the ``effectively 
denies a person equal access'' element in Sec.  106.30 has the 
advantage of being adopted from the Supreme Court's interpretation of 
Title IX, yet does not act as a more stringent element than the 
``interferes with or limits a student's ability to participate in or 
benefit from the school's programs'' language found in Department 
guidance. The Department does not believe that recipients will err on 
the side of ignoring reports of conduct that might be considered severe 
and pervasive, and believes that a prohibition on any unwelcome sexual 
conduct would sweep up speech and expression protected by the First 
Amendment, and require schools to intervene in situations that do not 
present a threat to equal educational access. Because the Sec.  106.30 
definition provides precise standards for evaluating actionable 
harassment focused on whether sexual harassment has deprived a person 
of equal educational access, the Department believes it is unnecessary 
to list the factors from the 2001 Guidance that purport to evaluate 
whether a hostile environment has been created.
---------------------------------------------------------------------------

    \670\ As noted by some commenters, sex-based harassment includes 
unwelcome conduct of a sexual nature but also includes unwelcome 
conduct devoid of sexual content that targets a particular sex. The 
final regulations use the phrase ``sexual harassment'' to encompass 
both unwelcome conduct of a sexual nature, and other forms of 
unwelcome conduct ``on the basis of sex.'' Sec.  106.30 (defining 
``sexual harassment'').
---------------------------------------------------------------------------

    Changes: None.
    Comments: Many commenters believed that the second prong of the 
Sec.  106.30 definition means that rape and sexual assault incidents 
will be scrutinized for severity and set a ``pain scale'' for sexual 
assault such that only severe sexual assault will be recognized under 
Title IX, or that a definition that requires a school to intervene only 
if sexual violence is ``severe, pervasive, and objectively offensive'' 
means that someone would need to be repeatedly, violently raped before 
the school would act to support the survivor.
    Many commenters criticized the second prong of the Sec.  106.30 
definition by asserting that, under that standard, only the most severe 
harassment situations will be investigated, which will reduce and chill 
reporting of sexual harassment when sexual harassment is already 
underreported. Many such commenters argued that victims will be afraid 
to report because the school will scrutinize whether the harassment 
suffered was ``bad enough'' and that instead the Department needs to 
err on the side of caution by including more, not less, conduct as 
reportable harassment. Many commenters similarly argued that many 
victims are already unsure of whether their experience qualifies as 
serious enough to report and therefore narrowing the definition will 
only discourage victims from reporting unwanted sexual conduct. Many 
commenters argued that a broad definition of sexual harassment is 
needed because research shows that students are unlikely to report when 
their experience does not match common beliefs about what rape is, and 
because even ``less severe'' forms of harassment may also lead to 
negative outcomes and increase a victim's risk of further 
victimization. Similarly, some commenters noted that research shows 
that victims already minimize their experiences \671\ and knowing that 
school administrators will be judging their report for whether it is 
really serious, really pervasive, and really objectively offensive, 
will result in more victims feeling dissuaded from reporting due to 
uncertainty about whether their report will meet the definition or not.
---------------------------------------------------------------------------

    \671\ Commenters cited: The Association of American 
Universities, Report on the AAU Campus Climate Survey on Sexual 
Assault and Sexual Misconduct iv (Westat 2015) (``More than 50 
percent of the victims of even the most serious incidents (e.g., 
forced penetration) say they do not report the event because they do 
not consider it `serious enough.' '').
---------------------------------------------------------------------------

    Several commenters argued that the Federal government should stand 
by a zero-tolerance policy against sexual harassment, and that applying 
a narrow definition means that some forms of harassment are acceptable, 
contrary to Title IX's bar on sex discrimination. Several commenters 
argued that the Sec.  106.30 definition will allow abusers to do 
everything just short of the narrowed standard while keeping their 
victims in a hostile environment, further silencing victims.
    A few commenters stated that if a student believes conduct ``makes 
me feel uncomfortable,'' that should be sufficient to require the 
school to respond. At least one commenter suggested that the final 
regulations provide guidance on what misconduct is actionable by using 
behavioral measures such as the Sexual

[[Page 30153]]

Experiences Survey \672\ or the Sexual Experiences Questionnaire.\673\
---------------------------------------------------------------------------

    \672\ Commenters cited: Mary Koss & Cheryl J. Oros, Sexual 
Experiences Survey: A research instrument investigating sexual 
aggression and victimization, 50 Journal of Consulting & Clinical 
Psychol. 3 (1982).
    \673\ Commenters cited: Louise Fitzgerald et al., Measuring 
sexual harassment: Theoretical and psychometric advances, 17 Basic & 
Applied Social Psychol. 4 (1995).
---------------------------------------------------------------------------

    At least one commenter argued that the language of offensiveness 
and severity clouds the necessary understanding of unequal power 
relations and negates a culture of consent. Several commenters asserted 
that a definition of sexual harassment that holds up only the dramatic 
and extreme as worthy of investigation would do little to change rape 
culture. Many commenters argued that while individual acts are rarely 
pervasive, individual acts across a society can result in pervasiveness 
throughout society so that what seem like one-off or minor incidents, 
or ``normal'' sexual gestures and conventions, actually do create a 
pervasive rape culture because they are rooted in patriarchy (for 
example, a culture that accepts statements like ``these women come to 
parties to get laid''), misunderstanding or ignorance of consent (for 
example, ``she didn't say no'' despite several cues of discomfort and 
unwillingness), and lack of support from authority figures (for 
example, reactions from school personnel like ``boys will be boys,'' or 
``this is just college campus culture''). Some commenters argued that 
to achieve a drop in cases of sexual misconduct, even seemingly minor 
incidents that make women feel threatened need to be taken seriously.
    Similarly, a few commenters argued that the threat of potential 
violence against women permeates American society and interferes with 
educational equity. At least one commenter argued that young women 
already are affected in many ways by the constant presence of potential 
violence, such that women feel that they cannot be alone with another 
student for study group purposes, with a teaching assistant to get 
extra help, or with a professor during office hours. This commenter 
further stated that young women already do not feel safe attending an 
academic function if it means walking to her car in the dark, or 
collaborating online for fear of enduring cyber harassment. A few 
commenters argued that a narrow definition of harassment ignores the 
scope of gender-based violence in our society and does nothing to 
address patterns of harassment as opposed to just an individual case 
that moves through a formal process.
    A few commenters asserted by adding the ``and'' between ``severe, 
pervasive and objectively offensive'' survivors will be forced to 
quantify their suffering to fit into an imaginary scale determined 
according to a pass or fail rubric and artificially create categories 
of legitimate and illegitimate misconduct, when misconduct that is 
either severe or pervasive or objectively offensive should be more than 
enough to warrant stopping the misconduct. Many commenters opined that 
the Sec.  106.30 definition sets an arbitrary and unnecessarily high 
threshold for when conduct would even constitute harassment. Many 
commenters viewed the Sec.  106.30 definition as raising the burden of 
proof on victims to an unnecessary degree, making their reporting 
process more strenuous and exhausting, and requiring survivors to prove 
their abuse is worthy of attention. Other commenters noted that the 
burden is on recipients to show the severity of the reported conduct 
yet asserted that survivors will still feel pressured to present their 
complaint in a certain way in order to be perceived as credible enough. 
A few commenters asserted that this raises concerns especially for 
people with disabilities, who may react to and communicate about trauma 
differently. At least one commenter stated that to the extent that the 
Sec.  106.30 definition is in response to the perception that students 
and Title IX Coordinators have been pursuing a lot of formal complaints 
over low-level harassment, such a perception is inaccurate.
    Many commenters argued that what is severe, pervasive, and 
objectively offensive leaves too much room for interpretation and will 
be subject to the biases of Title IX Coordinators and other school 
administrators. Another commenter expressed concern that schools would 
have too much discretion to decide whether conduct was severe, 
pervasive, and offensive and this will lead to arbitrary decisions to 
turn away reporting parties. Several commenters asserted that 
permitting administrators to judge the severity, pervasiveness, and 
offensiveness of reported conduct will foster a culture of 
institutional betrayal because some institutions will choose to 
investigate misconduct while others will not. A few commenters asserted 
that courts have found some unwanted sexual behavior (for example, a 
supervisor forcibly kissing an employee) is not severe and pervasive 
even though such behavior may constitute criminal assault or battery 
under State laws and that a definition of sexual harassment must at 
least cover misconduct that would be considered criminal.
    Several commenters argued that a narrow definition would contribute 
to the overall effect of the proposed rules to eliminate most sexual 
harassment from coverage under Title IX, to the point of absurdity. 
Several commenters asserted that research shows that narrow definitions 
of sexual assault indicate that reports will decrease while underlying 
violence does not decrease.\674\ At least one commenter argued that the 
proposed rules seek to use a single definition of sexual harassment in 
all settings, from prekindergarten all the way up to graduate school, 
and this lack of a nuanced approach fails to take into account the vast 
developmental differences between children, young adults, and college 
and graduate students. One commenter stated that especially for 
community college students, whose connections to a physical campus and 
its resources can be limited, a narrower definition of sexual 
harassment with ``severe and pervasive'' rather than ``severe or 
pervasive'' could make it harder for reporting parties to prove their 
victimization.
---------------------------------------------------------------------------

    \674\ Commenters cited: Mary P. Koss, The Scope of Rape: 
Incidence and Prevalence of Sexual Aggression and Victimization in a 
National Sample of Higher Education Students, 55 Journal of 
Consulting & Clinical Psychol. 2 (1987).
---------------------------------------------------------------------------

    One commenter asserted that conduct that may not be considered 
severe in an isolated instance can qualify as severe when that conduct 
is pervasive, because ``severe'' and ``pervasive'' should not always 
entail two separate inquiries. One commenter suggested that the second 
prong of Sec.  106.30 be changed to mirror the Title IX statute, by 
using the phrase ``causes a person to be excluded from participation 
in, be denied the benefits of, or be subjected to discrimination under 
any education program or activity.''
    Discussion: The Department appreciates the opportunity to clarify 
that sexual assault (which includes rape) is referenced in the third 
prong of the Sec.  106.30 definition of ``sexual harassment,'' while 
the Davis standard (with the elements of severe, pervasive, and 
objectively offensive) is the second prong. This means that any report 
of sexual assault (including rape) is not subject to the Davis elements 
of whether the incident was ``severe, pervasive, and objectively 
offensive.'' Thus, contrary to commenters' concerns, the final 
regulations do not require rape or sexual assault incidents to be 
``scrutinized for severity,'' rated on a pain scale, or leave students 
to be repeatedly or violently

[[Page 30154]]

raped before a recipient must intervene. The Department intentionally 
did not want to leave students (or employees) wondering if a single act 
of sexual assault might not meet the Davis standard, and therefore 
included sexual assault (and, in the final regulations, dating 
violence, domestic violence, and stalking) as a stand-alone type of 
sexual harassment that does not need to demonstrate severity, 
pervasiveness, objective offensiveness, or denial of equal access to 
education, because denial of equal access is assumed. Complainants can 
feel confident turning to their school, college, or university to 
report and receive supportive measures in the wake of a sexual assault, 
without wondering whether sexual assault is ``bad enough'' to report. 
The Department understands that research shows that rape victims often 
do not report due to misconceptions about what rape is (e.g., a 
misconception that rape must involve violence inflicted by a stranger), 
and that rape victims may minimize their own experience and not report 
sexual assault, for a number of reasons.\675\ The definition of sexual 
assault referenced in Sec.  106.30 broadly defines sexual assault to 
include all forcible and nonforcible sex offenses described in the 
FBI's Uniform Crime Reporting system. Those offenses do not require an 
element of physical force or violence, but rather turn on lack of 
consent of the victim. The Department believes that these definitions 
form a sufficiently broad definition of sexual assault that reflects 
the range of sexually violative experiences that traumatize victims and 
deny equal access to education. The Department believes that by 
utilizing a broad definition of sexual assault, these final regulations 
will contribute to greater understanding on the part of victims and 
perpetrators as to the type of conduct that constitutes sexual assault. 
The FBI's Uniform Crime Reporting system similarly does not exclude 
from sexual assault perpetration by a person known to the victim 
(whether as an acquaintance, romantic date, or intimate partner 
relationship), and the final regulations' express inclusion of dating 
violence and domestic violence reinforces the reality that sex-based 
violence is often perpetrated by persons known to the victim rather 
than by strangers.
---------------------------------------------------------------------------

    \675\ The Association of American Universities, Report on the 
AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct iv 
(Westat 2015) (``More than 50 percent of the victims of even the 
most serious incidents (e.g., forced penetration) say they do not 
report the event because they do not consider it ``serious 
enough.'').
---------------------------------------------------------------------------

    As to unwelcome conduct that is not quid pro quo harassment, and is 
not a Clery Act/VAWA offense included in Sec.  106.30, the Davis 
standard embodied in the second prong of the Sec.  106.30 definition 
applies. The Department understands commenters' concerns that this 
means that only ``the most severe'' harassment situations will be 
investigated and that complainants will feel deterred from reporting 
non-sexual assault harassment due to wondering if the harassment is 
``bad enough'' to be covered under Title IX. The Department understands 
that research shows that even ``less severe'' forms of sexual 
harassment may cause negative outcomes for those who experience it. The 
Department believes, however, that severity and pervasiveness are 
needed elements to ensure that Title IX's non-discrimination mandate 
does not punish verbal conduct in a manner that chills and restricts 
speech and academic freedom, and that recipients are not held 
responsible for controlling every stray, offensive remark that passes 
between members of the recipient's community. The Department does not 
believe that evaluating verbal harassment situations for severity, 
pervasiveness, and objective offensiveness will chill reporting of 
unwelcome conduct, because recipients retain discretion to respond to 
reported situations not covered under Title IX. Thus, recipients may 
encourage students (and employees) to report any unwanted conduct and 
determine whether a recipient must respond under Title IX, or chooses 
to respond under a non-Title IX policy.
    The Department believes that the Supreme Court's Gebser and Davis 
opinions provide the appropriate principles to guide the Department 
with respect to appropriate interpretation and enforcement of Title IX 
as a non-sex discrimination statute. Title IX is not an anti-sexual 
harassment statute; Title IX prohibits sex discrimination in education 
programs or activities. The Supreme Court has held that sexual 
harassment may constitute sex discrimination under Title IX, but only 
when the sexual harassment is so severe, pervasive, and objectively 
offensive that it effectively denies a person's equal access to 
education. Title IX does not represent a ``zero tolerance'' policy 
banning sexual harassment as such, but does exist to provide effective 
protections to individuals against discriminatory practices, within the 
parameters set forth under the Title IX statute (20 U.S.C. 1681 et 
seq.) and Supreme Court case law. While the Supreme Court interpreted 
the level of harassment differently under Title VII than under Title 
IX, neither Federal non-sex discrimination civil rights law represents 
a ``zero-tolerance'' policy banning all sexual harassment.\676\ Rather, 
interpretations of both Title VII and Title IX focus on sexual 
harassment that constitutes sex discrimination interfering with equal 
participation in a workplace or educational environment, respectively. 
Contrary to the concerns of commenters, the fact that not every 
instance of sexual harassment violates Title VII or Title IX does not 
mean that sexual harassment not covered under one of those laws is 
``acceptable'' or encourages perpetration of sexual harassment.\677\ 
The Department does not believe that parameters around what constitutes 
actionable sexual harassment under a Federal civil rights statute 
creates an environment where abusers ``do everything just short of the 
narrowed standard'' to torment and silence victims. A course of 
unwelcome conduct directed at a victim to keep the victim fearful or 
silenced likely crosses over into ``severe, pervasive, and objectively 
offensive'' conduct actionable under Title IX. Whether or not 
misconduct is actionable under Title IX, it may be actionable under 
another part of a recipient's code of conduct (e.g., anti-bullying). 
These final regulations only prescribe a recipient's mandatory response 
to conduct that

[[Page 30155]]

does meet the Sec.  106.30 definition of sexual harassment; these final 
regulations do not preclude a recipient from addressing other types of 
misconduct.
---------------------------------------------------------------------------

    \676\ E.g., Chesier v. On Q Financial Inc., 382 F. Supp. 3d 918, 
925-26 (D. Ariz. 2019) (reviewing Title VII cases involving single 
instances of sexual harassment determined not to be sufficiently 
severe enough to affect a term of employment under Title VII) (``not 
all workplace conduct that may be described as `harassment' affects 
a term, condition, or privilege of employment within the meaning of 
Title VII. . . . For sexual harassment to be actionable, it must be 
sufficiently severe or pervasive to alter the conditions of [the 
victim's] employment and create an abusive working environment.'') 
(citing to Meritor, 477 U.S. at 67) (emphasis and brackets in 
original); Julie Davies, Assessing Institutional Responsibility for 
Sexual Harassment in Education, 77 Tulane L. Rev. 387, 398, 407 
(2002) (``Although the Court adopted different standards for 
institutional liability under Titles VII and IX, several themes 
serve as leitmotifs, running through the cases regardless of the 
technical differences. Neither Title VII nor Title IX is construed 
as a federal civility statute; the Court does not want entities to 
be obliged to litigate cases where plaintiffs have been subjected to 
`minor' annoyances and insults.'') (internal citation omitted).
    \677\ See, e.g., Brooks v. City of San Mateo, 229 F.3d 917, 927 
(9th Cir. 2000) (``Our holding in no way condones [the supervisor's] 
actions. Quite the opposite: The conduct of which [the plaintiff] 
complains was highly reprehensible. But, while [the supervisor] 
clearly harassed [the plaintiff] as she tried to do her job, not all 
workplace conduct that may be described as harassment affects a 
term, condition, or privilege of employment within the meaning of 
Title VII. The harassment here was an entirely isolated incident. It 
had no precursors, and it was never repeated. In no sense can it be 
said that the city imposed upon [the plaintiff] the onerous terms of 
employment for which Title VII offers a remedy.'') (internal 
quotation marks and citation omitted).
---------------------------------------------------------------------------

    For the same reasons that Title IX does not stand as a zero-
tolerance ban on all sexual harassment, Title IX does not stand as a 
Federal civil rights law to prevent all conduct that ``makes me feel 
uncomfortable.'' The Supreme Court noted in Davis that school children 
regularly engage in ``insults, banter, teasing, shoving, pushing, and 
gender-specific conduct that is upsetting to the students subjected to 
it'' yet a school is liable under Title IX for responding to such 
behavior only when the conduct is ``so severe, pervasive, and 
objectively offensive that it denies its victims the equal access to 
education that Title IX is designed to protect.'' \678\ Though not 
specifically in the Title IX context, the Supreme Court has noted that 
speech and expression do not lose First Amendment protections on 
college campuses, and in fact, colleges and universities represent 
environments where it is especially important to encourage free 
exchange of ideas, viewpoints, opinions, and beliefs.\679\ The 
Department believes that the Davis formulation, applied to unwelcome 
conduct that is not quid pro quo harassment and not a Clery Act/VAWA 
offense included in Sec.  106.30, appropriately safeguards free speech 
and academic freedom,\680\ while requiring recipients to respond even 
to verbal conduct so serious that it loses First Amendment protection 
and denies equal access to the recipient's educational benefits.
---------------------------------------------------------------------------

    \678\ Davis, 526 U.S. at 650-51; see also Azhar Majeed, The 
Misapplication of Peer Harassment Law on College and University 
Campuses and the Loss of Student Speech Rights, 35 Journal of Coll. 
& Univ. L. 385, 399 (2009) (``misapplication of harassment law . . . 
has contributed to a sense among students that there is a general 
`right' not to be offended'--a false notion that ill serves students 
as they transition from the relatively insulated college or 
university setting to the larger society. Colleges and universities 
too often address the problems of sexual and racial harassment by 
targeting any expression which may be perceived by another as 
offensive or undesirable.'') (citing Alan Charles Kors & Harvey A. 
Silverglate, The Shadow University: The Betrayal of Liberty on 
America's Campuses (Free Press 1998) (``At almost every college and 
university, students deemed members of `historically oppressed 
groups' . . . are informed during orientations that their campuses 
are teeming with illegal or intolerable violations of their `right' 
not to be offended.'')).
    \679\ Healy v. James, 408 U.S. 169, 180-81 (1972) (``At the 
outset we note that state colleges and universities are not enclaves 
immune from the sweep of the First Amendment. `It can hardly be 
argued that either students or teachers shed their constitutional 
rights to freedom of speech or expression at the schoolhouse gate.' 
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 
(1969). Of course, as Mr. Justice Fortas made clear in Tinker, First 
Amendment rights must always be applied `in light of the special 
characteristics of the . . . environment in the particular case.' 
Ibid. And, where state-operated educational institutions are 
involved, this Court has long recognized `the need for affirming the 
comprehensive authority of the States and of school officials, 
consistent with fundamental constitutional safeguards, to prescribe 
and control conduct in the schools.' Id., at 507. Yet, the 
precedents of this Court leave no room for the view that, because of 
the acknowledged need for order, First Amendment protections should 
apply with less force on college campuses than in the community at 
large. Quite to the contrary, `(t)he vigilant protection of 
constitutional freedoms is nowhere more vital than in the community 
of American schools.' The college classroom with its surrounding 
environs is peculiarly the `marketplace of ideas,' and we break no 
new constitutional ground in reaffirming this Nation's dedication to 
safeguarding academic freedom.'') (internal citations omitted).
    \680\ As noted in the ``Role of Due Process in the Grievance 
Process'' section of this preamble, the Department is aware that 
Title IX applies to all recipients operating education programs or 
activities regardless of a recipient's status as a public 
institution with obligations to students and employees under the 
U.S. Constitution or as a private institution not subject to the 
U.S. Constitution. However, the principles of free speech, and of 
academic freedom, are crucial in the context of both public and 
private institutions. E.g., Kelly Sarabynal, 39 Journal of L. & 
Educ. 145, 145, 181-82 (2010) (noting that ``The vast majority of 
[public and private] universities in the United States promote 
themselves as institutions of free speech and thought, construing 
censorship as antipathetic to their search for knowledge'') and 
observing that where public universities restrict speech (for 
example, through anti-harassment or anti-hate speech codes) the 
First Amendment ``solves the conflict between a university's 
policies promising free speech and its speech-restrictive policies 
by rendering the speech-restrictive policies unconstitutional'' and 
arguing that as to private universities, First Amendment principles 
embodied in a private university's policies should be enforced 
contractually against the university so that private liberal arts 
and research universities are held ``to their official promises of 
free speech'' which leaves private institutions control over 
changing their official promises of free speech if they so choose, 
for instance if the private institution expects students to ``abide 
by the dictates of the university's ideology''). The Department is 
obligated to interpret and enforce Federal laws consistent with the 
U.S. Constitution. E.g., Edward J. DeBartolo Corp. v. Fla. Gulf 
Coast Bldg. and Constr. Trades Council, 485 U.S. 568, 574-575 (1988) 
(refusing to give deference to an agency's interpretation of a 
statute where the interpretation raised First Amendment concerns); 
2001 Guidance at 22. While the Department has recognized the 
importance of responding to sexual harassment under Title IX while 
protecting free speech and academic freedom since 2001, as explained 
in the ``Adoption and Adaption of the Supreme Court Framework to 
Address Sexual Harassment'' section of this preamble, protection of 
free speech and academic freedom was weakened by the Department's 
use of wording that differed from the Davis definition of what 
constitutes actionable sexual harassment under Title IX and for 
reasons discussed in this section of the preamble, these final 
regulations return to the Davis definition verbatim, while also 
protecting against even single instances of quid pro quo harassment 
and Clery/VAWA offenses, which are not entitled to First Amendment 
protection.
---------------------------------------------------------------------------

    While the Department appreciates a commenter's suggestion to 
describe prohibited conduct by references to terms used in the Sexual 
Experiences Survey or the Sexual Experiences Questionnaire,\681\ for 
the above reasons the Department believes that the better formulation 
of prohibited conduct under Title IX is captured in Sec.  106.30, 
prohibiting conduct on the basis of sex that is either quid pro quo 
harassment, unwelcome conduct so severe, pervasive, and objectively 
offensive that it effectively denies a person equal access to 
education, or sexual assault, dating violence, domestic violence, or 
stalking under the Clery Act and VAWA.
---------------------------------------------------------------------------

    \681\ Mary Koss & Cheryl J. Oros, Sexual Experiences Survey: A 
research instrument investigating sexual aggression and 
victimization, 50 Journal of Consulting & Clinical Psychol. 3 (1982) 
(discussing survey questions designed to assess experiences with 
sexual harassment consisting of a series of questions about whether 
a respondent has encountered specific examples of sexual behavior); 
Louise Fitzgerald et al., Measuring sexual harassment: Theoretical 
and psychometric advances, 17 Basic & Applied Social Psychol. 4 
(1995).
---------------------------------------------------------------------------

    The Department understands commenters' concerns that the Sec.  
106.30 definition of sexual harassment, and the Davis standard in the 
second prong particularly, does not sufficiently acknowledge unequal 
power relations and societal factors that contribute to perpetuation of 
violence against women, and commenters' arguments that in order to 
reduce the prevalence of sexual misconduct across society even minor-
seeming incidents should be taken seriously. The Department believes 
that the Supreme Court's recognition of sexual harassment as a form of 
sex discrimination \682\ represents an important acknowledgement that 
sexual harassment often is not a matter of private, individualized 
misbehavior but is representative of sex-based notions and attitudes 
that contribute to systemic sex discrimination. However, the Department 
heeds the Supreme Court's interpretation of sexual harassment as sex 
discrimination under Title IX, premised on conditions that hold 
recipients liable for how to respond to sexual harassment. The Sec.  
106.30 definition of sexual harassment adopts the Supreme Court's Davis 
definition, adapted under the Department's administrative enforcement 
authority to provide broader protections for students (i.e., by 
ensuring that quid pro quo harassment and Clery Act/VAWA

[[Page 30156]]

offenses included in Sec.  106.30 count as sexual harassment without 
meeting the Davis standard). Similarly, the Department believes that by 
clearly defining sexual harassment to include sexual assault, dating 
violence, domestic violence, and stalking, affected parties will 
understand that no instance of sexual violence is tolerated under Title 
IX and may reduce the fear commenters described being felt by some 
young women participating in educational activities that involve 
proximity with fellow students or professors.
---------------------------------------------------------------------------

    \682\ E.g., Meritor, 477 U.S. at 64 (``Without question, when a 
supervisor sexually harasses a subordinate because of the 
subordinate's sex, that supervisor `discriminate[s]' on the basis of 
sex.''); Gebser, 524 U.S. at 283 (reference in Franklin to Meritor 
``was made with regard to the general proposition that sexual 
harassment can constitute discrimination on the basis of sex under 
Title IX, . . . an issue not in dispute here.'') (internal citations 
omitted).
---------------------------------------------------------------------------

    The Department does not believe that the Sec.  106.30 definition 
creates categories of ``legitimate'' sexual misconduct or makes victims 
prove that their abuse is worthy of attention. The three-pronged 
definition of sexual harassment in Sec.  106.30 captures physical and 
verbal conduct serious enough to warrant the label ``abuse,'' and 
thereby assures complainants that sex-based abuse is worthy of 
attention and intervention by a complainant's school, college, or 
university. The Department appreciates the opportunity to clarify that 
the burden of describing or proving elements of the Sec.  106.30 
definition does not fall on complainants; there is no magic language 
needed to ``present'' a report or formal complaint in a particular way 
to trigger a recipient's response obligations. Rather, the burden is on 
recipients to evaluate reports of sexual harassment in a common sense 
manner with respect to whether the facts of an incident constitute one 
(or more) of the three types of misconduct described in Sec.  106.30. 
This includes taking into account a complainant's age, disability 
status, and other factors that may affect how an individual complainant 
describes or communicates about a situation involving unwelcome sex-
based conduct.
    The Department disagrees with commenters' contention that Sec.  
106.30 gives school officials too much discretion to decide whether 
conduct was severe, pervasive, and objectively offensive or that these 
elements will lead to arbitrary decisions to turn away reporting 
parties based on biases of school administrators, fostering a culture 
of institutional betrayal, or that the Sec.  106.30 definition 
eliminates ``most'' sexual harassment from coverage under Title IX, or 
that this definition is problematic because not all unwanted sexual 
behavior is severe and pervasive. Elements of severity, pervasiveness, 
and objective offensiveness must be evaluated in light of the known 
circumstances and depend on the facts of each situation, but must be 
determined from the perspective of a reasonable person standing in the 
shoes of the complainant. The final regulations revise the second prong 
of the Sec.  106.30 definition to state that the Davis elements must be 
determined under a reasonable person standard. Title IX Coordinators 
are specifically required under the final regulations to serve 
impartially, without bias for or against complainants or respondents 
generally or for or against an individual complainant or 
respondent.\683\ A recipient that responds to a report of sexual 
harassment in a manner that is clearly unreasonable in light of the 
known circumstances violates the final regulations,\684\ incentivizing 
Title IX Coordinators and other recipient officials to carefully, 
thoughtfully, and reasonably evaluate each complainant's report or 
formal complaint.
---------------------------------------------------------------------------

    \683\ Section 106.45(b)(1)(iii).
    \684\ Section 106.44(a).
---------------------------------------------------------------------------

    The Department appreciates commenters' contention that recipients' 
Title IX offices have not been processing great quantities of ``low-
level'' harassment cases; however, if that is accurate, then the Sec.  
106.30 definition simply will continue to ensure that sexual harassment 
is adequately addressed under Title IX, for the benefit of victims of 
sexual harassment. Far from excluding ``most'' sexual harassment from 
Title IX coverage, the definition of sexual harassment in Sec.  106.30 
requires recipients to respond to three separate broadly-defined 
categories of sexual harassment. While not all unwanted sexual conduct 
is both severe and pervasive, as explained above, the Supreme Court has 
long acknowledged that not all misconduct amounts to sex discrimination 
prohibited by Federal civil rights laws like Title VII and Title IX, 
even where the misconduct amounts to a criminal violation under State 
law.\685\ Where a Federal civil rights law does not find sexual 
harassment to also constitute prohibited sex discrimination, this does 
not mean the conduct is acceptable or does not constitute a different 
violation, such as assault or battery, under non-sex discrimination 
laws. The Department does not believe that the Sec.  106.30 definition 
of sexual assault is a ``narrow'' definition, as it includes all 
forcible and nonforcible sex offenses described in the FBI's Uniform 
Crime Reporting system and thus this definition will not discourage 
reporting of sexual assault.
---------------------------------------------------------------------------

    \685\ See, e.g., Brooks v. City of San Mateo, 229 F.3d 917, 924, 
927 (9th Cir. 2000) (Plaintiff alleged a workplace sexual assault in 
the form of a supervisor fondling plaintiff's breast, which is 
``egregious'' and the perpetrator ``spent time in jail'' for the 
assault, yet the Court held that ``[t]he harassment here was an 
entirely isolated incident. It had no precursors, and it was never 
repeated. In no sense can it be said that the city imposed upon [the 
plaintiff] the onerous terms of employment for which Title VII 
offers a remedy.''); see also Davis, 526 U.S. at 634 (noting that 
the peer harasser in that case was charged with, and pled guilty to, 
sexual battery, yet still evaluating the harassment by whether it 
amounted to severe, pervasive, objectively offensive conduct).
---------------------------------------------------------------------------

    The Department disagrees that it is inappropriate to use a uniform 
definition of sexual harassment in elementary and secondary school and 
postsecondary institution contexts. No person, of any age or 
educational level, should endure quid pro quo harassment, severe, 
pervasive, objectively offensive unwelcome conduct, or a Clery Act/VAWA 
offense included in Sec.  106.30, without recourse from their school, 
college, or university. The Sec.  106.30 definition applies equally in 
every educational setting, yet the definition may be applied in a 
common sense manner that takes into account the ages and developmental 
abilities of the involved parties.
    The Department disagrees with a commenter's contention that 
community college students will find it more difficult to report sexual 
harassment because such students have less of a connection to a 
physical campus. Under Sec.  106.8 of the final regulations, contact 
information for the Title IX Coordinator, including an office address, 
telephone number, and email address, must be posted on the recipient's 
website, and that provision expressly states that any person may report 
sexual harassment by using the Title IX Coordinator's contact 
information. We believe this will simplify the process for community 
college students, as well as other complainants, to make a report to 
the recipient's Title IX Coordinator.
    The Department disagrees with a commenter's assertion that 
pervasiveness necessarily transforms harassment into also being severe, 
because these elements are separate inquiries; however, the Department 
reiterates that a course of conduct reported as sexual harassment must 
be evaluated in the context of the particular factual circumstances, 
under a reasonable person standard, when determining whether the 
conduct is both severe and pervasive. The Department appreciates a 
commenter's suggestion to revise the second prong of the Sec.  106.30 
definition by stating that severe, pervasive, objectively offensive 
conduct counts when it ``causes a person to be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any education program or activity'' instead of 
``effectively denies a

[[Page 30157]]

person equal access to the recipient's education program or activity'' 
to more closely mirror the language in the Title IX statute. However, 
as discussed above, the Department notes that when considering sexual 
harassment as a form of sex discrimination under Title IX, the Supreme 
Court in Davis repeatedly used the ``denial of equal access'' phrase to 
describe when sexual harassment is actionable, implying that this is 
the equivalent of a violation of Title IX's prohibition on exclusion 
from participation, denial of benefits, and/or subjection to 
discrimination.\686\ We believe this element as articulated by the 
Davis Court thus represents the full scope and intent of the Title IX 
statute.
---------------------------------------------------------------------------

    \686\ Davis, 526 U.S. at 650 (``The statute's other 
prohibitions, moreover, help give content to the term 
`discrimination' in this context. Students are not only protected 
from discrimination, but also specifically shielded from being 
`excluded from participation in' or `denied the benefits of' any 
`education program or activity receiving Federal financial 
assistance.' 20 U.S.C. 1681(a). The statute makes clear that, 
whatever else it prohibits, students must not be denied access to 
educational benefits and opportunities on the basis of gender. We 
thus conclude that funding recipients are properly held liable in 
damages only where they are deliberately indifferent to sexual 
harassment, of which they have actual knowledge, that is so severe, 
pervasive, and objectively offensive that it can be said to deprive 
the victims of access to the educational opportunities or benefits 
provided by the school.''); id. at 644-45 (holding that a recipient 
is liable where its ``deliberate indifference `subjects' its 
students to harassment--``[t]hat is, the deliberate indifference 
must, at a minimum, `cause [students] to undergo' harassment or 
`make them liable or vulnerable' to it.''); id. at 650-652 
(expressing the denial of access element in different ways as 
``depriv[ing] the victims of access to the educational opportunities 
or benefits provided by the school,'' ``effectively den[ying] equal 
access to an institution's resources and opportunities,'' and 
``den[ying] its victims the equal access to education that Title IX 
is designed to protect.'').
---------------------------------------------------------------------------

    Changes: We have revised the Sec.  106.30 definition of sexual 
harassment by specifying that the elements in the Davis definition of 
sexual harassment (severe, pervasive, objectively offensive, and denial 
of equal access) are determined under a reasonable person standard.
    Comments: Several commenters described State laws under which a 
recipient is required to respond to a broader range of misconduct than 
what meets the Davis standard, and stated that the NPRM places 
recipients in a ``Catch-22'' by requiring recipients to dismiss cases 
that do not meet the narrower Sec.  106.30 definition; one such 
commenter urged the Department to either broaden the definition of 
sexual harassment or remove the mandatory dismissal provision in Sec.  
106.45(b)(3). A few commenters requested clarification on whether a 
school may choose to include a wider range of misconduct than conduct 
that meets this definition. Many commenters urged the Department not to 
prevent recipients from addressing misconduct that does not meet the 
Sec.  106.30 definition because State laws and institutional policies 
often require recipients to respond. A few commenters asserted that 
even if the final regulations allow recipients to choose to address 
misconduct that does not meet the Sec.  106.30 definition, this creates 
two different processes and standards (one for ``Title IX sexual 
harassment'' and one for other sexual misconduct) which will lead to 
confusion and inefficiency. At least one commenter stated that the 
Title IX equitable process should be used for all sexual misconduct 
violations such that the final regulations should allow recipients to 
use that process for Title IX, VAWA, Clery Act, and State law sex and 
gender offenses under a single campus policy and process. At least one 
commenter recommended that the Department clarify that the final 
regulations establish minimum Federal standards for responses to sex 
discrimination and that recipients retain discretion to exceed those 
minimum standards.
    Discussion: The Department is aware that various State laws define 
actionable sexual harassment differently than the Sec.  106.30 
definition, and that the NPRM's mandatory dismissal provision created 
confusion among commenters as to whether the NPRM purported to forbid a 
recipient from addressing conduct that does not constitute sexual 
harassment under Sec.  106.30. In response to commenters' concerns, the 
final regulations revise Sec.  106.45(b)(3)(i) \687\ to clearly state 
that dismissal for Title IX purposes does not preclude action under 
another provision of the recipient's code of conduct. Thus, if a 
recipient is required under State law or the recipient's own policies 
to investigate sexual or other misconduct that does not meet the Sec.  
106.30 definition, the final regulations clarify that a recipient may 
do so. Similarly, if a recipient wishes to use a grievance process that 
complies with Sec.  106.45 to resolve allegations of misconduct that do 
not constitute sexual harassment under Sec.  106.30, nothing in the 
final regulations precludes a recipient from doing so. Alternatively, a 
recipient may respond to non-Title IX misconduct under disciplinary 
procedures that do not comply with Sec.  106.45. The final regulations 
leave recipients flexibility in this regard, and prescribe a particular 
grievance process only where allegations concern sexual harassment 
covered by Title IX. The Department does not agree that this results in 
inefficiency or confusion, because so long as a recipient complies with 
these final regulations for Title IX purposes, a recipient retains 
discretion as to how to address non-Title IX misconduct. Because the 
final regulations extend the Sec.  106.30 definition to include all 
four Clery Act/VAWA offenses (sexual assault, dating violence, domestic 
violence, stalking), the Title IX grievance process will apply to 
formal complaints alleging the Clery Act/VAWA offenses included in 
Sec.  106.30, and recipients may choose to use the same process for 
State-law offenses, too.
---------------------------------------------------------------------------

    \687\ Section 106.45(b)(3)(i) (``The recipient must investigate 
the allegations in a formal complaint. If the conduct alleged by the 
complainant would not constitute sexual harassment as defined in 
Sec.  106.30 even if proved, did not occur in the recipient's 
education program or activity, or did not occur against a person in 
the United States, then the recipient must dismiss the formal 
complaint with regard to that conduct for purposes of sexual 
harassment under title IX or this part; such a dismissal does not 
preclude action under another provision of the recipient's code of 
conduct.'') (emphasis added).
---------------------------------------------------------------------------

    The Department appreciates a commenter's suggestion to clarify (and 
does so here) that the final regulations establish Federal standards 
for responding to sex discrimination in the form of sexual harassment, 
and recipients retain discretion to respond to more conduct than what 
these final regulations require.
    Changes: The final regulations revise Sec.  106.45(b)(3)(i) to 
clearly state that dismissal for Title IX purposes does not preclude 
action under another provision of the recipient's code of conduct.
    Comments: Many commenters opposed the second prong of the Sec.  
106.30 sexual harassment definition by giving examples of harassing 
conduct that might not be covered. One such commenter stated that the 
``severe and pervasive'' standard will conflict with elementary and 
secondary school anti-bullying policies, asserting that, for example, a 
classmate repeatedly taunting a girl about her breasts may not be 
considered both severe and pervasive enough to fall under the proposed 
rules, whereas a similarly-described scenario was clearly covered under 
the 2001 Guidance (at p. 6).
    A few commenters raised examples such as snapping a girl's bra, 
casual jokes and comments of a sexual nature, or unwelcome emails with 
sexual content, which commenters asserted can be ignored under Sec.  
106.30 because the unwanted behavior might be considered not severe 
even though it is pervasive, leaving victims in a state of anxiety and 
negatively impacting victims' ability to access education.
    One commenter asserted that under Sec.  106.30, a professor 
whispering sexual

[[Page 30158]]

comments to a female student would be ``severe'' but since it happened 
once it would not be ``pervasive'' so even if the female student felt 
alarmed and uncomfortable and dropped that class, the recipient would 
not be obligated to respond. The same commenter asserted that the 
following example would not be sexual harassment under Sec.  106.30 
because the conduct would be pervasive but not severe: A graduate 
assistant emails an undergraduate student multiple times per week for 
two months, commenting each time in detail about what the student wears 
and how she looks, making the student feel uncomfortable about the 
unwanted attention to the point where she drops the class.
    One commenter described attending a holiday party for graduate 
students where a fellow student wore a shirt with the words ``I'm just 
here for the gang bang'' and while the offensive shirt did not prevent 
the commenter from continuing an education it made the commenter feel 
unsafe and showed how deep-seated toxic rape culture is on college 
campuses; the commenter contended that narrowing the definition of 
harassment will only perpetuate this culture.
    One commenter recounted the experience of a friend who was drugged 
at a dorm party; the commenter contended that because the boys who 
drugged the girl did not also rape her, the situation would not even be 
investigated under the new Title IX rules even though an incident of 
boys drugging a girl creates a dangerous, ongoing threat on campus.
    One commenter urged the Department to authorize recipients to 
create lists of situations that constitute per se harassment, for 
example where a recipient receives multiple reports of students having 
their towels tugged away while walking to the dorm bathrooms, or 
reports of students lifting the skirts or dresses of other students. 
The commenter asserted that creating lists of such per se violations 
will create more consistent application of the harassment definition 
within recipient communities and address problematic situations that 
occur frequently at some institutions.
    Discussion: In response to commenters who presented examples of 
misconduct that they believe may not be covered under the Davis 
standard in the second prong of the Sec.  106.30 definition, the 
Department reiterates that whether or not an incident of unwanted sex-
based conduct meets the Davis elements is a fact-based inquiry, 
dependent on the circumstances of the particular incident. However, the 
Department does not agree with some commenters who speculated that 
certain examples would not meet the Davis standard, and encourages 
recipients to use common sense in evaluating conduct under a reasonable 
person standard, by taking into account the ages and abilities of the 
individuals involved in an incident or course of conduct.
    Furthermore, the Department reiterates that the Davis standard is 
only one of three categories of conduct on the basis of sex prohibited 
under Sec.  106.30, and incidents that do not meet the Davis standard 
may therefore still constitute sexual harassment under Sec.  106.30 
(for example, as fondling, stalking, or quid pro quo harassment). The 
Department also reiterates that inappropriate or illegal behavior may 
be addressed by a recipient even if the conduct clearly does not meet 
the Davis standard or otherwise constitute sexual harassment under 
Sec.  106.30, either under a recipient's own code of conduct or under 
criminal laws in a recipient's jurisdiction (e.g., with respect to a 
commenter's example of drugging at a dorm party).
    The Department understands commenters' concerns that anything less 
than the broadest possible definition of actionable harassment may 
result in some situations that make a person feel unsafe or 
uncomfortable without legal recourse under Title IX; however, for the 
reasons described above, the Department chooses to adopt the Supreme 
Court's approach to interpreting Title IX, which requires schools to 
respond to sexual harassment that jeopardizes the equal access to 
education promised by Title IX. Whether or not a college student 
wearing a t-shirt with an offensive slogan constitutes sexual 
harassment under Title IX, other students negatively impacted by the t-
shirt are free to opine that such expression is inappropriate, and 
recipients remain free to utilize institutional speech to promote their 
values about respectful expressive activity.
    The Department notes that nothing in the final regulations prevents 
a recipient from publishing a list of situations that a recipient has 
found to meet the Sec.  106.30 definition of sexual harassment, to 
advise potential victims and potential perpetrators that particular 
conduct has been found to violate Title IX, or to create a similar list 
of situations that a recipient finds to be in violation of the 
recipient's own code of conduct even if the conduct does not violate 
Title IX.
    Changes: None.
    Comments: At least one commenter urged the Department to expressly 
include verbal sexual coercion in the Sec.  106.30 definition of sexual 
harassment, noting that studies indicate that college women are likely 
to experience verbal sexual coercion as a tactic of sexual assault on a 
continuum ranging from non-forceful verbal tactics to incapacitation to 
physical force, and that studies indicate that verbal sexual coercion 
is the most common sexual assault tactic.\688\
---------------------------------------------------------------------------

    \688\ Commenters cited: Brandie Pugh & Patricia Becker, 
Exploring Definitions and Prevalence of Verbal Sexual Coercion and 
its Relationship to Consent to Unwanted Sex: Implications for 
Affirmative Consent Standards on College Campuses, 8 Behavioral Sci. 
8 (2018).
---------------------------------------------------------------------------

    One commenter insisted that the second prong of the Sec.  106.30 
definition of sexual harassment is too broad and contended that the 
Department should adopt the minority view in the Davis case, or 
alternatively change the second prong to ``unwelcome physical conduct 
on the basis of sex that is so severe, and objectively offensive'' 
(eliminating the word pervasive because a single act of a physical 
nature could trigger the statute while excluding purely verbal conduct 
from the definition).
    At least one commenter suggested that the second prong should be 
subject to a general requirement of objective reasonableness; the 
commenter asserted that objective offensiveness is no substitute for 
requiring all the elements of the hostile environment claim be not only 
subjectively valid but also objectively reasonable. The commenter 
asserted that the stakes are high: Many complaints come to Title IX 
offices from students who sincerely believe that they have experienced 
sexual harassment, meeting any subjective test, but which cannot 
survive reasonableness scrutiny and thus objective reasonableness under 
all the circumstances is a necessary guard against arbitrary 
enforcement.
    At least one commenter stated that subjective factors must be taken 
into consideration to decide if conduct is severe and pervasive because 
how severe the experience is to a particular victim depends on factors 
such as the status of the offender, the power the offender holds over 
the victim's life, the victim's prior history of trauma, or whether the 
victim has a support system for dealing with the trauma.
    Discussion: The Department appreciates commenters' concerns that 
verbal sexual coercion is the most common sexual assault tactic, but 
declines to list verbal coercion as an element of sexual harassment or 
sexual assault. As explained in the ``Consent'' subsection of the 
``Section 106.30 Definitions'' section of this preamble, the Department 
leaves flexibility to

[[Page 30159]]

recipients to define consent as well as terms commonly used to describe 
the absence or negation of consent (e.g., incapacity, coercion, threat 
of force), in recognition that many recipients are under State laws 
requiring particular definitions of consent, and that other recipients 
desire flexibility to use definitions of consent and related terms that 
reflect the unique values of a recipient's educational community.
    The Department disagrees with commenters who argued that the Davis 
standard is too broad and that the Department should adopt the 
dissenting viewpoint from the Davis decision. For reasons explained in 
the ``Adoption and Adaption of the Supreme Court Framework to Address 
Sexual Harassment'' section of this preamble, the Department believes 
that the Supreme Court appropriately described the conditions under 
which sexual harassment constitutes sex discrimination under Title IX, 
and the Department's goal through these final regulations is to impose 
requirements for recipients to provide meaningful, supportive responses 
fair to all parties when allegations of sexual harassment are brought 
to a recipient's attention. Similarly, the Department declines a 
commenter's recommendation to restrict the Davis standard solely to 
``physical'' conduct because the Supreme Court has acknowledged that 
not all speech is protected by the First Amendment, and that verbal 
harassment can constitute sex discrimination requiring a response when 
it is so severe, pervasive, and objectively offensive that it denies a 
person equal access to education.
    The Department is persuaded by commenters' recommendation that the 
second prong of the Sec.  106.30 definition must be applied under a 
general reasonableness standard. We have revised Sec.  106.30 to state 
that sexual harassment includes ``unwelcome conduct'' on the basis of 
sex ``determined by a reasonable person'' to be so severe, pervasive, 
and objectively offensive that it effectively denies a person equal 
educational access. We interpret the Davis standard formulated in Sec.  
106.30 as subjective with respect to the unwelcomeness of the conduct 
(i.e., whether the complainant viewed the conduct as unwelcome), but as 
to elements of severity, pervasiveness, objective offensiveness, and 
denial of equal access, determinations are made by a reasonable person 
in the shoes of the complainant.\689\ The Department believes this 
approach appropriately safeguards against arbitrary application, while 
taking into account the unique circumstances of each sexual harassment 
allegation.
---------------------------------------------------------------------------

    \689\ See Davis, 526 U.S. at 653-54 (applying the severe, 
pervasive, objectively offensive, denial of access standard to the 
facts at issue under an objective) (``Petitioner alleges that her 
daughter was the victim of repeated acts of sexual harassment by 
G.F. over a 5-month period, and there are allegations in support of 
the conclusion that G.F.'s misconduct was severe, pervasive, and 
objectively offensive. The harassment was not only verbal; it 
included numerous acts of objectively offensive touching, and, 
indeed, G.F. ultimately pleaded guilty to criminal sexual 
misconduct. . . . Further, petitioner contends that the harassment 
had a concrete, negative effect on her daughter's ability to receive 
an education.'').
---------------------------------------------------------------------------

    Changes: We have revised the Sec.  106.30 definition of sexual 
harassment by specifying that the elements in the Davis standard 
(severe, pervasive, objectively offensive, and denial of equal access) 
are determined under a reasonable person standard.
    Comments: Many commenters opposed the Sec.  106.30 definition on 
the ground that a narrow definition fails to stop harassing behavior 
before it escalates into more serious violations. Some commenters urged 
the Department to consider statistics regarding violent offenders who 
could be identified by examining their history of harassment that 
escalated over time into violence. Other commenters emphasized that 
sexual harassment is often a first stop on a continuum of violence and 
schools have a unique opportunity and duty to intervene early. At least 
one commenter asserted that the definition should be more in line with 
academic definitions of sexual harassment.\690\ At least one commenter 
analogized to laws against drunk driving, asserting that such laws do 
not distinguish between instances where a driver is marginally above 
the legal intoxication limit from those where a driver is significantly 
above the limit; the commenter argued that just as all driving while 
intoxicated situations are dangerous, all harassment regardless of 
severity is dangerous. Another commenter likened the Sec.  106.30 
approach to choosing not to address a rodent infestation until the 
problem escalates and becomes costlier to redress.
---------------------------------------------------------------------------

    \690\ Commenters cited: Handbook for Achieving Gender Equity 
Through Education 215-229 (Susan G. Klein et al. eds., 2d ed. 2007).
---------------------------------------------------------------------------

    A few commenters argued that waiting until sexually predatory 
behavior becomes extremely serious risks women's lives, pointing to 
instances where women reporting domestic violence have been turned away 
by police due to individual incidents seeming ``non-severe'' and then 
been killed by their violent partners.\691\
---------------------------------------------------------------------------

    \691\ Commenter cited: Elizabeth Bruenig, What Do We Owe Her 
Now?, The Washington Post (Sept. 21, 2018); Lindsay Gibbs, College 
track star warned police about her ex-boyfriend 6 times in the 10 
days before he killed her, ThinkProgress (Dec. 18, 2018), https://thinkprogress.org/mccluskey-university-of-utah-warned-police-about-ex-boyfriend-6-times-bc08aed0fad5/; Sirin Kale, Teen Killed By 
Abusive Ex Even After Reporting Him to Police Five Times, Vice (Jan. 
15, 2019), https://broadly.vice.com/en_us/article/59vnbx/teen-killed-by-abusive-ex-even-after-reporting-him-to-police-five-times.
---------------------------------------------------------------------------

    Many commenters stated that a victim turned away while trying to 
report a less severe instance of harassment will be unlikely to try and 
report a second time when the harassing conduct has escalated into a 
more severe situation.
    Discussion: The Department understands commenters' concerns that 
sometimes harassing behavior escalates into more serious harassment, up 
to and even including violence and homicide, and that commenters 
therefore advocate using a very broad definition of sexual harassment 
that captures even seemingly ``low level'' harassment. The Department 
is persuaded that every instance of dating violence, domestic violence, 
and stalking should be considered sexual harassment under Title IX and 
has therefore revised Sec.  106.30 to include these offenses in 
addition to sexual assault. However, for the reasons described above, 
the Department chooses to follow the Supreme Court's framework 
recognizing that Title IX is a non-sex discrimination statute and not a 
prohibition on all harassing conduct, and declines to define actionable 
sexual harassment as broadly as some academic researchers define 
harassment. The Department further believes that Sec.  106.30 
appropriately recognizes certain forms of harassment as per se sex 
discrimination (i.e., quid pro quo and Clery Act/VAWA offenses included 
in Sec.  106.30), while adopting the Davis definition for other types 
of harassment such that free speech and academic freedom \692\ are not 
chilled or curtailed

[[Page 30160]]

by an overly broad definition of sexual harassment.\693\ The Department 
believes that as a whole, the Sec.  106.30 definition appropriately 
requires recipient intervention into situations that form a course of 
escalating conduct, without requiring recipients to intervene in 
situations that might--but have not yet--risen to a serious level. By 
adding dating violence, domestic violence, and stalking to the third 
prong of the Sec.  106.30 definition, it is even more likely that 
conduct with potential to escalate into violence or even homicide will 
be reported and addressed before such escalation occurs.
---------------------------------------------------------------------------

    \692\ The Supreme Court has recognized academic freedom as 
protected under the First Amendment. See, e.g., Keyishian v. Bd. of 
Regents of Univ. of State of N.Y., 385 U.S. 589, 603 (1967) (``Our 
Nation is deeply committed to safeguarding academic freedom, which 
is of transcendent value to all of us and not merely to the teachers 
concerned. That freedom is therefore a special concern of the First 
Amendment, which does not tolerate laws that cast a pall of 
orthodoxy over the classroom. The vigilant protection of 
constitutional freedoms is nowhere more vital than in the community 
of American schools. . . . The classroom is peculiarly the 
marketplace of ideas. The Nation's future depends upon leaders 
trained through wide exposure to that robust exchange of ideas which 
discovers truth out of a multitude of tongues, (rather) than through 
any kind of authoritative selection.'') (internal quotation marks 
and citations omitted).
    \693\ Eugene Volokh, How Harassment Law Restricts Free Speech, 
47 Rutgers L. Rev. 563 (1995) (``[T]he vagueness of harassment law 
means the law actually deters much more speech than might ultimately 
prove actionable.''); Kingsley R. Browne, Title VII as Censorship: 
Hostile-Environment Harassment and the First Amendment, 52 Ohio St. 
L. J. 481, 483 (1991) (``A broad definition of sexual and racial 
harassment necessarily delegates broad powers to courts to determine 
matters of taste and humor, and the vagueness of the definition of 
`harassment' leaves those subject to regulation without clear notice 
of what is permitted and what is forbidden. The inescapable result 
is a substantial chilling effect on expression.'').
---------------------------------------------------------------------------

    The Department contends that, similar to laws setting a legal limit 
over which a person's blood alcohol level constitutes illegal driving 
while intoxicated,\694\ the Sec.  106.30 definition as a whole sets a 
threshold over which a person's unwelcome conduct constitutes sexual 
harassment. While some harassment does not meet the threshold, serious 
incidents that jeopardize equal educational access exceed the threshold 
and are actionable. In addition, the Sec.  106.30 definition includes 
single instances of quid pro quo harassment and Clery Act/VAWA 
offenses, requiring recipients to address serious problems before such 
problems have repeated or multiplied and become more difficult to 
address. Similarly, the Department disagrees that Sec.  106.30 makes 
complainants wait until sexually predatory behavior becomes extremely 
serious, because the definition as a whole captures serious conduct 
(not just ``extremely'' serious conduct) that Title IX prohibits.
---------------------------------------------------------------------------

    \694\ While several States have zero-tolerance laws for driving 
while intoxicated that set illegal blood alcohol content levels at 
anything over 0.00, those zero-tolerance laws only apply to persons 
under the legal drinking age; for persons age 21 and older, all 
States have laws that set an illegal blood alcohol content level at 
0.08--in other words, not all levels of intoxication are prohibited, 
but rather only blood alcohol content levels above a certain amount. 
See Michael Wechsler, DUI, DWI, and Zero Tolerance Laws by State, 
TheLaw.com, https://www.thelaw.com/law/dui-dwi-and-zero-tolerance-laws-by-state.178/.
---------------------------------------------------------------------------

    The Department understands commenters' concerns that if a 
complainant reports a sexual harassment incident that does not meet the 
Sec.  106.30 definition, that complainant may feel discouraged from 
reporting a second time if the sexual harassment escalates to meet the 
Sec.  106.30 definition. However, complainants and recipients have long 
been familiar with the concept that sexual harassment must meet a 
certain threshold to be considered actionable under Federal non-
discrimination laws.\695\ The final regulations follow the same 
approach, and the Department does not believe that having a threshold 
for when harassment is actionable will chill reporting. The Department 
also reiterates that recipients retain discretion to respond to 
misconduct not covered by Title IX.
---------------------------------------------------------------------------

    \695\ In the workplace under Title VII, and in educational 
environments under Title IX as interpreted in the Department's 2001 
Guidance, not all sexual harassment is actionable. Title VII 
requires severe or pervasive conduct that alters a condition of 
employment. E.g., Meritor, 477 U.S. at 67 (``For sexual harassment 
to be actionable, it must be sufficiently severe or pervasive to 
alter the conditions of [the victim's] employment and create an 
abusive working environment.'') (internal quotation marks and 
citation omitted). The 2001 Guidance requires conduct ``sufficiently 
serious'' to deny or limit the complainant's ability to participate 
in education to be actionable under Title IX. 2001 Guidance at 5.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Several commenters argued that adopting a narrower 
definition of sexual harassment makes it easier for sexist, 
misogynistic, and homophobic microaggressions, including sexist 
hostility and crude behavior, to continue unchecked. Commenters argued 
that making the definition of sexual harassment less inclusive tacitly 
condones microaggressions, making campuses less safe and decreasing 
diversity because more students from underrepresented groups will 
perform worse in school or leave school entirely.
    A few commenters recommended that the definition include 
microaggressions. Some commenters asserted that microaggressions can 
cause the same negative impact on victims as more severe harassment 
does.\696\ Other commenters asserted that using a ``severe, pervasive, 
and objectively offensive'' standard fails to consider personal, 
cultural, and religious differences in determining what constitutes 
sexual harassment, ignoring the fact that especially for individuals in 
marginalized identity groups, microaggressions may not seem pervasive 
or severe to an outsider but accumulate to make marginalized students 
feel unwelcome and unable to continue their education. One commenter 
suggested that rather than narrow the definition of harassment, it 
should be expanded to include what one professor has called 
``creepiness.'' \697\ A few commenters asserted that cat-calling and 
other microaggressions may constitute more subtle forms of sexual 
harassment yet cause very real harms to victims \698\ and the final 
regulations should protect more students from harmful violations of 
bodily and mental autonomy and dignity. At least one commenter argued 
that research indicates that gendered microaggressions, while not 
extreme, increase the likelihood of high-severity sexual violence \699\ 
and that unaddressed subtly aggressive behavior leads to more extreme 
sexual harassment.\700\
---------------------------------------------------------------------------

    \696\ Commenter cited: Lucas Torres & Joelle T. Taknint, Ethnic 
microaggressions, traumatic stress symptoms, and Latino depression: 
A moderated mediational model, 62 Journal of Counseling Psychol. 3 
(2015).
    \697\ Commenters cited: Bonnie Mann, Creepers, Flirts, Heroes, 
and Allies: Four Theses on Men and Sexual Harassment, 11 Am. Phil. 
Ass'n Newsletter on Feminism & Philosophy 24 (2012).
    \698\ Commenter cited: Emma McClure, Theorizing a Spectrum of 
Aggression: Microaggressions, Creepiness, and Sexual Assault, 14 The 
Pluralist 1 (2019) (noting an accepted definition of 
``microaggressions'' as ``the brief and commonplace daily verbal, 
behavioral, and environmental indignities, whether intentional or 
unintentional, that communicate hostile, derogatory, or negative 
racial, gender, sexual-orientation, and religious slights and 
insults to the target person or group'' and stating that ``although 
each individual microaggression may seem negligible, when repeated 
over time, microaggressions can seriously damage the target's mental 
and physical health'').
    \699\ Commenters cited: Rachel E. Gartner & Paul R. Sterzing, 
Gender Microaggressions as a Gateway to Sexual Harassment and Sexual 
Assault: Expanding the Conceptualization of Youth Sexual Violence, 
31 Affilia: J. of Women & Social Work 4 (2016).
    \700\ Commenters cited: Dorothy Espelage et al., Longitudinal 
Associations Among Bullying, Homophobic Teasing, and Sexual Violence 
Perpetration Among Middle School Students, 30 Journal of 
Interpersonal Violence 14 (2015).
---------------------------------------------------------------------------

    One commenter suggested that recipients will save money by 
investigating all survivor complaints, including of microaggressions, 
rather than waiting until harassment is severe and pervasive, because 
trauma from sexual harassment is analogous to chronic traumatic 
encephalopathy (CTE) in contact sports--it is not necessarily one big 
trauma that causes CTE but many repeated and seemingly asymptomatic 
injuries that accumulate over time causing CTE. Commenters argued that 
schools should be required, or at least allowed, to intervene in cases 
less severe than the Sec.  106.30 definition.
    Discussion: The Department appreciates commenters' concerns about 
the harm that can result from microaggressions, cat-calling, and 
hostile, crude, or ``creepy'' behaviors that can make students feel 
unwelcome,

[[Page 30161]]

unsafe, disrespected, insulted, and discouraged from participating in a 
community or in programs or activities. However, the Supreme Court has 
cautioned that while Title VII and Title IX both prohibit sex 
discrimination, neither of these Federal civil rights laws is designed 
to become a general civility code.\701\ The Supreme Court interpreted 
Title IX's non-discrimination mandate to prohibit sexual harassment 
that rises to a level of severity, pervasiveness, and objective 
offensiveness such that it denies equal access to education.\702\ The 
Davis Court acknowledged that while misbehavior that does not meet that 
standard may be ``upsetting to the students subjected to it,'' \703\ 
Title IX liability attaches only to sexual harassment that does meet 
the Davis standard. The Department declines to prohibit 
microaggressions as such, but notes that what commenters and 
researchers consider microaggressions \704\ could form part of a course 
of conduct reaching severity, pervasiveness, and objective 
offensiveness under Sec.  106.30, though a fact-specific evaluation of 
specific conduct is required. As to a commenter's likening of 
microaggressions to ``asymptomatic'' injuries that in the aggregate 
cause CTE from playing contact sports, actionable sexual harassment 
under Title IX involves conduct that is unwelcome and so severe, 
pervasive, and objectively offensive that it effectively denies a 
person equal access to the recipient's education program or activity. 
Where harm results from behavior that does not meet the Sec.  106.30 
definition of sexual harassment, nothing in these final regulations 
precludes recipients from addressing such behavior under a recipient's 
own student or employee conduct code.
---------------------------------------------------------------------------

    \701\ Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) 
(``These standards for judging hostility are sufficiently demanding 
to ensure that Title VII does not become a `general civility code.' 
. . . Properly applied, they will filter out complaints attacking 
the ordinary tribulations of the workplace, such as the sporadic use 
of abusive language, gender-related jokes, and occasional 
teasing.'') (internal quotation marks and citations omitted); Davis, 
526 U.S. at 684 (Kennedy, J., dissenting) (``the majority seeks, in 
effect, to put an end to student misbehavior by transforming Title 
IX into a Federal Student Civility Code.''); id. at 652 (refuting 
dissenting justices' arguments that the majority opinion permits too 
much liability under Title IX or turns Title IX into a general 
civility code, by emphasizing that it is not enough to show that a 
student has been teased, called offensive names, or taunted, because 
liability attaches only to sexual harassment that is severe and 
pervasive); Julie Davies, Assessing Institutional Responsibility for 
Sexual Harassment in Education, 77 Tulane L. Rev. 387, 398, 407 
(2002) (``Although the Court adopted different standards for 
institutional liability under Titles VII and IX, several themes 
serve as leitmotifs, running through the cases regardless of the 
technical differences. Neither Title VII nor Title IX is construed 
as a federal civility statute; the Court does not want entities to 
be obliged to litigate cases where plaintiffs have been subjected to 
`minor' annoyances and insults.'') (internal citation omitted).
    \702\ Davis, 526 U.S. at 652.
    \703\ Id. at 651-52.
    \704\ See, e.g., Emma McClure, Theorizing a Spectrum of 
Aggression: Microaggressions, Creepiness, and Sexual Assault, 14 The 
Pluralist 1 (2019) (noting an accepted definition of 
``microaggressions'' as ``the brief and commonplace daily verbal, 
behavioral, and environmental indignities, whether intentional or 
unintentional, that communicate hostile, derogatory, or negative 
racial, gender, sexual-orientation, and religious slights and 
insults to the target person or group'').
---------------------------------------------------------------------------

    As noted above, the fact that not every harassing or offensive 
remark is prohibited under Title IX in no way condones or encourages 
crude, insulting, demeaning behavior, which recipients may address 
through a variety of actions; as a commenter pointed out, a recipient's 
response could include providing a complainant with supportive 
measures, responding to the conduct in question with institutional 
speech, or offering programming designed to foster a more welcoming 
campus climate generally, including with respect to marginalized 
identity groups. We have revised Sec.  106.45(b)(3) in the final 
regulations to clarify that mandatory dismissal of a formal complaint 
due to the allegations not meeting the Sec.  106.30 definition of 
sexual harassment does not preclude a recipient from acting on the 
allegations through non-Title IX codes of conduct. The final 
regulations also permit a recipient to provide supportive measures to a 
complainant even where the conduct alleged does not meet the Sec.  
106.30 definition of sexual harassment.
    Changes: We have revised Sec.  106.45(b)(3) to clarify that 
mandatory dismissal of a formal complaint because the allegations do 
not constitute sexual harassment as defined in Sec.  106.30 does not 
preclude a recipient from addressing the allegations through the 
recipient's code of conduct.
    Comments: Several commenters argued that concern for protecting 
free speech and academic freedom does not require or justify using the 
Davis definition of sexual harassment in the second prong of the Sec.  
106.30 definition because harassment is not protected speech if it 
creates a hostile environment.\705\ Commenters asserted that schools 
have the authority to regulate harassing speech,\706\ that there is no 
conflict between the First Amendment and Title IX's protection against 
sexually harassing speech, and that the Department has no evidence that 
a broader definition of harassment over the last 20 years has infringed 
on constitutionally protected speech or academic freedom. On the other 
hand, at least one commenter argued that verbal conduct creating a 
hostile environment may still be constitutionally protected 
speech.\707\
---------------------------------------------------------------------------

    \705\ Commenters cited: Joanna L. Grossman & Deborah L. Brake, A 
Sharp Backward Turn: Department of Education Proposes to Protect 
Schools, Not Students, in Cases of Sexual Violence, Verdict (Nov. 
29, 2018) (``There is no legitimate First Amendment or academic 
freedom protection afforded to unwelcome sexual conduct that creates 
a hostile educational environment.'').
    \706\ Commenters cited: Tinker v. Des Moines Indep. Cmty. Sch. 
Dist., 393 U.S. 503, 513-14 (1969) (holding school officials can 
regulate student speech if they reasonably forecast ``substantial 
disruption of or material interference with school activities'' or 
if the speech involves ``invasion of the rights of others'').
    \707\ Commenters cited: White v. Lee, 227 F.3d 1214, 1236-37 
(9th Cir. 2000) (refusing to extend labor law precedents allowing 
restrictions on workplace speech to non-workplace contexts such as 
discriminatory speech about housing projects); UWM Post, Inc. v. Bd. 
of Regents of Univ. of Wis. Sys., 774 F. Supp. 1163 (E.D. Wis. 1991) 
(holding student speech that created a hostile environment was 
protected even though workplace speech creating a hostile 
environment is banned by Title VII).
---------------------------------------------------------------------------

    Discussion: The Supreme Court has not squarely addressed the 
intersection between First Amendment protection of speech and academic 
freedom, and non-sex discrimination Federal civil rights laws that 
include sexual harassment as a form of sex discrimination (i.e., Title 
VII and Title IX).\708\ With respect to sex discriminatory conduct in 
the form of admissions or hiring and firing decisions, for example, 
prohibiting such conduct does not implicate constitutional concerns 
even when the conduct is accompanied by speech,\709\ and similarly, 
when sex discrimination occurs in the form of non-verbal sexually 
harassing conduct, or speech used to harass in a quid pro quo manner, 
stalk, or threaten violence

[[Page 30162]]

against a victim, no First Amendment problem exists.\710\ However, with 
respect to speech and expression, tension exists between First 
Amendment protections and the government's interest in ensuring 
workplace and educational environments free from sex discrimination 
when the speech is unwelcome on the basis of sex.\711\
---------------------------------------------------------------------------

    \708\ Saxe v. State College Area Sch. Dist., 240 F.3d 200, 204, 
207 (3d Cir. 2001) (``There is no categorical `harassment exception' 
to the First Amendment's free speech clause.'') (``Although the 
Supreme Court has written extensively on the scope of workplace 
harassment, it has never squarely addressed whether harassment, when 
it takes the form of pure speech, is exempt from First Amendment 
protection'') (``Loosely worded anti-harassment laws may pose some 
of the same problems as the St. Paul hate speech ordinance [struck 
down by the Supreme Court as unconstitutional in R.A.V. v. City of 
St. Paul, 505 U.S. 377 (1992)]: they may regulate deeply offensive 
and potentially disruptive categories of speech based, at least in 
part, on subject matter and viewpoint.'').
    \709\ E.g., John F. Wirenius, Actions as Words, Words as 
Actions: Sexual Harassment Law, the First Amendment and Verbal Acts, 
28 Whittier L. Rev. 905 (2007) (identifying a First Amendment issue 
only with respect to hostile environment sexual harassment, as 
opposed to discriminatory conduct in the form of discrete employment 
decisions and quid pro quo sexual harassment).
    \710\ Id.; Wisconsin v. Mitchell, 508 U.S. 476, 484 (1993) 
(citing Supreme Court cases in support of the view that a variety of 
conduct can be prohibited even where the person engaging in the 
conduct uses speech or expresses an idea, such that the First 
Amendment provides no protection for physical assault, violence, 
threat of violence, or other special harms distinct from 
communicative impact); United States v. Osinger, 753 F.3d 939, 953 
(9th Cir. 2014) (``Because the sole immediate object of [the 
defendant's] speech was to facilitate his commission of the 
interstate stalking offense, that speech isn't entitled to 
constitutional protection.'') (internal quotation marks and citation 
omitted).
    \711\ Andrea Meryl Kirshenbaum, Hostile Environment Sexual 
Harassment Law and the First Amendment: Can the Two Peacefully 
Coexist?, 12 Tex. J. of Women & the L. 67, 68-70 (2002) (``Although 
the Supreme Court has never directly addressed this issue, the 
tension between the First Amendment and hostile environment sexual 
harassment law is evidenced by an increase in litigation involving 
these issues in courts throughout the nation.'' . . . ``the clash 
between the First Amendment and the hostile environment sexual 
harassment doctrine is acute.''); Peter Caldwell, Hostile 
Environment Sexual Harassment & First Amendment Content-Neutrality: 
Putting the Supreme Court on the Right Path, 23 Hofstra Lab. & Emp. 
L. J. 373 (2006) (``Where pure expression is involved, Title VII 
steers into the territory of the First Amendment. It is no use to 
deny or minimize this problem because, when Title VII is applied to 
sexual harassment claims founded solely on verbal insults, pictorial 
or literary matter, the statute imposes content-based, viewpoint-
discriminatory restrictions on speech.''); John F. Wirenius, Actions 
as Words, Words as Actions: Sexual Harassment Law, the First 
Amendment and Verbal Acts, 28 Whittier L. Rev. 905 (2007) (``For 
nearly two decades, a debate has smoldered over the perceived 
tension between the law of sexual harassment and the First 
Amendment's guarantee of freedom of speech. As the protection 
against sexual harassment in the workplace spread beyond overt 
discrimination in discrete employment decisions and quid pro quo 
sexual harassment to include the less readily quantified `hostile 
work environment,' free speech advocates became less sanguine about 
the compatibility between the protections against workplace 
discrimination and the First Amendment, especially its proscription 
of viewpoint discrimination.''). The same tension exists with 
respect to the First Amendment, and verbal and expressive unwelcome 
conduct on the basis of sex under Title IX, and the Department aims 
to ensure through a carefully crafted definition of actionable 
sexual harassment that ``discrete'' sex offenses ``and quid pro quo 
sexual harassment'' are per se sexual harassment under Title IX 
because no First Amendment issues are raised, while verbal and 
expressive conduct is evaluated under the Davis standard so that 
prohibiting sexual harassment under Title IX is consistent with the 
First Amendment.
---------------------------------------------------------------------------

    In striking down a city ordinance banning bias-motivated disorderly 
conduct, the Supreme Court in R.A.V. v. City of St. Paul emphasized 
that the First Amendment generally prevents the government from 
proscribing speech or expressive conduct ``because of disapproval of 
the ideas expressed. Content-based regulations are presumptively 
invalid.'' \712\ The Supreme Court explained that even categories of 
speech that can be regulated consistent with the First Amendment (for 
example, obscenity and defamation) cannot do so in a content-
discriminatory manner (for instance, by prohibiting only defamation 
that criticizes the government).\713\ The Supreme Court further 
explained that while ``fighting words'' can permissibly be proscribed 
under First Amendment doctrine, such a conclusion is based on the 
nature of fighting words to provoke injury and violence,\714\ not 
merely the impact on the listener to be insulted or offended, and 
government still cannot regulate ``based on hostility--or favoritism--
towards the underlying message expressed.'' \715\ Side-stepping the 
direct question of how the First Amendment prohibition against content-
based regulations applies to hostile environment sexual harassment 
claims based on speech rather than acts, the R.A.V. Court stated that 
``sexually-based `fighting words''' could ``produce a violation of 
Title VII's general prohibition against sexual discrimination in 
employment practices'' because ``[w]here the government does not target 
conduct on the basis of its expressive conduct, acts are not shielded 
from regulation merely because they express a discriminatory idea or 
philosophy.'' \716\ The R.A.V. Court struck down the city ordinance at 
issue, even though it was intended to protect persons in historically 
marginalized groups from victimization, in part because the ``secondary 
effect'' of whether a particular listener or audience is offended by 
speech does not justify restricting the speech.\717\ In striking down 
the ordinance, the Supreme Court noted that city officials retained the 
ability to communicate their hostility for certain biases--but not 
``through the means of imposing unique limitations upon speakers who 
(however benightedly) disagree.'' \718\
---------------------------------------------------------------------------

    \712\ R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
    \713\ See id. at 383-84.
    \714\ Id. at 380-81 (citing Chaplinsky v. New Hampshire, 315 
U.S. 568, 572 (1942) for proposition that ``fighting words'' 
represent ``conduct that itself inflicts injury or tends to incite 
immediate violence'').
    \715\ Id. at 386.
    \716\ Id. at 389-90 (internal citation omitted) (emphasis 
added).
    \717\ Id. at 394.
    \718\ Id. at 395-96.
---------------------------------------------------------------------------

    Seven years after deciding R.A.V. under the First Amendment, the 
Supreme Court decided Davis under Title IX. While the Davis Court did 
not raise the issue of First Amendment intersection with anti-sexual 
harassment regulation,\719\ it focused on the sexually harassing 
conduct of the peer-perpetrator in that case,\720\ indicating that the 
Supreme Court recognizes that proscribing conduct, as opposed to 
speech, raises no constitutional concerns, and that even when anti-
harassment rules are applied to verbal harassment, requiring the 
harassment to be so severe, pervasive, and objectively offensive that 
it effectively denies a person equal access to education avoids putting 
recipients in the untenable position of protecting a recipient from 
legal liability arising from how the recipient responds to sexual 
harassment only by unconstitutionally restricting its students' (or 
employees') rights to freedom of speech and expression.
---------------------------------------------------------------------------

    \719\ The majority opinion did not address First Amendment 
concerns, although the dissent raised the issue. Davis, 526 U.S. at 
667-68 (Kennedy, J., dissenting) (``A university's power to 
discipline its students for speech that may constitute sexual 
harassment is also circumscribed by the First Amendment. A number of 
federal courts have already confronted difficult problems raised by 
university speech codes designed to deal with peer sexual and racial 
harassment. See, e.g., Dambrot v. Cent. Michigan Univ., 55 F.3d 1177 
(6th Cir. 1995) (striking down university discriminatory harassment 
policy because it was overbroad, vague, and not a valid prohibition 
on fighting words); UWM Post, Inc. v. Bd. of Regents of Univ. of 
Wisconsin Sys., 774 F.Supp. 1163 (E.D. Wis. 1991) (striking down 
university speech code that prohibited, inter alia, `discriminatory 
comments' directed at an individual that `intentionally . . . 
demean' the `sex . . . of the individual' and `create an 
intimidating, hostile or demeaning environment for education, 
university related work, or other university-authorized activity'); 
Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) (similar); 
Iota XI Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 
F.2d 386 (4th Cir. 1993) (overturning on First Amendment grounds 
university's sanctions on a fraternity for conducting an `ugly woman 
contest' with `racist and sexist' overtones) The difficulties 
associated with speech codes simply underscore the limited nature of 
a university's control over student behavior that may be viewed as 
sexual harassment.''). Presumably, the majority believed that 
ensuring that even verbal harassment that meets the severe, 
pervasive, and objectively offensive standard avoids this 
constitutional problem; the majority expressed a similar rationale 
in response to the dissent's contention that the majority opinion 
permitted too much liability against recipients. Davis, 526 U.S. at 
651-53.
    \720\ Davis, 526 U.S. at 653 (``Petitioner alleges that her 
daughter was the victim of repeated acts of sexual harassment by G. 
F. over a 5-month period, and there are allegations in support of 
the conclusion that G. F.'s misconduct was severe, pervasive, and 
objectively offensive. The harassment was not only verbal; it 
included numerous acts of objectively offensive touching, and, 
indeed, G. F. ultimately pleaded guilty to criminal sexual 
misconduct.'') (emphasis added).
---------------------------------------------------------------------------

    The legal commentary and Supreme Court precedent often cited by

[[Page 30163]]

commenters \721\ arguing that the Davis definition of sexual harassment 
is not necessary for protection of First Amendment freedoms because 
harassment is unprotected if it creates a hostile environment, and 
because schools have authority to regulate harassing speech, do not 
support a conclusion that a categorical ``harassment exception'' exists 
under First Amendment law and do not justify applying a standard lower 
than the Davis standard for speech-based harassment in the educational 
context. For example, the statement in a legal commentary frequently 
cited by commenters that ``[t]here is no legitimate First Amendment or 
academic freedom protection afforded to unwelcome sexual conduct that 
creates a hostile educational environment'' contains no citations to 
legal authority.\722\ Likewise, commenters citing Tinker v. Des Moines 
Indep. Comm. Sch. Dist. for the proposition that school officials can 
regulate student speech if they reasonably forecast ``substantial 
disruption of or material interference with school activities'' or if 
the speech involves ``invasion of the rights of others'' fail to 
acknowledge: (i) In Tinker the Supreme Court struck down the school 
decision in that case forbidding students from wearing armbands 
expressing opposition to war because that expressive conduct was akin 
to pure speech warranting First Amendment protection; \723\ (ii) the 
Tinker Court insisted that the ``substantial disruption'' or 
``interference with school activities'' exceptions only apply where 
school officials have more than unspecified fear of disruption or 
interference; \724\ and (iii) the precise scope of Tinker's 
``interference with the rights of others'' language is unclear, but is 
comparable to the Davis standard.\725\ By requiring threshold levels of 
serious interference with work or education environments before sexual 
harassment is actionable, the Supreme Court standards under Meritor 
\726\ (for the workplace) and Davis \727\ (for schools, colleges, and 
universities) prevent these non-discrimination laws from infringing on 
speech and academic freedom,\728\ precisely because non-discrimination 
laws are not ``categorically immune from First Amendment challenge when 
they are applied to prohibit speech solely on the basis of its 
expressive content.'' \729\
---------------------------------------------------------------------------

    \721\ E.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 
U.S. 503, 513-14 (1969); Joanna L. Grossman & Deborah L. Brake, A 
Sharp Backward Turn: Department of Education Proposes to Protect 
Schools, Not Students, in Cases of Sexual Violence, Verdict (Nov. 
29, 2018).
    \722\ Joanna L. Grossman & Deborah L. Brake, A Sharp Backward 
Turn: Department of Education Proposes to Protect Schools, Not 
Students, in Cases of Sexual Violence, Verdict (Nov. 29, 2018) 
(stating, without citation to legal authority, the proposition that 
``There is no legitimate First Amendment or academic freedom 
protection afforded to unwelcome sexual conduct that creates a 
hostile environment'').
    \723\ Tinker, 393 U.S. at 505-06 (``the wearing of armbands in 
the circumstances of this case was entirely divorced from actually 
or potentially disruptive conduct by those participating in it. It 
was closely akin to `pure speech' which, we have repeatedly held, is 
entitled to comprehensive protection under the First Amendment.'').
    \724\ Id. at 508 (``undifferentiated fear or apprehension of 
disturbance is not enough to overcome the right to freedom of 
expression'').
    \725\ B.H. ex rel. Hawk v. Easton Area Sch. Dist., 725 F.3d 293 
(3d Cir. 2013) (``As we have repeatedly noted, the precise scope of 
Tinker's `interference with the rights of others' language is 
unclear.'') (internal quotation marks and citation omitted); cf. 
Brett A. Sokolow et al., The Intersection of Free Speech and 
Harassment Rules, 38 Hum. Rights 19 (2011) (``The Tinker standard is 
comparable to the Davis standard, which places the threshold for 
harassment at the point where conduct `bars the victim's access to 
an educational opportunity,' in that speech can be restricted only 
when the educational process is substantially impeded. In other 
words, when reviewing school policies, and the implementation 
thereof, it is critical to ensure students are being disciplined as 
a result of the objective impact of their speech, and not solely 
based on its content and/or the feelings of those to whom that 
speech is targeted.'').
    \726\ Meritor, 477 U.S. at 67; see also John F. Wirenius, 
Actions as Words, Words as Actions: Sexual Harassment Law, the First 
Amendment and Verbal Acts, 28 Whittier L. Rev. 905, 908 (2007) 
(arguing that the hostile work environment doctrine, properly 
understood with its critical threshold requirement that harassing 
speech be severe or pervasive enough to create an objectively 
hostile or abusive work environment, converts harassing speech into 
``verbal conduct'' that may be regulated under Title VII consistent 
with the First Amendment). Similarly, when harassing speech is 
severe, pervasive, and objectively offensive enough to create 
deprivation of equal educational access it may be regulated under 
Title IX consistent with the First Amendment.
    \727\ Davis, 526 U.S. at 651 (``Rather, a plaintiff must 
establish sexual harassment of students that is so severe, 
pervasive, and objectively offensive, and that so undermines and 
detracts from the victims' educational experience, that the victim-
students are effectively denied equal access to an institution's 
resources and opportunities.''); Brett A. Sokolow, et al., The 
Intersection of Free Speech and Harassment Rules, 38 Hum. Rights 19 
(2011) (cautioning that institutional anti-harassment policies must 
not prevent students from exercising rights of speech and 
expression, a result that the Davis standard makes clear).
    \728\ E.g., Brett A. Sokolow et al., The Intersection of Free 
Speech and Harassment Rules, 38 Hum. Rights 19, 20 (2011) 
(``[S]chool regulations and actions that impact speech must be 
content and viewpoint neutral and must be narrowly tailored to fit 
the circumstances. These regulations must be clear enough for a 
person of ordinary intelligence to understand, or courts will find 
them unconstitutionally void for vagueness. They cannot overreach by 
covering both protected and unprotected speech or courts will find 
them unconstitutionally overbroad. The regulation cannot act to 
preemptively prevent students from exercising their right to freely 
express themselves because the courts will find the prior restraint 
of speech presumptively unconstitutional.'') (``In some ways, 
activist courts, agencies, and educational messages about civility 
and tolerance may have given a false impression that any sexist, 
ageist, racist, and so forth, remark is tantamount to harassment. As 
a society, we now use the term `harassment' to mean being bothered, 
generically. We must distinguish generic harassment from 
discriminatory harassment. The standard laid out in Davis . . . 
makes this clear: To be considered discriminatory harassment, the 
conduct in question must be `so severe, pervasive, and objectively 
offensive that it effectively bars the victim's access to an 
educational opportunity or benefit.' '') (emphasis in original).
    \729\ Saxe, 240 F.3d at 209.
---------------------------------------------------------------------------

    The First Amendment plays a crucial role in ensuring that the 
American government remains responsive to the will of the people and 
effects peaceful change by fostering free, robust exchange of 
ideas,\730\ including those relating to sex-based equality and 
dignity.\731\ There is no doubt that words can wound, and speech can 
feel like an ``assault, seriously harm[ing] a private individual'' with 
effects that often

[[Page 30164]]

linger.\732\ Nonetheless, serious risks attach to soliciting the 
coercive power of government to enforce even laudable social norms such 
as respect and civility.\733\ Even low-value speech warrants 
constitutional protection, in part because government should not be the 
arbiter of valuable versus worthless expression.\734\ This principle 
holds true for elementary and secondary schools as well as 
postsecondary institutions.\735\ Schools, colleges, and universities, 
and their students and employees, who find speech offensive, have 
numerous avenues to confront offensive speech without ``the means of 
imposing unique limitations upon speakers who (however benightedly) 
disagree.''\736\
---------------------------------------------------------------------------

    \730\ See Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) 
(``The vitality of civil and political institutions in our society 
depends on free discussion. . . . [I]t is only through free debate 
and free exchange of ideas that government remains responsive to the 
will of the people and peaceful change is effected. The right to 
speak freely and to promote diversity of ideas and programs is 
therefore one of the chief distinctions that sets us apart from 
totalitarian regimes. Accordingly a function of free speech under 
our system of government is to invite dispute. It may indeed best 
serve its high purpose when it induces a condition of unrest, 
creates dissatisfaction with conditions as they are, or even stirs 
people to anger. Speech is often provocative and challenging. It may 
strike at prejudices and preconceptions and have profound unsettling 
effects as it presses for acceptance of an idea. That is why freedom 
of speech, though not absolute . . . is nevertheless protected 
against censorship or punishment, unless shown likely to produce a 
clear and present danger of a serious substantive evil that rises 
far above public inconvenience, annoyance, or unrest.'') (internal 
citations omitted).
    \731\ Azhar Majeed, The Misapplication of Peer Harassment Law on 
College and University Campuses and the Loss of Student Speech 
Rights, 35 Journal of Coll. & Univ. L. 385, 397 (2009) (``In 
drafting and applying their harassment policies, colleges and 
universities frequently target protected speech merely because the 
expression in question is alleged to be sexist, prejudicial, or 
demeaning. . . . This approach ignores the fact that even explicitly 
sexist or racist speech is entitled to protection, and all the more 
so where it espouses views on important issues of social policy. Few 
people would disagree, for example, that the subjects of relations 
between the sexes, women's rights, and the pursuit of economic and 
social equality are all important matters of public concern and 
debate. Therefore, speech relating to such topics, regardless of 
whether it takes a favorable or negative view of women, is highly 
germane to the debate of public matters and social policy. In the 
marketplace of ideas, these expressions should not be suppressed 
merely to avoid offense or discomfort.'') (citing Am. Booksellers 
Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (holding invalid under 
the First Amendment a statute that prohibited pornography depicting 
the subordination of women because the statute was a content-based 
restriction--that is, it applied not to all sexual depictions but to 
depictions of women in a disfavored manner).
    \732\ Snyder v. Phelps, 562 U.S. 443, 461 (2011) (Breyer, J., 
concurring); see also Davis, 526 U.S. at 651-52 (acknowledging that 
gender-based banter, insults, and teasing can be upsetting to those 
on the receiving end).
    \733\ Catherine J. Ross, Assaultive Words and Constitutional 
Norms, 66 Journal of Legal Educ. 739, 744 (2017) (``Recently, 
students have been in the vanguard, demanding that offensive speech 
be silenced. Students ask to be protected from hurtful words, 
sentiments, even gestures, and inadvertent facial clues or rolling 
eyes that communicate dismissal. They seek the coercive power of 
authority to enforce laudable social norms--respect, dignity, and 
equality regardless of race, ethnicity, gender, gender identity, and 
so forth. Meritorious as these proclaimed goals are, the rules and 
penalties some students lobby for would suppress the expressive 
rights of others including students, faculty, and invited guests, a 
particularly disturbing prospect at an institution devoted to the 
academic enterprise.'').
    \734\ Id. at 749-50 (2017) (``Many people question whether rude 
epithets, crude jokes, and disparaging statements are the kind of 
expression that merits First Amendment protection. The Supreme Court 
has long held the Constitution protects the right to speak 
`foolishly and without moderation.' You might maintain that racist, 
misogynist and other vile speech makes no contribution at all to the 
exchange of ideas--but the Speech Clause protects even so-called 
low-worth expression, in large part because no public authority can 
be trusted to distinguish valuable from worthless expression. The 
government cannot ban hateful expression, no matter how hurtful.'') 
(citing Cohen v. California, 403 U.S. 15, 25-26 (1971)). 
Furthermore, permitting censorship of speech in an effort to be on 
the right side of history with respect to racial or sexual equality 
ignores the role that commitment to the First Amendment has played 
in achieving milestones for racial and sexual equality. See, e.g., 
Nadine Strossen, Regulating Racist Speech on Campus: A Modest 
Proposal?, 1990 Duke L. J. 484, 536-37 (1990) (``History 
demonstrates that if the freedom of speech is weakened for one 
person, group, or message, then it is no longer there for others. 
The free speech victories that civil libertarians have won in the 
context of defending the right to express racist and other anti-
civil libertarian messages have been used to protect speech 
proclaiming anti-racist and pro-civil libertarian messages. For 
example, in 1949, the ACLU defended the right of Father Terminiello, 
a suspended Catholic priest, to give a racist speech in Chicago. The 
Supreme Court agreed with that position in a decision that became a 
landmark in free speech history. Time and again during the 1960s and 
1970s, the ACLU and other civil rights groups were able to defend 
free speech rights for civil rights demonstrators by relying on the 
Terminiello decision [Terminiello v. City of Chicago, 337 U.S. 1 
(1949)].'') (internal citations omitted); see also Anthony D. 
Romero, Equality, Justice and the First Amendment, American Civil 
Liberties Union (ACLU) (Aug. 15, 2017), https://www.aclu.org/blog/free-speech/equality-justice-and-first-amendment (explaining that 
the ACLU's nearly century-long history defending freedom of speech 
``including speech we abhor'' is due to belief that ``our democracy 
will be better and stronger for engaging and hearing divergent 
views. Racism and bigotry will not be eradicated if we merely force 
them underground. Equality and justice will only be achieved if 
society looks such bigotry squarely in the eyes and renounces it. . 
. . There is another reason that we have defended the free speech 
rights of Nazis and the Ku Klux Klan. . . . We simply never want 
government to be in a position to favor or disfavor particular 
viewpoints.'').
    \735\ See Catherine J. Ross, Assaultive Words and Constitutional 
Norms, 66 Journal of Legal Educ. 739, 754-55 (2017) 
(``Constitutional doctrine asks our youngest students to use the 
traditional constitutional responses to vile speech: Walk away, 
don't listen, or respond with `more and better speech.' These 
general First Amendment principles apply with at least as much vigor 
to college campuses, where most students are adults, not 
schoolchildren, the guiding ethos of higher education supplements 
constitutional mandates, and students are not compelled to attend. 
Looking at what the Constitution requires in grades K-12 reveals a 
lot about what we should expect the adults enrolled in college to 
have the capacity to withstand. Since our constitutional framework 
expects this degree of coping from children beginning in elementary 
school, it is not asking too much of college students to handle 
offensive sentiments by using the standard First Amendment tools: 
Walk away, throw the pamphlet in the trash, get off the screen or, 
even better, tackle objectionable speech with more and better 
speech.'') (discussing and citing Nuxoll v. Indian Prairie Sch. 
Dist. # 204, 523 F.3d 668, 672 (7th Cir. 2008); Saxe v. State Coll. 
Area Sch. Dist., 240 F.3d 200, 202 (3d Cir. 2001); Nixon v. N. Local 
Sch. Dist. Bd. of Educ., 383 F. Supp. 2d 965, 967 (S.D. Ohio 2005)).
    \736\ R.A.V., 505 U.S. at 395-96. As a commenter observed, 
recipients retain the ability and discretion to respond to offensive 
speech by a student (or employee) by providing the complainant with 
supportive measures, responding to the offensive speech with 
institutional speech, or offering programming designed to foster a 
welcoming campus climate more generally.
---------------------------------------------------------------------------

    The Department believes that the tension between student and 
faculty freedom of speech, and regulation of speech to prohibit sexual 
harassment, is best addressed through rules that prohibit harassing and 
assaultive physical conduct, while ensuring that harassment in the form 
of speech and expression is evaluated for severity, pervasiveness, 
objective offensiveness, and denial of equal access to education. This 
is the approach taken in the Sec.  106.30 definition of sexual 
harassment, under which quid pro quo harassment and Clery Act/VAWA 
offenses receive per se treatment as actionable sexual harassment, 
while other forms of harassment must meet the Davis standard. This 
approach balances the ``often competing demands of the First 
Amendment's express guarantee of free speech and the Fourteenth 
Amendment's implicit promise of dignity and equality.'' \737\
---------------------------------------------------------------------------

    \737\ Catherine J. Ross, Assaultive Words and Constitutional 
Norms, 66 Journal of Legal Educ. 739, 739 (2017) (``Campuses are 
rocked by racially and sexually offensive speech and counter speech. 
Offensive speech and counter speech, including demonstrations and 
calls for policies that shield the vulnerable and repercussions for 
offenders, are both protected by the Constitution. Yet some college 
administrations regulate this protected speech. Expression on both 
sides of a cultural and political divide brings to the fore a 
conflict that has been simmering in legal commentary for about two 
decades: The tension between the often competing demands of the 
First Amendment's express guarantee of free speech and the 
Fourteenth Amendment's implicit promise of dignity and equality. 
This clash between two fundamental principles seems to have been 
exacerbated recently by a renewed focus on identity politics both on 
campus and in national and international affairs.'').
---------------------------------------------------------------------------

    Contrary to commenters' assertions, evidence that broadly and 
loosely worded anti-harassment policies have infringed on 
constitutionally protected speech and academic freedom is widely 
available.\738\ The fact that broadly-

[[Page 30165]]

worded anti-harassment policies have been applied to protected speech 
``leads many potential speakers to conclude that it is better to stay 
silent and not risk the consequences of being charged with harassment. 
. . . This halts much campus discussion and debate, taking away from 
the campus's function as a true marketplace of ideas.'' \739\ Where 
speech and expression are not given sufficient ``breathing room,'' the 
``safety valve'' function of speech is diminished.\740\ Furthermore, 
even seemingly low-value speech can have a ``downstream effect of 
leading to constructive discussion and debate which would not have 
taken place otherwise.'' \741\ For these reasons, the Sec.  106.30 
definition of sexual harassment is designed to capture non-speech 
conduct broadly (based on an assumption of the education-denying 
effects of such conduct), while applying the Davis standard to verbal 
conduct so that the critical purposes of both Title IX and the First 
Amendment can be met.
---------------------------------------------------------------------------

    \738\ E.g., Azhar Majeed, The Misapplication of Peer Harassment 
Law on College and University Campuses and the Loss of Student 
Speech Rights, 35 Journal of Coll. & Univ. L. 385, 391-92 (2009) 
(discussing examples of universities punishing protected speech 
including: A student-employee charged with racial harassment merely 
for reading a book entitled Notre Dame vs. The Klan; finding a 
professor guilty of racial harassment for explaining in a Latin 
American Politics class that the term ``wetbacks'' is commonly used 
as a derogatory reference to Mexican immigrants; investigating a 
criminal law professor for a sexually hostile environment where the 
professor's exam presented a hypothetical case in which a woman 
seeking an abortion felt thankful after she was attacked because the 
physical attack resulted in the death of her fetus; finding a 
student guilty of sexual harassment for posting flyers joking that 
freshman women could lose weight by using the stairs); see also 
Nadine Strossen, Law Professor and former ACLU President, 2015 
Richard S. Salant Lecture on Freedom of the Press at Harvard 
University (Nov. 5, 2015), https://shorensteincenter.org/nadine-strossen-free-expression-an-endangered-species-on-campus-transcript/ 
(identifying the free speech and academic freedom problems with 
``the overbroad, unjustified concept of illegal sexual harassment as 
extending to speech with any sexual content that anyone finds 
offensive,'' opining that the current college climate exalts a 
misplaced concept of ``safety'' by insisting that ``safety seeks 
protection from exposure to ideas that make one uncomfortable . . . 
. [W]hen it comes to safety, our students are being doubly 
disserved. Too often, denied safety from physical violence, which is 
critical for their education, but too often granted safety from 
ideas, which is antithetical to their education,'' and detailing 
numerous examples ``of campus censorship in the guise of punishing 
sexual harassment'' including: Subjecting a professor to 
investigation for writing an essay critical of current sexual 
harassment policies; punishing a professor who, during a lecture, 
paraphrased Machiavelli's comments about raping the goddess Fortuna; 
finding a professor guilty of sexual harassment for teaching about 
sexual topics in a graduate-level course called ``Drugs and Sin in 
American Life;'' suspending a professor for showing a documentary 
that examined the adult film industry; punishing a professor for 
having students play roles in a scripted skit about prostitution in 
a course on deviance; punishing a professor for requiring a class to 
write essays defining pornography; firing an early childhood 
education professor who had received multiple teaching awards, for 
occasionally using vulgar language and humor about sex in her 
lectures about human sexuality).
    \739\ Azhar Majeed, The Misapplication of Peer Harassment Law on 
College and University Campuses and the Loss of Student Speech 
Rights, 35 Journal of Coll. & Univ. L. 385, 397 (2009) (``Of course, 
sexual and racial harassment policies, regardless of the terms in 
which they are drafted, are oftentimes applied against protected 
speech, which again leads many potential speakers to conclude that 
it is better to stay silent and not risk the consequences of being 
charged with harassment. . . . The unfortunate result, then, is that 
students have a strong incentive to refrain from saying anything 
provocative, inflammatory, or bold and to instead cautiously stick 
to that which is mundane or conventional. This halts much campus 
discussion and debate, taking away from the campus's function as a 
true marketplace of ideas.''); id. at 432-34 (discussing several 
Federal court cases striking down university anti-harassment codes 
as applied to constitutionally protected speech, including Cohen v. 
San Bernardino Valley Coll., 92 F.3d 968 (9th Cir. 1996); Iota Xi 
Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386 
(4th Cir. 1993); Silva v. Univ. of N.H., 888 F. Supp. 293 (D. N.H. 
1994)).
    \740\ Azhar Majeed, The Misapplication of Peer Harassment Law on 
College and University Campuses and the Loss of Student Speech 
Rights, 35 Journal of Coll. & Univ. L. 385, 398-99 (2009) 
(``Furthermore, one of the benefits of providing breathing room for 
such expression is that it allows the speaker to espouse his or her 
views through constructive dialogue rather than act out of 
frustration by committing acts of violence or hate crimes. This 
outlet has been labeled the `safety valve' function of speech.'').
    \741\ Id. (``By exposing the real ugliness of prejudice, 
ignorance and hate, such speech can reach and convince people in 
ways that polite conversation never could. Moreover, ignorant or 
misguided speech, though seemingly possessing little value or merit 
on its own, often has the `downstream' effect of leading to 
constructive discussion and debate which would not have taken place 
otherwise. Consequently, the initial expression greatly benefits the 
marketplace of ideas and enriches students' understanding of 
important issues by increasing the potential for real and meaningful 
debate on campus.'').
---------------------------------------------------------------------------

    Changes: None.
So Severe
    Comments: Some commenters asserted that the ``so severe'' element 
of the second prong of the Sec.  106.30 definition means that 
recipients must ignore many harassment incidents that result in 
academic, economic, and psychological harm and suffering including 
depression and post-traumatic stress disorder, whereas the better 
approach is to treat any level of harassment as seriously as the most 
severe level. Some commenters asserted that schools should never try to 
tell a survivor what was or was not severe because the survivor is the 
only person who can determine what was severe. Other commenters 
wondered what threshold determines an incident as ``severe,'' whether 
severity refers to the mental impact on the victim or the physical 
nature of the unwelcome conduct (or both), and how a victim is expected 
to prove severity.
    Discussion: For reasons discussed above, the Department believes 
that severity is a necessary element to balance protection from sexual 
harassment with protection of freedom of speech and expression. The 
Department interprets the Davis standard formulated in Sec.  106.30 as 
subjective with respect to the unwelcomeness of the conduct (i.e., 
whether the complainant viewed the conduct as unwelcome), and the final 
regulations clarify that the elements of severity, pervasiveness, 
objective offensiveness, and resulting denial of equal access are 
determined under a reasonable person standard.\742\ In this way, 
evaluation of whether harassment is ``severe'' appropriately takes into 
account the circumstances facing a particular complainant, such as the 
complainant's age, disability status, sex, and other characteristics. 
This evaluation does not burden a complainant to ``prove severity,'' 
because a complainant need only describe what occurred and the 
recipient must then consider whether the described occurrence was 
severe from the perspective of a reasonable person in the complainant's 
position.
---------------------------------------------------------------------------

    \742\ See Davis, 526 U.S. at 653-54 (applying the severe, 
pervasive, objectively offensive, denial of access standard to the 
facts at issue under an objective approach) (``Petitioner alleges 
that her daughter was the victim of repeated acts of sexual 
harassment by G. F. over a 5-month period, and there are allegations 
in support of the conclusion that G. F.'s misconduct was severe, 
pervasive, and objectively offensive. The harassment was not only 
verbal; it included numerous acts of objectively offensive touching, 
and, indeed, G. F. ultimately pleaded guilty to criminal sexual 
misconduct. . . . Further, petitioner contends that the harassment 
had a concrete, negative effect on her daughter's ability to receive 
an education.'').
---------------------------------------------------------------------------

    Changes: None.
And Pervasive
    Comments: Many commenters believed that the ``pervasive'' element 
of the second prong of the Sec.  106.30 definition means that students 
would be forced to endure repeated, escalating levels of harassment 
before seeking help from schools, and that by the time schools must 
intervene it might be too late because victims will already have 
suffered emotional harm and derailed educational futures (e.g., 
ineligibility for an advanced placement course or rejection from 
admission to a dream college after grades dropped due to harassment 
that was not deemed pervasive). Several commenters asserted that every 
instance of discrimination deserves investigation, or else patterns of 
harassment will not be discovered because each single instance will be 
dismissed as not ``pervasive.'' Some such commenters argued that 
without an investigation, a school will not know whether a single 
instance of an inappropriate remark or joke is truly an isolated 
incident or part of a pattern. A few commenters argued that especially 
in elementary and secondary schools, students whose reports are turned 
away for not being ``pervasive'' will be very unlikely to report again 
when the conduct repeats and does become pervasive.
    Several commenters described scenarios that they asserted would not 
be covered as sexual harassment under Sec.  106.30 because they fail to 
meet the pervasive element even though such scenarios present severe, 
objectively offensive, threatening, humiliating, harm-inducing 
consequences on victims, including: A professor blocking a teaching 
assistant's exit from a small office while badgering the assistant with 
sexual insults; a teacher inappropriately touching a student while 
making sexually explicit comments during an after-school meeting; 
students posting videos of ``revenge porn'' on social media.
    Discussion: The Department reiterates that quid pro quo harassment 
and Clery Act/VAWA offenses (sexual assault, dating violence, domestic 
violence, and stalking) constitute sexual harassment under Sec.  106.30 
without any evaluation for pervasiveness. Thus, students do not have to 
endure repeated incidents of such abuse without recourse from a 
recipient. The Department further reiterates that recipients retain 
discretion to provide supportive measures to any complainant even

[[Page 30166]]

where the harassment is not pervasive. The Department disagrees that an 
investigation into every offensive comment or joke is necessary in 
order to discern whether the isolated comment is part of a pervasive 
pattern of harassment. For reasons discussed above, chilling speech and 
expression by investigating each instance of unwelcome speech is not a 
constitutionally permissible way of ensuring that unlawful harassment 
is not occurring. The Department appreciates commenters' concerns that 
if a complainant receives no support after reporting one incident (that 
does not rise to the level of actionable harassment under Title IX) the 
complainant may feel deterred from reporting again if the harassment 
escalates and meets the Davis standard. This is one reason why the 
Department emphasizes that recipients remain free to provide supportive 
measures even where alleged conduct does not meet the Sec.  106.30 
definition of sexual harassment, and to utilize institutional speech 
and provide general programming to foster a respectful educational 
environment, none of which requires punishing or chilling protected 
speech.
    With respect to the scenarios presented by commenters as examples 
of harassment that may not meet the Davis standard because of lack of 
pervasiveness, the Department declines to make definitive statements 
about examples, due to the necessarily fact-specific nature of the 
analysis. However, we note that sexual harassment by a teacher or 
professor toward a student or subordinate may constitute quid pro quo 
harassment, which does not need to meet a pervasiveness element. The 
Davis standard as applied in Sec.  106.30 is broad, encompassing any 
unwelcome conduct on the basis of sex that a reasonable person would 
find so severe, pervasive, and objectively offensive that a person is 
effectively denied equal educational access. Disseminating ``revenge 
porn,'' or conspiring to sexually harass people (such as fraternity 
members telling new pledges to ``score''), or other unwelcome conduct 
that harms and humiliates a person on the basis of sex may meet the 
elements of the Davis standard including pervasiveness, particularly 
where the unwelcome sex-based conduct involves widespread dissemination 
of offensive material or multiple people agreeing to potentially 
victimize others and taking steps in furtherance of the agreement. 
Finally, a single instance of unwelcome physical conduct may meet 
definitions of assault or battery prohibited by other laws, even if the 
incident does not meet one of the three prongs of the Sec.  106.30 
definition of sexual harassment.
    Changes: None.
Objectively Offensive
    Comments: Several commenters argued that the ``objectively 
offensive'' element of the second prong of the Sec.  106.30 definition 
will mean different things to different school officials, and result in 
similar incidents being investigated by some schools and not by others. 
Several commenters asserted that ``objectively offensive'' creates an 
unnecessary and inappropriate scrutiny of victims and their 
experiences, creating barriers to reporting and making campuses less 
safe, contributing to victim-blaming, perpetuating myths and 
misconceptions about sexual violence, and minimizing the harm caused by 
sexual harassment.
    Several commenters asserted that nothing is ``objectively'' 
offensive because what is offensive is based on how conduct 
subjectively makes a person feel yet ``objective'' means not influenced 
by personal feelings; these commenters argued that therefore the term 
``objectively offensive'' is an oxymoron. At least one commenter argued 
that research shows that individuals experience sex-based misconduct 
differently, depending on prior life experiences, previous 
victimization, and other factors.\743\
---------------------------------------------------------------------------

    \743\ Commenters cited: Emma M. Millon et al., Stressful Life 
Memories Relate to Ruminative Thoughts in Women with Sexual Violence 
History, Irrespective of PTSD, Frontiers in Psychiatry 9 (2018).
---------------------------------------------------------------------------

    Commenters similarly opined that offensiveness depends on the 
impact of the conduct, not the intent of the perpetrator. One commenter 
opined that cat-calling may not sound objectively threatening, yet 
knowing that cat-calling and similar objectification of women may 
contribute to physical violence against women \744\ might cause a woman 
targeted by cat-calling to feel unsafe.
---------------------------------------------------------------------------

    \744\ Commenters cited: Eduardo A. Vasquez et al., The sexual 
objectification of girls and aggression towards them in gang and 
non-gang affiliated youth, 23 Psychol., Crime & L. 5 (2017).
---------------------------------------------------------------------------

    At least one commenter argued that what is ``objectively 
offensive'' tends to be interpreted as what white, privileged men would 
find to be offensive, lending itself to a ``boys will be boys'' 
attitude that excuses a lot of behavior that offends women and 
marginalized individuals. One commenter recommended that the Department 
issue guidance for what factors to consider so that unconscious bias 
does not impact evaluation of what conduct is ``offensive.'' One 
commenter claimed that the Sec.  106.30 definition fails to account for 
the intersectional dynamics (race, gender, sexual orientation, culture, 
etc.) that may impact the severity and objective offensiveness of an 
act. This commenter argued that since the purpose of having an 
investigation is to decide whether conduct was in fact severe, 
pervasive, and objectively offensive it makes little sense to require 
schools to dismiss claims at the outset when the rape culture pyramid 
explains how small microaggressions and supposedly ``less severe'' 
offenses fuel a culture for severe behaviors to become normalized. This 
commenter recommended that ``objectively offensive'' should be defined 
and understood with a high bar for sensitive, respectful language and 
conduct towards all in the community.
    At least one commenter argued that because violence against women 
is often normalized,\745\ and perpetrators of even heinous sexual 
crimes rationalize their behaviors through victim blaming,\746\ these 
social realities make it very difficult for any act of sexual violence 
or harassment to be deemed ``objectively offensive'' even when the acts 
are disruptive or traumatic to the victim. At least one commenter 
asserted that the Sec.  106.30 definition eliminates the possibility of 
recipients focusing on unique or personally harmful situations; for 
example, when private or ``inside'' jokes do not seem offensive to 
outsiders but have a harmful connotation for the victim.
---------------------------------------------------------------------------

    \745\ Commenters cited: Heather R. Hlavka, Normalizing Sexual 
Violence: Young Women Account for Harassment and Abuse, 28 Gender & 
Soc'y 3 (2014).
    \746\ Commenters cited: Diana Scully, & Joseph Marolla, 
Convicted rapists' vocabulary of motive: Excuses and justifications, 
31 Social Problems 5 (1984).
---------------------------------------------------------------------------

    Several commenters noted that under case law, what is objectively 
offensive is analyzed from the perspective of a reasonable person 
standing in the shoes of the complainant, using an approach that 
rejects disaggregation of allegations and instead looks at the 
aggregate or cumulative impact of conduct.\747\ One commenter urged the 
Department to clarify that whether conduct is ``severe, pervasive, and 
objectively offensive'' depends on evaluation by a reasonable person 
and the hypothetical ``reasonable person'' must consider both male and 
female views of what is ``offensive.''
---------------------------------------------------------------------------

    \747\ Commenters cited: Harris v. Forklift Sys., Inc., 510 U.S. 
17 (1993).
---------------------------------------------------------------------------

    At least one commenter argued that the ``objectively offensive'' 
element undermines a longstanding analytic requirement that recipients 
evaluate

[[Page 30167]]

conduct from both objective and subjective viewpoints (e.g., 2001 
Guidance at p. 5).
    Discussion: The Department agrees with commenters who note that 
whether harassing conduct is ``objectively offensive'' must be 
evaluated under a reasonable person standard, as a reasonable person in 
the complainant's position,\748\ though the Department declines to 
require a commenter's suggestion that the ``reasonable person'' 
standard must consider offensiveness from both male and female 
perspectives because the latter suggestion would invite application of 
sex stereotypes. The final regulations revise the second prong of the 
Sec.  106.30 definition to expressly state that the Davis elements are 
determined under a reasonable person standard.
---------------------------------------------------------------------------

    \748\ See Davis, 526 U.S. at 653-54 (applying the severe, 
pervasive, objectively offensive, denial of access standard to the 
facts at issue under an objective approach) (``there are allegations 
in support of the conclusion that G. F.'s misconduct was severe, 
pervasive, and objectively offensive. The harassment was not only 
verbal; it included numerous acts of objectively offensive 
touching''); see also Oncale v. Sundowner Offshore Serv., Inc., 523 
U.S. 75, 81 (1998) (``We have emphasized, moreover, that the 
objective severity of harassment should be judged from the 
perspective of a reasonable person in the plaintiff's position, 
considering all the circumstances.'') (internal quotation marks and 
citations omitted.).
---------------------------------------------------------------------------

    The Department disagrees that ``objectively offensive'' is 
oxymoronic; the objective nature of the inquiry simply means that 
evaluation is made by a reasonable person considering whether, standing 
in the shoes of the complainant, the conduct would be offensive. The 
reasonable person standard appropriately takes into account whether a 
reasonable person, in the position of the particular complainant, would 
find the conduct offensive, thus the standard should not result in 
victims being blamed or excluded from receiving support regardless of 
whether the school officials evaluating the conduct share the same 
race, sex, age, or other characteristics as the complainant. It would 
be inappropriate for a Title IX Coordinator to evaluate conduct for 
objective offensiveness by shrugging off unwelcome conduct as simply 
``boys being boys'' or make similar assumptions based on bias or 
prejudice. To take that approach would risk evidencing sex-based bias 
in contravention of Sec.  106.45(a) or bias for or against a 
complainant or respondent in violation of Sec.  106.45(b)(1)(iii), in 
addition to indicating improper evaluation of the Davis elements under 
a reasonable person standard. For reasons discussed under Sec.  
106.45(b)(1)(iii), the Department leaves recipients flexibility to 
decide the content of the training required for Title IX personnel 
under that provision, and nothing in the final regulations precludes a 
recipient from addressing implicit or unconscious bias as part of such 
training.
    The Department disagrees that this standard inappropriately results 
in different schools making different decisions about what is 
objectively offensive. The Department believes that a benefit of the 
Davis standard as formulated in the second prong of Sec.  106.30 is 
that whether harassment is actionable turns on both subjectivity (i.e., 
whether the conduct is unwelcome, according to the complainant) and 
objectivity (i.e., ``objectively offensive'') with the Davis elements 
determined under a reasonable person standard, thereby retaining a 
similar ``both subjective and objective'' analytic approach that 
commenters point out is used in the 2001 Guidance.\749\ The fact-
specific nature of evaluating sexual harassment does mean that 
different people may reach different conclusions about similar conduct, 
but this is not unreasonable because the specific facts and 
circumstances of each incident and the parties involved may require 
different conclusions. The Davis standard does not require an 
``intent'' element; unwelcome conduct so severe, pervasive, and 
objectively offensive that it denies a person equal educational 
opportunity is actionable sexual harassment regardless of the 
respondent's intent to cause harm.
---------------------------------------------------------------------------

    \749\ 2001 Guidance at 5 (conduct should be evaluated from both 
a subjective and objective perspective); id. at fn. 39 (citing case 
law for the proposition that whether conduct is severe, or 
objectively offensive, must be judged from the perspective of a 
reasonable person in the complainant's position, such as Harris v. 
Forklift Sys., Inc., 510 U.S. 17, 20-22 (1993) (requiring subjective 
and objective creation of a hostile work environment)).
---------------------------------------------------------------------------

    The Department disagrees that the objectively offensive element 
results in unnecessary scrutiny of victims' experiences that will 
create reporting barriers, make campuses less safe, lead to victim-
blaming, or perpetuate sexual violence myths and misconceptions. The 
Davis standard ensures that all students, employees, and recipients 
understand that unwelcome conduct on the basis of sex is actionable 
under Title IX when a reasonable person in the complainant's position 
would find the conduct severe, pervasive, and objectively offensive 
such that it effectively denies equal access to the recipient's 
education program or activity.
    For reasons explained above, the Department appreciates commenters' 
concerns that even conduct characterized by commenters as low-level 
harassment (such as cat-calling and microaggressions) can be harmful, 
and that some situations have escalated from minor incidents into 
violence and even homicide against women. This is why, in response to 
commenters, we have revised final Sec.  106.30 to include as per se 
sexual harassment every incident of the Clery Act/VAWA offenses of 
dating violence, domestic violence, and stalking (in addition to sexual 
assault, which was referenced in the NPRM and remains part of the final 
regulations). In this way, the Sec.  106.30 definition stands firmly 
against sex-based physical conduct, including violence and threats of 
violence, while ensuring that verbal and expressive conduct is 
punishable as Title IX sex discrimination only when the conduct crosses 
a line from protected speech into sexual harassment that denies a 
person equal access to education. For the same reasons, the Sec.  
106.30 definition pushes back against an historical, societal problem 
of normalizing violence against women. By not imposing an ``intent'' 
element into the sexual harassment definition, Sec.  106.30 makes clear 
that sexual harassment under any part of the Sec.  106.30 definition 
cannot be excused by trying to blame the victim or rationalize the 
perpetrator's behavior, tactics pointed to by commenters (and supported 
by research) as common reasons why victims (particularly women) have 
often faced dismissiveness, shame, or ridicule when reporting sex-based 
violence to authorities.
    Changes: We have revised the second prong of the Sec.  106.30 
definition to expressly state that the Davis elements are determined 
under a reasonable person standard.
Effectively Denies Equal Access
    Comments: Many commenters objected to the element in the second 
prong of the Sec.  106.30 definition that conduct ``effectively denies 
a person equal access'' as a confusing, stringent, unduly restrictive 
standard that will harm survivors, benefit perpetrators, and send the 
message to assailants that non-physical sexual harassment is 
acceptable. At least one commenter stated that requiring conduct to 
rise to the level of denying a person equal access to the recipient's 
education program or activity is inconsistent with the language of 
Title IX because it is a higher bar than the statute's provision (20 
U.S.C. 1681) that ``no person in the United States shall, on the basis 
of sex, be excluded from participation in, be denied the benefits of, 
or be subjected

[[Page 30168]]

to discrimination under any educational program or activity receiving 
federal financial assistance.'' Several commenters asserted that 
waiting until a complainant's access to education has been denied means 
that students must wait for help until harassing or violent behaviors 
cause victims to reach a breaking point, making a mockery of 
institutional responsibility and the values of an educational 
community.
    Many commenters believed that the ``effectively denies equal 
access'' element supports a culture that conveys acceptance of sexual 
harassment of women as long as the victims continue showing up to 
school, leaving girls and women in situations that are difficult and 
discouraging without recourse until they have lost access altogether. 
Many commenters believed that in order to file a Title IX complaint 
meeting this element, a victim would need to drop out of school 
entirely, fail a class, have a panic attack, be unable to function, or 
otherwise provide evidence of denial of access. Commenters argued that 
this standard makes no sense because help should be given to 
complainants before access has been denied, and will lead to more 
victims dropping out of school. One commenter relayed a personal story 
of sexual assault and stated that the commenter felt deterred from 
reporting the incident because the commenter was unsure whether, under 
the NPRM, the university would consider the incident significant enough 
to respond, despite the fact that the commenter knew of witnesses who 
could attest to the incident, and the commenter had to switch out of a 
class to avoid crossing paths with the perpetrator.
    Many commenters believed that this element has a perverse effect of 
leaving students who demonstrate resilience by managing to attend 
classes and participate in educational activities despite being 
subjected to harassment and abuse without protection from the 
harassment they suffer. A few commenters opposed this element because 
it places the focus on a survivor's response to trauma instead of on 
the unwelcome conduct itself, when everyone responds differently to 
trauma. One commenter recounted an experience of reporting sexual 
violence to the police and being told that they did not appear 
``traumatized enough'' to be credible; the commenter argued that this 
element of the Sec.  106.30 definition leaves too much subjectivity 
with school officials to interpret a victim's reaction to trauma.\750\
---------------------------------------------------------------------------

    \750\ Commenters cited: Rebecca Campbell, Survivors' Help-
Seeking Experiences With the Legal and Medical Systems, 20 Violence 
& Victims 1 (2005), for the proposition that trauma cannot be 
identified or understood by looking at someone and everyone responds 
to trauma in a different manner.
---------------------------------------------------------------------------

    One commenter supported the proposed rules because for the first 
time the Department is regulating sexual harassment as a form of sex 
discrimination under Title IX, and sexual assault as a form of sexual 
harassment, but expressed concern that many commenters interpret the 
``effectively denies equal access'' element as requiring students to 
drop out of school before action can be taken, amounting to a 
``constructive expulsion'' requirement that is much more strict than 
what Title IX requires. Many commenters expressed the belief that this 
element means harassment is not actionable unless a complainant has 
been effectively driven off campus, and most of these commenters urged 
the Department to use ``denies or limits'' or simply ``limits'' instead 
of ``effectively denies'' to clarify that unwelcome conduct is 
actionable when it limits (not only when it has already denied) equal 
access to education. Many such commenters noted that the 2001 Guidance 
used ``deny or limit'' to recognize that students should not be denied 
a remedy for sexual harassment because they continue to come to class 
or participate in athletic practice no matter at what personal or 
emotional cost. At least one commenter stated that the 2001 Guidance 
only prohibits conduct that is sufficiently serious to deny or limit a 
student's educational benefits or opportunities from both a subjective 
and objective perspective, so if the purpose of the proposed definition 
is to minimize its misapplication to low-level situations that remain 
protected by the First Amendment (for public institutions) and 
principles of academic freedom (for private institutions), that could 
be accomplished simply through clarification of the 2001 Guidance 
rather than adopting the Davis definition.
    Several commenters wondered how a victim is supposed to prove 
effective denial, and stated that such a hurdle only perpetuates the 
harmful concept of ``the perfect victim'' that already causes too many 
victims to question whether their experience has been ``bad enough'' to 
be considered valid and worthy of intervention. One commenter asserted 
that knowledge about high functioning depression is growing more 
common, but a victim who is attending classes and does not appear 
significantly affected might believe they cannot even report sexual 
harassment and must continue suffering in silence. One commenter 
wondered if this element would mean that a third grade student sexually 
harassed by a sixth grade student who still attends school but 
expresses anxiety to their parent every day, begins bed-wetting, or 
cries themselves to sleep at night, has experienced ``effective 
denial'' or not. The same commenter further wondered if a ninth grader 
joining the wrestling team who gets sexually hazed by teammates has 
been ``effectively denied'' access if he quits the team but still 
carries on with other school activities. Another commenter stated that 
``deny access'' would seem to allow for a professor to make 
inappropriate gender related jokes, making students of that gender feel 
uncomfortable in the class and potentially perform poorer, although 
they still attend class, so thus they are not ``denied,'' but rather 
just ``negatively impacted.''
    One commenter argued that this element mirrors the statutory 
language of ``excluded from participation,'' but neglects the other two 
clauses (denial of benefits and subjected to discrimination) in the 
Title IX statute. This commenter stated that while this higher standard 
might be appropriate under the Supreme Court's rubric for Title IX 
private lawsuits, the Department should not reduce its own 
administrative authority because sexual harassment can, and does, deny 
people educational benefits and opportunities even without excluding 
them entirely from access to education. This commenter argued that if 
Congress intended for the denial of benefits clause to be as narrow as 
the exclusion from participation clause, Congress would not have 
bothered using the two phrases separately; rules of statutory 
construction mean that Congress does not use words accidentally or 
without meaning. The commenter argued that a plain interpretation of 
the Title IX statute means that a lower level of denial of benefits 
could violate Title IX as much as a higher level of exclusion from 
participation. The commenter asserted that this does not mean that a 
very minor limitation of access would meet the standard, but some 
limitations (short of ``denial'') should meet the standard and must be 
covered by Title IX.
    One commenter expressed concern over the varied interpretations of 
``access'' to educational activities among Federal courts, noting that 
some interpret it narrowly (i.e., the ability of a student to enter in 
or begin an educational activity) while others interpret it more 
broadly (i.e., the ability to enter into an educational activity free 
from discriminatory experiences). Another commenter requested 
clarification that the Department

[[Page 30169]]

interprets the ``effective denial of equal access'' element as not just 
physical inability to attend classes but also where a complainant 
experiences negative impacts on learning opportunities. Some commenters 
expressed concern that recipients will be confused about whether they 
are obligated to intervene if a student skips class to avoid a 
harasser, has difficulty focusing in class because of harassment, or 
suffers a decline in their grade point average (GPA) due to harassment, 
since these consequences have not yet cut off the student's ``access'' 
to education.
    A few commenters expressed concern that this element could have 
detrimental effects on international students because they rely on 
student visas that require them to meet a certain academic performance, 
so waiting until academic performance has suffered may be too late to 
help the international student because the student may already have 
lost their student visa. At least one commenter argued that this 
element is inappropriate in the elementary and secondary school context 
because the time-limited nature of education during the developmental 
years means that requiring inaction until a student has already lost 
educational access impedes basic civil rights.
    One commenter wondered if a recipient exercising disciplinary power 
over student misconduct that does not affect the complainant's access 
to its program or activity, but declining to do so for sexual 
harassment, would be making a gender-based exception that constitutes 
sex discrimination in violation of Title IX.
    Several commenters urged the Department to adopt an alternative 
approach adapted from workplace sexual harassment law, under which 
unwelcome conduct is actionable where it creates an environment 
reasonably perceived (and actually perceived) as hostile and abusive, 
altering work conditions, without requiring any showing of a tangible 
adverse action or psychological harm.\751\ One such commenter urged the 
Department to adopt this ``tried and tested formula'' because the harm 
done to a survivor's educational access and performance should be just 
one factor in determining whether harassing conduct creates an 
environment which would be reasonably perceived as hostile, and no 
single factor should be dispositive but rather based on the totality of 
all the circumstances.\752\ One commenter suggested replacing 
``effectively denies a person's equal access'' with ``effectively bars 
a person's access to an educational opportunity or benefit'' because 
the former sets too high a standard while the ``effectively bars'' 
phrase is used in Davis.\753\
---------------------------------------------------------------------------

    \751\ Commenters cited: Harris, 510 U.S. at 22.
    \752\ Commenters cited: Harris, 510 U.S. at 22-23 (``This is 
not, and by its nature cannot be, a mathematically precise test . . 
. But we can say that whether an environment is `hostile' or 
`abusive' can be determined only by looking at all the circumstances 
. . . no single factor is required.'').
    \753\ Commenters cited: Davis, 526 U.S. at 640 (``that such an 
action will lie only for harassment that is so severe, pervasive, 
and objectively offensive that it effectively bars the victim's 
access to an educational opportunity or benefit'').
---------------------------------------------------------------------------

    A few commenters argued that eliminating hostile environment in its 
entirety from analyses of sexual harassment leaves victims without 
recourse and reflects the Department's ignorance of the realities of 
sexual violence because conduct considered benign when examined in 
isolation can be oppressive and limiting when considered in the context 
of sexual trauma. One such commenter argued that the decision to 
eliminate the concept of ``hostile environment'' without anything in 
its place is a callous decision that fundamentally contradicts the 
purpose of Title IX. This commenter contended that harassment in the 
form of cat-calling, for instance, creates a hostile environment even 
without interfering with access to education, and should not be 
tolerated.
    One commenter stated that the NPRM is inconsistent because at some 
points, the Department writes that schools must intervene in harassment 
that ``effectively denies a person equal access to the recipient's 
education program or activity,'' but at other points, the Department 
omits the critical word ``equal'' before ``access.''
    Discussion: The Department understands commenters' concerns that 
the ``effectively denies a person equal access'' element sets too high 
a bar for a sexual harassment complainant to seek assistance from their 
school, college, or university. The Department reiterates that this 
element does not apply to the first or third prongs of the Sec.  106.30 
definition (quid pro quo harassment and Clery Act/VAWA offenses, none 
of which need a demonstrated denial of equal access in any particular 
situation because the Department agrees with commenters that such acts 
inherently jeopardize equal educational access).
    The Department appreciates the opportunity to clarify that, 
contrary to many commenters' fears and concerns, this element does not 
require that a complainant has already suffered loss of education 
before being able to report sexual harassment. This element of the 
Davis standard formulated in Sec.  106.30 requires that a person's 
``equal'' access to education has been denied, not that a person's 
total or entire educational access has been denied. This element 
identifies severe, pervasive, objectively offensive unwelcome conduct 
that deprives the complainant of equal access, measured against the 
access of a person who has not been subjected to the sexual harassment. 
Therefore, we do not intend for this element to mean that more victims 
will withdraw from classes or drop out of school, or that only victims 
who do so will have recourse from their schools.
    This element is adopted from the Supreme Court's approach in Davis, 
where the Supreme Court specifically held that Title IX's prohibition 
against exclusion from participation, denial of benefits, and 
subjection to discrimination applies to situations ranging from 
complete, physical exclusion from a classroom to denial of equal 
access.\754\ In line with this approach, the Sec.  106.30 definition 
does not apply only when a complainant has been entirely, physically 
excluded from educational opportunities but to any situation where the 
sexual harassment ``so undermines and detracts from the victims' 
educational experience, that the victim-students are effectively denied 
equal access to an institution's resources and opportunities.'' \755\ 
Neither the Supreme Court, nor the final regulations in Sec.  106.30, 
requires showing that a complainant dropped out of school, failed a 
class, had a panic attack, or otherwise reached a ``breaking point'' in 
order to report and receive a recipient's supportive response to sexual 
harassment. The Department acknowledges that individuals react to 
sexual harassment in a wide variety of ways, and does not interpret the 
Davis standard to require certain manifestations of trauma or a 
``constructive expulsion.'' Evaluating whether a reasonable person in 
the

[[Page 30170]]

complainant's position would deem the alleged harassment to deny a 
person ``equal access'' to education protects complainants against 
school officials inappropriately judging how a complainant has reacted 
to the sexual harassment. The Sec.  106.30 definition neither requires 
nor permits school officials to impose notions of what a ``perfect 
victim'' does or says, nor may a recipient refuse to respond to sexual 
harassment because a complainant is ``high-functioning'' or not showing 
particular symptoms following a sexual harassment incident.
---------------------------------------------------------------------------

    \754\ See Davis, 526 U.S. at 651 (``It is not necessary, 
however, to show physical exclusion to demonstrate that students 
have been deprived by the actions of another student or students of 
an educational opportunity on the basis of sex. Rather, a plaintiff 
must establish sexual harassment of students that is so severe, 
pervasive, and objectively offensive, and that so undermines and 
detracts from the victims' educational experience, that the victim-
students are effectively denied equal access to an institution's 
resources and opportunities.'') (emphasis added).
    \755\ See id. at 650-652 (describing the denial of access 
element variously as: ``depriv[ing] the victims of access to the 
educational opportunities or benefits provided by the school,'' 
``effectively den[ying] equal access to an institution's resources 
and opportunities'' and ``den[ying] its victims the equal access to 
education that Title IX is designed to protect.'') (emphasis added).
---------------------------------------------------------------------------

    School officials turning away a complainant by deciding the 
complainant was ``not traumatized enough'' would be impermissible under 
the final regulations because Sec.  106.30 does not require evidence of 
concrete manifestations of the harassment. Instead, this provision 
assumes the negative educational impact of quid pro quo harassment and 
Clery Act/VAWA offenses included in Sec.  106.30 and evaluates other 
sexual harassment based on whether a reasonable person in the 
complainant's position would be effectively denied equal access to 
education compared to a similarly situated person who is not suffering 
the alleged sexual harassment. Thus, contrary to commenters' concerns, 
victims do not need to suffer in silence, and do not need to worry 
about what types of symptoms of trauma will be ``bad enough'' to ensure 
that a recipient responds to their report. Commenters' examples of a 
third grader who starts bed-wetting or crying at night due to sexual 
harassment, or a high school wrestler who quits the team but carries on 
with other school activities following sexual harassment, likely 
constitute examples of denial to those complainants of ``equal'' access 
to educational opportunities even without constituting a total 
exclusion or denial of an education, and the Department reiterates that 
no specific type of reaction to the alleged sexual harassment is 
necessary to conclude that severe, pervasive, objectively offensive 
sexual harassment has denied a complainant ``equal access.''
    For reasons described above, the Department believes that adoption 
and adaption of the Davis standard better serves both the purposes of 
Title IX's non-discrimination mandate and constitutional protections of 
free speech and academic freedom, and thus the final regulations retain 
the Davis formulation of effective denial of equal access rather than 
the language used in Department guidance documents. While commenters 
correctly assert that the Department is not required to use the Davis 
standard, for the reasons explained in the ``Adoption and Adaption of 
the Supreme Court's Framework to Address Sexual Harassment'' section of 
this preamble, the Department is persuaded that the Supreme Court's 
Title IX cases provide the appropriate backdrop for Title IX 
enforcement, and the Department has intentionally adapted that 
framework for administrative enforcement to provide additional 
protections to complainants (and respondents) not required in private 
Title IX litigation. With respect to the denial of equal access 
element, neither the Davis Court nor the Department's final regulations 
require complete exclusion from an education, but rather denial of 
``equal'' access. Signs of enduring unequal educational access due to 
severe, pervasive, and objectively offensive sexual harassment may 
include, as commenters suggest, skipping class to avoid a harasser, a 
decline in a student's grade point average, or having difficulty 
concentrating in class; however, no concrete injury is required to 
conclude that serious harassment would deprive a reasonable person in 
the complainant's position of the ability to access the recipient's 
education program or activity on an equal basis with persons who are 
not suffering such harassment. This clarification addresses the 
concerns of some commenters that a rule requiring total denial of 
access would harm international students whose student visas may be in 
jeopardy if their academic performance suffers, and the similar 
concerns from commenters that waiting to help until an elementary 
school student has dropped out of school would irreparably damage the 
student's educational pathways. For the same reasons, Sec.  106.30 does 
not raise the issue identified by a commenter as to whether a school 
would be violating Title IX by requiring a student to suffer total 
exclusion before responding to sexual harassment as compared to other 
types of misconduct.
    For reasons described above, the Department is persuaded by Supreme 
Court reasoning that different standards for actionable harassment are 
appropriate under Title IX (for educational environments) and Title VII 
(for the workplace). However, neither law requires ``tangible adverse 
action or psychological harm'' before the sexual harassment may be 
actionable, as a commenter feared would be required under these final 
regulations.
    The Department agrees that the Supreme Court used a variety of 
phrasing through the majority opinion to describe the ``denial of equal 
access'' element. However, the Department does not agree with the 
commenter who suggested that using ``effectively bars access to an 
educational opportunity or benefit '' instead of ``effectively denies 
equal access to an education program or activity'' yields a broader or 
better formulation, and in fact, the Department believes that under the 
Davis Court's reasoning, denial of ``equal access'' to a recipient's 
education program or activity reflects a broad standard that 
appropriately captures situations of unequal access due to sex 
discrimination, in conformity with Title IX's non-discrimination 
mandate, and Sec.  106.30 reflects this standard by using the phrase 
``effectively denies a person equal access.''
    The Department disputes that Sec.  106.30 eliminates the concept of 
hostile environment ``without anything in its place.'' While the 
concept of a hostile environment originated under Title VII to describe 
sexual harassment creating a hostile or abusive workplace environment 
altering the conditions of a complainant's job, when interpreting Title 
IX the Supreme Court carefully applied a standard tailored to address 
the particular discriminatory ill addressed by Title IX: Denying a 
person ``the equal access to education that Title IX is designed to 
protect.'' \756\ Contrary to the contention of some commenters that all 
unwelcome conduct must be covered by Title IX even if it does not 
interfere with education, Title IX is concerned with sex discrimination 
in an education program or activity, but as discussed above, does not 
stand as a Federal civility code that requires schools, colleges, and 
universities to prohibit every instance of unwelcome or undesirable 
behavior. The Department acknowledges that the 2001 Guidance and 2017 
Q&A use the phrase ``hostile environment'' to describe sexual 
harassment that is not quid pro quo harassment \757\ and that these 
final regulations depart from those guidance documents by describing 
sexual harassment as actionable when it effectively denies a person 
equal access to education rather than when the sexual harassment 
creates a hostile

[[Page 30171]]

environment. While the two concepts may overlap, for reasons discussed 
above, the denial of equal access to education element is more 
precisely tailored to serve the purpose of Title IX (which bars 
discrimination in education programs or activities) than the hostile 
environment concept, which originated to describe the kind of hostile 
or abusive workplace environment sexual harassment may create under 
Title VII.\758\ Under these final regulations, where sexual harassment 
effectively denies a person ``equal access'' to education, recipients 
must offer the complainant supportive measures (designed to restore or 
preserve the complainant's equal educational access) \759\ and, where a 
fair grievance process finds the respondent to be responsible for 
sexually harassing the complainant, the recipient must effectively 
implement remedies designed to restore or preserve the complainant's 
equal educational access.\760\
---------------------------------------------------------------------------

    \756\ Id. at 652 (holding schools liable where the sexual 
harassment ``denies its victims the equal access to education that 
Title IX is designed to protect.'').
    \757\ 2001 Guidance at 5 (``By contrast, sexual harassment can 
occur that does not explicitly or implicitly condition a decision or 
benefit on submission to sexual conduct. Harassment of this type is 
generally referred to as hostile environment harassment.''); 2017 
Q&A at 1. The withdrawn 2011 Dear Colleague Letter and withdrawn 
2014 Q&A similarly relied on a hostile environment theory of sexual 
harassment. 2011 Dear Colleague Letter at 15; 2014 Q&A at 1.
    \758\ To the extent that the Supreme Court in Davis cited to 
Title VII cases as authority for its formulation of the 
``effectively denied equal access'' element for actionable sexual 
harassment under Title IX, we believe that such citations indicate 
that the Title IX focus on ``effectively denied equal access'' 
element is the educational equivalent of the workplace doctrine of 
``hostile environment.'' E.g., Davis, 526 U.S. at 651 (``Rather, a 
plaintiff must establish sexual harassment of students that is so 
severe, pervasive, and objectively offensive, and that so undermines 
and detracts from the victims' educational experience, that the 
victim-students are effectively denied equal access to an 
institution's resources and opportunities. Cf. Meritor Sav. Bank, 
FSB v. Vinson, 477 U.S. at 67.''); id. (``Whether gender-oriented 
conduct rises to the level of actionable `harassment' thus `depends 
on a constellation of surrounding circumstances, expectations, and 
relationships,' Oncale v. Sundowner Offshore Services, Inc., 523 
U.S. 75, 82, 140 L. Ed. 2d 201, 118 S. Ct. 998 (1998).''). Even 
though these final regulations do not rely on a ``hostile 
environment'' theory of sexual harassment, a recipient may choose to 
deliver special training to a class, disseminate information, or 
take other steps that are designed to clearly communicate the 
message that the school does not tolerate harassment and will be 
responsive to any student who reports sexual harassment, as 
described in the 2001 Guidance, so that no person is effectively 
denied equal access to education. 2001 Guidance at 16.
    \759\ Section 106.44(a) (requiring that with or without a 
grievance process, the recipient's response to sexual harassment 
must include promptly offering supportive measures to the 
complainant); Sec.  106.30 (defining ``supportive measures'' as 
individualized services provided without fee or charge to 
complainants or respondents, designed to restore or preserve equal 
access to education without unreasonably burdening the other party).
    \760\ Section 106.45(b)(1)(i) (requiring the recipient to 
provide remedies to a complainant where a respondent is found 
responsible following a grievance process that complies with Sec.  
106.45 and stating that remedies may consist of individualized 
services similar to those that meet the definition in Sec.  106.30 
of supportive measures except that remedies (unlike supportive 
measures) may be punitive or disciplinary against the respondent, 
and need not avoid burdening the respondent)); Sec.  
106.45(b)(7)(iv) (stating that the Title IX Coordinator is 
responsible for the effective implementation of remedies).
---------------------------------------------------------------------------

    The Department appreciates commenters' pointing out that the NPRM 
inconsistently used the phrases ``equal access'' and ``access'' and has 
revised the final regulations to ensure that all provisions referencing 
denial of access, or preservation or restoration of access, include the 
important modifier ``equal.'' This will ensure that the appropriate 
interpretation of this element is better understood by students, 
employees, and recipients: That Title IX is concerned with ``equal 
access,'' not just total denial of access.
    Changes: We have revised several provisions to ensure the word 
``equal'' appears before ``access'' (e.g., ``effectively denies equal 
access'' or ``restore or preserve equal access'') to mirror the use of 
``equal access'' in Sec.  106.30 defining ``sexual harassment,'' so 
that the terminology and interpretation is consistent throughout the 
final regulations.
Prong (3) Sexual Assault, Dating Violence, Domestic Violence, Stalking
    Comments: Some commenters approved of the third prong of the Sec.  
106.30 definition's reference to the Clery Act's definition of sexual 
assault as part of the overall definition of ``sexual harassment.''
    Many commenters supported the reference to ``sexual assault'' but 
contended that the third prong of the definition should also reference 
the other VAWA crimes included in the Clery Act regulations, namely, 
dating violence, domestic violence, and stalking. A few commenters 
requested clarification as to whether dating violence, domestic 
violence, and stalking would only count as sexual harassment under 
Sec.  106.30 if such crimes met the second prong (severe, pervasive, 
and objectively offensive), and expressed concern that a single 
instance of an offense such as dating violence or domestic violence 
might fail to be included because it would not be considered 
``pervasive.'' A few commenters asserted that the proposed regulations 
would leave dating violence, domestic violence, and stalking in an 
educational civil rights gray area. Many commenters urged the 
Department to bring the third prong of the Sec.  106.30 definition into 
line with the Clery Act, as amended by VAWA, by expressly including 
dating violence, domestic violence, and stalking.
    Several commenters argued that dating violence, domestic violence, 
and stalking are just as serious as sexual harassment and sexual 
assault.\761\ A few commenters recounted working with victims where 
domestic violence or stalking escalated beyond the point of limiting 
educational access even tragically ending up in homicides. A few 
commenters noted that dating violence was recently added as a 
reportable crime under the Clery Act in part because 90 percent of all 
campus rapes occur via date rapes,\762\ and dating violence should be 
included in the Sec.  106.30 definition.
---------------------------------------------------------------------------

    \761\ Commenters cited, e.g.: National Association of Student 
Affairs Administrators in Higher Education (NASPA) & Education 
Commission of the States, State Legislative Developments on Campus 
Sexual Violence: Issues in the Context of Safety 7-8 (2015); Wendy 
Adele Humphrey, ``Let's Talk About Sex'': Legislating and Educating 
on the Affirmative Consent Standard, 50 Univ. of S.F. L. Rev. 35, 
49, 58-60, 62-64, 71 (2016); Emily A. Robey-Phillips, Federalism in 
Campus Sexual Violence: How States Can Protect Their Students When a 
Trump Administration Will Not, 29 Yale J. of L. & Feminism 373, 393-
414 (2018).
    \762\ Commenters cited: Health Research Funding, 39 Date Rape 
Statistics on College Campuses, https://healthresearchfunding.org/39-date-rape-statistics-college-campuses/.
---------------------------------------------------------------------------

    Some commenters asserted that domestic violence is prevalent among 
youth, and that the highest rate of dating violence and domestic 
violence against females occurs between the ages of 16-24,\763\ 
precisely when victims are likely to be in high school and college, 
needing Title IX protections. Commenters argued that if a school fails 
to properly respond to a student's domestic violence situation, the 
student's health and school performance may suffer and even lead to the 
victim dropping out of school, and that a significant number of female 
homicide victims of college age were killed by an intimate 
partner.\764\
---------------------------------------------------------------------------

    \763\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, Bureau of Justice Statistics, Factbook: Violence 
by Intimates (1998).
    \764\ Commenter cited: U.S. Dep't. of Justice, Office of Justice 
Programs, Bureau of Justice Statistics, Factbook: Violence by 
Intimates (1998); U.S. Dep't. of Justice, Office of Justice 
Programs, Bureau of Justice Statistics, Patterns and Trends: 
Homicide Trends in the United States, 1980-2008 (Nov. 2011); Katie 
J. M. Baker, Domestic Violence on Campus is the Next Big College 
Controversy, Buzzfeed News (Jun. 9, 2015).
---------------------------------------------------------------------------

    Many commenters asserted that stalking presents a unique risk to 
the health and safety of college students due to the significant 
connection between stalking and intimate partner violence \765\ insofar 
as stalking often occurs in the context of dating violence and sexual 
violence. Many commenters asserted that stalking is very common on 
college campuses and within the college population; persons aged 18-24

[[Page 30172]]

(the average age of most college students) experience the highest rates 
of stalking victimization of any age group; \766\ and college-aged 
women are stalked at higher rates than the general population and that 
one study showed that over 13 percent of college women had experienced 
stalking in the academic year prior to the study.\767\ One commenter 
cited a study that showed that in ten percent of stalking situations 
the victim reported that the stalker committed, or attempted, forced 
sexual contact.\768\ At least one commenter cited research showing that 
sexual assault perpetrators often employed classic stalking strategies 
(e.g., surveillance and information-gathering) to select victims.\769\ 
A few commenters provided examples of the kind of stalking behaviors 
that commonly victimize college students, including following a victim 
to and from classes, repeatedly contacting a student despite requests 
to cease communication, and threats of self-harm if a student does not 
pay attention to the stalker. Several commenters expressed concern that 
without express recognition of stalking as a sexual harassment 
violation, the discrete incidents involved in a typical stalking 
pattern might not meet the Davis standard and thus would not be 
reportable under Title IX. One commenter elaborated on an example of 
typical stalking behavior that would fall through the cracks of 
effective response under the proposed rules, where the stalking 
behavior is pervasive but arguably not serious (when each incident is 
considered separately) and the complainant declines a no-contact order 
because the locations where the complainant encounters the respondent 
are places the complainant needs to access to pursue the complainant's 
own educational activities. This commenter argued that failure to 
address sex-based stalking may have dire consequences; the commenter 
stated that several tragic homicides of female students \770\ were 
preceded by this fairly standard stalking-turned-violent pattern.
---------------------------------------------------------------------------

    \765\ Commenters cited: Judith McFarlane et al., Stalking and 
Intimate Partner Femicide, 3 Homicide Studies 300 (1999).
    \766\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, Bureau of Justice Statistics, Special Report: 
Stalking Victimization in the United States (2009).
    \767\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, National Institute of Justice, Research Report: 
The Sexual Victimization of College Women (2000).
    \768\ Commenters cited: Id.
    \769\ Commenters cited: David Lisak & Paul Miller, Repeat Rape 
and Multiple Offending Among Undetected Rapists, 17 Violence & 
Victims 1 (2002).
    \770\ Commenters described three such homicide situations: The 
2010 murder of University of Virginia fourth-year student, Yeardley 
Love, by her boyfriend who was also a fourth-year student; the 2018 
murder of University of Utah student Lauren McCluskey, by her ex-
boyfriend; the 2018 murder of 16 year old Texas high schooler Shana 
Fisher--the first victim of the 17 year old shooter who killed ten 
students, beginning with Shana who had recently rejected him 
romantically.
---------------------------------------------------------------------------

    Discussion: The Department appreciates commenters' support for 
including ``sexual assault'' referenced in the Clery Act as an 
independent category of sexual harassment in Sec.  106.30 and we are 
persuaded by the many commenters who asserted that the other Clery Act/
VAWA sex-based offenses (dating violence, domestic violence, and 
stalking) also should be included in the same category as sexual 
assault. Commenters correctly pointed out that without specific 
inclusion of dating violence, domestic violence, and stalking in the 
third prong of Sec.  106.30, those offenses would need to meet the 
Davis standard set forth in the second prong of the Sec.  106.30 
definition. While the NPRM assumed that many such instances would meet 
the elements of severity and pervasiveness (as well as objective 
offensiveness and denial of equal access), commenters reasonably 
expressed concerns that these offenses may not always meet the Davis 
standard.\771\ The Department agrees with commenters who urged that 
because these offenses concern non-expressive, often violent conduct, 
even single instances should not be subjected to scrutiny under the 
Davis standard. Dating violence, domestic violence, and stalking are 
inherently serious sex-based offenses \772\ that risk equal educational 
access, and failing to provide redress for even a single incident does, 
as commenters assert, present unnecessary risk of allowing sex-based 
violence to escalate. The Department is persuaded by commenters' 
arguments and data showing that dating violence, domestic violence, and 
stalking are prevalent, serious problems affecting students, especially 
college-age students. The Department believes that a broad rule 
prohibiting those offenses appropriately falls under Title IX's non-
discrimination mandate without raising any First Amendment concerns. 
The Department therefore revises the final regulations to include 
dating violence, domestic violence, and stalking as defined in the 
Clery Act and VAWA.
---------------------------------------------------------------------------

    \771\ As commenters noted, dating violence and domestic violence 
may fail to meet the Davis standard because although a single 
instance is severe it may not be pervasive, while a course of 
conduct constituting stalking could fail to meet the Davis standard 
because the behaviors, while pervasive, may not independently seem 
severe.
    \772\ Stalking may not always be ``on the basis of sex'' (for 
example when a student stalks an athlete due to celebrity worship 
rather than sex), but when stalking is ``on the basis of sex'' (for 
example, when the stalker desires to date the victim) stalking 
constitutes ``sexual harassment'' under Sec.  106.30. Stalking that 
does not constitute sexual harassment because it is not ``on the 
basis of sex'' may be prohibited and addressed under a recipient's 
non-Title IX codes of conduct.
---------------------------------------------------------------------------

    Changes: We have revised the third prong of the final Sec.  106.30 
definition of sexual harassment to add, after sexual assault, dating 
violence, domestic violence, and stalking as defined in VAWA.
    Comments: One commenter objected to the reference to ``sexual 
assault'' in the third prong of the Sec.  106.30 definition by 
asserting that the definition seemed to be just for the purpose of 
having sexual assault in the proposed regulations without any intent to 
enforce it. A few commenters believed that the third prong's reference 
to ``sexual assault'' will not prevent sexual assault even though 
reported numbers of rapes might decline, because certain situations 
would no longer be considered rape.
    A few commenters objected to the reference to the Clery Act 
definition of ``sexual assault,'' asserting that the definition of 
``sexual assault'' is too narrow because it fails to capture sex-based 
acts such as administration of a date rape drug, attempted rape, a 
respondent forcing a complainant to touch the respondent's genitals, 
the touching of a complainant's non-private body part (e.g., face) with 
the respondent's genitals, or an unwanted and unconsented-to kiss on 
the cheek (even if coupled with forcing apart the complainant's legs).
    One commenter believed the definition of sexual assault is too 
narrow because it does not include a vast number of ``ambiguous'' 
sexual assaults; the commenter argued that coercive sexual violence 
often includes a layer of guilt-inducing ambiguity that may arise from 
explicit or implied threats used by the perpetrator as a means of 
compelling nominal (but not genuine) consent. One commenter stated that 
from December of 2017 to December of 2018, 2,887 people in the United 
States Googled the question ``was I raped?'' and according to the same 
data from Google Trends, in the same time span, 2,311 people Googled 
``rape definition'' and over the last five years, 10,781 and 12,129 
people have searched for the question and definition respectively. This 
commenter argued that these numbers reflect a lack of certainty 
surrounding what constitutes rape and demonstrate the need for clarity 
and better education rather than a vague reference to ``sexual 
assault.'' Another commenter stated that sexual assault cases often fit 
within a certain ``gray area'' often centered on consent issues, and 
that most sexual violence situations are not black and white; the

[[Page 30173]]

commenter opined that Title IX should be available to help complainants 
whose experience is ``a little grayer'' because otherwise people will 
continue to pressure and coerce partners into having sex that is not 
truly consensual, creating more and more trauma.
    At least one commenter asserted that historically, courts have 
considered conduct that meets any reasonable definition of criminal 
sexual assault, including rape, as sex-based harm under Title IX,\773\ 
and thus a separate reference to ``sexual assault'' in the Sec.  106.30 
definition is unnecessary and only serves to blur the distinction 
between school-based administrative processes and criminal justice 
standards. Several other commenters, by contrast, pointed to at least 
one Federal court opinion holding that a rape failed to meet the 
``severe and pervasive'' standard in private litigation under Title 
IX.\774\
---------------------------------------------------------------------------

    \773\ Commenters cited: Soper v. Hoben, 195 F.3d 845, 855 (6th 
Cir. 1999) (assertion that victim was raped, sexually abused, and 
harassed obviously qualifies as severe, pervasive, and objectively 
offensive sexual harassment).
    \774\ Commenters cited: Ross v. Corp. of Mercer Univ., 506 F. 
Supp. 2d 1325, 1358 (M.D. Ga. 2007) (finding that a single instance 
of rape was not pervasive under the Davis standard).
---------------------------------------------------------------------------

    At least one commenter expressed concern that using the Clery Act's 
definition of sexual assault (which includes ``fondling'' under the 
term ``sexual assault'') would encompass ``butt slaps'' (as 
``fondling'') yet this misbehavior occurs with such frequency 
especially in elementary and secondary schools that school districts 
will be overwhelmed with needing to investigate those incidents under 
the strictures of the Title IX grievance process. Another commenter 
expressed concern that including sexual assault (particularly fondling) 
in the third prong of the Sec.  106.30 definition is too broad, and 
wondered whether this definition could encompass innocent play by small 
children, such as ``playing doctor.'' This commenter argued that where 
the conduct at issue does not bother the participants it cannot create 
a subjectively hostile environment or interfere with equal access to an 
education, regardless of lack of consent based on being under the age 
of majority.\775\
---------------------------------------------------------------------------

    \775\ Commenters cited: Newman v. Federal Express, 266 F.3d 401 
(6th Cir. 2001) (racial harassment claim fails when victim is not 
seriously offended); Jadon v. French, 911 P.2d 20, 30-31 (Alaska 
1996) (conduct that does not seriously offend the victim does not 
create a subjectively hostile environment and thus is not sexually 
harassing). Conduct must be not just ``unwelcome,'' Meritor Sav. 
Bank v. Vinson, 477 U.S. 57, 67-68 (1986), but also subjectively 
hostile and annoying to constitute sexual harassment. This commenter 
argued that ``sexual assault'' must include both subjective 
unwelcomeness and objective interference with access to education to 
be actionable and also cited: Gordon v. England, 612 F. App'x 330 
(6th Cir. 2015) (``extreme groping'' did not create an objectively 
hostile environment, by itself, and thus did not violate Title VII); 
Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) (holding 
misdemeanor sexual assault involving touching of breast did not 
create objectively hostile environment, by itself, and thus did not 
violate Title VII).
---------------------------------------------------------------------------

    One commenter argued that because the Clery Act definition of 
``sexual assault'' includes incest and statutory rape, such a 
definition will encompass incidents that are consensual when Title IX 
should be focused on discriminatory conduct, which should be restricted 
to nonconsensual or unwanted conduct; the commenter asserted that where 
a half-brother and half-sister, or a 13 year old and an 18 year old, 
engage in consensual sexual activity the Title IX process should not be 
used to intervene, even if such conduct may constitute criminal 
offenses that can be addressed through a criminal justice system. 
Another commenter argued that the inclusion of statutory rape sweeps up 
sexual conduct by underage students no matter how consensual, welcome, 
and reciprocated the conduct might be, and asserted that this over-
inclusion threatens to turn Title IX into enforcement of high school 
and first-year college students through repressive administrative 
monitoring of youth sexuality in instances that are not severe, not 
pervasive, and do not impede educational access.
    One commenter described a particular institution of higher 
education's sexual misconduct policy as defining sexual assault broadly 
to include ``any other intentional unwanted bodily contact of a sexual 
nature,'' a standard the commenter argued is ambiguous and overbroad; 
the commenter argued that the final regulations should clarify that 
schools cannot apply a definition of ``sexual assault'' that equates 
all unwanted touching (such as a kiss on the cheek) with groping or 
penetration because it is unfair to treat kissing without verbal 
consent the same as a sex crime and, in the long run, makes it less 
likely that women will be taken seriously when sex crimes occur. This 
commenter also asserted that vague, overbroad definitions of sexual 
assault disproportionately harm students of color.\776\
---------------------------------------------------------------------------

    \776\ Commenters cited: Ben Trachtenberg, How University Title 
IX Enforcement and Other Discipline Processes (Probably) 
Discriminate Against Minority Students, 18 Nev. L. J. 107 (2017); 
Emily Yoffe, The Question of Race in Campus Sexual-Assault Cases: Is 
the system biased against men of color?, The Atlantic (September 
2017) (noting that male students of color are ``vastly 
overrepresented'' in the cases Yoffe has tracked and arguing that as 
``the definition of sexual assault used by colleges has become 
broader and blurrier, it certainly seems possible that unconscious 
biases might tip some women toward viewing a regretted encounter 
with a man of a different race as an assault. And as the standards 
for proving assault have been lowered, it seems likely that those 
same biases, coupled with the lack of resources common among 
minority students on campus, might systematically disadvantage men 
of color in adjudication, whether or not the encounter was 
interracial.''); Janet Halley, Trading the Megaphone for the Gavel 
in Title IX Enforcement, 128 Harv. L. Rev. Forum 103, 106-08 (2015) 
(``American racial history is laced with vendetta-like scandals in 
which black men are accused of sexually assaulting white women'' 
followed by revelations ``that the accused men were not wrongdoers 
after all . . . . morning-after remorse can make sex that seemed 
like a good idea at the time look really alarming in retrospect; and 
the general social disadvantage that black men continue to carry in 
our culture can make it easier for everyone in the adjudicative 
process to put the blame on them . . . . Case after Harvard case 
that has come to my attention . . . has involved black male 
respondents.'').
---------------------------------------------------------------------------

    Some commenters believed that the final regulations should include 
sexual assault in the definition but should use a definition of sexual 
assault different from the proposed rules' reference to ``sexual 
assault'' under the Clery Act regulations. One commenter believed that 
laypersons reading the regulation should not have to refer to yet 
another Federal regulation in order to know the definition of ``sexual 
assault.'' Another commenter stated that by including a cross-reference 
to the Clery Act regulation, this Title IX regulation could have its 
definition of sexual assault changed due to regulatory changes under 
the Clery Act, and that sexual assault should be explicitly defined 
rather than relying on a cross-reference to a different regulation. One 
commenter, supportive of the three-prong definition of sexual 
harassment in Sec.  106.30, suggested that the provision should include 
a full definition of sexual assault to better clarify prohibited 
conduct rather than a cross-reference to the Clery Act.
    A few other commenters asserted that the Clery Act definition of 
sexual assault poses problems; they argued that reference to the Clery 
Act regulations should be replaced by inserting a definition of sexual 
assault directly into Sec.  106.30. One such commenter argued that the 
Clery Act definition of sexual assault is biased against men because 
under the definitions of rape and fondling, a male who performs oral 
sex on a female victim likely commits ``rape'' while a female who 
performs oral sex on a male victim at most commits ``fondling,'' but 
not the more serious-sounding offense of rape.
    One commenter proposed an alternate definition of sexual assault 
that would define sexual assault by reference to crimes under each 
State law as classified under the FBI Uniform Crime

[[Page 30174]]

Reporting Program's (``FBI UCR'') National Incident-Based Reporting 
System (NIBRS). This commenter asserted that this alternative 
definition of sexual assault would better serve the Department's 
purpose because it does not require the Department to issue new 
definitions for Title IX purposes of the degree of family connectedness 
for incest, the statutory age of consent for statutory rape, consent 
and incapacity for consent for rape, and other elements in the listed 
sex offenses. This commenter further asserted that the commenter's 
alternative definition would not use the definition of rape in the FBI 
UCR's Summary Reporting System (SRS), because the FBI has announced 
that it is retiring the SRS on January 1, 2021 and will collect crime 
data only through NIBRS thereafter.
    Another commenter asserted that the reference in Sec.  106.30 to 34 
CFR 668.46(a) for a definition of sexual assault fails to provide 
meaningful guidance on what conduct recipients must include under Title 
IX, because the Clery Act regulation relies on the FBI UCR, which is a 
reporting system designed to aggregate crime data across the Nation, 
not intended to provide guidance about what conduct is acceptable or 
unacceptable for enforcement purposes. Under the Clery Act regulation, 
this commenter points out that ``rape'' and ``fondling'' do not define 
what consent (or lack of consent) means, and ``fondling'' does not 
identify which body parts are considered ``private.'' This commenter 
argued that the need for clarity about what constitutes sexual assault 
is too important to leave recipients to muddle through vague 
definitions, and proposed that the third prong of Sec.  106.30 use the 
following alternative definition of sexual assault: the penetration or 
touching of another's genitalia, buttocks, anus, breasts, or mouth 
without consent; a person acts without consent when, in the context of 
all the circumstances, the person should reasonably be aware of a 
substantial risk that the other person is not voluntarily and willingly 
engaging in the conduct at the time of the conduct; sexual assault must 
effectively deny a person equal access to the recipient's education 
program or activity.
    Discussion: The Department emphasizes that including sexual assault 
as a form of sexual harassment is not an empty reference; the 
Department will enforce each part of the Sec.  106.30 definition, 
including requiring recipients to respond to sexual assault, vigorously 
for the benefit of all persons in a recipient's education program or 
activity. The Department believes that the Clery Act's reference to 
sexual assault is appropriately broad and thus does not agree with the 
commenter's contention that the sexual assault reference excludes acts 
that should be considered rape or sexual assault.
    The Department acknowledges commenters' concerns that not every act 
related to or potentially involved in a sexual assault would meet the 
Clery Act definition of sexual assault. With respect to violative acts 
such as commenters' examples of administration of a date rape drug, 
touching a non-private body part with the perpetrator's private body 
part, and so forth, such acts constitute criminal acts and/or torts 
under State laws and likely constitute separate offenses under 
recipients' own codes of conduct. Therefore, such egregious acts can be 
addressed even if they do not constitute sexual harassment under Title 
IX. With respect to an attempted rape, we define ``sexual assault'' in 
Sec.  106.30 by reference to the Clery Act,\777\ which in turn defines 
sexual assault by reference to the FBI UCR,\778\ and the FBI has stated 
that the offense of rape includes attempts to commit rape.\779\
---------------------------------------------------------------------------

    \777\ Section 106.30 (defining ``sexual harassment'' to include 
``Sexual assault'' as ``defined in 20 U.S.C. 1092(f)(6)(A)(v)'').
    \778\ 20 U.S.C. 1092(f)(6)(A)(v) (``The term `sexual assault' 
means an offense classified as a forcible or nonforcible sex offense 
under the uniform crime reporting system of the Federal Bureau of 
Investigation.'').
    \779\ U.S. Dep't. of Justice, Federal Bureau of Investigation, 
UCR Offense Definitions (with respect to rape, ``Attempts or 
assaults to commit rape are also included''), https://ucrdatatool.gov/offenses.cfm.
---------------------------------------------------------------------------

    The Department disputes a commenter's contention that the sexual 
assault definition in Sec.  106.30 lacks sufficient precision to 
capture sexual assault that occurs under what the commenter called 
``guilt-inducing ambiguity'' or ``gray areas'' often centered around 
whether the complainant genuinely consented or only consented due to 
coercion. For reasons explained in the ``Consent'' subsection of the 
``Section 106.30 Definitions'' section of this preamble, the Department 
intentionally leaves recipients flexibility and discretion to craft 
their own definitions of consent (and related terms often used to 
describe the absence or negation of consent, such as coercion). The 
Department believes that a recipient should select a definition of 
sexual consent that best serves the unique needs, values, and 
environment of the recipient's own educational community. So long as a 
recipient is required to respond to sexual assault (including offenses 
such as rape, statutory rape, and fondling, which depend on lack of the 
victim's consent), the Department believes that recipients should 
retain flexibility in this regard. The Department has revised the final 
regulations to state that it will not require recipients to adopt a 
particular definition of consent.\780\ With respect to the commenter's 
point regarding a lack of certainty about what constitutes rape, the 
Department believes that including sexual assault in these Title IX 
regulations will contribute to greater societal understanding of what 
sexual assault is and why every person should be protected against it.
---------------------------------------------------------------------------

    \780\ Section 106.30 (entry for ``consent'').
---------------------------------------------------------------------------

    Because Federal courts applying the Davis standard have reached 
different conclusions about whether a single rape has constituted 
``severe and pervasive'' sexual harassment sufficient to be covered 
under Title IX, we are including single instances of sexual assault as 
actionable under the Sec.  106.30 definition. We believe that sexual 
assault inherently creates the kind of serious, sex-based impediment to 
equal access to education that Title IX is designed to prohibit, and 
decline to require ``denial of equal access'' as a separate element of 
sexual assault.
    The Department understands the concerns of some commenters that 
including ``fondling'' under the term sexual assault poses a perceived 
challenge for recipients, particularly elementary and secondary 
schools, where, for instance, ``butt slaps'' may be a common 
occurrence. The Department appreciates the opportunity to clarify that 
under the Clery Act, fondling is a sex offense defined (by way of 
reference to the FBI UCR) as the touching of a person's private body 
parts without the consent of the victim for purposes of sexual 
gratification. This ``purpose'' requirement separates the sex offense 
of fondling from the touching described by commenters as ``children 
playing doctor'' or inadvertent contact with a person's buttocks due to 
jostling in a crowded elevator, and so forth. Where the touching of a 
person's private body part occurs for the purpose of sexual 
gratification, that offense warrants inclusion as a sexual assault, and 
if the ``butt slaps'' described by one commenter as occurring 
frequently in elementary and secondary schools do constitute fondling, 
then those elementary and secondary schools must respond to knowledge 
of those sex offenses for the protection of students. The definition of 
fondling, properly understood, appropriately guides schools, colleges, 
and universities to consider fondling as a sex offense under Title IX, 
while distinguishing touching

[[Page 30175]]

that does not involve the requisite ``purpose of sexual gratification'' 
element, which still may be addressed by a recipient outside a Title IX 
process. The Department notes that recipients may find useful guidance 
in State law criminal court decisions that often recognize the 
principle that, with respect to juveniles, a sexualized purpose should 
not be ascribed to a respondent without examining the circumstances of 
the incident (such as the age and maturity of the parties).\781\ The 
Department declines to create an exception for fondling that occurs 
where both parties engage in the conduct willingly even though they are 
underage, because of an underage party's inability to give legal 
consent to sexual activity, and as discussed above the ``for the 
purposes of sexual gratification'' element of fondling protects against 
treating innocuous, non-sexualized touching between children as sexual 
harassment under Title IX.
---------------------------------------------------------------------------

    \781\ See, e.g., In re K.C., 226 N.C. App. 452, 457 (N.C. App. 
2013) (``On the question of sexual purpose, however, this Court has 
previously held--in the context of a charge of indecent liberties 
between children--that such a purpose does not exist without some 
evidence of the child's maturity, intent, experience, or other 
factor indicating his purpose in acting[.] . . . Otherwise, sexual 
ambitions must not be assigned to a child's actions. . . . The 
element of purpose may not be inferred solely from the act itself. . 
. . Rather, factors like age disparity, control by the juvenile, the 
location and secretive nature of the juvenile's actions, and the 
attitude of the juvenile should be taken into account. . . . The 
mere act of touching is not enough to show purpose.'') (internal 
quotation marks and citations omitted).
---------------------------------------------------------------------------

    For similar reasons, the Department declines to exclude incest and 
statutory rape from the definition of sexual assault. The Department 
understands commenters' concerns, but will not override the established 
circumstances under which consent cannot legally be given (e.g., where 
a party is under the age of majority) or under which sexual activity is 
prohibited based on familial connectedness (e.g., incest). The 
Department notes that where sexual activity is not unwelcome, but still 
meets a definition of sexual assault in Sec.  106.30, the final 
regulations provide flexibility for how such situations may be handled 
under Title IX. For instance, not every such situation will result in a 
formal complaint requiring the recipient to investigate and adjudicate 
the incident; \782\ the recipient has the discretion to facilitate an 
informal resolution after a formal complaint is filed; \783\ the final 
regulations remove the NPRM's previous mandate that a Title IX 
Coordinator must file a formal complaint upon receipt of multiple 
reports against the same respondent; \784\ the final regulations allow 
a recipient to dismiss a formal complaint where the complainant informs 
the Title IX Coordinator in writing that the complainant wishes to 
withdraw the formal complaint; \785\ and the final regulations do not 
require or prescribe disciplinary sanctions.\786\ Thus, the final 
regulations provide numerous avenues to avoid situations where a 
recipient is placed in a position of feeling compelled to drag parties 
through a grievance process where no party found the underlying 
incident unwelcome, offensive, or impeding access to education, and 
recipients should not feel incentivized by the final regulations to 
become repressive monitors of youth sexuality.\787\
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    \782\ Section 106.30 (defining ``formal complaint'' to mean a 
document ``filed by a complainant or signed by a Title IX 
Coordinator'' and defining ``complainant'' to mean ``an individual 
who is alleged to be the victim of conduct that could constitute 
sexual harassment''). Situations where an individual does not view 
themselves as a ``victim'' likely will not result in the filing of a 
formal complaint triggering a Sec.  106.45 grievance process.
    \783\ Section 106.45(b)(9) (permitting a recipient to facilitate 
informal resolution, with the voluntary written consent of both 
parties, of any formal complaint except those alleging that an 
employee sexually harassed a student).
    \784\ See the ``Proposed Sec.  106.44(b)(2) Reports by Multiple 
Complainants of Conduct by Same Respondent [removed in final 
regulations]'' subsection of the ``Recipient's Response in Specific 
Circumstances'' section of this preamble.
    \785\ Section 106.45(b)(3)(ii).
    \786\ See the ``Deliberate Indifference'' subsection of the 
``Adoption and Adaptation of the Supreme Court's Framework to 
Address Sexual Harassment'' section of this preamble, noting that 
the final regulations intentionally refrain from second guessing 
recipients' decisions with respect to imposition of disciplinary 
sanctions following an accurate, reliable determination reached by 
following a Sec.  106.45 grievance process. This leaves recipients 
flexibility to decide appropriate sanctions in situations where 
behavior constituted sexual harassment under Sec.  106.30 yet did 
not subjectively offend or distress the complainant.
    \787\ See the ``Formal Complaint'' subsection of the ``Section 
106.3 Definitions'' section of this preamble, discussing the reasons 
why these final regulations permit a formal complaint (which 
triggers a recipient's grievance process) to be filed only by a 
complainant (i.e., the alleged victim) or by the Title IX 
Coordinator, and explaining that a Title IX Coordinator's decision 
to override a complainant's wishes by initiating a grievance process 
when the complainant does not desire that action will be evaluated 
by whether the Title IX Coordinator's decision was clearly 
unreasonable in light of the known circumstances (that is, under the 
general deliberate indifference standard described in Sec.  
106.44(a)).
---------------------------------------------------------------------------

    The Department understands a commenter's concern that some 
recipients have defined sexual misconduct very broadly, including 
labeling a wide range of physical contact made without verbal consent 
as ``sexual assault.'' For reasons described above and in the 
``Consent'' subsection of the ``Section 106.30 Definitions'' section of 
this preamble, the Department declines to require recipients to adopt 
particular definitions of consent, and declines to prohibit recipients 
from addressing conduct that does not meet the Sec.  106.30 definition 
of sexual harassment under non-Title IX codes of conduct. The 
Department believes that recipients should retain flexibility to set 
standards of conduct for their own educational communities that go 
beyond conduct prohibited under Title IX (or, in the case of defining 
consent, setting standards for that element of sexual assault). The 
Department notes that many commenters submitted information and data 
showing that conduct ``less serious'' than that constituting Sec.  
106.30 sexual harassment can still have negative impacts on victims, 
and can escalate into actionable harassment or assault when left 
unaddressed \788\ and therefore recipients should retain discretion to 
decide how to address student and employee misconduct that is not 
actionable under Title IX. The Department shares commenters' concerns 
that vague, ambiguously-worded sexual misconduct policies have resulted 
in some respondents being punished unfairly. The Department is equally 
concerned that complainants, too, have often been denied opportunity to 
understand and participate in Title IX grievance processes to vindicate 
instances of sexual violation. These concerns underlie the Sec.  106.45 
grievance process prescribed in the final regulations, for the benefit 
of each complainant and each respondent, regardless of race or other 
demographic characteristics. Thus, even if a recipient chooses a 
definition of ``consent'' that results in a broad range of conduct 
prohibited as sexual assault, the recipient's students and employees 
will be aware of the breadth of conduct encompassed and benefit from 
robust procedural protections to further each party's respective views 
and positions with respect to particular allegations.
---------------------------------------------------------------------------

    \788\ E.g., Rachel E. Gartner & Paul R. Sterzing, Gender 
Microaggressions as a Gateway to Sexual Harassment and Sexual 
Assault: Expanding the Conceptualization of Youth Sexual Violence, 
31 Affilia: J. of Women & Social Work 491 (2016); Dorothy Espelage 
et al., Longitudinal Associations Among Bullying, Homophobic 
Teasing, and Sexual Violence Perpetration Among Middle School 
Students, 30 Journal of Interpersonal Violence 14 (2014); Eduardo A. 
Vasquez et al., The sexual objectification of girls and aggression 
towards them in gang and non-gang affiliated youth, 23 Psychol., 
Crime & Law 5 (2016); National Academies of Science, Engineering, 
and Medicine, Sexual Harassment of Women: Climate, Culture, and 
Consequences in Academic Sciences, Engineering, and Medicine 
(Frasier F. Benya et al. eds., 2018).
---------------------------------------------------------------------------

    The Department appreciates commenters' concerns about including 
sexual assault by reference to the Clery

[[Page 30176]]

Act regulations at 34 CFR 668.46(a). Postsecondary institutions are 
already familiar with the Clery Act \789\ and the Department's 
implementing regulations, and although the Clery Act does not apply to 
elementary and secondary schools, requiring schools, colleges, and 
universities to reference the same range of sex offenses under both the 
Clery Act and Title IX will harmonize compliance obligations under both 
statutes (for postsecondary institutions) while providing elementary 
and secondary school recipients with a preexisting Federal reference to 
sex offenses rather than a new definition created by the Department 
solely for Title IX purposes. In response to commenters' concerns that 
reference to the Clery Act regulations leaves these final regulations 
subject to changes to the Clery Act regulations, the final regulations 
now reference sexual assault by citing to the Clery Act statute (and as 
to dating violence, domestic violence, and stalking, the VAWA statute 
\790\), rather than to the Clery Act regulations. The Clery Act statute 
references sex offenses as defined in the FBI UCR,\791\ a national 
crime reporting program designed to standardize crime statistics across 
jurisdictions. At the same time, this modification preserves the 
benefit of harmonizing Clery Act and Title IX obligations that arise 
from a recipient's awareness of sex offenses.
---------------------------------------------------------------------------

    \789\ The Clery Act applies to institutions of higher education 
that receive Federal student financial aid under Title IV of the 
Higher Education Act of 1965, as amended; see discussion under the 
``Clery Act'' subsection of the ``Miscellaneous'' section of this 
preamble.
    \790\ VAWA at 34 U.S.C. 12291(a)(10), (a)(8), and (a)(30), 
defines dating violence, domestic violence, and stalking, 
respectively.
    \791\ The Clery Act, 20 U.S.C. 1092(f)(6)(A)(v) defines ``sexual 
assault'' to mean an ``offense classified as a forcible or 
nonforcible sex offense under the uniform crime reporting system of 
the Federal Bureau of Investigation.'' The FBI UCR, in turn, 
consists of two crime reporting systems: The Summary Reporting 
System (SRS) and the National Incident-Based Reporting System 
(NIBRS). U.S. Dep't. of Justice, Criminal Justice Information 
Services, SRS to NIBRS: The Path to Better UCR Data (Mar. 28, 2017). 
The current Clery Act regulations, 34 CFR 668.46(a), direct 
recipients to look to the SRS for a definition of rape and to NIBRS 
for a definition of fondling, statutory rape, and incest as the 
offenses falling under ``sexual assault.'' The FBI has announced it 
will retire the SRS and transition to using only the NIBRS in 
January 2021. Federal Bureau of Investigation, Criminal Justice 
Information Services, Uniform Crime Reporting (UCR) Program, 
National Incident-Based Reporting System (NIBRS), https://www.fbi.gov/services/cjis/ucr/nibrs. NIBRS' forcible and nonforcible 
sex offenses consist of: Rape, sodomy, and sexual assault with an 
object (as well as fondling, statutory rape, and incest, as noted 
above). Thus, reference to the Clery Act will continue to cover the 
same range of sex offenses under the FBI UCR regardless of whether 
or when the FBI phases out the SRS.
---------------------------------------------------------------------------

    The Department disagrees that the Clery Act's definition of sexual 
assault is biased or discriminatory against men. Although under the FBI 
UCR definitions it is possible that, for example, oral sex performed on 
an unconscious woman may be designated as a different offense than oral 
sex performed on an unconscious man, the difference is not 
discriminatory or unfairly biased against men, because any such 
difference results from differentiation between a penetrative versus 
non-penetrative act, yet under the FBI UCR both offenses fall under the 
term sexual assault, and further, penetrative acts against both men and 
women (and touching the genitalia of men, and of women) all fall under 
FBI UCR sex offenses. While conduct might be classified differently 
based on whether the victim was male or female, such offenses would 
fall under the term sexual assault. All the sex offenses designated 
under the Clery Act as sexual assault represent serious violations of a 
person's bodily and emotional autonomy, regardless of whether a 
particular sexual assault is categorized as rape, fondling, or other 
forcible or non-forcible sex offense under the FBI UCR.
    For similar reasons, the Department declines to adopt the 
alternative definitions of sexual assault proposed by commenters. The 
Department believes that, with the final regulations' modification to 
reference the Clery Act and VAWA statutes rather than solely the Clery 
Act regulations, ``sexual assault'' under Sec.  106.30 is appropriately 
broad, capturing all conduct falling under forcible and non-forcible 
sex offenses determined by reference to the FBI UCR, while facilitating 
postsecondary institution recipients' understanding of their 
obligations under both the Clery Act and Title IX and providing an 
appropriate reference for elementary and secondary schools to protect 
students from sex offenses under Title IX.
    The Department disagrees that the definitions of rape and fondling 
in the FBI UCR are too narrow. The violative sex acts covered by 
offenses described in the FBI UCR were designed to cover a broad range 
of sexual misconduct regardless of how different jurisdictions have 
defined such offenses under State criminal laws,\792\ an approach that 
lends itself to the purpose of these final regulations, which is to 
ensure that recipients across all jurisdictions include a variety of 
sex offenses as discrimination under Title IX.
---------------------------------------------------------------------------

    \792\ In explaining one of the two systems used in the FBI UCR, 
the FBI has stated: ``The definitions used in the NIBRS [National 
Incident-Based Reporting System] must be generic in order not to 
exclude varying state statutes relating to the same type of crime. 
Accordingly, the offense definitions in the NIBRS are based on 
common-law definitions found in Black's Law Dictionary, as well as 
those used in the Uniform Crime Reporting Handbook and the NCIC 
Uniform Offense Classifications. Since most state statutes are also 
based on common-law definitions, even though they may vary as to the 
specifics, most should fit into the corresponding NIBRS offense 
classifications.'' U.S. Dep't. of Justice, Uniform Crime Reporting 
System, National Incident-Based Reporting System (2011), https://ucr.fbi.gov/nibrs/2011/resources/nibrs-offense-definitions.
---------------------------------------------------------------------------

    The Department disagrees that including statutory rape and incest 
makes the sexual assault category too broad, and declines to adopt the 
specific alternative definitions of sexual assault proposed by 
commenters. The Department believes that, in response to commenters' 
concerns, the final regulations appropriately capture a broad range of 
sex offenses referenced in the Clery Act and VAWA (which refer to the 
FBI UCR without specifying whether to look to the SRS or NIBRS, 
foreclosing any problem resulting from the FBI's transition from the 
SRS to the NIBRS system) while leaving recipients the discretion to 
select particular definitions of consent (and what constitutes a lack 
of consent) that best reflect each recipient's values and community 
standards and adopt a broader or narrower definition of, e.g., fondling 
by specifying which body parts are considered ``private'' or whether 
the touching must occur underneath or over a victim's clothing. 
Regardless of how narrowly or broadly a recipient defines ``consent'' 
with respect to the FBI UCR's categories of forcible and nonforcible 
sex offenses, the Department believes that any such offenses would 
constitute conduct jeopardizing equal access to education in violation 
of Title IX without raising constitutional concerns, and that the Sec.  
106.45 grievance process gives complainants and respondents opportunity 
to fairly resolve factual allegations of such conduct.
    Changes: The third prong of the Sec.  106.30 definition of sexual 
harassment now references ``sexual assault'' per the Clery Act at 20 
U.S.C. 1092(f)(6)(A)(v) (instead of referencing the Clery Act 
regulations at 34 CFR 668.46); and adds reference to VAWA to include 
``dating violence'' as defined in 34 U.S.C. 12291(a)(10), ``domestic 
violence'' as defined in 34 U.S.C. 12291(a)(8), and ``stalking'' as 
defined in 34 U.S.C. 12291(a)(30).
Gender-Based Harassment
    Comments: A number of commenters discussed issues related to 
gender-based harassment, sexual orientation, and gender identity.

[[Page 30177]]

    Some commenters expressed the general view that LGBTQ individuals 
need to be protected and were concerned that the proposed rules would 
make campuses even more unsafe for LGBTQ students and have a negative 
impact on addressing issues of gender-based discrimination and 
harassment.
    Several commenters stated the LGBTQ community experiences sexual 
violence at much higher rates.
    Some commenters expressed specific concerns about the impact of the 
proposed rules, including the definition of sexual harassment, on 
transgender individuals.
    A few commenters also stated that transgender students should be 
treated consistent with their gender identity. Some commenters 
specifically asked the Department to maintain protections presumably 
found in the withdrawn Letter from James A. Ferg-Cadima, Acting Deputy 
Assistant Secretary for Policy, Office for Civil Rights at the 
Department of Education regarding transgender students' access to 
facilities such as restrooms dated January 7, 2015, and ``Dear 
Colleague Letter on Transgender Students'' jointly issued by the Civil 
Rights Division of the Department of Justice and the Office for Civil 
Rights of the Department of Education, dated May 13, 2016.\793\
---------------------------------------------------------------------------

    \793\ See U.S. Department of Education & U.S. Department of 
Justice, Dear Colleague Letter (Feb. 22, 2017) (withdrawing 
letters), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.pdf.
---------------------------------------------------------------------------

    Some commenters expressed concern that the proposed rules promote 
heterosexuality as the normal or preferred sexual orientation and 
therefore fail to recognize and capture the identities and experiences 
of the LGBTQ community and recommended that the Department explicitly 
state that Title IX protections apply to members of the LGBTQ 
community.
    One commenter believed that all public school districts should 
adopt and enforce policies stating that harassment for any reason, 
including on the basis of gender identity, will not be tolerated and 
that appropriate disciplinary measures will be taken and urged the 
Department to add language to the proposed rules making clear that such 
harassment is within the meaning of Title IX.
    Some commenters urged the Department to include specific language 
referring to sexual harassment based on gender identity, including 
transgender and gender-nonconforming identities or expressions and 
expressed concern about the lack of such language in the proposed 
rules. Some of these commenters noted that some courts have interpreted 
Title IX, Title VII, and similar statutes to prohibit discrimination on 
the basis of gender identity and sexual orientation because 
discrimination on either of these bases of discrimination is 
discrimination on the basis of sex. One commenter acknowledged that 
contrary case law exists, but asserted Title IX clearly prohibits 
discrimination on the basis of sex stereotyping which underlies 
discrimination, harassment, and assaults against LGBTQ people.\794\
---------------------------------------------------------------------------

    \794\ Commenters cited, e.g.: R.G. & G.R. Harris Funeral Homes 
Inc. v. Equal Employment Opportunity Comm'n, 884 F.3d 560 (6th 
Cir.), appeal docketed, No. 18-107 (U.S. August 16, 2019); Zarda v. 
Altitude Express, Inc., 883 F.3d 100 (2d Cir.), appeal docketed, No. 
17-1623 (U.S. June 1, 2018).
---------------------------------------------------------------------------

    On the other hand, one commenter stated that Title IX is about sex 
and not gender identity and urged the Department to make clear that 
biology, not gender identity, determines the definition of men and 
women.
    Another commenter asserted that the Department's use of the phrase 
``on the basis of sex'' in defining sexual harassment is limiting. This 
commenter asserted that the phrase ``on the basis of sex'' minimizes 
and confines experiences of gender discrimination and gender-based 
violence to a binary understanding by aligning it with sex assigned at 
birth.
    Another commenter urged the Department to keep transgender males 
out of female sports categories as it is unfair to women and girls in 
competitions.
    One commenter stated that OCR has long understood that gender-based 
discrimination, even where discrimination is not sexual in nature, 
might also fall under Title IX by creating a hostile environment for 
students. The commenter expressed concern that the term gender only 
appears once in a footnote in the proposed rules and asked how 
students' gender presentation, gender identity, and sexual orientation 
can be considered under the proposed rules and whether the Department 
made a conscious decision not to include gender and sexual orientation.
    Another commenter asked the Department to clarify whether gender-
based harassment is still covered under Title IX and whether incidents 
of sexual exploitation are to be included in these grievance 
procedures.
    Other commenters were generally concerned that the proposed rules 
would discourage participation of women and gender nonconforming 
students in academia. One commenter asserted that the single greatest 
danger to women's health is men. The commenter reminded the Department 
that Title IX helps protect women (as well as those who have been 
harassed or assaulted) and asked the Department not to endanger women.
    Another commenter recommended that the Department add language 
stating that sexual harassment is bi-directional (male-to-female and 
female-to-male).
    Discussion: The Department appreciates the concerns of the 
commenters. Prior to this rulemaking, the Department's regulations did 
not expressly address sexual harassment. We believe that sexual 
harassment is an important issue, meriting regulations with the force 
and effect of law rather than mere guidance documents, which cannot 
create legally binding obligations.\795\
---------------------------------------------------------------------------

    \795\ Perez v. Mortgage Bankers Ass'n, 525 U.S. 92, 96-97 
(2015).
---------------------------------------------------------------------------

    Title IX, 20 U.S.C. 1681(a), expressly prohibits discrimination 
``on the basis of sex,'' which is why the Department incorporates the 
phrase ``on the basis of sex'' in the definition of sexual harassment 
in Sec.  106.30. The word ``sex'' is undefined in the Title IX statute. 
The Department did not propose a definition of ``sex'' in the NPRM and 
declines to do so in these final regulations.
    The focus of these regulations remains prohibited conduct. For 
example, the first prong of the Department's definition of sexual 
harassment concerns an employee of the recipient conditioning the 
provision of an educational aid, benefit, or service on an individual's 
participation in unwelcome sexual conduct, which is commonly referred 
to as quid pro quo sexual harassment. Any individual may experience 
quid pro quo sexual harassment. The second prong of the Sec.  106.30 
definition of sexual harassment involves unwelcome conduct on the basis 
of sex determined by a reasonable person to be so severe, pervasive, 
and objectively offensive that it effectively denies a person equal 
access to the recipient's education program or activity; any individual 
may experience this form of harassment, as well. The third prong of the 
sexual harassment definition in these final regulations is sexual 
assault, dating violence, domestic violence, or stalking on the basis 
of sex as defined in the Clery Act and VAWA, respectively, and again, 
any individual may be sexually assaulted or experience dating violence, 
domestic violence, or stalking on the basis of sex. Thus, any 
individual--irrespective of sexual orientation or gender identity--

[[Page 30178]]

may be victimized by the type of conduct defined as sexual harassment 
to which a recipient must respond under these final regulations.
    Title IX and its implementing regulations include provisions that 
presuppose sex as a binary classification, and provisions in the 
Department's current regulations, which the Department did not propose 
to revise in this rulemaking, reflect this presupposition. For example, 
20 U.S.C. 1681(a)(2), which concerns educational institutions 
commencing planned changes in admissions, refers to ``an institution 
which admits only students of one sex to being an institution which 
admits students of both sexes.'' Similarly, 20 U.S.C. 1681(a)(6)(B) 
refers to ``men's'' and ``women's'' associations as well as 
organizations for ``boys'' and ``girls'' in the context of 
organizations ``the membership of which has traditionally been limited 
to persons of one sex.'' Likewise, 20 U.S.C. 1681(a)(7)(A) refers to 
``boys''' and ``girls''' conferences. Title IX does not prohibit an 
educational institution ``from maintaining separate living facilities 
for the different sexes'' pursuant to 20 U.S.C. 1686. Additionally, the 
Department's current Title IX regulations expressly permit sex-specific 
housing in 34 CFR 106.32 (``[h]ousing provided by a recipient to 
students of one sex, when compared to that provided to students of the 
other sex''), separate intimate facilities on the basis of sex in 34 
CFR 106.33 (``separate toilet, locker room, and shower facilities on 
the basis of sex'' with references to ``one sex'' and ``the other 
sex''), separate physical education classes on the basis of sex in 34 
CFR 106.34 (``[t]his section does not prohibit separation of students 
by sex within physical education classes or activities during 
participation in wrestling, boxing, rugby, ice hockey, football, 
basketball, and other sports the purpose or major activity of which 
involves bodily contact''), separate human sexuality classes on the 
basis of sex in 34 CFR 106.34 (``[c]lasses or portions of classes in 
elementary and secondary schools that deal primarily with human 
sexuality may be conducted in separate sessions for boys and girls''), 
and separate teams on the basis of sex for contact sports in 34 CFR 
106.41 (``a recipient may operate or sponsor separate teams for members 
of each sex where selection for such teams is based upon competitive 
skill or the activity involved is a contact sport''). In promulgating 
regulations to implement Title IX, the Department expressly 
acknowledged physiological differences between the male and female 
sexes. For example, the Department's justification for not allowing 
schools to use ``a single standard of measuring skill or progress in 
physical education classes . . . [if doing so] has an adverse effect on 
members of one sex'' \796\ was that ``if progress is measured by 
determining whether an individual can perform twenty-five push-ups, the 
standard may be virtually out-of-reach for many more women than men 
because of the difference in strength between average persons of each 
sex.'' \797\
---------------------------------------------------------------------------

    \796\ 34 CFR 106.43.
    \797\ U.S. Dep't. of Health, Education, and Welfare, General 
Administration, Nondiscrimination on the Basis of Sex in Education 
Programs and Activities Receiving or Benefiting from Federal 
Financial Assistance, 40 FR 24128, 24132 (June 4, 1975). Through 
that rulemaking, the Department promulgated Sec.  86.34(d), which is 
substantially similar to the Department's current regulation 34 CFR 
106.43.
---------------------------------------------------------------------------

    The Department declines to take commenters' suggestions to include 
a definition of the word ``sex'' in these final regulations because 
defining sex is not necessary to effectuate these final regulations and 
has consequences that extend outside the scope of this rulemaking. 
These final regulations primarily address a form of sex 
discrimination--sexual harassment--that does not depend on whether the 
definition of ``sex'' involves solely the person's biological 
characteristics (as at least one commenter urged) or whether a person's 
``sex'' is defined to include a person's gender identity (as other 
commenters urged). Anyone may experience sexual harassment, 
irrespective of gender identity or sexual orientation. As explained 
above, the Department acknowledged physiological differences based on 
biological sex in promulgating regulations to implement Title IX with 
respect to physical education. Defining ``sex'' will have an effect on 
Title IX regulations that are outside the scope of this rulemaking, 
such as regulations regarding discrimination (e.g., different 
treatment) on the basis of sex in athletics. The scope of matters 
addressed by the final regulations is defined by the subjects presented 
in the NPRM, and the NPRM did not propose to define sex. The Department 
declines to address that matter in these final regulations. The 
Department will continue to look to the Title IX statute and the 
Department's Title IX implementing regulations with respect to the 
meaning of the word ``sex'' for Title IX purposes.
    To address a commenter's assertion that Title IX prohibits sex 
stereotyping that underlies discrimination against LGBTQ individuals, 
the Department notes that some of the cases the commenter cited are 
cases under Title VII and are on appeal before the Supreme Court of the 
United States. The most recent position of the United States in these 
cases is (1) that the ordinary public meaning of ``sex'' at the time of 
Title VII's passage was biological sex and thus the appropriate 
construction of the word ``sex'' does not extend to a person's sexual 
orientation or transgender status, and (2) that discrimination based on 
transgender status does not constitute sex stereotyping but a 
transgender plaintiff may use sex stereotyping as evidence to prove a 
sex discrimination claim if members of one sex (e.g., males) are 
treated less favorably than members of the other sex (e.g., 
females).\798\ Although the U.S. Attorney General and U.S. Solicitor 
General interpret the word ``sex'' solely within the context of Title 
VII, the current position of the United States may be relevant as to 
the public meaning of the word ``sex'' in other contexts as well. As 
explained above, the Department does not define ``sex'' in these final 
regulations. These final regulations focus on prohibited conduct, 
irrespective of a person's sexual orientation or gender identity. 
Whether a person has been subjected to the conduct defined in Sec.  
106.30 as sexual harassment does not necessarily require reliance on a 
sex stereotyping theory. Nothing in these final regulations, or the way 
that sexual harassment is defined in Sec.  106.30, precludes a theory 
of sex stereotyping from underlying unwelcome conduct on the basis of 
sex that constitutes sexual harassment as defined in Sec.  106.30.
---------------------------------------------------------------------------

    \798\ See Brief of Respondent Equal Employment Opportunity 
Commission at 16, 22-27, 50-53, R.G. & G.R. Harris Funeral Homes 
Inc. v. Equal Employment Opportunity Comm'n, 884 F.3d 560 (6th 
Cir.), appeal docketed, No. 18-107 (U.S. August 16, 2019), https://www.supremecourt.gov/DocketPDF/18/18-107/112655/20190816163010995_18-107bsUnitedStates.pdf; accord Amicus Curiae 
Brief for the United States in Bostock and Zarda, https://www.supremecourt.gov/DocketPDF/17/17-1618/113417/20190823143040818_17-1618bsacUnitedStates.pdf, Bostock v. Clayton 
County, Ga., 723 F. App'x 964 (11th Cir.), appeal docketed, No. 17-
1618 (U.S. June 1, 2018); Zarda v. Altitude Express, Inc., 883 F.3d 
100 (2d Cir.), appeal docketed, No. 17-1623 (U.S. June 1, 2018); see 
also Memorandum from the U.S. Attorney General to the U.S. Attorneys 
& Heads of Department Components, ``Revised Treatment of Transgender 
Employment Discrimination Claims Under Title VII of the Civil Rights 
Act of 1964'' (Oct. 4, 2017) https://www.justice.gov/ag/page/file/1006981/download (``Attorney General's Memorandum'').
---------------------------------------------------------------------------

    With respect to sexual harassment as a form of sex discrimination 
in these final regulations, the Department's position in these final 
regulations

[[Page 30179]]

remains similar to its position in the 2001 Guidance, which provides:
    Although Title IX does not prohibit discrimination on the basis of 
sexual orientation, sexual harassment directed at gay or lesbian 
students that is sufficiently serious to limit or deny a student's 
ability to participate in or benefit from the school's program 
constitutes sexual harassment prohibited by Title IX under the 
circumstances described in this guidance. For example, if a male 
student or a group of male students target a gay student for physical 
sexual advances, serious enough to deny or limit the victim's ability 
to participate in or benefit from the school's program, the school 
would need to respond promptly and effectively, as described in this 
guidance, just as it would if the victim were heterosexual. On the 
other hand, if students heckle another student with comments based on 
the student's sexual orientation (e.g., ``gay students are not welcome 
at this table in the cafeteria''), but their actions do not involve 
conduct of a sexual nature, their actions would not be sexual 
harassment covered by Title IX.\799\
---------------------------------------------------------------------------

    \799\ 2001 Guidance at 3.
---------------------------------------------------------------------------

    . . . [G]ender-based harassment, which may include acts of verbal, 
nonverbal, or physical aggression, intimidation, or hostility based on 
sex or sex-stereotyping, but not involving conduct of a sexual nature, 
is also a form of sex discrimination to which a school must respond[.] 
For example, the repeated sabotaging of female graduate students' 
laboratory experiments by male students in the class could be the basis 
of a violation of Title IX.
    These final regulations provide a definition of sexual harassment 
that differs in some respects from the definition of sexual harassment 
in the 2001 Guidance, as explained in more detail in the ``Adoption and 
Adaption of the Supreme Court's Framework to Address Sexual 
Harassment'' section, the ``Sexual Harassment'' subsection in the 
``Section 106.30 Definitions'' section, and throughout this preamble. 
These final regulations include sexual harassment as unwelcome conduct 
on the basis of sex that a reasonable person would determine is so 
severe, pervasive, and objectively offensive that it denies a person 
equal educational access; this includes but is not limited to unwelcome 
conduct of a sexual nature, and may consist of unwelcome conduct based 
on sex or sex stereotyping. The Department will not tolerate sexual 
harassment as defined in Sec.  106.30 against any student, including 
LGBTQ students.
    For similar reasons to those discussed above, the Department 
declines to address discrimination on the basis of gender identity or 
other issues raised in the Department's 2015 letter regarding 
transgender students' access to facilities such as restrooms and the 
2016 ``Dear Colleague Letter on Transgender Students.''
    These final regulations concern sexual harassment and not the 
participation of individuals, including transgender individuals, in 
sports or other competitive activities. We do not believe these final 
regulations serve to discourage the participation of women in a 
recipient's education programs and activities, including sports or 
other competitive activities.
    These final regulations address sexual exploitation to the extent 
that sexual exploitation constitutes sexual harassment as defined in 
Sec.  106.30, and the grievance process in Sec.  106.45 applies to all 
formal complaints alleging sexual harassment.
    Sexual harassment is not limited to being bi-directional (male-to-
female and female-to-male). As explained above, these final regulations 
focus on prohibited conduct, irrespective of the identity of the 
complainant and respondent. As explained above, any person may 
experience sexual harassment as a form of sex discrimination, 
irrespective of the identity of the complainant or respondent.
    Changes: None.
    Comments: One commenter urged the Department to require that all 
policies, information, education, training, reporting options, and 
adjudication processes be accessible and fair and balanced to all 
students regardless of race, ethnicity, disability, sexual orientation, 
or other potentially disenfranchising characteristics. One commenter 
recommended that the Department remove ``sex discrimination issues'' 
from the summary section of the preamble because the scope is too 
narrow and inconsistent with the spirit of Title IX and discrimination 
in higher education extends beyond sex discrimination. This commenter 
also stated that the proposed rules refer to recipients' 
responsibilities related to actionable harassment under Title IX, but 
the commenter suggested that the term discrimination would be more 
appropriate because sex- and gender-based harassment is only one form 
of discrimination that Title IX prohibits. One commenter stated that if 
the scope of the proposed rules must be limited to sexual harassment, 
this scope should be clearly stated in the preamble to not give the 
impression that other forms of discrimination included in Title IX do 
not require due process.
    Discussion: Title IX expressly prohibits discrimination on the 
basis of sex and not race, disability, or other protected 
characteristics, and the Department does not have the legal authority 
to promulgate regulations addressing discrimination on the basis of 
protected characteristics, other than sex, under Title IX. The 
Department enforces other statutes such as Title VI, which prohibits 
discrimination on the basis of race, color, and national origin. The 
Department's other regulations specifically address discrimination 
based on these and other protected characteristics.
    These final regulations require that all policies, information, 
education, training, reporting options, and adjudication processes be 
accessible and fair for all students. For example, any complainant will 
be offered supportive measures, even if that person does not wish to 
file a formal complaint under Sec.  106.44(a). Any respondent will 
receive the due process protections in the Sec.  106.45 grievance 
process before the imposition of any disciplinary sanctions for sexual 
harassment under Sec.  106.44(a). Additionally, the recipient's non-
discrimination statement, designation of a Title IX Coordinator, 
policy, grievance procedures, and training materials should be readily 
accessible to all students pursuant to Sec.  106.8 and Sec.  
106.45(b)(10)(i)(D).
    For the reasons previously explained, the Department does not 
define sex in these final regulations, as these final regulations focus 
on prohibited conduct, namely sexual harassment as a form of sex 
discrimination. As previously explained, the Department's definition of 
sexual harassment applies for the protection of any person who 
experiences sexual harassment, regardless of sexual orientation or 
gender identity.
    Although these final regulations constitute the Department's first 
promulgation of regulations that address sexual harassment, these final 
regulations also make revisions to pre-existing regulations and 
regulations such as regulations in subpart A and subpart B of Part 106 
that generally address sex discrimination but do not specifically 
address sexual harassment. For example, the Department revises Sec.  
106.8, which concerns the designation of a Title IX Coordinator who 
will address all forms of discrimination on the basis of sex and not 
just sexual harassment. The Department clarifies in Sec.  106.8(c) that 
a recipient must adopt and publish grievance procedures that provide 
for the prompt and equitable

[[Page 30180]]

resolution of student and employee complaints, alleging any action that 
would be prohibited by Part 106 of Title 34 of the Code of Federal 
Regulations, and also a grievance process that complies with Sec.  
106.45 for formal complaints of sexual harassment as defined in Sec.  
106.30. Section 106.8(c) thus clarifies that a recipient does not need 
to apply or use the grievance process in Sec.  106.45 for complaints 
alleging sex discrimination that does not constitute sexual harassment.
    Changes: None.

Supportive Measures

Overall Support and Opposition
    Comments: Many commenters supported the definition of ``supportive 
measures'' in Sec.  106.30 because the provision states that supportive 
measures may be offered to complainants and respondents; commenters 
asserted that supportive measures should be offered on an equal basis 
to all parties, except to the extent public safety concerns would 
require different treatment, stressing that respondents deal with their 
own strife as a result of going through the Title IX process. These 
commenters viewed the Sec.  106.30 definition of supportive measures as 
appropriately requiring measures that do not disproportionately punish, 
discipline, or unreasonably burden either party. Many commenters 
appreciated that the Sec.  106.30 definition of supportive measures 
included a list illustrating the range of services that could be 
offered to both parties, and several of these commenters specifically 
expressed strong support for mutual no-contact orders as opposed to 
one-way no-contact orders.
    Many commenters opposed the Sec.  106.30 definition of supportive 
measures because, while neither party should be presumed to be at fault 
before an investigation had been completed commenters argued that this 
provision will cause an overall decrease in the availability of support 
services and accommodations to victims. Commenters argued that the 
requirement that supportive measures be ``non-disciplinary, non-
punitive,'' ``designed [but not required] to restore access,'' and not 
unreasonably burdensome to the non-requesting party, significantly 
limits the universe of supportive measures schools could offer to 
victims by prohibiting any measure reasonably construed as negative 
towards a respondent. These commenters believed the supportive measures 
definition was too respondent-focused and effectively prioritized the 
education of respondents over complainants. Several commenters 
identified the clause ``designed to effectively restore or preserve'' 
and questioned how OCR would review and determine whether a supportive 
measure met this requirement. One commenter asserted that supportive 
measures designed to restore ``access,'' as opposed to equal access, 
contradicted the proposed definition of ``sexual harassment'' in Sec.  
106.30 as well as the Supreme Court's holding in Davis because 
restoring some access is an incomplete remedy for a denial of equal 
access.
    Several commenters requested clarification that colleges and 
universities have flexibility and discretion to approve or disapprove 
requested supportive measures, including one-way no-contact orders, 
according to the unique considerations of each situation. Another 
commenter argued that Sec.  106.30 should be modified to expressly 
state that schedule and housing adjustments, or removing a respondent 
from playing on a sports team, do not constitute an unreasonable burden 
on the respondent when those measures do not separate the respondent 
from academic pursuits. Commenters argued that Sec.  106.30 should 
clarify what kind of burdens will be considered ``unreasonable.'' 
Commenters urged the Department to modify the definition of supportive 
measures to require that all such measures be proportional to the 
alleged harm and the least burdensome measures that will protect 
safety, preserve equal educational access, and deter sexual harassment.
    Many commenters suggested that the final regulations should require 
schools to implement a process through which the parties can seek and 
administrators can consider appropriate supportive measures, and at 
least one commenter suggested that a hearing similar to a preliminary 
injunction hearing under Federal Rule of Civil Procedure 65 should be 
used, particularly in cases where one party seeks the other party's 
removal from certain facilities, programs, or activities. At least one 
commenter asked the Department to specify that any interim measures 
must be lifted if the respondent is found not responsible.
    Many commenters requested clarification as to what types of 
supportive measures are allowable in the elementary and secondary 
school context or requested that the Department expand the supportive 
measures safe harbor and definition to apply in the elementary and 
secondary school context. Other commenters asserted that there may be a 
greater need for supportive measures in cases involving international 
students, women in career preparatory classes such as construction, 
manufacturing, and wielding, and lower-income students, for whom 
dropping out of school could have more drastic and long-lasting 
consequences.
    Many commenters requested that the Department reconsider or clarify 
the requirement in Sec.  106.30 that the Title IX Coordinator is 
responsible for effective implementation of supportive measures, 
arguing that Title IX Coordinators cannot fulfill all the duties 
assigned to them under the proposed rules (especially if a recipient 
has only designated one individual as a Title IX Coordinator) and 
asserting that the responsibility to implement supportive measures 
could be easily delegated to other offices on campus.
    Discussion: The Department appreciates commenters' support for the 
Sec.  106.30 definition of supportive measures, and we acknowledge 
commenters' arguments that the language employed in the proposed 
definition of the term ``supportive measures'' is too respondent-
focused or lessens the availability of measures to assist victims. The 
Department disagrees that this provision prioritizes the needs of one 
party over the other. For example, the Sec.  106.30 definition states 
that the individualized services can be offered ``to the complainant or 
respondent'' \800\ free of charge, that the services shall not 
``unreasonably'' burden either party, and may include services to 
protect the safety ``of all parties'' as well as the recipient's 
educational environment, or to deter sexual harassment. The Department 
disagrees that the requirements for supportive measures to be non-
disciplinary, non-punitive, and not unreasonably burdensome to the 
other party indicate a preference for respondents over complainants or 
prioritize the education of respondents over that of complainants. 
These requirements protect complainants and respondents from the other 
party's request for supportive measures that would unreasonably 
interfere with either party's educational pursuits. The

[[Page 30181]]

plain language of the Sec.  106.30 definition does not state that a 
supportive measure provided to one party cannot impose any burden on 
the other party; rather, this provision specifies that the supportive 
measures cannot impose an unreasonable burden on the other party. Thus, 
the Sec.  106.30 definition of supportive measures permits a wide range 
of individualized services intended to meet any of the purposes stated 
in that provision (restoring or preserving equal access to education, 
protecting safety, deterring sexual harassment).
---------------------------------------------------------------------------

    \800\ We emphasize that a ``complainant'' is any individual who 
has been alleged to be the victim of conduct that could constitute 
sexual harassment, and a ``respondent'' is any individual who has 
been reported to be the perpetrator of conduct that could constitute 
sexual harassment, so a person may be a complainant or a respondent 
regardless of whether a formal complaint has been filed or a 
grievance process is pending (and irrespective of who reported the 
alleged sexual harassment--the alleged victim themselves, or a third 
party). See Sec.  106.30 defining ``complainant'' and defining 
``respondent.''
---------------------------------------------------------------------------

    We do not believe that it would be appropriate to specify, list, or 
describe which measures do or might constitute ``unreasonable'' burdens 
because that would detract from recipients' flexibility to make those 
determinations by taking into the account the specific facts and 
circumstances and unique needs of the parties in individual 
situations.\801\ For similar reasons, we decline to require that 
supportive measures be ``proportional to the harm alleged'' and 
constitute the ``least burdensome measures'' possible, because we 
believe that the Sec.  106.30 definition appropriately allows 
recipients to select and implement supportive measures that meet one or 
more of the stated purposes (e.g., restoring or preserving equal 
access; protecting safety; deterring sexual harassment) within the 
stated parameters (e.g., without being disciplinary or punitive, 
without unreasonably burdening the other party). The ``alleged harm'' 
in a situation alleging conduct constituting sexual harassment as 
defined in Sec.  106.30 is serious harm and the definition of 
supportive measures already accounts for the seriousness of alleged 
sexual harassment while effectively ensuring that supportive measures 
are not unfair to a respondent; even if a supportive measure 
implemented by a recipient arguably was not the ``least burdensome 
measure'' possible, in order to qualify as a supportive measure under 
Sec.  106.30 the measure cannot punish, discipline, or unreasonably 
burden the respondent.
---------------------------------------------------------------------------

    \801\ The recipient must document the facts or circumstances 
that render certain supportive measures appropriate or 
inappropriate. Under Sec.  106.45(b)(10)(ii), a recipient must 
create and maintain for a period of seven years records of any 
actions, including any supportive measures, taken in response to a 
report or formal complaint of sexual harassment and must document 
the basis for its conclusion that its response was not deliberately 
indifferent. Specifically, that provision states that if a recipient 
does not provide a complainant with supportive measures, then the 
recipient must document the reasons why such a response was not 
clearly unreasonable in light of the known circumstances. Thus, if a 
recipient determines that a particular supportive measure was not 
appropriate even though requested by a complainant, the recipient 
must document why the recipient's response to the complainant was 
not deliberately indifferent.
---------------------------------------------------------------------------

    To the extent that commenters are advocating for wider latitude for 
recipients to impose interim suspensions or expulsions of respondents, 
the Department believes that without a fair, reliable process the 
recipient cannot know whether it has interim-expelled a person who is 
actually responsible or not. Where a respondent poses an immediate 
threat to the physical health or safety of the complainant (or anyone 
else), Sec.  106.44(c) allows emergency removals of respondents prior 
to the conclusion of a grievance process (or even where no grievance 
process is pending), thus protecting the safety of a recipient's 
community where an immediate threat exist. The Department believes that 
the Sec.  106.30 definition of ``supportive measures'' in combination 
with other provisions in the final regulations results in effective 
options for a recipient to support and protect the safety of a 
complainant while ensuring that respondents are not prematurely 
punished.\802\
---------------------------------------------------------------------------

    \802\ Section 106.44(c) (governing the emergency removal of a 
respondent who poses an immediate threat to any person's physical 
health or safety); Sec.  106.44(d) (permitting the placement of non-
student employees on administrative leave during a pending grievance 
process).
---------------------------------------------------------------------------

    In response to commenters' concerns that omission of the word 
``equal'' before ``access'' in the Sec.  106.30 definition of 
supportive measures creates confusion about whether the purpose of 
supportive measures is intended to remediate the same denial of ``equal 
access'' referenced in the Sec.  106.30 definition of sexual 
harassment, we have added the word ``equal'' before ``access'' in the 
definition of supportive measures, and into Sec.  106.45(b)(1)(i) where 
similar language is used to refer to remedies. The Department 
appreciates the opportunity to clarify that whether or not a recipient 
has implemented a supportive measure ``designed to effectively restore 
or preserve'' equal access is a fact-specific inquiry that depends on 
the particular circumstances surrounding a sexual harassment incident. 
Section 106.44(a) requires a recipient to offer supportive measures to 
every complainant irrespective of whether a formal complaint is filed, 
and if a recipient does not provide a complainant with supportive 
measures, then the recipient must document the reasons why such a 
response was not clearly unreasonable in light of the known 
circumstances under Sec.  106.45(b)(10)(ii).\803\
---------------------------------------------------------------------------

    \803\ See discussion in the ``Section 106.44(a) Deliberate 
Indifference Standard'' subsection of the ``Section 106.44 
Recipient's Response to Sexual Harassment, Generally'' section of 
this preamble.
---------------------------------------------------------------------------

    In order to ensure that the definition of supportive measures in 
Sec.  106.30 is read broadly we have also revised the wording of this 
provision to more clearly state that supportive measures must be 
designed to restore or preserve equal access to education without 
unreasonably burdening the other party, which may include measures 
designed to protect the safety of parties or the educational 
environment, or deter sexual harassment. The Department did not wish 
for the prior language to be understood restrictively to foreclose, for 
example, a supportive measure in the form of an extension of an exam 
deadline which helped preserve a complainant's equal access to 
education and did not unreasonably burden the respondent but could not 
necessarily be considered designed to protect safety or deter sexual 
harassment.
    The Department was persuaded by the many commenters who requested 
that the Department expand provisions that incentivize and encourage 
supportive measures. As previously noted, we have revised Sec.  
106.44(a) to require recipients to offer supportive measures to 
complainants. As explained in the ``Proposed Sec.  106.44(b)(3) 
Supportive Measures Safe Harbor in Absence of a Formal Complaint 
[removed in final regulations]'' subsection of the ``Recipient's 
Response in Specific Circumstances'' subsection of the ``Section 106.44 
Recipient's Response to Sexual Harassment, Generally'' section of this 
preamble, we have eliminated the proposed safe harbor regarding 
supportive measures altogether and, thus, we do not extend this safe 
harbor to elementary and secondary schools. As all recipients 
(including elementary and secondary school recipients) are now required 
to offer complainants supportive measures as part of their non-
deliberately indifference response under Sec.  106.44(a), the proposed 
safe harbor regarding supportive measures is unnecessary. The 
Department agrees that the need to offer supportive measures in the 
absence of, or during the pendency of, an investigation is equally as 
important in elementary and secondary schools as in postsecondary 
institutions. The final regulations revise the Sec.  106.30 definition 
of supportive measures to use the word ``recipient'' instead of 
``institution'' to clarify that this definition applies to all 
recipients, not only to postsecondary institutions.

[[Page 30182]]

    To preserve discretion for recipients, the Department declines to 
impose additional suggested changes that would further restrict or 
prescribe the supportive measures a recipient may or must offer, 
including requiring supportive measures that ``do'' restore or preserve 
equal access rather than supportive measures ``designed'' to restore or 
preserve equal access. Requiring supportive measures to be ``designed'' 
for that purpose rather than insisting that such measures actually 
accomplish that purpose protects recipients against unfair imposition 
of liability where, despite a recipient's implementation of measures 
intended to help a party retain equal access to education, underlying 
trauma from a sexual harassment incident still results in a party's 
inability to participate in an education program or activity. To the 
extent that commenters desire for the final regulations to specify that 
certain populations (such as international students) may have a greater 
need for supportive measures, the Department declines to revise this 
provision in that regard because the determination of appropriate 
supportive measures in a given situation must be based on the facts and 
circumstances of that situation. Supportive measures must be offered to 
every complainant as a part of a recipient's response obligations under 
Sec.  106.44(a).
    The Department declines to include an explicit statement that 
schedule and housing adjustments, or removals from sports teams or 
extracurricular activities, do not unreasonably burden the respondent 
as long as the respondent is not separated from the respondent's 
academic pursuits, because determinations about whether an action 
``unreasonably burdens'' a party are fact-specific. The 
unreasonableness of a burden on a party must take into account the 
nature of the educational programs, activities, opportunities, and 
benefits in which the party is participating, not solely those 
educational programs that are ``academic'' in nature. On the other 
hand, the Department appreciates the opportunity to clarify that, 
contrary to some commenters' concerns, schedule and housing adjustments 
do not necessarily constitute an ``unreasonable'' burden on a 
respondent, and thus the Sec.  106.30 definition of supportive measures 
continues to require that recipients consider each set of unique 
circumstances to determine what individualized services will meet the 
purposes, and conditions, set forth in the definition of supportive 
measures.\804\ Removal from sports teams (and similar exclusions from 
school-related activities) also require a fact-specific analysis, but 
whether the burden is ``unreasonable'' does not depend on whether the 
respondent still has access to academic programs; whether a supportive 
measure meets the Sec.  106.30 definition also includes analyzing 
whether a respondent's access to the array of educational opportunities 
and benefits offered by the recipient is unreasonably burdened. 
Changing a class schedule, for example, may more often be deemed an 
acceptable, reasonable burden than restricting a respondent from 
participating on a sports team, holding a student government position, 
participating in an extracurricular activity, and so forth.
---------------------------------------------------------------------------

    \804\ The 2001 Guidance at 16 takes a similar approach to the 
final regulations' approach to supportive measures, by stating that 
it ``may be appropriate for a school to take interim measures during 
the investigation of a complaint'' and for instance, ``the school 
may decide to place the students immediately in separate classes or 
in different housing arrangements on a campus, pending the results 
of the school's investigation'' or where the alleged harasser is a 
teacher ``allowing the student to transfer to a different class may 
be appropriate.''
---------------------------------------------------------------------------

    The final regulations require a recipient to refrain from imposing 
disciplinary sanctions or other actions that are not supportive 
measures, against a respondent, without following the Sec.  106.45 
grievance process, and also require the recipient's grievance process 
to describe the range, or list, the disciplinary sanctions that a 
recipient might impose following a determination of responsibility, and 
describe the range of supportive measures available to complainants and 
respondents.\805\ The possible disciplinary sanctions described or 
listed by the recipient in its own grievance process therefore 
constitute actions that the recipient itself considers ``disciplinary'' 
and thus would not constitute ``supportive measures'' as defined in 
Sec.  106.30. If a recipient has listed ineligibility to play on a 
sports team or hold a student government position, for example, as a 
possible disciplinary sanction that may be imposed following a 
determination of responsibility, then the recipient may not take that 
action against a respondent without first following the Sec.  106.45 
grievance process. If, on the other hand, the recipient's grievance 
process does not describe or list a specific action as a possible 
disciplinary sanction that the recipient may impose following a 
determination of responsibility, then whether such an action (for 
example, ineligibility to play on a sports team or hold a student 
government position) may be taken as a supportive measure for a 
complainant is determined by whether that the action is not 
disciplinary or punitive and does not unreasonably burden the 
respondent. Certain actions, such as suspension or expulsion from 
enrollment, or termination from employment, are inherently 
disciplinary, punitive, and/or unreasonably burdensome and so will not 
constitute a ``supportive measure'' whether or not the recipient has 
described or listed the action in its grievance process pursuant to 
Sec.  106.45(b)(1)(vi).
---------------------------------------------------------------------------

    \805\ Section 106.44(a); Sec.  106.45(b)(1)(i); Sec.  
106.45(b)(1)(vi); Sec.  106.45(b)(1)(ix).
---------------------------------------------------------------------------

    The Department reiterates that a recipient may remove a respondent 
from all or part of a recipient's education program or activity in an 
emergency situation pursuant to Sec.  106.44(c) (with or without a 
grievance process pending) and may place a non-student employee 
respondent on administrative leave during a grievance process, pursuant 
to Sec.  106.44(d).\806\ Further, a recipient is obligated to conclude 
a grievance process within a reasonably prompt time frame, thus 
limiting the duration of time for which supportive measures are serving 
to maintain a status quo balancing the rights of both parties to equal 
educational access in an interim period while a grievance process is 
pending.
---------------------------------------------------------------------------

    \806\ For further discussion see the ``Additional Rules 
Governing Recipients' Responses to Sexual Harassment'' subsection of 
the ``Section 106.44 Recipient's Response to Sexual Harassment, 
Generally'' section of this preamble.
---------------------------------------------------------------------------

    With respect to supportive measures in the elementary and secondary 
school context, many common actions by school personnel designed to 
quickly intervene and correct behavior are not punitive or disciplinary 
and thus would not violate the Sec.  106.30 definition of supportive 
measures or the provision in Sec.  106.44(a) that prevents a recipient 
from taking disciplinary actions or other measures that are ``not 
supportive measures'' against a respondent without first following a 
grievance process that complies with Sec.  106.45. For example, 
educational conversations, sending students to the principal's office, 
or changing student seating or class assignments do not inherently 
constitute punitive or disciplinary actions and the final regulations 
therefore do not preclude teachers or school officials from taking such 
actions to maintain order, protect student safety, and counsel students 
about inappropriate behavior. By contrast, as discussed above, 
expulsions and suspensions would constitute disciplinary sanctions 
(and/or constitute punitive or unreasonably burdensome

[[Page 30183]]

actions) that could not be imposed without following a grievance 
process that complies with Sec.  106.45. The Department emphasizes that 
these final regulations apply to conduct that constitutes sexual 
harassment as defined in Sec.  106.30, and not to every instance of 
student misbehavior.
    These final regulations do not expressly require a recipient to 
continue providing supportive measures upon a finding of non-
responsibility, and the Department declines to require recipients to 
lift, remove, or cease supportive measures for complainants or 
respondents upon a finding of non-responsibility. Recipients retain 
discretion as to whether to continue supportive measures after a 
determination of non-responsibility. A determination of non-
responsibility does not necessarily mean that the complainant's 
allegations were false or unfounded but rather could mean that there 
was not sufficient evidence to find the respondent responsible. A 
recipient may choose to continue providing supportive measures to a 
complainant or a respondent after a determination of non-
responsibility. This is not unfair to either party because by 
definition, ``supportive measures'' do not punish or unreasonably 
burden the other party, whether the other party is the complainant or 
respondent. There may be circumstances where the parties want 
supportive measures to remain in place or be altered rather than 
removed following a determination of non-responsibility, and the final 
regulations leave recipients flexibility to implement or continue 
supportive measures for one or both parties in such a situation.
    The Department also declines to add an additional requirement that 
schools implement a process by which supportive measures are requested 
by the parties and granted by recipients, because we wish to leave 
recipients flexibility to develop processes consistent with each 
recipient's administrative structure rather than dictate to every 
recipient how to process requests for supportive measures. Although we 
do not dictate a particular process, these final regulations specify in 
Sec.  106.44(a) that the Title IX Coordinator must promptly contact the 
complainant to discuss the availability of supportive measures as 
defined in Sec.  106.30, consider the complainant's wishes with respect 
to supportive measures, inform the complainant of the availability of 
supportive measures with or without the filing of a formal complaint, 
and explain to the complainant the process for filing a formal 
complaint. Complainants will know about the possible supportive 
measures available to them \807\ and will have the opportunity to 
express what they would like in the form of supportive measures, and 
the Title IX Coordinator will take into account the complainant's 
wishes in determining which supportive measures to offer. The final 
regulations do prescribe that a recipient's Title IX Coordinator must 
remain responsible for coordinating the effective implementation of 
supportive measures, so that the burden of arranging and enforcing the 
supportive measures in a given circumstance remains on the recipient, 
not on any party. We acknowledge commenters' concerns that these final 
regulations place many responsibilities on a Title IX Coordinator, and 
a recipient has discretion to designate more than one employee as a 
Title IX Coordinator if needed in order to fulfill the recipient's 
Title IX obligations.\808\
---------------------------------------------------------------------------

    \807\ Section 106.45(b)(1)(ix) requires the recipient's 
grievance process to describe the range of supportive measures 
available to complainants and respondents. Additionally, the Title 
IX Coordinator must contact an individual complainant to discuss the 
availability of supportive measures, under Sec.  106.44(a).
    \808\ See discussion in the ``Section 106.8(a) Designation of 
Coordinator'' subsection of the ``Clarifying Amendments to Existing 
Regulations'' section of this preamble.
---------------------------------------------------------------------------

    With respect for a process to remove a respondent from a 
recipient's education program or activity, these final regulations 
provide an emergency removal process in Sec.  106.44(c) if there is an 
immediate threat to the physical health or safety of any students or 
other individuals arising from the allegations of sexual harassment. A 
recipient must provide a respondent with notice and an opportunity to 
challenge the emergency removal decision immediately following the 
removal. Additionally, the grievance process in Sec.  106.45 provides 
robust due process protections for both parties, and before imposition 
of any disciplinary sanctions or other actions that are not supportive 
measures as defined in Sec.  106.30, against a respondent, a recipient 
must follow a grievance process that complies with Sec.  106.45.
    We acknowledge commenters' concerns regarding the provision in the 
Sec.  106.30 definition supportive measures that the Title IX 
Coordinator must coordinate the effective implementation of supportive 
measures. However, we believe it is important that students know they 
can work with the Title IX Coordinator to select and implement 
supportive measures rather than leave the burden on students to work 
with various other school administrators or offices. The Department 
recognizes that many supportive measures involve implementation through 
various offices or departments within a school. When supportive 
measures are part of a school's Title IX obligations, the Title IX 
Coordinator must serve as the point of contact for the affected 
students to ensure that the supportive measures are effectively 
implemented so that the burden of navigating paperwork or other 
administrative requirements within the recipient's own system does not 
fall on the student receiving the supportive measures. The Department 
recognizes that beyond coordinating and serving as the student's point 
of contact, the Title IX Coordinator will often rely on other campus 
offices to actually provide the supportive measures sought, and the 
Department encourages recipients to consider the variety of ways in 
which the recipient can best serve the affected student(s) through 
coordination with other offices while ensuring that the burden of 
effectively implementing supportive measures remains on the Title IX 
Coordinator and not on students.
    Changes: We have revised the definition for supportive measures in 
Sec.  106.30 to refer to ``recipients'' instead of ``institutions'' 
which clarifies that the definition of supportive measures is 
applicable in the context of elementary and secondary schools as well 
as in the context of postsecondary institutions. We have added 
``equal'' before ``access'' in the description of supportive measures 
designed to restore or preserve equal access to the recipient's 
education program or activity. We have revised the second sentence of 
this provision to clarify that supportive measures must be designed to 
restore or preserve equal access and must not unreasonably burden the 
other party, which may include measures also designed to protect safety 
or the recipient's educational environment, or deter sexual harassment.
No-Contact Orders
    Comments: Several commenters focused on the list of possible 
supportive measures included in the definition of supportive measures 
in Sec.  106.30 and viewed the express inclusion of mutual no-contact 
orders as a general prohibition on one-way no-contact orders, and asked 
the Department to clarify whether one-way no-contact orders were 
prohibited. Other commenters assumed one-way no-contact orders were 
prohibited, and expressed concern that by disallowing one-way no-
contact orders, the onus would be placed on the victim to take extreme 
measures to provide for their own accommodations and prevent victims 
from getting the support they needed, or would discourage victims

[[Page 30184]]

from reporting in the first place. Many commenters asserted that a 
victim would be forced to face or interact with their alleged harasser 
in class, in dorms, or elsewhere on campus if one-way no-contact orders 
were prohibited. Other commenters argued that a victim would have to 
win an administrative proceeding in order to be granted a one-way no-
contact order. Many commenters called for the Department to remove the 
``mutual restrictions on contact'' provision from the list entirely 
because it is not a victim-focused supportive measure. Additionally, 
some commenters expressed the belief that mutual no-contact orders are 
not enforceable because it is hard to determine which party has the 
burden to comply with the no-contact order if both parties are present 
in the same location. A few commenters believed that mutual no-contact 
orders would constitute unlawful retaliation against the victim since 
such an order would necessarily restrict the victim's own participation 
in programs or activities as well as the participation of the 
respondent. Some commenters argued that mutual no-contact orders were 
contrary to the public policies underlying VAWA and various State laws, 
and that mutual no-contact orders are analogous to reciprocal 
protective or restraining orders, which have been invalidated by at 
least one State Supreme Court.\809\
---------------------------------------------------------------------------

    \809\ Commenters cited: Bays v. Bays, 779 So.2d 754 (La. 2001).
---------------------------------------------------------------------------

    Other commenters asked the Department to expand the list in the 
Sec.  106.30 definition of supportive measures to include a greater 
variety of allowable supportive measures. Some commenters argued that 
the list of possible supportive measures only included prospective 
measures (that might preserve access going forward) as opposed to 
remedial measures (that might restore access that had already been 
lost), and argued that the Department should explicitly mention 
measures aimed at restoring equal access, such as opportunities to 
repeat a class or retake an exam or attaching an addendum to a 
transcript to explain a low grade.
    Discussion: We acknowledge commenters' concerns related to the 
inclusion of mutual no-contact orders on the non-exhaustive list of 
possible supportive measures in Sec.  106.30, but the Department 
declines to exclude this example from the list of supportive measures. 
The list of possible supportive measures included in the Sec.  106.30 
definition is illustrative, not exhaustive. The inclusion of ``mutual 
restrictions on contact between the parties'' on the illustrative list 
of possible supportive measures in Sec.  106.30 does not mean that one-
way no-contact orders are never appropriate. A fact-specific inquiry is 
required into whether a carefully crafted no-contact order restricting 
the actions of only one party would meet the Sec.  106.30 definition of 
supportive measures. For example, if a recipient issues a one-way no-
contact order to help enforce a restraining order, preliminary 
injunction, or other order of protection issued by a court, or if a 
one-way no-contact order does not unreasonably burden the other party, 
then a one-way no-contact order may be appropriate. The Department also 
reiterates that sexual harassment allegations presenting a risk to the 
physical health or safety of a person may justify emergency removal of 
a respondent in accordance with the Sec.  106.44(c) emergency removal 
provision, which could include a no-trespass or other no-contact order 
issued against a respondent.
    The inclusion of mutual no-contact orders on an illustrative list 
does not mean the final regulations require complainants to face their 
respondents on campus, in classrooms, or in dorms. Rather, the express 
inclusion of mutual no-contact orders suggests that recipients can 
offer measures--tempered by the requirements that they are not 
punitive, disciplinary, or unreasonably burdensome to the other party--
to limit the interactions, communications, or contact, between the 
parties. The final regulations do not require recipients to initiate 
administrative proceedings (i.e., a grievance process) in order to 
determine and implement appropriate supportive measures. Contrary to 
the arguments of commenters, the Department believes that mutual no-
contact may constitute reasonable restrictions imposed on both parties, 
because under certain circumstances such a measure serves the purposes 
of protecting each party's right to pursue educational opportunities, 
protecting the safety of all parties, and deterring sexual harassment. 
The Department believes that ``mutual restrictions on contact between 
the parties'' may in many circumstances provide benefits to the 
complainant, for example, where such a mutual no-contact order serves 
the interest of protecting safety or deterring sexual harassment by 
forbidding communication between the parties, which might not require 
either party to change dorm rooms or even re-arrange class schedules. 
Further restrictions, such as avoiding physical proximity between the 
parties, will require a fact-specific analysis to determine the scope 
of a no-contact order that may be appropriate under Sec.  106.30; for 
example, where both parties are athletes and sometimes practice on the 
same field, consideration must be given to the scope of a no-contact 
order that deters sexual harassment, without unreasonably burdening the 
other party, with the goal of restricting contact between the parties 
without requiring either party to forgo educational activities. It may 
be unreasonably burdensome to prevent respondents from attending extra-
curricular activities that a recipient offers as a result of a one-way 
no contact order prior to being determined responsible; similarly, it 
may be unreasonably burdensome to restrict a complainant from accessing 
campus locations in order to prevent contact with the respondent. In 
some circumstances, for example, a complainant might be offered a 
supportive measure consisting of a mutual no-contact order restricting 
either party from communicating with the other (which measure likely 
would not unreasonably burden either party). If, however, the 
complainant wishes to avoid all physical sightings of a respondent and 
not only an order prohibiting communications, if appropriate the 
complainant may receive a supportive measure in the form of an 
alternate housing assignment (without fee or cost to the complainant). 
The Department does not view such a supportive measure in such a 
circumstance as unreasonably burdening the complainant, because 
alternate supportive measures also would have prevented sexual 
harassment (by prohibiting all communication between the parties). 
Under Sec.  106.44(a), a Title IX Coordinator must consider a 
complainant's wishes with respect to supportive measures, and if a 
complainant would like a different housing arrangement as part of a 
supportive measure, then a Title IX Coordinator should consider 
offering such a supportive measure.
    The Department does not believe that ``mutual restrictions on 
contact between the parties'' could constitute unlawful retaliation by 
restricting the complainant's own participation in certain programs or 
activities of the recipient as well as that of the respondent. Such a 
supportive measure would simply treat both parties equally, and 
``restrictions on contact'' could be limited in scope to prohibiting 
communications between the parties,

[[Page 30185]]

which may not affect the complainant's ability to participate in 
classes or activities. The Department notes that the Sec.  106.30 
definition's requirements that supportive measures be non-disciplinary 
and non-punitive apply equally to protect complainants against a 
recipient taking action that punishes or sanctions a complainant. In 
response to commenters' concerns about complainants being unfairly 
punished in the wake of reporting sexual harassment, the Department 
added Sec.  106.71 prohibiting retaliation. Actions taken by a 
recipient under the guise of ``supportive measures'' that actually have 
the purpose and effect of penalizing the complainant for the purpose of 
discouraging the complainant from exercising rights under Title IX 
would constitute unlawful retaliation.
    We also acknowledge the various other suggested modifications to 
the list of supportive measures offered by commenters, but we decline 
to expand this list. The Department encourages recipients to broadly 
consider what measures they can reasonably offer to individual students 
to ensure continued equal access to a recipient's education program and 
activities for a complainant, irrespective of whether a complainant 
files a formal complaint, and for a respondent, when a formal complaint 
is filed. The Department has provided a list to illustrate the range of 
possible supportive measures, but the list of supportive measures is 
not intended to be exhaustive. Nothing in Sec.  106.30 precludes 
recipients from considering and providing supportive measures not 
listed in the definition, including measures designed to 
retrospectively ``restore'' or prospectively ``preserve'' a 
complainant's equal educational access. We note that the Sec.  106.30 
already includes the example of ``course-related adjustments'' which 
could encompass several suggested measures identified by commenters, 
such as opportunities to retake classes or exams, or adjusting an 
academic transcript.
    Changes: None.

Other Language/Terminology Comments

    Comments: One commenter expressed concern that the terms 
``survivor'' and ``victim'' used in the NPRM to describe a person who 
merely alleges something has happened to them are prejudicial and anti-
male. Other commenters asserted that the Department's proposed 
regulations are biased in favor of males partly due to the use of 
neutral terms such as ``complainant'' and ``respondent'' instead of 
``survivor'' or ``perpetrator.'' One commenter suggested that, instead 
of using the term ``complainant,'' the final regulations should refer 
to ``student survivors'' or ``those who face harassment.'' The 
commenter further recommended that the final regulations use the term 
``perpetrator'' instead of ``respondent,'' saying that the use of the 
term ``respondent'' is confusing, and fails to account for perpetrators 
who are never formally investigated, and therefore are never in a 
formal respondent role (i.e., because they have not responded to 
anything).
    Discussion: The Department disagrees that the use of the term 
survivor or victim in the NPRM is biased, anti-male, or pro-male. The 
term ``survivor'' was used five times in the preamble to refer 
generally to individuals who have been victims of sexual harassment. 
The Department listened to advocates for these individuals, as we 
listened to other stakeholders. The use of the term survivor or victim 
in that context takes no position on the veracity of any particular 
complainant or respondent, or complainants or respondents in general. 
The final regulations are intended to be objective and do not use the 
term ``survivor'' or ``victim'' in the regulatory text, instead using 
the more neutral terms ``complainant'' and ``respondent.'' The final 
regulations are intended to be fair, unbiased, and impartial toward 
both complainants and respondents. When a determination of 
responsibility is reached against a respondent, the Department's 
interest is in requiring remedies for the complainant, to further the 
goal of Title IX by providing remedies to victims of sexual harassment 
aiming to restore their equal educational access. Although the final 
regulations do not need to use the word ``victim,'' once a reliable 
outcome has determined that a complainant was victimized by sexual 
harassment, the final regulations mandate that remedies be provided to 
that complainant precisely because after such a determination has been 
made, that complainant has been fairly, reliably shown to have been the 
victim of sexual harassment.
    Changes: None.
    Comments: One commenter expressed concern that the terms used in 
the NPRM reveal a clear preference in protecting the interests of a 
school and effectively limiting a school's liability rather than 
protecting the equal right for all students to have access to higher 
education free from discrimination.
    Discussion: The Department does not have, nor does the terminology 
in the final regulations reflect, any preference for protecting the 
interests of a school or effectively limiting a school's liability 
rather than protecting the equal right of all students to have access 
to higher education free from discrimination. Although the Department 
is not required to adopt the deliberate indifference standard 
articulated by the Supreme Court, we are persuaded by the policy 
rationales relied on by it and believes it is the best policy approach. 
As the Court reasoned in Davis, a recipient acts with deliberate 
indifference only when it responds to sexual harassment in a manner 
that is ``clearly unreasonable in light of the known circumstances.'' 
\810\ The Department believes this standard holds recipients 
accountable without depriving them of legitimate and necessary 
flexibility to make disciplinary decisions and to provide supportive 
measures that might be necessary in response to sexual harassment. 
Moreover, the Department believes that teachers and local school 
leaders with unique knowledge of the school climate and student body 
are best positioned to make disciplinary decisions; thus, unless the 
recipient's response to sexual harassment is clearly unreasonable in 
light of known circumstances, the Department will not second guess such 
decisions. In addition, the final regulations impose obligations on 
recipients that go beyond the deliberate indifference standard as set 
forth in Davis; for example, by requiring that recipients' non-
deliberately indifferent response must include offering supportive 
measures to a complainant under Sec.  106.44(a). Additionally, as 
explained in more detail in the ``Section 106.44(b) Proposed `Safe 
Harbors,' generally'' subsection in the ``Recipient's Response in 
Specific Circumstances'' section, these final regulations do not 
include any of the proposed safe harbors in the NPRM for recipients.
---------------------------------------------------------------------------

    \810\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648-49 
(1999).
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter opposed the use of criminal terms since 
many of the terms that relate to the findings have legal definitions in 
criminal law, for which due process protections already exist, and the 
use of such language suggests that colleges do not want the overall 
Title IX process to be an educational experience and not a criminal 
justice proceeding.
    Discussion: The Department disagrees with the commenter's 
contention. The Department has in no way implied that these proceedings 
are criminal in nature and the final regulations use terms such as 
``complainant'' and ``respondent,'' ``decision-maker'' and 
``determination

[[Page 30186]]

regarding responsibility'' to describe features of the grievance 
process, language intentionally adopted to avoid reference to terms 
used in civil courts or criminal proceedings (e.g., plaintiff, 
defendant, prosecutor, judge, verdict). In this way, the final 
regulations acknowledge that the resolution of allegations of Title IX 
sexual harassment in an education program or activity serves a 
different purpose and occurs in a different context from a civil or 
criminal court. As explained in the ``Role of Due Process in the 
Grievance Process'' section of this preamble, the Sec.  106.45 
grievance process is rooted in principles of due process to create a 
process fair to all parties and likely to result in reliable outcomes, 
and while the Department believes that the grievance process is 
consistent with constitutional due process, the Sec.  106.45 grievance 
process is independent from constitutional due process because it is 
designed to effectuate the purposes of Title IX as a civil rights 
statute. The Department understands the concerns expressed by some 
commenters that colleges want the overall Title IX process to be an 
educational experience and that the outcome is administrative and 
believes the final regulations prescribe a consistent grievance process 
appropriate for administratively resolving allegations of sexual 
harassment in an education program or activity.
    Changes: None.
    Comments: One commenter suggested using the word ``discrimination'' 
instead of ``harassment'' in places where the NPRM describes actionable 
behavior because harassment does not have to occur for there to be 
discrimination.
    Discussion: The Department declines to adopt the word 
``discrimination'' instead of ``harassment'' in these final 
regulations. The Department's Title IX regulations already address sex 
discrimination, and these final regulations intend to address sexual 
harassment as a particular form of sex discrimination under Title IX. 
Complaints of sex discrimination that do not constitute sexual 
harassment may be made to a recipient for handling under the prompt and 
equitable grievance procedures that recipients must adopt under Sec.  
106.8(c). When the sex discrimination complained of constitutes sexual 
harassment as defined in Sec.  106.30, these final regulations govern 
how recipients must respond to that form of sex discrimination.
    Changes: None.
    Comments: One commenter expressed concern that the NPRM used the 
term ``guilt,'' which equates school conduct processes to the court 
system and seems contrary to the NPRM's goals of distinguishing between 
school conduct processes and the judicial system. The commenter argued 
that instead, the final regulations should use the terms ``found 
responsible'' and ``not responsible,'' and should only draw comparisons 
with civil, rather than criminal, case law.
    Discussion: The Department disagrees with the concern that the NPRM 
inappropriately used the term ``guilt.'' The word ``guilt'' appears 
only in two instances in the NPRM, and neither of those occurrences is 
in the text of the proposed regulations. In the first instance, the 
NPRM notes that ``Secretary DeVos stated that in endeavoring to find a 
`better way forward' that works for all students, `non-negotiable 
principles' include the right of every survivor to be taken seriously 
and the right of every person accused to know that guilt is not 
predetermined.'' \811\ Second, the NPRM states that ``[a] fundamental 
notion of a fair proceeding is that a legal system does not prejudge a 
person's guilt or liability.'' \812\ In both contexts, the NPRM was 
using the term guilt generally to refer to culpability for an offense. 
The Department also declines to revise the final regulations to use the 
terms ``found responsible'' and ``not responsible'' because it has 
already utilized similar language; for example, Sec.  106.45(b)(1)(vi) 
uses ``determination of responsibility'' in the context of finding a 
respondent responsible and Sec.  106.45(b)(7) employs the term 
``determination regarding responsibility'' in the context of a 
determination that could either find the respondent responsible or non-
responsible. The NPRM uses the same or similar terms.\813\
---------------------------------------------------------------------------

    \811\ 83 FR 61464.
    \812\ 83 FR 61473.
    \813\ See, e.g., 83 FR 61466, 61470.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Several commenters suggested that the term ``equitable'' 
should be used instead of ``equal'' because the two terms have 
different meanings, and Title IX focuses on educational equity. Without 
citing a specific provision, one commenter argued that ``equal'' would 
assume that if a translator were provided for one party, a translator 
must be provided for the other party.
    Discussion: The Department understands commenters' concerns that 
``equal'' and ``equitable'' have different implications, and the final 
regulations use both terms with such a distinction in mind. Where 
parties are given ``equal'' opportunity, for example, both parties must 
be treated the same. By contrast, where parties must be treated 
``equitably,'' the final regulations explain what equitable means for a 
complainant and for a respondent. The Department disagrees that the use 
of ``equal'' in these final regulations is inappropriate. The equal 
opportunity for both parties to receive a disability accommodation does 
not mean that both parties must receive a disability accommodation or 
that they must receive the same disability accommodation. Similarly, 
both parties may not need a translator, and a recipient need not 
provide a translator for a party who does not need one, even if it 
provides a translator for the party who needs one.
    Changes: None.
    Comments: One commenter suggested using the term ``education 
program or activity'' instead of ``schools'' to be more consistent with 
statute and case law. The commenter asserted that use of the word 
``schools'' may limit the ability to investigate issues that arise 
during sporting activities, afterschool programs, on field trips, etc.
    Discussion: Although the Department declines to remove reference to 
``schools,'' the Department provides a definition for ``elementary and 
secondary schools'' as well as ``postsecondary institutions'' in Sec.  
106.30. The Department believes that it is important to distinguish 
between these types of recipients as the type of hearing that a 
recipient must provide under Sec.  106.45(b)(6) may be different if the 
recipient is an elementary or secondary school as opposed to a 
postsecondary institution.
    To address the commenter's concerns, the Department notes that 
Sec.  106.2(h) provides a definition of ``program or activity'' as all 
of the operations of elementary and secondary schools and postsecondary 
institutions. Additionally, the Department has revised Sec.  106.44(a) 
to specify that for purposes of Sec. Sec.  106.30, 106.44, and 106.45, 
an education program or activity includes locations, events, or 
circumstances over which the recipient exercised substantial control 
over both the respondent and the context in which the harassment 
occurs. This definition aligns with the Supreme Court's opinion in 
Davis \814\ and clarifies when sporting activities, afterschool 
programs, or field trips constitute part of the recipient's education 
program or activity. The Department also revised Sec.  106.44(a) to 
state that for purposes of Sec. Sec.  106.30, 106.44, and 106.45, an 
``education program or activity'' also includes any

[[Page 30187]]

building owned or controlled by a student organization that is 
officially recognized by a postsecondary institution. The revisions to 
Sec.  106.44(a) to help better define ``education program or activity'' 
are explained more fully in the ``Section 106.44(a) `education program 
or activity' '' subsection of the ``Section 106.44 Recipient's Response 
to Sexual Harassment, Generally'' section.
---------------------------------------------------------------------------

    \814\ Davis, 526 U.S. at 645.
---------------------------------------------------------------------------

    Changes: The Department has revised Sec.  106.44(a) to specify that 
an education program or activity includes locations, events, or 
circumstances over which the recipient exercised substantial control 
over both the respondent and the context in which the harassment 
occurs, and also includes any building owned or controlled by a student 
organization that is officially recognized by a postsecondary 
institution.
    Comments: One commenter expressed concern that the NPRM's use of 
the term ``students'' is too narrow in light of the language of Title 
IX and current Title IX regulations, as well as the Supreme Court's 
repeated determinations that Title IX encompasses all individuals 
participating in education programs and activities. Another commenter 
suggested that the term ``student'' in the NPRM should be replaced with 
``person'' consistent with statute and case law and because the term 
``student'' may be restrictive because it does not encompass employees, 
volunteers, parents, and community members. One commenter expressed 
concern that the definition of ``student'' as a person who has gained 
admission is problematic because institutions of higher education, 
particularly those who do not have open enrollment, typically consider 
an applicant a student once they have submitted a deposit, indicating 
their acceptance of an admission offer and commitment to attend.
    Discussion: The Department disagrees with the commenters who 
opposed the use of the term ``students.'' Title IX provides that a 
recipient of Federal funding may not discriminate on the basis of sex 
in the education program or activity that it operates and extends 
protections to any ``person.'' The final regulations similarly use 
``person'' or ``individual'' to ensure that the Title IX non-
discrimination mandate applies to anyone in a recipient's education 
program or activity. For example, Sec.  106.30 defines sexual 
harassment as conduct that deprives ``a person'' of equal access; Sec.  
106.30 defines a ``complainant'' as an ``individual'' who is alleged to 
be the victim of sexual harassment. Where the final regulations use the 
phrase ``students and employees'' or ``students,'' such terms are used 
not to narrow the application of Title IX's non-discrimination mandate 
but to require particular actions by the recipient reasonably intended 
to benefit students, employees, or both; for example, Sec.  106.8(a) 
requires recipients to notify ``students and employees'' of contact 
information for the Title IX Coordinator. Where the final regulations 
intend to include ``applicants for admission'' in addition to 
``students'' the phrase ``applicants for admission'' is used; for 
example, Sec.  106.8(b)(2)(ii) precludes recipients from using 
publications that state that the recipient treats applicants for 
admission (or employment), students, or employees differently on the 
basis of sex (unless permitted under Title IX). Both Title IX and 
existing Title IX regulations use the term ``student'' 
ubiquitously.\815\ The existing Title IX regulations, in 34 CFR 
106.2(r), define ``student'' as ``a person who has gained admission.'' 
``Admission'', as defined in 34 CFR 106.2(q), ``means selection for 
part-time, full-time, special, associate, transfer, exchange, or any 
other enrollment, membership, or matriculation in or at an education 
program or activity operated by a recipient.'' The Department disagrees 
with the commenter's concern that the definition of ``student'' as a 
person who has gained admission is problematic. The Department does not 
believe the term ``student'' should be changed to reflect other persons 
who are not enrolled in the recipient's education program or activity. 
The term ``student'' as defined in 34 CFR 106.2(r) aligns with the 
definition of ``formal complaint'' in Sec.  106.30 that provides at the 
time of filing a formal complaint, a complainant must be participating 
in or attempting to participate in the education program or activity of 
the recipient with which the formal complaint is filed.\816\ A student 
who has applied for admission and has been admitted is attempting to 
participate in the education program or activity of the recipient.
---------------------------------------------------------------------------

    \815\ E.g., 20 U.S.C. 1681(a)(2); 34 CFR 106.36.
    \816\ See the ``Formal Complaint'' subsection in the ``Section 
106.30 Definitions'' section of this preamble.
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter expressed concern that equating ``trauma-
informed'' and ``impartial'' is a false equivalency that threatens to 
undermine the quality and efficacy of the Title IX process. The 
commenter argued that ``trauma-informed'' refers to a body of research, 
practice, and theory that teaches professionals who interact with 
victims to recognize that all individuals process trauma differently, 
to understand different responses to trauma, and to recognize ways in 
which we can avoid further traumatization of involved parties through 
sensitive questioning, mindfulness-based practices, and avoiding 
potentially triggering situations such as unnecessarily repetitive 
questioning. Further, equating these two terms is dismissive of decades 
of research and best practices concerning gender and sexual-based 
violence and harassment prevention and response.
    Discussion: The Department disagrees that the final regulations 
equate ``trauma-informed'' and ``impartial'' in a manner that 
undermines the quality and efficacy of the Title IX process. It appears 
that the commenter prefers the Department to adopt a trauma-informed 
approach as a best practice. The Department understands from personal 
anecdotes and research studies that sexual violence is a traumatic 
experience for survivors. The Department is aware that the neurobiology 
of trauma and the impact of trauma on a survivor's neurobiological 
functioning is a developing field of study with application to the way 
in which investigators of sexual violence offenses interact with 
victims in criminal justice systems and campus sexual misconduct 
proceedings.\817\ The final regulations require impartiality on the 
part of Title IX personnel (i.e., Title IX Coordinators, investigators, 
decision-makers, and persons who facilitate informal resolutions) \818\ 
to reinforce the truth-seeking purpose of a grievance process. The 
Department wishes to emphasize that treating all parties with dignity, 
respect, and sensitivity without bias, prejudice, or stereotypes 
infecting interactions with parties fosters impartiality and truth-
seeking. While the final regulations do not use the term ``trauma-
informed,'' nothing in the final regulations precludes a recipient from 
applying trauma-informed techniques, practices, or approaches so long 
as such practices are consistent with the requirements of Sec.  
106.45(b)(1)(iii) and other requirements in Sec.  106.45.
---------------------------------------------------------------------------

    \817\ E.g., Jeffrey J. Nolan, Fair, Equitable Trauma-Informed 
Investigation Training (Holland & Knight updated July 19, 2019) 
(white paper summarizing trauma-informed approaches to sexual 
misconduct investigations, identifying scientific and media support 
and opposition to such approaches, and cautioning institutions to 
apply trauma-informed approaches carefully to ensure impartial 
investigations).
    \818\
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter requested clarification of the numerous 
provisions of the proposed regulations that refer to

[[Page 30188]]

specific time frames, such as ten ``days.'' The commenter suggested 
that the Department clarify whether these are ``calendar'' days or 
``working'' days.
    Discussion: The Department appreciates the commenter's request for 
clarification as to how to calculate ``days'' with respect to various 
time frames referenced in the proposed regulations and appreciates the 
opportunity to clarify that because the Department does not require a 
specific method for calculating ``days,'' recipients retain the 
flexibility to adopt the method that works best for the recipient's 
operations; for example, a recipient could use calendar days, school 
days, or business days, or a method the recipient already uses in other 
aspects of its operations.
    Changes: None.
    Comments: One commenter asserted that it is unclear whether Sec.  
106.6(d) intended to cover recipients that are not government actors. 
The commenter suggested adding ``whether or not that recipient is a 
government actor'' after ``recipient.''
    Discussion: As explained in the ``Role of Due Process in the 
Grievance Process'' section of this preamble, the Department recognizes 
that some recipients are State actors with responsibilities to provide 
due process of law and other rights to students and employees under the 
U.S. Constitution, while other recipients are private institutions that 
do not have constitutional obligations to their students and employees. 
The final regulations apply to all recipients covered by Title IX 
because fair, reliable procedures that best promote the purposes of 
Title IX are as important in public schools, colleges, and universities 
as in private ones. The grievance process prescribed in the final 
regulations is important for effective enforcement of Title IX and is 
thus consistent with, but independent of, constitutional due process. 
Where enforcement of Title IX's non-discrimination mandate is likely to 
present potential intersections with a public recipient's obligation to 
respect the constitutional rights of students and employees, the final 
regulations caution recipients that nothing in these final regulations 
requires a recipient to restrict constitutional rights.\819\ Similarly, 
the Department, as an agency of the Federal government, cannot require 
private recipients to restrict constitutional rights. The Department 
will not require private recipients to abide by restrictions in the 
U.S. Constitution that do not apply to them. The Department, as a 
Federal agency, however, must interpret and enforce Title IX in a 
manner that does not require or cause any recipient, whether public or 
private, to restrict or otherwise abridge any person's constitutional 
rights.
---------------------------------------------------------------------------

    \819\ E.g., Sec.  106.6(d); Sec.  106.44(a) (stating that the 
Department may not deem a recipient to have satisfied the 
recipient's duty to not be deliberately indifferent based on the 
recipient's restriction of rights protected under the U.S. 
Constitution, including the First Amendment, Fifth Amendment, and 
Fourteenth Amendment).
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter encouraged the Department to explicitly 
state that Title IX and the Title IX regulations do not apply to 
schools that do not receive Federal financial assistance to help 
protect their autonomy and Constitutional rights, which would promote 
diversity in education by protecting the autonomy and freedom of 
private and religious schools to thrive according to their stated 
mission and purpose. The commenter stated that their schools are 
committed to providing safe and equal learning opportunities for each 
student that they serve and noted that such language has been included 
in reauthorizations of the Elementary and Secondary Education Act 
(ESEA) and that the Every Student Succeeds Act, the most recent 
reauthorization passed in 2015, contains Section 8506 which 
specifically states, ``Nothing in this Act shall be construed to affect 
any private school that does not receive funds or services under this 
Act'' [20 U.S.C. 7886(a)].''
    Discussion: The Department does not believe it is necessary to 
further explain in the final regulations that Title IX applies only to 
recipients of Federal financial assistance; the text of Title IX, 20 
U.S.C. 1681, clearly states that the Title IX non-discrimination 
mandate applies to education programs or activities that receive 
Federal financial assistance, and expressly exempts educational 
institutions controlled by religious organizations from compliance with 
Title IX to the extent that compliance with Title IX is inconsistent 
with the religious tenets of the religious organization even if the 
educational institution does receive Federal financial assistance.\820\ 
Existing Title IX regulations already sufficiently mirror that Title IX 
statutory language by defining ``recipient'' \821\ and affirming the 
Title IX exemption for educational institutions controlled by religious 
organizations.\822\
---------------------------------------------------------------------------

    \820\ 20 U.S.C. 1681(a); 20 U.S.C. 1681(a)(3).
    \821\ 34 CFR 106.2(i) (defining ``recipient'').
    \822\ 34 CFR 106.12(a).
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter stated that the proposed regulations were 
not easy to understand because the ``Summary'' section of the NPRM 
contained too little information. The commenter asserted that although 
the proposed regulations were intended to protect young people, young 
people would not be able to understand them. Another commenter opposed 
the NPRM because, the commenter asserted, the details were perplexing, 
vague, and did not tell in sufficient detail, how the proposed rules 
would be implemented in terms of the behavior, conditions, and 
situations involved. Another commenter expressed concern that the 
``sloppy and biased language'' in the NPRM needed to be corrected, 
pointing specifically to the summary comments at 83 FR 61462 and 
elsewhere in the NPRM.
    Discussion: The Department acknowledges the concern from the 
commenter that the proposed regulations are not easy enough to 
understand. However, the purpose of the NPRM is to provide a basic 
overview of the Department's proposed actions and reasons for the 
proposals. The Department believes that the NPRM accomplished this 
purpose by providing not only a summary section but also a background 
section and specific discussions of each proposed provision.
    The Department acknowledges the concern of the commenter that 
opposed the NPRM because the commenter believed the language was too 
vague and does not provide sufficient detail as to how the proposed 
rules would be implemented in specific situations. The Department 
believes that both the NPRM, and now these final regulations, strike an 
appropriate balance between containing sufficient details as to a 
recipient's legal obligations without improperly purporting to specify 
outcomes for all scenarios and situations many of which will turn on 
particular facts and circumstances. The Department wishes to emphasize 
that when determining how to comply with these final regulations, 
recipients have flexibility to employ age-appropriate methods, exercise 
common sense and good judgment, and take into account the needs of the 
parties involved.
    The Department disagrees that any of the language in the proposed 
rules or final regulations is biased, and notes that the Department's 
choice of language throughout the text of the final regulations is 
neutral, impartial, and unbiased with respect to complainants and 
respondents.
    Changes: None.
    Comments: One commenter expressed concern that the final 
regulations should not emphasize the view that schools are

[[Page 30189]]

in a unique position to make disciplinary decisions based on school 
climate because all decisions, including disciplinary decisions, should 
be made congruent with the intent and spirit of the proposed rules. 
Stating that schools are in a unique position regarding decision making 
invites many forms of prejudice and renders decisions less reliable.
    Discussion: The Department disagrees with the position that the 
final regulations should not emphasize the view that schools are in a 
unique position to make disciplinary decisions based on school climate. 
The Department disagrees with the commenter's conclusory assertion that 
by acknowledging schools are in a unique position to make such 
decisions that the Department invites prejudice that renders decisions 
less reliable. As the Supreme Court reasoned in Davis, Title IX must be 
interpreted in a manner that leaves flexibility in schools' 
disciplinary decisions and that does not place courts in the position 
of second guessing the disciplinary decisions made by school 
administrators.\823\ As a matter of policy, the Department believes 
that these same principles should govern administrative enforcement of 
Title IX.
---------------------------------------------------------------------------

    \823\ Davis, 626 U.S. at 648.
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter suggested including a full list of 
stakeholders who were interviewed and involved in the process of 
developing the NPRM to establish credibility (with aliases provided to 
protect the privacy of individual participants), as well as the meeting 
minutes included as an appendix.
    Discussion: The Department does not believe it is necessary to 
publish a full list of stakeholders who were interviewed and involved 
in the process of developing the NPRM to establish credibility or 
publish meeting minutes included as an appendix. The Department noted 
in the NPRM that it conducted listening sessions and discussions with 
stakeholders expressing a variety of positions for and against the 
status quo, including advocates for survivors of sexual violence; 
advocates for accused students; organizations representing schools and 
colleges; scholars and experts in law, psychology, and neuroscience; 
and numerous individuals who have experienced school-level Title IX 
proceedings as a complainant or respondent; school and college 
administrators; child and sex abuse prosecutors.\824\ The Department 
believes this level of detail is sufficient to support the Department's 
contention that the Department conducted wide outreach in developing 
the NPRM.
---------------------------------------------------------------------------

    \824\ 83 FR 61463-64.
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter suggested including an index of terms that 
define legal terminology, including ``respondeat superior, 
``reasonableness standard,'' ``deliberate indifference standard,'' 
``constructive notice,'' and so forth because the use of legal 
terminology throughout these regulations without accompanying 
layperson's commentary or clear definition of the terminology applied 
throughout the proposed revisions confuse and divert attention from the 
actual meaning of the proposed rules.
    Discussion: The Department does not believe it is necessary to 
include an index of terms that define legal terminology. The Department 
has defined key terms as necessary in Sec.  106.30, and Sec.  106.2 
also provides relevant definitions. The remainder of the language used 
in the final regulations should be interpreted both in the context of 
the final regulations and in accordance with its ordinary public 
meaning.
    The Department agrees that the term ``respondeat superior'' is a 
legal term of art that may be confusing in light of the final 
regulations' frequent use of the word ``respondent'' which looks very 
similar to the word ``respondeat'' as used in the phrase ``respondeat 
superior'' in the Sec.  106.30 definition of ``actual knowledge.'' To 
address this concern, the Department has revised the definition of 
``actual knowledge'' in Sec.  106.30 to use the term ``vicarious 
liability'' instead of ``respondeat superior.'' Although ``vicarious 
liability'' is a legal term, ``vicarious liability'' more readily 
conveys the concept of being liable for the actions or omissions of 
another, without causing unnecessary confusion with the word 
``respondent.''
    Changes: Partly in response to commenters' concerns that the phrase 
``respondeat superior'' was not recognizable as a legal term or was too 
easily confused with use of the word ``respondent'' throughout the 
final regulations, we have revised the definition of ``actual 
knowledge'' in Sec.  106.30 by replacing term ``respondeat superior'' 
with ``vicarious liability.''
    Comments: One commenter suggested including support and context for 
the Department's contention in the NPRM that the proposed rules will 
give sexual harassment complainants greater confidence to report and 
expect their school to respond in a meaningful way by separating a 
recipient's obligation to respond to a report of sexual harassment from 
the recipient's obligation to investigate formal complaints of sexual 
harassment; the commenter argued that the NPRM thus implies that either 
complainants do not currently have a clear understanding of their Title 
IX rights and a school's obligation to respond or that complainants are 
under the misconception that all complaints are considered formal 
complaints under the current Title IX guidance and regulations.
    Discussion: The Department's past guidance required recipients to 
always investigate any report of sexual harassment, even when the 
complainant only wanted supportive measures and did not want an 
investigation, which necessarily results in some intrusion into the 
complainant's privacy.\825\ This guidance combined a recipient's 
obligation to respond to a report of sexual harassment with the 
recipient's obligation to investigate formal complaints of sexual 
harassment. This guidance also did not distinguish between an 
investigation which resulted in the imposition of disciplinary 
sanctions and an inquiry into a report of sexual harassment.\826\ The 
Department's past guidance did not specifically provide both parties 
the opportunity to know about an investigation and participate in such 
an investigation, when the investigation may lead to the imposition of 
disciplinary sanctions against the respondent and the provision of 
remedies. Through Sec. Sec.  106.44 and 106.45, these final regulations 
clarify when a recipient has the affirmative obligation to conduct an 
investigation that may lead to the imposition of disciplinary 
sanctions, requires the recipient to notify both parties of such an 
investigation, and requires the recipient to provide both parties the 
opportunity to participate in the process. Irrespective of whether a 
recipient conducts an investigation under Sec.  106.45, a recipient may 
inquire about a report of sexual harassment and must offer supportive 
measures in response to such a report under Sec.  106.44(a). If a 
recipient does not provide a complainant with supportive measures, then 
the recipient must document the reasons why such a response as not 
clearly unreasonable in light of the known circumstances under Sec.  
106.45(b)(10)(ii).
---------------------------------------------------------------------------

    \825\ 2001 Guidance at 13, 15, 18; 2011 Dear Colleague Letter at 
4.
    \826\ 2001 Guidance at 13, 15, 18.
---------------------------------------------------------------------------

    Under the Department's past guidance, some students did not know 
that reporting sexual harassment always would lead to an investigation, 
even

[[Page 30190]]

when the student did not want the recipient to investigate. A rigid 
requirement such as an investigation in every circumstance may chill 
reporting of sexual harassment, which is in part why these final 
regulations separate the recipient's obligation to respond to a report 
of sexual harassment from the obligation to investigate a formal 
complaint of sexual harassment. Under these final regulations, a 
student may receive supportive measures irrespective of whether the 
student files a formal complaint, which results in an investigation. In 
this manner, these final regulations encourage students to report 
sexual harassment while allowing them to exercise some control over 
their report. If students would like supportive measures but do not 
wish to initiate an investigation under Sec.  106.45, they may make a 
report of sexual harassment. If students would like supportive measures 
and also would like the recipient to initiate an investigation under 
Sec.  106.45, they may file a formal complaint.
    The Department disagrees with the premise that separating a 
recipient's obligation to respond to each known report of sexual 
harassment from the recipient's obligation to investigate formal 
complaints of sexual harassment implies that all complainants suffer 
misconceptions; rather, the Department believes that distinguishing 
between a recipient's obligation to respond to a report, on the one 
hand, and a recipient's obligation to investigate a formal complaint on 
the other hands, provides clarity that benefits complainants, 
respondents, and recipients.
    Changes: None.
    Comments: One commenter suggested adding prevention and community 
educational programming as a possible option schools can utilize as one 
of the remedies provided following a formal complaint, as well as 
adding a requirement of educational outreach and prevention programming 
elsewhere within the final regulations.
    Discussion: The Department declines to list prevention and 
community educational programming as a possible option schools can 
utilize as a remedy after the conclusion of a grievance process, or to 
add a requirement of educational outreach and prevention programming 
elsewhere within the final regulations. The Department notes that 
nothing in the final regulations prevents recipients from undertaking 
such efforts. With respect to remedies, the final regulations require a 
recipient to provide remedies to a complainant where a respondent has 
been found responsible, and notes that such remedies may include the 
type of individualized services non-exhaustively listed in the Sec.  
106.30 definition of ``supportive measures.'' Whether or not the 
commenter's understanding of prevention and community education 
programming would be part of an appropriate remedy for a complainant, 
designed to restore or preserve the complainant's equal access to 
education, is a fact-specific matter to be considered by the recipient. 
With respect to a general requirement that recipients provide 
prevention and community education programming, the final regulations 
are focused on governing a recipient's response to sexual harassment 
incidents, leaving additional education and prevention efforts within a 
recipient's discretion.
    Changes: None.

Section 106.44 Recipient's Response to Sexual Harassment, Generally

Section 106.44(a) ``Actual Knowledge''

The Recipient's Self-Interest
    Comments: Many commenters expressed concerns about the actual 
knowledge requirement in Sec.  106.44(a), citing examples of instances 
in which schools sought to avoid addressing sexual harassment and 
assault, including high-profile sexual abuse scandals at universities 
where some university employees failed to report abuse that was 
reported to them. One commenter asserted that schools discourage sexual 
harassment and assault reports because the number of reported instances 
of sexual violence at an institution is publicly available (which harms 
or is perceived to harm the recipient's reputation), and alleged 
perpetrators are often prominent members of college communities, 
including star athletes, fraternity members, leading actors, and 
promising filmmakers. Commenters argued that, by using an actual 
knowledge requirement that fails to make employees mandatory reporters, 
schools will continue to ignore cases of sexual violence and will 
investigate fewer harassment complaints, resulting in less justice and 
fewer services for victims of sexual harassment.
    Discussion: The Department incorporates here its discussion under 
the ``Actual Knowledge'' subsection of the ``Section 106.30 
Definitions'' section of this preamble. As discussed in that section, 
and in the ``Adoption and Adaption of the Supreme Court's Framework to 
Address Sexual Harassment'' section of this preamble, we believe that 
the final regulations appropriately hold recipients liable for 
responding to every allegation of sexual harassment of which the 
recipient is aware, ensure that elementary and secondary school 
students may report to any school employee, and respect the autonomy of 
complainants at postsecondary institutions to choose whether, and when, 
the complainant desires to report sexual harassment. No recipient may 
yield to institutional self-interest by ignoring known allegations of 
sexual harassment without violating the recipient's obligation to 
promptly respond as set forth in Sec.  106.44(a).
    Changes: None.
Burdening the Complainant
    Comments: Numerous commenters argued that Sec.  106.44(a) will have 
the effect of shifting the burden of each report onto the complainant, 
who, in addition to dealing with the harm to their mental health from 
harassment or assault, must also bear the responsibility of locating 
and reporting to the correct administrator. Several commenters also 
voiced concern that Sec.  106.44(a) makes it more difficult for victims 
to know how or to whom to report harassment. Other commenters argued 
that complainants would be at a loss in instances where the school has 
not educated students and staff as to who the Title IX Coordinator is, 
where that person can be found, and what that person's responsibilities 
are. Several commenters asked what a complainant should do if a 
complainant has had a negative experience previously with the Title IX 
Coordinator, because the complainant would have no one else to whom to 
turn in order to report or file a formal complaint.
    Many commenters asserted that Sec.  106.44(a) would chill reports 
of sexual harassment and assault. Several commenters stated that 59.3 
percent of survivors in one study confided in informal support sources 
while across several studies, fewer than one-third of victims reported 
to formal sources.\827\ One commenter asserted that research has 
consistently reflected that survivors of campus sexual assault are more 
likely to disclose to someone with whom they have an existing 
relationship rather than a campus administrator. Commenters argued that 
fewer reports would reach the Title IX Coordinator, since the Title IX 
Coordinator lacks a preexisting personal relationship with survivors. 
Several commenters asserted that most school personnel do not know who 
the Title IX Coordinator is, and that these employees will therefore be 
unable to

[[Page 30191]]

help complainants find the Title IX Coordinator.
---------------------------------------------------------------------------

    \827\ Commenters cited: Charlotte Pierce-Baker, Surviving the 
silence: Black women's stories of rape (W.W. Norton 1998); Patricia 
A. Washington, Disclosure Patterns of Black Female Sexual Assault 
Survivors, 7 Violence Against Women 11 (2001).
---------------------------------------------------------------------------

    Discussion: The Department incorporates here its discussion under 
the ``Actual Knowledge'' subsection of the ``Section 106.30 
Definitions'' section of this preamble. As discussed in that section, 
and in the ``Adoption and Adaption of the Supreme Court's Framework to 
Address Sexual Harassment'' section of this preamble, we believe that 
the definition of actual knowledge in these final regulations has been 
revised to appropriately trigger a recipient's response obligations by 
notice to any elementary and secondary school employee, to any 
recipient's Title IX Coordinator, and to any official with authority to 
institute corrective measures on the recipient's behalf. The Department 
believes that respecting a complainant's autonomy is an important, 
desirable goal and that allowing complainants to discuss or disclose a 
sexual harassment experience with employees of postsecondary 
institutions without such confidential conversations automatically 
triggering the involvement of the recipient's Title IX office will give 
complainants in postsecondary institutions greater control and autonomy 
over the reporting process. The final regulations place the burden on 
recipients to ensure that all students and employees (as well as 
parents of elementary and secondary school students, and others) are 
notified of contact information for the Title IX Coordinator, so that 
when a complainant chooses to report, the complainant may easily locate 
the Title IX Coordinator's office location, telephone number, and email 
address, and report using any of those methods, or any other means 
resulting in the Title IX Coordinator receiving the person's verbal or 
written report. Nothing in the final regulations precludes a recipient, 
including a postsecondary institution, from instructing any or all of 
its employees to report sexual harassment disclosures and reports to 
the Title IX Coordinator, if the recipient believes that such a 
universal mandatory reporting system best serves the recipient's 
student and employee population. However, universal mandatory reporting 
systems have led to the unintended consequence of reducing options for 
complainants at postsecondary institutions to discuss sexual harassment 
experiences confidentially with trusted employees,\828\ and the final 
regulations therefore do not impose a universal mandatory reporting 
system in the postsecondary institution context.
---------------------------------------------------------------------------

    \828\ E.g., Carmel Deamicis, Which Matters More: Reporting 
Assault or Respecting a Victim's Wishes?, The Atlantic (May 20, 
2013); Allie Grasgreen, Mandatory Reporting Perils, Inside Higher Ed 
(Aug. 30, 2013).
---------------------------------------------------------------------------

    Changes: None.
Elementary and Secondary Schools
    Comments: Many commenters stated that the actual knowledge 
requirement is inappropriate for elementary and secondary school 
students because, from a young child's perspective, there is no 
distinction between a teacher, teacher's aide, bus driver, cafeteria 
worker, school resource officer, or maintenance staff person; to a 
young child, they are all grown-ups. Commenters asserted that this is 
particularly true for adults such as bus drivers and school resource 
officers, who can take corrective measures (kicking a student off the 
bus, for example) but not necessarily ``on behalf of'' the school. 
Several commenters stated that often a peer seeking help for a friend 
brings an issue of sexual harassment or assault to the attention of 
teachers or other school personnel, and commenters asserted that these 
allegations should be formally addressed by the school. Numerous 
commenters asserted that all school employees, not just teachers, 
should be responsible employees. By ensuring that a student can confide 
in counselors, aides, and coaches, commenters believed that students 
would be more likely to speak up and receive benefits to which they are 
entitled under Title IX. Commenters asserted that the proposed rules 
would conflict with other mandatory reporting requirements; for 
example, State laws requiring all school staff to notify law 
enforcement or child welfare agencies of child abuse. Another commenter 
stated that, by limiting the definition of complainant to only ``the 
victim,'' the proposed regulations would not allow for parents to file 
complaints on behalf of their children, and would not contemplate a 
witness to sexual harassment making a complaint. One commenter asserted 
that the actual knowledge requirement may be in tension with the Every 
Student Succeeds Act (ESSA); the commenter asserted that under ESSA, a 
school district with probable cause to believe a teacher engaged in 
sexual misconduct is prohibited from helping that teacher from getting 
a new job yet, the commenter argued, under the proposed rules the 
school district would not need to take any action to address the 
teacher's sexual misconduct absent a formal complaint.
    Discussion: The Department incorporates here its discussion under 
the ``Actual Knowledge'' subsection of the ``Section 106.30 
Definitions'' section of this preamble. As discussed in that section, 
and in the ``Adoption and Adaption of the Supreme Court's Framework to 
Address Sexual Harassment'' section of this preamble, we believe that 
the final regulations appropriately hold recipients liable for 
responding to every allegation of sexual harassment of which the 
recipient is aware, ensure that elementary and secondary school 
students may report to any school employee, and ensure that every 
recipient's educational community understands that any person may 
report sexual harassment (whether they are the victim, or a witness, or 
any other third party), triggering the recipient's obligation to 
promptly respond. As discussed in the ``Complainant'' subsection of the 
``Section 106.30 Definitions'' section of this preamble, we have 
revised the definition of ``complainant'' to remove the inference that 
the alleged victim themselves must be the same person who reports the 
sexual harassment. Upon notice that any person has allegedly been 
victimized by conduct that could constitute sexual harassment as 
defined in Sec.  106.30, a recipient must respond, including by 
promptly offering supporting measures to the alleged victim (i.e., the 
complainant).
    The final regulations do not contravene or alter any Federal, 
State, or local requirements regarding other mandatory reporting 
obligations that school employees have. Those obligations are distinct 
from the obligations in these final regulations.
    The Department acknowledges that the Elementary and Secondary 
Education Act of 1965 (ESEA), as amended by the Every Student Succeeds 
Act (ESSA), may require a recipient subject to ESEA to take certain 
steps with respect to an employee who has been accused of sexual 
misconduct when a recipient has probable cause to believe the employee 
engaged in sexual misconduct.\829\ We do not believe that the actual 
knowledge requirement in these final regulations is in tension with 
ESSA. The final regulations define actual knowledge to include notice 
of allegations of sexual harassment; a recipient cannot wait to respond 
to sexual harassment allegations until the recipient has probable cause 
that the sexual harassment occurred. Under revised Sec.  106.44(a) the 
recipient's prompt response to allegations of sexual

[[Page 30192]]

harassment must include offering the complainant supportive measures 
irrespective of whether the complainant files, or the Title IX 
Coordinator signs, a formal complaint. A recipient's obligations under 
ESSA may factor into a Title IX Coordinator's decision to sign a formal 
complaint initiating a grievance process against an employee-
respondent, even when the complainant (i.e., the alleged victim) does 
not wish to file a formal complaint, if, for example, the recipient 
wishes to investigate allegations in order to determine whether the 
recipient has probable cause of employee sexual misconduct that affect 
the recipient's ESSA obligations.
---------------------------------------------------------------------------

    \829\ E.g., https://www2.ed.gov/policy/elsec/leg/essa/section8546dearcolleagueletter.pdf.
---------------------------------------------------------------------------

    Changes: None.
Confusion for Employees
    Comments: Numerous commenters expressed concern that resident 
assistants or resident advisors, professors, and coaches may not know 
how to respond to complainants appropriately if the proposed rules 
allow postsecondary institution employees to have discretion over 
whether to report sexual harassment to the Title IX Coordinator. 
Several commenters asked the Department to specify that all schools 
should be responsible for educating all employees about a variety of 
procedures for handling sexual harassment and violence. Another 
commenter suggested that deans, directors, department heads, or any 
supervisory employees should be held individually liable for having 
actual knowledge of a report of sexual misconduct. One commenter 
asserted that a greater number of employees should be required to 
inform students of their right to file a formal complaint and to obtain 
supportive measures. One commenter stated that schools following the 
proposed rules might be sued for inadequate reporting policies, since a 
recipient's failure to tell its employees to respond appropriately to 
disclosures arguably amounts to an intentional decision not to respond 
to third-party discrimination.
    Discussion: The Department incorporates here its discussion under 
the ``Actual Knowledge'' subsection of the ``Section 106.30 
Definitions'' section of this preamble. As discussed in that section, 
and in the ``Adoption and Adaption of the Supreme Court's Framework to 
Address Sexual Harassment'' section of this preamble, the Department 
agrees with commenters' concerns that a wider pool of trusted adults in 
elementary and secondary schools should trigger a recipient's 
obligations, and, thus, the final regulations expand the definition of 
actual knowledge to include notice to any employee of an elementary and 
secondary school. However, for reasons discussed in the aforementioned 
sections of this preamble, the Department disagrees that the pool of 
postsecondary institution employees to whom notice charges the 
recipient with actual knowledge needs to be expanded beyond the Title 
IX Coordinator and officials with authority to institute corrective 
measures on the recipient's behalf.
    The Department disagrees that these final regulations increase 
liability for recipients with respect to inadequate reporting policies. 
These final regulations require recipients to respond to sexual 
harassment, or allegations of sexual harassment, when the recipient has 
actual knowledge, defined in part to include notice to an official with 
authority to institute corrective measures on behalf of the recipient. 
This requirement, and definition, are also used by Federal courts in 
applying the Gebser/Davis framework in private Title IX lawsuits.\830\ 
These final regulations go beyond the Gebser/Davis framework by 
requiring recipients to have in place clear, accessible reporting 
options, and requiring recipients to notify its educational community 
of those reporting options. The recipient's educational community must 
be notified about how to report sexual harassment in person, by mail, 
telephone, or email, and the final regulations specify that any person 
may report sexual harassment (whether the person reporting is the 
alleged victim themselves or any third party).
---------------------------------------------------------------------------

    \830\ E.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 
274, 290 (1998).
---------------------------------------------------------------------------

    Changes: None.
Intersection Between Actual Knowledge and Deliberate Indifference
    Comments: One commenter asked, if a recipient has actual knowledge 
that a student or employee has been subjected to unwelcome conduct on 
the basis of sex, but the recipient does not know whether the 
misconduct effectively denied the victim equal access to the 
recipient's education program or activity, whether the recipient must 
respond under Sec. Sec.  106.44(a) and 106.44(b)(2), to at least seek 
out the missing information and if not, whether the respondent has an 
obligation to inform the complainant of the nature of the missing and 
needed additional information regarding denial of equal access.
    Discussion: The Department acknowledges the commenter's question 
about how much detail is needed in order for the recipient to have 
actual knowledge triggering the recipient's obligation to provide a 
non-deliberately indifferent response, and whether a recipient with 
partial information about a sexual harassment allegation has a 
responsibility to notify the complainant that additional information is 
needed to further evaluate or respond to the allegation. In response, 
the Department notes that the definition of ``complainant'' under Sec.  
106.30 is an individual who is alleged to be the victim of conduct that 
could constitute sexual harassment; thus, the recipient need not have 
received notice of facts that definitively indicate whether a 
reasonable person would determine that the complainant's equal access 
has been effectively denied in order for the recipient to be required 
to respond promptly in a non-deliberately indifferent manner under 
Sec.  106.44(a). The definition of ``actual knowledge,'' in Sec.  
106.30, also reflects this concept as actual knowledge means notice of 
sexual harassment or allegations of sexual harassment.
    These final regulations, and Sec.  106.44(a) in particular, 
incorporate principles similar to the principles in the Department's 
2001 Guidance with respect to a recipient's response to a student's or 
parent's report of sexual harassment or sexual harassment allegations, 
or a recipient's response to direct observation by a responsible 
employee of conduct that could constitute sexual harassment. The 
Department's 2001 Guidance states:

    If a student or the parent of an elementary or secondary student 
provides information or complains about sexual harassment of the 
student, the school should initially discuss what actions the 
student or parent is seeking in response to the harassment. The 
school should explain the avenues for informal and formal action, 
including a description of the grievance procedure that is available 
for sexual harassment complaints and an explanation of how the 
procedure works. If a responsible school employee has directly 
observed sexual harassment of a student, the school should contact 
the student who was harassed (or the parent, depending upon the age 
of the student), explain that the school is responsible for taking 
steps to correct the harassment, and provide the same information 
described in the previous sentence.\831\
---------------------------------------------------------------------------

    \831\ 2001 Guidance at 15.

    Like the 2001 Guidance, these final regulations in Sec.  106.6(g) 
recognize that a parent or guardian may have the legal right to act on 
behalf of a ``complainant,'' ``respondent,'' ``party,'' or other 
individual. Section 106.44(a) also requires that the Title IX 
Coordinator promptly contact the

[[Page 30193]]

complainant to discuss the availability of supportive measures as 
defined in Sec.  106.30, consider the complainant's wishes with respect 
to supportive measures, inform the complainant of the availability of 
supportive measures with or without the filing of a formal complaint, 
and explain the process for filing a formal complaint. Thus, if a 
parent or guardian has a legal right to act on behalf of a student, the 
parent or guardian has the right to act on behalf of a Title IX 
complainant, including with respect to discussing supportive measures, 
or deciding to file a formal complaint.
    Changes: None.
Modeling Reporting on the Military System
    Comments: Commenters argued that the reporting system used in the 
U.S. military to address sexual assault should be modified for use in 
Title IX reporting systems in order to best serve civil rights 
purposes. Commenters described the military reporting system as 
providing sexual assault victims with a two-track reporting system, 
under which a victim can choose a ``restricted'' or ``unrestricted'' 
report. Commenters described the military system's ``restricted'' 
report option as allowing the victim to report confidentially, for the 
purpose of receiving services, and no investigation is commenced unless 
the victim chooses an ``unrestricted'' reporting path whereby the 
victim's identity is not confidential and charges are initiated against 
the alleged perpetrator. Commenters asserted that giving victims these 
options for reporting helps address the well-known and well-researched 
fact that sexual assault is underreported throughout society, including 
in military and school environments, and that many survivors of sexual 
violence exercise the ``victim's veto'' whereby no investigation takes 
place, and no services are given to a victim, because the victim 
chooses not to report their experience in any official manner. 
Commenters asserted that the withdrawn 2014 Q&A essentially created 
this two-track model,\832\ which best serves the needs of complainants, 
and argued that it best fits the purpose of civil rights protections, 
especially as compared to the traditional law enforcement model, under 
which a victim's only option is to report to police, and then police 
officers and prosecutors have sole discretion whether to investigate 
and whether to prosecute, and the victim has little or no control over 
those decisions, leading many victims to exercise the ``victim's veto'' 
and never report at all.\833\
---------------------------------------------------------------------------

    \832\ Commenters cited: 2014 Q&A at 21, 22, 24.
    \833\ Commenters cited, e.g.: Tamara F. Lawson, A Shift Towards 
Gender Equality in Prosecutions: Realizing Legitimate Enforcement of 
Crimes Committed Against Women in Municipal and International 
Criminal Law, 33 S. Ill. Univ. L. J. 181, 188-90 (2008) (in 
instances of sexual violence, police and prosecutors decide to 
advance very few cases through the criminal system); Kimberly A. 
Lonsway & Joanne Archambault, The ``Justice Gap'' for Sexual Assault 
Cases: Future Directions for Research and Reform, 18 Violence 
Against Women 145, 147 (2012) (finding that only five to 20 percent 
of victims will report a sexual assault to law enforcement); Douglas 
Evan Beloof, The Third Model of Criminal Process: The Victim 
Participation Model, 1999 Utah L. Rev. 289, 306 (1999) (arguing that 
the ``victim's veto'' occurs when the victim does not even report 
the wrongdoing); Kimberly A. Lonsway & Joanne Archambault, The 
``Justice Gap'' for Sexual Assault Cases: Future Directions for 
Research and Reform, 18 Violence Against Women 145, 159 (2012) 
(explaining that factors such as ``poor evidence gathering by police 
(especially victim interviews), intimidating defense tactics, 
incompetent prosecutors, and inappropriate decision making by 
jurors'' result in low sexual assault conviction rates). Commenters 
asserted this leads to more victims deciding not to report at all.
---------------------------------------------------------------------------

    Commenters described the approach of the withdrawn 2014 Q&A as 
giving survivors two choices of how to report, so survivors essentially 
would make the decision whether to initiate an investigation. 
Commenters asserted that the withdrawn 2014 Q&A ensured that if a 
survivor made an official report to a responsible employee or to the 
Title IX Coordinator the school must investigate unless the survivor 
explicitly requested that there be no investigation and the Title IX 
Coordinator granted that request after weighing multiple factors. On 
the other hand, commenters asserted, under that guidance a survivor 
could choose a ``confidential path'' and access services and 
accommodations for healing, without initiating an investigation unless 
or until the survivor changed their mind and officially reported to a 
responsible employee or to the Title IX Coordinator (which, commenters 
stated, is the equivalent in the military system as turning a 
restricted report into an unrestricted report, which is commonplace). 
Commenters urged the Department to reinstate the withdrawn 2014 Q&A, 
rather than keep the provisions in the proposed rules, regarding how 
complainants must report and what happens after a complainant reports.
    Discussion: The Department is aware of the two-track reporting 
system used in the U.S. military,\834\ and agrees that giving victims 
control over whether to report for purposes of receiving supportive 
services only, or also for the purpose of launching an official 
investigation into the alleged sexual assault, is beneficial to sexual 
assault victims. These final regulations share similarities with the 
military's two-track reporting system; the Department desires to 
respect the autonomy of each alleged victim to report for the purpose 
of receiving supportive measures, and to decide whether or not to also 
request an investigation into the allegations of sexual harassment. As 
commenters observed, the withdrawn 2014 Q&A's approach to what happens 
when an alleged victim reports sexual harassment also shares 
similarities with the two-track reporting system used in the military. 
These final regulations, too, are similar in some ways to the approach 
taken in the withdrawn 2014 Q&A. However, the Department believes that 
the additional precision, and obligatory nature, of these final 
regulations results in an approach superior to simply reinstating prior 
guidance.
---------------------------------------------------------------------------

    \834\ E.g., U.S. Dep't. of Defense, Sexual Assault Prevention 
and Response, ``Reporting Options,'' https://sapr.mil/reporting-options (``Sexual assault is the most underreported crime in our 
society and in the Military. While the Department of Defense [DoD] 
prefers that sexual assault incidents are reported to the command to 
activate both victims' services and law enforcement actions, it 
recognizes that some victims desire only healthcare and advocacy 
services and do not want command or law enforcement involvement. The 
Department believes its first priority is for victims to be treated 
with dignity and respect and to receive the medical treatment, 
mental health counseling, and the advocacy services that they 
deserve. Under DoD's Sexual Assault Prevention and Response (SAPR) 
Policy, Service members . . . have two reporting options--Restricted 
Reporting and Unrestricted Reporting. Under Unrestricted Reporting, 
both the command and law enforcement are notified. With Restricted 
(Confidential) Reporting, the adult sexual assault victim can access 
healthcare, advocacy services, and legal services without the 
notification to command or law enforcement.'').
---------------------------------------------------------------------------

    Under the final regulations, any person may report \835\ that any 
individual has allegedly been victimized by conduct that could 
constitute sexual harassment,\836\ and the recipient must respond 
promptly, including by offering supportive measures to the complainant 
(i.e., the alleged victim) and telling the complainant about the option 
of also filing a formal complaint that starts an investigation.\837\ 
The only persons who can initiate an investigation are the complainant 
themselves, or the Title IX Coordinator.\838\ Thus, if a complainant 
wants a report to remain confidential (in the sense of the 
complainant's identity

[[Page 30194]]

not being disclosed to the alleged perpetrator, and not launching an 
investigation), the complainant may receive supportive measures without 
an investigation being conducted--unless the Title IX Coordinator, 
after having considered the complainant's wishes, decides that it would 
be clearly unreasonable for the school not to investigate the 
complainant's allegations. On the other hand, if the complainant 
chooses to file a formal complaint, the school must initiate a 
grievance process and investigate the complainant's allegations.\839\ 
These final regulations preserve the benefits of allowing third party 
reporting while still giving the complainant as much control as 
reasonably possible over whether the school investigates, because under 
the final regulations a third party can report--and trigger the Title 
IX Coordinator's obligation to reach out to the complainant and offer 
supportive measures--but the third party cannot trigger an 
investigation.\840\ Further, the final regulations allow a complainant 
to initially report for the purpose of receiving supportive measures, 
and to later decide to file a formal complaint.
---------------------------------------------------------------------------

    \835\ Section 106.8(a) (``any person'' may report sexual 
harassment regardless of whether the person reporting is the alleged 
victim themselves, or any third party).
    \836\ Section 106.30 (defining ``complainant'' to mean an 
individual who is alleged to be the victim of conduct that could 
constitute sexual harassment).
    \837\ Section 106.44(a).
    \838\ Section 106.30 (defining ``formal complaint'' as a 
document filed by a complainant or signed by a Title IX 
Coordinator).
    \839\ Section 106.44(b)(1).
    \840\ Cf. Sec.  106.6(g) (If a parent or guardian has a legal 
right to act on a complainant's behalf, the parent or guardian may 
file a formal complaint on behalf of the complainant).
---------------------------------------------------------------------------

    Changes: None.

Section 106.44(a) ``Education Program or Activity''

General Support and Opposition for ``Education Program or Activity'' as 
a Jurisdictional Condition
    Comments: Several commenters expressed support for the NPRM's 
approach to the ``education program or activity'' condition, stating 
that it is consistent with the Title IX statute and case law. 
Commenters asserted that the Department has appropriately recognized 
that whether misconduct occurs on campus or off campus is not 
dispositive, and that courts have similarly applied a multi-factor test 
to deciding whether conduct occurred in an education program or 
activity. One commenter cited Federal cases suggesting that sexually 
hostile conduct itself, and not just its consequences, must occur on 
campus or at a school-sponsored or supervised event for Title IX to 
apply.\841\ One commenter expressed support for the NPRM's approach to 
education program or activity because it is consistent with the 
Department's past practice. The commenter cited Departmental 
determination letters involving institutions of higher education in 
2004 and 2008 that stated recipients do not have a Title IX duty to 
address alleged misconduct that occurs off campus and that does not 
involve the recipient's programs or activities. A few commenters 
expressed support for the NPRM's approach to education program or 
activity, asserting that it imposes reasonable limits on recipient 
responsibility. One commenter asserted that schools are not the sex 
police and that expecting schools to have jurisdiction over activity in 
off-campus apartments, at a parent's house, a local bar, or nearby 
hotel, is unrealistic. One commenter expressed support for the NPRM's 
approach to including ``education program or activity'' as a condition 
triggering a recipient's response obligations, but urged the Department 
to go further and explicitly exclude from Title IX allegations made by 
or against someone who has no relationship with the recipient, and 
allegations involving students but occurring in a time or place totally 
unrelated to school activities such as during summer vacation hundreds 
of miles away from campus.
---------------------------------------------------------------------------

    \841\ Commenters cited: Doe v. Brown Univ., 896 F.3d 127, 132 
fn. 6 (1st Cir. 2018); Yeasin v. Durham, 719 F. App'x 844 (10th Cir. 
2018); Roe v. St. Louis Univ., 746 F.3d 874 (8th Cir. 2014); Rost ex 
rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1121 
fn.1 (10th Cir. 2008); Ostrander v. Duggan, 341 F.3d 745 (8th Cir. 
2003); Farmer v. Kan. State Univ., No. 16-CV-2256, 2017 WL 980460, 
at *8 (D. Kan. Mar. 14, 2017), aff'd by Farmer v. Kan. State Univ., 
918 F.3d 1094 (10th Cir. 2019); Stephanie Ebert, The Boston Globe 
(Dec. 8, 2018) (Harvard student suing Harvard University in Federal 
court for investigating the student for rape allegation by non-
student far from campus).
---------------------------------------------------------------------------

    Other commenters asserted that the NPRM's approach to education 
program or activity was unclear. Commenters stated that the NPRM's 
preamble mentioned several factors, such as recipient ownership of the 
premises, endorsement, oversight, supervision, and disciplinary power, 
but argued that this multi-factor test may be confusing and make it 
difficult for students and schools to understand their Title IX rights 
and obligations. One commenter argued that the practical application of 
the Department's approach to misconduct that has both on-campus and 
off-campus elements would be challenging; for example, the commenter 
stated, if a sexual misconduct complaint involved a series of actions 
occurring on campus and off campus then the recipient may have to sift 
through evidence to identify and ignore events not ``in'' a program or 
activity.
    Many commenters expressed concern that the NPRM's approach to the 
education program or activity condition would increase danger to 
students and others. Commenters cited studies and scholarly articles 
suggesting that sexual assault can cause lasting psychological damage 
to victims, including increasing suicide rates and substantially 
impacting victims' academic career, retention, graduation, and grade 
point average, regardless of whether the sexual assault occurred off 
campus or on campus.\842\ Commenters argued that not addressing off-
campus misconduct may chill reporting, make it harder for the community 
to know the nature of threats facing them, and even discourage young 
women from attending college. Commenters expressed concern that the 
NPRM would cause victims to leave school, asserting that over one-third 
of sexual harassment or assault victims drop out of school.\843\ 
Commenters argued that because a significant number of sexual assaults 
occur off campus,\844\ not requiring schools to respond to those 
assaults will only lead to more college students dropping out. Several 
commenters emphasized that the reality is that off-campus life is often 
an essential part of the educational experience, such as off-campus 
travel for conferences and networking events, and that off-campus 
living for students is quite common.\845\ Commenters argued that the 
Department should not give a free pass to perpetrators whose abusive 
conduct occurs off campus. Commenters expressed concern that repeat 
offenders could systematically target victims, knowing they will get 
away with it.
---------------------------------------------------------------------------

    \842\ See data cited by commenters in the ``Impact Data'' 
subsection of the ``General Support and Opposition'' section of this 
preamble.
    \843\ Commenters cited: Cecilia Mengo & Beverly M. Black, 
Violence Victimization on a College Campus: Impact on GPA and School 
Dropout, 18 Journal of Coll. Student Retention: Research, Theory & 
Practice 2, 234, 244 (2015).
    \844\ Commenters cited: EduRisk by United Educators, Confronting 
Campus Sexual Assault: An Examination of Higher Education Claims at 
6 (2015) (``In 41 percent of claims, the victim and perpetrator 
attended the same off-campus party before going back to campus, 
where the sexual assault occurred. These off-campus parties included 
institution-recognized sorority and fraternity houses, athletic team 
houses, and students' off-campus residences.''); U.S. Dep't. of 
Justice, Bureau of Justice Statistics, Rape and Sexual Assault 
Victimization Among College-Age Females, 1995-2013 at 6 (2014) (95 
percent of sexual assaults of female students ages 18-24 occur 
outside of school).
    \845\ Commenters cited: American Association of University 
Women, Crossing the Line: Sexual Harassment at School (2011); 
Rochelle Sharp, How Much Does Living Off Campus Cost? Who Knows?, 
The New York Times (Aug. 5, 2016) (87 percent of college students 
and even more elementary and secondary school students reside off 
campus).
---------------------------------------------------------------------------

    Commenters raised concerns about off-campus Greek life as hotbeds 
of sexual misconduct not covered by the NPRM, arguing that students are 
more

[[Page 30195]]

likely to experience sexual assault if in a fraternity or sorority, and 
that men in fraternities are more likely than other male students to be 
perpetrators of sexual misconduct.\846\ Commenters expressed concern 
that recipients might interpret the NPRM as preventing them from 
addressing sexual misconduct in fraternities, sororities, and social 
clubs the recipient does not recognize,\847\ or perversely encourage 
recipients not to recognize Greek letter associations, but that the 
Department should encourage such relationships because they often 
entail mandatory insurance, risk management standards, and training 
requirements to reduce incidents of sexual misconduct.
---------------------------------------------------------------------------

    \846\ Commenters cited: Jacqueline Chevalier Minow & Christopher 
J. Einolf, Sorority Participation and Sexual Assault Risk, 15 
Violence Against Women 7 (2009); Jennifer Fleck, Sexual assault more 
prevalent in fraternities and sororities, study finds, UWire.com 
(Oct. 16, 2014); Claude A. Mellins et al., Sexual Assault Incidents 
Among College Undergraduates: Prevalence and Factors Associated with 
Risk, 13 Plos One 1 (2017).
    \847\ Commenters cited: Jacquelyn D. Weirsma-Mosely et al., An 
Empirical Investigation of Campus Demographics and Reported Rapes, 
65 Journal of Am. Coll. Health 4 (2017); Cortney A. Franklin, 
Sorority Affiliation and Sexual Assault Victimization, 22 Violence 
Against Women 8 (2016).
---------------------------------------------------------------------------

    Commenters asserted that the NPRM especially increases risks to 
community college and vocational school students because such students 
generally live off campus, to students of color and other already 
marginalized students who may not be able to afford to live on campus, 
to elementary and secondary school students with disabilities who may 
be separated from their peers and removed to off-site services, and to 
LGBTQ students because it may be harder for them to find adequate 
outside support services. One commenter argued that the Department's 
exclusion of off-campus assaults will hinder Federal background check 
processes, potentially harming our national security and exposing co-
workers to danger. Another commenter stated that the corporate world 
does not exclude out-of-office misconduct from company codes of 
conduct, and so the Department should not set young people up to fail 
by not showing them early in life that misconduct is unacceptable and 
will lead to consequences.
    Commenters argued that Federal courts have been supportive of 
universities applying student codes of conduct to misconduct occurring 
off campus and outside the school's programs or activities.\848\ 
Commenters argued that courts have recognized that an assailant's mere 
presence on campus creates a hostile environment for sexual harassment 
victims, exposing recipients to Title IX liability under a deliberate 
indifference standard if the recipient fails to redress the hostile 
environment even where the underlying sexual harassment or assault 
occurred off campus and outside the recipient's education program or 
activity. Commenters asserted that the proposed rules would leave 
recipients vulnerable to private Title IX lawsuits because recipients 
would not need to address the continuing effects of sexual assault that 
occurred outside the recipient's program or activity under the 
Department's regulations yet a Federal court may hold otherwise.\849\ 
Commenters argued that Federal courts have determined that regardless 
of where a sexual assault occurred, where both parties are in the same 
education program or activity a recipient should be held liable under a 
deliberate indifference standard based on the recipient's response to 
the alleged incident, even if the incident happened under circumstances 
outside the recipient's control.\850\ Commenters argued that courts 
have allowed Title IX private causes of action for sexual misconduct to 
proceed even where some or all of alleged misconduct occurred in a 
location outside the recipient's control so long as there was ``some 
nexus between the out-of-school conduct and the school'' \851\ and that 
the proposed rules should take the same approach. Commenters argued 
that the Supreme Court's Gebser decision involved sexual activity 
between a teacher and student where the sexual activity did not take 
place on school grounds, yet the Supreme Court did not consider that 
sexual harassment to be outside the purview of Title IX.\852\
---------------------------------------------------------------------------

    \848\ Commenters cited: Slaughter v. Brigham Young Univ., 514 
F.2d 622 (10th Cir. 1975); Due v. Fla. Agric. & Mech. Univ. (N.D. 
Fla. 1963); Hill v. Bd. of Trustees of Mich. State Univ., 182 F. 
Supp. 2d 621 (W.D. Mich. 2001); Gomes v. Univ. of Me. Sys., 304 
F.Supp. 2d 117 (D. Me. 2004).
    \849\ Commenters cited: Lapka v. Chertoff, 517 F.3d 974 (7th 
Cir. 2008); 477 F.3d 1282, 1298 (11th Cir. 2007); Doe v. East Haven 
Bd. of Educ., 200 F. App'x 46 (2d Cir. 2006); Butters v. James 
Madison Univ., 145 F. Supp. 3d 610 (W.D. Va. 2015), dismissed on 
summary judgment in Butters v. James Madison Univ., 208 F. Supp. 3d 
745 (W.D. Va. 2016); Williams v. Bd. of Regents of Univ. Sys. of 
Ga., Doe ex rel. Doe v. Derby Bd. of Educ., 451 F. Supp. 2d 438 (D. 
Conn. 2006); Crandell v. New York Coll. of Osteopathic Med., 87 F. 
Supp. 2d 304, 316 (S.D.N.Y. 2000); Kinsman v. Fla. State Univ. Bd. 
of Trustees, No. 4:15-CV-235, 2015 WL 11110848 (N.D. Fla. Aug. 12, 
2015); McGinnis v. Muncie Cmty. Sch. Corp., 1:11-CV-1125, 2013 WL 
2456067 (S.D. Ind. June 5, 2013); C.S. v. S. Columbia Sch. Dist., 
No. 4:1-CV-1013, WL 2371413 (M.D. Pa. May 21, 2013); Kelly v. Yale 
Univ., No. 3:01-CV-1591, 2003 WL 1563424 (D. Conn. Mar. 26, 2003).
    \850\ Commenters cited: Spencer v. Univ. of N.M. Bd. of Regents, 
No. 15-CV-141, 2016 WL 10592223 (D. N.M. Jan. 11, 2016).
    \851\ Commenters cited: Weckhorst v. Kan. State Univ., 241 F. 
Supp. 3d 1154, 1168-69 (D. Kan. 2017); Rost ex rel. KC v. Steamboat 
Springs RE -2 School Dist., 511 F.3d 1114, 1121 fn.1 (10th Cir. 
2008).
    \852\ Commenters cited: Gebser v. Lago Vista Indep. Sch. Dist., 
524 U.S. 274, 278 (1998).
---------------------------------------------------------------------------

    Commenters argued that the 2001 Guidance and 2017 Q&A require 
recipients to address sexual harassment that occurs off campus where 
the underlying sexual harassment or assault causes the complainant to 
experience a hostile environment on campus, and urged the Department to 
ensure that the final regulations impose similar obligations for 
recipients to address the continuing effects of sexual harassment that 
occurs off campus.
    Another commenter contended that the NPRM conflicts with recent 
Department actions under the Trump Administration, such as cutting off 
partial funding to the Chicago Public School system for failing to 
address two reports of off-campus sexual assault.
    Discussion: The Department appreciates the general support for our 
approach to including the concept of a recipient's ``education program 
or activity'' in these final regulations. The ``education program or 
activity'' language in the Title IX statute \853\ provides context for 
the scope of Title IX's non-discrimination mandate, which ensures that 
Federal funds are not used to support discriminatory practices in 
education programs or activities.\854\
---------------------------------------------------------------------------

    \853\ 20 U.S.C. 1681(a).
    \854\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979) (the 
objectives of Title IX are two-fold: First, to ``avoid the use of 
Federal resources to support discriminatory practices'' and second, 
to ``provide individual citizens effective protection against those 
practices'').
---------------------------------------------------------------------------

    In Davis, the Supreme Court framed the question in that case as 
whether a recipient of Federal financial assistance may be liable for 
damages under Title IX, for failure to respond to peer-on-peer sexual 
harassment in the recipient's program or activity.\855\ The Supreme 
Court in Davis continued to reference the statutory ``program or 
activity'' language throughout its decision \856\ and refuted 
dissenting justices' arguments that the majority's approach permitted 
too much liability against recipients in part by reasoning: ``Moreover, 
because the harassment must occur `under' `the operations of' a funding 
recipient, see 20 U.S.C. 1681(a); Sec.  1687 (defining `program or 
activity'), the harassment must take place in a context subject to

[[Page 30196]]

the school district's control. . . . These factors combine to limit a 
recipient's damages liability to circumstances wherein the recipient 
exercises substantial control over both the harasser and the context in 
which the known harassment occurs.'' \857\
---------------------------------------------------------------------------

    \855\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 639 
(1999).
    \856\ Id. at 652 (``Moreover, the provision that the 
discrimination occur `under any education program or activity' 
suggests that the behavior be serious enough to have the systemic 
effect of denying the victim equal access to an educational program 
or activity'').
    \857\ Id. at 645.
---------------------------------------------------------------------------

    The Department's regulatory authority must emanate from Federal 
law.\858\ Congress, in enacting Title IX, has conferred on the 
Department the authority to regulate under Federal law. The appropriate 
place to start is the statutory text of Title IX, for ``[u]nless 
otherwise defined, statutory terms are generally interpreted in 
accordance with their ordinary meaning.'' \859\ Title IX's text, 20 
U.S.C. 1681(a) (emphasis added), states: ``No person in the United 
States shall, on the basis of sex, be excluded from participation in, 
be denied the benefits of, or be subjected to discrimination under any 
education program or activity receiving Federal financial 
assistance[.]'' The Department's authority to regulate sexual 
harassment as a form of sex discrimination pursuant to Title IX is 
clear; the Supreme Court has held that sexual harassment is a form of 
sex discrimination, and has confirmed that Congress has directed the 
Department, as a Federal agency that disburses funding to education 
programs or activities, to establish requirements to effectuate Title 
IX's non-discrimination mandate.\860\ The Department's authority to 
regulate sexual harassment depends on whether sexual harassment occurs 
in ``any education program or activity'' because the Department's 
regulatory authority is co-extensive with the scope of the Title IX 
statute. Title IX does not authorize the Department to regulate sex 
discrimination occurring anywhere but only to regulate sex 
discrimination in education programs or activities.\861\ Congress, in 
the Title IX statute, provided definitions of ``program or activity'' 
that are reflected in the Department's current Title IX 
regulations.\862\
---------------------------------------------------------------------------

    \858\ See Stark v. Wickard, 321 U.S. 288, 309 (1944).
    \859\ BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006) (citing 
Perrin v. United States, 444 U.S. 37, 42 (1979)).
    \860\ Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 280-81 
(1998) (quoting 20 U.S.C. 1682).
    \861\ See the ``Section 106.44(a) `against a person in the U.S.' 
'' subsection of the ``Section 106.44 Recipient's Response to Sexual 
Harassment, Generally'' section this preamble, for discussion of the 
other jurisdictional limitation on the scope of Title IX--that the 
statute protects any person ``in the United States.''
    \862\ 20 U.S.C. 1687; 34 CFR 106.2(h).
---------------------------------------------------------------------------

    The Supreme Court has applied the ``program or activity'' language 
in the Title IX statute in the context of judicial enforcement of Title 
IX. The Department does not believe that the Supreme Court's 
application of ``program or activity'' in the context of sexual 
harassment as a form of sex discrimination is an unreasonable 
interpretation of the Title IX statute, because the Supreme Court 
applied the language of the statute including the definitions of 
``program or activity'' provided in the statute. The Department thus 
concludes that we should align these final regulations with the Supreme 
Court's approach to ``education program or activity'' in the context of 
Title IX sexual harassment.\863\ By contrast, as explained in the 
``Adoption and Adaption of the Supreme Court's Framework to Address 
Sexual Harassment,'' the three parts of the Gebser/Davis framework 
(i.e., definition of sexual harassment, actual knowledge, deliberate 
indifference) do not appear in the text of the Title IX statute, and 
the Department believes that it may promulgate regulatory requirements 
that differ in significant ways from the Gebser/Davis framework, to 
best effectuate the purposes of Title IX's non-discrimination mandate 
in the context of administrative enforcement, and we have done so in 
these final regulations.
---------------------------------------------------------------------------

    \863\ The Supreme Court's analysis of the ``program or 
activity'' statutory language was in the context of judicial 
enforcement, but the Department does not believe a different 
analysis is necessary or advisable for administrative enforcement, 
where the Department--like the Supreme Court--is constrained to 
interpret and apply the text of the statute including the 
definitions of ``program or activity'' provided in the statute. 
Consistent with this position, and as discussed throughout this 
preamble, we have revised Sec.  106.44(a) to clarify that 
``education program or activity'' for purposes of these sexual 
harassment regulations includes circumstances wherein the recipient 
exercises substantial control over both the harasser and the context 
of the harassment--the same conclusion reached by the Davis Court 
when it applied the ``program or activity'' statutory language to 
the context of a school's response to sexual harassment. Davis, 526 
U.S. at 645.
---------------------------------------------------------------------------

    The Department acknowledges the concerns of many commenters who 
argued that with respect to sexual harassment, whether the alleged 
conduct occurred in the recipient's education program or activity might 
have been understood too narrowly under the NPRM (e.g., to exclude all 
off-campus conduct) or at least created potential confusion for 
complainants and recipients. In response to commenters' concerns, the 
Department believes that providing additional clarification as to the 
scope of a recipient's education program or activity for purposes of 
Title IX sexual harassment is necessary, and, therefore, adds to Sec.  
106.44(a) in the final regulations language similar to language used by 
the Court in Davis: For purposes of Sec.  106.30, Sec.  106.44, and 
Sec.  106.45, the phrase ``education program or activity'' includes 
``locations, events, or circumstances over which the recipient 
exercised substantial control over both the respondent and the context 
in which the harassment occurs'' and also includes ``any building owned 
or controlled by a student organization that is officially recognized 
by a postsecondary institution.'' The Title IX statute \864\ and 
existing Title IX regulations,\865\ already contain detailed 
definitions of ``program or activity'' that, among other aspects of 
such definitions, include ``all of the operations of'' a postsecondary 
institution or local education agency. The Department will interpret 
``program or activity'' in these final regulations in accordance with 
the Title IX statutory (20 U.S.C. 1687) and regulatory definitions (34 
CFR 106.2(h)), guided by the Supreme Court's language applied 
specifically for use in sexual harassment situations under Title IX 
regarding circumstances over which a recipient has control and (for 
postsecondary institutions) buildings owned or controlled by student 
organizations if the student organization is officially recognized by 
the postsecondary institution.\866\
---------------------------------------------------------------------------

    \864\ 20 U.S.C. 1687.
    \865\ 34 CFR 106.2(h); 34 CFR 106.2(i) (defining ``recipient''); 
34 CFR 106.31(a) (referring to ``any academic, extracurricular, 
research, occupational training, or other education program or 
activity operated by a recipient which receives Federal financial 
assistance'').
    \866\ Section 106.44(a) (adding ``For purposes of this section, 
Sec.  106.30, and Sec.  106.45, `education program or activity' 
includes locations, events, or circumstances over which the 
recipient exercised substantial control over both the respondent and 
the context in which the harassment occurs, and also includes any 
building owned or controlled by a student organization that is 
officially recognized by a postsecondary institution.'').
---------------------------------------------------------------------------

    While ``all of the operations of'' a recipient (per existing 
statutory and regulatory provisions), and the additional ``substantial 
control'' language in these final regulations, clearly include all 
incidents of sexual harassment occurring on a recipient's campus, the 
statutory and regulatory definitions of program or activity along with 
the revised language in Sec.  106.44(a) clarify that a recipient's 
Title IX obligations extend to sexual harassment incidents that occur 
off campus if any of three conditions are met: If the off-campus 
incident occurs as part of the recipient's ``operations'' pursuant to 
20 U.S.C. 1687 and 34 CFR 106.2(h); if the recipient exercised 
substantial control over the respondent and the context of alleged 
sexual harassment that occurred off campus pursuant to Sec.  106.44(a); 
or if a sexual harassment incident occurs at

[[Page 30197]]

an off-campus building owned or controlled by a student organization 
officially recognized by a postsecondary institution pursuant to Sec.  
106.44(a).
    The NPRM cited to Federal court opinions that have considered 
whether sexual harassment occurred in a recipient's education program 
or activity by examining factors such as whether the recipient funded, 
promoted, or sponsored the event or circumstance where the alleged 
harassment occurred. While it may be helpful or useful for recipients 
to consider factors applied by Federal courts to determine the scope of 
a recipient's program or activity, no single factor is determinative to 
conclude whether a recipient exercised substantial control over the 
respondent and the context in which the harassment occurred, or whether 
an incident occurred as part of ``all of the operations of'' a school, 
college, or university.
    The revised language in Sec.  106.44(a) also specifically addresses 
commenters' concerns about recognized student organizations that own 
and control buildings such as some fraternities and sororities 
operating from off-campus locations where sexual harassment and assault 
may occur with frequency. The revised language further addresses 
commenters' questions regarding whether postsecondary institutions' 
Title IX obligations are triggered when sexual harassment occurs in an 
off-campus location not owned by the postsecondary institution but that 
is in use by a student organization that the institution chooses to 
officially recognize such as a fraternity or sorority. The revisions to 
Sec.  106.44(a) clarify that where a postsecondary institution has 
officially recognized a student organization, the recipient's Title IX 
obligations apply to sexual harassment that occurs in buildings owned 
or controlled by such a student organization, irrespective of whether 
the building is on campus or off campus, and irrespective of whether 
the recipient exercised substantial control over the respondent and the 
context of the harassment outside the fact of officially recognizing 
the fraternity or sorority that owns or controls the building. The 
Department makes this revision to promulgate a bright line rule that 
decisively responds to commenters and provides clarity with respect to 
recipient-recognized student organizations that own or control off-
campus buildings. Official recognition of a student organization, 
alone, does not conclusively determine whether all the events and 
actions of the students in the organization become a part of a 
recipient's education program or activity; however, the Department 
believes that a reasonable, bright line rule is that official 
recognition of a student organization brings buildings owned or 
controlled by the organization under the auspices of the postsecondary 
institution recipient and thus within the scope of the recipient's 
Title IX obligations. As part of the process for official recognition, 
a postsecondary institution may require a student organization that 
owns or controls a building to agree to abide by the recipient's Title 
IX policy and procedures under these final regulations, including as to 
any misconduct that occurs in the building owned or controlled by a 
student organization. Accordingly, postsecondary institutions may not 
ignore sexual harassment that occurs in buildings owned or controlled 
by recognized student organizations. The Department acknowledges that 
even though postsecondary institutions may not always control what 
occurs in an off campus building owned or controlled by a recognized 
student organization, such student organizations and the events in 
their buildings often become an integral part of campus life. The 
Department also acknowledges that a postsecondary institution may be 
limited in its ability to gather evidence during an investigation if 
the incident occurs off campus on private property that a student 
organization (but not the institution) owns or controls. A 
postsecondary institution, however, may still investigate a formal 
complaint arising from sexual harassment occurring in a building owned 
or controlled by a recognized student organization (whether the 
building is on campus or off campus), for instance by interviewing 
students who were allegedly involved in the incident and who are a part 
of the officially recognized student organization. Thus, under the 
final regulations (e.g., Sec.  106.44(b)(1)) a postsecondary 
institution must investigate formal complaints alleging sexual 
harassment that occurred in a fraternity or sorority building (located 
on campus, or off campus) owned by the fraternity or sorority, if the 
postsecondary institution has officially recognized that Greek life 
organization. Further, under Sec.  106.44(a) the recipient must offer 
supportive measures to a complainant alleged to be the victim of sexual 
harassment occurring at a building owned or controlled by an officially 
recognized student organization. Where a postsecondary institution has 
officially recognized a student organization, and sexual harassment 
occurs in an off campus location not owned or controlled by the student 
organization yet involving members of the officially recognized student 
organization, the recipient's Title IX obligations will depend on 
whether the recipient exercised substantial control over the respondent 
and the context of the harassment, or whether the circumstances may 
otherwise be determined to have been part of the ``operations of'' the 
recipient.
    We note that the revision in Sec.  106.44(a) referencing a 
``building owned or controlled by a student organization that is 
officially recognized by a postsecondary institution'' is not the same 
as, and should not be confused with, the Clery Act's use of the term 
``noncampus building or property,'' even though that phrase is defined 
under the Clery Act in part by reference to student organizations 
officially recognized by an institution.\867\ For example, ``education 
program or activity'' in these final regulations includes buildings 
within the confines of the campus on land owned by the institution that 
the institution may rent to a recognized student organization.\868\ As 
discussed in the ``Clery Act'' subsection of the ``Miscellaneous'' 
section of this preamble, the Clery Act and Title IX serve distinct 
purposes, and Clery Act geography is not co-extensive with the scope of 
a recipient's education program or activity under Title IX.
---------------------------------------------------------------------------

    \867\ See 20 U.S.C. 1092(f)(6)(iii) (defining ``noncampus 
building or property'' in part as ``any building or property owned 
or controlled by a student organization recognized by the 
institution''). The Clery Act regulations, 34 CFR 668.46(a), include 
``noncampus building or property'' as part of an institution's Clery 
geography and define ``noncampus building or property'' as ``[a]ny 
building or property owned or controlled by a student organization 
that is officially recognized by the institution; or [a]ny building 
or property owned or controlled by an institution that is used in 
direct support of, or in relation to, the institution's educational 
purposes, is frequently used by students, and is not within the same 
reasonably contiguous geographic area of the institution.'').
    \868\ But see U.S. Dep't. of Education, Office of Postsecondary 
Education, The Handbook for Campus Safety and Security Reporting, 2-
18 to 2-19 (2016), https://www2.ed.gov/admins/lead/safety/handbook.pdf.
---------------------------------------------------------------------------

    With respect to commenters who suggested that the final regulations 
should not apply to sexual misconduct by or against an individual with 
no relationship to the recipient, the Department believes that the 
framework adopted in the final regulations appropriately effectuates 
the broad non-discrimination mandate of Title IX (which protects any 
``person'' from discrimination in an education program or activity) 
while also ensuring that

[[Page 30198]]

recipients are responsible for addressing sexual harassment occurring 
in an educational institution's ``operations,'' or when the recipient 
has control over the situation, or where a postsecondary institution 
has recognized a student organization thereby lending the recipient's 
implicit extension of responsibility over circumstances involving 
sexual harassment that occurs in buildings owned or controlled by such 
a student organization. Like the ``no person'' language in the Title IX 
statute, the final regulations place no restriction on the identity of 
a complainant (Sec.  106.30 defines complainant to mean ``an individual 
who is alleged to be the victim of conduct that could constitute sexual 
harassment''), obligating a recipient to respond to such a complainant 
regardless of the complainant's relationship to the recipient. 
Similarly, reflecting that the Title IX statute does not limit 
commission of prohibited discrimination only to certain individuals 
affiliated with a recipient, the final regulations define a respondent 
to mean ``an individual who has been reported to be the perpetrator of 
conduct that could constitute sexual harassment'' without restricting a 
respondent to being a person enrolled or employed by the recipient or 
who has any other affiliation or connection with the recipient.
    However, the final regulations do require that in order to file a 
formal complaint, the complainant must be ``participating in or 
attempting to participate in'' the recipient's education program or 
activity at the time the formal complaint is filed.\869\ This prevents 
recipients from being legally obligated to investigate allegations made 
by complainants who have no relationship with the recipient, yet still 
protects those complainants by requiring the recipient to respond 
promptly in a non-deliberately indifferent manner. For similar reasons, 
the final regulations provide in Sec.  106.45(b)(3)(ii) that a 
recipient may in its discretion dismiss a formal complaint if the 
respondent is no longer enrolled or employed by the recipient, 
recognizing that a recipient's general obligation to provide a 
complainant with a prompt, non-deliberately indifferent response might 
not include completing a grievance process in a situation where the 
recipient lacks any disciplinary authority over the respondent.
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    \869\ A complainant may be ``attempting to participate'' in the 
recipient's education program or activity, for example, where the 
complainant has applied for admission, or where the complainant has 
withdrawn but indicates a desire to re-enroll if the recipient 
appropriately responds to sexual harassment allegations.
---------------------------------------------------------------------------

    In response to commenters' concerns that practical application of 
the ``education program or activity'' condition might be challenging in 
situations that, for example, involve some conduct occurring in the 
recipient's education program or activity and some conduct occurring 
outside the recipient's education program or activity, the Department 
reiterates that ``off campus'' does not automatically mean that the 
incident occurred outside the recipient's education program or 
activity. The Department agrees that recipients are obliged to think 
through the scope of each recipient's own education program or activity 
in light of the statutory and regulatory definitions of ``program or 
activity'' (20 U.S.C. 1687 and 34 CFR 106.2(h)) and the statement in 
Sec.  106.44(a) that ``education program or activity'' includes 
locations, events, or circumstances over which the recipient exercised 
substantial control over both the respondent and the context in which 
the harassment occurs as well as buildings owned or controlled by 
student organizations officially recognized by a postsecondary 
institution.
    To ensure that recipients adequately consider the resulting 
coverage of Title IX to each recipient's particular circumstances, the 
final regulations require that every Title IX Coordinator, 
investigator, decision-maker, and person who facilitates an informal 
resolution process, must be trained on (among other things) ``the scope 
of the recipient's education program or activity.'' \870\ We have also 
revised Sec.  106.45(b)(10)(i)(D) so that materials used to train Title 
IX personnel must be posted on a recipient's website. These revisions 
ensure that a recipient's students and employees, and the public, 
understand the scope of the recipient's education program or activity 
for purposes of Title IX. Under Title IX, recipients must operate 
education programs or activities free from sex discrimination, and the 
Department will enforce these final regulations vigorously with respect 
to a recipient's obligation to respond to sexual harassment that occurs 
in the recipient's education program or activity.
---------------------------------------------------------------------------

    \870\ Section 106.45(b)(1)(iii).
---------------------------------------------------------------------------

    In situations involving some allegations of conduct that occurred 
in an education program or activity, and some allegations of conduct 
that did not, the recipient must investigate the allegations of conduct 
that occurred in the recipient's education program or activity, and 
nothing in the final regulations precludes the recipient from choosing 
to also address allegations of conduct outside the recipient's 
education program or activity.\871\ For example, if a student is 
sexually assaulted outside of an education program or activity but 
subsequently suffers Title IX sexual harassment in an education program 
or activity, then these final regulations apply to the latter act of 
sexual harassment, and the recipient may choose to address the prior 
assault through its own code of conduct. Nothing in the final 
regulations prohibits a recipient from resolving allegations of conduct 
outside the recipient's education program or activity by applying the 
same grievance process required under Sec.  106.45 for formal 
complaints of Title IX sexual harassment, even though such a process 
would not be required under Title IX or these final regulations. Thus, 
a recipient is not required by these final regulations to inefficiently 
extricate conduct occurring outside an education program or activity 
from conduct occurring in an education program or activity arising from 
the same facts or circumstances in order to meet the recipient's 
obligations with respect to the latter.
---------------------------------------------------------------------------

    \871\ Section 106.45(b)(3) (revised in the final regulations to 
expressly state that although a recipient must dismiss allegations 
about conduct that did not occur in the recipient's education 
program or activity, such a mandatory dismissal is ``for purposes of 
sexual harassment under title IX or this part; such a dismissal does 
not preclude action under another provision of the recipient's code 
of conduct.'').
---------------------------------------------------------------------------

    The Department appreciates the various concerns raised by many 
commenters regarding the extent to which students reside or spend time 
off campus and how the application of the ``education program or 
activity'' condition may affect students who experience sexual 
harassment and sexual assault in off-campus situations, including 
community college students, vocational school students, and students 
who belong to marginalized demographic groups. The Department 
reiterates that the final regulations do not impose a geographic test 
or draw a distinction between on-campus misconduct and off-campus 
misconduct. As discussed above, whether conduct occurs in a recipient's 
education program or activity does not necessarily depend on the 
geographic location of the incident. Instead, ``education program or 
activity'' relies on statutory and regulatory definitions of ``program 
or activity,'' \872\ on the statement adapted from the Supreme Court's 
language in Davis added to

[[Page 30199]]

Sec.  106.44(a) that education program or activity includes locations, 
events, or circumstances over which the recipient exercised substantial 
control over the respondent and over the context in which the sexual 
harassment occurred, and includes on-campus and off-campus buildings 
owned or controlled by a student organization officially recognized by 
a postsecondary institution. If a sexual assault occurs against a 
student outside of an education program or activity, and the student 
later experiences Title IX sexual harassment in an education program or 
activity, then a recipient with actual knowledge of such sexual 
harassment in the recipient's education program or activity must 
respond pursuant to Sec.  106.44(a).
---------------------------------------------------------------------------

    \872\ E.g., 20 U.S.C. 1687; 34 CFR 106.2(h).
---------------------------------------------------------------------------

    The final regulations' approach reduces confusion for recipients 
and students as to the scope of Title IX's protective coverage and 
recognizes the Department's administrative role in enforcing this 
important civil rights law according to the statute's plain terms. 
Furthermore, as noted previously, nothing in the final regulations 
prevents recipients from initiating a student conduct proceeding or 
offering supportive measures to students affected by sexual harassment 
that occurs outside the recipient's education program or activity. 
Title IX is not the exclusive remedy for sexual misconduct or traumatic 
events that affect students. As to misconduct that falls outside the 
ambit of Title IX, nothing in the final regulations precludes 
recipients from vigorously addressing misconduct (sexual or otherwise) 
that occurs outside the scope of Title IX or from offering supportive 
measures to students and individuals impacted by misconduct or trauma 
even when Title IX and its implementing regulations do not require such 
actions.\873\ The Department emphasizes that sexual misconduct is 
unacceptable regardless of the circumstances in which it occurs, and 
recognizing jurisdictional limitations on the purview of a statute does 
not equate to condoning any form of sexual misconduct.
---------------------------------------------------------------------------

    \873\ As discussed in the ``Directed Question 5: Individuals 
with Disabilities'' subsection of the ``Directed Questions'' section 
of this preamble, nothing in these final regulations affects a 
recipient's obligations to comply with all applicable disability 
laws, such as the ADA. Thus, for example, if a recipient's student 
(or employee) has a disability caused or exacerbated by, or arising 
from, sexual harassment, a recipient must comply with applicable 
disability laws (including with respect to providing reasonable 
accommodations) irrespective of whether the sexual harassment that 
caused or exacerbated the individual's disability constitutes Title 
IX sexual harassment to which the recipient must respond under these 
final regulations.
---------------------------------------------------------------------------

    The Department believes a commenter's concern regarding the 
negative effect of the final regulations on the Federal background 
check process and our national security to be speculative. The final 
regulations would not categorically exclude off-campus assaults. As 
discussed previously, the final regulations applies to off-campus 
sexual harassment that occurs under ``the operations of'' the 
recipient, or where the recipient exercised substantial control over 
the respondent and the context in which the sexual harassment occurred, 
or in a building owned or controlled by a student organization 
officially recognized by a postsecondary institution. This commenter 
appears to have made a series of assumptions that may not be true, 
including that a significant number of off-campus assaults not covered 
by the final regulations would involve perpetrators subjected to a 
Federal background check in the future, and that a significant number 
of background checks would fail to uncover relevant information about 
sexual misconduct solely because the perpetrator's misconduct was not 
covered under Title IX. Again, the Department emphasizes that nothing 
in the final regulations prevents recipients from addressing sexual 
misconduct that occurs outside their education programs or activities, 
nor do the final regulations discourage or prevent a victim from 
reporting sexual misconduct to law enforcement or from filing a civil 
lawsuit; therefore, numerous avenues exist through which misconduct not 
covered under Title IX would be revealed during a Federal background 
check of the perpetrator.
    With respect to a commenter's assertion that the final regulations 
may perversely incentivize recipients to not recognize fraternities and 
sororities, the Department believes this conclusion would require 
assuming that recipients will make decisions affecting the quality of 
life of their students based solely on whether or not recipient 
recognition of a student organization such as a fraternity or sorority 
would result in sexual harassment that occurs at locations affiliated 
with that organization falling under Title IX's scope. The Department 
does not make such an assumption, believing instead that recipients 
take many factors into account in deciding whether, and under what 
conditions, a recipient wishes to officially recognize a student 
organization. Whether or not these final regulations alter 
postsecondary institutions' decisions about recognizing Greek life 
organizations, the Department has determined that the scope of Title IX 
extends to the entirety of a recipient's education program and 
activity, and with respect to postsecondary institutions, the 
Department is persuaded by commenters' contentions that when a 
postsecondary institution chooses to officially recognize a student 
organization, the recipient has implied to its students and employees 
that locations owned by such a student organization are under the 
imprimatur of the recipient, whether or not the recipient otherwise 
exercises substantial control over such a location.
    The Department believes there is a fundamental distinction between 
Title IX, and workplace policies that may exist in the corporate world. 
Title IX has clear jurisdictional application to education programs or 
activities, and the Department does not have authority to extend Title 
IX's application. By contrast, corporations may have more flexibility 
in crafting their own rules and policies to reflect their values and 
the needs of their employees and customers. Further, Title VII does not 
necessarily deem actionable all sexual harassment committed by 
employees regardless of the location or context of the harassment.\874\ 
These final regulations tether sexual harassment to a recipient's 
education program or activity in a similar manner to the way courts 
tether sexual harassment to a workplace under an employer's 
control.\875\ Regardless of any differences between analyses under 
Title VII and Title IX, we emphasize that recipients retain discretion 
under the final regulations to address sexual misconduct that falls 
outside the recipient's education program or activity through their own 
disciplinary system and by offering supportive

[[Page 30200]]

measures to complainants reporting such misconduct.
---------------------------------------------------------------------------

    \874\ See, e.g., Lapka v. Chertoff, 517 F.3d 974, 982-83 (7th 
Cir. 2008).
    \875\ The Department adds to Sec.  106.44(a) the statement that 
``education program or activity'' includes locations, events, or 
circumstances over which the recipient exercised substantial control 
over both the respondent and the context in which the harassment 
occurs. This helps clarify that even if a situation arises off 
campus, it may still be part of the recipient's education program or 
activity if the recipient exercised substantial control over the 
context and the alleged harasser. While such situations may be fact 
specific, recipients must consider whether, for example, a sexual 
harassment incident between two students that occurs in an off-
campus apartment (i.e., not a dorm room provided by the recipient) 
is a situation over which the recipient exercised substantial 
control; if so, the recipient must respond when it has actual 
knowledge of sexual harassment or allegations of sexual harassment 
that occurred there. At the same time, the Title IX statute and 
existing regulations broadly define a recipient's ``program or 
activity'' to include (as to schools) ``all of the operations'' of 
the school, such that situations that arise on campus are already 
part of a school's education program or activity. 20 U.S.C. 1687.
---------------------------------------------------------------------------

    The Department acknowledges commenters' citations to Federal court 
opinions for the proposition that a recipient may be deliberately 
indifferent to sexual harassment that occurred outside the recipient's 
control where the complainant has to interact with the respondent in 
the recipient's education program or activity, or where the effects of 
the underlying sexual assault create a hostile environment in the 
complainant's workplace or educational environment. However, with the 
changes to the final regulations made in response to commenters' 
concerns, the Department believes that we have clarified that sexual 
harassment incidents occurring off campus may fall under Title IX. The 
statutory and regulatory definitions of ``program or activity'' and the 
statements regarding ``substantial control'' and ``buildings owned or 
controlled by'' student organizations officially recognized by 
postsecondary institutions in Sec.  106.44(a) do not state or imply 
that off-campus incidents necessarily fall outside a recipient's 
education program or activity. Moreover, complainants can request 
supportive measures or an investigation into allegations of conduct 
that do not meet Title IX jurisdictional conditions, under a 
recipient's own code of conduct.\876\
---------------------------------------------------------------------------

    \876\ The Department also notes that Sec.  106.45(b)(8) in the 
final regulations permits complainants and respondents equally to 
appeal a recipient's determination that allegations were subject to 
mandatory dismissal under Sec.  106.45(b)(3)(i).
---------------------------------------------------------------------------

    Some of the situations in Federal cases cited to by commenters may 
have reached similar outcomes under the final regulations. For example, 
in Doe v. East Haven Board of Education,\877\ the Second Circuit held 
that the plaintiff sufficiently alleged sexual harassment to which the 
school was deliberately indifferent where the harassment consisted of 
on-campus taunts and name-calling directed at the plaintiff after she 
had reported being raped off campus by two high-school boys. The final 
regulations would similarly analyze whether sexual harassment (i.e., 
unwelcome conduct on the basis of sex so severe, pervasive, and 
objectively offensive that it effectively deprives a complainant of 
equal access to education) in the recipient's program or activity 
triggered a recipient's response obligations regardless of whether such 
sexual harassment stemmed from the complainant's allegations of having 
suffered sexual assault (e.g., rape) outside the recipient's program or 
activity. Further, whether or not the off-campus rape in that case was 
in, or outside, the school's education program or activity, would 
depend on the factual circumstances, because as explained above, not 
all off-campus sexual harassment is excluded from Title IX coverage.
---------------------------------------------------------------------------

    \877\ 200 F. App'x 46, 48 (2d Cir. 2006); Lapka v. Chertoff, 517 
F.3d 974, 982-83 (7th Cir. 2008) (the Seventh Circuit reasoned that 
the plaintiff sufficiently alleged workplace harassment even though 
the alleged rape occurred while the plaintiff and assailant were 
socializing after hours in a private hotel room, because the bar was 
part of the training facility where the plaintiff and assailant were 
required to attend work-related training sessions and thus were on 
``official duty'' while at that facility, including the bar located 
in the facility, ``so the event could be said to have grown out of 
the workplace environment'' and the plaintiff and assailant were 
trainees expected to eat and drink at the facility and ``return to 
dormitories and hotel rooms provided by'' the employer such that 
``[e]mployees in these situations can be expected to band together 
for society and socialize as a matter of course'' justifying the 
Court's conclusion that the plaintiff had alleged sexual harassment 
(rape) that arose in the context of a workplace environment and to 
which the employer had an obligation to respond). Although Lapka was 
a case under Title VII, the final regulations would similarly 
analyze whether sexual harassment occurred in the school's program 
or activity by inquiring whether the school exercised substantial 
control over the context of the harassment and the alleged harasser.
---------------------------------------------------------------------------

    Contrary to commenters' assertions, the Supreme Court in Gebser did 
not dispense with the program or activity limitation or declare that 
where the harassment occurred did not matter. The facts at issue in the 
Gebser case involved teacher-on-student harassment that consisted of 
both in-class sexual comments directed at the plaintiff as well as a 
sexual relationship that began when the respondent-teacher visited the 
plaintiff's home ostensibly to give her a book.\878\ The Supreme Court 
in Gebser emphasized that a school district needs to be aware of 
discrimination (in the form of sexual harassment) ``in its programs'' 
and emphasized that a teacher's sexual abuse of a student ``undermines 
the basic purposes of the educational system'' \879\ thereby implicitly 
recognizing that a teacher's sexual harassment of a student is likely 
to constitute sexual harassment ``in the program'' of the school even 
if the harassment occurs off campus. Nothing in the final regulations 
contradicts this premise or conclusion; Sec.  106.44(a) clarifies that 
a recipient's education program or activity includes circumstances over 
which a recipient has substantial control over the context of the 
harassment and the respondent, and a teacher employed by a recipient 
who visits a student's home ostensibly to give the student a book but 
in reality to instigate sexual activity with the student could 
constitute sexual harassment ``in the program'' of the recipient such 
that a recipient with actual knowledge of that harassment would be 
obligated under the final regulations to respond. Similarly, the 
Supreme Court in Davis viewed the perpetrator's status as a teacher in 
Gebser as relevant to concluding that the sexual harassment was 
happening ``under'' the recipient's education program or activity.\880\ 
We reiterate that the final regulations do not distinguish between 
sexual harassment occurring ``on campus'' versus ``off campus'' but 
rather state that Title IX covers sexual harassment that occurs in a 
recipient's education program or activity. The final regulations follow 
the Gebser/Davis approach to Title IX's statutory reference to 
discrimination in an education program or activity; sexual harassment 
by a teacher as opposed to harassment by a fellow student may, as 
indicated in Gebser and Davis, affect whether the sexual harassment 
occurred ``under any education program or activity.'' \881\ This is a 
matter that recipients must consider when training Title IX personnel 
on the ``scope of the

[[Page 30201]]

recipient's education program or activity'' pursuant to Sec.  
106.45(b)(1)(iii).
---------------------------------------------------------------------------

    \878\ Gebser, 524 U.S. at 277-78.
    \879\ Gebser, 524 U.S. at 286 (``As a general matter, it does 
not appear that Congress contemplated unlimited recovery in damages 
against a funding recipient where the recipient is unaware of 
discrimination in its programs.'') (emphasis added); id. at 289 
(reasoning that a school's liability in a private lawsuit should 
give the school opportunity to know of the violation and correct it 
voluntarily similarly to the way the Title IX statute directs 
administrative agencies to give a school that opportunity to 
voluntarily correct violations, and the Court stated ``Presumably, a 
central purpose of requiring notice of the violation `to the 
appropriate person' and an opportunity for voluntary compliance 
before administrative enforcement proceedings can commence is to 
avoid diverting education funding from beneficial uses where a 
recipient was unaware of discrimination in its programs and is 
willing to institute prompt corrective measures.'') (emphasis 
added); id. at 290 (``we hold that a damages remedy will not lie 
under Title IX unless an official who at a minimum has authority to 
address the alleged discrimination and to institute corrective 
measures on the recipient's behalf has actual knowledge of 
discrimination in the recipient's programs and fails adequately to 
respond.'') (emphasis added); id. at 292 (``No one questions that a 
student suffers extraordinary harm when subjected to sexual 
harassment and abuse by a teacher, and that the teacher's conduct is 
reprehensible and undermines the basic purposes of the educational 
system.'') (emphasis added).
    \880\ Davis, 526 U.S. at 652-53 (``Moreover, the provision that 
the discrimination occur `under any education program or activity' 
suggests that the behavior be serious enough to have the systemic 
effect of denying the victim equal access to an educational program 
or activity. . . . The fact that it was a teacher who engaged in 
harassment in Franklin and Gebser is relevant. The relationship 
between the harasser and the victim necessarily affects the extent 
to which the misconduct can be said to breach Title IX's guarantee 
of equal access to educational benefits and to have a systemic 
effect on a program or activity.'').
    \881\ Id. at 652.
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    Both the 2001 Guidance and 2017 Q&A recognize the statutory 
language of ``education program or activity'' as a limitation on sexual 
harassment to which a recipient must respond. For example, the 2001 
Guidance notes that ``Title IX applies to all public and private 
educational institutions that receive Federal funds'' and states that 
the ``education program or activity of a school includes all of the 
school's operations'' which means ``that Title IX protects students in 
connection with all of the academic, educational, extra-curricular, 
athletic, and other programs of the school, whether they take place in 
the facilities of the school, on a school bus, at a class or training 
program sponsored by the school at another location, or elsewhere.'' 
\882\ Similarly, the 2017 Q&A expressly acknowledges that a recipient's 
obligation to respond to sexual harassment is confined to harassment 
that occurs in the recipient's education program or activity, citing 
statutory and regulatory definitions of ``recipient,'' ``operations,'' 
and ``program or activity.'' \883\ The final regulations similarly rely 
on preexisting statutory and regulatory definitions of a recipient's 
``program or activity'' and add a statement that ``education program or 
activity'' includes circumstances over which the recipient exercised 
substantial control. The withdrawn 2011 Dear Colleague Letter departed 
from the Department's longstanding acknowledgement that a recipient's 
response obligations are conditioned on sexual harassment that occurs 
in the recipient's education program or activity; \884\ these final 
regulations return to the Department's approach in the 2001 Guidance, 
which mirrors the Supreme Court's approach to ``education program or 
activity'' as a jurisdictional condition that promotes a recipient's 
obligation under Title IX to provide education programs or activities 
free from sex discrimination. Like the 2001 Guidance, the final 
regulations approach the ``education program or activity'' condition as 
extending to circumstances over which recipients have substantial 
control, and not only to incidents that occur ``on campus.'' We 
reiterate that nothing in the final regulations precludes a recipient 
from offering supportive measures to a complainant who reports sexual 
harassment that occurred outside the recipient's education program or 
activity, and any sexual harassment that does occur in an education 
program or activity must be responded to even if it relates to, or 
happens subsequent to, sexual harassment that occurred outside the 
education program or activity.
---------------------------------------------------------------------------

    \882\ 2001 Guidance at 2-3 (internal quotation marks omitted) 
(citing to 20 U.S.C. 1687, codification of the amendment to Title IX 
regarding scope of jurisdiction, enacted by the Civil Rights 
Restoration Act of 1987, and to 65 FR 68049 (November 13, 2000), the 
Department's amendment of the Title IX regulations to incorporate 
the statutory definition of ``program or activity.'').
    \883\ 2017 Q&A at 1, fn. 3.
    \884\ 2011 Dear Colleague Letter at 4 (``Schools may have an 
obligation to respond to student-on-student sexual harassment that 
initially occurred off school grounds, outside a school's education 
program or activity. If a student files a complaint with the school, 
regardless of where the conduct occurred, the school must process 
the complaint in accordance with its established procedures. Because 
students often experience the continuing effects of off-campus 
sexual harassment in the educational setting, schools should 
consider the effects of the off-campus conduct when evaluating 
whether there is a hostile environment on campus. For example, if a 
student alleges that he or she was sexually assaulted by another 
student off school grounds, and that upon returning to school he or 
she was taunted and harassed by other students who are the alleged 
perpetrator's friends, the school should take the earlier sexual 
assault into account in determining whether there is a sexually 
hostile environment. The school also should take steps to protect a 
student who was assaulted off campus from further sexual harassment 
or retaliation from the perpetrator and his or her associates.'') 
(emphasis added); see also the withdrawn 2014 Q&A at 29-30.
---------------------------------------------------------------------------

    Although the 2001 Guidance and 2017 Q&A frame actionable sexual 
harassment as harassment that creates a ``hostile environment,'' \885\ 
the final regulations utilize the more precise interpretation of Title 
IX's scope articulated by the Supreme Court in Davis: That a recipient 
must respond to sexual harassment that is so severe, pervasive, and 
objectively offensive that it effectively denies a person equal access 
to education.\886\ The use of the phrase ``hostile environment'' in the 
2001 Guidance and 2017 Q&A does not mean that those guidance documents 
ignored the ``education program or activity'' limitation referenced in 
the Title IX statute; whether framed as a ``hostile environment'' (as 
in Department guidance) or as ``effective denial of a person's equal 
access'' to education (as in these final regulations), sexual 
harassment is a form of sex discrimination actionable under Title IX 
when it occurs in an education program or activity.
---------------------------------------------------------------------------

    \885\ 2001 Guidance at 3; 2017 Q&A at 1. Although footnote 3 of 
the 2017 Q&A states that ``[s]chools are responsible for redressing 
a hostile environment that occurs on campus even if it relates to 
off-campus activities,'' this statement was intended to convey that 
a recipient may not ignore sexual harassment that occurs in its 
program or activity just because the parties involved may also have 
experienced an incident of sexual harassment outside its program or 
activity. See also Doe v. East Haven Bd. of Educ., 200 F. App'x 46, 
48 (2d Cir. 2006) (holding that plaintiff sufficiently alleged 
sexual harassment to which the school was deliberately indifferent 
where the harassment consisted of on-campus, sexualized taunts and 
name-calling directed at the plaintiff after she had reported being 
raped by two high-school boys outside the school's program or 
activity).
    \886\ See also the ``Sexual Harassment'' subsection of the 
``Section 106.30 Definitions'' section of this preamble for further 
discussion of the ``effective denial of equal access'' element in 
the final regulations' definition of sexual harassment and the 
relationship between that element and the concept of hostile 
environment.
---------------------------------------------------------------------------

    Because the final regulations do not exclude ``off campus'' sexual 
harassment from coverage under Title IX and instead take the approach 
utilized in the 2001 Guidance and applied by the Supreme Court in 
Davis, under which off campus sexual harassment may be in the scope of 
a recipient's education program or activity, the Department disagrees 
that these final regulations conflict with the Department's recent 
enforcement action with respect to holding Chicago Public Schools 
accountable for failure to appropriately respond to certain off-campus 
sexual assaults.
    Changes: Section 106.44(a) is revised to state that ``education 
program or activity'' includes locations, events, or circumstances over 
which the recipient exercised substantial control over both the 
respondent and the context in which the harassment occurs, and also 
includes any building owned or controlled by a student organization 
that is officially recognized by a postsecondary institution. Section 
106.45(b)(1)(iii) is revised to include training for Title IX 
Coordinators, investigators, decision-makers, and persons who 
facilitate informal resolutions on ``the scope of the recipient's 
education program or activity.'' Section 106.45(b)(3)(i) is revised to 
expressly provide that a mandatory dismissal of allegations in a formal 
complaint about conduct not occurring in the recipient's education 
program or activity is ``for purposes of title IX or [34 CFR part 106]; 
such a dismissal does not preclude action under another provision of 
the recipient's code of conduct.'' Section 106.45(b)(10)(i)(D) is 
revised to require recipients to post materials used to train Title IX 
personnel on the recipient's website, or if the recipient does not have 
a website, to make such materials available for inspection and review 
by members of the public.
Online Sexual Harassment
    Comments: One commenter cited case law for the proposition that 
Title IX does not cover online or digital

[[Page 30202]]

conduct.\887\ Other commenters cited cases holding that recipients may 
be liable under Title IX for failing to adequately address online 
harassment.\888\ A few commenters argued that the NPRM's approach to 
education program or activity is inconsistent with the Department's 
past practice and guidance documents, such as guidance issued in 2010 
which acknowledged that cell phone and internet communications may 
constitute actionable harassment. Many commenters were concerned the 
NPRM would exclude online sexual harassment due to the education 
program or activity condition in Sec.  106.44(a), and cited studies 
showing the prevalence and effects of online harassment and cyber-
bullying on victims.\889\ Commenters argued that it was unclear to what 
extent the NPRM would cover online harassment and suggested that the 
Department more broadly define ``program or activity'' to include 
student interactions that are enabled by recipients, such as online 
harassment between students using internet access provided by the 
recipient. Commenters argued that the final regulations should 
explicitly address cyber-bullying and electronic speech. Some 
commenters suggested that excluding online misconduct may conflict with 
State law; for example, commenters stated that New Jersey law includes 
harassment occurring online.
---------------------------------------------------------------------------

    \887\ Commenters cited, e.g.: Yeasin v. Durham, 719 F. App'x 844 
(10th Cir. 2018); Gordon v. Traverse City Area Pub. Sch., 686 F. 
App'x 315, 324 (6th Cir. 2017).
    \888\ Commenters cited: Feminist Majority Found. v. Hurley, 911 
F.3d 674 (4th Cir. 2018); S.J.W. v. Lee's Summit R-7 Sch. Dist., 696 
F.3d 771, 777 (8th Cir. 2012); Layshock v. Hermitage Sch. Dist., 650 
F.3d 205, 220-221 (3d Cir. 2011); Kowalski v. Berkeley Cnty. Sch., 
652 F.3d 565, 573 (4th Cir. 2011); Sypniewski v. Warren Hill Reg'l 
Bd. of Educ., 307 F.3d 243, 257 (3d Cir. 2002).
    \889\ Commenters cited, e.g.: American Association of University 
Women, Crossing the Line: Sexual Harassment at School (2011).
---------------------------------------------------------------------------

    Discussion: The Department appreciates commenters' concerns about 
whether Title IX applies to sexual harassment that occurs 
electronically or online. We emphasize that the education program or 
activity jurisdictional condition is a fact-specific inquiry applying 
existing statutory and regulatory definitions of ``program or 
activity'' to the situation; however, for recipients who are 
postsecondary institutions or elementary and secondary schools as those 
terms are used in the final regulations, the statutory and regulatory 
definitions of ``program or activity'' encompass ``all of the 
operations of'' such recipients, and such ``operations'' may certainly 
include computer and internet networks, digital platforms, and computer 
hardware or software owned or operated by, or used in the operations 
of, the recipient.\890\ Furthermore, the final regulations revise Sec.  
106.44(a) to specify that an education program or activity includes 
circumstances over which the recipient exercised substantial control 
over both the respondent and the context in which the harassment 
occurred, such that the factual circumstances of online harassment must 
be analyzed to determine if it occurred in an education program or 
activity. For example, a student using a personal device to perpetrate 
online sexual harassment during class time may constitute a 
circumstance over which the recipient exercises substantial control.
---------------------------------------------------------------------------

    \890\ 20 U.S.C. 1687; 34 CFR 106.2(h).
---------------------------------------------------------------------------

    Contrary to the claims made by some commenters, the approach to 
``education program or activity'' contained in the final regulations, 
and in particular its potential application to online harassment, would 
not necessarily conflict with the Department's previous 2010 Dear 
Colleague Letter addressing bullying and harassment. The Department's 
2010 guidance made a passing reference that harassing conduct may 
include ``use of cell phones or the internet,'' and the Department's 
position has not changed in this regard.\891\ These final regulations 
apply to sexual harassment perpetrated through use of cell phones or 
the internet if sexual harassment occurred in the recipient's education 
program or activity. As explained in the ``Adoption and Adaption of the 
Supreme Court's Framework to Address Sexual Harassment'' section of 
this preamble, these final regulations adopt and adapt the Gebser/Davis 
framework of actual knowledge and deliberate indifference, in contrast 
to the rubric in the 2010 Dear Colleague Letter on bullying and 
harassment; however, these final regulations appropriately address 
electronic, digital, or online sexual harassment by not making sexually 
harassing conduct contingent on the method by which the conduct is 
perpetrated. Additionally, even if a recipient is not required to 
address certain misconduct under these final regulations, these final 
regulations expressly allow a recipient to address such misconduct 
under its own code of conduct.\892\ Accordingly, there may not be any 
conflict between these final regulations with respect to State laws 
that explicitly cover online harassment.
---------------------------------------------------------------------------

    \891\ U.S. Dep't. of Education, Office for Civil Rights, Dear 
Colleague Letter: Harassment and Bullying at 2 (Oct. 26, 2010), 
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.
    \892\ E.g., Sec.  106.45(b)(3)(i).
---------------------------------------------------------------------------

    Changes: None.
Consistency With Title IX Statutory Text
    Comments: Some commenters opposed the NPRM's approach to 
``education program or activity'' by arguing that it conflicts with 
Title IX's statutory text. Commenters contended that the NPRM is an 
unambiguously incorrect interpretation of Title IX under the deference 
doctrine articulated by the Supreme Court in Chevron U.S.A., Inc. v. 
Natural Resources Defense Council, Inc.,\893\ and will thus be given no 
judicial deference. One such commenter asserted that the Title IX 
statute has three distinctive protective categories, such that no 
person on the basis of sex can be: (1) Excluded from participation in; 
(2) denied the benefits of; or (3) subjected to discrimination under 
any education program or activity. The commenter argued that the first 
clause includes off-campus conduct, such as male students on a public 
street blocking female students from accessing campus. This commenter 
argued that the third clause prohibits discrimination ``under,'' and 
not ``in'' or ``within,'' a recipient's education program or activity 
and is violated whenever women or girls are subjected to more adverse 
conditions than males. This commenter asserted that the Title IX 
statutory text does not depend on where the underlying conduct occurs, 
but rather focuses on the subsequent hostile educational environment 
that such misconduct can cause.
---------------------------------------------------------------------------

    \893\ 467 U.S. 837 (1984).
---------------------------------------------------------------------------

    Another commenter argued that requiring recipients to treat off-
campus sexual misconduct differently from on-campus sexual misconduct 
can itself violate Title IX.
    Discussion: The Department acknowledges the analysis offered by at 
least one commenter that the Title IX statute, by its own text, has 
three distinct protective categories and the commenter's argument that 
the ``subjected to discrimination'' prong is violated whenever females 
are subjected to more adverse conditions than males. As explained 
below, the Department elects to adopt the analysis applied by the 
Supreme Court rather than the analysis provided by the commenter.
    In Davis, the Supreme Court acknowledged that Title IX protects 
students from ``discrimination'' and from being ``excluded from 
participation in'' or ``denied the benefits of'' any education program 
or activity receiving

[[Page 30203]]

Federal financial assistance.\894\ The Davis Court characterized sexual 
harassment as a form of sex discrimination under Title IX,\895\ and 
reasoned that whether a recipient is liable for sexual harassment thus 
turns on whether the recipient can be said to have ``subjected'' 
students to sex discrimination in the form of sexual harassment.\896\ 
The Davis Court further reasoned, ``Moreover, because the harassment 
must occur `under' `the operations of' a funding recipient, see 20 
U.S.C. 1681(a); Sec.  1687 (defining `program or activity'), the 
harassment must take place in a context subject to the school 
district's control. . . . These factors combine to limit a recipient's 
damages liability to circumstances wherein the recipient exercises 
substantial control over both the harasser and the context in which the 
known harassment occurs.'' \897\
---------------------------------------------------------------------------

    \894\ Davis, 526 U.S. at 650.
    \895\ Id. (``Having previously determined that `sexual 
harassment' is `discrimination' in the school context under Title 
IX, we are constrained to conclude that student-on-student sexual 
harassment, if sufficiently severe, can likewise rise to the level 
of discrimination actionable under the statute.'').
    \896\ Id. (``The statute's plain language confirms the scope of 
prohibited conduct based on the recipient's degree of control over 
the harasser and the environment in which the harassment occurs. If 
a funding recipient does not engage in harassment directly, it may 
not be liable for damages unless its deliberate indifference 
`subjects' its students to harassment. That is, the deliberate 
indifference must, at a minimum, `cause [students] to undergo' 
harassment or `make them liable or vulnerable' to it.'') (internal 
citations to dictionary references omitted).
    \897\ Id. at 644-45.
---------------------------------------------------------------------------

    Adopting the Supreme Court's analysis of the appropriate 
application of the Title IX statute's ``program or activity'' language 
in the context of sexual harassment, the final regulations treat sexual 
harassment as a form of sex discrimination under Title IX and hold 
recipients accountable for responding to sexual harassment that took 
place in a context under the recipient's control. In interpreting 
``education program or activity'' in the final regulations, the 
Department will look to the definitions of ``program or activity'' 
provided by Title IX \898\ and existing Title IX regulations,\899\ and 
has revised Sec.  106.44(a) of the final regulations to clarify that 
``education program or activity'' includes locations, events, or 
circumstances over which the recipient exercised substantial control 
over both the respondent and the context in which the harassment 
occurs, as well as on-campus and off-campus buildings owned or 
controlled by student organizations officially recognized by 
postsecondary institutions. The Department notes that the commenter's 
hypothetical, concerning male students on a public street blocking 
female students from accessing campus, would require a fact-specific 
analysis but could constitute sexual harassment in the recipient's 
education program or activity if such an incident occurred in a 
location, event, or circumstance over which the recipient exercised 
substantial control.
---------------------------------------------------------------------------

    \898\ 20 U.S.C. 1687 (defining ``program or activity'').
    \899\ 34 CFR 106.2(h) (defining ``program or activity''); 34 CFR 
106.2(i) (defining ``recipient''); 34 CFR 106.31(a) (referring to 
``any academic, extracurricular, research, occupational training, or 
other education program or activity operated by a recipient which 
receives Federal financial assistance'').
---------------------------------------------------------------------------

    Contrary to the claims made by some commenters, and as discussed 
above, the final regulations would not necessarily require recipients 
to treat off-campus misconduct differently from on-campus misconduct. 
Title IX does not create, nor did Congress intend for it to create, 
open-ended liability for recipients in addressing sexual harassment. 
Rather, the statute imposed an important jurisdictional limitation 
through its reference to education programs or activities. Recipients 
are responsible under Title IX for addressing sex discrimination, 
including sexual harassment, in their ``education program or 
activity,'' but a recipient's education program or activity may extend 
to locations, events, and circumstances ``off campus.''
    Changes: We have revised Sec.  106.44(a) to state that for purposes 
of Sec. Sec.  106.30, 106.44, and 106.45, ``education program or 
activity'' includes locations, events, or circumstances over which the 
respondent had substantial control over both the respondent and the 
context in which the sexual harassment occurred, and also includes 
buildings owned or controlled by student organizations that are 
officially recognized by a postsecondary institution.
Constitutional Equal Protection
    Comments: One commenter contended that the NPRM's approach to 
``education program or activity'' may violate the Fourteenth Amendment 
because experiencing off-campus or online sexual victimization 
detrimentally affects student-survivors' education, and the Fourteenth 
Amendment guarantees these students equal protection, yet, the 
commenter argued, the NPRM would leave these students outside Title 
IX's reach and deprived of equal protection.
    Discussion: We disagree with the contention that the application in 
the final regulations of ``education program or activity'' as a 
jurisdictional condition may violate the Equal Protection Clause of the 
Fourteenth Amendment. The Department reiterates that the ``education 
program or activity'' limitation in the final regulations does not 
create or apply a geographic test, does not draw a line between ``off 
campus'' and ``on campus,'' and does not create a distinction between 
sexual harassment occurring in person versus online. Moreover, under 
these final regulations, any individual alleged to be a victim of 
conduct that could constitute sexual harassment is a ``complainant'' 
\900\ to whom the recipient must respond in a prompt, non-deliberately 
indifferent manner; in that manner, all students are treated equally 
without distinction under the final regulations based on, for example, 
where a student resides or spends time. The distinction of which some 
commenters are critical, then, is not a distinction drawn among groups 
or types of students, but rather is a distinction drawn (for reasons 
explained previously) between incidents that are, or are not, under the 
control of the recipient. The Department further notes that even if 
commenters correctly characterize the distinction as being made between 
some students (who suffer harassment in an education program or 
activity) and other students (who suffer harassment outside an 
education program or activity), the applicable level of scrutiny under 
the Equal Protection Clause to any differential treatment under such 
circumstances would be the rational basis test.\901\ A heightened level 
of scrutiny would apply where a suspect or quasi-suspect classification 
is involved, such as race or sex.\902\ But, as here, where no such 
suspect or quasi-suspect classification is involved, the final 
regulations may treat students differently due to the circumstances in 
which the misconduct occurred, and the rational basis test applies. 
Under the rational basis test, a law or governmental action is valid 
under the Equal Protection Clause so long as it is rationally related 
to a legitimate government interest.\903\ With Title IX,

[[Page 30204]]

Congress made a rational determination that recipients should be held 
liable for misconduct over which they had some level of control. The 
statute's reference to ``education program or activity'' reflects this 
important limitation. To expose recipients to liability for misconduct 
wholly unrelated to circumstances over which they have control would 
contravene congressional intent and lead to potentially unlimited 
exposure to loss of Federal funds. The Department believes that the use 
of ``education program or activity'' in Sec.  106.44(a) appropriately 
reflects both statutory text and congressional intent, and furthers the 
legitimate government interest of ensuring liability is not open-ended 
and has reasonable jurisdictional limitations.
---------------------------------------------------------------------------

    \900\ Section 106.30 (defining a ``complainant'' as any 
individual who is alleged to be the victim of conduct that could 
constitute sexual harassment).
    \901\ See F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 
(1993).
    \902\ See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 
(1995) (applying strict scrutiny under the Equal Protection Clause 
to assess classifications based on race); Craig v. Boren, 429 U.S. 
190, 197 (1976) (applying intermediate scrutiny under the Equal 
Protection Clause to assess classifications based on sex).
    \903\ See Beach Commc'ns, Inc., 508 U.S. at 313 (holding that in 
areas of social and economic policy, statutory classification that 
neither proceeds along suspect lines nor infringes fundamental 
constitutional rights must be upheld against equal protection 
challenge if there is any reasonably conceivable state of facts that 
could provide rational basis for classification).
---------------------------------------------------------------------------

    Changes: None.
Institutional Autonomy and Litigation Risk
    Comments: A number of commenters stated that the Department's 
approach to ``education program or activity'' would undermine recipient 
autonomy and expose recipients to litigation risk. Commenters argued 
that recipients should have the right to determine the standards of 
behavior to which their students must adhere, both on campus and off 
campus, and that the NPRM would infringe on institutional academic 
prerogatives and independence. Commenters expressed concern that the 
NPRM would make recipients vulnerable to litigation from students 
seeking damages for off-campus assaults, including because recipients 
could be accused of arbitrarily deciding which cases to investigate and 
which cases to declare outside their jurisdiction.
    Discussion: We acknowledge the importance of recipient discretion 
and flexibility to determine the recipient's own standards of conduct. 
However, Congress created a clear mandate in Title IX and vested the 
Department with the authority to administratively enforce Title IX to 
effectuate the statute's twin purposes: To ``avoid the use of Federal 
resources to support discriminatory practices'' and to ``provide 
individual citizens effective protection against those practices.'' 
\904\ Importantly, nothing in the final regulations prohibits 
recipients from using their own disciplinary processes to address 
misconduct occurring outside their education program or activity.\905\ 
Indeed, this flexibility for recipients to address sexual misconduct 
that falls outside the scope of Title IX, including sexual misconduct 
that is outside the recipient's education program or activity, permits 
recipients to reduce the litigation risk perceived by some commenters. 
As discussed above, and contrary to the claims made by many commenters, 
the final regulations do not distinguish between on-campus misconduct 
and off-campus misconduct. Off-campus sexual harassment is not 
categorically excluded from Title IX coverage. Recipients' decisions to 
investigate formal complaints regarding allegations of sexual 
harassment cannot be arbitrary under the final regulations; rather, a 
recipient must investigate a formal complaint where the alleged sexual 
harassment (meeting the definition in Sec.  106.30) occurred in the 
recipient's education program or activity, against a person in the 
United States.
---------------------------------------------------------------------------

    \904\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).
    \905\ In response to many commenters' concerns that Sec.  
106.45(b)(3) was understood to prevent recipients from addressing 
misconduct that occurred outside an education program or activity, 
the Department has revised Sec.  106.45(b)(3)(i) in the final 
regulations to expressly state that mandatory dismissal due to the 
alleged conduct occurring outside an education program or activity 
is only a dismissal for purposes of Title IX and does not preclude 
the recipient from addressing the conduct through other codes of 
conduct.
---------------------------------------------------------------------------

    Changes: None.
Requests for Clarification
    Comments: Commenters raised questions regarding the Department's 
approach to the ``education program or activity'' condition. Commenters 
requested clarity as to events that begin off campus but have effects 
on campus, such as interaction among students, faculty, and staff 
outside formal professional or academic activities. These commenters 
were concerned that, in such circumstances, it may be challenging for 
an institution to clearly and consistently identify what conduct has 
occurred strictly within its education program and which conduct is 
beyond its educational program. One commenter sought clarification as 
to what, if any, are the Department's expectations for a recipient's 
conduct processes that address off-campus sexual misconduct. This 
commenter asserted that Title IX prohibits discrimination ``under'' an 
education program or activity, but that Sec.  106.44(a) and proposed 
Sec.  106.44(b)(4) referred to sexual harassment ``in'' an education 
program or activity, while proposed Sec.  106.45(b)(3) referred to 
sexual harassment ``within'' a program or activity. The commenter 
inquired as to whether ``in'' differs from ``within'' in those proposed 
sections, and whether those terms mean something different than 
``under'' used in the Title IX statute, and if so what are the 
differences in meaning. The commenter asserted that Title IX prohibits 
``discrimination'' under an education program or activity and that 
Sec.  106.44(a) and proposed Sec.  106.44(b)(2) refer to ``sexual 
harassment'' in an education program or activity, and asked if 
recipients would be required to respond where sexual harassment 
occurred outside an education program or activity but resulted in 
discrimination under the education program or activity. This commenter 
stated that under Title IX an individual may not be ``excluded'' from a 
federally-assisted program or activity on the basis of sex, and asked 
whether recipients must address sexual harassment that did not occur 
``in'' its education program or activity but nevertheless effectively 
excluded the victim from equal access to it.
    Discussion: The Department appreciates the questions raised by 
commenters regarding the application of ``education program or 
activity'' in Sec.  106.44(a) of the final regulations. The final 
regulations do not impose requirements on a recipient's code of conduct 
processes addressing misconduct occurring outside the recipient's 
education program or activity, and do not govern the recipient's 
decisions to address or not address such misconduct. The Department's 
regulatory authority is limited to the scope of Title IX: Ensuring that 
recipients of Federal funding operate education programs or activities 
free from sex discrimination. For the final regulations to apply, 
sexual harassment (a form of sex discrimination) must occur in the 
recipient's education program or activity. As explained previously, 
nothing in the final regulations precludes a recipient from offering 
supportive measures to a complainant who reports sexual harassment that 
occurred outside the recipient's education program or activity, and any 
sexual harassment or sex discrimination that does occur in an education 
program or activity must be responded to even if it relates to, or 
happens subsequent to, sexual harassment that occurred outside the 
education program or activity.
    Whether sexual harassment occurs in a recipient's education program 
or activity is a fact-specific inquiry. The key questions are whether 
the recipient exercised substantial control over the respondent and the 
context in which the incident occurred. There is no bright-

[[Page 30205]]

line geographic test, and off-campus sexual misconduct is not 
categorically excluded from Title IX protection under the final 
regulations.\906\ Recognizing that recipients need to carefully 
consider this matter, the Department revised Sec.  106.45(b)(1)(iii) to 
require training for Title IX Coordinators, investigators, decision-
makers, and persons who facilitate informal resolution processes on 
``the scope of the recipient's education program or activity.''
---------------------------------------------------------------------------

    \906\ See the ``Clery Act'' subsection of the ``Miscellaneous'' 
section of this preamble for discussion regarding the distinctive 
purposes of Clery Act geography versus Title IX coverage of 
education programs or activities; see also revised Sec.  106.44(a) 
including in an ``education program or activity'' any building owned 
or controlled by a student organization that is officially 
recognized by a postsecondary institution.
---------------------------------------------------------------------------

    In response to a commenter's question regarding the NPRM's use of 
the terms ``in,'' ``within,'' and ``under'' an education program or 
activity, and whether those terms are intended to have different 
meanings, the Department has replaced ``within'' with ``in'' throughout 
the final regulations, thus making all provisions consistent with the 
reference to ``in'' contained in Sec.  106.44(a). We also wish to 
clarify that the final regulations' use of the term ``in'' is meant to 
be interchangeable with the Title IX statute's use of ``under''; the 
Department gives the same meaning to these prepositions, and notes that 
the Supreme Court in Davis referenced harassment ``under'' the 
operations of (i.e., the program or activity of) a recipient and 
harassment that occurred ``in'' a context subject to the recipient's 
control seemingly interchangeably.\907\
---------------------------------------------------------------------------

    \907\ Davis, 526 U.S. at 645 (``Moreover, because the harassment 
must occur under the operations of' a funding recipient . . . the 
harassment must take place in a context subject to the school 
district's control'') (internal quotation marks and citations 
omitted; emphasis added).
---------------------------------------------------------------------------

    Changes: The final regulations consistently use ``in'' an education 
program or activity rather than ``within.''

Section 106.44(a) ``Against a Person in the U.S.''

Impact on Study Abroad Participants
    Comments: Several commenters asserted that the NPRM would endanger 
students studying abroad, because the final regulations apply only to 
sexual harassment that occurs against a person in the United States. 
Commenters argued that when recipients offer students study abroad 
opportunities, recipients should still have responsibility to ensure 
student safety and well-being. Commenters acknowledged that Congress 
may not have contemplated studying abroad or recipients having 
satellite campuses across the globe when drafting Title IX in the 
1970s. However, commenters argued that international experiences are 
increasingly common and critical components of education today, 
particularly in higher education, and that some schools require 
students in certain academic programs to study abroad. Commenters noted 
that even the Federal government, on the U.S. State Department website, 
encourages students to have international exposure to compete in a 
globalized society. Commenters argued that it would be absurd for the 
Federal government to encourage international exposure for students and 
not protect them in the process because studying abroad is necessary 
for some majors and to prepare for certain careers. Commenters cited 
studies suggesting study abroad increases the risk for sexual 
misconduct against female students and showing how students had to 
alter their career paths in the aftermath of sexual misconduct 
experienced abroad.\908\ One commenter stated that harassment abroad, 
such as by institution-employed chaperones, can derail victims' ability 
to complete their education at their home institution in the United 
States. This commenter stated that for the Department to interpret 
Title IX as providing no recourse for such students is impossible to 
imagine. Commenters asserted that the NPRM tells bad actors they can 
get away with sexual misconduct in foreign programs. Commenters 
asserted that study abroad students are already uniquely vulnerable and 
less likely to report to foreign local authorities because, for 
example, they may be unfamiliar with the foreign legal system, they 
share housing with the perpetrators, and there may be language 
barriers, fear of retaliation or social isolation, and fewer available 
support services. Commenters further argued that because crime 
occurring overseas cannot be prosecuted in the U.S, filing a Title IX 
report with the recipient might be the survivor's only option. 
Commenters contended that the NPRM may have the effect of discouraging 
students from studying abroad and learning about foreign cultures and 
languages which would run contrary to the fundamental purpose of 
education to foster curiosity and discovery.
---------------------------------------------------------------------------

    \908\ Commenters cited, e.g.: Matthew Kimble, et al., Study 
Abroad Increases Risk for Sexual Assault in Female Undergraduates: A 
Preliminary Report, 5 Psychol. Trauma: Theory, Research, Practice, & 
Pol'y 5 (2013).
---------------------------------------------------------------------------

    Discussion: We acknowledge the concerns raised by many commenters 
that the final regulations would not extend Title IX protections to 
incidents of sexual misconduct occurring against persons outside the 
United States, and the impact that this jurisdictional limitation might 
have on the safety of students participating in study abroad programs. 
However, by its plain text, the Title IX statute does not have 
extraterritorial application. Indeed, Title IX states that ``[n]o 
person in the United States shall, on the basis of sex be excluded from 
participation in, be denied the benefits of, or be subjected to 
discrimination under any education program or activity receiving 
Federal financial assistance[.]'' \909\ The Department believes a plain 
meaning interpretation of a statute is most consistent with fundamental 
rule of law principles, ensures predictability, and gives effect to the 
intent of Congress. Courts have recognized a canon of statutory 
construction that ``Congress ordinarily intends its statutes to have 
domestic, not extraterritorial, application.'' \910\ This canon rests 
on presumptions that Congress is mainly concerned with domestic 
conditions and seeks to avoid unintended conflicts between our laws and 
the laws of other nations.\911\ If Congress intended Title IX to have 
extraterritorial application, then it could have made that intention 
explicit in the text when it was passed in 1972, and Congress could 
amend Title IX to apply to a recipient's education programs or 
activities located outside the United States if Congress so chooses. 
The Federal government's encouragement of international experiences, 
such as study abroad, is not determinative of Title IX's intended 
scope. The U.S. Supreme Court most recently acknowledged the 
presumption against extraterritoriality in Kiobel v. Royal Dutch 
Petroleum \912\ and Morrison v. National Australian Bank.\913\ In 
Morrison, the Court reiterated the ``longstanding principle of American 
law that legislation of Congress, unless a contrary intent appears, is 
meant to apply only within the territorial jurisdiction of the United 
States.'' \914\ The Court concluded that ``[w]hen a statute gives no 
clear indication of

[[Page 30206]]

extraterritorial application, it has none.'' \915\
---------------------------------------------------------------------------

    \909\ 20 U.S.C. 1681(a) (emphasis added).
    \910\ Small v. United States, 544 U.S. 385, 388-89 (2005).
    \911\ Smith v. United States, 507 U.S. 197, 204 (1993).
    \912\ 133 S. Ct. 1659 (2013).
    \913\ 561 U.S. 247 (2010).
    \914\ Id. at 255.
    \915\ Id.
---------------------------------------------------------------------------

    Very few Federal cases have addressed whether Title IX applies 
extraterritorially to allegations of sex discrimination occurring 
abroad, and Federal district courts have reached different results in 
these cases.\916\ To date, no Federal circuit has addressed this issue. 
Commenters noted that the court in King v. Board of Control of Eastern 
Michigan University \917\ applied Title IX to a claim of sexual 
harassment occurring overseas during a study abroad program; the 
Federal district court reasoned that study abroad programs are 
educational operations of the recipient that ``are explicitly covered 
by Title IX and which necessarily require students to leave U.S. 
territory in order to pursue their education.'' The court emphasized 
that Title IX's scope extends to ``any education program or activity'' 
of a recipient, which presumably would include the recipient's study 
abroad programs. While the Department agrees that a recipient's study 
abroad programs may constitute education programs or activities of the 
recipient, the Department agrees with the rationale applied by a 
Federal district court in Phillips v. St. George's University \918\ 
that regardless of whether a study abroad program is part of a 
recipient's education program or activity, Title IX does not have 
extraterritorial application. The court in Phillips noted that nothing 
in the Title IX statute's plain language indicates that Congress 
intended it to apply outside the U.S. and that the plain meaning of 
``person in the United States'' suggests that Title IX only applies to 
persons located in the United States, even when that person is 
participating in a recipient's education program or activity outside 
the United States.
---------------------------------------------------------------------------

    \916\ See Robert J. Aalberts et al., Studying is Dangerous? 
Possible Federal Remedies for Study Abroad Liability, 41 Journal Of 
Coll. & Univ. L. 189, 210-13 (2015).
    \917\ 221 F. Supp. 2d 783 (E.D. Mich. 2002).
    \918\ No. 07-CV-1555, 2007 WL 3407728 (E.D.N.Y. Nov. 15, 2007).
---------------------------------------------------------------------------

    Both Phillips and King were decided before the Supreme Court's 
Morrison and Kiobel opinions, and the Department doubts that the 
rationale applied by the court in King would survive analysis under 
those Supreme Court decisions, which emphasized the importance of the 
presumption against extraterritoriality of statutes passed by Congress. 
We find the Phillips Court's reasoning to be well-founded, especially 
in light of the later-decided Supreme Court cases regarding 
extraterritoriality, and we believe the jurisdictional limitation on 
extraterritoriality contained in the final regulations is wholly 
consistent with the text of the Title IX statute and with the 
presumption against extraterritoriality recognized numerous times by 
the Supreme Court. We further note that the Supreme Court acknowledges 
that where Congress intends for its statutes to apply outside the 
United States, Congress knows how to codify that intent.\919\ When 
Congress has codified such intent in other Federal civil rights laws, 
Congress has addressed issues that arise with extraterritorial 
application such as potential conflicts with foreign laws and 
procedures.\920\ Based on the presumption against extraterritoriality 
reinforced by Supreme Court decisions and the plain language in the 
Title IX statute limiting protections to persons ``in the United 
States,'' the Department believes that the Department does not have 
authority to declare that the presumption against extraterritoriality 
has been overcome, absent further congressional or Supreme Court 
direction on this issue.
---------------------------------------------------------------------------

    \919\ E.g., Equal Employment Opportunity Comm'n v. Arabian Am. 
Oil Co. (Aramco), 499 U.S. 244, 258 (1991) (``Congress's awareness 
of the need to make a clear statement that a statute applies 
overseas is amply demonstrated by the numerous occasions on which it 
has expressly legislated the extraterritorial application of a 
statute.'').
    \920\ E.g., Older Americans Act Amendments of 1984, Public Law 
98-459, 802, 98 Stat. 1767, 1792 (codified at 29 U.S.C. 623, 630 
(amending the Age Discrimination Employment Act of 1967 to apply 
outside the United States)); 29 U.S.C. 623(f) (addressing potential 
conflicts of laws issues).
---------------------------------------------------------------------------

    As a practical matter, we also note that schools may face 
difficulties interviewing witnesses and gathering evidence in foreign 
locations where sexual misconduct may have occurred. Recipients may not 
be in the best position to effectively investigate alleged sexual 
misconduct in other countries. Such practical considerations weigh in 
favor of the Department looking to Congress to expressly state whether 
Congress intends for Title IX to apply in foreign locations.
    We emphasize that nothing in these final regulations prevents 
recipients from initiating a student conduct proceeding or offering 
supportive measures to address sexual misconduct against a person 
outside the United States. We have revised Sec.  106.45(b)(3) to 
explicitly state that even if a recipient must dismiss a formal 
complaint for Title IX purposes because the alleged sexual harassment 
did not occur against a person in the U.S., such a dismissal is only 
for purposes of Title IX, and nothing precludes the recipient from 
addressing the alleged misconduct through the recipient's own code of 
conduct. Contrary to claims made by some commenters, it is not true 
that the final regulations leave students studying abroad with no 
recourse in the event of sexual harassment or sexual assault. 
Recipients remain free to adopt disciplinary systems to address sexual 
misconduct committed outside the United States, to protect their 
students from such harm, and to offer supportive measures such as 
mental health counseling or academic adjustments for students impacted 
by misconduct committed abroad. As such, we believe the final 
regulations will not discourage students from participating in study 
abroad programs that may enrich their educational experience.
    Changes: None.
Consistency With Federal Law and Departmental Practice
    Comments: Some commenters asserted that excluding extraterritorial 
application of Title IX would conflict with other Federal laws and past 
practice of the Department. One commenter stated that the NPRM is 
inconsistent with the Department's own interpretation of the VAWA 
amendments to the Clery Act, and argued that carving out conduct 
occurring abroad conflicts with Clery Act language regarding 
geographical jurisdiction. This commenter argued that if a 
postsecondary institution has a separate campus abroad or owns or 
controls a building or property abroad that is used for educational 
purposes and used by students, the postsecondary institution must 
disclose the Clery Act crimes that occur there. The commenter suggested 
it would be illogical to require recipients to make such disclosures 
and yet not address the same underlying misconduct and that this puts 
recipients in a precarious position. Other commenters argued that the 
Department should interpret Title IX as protecting persons enrolled in 
education programs or activities the recipient conducts or sponsors 
abroad, as this interpretation would be consistent with application of 
other Federal civil rights laws, such as Title VI, and that the 
proposed rules' approach conflicts with the Department's past approach 
of requiring recipients to address sexual misconduct that could limit 
participation in education programs or activities overseas.
    Discussion: We disagree with the commenters who contended that 
excluding application of Title IX to sexual misconduct committed 
outside the United States raises untenable conflict with the past 
practice of the Department and other Federal laws.

[[Page 30207]]

With respect to past practice of the Department, OCR has never 
explicitly addressed in any of its guidance whether Title IX has 
extraterritorial application. For example, though the withdrawn 2014 
Q&A stated that ``[u]nder Title IX, a school must process all 
complaints of sexual violence, regardless of where the conduct 
occurred, to determine whether the conduct occurred in the context of 
an education program or activity,'' \921\ it included an illustrative 
list of covered ``[o]ff-campus education programs and activities'' such 
as activities occurring at fraternity or sorority houses and school-
sponsored field trips; none of these examples involved an education 
program or activity outside the United States.\922\ However, to the 
extent that application of the ``person in the United States'' language 
in the final regulations departs from past Department guidance or 
practice, the Department believes that the jurisdictional limitation on 
extraterritoriality contained in the final regulations is reasonable 
and wholly consistent with the plain text of the Title IX statute and 
with the presumption against extraterritoriality recognized numerous 
times by the U.S. Supreme Court.
---------------------------------------------------------------------------

    \921\ See 2014 Q&A at 29.
    \922\ Id.
---------------------------------------------------------------------------

    With respect to other Federal law, we acknowledge that certain 
misconduct committed overseas is reportable under the Clery Act where, 
for example, the misconduct occurs in a foreign location that a U.S. 
institution owns and controls. However, the two laws (Title IX and the 
Clery Act) do not have the same scope or purpose,\923\ even though the 
two laws often intersect for postsecondary institution recipients who 
are also subject to the Clery Act. The Department does not perceive a 
conflict between a recipient's obligation to comply with reporting 
obligations under the Clery Act and response obligations under Title 
IX. As discussed above, both the text of the Title IX statute and case 
law on the topic of extraterritoriality make it clear that Title IX 
does not apply to sex discrimination against a person outside the 
United States.
---------------------------------------------------------------------------

    \923\ See ``Background'' subsection in ``Clery Act'' subsection 
of the ``Miscellaneous'' section of this preamble.
---------------------------------------------------------------------------

    With respect to Title VI, this statute, like Title IX, expressly 
limits its application to domestic discrimination with its opening 
words ``No person in the United States . . .'' and commenters provided 
no example of a Federal court or Department application of Title VI to 
conduct occurring outside the United States. Nonetheless, the final 
regulations are focused on administrative enforcement of Title IX, and 
for reasons discussed previously, the Department does not believe that 
the statutory text or judicial interpretations of Title IX overcome the 
presumption against extraterritoriality that applies to statutes passed 
by Congress.
    Changes: None.
Constitutional Equal Protection
    Comments: One commenter asserted that excluding extraterritorial 
application of Title IX may raise Constitutional issues under the 
Fourteenth Amendment Equal Protection Clause. This commenter argued 
that experiencing sexual victimization in study abroad programs 
detrimentally affects the student-survivor's education, and the 
Fourteenth Amendment guarantees these students equal protection, yet 
the NPRM would leave these students outside the scope of Title IX 
protection and deprive them of equal protection.
    Discussion: We disagree with the contention that excluding 
extraterritorial application of Title IX may violate the Fourteenth 
Amendment Equal Protection Clause. As an initial matter, the applicable 
level of scrutiny under the Equal Protection Clause to any differential 
treatment of students under the Sec.  106.44(a) ``against a person in 
the United States'' limitation would be the rational basis test. A 
heightened level of scrutiny would apply where a suspect or quasi-
suspect classification is involved, such as race or sex. But, as here, 
where no such suspect or quasi-suspect classification is involved and 
the final regulations may treat students differently due to the 
geographic location of misconduct occurring outside the United States, 
the rational basis test applies. Under the rational basis test, a law 
or governmental action is valid under the Equal Protection Clause so 
long as it is rationally related to a legitimate government 
interest.\924\ With respect to Title IX, Congress made a rational 
determination that recipients should only be held liable for misconduct 
that occurs within the United States. The statute's explicit reference 
to ``[n]o person in the United States'' in 20 U.S.C. 1681(a) reflects 
this jurisdictional limitation. To hold recipient responsible for 
misconduct that took place outside the country could be unrealistically 
demanding and lead to open-ended liability, and if Congress intended 
that result, then Congress could have expressly stated its intent for 
Title IX to apply overseas when enacting Title IX, and can amend Title 
IX to so state. The Department believes that the reference to ``against 
a person in the United States,'' in Sec.  106.44(a), appropriately 
reflects both the plain meaning of the statutory text and congressional 
intent that Title IX is focused on eradicating sex discrimination in 
domestic education programs or activities. The Department reiterates 
that recipients remain free under the final regulations to use their 
own disciplinary codes to address sexual harassment committed abroad 
and to extend supportive measures to students affected by sexual 
misconduct outside the United States.
---------------------------------------------------------------------------

    \924\ F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993) 
(holding that in areas of social and economic policy, statutory 
classification that neither proceeds along suspect lines nor 
infringes fundamental constitutional rights must be upheld against 
equal protection challenge if there is any reasonably conceivable 
state of facts that could provide rational basis for 
classification).
---------------------------------------------------------------------------

    Changes: None.
Impact on International or Foreign Exchange Students in the U.S.
    Comments: A few commenters asserted the proposed rules' limitation 
with respect to persons ``in the United States'' may be detrimental to 
survivors who are international students whose visa status depends on 
academic performance. One commenter expressed concern that Sec.  
106.44(a) would exclude foreign exchange students in the U.S. from 
Title IX coverage, arguing that the Department should not treat foreign 
exchange students as undeserving of the same protection as students 
born in the United States.
    Discussion: The jurisdictional limitation that sexual harassment 
occurred against ``a person in the United States'' is not a limitation 
that protects only U.S. citizens; international students or foreign 
students studying in the United States are entitled to the same 
protections under Title IX as any other individuals. Title IX states 
that ``[n]o person in the United States'' shall be subject to 
discrimination based on sex. It is well-settled that the word 
``person'' in this context includes citizens and non-citizens alike. 
Title IX protects every individual in the U.S. against discrimination 
on the basis of sex in education programs or activities receiving 
Federal financial assistance, regardless of citizenship or legal 
residency.
    Changes: None.
Section 106.44(a) Deliberate Indifference Standard
    Comments: Many commenters were supportive of the deliberate 
indifference standard and several argued that it is a sufficient 
standard to hold institutions

[[Page 30208]]

accountable for failing to address allegations of sexual misconduct in 
an appropriate manner. Many commenters favored the deliberate 
indifference standard because it affords institutions greater 
discretion to handle Title IX cases in a manner that is most consistent 
with the institution's educational mission and level of resources.
    In contrast, other commenters advocated for the Department to 
return to the ``reasonableness'' standard because it affords recipients 
less discretion in their handling of Title IX complaints. These 
commenters argued that the reasonableness standard strikes the 
necessary balance between forcing schools to make certain policy 
changes, such as adopting due process protections in their grievance 
procedures, and granting deference. Other commenters argued that 
because the deliberate indifference standard is couched in terms of a 
safe harbor and coupled with ``highly prescriptive mechanism[s]'' under 
Sec.  106.44 and Sec.  106.45 it actually provides recipients with very 
little to no discretion in practice.
    Many commenters expressed the general concern that lowering the 
``reasonableness'' standard to the ``deliberate indifference'' standard 
allows schools to investigate fewer allegations, punish fewer bad 
actors, and would shield schools from administrative accountability 
even in cases where schools mishandle complaints, fail to provide 
effective support, and wrongly determine against the weight of the 
evidence that the accused was not responsible for the misconduct. One 
commenter compared the deliberate indifference standard in the proposed 
rules to the application of the deliberate indifference standard in the 
prison context under the Eighth Amendment,\925\ arguing that if 
finalized the deliberate indifference standard would apply more 
stringently in the Title IX context and provide greater institutional 
protection to schools because it would be difficult to imagine any 
scenario where an institution could be found deliberately indifferent.
---------------------------------------------------------------------------

    \925\ Commenter cited: Farmer v. Brennan, 511 U.S. 825 (1994).
---------------------------------------------------------------------------

    Some commenters argued that the deliberate indifference standard is 
only appropriate in actions for private remedies rather than public 
remedies, and asserted that the 2001 Guidance acknowledged this 
difference. Some commenters contended that the deliberate indifference 
standard is wholly inappropriate in the context of administrative 
enforcement, arguing that because the Department only demands equitable 
remedies of schools, in the form of policy changes, schools do not 
require the additional protection afforded by the deliberate 
indifference standard that applies in private lawsuits for money 
damages against schools. Other commenters noted that the deliberate 
indifference standard has not been adopted in the context of any of the 
other civil rights statutes OCR is charged with enforcing.
    Various commenters indicated that more clarity is needed with 
respect to what the deliberate indifference standard requires of 
recipients in the absence of a formal complaint of sexual harassment. 
Some commenters requested that the Department include a definition for 
deliberate indifference. Many commenters critiqued the language used to 
convey the standard, expressing the concern that a school's response 
could be indifferent or unreasonable and not be in violation of Title 
IX so long as they were not deliberately indifferent or clearly 
unreasonable. Some commenters expressed the concern that the word 
``deliberate'' implies an intentionality element, asserting that intent 
is difficult to prove. Other commenters believed the standard was too 
vaguely worded, provided too much deference to the institutions, and 
would always be interpreted in favor of the schools. Some commenters 
argued that the deliberate indifference standard would effectively deny 
the complainant any meaningful process because an institution could 
dismiss a complaint after determining that the alleged conduct does not 
fall within its interpretation of the sexual harassment definition.
    Some suggested the Department revise the proposed rules to impose a 
different standard on schools in circumstances where the schools are 
responding to allegations against someone in a position of authority, 
pointing to the misconduct of Larry Nassar at Michigan State 
University.
    Discussion: The Department appreciates the commenters' support of 
the deliberate indifference standard and agrees that the deliberate 
indifference standard affords recipients an appropriate amount of 
discretion to address sexual misconduct in our Nation's schools while 
holding recipients accountable if their response is clearly 
unreasonable in light of the known circumstances. The Department, 
however, also recognizes that too much discretion can result in 
unintended confusion and uncertainty for both complainants who deserve 
a meaningful response and careful consideration of their reports, and 
for respondents who should be punished only after they are determined 
to be responsible through a fair process. Since the implementing 
regulations were first issued in 1975, the Department has observed, and 
many stakeholders, including complainants and respondents, have 
informed the Department through public comment, that complainants and 
respondents have experienced various pitfalls and implementation 
problems from a lack of clarity with respect to recipients' obligations 
under Title IX. As stated in the proposed regulations, the lack of 
clear regulatory standards has contributed to processes that have not 
been fair to the parties involved, have lacked appropriate procedural 
protections, and have undermined confidence in the reliability of the 
outcomes of investigations of sexual harassment complaints. For the 
reasons stated in the ``Adoption and Adaption of the Supreme Court's 
Framework to Address Sexual Harassment'' section of this preamble, the 
Department will maintain the deliberate indifference standard in the 
final regulations, with revisions to Sec.  106.44(a) that specify 
certain actions a recipient must take in order to not be deliberately 
indifferent.
    In response to commenters' concerns that the deliberate 
indifference standard leaves recipients too much leeway to decide on an 
appropriate response, the Department revises Sec.  106.44(a) to include 
specific actions that a recipient must take as part of its non-
deliberately indifferent response. Section 106.44(a) requires that a 
recipient's response treat complainants and respondents equitably by 
offering supportive measures as defined in Sec.  106.30 to a 
complainant, and by following a grievance process that complies with 
Sec.  106.45 before the imposition of any disciplinary sanctions or 
other actions that are not supportive measures as defined in Sec.  
106.30, against a respondent.\926\ As commenters have stated, many 
complainants would like supportive measures and do not necessarily wish 
to pursue a formal complaint and grievance process, although they 
should be informed of the process for filing a formal complaint. The 
Department wishes to respect the autonomy and wishes of a complainant 
throughout these final regulations, and recipients should also respect 
a complainant's wishes to the degree

[[Page 30209]]

possible. Respondents also should not be punished for allegations of 
sexual harassment until after a grievance process that complies with 
Sec.  106.45, as such a grievance process provides notice of the 
allegations to both complainants and respondents as well as a 
meaningful opportunity for both complainants and respondents to be 
heard. Additionally, the Title IX Coordinator must promptly contact the 
complainant to discuss the availability of supportive measures as 
defined in Sec.  106.30, consider the complainant's wishes with respect 
to supportive measures, inform the complainant of the availability of 
supportive measures with or without the filing of a formal complaint, 
and explain to the complainant the process for filing a formal 
complaint. A recipient should engage in a meaningful dialogue with the 
complainant to determine which supportive measures may restore or 
preserve equal access to the recipient's education program or activity 
without unreasonably burdening the other party, including measures 
designed to protect the safety of all parties or the recipient's 
educational environment, or deter sexual harassment. A recipient must 
offer each complainant supportive measures, and a recipient will have 
sufficiently fulfilled its obligation to offer supportive measures as 
long as the offer is not clearly unreasonable in light of the known 
circumstances, and so long as the Title IX Coordinator has contacted 
the complainant to engage in the interactive process also described in 
revised Sec.  106.44(a). The Department acknowledges that there may be 
specific instances in which it is impossible or impractical to provide 
supportive measures. For example, the recipient may have received an 
anonymous report or a report from a third party and cannot reasonably 
determine the identity of the complainant to promptly contact the 
complainant. Similarly, if a complainant refuses the supportive 
measures that a recipient offers (and the supportive measures offered 
are not clearly unreasonable in light of the known circumstances) and 
instead insists that the recipient take punitive action against the 
respondent without a formal complaint and grievance process under Sec.  
106.45, the Department will not deem the recipient's response to be 
clearly unreasonable in light of the known circumstances. If a 
recipient does not provide a complainant with supportive measures, then 
the recipient must document the reasons why such a response is not 
clearly unreasonable in light of the known circumstances, pursuant to 
revised Sec.  106.45(b)(10)(ii). Offering supportive measures to every 
complainant and documenting why not providing supportive measures is 
not clearly unreasonable in light of the known circumstances are some 
of the actions required under these final regulations but not expressly 
required under case law describing the deliberate indifference 
standard. These actions are required as part of the Department's 
administrative enforcement of the deliberate indifference standard.
---------------------------------------------------------------------------

    \926\ For discussion of what is intended by refraining from 
imposing disciplinary sanctions and other actions that are ``not 
supportive measures'' against a respondent, see the ``Supportive 
Measures'' subsection of the ``Section 106.30 Definitions'' section 
of this preamble. We use the same language to describe refraining 
from punishing a respondent with following the Sec.  106.45 
grievance process, in Sec.  106.45(b)(1)(i).
---------------------------------------------------------------------------

    Although we acknowledge the concerns of commenters urging the 
Department to abandon the deliberate indifference standard and return 
to the reasonableness standard, the Department disagrees for various 
reasons. As more fully explained in the ``Deliberate Indifference'' 
subsection of the ``Adoption and Adaption of the Supreme Court's 
Framework to Address Sexual Harassment'' section, the Department 
departs from its prior guidance that set forth a standard more like 
reasonableness, or even strict liability, instead of deliberate 
indifference. The Department's past guidance and enforcement practices 
have taken the position that a recipient's response to sexual 
harassment should be judged under a standard that expected the 
recipient's response to effectively stop harassment and prevent its 
recurrence.\927\ This approach did not provide recipients adequate 
flexibility to make decisions affecting their students. For example, 
the Department's guidance required recipients to always investigate any 
report of sexual harassment, even when the complainant only wanted 
supportive measures and did not want an investigation.\928\ Such a 
rigid requirement to investigate every report of sexual harassment in 
every circumstance intrudes into complainants' privacy without concern 
for complainants' autonomy and wishes and, thus, may chill reporting of 
sexual harassment. Additionally, the Department's past guidance did not 
distinguish between an investigation that leads to the imposition of 
discipline and an inquiry to learn more about a report of sexual 
harassment.\929\ Deliberate indifference provides appropriate 
flexibility for recipients while holding recipients accountable for 
meaningful responses to sexual harassment that prioritize complainants' 
wishes.\930\
---------------------------------------------------------------------------

    \927\ 2001 Guidance at iv, vi.
    \928\ 2001 Guidance at 13, 15, 18; 2011 Dear Colleague Letter at 
4.
    \929\ 2001 Guidance at 13, 15, 18; 2011 Dear Colleague Letter at 
4.
    \930\ The final regulations specify that a recipient's non-
deliberately indifferent response must include investigating and 
adjudicating sexual harassment allegations, when a formal complaint 
is filed by a complainant or signed by the recipient's Title IX 
Coordinator. Sec.  106.44(b)(1); Sec.  106.30 (defining ``formal 
complaint''); Sec.  106.45(b)(3)(i).
---------------------------------------------------------------------------

    The Department disagrees that these final regulations are highly or 
overly prescriptive such that recipients have no discretion. Recipients 
retain discretion to determine which supportive measures to offer and 
must document why providing supportive measures is not clearly 
unreasonably in light of the known circumstances, if the recipient does 
not provide any supportive measures. The Department will not second 
guess the supportive measures that a recipient offers as long as these 
supportive measures are not clearly unreasonable in light of the known 
circumstances. Similarly, the Department believes that the grievance 
process prescribed by Sec.  106.45 creates a standardized framework for 
resolving formal complaints of sexual harassment under Title IX while 
leaving recipients discretion to adopt rules and practices not required 
under Sec.  106.45.\931\ The Department notes that these final 
regulations do not include the safe harbor provisions proposed in the 
NPRM, and the Department explains its decision for not including these 
safe harbors in the ``Recipient's Response in Specific Circumstances'' 
section of this preamble.
---------------------------------------------------------------------------

    \931\ The revised introductory sentence in Sec.  106.45(b) 
provides that any provisions, rules, or practices other than those 
required by this section that a recipient adopts as part of its 
grievance process for handling formal complaints of sexual 
harassment as defined in Sec.  106.30, must apply equally to both 
parties. The final regulations grant flexibility to recipients in 
other respects; see the discussion in the ``Other Language/
Terminology Comments'' subsection of the ``Section 106.30 
Definitions'' section of this preamble (noting that recipients may 
decide whether to calculate time frames using calendar days, school 
days, or other method); Sec.  106.45(b)(6)(i) (allowing, but not 
requiring, live hearings to be held virtually through use of 
technology); Sec.  106.45(b)(5)(vi) (removing the requirement that 
evidence gathered in the investigation be provided to the parties 
using a file-sharing platform); Sec. Sec.  106.45(b)(1)(vii), 
106.45(b)(7)(i) (giving recipients a choice between using the 
preponderance of the evidence standard or the clear and convincing 
evidence standard).
---------------------------------------------------------------------------

    Contrary to some commenters' concerns, the deliberate indifference 
standard does not relieve recipients of their obligation to respond to 
every known allegation of sexual harassment. The deliberate 
indifference standard would also not allow recipients to investigate 
fewer allegations of sexual harassment or punish fewer respondents 
after a finding of responsibility. Rather, under these final 
regulations, recipients are specifically required to investigate 
allegations in a formal complaint (and must explain to each complainant 
the option of filing a formal complaint), and must provide a 
complainant with

[[Page 30210]]

remedies any time a respondent is found responsible for sexual 
harassment pursuant to Sec.  106.45(b)(1)(i). Even where a formal 
investigation is not required (because neither the complainant nor the 
Title IX Coordinator has filed or signed a formal complaint, or because 
a complainant is not participating in or attempting to participate in 
the recipient's education program or activity at the time of filing), 
the deliberate indifference standard requires that a recipient's 
response is not clearly unreasonable in light of known circumstances. 
Contrary to commenters' arguments, this standard requires more than for 
a recipient to respond in some minimal or ineffective way because 
minimal and ineffective responses would inevitably qualify as ``clearly 
unreasonable'' and because as revised, Sec.  106.44(a) imposes 
specific, mandatory obligations on a recipient with respect to a 
recipient's response to each complainant. Given that the deliberate 
indifference standard involves an analysis of whether a response was 
clearly unreasonable in light of the known circumstances, there are 
many different factual circumstances under which a recipient's response 
may be deemed deliberately indifferent.
    Section 106.44(a) requires a recipient to respond promptly where 
the recipient has actual knowledge of sexual harassment; a recipient 
may have actual knowledge of sexual harassment even where no person has 
reported or filed a formal complaint about the sexual harassment. For 
example, employees in an elementary or secondary school may observe 
sexualized insults scrawled on school hallways, and even where no 
student has reported the incident, the school employees' notice of 
conduct that could constitute sexual harassment as defined in Sec.  
106.30 (i.e., unwelcome conduct that a reasonable person would conclude 
is so severe, pervasive, and objectively offensive that it effectively 
denies a person equal access to education) charges the recipient with 
actual knowledge, and the recipient must respond in a manner that is 
not clearly unreasonable in light of the known circumstances, which 
could include the recipient removing the sexually harassing insults and 
communicating to the student body that sexual harassment is 
unacceptable. By way of further example, if a Title IX Coordinator were 
to receive multiple reports of sexual harassment against the same 
respondent, as part of a non-deliberately indifferent response the 
Title IX Coordinator may sign a formal complaint to initiate a 
grievance process against the respondent, even where no person who 
alleges to be the victim wishes to file a formal complaint. The 
deliberate indifference standard does not permit recipients to ignore 
or respond inadequately to sexual harassment of which the recipient has 
become aware, but the deliberate indifference standard appropriately 
recognizes that a recipient's prompt response will differ based on the 
unique factual circumstances presented in each instance of sexual 
harassment.
    In response to comments that the Gebser/Davis liability standard 
(i.e., deliberate indifference) is and should be used only for monetary 
damages in private litigation, the Department notes that courts have 
used the Gebser/Davis standard in considering and awarding injunctive 
relief.\932\ Additionally, in Gebser, the Supreme Court acknowledged 
that the Department of Education has the authority to ``promulgate and 
enforce requirements that effectuate [Title IX's] non-discrimination 
mandate.'' \933\ In promulgating these final regulations, the 
Department is choosing to do just that. The Department is not required 
to adopt identical standards for all civil rights laws under the 
Department's enforcement authority, and after carefully considering the 
rationale relied upon by the Supreme Court in the context of sexual 
harassment under Title IX, the Department adopts the deliberate 
indifference standard articulated by the Supreme Court, tailored for 
administrative enforcement of recipients' responses to sexual 
harassment. The Department believes it would be beneficial for 
recipients and students alike if the administrative standards governing 
recipients' responses to sexual harassment were aligned with the 
standards developed by the Supreme Court in private actions, while 
ensuring that through administrative enforcement the Department holds 
recipients accountable for taking specific actions that the Gebser/
Davis framework does not require.\934\
---------------------------------------------------------------------------

    \932\ Fitzgerald v. Barnstable Sch. Dist., 555 U.S. 246, 255 
(2009) (``In addition, this Court has recognized an implied private 
right of action . . . In a suit brought pursuant to this private 
right, both injunctive relief and damages are available.'') 
(internal citations omitted; emphasis added); Hill v. Cundiff, 797 
F.3d 948, 972-73 (11th Cir. 2015) (reversing summary judgment 
against plaintiff's claims for injunctive relief because a jury 
could find that the alleged conduct was ``severe, pervasive, and 
objectively offensive'' under Davis); B.H. ex rel. Hawk v. Easton 
Area Sch. Dist., 725 F.3d 293, 322-23 (3d Cir. 2013) (upholding 
preliminary injunction against school for banning students from 
wearing bracelets because the school failed to show that the 
``bracelets would breed an environment of pervasive and severe 
harassment'' under Davis); Haidak v. Univ. of Mass. at Amherst, 299 
F. Supp. 3d 242, 270 (D. Mass. 2018) (denying plaintiff's request 
for a preliminary injunction because he failed to show that the 
school was deliberately indifferent to an environment of severe and 
pervasive discriminatory conduct under Davis), aff'd in part, 
vacated in part, remanded by Haidak v. Univ. of Mass.-Amherst, 933 
F.3d 56 (1st Cir. 2019).
    \933\ Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 292 
(1998).
    \934\ E.g., Sec.  106.44(a) specifically requires that a 
recipient's mandatory response to each report of sexual harassment 
must include promptly offering supportive measures to the 
complainant, and must avoid imposing disciplinary sanctions against 
a respondent without following the Sec.  106.45 grievance process; 
Sec.  106.44(b)(1) requires a recipient to investigate sexual 
harassment allegations made in a formal complaint; Sec.  106.45 
prescribes specific procedural protections for complainants, and 
respondents, when a recipient investigates and adjudicates formal 
complaints.
---------------------------------------------------------------------------

    The Department also believes that the language used to describe the 
deliberate indifference standard is sufficiently clear. The Department 
defines the standard according to the conventional understanding of the 
standard, that is, to be deliberately indifferent means to have acted 
in a way that is ``clearly unreasonable in light of the known 
circumstances'' consistent with the formulation of the deliberate 
indifference standard offered by the Supreme Court in Davis.\935\ The 
Department appreciates the opportunity to clarify that the term 
``deliberate'' as used in the standard does not require an element of 
subjective intent to harm, or bad faith, or similar mental state, on 
the part of a recipient's officials, administrators, or employees. 
Rather, the final regulations clearly state in Sec.  106.44(a) that a 
recipient with actual knowledge of sexual harassment against a person 
in the United States occurring in its education program or activity 
must respond in a manner that is ``not clearly unreasonable,'' 
including by taking certain specific steps such as offering supportive 
measures to a complainant. Accordingly, the Department will hold a 
recipient responsible for compliance regardless of whether acting in a 
clearly unreasonable way, in light of the known circumstances, is the 
result of malice, incompetence, ignorance, or other mental state of the 
recipient's officials, administrators, or employees. As adapted for 
administrative enforcement, the deliberate indifference standard 
sufficiently ensures that a recipient takes steps to address student 
safety and provides equal access to the recipient's education program 
or activity while preserving a recipient's discretion to address the 
unique facts and circumstances presented by any particular situation 
(for example, a

[[Page 30211]]

recipient's offer of supportive measures as required in Sec.  106.44(a) 
will be evaluated based on whether the recipient offered supportive 
measures to the complainant that, under the facts and circumstances 
presented in an individual complainant's situation, were in fact 
designed to restore or preserve the complainant's equal educational 
access).
---------------------------------------------------------------------------

    \935\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648-49 
(1999); Sec.  106.44(a).
---------------------------------------------------------------------------

    The Department is persuaded by commenters' suggestions that the 
Department should impose stricter, more specific obligations on 
recipients' responses to sexual harassment or sexual harassment 
allegations, including allegations against employees in positions of 
authority. Rather than abandoning the deliberate indifference liability 
standard, the Department adapts that standard for administrative 
enforcement in ways that preserve the benefits of aligning judicial and 
administrative enforcement rubrics, preserve the benefit of the ``not 
clearly unreasonable in light of the known circumstances'' standard's 
deference to unique factual circumstances, yet imposes mandatory 
obligations on every recipient to respond in specific ways to each 
complainant alleged to be victimized by sexual harassment. Adopting the 
Supreme Court's formulation of the deliberate indifference standard, 
while adapting that standard to specify what a recipient must do every 
time the recipient knows of sexual harassment (or allegations of sexual 
harassment), addresses commenters' concerns that the deliberate 
indifference standard as presented in the NPRM did not impose strict 
enough requirements on a recipient to ensure the recipient responds 
supportively and fairly to sexual harassment in its education programs 
or activities.
    In the interest of providing greater clarity, consistency, and 
transparency as to a recipient's obligations under Title IX and what 
students can expect, the Department does not want to overcomplicate the 
regulatory scheme in the final regulations by establishing separate 
standards for when a recipient is handling complaints involving 
different classes of respondents (for example, allegations against 
students, versus allegations against employees). The Department 
believes that expecting a recipient to respond in a manner that is not 
clearly unreasonable in light of the known circumstances appropriately 
requires a recipient to take into account whether the respondent holds 
a position of authority.
    Changes: The Department revised Sec.  106.44(a) to provide that a 
recipient's response must be prompt, and must treat complainants and 
respondents equitably by offering supportive measures as defined in 
Sec.  106.30 to a complainant, and by following a grievance process 
that complies with Sec.  106.45 before the imposition of any 
disciplinary sanctions or other actions that are not supportive 
measures as defined in Sec.  106.30, against a respondent. Section 
Sec.  106.44(a) is also revised to provide that the Title IX 
Coordinator must promptly contact the complainant to discuss the 
availability of supportive measures as defined in Sec.  106.30, 
consider the complainant's wishes with respect to supportive measures, 
inform the complainant of the availability of supportive measures with 
or without the filing of a formal complaint, and explain to the 
complainant the process for filing a formal complaint.

Recipient's Response in Specific Circumstances

Section 106.44(b) Proposed ``Safe Harbors,'' Generally
    Comments: Some commenters praised the safe harbor provisions 
generally for giving colleges and universities the discretion to 
respond to sexual harassment complaints outside the formal grievance 
process. Some commenters also praised the safe harbor provisions for 
identifying specific circumstances under which a recipient can conform 
its response to legal requirements and avoid a finding of deliberate 
indifference.
    Some commenters, although supportive of the safe harbors generally, 
requested that the Department clarify how the safe harbors would work.
    Many commenters disagreed with the Department's use of the term 
``safe harbor'' in the NPRM, because the provisions that provided a 
``safe harbor'' also include mandatory requirements. These commenters 
argued that a safe harbor is conventionally understood as a provision 
that a regulated party can take advantage of to shield itself from 
administrative action, as opposed to something a regulated party is 
required to do. Commenters asserted that ``safe harbors'' are options 
rather than obligations and pointed to the mandatory language contained 
in proposed Sec.  106.44(b)(2) under which the Title IX Coordinator 
would have been required to file a formal complaint upon receiving 
multiple reports against a respondent,\936\ as fundamentally 
inconsistent with the idea of a safe harbor.
---------------------------------------------------------------------------

    \936\ Proposed Sec.  106.44(b)(2) has been removed in the final 
regulations; see discussion under the ``Sec.  Proposed 106.44(b)(2) 
Reports by Multiple Complainants of Conduct by Same Respondent 
[removed in final regulations]'' subsection of the ``Recipient's 
Response in Specific Circumstances'' subsection of the ``Section 
106.44 Recipient's Response to Sexual Harassment, Generally'' 
section of this preamble.
---------------------------------------------------------------------------

    Some commenters criticized the safe harbor provisions as rules 
intended to immunize recipients from a finding of deliberate 
indifference but requiring no more than a minimal response to 
allegations of sexual harassment, contrary to Title IX's express 
intent. Commenters argued that the safe harbor provisions, combined 
with the deliberate indifference standard, curtail the Department's 
ability to independently and comprehensively review a recipient's 
response to sexual harassment allegations, amounting to an abdication 
of the Department's role to enforce Title IX.
    Discussion: The Department appreciates comments in support of the 
two proposed safe harbors. Upon further consideration, the Department 
decided not to include the two proposed safe harbors in these final 
regulations.
    One of the proposed safe harbor provisions provided that if the 
recipient followed a grievance process (including implementing any 
appropriate remedy as required) that complies with Sec.  106.45 in 
response to a formal complaint, the recipient's response to the formal 
complaint would not be deliberately indifferent and would not otherwise 
constitute discrimination under Title IX. The proposed provision was 
meant to provide an assurance that the recipient's response (only as to 
the formal complaint) would not be deemed deliberately indifferent as 
long as a recipient complies with Sec.  106.45. This proposed safe 
harbor left open the possibility that other aspects of the recipient's 
response may be deliberately indifferent. The Department understands 
commenters' concerns that this safe harbor provision may have been 
confusing or misleading by somehow suggesting that compliance with 
Sec.  106.45 is not required, or by suggesting that compliance with 
Sec.  106.45 would have excused a recipient from providing a non-
deliberately indifferent response with respect to matters other than 
conducting a grievance process. The Department is not including this 
proposed safe harbor provision in the final regulations to make it 
clear that recipients are always required to comply with Sec.  106.45 
in response to a formal complaint, and are always required to comply 
with all the obligations specified in Sec.  106.44(a), with or without 
a formal complaint being filed. Indeed, the Department retains the

[[Page 30212]]

mandate in Sec.  106.45(b)(1) and revises this mandate for clarity to 
state: ``In response to a formal complaint, a recipient must follow a 
grievance process that complies with Sec.  106.45.'' The Department did 
not intend to leave the impression that it was immunizing recipients 
with respect to their obligations to address sexual harassment. These 
final regulations require a meaningful response to allegations of 
sexual harassment of which a recipient has notice, when the sexual 
harassment occurs in a recipient's education program or activity 
against a person in the United States.
    The second proposed safe harbor provided that a recipient would not 
be deliberately indifferent when in the absence of a formal complaint 
the recipient offers and implements supportive measures designed to 
effectively restore or preserve the complainant's access to the 
recipient's education program or activity, and the recipient also 
informs the complainant in writing of the right to file a formal 
complaint. This safe harbor is now unworkable and unnecessary in light 
of other revisions made to the proposed regulations, specifically a 
recipient's obligations in Sec.  106.44(a) and Sec.  106.45(b)(10)(ii). 
Under Sec.  106.44(a), a recipient's response must treat complainants 
and respondents equitably by offering the complainant supportive 
measures as defined in Sec.  106.30, and a Title IX Coordinator must 
promptly contact the complainant to discuss the availability of 
supportive measures, consider the complainant's wishes with respect to 
supportive measures, inform the complainant of the availability of 
supportive measures with or without the filing of a formal complaint, 
and explain to the complainant the process for filing a formal 
complaint. The Department revised Sec.  106.45(b)(1) to add a mandate 
that with or without a formal complaint, a recipient must comply with 
Sec.  106.44(a), emphasizing that recipients must offer supportive 
measures to a complainant regardless of whether a complainant chooses 
to file a formal complaint, and recipients must investigate any formal 
complaint that a complaint does choose to file. Additionally, under 
Sec.  106.45(b)(10)(ii), if a recipient does not provide a complainant 
with supportive measures, then the recipient must document why such a 
response was not clearly unreasonable in light of the known 
circumstances. As recipients are now required to offer supportive 
measures to a complainant (not only incentivized to do so by the 
proposed safe harbor) and to document why not providing a complainant 
with supportive measures was not clearly unreasonable in light of the 
known circumstances, the final regulations removes safe harbors and 
instead, the Department will enforce the mandates and requirements in 
the final regulations, including those specified in Sec. Sec.  
106.44(a) and 106.44(b).
    Despite the absence of these safe harbor provisions, recipients 
still have discretion with respect to how to respond to sexual 
harassment allegations in a way that takes into account factual 
circumstances. The final regulations, like the proposed regulations, 
require a recipient to begin the Sec.  106.45 grievance process in 
response to a formal complaint. A recipient retains significant 
discretion under these final regulations, yet must meet specific, 
mandatory obligations that ensure a recipient responds supportively and 
fairly to every allegation of Title IX sexual harassment. For example, 
a recipient may decide which supportive measures to offer a 
complainant, whether to offer an informal resolution process under 
Sec.  106.45(b)(9), whether to allow all parties, witnesses, and other 
participants to appear at the live hearing virtually under Sec.  
106.45(b)(6)(i), and whether to take action under another provision of 
the recipient's code of conduct even if the recipient must dismiss 
allegations in a formal complaint under Sec.  106.45(b)(3)(i), among 
other areas of discretion.
    These final regulations also provide sufficient clarity as to how a 
recipient must respond to sexual harassment, rendering the proposed 
safe harbors unnecessary. For example, Sec.  106.44(a) specifically 
addresses how a recipient's response must treat complainants and 
respondents equitably by offering supportive measures as defined in 
Sec.  106.30 to a complainant, and by following a grievance process 
that complies with Sec.  106.45 before the imposition of any 
disciplinary sanctions or other actions that are not supportive 
measures against a respondent. Section Sec.  106.44(b)(1) also clearly 
mandates that in response to a formal complaint a recipient must follow 
a grievance process that complies with Sec.  106.45, and with or 
without a formal complaint, a recipient must comply with Sec.  
106.44(a). The Department clearly addresses specific circumstances 
throughout these final regulations. For example, the Department 
addresses when a recipient must or may dismiss a formal complaint under 
Sec.  106.45(b)(3) for purposes of sexual harassment under Title IX or 
this part, when a recipient may consolidate formal complaints as to 
allegations of sexual harassment under Sec.  106.45(b)(4), and when an 
informal resolution process may be offered under Sec.  106.45(b)(9), 
among other matters.
    The elimination of the safe harbor provisions proposed in the NPRM 
alleviates and addresses the concerns of commenters who opposed these 
safe harbor provisions.
    Changes: The Department does not include the two safe harbor 
provisions from the NPRM, in proposed Sec.  106.44(b)(1) and proposed 
Sec.  106.44(b)(3).
Section 106.44(b)(1) Mandate To Investigate Formal Complaints and Safe 
Harbor
    Comments: Several commenters supported Sec.  106.44(b)(1), 
asserting that this provision places control in the hands of the 
victims, and prevents victims from having to participate in a grievance 
process against their will. Other commenters opposed this provision, 
arguing that it relieves institutions of the obligation to address 
sexual harassment claims of which they have actual knowledge by 
discouraging institutions from investigating allegations in the absence 
of a formal complaint.
    Many commenters expressed concern that institutions will merely 
``check'' the procedural ``boxes'' outlined in Sec.  106.45 without 
regard for the substantive outcomes of formal grievance processes. Many 
commenters asserted that this proposed safe harbor would only benefits 
respondents, and would provide no benefit to complainants. Other 
commenters asserted that if a recipient fails to follow procedural 
requirements in Sec.  106.45, the safe harbor in Sec.  106.44(b)(1) 
would only hold recipients to the standard of deliberate indifference, 
which commenters argued was too low a standard to ensure that 
recipients comply with the Sec.  106.45 grievance process.
    Many commenters argued that the safe harbor in Sec.  106.44(b)(1) 
provided too little flexibility for institutions to develop their own 
grievance process. Some commenters expressed concern that a recipient 
would not have the flexibility to forgo a grievance process in a 
situation where the recipient determined that the allegations contained 
in a formal complaint were without merit, frivolous, or that the 
allegations had already been investigated. Some commenters asked the 
Department to clarify whether satisfying Sec.  106.45 is the only way, 
or one of many ways, to comply with the proposed rules and receive the 
safe harbor protections of Sec.  106.44(b)(1).

[[Page 30213]]

    Another commenter suggested that the Department add a timeliness 
requirement to Sec.  106.44(b)(1) so that a formal complaint must be 
filed within a certain time frame, in order to avoid prejudice or bias 
against a respondent.
    Discussion: As explained in the ``Section 106.44(b) Proposed `Safe 
harbors,' generally,'' subsection of the ``Recipient's Response in 
Specific Circumstances'' section of this preamble, these final 
regulations do not include the safe harbor provision that if the 
recipient follows a grievance process (including implementing any 
appropriate remedy as required) that complies with Sec.  106.45 in 
response to a formal complaint, the recipient's response to the formal 
complaint is not deliberately indifferent and does not otherwise 
constitute discrimination under Title IX. The Department understands 
commenters' concerns that this safe harbor provision may have been 
confusing or misleading by somehow suggesting that full compliance with 
Sec.  106.45 is not required--that is, by suggesting that a recipient 
must only follow Sec.  106.45 in a way that is not deliberately 
indifferent. The Department is not including this proposed safe harbor 
provision in the final regulations to make it clear that recipients are 
always required to fully comply with Sec.  106.45 in response to a 
formal complaint. Indeed, the Department retains the mandate in Sec.  
106.45(b)(1) and revises this mandate for clarity to state: ``In 
response to a formal complaint, a recipient must follow a grievance 
process that complies with Sec.  106.45.'' The Department also 
recognizes, as many commenters stated, that a complainant may not wish 
to initiate or participate in a grievance process for a variety of 
reasons, including fear of re-traumatization, and the Department 
affirms the autonomy of complainants by making it clear that a 
recipient must investigate and adjudicate when a complainant has filed 
a formal complaint. At the same time, the final regulations ensure that 
complainants must be offered supportive measures with or without filing 
a formal complaint, thus respecting the autonomy of complainants who do 
not wish to initiate or participate in a grievance process by ensuring 
that such complainants receive a supportive response from the recipient 
regardless of also choosing to file a formal complaint. For this 
reason, the Department revised Sec.  106.44(b)(1) to expressly state: 
``With or without a formal complaint, a recipient must comply with 
Sec.  106.44(a).'' Section 106.44(a) requires a recipient to offer a 
complainant supportive measures as part of its prompt, non-deliberately 
indifferent response, whether or not the complainant chooses to file a 
formal complaint.
    The Department disagrees that these final regulations discourage 
recipients from investigating allegations. As explained previously, a 
recipient must investigate a complainant's allegations when the 
complainant chooses to file a formal complaint, and a recipient may 
choose to initiate a grievance process to investigate the complainant's 
allegations even when the complainant chooses not to file a formal 
complaint, if the Title IX Coordinator signs a formal complaint, after 
having considered the complainant's wishes and evaluated whether an 
investigation is not clearly unreasonable in light of the specific 
circumstances. A recipient, however, cannot impose any disciplinary 
sanctions or other actions that are not supportive measures against a 
respondent until after the recipient follows a grievance process that 
complies with Sec.  106.45. The recipient's Title IX Coordinator may 
always sign a formal complaint, as defined in Sec.  106.30, to initiate 
an investigation. The formal complaint triggers the grievance process 
in Sec.  106.45, which provides notice to both parties of the 
investigation and provides them an equal opportunity to participate and 
respond to the allegations of sexual harassment. These final 
regulations protect both complainants and respondents from the 
repercussions of an investigation that they do not know about and 
cannot participate in, and the complainant as well as the respondent 
may choose whether to participate in the grievance process.\937\
---------------------------------------------------------------------------

    \937\ Section 106.71 (added in the final regulations, 
prohibiting retaliation against any individual for exercising rights 
under Title IX, including an individual's right to participate, or 
to choose not to participate, in a Title IX grievance process). See 
the ``Retaliation'' section of this preamble for further discussion.
---------------------------------------------------------------------------

    By eliminating Sec.  106.44(b)(1), the Department makes it clear 
that recipients will not be able to merely ``check boxes'' or escape 
liability just for having a process that appears ``on paper'' to comply 
with Sec.  106.45. We appreciate the opportunity to clarify that the 
Department will evaluate a recipient's compliance with Sec.  106.45 
without regard to whether the recipient was ``deliberately 
indifferent'' in failing to comply with those provisions. In other 
words, the Department may find that the recipient violated any of the 
requirements in Sec.  106.45, whether or not the recipient believes 
that failure to comply was ``not clearly unreasonable.'' As explained 
throughout this preamble, including in the ``Role of Due Process in the 
Grievance Process'' section of this preamble, the Department has 
selected all the provisions of the Sec.  106.45 grievance process as 
those provisions needed to improve the fairness, reliability, 
predictability, and legitimacy of Title IX grievance processes, and 
expects recipients to comply with the entirety of Sec.  106.45. For 
example, the Department may find that a recipient violated Sec.  
106.45(b)(2) if the recipient did not provide the requisite written 
notice of allegations to both parties, even if the recipient believes 
that the recipient had a good reason for refusing to send that initial 
written notice. Similarly, a recipient may violate Sec.  
106.45(b)(5)(ii) if the recipient does not provide an equal opportunity 
for the parties to present witnesses, including fact and expert 
witnesses, and other inculpatory and exculpatory evidence as part of 
the investigation, even if the recipient believes that refusing to do 
so was not clearly unreasonable.
    The Department disagrees that the grievance process prescribed by 
Sec.  106.45 favors respondents or provides no benefits to 
complainants. For reasons explained throughout this preamble, including 
in the ``Role of Due Process in the Grievance Process'' section and the 
``General Support and Opposition to the Sec.  106.45 Grievance 
Process'' section of this preamble, the Department believes that the 
Sec.  106.45 grievance process gives complainants and respondents 
clear, strong procedural rights and protections that foster a fair 
process leading to reliable outcomes. For example, a complainant whose 
allegations of sexual harassment in a formal complaint are dismissed 
may appeal such a dismissal on specific grounds under Sec.  
106.45(b)(8)(i). The grievance process in Sec.  106.45 provides 
consistency, predictability, and transparency as to a recipient's 
obligations and what students can expect when a formal complaint is 
filed. As many commenters appreciated, under the final regulations, if 
the complainant decides to file a formal complaint, this will trigger a 
grievance process that includes the procedural safeguards set forth in 
Sec.  106.45.
    The Department understands commenters' arguments that Sec.  
106.44(b)(1) does not afford recipients flexibility to select a 
grievance process that the recipient prefers over the process 
prescribed in Sec.  106.45. For reasons described in the ``Role of Due 
Process in the Grievance Process'' section of this preamble, and in the 
``General Support and Opposition to the

[[Page 30214]]

Sec.  106.45 Grievance Process'' section of this preamble, the 
Department believes that the grievance process prescribed by Sec.  
106.45 creates a standardized framework for resolving formal complaints 
of sexual harassment under Title IX while leaving recipients discretion 
to adopt rules and practices not required under Sec.  106.45.\938\ We 
reiterate that the Sec.  106.45 grievance process applies only to 
formal complaints alleging sexual harassment as defined in Sec.  
106.30, that occurred in the recipient's education program or activity 
against a person in the United States. These final regulations do not 
dictate what kind of process a recipient should or must use to resolve 
allegations of other types of misconduct. Because a recipient's 
response to Title IX sexual harassment is part of a recipient's 
obligation to protect every student's Federal civil right to 
participate in education programs and activities free from sex 
discrimination a recipient's response is not simply a matter of the 
recipient's own codes of conduct or policies; a recipient's response is 
a matter of fulfilling obligations under a Federal civil rights law. 
The Department has carefully crafted a standardized grievance process 
for resolving allegations of Title IX sexual harassment so that every 
student (and employee) receives the benefit of transparent, 
predictable, consistent resolution of formal complaints that allege sex 
discrimination in the form of sexual harassment under Title IX.
---------------------------------------------------------------------------

    \938\ The revised introductory sentence in Sec.  106.45(b) 
provides that any provisions, rules, or practices other than those 
required by Sec.  106.45 that a recipient adopts as part of its 
grievance process for handling formal complaints of sexual 
harassment as defined in Sec.  106.30, must apply equally to both 
parties. The final regulations grant flexibility to recipients in 
other respects. The discussion in the ``Other Language/Terminology 
Comments'' subsection of the ``Section 106.30 Definitions'' section 
of this preamble notes that recipients may decide whether to 
calculate time frames using calendar days, school days, or other 
method. See also Sec.  106.45(b)(6)(i) (allowing, but not requiring, 
live hearings to be held virtually through use of technology); Sec.  
106.45(b)(5)(vi) (removing the requirement that evidence in the 
investigation be provided to the parties using a file-sharing 
platform); Sec.  106.45(b)(7)(i) (giving recipients a choice between 
using the preponderance of the evidence standard or the clear and 
convincing evidence standard).
---------------------------------------------------------------------------

    The Department acknowledges commenters' concerns that recipients do 
not have the discretion to forgo a formal grievance process in a 
situation where the recipient determined the allegations were without 
merit, frivolous, or had already been investigated, but we decline to 
grant that kind of discretion because the Department believes that, 
where a complainant chooses to file a formal complaint and initiate a 
recipient's formal grievance process, that formal complaint should be 
taken seriously and not prejudged or subjected to cursory or conclusory 
evaluation by a recipient's administrators. The purpose of the Sec.  
106.45 grievance process is to resolve allegations of sexual harassment 
impartially, without conflicts of interest or bias, and to objectively 
examine relevant evidence before reaching a determination regarding 
responsibility. Permitting a recipient to deem allegations meritless or 
frivolous without following the Sec.  106.45 grievance process would 
defeat the Department's purpose in providing both parties with a 
consistent, transparent, fair process, would not increase the 
reliability of outcomes, and would increase the risk that victims of 
sexual harassment will not be provided remedies. The Department notes 
that the final regulations give recipients discretion to offer informal 
resolution processes to resolve formal complaints (Sec.  106.45(b)(9)) 
and permit discretionary dismissal of a formal complaint (or 
allegations therein) by a recipient under limited circumstances (Sec.  
106.45(b)(3)(ii)).\939\
---------------------------------------------------------------------------

    \939\ See the ``Dismissal and Consolidation of Formal 
Complaints'' section of this preamble. We note that one of the bases 
for discretionary dismissal of a formal complaint (or allegations 
therein) is where specific circumstances prevent the recipient from 
gathering evidence sufficient to reach a determination. When a 
formal complaint contains allegations that are precisely the same as 
allegations the recipient has already investigated and adjudicated, 
that circumstance could justify the recipient exercising discretion 
to dismiss those allegations, under Sec.  106.45(b)(3)(ii).
---------------------------------------------------------------------------

    We have also considered commenters' suggestion that the Department 
add a requirement limiting the amount of time a complainant has for 
filing a formal complaint, but the Department declines to revise the 
final regulations to include a statute of limitations or similar time 
limit.\940\ However, we have revised Sec.  106.30 defining ``formal 
complaint'' to specify that at the time of filing a formal complaint, 
the complainant must be participating in or attempting to participate 
in the recipient's education program or activity. In addition, Sec.  
106.45(b)(3)(ii) allows a discretionary dismissal of a formal complaint 
where the complainant wishes to withdraw the formal complaint (if the 
complainant notifies the Title IX Coordinator, in writing, of this 
wish), where the respondent is no longer enrolled or employed by the 
recipient, or where specific circumstances prevent the recipient from 
meeting the recipient's burden of collecting evidence sufficient to 
reach a determination regarding responsibility. The length of time 
elapsed between an incident of alleged sexual harassment, and the 
filing of a formal complaint, may, in specific circumstances, prevent a 
recipient from collecting enough evidence to reach a determination, 
justifying a discretionary dismissal under Sec.  106.45(b)(3)(ii).
---------------------------------------------------------------------------

    \940\ For further discussion, see the ``Formal Complaint'' 
subsection of the ``Section 106.30 Definitions'' section of this 
preamble.
---------------------------------------------------------------------------

    Changes: The Department does not include the safe harbor provision 
regarding the Sec.  106.45 grievance process that was proposed in Sec.  
106.44(b)(1) in the NPRM. Section 106.44(b)(1) in the final regulations 
retains the mandate to follow a grievance process that complies with 
Sec.  106.45 in response to a formal complaint, and adds a mandate that 
the recipient must comply with Sec.  106.44(a) with or without a formal 
complaint.
Proposed Sec.  106.44(b)(2) Reports by Multiple Complainants of Conduct 
by Same Respondent [Removed in Final Regulations]
    Comments: A number of commenters expressed opposition to proposed 
Sec.  106.44(b)(2), which would have required Title IX Coordinators to 
file a formal complaint upon receiving reports from multiple 
complainants that a respondent engaged in conduct that could constitute 
sexual harassment. Commenters opposed this proposed provision due to 
concerns that the provision could place the safety of victims at risk 
by requiring a grievance process against a respondent over the wishes 
of the complainant and could place victims in harm's way without the 
victim's knowledge or input because nothing in the proposed provision 
required the Title IX Coordinator to first alert or warn the victim 
that the Title IX Coordinator would file a formal complaint. Commenters 
argued that this proposed provision implied that Title IX Coordinators 
could not file a formal complaint unless a respondent was a repeat 
offender.
    A number of commenters expressed concern that the proposed 
provision would pose a particular risk in cases dealing with dating 
violence, domestic violence, or stalking. Commenters argued that 
survivors often choose not to report intimate partner violence or 
stalking to authorities for a multitude of reasons, one of which is 
fear that the perpetrator will retaliate or escalate the violence.
    A number of commenters expressed concern that the mandatory filing 
requirement in proposed Sec.  106.44(b)(2) would violate survivor 
autonomy. Commenters argued that the proposed provision would violate 
autonomy principles embedded elsewhere in the proposed rules. 
Commenters argued the

[[Page 30215]]

Department's contradictory statements regarding the importance of 
survivor autonomy were arbitrary and capricious. Commenters argued that 
requiring schools to trigger formal grievance procedures when the 
school has received multiple reports of harassment by the same 
perpetrator would violate survivor autonomy and discourage reporting. 
One commenter asserted that the proposed provision would retraumatize 
victims by forcing an investigation when no victim wants to testify 
against the perpetrator. One commenter asserted that this provision 
would exacerbate survivors' feelings of powerlessness. Commenters 
asserted that students should be able to discuss a situation without 
the Title IX office initiating a formal process without the 
complainant's permission. Commenters stated that sometimes a student 
may want advice, or want supportive measures, without desiring a formal 
process.
    A number of commenters expressed concern that requiring Title IX 
Coordinators to file formal complaints against the wishes of 
complainants will lead to violations of confidentiality of survivors 
who already do not want to come forward, and may not come forward at 
all if there is a risk that the school will violate their wishes by 
investigating. Commenters argued that victims who report but do not 
wish to pursue a formal complaint would be forced into potentially 
dangerous situations unknowingly, since nothing in the proposed rules 
imposed a duty on the institution to offer safety measures or 
accommodations. Other commenters asserted that litigation arising out 
of Title IX proceedings is common, and that requiring a recipient to 
pursue a grievance proceeding against a respondent invites the 
respondent to then name the complainant as a party to subsequent 
litigation even when the complainant did not want to initiate an 
investigation in the first place.
    A number of commenters expressed concern that deeming the Title IX 
Coordinator as a complainant (by requiring them to file a formal 
complaint) creates a significant conflict of interest by placing the 
Title IX Coordinator in an adversarial position against the respondent. 
Other commenters argued that asking the Title IX Coordinator to sign 
and file a formal complaint in cases where complainants are unwilling 
to participate would make it impossible for the Title IX Coordinator to 
maintain the appearance of neutrality, even if they are in fact 
unbiased in all other ways. Other commenters expressed concern that if 
the person who reported the incident is reluctant to come forward, it 
would place the Title IX Coordinator, who should be an impartial 
resource, into a role of advocating for a specific person's report.
    A number of commenters argued that the proposed provision would 
chill reporting of sexual harassment because victims would fear being 
drawn involuntarily into a formal process. Commenters suggested that, 
if institutions file formal complaints without the willing, informed 
participation of the victim, some requirements, including the cross-
examination requirement, should be adjusted, to protect victims who did 
not consent to participate in a grievance process from negative 
consequences that commenters argued may possibly result from 
participating in a grievance process, especially a live hearing. 
Commenters argued that these consequences might include fear of re-
traumatization from being cross-examined, questions perceived as 
invasions of privacy, and lawsuits filed by respondents based on 
testimony given during a Title IX hearing.
    Commenters argued that this provision would depart from best 
practices for helping victims. Commenters asserted that in order to 
effectively address sex discrimination, educational institutions must 
be able to cultivate relationships of trust with community members with 
regard to reporting systems, and that this proposed provision would 
mean that recipients would violate the wishes of reporting parties, 
thereby betraying and violating their trust. Commenters asserted that 
the ability of a complainant to seek supportive measures without 
risking public exposure is foundational to creating conditions under 
which community members are more willing to avail themselves of 
institutional support, including formal grievance proceedings. 
Commenters expressed concern that, in the absence of supportive 
measures, many survivors cannot keep up with the demands of rigorous 
schoolwork while dealing with the impacts of trauma, and this proposed 
provision would leave complainants in a position of never knowing 
whether the complainant's report of sexual harassment would result in a 
formal process, because the complainant would have no way of knowing 
whether another complainant's report would trigger proposed Sec.  
106.44(b)(2).
    Commenters expressed concern that proposed Sec.  106.44(b)(2) would 
conflict with or be in tension with the requirement in Sec.  
106.45(b)(6)(i) that schools disregard statements provided by witnesses 
or parties who do not submit to cross-examination at a hearing, because 
if alleged victims are unwilling to participate in the process and be 
subject to cross-examination, then the adjudicator is not permitted to 
consider the complainant's statements, rendering the filing of a formal 
complaint by a Title IX Coordinator potentially futile. Commenters 
argued that there was a conflict between proposed Sec.  106.44(b)(2) 
and the proposed requirement in Sec.  106.45(b)(3) that a recipient 
must dismiss a complaint if the alleged harassment did not occur within 
the recipient's education program or activity; commenters questioned 
how the recipient should respond when multiple reports are made against 
the same respondent, but one or more of the reported incidents did not 
take place within the education program or activity of the school and 
suggested that to solve this conflict, recipients should make a good 
faith investigation into all reports of sexual harassment, regardless 
of the location of the incident, when one or more parties involved in 
the report are under the ``purview'' of the recipient.
    A number of commenters argued that proposed Sec.  106.44(b)(2) 
would not meet its stated goal of protecting students because the 
provision would not be limited only to stopping serial predators. 
Commenters argued that the proposed provision would incentivize schools 
to bring weak cases against serial perpetrators that may allow the 
predators to escape responsibility. Commenters expressed concern if 
schools are forced to move forward without the participation of 
complainants in every case where there are multiple reports of sexual 
harassment against the same respondent, then this may lead to 
dismissals or inaccurate findings of non-responsibility. Other 
commenters expressed concern that this proposed provision was designed 
to help recipients, not protect victims. Commenters argued the proposed 
provision was a designed-to-fail framework that would protect a 
recipient from a claim by another victim who is attacked by the same 
perpetrator, since all the recipient would be required to do is show 
that it made a pro forma attempt to comply with its obligations, to 
qualify for the safe harbor. Other commenters expressed concern that a 
recipient impermissibly motivated by sex stereotypes could exploit this 
proposed provision to engage in discriminatory practices that would 
otherwise constitute a violation of Title IX.

[[Page 30216]]

    Commenters argued that this proposed provision could put a 
recipient in the untenable situation of being required to apply the 
formal grievance processes to a situation the recipient does not 
believe it can adequately investigate or that the recipient reasonably 
believes can be addressed through other appropriate means. A number of 
commenters expressed concern that this proposed provision would remove 
the Title IX Coordinator's discretion; commenters asserted that 
instead, Title IX Coordinators should evaluate what the appropriate 
response is, whether it be a formal investigation or putting the 
respondent on notice of the behavior complained about. Commenters 
argued that, consistent with the 2001 Guidance, recipients should 
continue to have discretion in determining whether or how to address 
multiple reports involving a single respondent in cases where 
complainants wish to remain anonymous or for other reasons are 
unwilling to participate in formal proceedings.
    A number of commenters argued that proposed Sec.  106.44(b)(2) 
would alter and harm the valuable function of the Title IX Coordinator. 
Other commenters expressed concern that this proposed provision would 
complicate the role of the Title IX Coordinator because if the Title IX 
Coordinator receives a report from a resident advisor or faculty member 
(rather than from the victim themselves), and then subsequently 
receives a report from a victim alleging a similar incident involving 
the same perpetrator, the Title IX Coordinator might be confused about 
whether or not the proposed provision requires the Title IX Coordinator 
to file a formal complaint.
    One commenter asserted that proposed Sec.  106.44(b)(2) would put 
schools at risk for liability for monetary damages in private Title IX 
lawsuits, as well as other State tort actions.
    Commenters asserted that sometimes a third party reports an alleged 
sexual harassment situation, but the alleged victim insists that there 
was no violation and in cases like that, the recipient should be 
required to make a report that is not attached to either party's 
transcript, but that can be referenced if the alleged victim later 
wishes to file a formal complaint.
    Discussion: Despite the intended benefits of proposed Sec.  
106.44(b)(2) described in the NPRM, the Department is persuaded by the 
many commenters who expressed a variety of concerns about requiring the 
Title IX Coordinator to file a formal complaint after receiving 
multiple reports about the same respondent. In addition to raising 
serious concerns about the potential effects on complainants, 
commenters also described practical problems with proposed Sec.  
106.44(b)(2) in relation to the rest of the final regulations. As a 
result, the Department is removing proposed Sec.  106.44(b)(2) 
entirely.\941\
---------------------------------------------------------------------------

    \941\ The section number, 106.44(b)(2), now refers to the 
provision discussed in the ``Section 106.44(b)(2) OCR Will Not Re-
weigh the Evidence'' subsection of the ``Recipient's Response in 
Specific Circumstances'' subsection of the ``Section 106.44 
Recipient's Response to Sexual Harassment, Generally'' section of 
this preamble.
---------------------------------------------------------------------------

    The Department is persuaded by commenters who argued that this 
proposed provision would have removed the Title IX Coordinator's 
discretion without necessary or sufficient reason to do so. The 
Department agrees that the Title IX Coordinator should have the 
flexibility to evaluate and determine an appropriate response under 
pertinent facts and circumstances. The Department agrees with 
commenters who argued that institutions should continue to have 
discretion in determining whether or how to address multiple reports 
involving a single respondent in cases where complainants wish to 
remain anonymous or otherwise are unwilling to participate in a formal 
process. Removing this proposed provision means that Title IX 
Coordinators retain discretion, but are not required, to sign formal 
complaints after receiving multiple reports of potential sexual 
harassment against the same respondent. We believe that this approach 
properly balances complainant autonomy, campus safety, and recipients' 
use of resources that would otherwise be required to be used to 
institute a potentially futile grievance process. The Department was 
persuaded by commenters' concerns that under the proposed rules, filing 
a formal complaint might have resulted in a Title IX Coordinator 
becoming a ``complainant'' during the grievance process, or creating a 
conflict of interest or lack of neutrality. We have revised the 
definitions of ``complainant'' and ``formal complaint'' in Sec.  106.30 
to clarify that when a Title IX Coordinator chooses to sign a formal 
complaint, that action is not taken ``on behalf of'' the complainant; 
the ``complainant'' is the person who is alleged to be the victim of 
conduct that could constitute sexual harassment. Those revisions 
further clarify that when a Title IX Coordinator signs a formal 
complaint, the Title IX Coordinator does not become a complainant or 
otherwise a party to the grievance process, and must abide by Sec.  
106.45(b)(1)(iii), which requires Title IX personnel to be free from 
conflicts of interest and bias, and serve impartially. We do not 
believe that signing a formal complaint that initiates a grievance 
process inherently creates a conflict of interest between the Title IX 
Coordinator and the respondent; in such a situation, the Title IX 
Coordinator is not advocating for or against the complainant or 
respondent, and is not subscribing to the truth of the allegations, but 
is rather instituting a grievance process (on behalf of the recipient, 
not on behalf of the complainant) based on reported sexual harassment 
so that the recipient may factually determine, through a fair and 
impartial grievance process, whether or not sexual harassment occurred 
in the recipient's education program or activity.
    The Department is persuaded by commenters' concerns that the 
proposed provision would have created tension with Sec.  
106.45(b)(6)(i), which mandates that if a party or witness does not 
submit to cross-examination at the hearing, the decision-maker must not 
rely on any statement of that party or witness in reaching a 
determination regarding responsibility. The Department is persuaded by 
commenters' arguments that the proposed provision would have 
incentivized or forced recipients to file futile complaints against 
respondents with no complaining witness willing to testify at a live 
hearing. Whether or not proposed Sec.  106.44(b)(2) would have 
conflicted with Sec.  106.45(b)(3), the proposed provision Sec.  
106.44(b)(2) has been removed from the final regulations, and we have 
revised Sec.  106.45(b)(3) to clarify that a recipient may choose to 
address allegations of sexual harassment that occurred outside the 
recipient's education program or activity, through non-Title IX codes 
of conduct. Where a complainant does not wish to participate in a 
grievance process, including being cross-examined at a live hearing, 
the recipient is not permitted to threaten, coerce, intimidate, or 
discriminate against the complainant in an attempt to secure the 
complainant's participation.\942\ Thus, even if a Title IX Coordinator 
has signed a formal complaint, the complainant is not obligated to 
participate in the ensuing grievance process and need not appear at a 
live hearing or be cross-examined. We have added Sec.  106.71 
prohibiting retaliation and expressly protecting any person's right not 
to participate in a Title IX proceeding.
---------------------------------------------------------------------------

    \942\ Section 106.71(a).
---------------------------------------------------------------------------

    The Department is also persuaded that a chilling effect on victim 
reporting

[[Page 30217]]

can be avoided by eliminating this proposed provision. The Department 
is persuaded by commenters' concerns that complainants who are 
unwilling to file a formal complaint should be able to confidentially 
seek supportive measures without fear of being drawn into a formal 
complaint process whenever the Title IX Coordinator receives a second 
report from another complainant about the same respondent. The 
Department is persuaded by commenters' arguments that students should 
be able to discuss a situation with a Title IX Coordinator without the 
Title IX Coordinator being required to initiate a grievance process 
against the complainant's wishes, and by commenters' assertions that it 
is not uncommon for respondents filing private lawsuits against the 
recipient to include the complainant as a party to such lawsuits, so 
dragging a complainant into a grievance process against the 
complainant's wishes exposes the complainant to potential involvement 
in private litigation as well.
    The Department appreciates commenters' suggestions for specific 
changes and clarifications to proposed Sec.  106.44(b)(2); however, 
there is no need to consider such changes or clarifications because we 
are removing this proposed provision from the final regulations.
    Changes: The Department has not included proposed Sec.  
106.44(b)(2) in the final regulations.
    Comments: Some commenters expressed support for proposed Sec.  
106.44(b)(2), asserting that it would be valuable for the protection of 
sexual assault victims on university campuses. Other commenters argued 
that it is common sense for the Title IX Coordinator to be able to file 
complaints against bad actors. Some commenters argued that the 
provision would improve the responsiveness of university Title IX 
Coordinators to sexual assault or harassment allegations at 
institutions around the country. Other commenters supported this 
proposed provision so that Title IX Coordinators would file a complaint 
against repeat sexual offenders even when no victim was willing to file 
a formal complaint because this would protect a complainant's 
confidentiality.
    Discussion: For the reasons discussed above, the Department is 
persuaded that eliminating proposed Sec.  106.44(b)(2) better serves 
the Department's goals of ensuring that recipients respond adequately 
to reports of sexual harassment without infringing on complainant 
autonomy. Elimination of this proposed provision leaves Title IX 
Coordinators discretion to sign a formal complaint initiating a 
grievance process, when doing so is not clearly unreasonable in light 
of the known circumstances, without mandating such a response every 
time multiple reports against a respondent are received. We note that 
contrary to some commenters' belief, the proposed provision would not 
have protected complainants' confidentiality by requiring Title IX 
Coordinators to file formal complaints, because the recipient would 
still have been required under Sec.  106.45(b)(2) to send written 
notice of the allegations to both parties, and the written notice must 
include the complainant's identity, if known.
    Changes: The Department has not included proposed Sec.  
106.44(b)(2) in the final regulations.
    Comments: Some commenters suggested expanding or modifying proposed 
Sec.  106.44(b)(2), for example by specifying factors to consider as to 
whether a pattern of behavior might present a potential threat to the 
recipient's community. Some commenters suggested specifying that a 
formal complaint must be filed where threats, serial predation, 
violence, or weapons were allegedly involved.
    Commenters recommended adding a credibility threshold to proposed 
Sec.  106.44(b)(2) specifying that a Title IX Coordinator would only be 
required to file a formal complaint upon receiving multiple credible 
reports against the same respondent, so that the Title IX Coordinator 
would not need to file a formal complaint where reports appeared 
frivolous or unfounded.
    Commenters suggested that the Department adopt the model used by 
Harvard Law School for its Title IX compliance, which as described by 
commenters provides that (1) that there be a complainant willing to 
participate before the recipient will initiate a formal investigation 
and (2) the only time an action should be pursued without a willing 
complainant is if there is a serious risk to campus-wide safety and 
security. Several commenters suggested that, in instances where there 
are reports by multiple complainants but none are willing to 
participate in the proceedings, the Department could ensure 
accountability by requiring the recipient to document its reason for 
not initiating a formal complaint rather than requiring the recipient 
to file a formal complaint in every such situation.
    Discussion: The Department appreciates commenters' suggestions for 
specific changes to proposed Sec.  106.44(b)(2); however, we decline to 
make such changes because we are removing this proposed provision from 
the final regulations for the reasons described above. The Department 
declines to adopt in these final regulations the suggestion that 
patterns of behavior be considered as a factor to determine whether 
possible future threats to the community warrant filing a formal 
complaint even where a complainant does not wish to file; however, as 
discussed above, elimination of proposed Sec.  106.44(b)(2) leaves the 
Title IX Coordinator discretion to sign a formal complaint where doing 
so is not clearly unreasonable in light of the known circumstances. The 
Title IX Coordinator may consider a variety of factors, including a 
pattern of alleged misconduct by a particular respondent, in deciding 
whether to sign a formal complaint. By giving the recipient's Title IX 
Coordinator the discretion to sign a formal complaint in light of the 
specific facts and circumstances, the Department believes it has 
reached the appropriate balance between campus safety, survivor 
autonomy, and respect for the most efficient use of recipients' 
resources. We also note that under the final regulations, including 
revised Sec.  106.44(a), a Title IX Coordinator's decision to sign a 
formal complaint may occur only after the Title IX Coordinator has 
promptly contacted the complainant (i.e., the person alleged to have 
been victimized by sexual harassment) to discuss availability of 
supportive measures, consider the complainant's wishes with respect to 
supportive measures, and explain to the complainant the process for 
filing a formal complaint. Thus, the Title IX Coordinator's decision to 
sign a formal complaint includes taking into account the complainant's 
wishes regarding how the recipient should respond to the complainant's 
allegations.
    The Department disagrees with the suggestion to expand the proposed 
provision to cover other circumstances such as alleged use of threats, 
violence, or weapons, because we are persuaded by commenters that 
leaving the Title IX Coordinator discretion to sign a formal complaint 
is preferable to mandating circumstances under which a Title IX 
Coordinator must sign a formal complaint. The final regulations give 
the Title IX Coordinator discretion to sign a formal complaint, and the 
Title IX Coordinator may take circumstances into account such as 
whether a complainant's allegations involved violence, use of weapons, 
or similar factors. The Department eliminated proposed Sec.  
106.44(b)(2) in part due to concerns expressed by commenters about 
survivor autonomy and safety; in

[[Page 30218]]

some situations, the Title IX Coordinator may believe that signing a 
formal complaint is not in the best interest of the complainant and is 
not otherwise necessary for the recipient to respond in a non-
deliberately indifferent manner. With the elimination of this 
provision, however, the Title IX Coordinator still possesses the 
discretion to sign formal complaints in situations involving threats, 
serial predation, violence, or weapons. Even in the absence of a formal 
complaint being filed, a recipient has authority under Sec.  106.44(c) 
to order emergency removal of a respondent where the situation arising 
from sexual harassment allegations presents a risk to the physical 
health or safety of any person. Nothing in the final regulations 
prevents recipients, Title IX Coordinators, or complainants from 
contacting law enforcement to address imminent safety concerns.
    Because the final regulations do not include this proposed 
provision, the Department does not further consider the commenter's 
suggestion to revise the eliminated provision by adding the word 
``credible'' before ``reports.'' As discussed previously, the 
Department has removed this provision to respect complainant autonomy 
and avoid chilling reporting by mandating that a Title IX Coordinator 
sign a formal complaint over a complainant's wishes; the commenter's 
suggestion for modifying this proposed Sec.  106.44(b)(2) would not 
change the Department's belief that the proposed provision should be 
removed in its entirety, because narrowing the circumstances under 
which the Title IX Coordinator would be required to sign a formal 
complaint over the complainant's wishes would not address the concerns 
raised by many commenters that persuaded the Department of the need to 
respect survivor autonomy by giving a Title IX Coordinator discretion 
(without making it mandatory) to sign a formal complaint. The 
Department further notes that one of the purposes of the Sec.  106.45 
grievance process is to ensure that determinations are reached only 
after objective evaluation of relevant evidence by impartial decision-
makers, and therefore permitting or requiring a Title IX Coordinator to 
only respond to reports or formal complaints that the Title IX 
Coordinator deems ``credible'' would defeat the goal of following a 
grievance process to reach reliable outcomes. Similarly, the 
commenter's suggestion to require the recipient to document its reason 
for not initiating a formal complaint following reports by multiple 
complainants does not alter the Department's conclusion that the better 
way to respect survivor autonomy and the discretion of a Title IX 
Coordinator is to remove proposed Sec.  106.44(b)(2) from the final 
regulations, so that a Title IX Coordinator retains the discretion to 
sign a formal complaint, but is not mandated to do so. We note that 
Sec.  106.45(b)(10) does require a recipient to document the reasons 
for its conclusion that its response to any reported sexual harassment 
was not deliberately indifferent.
    The Department declines to adopt the Harvard Law School model 
because we believe the final regulations provide the same or similar 
benefits with respect to requiring a grievance process only where a 
formal complaint has been filed by a complainant or signed by a Title 
IX Coordinator. For reasons discussed in the ``Formal Complaint'' 
subsection of the ``Section 106.30 Definitions'' section of this 
preamble, third parties are not allowed to file formal complaints.
    Changes: None.
Proposed Sec.  106.44(b)(3) Supportive Measures Safe Harbor in Absence 
of a Formal Complaint [Removed in Final Regulations]
    Comments: Many commenters appreciated that the proposed safe harbor 
regarding supportive measures would provide an incentive for 
institutions to offer supportive measures for both parties. Several 
commenters recounted personal stories of accused individuals being 
removed from classes and dorms before a determination had been made 
about pending allegations. Many commenters supported Sec.  106.44(b)(2) 
for not requiring an individual to file a formal complaint in order to 
obtain supportive measures and for expressly including the requirement 
that, when offering supportive measures, recipients must notify a 
complainant of the right to file a formal complaint at a later date if 
they wish. Many commenters asserted that often, supportive measures are 
sufficient for both parties to deal with a situation without causing 
additional trauma to either party.
    Some commenters expressed concern that the proposed safe harbor 
regarding supportive measures would effectively relieve institutions of 
the responsibility to hold respondents accountable and address sexual 
harassment on campuses. Many commenters argued that offering ``meager'' 
supportive measures to a student in lieu of investigating allegations 
would not satisfy a recipient's obligations under Title IX and asked 
the Department to clarify that the provision of supportive measures is 
not always adequate to satisfy the deliberate indifference standard.
    Many commenters argued that the proposed safe harbor regarding 
supportive measures actually created a barrier to providing supportive 
measures for elementary and secondary school victims because the 
provision applied only to institutions of higher education, and asked 
the Department to modify the proposed rules to extend this supportive 
measures safe harbor to the elementary and secondary school context 
either by creating a separate safe harbor with nearly identical 
language or by deleting the phrase ``for institutions of higher 
education'' in the proposed regulatory text. One commenter asserted 
that Sec.  106.44(b)(3) is redundant because it merely repeats the 
standard of Sec.  106.44(a). One commenter argued that, when combined 
with the Department's proposed definition of sexual harassment, this 
proposed provision would create a safe harbor for educational 
institutions to avoid liability.
    Other commenters suggested that the Department modify the proposed 
safe harbor regarding supportive measures to expressly prohibit 
institutions from coercing a complainant into accepting supportive 
measures in lieu of filing a formal complaint. At least one commenter 
suggested adding an outer time limit to a party's right to file a 
formal complaint ``at a later time,'' asserting that this proposed 
provision was inconsistent with the recordkeeping requirement in the 
proposed regulations, which would have allowed a record to be destroyed 
in three years (this retention period has been revised to seven years 
in Sec.  106.45(b)(10) of the final regulations).
    Discussion: As explained in the ``Section 106.44(b) Proposed `Safe 
harbors,' generally,'' subsection of the ``Recipient's Response in 
Specific Circumstances'' section of this preamble, these final 
regulations do not include the safe harbor provision that a recipient 
is not deliberately indifferent when in the absence of a formal 
complaint the recipient offers and implements supportive measures 
designed to effectively restore or preserve the complainant's access to 
the recipient's education program or activity, and the recipient also 
informs the complainant in writing of the right to file a formal 
complaint. This safe harbor is now unworkable and unnecessary in light 
of other revisions made to the proposed regulations, specifically a 
recipient's obligations in Sec.  106.44(a) and Sec.  106.45(b)(10)(ii). 
Under Sec.  106.44(a), a recipient's response must treat complainants 
and

[[Page 30219]]

respondents equitably by offering supportive measures as defined in 
Sec.  106.30, and a Title IX Coordinator must promptly contact the 
complainant to discuss the availability of supportive measures as 
defined in Sec.  106.30, consider the complainant's wishes with respect 
to supportive measures, inform the complainant of the availability of 
supportive measures with or without the filing of a formal complaint, 
and explain to the complainant the process for filing a formal 
complaint. As previously explained, Sec.  106.45(b)(1) now contains an 
additional mandate that with or without a formal complaint, a recipient 
must comply with Sec.  106.44(a), which places recipients on notice 
that it must offer supportive measures to a complainant. Additionally, 
under Sec.  106.45(b)(10)(ii), if a recipient does not provide a 
complainant with supportive measures, then the recipient must document 
why such a response was not clearly unreasonable in light of the known 
circumstances. As recipients are now required to offer supportive 
measures to a complainant and to document why not providing a 
complainant with supportive measures was not clearly unreasonable in 
light of the known circumstances, the final regulations no longer 
provides a safe harbor. Recipients cannot receive a safe harbor for 
offering supportive measures because recipients are now required to 
offer supportive measures under these final regulations. Accordingly, 
the Department does not include the proposed safe harbor regarding 
supportive measures in these final regulations.
    With respect to concerns that respondents may suffer disciplinary 
sanctions or punitive action stemming from pending allegations, the 
Department notes that Sec.  106.44(a) expressly provides that a 
recipient's response must treat complainants and respondents equitably 
by offering supportive measures as defined in Sec.  106.30 to a 
complainant, and by following a grievance process that complies with 
Sec.  106.45 before the imposition of any disciplinary sanctions or 
other actions that are not supportive measures as defined in Sec.  
106.30, against a respondent. Additionally, supportive measures in 
Sec.  106.30 are expressly defined as non-disciplinary, non-punitive 
individualized services offered as appropriate, as reasonably 
available, and without fee or charge to the complainant or the 
respondent. Supportive measures must not have a punitive or 
disciplinary consequence for either complainants or respondents.
    Even without the proposed safe harbor provision regarding 
supportive measures, the Department believes that these final 
regulations appropriately draw recipients' attention to the importance 
of offering supportive measures to all students, including students who 
do not wish to initiate a recipient's formal grievance process, and 
thus give complainants greater autonomy to decide if supportive 
measures, alone, represent the kind of school-level response that will 
best help the complainant heal after any trauma. The Department in part 
requires a recipient to offer supportive measures to all complainants 
under Sec.  106.44(a) because the Department recognizes that, in many 
cases, a complainant's equal access to education can be effectively 
restored or preserved through the school's provision of supportive 
measures. Accordingly, the Department provides an additional mandate in 
Sec.  106.44(b)(1), that with or without a formal complaint, a 
recipient must comply with Sec.  106.44(a) (e.g., by offering the 
complainant supportive measures).
    We are persuaded by commenters' assertions that providing 
supportive measures to a complainant does not always satisfy a 
recipient's obligation to respond in a non-deliberately indifferent 
manner to known sexual harassment. In some circumstances and depending 
on the unique facts, a non-deliberately indifferent response may 
require the recipient's Title IX Coordinator to sign a formal complaint 
as defined in Sec.  106.30 so that the recipient initiates the 
grievance process in Sec.  106.45. The Department acknowledges that a 
recipient should respect the complainant's autonomy and wishes with 
respect to a formal complaint and grievance process to the extent 
possible.
    As the proposed safe harbor regarding supportive measures is no 
longer included in these final regulations, we do not revisit whether 
excluding elementary and secondary school recipients from this safe 
harbor was preferable to modifying the proposed safe harbor to also 
apply to elementary and secondary schools. Revised Sec.  106.44(a) 
requires every recipient (including elementary and secondary schools) 
to offer supportive measures to complainants.
    The Department understands the concern that a recipient may coerce 
potential complainants into accepting supportive measures in lieu of a 
formal grievance process. Partly in response to these concerns, the 
Department revised Sec.  106.44(a) to require that a Title IX 
Coordinator promptly contact a complainant not only to discuss 
supportive measures but also to explain to the complainant the process 
for filing a formal complaint. Accordingly, a complainant will know how 
to file a formal complaint, if the complainant wishes to do so. We have 
also added Sec.  106.71 to expressly forbid a recipient from 
threatening, intimidating, coercing, or discriminating against any 
complainant for the purpose of chilling the complainant's exercise of 
any rights under Title IX, which includes the right to file a formal 
complaint, and to receive supportive measures even if the complainant 
chooses not to file a formal complaint.
    The Department agrees that the safe harbor, as proposed, is 
redundant, especially in light of the revisions to Sec.  106.44(a), 
requiring a recipient to offer supportive measures to a complainant. As 
this safe harbor is not included in these final regulations, this safe 
harbor does not provide a way for a recipient to avoid responsibility.
    For reasons discussed above, the Department declines to revise the 
final regulations to include a statute of limitations or similar time 
limit on filing a formal complaint but as discussed in the ``Formal 
Complaint'' subsection of the ``Section 106.30 Definitions'' section of 
this preamble, the Department has revised the final regulations to 
provide that at the time of filing a formal complaint, the complainant 
must be participating in or attempting to participate in the 
recipient's education program or activity. This provides a reasonable 
condition on a complainant's ability to require a recipient to 
investigate, based on the complainant's connection to the recipient's 
education program or activity rather than by imposing a statute of 
limitations or similar time-based deadline. A complainant may be 
``attempting to participate'' in the recipient's education program or 
activity in a broad variety of circumstances that do not depend on a 
complainant being, for instance, enrolled as a student or employed as 
an employee. A complainant may be ``attempting to participate,'' for 
example, where the complainant has withdrawn from the school due to 
alleged sexual harassment and expresses a desire to re-enroll if the 
recipient responds appropriately to the sexual harassment allegations, 
or if the complainant has graduated but would like to participate in 
alumni events at the school, or if the complainant is on a leave of 
absence to seek counseling to recover from trauma. In addition, the 
Department has also revised the final regulations to provide in Sec.  
106.45(b)(3)(ii) that a recipient has the discretion to dismiss a 
formal complaint

[[Page 30220]]

against a respondent who is no longer enrolled or employed by the 
recipient. While these provisions are not an express limit on the 
amount of time a complainant has to file a formal complaint, the 
Department believes these provisions help address commenters' concerns 
about being forced to expend resources investigating situations where 
one or both parties have no affiliation with the recipient, without 
arbitrarily or unreasonably imposing a deadline on complainants, in 
recognition that complainants sometimes do not report or desire to 
pursue a formal process in the immediate aftermath of a sexual 
harassment incident.
    Changes: The Department does not include the safe harbor provision 
proposed in the NPRM as Sec.  106.44(b)(3). The Department adds a 
mandate to Sec.  106.44(b)(1) that the recipient must comply with Sec.  
106.44(a), with or without a formal complaint.
Section 106.44(b)(2) OCR Will Not Re-Weigh the Evidence
    Comments: Some commenters appreciated that the proposed rules 
contained an express guarantee that an institution will not be deemed 
deliberately indifferent solely because the Assistant Secretary would 
have reached a different determination regarding responsibility based 
on an independent weighing of the evidence. Some commenters expressed 
concerns that Sec.  106.44(b)(2) would result in a lack of 
accountability or oversight for how schools or colleges handle sexual 
harassment complaints. Other commenters contended that this provision 
would unjustifiably reduce the Department's oversight unless a school's 
actions are clearly unreasonable. Some commenters asserted that the 
provision would improperly defer to a school district's determination, 
which commenters argued is not always the appropriate way to ensure 
Title IX accountability. A number of commenters felt that Sec.  
106.44(b)(2) would spur more civil lawsuits to hold schools 
accountable, because the Department would no longer be holding schools 
accountable.
    Several commenters argued that the proposed provision would 
negatively impact OCR's ability to investigate non-compliance under 
Title IX, which would dangerously lower the bar of compliance and 
signal that a bare, minimal response to sexual harassment would 
suffice. Other commenters warned that the provision would limit OCR's 
ability to evaluate a school's response to sexual harassment, which 
would effectively narrow over 20 years of Title IX enforcement 
standards. Several commenters expressed their belief that OCR plays a 
key role as an independent, impartial investigator. For example, one 
commenter argued that OCR, as an independent entity, is more qualified 
than a school to perform an impartial investigation because the school 
has its own financial interests at stake and is thus less likely to 
identify inaccuracies in its own procedures. Another commenter asserted 
that OCR's independent weighing of evidence is a relevant factor 
because it may allow OCR to identify patterns or practices of shielding 
respondents or favoring complainants; the commenter argued that OCR 
should, after a thorough investigation, have discretion to decide if a 
school's determination regarding responsibility was discriminatory.
    Some commenters expressed concern that proposed Sec.  106.44(b)(2) 
was one-sided in a way that favored only respondents, because the 
language in the proposed provision would give deference to the school's 
determinations only where a respondent has been found not responsible. 
Commenters argued that as proposed, Sec.  106.44(b)(2) would require 
OCR investigators to close investigations even if OCR found gross or 
malicious procedural violations affecting the determination reached by 
the school, as long as the school had determined the respondent to be 
not responsible. Another commenter expressed concern that a deferential 
procedural review by OCR may incentivize schools to find in favor of 
respondents so as to avoid OCR scrutiny; commenters argued that this 
would be perceived as biased against complainants, may chill reporting 
of sexual harassment at the school level, and would discourage 
complainants from filing OCR complaints alleging procedural defects 
that led to erroneous findings of non-responsibility.
    Another commenter asserted that proposed Sec.  106.44(b)(2) was 
inconsistent with Equal Employment Opportunity Commission (EEOC) 
practices with respect to employee sexual harassment claims; the 
commenter stated that the EEOC never defers to an employer's conclusion 
but conducts its own investigation and makes an independent assessment 
of the facts so that employers do not avoid liability merely by 
conducting exculpatory internal investigations. The commenter also 
asserted that applying Sec.  106.44(b)(2) to employee sexual harassment 
claims would conflict with U.S. Department of Justice equal employment 
opportunity coordination regulations' requirement that a referring 
agency must give due weight to an EEOC determination of reasonable 
cause to believe that Title VII has been violated,\943\ which OCR could 
not give if it instead gave conclusive weight to a recipient's contrary 
factual determination.
---------------------------------------------------------------------------

    \943\ 28 CFR 42.610(a).
---------------------------------------------------------------------------

    Conversely, some commenters expressed support for Sec.  
106.44(b)(2). Commenters asserted that this provision, combined with 
other provisions in the proposed rules, would assist colleges and 
universities in ensuring an impartial, transparent, and fair process 
for both complainants and respondents, while also providing 
institutions flexibility reflecting their unique attributes (e.g., 
size, student population, location, mission). Several commenters 
expressed support for OCR not ``second guessing'' a school's response 
to incidents of sexual harassment. One commenter asserted that the 
provision was reasonable because OCR should not intrude into a school's 
decision making based on OCR's own weighing of the evidence.
    One commenter expressed confusion as to whether OCR would defer to 
schools' determinations about sex discrimination not involving sexual 
harassment, or in instances when a person who filed a complaint with a 
recipient could have filed directly with OCR. Another commenter 
suggested clarifying that further scrutiny by OCR is not barred by this 
provision and may be called for if a responsibility determination seems 
to hold little basis.
    Discussion: We appreciate commenters' concerns about, and support 
of, Sec.  106.44(b)(2). The intent of this provision is to convey that 
the Department will not overturn the outcome of a Title IX grievance 
process solely based on whether the Department might have weighed the 
evidence in the case differently from how the recipient's decision-
maker weighed the evidence.
    This provision does not limit OCR's ability to evaluate a school's 
response to sexual harassment, and it does not narrow Title IX 
enforcement standards; OCR retains its full ability, and 
responsibility, to oversee recipients' adherence to the requirements of 
Title IX, including requirements imposed under these final regulations. 
The Department agrees with commenters who stated that OCR has special 
qualifications that enable OCR to perform independent, impartial 
investigations into whether recipients have violated Title IX and Title 
IX regulations. The Department will continue to vigorously enforce

[[Page 30221]]

recipients' Title IX obligations.\944\ The Department believes that the 
Sec.  106.45 grievance process prescribes fair procedures likely to 
result in reliable outcomes; however, when a recipient does not comply 
with the requirements of Sec.  106.45, nothing in Sec.  106.44(b)(2) 
precludes the Department from holding the recipient accountable for 
violating these final regulations. Refraining from second guessing the 
determination reached by a recipient's decision-maker solely because 
the evidence could have been weighed differently does not prevent OCR 
from identifying and correcting any violations the recipient may have 
committed during the Title IX grievance process. The deference given to 
the recipient's determination regarding responsibility in Sec.  
106.44(b)(2) does not preclude OCR from overturning a determination 
regarding responsibility where setting aside the recipient's 
determination is necessary to remedy a recipient's violations of these 
final regulations. Rather, Sec.  106.44(b)(2) promotes finality for 
parties and recipients by stating that OCR will not overturn 
determinations just because OCR would have weighed the evidence in the 
case differently. To clarify this point, we have revised Sec.  
106.44(b)(2) to use the phrase ``solely because'' instead of ``merely 
because.'' Nothing about Sec.  106.44(b)(2) prevents OCR from taking 
into account the determination regarding responsibility as one of the 
factors OCR considers in deciding whether a recipient has complied with 
these final regulations, and whether any violations of these final 
regulations may require setting aside the determination regarding 
responsibility in order to remediate a recipient's violations.
---------------------------------------------------------------------------

    \944\ See further discussion in the ``Section 106.3(a) Remedial 
Action'' subsection of the ``Clarifying Amendments to Existing 
Regulations'' section of this preamble, regarding remedies the 
Department may pursue in administrative enforcement actions against 
recipients.
---------------------------------------------------------------------------

    If a recipient has not complied with any provision of the final 
regulations, nothing in Sec.  106.44(b)(2) prevents OCR from holding 
the recipient accountable for non-compliance. The intent of the 
provision is to assure recipients that because the Sec.  106.45 
grievance process contains robust procedural and substantive 
requirements designed to produce reliable outcomes, OCR will not 
substitute its judgment for that of the recipient's decision-maker with 
respect to weighing the relevant evidence at issue in a particular 
case.
    We believe that this limited deference also serves the interests of 
complainants and respondents in resolving sexual harassment 
allegations, by limiting the circumstances under which a ``final'' 
determination reached by the recipient may be subject to being setting 
aside and requiring the parties to go through a grievance process for a 
second time. As an example, if a decision-maker evaluates the relevant 
evidence in a case and judges one witness to be more credible than 
another witness, or finds one item of relevant evidence to be more 
persuasive than another item of relevant evidence, Sec.  106.44(b)(2) 
provides that OCR will not set aside the determination regarding 
responsibility solely because OCR would have found the other witness 
more credible or the other item of evidence more persuasive. It does 
not mean that OCR would refrain from holding the recipient accountable 
for violations of the decision-maker's obligations, for instance to 
avoid basing credibility determinations on a party's status as a 
complainant, respondent, or witness.\945\ This provision does not meant 
that OCR would refrain from, for instance, independently determining 
that evidence deemed relevant by the decision-maker was in fact 
irrelevant and should not have been relied upon.\946\ Violations of 
these final regulations may indeed result in a recipient's 
determination regarding responsibility being set aside by OCR, but 
determinations will not be overturned ``solely'' because OCR would have 
weighed the evidence differently.
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    \945\ Section 106.45(b)(1)(ii).
    \946\ E.g., Sec.  106.45(b)(6) (deeming questions and evidence 
about a complainant's prior sexual history to be irrelevant, with 
limited exceptions); Sec.  106.45(b)(1)(x) (barring use of 
privileged information in the grievance process).
---------------------------------------------------------------------------

    Some commenters understood this provision to work in a one-sided 
way, giving recipients' determinations regarding responsibility 
deference only where a respondent has been found not responsible; one 
commenter reached this conclusion based on the provision's reference to 
``deliberate indifference'' which is a theory usually only raised by 
complainants challenging the sufficiency of a recipient's response to 
sexual harassment. The Department appreciates these commenters' 
concerns; we intend this provision to apply equally to all outcomes, 
regardless of whether the determination found a respondent responsible 
or not responsible. For this reason, the provision uses the phrase 
``determination regarding responsibility'' (emphasis added) and not 
determination of responsibility.\947\ However, to clarify that this 
provision applies to all determinations of the outcome of a Title IX 
grievance process regardless of whether the respondent was found 
responsible or not responsible, we have revised Sec.  106.44(b)(2) by 
adding ``or otherwise evidence of discrimination under title IX by the 
recipient'' so that the reference in this provision to ``deliberate 
indifference'' is not misunderstood to exclude theories of sex 
discrimination commonly raised by respondents after being found 
responsible. This additional phrase in Sec.  106.44(b)(2) clarifies 
that this provision operates neutrally to all determinations regarding 
responsibility. The Department will not overturn the recipient's 
finding solely because the Department would have reached a different 
determination based on an independent weighing of the evidence, 
irrespective of whether the recipient found in favor of the complainant 
or the respondent. Whether the recipient found the respondent not 
responsible (and thus a complainant might allege deliberate 
indifference) or the recipient found the respondent responsible (and 
thus a respondent might allege sex discrimination under Title IX on a 
theory such as selective enforcement or erroneous outcome), this 
provision would equally apply to give deference to the recipient's 
determination where the challenge to the determination is solely based 
on whether the Department might have weighed the evidence differently.
---------------------------------------------------------------------------

    \947\ We use the phrase ``determination of responsibility'' 
(emphasis added) to describe a finding that the respondent is 
responsible for perpetrating sexual harassment, and ``determination 
regarding responsibility'' to describe a determination irrespective 
of whether that determination has found the respondent responsible, 
or not responsible. E.g., compare Sec. Sec.  106.45(b)(1)(i) and 
106.45(b)(1)(vi) with Sec. Sec.  106.45(b)(1)(iv), 106.45(b)(2), 
106.45(b)(5)(i), 106.45(b)(5)(vi)-(vii), 106.45(b)(6) through 
106.45(b)(10).
---------------------------------------------------------------------------

    In no manner does this limited deference by the Department restrict 
the Department's ability to identify patterns or practices of sex 
discrimination, or to investigate allegations of a recipient committing 
gross or malicious violations of Title IX or these final regulations. 
This provision gives a recipient deference only as to the decision-
maker's weighing of evidence with respect to a determination regarding 
responsibility. Section 106.44(b)(2) simply clarifies OCR's role and 
standard of review under these final regulations, by providing that OCR 
will not conduct de novo reviews of determinations absent allegations 
that the recipient failed in some way to comply with Title IX or these 
final regulations. The provision is intended to alleviate potential 
confusion recipients may feel about needing to successfully predict how 
the Department would make factual

[[Page 30222]]

determinations ``in the shoes'' of the recipient's decision-maker.
    Indeed, it would be impractical and unhelpful, for all parties, if 
the Department conducted de novo reviews of all recipient 
determinations. Doing so would contravene the Department's goal of 
providing consistency, predictability, transparency, and reasonably 
prompt resolution, in Title IX grievance processes. The Department 
disagrees that Sec.  106.44(b)(2) ``dangerously'' lowers the bar of 
compliance by signaling that recipients need only provide a ``bare 
minimum response'' to sexual harassment. The requirements of the final 
regulations do not constitute a low bar; rather, these final 
regulations expect--and the Department will hold recipients accountable 
for--responses to sexual harassment allegations that support 
complainants and treat both parties fairly by complying with specific, 
mandatory obligations. For instance, under the final regulations 
recipients are required to offer supportive measures to every 
complainant regardless of whether a grievance process is ever 
initiated.\948\ When a recipient does investigate a complainant's 
sexual harassment allegations, the final regulations prescribe a 
grievance process that lays out clear, practical steps for processing a 
formal complaint of Title IX sexual harassment, including requirements 
that recipients: Treat complainants and respondents equitably by 
providing remedies for complainants when a respondent is found 
responsible, and a grievance process prior to imposing disciplinary 
sanctions or other actions that are not supportive measures, against a 
respondent; \949\ objectively evaluate all relevant evidence and give 
both parties equal opportunity to present witnesses and evidence; \950\ 
not harbor a bias or conflict of interest against either party; \951\ 
and resolve the allegations under designated, reasonably prompt time 
frames.\952\ The Department will hold recipients accountable to follow 
these, and all the other, requirements set forth in Sec.  106.45, 
whether failure to comply affected the complainant, the respondent, or 
both parties.
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    \948\ Section 106.44(a).
    \949\ Section 106.45(b)(1)(i).
    \950\ Section 106.45(b)(1)(ii); Sec.  106.45(b)(5)(ii).
    \951\ Section 106.45(b)(1)(iii).
    \952\ Section 106.45(b)(1)(v).
---------------------------------------------------------------------------

    The Department does not agree that Sec.  106.44(b)(2) will lead to 
increased litigation. The final regulations require recipients to 
protect complainants' equal educational access, while at the same time 
providing both parties due process protections throughout any grievance 
process, and Sec.  106.44(b)(2) does not impair the Department's 
ability to hold recipients accountable for meeting these obligations. 
The Department does not believe that courts are inclined through 
private lawsuits to second guess a recipient's determinations regarding 
responsibility absent allegations that the recipient arrived at a 
determination due to discrimination, bias, procedural irregularity, 
deprivation of constitutionally guaranteed due process protections, or 
other defect that affected the outcome; in other words, the limited 
deference in Sec.  106.44(b)(2) is no greater than the deference courts 
generally also give to recipients' determinations.\953\ As discussed in 
the ``Litigation Risk'' subsection of the ``Miscellaneous'' section of 
this preamble, the Department believes that these final regulations may 
have the effect of reducing litigation arising out of recipients' 
responses to sexual harassment.
---------------------------------------------------------------------------

    \953\ E.g., Wood v. Strickland, 420 U.S. 308, 326 (1975), 
overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 
(1982) (absent ``errors in the exercise of school officials' 
discretion'' that ``rise to the level of violations of specific 
constitutional guarantees''--as would reaching a determination in 
the complete ``absence of evidence'' which would be arbitrary and 
capricious--42 U.S.C. 1983 ``does not extend that right to 
relitigate in federal court evidentiary questions arising in school 
disciplinary proceedings''); Nicholas B. v. Sch. Comm. of Worcester, 
412 Mass. 20, 23-24 (1992) (rejecting a student's claim that the 
student is ``entitled to an independent judicial determination of 
the facts'' concerning the school's finding that the student 
committed battery'') (holding that ``In deciding whether the 
discipline imposed was lawful, no de novo judicial fact-finding is 
required'' and rejecting the contention that the State legislature, 
in enacting the State Civil Rights Act ``intended a de novo review 
of the factual determinations of a school committee in an action 
challenging school discipline'') (citing Wood, 420 U.S. at 326). The 
Department's view of restraint from conducting de novo review of 
recipient determinations regarding responsibility is consistent with 
judicial views recognizing that this type of limited restraint in no 
way impairs the ability of the courts to effectuate the purposes of 
Federal and State civil rights statutes. Similarly, Sec.  
106.44(b)(2) in no way impairs the Department's ability to 
effectuate the purposes of Title IX.
---------------------------------------------------------------------------

    These final regulations do not apply to the EEOC and do not dictate 
how the EEOC will administer Title VII or its implementing regulations. 
If the Assistant Secretary refers a complaint filed with OCR to the 
EEOC under Title VII or 28 CFR 42.605, then the EEOC will make a 
determination under its own regulations and not the Department's 
regulations. Even if the Department is required to give due weight to 
the EEOC's determination regarding Title VII under 28 CFR 42.610(a), 
the Department does not have authority to administer or enforce Title 
VII. There may be incidents of sexual harassment that implicate both 
Title VII and Title IX, and this Department will continue to administer 
Title IX and its implementing regulations and to defer to the EEOC to 
administer Title VII and its implementing regulations. Nothing in these 
final regulations precludes the Department from giving due weight to 
the EEOC's determination regarding Title VII under 28 CFR 
42.610(a).\954\ The Department recognizes that employers must fulfill 
their obligations under Title VII and also under Title IX. There is no 
inherent conflict between Title VII and Title IX, and the Department 
will construe Title IX and its implementing regulations in a manner to 
avoid an actual conflict between an employer's obligations under Title 
VII and Title IX.
---------------------------------------------------------------------------

    \954\ 28 CFR 42.610(c) also states: ``If the referring agency 
determines that the recipient has not violated any applicable civil 
rights provision(s) which the agency has a responsibility to 
enforce, the agency shall notify the complainant, the recipient, and 
the Assistant Attorney General and the Chairman of the EEOC in 
writing of the basis of that determination.'' Accordingly, these 
regulations contemplate that each agency enforces the civil rights 
provisions that the agency has the responsibility to enforce.
---------------------------------------------------------------------------

    The Department wishes to clarify that Sec.  106.44(b)(2) applies 
only to determinations regarding responsibility reached in a Sec.  
106.45 grievance process, which in turn applies only to formal 
complaints (defined in Sec.  106.30 to mean allegations of sexual 
harassment); the Sec.  106.45 grievance process does not apply to 
complaints about other types of sex discrimination. Complaints about 
sex discrimination that is not sexual harassment may be filed with the 
recipient for processing under the prompt and equitable grievance 
procedures that recipients must adopt under Sec.  106.8. We appreciate 
the opportunity to clarify that no regulation or Department practice 
precludes a person from filing a complaint with OCR, whether or not the 
person also could have filed, or did file, a complaint with the school.
    Changes: Section 106.44(b)(2) is revised to reference not only 
deliberate indifference but also other sex discrimination under Title 
IX, and to replace the word ``merely'' with ``solely'' in the phrase 
describing situations in which the Assistant Secretary would have 
reached a different determination based on an independent weighing of 
the evidence.

[[Page 30223]]

Additional Rules Governing Recipients' Responses to Sexual Harassment

Section 106.44(c) Emergency Removal
Overall Support and Opposition to Emergency Removals
    Comments: Some commenters believed that Sec.  106.44(c) provides 
due process protections for respondents while protecting campus safety. 
Some commenters supported this provision because it allows educational 
institutions to respond to situations of immediate danger, while 
protecting respondents from unfair or unnecessary removals. At least 
one commenter appreciated the latitude granted to educational 
institutions under Sec.  106.44(c) to determine how to address safety 
emergencies arising from allegations of sexual harassment. Some 
commenters asserted that this provision appropriately reflects many 
schools' existing behavior risk assessment procedures. Several 
commenters supported Sec.  106.44(c) and recounted personal stories of 
how a respondent was removed from classes, or from school, and the 
negative impact the removal had on that student's professional, 
academic, or extracurricular life because the removal seemed to presume 
the ``guilt'' of the respondent without allegations ever being proved.
    Some commenters wanted to omit the emergency removal provision 
entirely, arguing that if administrators at the postsecondary level 
have the power to preemptively suspend or expel a student, on the 
pretext of an emergency, then every sexual misconduct situation could 
be deemed an emergency and respondents would never receive the due 
process protections of the Sec.  106.45 grievance process. One 
commenter suggested that instead of permitting removals, all 
allegations of sexual harassment should simply go through a more rapid 
investigation so that the respondent may remain in school and victims 
are protected, while any falsely accused respondent is quickly 
exonerated. Some commenters requested that this removal power be 
limited because of the negative consequences of involuntary removal; 
one commenter suggested the provision be modified so that the removal 
must be ``narrowly tailored'' and ``no more extensive than is strictly 
necessary'' to mitigate the health or safety risk. One commenter 
asserted that this provision should also require that interim emergency 
removals be based on objective evidence and on current medical 
knowledge where appropriate, made by a licensed, qualified evaluator.
    Some commenters asserted that emergency removals should not be used 
just because sexual harassment or assault has been alleged, and that 
Sec.  106.44(c) should more clearly define what counts as an emergency. 
Some commenters argued that emergency removals should be allowed if the 
sexual harassment allegation involves rape, but no emergency removal 
should be allowed if the sexual harassment allegation involves 
offensive speech.
    Commenters argued that Sec.  106.44(c) is unclear as to what 
constitutes an immediate threat to health or safety. Several commenters 
argued that emergency removals should be restricted to instances where 
there is ``an immediate threat to safety'' (not health), while other 
commenters argued this provision must be limited to ``physical'' 
threats to health or safety. Commenters argued that a ``threat to 
health or safety'' is too nebulous a concept to justify immediate 
removal from campus. According to one commenter, even speaking on 
campus in favor of the NPRM could be construed by schools or student 
activists as a threat to the emotional or mental ``health or safety'' 
of survivors, even though discussion of public policy is core political 
speech protected by the First Amendment.
    One commenter stated that the use of the plural ``students and 
employees'' in Sec.  106.44(c) may preclude an institution from taking 
emergency action when the immediate threat is to a single student or 
employee. Commenters argued that postsecondary institutions need the 
flexibility to address immediate threats to the safety of one student 
or employee in the same manner as threats to multiple students or 
employees. Some commenters asserted that Sec.  106.44(c) would 
unreasonably limit a postsecondary institution's ability to protect 
persons and property, or to protect against potential disruption of the 
educational environment, and argued that an institution should have the 
discretion to invoke an emergency removal under circumstances beyond 
those listed in Sec.  106.44(c). Commenters argued that Sec.  106.44(c) 
is too limiting because it does not allow recipients to pursue an 
emergency removal where the respondent poses a threat of illegal 
conduct that is not about a health or safety emergency; commenters 
contended this will subject the complainant or others to ongoing 
illegal conduct just because it does not constitute a threat to health 
or safety. Commenters argued that in addition to a health or safety 
threat, this provision should consider the need to restore or preserve 
equal access to education as justification for emergency removals. One 
commenter asserted that a legitimate reason to institute an emergency 
removal of a respondent is a threat that the respondent may obstruct 
the collection of relevant information regarding the sexual harassment 
allegations at issue.
    One commenter cited New York Education Law Article 129-B as an 
example of a detailed framework under which campus officials may 
conduct an individualized threat assessment, order an interim 
suspension, and provide due process; commenters asserted that courts 
hold that the due process required for an interim suspension does not 
need to consist of a full hearing.\955\ Another commenter argued that 
this provision would constitute an unprecedented Federal preemption of 
Oregon's existing State and local student discipline rules, which 
establish the due process requirements for emergency removals from 
school. Commenters argued that Sec.  106.44(c) would create a higher 
level of due process for emergency removals in situations that involve 
alleged sexual harassment than for any other behavioral violation, and 
that the proposed rules are unclear whether this heightened procedural 
requirement is triggered only when a complainant alleges sexual 
harassment as defined in Sec.  106.30, or is also triggered in any case 
where a complainant alleges sexual harassment that meets a State law 
definition or school code of conduct that may define sexual harassment 
more broadly than conduct meeting the Sec.  106.30 definition.
---------------------------------------------------------------------------

    \955\ Commenters cited: Haidak v. Univ. of Mass. at Amherst, 299 
F. Supp. 3d 242, 265-66 (D. Mass. 2018), aff'd in part, vacated in 
part, remanded by Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56 (1st 
Cir. 2019).
---------------------------------------------------------------------------

    Some commenters suggested that Sec.  106.44(c) be modified to 
require periodic review of any emergency removal decision, to promote 
transparency and eliminate the possibility of leaving a respondent on 
interim suspension indefinitely. Commenters argued that immediate 
removal is very traumatic, and respondents who have been removed have a 
significant potential to react by harming themselves or others thus 
recipients should reduce these risks by ensuring a safe exit plan with 
adequate support for the respondent in place.
    Commenters asserted that the goal should be to preserve educational 
opportunities for all parties involved to the extent possible, so Sec.  
106.44(c) should require recipients to provide alternative academic 
accommodations for respondents who are removed. Some

[[Page 30224]]

commenters suggested that this provision should address a respondent's 
access to a recipient's program or activity, post-removal. Because 
emergency removal is not premised on a finding of responsibility and 
occurs ex parte, commenters argued that the recipient should be 
required to provide a respondent with alternative access to the 
respondent's academic classes during the period of removal and that 
failure to do so would be sex discrimination against the respondent. 
Some commenters argued that as to a respondent who is removed on an 
emergency basis and later found to be not responsible, the final 
regulations should require the recipient to mitigate the damage caused 
by the removal, for example, by allowing the respondent to retake 
classes or exams missed during the removal. One commenter suggested 
that a recipient should secure the personal property of the removed 
person (such as the respondent's vehicle) and be responsible for any 
loss or damage occurring to personal property during a removal.
    Other commenters asserted that an individualized risk assessment 
should be required after every report of sexual assault. Commenters 
argued that because insurance statistics show a high degree of 
recidivism among college rapists, and because Title IX is also supposed 
to deter discrimination based on sex, schools should be required to 
consider the safety of other students on their campus if they know 
there is a possible sexual assailant in their midst.
    One commenter suggested that licensing board procedures provide the 
best model for campus procedures because they offer the closest 
parallel to the types of behavior evaluated and issues at stake for 
respondents such as reputation, future livelihood, and future 
opportunities; the commenter asserted that court precedents hold that 
both public and private recipients must follow principles of 
fundamental due process and fundamental fairness in disciplinary 
processes,\956\ and professional licensing board procedures adequately 
protect due process. One commenter applauded the Department for 
proposing to provide greater due process protections than what current 
procedures typically provide; however, this commenter asserted that 
Native American students attending institutions funded by the Bureau of 
Indian Affairs receive strong due process protections, including 
greater due process with respect to emergency removals than what Sec.  
106.44(c) provides, and the commenter contended that the stronger due 
process protections should be extended to non-Native American 
institutions.\957\ According to this commenter, unlike Native American 
students attending schools funded by the Bureau of Indian Affairs, non-
Native American students are at risk for permanent removal from campus 
with potentially devastating consequences.
---------------------------------------------------------------------------

    \956\ Commenter cited: Boehm v. Univ. of Pa. Sch. of Veterinary 
Med., 573 A.2d 575, 578 (Pa. Super. Ct. 1990).
    \957\ Commenters cited: 25 CFR 42.1-42.10.
---------------------------------------------------------------------------

    One commenter asserted that Sec.  106.44(c) should explicitly 
require the recipient to comply with the Clery Act, notify appropriate 
authorities, and provide any necessary safety interventions. Another 
commenter stated that recipients should be required to publicly report 
the annual number of emergency removals the recipient conducts under 
Sec.  106.44(c).
    Some commenters asserted that recipients need to do more than 
simply remove a respondent from its education program or activity. 
Commenters argued that trauma from sexual assault may cause a 
complainant to withdraw from an education program or activity, 
including due to fear of seeing the respondent, suggested that more 
resources should be made available to complainants, and asserted that 
the final regulations should specify best practices addressing how a 
recipient should respond to immediate threats.
    Discussion: We appreciate commenters' support for the emergency 
removal provision in Sec.  106.44(c). Revised in ways explained below, 
Sec.  106.44(c) provides that in situations where a respondent poses an 
immediate threat to the physical health and safety of any individual 
before an investigation into sexual harassment allegations concludes 
(or where no grievance process is pending), a recipient may remove the 
respondent from the recipient's education programs or activities. A 
recipient may need to undertake an emergency removal in order to 
fulfill its duty not to be deliberately indifferent under Sec.  
106.44(a) and protect the safety of the recipient's community, and 
Sec.  106.44(c) permits recipients to remove respondents in emergency 
situations that arise out of allegations of conduct that could 
constitute sexual harassment as defined in Sec.  106.30. Emergency 
removal may be undertaken in addition to implementing supportive 
measures designed to restore or preserve a complainant's equal access 
to education.\958\ While we recognize that emergency removal may have 
serious consequences for a respondent, we decline to remove this 
provision because where a genuine emergency exists, recipients need the 
authority to remove a respondent while providing notice and opportunity 
for the respondent to challenge that decision.
---------------------------------------------------------------------------

    \958\ Section 106.44(a) requires a recipient to offer supportive 
measures to every complainant, including by having the Title IX 
Coordinator engage with the complainant in an interactive process 
that takes into account the complainant's wishes regarding available 
supportive measures.
---------------------------------------------------------------------------

    The Department does not believe that rushing all allegations of 
sexual harassment or sexual assault through expedited grievance 
procedures adequately promotes a fair grievance process, and forbidding 
an emergency removal until conclusion of a grievance process (no matter 
how expedited such a process reasonably could be) might impair a 
recipient's ability to quickly respond to an emergency situation. The 
Sec.  106.45 grievance process is designed to provide both parties with 
a prompt, fair investigation and adjudication likely to reach an 
accurate determination regarding the responsibility of the respondent 
for perpetrating sexual harassment. Emergency removal under Sec.  
106.44(c) is not a substitute for reaching a determination as to a 
respondent's responsibility for the sexual harassment allegations; 
rather, emergency removal is for the purpose of addressing imminent 
threats posed to any person's physical health or safety, which might 
arise out of the sexual harassment allegations. Upon reaching a 
determination that a respondent is responsible for sexual harassment, 
the final regulations do not restrict a recipient's discretion to 
impose a disciplinary sanction against the respondent, including 
suspension, expulsion, or other removal from the recipient's education 
program or activity. Section 106.44(c) allows recipients to address 
emergency situations, whether or not a grievance process is underway, 
provided that the recipient first undertakes an individualized safety 
and risk analysis and provides the respondent notice and opportunity to 
challenge the removal decision. We do not believe it is necessary to 
restrict a recipient's emergency removal authority to removal decisions 
that are ``narrowly tailored'' to address the risk because Sec.  
106.44(c) adequately requires that the threat ``justifies'' the 
removal. If the high threshold for removal under Sec.  106.44(c) exists 
(i.e., an individualized safety and risk analysis determines the 
respondent poses an immediate threat to any person's physical health or 
safety), then

[[Page 30225]]

we believe the recipient should have discretion to determine the 
appropriate scope and conditions of removal of the respondent from the 
recipient's education program or activity. Similarly, we decline to 
require recipients to follow more prescriptive requirements to 
undertake an emergency removal (such as requiring that the assessment 
be based on objective evidence, current medical knowledge, or performed 
by a licensed evaluator). While such detailed requirements might apply 
to a recipient's risk assessments under other laws, for the purposes of 
these final regulations under Title IX, the Department desires to leave 
as much flexibility as possible for recipients to address any immediate 
threat to the physical health or safety of any student or other 
individual. Nothing in these final regulations precludes a recipient 
from adopting a policy or practice of relying on objective evidence, 
current medical knowledge, or a licensed evaluator when considering 
emergency removals under Sec.  106.44(c).
    We agree that emergency removal is not appropriate in every 
situation where sexual harassment has been alleged, but only in 
situations where an individualized safety and risk analysis determines 
that an immediate threat to the physical health or safety of any 
student or other individual justifies the removal, where the threat 
arises out of allegations of sexual harassment as defined in Sec.  
106.30. Because all the conduct that could constitute sexual harassment 
as defined in Sec.  106.30 is serious conduct that jeopardizes a 
complainant's equal access to education, we decline to limit emergency 
removals only to instances where a complainant has alleged sexual 
assault or rape, or to prohibit emergency removals where the sexual 
harassment allegations involve verbal harassment. A threat posed by a 
respondent is not necessarily measured solely by the allegations made 
by the complainant; we have revised Sec.  106.44(c) to add the phrase 
``arising from the allegations of sexual harassment'' to clarify that 
the threat justifying a removal could consist of facts and 
circumstances ``arising from'' the sexual harassment allegations (and 
``sexual harassment'' is a defined term, under Sec.  106.30). For 
example, if a respondent threatens physical violence against the 
complainant in response to the complainant's allegations that the 
respondent verbally sexually harassed the complainant, the immediate 
threat to the complainant's physical safety posed by the respondent may 
``arise from'' the sexual harassment allegations. As a further example, 
if a respondent reacts to being accused of sexual harassment by 
threatening physical self-harm, an immediate threat to the respondent's 
physical safety may ``arise from'' the allegations of sexual harassment 
and could justify an emergency removal. The ``arising from'' revision 
also clarifies that recipients do not need to rely on, or meet the 
requirements of, Sec.  106.44(c) to address emergency situations that 
do not arise from sexual harassment allegations under Title IX (for 
example, where a student has brought a weapon to school unrelated to 
any sexual harassment allegations).
    We are persuaded by commenters that Sec.  106.44(c) should be 
clarified. The final regulations revise this provision to state that 
the risk posed by the respondent must be to the ``physical'' health or 
safety, of ``any student or other individual,'' arising from the 
allegations of sexual harassment. These revisions help ensure that this 
provision applies to genuine emergencies involving the physical health 
or safety of one or more individuals (including the respondent, 
complainant, or any other individual) and not only multiple students or 
employees. We agree with commenters who asserted that adding the word 
``physical'' before ``health or safety'' will help ensure that the 
emergency removal provision is not used inappropriately to prematurely 
punish respondents by relying on a person's mental or emotional 
``health or safety'' to justify an emergency removal, as the emotional 
and mental well-being of complainants may be addressed by recipients 
via supportive measures as defined in Sec.  106.30. The revision to 
Sec.  106.44(c) adding the word ``physical'' before ``health and 
safety'' and changing ``students or employees'' to ``any student or 
other individual'' also addresses commenters' concerns that the 
proposed rules were not specific enough about what kind of threat 
justifies an emergency removal; the latter revision clarifies that the 
threat might be to the physical health or safety of one or more 
persons, including the complainant, the respondent themselves, or any 
other individual. We decline to remove ``health'' from the ``physical 
health or safety'' phrase in this provision because an emergency 
situation could arise from a threat to the physical health, or the 
physical safety, of a person, and because ``health or safety'' is a 
relatively recognized term used to describe emergency 
circumstances.\959\
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    \959\ E.g., 20 U.S.C. 1232g(b)(1)(I) (allowing disclosure, 
without prior written consent, of personally identifiable 
information from a student's education records ``subject to 
regulations of the Secretary, in connection with an emergency, 
appropriate persons if the knowledge of such information is 
necessary to protect the health or safety of the student or other 
persons''); 34 CFR 99.31(a)(10) and 34 CFR 99.36 (regulations 
implementing FERPA).
---------------------------------------------------------------------------

    We decline to add further bases that could justify an emergency 
removal under Sec.  106.44(c). We recognize the importance of the need 
to restore or preserve equal access to education, but disagree that it 
should be a justification for emergency removal; supportive measures 
are intended to address restoration and preservation of equal 
educational access, while Sec.  106.44(c) is intended to apply to 
genuine emergencies that justify essentially punishing a respondent (by 
separating the respondent from educational opportunities and benefits) 
arising out of sexual harassment allegations without having fairly, 
reliably determined whether the respondent is responsible for the 
alleged sexual harassment. As explained above, we have revised Sec.  
106.44(c) to apply only where the immediate threat to a person's 
physical health or safety arises from the allegations of sexual 
harassment; this clarifies that where a respondent poses a threat of 
illegal conduct (perhaps not constituting a threat to physical health 
or safety) that does not arise from the sexual harassment allegations, 
this provision does not apply. Nothing in these final regulations 
precludes a recipient from addressing a respondent's commission of 
illegal conduct under the recipient's own code of conduct, or pursuant 
to other laws, where such illegal conduct does not constitute sexual 
harassment as defined in Sec.  106.30 or is not ``arising from the 
sexual harassment allegations.'' We disagree that a recipient's 
assessment that a respondent poses a threat of obstructing the sexual 
harassment investigation, or destroying relevant evidence, justifies an 
emergency removal under this provision, because this provision is 
intended to ensure that recipients have authority and discretion to 
address health or safety emergencies arising out of sexual harassment 
allegations, not to address all forms of misconduct that a respondent 
might commit during a grievance process.
    The Department appreciates commenters' concerns that State or local 
law may present other considerations or impose other requirements 
before an emergency removal can occur. To the extent that other 
applicable laws establish additional relevant standards for emergency 
removals, recipients

[[Page 30226]]

should also heed such standards. To the greatest degree possible, State 
and local law ought to be reconciled with the final regulations, but to 
the extent there is a direct conflict, the final regulations 
prevail.\960\ While commenters correctly note that a ``full hearing'' 
is not a constitutional due process requirement in all interim 
suspension situations, Sec.  106.44(c) does not impose a requirement to 
hold a ``full hearing'' and in fact, does not impose any pre-
deprivation due process requirements; the opportunity for a respondent 
to challenge an emergency removal decision need only occur post-
deprivation. For reasons described in the ``Role of Due Process in the 
Grievance Process'' section of this preamble, the Department has 
determined that postsecondary institutions must hold live hearings to 
reach determinations regarding responsibility for sexual harassment. 
However, because Sec.  106.44(c) is intended to give recipients 
authority to respond quickly to emergencies, and does not substitute 
for a determination regarding the responsibility of the respondent for 
the sexual harassment allegations at issue, recipients need only 
provide respondents the basic features of due process (notice and 
opportunity), and may do so after removal rather than before a removal 
occurs. An emergency removal under Sec.  106.44(c) does not authorize a 
recipient to impose an interim suspension or expulsion on a respondent 
because the respondent has been accused of sexual harassment. Rather, 
this provision authorizes a recipient to remove a respondent from the 
recipient's education program or activity (whether or not the recipient 
labels such a removal as an interim suspension or expulsion, or uses 
any different label to describe the removal) when an individualized 
safety and risk analysis determines that an imminent threat to the 
physical health or safety of any person, arising from sexual harassment 
allegations, justifies removal.
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    \960\ See discussion under the ``Section 106.6(h) Preemptive 
Effect'' subsection of the ``Clarifying Amendments to Existing 
Regulations'' section of this preamble; see also discussion under 
the ``Spending Clause'' subsection of the ``Miscellaneous'' section 
of this preamble.
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    Section 106.44(c) expressly acknowledges that recipients may be 
obligated under applicable disability laws to conduct emergency 
removals differently with respect to individuals with disabilities, and 
these final regulations do not alter a recipient's obligation to adhere 
to the IDEA, Section 504, or the ADA. Due to a recipient's obligations 
under applicable State laws or disability laws, uniformity with respect 
to how a recipient addresses all cases involving immediate threats to 
physical health and safety may not be possible. However, the Department 
believes that Sec.  106.44(c) appropriately balances the need for 
schools to remove a respondent posing an immediate threat to the 
physical health or safety of any person, with the need to ensure that 
such an ability is not used inappropriately, for instance to bypass the 
prohibition in Sec.  106.44(a) and Sec.  106.45(b)(1)(i) against 
imposition of disciplinary sanctions or other actions that are not 
supportive measures against a respondent without first following the 
Sec.  106.45 grievance process. The Department does not believe that a 
lower threshold for an emergency removal appropriately balances these 
interests, even if this means that emergency removals arising from 
allegations of sexual harassment must meet a higher standard than when 
a threat arises from conduct allegations unrelated to Title IX sexual 
harassment. In response to commenters' reasonable concerns about the 
potential for confusion, we have added the phrase ``arising from the 
allegations of sexual harassment'' (and ``sexual harassment'' is a 
defined term under Sec.  106.30) into this provision to clarify that 
this emergency removal provision only governs situations that arise 
under Title IX, and not under State or other laws that might apply to 
other emergency situations.
    The Department does not see a need to add language stating that the 
emergency removal must be periodically reviewed. Emergency removal is 
not a substitute for the Sec.  106.45 grievance process, and Sec.  
106.45(b)(1)(v) requires reasonably prompt time frames for that 
grievance process. We acknowledge that a recipient could remove a 
respondent under Sec.  106.44(c) without a formal complaint having 
triggered the Sec.  106.45 grievance process; in such situations, the 
requirements in Sec.  106.44(c) giving the respondent notice and 
opportunity to be heard post-removal suffice to protect a respondent 
from a removal without a fair process for challenging that outcome, and 
the Department does not believe it is necessary to require periodic 
review of the removal decision. We decline to impose layers of 
complexity onto the emergency removal process, leaving procedures in 
recipients' discretion; in many cases, recipients will develop a ``safe 
exit plan'' as part of implementing an emergency removal, and 
accommodate students who have been removed on an emergency basis with 
alternative means to continue academic coursework during a removal 
period or provide for a respondent to re-take classes upon a return 
from an emergency removal, or secure personal property left on a 
recipient's campus when a respondent is removed. We disagree that a 
recipient's failure to refusal to take any of the foregoing steps 
necessarily constitutes sex discrimination under Title IX, although a 
recipient would violate Title IX by, for example, applying different 
policies to female respondents than to male respondents removed on an 
emergency basis. Nothing in the final regulations prevents students who 
have been removed from asserting rights under State law or contract 
against the recipient arising from a removal under this provision.
    We decline to require an individualized safety and risk analysis 
upon every reported sexual assault, because the Sec.  106.45 grievance 
process is designed to bring all relevant evidence concerning sexual 
harassment allegations to the decision-maker's attention so that a 
determination regarding responsibility is reached fairly and reliably. 
A recipient is obligated under Sec.  106.44(a) to provide a complainant 
with a non-deliberately indifferent response to a sexual assault 
report, which includes offering supportive measures designed to protect 
the complainant's safety, and if a recipient does not provide a 
complainant with supportive measures, then the recipient must document 
the reasons why such a response was not clearly unreasonable in light 
of the known circumstances pursuant to Sec.  106.45(b)(10)(ii). 
Emergency removals under Sec.  106.44(c) remain an option for 
recipients to respond to situations where an individualized safety and 
risk analysis determines that a respondent poses an immediate threat to 
health or safety.
    The Department appreciates commenters' assertions that Sec.  
106.44(c) should provide more due process protections, similar to those 
applied in professional licensing board cases or under Federal laws 
that apply to schools funded by the Bureau of Indian Affairs; however, 
we believe that Sec.  106.44(c) appropriately balances a recipient's 
need to protect individuals from emergency threats, with providing 
adequate due process to the respondent under such emergency 
circumstances. Notice and an opportunity to be heard constitute the 
fundamental features of procedural due process, and the Department does 
not wish to prescribe specific procedures that a recipient must apply 
in emergency situations. Accordingly, the Department does not

[[Page 30227]]

wish to adopt the same due process protections that commenters asserted 
are applied in professional licensing revocation proceedings, or that 
are provided to Native American students in schools funded by the 
Bureau of Indian Affairs. The Department acknowledges that schools 
receiving funding from the Bureau of Indian Affairs must provide even 
greater due process protections than what these final regulations 
require, but these greater due process protections do not conflict with 
these final regulations. These final regulations govern a variety of 
recipients, including elementary and secondary schools and 
postsecondary institutions, but also recipients that are not 
educational institutions; for example, some libraries and museums are 
recipients of Federal financial assistance operating education programs 
or activities. These final regulations provide the appropriate amount 
of due process for a wide variety of recipients of Federal financial 
assistance with respect to a recipient's response to emergency 
situations.
    As discussed in the ``Clery Act'' subsection of the 
``Miscellaneous'' section of this preamble, postsecondary institutions 
subject to these Title IX regulations may also be subject to the Clery 
Act. We decline to state in Sec.  106.44(c) that recipients must also 
comply with the Clery Act because we do not wish to create confusion 
about whether Sec.  106.44(c) applies only to postsecondary 
institutions (because the Clery Act does not apply to elementary and 
secondary schools). We decline to require recipients to notify 
authorities, provide safety interventions, or annually report the 
number of emergency removals conducted under Sec.  106.44(c), because 
we do not wish to prescribe requirements on recipients beyond what we 
have determined is necessary to fulfill the purpose of this provision: 
Granting recipients authority and discretion to appropriately respond 
to emergency situations arising from sexual harassment allegations. 
Nothing in these final regulations precludes a recipient from notifying 
authorities, providing safety interventions, or reporting the number of 
emergency removals, to comply with other laws requiring such steps or 
based on a recipient's desire to take such steps. For similar reasons, 
we decline to require recipients to adopt ``best practices'' for 
responding to threats. We note that these final regulations require 
recipients to offer supportive measures to every complainant, and do 
not preclude a recipient from providing resources to complainants or 
respondents.
    Changes: We have revised Sec.  106.44(c) so that a respondent 
removed on an emergency basis must pose an immediate threat to the 
``physical'' health or safety (adding the word ``physical'') of ``any 
student or other individual'' (replacing the phrase ``students or 
employees''). We have also revised the proposed language to clarify 
that the justification for emergency removal must arise from 
allegations of sexual harassment under Title IX.
Intersection With the IDEA, Section 504, and ADA
    Comments: Some commenters applauded the ``saving clause'' in Sec.  
106.44(c) acknowledging that the respondent may have rights under the 
IDEA, Section 504, or the ADA. Several commenters asserted that Sec.  
106.44(c) would create uncertainty regarding the interplay between 
Title IX and relevant disabilities laws, which would further exacerbate 
the uncertainty regarding involuntary removal of students who pose a 
threat to themselves. Other commenters stated that the result of this 
provision would likely be different handling of Title IX cases for 
students with disabilities versus students without disabilities because 
of the requirements of the IDEA, Section 504, and the ADA. Some 
commenters believed this provision (and the proposed rules overall) 
appear to give consideration to the rights and needs of respondents 
with disabilities, without similar consideration for the rights of 
complainants or witnesses with disabilities. Commenters asserted that 
Sec.  106.44(c) is subject to problematic interpretation because by 
expressly referencing the IDEA, Section 504, and the ADA this provision 
might wrongly encourage schools to remove students with disabilities 
because of implicit bias against students with disabilities, especially 
students with intellectual disabilities.
    One commenter suggested that Sec.  106.44(c) should track the 
definition of ``direct threat'' used in the Equal Employment 
Opportunity Commission's (EEOC) regulations, upheld by the Supreme 
Court,\961\ and as outlined in ADA regulations \962\ because this would 
give recipients and respondents a clearer standard and reduce the 
chances that removal decisions will be based on generalizations, 
ignorance, fear, patronizing attitudes, or stereotypes regarding 
individuals with disabilities.
---------------------------------------------------------------------------

    \961\ Commenters cited: Chevron U.S.A. Inc. v. Echazabal, 536 
U.S. 73 (2002).
    \962\ Commenters cited: 28 CFR 35.139(b) (``In determining 
whether an individual poses a direct threat to the health or safety 
of others, a public entity must make an individualized assessment, 
based on reasonable judgment that relies on current medical 
knowledge or on the best available objective evidence, to ascertain: 
the nature, duration, and severity of the risk; the probability that 
the potential injury will actually occur; and whether reasonable 
modifications of policies, practices, or procedures or the provision 
of auxiliary aids or services will mitigate the risk.'').
---------------------------------------------------------------------------

    Some commenters argued that this provision conflicts with the IDEA, 
Section 504, and the ADA, and that removals are not as simple as 
conducting a mere risk assessment, because the IDEA governs emergency 
removal of students in elementary school who are receiving special 
education and related services.\963\ Commenters asserted that under the 
IDEA, a school administrator cannot make a unilateral risk assessment, 
and placement decisions cannot be made by an administrator alone; 
rather, commenters argued, these decisions must be made by a team that 
includes the parent and relevant members of the IEP (Individualized 
Education Program) Team and if the conduct in question was a 
manifestation of a disability, the recipient cannot make a unilateral 
threat assessment and remove a child from school, absent extreme 
circumstances. These commenters further argued that sometimes certain 
behaviors are the result or manifestation of a disability, despite 
being sexually offensive, e.g., a student with Tourette's syndrome 
blurting out sexually offensive language. Commenters argued that under 
disability laws schools cannot remove those students from school 
without complying with the IDEA, Section 504, and the ADA. One 
commenter recommended that Sec.  106.44(c) require, at a minimum, 
training for Title IX administrators on the intersection among Title IX 
and applicable disability laws. In the college setting, the commenter 
further recommended that Title IX Coordinators not be permitted to 
impose supportive measures that involve removal without feedback from 
administrators from the institution's office of disability services, 
provided that the student is registered with the pertinent office. If a 
student has an Individualized Education Plan (IEP) in secondary school, 
commenters recommended that the administration immediately call for a 
team meeting to determine the next steps.
---------------------------------------------------------------------------

    \963\ Commenters cited: Glen by & through Glen v. Charlotte-
Mecklenburg Sch. Bd. of Educ., 903 F. Supp. 918, 935 (W.D.N.C. 1995) 
(``[W]here student poses an immediate threat, [the school] may 
temporarily suspend up to 10 school days.'').
---------------------------------------------------------------------------

    Other commenters asserted that any language under Sec.  106.44(c) 
must make clear that the free appropriate public education (FAPE) to 
which students

[[Page 30228]]

with disabilities are entitled must continue, even in circumstances 
when emergency removal is deemed necessary under Title IX. Given this, 
one commenter recommended that the language in Sec.  106.44(c) clarify 
that this provision does not supersede rights under disability laws.
    Some commenters, while expressing overall support for Sec.  
106.44(c), requested additional guidance on the intersection of Title 
IX, the IDEA, and the ADA, and how elementary and secondary schools 
would implement Sec.  106.44(c). The commenters asserted that the final 
regulations should be explicit that regardless of a student's IEP or 
``504 plan'' under the IDEA or Section 504, the student is not allowed 
to engage in threatening or harmful behavior and that this would be 
similar to the response a campus might have to any other serious 
violation, such as bringing a firearm to class. Commenters also argued 
that the final regulations should clarify that separation of elementary 
and secondary school students with disabilities from classroom settings 
should be rare and only when done in compliance with the IDEA. 
Commenters argued that recipients must be made aware that a student 
with a disability does not have to be eligible for a free appropriate 
public education (FAPE) in order for Sec.  106.44(c) to apply, and that 
recipients must not be misled into thinking there are different 
standards for elementary and secondary school and postsecondary 
education environments when it comes to equal access to educational 
opportunities.
    Other commenters argued that Sec.  106.44(c) may violate compulsory 
educational laws by removing elementary-age students from school on an 
emergency basis. When an elementary school student is removed under 
Sec.  106.44(c), commenters wondered whether the school is supposed to 
have a designated site for housing or educating removed students during 
the investigation.
    Discussion: Section 106.44(c) states that this provision does not 
modify any rights under the IDEA, Section 504, or the ADA. In the final 
regulations, we removed reference to certain titles of the ADA and 
refer instead to the ``Americans with Disabilities Act'' so that 
application of any portion of the ADA requires a recipient to meet ADA 
obligations while also complying with these final regulations. We 
disagree that this provision will create ambiguity or otherwise 
supersede rights that students have under these disability statutes. 
Additionally, we do not believe that expressly acknowledging 
recipients' obligations under disability laws incentivizes recipients 
to remove respondents with disabilities; rather, reference in this 
provision to those disability laws will help protect respondents from 
emergency removals that do not also protect the respondents' rights 
under applicable disability laws. With respect to implicit bias against 
students with disabilities, recipients must be careful to ensure that 
all emergency removal proceedings are impartial, without bias or 
conflicts of interest \964\ and the final regulations do not preclude a 
recipient from providing training to employees, including Title IX 
personnel, regarding a recipient's obligations under both Title IX and 
applicable disability laws. Any different treatment between students 
without disabilities and students with disabilities with respect to 
emergency removals, may occur due to a recipient's need to comply with 
the IDEA, Section 504, the ADA, or other disability laws, but would not 
be permissible due to bias or stereotypes against individuals with 
disabilities.
---------------------------------------------------------------------------

    \964\ Section 106.45(b)(1)(iii) requires all Title IX 
Coordinators (and investigators, decision-makers, and persons who 
facilitate informal resolution processes) to be free from conflicts 
of interest or bias against complainants and respondents generally 
or against an individual complainant or respondent, and requires 
training for such personnel that includes (among other things) how 
to serve impartially. A ``respondent'' under Sec.  106.30 means any 
individual who has been reported to be the perpetrator of conduct 
that could constitute sexual harassment; thus, a Title IX 
Coordinator interacting with a respondent undergoing an emergency 
removal must serve impartially, without conflict of interest or 
bias.
---------------------------------------------------------------------------

    As explained in the ``Directed Question 5: Individuals with 
Disabilities'' subsection of the ``Directed Questions'' section of this 
preamble, recipients have an obligation to comply with applicable 
disability laws with respect to complainants as well as respondents 
(and any other individual involved in a Title IX matter, such as a 
witness), and the reference to disability laws in Sec.  106.44(c) does 
not obviate recipients' responsibilities to comply with disability laws 
with respect to other applications of these final regulations.
    The Department appreciates commenters' suggestion to mirror the 
``direct threat'' language utilized in ADA regulations; however, we 
have instead revised Sec.  106.44(c) to refer to the physical health or 
safety of ``any student or other individual'' because this language 
better aligns this provision with the FERPA health and safety emergency 
exception, and avoids the confusion caused by the ``direct threat'' 
language under ADA regulations because those regulations refer to a 
``direct threat to the health or safety of others'' \965\ which does 
not clearly encompass a threat to the respondent themselves (e.g., 
where a respondent threatens self-harm). By revising Sec.  106.44(c) to 
refer to a threat to the physical health or safety ``of any student or 
other individual'' this provision does encompass a respondent's threat 
of self-harm (when the threat arises from the allegations of sexual 
harassment), and is aligned with the language used in FERPA's health or 
safety exception.\966\ We note that recipients still need to comply 
with applicable disability laws, including the ADA, in making emergency 
removal decisions.
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    \965\ 28 CFR 35.139(b) (``In determining whether an individual 
poses a direct threat to the health or safety of others, a public 
entity must make an individualized assessment, based on reasonable 
judgment that relies on current medical knowledge or on the best 
available objective evidence, to ascertain: The nature, duration, 
and severity of the risk; the probability that the potential injury 
will actually occur; and whether reasonable modifications of 
policies, practices, or procedures or the provision of auxiliary 
aids or services will mitigate the risk.'') (emphasis added).
    \966\ E.g., 20 U.S.C. 1232g(b)(1)(I) (allowing disclosure, 
without prior written consent, of personally identifiable 
information from a student's education records ``subject to 
regulations of the Secretary, in connection with an emergency, 
appropriate persons if the knowledge of such information is 
necessary to protect the health or safety of the student or other 
persons''); see also regulations implementing FERPA, 34 CFR 
99.31(a)(10) and 99.36.
---------------------------------------------------------------------------

    The Department appreciates commenters' varied concerns that 
complying with these final regulations, and with disability laws, may 
pose challenges for recipients, including specific challenges for 
elementary and secondary schools, and postsecondary institutions, 
because of the intersection among the IDEA, Section 504, the ADA, and 
how to conduct an emergency removal under these final regulations under 
Title IX. The Department will offer technical assistance to recipients 
regarding compliance with laws under the Department's enforcement 
authority. However, the Department does not believe that recipients' 
obligations under multiple civil rights laws requires changing the 
emergency removal provision in Sec.  106.44(c) because this is an 
important provision to ensure that recipients have flexibility to 
balance the need to address emergency situations with fair treatment of 
a respondent who has not yet been proved responsible for sexual 
harassment. The Department does not believe that applicable disability 
laws, or other State laws, render a recipient unable to comply with all 
relevant legal obligations. For instance, with respect to compulsory 
education laws, nothing in Sec.  106.44(c) relieves a recipient from 
complying

[[Page 30229]]

with State laws requiring that students under a certain age receive 
government-provided education services. As a further example, nothing 
in Sec.  106.44(c) prevents a recipient from involving a student's IEP 
team before making an emergency removal decision, and Sec.  106.44(c) 
does not require a recipient to remove a respondent where the recipient 
has determined that the threat posed by the respondent, arising from 
the sexual harassment allegations, is a manifestation of a disability 
such that the recipient's discretion to remove the respondent is 
constrained by IDEA requirements.
    Changes: We have replaced the phrase ``students or employees'' with 
the phrase ``any student or other individual'' in Sec.  106.44(c) and 
removed specification of certain titles of the ADA, instead referencing 
the whole of the ADA.
Post-Removal Challenges
    Comments: Some commenters supported Sec.  106.44(c) giving 
respondents notice and opportunity to challenge the removal immediately 
after the removal, because during a removal a respondent might lose a 
significant amount of instructional time while waiting for a grievance 
proceeding to conclude, and being out of school can harm the academic 
success and emotional health of the removed student. Other commenters 
asserted that respondents should not be excluded from a recipient's 
education program or activity until conclusion of a grievance process, 
and a post-removal challenge after the fact is insufficient to assure 
due process for respondents, especially because Sec.  106.44(c) does 
not specify requirements for the time frame or procedures used for a 
challenging the removal decision.
    Some commenters argued that the ability of a removed respondent to 
challenge the removal would pose an unnecessary increased risk to the 
safety of the community, especially because Sec.  106.44(c) already 
requires the recipient to determine the removal was justified by an 
individualized safety and risk analysis. Commenters argued that a 
school's emergency removal decision should stand until a threat 
assessment team has met and given a recommendation to affirm or 
overrule the decision.
    Some commenters asserted that Sec.  106.44(c) is ambiguous about 
the right to a post-removal challenge and argued that the failure to 
provide more clarity is problematic because it is unclear if the 
``immediate'' challenge must occur minutes, hours, one day, or several 
days after the removal. Commenters argued that a plain language 
interpretation of ``immediately'' may require the challenge to occur 
minutes after the suspension, but this could jeopardize the safety of 
the complainant and the community, because the very point of an interim 
suspension is to remove a known risk from campus. Other commenters 
argued that requiring an ``immediate'' post-removal challenge could 
undermine the respondent's due process rights, because the respondent 
might not be physically present on campus when the interim suspension 
(e.g., removal) is issued. Some commenters argued that there should be 
a delay between when the removal occurred and when the opportunity to 
challenge occurs, because students and employees are often afraid of 
providing information to college administrations due to legitimate, 
reasonable fear for their own safety. Commenters requested that this 
provision be modified to give the respondent a challenge opportunity 
``as soon as reasonably practicable'' rather than ``immediately.'' 
Commenters asked whether providing a challenge opportunity 
``immediately'' must, or could, be the same as the ``prompt'' time 
frames required under Sec.  106.45.
    Discussion: The Department appreciates commenters' support of the 
post-removal challenge opportunity provided in Sec.  106.44(c). The 
Department disagrees with commenters who suggested that no challenge to 
removals ought to be possible, and believes that Sec.  106.44(c) 
appropriately balances the interests involved in emergency situations. 
We do not believe that prescribing procedures for the post-removal 
challenge is necessary or desirable, because this provision ensures 
that respondents receive the essential due process requirements of 
notice and opportunity to be heard while leaving recipients flexibility 
to use procedures that a recipient deems most appropriate.\967\ These 
final regulations aim to improve the perception and reality of the 
fairness and accuracy by which a recipient resolves allegations of 
sexual harassment, and therefore the Sec.  106.45 grievance process 
prescribes a consistent framework and specific procedures for resolving 
formal complaints of sexual harassment. By contrast, Sec.  106.44(c) is 
not designed to resolve the underlying allegations of sexual harassment 
against a respondent, but rather to ensure that recipients have the 
authority and discretion to appropriately handle emergency situations 
that may arise from allegations of sexual harassment. As discussed 
above, the final regulations revise the language in Sec.  106.44(c) to 
add the phrase ``arising from the allegations of sexual harassment,'' 
which clarifies that the facts or circumstances that justify a removal 
might not be the same as the sexual harassment allegations but might 
``arise from'' those allegations.
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    \967\ E.g., Goss v. Lopez, 419 U.S. 565, 582-83 (1975) 
(``Students whose presence poses a continuing danger to persons or 
property or an ongoing threat of disrupting the academic process may 
be immediately removed from school. In such cases, the necessary 
notice and rudimentary hearing should follow as soon as 
practicable'').
---------------------------------------------------------------------------

    The Department disagrees that a post-removal challenge is 
unnecessary because the individualized safety and risk analysis already 
determined that removal was justified; the purpose of a true emergency 
removal is to authorize a recipient to respond to immediate threats 
even without providing the respondent with pre-deprivation notice and 
opportunity to be heard because this permits a recipient to protect the 
one or more persons whose physical health or safety may be in jeopardy. 
The respondent's first opportunity to challenge the removal (e.g., by 
presenting the recipient with facts that might contradict the existence 
of an immediate threat to physical health or safety) might be after the 
recipient already reached its determination that removal is justified, 
and due process principles (whether constitutional due process of law, 
or fundamental fairness) require that the respondent be given notice 
and opportunity to be heard.\968\ Section 106.44(c) does not preclude a 
recipient from convening a threat assessment team to review the 
recipient's emergency removal determination, but Sec.  106.44(c) still 
requires the recipient to give the respondent post-removal notice and 
opportunity to challenge the removal decision.
---------------------------------------------------------------------------

    \968\ Goss, 419 U.S. at 580 (``At the very minimum, therefore, 
students facing suspension and the consequent interference with a 
protected property interest must be given some kind of notice and 
afforded some kind of hearing.'').
---------------------------------------------------------------------------

    The Department expects the emergency removal process to be used in 
genuine emergency situations, but when it is used, recipients must 
provide an opportunity for a removed individual to challenge their 
removal immediately after the removal. The term ``immediately'' will be 
fact-specific, but is generally understood in the context of a legal 
process as occurring without delay, as soon as possible, given the 
circumstances. ``Immediately'' does not require a time frame of 
``minutes'' because in the context of a legal proceeding the term 
immediately is not generally understood to mean an absolute exclusion 
of any time interval.

[[Page 30230]]

``Immediately'' does not imply the same time frame as the ``reasonably 
prompt'' time frames that govern the grievance process under Sec.  
106.45, because ``immediately'' suggests a more pressing, urgent time 
frame than ``reasonable promptness.'' This is appropriate because Sec.  
106.44(c) does not require a recipient to provide the respondent with 
any pre-deprivation notice or opportunity to be heard, so requiring 
post-deprivation due process protections ``immediately'' after the 
deprivation ensures that a respondent's interest in access to education 
is appropriately balanced against the recipient's interest in quickly 
addressing an emergency situation posed by a respondent's risk to the 
physical health or safety of any student or other individual. We 
decline to require the post-removal notice and challenge to be given 
``as soon as reasonably practicable'' instead of ``immediately'' 
because that would provide the respondent less adequate post-
deprivation due process protections.
    Changes: None.
No Stated Time Limitation for the Emergency Removal
    Comments: Some commenters viewed the absence of a time limitation 
with respect to how long an emergency removal could be as a source of 
harm to both respondents and complainants. Commenters asserted that, 
given how long the grievance process could take, students and employees 
removed from their education or employment until conclusion of the 
grievance process could experience considerable negative consequences. 
Commenters argued that the proposed rules should not encourage 
emergency removal, particularly not when other, less severe measures 
could be taken to ensure safety pending an investigation. Commenters 
proposed limiting an emergency removal to seven days, during which time 
an institution would determine in writing that an immediate threat to 
health or safety exists, warranting the emergency action, and if no 
such determination is reached, the respondent would be reinstated.
    Discussion: The final regulations require schools to offer 
supportive measures to complainants and permit recipients to offer 
supportive measures to respondents. We decline to require emergency 
removals in every situation where a formal complaint triggers a 
grievance process. The grievance process is designed to conclude 
promptly, and the issue of whether a respondent needs to be removed on 
an emergency basis should not arise in most cases, since Sec.  
106.44(c) applies only where emergency removal is justified by an 
immediate threat to the physical health or safety of any student or 
other individual. Revised Sec.  106.44(a), and revised Sec.  
106.45(b)(1)(i), prohibit a recipient from imposing against a 
respondent disciplinary sanctions or other actions that are not 
supportive measures as defined in Sec.  106.30, without following the 
Sec.  106.45 grievance process. Emergency removal under Sec.  106.44(c) 
constitutes an exception to those prohibitions, and should not be 
undertaken in every situation where sexual harassment has been alleged. 
Rather, emergency removal is appropriate only when necessary to address 
imminent threats to a person's physical health or safety arising from 
the allegations of sexual harassment.
    The Department declines to put any temporal limitation on the 
length of a valid emergency removal, although nothing in the final 
regulations precludes a recipient from periodically assessing whether 
an immediate threat to physical health or safety is ongoing or has 
dissipated.
    Changes: None.
``Removal''
    Comments: Commenters requested clarification in the following 
regards: Would removing a respondent from a class, or changing the 
respondent's class schedule, before a grievance process is completed 
(or where no formal complaint has initiated a grievance process), 
require a recipient to undertake emergency removal procedures? Under 
Sec.  106.44(c) must a recipient remove a respondent from the entirety 
of recipient's education program or activity, or may a recipient choose 
to only remove the respondent to the extent the individual poses an 
emergency in a specific setting, i.e., a certain class, student 
organization, living space, athletic team, etc.?
    Commenters argued that the Sec.  106.30 definition of supportive 
measures and Sec.  106.44(c) regarding emergency removal could lead to 
confusion among recipients about what steps they can take to protect a 
complainant's safety and access to education prior to conclusion of a 
grievance process, or where no formal complaint has initiated a 
grievance process. One commenter suggested modifying this provision to 
expressly permit partial exclusion from programs or activities by 
adding the phrase ``or any part thereof.''
    Commenters argued that Sec.  106.44(c) would make it too difficult 
to remove a respondent before the completion of a disciplinary 
proceeding absent an extreme emergency. Commenters suggested that the 
Department should consider a more nuanced approach that provides 
schools with a range of options, short of emergency removal, that are 
proportionate to the alleged misconduct and meet the needs of the 
victim. Commenters requested that Sec.  106.44(c) be revised to allow 
an appropriate administrator (such as a dean of students), in 
consultation with the Title IX Coordinator, discretion to determine the 
appropriateness of an emergency removal based on a standard that is in 
the best interest of the institution.
    Some commenters argued that even where an emergency threat exists, 
Sec.  106.44(c) does not provide a time frame in which the recipient 
must make this emergency removal decision, leaving survivors vulnerable 
to daily contact with a dangerous respondent. Commenters asserted that 
recipients should be able to remove a respondent from a dorm or shared 
classes before conclusion of a disciplinary proceeding, particularly 
when it is clear that the survivor's education will be harmed 
otherwise. Commenters asserted that 80 percent of rapes and sexual 
assaults are committed by someone known to the victim,\969\ which means 
that it is highly likely that the victim and perpetrator share a 
dormitory, a class, or other aspect of the school environment and that 
Sec.  106.44(c) (combined with the Sec.  106.30 definition of 
``supportive measures'') leaves victims in continual contact with their 
harasser, thereby prioritizing the education of accused harassers over 
the education of survivors. Commenters argued that survivors should not 
have to wait until the end of a grievance process to be protected from 
seeing a perpetrator in class or on campus, and this provision would 
pressure survivors to file formal complaints when many survivors do not 
want a formal process for valid personal reasons, because a formal 
process would be the only avenue for ensuring that a ``guilty'' 
respondent will be suspended or expelled. Commenters recommended adding 
language to clarify that nothing shall prevent elementary and secondary 
schools from implementing an ``alternate assignment'' during the 
pendency of an investigation, provided that the same is otherwise 
permitted by law.
---------------------------------------------------------------------------

    \969\ Commenters cited: U.S. Dep't. of Justice, Office of 
Justice Programs, Bureau of Justice Statistics, Special Report: Rape 
and Sexual Assault Victimization Among College-Age Females, 1995-
2013 (2014).
---------------------------------------------------------------------------

    One commenter suggested combining the emergency removal and 
supportive

[[Page 30231]]

measures provisions into a single ``interim measures'' provision.
    Discussion: The Department believes the Sec.  106.30 definition of 
supportive measures, and Sec.  106.44(c) governing emergency removals, 
in the context of the revised requirements in Sec.  106.44(a) and Sec.  
106.45(b)(1)(i) (requiring recipients to offer supportive measures to 
complainants while not imposing against respondents disciplinary 
sanctions or other actions that are not ``supportive measures'') 
provide a wide range and variety of options for a recipient to preserve 
equal educational access, protect the safety of all parties, deter 
sexual harassment, and respond to emergency situations.
    Under Sec.  106.30, a supportive measure must not be punitive or 
disciplinary, but may burden a respondent as long as the burden is not 
unreasonable. As discussed in the ``Supportive Measures'' subsection of 
the ``Section 106.30 Definitions'' section of this preamble, whether a 
certain measure unreasonably burdens a respondent requires a fact-
specific inquiry. Changing a respondent's class schedule or changing a 
respondent's housing or dining hall assignment may be a permissible 
supportive measure depending on the circumstances. By contrast, 
removing a respondent from the entirety of the recipient's education 
programs and activities, or removing a respondent from one or more of 
the recipient's education programs or activities (such as removal from 
a team, club, or extracurricular activity), likely would constitute an 
unreasonable burden on the respondent or be deemed disciplinary or 
punitive, and therefore would not likely qualify as a supportive 
measure. Until or unless the recipient has followed the Sec.  106.45 
grievance process (at which point the recipient may impose any 
disciplinary sanction or other punitive or adverse consequence of the 
recipient's choice), removals of the respondent from the recipient's 
education program or activity \970\ need to meet the standards for 
emergency removals under Sec.  106.44(c).\971\ Supportive measures 
provide one avenue for recipients to protect the safety of parties and 
permissibly may affect and even burden the respondent, so long as the 
burden is not unreasonable. Supportive measures may include, for 
example, mutual or unilateral restrictions on contact between parties 
or re-arranging class schedules or classroom seating assignments, so 
complainants need not remain in constant or daily contact with a 
respondent while an investigation is pending, or even where no 
grievance process is pending.
---------------------------------------------------------------------------

    \970\ As discussed in the ``Section 106.44(a) `education program 
or activity' '' subsection of the ``Section 106.44 Recipient's 
Response to Sexual Harassment, Generally'' section of this preamble, 
the Title IX statute and existing regulations provide definitions of 
``program or activity'' that apply to interpretation of a 
recipient's ``education program or activity'' in these final 
regulations, and we have clarified in Sec.  106.44(a) that for 
purposes of responding to sexual harassment a recipient's education 
program or activity includes circumstances over which the recipient 
exercised substantial control. 20 U.S.C. 1687; 34 CFR 106.2(h); 34 
CFR 106.2(i) (defining ``recipient''); 34 CFR 106.31(a) (referring 
to ``any academic, extracurricular, research, occupational training, 
or other education program or activity operated by a recipient which 
receives Federal financial assistance'').
    \971\ Cf. Sec.  106.44(d) (a non-student employee-respondent may 
be placed on administrative leave (with or without pay) while a 
Sec.  106.45 grievance process is pending, without needing to meet 
the emergency removal standards in Sec.  106.44(c)).
---------------------------------------------------------------------------

    Whether an elementary and secondary school recipient may implement 
an ``alternate assignment'' during the pendency of an investigation (or 
without a grievance process pending), in circumstances that do not 
justify an emergency removal, when such action is otherwise permitted 
by law, depends on whether the alternate assignment constitutes a 
disciplinary or punitive action or unreasonably burdens the respondent 
(in which case it would not qualify as a supportive measure as defined 
in Sec.  106.30).\972\ Whether an action ``unreasonably burdens'' a 
respondent is fact-specific, but should be evaluated in light of the 
nature and purpose of the benefits, opportunities, programs and 
activities, of the recipient in which the respondent is participating, 
and the extent to which an action taken as a supportive measure would 
result in the respondent forgoing benefits, opportunities, programs, or 
activities in which the respondent has been participating. An alternate 
assignment may, of course, be appropriate when an immediate threat 
justifies an emergency removal of the respondent because under the 
final regulations, emergency removal may justify total removal from the 
recipient's education program or activity, so offering the respondent 
alternate assignment is included within the potential scope of an 
emergency removal. Under Sec.  106.44(a), the recipient must offer 
supportive measures to the complainant, and if a particular action--
such as alternate assignment--does not, under specific circumstances, 
meet the definition of a supportive measure, then the recipient must 
carefully consider other individualized services, reasonably available, 
designed to restore or preserve the complainant's equal educational 
access and/or protect safety and deter sexual harassment, that the 
recipient will offer to the complainant.
---------------------------------------------------------------------------

    \972\ For discussion of alternate assignments when the 
respondent is a non-student employee, see the ``Section 106.44(d) 
Administrative Leave'' subsection of the ``Additional Rules 
Governing Recipients' Responses to Sexual Harassment'' subsection of 
the ``Section 106.44 Recipient's Response to Sexual Harassment, 
Generally'' section of this preamble.
---------------------------------------------------------------------------

    We do not believe that the final regulations incentivize 
complainants to file formal complaints when they otherwise do not wish 
to do so just to avoid contacting or communicating with a respondent, 
because supportive measures permit a range of actions that are non-
punitive, non-disciplinary, and do not unreasonably burden a 
respondent, such that a recipient often may implement supportive 
measures that do meet a complainant's desire to avoid contact with the 
respondent. For example, if a complainant and respondent are both 
members of the same athletic team, a carefully crafted unilateral no-
contact order could restrict a respondent from communicating directly 
with the complainant so that even when the parties practice on the same 
field together or attend the same team functions together, the 
respondent is not permitted to directly communicate with the 
complainant. Further, the recipient may counsel the respondent about 
the recipient's anti-sexual harassment policy and anti-retaliation 
policy, and instruct the team coaches, trainers, and staff to monitor 
the respondent, to help enforce the no-contact order and deter any 
sexual harassment or retaliation by the respondent against the 
complainant. Further, nothing in the final regulations, or in the 
definition of supportive measures in Sec.  106.30, precludes a 
recipient from altering the nature of supportive measures provided, if 
circumstances change. For example, if the Title IX Coordinator 
initially implements a supportive measure prohibiting the respondent 
from directly communicating with the complainant, but the parties later 
each independently decide to take the same lab class, the Title IX 
Coordinator may, at the complainant's request, reevaluate the 
circumstances and offer the complainant additional supportive measures, 
such as requiring the professor teaching the lab class to ensure that 
the complainant and respondent are not ``teamed up'' or assigned to sit 
near each other or assigned as to be ``partners,'' during or as part of 
the lab class.
    Commenters correctly observe that the final regulations prohibit 
suspending or

[[Page 30232]]

expelling a respondent without first following the Sec.  106.45 
grievance process, or unless an emergency situation justices removal 
from the recipient's education program or activity (which removal may, 
or may not, be labeled a ``suspension'' or ``expulsion'' by the 
recipient). We do not believe this constitutes unfairness to survivors, 
or poses a threat to survivors' equal educational access, because there 
are many actions that meet the definition of supportive measures that 
may restore or preserve a complainant's equal access, protect a 
complainant's safety, and/or deter sexual harassment without punishing 
or unreasonably burdening a respondent. As discussed in the ``Section 
106.45(b)(1)(iv) Presumption of Non-Responsibility'' subsection of the 
``General Requirements for Sec.  106.45 Grievance Process'' subsection 
of the ``Section 106.45 Recipient's Response to Formal Complaints'' 
section of this preamble, refraining from treating people accused of 
wrongdoing as responsible for the wrongdoing prior to evidence proving 
the person is responsible is a fundamental tenet of American justice. 
These final regulations appropriately ensure that respondents are not 
unfairly, prematurely treated as responsible before being proved 
responsible, with certain reasonable exceptions: Emergency removals, 
administrative leave for employees, and informal resolution of a formal 
complaint that resolves the allegations without a full investigation 
and adjudication but may result in consequences for a respondent 
including suspension or expulsion. In this way, the final regulations 
ensure that every complainant is offered supportive measures designed 
to preserve their equal educational access and protect their safety 
(even without any proof of the merits of the complainant's allegations) 
consistent with due process protections and fundamental fairness. As an 
example, a complainant understandably may desire as a supportive 
measure the ability to avoid being in the same classroom with a 
respondent, whether or not the complainant wants to file a formal 
complaint. A school may conclude that transferring the respondent to a 
different section of that class (e.g., that meets on a different day or 
different time than the class section in which the complainant and 
respondent are enrolled) is a reasonably available supportive measure 
that preserves the complainant's equal access and protects the 
complainant's safety or deters sexual harassment, while not 
constituting an unreasonable burden on the respondent (because the 
respondent is still able to take that same class and earn the same 
credits toward graduation, for instance). If, on the other hand, that 
class in which both parties are enrolled does not have alternative 
sections that meet at different times, and precluding the respondent 
from completing that class would delay the respondent's progression 
toward graduation, then the school may determinate that requiring the 
respondent to drop that class would constitute an unreasonable burden 
on the respondent and would not quality as a supportive measure, 
although granting the complainant an approved withdrawal from that 
class with permission to take the class in the future, would of course 
constitute a permissible supportive measure for the recipient to offer 
the complainant. Alternatively in such a circumstance (where the 
complainant, like the respondent, cannot withdraw from that class and 
take it later without delaying progress toward graduation), the school 
may offer the complainant as a supportive measure, for example, a one-
way no contact order that prohibits the respondent from communicating 
with the complainant and assigns the respondent to sit across the 
classroom from the complainant. As such an example shows, these final 
regulations allow, and require, a recipient to carefully consider the 
specific facts and circumstances unique to each situation to craft 
supportive measures to help a complainant without prematurely 
penalizing a respondent.
    The Department does not believe it is necessary or appropriate to 
require a time frame for when a recipient must undertake an emergency 
removal, because the risk arising from the sexual harassment 
allegations that may justify a removal may arise at any time; further, 
Sec.  106.44(a) requires a recipient to respond ``promptly'' to sexual 
harassment, and if an emergency removal is a necessary part of a 
recipient's non-deliberately indifferent response then such a response 
must be prompt. We reiterate that emergency removal is not about 
reaching factual conclusions about whether the respondent is 
responsible for the underlying sexual harassment allegations. Emergency 
removal is about determining whether an immediate threat arising out of 
the sexual harassment allegations justifies removal of the respondent.
    We appreciate the opportunity to clarify that, where the standards 
for emergency removal are met under Sec.  106.44(c), the recipient has 
discretion whether to remove the respondent from all the recipient's 
education programs and activities, or to narrow the removal to certain 
classes, teams, clubs, organizations, or activities. We decline to add 
the phrase ``or any part thereof'' to this provision because a ``part 
of'' a program may not be readily understood, and we believe the 
authority to exclude entirely includes the lesser authority to exclude 
partially.
    Section 106.44(a) and Sec.  106.45(b)(1)(i) forbid a recipient from 
imposing disciplinary sanctions (or other actions that are not 
supportive measures) on a respondent without first following a 
grievance process that complies with Sec.  106.45. We reiterate that a 
Sec.  106.44(c) emergency removal may be appropriate whether or not a 
grievance process is underway, and that the purpose of an emergency 
removal is to protect the physical health or safety of any student or 
other individual to whom the respondent poses an immediate threat, 
arising from allegations of sexual harassment, not to impose an interim 
suspension or expulsion on a respondent, or penalize a respondent by 
suspending the respondent from, for instance, playing on a sports team 
or holding a student government position, while a grievance process is 
pending. The final regulations respect complainants' autonomy and 
understand that not every complainant wishes to participate in a 
grievance process, but a complainant's choice not to file a formal 
complaint or not to participate in a grievance process does not permit 
a recipient to bypass a grievance process and suspend or expel (or 
otherwise discipline, penalize, or unreasonably burden) a respondent 
accused of sexual harassment. An emergency removal under Sec.  
106.44(c) separates a respondent from educational opportunities and 
benefits, and is permissible only when the high threshold of an 
immediate threat to a person's physical health or safety justifies the 
removal.
    Because the purposes of, and conditions for, ``supportive 
measures'' as defined in Sec.  106.30 differ from the purposes of, and 
conditions for, an emergency removal under Sec.  106.44(c), we decline 
to combine these provisions. Both provisions, and the final regulations 
as a whole, do not prioritize the educational needs of a respondent 
over a complainant, or vice versa, but aim to ensure that complainants 
receive a prompt, supportive response from a recipient, respondents are 
treated fairly, and recipients retain latitude to address emergency 
situations that may arise.
    Changes: None.

[[Page 30233]]

``Individualized Safety and Risk Analysis''
    Comments: Many commenters argued that the lack of guidance in Sec.  
106.44(c) on the requirements for conducting the ``individualized 
safety and risk analysis'' is confusing, and should be better defined 
because it could lead to inconsistent results from school to school, 
county to county, and State to State. Some commenters expressed overall 
support for this provision, but argued that the power of removal should 
not be wielded without careful consideration, and requested clarity 
about who would undertake the risk analysis (e.g., an internal or 
external individual on behalf of a recipient). Other commenters stated 
that Sec.  106.44(c) should list factors to consider in the required 
safety and risk analysis including: whether violence was alleged (which 
commenters asserted is rare in cases involving alleged incapacitation), 
how long the complainant took to file a complaint, whether the 
complainant has reported the allegations to the police, and whether 
there are other, less restrictive measures that could be taken. 
Commenters argued that the risk assessment requirement may prevent the 
removal of respondents who are in fact dangerous because context and 
other nuances may not be accounted for in the assessment. One commenter 
stated that the Sec.  106.44(c) safety and risk analysis requirements 
are ``good, but sometimes not realistic'' because threat assessment 
teams do not meet daily, and it is sometimes necessary to decide a 
removal in a matter of hours. Other commenters stated some recipients 
have already incorporated this sort of threat assessment into their 
decision matrix because postsecondary institutions are obligated to 
take reasonable steps to address dangers or threats to their students.
    Some commenters were concerned that institutions lack sufficient 
resources to properly conduct the required safety and risk analysis, 
that institutions lack the proper tools to conduct assessments 
calibrated to the age and developmental issues of the respondent, and 
that institutions lack the training and knowledge to properly implement 
such assessments. Commenters asserted that this provision would require 
institutions to train employees to conduct an individualized safety and 
risk analysis before removing students on an emergency basis, but that 
such assessments are rarely within the capacity or expertise of a 
single employee, and thus may require a committee or task force 
dedicated for this purpose.
    Discussion: Recipients are entitled to use Sec.  106.44(c) to 
remove a respondent on an emergency basis, only where there is an 
immediate threat to the physical health or safety of any student or 
other individual. The ``individualized safety or risk analysis'' 
requirement ensures that the recipient should not remove a respondent 
from the recipient's education program or activity pursuant to Sec.  
106.44(c) unless there is more than a generalized, hypothetical, or 
speculative belief that the respondent may pose a risk to someone's 
physical health or safety. The Department believes that the immediate 
threat to physical health or safety threshold for justifying a removal 
sufficiently restricts Sec.  106.44(c) to permitting only emergency 
removals and believes that further describing what might constitute an 
emergency would undermine the purpose of this provision, which is to 
set a high threshold for emergency removal yet ensure that the 
provision will apply to the variety of circumstances that could present 
such an emergency. The Department also believes that the final 
regulations adequately protect respondents, since in cases where the 
recipient removes a respondent, the recipient must follow appropriate 
procedures, including bearing the burden of demonstrating that the 
removal meets the threshold specified by the final regulations, based 
on a factual, individualized safety and risk analysis. We understand 
commenters' concerns that the individualized, fact-based nature of an 
emergency removal assessment may lead to different results from school 
to school or State to State, but different results may be reasonable 
based on the unique circumstances presented in individual situations.
    Because the safety and risk analysis under Sec.  106.44(c) must be 
``individualized,'' the analysis cannot be based on general assumptions 
about sex, or research that purports to profile characteristics of sex 
offense perpetrators, or statistical data about the frequency or 
infrequency of false or unfounded sexual misconduct allegations. The 
safety and risk analysis must be individualized with respect to the 
particular respondent and must examine the circumstances ``arising from 
the allegations of sexual harassment'' giving rise to an immediate 
threat to a person's physical health or safety. These circumstances may 
include factors such as whether violence was allegedly involved in the 
conduct constituting sexual harassment, but could also include 
circumstances that ``arise from'' the allegations yet do not constitute 
the alleged conduct itself; for example, a respondent could pose an 
immediate threat of physical self-harm in reaction to being accused of 
sexual harassment. For a respondent to be removed on an emergency 
basis, the school must determine that an immediate threat exists, and 
that the threat justifies removal. Section 106.44(c) does not limit the 
factors that a recipient may consider in reaching that determination.
    We appreciate commenters' concerns that performing safety and risk 
analyses may require a recipient to expend resources or train 
employees, but without an individualized safety and risk analysis a 
recipient's decision to remove a respondent might be arbitrary, and 
would fail to apprise the respondent of the basis for the recipient's 
removal decision so that the respondent has an opportunity to challenge 
the decision. Procedural due process of law and fundamental fairness 
require that a respondent deprived of an educational benefit be given 
notice and opportunity to contest the deprivation; \973\ without 
knowing the individualized reasons why a recipient determined that the 
respondent posed a threat to someone's physical health or safety, the 
respondent cannot assess a basis for challenging the recipient's 
removal decision. Recipients may choose to provide specialized training 
to employees or convene interdisciplinary threat assessment teams, or 
be required to take such actions under other laws, and Sec.  106.44(c) 
leaves recipients flexibility to decide how to conduct an 
individualized safety and risk analysis, as well as who will conduct 
the analysis.
---------------------------------------------------------------------------

    \973\ See the ``Role of Due Process in the Grievance Process'' 
section of this preamble.
---------------------------------------------------------------------------

    Changes: None.
``Provides the Respondent With Notice and an Opportunity To Challenge 
the Decision Immediately Following the Removal''
    Comments: One commenter stated that during any emergency removal 
hearing, schools should be required to share all available evidence 
with the respondent, permit that person an opportunity to be heard, and 
allow the respondent's advisor to cross-examine any witnesses. 
According to the commenter, if these full procedural rights are not 
extended, this provision would create a loophole that allows emergency 
measures to effectively replace a full grievance process. Commenters 
also argued that a recipient's emergency removal decisions

[[Page 30234]]

would often be hastily made, and that recipients would ignore 
requirements that a removed student be given the opportunity to review 
or challenge the decision made by the recipient. Commenters argued that 
Sec.  106.44(c) should include express language safeguarding students 
against abusive practices during the challenge procedure. One commenter 
suggested adding the word ``meaningful'' so the respondent would have 
``a meaningful opportunity'' to challenge the removal decision, 
asserting that certain institutions of higher education in California 
have not consistently given respondents meaningful opportunities to 
``make their case.'' While supportive of Sec.  106.44(c), one commenter 
suggested modifying this provision to require the recipient to send the 
respondent written notice of the specific facts that supported the 
recipient's decision to remove the student, so the respondent can 
meaningfully challenge the removal decision.
    Some commenters asserted that if the respondent has a right to 
challenge the emergency removal, the recipient must offer an equitable 
opportunity for the complainant to contest an overturned removal or 
participate in the respondent's challenge process. Other commenters 
asked whether Sec.  106.44(c) requires, or allows, a recipient to 
notify the complainant that a respondent has been removed under this 
provision, that a respondent is challenging a removal decision, or that 
a removal decision has been overturned by the recipient after a 
respondent's challenge.
    Commenters argued that Sec.  106.44(c) would also effectively 
mandate that an institution's employees must be trained to conduct 
hearings or other undefined post-removal procedures in the event that a 
respondent exercises the right to challenge the emergency removal. 
Commenters argued that this burden likely would require a dedicated 
officer or committee to carry out procedural obligations that did not 
previously exist, and these burdens were not contemplated at the time 
of the recipient's acceptance of the Federal funding. Commenters argued 
that Sec.  106.44(c) would provide rights to at-will employees that are 
otherwise unavailable, restricting employment actions that are normally 
within the discretion of an employer.
    Commenters requested clarification about the procedures for 
challenging a removal decision, such as: Whether a respondent's 
opportunity challenge the emergency removal means the recipient must, 
or may, use processes under Sec.  106.45 to meet its obligations, 
including whether evidence must be gathered, witnesses must be 
interviewed, or a live hearing with cross-examination must be held; 
whether the recipient, or respondent, will bear the burden of proof 
that the removal decision was correct or incorrect; whether the 
recipient must, or may, involve the complainant in the challenge 
procedure; whether the recipient must, or may, use the investigators 
and decision-makers that have been trained pursuant to Sec.  106.45 to 
conduct the post-removal challenge procedure; and whether the 
determinations about an emergency removal must, or may, influence a 
determination regarding responsibility during a grievance process under 
Sec.  106.45.
    Discussion: The Department disagrees that Sec.  106.44(c) poses a 
possible loophole through which recipients may bypass giving 
respondents the due process protections in the Sec.  106.45 grievance 
process. The threshold for an emergency removal under Sec.  106.44(c) 
is adequately high to prevent recipients from using emergency removal 
as a pretense for imposing interim suspensions and expulsions. We do 
not believe it is necessary to revise Sec.  106.44(c) to prevent 
recipients from imposing ``abusive'' procedures on respondents; 
recipients will be held accountable for reaching removal decisions 
under the standards of Sec.  106.44(c), giving recipients adequate 
incentive to give respondents the immediate notice and challenge 
opportunity following a removal decision. We do not believe that 
recipients will make emergency removal decisions ``hastily,'' and a 
respondent who believes a recipient has violated these final 
regulations may file a complaint with OCR.
    The Department does not want to prescribe more than minimal 
requirements on recipients for purposes of responding to emergency 
situations. We decline to require written notice to the respondent 
because minimal due process requires some kind of notice, and 
compliance with a notice requirement suffices for a recipient's 
handling of an emergency situation.\974\ We decline to add the modifier 
``meaningful'' before ``opportunity'' because the basic due process 
requirement of an opportunity to be heard entails an opportunity that 
is appropriate under the circumstances, which ensures a meaningful 
opportunity.\975\ While a recipient has discretion (subject to FERPA 
and other laws restricting the nonconsensual disclosure of personally 
identifiable information from education records) to notify the 
complainant of removal decisions regarding a respondent, or post-
removal challenges by a respondent, we do not require the complainant 
to receive notice under Sec.  106.44(c) because not every emergency 
removal directly relates to the complainant. As discussed above, 
circumstances that justify removal must be ``arising from the 
allegations of sexual harassment'' yet may consist of a threat to the 
physical health or safety of a person other than the complainant (for 
example, where the respondent has threatened self-harm).\976\
---------------------------------------------------------------------------

    \974\ E.g., Goss, 419 U.S. at 578-79 (holding that in the public 
school context ``the interpretation and application of the Due 
Process Clause are intensely practical matters'' that require at a 
minimum notice and ``opportunity for hearing appropriate to the 
nature of the case'') (internal quotation marks and citations 
omitted).
    \975\ Id.
    \976\ As discussed in the ``Section 106.6(e) FERPA'' subsection 
of the ``Clarifying Amendments to Existing Regulations'' section of 
this preamble, the complainant has a right to know the nature of any 
disciplinary sanctions imposed on a respondent after the recipient 
has found the respondent to be responsible for sexual harassment 
alleged by the complainant, because the disciplinary sanctions are 
directly related to the allegations made by the complainant. By 
contrast, emergency removal of a respondent does not involve a 
recipient's determination that the respondent committed sexual 
harassment as alleged by the complainant, and information about the 
emergency removal is not necessarily directly related to the 
complainant. Thus, FERPA (or other privacy laws) may restrict a 
recipient's discretion to disclose information relating to the 
emergency removal.
---------------------------------------------------------------------------

    The Department disagrees that Sec.  106.44(c) requires a recipient 
to go through excessively burdensome procedures prior to removing a 
respondent on an emergency basis. The seriousness of the consequence of 
a recipient's decision to removal of a student or employee, without a 
hearing beforehand, naturally requires the school to meet a high 
threshold (i.e., an individualized safety and risk assessment shows 
that the respondent poses an immediate threat to a person's physical 
health or safety justifying removal). At the same time, Sec.  106.44(c) 
leaves recipients wide latitude to select the procedures for giving 
notice and opportunity to challenge a removal.
    A recipient owes a general duty under Sec.  106.44(a) to respond to 
sexual harassment in a manner that is not deliberately indifferent. 
Where removing an individual on an emergency basis is necessary to 
avoid acting with deliberate indifference, a recipient must meet the 
requirements in Sec.  106.44(c). The Department disagrees that Sec.  
106.44(c) imposes requirements on recipients that violate the Spending 
Clause, because recipients understand that compliance with Title IX 
will

[[Page 30235]]

require dedication of personnel, time, and resources.\977\ Because this 
provision does not prescribe specific post-removal challenge 
procedures, we do not believe recipients face significant burdens in 
training personnel to comply with new or unknown requirements; this 
provision ensures that the essential features of due process of law, or 
fundamental fairness, are provided to the respondent (i.e., notice and 
opportunity to be heard), and we believe that recipients are already 
familiar with these basic requirements of due process (for public 
institutions) or fair process (for private institutions).
---------------------------------------------------------------------------

    \977\ See discussion under the ``Spending Clause'' subsection of 
the ``Miscellaneous'' section of this preamble.
---------------------------------------------------------------------------

    In response to commenters' clarification requests, the post-removal 
procedure may, but need not, utilize some or all the procedures 
prescribed in Sec.  106.45, such as providing for collection and 
presentation of evidence. Nothing in Sec.  106.44(c) or the final 
regulations precludes a recipient from placing the burden of proof on 
the respondent to show that the removal decision was incorrect. Section 
106.44(c) does not preclude a recipient from using Title IX personnel 
trained under Sec.  106.45(b)(1)(iii) to make the emergency removal 
decision or conduct a post-removal challenge proceeding, but if 
involvement with the emergency removal process results in bias or 
conflict of interest for or against the complainant or respondent, 
Sec.  106.45(b)(1)(iii) would preclude such personnel from serving in 
those roles during a grievance process.\978\ Facts and evidence relied 
on during an emergency removal decision and post-removal challenge 
procedure may be relevant in a Sec.  106.45 grievance process against 
the respondent but would need to meet the requirements in Sec.  106.45; 
for example, a witness who provided information to a postsecondary 
institution recipient for use in reaching an emergency removal decision 
would need to appear and be cross-examined at a live hearing under 
Sec.  106.45(b)(6)(i) in order for the witness's statement to be relied 
on by the decision-maker.
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    \978\ Section 106.45(b)(1)(iii) requires all Title IX 
Coordinators, investigators, decision-makers, and persons who 
facilitate an informal resolution to be free from bias or conflicts 
of interest for or against complainants or respondents generally, or 
for or against any individual complainant or respondent.
---------------------------------------------------------------------------

    Changes: None.
How OCR Will Enforce the Provision
    Comments: Commenters requested clarification about how OCR would 
enforce Sec.  106.44(c), including what standard OCR would use in 
deciding whether a removal was proper; whether OCR would only find a 
violation if the recipient violates Sec.  106.44(c) with deliberate 
indifference; whether violating this provision constitutes a violation 
of Title IX; whether OCR would defer to the determination reached by 
the recipient even if OCR would have reached a different determination 
based on the independent weighing of the evidence; whether a harmless 
error standard would apply to OCR's evaluation of a proper removal 
decision and only require reversing the recipient's removal decision if 
OCR thinks the outcome was affected by a recipient's violation of Sec.  
106.44(c); and whether OCR, or the recipient, would bear the burden of 
showing the correctness or incorrectness of the removal decision or the 
burden of showing that any violation affected the outcome or not.
    Discussion: OCR will enforce this provision fully and consistently 
with other enforcement practices. OCR will not apply a harmless error 
standard to violations of Title IX, and will fulfill its role to ensure 
compliance with Title IX and these final regulations regardless of 
whether a recipient's non-compliance is the result of the recipient's 
deliberate indifference or other level of intentionality. Recipients 
whose removal decisions fail to comply with Sec.  106.44(c) may be 
found by OCR to be in violation of these final regulations. As 
discussed above, a recipient may need to undertake an emergency removal 
under Sec.  106.44(c) in order to meet its duty not to be deliberately 
indifferent to sexual harassment. However, OCR will not second guess 
the decisions made under a recipient's exercise of discretion so long 
as those decisions comply with the terms of Sec.  106.44(c). For 
example, OCR may assess whether a recipient's failure to undertake an 
individualized risk assessment was deliberately indifferent under Sec.  
106.44(a), but OCR will not second guess a recipient's removal decision 
based on whether OCR would have weighed the evidence of risk 
differently from how the recipient weighed such evidence. While not 
every regulatory requirement purports to represent a definition of sex 
discrimination, Title IX regulations are designed to make it more 
likely that a recipient does not violate Title IX's non-discrimination 
mandate, and the Department will vigorously enforce Title IX and these 
final regulations.
    Changes: None.
Section 106.44(d) Administrative Leave
    Comments: Some commenters expressed support for Sec.  106.44(d), 
asserting that this provision appropriately recognizes that cases 
involving employees as respondents, especially faculty or 
administrative staff, should have different frameworks than cases 
involving students.
    Some commenters asserted that it is unclear what standard a 
recipient must satisfy before it may place an employee on 
administrative leave. Commenters recommended giving discretion to an 
elementary and secondary school recipient to implement an alternate 
assignment (such as administrative reassignment to home) for staff 
during the pendency of an investigation, provided the same is otherwise 
permitted by law.
    Commenters wondered how the Department defines ``administrative 
leave,'' whether Sec.  106.44(d) applies to paid or unpaid leave, and 
whether that would depend on how existing recipient employee conduct 
codes or employment contracts address the issue of paid or unpaid 
leave. Commenters asked whether an employee-respondent placed on leave 
may collect back pay from the recipient, if the grievance process 
determines there was insufficient evidence of misconduct. One commenter 
argued that administrative leave must include pay and benefits, as well 
as lodging if the employee-respondent resided in campus housing.
    One commenter asserted that treating non-student employees 
differently than students or student-employees under Sec.  106.44(d) 
constitutes discrimination. Another commenter questioned why recipients 
can deny employees paychecks for months until the conclusion of a 
formal grievance process, but give immediate due process for students 
to challenge an emergency removal; the commenter asserted that the 
recipient could simply provide a free semester of college to cover any 
loss to a student yet the proposed rules do not require a recipient to 
give back pay to an employee. Some commenters argued that Sec.  
106.44(c) emergency removal requirements to undertake an individualized 
safety and risk analysis and provide notice and an opportunity to 
challenge should also apply to administrative leave so that employees 
receive the same due process protections as students. Commenters argued 
that school investigations can take several months and that being on 
leave, especially without pay, can be a severe hardship for many 
employees. Commenters asserted that the Department should explicitly 
require recipients to secure a removed employee's personal property and 
be responsible for any damage occurring to

[[Page 30236]]

the property before the removed employee can regain custody.
    Commenters asserted that Sec.  106.44(d) should apply to student-
employee respondents and should be revised to limit the provision to 
administrative leave ``from the person's employment,'' so that a 
student-employee respondent could still have access to the recipient's 
educational programs but the recipient would not be forced to continue 
an active employment relationship with that respondent during the 
investigation. For example, commenters argued, a recipient should not 
be compelled to allow a teaching assistant who has been accused of 
sexual harassment to continue teaching while the accusations are being 
investigated.
    Commenters argued that Sec.  106.44(d) should reference disability 
laws that protect employees parallel to the references to disability 
laws in Sec.  106.44(c).
    Discussion: The Department appreciates the support from commenters 
for Sec.  106.44(d), giving a recipient discretion to place respondents 
who are employees on administrative leave during the pendency of an 
investigation.
    We acknowledge commenters' concerns that Sec.  106.44(d) does not 
specify conditions justifying administrative leave; however, we desire 
to give recipients flexibility to decide when administrative leave is 
appropriate. If State law allows or requires a school district to place 
an accused employee on ``reassignment to home'' or alternative 
assignment, Sec.  106.44(d) does not preclude such action while an 
investigation under Sec.  106.45 into sexual harassment allegations 
against the employee is pending.
    The Department does not define ``administrative leave'' in this 
provision, but administrative leave is generally understood as 
temporary separation from a person's job, often with pay and benefits 
intact. However, these final regulations do not dictate whether 
administrative leave during the pendency of an investigation under 
Sec.  106.45 must be with pay (or benefits) or without pay (or 
benefits). With respect to the terms of administrative leave, 
recipients who owe obligations to employees under State laws or 
contractual arrangements may comply with those obligations without 
violating Sec.  106.44(d). Similarly, these final regulations do not 
require back pay to an employee when the pending investigation results 
in a determination that the employee was not responsible. Further, this 
provision does not require a recipient to cover the costs of lodging 
for, or to secure the personal property of, an employee placed on 
administrative leave, although the final regulations do not preclude a 
recipient from taking such actions. We note that these final 
regulations similarly allow--but do not require--a recipient to repay a 
respondent for expenses incurred as a result of an emergency removal or 
to take actions to secure personal property during a removal under 
Sec.  106.44(c) (whether the removed respondent was a student, or an 
employee). We also note that Sec.  106.6(f) provides that nothing in 
this part may be read in derogation of an individual's rights, 
including an employee's rights, under Title VII \979\ and that other 
laws such as Title VII may dictate whether administrative leave should 
be paid or unpaid and whether a respondent should be repaid for 
expenses incurred as a result of any of the recipient's actions.
---------------------------------------------------------------------------

    \979\ For discussion of the revision to language in Sec.  
106.6(f) (i.e., stating in these final regulations that nothing in 
this part may be read in derogation of an individual's rights 
instead of an employee's rights, under Title VII), see the ``Section 
106.6(f) Title VII and Directed Question 3 (Application to 
Employees)'' subsection of the ``Clarifying Amendments to Existing 
Regulations'' section of this preamble.
---------------------------------------------------------------------------

    The Department acknowledges that being placed on administrative 
leave--especially if the leave is without pay--may constitute a 
hardship for the employee. However, no respondent who is an employee 
may be kept on administrative leave indefinitely, because Sec.  
106.44(d) does not authorize administrative leave unless a Sec.  106.45 
grievance process has been initiated, and Sec.  106.45(b)(1)(v) 
requires the grievance process to be concluded within a designated 
reasonably prompt time frame. As proposed in the NPRM, Sec.  106.44(d) 
provided that a recipient may place a non-student employee respondent 
on administrative leave during the pendency of an investigation; this 
was intended to refer to an investigation conducted pursuant to the 
Sec.  106.45 grievance process. To clarify this point, the Department 
replaces ``an investigation'' with ``a grievance process that complies 
with Sec.  106.45'' in Sec.  106.44(d) to make it clear that a 
recipient may place a non-student employee respondent on administrative 
leave during the pendency of a grievance process that complies with 
Sec.  106.45. The Department also revised Sec.  106.44(d) to provide 
that ``nothing in this subpart'' instead of ``nothing in this section'' 
precludes a recipient from placing a non-student employee respondent on 
administrative leave to clarify that Sec.  106.44(d) applies to subpart 
D of Part 106 of Title 34 of the Code of Federal Regulations. This 
revision makes it clear that nothing in subpart D of Part 106 of Title, 
which concerns nondiscrimination on the basis of sex in education 
programs or activities receiving Federal financial assistance and which 
includes other provisions such as Sec.  106.44 and Sec.  106.45, 
precludes a recipient from placing a non-student employee respondent on 
administrative leave during the pendency of a grievance process that 
complies with Sec.  106.45.
    The Department appreciates commenters' suggestions that the same 
due process protections (notice and opportunity to challenge a removal) 
that apply to respondents under Sec.  106.44(c) should apply to an 
employee placed on administrative leave under Sec.  106.44(d). This is 
unnecessary, because Sec.  106.44(c) applies to an emergency removal of 
any respondent. Any respondent (whether an employee, a student, or 
other person) who poses an immediate threat to the health or safety of 
any student or other individual may be removed from the recipient's 
education program or activity on an emergency basis, where an 
individualized safety and risk analysis justifies the removal. Thus, 
respondents who are employees receive the same due process protections 
with respect to emergency removals (i.e., post-removal notice and 
opportunity to challenge the removal) as respondents who are students.
    The Department also clarifies that pursuant to Sec.  106.44(d), a 
recipient may place a non-student employee respondent on administrative 
leave, even if the emergency removal provision in Sec.  106.44(c) does 
not apply. With respect to student-employee respondents, we explain 
more fully, below, that these final regulations do not necessarily 
prohibit a recipient from placing a student-employee respondent on 
administrative leave if doing so does not violate other regulatory 
provisions. For example, placing a student-employee respondent on 
administrative leave with pay may be permissible as a supportive 
measure, defined in Sec.  106.30, for a complainant (for instance, to 
maintain the complainant's equal educational access and/or to protect 
the complainant's safety or deter sexual harassment) as long as that 
action meets the conditions that a supportive measure is not punitive, 
disciplinary, or unreasonably burdensome to the respondent. Whether a 
recipient considers placing a student-employee respondent on 
administrative leave as part of a non-deliberately indifferent response 
under Sec.  106.44(a) is a decision that the Department will evaluate 
based on whether such a response is clearly

[[Page 30237]]

unreasonable in light of the known circumstances. The Department will 
interpret these final regulations in a manner that complements an 
employer's obligations under Title VII, and nothing in these final 
regulations or in Part 106 of Title 34 of the Code of Federal 
Regulations may be read in derogation of any individual's rights, 
including any employee's rights, under Title VII, as explained in more 
detail in the ``Section 106.6(f) Title VII and Directed Question 3 
(Application to Employees)'' subsection of the ``Clarifying Amendments 
to Existing Regulations'' section of this preamble.
    Section 106.44(a) prohibits a recipient from imposing disciplinary 
sanctions against a respondent without following a grievance process 
that complies with Sec.  106.45. Administrative leave without pay is 
generally considered disciplinary, and would likely be prohibited under 
Sec.  106.44(a) in the absence of the Sec.  106.44(d) administrative 
leave provision. The Department believes that while an investigation is 
pending, a recipient should have discretion to place an employee-
respondent on any form of administrative leave the recipient deems 
appropriate, so that the recipient has flexibility to protect students 
from exposure to a potentially sexually abusive employee. Numerous 
commenters asserted that educator sexual misconduct is prevalent 
throughout elementary and secondary schools, and postsecondary 
institutions.\980\ For these reasons, the final regulations permit, but 
do not require, what may amount to an interim suspension of an 
employee-respondent (i.e., administrative leave without pay) even 
though the final regulations prohibit interim suspensions of student-
respondents. We reiterate that any respondent may be removed on an 
emergency basis under Sec.  106.44(c).
---------------------------------------------------------------------------

    \980\ E.g., Charol Shakeshaft, Educator Sexual Misconduct: A 
Synthesis of Existing Literature (2004) (prepared for the U.S. 
Dep't. of Education) (ten percent of children were targets of 
educator sexual misconduct by the time they graduated from high 
school); National Academies of Science, Engineering, and Medicine, 
Sexual Harassment of Women: Climate, Culture, and Consequences in 
Academic Sciences, Engineering, and Medicine 61 (Frasier F. Benya et 
al. eds., 2018) (describing the prevalence of faculty-on-student 
sexual harassment at the postsecondary level).
---------------------------------------------------------------------------

    We do not believe that employees placed on administrative leave are 
denied sufficient due process under these circumstances, because in 
order for Sec.  106.44(d) to apply, a Sec.  106.45 grievance process 
must be underway, and that grievance process provides the respondent 
(and complainant) with clear, strong procedural protections designed to 
reach accurate outcomes, including the right to conclusion of the 
grievance process within the recipient's designated, reasonably prompt 
time frame. As previously explained, the Department revised Sec.  
106.44(d) to clarify that a recipient may place a non-student 
respondent on administrative leave during the pendency of a grievance 
process that complies with Sec.  106.45.
    Commenters erroneously asserted that because Sec.  106.44(d) 
applies only to ``non-student employees,'' a recipient is always 
precluded from placing an employee-respondent on administrative leave 
if the employee is also a student. We decline to make Sec.  106.44(d) 
apply to student-employees or to change this provision to specify that 
administrative leave is ``from the person's employment.'' Consistent 
with Sec.  106.6(f), where an employee is not a student, we do not 
preclude a recipient-employer from placing a non-student employee on 
administrative leave during the pendency of a grievance process that 
complies with Sec.  106.45. These final regulations do not prohibit a 
recipient from placing a student-employee respondent on administrative 
leave if doing so does not violate other regulatory provisions. As 
discussed above, placing a student-employee respondent on 
administrative leave with pay may be permissible as a supportive 
measure, defined in Sec.  106.30, and may be considered by the 
recipient as part of the recipient's obligation to respond in a non-
deliberately indifferent manner under Sec.  106.44(a). Where a student 
is also employed by their school, college, or university, it is likely 
that the student depends on that employment in order to pay tuition, or 
that the employment is important to the student's academic 
opportunities. Administrative leave may jeopardize a student-employee's 
access to educational benefits and opportunities in a way that a non-
student employee's access to education is not jeopardized. Accordingly, 
administrative leave is not always appropriate for student-employees. 
There may be circumstances that justify administrative leave with pay 
for student-employees, and the specific facts of a particular matter 
will dictate whether a recipient's response in placing a student-
employee on administrative leave is permissible. For example, if a 
student-employee respondent works at a school cafeteria where the 
complainant usually eats, a recipient may determine that placing the 
student-employee respondent on administrative leave with pay, during 
the pendency of a grievance process that complies with Sec.  106.45, 
will not unreasonably burden the student-employee respondent, or the 
recipient may determine that re-assigning the student-employee 
respondent to a different position during pendency of a Sec.  106.45 
grievance process, will not unreasonably burden the student-employee 
respondent. If a recipient places a party who is a student-employee on 
administrative leave with pay as a supportive measure, then such 
administrative leave must be non-disciplinary, non-punitive, not 
unreasonably burdensome, and otherwise satisfy the definition of 
supportive measures in Sec.  106.30. With respect to a student-employee 
respondent, a recipient also may choose to take measures other than 
administrative leave that could constitute supportive measures for a 
complainant, designed to protect safety or deter sexual harassment 
without unreasonably burdening the respondent. For example, where an 
employee is also a recipient's student, it is likely that the recipient 
has the ability to supervise the student-employee to ensure that any 
continued contact between the student-employee respondent and other 
students occurs under monitored or supervised conditions (e.g., where 
the respondent is a teaching assistant), during the pendency of an 
investigation. If a recipient removes a respondent pursuant to Sec.  
106.44(c) after conducting an individualized safety and risk analysis 
and determining that an immediate threat to the physical health or 
safety of any students or other individuals justifies removal, then a 
recipient also may remove a student-employee respondent from any 
employment opportunity that is part of the recipient's education 
program or activity.
    The Department is persuaded by commenters who asserted that 
analogous disability protections should expressly apply for employee-
respondents under Sec.  106.44(d) as for respondents under the Sec.  
106.44(c) emergency removal provision. We have revised Sec.  106.44(d) 
of the final regulations to state that this provision may not be 
construed to modify any rights under Section 504 or the ADA.
    Changes: We have revised Sec.  106.44(d) to clarify that it will 
not be construed to modify Section 504 or the ADA.\981\ We also revised 
Sec.  106.44(d) to clarify that nothing in subpart D of Part 106, Title 
34 of the Code of Regulations, precludes

[[Page 30238]]

a recipient from placing a non-student employee respondent on 
administrative leave during the pendency of a grievance process that 
complies with Sec.  106.45.
---------------------------------------------------------------------------

    \981\ As discussed in the ``Section 106.6(f) Title VII and 
Directed Question 3 (Application to Employees)'' subsection of the 
``Clarifying Amendments to Existing Regulations'' section of this 
preamble, we revised the reference to ``this section'' to ``this 
subpart'' in Sec.  106.44(d).
---------------------------------------------------------------------------

Section 106.45 Recipient's Response to Formal Complaints

General Requirements for Sec.  106.45 Grievance Process

Section 106.45(a) Treatment of Complainants or Respondents Can Violate 
Title IX
    Comments: Commenters including students, professors, campus 
administrators, and attorneys, expressed appreciation and support for 
Sec.  106.45(a). Some commenters asserted that Sec.  106.45(a) is a 
welcome addition because in recent years, Federal judges have expressed 
concerns about how university treatment of respondents (or 
complainants) might run afoul of Title IX and contradict Title IX's 
promise of gender equity. Some commenters noted that although Federal 
courts have not assumed that all unfair procedures depriving 
respondents of a fair process necessarily equate to sex 
discrimination,\982\ numerous Federal courts have identified plausible 
claims of an institutions' sex discrimination against respondents, and 
commenters cited Federal cases \983\ where courts noted sex 
discrimination may exist where an institution failed to investigate 
evidence that the complainant might also have committed sexual 
misconduct in the same case, credited only female witnesses, ignored 
exonerating evidence because of preconceived notions about how males 
and females behave, used gender-biased training materials that portray 
only men as sexual predators or only women as victims, or denied the 
respondent necessary statistical information to test allegations of 
gender bias.
---------------------------------------------------------------------------

    \982\ Commenters cited: Nokes v. Miami Univ., 1:17-CV-482, 2017 
WL 3674910 (S.D. Ohio Aug. 25, 2017); Sahm v. Miami Univ., 110 F. 
Supp. 3d 774 (S.D. Ohio 2015); Bleiler v. Coll. of the Holy Cross, 
No. 1:11-CV-11541, 2013 WL 4714340 (D. Mass. Aug. 26, 2013).
    \983\ Commenters cited: Doe v. Baum, 903 F.3d 575 (6th Cir. 
2018); Doe v. Miami Univ., 882 F.3d 579 (6th Cir. 2018); Rossley v. 
Drake Univ., 342 F. Supp. 3d 904 (S.D. Iowa 2018); Doe v. Univ. of 
Miss., No. 3:16-CV-63, 2018 WL 3570229 (S.D. Miss. July 14, 2018); 
Doe v. Univ. of Pa., 270 F. Supp. 3d 799 (E.D. Pa. 2017); Doe v. 
Amherst Coll., 238 F. Supp. 3d 195 (D. Mass. 2017); Doe v. Williams 
Coll., No. 3:16-CV-30184 (D. Mass. Apr. 28, 2017); Saravanan v. 
Drexel Univ., No. 2:17-CV-03409, 2017 WL 5659821 (E.D. Pa. Nov. 24, 
2017); Marshall v. Ind. Univ., No. 1:15-CV-00726, 2016 WL 4541431 
(S.D. Ind. Aug. 31, 2016).
---------------------------------------------------------------------------

    Other commenters gave examples of how they have observed sex-driven 
unfair treatment against respondents in campus Title IX proceedings. A 
few commenters pointed out that when a sexual harassment grievance 
process favors females over males in an attempt to be equitable to 
victims, the result is often that male victims of sexual harassment are 
not treated equitably; some commenters cited to statistics showing that 
similar percentages of men (5.3 percent) and women (5.6 percent) 
experience sexual violence other than rape each year,\984\ that about 
14 percent of reported rape cases involve men or boys, one in six 
reported sexual assaults is against a boy, one in 25 reported sexual 
assaults is against a man,\985\ and that a survey of 27 colleges and 
universities revealed that 40.9 percent of undergraduate heterosexual 
males had experienced sexual harassment, intimate partner violence, or 
stalking, compared to 60.5 percent of undergraduate heterosexual 
females.\986\ Some commenters opined that the Department's withdrawn 
2011 Dear Colleague Letter contributed to more instances of 
universities applying grievance procedures in a sex-discriminatory 
manner (usually against respondents, who, commenters argued, are 
overwhelmingly male). At least one commenter supportive of Sec.  
106.45(a) cited a white paper by NCHERM cautioning colleges and 
universities to avoid applying grievance procedures in an unfair, 
biased manner (whether favoring complainants, or favoring the accused) 
and urging institutions to have balanced processes.\987\ Several 
commenters, including attorneys and organizations with experience 
representing accused students, supported Sec.  106.45(a) because 
although the provision only clarifies what is already the intent of the 
law, the provision is necessary to counter institutional bias in favor 
of female accusers and against male accused students, as both are 
entitled to equally fair procedures untainted by gender bias; one such 
commenter referred to Sec.  106.45(a) as an ``essential corrective'' to 
gender bias that permeates campus sexual misconduct proceedings, and 
another believed that the provision will encourage schools to be more 
careful in how they treat both sides.
---------------------------------------------------------------------------

    \984\ Commenters cited: Centers for Disease Control and 
Prevention, National Center for Injury Prevention and Control, The 
National Intimate Partner and Sexual Violence Survey (NISVS): 2010 
Summary Report Tables 2.1 and 2.2 (Nov. 2011).
    \985\ Commenters cited: National Alliance to End Sexual 
Violence, ``Male Victims,'' (``About 14% of reported rapes involve 
men or boys, 1 in 6 reported sexual assaults is against a boy, and 1 
in 25 reported sexual assaults is against a man.''), https://www.endsexualviolence.org/where_we_stand/male-victims/.
    \986\ Commenters cited: The Association of American 
Universities, Report on the AAU Campus Climate Survey on Sexual 
Assault and Sexual Misconduct (Westat 2015).
    \987\ Commenters cited: National Center for Higher Education 
Risk Management (NCHERM), White Paper: Due Process and the Sex 
Police 14-15 (2017) (``There are always unintended consequences to 
showing favoritism. If a college is known to be biased toward 
responding parties, this can chill the willingness of victims/
survivors to report. If a college is known to be biased toward 
reporting parties, a victim/survivor's sense of safety or justice 
based on the campus outcome in the short run may be quickly 
compromised by a court order or lawsuit reinstating the responding 
party, giving her a Pyrrhic victory, at best. What is needed for all 
of our students is a balanced process that centers on their 
respective rights while showing favoritism to neither. Not only is 
that best, it is required by law.'').
---------------------------------------------------------------------------

    Discussion: The Department appreciates commenters' support for 
Sec.  106.45(a) and acknowledges that many commenters have observed 
through personal experiences navigating campus sexual misconduct 
proceedings that some recipients have applied grievance procedures in a 
manner that shows discrimination against respondents on the basis of 
sex. We note that other commenters have recounted personal experiences 
navigating campus sexual misconduct proceedings perceived to be biased 
against complainants on the basis of sex. To the extent that such 
discriminatory practices occur, Sec.  106.45(a) advises recipients 
against sex discriminatory practices during the grievance process and 
to avoid different treatment favoring or disfavoring any party on the 
basis of sex. However, to clarify that Sec.  106.45(a) applies as much 
to complainants as to respondents, the final regulations revise the 
language in this provision but retain the provision's statement that 
how a recipient treats a complainant, or a respondent, ``may'' 
constitute sex discrimination under Title IX. The Department emphasizes 
that any person regardless of sex may be a victim or perpetrator of 
sexual harassment and that different treatment due to sex-based 
stereotypes about how men or women behave with respect to sexual 
violence violates Title IX's non-discrimination mandate.
    Changes: The final regulations revise Sec.  106.45(a) to state more 
clearly that treatment of a complainant or respondent may constitute 
sex discrimination in violation of Title IX.
    Comments: Some commenters opposed Sec.  106.45(a), claiming that 
this provision would harbor perpetrators by permitting them to claim a 
Title IX violation even if the recipient merely opens an investigation 
into their conduct, and would revictimize and retraumatize survivors. 
Some commenters argued that this provision operates from a premise of 
false equivalency since the respondent is not involved in the process 
on the basis of their sex but rather on the basis of their

[[Page 30239]]

alleged behavior whereas the complainant alleges to have suffered Title 
IX sexual harassment (discrimination on the basis of sex). Some 
commenters argued that a recipient's treatment of the respondent does 
not constitute discrimination on the basis of sex under Title IX unless 
sex bias was a factor and therefore the Department lacks authority to 
issue a regulation that equates unfair treatment of a respondent with 
sex discrimination. Other commenters contended that Title IX \988\ does 
not include the grievance process prescribed in these final regulations 
and does not address the conduct of school officials implementing a 
grievance process, and that the Department has no authority to create 
new individual rights under Title IX. At least one commenter argued 
that the purpose of Sec.  106.45(a) appears to be justifying the 
entirety of the Department's prescribed grievance process (which the 
commenter argued is characterized by rape exceptionalism with many 
provisions designed to benefit only respondents) by wrongfully 
characterizing procedural protections for respondents as needed to 
avoid sex discrimination. Another commenter argued that Sec.  106.45(a) 
turns Title IX on its head by making respondents accused of sexual 
harassment into a protected class, enabling respondents to make a sex 
discrimination claim for any deviation from the Sec.  106.45 grievance 
process requirements while complainants would need to show deliberate 
indifference to claim sex discrimination.
---------------------------------------------------------------------------

    \988\ Commenters cited: 20 U.S.C. 1681(a).
---------------------------------------------------------------------------

    Some commenters asserted that this provision hamstrings recipients 
excessively and that the provision is fundamentally unfair to 
survivors. Some commenters argued that the provision grants respondents 
the right to sue for sex discrimination under Title IX and contended 
that fear of respondent litigation causes recipients to deprive 
complainants of due process and fair procedures by, for example, giving 
respondents access to information or accommodations not given to the 
complainant or to deliberately mislead the complainant about the 
investigation. One commenter characterized Sec.  106.45(a) as giving an 
``unsubstantiated right of action for respondents under Title IX'' that 
will cause ``risk-averse universities to fail to investigate properly, 
and that schools and university legal counsel will be incentivized to 
never find in a survivor's favor, even when the facts clearly indicate 
that sexual violence occurred,'' leading to more complainants suing 
recipients privately under Title IX just to force institutions to treat 
complainants equally. This concern was echoed by a few commenters who 
argued that this provision would cause institutions to ignore reports 
and refuse to punish perpetrators for fear of respondent lawsuits.
    Other commenters characterized Sec.  106.45(a) as purporting to 
consider the treatment of the respondent as equally violating Title IX 
as the alleged behavior (sexual violence) prompting the Title IX case 
in the first place, while another commenter believed this provision 
meant that unfair treatment of a respondent constituted sexual 
harassment. A few commenters argued that Sec.  106.45(a) unnecessarily 
risks incentivizing institutions to treat survivors unfairly, because 
respondents already have legal theories (such as violation of due 
process and breach of contract) with which to challenge unfair 
discipline, and Federal courts \989\ have appropriately made it 
difficult for respondents to successfully challenge unfair discipline 
as sex discrimination, either on an erroneous outcome or selective 
enforcement theory--a result that would be undermined by Sec.  
106.45(a) giving respondents new rights to pursue unfair discipline 
claims under the auspices of Title IX.
---------------------------------------------------------------------------

    \989\ Commenters cited, e.g.: Doe v. Colgate Univ. Bd. of 
Trustees, 760 F. App'x 22 (2d Cir. 2019); Doe v. Cummins, 662 F. 
App'x 437, 451-53 (6th Cir. 2016); Yusuf v. Vassar Coll., 35 F.3d 
709, 715 (2d Cir. 1994); Preston v. Va. ex rel. New River Comm. 
Coll., 31 F.3d 203, 207 (4th Cir. 1994); Doe v. Univ. of Cincinnati, 
173 F. Supp. 3d 586, 606-07 (S.D. Ohio 2016); Winter v. Pa. State 
Univ., 172 F. Supp. 3d 756, 775-76 (M.D. Pa. 2016); Nungesser v. 
Columbia Univ., 169 F. Supp. 3d 353, 364 (S.D.N.Y. 2016); Doe v. 
Columbia Univ., 101 F. Supp. 3d 356, 372 (S.D.N.Y. 2015); Doe v. 
Univ. of the So., 687 F. Supp. 2d 744, 756 (E.D. Tenn. 2011); 
Patenaude v. Salmon River Cent. Sch. Dist., No. 3:03-CV-1016, 2005 
WL 6152380 (N.D.N.Y. Feb. 16, 2005).
---------------------------------------------------------------------------

    One commenter, a Title IX Coordinator, stated that Sec.  106.45(a) 
seems unnecessary because typically both parties are members of the 
recipient's community and the recipient should not discriminate against 
any member of its community. One commenter opposed Sec.  106.45(a) 
because it tells male students they have been victimized and gives male 
students more incentive to gratify themselves at the expense of a 
woman's education. One commenter argued that if stating that a 
recipient's treatment of a party in sexual harassment proceedings 
``may'' constitute sex discrimination is sufficient to justify the 
Department regulating extensive grievance procedures in sexual 
harassment cases, there is no end to the Department's authority, on the 
same reasoning, to regulate any other type of interaction between a 
school and its students or employees, since any action taken by a 
recipient ``may'' constitute sex discrimination.
    Some commenters suggested modifications in language including to 
specify that a recipient's response to a complaint may constitute sex 
discrimination where: The recipient deprives a respondent of access to 
education based on sex stereotypes or by using procedures that 
discriminate on the basis of sex; the recipient acts with deliberate 
indifference; by a reasonable and objective standard, the ``treatment'' 
is sufficiently severe or pervasive so as to interfere with a student's 
educational opportunities and/or create a hostile work environment; 
there is evidence of discriminatory application of Title IX or acts of 
retaliation; the recipient uses investigatory or other acts to mistreat 
(or not adequately treat well) the respondent. Another commenter 
asserted that Sec.  106.45(a) should specify that programs funded by 
the U.S. Department of Justice's Office on Violence Against Women (OVW) 
must comply with these final regulations. Another commenter argued that 
Sec.  106.45 should consider that when in doubt, the recipient may err 
on side of releasing information in order to avoid liability under 
these final regulations.
    Discussion: The Department disagrees with commenters who believed 
that Sec.  106.45(a) would harbor perpetrators and revictimize or 
retraumatize survivors by permitting respondents to claim a Title IX 
violation based on a recipient's opening of an investigation into 
alleged sexual harassment. This provision does not declare that actions 
toward a respondent (or complainant) do constitute sex discrimination 
in violation of Title IX, but states only that treatment of a 
respondent (or treatment of a complainant) may constitute sex 
discrimination. Title IX prohibits sex discrimination against all 
individuals on the basis of the protected characteristic (sex), and 
Sec.  106.45(a) advises recipients to be aware that taking action with 
respect to either party in a grievance process resolving allegations of 
sexual harassment may not be done in a sex discriminatory manner. This 
provision operates to protect complainants and respondents equally, 
irrespective of sex, by emphasizing to recipients that although a 
grievance process takes place in the context of resolving allegations 
of one type of sex discrimination (sexual harassment), a recipient must 
take care not to treat a party differently on the basis of the party's 
sex because to do so

[[Page 30240]]

would inject further sex discrimination into the situation. For 
example, a recipient's decision to investigate sexual harassment 
complaints brought by women but not by men may constitute sex 
discrimination in the context of a sexual harassment grievance process; 
similarly, a recipient's practice of imposing a sanction of expulsion 
on female respondents found responsible for sexual harassment, but 
suspension on male respondents found responsible, may constitute sex 
discrimination.
    The Department acknowledges that the text of the Title IX statute 
does not specify grievance procedures for resolving allegations of 
sexual harassment. However, at the time Title IX was enacted in 1972, 
Federal courts had not yet addressed sexual harassment as a form of sex 
discrimination, but the Supreme Court's Gebser/Davis framework 
explicitly interpreted Title IX's non-discrimination mandate to include 
sexual harassment as a form of sex discrimination. Since 1975 the 
Department's Title IX regulations have required recipients to adopt and 
publish ``grievance procedures'' for the prompt and equitable 
resolution of complaints that recipients are committing sex 
discrimination against students or employees.\990\ The Department's 
authority to enforce such regulations has been acknowledged by the 
Supreme Court.\991\ The Department has determined that current 
regulatory reference to ``grievance procedures'' that are ``prompt and 
equitable'' does not adequately prescribe a consistent, fair, reliable 
grievance process for resolving allegations of Title IX sexual 
harassment; in accordance with the Department's regulatory authority 
under Title IX, the final regulations now set forth a grievance process 
for resolving formal complaints raising allegations of sexual 
harassment.
---------------------------------------------------------------------------

    \990\ 34 CFR 106.8(b).
    \991\ Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291-
92 (1998).
---------------------------------------------------------------------------

    The Department disagrees that Sec.  106.45(a) turns Title IX on its 
head or creates a new protected class (respondents); this provision 
focuses on the central purpose of Title IX, to provide protections from 
sex-discriminatory practices to all persons, acknowledging that the 
ways in which complainants and respondents are treated must not be 
affected by the sex of a person even though the underlying allegations 
involve allegations of a type of sex discrimination (sexual harassment) 
that make it tempting for recipients to intentionally or 
unintentionally allow sex-based biases, stereotypes, and 
generalizations to influence how procedures are applied. Partly in 
response to commenters' misapprehension that Sec.  106.45(a) allows 
respondents--but not complainants--to claim sex discrimination whenever 
a requirement in Sec.  106.45 is not met, the final regulations permit 
either party equally to appeal a determination regarding responsibility 
on the basis of procedural irregularity.\992\ Similarly, either party 
believing a recipient failed to follow the Sec.  106.45 grievance 
process could file a complaint with OCR that could result in the 
Department requiring the recipient to come into compliance with Sec.  
106.45, regardless of whether the violation of Sec.  106.45 also 
amounted to deliberate indifference (as to a complainant) or otherwise 
constituted sex discrimination (as to a respondent). A violation of 
Sec.  106.45 need not, and might not necessarily, constitute sex 
discrimination, whether the violation disfavored a complainant or a 
respondent. Thus, Sec.  106.45(a) does not create a special protection 
for respondents or special burden for complainants with respect to 
allegations that a recipient failed to comply with the Sec.  106.45 
grievance process.
---------------------------------------------------------------------------

    \992\ Section 106.45(b)(8).
---------------------------------------------------------------------------

    For similar reasons, the Department disagrees that Sec.  106.45(a) 
in any way ``hamstrings'' recipients into catering to respondents' 
interests or permits recipients to ignore complainants or treat 
complainants unfavorably out of fear of being sued by respondents. 
Rather, Sec.  106.45(a) reminds recipients that Title IX requires 
recipients to avoid bias, prejudice, or stereotypes based on sex 
whether the recipient's intent is to favor or disfavor complainants or 
respondents. As to commenters' concerns that out of fear of respondent 
lawsuits recipients will, for example, give respondents access to 
information or accommodations not given to the complainant or 
deliberately mislead the complainant about the investigation, the 
Department notes that such actions likely will either violate specific 
provisions of Sec.  106.45 (e.g., Sec.  106.45(b)(5)(vi) requires the 
parties to have equal opportunity to inspect and review evidence) or 
constitute the very treatment against a complainant that Sec.  
106.45(a) cautions against. For reasons discussed in the ``General 
Support and Opposition for the Sec.  106.45 Grievance Process'' section 
of this preamble, the Department disputes that the Sec.  106.45 
grievance process is premised on rape exceptionalism. The prescribed 
grievance process is tailored to resolve allegations of sexual 
harassment that constitute sex discrimination under a Federal civil 
rights law, not to adjudicate criminal charges; the fact that 
resolution of sexual harassment under Title IX requires, in the 
Department's judgment, a consistent, predictable grievance process in 
no way implies that a ``special'' process is needed due to rape myths 
or sex-based generalizations (such as, ``women lie about rape''). The 
Sec.  106.45 grievance process does not prioritize respondent's rights 
over those of complainants. Rather, Sec.  106.45 contains important 
procedural protections that apply equally to both parties with three 
exceptions: One provision that treats complainants and respondents 
equitably instead of equally (by recognizing a complainant's interest 
in a recipient providing remedies, and a respondent's interest in 
disciplinary sanctions imposed only after a recipient follows a fair 
process); \993\ one provision that applies only to respondents (a 
presumption of non-responsibility until conclusion of a fair process); 
\994\ and one provision that applies only to complainants (protection 
from questions and evidence regarding sexual history).\995\
---------------------------------------------------------------------------

    \993\ Section 106.45(b)(1)(i).
    \994\ Section 106.45(b)(1)(iv).
    \995\ Section 106.45(b)(6)(i)-(ii).
---------------------------------------------------------------------------

    The Department is aware that in private lawsuits brought under 
Title IX, Federal courts have been reluctant to equate unfair treatment 
of a respondent during a sexual misconduct disciplinary proceeding with 
sex discrimination unless the respondent can show that the unfair 
treatment was motivated by the party's sex. Contrary to commenters' 
assertions, Sec.  106.45(a) does not assume that any unfair treatment 
constitutes sex discrimination, but does caution recipients that 
treatment of any party could constitute sex discrimination. In this 
way, Sec.  106.45(a) shields parties (both complainants and 
respondents) from recipient actions during the grievance process that 
are impermissibly motivated by sex-based bias or stereotypes in 
violation of Title IX's non-discrimination mandate. However, as 
discussed above, this does not mean that every violation of Sec.  
106.45 necessarily equates to sex discrimination. The Department 
disagrees that Sec.  106.45(a) purports to consider treatment of a 
respondent during a grievance process as the same type of behavior that 
prompted the respondent to become a respondent in the first place 
(e.g., alleged sexual misconduct), or that this provision equates 
unfair discipline with sexual harassment. The Department appreciates 
the opportunity to clarify

[[Page 30241]]

that when a respondent is treated differently based on sex during a 
grievance process designed to resolve allegations that the respondent 
perpetrated sexual harassment, the sex-based treatment of the 
respondent violates Title IX's non-discrimination mandate in a 
different way than sexual harassment does when sexual harassment 
constitutes sex discrimination under Title IX. Title IX prohibits 
different treatment on the basis of sex, which Sec.  106.45(a) 
acknowledges may occur against respondents or complainants in violation 
of Title IX. Title IX also requires recipients to respond appropriately 
to allegations of sexual harassment, because sexual harassment 
constitutes a particular form of sex discrimination. The Department 
also appreciates the opportunity to clarify that the Department does 
not draw an equivalency among different types of sex discrimination 
prohibited under Title IX, and recognizes that when sex discrimination 
takes the form of sexual harassment victims often face trauma and 
negative impacts unique to that particular form of sex discrimination; 
indeed, it is this recognition that has prompted the Department to 
promulgate legally binding regulations governing recipients' response 
to sexual harassment rather than continuing to rely on guidance 
documents that lack the force and effect of law.
    The Department disagrees with commenters who argued that Sec.  
106.45(a) is unnecessary because respondents already have non-Title IX 
legal theories on which to challenge unfair discipline and have 
erroneous outcome and selective enforcement theories with which to 
challenge unfair discipline under Title IX. While it is true that 
respondents have relied on such theories to pursue private lawsuits, 
similarly complainants already have a judicially implied private right 
of action under Title IX to sue a recipient for being deliberately 
indifferent to a complainant victimized by sexual harassment. The 
existence of private rights of action under Title IX, or under other 
laws, does not obviate the importance of the Department using its 
statutory authorization to effectuate the purposes of Title IX through 
administrative enforcement by promulgating regulations designed to 
provide individuals with effective protections against discriminatory 
practices. Indeed, in the final regulations some requirements intended 
to protect against sex discrimination apply only to the benefit of 
complainants (e.g., Sec.  106.44(a) has been revised to require as part 
of a non-deliberately indifferent response that recipients notify 
complainants of the availability of supportive measures with or without 
the filing of a formal complaint, offer supportive measures to the 
complainant, and explain to complainants the process for filing a 
formal complaint) while other provisions aim to ensure protections 
against sex discrimination for both complainants and respondents (e.g., 
Sec.  106.45(a)). The Department has administrative authority to 
enforce such provisions, whether or not Federal courts would impose the 
same requirements under a complainant's or respondent's private Title 
IX lawsuit.
    The Department agrees with the commenter who asserted that 
recipients should not discriminate against any member of the 
recipient's community but maintains that Sec.  106.45(a) is not 
rendered unnecessary by that belief. The Department disagrees that 
Sec.  106.45(a) conveys to male students that being treated unfairly in 
the grievance process gives license to perpetrate sexual misconduct 
against women; while a recipient must treat a respondent in a manner 
free from sex discrimination and impose discipline only after following 
a fair grievance process, those restrictions in no way encourage or 
incentivize perpetration of sexual misconduct and in fact help ensure 
that sexual misconduct, where reliably determined to have occurred, is 
addressed through remedies for victims and disciplinary sanctions for 
perpetrators.
    The Department understands the commenter's concern that Sec.  
106.45(a) could be misunderstood to justify the Department regulating 
any facet of a recipient's interaction with students and employees 
because in any circumstance a recipient ``may'' act in a sex-biased 
manner. The Department appreciates the opportunity to clarify that 
Sec.  106.45(a) is necessary in the context of sexual harassment 
because allegations of such conduct present an inherent risk of sex-
based biases, stereotypes, and generalizations permeating the way 
parties are treated, such that a consistent, fair process applied 
without sex bias to any party is needed.
    The Department's authority to promulgate regulations under Title IX 
encompasses regulations to effectuate the purpose of Title IX, and as 
commenters acknowledged, one of the two main purposes of Title IX is 
providing individuals with protections against discriminatory 
practices.\996\ Implementation of a grievance process for resolution of 
sexual harassment lies within the Department's statutory authority to 
regulate under Title IX,\997\ and Sec.  106.45(a) is a provision 
designed to protect all individuals involved in a sexual harassment 
situation from sex discriminatory practices in the context of a 
grievance process to resolve formal complaints of sexual harassment. 
Thus, Sec.  106.45, and paragraph (a) in particular, does not create 
new individual rights but rather prescribes procedures designed to 
protect the rights granted all persons under Title IX to be free from 
sex discrimination with respect to participation in education programs 
or activities.
---------------------------------------------------------------------------

    \996\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).
    \997\ 20 U.S.C. 1682.
---------------------------------------------------------------------------

    The Department notes that nothing about Sec.  106.45(a) creates or 
grants respondents (or complainants) rights to file private lawsuits, 
whether under Title IX or otherwise. Title IX does not contain an 
express private right of action, but the Supreme Court has judicially 
implied such a right.\998\ In Gebser, the Supreme Court declined to 
allow petitioner to seek damages in a private suit under Title IX for 
the school's alleged failure to have a grievance procedure as required 
under Department regulations because ``failure to promulgate a 
grievance procedure does not itself constitute `discrimination' under 
Title IX.'' \999\ The Court continued, ``Of course, the Department of 
Education could enforce the requirement administratively: Agencies 
generally have authority to promulgate and enforce requirements that 
effectuate the statute's non-discrimination mandate, 20 U.S.C. 1682, 
even if those requirements do not purport to represent a definition of 
discrimination under the statute.'' \1000\ Thus, the Department's 
exercise of administrative enforcement authority does not grant new 
rights to respondents (or complainants) who pursue remedies against 
recipients in private lawsuits under Title IX.
---------------------------------------------------------------------------

    \998\ Cannon, 441 U.S. at 691.
    \999\ Gebser, 524 U.S. at 292.
    \1000\ Id.
---------------------------------------------------------------------------

    The Department appreciates commenters' suggestions for 
modifications to this provision, but declines to add modifiers or 
qualifiers that would further describe how and when a recipient's 
treatment of a complainant or respondent might constitute sex 
discrimination. In the interest of retaining the broad intent of Title 
IX's non-discrimination mandate, Sec.  106.45(a) in the final 
regulations begins the entirety of a Title IX sexual harassment 
grievance process under

[[Page 30242]]

Sec.  106.45 by advising recipients to avoid treatment of any party in 
a manner that discriminates on the basis of sex. The Sec.  106.45 
grievance process leaves recipients with significant discretion to 
adopt procedures that are not required or prohibited by Sec.  106.45, 
including, for example, rules designed to conduct hearings in an 
orderly manner respectful to all parties. Section 106.45(a) emphasizes 
to recipients that such rules or practices that a recipient chooses to 
adopt must be applied without different treatment on the basis of sex. 
To reinforce the importance of treating complainants and respondents 
equally in a grievance process, the final regulations also revise the 
introductory sentence of Sec.  106.45(b) to indicate that any grievance 
process rules a recipient chooses to adopt (that are not already 
required under Sec.  106.45) must treat the parties equally. Together 
with Sec.  106.45(a), this modification emphasizes, for the benefit of 
any person involved in a Title IX grievance process, that recipients 
must treat both parties equally and without regard to sex.
    The Department declines to specify what programs (including those 
funded by OVW grants) must comply with this provision; questions about 
application of Title IX to individual recipients may be submitted to 
the recipient's Title IX Coordinator, the Assistant Secretary, or both, 
under Sec.  106.8(b)(1). The Department disagrees with the commenter 
who suggested that Sec.  106.45(a) will cause a recipient to err on the 
side of releasing information or increase a recipient's fear of 
retaliation; however, in response to many comments concerning 
confidentiality and retaliation, the final regulations include Sec.  
106.71 prohibiting retaliation and specifying that the recipient must 
keep confidential the identity of any individual who has made a report 
or complaint of sex discrimination, including any individual who has 
made a report or filed a formal complaint of sexual harassment, any 
complainant, any individual who has been reported to be the perpetrator 
of sex discrimination, any respondent, and any witness, except as may 
be permitted by FERPA, required by law, or as necessary to conduct the 
grievance process, and providing that complaints alleging retaliation 
may be filed according to the prompt and equitable grievance procedures 
for sex discrimination that recipients must adopt under Sec.  106.8(c).
    Changes: We are adding Sec.  106.71, prohibiting retaliation and 
specifying that the recipient must keep confidential the identity of 
any individual who has made a report or complaint of sex 
discrimination, including any individual who has made a report or filed 
a formal complaint of sexual harassment, any complainant, any 
individual who has been reported to be the perpetrator of sex 
discrimination, any respondent, and any witness, except as may be 
permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 
CFR part 99, or required by law, or to carry out the purposes of 34 CFR 
part 106, and providing that complaints alleging retaliation may be 
filed according to the grievance procedures for sex discrimination that 
recipients must adopt under Sec.  106.8(c). We are revising Sec.  
106.45(b)(8) regarding appeals, to expressly permit both parties 
equally to appeal a determination regarding responsibility on the basis 
of procedural irregularity. We are revising the introductory sentence 
of Sec.  106.45(b) to state that any rules a recipient chooses to adopt 
(that are not required under Sec.  106.45) must apply equally to both 
parties.
Section 106.45(b)(1)(i) Equitable Treatment of Complainants and 
Respondents
    Comments: Many commenters expressed support for Sec.  
106.45(b)(1)(i). Some commenters asserted that this provision rectifies 
sex discrimination against males that has occurred in recipients' Title 
IX campus proceedings.\1001\ Other commenters stated that this 
provision advances Title IX's goal of due process-type fundamental 
fairness to both complainants and respondents alike by balancing the 
scales. One commenter supported this provision because, in the 
commenter's view, too many institutions view allegations as ``self-
proving.'' At least one commenter approved of this provision as being 
consistent with existing Sec.  106.8 requiring ``prompt and equitable'' 
resolution of sex discrimination complaints. Another commenter asserted 
that Sec.  106.45(b)(1)(i) is consistent with our Nation's fundamental 
values that persons accused of serious misconduct should receive notice 
and a fair hearing before unbiased decision makers, and a presumption 
of innocence. Another commenter supported this provision because 
everyone on campus benefits from fundamentally fair proceedings. One 
commenter called this provision a ``welcome change'' because, in the 
commenter's view, accused students at institutions of higher education 
have had a difficult time restoring their reputations after the 
institution removes the accused student before a fair determination of 
the truth of the allegations.
---------------------------------------------------------------------------

    \1001\ Commenters cited, for example: Jeannie Suk Gersen, The 
Transformation of Sexual-Harassment Law Will Be Double-Faced, The 
New Yorker (Dec. 20, 2017); American Association of University Women 
Educational Foundation, Drawing the Line: Sexual Harassment on 
Campus (2005).
---------------------------------------------------------------------------

    Discussion: The Department appreciates commenters' support for this 
provision. The Department agrees that a fair process benefits both 
parties, and recipients, by leading to reliable outcomes and increasing 
the confidence that parties and the public have regarding Title IX 
proceedings in schools, colleges, and universities. The Department also 
agrees with the commenter who noted that this provision is consistent 
with the principle underlying existing Sec.  106.8 wherein recipients 
have long been required to have ``prompt and equitable'' grievance 
procedures for handling sex discrimination complaints. The purpose of 
Sec.  106.45(b)(1)(i) is to emphasize the importance of treating 
complainants and respondents equitably in the specific context of Title 
IX sexual harassment, by drawing a recipient's attention to the need to 
provide remedies to complainants and avoid punishing respondents prior 
to conclusion of a fair process. As discussed in the ``Role of Due 
Process in the Grievance Process'' section of this preamble, the Sec.  
106.45 grievance process generally treats both parties equally, and 
Sec.  106.45(b)(1)(i) is one of the few exceptions to strict equality 
where equitable treatment of the parties requires recognizing that a 
complainant's interests differ from those of a respondent with respect 
to the purpose of the grievance process. This is intended to provide 
both parties with a fair, truth-seeking process that reasonably takes 
into account differences between a party's status as a complainant, 
versus as a respondent. Thus, with respect to remedies and disciplinary 
sanctions, strictly equal treatment of the parties does not make sense, 
and to treat the parties equitably, a complainant must be provided with 
remedies where the outcome shows the complainant to have been 
victimized by sexual harassment; similarly, a respondent must be 
sanctioned only after a fair process has determined whether or not the 
respondent has perpetrated sexual harassment.
    Changes: None.
    Comments: Some commenters objected to Sec.  106.45(b)(1)(i) on the 
ground that it reinforces the approach of the overall grievance process 
that commenters believed requires a complainant to undergo a 
protracted, often traumatic investigation

[[Page 30243]]

necessitating continuous interrogation of the complainant, all while 
forcing the complainant to continue seeing the respondent on campus 
because the respondent is protected from removal until completion of 
the grievance process; some of these commenters asserted that this will 
chill reporting.
    Some commenters opposed this provision on the ground that it aims 
to treat victims and perpetrators as equals, which is inappropriate 
because a victim has suffered harm inflicted by a perpetrator, placing 
them in inherently unequal positions of power; some of these commenters 
expressed particular concern that this dynamic perpetuates the status 
quo where teachers accused of harassing students are believed because 
of their position of authority.
    Some commenters claimed that by being gender-neutral this provision 
makes campuses and Title IX proceedings an unsafe space for victims and 
is biased against women because it reflects obsolete and unfounded 
assumptions about sexual harassment and sexual violence and perpetuates 
harm against women and vulnerable populations. At least one such 
commenter urged the Department to instead adopt a feminist model that 
supports the healing of survivors of gender-based violence, prevents 
revictimization following assault, and seeks to restore power and 
control the survivor has lost.\1002\
---------------------------------------------------------------------------

    \1002\ Commenters cited: Tara N. Richards et al., A feminist 
analysis of campus sexual assault policies: Results from a national 
sample, 66 Family Relations 1 (2017) (criticizing gender-neutral 
policy approaches because ``In gender-neutral advocacy, policies and 
practices are uniformly applied and do not take gender dynamics into 
consideration, thus increasing the risk of victim-blaming attitudes 
and adherence to myths about rape and other forms of gendered 
violence'').
---------------------------------------------------------------------------

    Discussion: The Department believes that Sec.  106.45(b)(1)(i) 
reflects the critical way in which that a recipient must, throughout a 
grievance process, treat the parties equitably. The Department 
disagrees that the final regulations require complainants to undergo 
protracted, traumatic investigations or necessarily require 
complainants to interact with respondents on campus while a process is 
pending. The final regulations require a recipient to offer supportive 
measures to a complainant with or without the filing of a formal 
complaint triggering the grievance process.\1003\ The final regulations 
have removed proposed Sec.  106.44(b)(2) and revised the Sec.  106.30 
definition of ``complainant'' such that in combination, those revisions 
ensure that the final regulations do not require a Title IX Coordinator 
to initiate a grievance process over the wishes of a complainant, and 
never require a complainant to become a party or to participate in a 
grievance process.\1004\ In these ways, the final regulations respect 
the autonomy of survivors to choose whether to participate in a 
grievance process, while ensuring that regardless of that choice, 
survivors are entitled to supportive measures. Although supportive 
measures must be non-punitive and non-disciplinary (to any party) and 
cannot unreasonably burden the other party,\1005\ supportive measures 
do allow complainants options with respect to changes in class 
schedules or housing re-assignments even while a grievance process is 
still pending, or where no formal complaint has initiated a grievance 
process. Moreover, Sec.  106.44(c) permits a recipient to remove a 
respondent from the recipient's education program or activity without 
undergoing a grievance process, where an individualized risk assessment 
shows the respondent poses a threat to any person's physical health or 
safety, so long as the respondent is afforded post-removal notice and 
opportunity to challenge the removal decision. The final regulations 
thus effectuate the purpose of Title IX to provide protection for 
complainants, while ensuring that a fair process is used to generate a 
factually reliable resolution of sexual harassment allegations before a 
respondent is sanctioned based on such allegations. To clarify that the 
Sec.  106.30 definition of ``supportive measures'' gives recipients 
wide latitude to take actions to support a complainant, even while 
having to refrain from imposing disciplinary sanctions against the 
respondent, we have added to Sec.  106.45(b)(1)(i) the phrase ``or 
other actions that are not supportive measures as defined in Sec.  
106.30.'' \1006\ Even where supportive measures, emergency removal 
where appropriate, the right of both parties to be accompanied by an 
advisor of choice,\1007\ and other provisions intended to ease the 
stress of a formal process may result in a complainant finding the 
process traumatizing,\1008\ the Department maintains that allegations 
of sexual harassment must be resolved accurately in order to ensure 
that recipients remedy sex discrimination occurring in education 
programs or activities.
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    \1003\ Section 106.44(a) (further requiring the Title IX 
Coordinator to contact each complainant to discuss the availability 
of supportive measures with or without a formal complaint, consider 
the complainant's wishes regarding supportive measures, and explain 
to the complainant the process for filing a formal complaint).
    \1004\ Section 106.71 (prohibiting retaliation for the purpose 
of interfering with any right under Title IX, including the right to 
refuse to participate in a Title IX proceeding).
    \1005\ Section 106.30 (defining ``supportive measures'').
    \1006\ Section 106.45(b)(1)(i), stating that equitable treatment 
of the parties means following a Sec.  106.45 grievance process 
before imposing disciplinary sanctions or other actions that are not 
``supportive measures'' as defined in Sec.  106.30, and remedies for 
a complainant whenever a respondent is determined to be responsible, 
is mirrored in Sec.  106.44(a), which requires equitable treatment 
of respondents in the same manner and (because no grievance process 
is required for a recipient's response obligations under Sec.  
106.44 to be triggered) equitable treatment of complainants by 
offering supportive measures.
    \1007\ Section 106.45(b)(5)(iv).
    \1008\ E.g., Sec.  106.45(b)(6)(i) (either party has the right 
to undergo a live hearing and cross-examination in a separate room, 
and this provision deems irrelevant any questions or evidence 
regarding a complainant's sexual predisposition (without exception) 
and any questions or evidence about a complainant's sexual behavior 
with two exceptions).
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    The Department disagrees that treating parties equally throughout 
the grievance process, and recognizing specific ways in which 
complainants and respondents must be treated equitably under Sec.  
106.45(b)(1)(i), inappropriately attempts to place victims and 
perpetrators on equal footing without recognizing that victims are 
suffering from a perpetrator's conduct. The Department recognizes that 
a variety of power dynamics can affect perpetration and victimization 
in the sexual violence context, including differences in the sex, age, 
or positions of authority of the parties. The Department believes that 
a fair process provides procedural tools to parties that can counteract 
situations where a power imbalance led to the alleged incident. By 
providing both parties with strong, clear procedural rights--including 
the right to an advisor of choice to assist a party in navigating the 
process--a party perceived as being in a weaker position has the same 
rights as the party perceived as having greater power (perhaps due to 
sex, age, or a position of authority over the other party), and the 
process is more likely to generate accurate determinations about what 
occurred between the parties.
    The Department disagrees with commenters who criticized this 
provision (and the overall approach of the final regulations) for being 
gender-neutral. Title IX's non-discrimination mandate benefits 
``persons'' without regard to sex.\1009\ The Department believes that 
Title IX's non-discrimination mandate is served by an approach that is 
neutral with respect to sex. The Department notes that applying a sex-
neutral framework does not imply

[[Page 30244]]

that recipients cannot gain understanding about the dynamics of sexual 
violence including particular impacts of sexual violence on women or 
other demographic groups--but such background knowledge and information 
cannot be applied in a way that injects bias or lack of impartiality 
into a process designed to resolve particular allegations of sexual 
harassment. Contrary to some commenters' concerns, sex-neutrality in 
the grievance process helps prevent the very kind of victim-blaming and 
rape myths that have improperly affected responses to females, and does 
so in a manner that also prevents improper injection of sex-bias 
against males. A sex-neutral approach is also the only approach that 
appropriately prohibits generalizations about ``women as victims'' and 
``men as perpetrators'' from improperly affecting an objective 
evaluation of the facts surrounding each particular allegation and 
emphasizes for students and recipients the fact that with respect to 
sexual harassment, any person can be a victim and any person can be a 
perpetrator, regardless of sex.
---------------------------------------------------------------------------

    \1009\ 20 U.S.C. 1681(a) (``No person in the United States 
shall, on the basis of sex . . .'').
---------------------------------------------------------------------------

    Changes: We have revised Sec.  106.45(b)(1)(i) to include the 
phrase ``or other actions that are not supportive measures as defined 
in Sec.  106.30'' in addition to disciplinary sanctions, to describe 
equitable treatment of a respondent during a grievance process.
    Comments: Some commenters characterized this provision as a 
``weak'' attempt to restore or preserve a complainant's access to 
education without sufficiently acknowledging that often, sexual 
harassment causes a complete or total denial of access for the victim 
(for example, where a victim drops out of school entirely).\1010\ Some 
commenters viewed this provision's description of remedies for a 
complainant as too narrow because such remedies must be ``designed to 
restore or preserve access'' to the recipient's education program or 
activity. At least one commenter understood the phrase ``designed to 
restore or preserve access'' to forbid a recipient from imposing a 
disciplinary sanction on a respondent unless the sanction itself is 
designed to restore or preserve access to education. At least one 
commenter suggested adding the word ``equal'' before ``access'' in this 
provision to align this provision with the ``equal access'' language 
used in Sec.  106.30 defining sexual harassment. A few commenters urged 
the Department to add a list of possible remedies for complainants 
including counseling, supportive services, and training for staff. At 
least one commenter suggested that remedies for a complainant must 
actually restore or preserve the complainant's access to education and 
so proposed deleting ``designed to'' from this provision.
---------------------------------------------------------------------------

    \1010\ Many commenters cited: Cecilia Mengo & Beverly M. Black, 
Violence Victimization on a College Campus: Impact on GPA and School 
Dropout, 18 Journal of Coll. Student Retention: Research, Theory & 
Practice 2, 234, 244 (2015), for the proposition that survivors drop 
out of school at higher rates than non-survivors.
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    Discussion: The Department believes that Sec.  106.45(b)(1)(i) 
provides a strong, clear requirement for the benefit of victims of 
sexual harassment: Where a Sec.  106.45 grievance process results in a 
determination that the respondent in fact committed sexual harassment 
against the complainant, the complainant must be given remedies. The 
Department understands that research shows that sexual harassment 
victims drop out of school more often than other students, and in an 
effort to prevent that loss of access to education, this provision 
mandates that recipients provide remedies. In response to commenters 
concerned that the description of remedies is too narrow or unclear, 
the final regulations revise this provision. This provision now uses 
the phrase ``equal access'' rather than simply ``access,'' in response 
to commenters who pointed out that ``equal access'' is the phrase used 
in Sec.  106.30 defining sexual harassment. Further, the final 
regulations substitute ``determination of responsibility'' for 
``finding of responsibility,'' out of caution that this provision's use 
of ``finding'' instead of ``determination'' (when the latter is used 
elsewhere throughout the proposed rules) caused a commenter's confusion 
between remedies for a complainant (which are designed to restore the 
complainant's equal access to education) versus disciplinary sanctions 
against a respondent (which are not designed to restore a respondent's 
access to education). Moreover, the final regulations revise Sec.  
106.45(b)(1)(i) to state that remedies may consist of the same 
individualized services listed illustratively in Sec.  106.30 as 
``supportive measures'' but remedies need not meet the limitations of 
supportive measures (i.e., unlike supportive measures, remedies may in 
fact burden the respondent, or be punitive or disciplinary in nature). 
The Department believes that this additional language in the final 
regulations obviates the need to repeat a non-exhaustive list of 
possible remedies and gives recipients and complainants additional 
clarity about the kind of remedies available to help restore or 
preserve equal educational access for victims of sexual harassment.
    The Department declines to remove ``designed to'' from this 
provision. Sexual harassment can cause severe trauma to victims, and 
while Title IX obligates a recipient to respond appropriately when 
students or employees are victimized with measures aimed at ensuring a 
victim's equal access, the Department does not believe it is reasonable 
to hold recipients accountable for situations where despite a 
recipient's reasonably designed and implemented remedies, a victim 
still suffers loss of access (for example, by dropping out) due to the 
underlying trauma. We have also added Sec.  106.45(b)(7)(iv) requiring 
Title IX Coordinators to be responsible for the ``effective 
implementation'' of remedies to clarify that the burden of effectively 
implementing the remedies designed to restore or preserve the 
complainant's equal access to education rests on the recipient and must 
not fall on the complainant.
    The Department acknowledges that the 2001 Guidance discussed 
corrective action in terms of both remedying effects of the harassment 
on the victim and measures that end the harassment and prevent its 
recurrence.\1011\ For reasons described in the ``Deliberate 
Indifference'' subsection of the ``Adoption and Adaption of the Supreme 
Court's Framework to Address Sexual Harassment'' section of this 
preamble, the Department believes that remedies designed to restore and 
preserve equal access to the recipient's education programs or 
activities is the appropriate focus of these final regulations, and a 
recipient's selection and implementation of remedies will be evaluated 
by what is not clearly unreasonable in light of the known 
circumstances.\1012\ The Department is persuaded by the Supreme Court's 
rationale in Davis that courts (and administrative agencies) should not 
second guess a school's disciplinary decisions, and the Department 
desires to avoid creating regulatory rules that effectively dictate 
particular disciplinary sanctions that obligate recipients to attempt 
to guarantee that sexual harassment does not recur, instead focusing on 
whether a recipient is effectively implementing remedies to 
complainants where respondents are

[[Page 30245]]

found responsible for sexual harassment.
---------------------------------------------------------------------------

    \1011\ 2001 Guidance at 10 (stating that where the school has 
determined that sexual harassed occurred, ``The recipient is, 
therefore, also responsible for remedying any effects of the 
harassment on the victim, as well as for ending the harassment and 
preventing its recurrence.'').
    \1012\ Recipients must also document their reasons for 
concluding that the recipient's response to sexual harassment was 
not deliberately indifferent, under Sec.  106.45(b)(10).
---------------------------------------------------------------------------

    Changes: The final regulations revise Sec.  106.45(b)(1)(i) to use 
the phrase ``equal access'' instead of ``access,'' substitute 
``determination of responsibility'' for ``finding of responsibility,'' 
and state that remedies may include the same individualized services 
described in Sec.  106.30 defining ``supportive measures'' but unlike 
supportive measures, remedies need not avoid burdening the respondent 
and can be punitive or disciplinary. We have also added Sec.  
106.45(b)(7)(iv) requiring Title IX Coordinators to be responsible for 
the ``effective implementation'' of remedies.
    Comments: Some commenters objected to Sec.  106.45(b)(1)(i) for 
referencing ``due process protections'' owed to respondents, claiming 
that respondents have no right to due process in campus administrative 
proceedings, or that courts do not require the specific due process 
protections that the proposed rules require. Some commenters criticized 
this provision for referring to due process protections for respondents 
because the reference implies that due process protections are not 
important for complainants and thereby discounts and downplays the 
needs of victims. At least one commenter recommended modifying this 
provision to specify that equitable treatment of both parties requires 
due process protections for both parties. Other commenters urged the 
Department not to use ``due process'' or ``due process protections'' in 
the final regulations and to instead refer to a ``fair process'' for 
all parties; similarly, at least one commenter asked for clarification 
whether by using the phrase ``due process protections'' the Department 
intended to reference constitutional due process or only those 
protections set forth in the proposed regulations.
    Some commenters contended that Sec.  106.45(b)(1)(i) is 
contradicted by other provisions in the proposed rules; for example, 
commenters characterized the Sec.  106.44(c) emergency removal 
provision as contrary to the requirement for equitable treatment of a 
respondent in Sec.  106.45(b)(1)(i) because the emergency removal 
section permits schools to remove respondents without due process 
protections. Other commenters pointed to the requirement in proposed 
Sec.  106.44(b)(2) that Title IX Coordinators must file a formal 
complaint upon receiving multiple reports against the same respondent 
as inequitable to respondents in contravention of Sec.  106.45(b)(1)(i) 
because a respondent should not have to undergo a grievance process 
without a cooperating complainant. Other commenters pointed to the 
presumption of non-responsibility in Sec.  106.45(b)(1)(iv) as 
``inequitable'' to complainants in contradiction with Sec.  
106.45(b)(1)(i); other commenters characterized the live hearing and 
cross-examination requirements of Sec.  106.45(b)(6)(i) as inequitable 
treatment of complainants.
    At least one commenter asked the Department to answer whether being 
sensitive to the trauma experienced by victims would violate this 
provision by being inequitable to respondents. At least one commenter 
requested that as part of treating the parties equitably, this 
provision should require a Title IX Coordinator to offer, and keep 
lists available that describe, various off-campus supportive resources 
available to both complainants and respondents, including resources 
oriented toward survivors and those oriented toward accused students. 
One commenter asserted that this provision should include a statement 
that equitable treatment of a respondent must include remedies for a 
respondent where a complainant is found to have brought a false 
allegation.
    Discussion: The Department appreciates commenters' varied concerns 
about use of the phrase ``due process protections'' in Sec.  
106.45(b)(1)(i) and perceived tension between this provision and other 
provisions in the proposed rules. The Department agrees with commenters 
that ``due process protections'' caused unnecessary confusion about 
whether the proposed rules intended to reference due process of law 
under the U.S. Constitution, or only those protections embodied in the 
proposed rules. In response to such comments, the final regulations 
replace ``due process protections'' with ``a grievance process that 
complies with Sec.  106.45'' throughout the final regulations, 
including in this provision, Sec.  106.45(b)(1)(i). As explained in the 
``Role of Due Process in the Grievance Process'' section of this 
preamble, while the Department believes that the Sec.  106.45 grievance 
process is consistent with constitutional due process obligations, 
these final regulations apply to all recipients including private 
institutions that do not owe constitutional protections to their 
students and employees, and making this terminology change throughout 
the final regulations helps clarify that position.
    The Department disagrees that Sec.  106.45(b)(1)(i) implies that 
the protections in the grievance process do not also benefit 
complainants, or should not be given to complainants. The grievance 
process is of equal benefit to complainants and respondents and each 
provision has been selected for the purpose of creating a fair process 
likely to result in reliable outcomes resolving sexual harassment 
allegations. The equitable distinction in Sec.  106.45(b)(1)(i) 
recognizes the significance of remedies for complainants and 
disciplinary sanctions for respondents, but does not alter the benefit 
of the Sec.  106.45 grievance process providing procedural rights and 
protections for both parties.
    The Department understands commenters' views that certain other 
provisions in the final regulations are ``inequitable'' for either 
complainants or respondents. For reasons explained in this preamble 
with respect to each particular provision, the Department believes that 
each provision in the final regulations contributes to effectuating 
Title IX's non-discrimination mandate while providing a fair process 
for both parties. Section 106.45(b)(1)(i) was not intended to create a 
standard of ``equitableness'' under which other provisions of the 
proposed rules should be measured. In response to commenters' apparent 
perception that Sec.  106.45(b)(1)(i) created a general equitability 
requirement that applied to the proposed rules or created conflict 
between this provision and other parts of the proposed rules, the final 
regulations revise Sec.  106.45(b)(1)(i) to more clearly express its 
intent--that equitable treatment of a complainant means providing 
remedies, and equitable treatment of a respondent means imposing 
disciplinary sanctions only after following the grievance 
process.\1013\
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    \1013\ The Department notes that similar language is included in 
the final regulations in Sec.  106.44(a) such that a recipient's 
response in the absence of a formal complaint must treat 
complainants equitably by offering supportive measures and must 
treat respondents equitably by imposing sanctions only after 
following a grievance process that complies with Sec.  106.45.
---------------------------------------------------------------------------

    Being sensitive to the trauma a complainant may have experienced 
does not violate Sec.  106.45(b)(1)(i) or any other provision of the 
grievance process, so long as what the commenter means by ``being 
sensitive'' does not lead a Title IX Coordinator, investigator, or 
decision-maker to lose impartiality, prejudge the facts at issue, or 
demonstrate bias for or against any party.\1014\ The Department 
declines to require recipients to list off-campus supportive resources 
for complainants, respondents, or both, though the final regulations do 
not prohibit a recipient from choosing to do this. The Department 
believes that

[[Page 30246]]

Sec.  106.45(b)(1)(ix), requiring recipients to describe the range of 
supportive measures available to complainants and respondents, is 
sufficient to serve the Department's interest in ensuring that parties 
are aware of the availability of supportive measures. The Department 
declines to require remedies for respondents in situations where a 
complainant is found to have brought a false allegation. These final 
regulations are focused on sexual harassment allegations, including 
remedies for victims of sexual harassment, and not on remedies for 
other kinds of misconduct.\1015\
---------------------------------------------------------------------------

    \1014\ Section 106.45(b)(1)(iii).
    \1015\ The Department notes that the final regulations add Sec.  
106.71 prohibiting retaliation, and paragraph (b)(2) of that section 
cautions recipients that a determination regarding responsibility, 
alone, is not sufficient to conclude that a party has made a 
materially false statement in bad faith. The Department leaves 
recipients with discretion to address false statements (by any 
party) under the recipient's own code of conduct.
---------------------------------------------------------------------------

    Changes: Section 106.45(b)(1)(i) is revised by replacing ``due 
process protections'' with ``a grievance process that complies with 
Sec.  106.45'' and by stating that treating complainants equitably 
means providing remedies where a respondent has been determined to be 
responsible, and treating respondents equitably means imposing 
disciplinary sanctions or other actions that are not supportive 
measures as defined in Sec.  106.30 only after following the Sec.  
106.45 grievance process.
Section 106.45(b)(1)(ii) Objective Evaluation of All Relevant Evidence
    Comments: Numerous commenters supported Sec.  106.45(b)(1)(ii) 
asserting that it ensures fairness, accuracy, due process, and 
impartiality to all parties. Several commenters shared personal 
experiences with Title IX investigations in which they witnessed the 
recipient ignoring, discounting, burying, or destroying exculpatory 
evidence. Similarly, other commenters stated that they have observed 
inculpatory evidence being ignored or discounted particularly when a 
respondent is a star athlete or otherwise prominent within the 
recipient's educational community.
    Other commenters expressed concerns about requiring an objective 
evaluation of relevant evidence. Some commenters asserted that it would 
be challenging to get such evidence in sexual assault cases, because 
sexual assault often happens without witnesses who can corroborate 
stories. One commenter contended that getting objective evidence every 
time would be a ``near-impossible task,'' while another felt it is 
``unrealistic'' to expect tangible evidence in all cases. Some 
commenters argued that such a high standard would likely chill 
reporting. One commenter was concerned that an objective evaluation of 
all relevant evidence could lead to respondents extending 
investigations indefinitely since almost anything could be relevant and 
new evidence or witnesses might surface regularly.
    Some commenters expressed support for this provision's preclusion 
of making credibility determinations based on party status because it 
is inappropriate to make presumptions about trustworthiness based on 
whether a person is a complainant or respondent. Other commenters 
opposed this part of Sec.  106.45(b)(1)(ii) and suggested modifying the 
provision to require that credibility determinations not be based 
``solely'' on a person's status, but argued that fact-finders could 
base credibility determinations in part on a person's status as a 
complainant or respondent. These commenters opposed any categorical bar 
to the fact-finder's considerations when determining credibility, and 
questioned whether this provision is in significant tension with the 
presumption of non-responsibility in Sec.  106.45(b)(1)(iv). Commenters 
asserted that Sec.  106.45(b)(1)(ii)'s requirement is problematic for 
adjudicators because it directs them to ignore central factors in 
credibility determinations, such as what interests a party has at 
stake. Commenters argued that courts, law enforcement, and other 
investigators have always considered a party's status as a defendant or 
plaintiff when determining how to weigh evidence and testimony. 
Commenters argued that recipients should be permitted to consider a 
party's status when considering the totality of the circumstances to 
reach credibility determinations.
    A number of commenters proposed modifications related to training 
that commenters believed would improve implementation of this provision 
and promote objectivity and competence, such as training about applying 
rules of evidence, how to collect and evaluate evidence, and how to 
determine if evidence is credible, relevant, or reliable.
    Many commenters suggested types of evidence that should be 
considered, specific investigative processes, or other evidentiary 
requirements. Commenters proposed, for example, that the final 
regulations should require consideration of letters, videos, photos, 
emails, texts, phone calls, social media, mental health history, drug, 
alcohol, and medication use, and rape kits. Commenters also proposed 
requiring a variety of investigative techniques, including asking the 
Department to require recipients to take immediate action to collect 
and test all evidence, including permitting recipients to interview 
community members and other witnesses (e.g., roommates, dorm residents, 
classmates, fraternity members). Commenters also asked whether the 
recipient may consider evidence of the respondent's lack of 
credibility, other bad acts, and misrepresentation of key facts. Some 
commenters asked whether the proposed rules would allow respondents to 
introduce lie detector test results and impact statements. Some 
commenters wanted the final regulations to require investigators to 
identify any data gaps in investigative report noting unavailable 
information (e.g., unable to interview eyewitnesses or to visit the 
scene of an incident) and all attempts to fill those data gaps, as well 
as requiring hearing boards to explain the specific evidentiary basis 
for each finding. Other commenters asserted that the final regulations 
should require all evidence to be shared with the parties to ensure 
fairness, and that an investigator should not get to decide what is 
relevant.
    Commenters requested that the Department clarify how to evaluate 
whether evidence is relevant. Commenters asked how recipients should 
make credibility determinations, and whether it would be permissible to 
admit character and reputation evidence, including past sexual history 
or testimony based on hearsay. One commenter asserted that requiring an 
``objective evaluation'' leaves questions about what this term will 
mean in practice, noting that similar provisions in the VAWA negotiated 
rulemaking in 2012 raised concerns that the subjectivity (at least in 
defining bias) would be an overreach into campus administrative 
decisions.
    Some commenters suggested specific modifications to the wording of 
the proposed provision. For example, individual commenters suggested 
that the Department: Replace ``objective'' with ``impartial' for 
consistency with VAWA; add language emphasizing that the recipient's 
determination must be unbiased since recipient bias has been a 
significant problem in Title IX investigations; add that objective 
evaluation be ``based on rules of evidence under applicable State 
law;'' add that schools shall resolve doubts ``in favor of considering 
evidence to be relevant and exculpatory'' to address the danger that 
recipients will narrowly construe what constitutes exculpatory 
evidence; and add that unsubstantiated

[[Page 30247]]

theories of trauma cannot be relied on to conclude that a particular 
complainant suffered from trauma or be used to explain away a 
complainant's inconsistencies. One commenter asserted that 
underweighting relevant testimony simply because someone is a friend to 
a party in a case will make it materially harder to prove an assault 
and will not promote equitable treatment for all parties; this 
commenter mistakenly believed that the proposed rules used the phrase 
``arbiters should underweight character feedback from biased 
witnesses'' and wanted that language changed.
    Discussion: The Department appreciates commenters' support of this 
provision and acknowledges other commenters' concerns about Sec.  
106.45(b)(1)(ii). While the gathering and evaluation of available 
evidence will take time and effort on the part of the recipient, the 
Department views any difficulties associated with the provision's 
evidence requirement to be outweighed by the due process benefits the 
provision will bring to both parties during the grievance process. The 
recipient's investigation and adjudication of the allegations must be 
based on an objective evaluation of the evidence available in a 
particular case; the type and extent of evidence available will differ 
based on the facts of each incident. The Department understands that in 
some situations, there may be little or no evidence other than the 
statements of the parties themselves, and this provision applies to 
those situations. As some commenters have observed, Title IX campus 
proceedings often involve allegations with competing plausible 
narratives and no eyewitnesses, and such situations still must be 
evaluated by objectively evaluating the relevant evidence, regardless 
of whether that available, relevant evidence consists of the parties' 
own statements, statements of witnesses, or other evidence. This 
provision does not require ``objective'' evidence (as in, corroborating 
evidence); this provision requires that the recipient objectively 
evaluate the relevant evidence that is available in a particular case. 
The Department disagrees that this provision could permit endlessly 
delayed proceedings while parties or the recipient search for ``all'' 
relevant evidence; Sec.  106.45(b)(1)(v) requires recipients to 
conclude the grievance process within designated reasonable time frames 
and thus ``all'' the evidence is tempered by what a thorough 
investigation effort can gather within a reasonably prompt time frame.
    The Department agrees with commenters who noted the 
inappropriateness of investigators and decision-makers drawing 
conclusions about credibility based on a party's status as a 
complainant or respondent. While the Department appreciates the 
concerns by commenters advocating that the final regulations should 
permit status-based inferences as to a person's credibility, the 
Department believes that to do so would invite bias and partiality. To 
that end, we disagree with commenters who opposed categorical bars on 
the factors that investigators or decision-makers may consider, and who 
want to partially judge a person's credibility based on the person's 
status as a complainant, respondent, or witness. A process that 
permitted credibility inferences or conclusions to be based on party 
status would inevitably prejudge the facts at issue rather than 
determine facts based on the objective evaluation of evidence, and this 
would decrease the likelihood that the outcome reached would be 
accurate.
    The Department disagrees that Sec.  106.45(b)(1)(ii) conflicts with 
the presumption of non-responsibility; in fact, Sec.  106.45(b)(1)(ii) 
helps to ensure that the presumption is not improperly applied by 
recipients. Section 106.45(b)(1)(iv) affords respondents a presumption 
of non-responsibility until the conclusion of the grievance process. 
Section 106.45(b)(1)(ii) applies throughout the grievance process, 
including with respect to application of the presumption, to ensure 
that the presumption of non-responsibility is not interpreted to mean 
that a respondent is considered truthful, or that the respondent's 
statements are credible or not credible, based on the respondent's 
status as a respondent. Treating the respondent as not responsible 
until the conclusion of the grievance process does not mean considering 
the respondent truthful or credible; rather, that presumption 
buttresses the requirement that investigators and decision-makers serve 
impartially without prejudging the facts at issue.\1016\ Determinations 
of credibility, including of the respondent, must be based on objective 
evaluation of relevant evidence--not on inferences based on party 
status. Both the presumption of non-responsibility and this provision 
are designed to promote a fair process by which an impartial fact-
finder determines whether the respondent is responsible for 
perpetrating sexual harassment. Every determination regarding 
responsibility must be based on evidence, not assumptions about 
respondents or complainants. The Department disagrees that disregarding 
party status poses problems for investigators or adjudicators or 
directs them to ignore central factors in reaching credibility 
determinations. Title IX personnel are not prevented from understanding 
and taking into account each party's interests and the ``stakes'' at 
issue for each party, yet what is at stake does not, by itself, reflect 
on the party's truthfulness.
---------------------------------------------------------------------------

    \1016\ For further discussion on the purpose and function of the 
presumption of non-responsibility, see the ``Section 
106.45(b)(1)(iv) Presumption of Non-Responsibility'' subsection of 
the ``General Requirements for Sec.  106.45 Grievance Process'' 
subsection of the ``Section 106.45 Recipient's Response to Formal 
Complaints'' section of this preamble.
---------------------------------------------------------------------------

    In response to commenters' concerns about how to determine 
``relevance'' in the context of these final regulations, we have 
revised Sec.  106.45(b)(1)(iii) specifically to require training on 
issues of relevance (including application of the ``rape shield'' 
protections in Sec.  106.45(b)(6)). Thus, these final regulations 
require Title IX personnel to be well trained in how to conduct a 
grievance process; within the requirements stated in Sec.  
106.45(b)(1)(iii) recipients have flexibility to adopt additional 
training requirements concerning evidence collection or evaluation.
    Similarly, the Department declines to adopt commenters' suggestions 
that the final regulations explicitly allow or disallow certain types 
of evidence or utilize specific investigative techniques. The 
Department believes that the final regulations reach the appropriate 
balance between prescribing sufficiently detailed procedures to foster 
a consistently applied grievance process, while deferring to recipients 
to tailor rules that best fit each recipient's unique needs. While the 
proposed rules do not speak to admissibility of hearsay,\1017\ prior 
bad acts, character evidence, polygraph (lie detector) results, 
standards for authentication of evidence, or similar issues concerning 
evidence, the final regulations require recipients to gather and 
evaluate relevant evidence,\1018\ with the understanding that this 
includes both inculpatory and exculpatory evidence, and the final 
regulations deem questions and evidence about a complainant's prior 
sexual behavior to be irrelevant

[[Page 30248]]

with two exceptions \1019\ and preclude use of any information 
protected by a legally recognized privilege (e.g., attorney-
client).\1020\ Within these evidentiary parameters recipients retain 
the flexibility to adopt rules that govern how the recipient's 
investigator and decision-maker evaluate evidence and conduct the 
grievance process (so long as such rules apply equally to both 
parties).\1021\ Relevance is the standard that these final regulations 
require, and any evidentiary rules that a recipient chooses must 
respect this standard of relevance. For example, a recipient may not 
adopt a rule excluding relevant evidence because such relevant evidence 
may be unduly prejudicial, concern prior bad acts, or constitute 
character evidence. A recipient may adopt rules of order or decorum to 
forbid badgering a witness, and may fairly deem repetition of the same 
question to be irrelevant.
---------------------------------------------------------------------------

    \1017\ While not addressed to hearsay evidence as such, Sec.  
106.45(b)(6)(i), which requires postsecondary institutions to hold 
live hearings to adjudicate formal complaints of sexual harassment, 
states that the decision-maker must not rely on the statement of a 
party or witness who does not submit to cross-examination, resulting 
in exclusion of statements that remain untested by cross-
examination.
    \1018\ The final regulations do not define relevance, and the 
ordinary meaning of the word should be understood and applied.
    \1019\ Section 106.45(b)(6) contains rape shield protections, 
providing that questions and evidence about the complainant's sexual 
predisposition or prior sexual behavior are not relevant, unless 
such questions and evidence about the complainant's prior sexual 
behavior are offered to prove that someone other than the respondent 
committed the conduct alleged by the complainant, or if the 
questions and evidence concern specific incidents of the 
complainant's prior sexual behavior with respect to the respondent 
and are offered to prove consent.
    \1020\ Section 106.45(b)(1)(x) (precluding a recipient from 
using information or evidence protected by a legally recognized 
privilege unless the holder of the privilege has waived the 
privilege).
    \1021\ Of course, the manner in which a recipient adopted or 
applied such a rule or practice concerning evaluation of evidence 
could constitute sex discrimination, a situation that Sec.  
106.45(a) cautions recipients against, and the entirety of a 
recipient's grievance process must be conducted impartially, free 
from conflicts of interest or bias for or against complainants or 
respondents. Further, the introductory sentence of Sec.  106.45(b) 
has been revised in the final regulations to ensure that a 
recipient's self-selected rules must apply equally to both parties. 
The Department notes that the universe of evidence given to the 
parties for inspection and review under Sec.  106.45(b)(5)(vi) must 
consist of all evidence directly related to the allegations; 
determinations as to whether evidence is ``relevant'' are made when 
finalizing the investigative report, pursuant to Sec.  
106.45(b)(5)(vii) (requiring creation of an investigative report 
that ``fairly summarizes all relevant evidence''). Only ``relevant'' 
evidence can be subject to the decision-maker's objective evaluation 
in reaching a determination, and relevant evidence must be 
considered, subject to the rape shield and legally recognized 
privilege exceptions contained in the final regulations. This does 
not preclude, for instance, a recipient adopting a rule or providing 
training to a decision-maker regarding how to assign weight to a 
given type of relevant evidence, so long as such a rule applies 
equally to both parties.
---------------------------------------------------------------------------

    The Department disagrees that requiring an ``objective evaluation'' 
leaves questions about what this will mean in practice; the final 
regulations contain sufficient clarity concerning objectivity, while 
leaving recipients discretion to apply the grievance process in a 
manner that best fits the recipient's needs. Similarly, the Department 
is not persuaded that the final regulations permit inappropriate 
subjectivity as to defining bias or constitute overreach into campus 
administrative proceedings. A commenter raising that concern noted that 
the same issue was raised during negotiated rulemaking under VAWA; 
however, the Department believes that these final regulations prohibit 
bias with adequate specificity (i.e., bias against complainants or 
respondents generally, or against an individual complainant or 
respondent) yet reserve adequate flexibility for recipients to apply 
the prohibition against bias without unduly overreaching into a 
recipient's internal administrative affairs. To the extent that the 
commenter was arguing that prohibiting bias is itself an overreach into 
campus administrative decisions, the Department does not agree. The 
text of Title IX prohibits recipients from engaging in discrimination 
on the basis of sex. Biased decision making increases the risk of 
erroneous outcomes because bias, rather than evidence, dictates the 
conclusion. Sex-based bias is a specific risk in the context of sexual 
harassment allegations, where the underlying conduct at issue 
inherently raises issues related to sex, making these proceedings 
susceptible to improper sex-based bias that prevents reliable outcomes. 
Other forms of bias on the part of individuals in charge of 
investigating and adjudicating allegations also lessen the likelihood 
that outcomes are reliable and viewed as legitimate; because Title IX's 
non-discrimination mandate requires that recipients accurately identify 
(and remedy) sexual harassment occurring in education programs or 
activities, these final regulations prohibit bias on the part of Title 
IX personnel (in Sec.  106.45(b)(1)(iii)) and require objective 
evaluation of evidence (in Sec.  106.45(b)(1)(ii)).
    Rather than require recipients to take ``immediate action'' to 
collect all evidence, the final regulations require the recipient to 
investigate the allegations in a formal complaint \1022\ yet permit 
recipients flexibility to conduct the investigation, under the 
constraint that the investigation (and adjudication) must be completed 
within the recipient's designated, reasonably prompt time frames.\1023\
---------------------------------------------------------------------------

    \1022\ Section 106.45(b)(5).
    \1023\ Section 106.45(b)(1)(v).
---------------------------------------------------------------------------

    While the final regulations do not require hearing boards (as 
opposed to a single individual acting as the decision-maker), the final 
regulations do not preclude the recipient from using a hearing board to 
function as a decision-maker, such that more than one individual serves 
as a decision-maker, each of whom must fulfill the obligations under 
Sec.  106.45(b)(1)(iii). Whether or not the determination regarding 
responsibility is made by a single decision-maker or by multiple 
decision-makers serving as a hearing board, Sec.  106.45(b)(7)(ii) 
requires that decision-makers lay out the evidentiary basis for 
conclusions reached in the case, in a written determination regarding 
responsibility. Prior to the time that a determination regarding 
responsibility will be reached, Sec.  106.45(b)(5)(vi) requires the 
recipient to make all evidence directly related to the allegations 
available to the parties for their inspection and review, and Sec.  
106.45(b)(5)(vii) requires that recipients create an investigative 
report that fairly summarizes all relevant evidence. The final 
regulations add language in Sec.  106.45(b)(5)(vi) stating that 
evidence subject to inspection and review must include inculpatory and 
exculpatory evidence whether obtained from a party or from another 
source. The Department does not believe it is necessary to require 
investigators to identify data gaps in the investigative report, 
because the parties' right to inspect and review evidence, and review 
and respond to the investigative report, adequately provide opportunity 
to identify any perceived data gaps and challenge such deficiencies.
    The Department disagrees that an investigator should not get to 
decide what is relevant, and the final regulations give the parties 
ample opportunity to challenge relevancy determinations. The 
investigator is obligated to gather evidence directly related to the 
allegations whether or not the recipient intends to rely on such 
evidence (for instance, where evidence is directly related to the 
allegations but the recipient's investigator does not believe the 
evidence to be credible and thus does not intend to rely on it). The 
parties may then inspect and review the evidence directly related to 
the allegations.\1024\ The investigator must take into consideration 
the parties' responses and then determine what evidence is relevant and 
summarize the relevant evidence in the investigative report.\1025\ The 
parties then have equal opportunity to review the investigative report; 
if a party disagrees with an investigator's determination about 
relevance, the party can make that

[[Page 30249]]

argument in the party's written response to the investigative report 
under Sec.  106.45(b)(5)(vii) and to the decision-maker at any hearing 
held; either way the decision-maker is obligated to objectively 
evaluate all relevant evidence and the parties have the opportunity to 
argue about what is relevant (and about the persuasiveness of relevant 
evidence). The final regulations also provide the parties equal appeal 
rights including on the ground of procedural irregularity,\1026\ which 
could include a recipient's failure to objectively evaluate all 
relevant evidence, including inculpatory and exculpatory evidence. 
Furthermore, Sec.  106.45(b)(1)(iii) requires the recipient's 
investigator and decision-maker to be well-trained to conduct a 
grievance process compliant with Sec.  106.45 including determining 
``relevance'' within the parameters of the final regulations.
---------------------------------------------------------------------------

    \1024\ Section 106.45(b)(5)(vi).
    \1025\ Section 106.45(b)(5)(vii).
    \1026\ Section 106.45(b)(8).
---------------------------------------------------------------------------

    While the Department appreciates commenters' desire for more 
oversight as to how a recipient defines or ``counts'' exculpatory 
evidence, based on commenters' observations that recipients have not 
consistently understood the need to consider exculpatory evidence as 
relevant, the Department believes that the final regulations adequately 
address this concern by specifying that relevant evidence must include 
both inculpatory and exculpatory evidence, ensuring the parties have 
opportunities to challenge relevance determinations, and requiring 
Title IX personnel to be trained to serve impartially including 
specific training for investigators and decision-makers on issues of 
relevance.
    While some commenters wished to alter the wording of the provision 
in numerous ways, for the reasons explained above the Department 
believes that Sec.  106.45(b)(1)(ii) appropriately serves the 
Department's goal of providing clear parameters for evaluation of 
evidence while leaving flexibility for recipients within those 
parameters. The Department thus declines to remove the word 
``objective,'' require recipients to adopt any jurisdiction's rules of 
evidence, or add rules or presumptions that would require particular 
types of evidence to be relevant.
    Changes: In the final regulations we add Sec.  106.45(b)(1)(x), 
precluding the recipient from using evidence that would result in 
disclosure of information protected by a legally recognized privilege. 
The final regulations add language in Sec.  106.45(b)(5)(vi) stating 
that evidence subject to inspection and review must include inculpatory 
and exculpatory evidence whether obtained from a party or from another 
source. We have also revised Sec.  106.45(b)(1)(iii) to specifically 
require investigators and decision-makers to receive training on issues 
of relevance.
Section 106.45(b)(1)(iii) Impartiality and Mandatory Training of Title 
IX Personnel; Directed Question 4 (Training)
    Comments: Many commenters expressed support for Sec.  
106.45(b)(1)(iii) and, in response to the NPRM's directed question 
about training, stated that the training provided for in this provision 
is adequate. Several commenters believed this provision provides 
recipients with appropriate flexibility to decide the amount and type 
of training recipients must provide to individuals involved with Title 
IX proceedings. At least one commenter, on behalf of a college, noted 
that the college already provides for investigators free from bias or 
conflict of interest. Several commenters supported this provision 
because its prohibition on bias, conflicts of interest, and training 
materials that rely on sex stereotypes will lead to impartial 
investigations and adjudications. One commenter asserted that the 
proposed regulations help reduce bias by ensuring that training 
programs are fair and neutral and noted that social scientists and 
legal academics have argued that training programs can help 
adjudicatory bodies make better decisions.\1027\
---------------------------------------------------------------------------

    \1027\ Commenters cited: Stephen E. Fienberg & Mark J. 
Schervish, The Relevance of Bayesian Inference for the Presentation 
of Statistical Evidence and Legal Decisionmaking, 66 Boston Univ. L. 
Rev. 771 (1986) (advocating that jurors be instructed in Bayesian 
probabilities); James J. Gobert, In Search of the Impartial Jury, 79 
J. Crim. L. & Criminology 269, 326 (1988) (suggesting that juries 
receive ``impartiality training''); Jennifer A. Richeson & Richard 
J. Nussbaum, The Impact of Multiculturalism Versus Color-Blindness 
on Racial Bias, 40 J. of Experimental Social Psychol. 417 (2004) 
(explaining how diversity training can lead to less implicit bias); 
Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, 
Decisionmaking, and Misremembering, Duke L. J. 345 (2007) (arguing 
for diversity training).
---------------------------------------------------------------------------

    Many commenters supported Sec.  106.45(b)(1)(iii) because of 
personal experiences with Title IX campus proceedings involving 
perceived bias or conflicts of interest that commenters believed 
rendered the investigation or adjudication unfair. One commenter 
supported this provision because the commenter believed it will 
counteract the ideological propaganda having to do with sex and gender 
that has been disseminated throughout institutions of higher education. 
Another commenter believed this provision will help remedy widespread 
sex bias against male students at colleges and universities. One 
commenter favored this provision because the topics considered in a 
Title IX process are sensitive and personal, improper handling of cases 
can potentially retraumatize survivors or lead to unfair outcomes for 
both survivors and the accused, and mandatory training should lead to 
better results for all involved. One commenter analyzed how and why 
unconscious biases and sex-based stereotypes are pernicious especially 
in university disciplinary hearings, can constitute Title IX 
violations, and lead to biased outcomes. This commenter argued that 
bias can subvert procedural protections, which are necessary to render 
fair outcomes, and biased adjudicators cannot properly carry out their 
duties. One commenter supported this provision's restriction against 
sex stereotyping in training materials for Title IX personnel, arguing 
that while appropriate training can reduce bias, improper trainings can 
leave biases unchecked or exacerbate underlying biases. The commenter 
argued that numerous examples exist showing that recipients' training 
documents given to adjudicators in university sexual misconduct 
processes have demonstrated bias especially against respondents, making 
it impossible for decision-makers to be impartial and unbiased.\1028\
---------------------------------------------------------------------------

    \1028\ Commenters asserted that as of 2014, Harvard Law School's 
disciplinary board training contained slides to this effect and that 
one Harvard Law School professor stated that these slides were 
``100% aimed to convince [adjudicators] to believe complainants, 
precisely when they seem unreliable and incoherent'' citing to Emily 
Yoffe, The Bad Science Behind Campus Response to Sexual Assault, The 
Atlantic (Sept. 8, 2017). Commenters further stated that at Ohio 
State University, for instance, decision-makers were told that a 
``victim centered approach can lead to safer campus communities.'' 
Doe v. Ohio State Univ., No. 2:15-CV-2830, 2016 WL 692547, at *3 
(S.D. Ohio, Feb. 22, 2016). Commenters further stated that same Ohio 
State University training guide, for example, told decision-makers 
that ``[s]ex offenders are overwhelmingly white males.'' Id.; see 
also Doe v. Univ. of Pa., 270 F. Supp. 3d 799, 823 (E.D. Pa. 2017).
---------------------------------------------------------------------------

    Another commenter supported Sec.  106.45(b)(1)(iii) combined with 
the other provisions in Sec.  106.45 because while nothing can 
completely eliminate gender or racial bias from the system, bias can be 
reduced by expanding the evidence considered by decision-makers, a 
function served by a full investigation and hearings with cross-
examination. The commenter argued that decisions are most biased when 
they rely on less evidence and more hunches because hunches are easily 
tainted by subconscious racial or gender

[[Page 30250]]

bias.\1029\ The commenter asserted that the obligation of the law under 
Title IX is to treat each person as an individual, not as a member of a 
class subject to prejudgment and prejudice on the basis of sex, and 
nowhere is the problem of sex bias more pronounced than in the area of 
perception, prejudgment, and prejudice in the matter of incidences of 
violence between members of the opposite sex. The commenter supported 
the Department's proposed rules, including this provision, based on the 
Department's authority and obligation to issue regulations that end the 
discrimination based on sex that exists in Title IX programs 
themselves.\1030\
---------------------------------------------------------------------------

    \1029\ In support of the proposition that most decisions after a 
full trial are not based on using race as a proxy but rather on the 
evidence at trial, resulting in racially fair decisions, while 
racial bias is rampant in low-stakes, low-evidence decision making 
where people make decisions on little evidence, the commenter cited 
Stephen P. Klein, et al., Race and Imprisonment Decisions in 
California, 247 Science 812 (1990). More than one commenter cited to 
Driving While Black in Maryland, American Civil Liberties Union 
(ACLU) (Feb. 2, 2010) https://www.aclu.org/cases/driving-while-black-maryland, for similar propositions.
    \1030\ Commenters asserted that services for male victims of 
opposite sex violence are nearly non-existent at educational 
institutions and in society at large because of an ingrained ``man 
as perpetrator/woman as victim'' stereotype, which stereotype has 
always been false, shown by CDC data revealing the prevalence of 
male victims of sexual violence: Centers for Disease Control and 
Prevention, National Center for Injury Prevention and Control, The 
National Intimate Partner and Sexual Violence Survey (NISVS): 2015 
Data Brief Tables 9, 11 (2018).
---------------------------------------------------------------------------

    One commenter supported this provision but noted that the Supreme 
Court has recognized that as a practical matter it is difficult if not 
impossible for an adjudicator ``to free himself from the influence'' of 
circumstances that would give rise to bias, and the private nature of 
motives ``underscore the need for objective rules'' for determining 
when an adjudicator is biased.\1031\ This commenter asserted recipients 
thus need to have objective rules for determining bias. A few 
commenters supporting this provision recommended that the Department, 
or recipients on their own, establish a clear process or mechanism for 
reporting conflicts of interest or demanding recusal for bias during 
the investigative process.
---------------------------------------------------------------------------

    \1031\ Commenters cited: Caperton v. A. T. Massey Coal Co., 556 
U.S. 868, 883 (2009) (holding that a judge cannot hear a case 
centered on the financial interests of someone who substantially 
supported the judge's election campaign).
---------------------------------------------------------------------------

    Several commenters supported this provision but urged the 
Department to make the training materials referred to in Sec.  
106.45(b)(1)(iii) publicly available because transparency is the most 
effective means to eradicate the problems with biased Title IX 
proceedings, which problems are often rooted in biased training 
materials. These commenters argued that when recipients know that their 
training materials are subject to scrutiny, recipients will be more 
careful to ensure that Title IX personnel are being trained to be 
impartial. One commenter asserted that a lot of training is conducted 
via webinars and that public disclosure of training materials must 
include audio and video of the training as well as documents or 
slideshow presentations used during the training.
    Discussion: The Department appreciates commenters' support for 
Sec.  106.45(b)(1)(iii), and the commenters who provided feedback in 
response to the Department's directed question as to whether this 
provision adequately addresses training implicated under the proposed 
rules. The Department agrees with commenters who noted that prohibiting 
conflicts of interest and bias, including racial bias, on the part of 
people administering a grievance process is an essential part of 
providing both parties a fair process and increasing the accuracy and 
reliability of determinations reached in grievance processes. 
Recognizing that commenters recounted instances of experience with 
perceived conflicts of interest and bias that resulted in unfair 
treatment and biased outcomes, the Department believes that this 
provision provides a necessary safeguard to improve the impartiality, 
reliability, and legitimacy of Title IX proceedings.\1032\ The 
Department agrees with a commenter who asserted that recipients should 
have objective rules for determining when an adjudicator (or Title IX 
Coordinator, investigator, or person who facilitates an informal 
resolution process) is biased, and the Department leaves recipients 
discretion to decide how best to implement the prohibition on conflicts 
of interest and bias, including whether a recipient wishes to provide a 
process for parties to assert claims of conflict of interest of bias 
during the investigation. The Department notes that Sec.  106.45(b)(8) 
in the final regulations requires recipients to allow both parties 
equal right to appeal including on the basis that the Title IX 
Coordinator, investigator, or decision-maker had a conflict of interest 
or bias that affected the outcome. The Department is persuaded by the 
numerous commenters who urged the Department to require training 
materials to be available for public inspection, to create transparency 
and better effectuate the requirements of Sec.  106.45(b)(1)(iii). The 
final regulations impose that requirement in Sec.  106.45(b)(10).
---------------------------------------------------------------------------

    \1032\ The 2001 Guidance at 21 contained a similar training 
recommendation: ``Finally, the school must make sure that all 
designated employees [referring to designated Title IX Coordinators] 
have adequate training as to what conduct constitutes sexual 
harassment and are able to explain how the grievance procedure 
operates.''
---------------------------------------------------------------------------

    Additionally, the Department will not tolerate discrimination on 
the basis of race, color, or national origin, which is prohibited under 
Title VI. If any recipient discriminates against any person involved in 
a Title IX proceeding on the basis of that person's race, color, or 
national origin, then the Department will address such discrimination 
under Title VI and its implementing regulations, in addition to such 
discrimination potentially constituting bias prohibited under Sec.  
106.45(b)(1)(iii) of these final regulations.
    Changes: The final regulations revise Sec.  106.45(b)(10)(i)(D) to 
require that training materials referred to in Sec.  106.45(b)(1)(iii) 
must be made publicly available on a recipient's website, or if the 
recipient does not have a website such materials must be made available 
upon request for inspection by members of the public.
    Comments: Several commenters expressed skepticism that any 
recipient employees can be objective, fair, unbiased, or free from 
conflicts of interest because a recipient's employees share the 
recipient's interest in protecting the recipient's reputation or 
furthering a recipient's financial interests. Some commenters asserted 
this leads to recipient employees being unwilling to treat complainants 
fairly while others asserted this leads to recipient employees being 
unwilling to treat respondents fairly. A few commenters asserted that 
this problem of inherent conflicts of interest between recipient 
employees and complainants means that the only way to avoid conflicts 
of interest is to require recipients to use an external, impartial 
arbiter or require investigations to be done by people unaffiliated 
with any students in the school, and one commenter argued that because 
all paid staff members are biased (in favor of the recipient), the 
solution is to allow complainants and respondents to pick the persons 
who run the grievance proceedings similar to jury selection. One 
commenter suggested that to counter institutional bias, which the 
commenter argued was on display in notorious cover-up situations at 
prestigious universities where employees committed sexual abuse, the 
proposed rules should specifically require training on conflicts of 
interest caused by employees' misplaced loyalty to the recipient. 
Another commenter stated that schools must be required to

[[Page 30251]]

purchase liability insurance covering exposure arising from the 
handling of sexual harassment claims, to ensure that they do not have a 
secret conflict of interest that might cause them to put a finger on 
the scale one way or the other in the course of investigating or 
adjudicating a Title IX complaint.
    Several commenters indicated that this provision seems reasonable 
but requested clarity as to what might in practice constitute a 
conflict of interest under Sec.  106.45(b)(1)(iii), with one commenter 
noting that this issue often arises when a school district hires their 
legal counsel, insurance carrier, or risk pool to complete an 
investigation or respond to a formal complaint. Another commenter 
requested more information on what would constitute ``general bias'' 
for or against complainants or respondents under this provision, 
expressing concern that without any framework for evaluating whether a 
particular administrator is tainted by such bias this provision is 
amorphous and will add confusion and grounds for attack at smaller 
institutions where many student affairs administrators fill several 
different roles. Another commenter asked for clarification that school 
employees serving in the Title IX process should be presumed to be 
unbiased notwithstanding having previously investigated a matter 
involving one or more of particular parties, or else this provision 
could be quite costly by requiring a school district to hire outside 
investigators every time an investigator deals with a party more than 
once.
    Several commenters recommended countering inherent institutional 
conflicts of interest on the part of recipient employees by revising 
the final regulations to avoid any commingling of administrative and 
adjudicative roles. Several commenters offered the specific 
recommendation that the Title IX Coordinator must not be an employment 
supervisor of the decision-maker in the school's administrative 
hierarchy and if investigators are independent contractors, the Title 
IX Coordinator should not have a role in hiring or firing such 
investigators. The same commenters recommended bolstering neutrality 
and independence by removing the role of counseling complainants from 
the office that coordinates the grievance process and requiring that 
investigators have some degree of institutional independence. One 
commenter asserted that if the Department intends to prohibit any 
overlap in responsibilities among the Title IX Coordinator, 
investigator, or decision-maker, the Department must make that 
intention clear.
    Many commenters requested clarification as to whether this 
provision's prohibition against conflicts of interest and bias would be 
interpreted to bar anyone from being a Title IX Coordinator, 
investigator, or decision-maker if the person currently or in their 
past has ever advocated for victims' rights or otherwise worked in 
sexual violence prevention fields. Several commenters argued against 
such an interpretation because individuals with that kind of experience 
are often highly knowledgeable about sexual violence and able to serve 
impartially, while several other commenters argued that Title IX-
related personnel are a self-selected group likely to include victim 
advocates, self-identified victims, and those associated with women's 
studies and thus come to a Title IX role with biases against men, 
respondents, or both. One commenter asserted that while the choice of a 
professor's field of study may or may not indicate bias, the fact that 
a university relies on volunteers to staff Title IX hearing panels is 
highly questionable because self-selection creates the likelihood that 
those who ``want'' to serve on a Title IX hearing board have 
preconceived ideas and views about whether male students are guilty, 
regardless of the actual facts and circumstances, and thus the final 
regulations should require the recipient to select decision-makers 
based on random selection from its entire faculty and administrators. 
One commenter shared an example of bias on the part of the single 
administrator tasked with ruling on the commenter's client's appeal of 
a responsibility finding, where the appeal decision-maker had recently 
retweeted a survivor advocacy organization's tweet ``To survivors 
everywhere, we believe you,'' yet the recipient overruled a bias 
objection stating that nothing suggested that such a tweet meant the 
appeal decision-maker was biased against that particular respondent. 
This commenter proposed adding language explaining that a ``reasonable 
person'' standard will be applied to determine bias, along with 
cautionary language that a history of working or advocating on one side 
or another of this issue might constitute bias. One commenter asserted 
that Federal courts of appeal, including the Sixth Circuit, agree that 
``being a feminist, being affiliated with a gender-studies program, or 
researching sexual assault does not support a reasonable inference than 
an individual is biased against men.'' \1033\ This commenter believed 
that the proposed rules offered no clarity on whether the Department 
would consider bias claims based on being a feminist or working in the 
sexual assault field to be ``frivolous'' or would be taken seriously.
---------------------------------------------------------------------------

    \1033\ Commenter cited: Doe v. Miami Univ., 882 F.3d 579, 593 
fn. 6 (6th Cir. 2018).
---------------------------------------------------------------------------

    Several commenters urged the Department to expand this provision to 
prohibit ``perceived'' conflicts of interest or ``the appearance'' of 
bias in line with standards that require judges not to have even the 
appearance of bias or impropriety; other commenters urged the 
Department to apply a presumption that campus decision-makers are free 
of bias, noting that courts require proof that a conduct official had 
an ``actual'' bias against the party because of the party's sex, and 
the proposed rules seem to reverse this judicial presumption, opening 
the door to numerous claims that undermine the presumption of honesty 
in campus proceedings. One commenter suggested a more clearly defined 
standard by specifying that Title IX personnel not have a personal bias 
or prejudice for or against complainants or respondents generally, and 
not have an interest, relationship, or other consideration that may 
compromise or have the appearance of compromising the individual's 
judgment with respect to any individual complainant or respondent. One 
commenter suggested that this provision should require 
``nondiscriminatory'' investigations and adjudications instead of being 
``not biased.'' One commenter believed that student leaders should take 
more responsibility for addressing sexual misconduct and might do a 
better job than bureaucrats can; the commenter asserted that the final 
regulations should not prohibit recipients from relying on students to 
investigate and adjudicate sexual misconduct cases.
    Discussion: The Department understands commenters' concerns that 
the final regulations work within a framework where a recipient's own 
employees are permitted to serve as Title IX personnel,\1034\ and the 
potential conflicts of interest this creates. The final regulations 
leave recipients flexibility to use their own employees, or to 
outsource Title IX investigation and adjudication functions, and the 
Department encourages recipients to pursue alternatives to the inherent 
difficulties that arise when a recipient's own employees are expected 
to perform these functions free from conflicts of

[[Page 30252]]

interest and bias. The Department notes that several commenters 
favorably described regional center models that could involve 
recipients coordinating with each other to outsource Title IX grievance 
proceedings to experts free from potential conflicts of interest 
stemming from affiliation with the recipient. The Department declines 
to require recipients to use outside, unaffiliated Title IX personnel 
because the Department does not conclude that such prescription is 
necessary to effectuate the purposes of the final regulations; although 
recipients may face challenges with respect to ensuring that personnel 
serve free from conflicts of interest and bias, recipients can comply 
with the final regulations by using the recipient's own employees. 
Unless prescription is necessary to achieve compliance with the final 
regulations, the Department does not wish to interfere with recipients' 
discretion to conduct a recipient's own internal, administrative 
affairs. The Department is also sensitive to the reality that 
prescriptions regarding employment relationships likely will result in 
many recipients being compelled to hire additional personnel in order 
to comply with these final regulations, and the Department wishes to 
prescribe only those measures necessary for compliance, without 
unnecessarily diverting recipients' resources into hiring personnel and 
away from other priorities important to recipients and the students 
they serve. For these reasons, the Department declines to define 
certain employment relationships or administrative hierarchy 
arrangements as per se prohibited conflicts of interest under Sec.  
106.45(b)(1)(iii).\1035\ The Department is cognizant that the 
Department's authority under Title IX extends to regulation of 
recipients themselves, and not to the individual personnel serving as 
Title IX Coordinators, investigators, decision-makers, or persons who 
facilitate an informal resolution process. Thus, the Department will 
hold a recipient accountable for the end result of using Title IX 
personnel free from conflicts of interest and bias, regardless of the 
employment or supervisory relationships among various Title IX 
personnel. To the extent that recipients wish to adopt best practices 
to better ensure that conflicts of interest do not cause violations of 
the final regulations, recipients have discretion to adopt practices 
suggested by commenters, such as ensuring that investigators have 
institutional independence or deciding that Title IX Coordinators 
should have no role in the hiring or firing of investigators.
---------------------------------------------------------------------------

    \1034\ References in this preamble to ``Title IX personnel'' 
mean Title IX Coordinators, investigators, decision-makers, and 
persons who facilitate informal resolution processes.
    \1035\ Although the decision-maker must be different from any 
individual serving as a Title IX Coordinator or investigator, 
pursuant to Sec.  106.45(b)(7)(i), the final regulations do not 
preclude a Title IX Coordinator from also serving as the 
investigator, and the final regulations do not prescribe any 
particular administrative ``chain of reporting'' restrictions or 
declare any such administrative arrangements to be per se conflicts 
of interest prohibited under Sec.  106.45(b)(1)(iii).
---------------------------------------------------------------------------

    For similar reasons, the Department declines to state whether 
particular professional experiences or affiliations do or do not 
constitute per se violations of Sec.  106.45(b)(1)(iii). The Department 
acknowledges the concerns expressed both by commenters concerned that 
certain professional qualifications (e.g., a history of working in the 
field of sexual violence) may indicate bias, and by commenters 
concerned that excluding certain professionals out of fear of bias 
would improperly exclude experienced, knowledgeable individuals who are 
capable of serving impartially. Whether bias exists requires 
examination of the particular facts of a situation and the Department 
encourages recipients to apply an objective (whether a reasonable 
person would believe bias exists), common sense approach to evaluating 
whether a particular person serving in a Title IX role is biased, 
exercising caution not to apply generalizations that might unreasonably 
conclude that bias exists (for example, assuming that all self-
professed feminists, or self-described survivors, are biased against 
men, or that a male is incapable of being sensitive to women, or that 
prior work as a victim advocate, or as a defense attorney, renders the 
person biased for or against complainants or respondents), bearing in 
mind that the very training required by Sec.  106.45(b)(1)(iii) is 
intended to provide Title IX personnel with the tools needed to serve 
impartially and without bias such that the prior professional 
experience of a person whom a recipient would like to have in a Title 
IX role need not disqualify the person from obtaining the requisite 
training to serve impartially in a Title IX role.
    In response to commenters' concerns that the prohibition against 
conflicts of interest and bias is unclear, the Department revises this 
provision to mandate training in ``how to serve impartially, including 
by avoiding prejudgment of the facts at issue, conflicts of interest, 
and bias'' in place of the proposed language for training to ``protect 
the safety of students, ensure due process protections for all parties, 
and promote accountability.'' This shift in language is intended to 
reinforce that recipients have significant control, and flexibility, to 
prevent conflicts of interest and bias by carefully selecting training 
content focused on impartiality and avoiding prejudgment of the facts 
at issue, conflicts of interest, and bias.
    The Department disagrees with the commenter who suggested replacing 
``bias'' in this provision with ``non-discrimination.'' Based on 
anecdotal evidence from commenters asserting specific instances that 
ostensibly reveal a recipient's Title IX personnel exhibiting bias for 
or against men, women, complainants, or respondents, the Department 
believes that bias, especially sex-based bias, is a particular risk in 
Title IX proceedings and aims specifically to reduce and prevent bias 
from influencing how a recipient responds to sexual harassment 
including through required training for Title IX personnel.\1036\
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    \1036\ E.g., Justin D. Levinson, Forgotten Racial Equality: 
Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L. J. 345 
(2007) (arguing for diversity training); Jennifer A. Richeson & 
Richard J. Nussbaum, The Impact of Multiculturalism Versus Color-
Blindness on Racial Bias, 40 J. of Experimental Social Psychol. 417 
(2004) (explaining how diversity training can lead to less implicit 
bias).
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    The Department declines to narrow or widen this provision by 
specifying whether conflicts of interest or bias must be ``actual'' or 
``perceived,'' and declines to adopt an ``appearance of bias'' 
standard. As noted above, the topic of sexual harassment inherently 
involves issues revolving around sex and sexual dynamics such that a 
standard of ``appearance of'' or ``perceived'' bias might lead to 
conclusions that most people are biased in one direction or another by 
virtue of being male, being female, supporting women's rights or 
supporting men's rights, or having had personal, negative experiences 
with men or with women. The Department believes that keeping this 
provision focused on ``bias'' paired with an expectation of 
impartiality helps appropriately focus on bias that impedes 
impartiality. The Department cautions parties and recipients from 
concluding bias, or possible bias, based solely on the outcomes of 
grievance processes decided under the final regulations; for example, 
the mere fact that a certain number of outcomes result in 
determinations of responsibility, or non-responsibility, does not 
necessarily indicate or imply bias on the part of Title IX personnel. 
The entire purpose of the Sec.  106.45 grievance process is to increase 
the reliability and accuracy of outcomes in Title IX proceedings, and 
the number of particular outcomes, alone, thus does not raise an 
inference of bias because the final regulations

[[Page 30253]]

help ensure that each individual case is decided on its merits.
    The Department notes that the final regulations do not preclude a 
recipient from allowing student leaders to serve in Title IX roles so 
long as the recipient can meet all requirements in Sec.  106.45 and 
these final regulations,\1037\ and leaves it to a recipient's judgment 
to decide under what circumstances, if any, a recipient wants to 
involve student leaders in Title IX roles.
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    \1037\ For example, Sec.  106.8(a) specifies that the Title IX 
Coordinator must be an ``employee'' designated and authorized by the 
recipient to coordinate the recipient's efforts to comply with Title 
IX obligations. No such requirement of employee status applies to, 
for instance, serving as a decision-maker on a hearing panel.
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    Changes: Section 106.45(b)(1)(iii) is revised to specify that the 
required training include ``how to serve impartially, including by 
avoiding prejudgment of the facts at issue, conflicts of interest, and 
bias'' in place of the proposed language ``that protect the safety of 
students, ensure due process protections for all parties, and promote 
accountability.'' \1038\
---------------------------------------------------------------------------

    \1038\ Because revised Sec.  106.45(b)(8) now requires 
recipients to offer appeals, Sec.  106.45(b)(1)(iii) has also been 
revised to include training on conducting appeals.
---------------------------------------------------------------------------

    Comments: One commenter asked whether the training on the 
definition of sexual harassment referenced in Sec.  106.45(b)(1)(iii) 
means the definition in Sec.  106.30, a definition used by the 
recipient (that might be broader than in Sec.  106.30), or both. One 
commenter wondered why this provision removes vital sexual harassment 
training of school personnel but gave no explanation for drawing this 
conclusion. Several commenters noted that Sec.  106.45(b)(1)(iii) does 
not state the frequency for the required training and wondered if it 
must be annual, while several others requested more clarity about what 
would be considered adequate training especially for a decision-maker 
expected to conduct a live hearing with cross-examination, and further 
explanation of what kinds of training materials foster impartial 
determinations. One commenter stated that Sec.  106.45(b)(1)(iii) does 
not provide for a standardized level of training or offer financial 
assistance for training personnel. One commenter agreed with the 
proposed rules' effort to diagnose severe training gaps in the Title IX 
system but because this provision mandates training ``conceptually'' 
without specifying what the training must include, the commenter 
asserted that the inevitable result will be more Dear Colleague Letters 
and guidance from the Department, which the Department should avoid by 
taking time to include more specific training requirements in these 
final regulations.
    Many commenters expressed views about this provision's prohibition 
against the use of ``sex stereotypes'' in training materials. Some 
commenters urged the Department to include a definition of ``sex 
stereotypes,'' asserting that without clarity this provision is a legal 
morass exposing recipients to liability. One commenter asserted that 
``bias'' lacks a definitive legal meaning and should be replaced by 
``non-discriminatory.'' Some commenters argued that without a 
definition, this provision could be interpreted to forbid recipients 
from relying on research and evidence-based practices that instruct 
personnel to reject notions of ``regret sex'' and women lying about 
sexual assault. Other commenters requested clarity that stereotypes of 
men as sexually aggressive or likely to perpetrate sexual assault and 
references to ``toxic masculinity'' are prohibited under this 
provision. One commenter argued that the First Amendment likely 
prohibits the Department from dictating that training materials be free 
from sex stereotypes or that if the Department no longer perceives the 
First Amendment as a barrier to the Federal government prohibiting sex 
stereotyping materials then the Department should repeal 34 CFR 106.42 
and replace it with a prohibition against reliance on sex stereotyping 
that extends to all training or educational materials used by a 
recipient for any purpose. This commenter also requested clarification 
as to whether Sec.  106.45(b)(1)(iii) would prohibit reliance on peer-
reviewed journal articles that state, for example,\1039\ that trauma 
victims often recall only some vivid details from their ordeal and that 
memories may be impaired with amnesia or gaps or contain false details 
following extreme cases of negative emotions, such as rape trauma. 
Another commenter expressed concern that this provision might result in 
information provided by sexual violence experts being forbidden, 
resulting in respondents' lawyers' opinions replacing peer-reviewed, 
scientific data. One commenter urged the Department to interpret this 
provision to require training around bias that exists against 
complainants and to clarify that the ``Start by Believing'' approach 
promoted by End Violence Against Women International should be part of 
these training requirements because that approach trains investigators 
to start by believing the survivor to avoid incorporating personal bias 
and victim-blaming myths that might bias the investigation against the 
survivor. The commenter asserted that understanding the dynamics of 
sexual trauma is necessary in order to treat both complainants and 
respondents fairly without bias. Another commenter asserted that 
``start by believing'' is not appropriate for investigations but is 
appropriate for counseling and thus, the final regulations should 
require that for counseling purposes personnel must ``start by 
believing'' a complainant or a respondent seeking counseling.
---------------------------------------------------------------------------

    \1039\ Commenters cited: Katrin Hohl & Martin Conway, Memory as 
Evidence: How Normal Features of Victim Memory Lead to the Attrition 
of Rape Complaints, 17 Criminology & Criminal Justice 3 (2017).
---------------------------------------------------------------------------

    One commenter suggested this provision be modified to require 
training to have a working understanding of impartiality. One commenter 
contended that training materials should never be allowed to refer to 
the AAU/Westat Report \1040\ for the statistic that one-in-four women 
are raped on college campuses because there are so many methodological 
problems with that report that using it constitutes sex discrimination 
under Title IX. One commenter argued that Sec.  106.45(b)(1)(iii) must 
not be applied to exclude the application of proven profiles and 
indicators of certain predictive behaviors because that is a tried and 
tested practice in professional law enforcement and should be utilized 
according to best practices of trained investigators in any quest for 
the truth.
---------------------------------------------------------------------------

    \1040\ Commenters cited: The Association of American 
Universities, Report on the AAU Campus Climate Survey on Sexual 
Assault and Sexual Misconduct (Westat 2015).
---------------------------------------------------------------------------

    Discussion: The Department appreciates a commenter asking whether 
the training on the definition of sexual harassment in this provision 
was intended to refer to the definition of sexual harassment in Sec.  
106.30; to clarify that was the intent of this provision, Sec.  
106.45(b)(1)(iii) has been revised to so state. The Department 
disagrees that this provision removes vital training regarding a 
recipient's responses to sexual harassment; rather, this provision 
prescribes mandatory training for Title IX personnel that promotes the 
purpose of a Title IX process and compliance with these final 
regulations, and leaves recipients free to adopt additional education 
and training content that a recipient believes serves the needs of the 
recipient's community. Commenters correctly noted that the final 
regulations do not impose an annual or other frequency condition on the 
mandatory training required in Sec.  106.45(b)(1)(iii). The Department 
interprets this provision as requiring that any Title IX

[[Page 30254]]

Coordinator, investigator, decision-maker, or person who facilitates an 
informal resolution process will, when serving in such a role, be 
trained to serve in that role. The Department wishes to leave 
recipients flexibility to decide to what extent additional training is 
needed to ensure that Title IX personnel are trained when they serve 
\1041\ so that recipients efficiently allocate their resources among 
Title IX compliance obligations and other important needs of their 
educational communities. The Department disagrees with a commenter 
concerned that failing to be more prescriptive about the content of 
training in these final regulations necessarily will result in the 
Department issuing Dear Colleague Letters imposing training content 
requirements in the future. The Department is committed to imposing 
legally binding requirements by following applicable rulemaking 
processes.
---------------------------------------------------------------------------

    \1041\ Some commenters questioned whether advisors provided to a 
party by a postsecondary institution recipient pursuant to Sec.  
106.45(b)(6)(i) must be free from conflicts of interest and bias and 
must be trained. The final regulations impose no prohibition of 
conflict of interest or bias for such advisors, nor any training 
requirement for such advisors, in order to leave recipients as much 
flexibility as possible to comply with the requirement to provide 
those advisors. The Department believes that advisors in such a role 
do not need to be unbiased or lack conflicts of interest precisely 
because the role of such advisor is to conduct cross-examination on 
behalf of one party, and recipients can determine to what extent a 
recipient wishes to provide training for advisors whom a recipient 
may need to provide to a party to conduct cross-examination.
---------------------------------------------------------------------------

    The Department is persuaded by commenters' concerns that it is 
beneficial for Sec.  106.45(b)(1)(iii) to emphasize the need for 
decision-makers to receive training in how to conduct hearings, and we 
have revised this provision to specify that decision-makers receive 
training in how to conduct a grievance process including how to use 
technology that will be used by a recipient to conduct a live hearing, 
and on issues of the relevance of questions and evidence (including how 
to determine the relevance or irrelevance of a complainant's prior 
sexual history), and that investigators receive training on issues of 
relevance in order to prepare an investigative report that fairly 
summarizes relevant evidence.
    The Department appreciates the many commenters who requested a 
definition of ``sex stereotypes'' and asked that such a definition 
include, or exclude, particular generalizations and notions about women 
or about men. For reasons similar to those discussed above with respect 
to defining ``bias'' on the part of Title IX personnel, the Department 
declines to list or define what notions do or do not constitute sex 
stereotypes on which training materials must not rely. The Department 
disagrees that a broad prohibition against sex stereotypes is a legal 
morass exposing recipients to liability, any more than Title IX's broad 
prohibition against ``sex discrimination'' does so. It is not feasible 
to catalog the variety of notions expressing generalizations and 
stereotypes about the sexes that might constitute sex stereotypes, and 
the Department's interest in ensuring impartial Title IX proceedings 
that avoid prejudgment of the facts at issue necessitates a broad 
prohibition on sex stereotypes so that decisions are made on the basis 
of individualized facts and not on stereotypical notions of what 
``men'' or ``women'' do or do not do. To reinforce this necessity, the 
final regulations use ``must'' instead of ``may'' to state that 
training materials ``must'' not rely on sex stereotypes.
    Contrary to the concerns of some commenters, a prohibition against 
reliance on sex stereotypes does not forbid training content that 
references evidence-based information or peer-reviewed scientific 
research into sexual violence dynamics, including the impact of trauma 
on sexual assault victims. Rather, Sec.  106.45(b)(1)(iii) cautions 
recipients not to use training materials that ``rely'' on sex 
stereotypes in training Title IX personnel on how to serve in those 
roles impartially and without prejudgment of the facts at issue, 
meaning that research and data concerning sexual violence dynamics may 
be valuable and useful, but cannot be relied on to apply 
generalizations to particular allegations of sexual harassment. 
Commenters provided numerous examples of training materials containing 
phrases that may, or may not, violate the final regulations, but a 
fact-specific evaluation of the training materials and their use by the 
recipient would be needed to reach a conclusion regarding whether such 
materials comply with Sec.  106.45(b)(1)(iii). We have revised Sec.  
106.45(b)(10) to require recipients to post on a recipient's website 
the training materials referred to in Sec.  106.45(b)(1)(iii) so that a 
recipient's approach to training Title IX personnel may be 
transparently viewed by the recipient's educational community and the 
public, including for the purpose of holding a recipient accountable 
for using training materials that comply with these final regulations.
    The Department does not believe that placing parameters around the 
training materials specifically needed to comply with Title IX 
regulations violates the First Amendment rights of recipients because 
the final regulations do not interfere with the right of recipients to 
control the recipient's own curricula and academic instruction 
materials. The Department is not proactively scouring recipients' 
curricula to spot instances of sex stereotyping; rather, the Department 
is placing reasonable conditions on materials specifically used by 
recipients to carry out recipients' obligations under these final 
regulations.
    For reasons explained above, the Department does not wish to be 
more prescriptive than necessary to achieve the purposes of these final 
regulations, and respects the discretion of recipients to choose how 
best to serve the needs of each recipient's community with respect to 
the content of training provided to Title IX personnel so long as the 
training meets the requirements in these final regulations. Thus, the 
Department declines to require recipients to adopt the ``Start by 
Believing'' approach promoted by End Violence Against Women, and 
cautions that a training approach that encourages Title IX personnel to 
``believe'' one party or the other would fail to comply with the 
requirement that Title IX personnel be trained to serve impartially, 
and violate Sec.  106.45(b)(1)(ii) precluding credibility 
determinations based on a party's status as a complainant or 
respondent. The Department takes no position on whether ``start by 
believing'' should be an approach adopted by non-Title IX personnel 
affiliated with a recipient, such as counselors who provide services to 
complainants or respondents. The Department wishes to emphasize that 
parties should be treated with equal dignity and respect by Title IX 
personnel, but doing so does not mean that either party is 
automatically ``believed.'' The credibility of any party, as well as 
ultimate conclusions about responsibility for sexual harassment, must 
not be prejudged and must be based on objective evaluation of the 
relevant evidence in a particular case; for this reason, the Department 
cautions against training materials that promote the application of 
``profiles'' or ``predictive behaviors'' to particular cases. The 
Department declines to predetermine whether particular studies or 
reports do or do not violate Sec.  106.45(b)(1)(iii) or opine on the 
validity of particular reports, but encourages recipients to examine 
the information utilized in training of Title IX personnel to ensure 
compliance with this provision.
    Changes: Section 106.45(b)(1)(iii) clarifies that the training on 
the definition of sexual harassment means

[[Page 30255]]

the definition in Sec.  106.30,\1042\ requires Title IX personnel to be 
trained on how to conduct a grievance process, requires investigators 
and decision-makers to be trained on issues of relevance (including 
when questions and evidence about a complainant's sexual predisposition 
or prior sexual behavior are not relevant), requires decision-makers to 
be trained on technology to be used at any live hearing, and changes 
``may'' to ``must'' in the directive that training materials not rely 
on sex stereotypes.
---------------------------------------------------------------------------

    \1042\ As discussed in the ``Section 106.44(a) `education 
program or activity' '' subsection of the ``Section 106.44 
Recipient's Response to Sexual Harassment, Generally'' section of 
this preamble, the training requirements for Title IX personnel in 
Sec.  106.45(b)(1)(iii) now also include training on the scope of 
the recipient's education program or activity.
---------------------------------------------------------------------------

    Comments: Several commenters suggested that Sec.  106.45(b)(1)(iii) 
be expanded to include training for Title IX personnel on a variety of 
subjects. At least one commenter urged the Department to adopt the 
training language from the withdrawn 2014 Q&A.\1043\ Without 
referencing the 2014 Q&A a few commenters suggested that training 
address similar topics such as: The neurobiology of trauma, 
counterintuitive responses to sexual violence, false reporting, 
barriers to reporting, incapacitation versus intoxication and blackout 
behaviors, assessing credibility in the context of trauma, Title IX 
compliance as it intersects with the Clery Act, FERPA, child protective 
services legislation, disability laws, and other laws that may 
intersect with Title IX, healthy sexuality and consent including 
affirmative consent, risk factors for sexual violence victimization, 
bystander intervention, rates of prevalence, addressing bias using an 
anti-oppression framework, effective interviewing of survivors such as 
forensic experiential models, cultural competency to address specific 
issues that affect marginalized survivors (e.g., LGBTQ individuals, 
persons with disabilities, persons of color, or persons who are 
undocumented or economically disadvantaged).
---------------------------------------------------------------------------

    \1043\ Commenters cited: 2014 Q&A at 40 (``Training should 
include information on working with and interviewing persons 
subjected to sexual violence; information on particular types of 
conduct that would constitute sexual violence, including same-sex 
sexual violence; the proper standard of review for sexual violence 
complaints (preponderance of the evidence standard); information on 
consent and the role drugs or alcohol can play in the ability to 
consent; the importance of accountability for individuals found to 
have committed sexual violence; the need for remedial actions for 
the perpetrator, complainant, and school community; how to determine 
credibility; how to evaluate evidence and weigh it in an impartial 
manner; how to conduct investigations; confidentiality; the effects 
of trauma, including neurobiological change; and cultural awareness 
training regarding how sexual violence may impact students 
differently depending on their cultural backgrounds.'').
---------------------------------------------------------------------------

    One commenter stated that training should ensure that Title IX 
personnel are first ``mentored'' by someone with experience before 
working directly with survivors. One commenter suggested the Department 
create an aspirational list of training components. One commenter asked 
the Department to define ``training materials'' as limited to material 
the recipient itself designates as essential for performing the 
applicable Title IX role, so as not to sweep up a range of professional 
continuing education presentations into the ambit of Sec.  
106.45(b)(1)(iii) just because such professional training seminars 
might mention something relevant to Title IX.
    Discussion: For the reasons explained above, the Department has 
determined that Sec.  106.45(b)(1)(iii) in the final regulations 
strikes the appropriate balance between mandating training topics the 
Department believe are necessary to promote a recipient's compliance 
with these final regulations while leaving as much flexibility as 
possible to recipients to choose the content and substance of training 
topics in addition to the topics mandated by this provision. Thus, the 
Department declines to expand this provision to mandate that training 
address the topics suggested by commenters. As discussed in this 
preamble under the Sec.  106.44(a) ``education program or activity'' 
condition, the final regulations revise the training requirements in 
Sec.  106.45(b)(1)(iii) to require training of Title IX personnel on 
the ``scope of the recipient's education program or activity.'' The 
Department makes this change in response to commenters concerned that 
the ``education program or activity'' condition was misunderstood too 
narrowly, for example as excluding all sexual harassment incidents that 
occur off campus. This revision to the training requirements in Sec.  
106.45(b)(1)(iii) helps to ensure that recipients do not inadvertently 
fail to treat as Title IX matters sexual harassment incidents that 
occur in the recipient's education program or activity. As explained 
above in this section of the preamble, we have also revised this 
provision to: Add training on appeals and informal resolution processes 
in addition to hearings (as applicable); specify that Title IX 
personnel must be trained on the definition of sexual harassment in 
Sec.  106.30 and on how to serve impartially without prejudgment of the 
facts at issue and how to avoid bias and conflicts of interest; specify 
that investigators and decision-makers must be trained on issues of 
relevance; and specify that decision-makers receive training on how to 
use technology at live hearings. As explained below in this section of 
the preamble, we also revise Sec.  106.45(b)(1)(iii) to include 
``person who facilitates an informal resolution process'' to the list 
of Title IX personnel who must receive training.
    The Department declines to require that Title IX personnel be 
``mentored'' before working with parties, or to create an aspirational 
list of training components. The Department's intent with respect to 
this provision is to provide flexibility for each recipient to design 
or select training components that best serve the recipient's unique 
needs and educational environment, while prescribing those training 
topics necessary for a recipient to comply with these final 
regulations. The Department appreciates the commenter's request for 
clarification that the training materials subject to these final 
regulations should be only those training materials specifically 
designated by the recipient as essential to performing Title IX 
personnel functions. In order to reasonably gauge compliance with the 
final regulations, the Department instead reserves the right to examine 
training materials whether or not a recipient has not specifically 
designated the material as essential to performing a Title IX role.
    Changes: The final regulations revise this provision to include 
training on the scope of a recipient's education program or activity; 
add training on appeals and informal resolution processes in addition 
to hearings (as applicable); specify that Title IX personnel must be 
trained on the definition of sexual harassment in Sec.  106.30 and on 
how to serve impartially without prejudgment of the facts at issue and 
how to avoid bias and conflicts of interest; specify that investigators 
and decision-makers must be trained on issues of relevance; specify 
that decision-makers receive training on how to use technology at live 
hearings; and add ``person who facilitates an informal resolution 
process'' to the list of Title IX personnel who must receive training.
    Comments: Many commenters expressed views about whether Sec.  
106.45(b)(1)(iii) should be applied to include or exclude training 
materials promoting ``trauma-informed'' practices, techniques, and 
approaches. One commenter believed that using ``impartial'' instead of 
``trauma-informed'' is offensive to rape victims, for whom trauma 
necessitates a cognitive interview that takes the effects of trauma 
into account, while another

[[Page 30256]]

commenter believed training must require trauma-informed best 
practices. A few commenters believed that the provision should address 
the use of trauma-informed theories by cautioning against misuse of 
victim-centered approaches for any purpose other than interviewing or 
counseling; these commenters distinguished between remaining 
``impartial,'' one the one hand, while still using trauma-informed 
methods when questioning a complainant so that the investigator does 
not expect a trauma victim to provide details in chronological order, 
on the other hand. Several commenters asserted that trauma-informed and 
believe-the-victim approaches must be prohibited in the interview 
process because those approaches compromise objectivity, create 
presumptions of guilt, and result in exclusion of relevant (often 
exculpatory) evidence. At least one commenter suggested that FETI 
(forensic experimental trauma interview) techniques should be required. 
One commenter stated that several states including New York, 
California, and Illinois mandate trauma-informed training \1044\ for 
campus officials who respond to sexual assault and asserted that the 
proposed rules are unclear about whether the Department's position is 
that trauma-informed practices constitute a form of sex 
discrimination,\1045\ thus inviting further litigation on this issue.
---------------------------------------------------------------------------

    \1044\ Commenters cited a white paper by Jeffrey J. Nolan, 
Promoting Fairness in Trauma-Informed Investigation Training, NACUA 
Notes, vol. 16, no. 5, p. 3 (Feb. 8, 2018), now updated as: Jeffrey 
J. Nolan, Fair, Equitable Trauma-Informed Investigation Training 
(Holland & Knight updated July 19, 2019).
    \1045\ The commenter asserted that Federal courts tend to reject 
this proposition, citing for example Doe v. Univ. of Or., No. 6:17-
CV-01103, 2018 WL 1474531 (D. Or. Mar. 26, 2018).
---------------------------------------------------------------------------

    Discussion: The Department understands from personal anecdotes and 
research studies that sexual violence is a traumatic experience for 
survivors. The Department is aware that the neurobiology of trauma and 
the impact of trauma on a survivor's neurobiological functioning is a 
developing field of study with application to the way in which 
investigators of sexual violence offenses interact with victims in 
criminal justice systems and campus sexual misconduct proceedings. The 
Department appreciates the views of commenters urging that trauma-
informed practices be mandatory, and those urging that such practices 
be forbidden, and the commenters noting that trauma-informed practices 
are required in some States, and noting there is a difference between 
applying such practices in different contexts (i.e., interview and 
questioning techniques, providing counseling services, or when making 
investigatory decisions about relevant evidence and credibility or 
adjudicatory decisions about responsibility). For reasons explained 
above, the Department believes that Sec.  106.45(b)(1)(iii) 
appropriately forbids conflicts of interest and bias, mandates training 
on topics necessary to promote recipients' compliance with these final 
regulations (including how to serve impartially), and precludes 
training materials that rely on sex stereotypes. Recipients have 
flexibility to choose how to meet those requirements in a way that best 
serves the needs, and reflects the values, of a recipient's community 
including selecting best practices that exceed (though must be 
consistent with) the legal requirements imposed by these final 
regulations. The Department notes that although there is no fixed 
definition of ``trauma-informed'' practices with respect to all the 
contexts to which such practices may apply in an educational setting, 
practitioners and experts believe that application of such practices is 
possible--albeit challenging--to apply in a truly impartial, non-biased 
manner.\1046\
---------------------------------------------------------------------------

    \1046\ E.g., Jeffrey J. Nolan, Fair, Equitable Trauma-Informed 
Investigation Training 14-15 (Holland & Knight updated July 19, 
2019) (concluding that ``All parties can benefit if trauma-informed 
training is provided in a manner that is fair, equitable, nuanced, 
and adapted appropriately to the context of college and university 
investigations and disciplinary proceedings, and that does `not rely 
on sex stereotypes.' Given the complexity of these issues and the 
importance of training as a matter of substance and potential 
litigation risk, institutions should strive to ensure that their 
training programs are truly fair and trauma-informed.''); 
``Recommendations of the Post-SB 169 Working Group,'' 3 (Nov. 14, 
2018) (report by a task force convened by former Governor of 
California Jerry Brown to make recommendations about how California 
institutions of higher education should address allegations of 
sexual misconduct) (trauma-informed ``approaches have different 
meanings in different contexts. Trauma-informed training should be 
provided to investigators so they can avoid re-traumatizing 
complainants during the investigation. This is distinct from a 
trauma-informed approach to evaluating the testimony of parties or 
witnesses. The use of trauma-informed approaches to evaluating 
evidence can lead adjudicators to overlook significant 
inconsistencies on the part of complainants in a manner that is 
incompatible with due process protections for the respondent. 
Investigators and adjudicators should consider and balance 
noteworthy inconsistencies (rather than ignoring them altogether) 
and must use approaches to trauma and memory that are well grounded 
in current scientific findings.'').
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter suggested expanding the persons who must be 
trained to include counselors, diversity and inclusion departments, 
deans of students, ombudspersons, and restorative justice committees. A 
few commenters suggested that training about Title IX rights and Title 
IX procedures should be mandatory for all students and all staff, 
including teachers and faculty so that everyone affiliated with a 
recipient knows the definition of sexual harassment and the complaint 
procedures. A few commenters noted that the proposed rules lacked any 
training requirements for staff that work on informal resolution 
processes and urged the Department to set minimum standards for 
training of those individuals so that all students are served by 
individuals with high levels of training whether they go through a 
formal or informal process.
    Discussion: The intent of Sec.  106.45(b)(1)(iii) is to ensure that 
Title IX personnel directly involved in carrying out the recipient's 
Title IX response duties are trained in a manner that promotes a 
recipient's compliance with these final regulations. The Department 
appreciates commenters suggesting that additional school personnel, or 
students, need training about Title IX, but the Department leaves such 
decisions to recipients' discretion. The Department appreciates 
commenters who noted that the proposed rules contemplated the recipient 
facilitating informal resolution processes yet omitted such a role from 
the listed personnel who must receive training under Sec.  
106.45(b)(1)(iii), resulting in parties interacting with well-trained 
personnel during a formal process but perhaps with untrained personnel 
during an informal process. The commenters' concerns are well-founded, 
and the final regulations include ``any person who facilitates an 
informal resolution process'' wherever reference had been made to 
``Title IX Coordinators, investigators, and decision-makers.''
    Changes: Section 106.45(b)(1)(iii) is revised to include ``any 
person who facilitates an informal resolution process'' in addition to 
Title IX Coordinators, investigators, and decision-makers, as a person 
whom the recipient must ensure is free from conflicts of interest and 
bias, and receives the training specified in this provision.
    Comments: At least one commenter requested more information about 
who is expected to provide the training required under Sec.  
106.45(b)(1)(iii), for example whether training presenters must have 
experience with administrative proceedings in order to provide 
qualified training to others. One commenter with extensive experience 
as a sexual assault investigator proposed that the Federal Law 
Enforcement Training Center (FLETC) should be

[[Page 30257]]

mandated to create a Title IX focused training program to which 
recipients would send Title IX investigators within a certain time 
frame after being hired; the commenter stated that FLETC already has 
instructors, resources, and qualified, experienced professionals that 
provide accredited training to sexual assault investigators, so 
expanding FLETC training to be specific to Title IX proceedings would 
create consistent knowledge and best practices across all institutions.
    Discussion: For reasons explained above, the Department believes 
that the mandated training requirements in Sec.  106.45(b)(1)(iii) are 
sufficient to effectuate the purposes of these final regulations, 
without unduly restricting recipients' flexibility to design and select 
training that best serves each recipient's unique needs. For similar 
reasons, the Department declines to prescribe whether training 
presenters must possess certain qualifications and will enforce Sec.  
106.45(b)(1)(iii) based on whether a recipient trains Title IX 
personnel in conformity with this provision rather than on the 
qualifications or expertise of the trainers. The Department appreciates 
the commenter's suggestion regarding FLETC creating a Title IX-specific 
training program. While adoption of that suggestion is outside the 
scope of these final regulations because it is not within the 
Department's regulatory authority under Title IX to direct FLETC to 
expand its programming,\1047\ the Department encourages recipients to 
pursue training from sources that rely on qualified, experienced 
professionals likely to result in best practices for effective, 
impartial investigations. The Department does not certify, endorse, or 
otherwise approve or disapprove of particular organizations (whether 
for-profit or non-profit) or individuals that provide Title IX-related 
training and consulting services to recipients. Whether or not a 
recipient has complied with Sec.  106.45(b)(1)(iii) is not determined 
by the source of the training materials or training presentations 
utilized by a recipient.
---------------------------------------------------------------------------

    \1047\ FLETC is part of the Department of Homeland Security. 
U.S. Dep't. of Homeland Security, Federal Law Enforcement Training 
Centers, https://www.fletc.gov/.
---------------------------------------------------------------------------

    Changes: None.
Section 106.45(b)(1)(iv) Presumption of Non-Responsibility
Purpose of the Presumption
    Comments: Many commenters supported Sec.  106.45(b)(1)(iv), 
requiring a recipient's grievance process to apply a presumption that a 
respondent is not responsible until conclusion of a grievance process 
(referred to in this section as the ``presumption''), because such a 
presumption means that recipients will adjudicate based on evidence 
rather than beliefs or assumptions. Commenters referred to the 
presumption as the equivalent of a ``presumption of innocence'' which, 
commenters asserted, is crucial for determining the truth of what 
happened when one party levies an accusation against another party. 
Commenters shared personal experiences with campus Title IX proceedings 
in which the commenters believed that the process unfairly placed the 
respondent in a position of having to try to prove non-responsibility 
rather than being treated as not responsible unless evidence proved 
otherwise. Commenters who agreed with the presumption asserted that, 
especially under a preponderance of the evidence standard, it is 
important that an accused student be presumed innocent, to stress for 
decision-makers that if they believe the complainant and respondent are 
equally truthful, the required finding must be not-responsible. 
Commenters asserted that lawsuits filed against universities by 
respondents accused of sexual misconduct have revealed that 
universities often do not presume the respondent innocent \1048\ and 
that this may lead schools to place the burden of proof on 
respondents.\1049\ Commenters asserted that Sec.  106.45(b)(1)(iv) will 
clarify that respondents do not have the burden of proving their 
innocence.
---------------------------------------------------------------------------

    \1048\ Commenters cited: Doe v. Univ. of Cincinnati, aff'd sub 
nom. Doe v. Cummins, 662 F. App'x 437, 447 (6th Cir. 2016).
    \1049\ Commenters cited: Wells v. Xavier Univ., 7 F. Supp. 3d 
746 (S.D. Ohio 2014).
---------------------------------------------------------------------------

    Several commenters who supported the presumption cited an article 
arguing that believing complainants is the beginning and the end of a 
search for the truth.\1050\ Several commenters asserted that the mantra 
of ``Believe Survivors'' encourages a presumption of guilt against 
respondents. Other commenters opined that a person can both believe 
complainants and presume the respondent is innocent during an 
investigation.
---------------------------------------------------------------------------

    \1050\ Commenters cited: Emily Yoffe, The problem with 
#BelieveSurvivors, The Atlantic (Oct. 3, 2018).
---------------------------------------------------------------------------

    Commenters argued that the presumption of non-responsibility is 
essential to affording respondents an opportunity to defend themselves. 
Commenters supportive of the presumption shared personal stories in 
which they or their family members were respondents in Title IX 
grievance hearings and as respondents and felt as though the recipient 
placed the burden of proving innocence on the respondent's shoulders 
and made it seem that the accusations had been prejudged as truthful; 
others shared experiences of interim suspensions imposed prior to any 
facts or evidence leading to a conclusion of ``guilt.'' Commenters 
argued that it is imperative that accusations are not equated with 
``guilt.'' One commenter described living in countries that were behind 
the Iron Curtain, where to be accused was the same as to be proven 
guilty without evidence.
    Commenters who opposed the presumption argued that the purpose of 
the presumption is to favor respondents over complainants. Commenters 
asserted that the presumption is evidence of the Department's animus 
towards complainants. Commenters asserted that the presumption codifies 
a unique status for sexual harassment and assault complainants, 
explicitly requiring that schools treat them with heightened 
skepticism. Additionally, several commenters argued that the Department 
proposed the presumption because the Department seeks to perpetuate the 
myth of false reporting in Federal policy and desires to protect the 
reputation and interests of the accused. Commenters argued that the 
presumption gives special, greater rights to the respondent, creating a 
procedural bias against complainants that violates complainants' rights 
to an impartial grievance procedure under Title IX and the Clery Act.
    Many commenters argued that the presumption of non-responsibility 
is a presumption that the alleged harassment did not occur. Commenters 
questioned how the recipient can adequately listen to the complainant 
if the recipient is required to presume that no harassment occurred. 
Commenters argued that the presumption creates a hostile environment 
for complainants by implying that the complainant is dishonest. 
Commenters argued that the presumption will increase negative social 
reactions to complainants, such as minimization and victim-blaming, and 
predicted that these negative reactions will create adverse health 
effects for complainants including post-traumatic stress disorder 
symptoms.
    Commenters opposed the requirement in the proposed rules for the 
recipient to expressly state the presumption of non-responsibility in 
its first communication with the complainant, arguing that this 
provision seems ``deliberately cruel'' towards complainants.
    Commenters argued that the presumption would encourage schools to 
ignore or punish historically

[[Page 30258]]

marginalized groups that report sexual harassment by implying such 
complainants are ``lying'' about sexual harassment, and that 
complainants will feel chilled from reporting out of belief that they 
will be retaliated against (i.e., by being punished for ``lying'') when 
they do report.\1051\
---------------------------------------------------------------------------

    \1051\ Commenters cited, e.g., Tyler Kingkade, When Colleges 
Threaten To Punish Students Who Report Sexual Violence, The 
Huffington Post (Sept. 9, 2015).
---------------------------------------------------------------------------

    Commenters asserted that in a criminal proceeding, there is an 
imbalance of power between the accused person and the government 
prosecuting the accused, and therefore the U.S. Constitution gives the 
criminal defendant a presumption of innocence; commenters argued that 
this dynamic is absent in a Title IX proceeding where the complainant 
does not represent the power of the government prosecuting a criminal 
defendant, and thus a Title IX respondent should not enjoy the 
presumption given to a criminal defendant.
    Discussion: The Department appreciates commenters' support for 
Sec.  106.45(b)(1)(iv) and acknowledges the many commenters who shared 
personal experiences as respondents in Title IX proceedings where the 
investigation process made the commenter feel like the burden was on 
the respondent to prove non-responsibility rather than being presumed 
not responsible unless evidence showed otherwise.
    The Department disagrees with commenters who believed that the 
purpose of the presumption of non-responsibility is to favor 
respondents at the expense of complainants or that a presumption of 
non-responsibility demonstrates animus or hostility toward 
complainants. The Department does not seek to ``perpetuate the myth of 
false reporting in Federal policy,'' nor does it desire ``to protect 
the reputation and interests of the accused'' at the expense of victims 
as some commenters claimed. To the contrary, we seek to establish a 
fair grievance process for all parties, and the presumption does not 
affect or diminish the strong procedural rights granted to complainants 
throughout the grievance process.
    The Department acknowledges that these final regulations apply only 
to allegations of Title IX sexual harassment, and as such these final 
regulations do not impose a presumption of non-responsibility in other 
types of student misconduct proceedings. This does not indicate that 
the allegations in formal complaints of sexual harassment are more 
suspect or warrant more skepticism than allegations of other types of 
misconduct. The Department believes that the notion of presuming a 
student not responsible until facts show otherwise represents a basic 
concept of fairness, but these regulations address only recipients' 
responses to Title IX sexual harassment and do not dictate whether a 
similar presumption should be applied to other forms of student 
misconduct.
    While the Department acknowledges that Title IX proceedings are not 
criminal in nature and do not require application of constitutional 
protections granted to criminal defendants, the Department believes 
that a presumption of non-responsibility is critical to ensuring a fair 
proceeding in the Title IX sexual harassment context, rooted in the 
same principle that underlies the constitutional presumption of 
innocence afforded to criminal defendants.\1052\ In the noncriminal 
context of a Title IX grievance process, the presumption reinforces the 
final regulations' prohibition against a recipient treating a 
respondent as responsible until conclusion of a grievance process 
\1053\ and reinforces correct application of the standard of evidence 
selected by the recipient for use in the recipient's Title IX sexual 
harassment grievance process. These aspects of the presumption improve 
the fairness of the process and increase party and public confidence in 
such outcomes,\1054\ thereby leading to greater compliance with rules 
against sexual misconduct.\1055\ Without expressly stating a 
presumption of non-responsibility, a perception that recipients may 
prejudge respondents as responsible will continue to negatively affect 
party and public confidence in Title IX proceedings.\1056\
---------------------------------------------------------------------------

    \1052\ See Fran[ccedil]ois Quintard-Mor[eacute]nas, The 
Presumption of Innocence in the French and Anglo-American Legal 
Traditions, 58 Am. J. of Comparative L. 107, 110 (2010) (``Because 
one can be accused of a crime without being a criminal, an 
elementary principle of justice requires that plaintiffs prove their 
allegations and that the accused be considered innocent in the 
interval between accusation and judgment.'').
    \1053\ Sections 106.44(a), 106.45(b)(1)(i) (recipients may not 
impose disciplinary sanctions on a respondent, or otherwise take 
actions against the respondent that do not constitute supportive 
measures as defined in Sec.  106.30, without following a grievance 
process that complies with Sec.  106.45). The final regulations 
expressly allow exceptions to this principle, where in certain 
circumstances a respondent may be treated adversely even though 
responsibility has not been determined at the conclusion of a 
grievance process. See Sec.  106.30 (defining ``supportive 
measures'' under which a supportive measure must not ``unreasonably 
burden'' the other party, so reasonably burdening a respondent to 
accomplish the aim of a supportive measure is permissible); Sec.  
106.44(c) (a respondent may be removed from education programs or 
activities where the respondent poses an immediate threat to the 
physical health or safety of one or more individuals, and while a 
post-removal opportunity to challenge the removal must be given to 
the respondent, such an emergency removal may occur prior to 
conclusion of a grievance process or where no grievance process is 
pending at all); Sec.  106.44(d) (allowing a recipient to place a 
(non-student) employee on administrative leaving while an 
investigation under Sec.  106.45 is pending). The Department notes 
that in an essay cited by commenters, the author criticizes the 
presumption of non-responsibility in the NPRM, arguing that if the 
presumption is intended only to mean that the burden of proof 
remains on the recipient (and not on the respondent) then the 
presumption is ``unobjectionable as a matter of substance, although 
a seeming invitation to confusion'' because recipients may wrongly 
believe that a presumption of non-responsibility implies that the 
recipient must apply the criminal burden of proof (beyond a 
reasonable doubt). Michael C. Dorf, What Does a Presumption of Non-
Responsibility Mean in a Civil Context, Dorf On Law (Nov. 28, 2018), 
https://www.dorfonlaw.org/2018/11/what-does-presumption-of-non.html. 
The author recognized that the second purpose of the presumption 
seemed to be treating the respondent as not responsible throughout a 
grievance process and believed that to be ``quite a bad idea'' 
because in daily life we make decisions based on someone being 
accused of a crime even before a conviction. The author correctly 
noted that one purpose of the presumption is to reinforce that the 
burden of proof remains on the recipient and not on the respondent 
(or complainant). The Department clarifies that contrary to the 
author's concerns, and for reasons discussed in the ``Section 
106.45(b)(7)(i) Standard of Evidence and Directed Question 6'' 
subsection of the ``Determinations Regarding Responsibility'' 
subsection of the ``Section 106.45 Recipient's Response to Formal 
Complaints'' section of this preamble, recipients may not apply the 
criminal standard of beyond a reasonable doubt. Further, while the 
author of that essay correctly identified a second purpose of the 
presumption as ensuring that recipients do not treat the respondent 
as responsible until the respondent is proved responsible, as 
explained above in this footnote that principle is subject to 
exceptions.
    \1054\ Rinat Kitai, Presuming Innocence, 55 Oklahoma L. Rev. 
257, 272 (2002) (the ``presumption of innocence is based mainly on 
grounds of public policy relating to political morality and human 
dignity. The presumption of innocence is a normative principle, 
directing state authorities as to the proper way of treating a 
person who has not yet been convicted. This principle is not tied to 
empirical data about the incidence of criminal offenses or the 
probability of innocence in certain circumstances.''); Dale A. 
Nance, Civility and the Burden of Proof, 17 Harv. J. of L. & Pub. 
Pol'y 647, 689 (1994) (``we should not forget that the moral order 
that the law endorses carries with it certain obligations concerning 
its application, one of which is the obligation to presume 
compliance with legal duties, at least to the extent they represent 
a consensus about serious moral duties. . . . Even if that principle 
has lost its constitutional luster, the very fact that it has 
attained such status, off and on over the years, is evidence of the 
weight the law accords it. A presumption of innocence applies quite 
generally, though not of course with perfect uniformity, in both 
civil and criminal cases.'') (emphasis added).
    \1055\ E.g., Rebecca Holland-Blumoff, Fairness Beyond the 
Adversary System: Procedural Justice Norms for Legal Negotiation, 85 
Fordham L. Rev. 2081, 2084 (2017) (``A fair process provided by a 
third party leads to higher perceptions of legitimacy; in turn, 
legitimacy leads to increased compliance with the law'') (internal 
citation omitted).
    \1056\ For example, the Foundation for Individual Rights in 
Education (FIRE) published a 2017 report, Spotlight on Due Process, 
https://www.thefire.org/resources/spotlight/due-process-reports/due-process-report-2017/, finding that ``Nearly three-quarters (73.6%) 
of America's top 53 universities do not even guarantee students that 
they will be presumed innocent until proven guilty.'' The Department 
recognizes that a presumption of non-liability does not formally 
apply in Federal civil lawsuits the way that a presumption of 
innocence applies to criminal defendants; however, civil court 
procedures do generally place the burden of proof on the plaintiff 
to prove the defendant's civil liability, which echoes the principle 
that civil defendants generally are not liable until proved 
otherwise.

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

[[Page 30259]]

    On the other hand, nothing about this presumption deprives 
complainants of the robust procedural protections granted to both 
parties under Sec.  106.45, or the protections granted only to 
complainants in Sec.  106.44(a) (including the right to be offered 
supportive measures with or without filing a formal complaint). The 
presumption does not imply that the alleged harassment did not occur; 
the presumption ensures that recipients do not take action against a 
respondent as though the harassment occurred prior to the allegations 
being proved,\1057\ and the final regulations require a recipient's 
Title IX personnel to interact with both the complainant and respondent 
in an impartial manner throughout the grievance process without 
prejudgment of the facts at issue,\1058\ and without drawing inferences 
about credibility based on a party's status as a complainant or 
respondent.\1059\ The presumption therefore serves rather than 
frustrates the goal of an impartial process. The Department expects 
that a fair grievance process will lend greater legitimacy to the 
resolution of complainants' allegations, which will improve the 
environment for complainants rather than perpetuate a hostile 
environment or increase negative social reactions to complainants, such 
as disbelief and blame. The presumption of non-responsibility does not 
interfere with a complainant's right under Sec.  106.44(a) to receive 
supportive measures offered by the recipient; this obligation imposed 
on recipients does not depend at all on waiting for evidence to show a 
respondent's responsibility. Section 106.44(a) is intended to assure 
complainants of a prompt, supportive response from their school, 
college, or university notwithstanding the recipient's obligation not 
to treat the respondent as responsible for sexual harassment until the 
conclusion of a grievance process.
---------------------------------------------------------------------------

    \1057\ Under Sec.  106.45(b)(9), a recipient may choose to 
facilitate an informal resolution process (except as to allegations 
that an employee sexually harassed a student) and an informal 
resolution may result in the parties, and the recipient, agreeing on 
a resolution of the allegations of a formal complaint that involves 
punishing or disciplining a respondent. This result comports with 
the prescription in Sec.  106.44(a) and Sec.  106.45(b)(1)(i) that a 
recipient may not discipline a respondent without following a 
grievance process that complies with Sec.  106.45, because Sec.  
106.45 expressly authorizes a recipient to pursue an informal 
resolution process (with the informed, written, voluntary consent of 
both parties).
    \1058\ Section 106.45(b)(1)(iii).
    \1059\ Section 106.45(b)(1)(ii).
---------------------------------------------------------------------------

    While the recipient must include a statement of the presumption in 
the initial written notice sent to both parties after a formal 
complaint has been filed,\1060\ the Department does not believe that 
this communication from the recipient is ``deliberately cruel'' to 
complainants; rather, both parties benefit from understanding that the 
purpose of a grievance process is to reach reliable decisions based on 
evidence instead of equating allegations with the outcome, especially 
where the recipient's own code of conduct penalizes a party for making 
false statements during a grievance proceeding. The final regulations 
place the burden of proof solely on a recipient \1061\--not on a 
complainant or respondent--and therefore the presumption does not 
operate to burden or disfavor a complainant. Under Sec.  106.44(a) and 
the Sec.  106.30 definition of ``supportive measures,'' recipients must 
offer complainants supportive measures designed to restore or preserve 
complainants' equal educational access (with or without a grievance 
process pending), and the final regulations' prohibition against a 
recipient punishing a respondent without following a fair grievance 
process, including application of a presumption of non-responsibility 
until conclusion of the grievance process, does not diminish the 
supportive, meaningful response that a recipient is obligated to offer 
complainants.\1062\
---------------------------------------------------------------------------

    \1060\ Section 106.45(b)(2)(i)(B).
    \1061\ Section 106.45(b)(5)(i).
    \1062\ Nothing in the final regulations precludes a recipient 
from continuing to provide supportive measures to assist any party 
regardless of the outcome of a case.
---------------------------------------------------------------------------

    The Department disagrees that the presumption would encourage 
schools to ignore or punish historically marginalized groups that 
report sexual harassment, for ``lying'' about it. The Department 
requires a recipient to respond promptly to actual knowledge of sexual 
harassment in its education program or activity against a person in the 
United States, including by offering supportive measures to the 
complainant. Thus, ignoring sexual harassment violates these final 
regulations and places the recipient's Federal funding in jeopardy. The 
presumption does not imply that a respondent is truthful or that a 
complainant is lying, and a recipient cannot use the presumption as an 
excuse not to respond to a complainant as required under Sec.  
106.44(a), or not to objectively evaluate all relevant evidence in 
reaching a determination regarding responsibility. Finally, Sec.  
106.71(b)(2) cautions recipients that it may constitute retaliation to 
punish a complainant (or any party) for making false statements unless 
the recipient determines that the party made materially false 
statements in bad faith and that determination is not based solely on 
the outcome of the case.
    The Department acknowledges that Title IX grievance processes are 
very different from criminal proceedings and that the presumption of 
innocence afforded to criminal defendants is not a constitutional 
requirement in Title IX proceedings, but believes that a presumption of 
non-responsibility is needed in Title IX proceedings. While commenters 
correctly noted that a complainant does not wield the power of the 
government prosecuting a criminal charge, the purposes served by the 
presumption of non-responsibility still apply: Ensuring that the burden 
of proof remains on the recipient (not on the respondent or 
complainant) and that the standard of evidence is correctly applied, 
and ensuring the recipient does not treat the respondent as responsible 
until conclusion of the grievance process. The procedural requirements 
of Sec.  106.45 equalize the rights of complainants and respondents to 
participate in the investigation and adjudication by presenting each 
party's own view of the evidence and desire for the case outcome, while 
leaving the burden of gathering evidence and the burden of proof on the 
recipient.
    Changes: We have added Sec.  106.71(a) to the final regulations, 
prohibiting retaliation against any person exercising rights under 
Title IX. In addition, Sec.  106.71(b)(2) clarifies that charging an 
individual with a code of conduct violation for making a materially 
false statement in bad faith in the course of a grievance process does 
not constitute retaliation, but a determination regarding 
responsibility, alone, is not sufficient to conclude that an individual 
made a materially false statement in bad faith.
Students of Color, LGBTQ Students, and Individuals With Disabilities
    Comments: Multiple commenters asserted that, because of the 
presumption of non-responsibility, schools may be more likely to ignore 
or punish survivors who are women and girls of color, pregnant and 
parenting students, and LGBTQ students because

[[Page 30260]]

of harmful stereotypes. Commenters argued that the presumption would 
especially harm Asian Pacific Islander women who, because of social 
taboos about sexual activity prevalent in Asian cultures, are 
significantly less likely to report instances of sexual assault and 
will feel further deterred by a presumption favoring the respondent. 
Commenters argued that Black women and girls are more likely to be 
punished by schools who stereotype them as the aggressor when they 
defend themselves against their harassers or when they respond to 
trauma.
    Several commenters argued that the presumption would harm students 
with disabilities because they are more likely to be victims of sexual 
assault and may be particularly vulnerable to unfair treatment due to 
the presumption of non-responsibility, and because students with 
disabilities are less likely to be believed when they report these 
experiences and often have greater difficulty describing the harassment 
they experience.\1063\ One commenter opposed Sec.  106.45(b)(1)(iv) 
because the provision does not address sexual harassment and assault 
cases involving students with disabilities.
---------------------------------------------------------------------------

    \1063\ Commenters cited: U.S. Dep't. of Justice, National 
Institute of Justice, The Many Challenges Facing Sexual Assault 
Survivors With Disabilities (July 19, 2017), https://www.nij.gov/topics/crime/rape-sexual-violence/Pages/challenges-facing-sexual-assault-survivors-with-disabilities.aspx.
---------------------------------------------------------------------------

    Other commenters who agreed with the proposed rules, including the 
presumption, recounted personal stories in which family members and 
friends who are Black males were falsely accused of sexual assault yet 
the recipient seemed to treat the respondent as guilty unless proven 
innocent. One commenter asserted that the sexual assault grievance 
process has become a tool for white administrators to punish Black 
males as young as five years old. The commenter wished to see what they 
called an outdated Jim Crow-era system replaced with a system that is 
fair to all.
    Other commenters supported this provision based on personal stories 
about students with disabilities whom commenters believed had been 
falsely accused of sexual misconduct, including students with autism 
who found the Title IX grievance process traumatic.
    Discussion: The Department understands commenters' concerns that 
students of color, LGBTQ students, students with disabilities, and 
other students will be adversely affected by the presumption of non-
responsibility. The Department does not believe that the presumption 
will adversely affect the rights of any complainant, including 
complainants of demographic groups who may suffer sexual harassment at 
greater rates than members of other demographic groups. The Department 
believes that a presumption that protects respondents from being 
treated as responsible until conclusion of a grievance process furthers 
the recipient's obligation to fairly resolve allegations of sexual 
harassment and increases the likelihood that every outcome will carry 
greater legitimacy.
    Further, students of color, LGBTQ students, and students with 
disabilities may be respondents in Title IX grievance processes, in 
which situation the presumption of non-responsibility reinforces the 
recipient's obligation not to prejudge responsibility, countering 
negative stereotypes that may affect such respondents.
    The presumption of non-responsibility in Sec.  106.45(b)(1)(iv) 
does not contribute to negative stereotypes that commenters 
characterize as causing people to disbelieve students of color, 
pregnant or parenting students, LGBTQ students, or students with 
disabilities (or conversely, to rush to assume the responsibility of 
such students based on similar negative stereotypes). The presumption 
protects respondents against being treated as responsible until 
conclusion of the grievance process but this does not entail 
disbelieving complainants. Any person may be a complainant or a 
respondent, and the final regulations require all Title IX personnel to 
serve impartially, without prejudging the facts at issue, and without 
bias toward complainants or respondents generally or toward an 
individual complainant or respondent.
    Changes: None.
The Complainant's Right to Due Process Protections
    Comments: Commenters argued that the presumption of non-
responsibility is a deprivation of the complainant's own due process 
rights, and argued that the complainant will be forced to proceed 
blindly, at a severe information deficit, while being forced to 
overcome the presumption. Other commenters argued that merely stating 
that the recipient will bear the burden of proof does not in practical 
terms make it so, and a presumption that the respondent is not 
responsible in reality shifts the burden of proof onto the complainant. 
Many commenters asserted that the respondent should bear the burden to 
prove the respondent is innocent.
    One commenter, citing John Doe v. University of Cincinnati,\1064\ 
noted that a court in the Southern District of Ohio found no violation 
of due process where the respondent argued that the recipient failed to 
grant the respondent a presumption of non-responsibility. Another 
commenter asserted that the U.S. Supreme Court has already balanced the 
competing interests and determined what process is due and it does not 
require a presumption of non-responsibility, because in Mathews v. 
Eldridge \1065\ the U.S. Supreme Court considered (1) the private 
interest that will be affected; (2) the risk of an erroneous 
deprivation of such interest through procedures used, and the probable 
value, if any, of additional procedural safeguards; and (3) the 
government's interest, yet did not specify that a presumption favoring 
any party was required.
---------------------------------------------------------------------------

    \1064\ Commenters cited: Doe v. Univ. of Cincinnati, 173 F. 
Supp. 3d 586, 604 (S.D. Ohio 2016), aff'd sub nom. Doe v. Cummins, 
662 F. App'x 437, 447 (6th Cir. 2016).
    \1065\ Commenters cited: Mathews v. Eldridge, 424 U.S. 319 
(1976).
---------------------------------------------------------------------------

    Many commenters argued that the presumption will make many women 
feel it is not worth it to report their assaulters to authorities 
because survivors already often do not report their sexual assaults due 
to fear of being disbelieved and the presumption will only heighten the 
perception that the recipient believes respondents and disbelieves 
complainants.\1066\ One commenter asserted that, out of every 1,000 
rapes, only 230 are reported to police, and just five result in 
conviction,\1067\ and argued that a presumption in favor of respondents 
will lead to even fewer perpetrators of rape being held accountable.
---------------------------------------------------------------------------

    \1066\ Commenters cited: Kathryn J. Holland & Lilia M. Cortina, 
The evolving landscape of Title IX: Predicting mandatory reporters' 
responses to sexual assault disclosures, 41 Law & Hum. Behavior 5 
(2017).
    \1067\ Commenters cited: U.S. Dep't. of Justice, Federal Bureau 
of Investigation, National Incident-Based Reporting System, 2012-
2016 (2017).
---------------------------------------------------------------------------

    Discussion: The presumption of non-responsibility does not hold 
complainants to a higher standard of evidence, shift the burden of 
proof onto complainants, require complainants to ``overcome'' the 
presumption or proceed ``blindly'' through an investigation, or deny 
complainants due process. Rather, the presumption simply requires that 
the recipient not treat the respondent as responsible until the 
recipient has objectively evaluated the evidence, and reinforces 
application of the standard of evidence the recipient has already 
selected (which may be the preponderance of the evidence standard, or 
the clear and convincing evidence standard).\1068\ The final 
regulations require the burden of proof

[[Page 30261]]

to remain on the recipient,\1069\ and the recipient must reach a 
determination of responsibility against the respondent if the evidence 
meets the applicable standard of evidence. The complainant therefore 
does not bear any burden of proof and does not have to ``overcome'' the 
presumption. The presumption does not negate the strong procedural 
protections given to complainants throughout the grievance process, and 
these due process protections ensure that complainants have a 
meaningful opportunity (equal to that of respondents) to put forward 
the complainant's own evidence and arguments about the evidence, even 
though the burden of proof remains on the recipient.
---------------------------------------------------------------------------

    \1068\ Section 106.45(b)(1)(vii).
    \1069\ Section 106.45(b)(5)(i).
---------------------------------------------------------------------------

    The Department declines to place the burden of proof on respondents 
to prove non-responsibility because the purpose of Title IX is to 
ensure that the recipient, not the parties, bears responsibility to 
draw accurate conclusions about whether sexual harassment has occurred 
in the recipient's education program or activity. Title IX obligates 
recipients, not individual students or employees, to operate education 
programs or activities free from sex discrimination, so it is the 
recipient's burden to gather relevant evidence and carry the burden of 
proof.
    While the Department acknowledges the Federal district court 
decision cited by a commenter for the proposition that courts do not 
require a presumption of non-responsibility in Title IX proceedings, 
neither the Federal district court, nor the Sixth Circuit on appeal of 
that case, disapproved of a recipient applying a presumption of non-
responsibility in a Title IX case or suggested that such a presumption 
would be constitutionally problematic; rather, the district court's 
opinion held that the recipient's alleged failure to provide such a 
presumption (even if true) would not amount to a due process 
deprivation under the U.S. Constitution.\1070\ On appeal, the Sixth 
Circuit did not address the presumption of non-responsibility issue at 
all, and noted that it appeared the recipient placed the burden of 
proof on the itself (not on either party), a practice that was 
constitutionally sound \1071\ and a requirement the final regulations 
impose on recipients in Sec.  106.45(b)(5)(i).
---------------------------------------------------------------------------

    \1070\ Doe v. Univ. of Cincinnati, 173 F. Supp. 3d 586, 604 
(S.D. Ohio 2016), aff'd sub nom. Doe v. Cummins, 662 F. App'x 437, 
447 (6th Cir. 2016) (``Nevertheless, even assuming that the 
[recipient] placed the burden of proof on Plaintiffs as they claim, 
they have not stated a due process violation. As Defendants 
correctly argue in their brief, ``[o]utside the criminal law area, 
where special concerns attend, the locus of the burden of persuasion 
is normally not an issue of Federal constitutional moment.''). This 
does not imply that a presumption of non-responsibility would be 
problematic under a constitutional analysis.
    \1071\ Cummins, 662 F. App'x at 449 (noting that the recipient 
appeared to place the burden of proof on the recipient rather than 
on either the complainant or respondent and stating ``Allocating the 
burden of proof in this manner--in addition to having other 
procedural mechanisms in place that counterbalance the lower 
standard used . . . is constitutionally sound and does not give rise 
to a due-process violation.''). The final regulations similarly 
allocate the burden of proof on the recipient (and not on either 
party). Sec.  106.45(b)(5)(i).
---------------------------------------------------------------------------

    Additionally, the Department is not persuaded by the commenter's 
citation to Mathews v. Eldridge, a U.S. Supreme Court case which set 
forth a three-part balancing test for determining the amount of process 
due to meet the basic requirements of providing notice and meaningful 
opportunity to be heard in particular situations and held that an 
evidentiary hearing is not required prior to the Social Security 
Administration's termination of social security benefits (in part 
because the basic due process requirements of notice and meaningful 
opportunity to be heard were met when an evidentiary hearing was 
available before a termination decision became final).\1072\ The 
Mathews Court did not address the issue of whether a presumption is 
appropriate in an administrative proceeding and is inapposite on that 
particular point. As noted in the ``Role of Due Process in the 
Grievance Process'' section of this preamble, the Department believes 
that the Sec.  106.45 grievance process is consistent with 
constitutional due process requirements and serves important policy 
purposes with respect to the fairness, accuracy, and perception of 
legitimacy of Title IX grievance processes.
---------------------------------------------------------------------------

    \1072\ See Mathews v. Eldridge, 424 U.S. 319, 335, 349 (1976) 
(holding that determining the adequacy of due process procedures 
involves a balancing test that considers the private interest 
affected, the risk of erroneous deprivation and benefit of 
additional procedures, and the government's interest including the 
burden and cost of providing additional procedures).
---------------------------------------------------------------------------

    Changes: None.
False Allegations
    Comments: Many commenters cited statistics that most people who 
report sexual assault are telling the truth, so a presumption of non-
responsibility does not reflect reality. Several commenters urged the 
Department not to require recipients to presume that the respondent is 
not responsible, since they say that statistics show that most 
respondents are guilty. Numerous commenters asserted that the rate of 
false reporting of sexual assault is between two to ten percent.\1073\ 
Other commenters asserted that 95 percent of sexual assault reports to 
the police are true.\1074\ Commenters asserted that since data 
collection began in 1989, there are only 52 cases where men have been 
exonerated after being falsely convicted of sexual assault while in the 
same period, 790 men were exonerated for murder.\1075\
---------------------------------------------------------------------------

    \1073\ Commenters cited, e.g., David Lisak et al., False 
Allegations of Sexual Assault: An Analysis of Ten Years of Reported 
Cases, 16 Violence Against Women 12, 1318 (2010); see also the 
``False Allegations'' subsection of the ``General Support and 
Opposition'' section of this preamble.
    \1074\ Commenters cited: Claire E. Ferguson & John M. Malouff, 
Assessing Police Classifications of Sexual Assault Reports: A Meta-
Analysis of False Reporting Rates, 45 Archives of Sexual Behavior 5, 
1185 (2016).
    \1075\ Commenters cited: National Registry of Exonerations, 
https://www.law.umich.edu/special/exoneration/Pages/browse.aspx.
---------------------------------------------------------------------------

    Commenters argued that all false accusations, wrongful expulsions, 
suspensions, punishments, and undue burdens levied against respondents 
still do not add up to the overwhelming numbers of victims, so any 
provision that makes it harder for victims to prevail only serves to 
harm a greater number (of victims) in an attempt to protect a very 
small number (of falsely accused respondents), leading to greater 
unequal access to education for victims. Commenters argued that very 
few respondents who are found guilty are expelled, and therefore 
respondents are usually not in danger of losing their access to 
educational opportunities, so a wrongful result adverse to a respondent 
is not as consequential as a wrongful result adverse to a complainant.
    Other commenters argued that a presumption against responsibility 
is not needed because it is easy to identify patterns of individuals 
who file false accusations, because almost all false accusers have ``a 
history of bizarre fabrications or criminal fraud.'' \1076\ Commenters 
stated that false accusations are unusually dramatic, involving gang 
rape, a gun or a knife, or violent attacks from strangers resulting in 
severe injuries.
---------------------------------------------------------------------------

    \1076\ Commenters cited: Sandra Newman, What Kind of Person 
Makes False Rape Accusations, Quartz (May 11, 2017).
---------------------------------------------------------------------------

    Other commenters supported the presumption by asserting that false 
allegations do occur, and with more regularity than other commenters 
claim. Commenters cited the incidence of numerous lawsuits filed by 
students claiming they had been falsely accused,\1077\ arguing that the 
prevalence of these lawsuits shows that many respondents, mostly young 
men, have been falsely accused and suspended or

[[Page 30262]]

expelled from school under procedures that lacked fairness and 
reliability, often resulting in a respondent de facto being required to 
try to prove innocence. Commenters referred to high-profile campus 
sexual assault situations that commenters argued demonstrate the fact 
that false rape accusations do occur and damage respondents caught in 
systems that prejudge them without any benefit of being presumed 
innocent. Commenters argued that the frequency of false accusations is 
not as low as other commenters have claimed because studies examining 
the rate of false accusations only count accusations proven to be 
false, and do not count accusations dismissed for lack of evidence. One 
commenter shared details of the commenter's own research finding that 
53 percent of sexual assault allegations were false, which the 
commenter argued is much higher than the ``2-10%'' statistic relied on 
by many victim advocates; \1078\ the commenter argued that the 53 
percent number is more accurate because it counted ``not responsible'' 
determinations as ``false accusations.''
---------------------------------------------------------------------------

    \1077\ Commenters cited: T. Rees Shapiro, Expelled for sex 
assault, young men are filing more lawsuits to clear their names, 
The Washington Post (Apr. 28, 2017).
    \1078\ Commenters cited: National Sexual Violence Resource 
Center, False Reporting: Overview (2012); see also the ``False 
allegations'' subsection of the ``General Support and Opposition'' 
section of this preamble.
---------------------------------------------------------------------------

    One commenter asserted that high-conflict divorce proceedings take 
into account the reality that spite plays a role in some parties' 
negotiations and litigation strategies, but many people seem to believe 
sexual harassment allegations are almost entirely free of such 
distorting motives.
    Discussion: The Department is not persuaded by commenters who 
argued that we should remove the presumption of non-responsibility from 
the final regulations because of studies showing that many, or even the 
vast majority, of allegations of sexual assault are true. Statistical 
findings can be instructive but not dispositive, and statistics cannot 
by themselves justify or rationalize procedural protections in a 
process designed to determine the truth of particular allegations 
involving specific individuals.\1079\ Even if only two to ten percent 
of rape allegations are false or unfounded, the Department believes 
that statistical generalizations must not compel conclusions about the 
truth of particular allegations because without careful assessment of 
the facts of each particular situation it is not be possible to know 
whether the respondent is one of the 90 to 98 percent who statistically 
are ``guilty'' or among the two to ten percent who are statistically 
``innocent.'' \1080\
---------------------------------------------------------------------------

    \1079\ V.C. Ball, The Moment of Truth: Probability Theory and 
Standards of Proof, 14 Vand. L. Rev. 807, 811 (1961) (``[F]or 
individuals there are no statistics, and for statistics no 
individuals.'').
    \1080\ See Alex Stein, An Essay on Uncertainty and Fact-Finding 
in Civil Litigation, with Special Reference to Contract Cases, 48 
Univ. of Toronto L. J. 299, 301 (1998) (``Allowing verdicts to be 
based upon bare statistical evidence, rather than on case-specific 
proof, is generally regarded as problematic. Adjudication involves 
individuals and their individual affairs, which need to be 
translated into individual rights and duties. This is not the case 
with bare statistical evidence. As the famous saying goes, for 
statistics there are no individuals and for individuals, no 
statistics.'').
---------------------------------------------------------------------------

    Similarly, whether respondents are expelled at low rates or high 
rates, the final regulations are concerned with ensuring that the 
determination regarding responsibility is reliable and perceived as 
legitimate. For reasons described elsewhere in this preamble, the 
Department does not require any particular disciplinary sanctions 
against respondents, because these Title IX regulations are focused on 
requiring remedies for victims, leaving disciplinary decisions to 
recipients' discretion. For similar reasons, the Department declines to 
adopt a premise that most false allegations are ``easy to identify'' 
because even if research has identified certain patterns, common 
features, or motives for false allegations, it is not possible to 
assess the veracity of a complainant's specific allegations, or an 
individual complainant's motive, based on generalizations. Therefore, 
procedural rules designed for fairness and accuracy cannot be based on 
statistics or studies about what kind of allegations tend to be false. 
The Department disagrees that all determinations of non-responsibility 
are fairly characterized as involving a false or unfounded allegation; 
as numerous commenters have pointed out, an allegation may be true and 
lack sufficient evidence to meet a standard of evidence proving 
responsibility, or an allegation may be inaccurate but not 
intentionally falsified. The final regulations add Sec.  106.71(b) 
cautioning recipients that punishing a party ostensibly for making 
false statements during a grievance process may constitute unlawful 
retaliation unless the recipient has concluded that a party made a bad 
faith materially false statement and that conclusion is not based 
solely on the determination regarding responsibility. This provision 
acknowledges the reality that a complainant's allegations may not have 
been false even where the ultimate determination is that the respondent 
is not responsible and/or that the complainant may not have acted 
subjectively in bad faith (and conversely, that a respondent may not 
have made false, or subjectively bad faith, denials even where the 
respondent is found responsible).
    The presumption of non-responsibility is not designed to protect 
``a few'' falsely accused respondents at the expense of ``the many'' 
sexual harassment victims; the presumption is designed to improve the 
accuracy and legitimacy of the outcome in each individual formal 
complaint of sexual harassment to prevent injustice to any complainant 
or any respondent.
    Changes: Section 106.71(b) states that charging an individual with 
a code of conduct violation for making a bad faith materially false 
statement during a grievance process is not retaliation so long as that 
conclusion is not based solely on the determination regarding 
responsibility.
Inaccurate Findings of Non-Responsibility
    Comments: Commenters argued that, in a misguided attempt to shield 
falsely accused people, the presumption of non-responsibility will 
allow assailants to go unpunished, which will further traumatize and 
disempower victims. Commenters argued that the presumption would allow 
more sexual harassment perpetrators to escape responsibility because it 
can be difficult to prove sexual assault, and evidence is frequently 
scant or based heavily on testimony alone so overcoming a presumption 
is yet another unfair obstacle for survivors to receive justice.
    Commenters argued that, for those schools that employ a clear and 
convincing evidence standard, complainants will be more likely to lose 
the case, a result compounded by the presumption of non-responsibility. 
Commenters argued that abusive people will be found not responsible 
more often, making campuses less safe and increasing the number of 
sexual assaults on campuses. Another commenter argued that the 
presumption ensures that only the most egregious cases of sexual 
assault will be punished, which is unjust for many women.
    Some commenters disagreed with the presumption, asserting that it 
requires fact-finding doctrines used in criminal law proceedings. 
Commenters expressed concern that, if schools handle complaints of 
sexual assault the same way law enforcement handles them, most 
complaints will not be pursued. One commenter asserted that 69 percent 
of survivors have experienced police officers discouraging them from 
filing a report and one-third of survivors have

[[Page 30263]]

experienced police refusing to take their reports.\1081\
---------------------------------------------------------------------------

    \1081\ Commenters cited: Rebecca Campbell, Survivors' Help-
Seeking Experiences with the Legal and Medical Systems, 20 Violence 
& Victims 1 (2005).
---------------------------------------------------------------------------

    Commenters argued that the presumption is in tension with Sec.  
106.45(b)(1)(ii), which states that ``credibility determinations may 
not be based on a person's status as a complainant'' or ``respondent.''
    One commenter asserted that the presumption would not work for 
medical schools, because medical students frequently experience sexual 
harassment or assault from patients or visitors, and medical schools do 
not have the authority to compel them to participate in investigatory 
interviews or live hearings.\1082\
---------------------------------------------------------------------------

    \1082\ Commenters cited: Charlotte Grinberg, `These Things 
Sometimes Happen': Speaking Up About Harassment, 37 Health Affairs 6 
(2018).
---------------------------------------------------------------------------

    Discussion: As applied under these final regulations, in the 
context of a Title IX grievance process, the presumption does not 
operate to let ``guilty'' respondents go free. While the presumption is 
based on a similar principle animating the presumption of innocence in 
criminal law, the Sec.  106.45 grievance process generally, including 
the presumption under Sec.  106.45(b)(1)(iv), does not mirror criminal 
law protections or mimic criminal courts. As discussed below, the 
presumption of non-responsibility reinforces that the burden of proof 
remains on the recipient, not on either party, and reinforces 
application of the standard of evidence, which under the final 
regulations must be lower than the criminal standard of beyond a 
reasonable doubt.
    The Department disagrees that the final regulations require schools 
to handle reports or formal complaints of sexual assault the same way 
law enforcement handles them. Recipients are prohibited from showing 
deliberate indifference towards sexual harassment complainants, 
including by offering supporting measures to complainants irrespective 
of whether a formal complaint is ever filed, and under these final 
regulations recipients are obligated to investigate formal complaints, 
unlike law enforcement where officers and prosecutors generally have 
discretion to decline to investigate and prosecute. Further, law 
enforcement and criminal prosecutors gather evidence under a burden to 
prove guilt beyond a reasonable doubt, but the final regulations place 
a burden on recipients to meet a burden of proof that shows a 
respondent responsible measured against a lower standard of 
evidence.\1083\
---------------------------------------------------------------------------

    \1083\ Section 106.45(b)(1)(vii) (requiring recipients to select 
and apply to all Title IX sexual harassment cases a standard of 
evidence that is either the preponderance of the evidence standard, 
or the clear and convincing evidence standard).
---------------------------------------------------------------------------

    The Department is unpersuaded by commenters who asserted that the 
presumption will make campuses more dangerous because it will chill 
reporting or prevent recipients from punishing and expelling offenders 
from campuses because Sec.  106.45 is too similar to criminal 
procedures. A presumption of non-responsibility need not chill or deter 
reporting of sexual harassment, because reporting under the final 
regulations leaves complainants autonomy over whether to seek 
supportive measures or also participate in a grievance process, and 
because a fair process with procedures rooted in principles of due 
process provides assurance that the outcome of a grievance process 
(when a complainant or Title IX Coordinator decides to initiate a 
grievance process) is reliable and viewed as legitimate.
    Refraining from treating a respondent as responsible until 
conclusion of the grievance process does not make it more difficult to 
hold a respondent responsible or prevent implementation of supportive 
measures for a complainant. To the extent that commenters are 
advocating for latitude for recipients to impose interim suspensions or 
expulsions, the Department believes that without a fair, reliable 
process the recipient cannot know whether it has interim-expelled a 
respondent who is actually responsible for the allegations, or a 
respondent who is not responsible. However, the Department reiterates 
that Sec.  106.44(c) allows emergency removals of respondents prior to 
conclusion of a grievance process (or even where no grievance process 
is pending), thus protecting the safety of a recipient's community 
where an immediate threat exists.
    Because the standard of evidence is lower in the Title IX grievance 
process (recipients must select and apply either the preponderance of 
the evidence standard or the clear and convincing evidence standard) 
than in a criminal proceeding (beyond a reasonable doubt), the 
presumption in Sec.  106.45(b)(1)(iv) does not convert the standard of 
evidence to the criminal standard (beyond a reasonable doubt). Under 
the Sec.  106.45 grievance process, the Sec.  106.45(b)(1)(iv) 
presumption ensures that recipients correctly apply the standard of 
evidence selected by each recipient, but no recipient is permitted to 
select the criminal ``beyond a reasonable doubt'' standard.\1084\ Thus, 
the presumption helps to ensure that the recipient does not treat a 
respondent as responsible until conclusion of the grievance process, 
and to reinforce a recipient's proper application of the standard of 
evidence the recipient has selected \1085\ without converting the Title 
IX grievance process to a criminal court proceeding. The presumption 
does not make it more difficult to hold a respondent responsible, 
because the presumption reinforces, but does not change, the burden of 
proof that rests on the recipient and the obligation to appropriately 
apply the recipient's selected standard of evidence in reaching a 
determination regarding responsibility to decide if the recipient's 
burden of proof has been met. The presumption will not result in 
assailants going unpunished; a perpetrator of sexual harassment proved 
responsible for the alleged conduct may be punished at the recipient's 
discretion, and these final regulations require the recipient to 
effectively implement remedies for the complainant where a respondent 
is found to be responsible.\1086\
---------------------------------------------------------------------------

    \1084\ Section 106.45(b)(1)(vii); Sec.  106.45(b)(7)(i); see 
also discussion in the ``Section 106.45(b)(7)(i) Standard of 
Evidence and Directed Question 6'' subsection of the 
``Determinations Regarding Responsibility'' subsection of the 
``Section 106.45 Recipient's Response to Formal Complaints'' section 
of this preamble.
    \1085\ Because the Department has determined that the 
preponderance of the evidence standard is the lowest possible 
standard of evidence that a recipient may select for a Sec.  106.45 
grievance process, the presumption of non-responsibility's function 
of ensuring proper application of the standard of evidence is 
particularly important where a recipient has selected the 
preponderance of the evidence standard, to ensure that in cases 
where the evidence is in equipoise (i.e., ``50/50'') the result is a 
determination of non-responsibility. E.g., Vern R. Walker, 
Preponderance, Probability, and Warranted Factfinding, 62 Brooklyn 
L. Rev. 1075, 1076 (1996) (noting that the traditional formulation 
of the preponderance of the evidence standard by courts and legal 
scholars is that the party with the burden of persuasion must prove 
that a proposition is more probably true than false meaning a 
probability of truth greater than 50 percent); Neil B. Cohen, The 
Gatekeeping Role in Civil Litigation and the Abdication of Legal 
Values in Favor of Scientific Values, 33 Seton Hall L. Rev. 943, 
954-56 (2003) (noting that the preponderance of the evidence 
standard applied in civil litigation results in the plaintiff losing 
the case where the plaintiff's and defendant's positions are ``in 
equipoise'' i.e., where the evidence presented makes the case ``too 
close to call'').
    \1086\ Section 106.45(b)(1)(i); Sec.  106.45(b)(7)(iv).
---------------------------------------------------------------------------

    The structure of the fact-finding process, including the 
presumption, prevents recipients from acting on an assumption that a 
particular complainant is (or is not) truthful; similarly, recipients 
may not look to the presumption as an excuse to ``believe'' or find 
credible, the respondent and to

[[Page 30264]]

do so would violate Sec.  106.45(b)(1)(ii). Thus, the Department 
disagrees with commenters who argue that the presumption contradicts 
Sec.  106.45(b)(1)(ii) which requires that recipients may not make 
credibility determinations based on a party's status as a complainant 
or respondent. The presumption in Sec.  106.45(b)(1)(iv) reinforces the 
obligation in Sec.  106.45(b)(1)(ii) to refrain from drawing inferences 
about credibility based on a party's status as a complainant or 
respondent.
    Nothing in the final regulations, including the presumption of non-
responsibility, prevents recipients who are medical schools from 
offering supportive measures to medical students who allege that 
hospital patients or visitors are sexually harassing them. Section 
106.30 defining ``supportive measures'' provides that the recipient may 
offer such measures either before or after the filing of a formal 
complaint or where no formal complaint has been filed, for the purpose 
of restoring the complainant's access to the education program without 
unreasonably burdening the respondent. The Department cannot comment 
more specifically as to what supportive measures might be reasonably 
available to preserve a medical student's equal access and avoid 
unreasonably burdening a respondent who is a patient or visitor, 
because each case requires the recipient's independent review and 
judgment. Where the respondent is a patient or visitor to the 
recipient's campus or facility and the recipient thus lacks an 
employment or enrollment relationship with the respondent, a recipient 
has discretion under Sec.  106.45(b)(3)(ii) to dismiss a formal 
complaint where the respondent is not enrolled or employed by the 
recipient; or, also in the recipient's discretion, the recipient may 
investigate and adjudicate a formal complaint against such a respondent 
and, for example, issue a no-trespass order following a determination 
regarding responsibility. Regardless of how a recipient exercises its 
discretion with respect to formal complaints against respondents over 
whom a recipient lacks disciplinary authority, medical schools may 
still comply with the requirements in these final regulations to 
respond to sexual harassment that occurs in the recipient's education 
program or activity.
    Changes: None.
Recipients Should Apply Dual Presumptions or No Presumption
    Comments: Commenters stated that Sec.  106.45(b)(1)(iv) equates to 
a presumption that the complainant is lying, or a presumption that the 
alleged harassment never occurred. Commenters asserted if presumptions 
exist, the provision should direct the recipient to presume, in 
addition to the respondent's presumption of non-responsibility, that 
the complainant is credible and making a good faith complaint. One 
commenter asserted that the Department should provide training to 
address bias against complainants.
    Commenters argued that, because the grievance process is not a 
criminal proceeding, there should be no presumption in favor of either 
party. Commenters argued that investigators should have no 
presumption--either in favor or against either party--when performing 
their fact-finding duties. Commenters argued that it is unfair to 
complainants to start an investigation with a presumption of the 
respondent's innocence, just as it would be unfair to the respondent to 
start with a presumption of guilt. Commenters argued that in civil and 
administrative proceedings, both parties start on equal footing in the 
process with a blank slate in front of the decision-maker, and there is 
no reason why Title IX proceedings should not treat the parties equally 
in this manner. Commenters argued that while criminal proceedings give 
defendants a presumption of innocence, State and Federal victims' 
rights laws balance even that presumption of innocence to ensure 
victims are treated fairly. Commenters argued that a civil case 
requires that the victim and perpetrator appear as equals \1087\ and 
argued that a Title IX investigation should treat both parties equally 
regarding credibility, with no presumption of innocence or presumption 
of guilt. One commenter argued that the presumption makes no sense in 
an educational environment because the complainant and respondent are 
tied together because of their relationship to the institution, which 
is different from the relationship between defendants and the 
government in criminal matters, and the Sec.  106.45(b)(1)(iv) 
presumption will negatively impact every complainant's education 
because the complainant will be assumed to be lying just by filing a 
complaint.
---------------------------------------------------------------------------

    \1087\ Commenters cited: The National Center for Victims of 
Crime, ``Criminal and Civil Justice,'' https://victimsofcrime.org/media/reporting-on-child-sexual-abuse/criminal-and-civil-justice, 
for this proposition.
---------------------------------------------------------------------------

    Commenters asserted that currently there is no presumption of non-
responsibility for respondents in other student misconduct proceedings, 
such as theft, cheating, plagiarism, and even physical assault. 
Commenters argued that if the Department believes such a presumption is 
important in sexual misconduct cases, then it should require the 
presumption in all student misconduct cases for the sake of uniformity.
    Discussion: The Department declines to adopt commenters' 
recommendations that recipients should presume that complainants are 
credible. If the presumption of non-responsibility meant assuming that 
the respondent is credible, then the Department would agree that such a 
presumption would be unfair to complainants and should be balanced by 
an equal presumption of credibility for complainants (or, more 
reasonably, no presumptions at all). However, the presumption of non-
responsibility is not a presumption about the respondent's credibility, 
believability, or truthfulness, and Sec.  106.45(b)(1)(ii) requires 
recipients not to make credibility determinations based on a party's 
status as complainant or respondent. A critical feature of a fair 
grievance process is that Title IX personnel refrain from drawing 
conclusions or making assumptions about either party's credibility or 
truthfulness until conclusion of the grievance process; therefore, the 
Department declines to impose a presumption that either party (or both 
parties) are credible or truthful. Because the presumption of non-
responsibility is not a presumption that a respondent is credible, 
there is no need for a presumption specific to complainants to balance 
or counteract the presumption of non-responsibility.\1088\ The

[[Page 30265]]

presumption of non-responsibility does not assume, or allow recipients 
to act as though, complainants are lying; under the final regulations, 
recipients must not prejudge the facts at issue, must not draw 
inferences about credibility based on a party's status as a complainant 
or respondent, and must objectively evaluate all relevant evidence to 
reach a determination regarding responsibility.
---------------------------------------------------------------------------

    \1088\ A presumption specific to a complainant that corresponds 
to the presumption of a respondent's non-responsibility might, 
hypothetically, be a presumption that the complainant is not 
responsible--but such a presumption simply does not apply to a 
complainant, because a complainant by definition is not alleged to 
be responsible for misconduct. Alternatively, a presumption specific 
to a complainant analogous to the presumption of non-responsibility 
might be that the complainant must be treated as a victim of the 
respondent's conduct until conclusion of the grievance process 
(because, as explained above, the presumption of non-responsibility 
operates to treat a respondent as ``not a perpetrator'' until 
conclusion of the grievance process, subject to the Sec.  106.44(c) 
and Sec.  106.44(d) exceptions for emergency removals and 
administrative leave for employee-respondents). However, the 
Department does not believe such a presumption would operate to 
protect complainants in any manner not already provided for in the 
final regulations. Section 106.44(a) already requires the recipient 
essentially to treat a complainant as a victim in need of services 
in the aftermath of suffering sexual harassment (by offering 
supportive measures and engaging in an interactive discussion with 
the complainant to arrive at helpful supportive measures to preserve 
the complainant's equal educational access) even before, or without, 
a fact-finding process that has determined that the respondent 
victimized the complainant. Moreover, the grievance process 
effectively requires a complainant to be treated as a victim in two 
specific provisions that apply for complainants' benefit: Sec.  
106.45(b)(6)(i)-(ii) provides rape shield protection for 
complainants--but not respondents--against questions and evidence 
inquiring into the complainant's prior sexual behavior; and Sec.  
106.45(b)(6)(i) allows either party to request that a live hearing 
(including cross-examination) occurs in separate rooms. While the 
latter provision applies on its face to both parties, the provision 
is responsive to public comment informing the Department that 
complainants already traumatized by sexual violence likely will be 
traumatized by coming face-to-face with the respondent; no such 
concerns about the traumatic effect of personal confrontation were 
raised on behalf of respondents. Thus, where appropriate, the 
grievance process takes into account the unique needs of 
complainants, in ways that the Department believes serve Title IX's 
non-discrimination mandate by protecting complainants as though 
every complainant has been victimized, without unfairness to the 
respondent. A presumption of non-responsibility does not deprive a 
complainant of the protections given solely to complainants under 
Sec.  106.44(a) and Sec.  106.45, nor deprive a complainant of the 
benefits of the robust procedural rights given equally to both 
parties during the grievance process.
---------------------------------------------------------------------------

    The procedural rights granted to both parties under Sec.  106.45 
ensure that complainants and respondents have equal opportunities to 
meaningfully participate in putting forth their views about the 
allegations and their desired case outcome, an essential requirement 
for due process even in a civil (noncriminal) setting.\1089\ The 
Department disagrees that in civil (as opposed to criminal) trials the 
plaintiff and defendant ``appear as equals'' in every regard, because 
even in civil trials the burden of proof generally rests on the 
plaintiff to prove allegations, not on the defendant to prove non-
liability.\1090\ Thus, while parties in civil litigation (and under 
Sec.  106.45) have equal rights to participate in the process (for 
example, by gathering and presenting evidence), a burden of proof must 
still be met. The final regulations ensure that neither party bears the 
burden of proof (which remains on the recipient) yet give both parties 
equal procedural rights throughout the grievance process. The 
presumption does not create inequality between the complainant and 
respondent; the presumption reinforces the recipient's burden of proof 
and correct application of the standard of evidence, neither of which 
burdens or disadvantages the complainant.
---------------------------------------------------------------------------

    \1089\ E.g., Niki Kuckes, Civil Due Process, Criminal Due 
Process, 25 Yale Law & Pol. Rev. 1, 10-11 (2006) (due process in 
civil settings ``places central importance on the participation of 
the affected party in decision-making. Ex parte procedures are the 
exception, while participatory procedures are the rule. Notice and 
an opportunity to be heard is, obviously, the principle without 
which a participatory model of justice cannot work effectively. 
Unless a party is notified that there is a controversy, it cannot 
participate in decision-making; unless a party has the opportunity 
for a hearing, it cannot present its side of the controversy; and 
unless the decision-maker hears from both parties, there cannot be a 
meaningful ruling. This is the adversary system's vision of 
justice.'').
    \1090\ E.g., Dale A. Nance, Civility and the Burden of Proof, 17 
Harv. J. of L. & Pub. Pol'y 647, 659 (1994) (in civil litigation 
``it remains true that the burden is placed, in the vast majority of 
contexts, on the person or institution claiming that someone has 
breached a duty serious enough to warrant legal recognition.''). We 
reiterate that the final regulations, Sec.  106.45(b)(1)(i), place 
the burden squarely on the recipient--not on the complainant--to 
prove that a respondent has committed sexual harassment.
---------------------------------------------------------------------------

    The Department notes that Sec.  106.45(b)(1)(iii) not only requires 
Title IX personnel to serve without bias for or against complainants or 
respondents, but also requires training for Title IX personnel, 
expressly to avoid bias for or against complainants or respondents 
generally or for or against an individual complainant or respondent. 
Recipients have discretion as to the content and approaches of such 
training so long as the requirements of Sec.  106.45(b)(1)(iii) are 
met.
    A presumption of non-responsibility reinforces placement of the 
burden of proof, proper application of the standard of evidence, and 
fair treatment of an accused person prior to adjudication of 
responsibility. These features of a fair grievance process may be 
beneficial to the legitimacy and reliability of outcomes of non-sexual 
harassment student misconduct proceedings. However, these final 
regulations focus only on effectuating Title IX's non-discrimination 
mandate by improving the perception and reality that recipients' Title 
IX proceedings reach fair, accurate outcomes; these regulations do not 
impose requirements on recipients for grievance proceedings other than 
for Title IX sexual harassment.
    Changes: None.
The Adversarial Nature of the Grievance Process
    Comments: Commenters asserted that universities already treat both 
parties equitably and the presumption in Sec.  106.45(b)(1)(iv) 
escalates the adversarial nature of Title IX proceedings; commenters 
argued this will raise the financial and emotional toll the grievance 
process will have on both complainants and respondents. Commenters 
argued that the proposed regulations ask a university to act as a 
judicial system, placing an undue burden on the educational system and 
imposing an unprecedented amount of control over a school's--especially 
a private school's--ability to develop and implement disciplinary 
processes in a way that best serves its community and upholds its 
values, which often include using codes of conduct to educate students 
rather than be punitive. One commenter opposed the presumption because 
recipients already train staff and faculty to serve neutrally, bearing 
in mind the educational context in student misconduct cases, because 
the student is paying to be in an educational environment, not a prison 
system. One commenter warned that the presumption of non-responsibility 
would create an ``inaccessibility to justice.''
    Other commenters supported the presumption of non-responsibility, 
arguing that Title IX proceedings are often highly contested, yet 
school proceedings are biased against the accused; commenters cited 
articles showing that over 150 lawsuits have been filed arising from 
fundamental unfairness in schools' Title IX proceedings.\1091\ 
Commenters argued that a presumption of non-responsibility is essential 
because recipients have denied respondents the right to know the 
allegations against them or the identity of the person accusing them, 
and that respondents have been repeatedly denied the ability to 
question the complainant, submit exculpatory evidence, or have their 
witnesses interviewed by the recipient. Commenters argued that 
respondents have sued recipients for expelling them or finding them 
responsible without first giving them procedural protections, and that 
some courts have agreed that some recipients committed due process or 
fairness violations. One commenter shared information from a 
university's website promoting adherence to the public awareness 
campaign ``Start by Believing,'' \1092\ which the commenter argued 
shows the university's bias against accused students. Commenters argued 
that college environments are highly politicized and college

[[Page 30266]]

administrators and faculty are not objective fact-finders, and a 
presumption of non-responsibility helps counteract that lack of 
objectivity.
---------------------------------------------------------------------------

    \1091\ Commenters cited: Foundation for Individual Rights in 
Education (FIRE), Report: As changes to Title IX enforcement loom, 
America's top universities overwhelmingly fail to guarantee fair 
hearings for students (Dec. 18, 2018); see also T. Rees Shapiro, 
Expelled for sex assault, young men are filing more lawsuits to 
clear their names, The Washington Post (Apr. 28, 2017).
    \1092\ Commenters cited: University of Iowa Rape Victim Advocacy 
program, Start By Believing, https://rvap.uiowa.edu/take-action/prevent-and-educate/start-by-believing/.
---------------------------------------------------------------------------

    Discussion: The Department disagrees that the presumption of non-
responsibility increases the adversarial nature of Title IX 
proceedings; Title IX proceedings are often inherently adversarial, due 
to the need to resolve contested factual allegations. The Department 
understands commenters' concerns that an adversarial process may take 
an emotional toll on participants, and the final regulations encourage 
provision of supportive measures to both parties and give both parties 
an equal right to select an advisor of choice to assist the parties 
during a grievance process. The presumption of non-responsibility does 
not magnify the adversarial nature of the grievance process; rather, 
the presumption reinforces the recipient's burden of proof, proper 
application of the standard of evidence, and how a respondent is 
treated pending the outcome of the grievance process. The Department 
disagrees that the presumption will lead to ``inaccessibility'' of 
justice; rather, complainants will benefit from increased legitimacy of 
recipient determinations when respondents are found responsible, while 
respondents will benefit from assurance that a recipient cannot treat 
the respondent as though responsibility has been determined until the 
conclusion of a fair grievance process. The Sec.  106.45 grievance 
process, and the final regulations as a whole, impose an obligation on 
recipients to remain impartial toward parties whose views about the 
allegations are adverse to each other. To the extent that commenters' 
concerns about an adversarial process reflect concern that financial 
inequities can affect the process (for example, where one party can 
afford to hire an attorney to further the party's interests and the 
other party cannot afford an attorney), the final regulations permit, 
but do not require, advisors to be attorneys, allow recipients to limit 
the active participation of advisors significantly, with the exception 
of conducting cross-examination at a live hearing in postsecondary 
institutions,\1093\ and do not preclude recipients from offering both 
parties legal representation.\1094\ This approach reflects the reality 
that recipients are not courts, yet do need to apply a fair, truth-
seeking process to resolve factual allegations of Title IX sexual 
harassment.
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    \1093\ Section 106.45(b)(5)(iv); Sec.  106.45(b)(6)(i).
    \1094\ The Department realizes that only a fraction of 
postsecondary institutions currently offer to provide both parties 
in a grievance proceeding with legal representation, but such an 
option remains available to recipients who choose to address 
disparity with respect to the financial ability of parties to hire 
legal representation in the recipient's educational community. E.g., 
Kristen N. Jozkowski & Jacquelyn D. Wiersma[hyphen]Mosley, The Greek 
System: How Gender Inequality and Class Privilege Perpetuate Rape 
Culture, 66 Fam. Relations 1 (2017) (noting that only about three 
percent of colleges and universities provide victims with legal 
representation and arguing that colleges and universities should 
provide free legal representation to both complainants and 
respondents in campus sexual assault proceedings).
---------------------------------------------------------------------------

    The Department recognizes that some recipients expressed concerns 
that the presumption of non-responsibility, in conjunction with other 
provisions in Sec.  106.45, requires educational institutions to mimic 
courts of law. The Department acknowledges, and the final regulations 
reflect, that recipients' purpose is to educate, not to act as courts. 
The Sec.  106.45 grievance process is designed for implementation by 
non-lawyer recipient officials, and the final regulations do not 
intrude on a recipient's discretion to use disciplinary sanctions as 
educational tools of behavior modification rather than, or in addition 
to, punitive measures. However, to effectuate Title IX's non-
discrimination mandate, recipients must accurately resolve allegations 
of sexual harassment in order to identify and address sex 
discrimination in the recipient's education program or activity. The 
Department believes the presumption of non-responsibility is important 
to ensure that recipients do not treat respondents as responsible until 
conclusion of the grievance process and to reinforce the recipient's 
burden of proof and proper application of the standard of evidence, and 
these features will improve the legitimacy and reliability of the 
outcomes of recipients' Title IX grievance processes.
    Changes: None.
Supportive Measures
    Comments: Several commenters sought clarification as to whether the 
presumption in Sec.  106.45(b)(1)(iv) would preclude a recipient from 
taking interim or emergency actions as dictated by individual 
circumstances when needed to ensure safety. For example, if a 
respondent is presumed not to be responsible for stalking a complainant 
until the end of the grievance process, commenters asked how a 
recipient could take effective measures to ensure that the respondent 
will not stalk the complainant prior to the conclusion of the grievance 
proceeding. Commenters asserted that the presumption appeared to 
require the recipient to remove the complainant from dorms and classes 
rather than the respondent, and that the presumption would curtail the 
ability of recipients to remove harassers and abusers from dorms and 
classes, which will lead to more sexual assaults because research 
indicates that most perpetrators are repeat offenders.\1095\ Commenters 
argued that the presumption may discourage schools from providing 
crucial supportive measures to complainants to avoid being perceived as 
punishing respondents.\1096\
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    \1095\ Commenters cited: David Lisak & Paul Miller, Repeat Rape 
and Multiple Offending Among Undetected Rapists, 17 Violence & 
Victims 1 (2002), for the proposition that a majority of 
``undetected rapists'' were repeat rapists and undetected repeat 
rapists committed an average of 5.8 rapes each.
    \1096\ Commenters cited: Michael C. Dorf, What Does a 
Presumption of Non-Responsibility Mean in a Civil Context, Dorf On 
Law (Nov. 28, 2018), https://www.dorfonlaw.org/2018/11/what-does-presumption-of-non.html.
---------------------------------------------------------------------------

    Commenters argued that the proposed rules not only give respondents 
a presumption of innocence but also require recipients to provide 
supportive measures to respondents, constituting unprecedented concern 
with the well-being of accused harassers above the interests of 
victims.
    Discussion: The Sec.  106.30 definition of ``supportive measures'' 
permits recipients to provide either party, or both parties, 
individualized services, without fee or charge, before or after filing 
a formal complainant, or where no formal complaint has been filed. 
Section 106.44(a) obligates a recipient to offer supportive measures to 
every complainant, by engaging in an interactive process by which the 
Title IX Coordinator contacts the complainant, discusses available 
supportive measures, considers the complainant's wishes with respect to 
supportive measures, and explains to the complainant the option for 
filing a formal complaint. Title IX Coordinators are responsible for 
the effective implementation of supportive measures, and under revised 
Sec.  106.45(b)(10) if a recipient's response to sexual harassment does 
not include providing supportive measures to a complainant the 
recipient must specifically document why that response was not clearly 
unreasonable in light of the known circumstances (for example, because 
the complainant did not wish to receive supportive measures or refused 
to discuss supportive measures with the Title IX Coordinator when the 
Title IX Coordinator contacted the complainant to have such a 
discussion). Thus, unless a complainant does not desire supportive 
measures (i.e., refuses the offer of supportive measures),

[[Page 30267]]

complainants must receive supportive measures designed to restore or 
preserve the complainant's equal educational access, regardless of 
whether a grievance process is ever initiated. There is no 
corresponding obligation to offer supportive measures to respondents; 
rather, recipients may provide supportive measures to respondents and 
under Sec.  106.45(b)(1)(ix) the recipient's grievance process must 
describe the range of supportive measures available to complainants and 
respondents.
    The presumption of non-responsibility, which operates throughout a 
grievance process, does not prohibit the recipient from providing a 
complainant with supportive measures, but does reinforce the provision 
in the Sec.  106.30 definition of ``supportive measures'' that 
supportive measures are designed to restore or preserve equal access to 
education ``without unreasonably burdening the other party'' including 
measures designed to protect a complainant's safety or deter sexual 
harassment (which includes stalking), but supportive measures cannot be 
punitive or disciplinary. This does not bar all measures that place any 
burden on a respondent, but only those that ``unreasonably burden'' a 
respondent (or a complainant). Thus, changing a respondent's class 
schedule, or forbidding the respondent from communicating with the 
complainant, may be an appropriate supportive measure for a complainant 
if such measures do not ``unreasonably burden'' the respondent, and 
such measures do not violate the presumption of non-responsibility.
    To the extent that commenters' concern is that current Department 
guidance affords recipients more discretion to impose interim measures 
that in fact do constitute disciplinary actions against the respondent 
(for example, interim suspensions), the Department has reconsidered 
that approach and, based on public comments on the NPRM, concluded that 
the non-discrimination mandate of Title IX is better served by the 
framework in the final regulations than the approach taken in guidance 
documents. With respect to disciplinary or punitive actions taken prior 
to an adjudication factually establishing a respondent's responsibility 
for sexual harassment, the final regulations circumscribe a recipient's 
discretion to treat a respondent as though accusations are true before 
the accusations have been proved.\1097\ When applied in the context of 
these final regulations, the presumption of non-responsibility's 
reinforcement of the notion that a person accused should not be treated 
as though accusations are true until the accusations have been proved 
increases the legitimacy of a recipient's response to sexual 
harassment, while preserving every complainant's right to supportive 
measures designed to maintain a complainant's equal educational access 
and protect a complainant's safety. This approach directly effectuates 
Title IX's non-discrimination mandate by improving the fairness and 
accuracy of a recipient's response to sexual harassment occurring in 
the recipient's education programs or activities.
---------------------------------------------------------------------------

    \1097\ The final regulations prohibit a recipient from taking 
disciplinary action, or other action that does not meet the 
definition of a supportive measure, against a respondent without 
following a grievance process that complies with Sec.  106.45. Sec.  
106.44(a); Sec.  106.45(b)(1). Through an informal resolution 
process (which is authorized under Sec.  106.45) a recipient may 
impose disciplinary sanctions against a respondent without 
concluding an investigation or adjudication. Sec.  106.45(b)(9). An 
exception to the requirement not to impose punitive or disciplinary 
action until conclusion of a grievance process is Sec.  106.44(c), 
permitting a recipient to remove a respondent from an education 
program or activity in an emergency situation whether or not a 
grievance process has been concluded or is even pending. Supportive 
measures designed to restore or preserve a complainant's equal 
access to education, protect parties' safety, and/or deter sexual 
harassment, may be imposed even where such measures burden a 
respondent, so long as the burden is not unreasonable. Sec.  106.30 
(defining ``supportive measures''). Thus, the final regulations are 
premised on the principle that a recipient must not treat a 
respondent as responsible prior to an adjudication finding the 
respondent responsible, yet that principle is not absolute and leave 
recipients with the ability (and, judged under the deliberate 
indifference standard, the obligation) to protect and support 
complainants and respond to emergency threat situations, without 
unduly, prematurely punishing a respondent based on accusations that 
have not been factually proved.
---------------------------------------------------------------------------

    The Department understands commenters' concerns that restricting a 
recipient's ability to impose interim discipline poses a risk that 
perpetrators may repeat an offense because they remain on campus while 
a grievance process is pending; however, even in situations that do not 
constitute the kind of immediate threat justifying an emergency removal 
under Sec.  106.44(c), there are supportive measures short of 
disciplinary actions that a recipient may take to protect the safety of 
parties and deter sexual harassment, such as a no-contact order 
prohibiting communication with the complainant, supervising the 
respondent, and informing the respondent of the recipient's policy 
against sexual harassment.\1098\
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    \1098\ E.g., Williams v. Bd. of Regents of Univ. Sys. of Ga., 
477 F.3d 1282, 1296 (11th Cir. 2007) (pointing to the recipient's 
failure to supervise the respondent or inform the respondent of the 
recipient's expectations of behavior under the recipient's sexual 
harassment policy as evidence of the recipient's deliberate 
indifference that subjected the complainant to sexual harassment).
---------------------------------------------------------------------------

    Changes: None.
Miscellaneous Concerns
    Comments: At least one commenter asked the Department to add at the 
end of the presumption provision the language ``. . . respondent is not 
responsible for the alleged conduct until a determination regarding 
responsibility is made at the conclusion of the grievance process or 
any subsequent litigation.'' Commenters asked the Department to provide 
the respondent with a right to remain silent, since the respondent's 
statements during any investigation or hearing could be used against 
the respondent at a criminal trial. One commenter recommended inserting 
the following language: ``The recipient bears the burden of 
demonstrating that the respondent is responsible for the alleged 
conduct and may not infer responsibility based solely on the respondent 
declining to present testimony, evidence, or witnesses in response to a 
formal complaint.''
    Another commenter urged the Department to add to Sec.  
106.45(b)(1)(iv) a sentence declaring that it is the obligation of the 
recipient to prove every element of every alleged offense before the 
accused student may be found responsible and punished for committing an 
alleged offense.
    Discussion: The Department does not attempt to regulate procedures 
that apply in private lawsuits and so declines commenters' request that 
the Department require a recipient to abide by a presumption of non-
responsibility until conclusion of ``any subsequent litigation.'' The 
recipient's obligation is to conclude a grievance process by reaching a 
determination regarding responsibility when presented with a formal 
complaint of sexual harassment under Title IX, whether or not 
litigation arises from the same allegations.
    Section 106.6(d) provides that these regulations do not require a 
recipient to restrict any rights that would otherwise be protected from 
government action under the U.S. Constitution, which includes the Fifth 
Amendment right against self-incrimination. To ensure that the 
determination regarding responsibility is reached in a manner that does 
not require violation of that constitutional right, we revised Sec.  
106.45(b)(6)(i) in the final regulations to provide that a decision-
maker cannot draw any inferences about the determination regarding 
responsibility

[[Page 30268]]

based on a party's failure to appear at the hearing or answer cross-
examination or other questions. While this applies equally to 
respondents and complainants, this modification addresses commenters' 
concerns that a respondent should not be found responsible solely 
because the respondent refused to provide self-incriminating 
statements. The Department declines to change Sec.  106.45(b)(1)(iv) to 
add language about the recipient's burden to prove each element of an 
offense, because Sec.  106.45(b)(5)(i) places the burden of proof on 
the recipient.
    Changes: We revised Sec.  106.45(b)(6)(i) of the final regulations 
to provide that a decision-maker cannot draw any inferences about the 
determination regarding responsibility based on a party's failure to 
appear at the hearing or answer cross-examination or other questions.
Section 106.45(b)(1)(v) Reasonably Prompt Time Frames
Support
    Comments: A number of commenters expressed support for this 
section. Some did not expand upon the reasons for their support. 
Others, primarily some college and university commenters, expressed 
particular support for eliminating the 60-day time frame contained in 
withdrawn Department guidance. Some commenters identified concerns with 
a 60-day time frame, such as asserting that: It does not reflect the 
complex nature of these cases, such as multiple parties, various 
witnesses, time to obtain evidence, and school breaks; it is arbitrary 
and hard to adhere to while providing due process for all; it 
interferes with the time parties need to provide evidence and to make 
their case; it has not been required by courts; and it increases the 
risks of decisions based on conjecture or gender or racial stereotypes. 
Other commenters contended that eliminating such a constrained timeline 
would be beneficial, by for instance allowing for more thorough 
investigations, collection of more evidence, and added accommodation of 
disabilities.
    A number of the supportive commenters also noted support more 
generally for the NPRM's flexibility regarding the time to conclude 
Title IX investigations and extensions for good cause. Some emphasized 
that prompt resolution is important, but contended that various factors 
may delay proceedings (such as police investigations, witness 
availability, school breaks, faculty sabbaticals) and asserted that 
fairness demands thoroughness. According to these commenters, Sec.  
106.45(b)(1)(v) appropriately accounts for schools' unique attributes 
(for example, their size, population, location, or mission), recognizes 
that complex matters may not lend themselves to set deadlines, and 
acknowledges that delays may sometimes be necessary, especially with a 
concurrent criminal investigation. Likewise, some commenters expressed 
support for good cause extensions for a related criminal proceeding in 
the belief that students should not be forced to choose between 
participating in campus proceedings and giving up their right to 
silence in criminal proceedings.
    Discussion: The Department appreciates the commenters' support for 
Sec.  106.45(b)(1)(v) under which a recipient's grievance process must 
include reasonably prompt time frames for concluding the grievance 
process, including appeals and any informal resolution processes, with 
temporary delays and limited extensions of time frames permitted only 
for good cause. The Department agrees with commenters that this 
provision appropriately requires prompt resolution of a grievance 
process while leaving recipients flexibility to designate reasonable 
time frames and address situations that justify short-term delays or 
extensions. This is the same recommendation made in the 2001 Guidance, 
which advised recipients that grievance procedures should include 
``Designated and reasonably prompt time frames for the major stages of 
the complaint process.'' \1099\
---------------------------------------------------------------------------

    \1099\ 2001 Guidance at 20.
---------------------------------------------------------------------------

    Changes: None.
Opposition--Lack of Specified Time Limit
    Comments: Many commenters expressed opposition to Sec.  
106.45(b)(1)(v) because of concerns about the absence of specific time 
frames for completing investigations and adjudications, including 
appeals. Commenters asserted that schools could delay investigations 
indefinitely or for unspecified periods of time and that students might 
wait months or years for resolution of their complaint. Commenters 
identified a number of other drawbacks they felt would result from 
uncertain, indefinite time frames with possible delays. Commenters 
asserted that this provision would: Make it less likely that survivors 
will report, less likely parties will receive justice, and more likely 
that students will lose faith in the reporting process; eliminate the 
mechanism for discovering and correcting harassment as early and 
effectively as possible; result in inconsistent resolution time frames 
at different schools; and only further delay the already lengthy 
process to reach resolution of sexual misconduct cases (for example, 
long unexplained delays even under the prior guidance with a 60-day 
time frame). Some commenters noted other concerns about the proposed 
time frames and potential delays or extensions.
    Commenters asserted that indefinite time frames and probable delays 
would create uncertainty and a longer process that would harm 
survivors' well-being, safety, and education, and subject them to 
unreasonable physical, mental, time, and cost demands. Some felt that 
the proposal would: Deny due process; exacerbate survivors' emotional 
distress; heighten the chances survivors would drop their cases or drop 
out of school as investigations drag on; increase risks of self-harm or 
suicide as delays might take too long for schools to provide prompt 
supports; prolong the period of survivors' exposure to their attackers; 
and add costs for counseling services or medical assistance, which 
would especially burden low-income students. Other commenters 
emphasized their belief that the indefinite time frames and delays 
would harm the mental health and education of both complainants and 
respondents, by adding uncertainty and stress for lengthy periods 
without resolution, exoneration, or closure. Other commenters expressed 
concerns about increasing safety risks to all students by allowing a 
hostile environment to continue unchecked, and assailants to harass, 
assault, or retaliate against their victims or others during the long 
waiting period. One commenter expressed concern that the NPRM would 
permit delays even when a respondent poses a clear threat to the campus 
community.
    Some commenters contended that delays or extensions may result in: 
Information, memory, and witnesses being lost; less, lost, or corrupted 
evidence, including fewer witnesses who may no longer be available or 
on campus (for example, students or short-term staff); and parties who 
have left school or graduated impairing schools from investigating or 
resolving concerns. Other commenters believed that a lengthier process 
and delays would: Signal that schools do not care about the safety or 
education of victims; make it more likely that a victim will be 
identified or lose confidentiality; force survivors to rely on 
supportive measures for longer than they may be adequate or effective; 
allow a respondent's refusal to cooperate to

[[Page 30269]]

delay a case indefinitely; permit recipients to place respondents on 
administrative leave to further delay an investigation; and 
particularly harm schools' short-term staff or contractors. A few 
commenters asserted that delays have increased in resolving Title IX 
cases since the Department withdrew the 2011 Dear Colleague Letter, and 
at least one commenter expressed concern that the Department failed to 
offer data that a 60-day time frame had compromised accuracy and 
fairness.
    Discussion: The Department disagrees that this provision allows 
recipients to conduct grievance processes without specified time 
frames, or allows indefinite delays. This provision specifically 
requires a recipient's grievance process to include reasonably prompt 
time frames; thus, a recipient must resolve each formal complaint of 
sexual harassment according to the time frames the recipient has 
committed to in its grievance process. Any delays or extensions of the 
recipient's designated time frames must be ``temporary'' and 
``limited'' and ``for good cause'' and the recipient must notify the 
parties of the reason for any such short-term delay or extension. This 
provision thus does not allow for open-ended or indefinite grievance 
processes.
    Under existing regulations at 34 CFR 106.8(b), in effect since 
1975, recipients have been required to ``adopt and publish grievance 
procedures providing for prompt and equitable resolution of student and 
employee complaints alleging'' sex discrimination. The final 
regulations require more of recipients than do existing regulations, 
because Sec.  106.45(b)(1)(v) requires recipients to include 
``reasonably prompt time frames'' in the recipient's grievance process, 
rather than simply ``providing for prompt'' resolution. Further, the 
final regulations specify that the time frames designated by the 
recipient must account for conclusion of the entire grievance process, 
including appeals and any informal resolutions processes. Thus, no 
avenue for handling a formal complaint of sexual harassment is subject 
to an open-ended time frame.
    Any time frame included by the recipient must be ``reasonably 
prompt,'' where the reasonableness of the time frame is evaluated in 
the context of the recipient's operation of an education program or 
activity. The Department believes that conclusion of the grievance 
process must be reasonably prompt, because students (or employees) 
should not have to wait longer than necessary to know the resolution of 
a formal complaint of sexual harassment; any grievance process is 
difficult for both parties, and participating in such a process likely 
detracts from students' ability to focus on participating in the 
recipient's education program or activity. Furthermore, victims of 
sexual harassment are entitled to remedies to restore or preserve equal 
access to education, and while supportive measures should be 
implemented as appropriate designed to achieve the same ends while a 
grievance process is pending, remedies after a respondent is found 
responsible may consist of measures not permissible as supportive 
measures. Thus, prompt resolution of a formal complaint of sexual 
harassment is necessary to further Title IX's non-discrimination 
mandate. At the same time, grievance processes must be fair and lead to 
reliable outcomes, so that sexual harassment in a recipient's education 
program or activity is accurately identified and remedied. The final 
regulations prescribe procedures and protections throughout the Sec.  
106.45 grievance process that the Department has concluded are 
necessary to ensure fairness and accuracy. The Department believes that 
each recipient is in the best position to balance promptness with 
fairness and accuracy based on the recipient's unique attributes and 
the recipient's experience with its own student disciplinary 
proceedings, and thus requires recipients to include ``reasonably 
prompt time frames'' for conclusion of a grievance process that 
complies with these final regulations.
    The Department acknowledges that withdrawn Department guidance 
referred to a 60-day time frame for sexual harassment complaints. For 
recipients who determine that 60 days represents a reasonable time 
frame under which that recipient can conclude a grievance process that 
complies with Sec.  106.45, a recipient has discretion to include that 
time frame under the final regulations. For recipients who determine 
that a shorter or longer period of time represents the time frame under 
which the recipient can conclude a grievance process, the recipient has 
discretion to include that time frame. The Department emphasizes that 
what a recipient selects as a ``reasonable'' time frame is judged in 
the context of the recipient's obligation to provide students and 
employees with education programs and activities free from sex 
discrimination, so that the recipient's selection of time frames must 
reflect the goal of resolving a grievance process as quickly as 
possible while complying with the procedures set forth in Sec.  106.45 
that aim to ensure fairness and accuracy. Because the final regulations 
allow short-term delays and extensions for good cause, recipients need 
not base designated time frames on, for example, the most complex, 
time-consuming investigation that a formal complaint of sexual 
harassment might present. Rather, the recipient may select time frames 
under which the recipient is confident it can conclude the grievance 
process in most situations, knowing that case-specific complexities may 
be accounted for with factually justified short-term delays and 
extensions.
    Commenters correctly noted that this provision allows different 
recipients to select different designated time frames and thus a 
grievance process may take longer at one school than at another. The 
Department believes that each recipient's commitment to a designated, 
reasonable time frame known to its students and employees,\1100\ where 
each recipient has determined what time frame to designate by 
considering its own unique educational community and operations, is 
more effective than imposing a fixed time frame across all recipients 
because it results in each recipient being held accountable for 
complying with time frames the recipient has selected (and made known 
to its educational community), while ensuring that all recipients 
select time frames that are reasonably prompt.
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    \1100\ Section 106.45(b)(1)(v) (requiring a recipient's 
grievance process to designate reasonably prompt time frames); Sec.  
106.8 (requiring recipients to notify students and employees (and 
others) of its non-discrimination policy and its grievance process 
for resolution of formal complaints of sexual harassment).
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    The non-exhaustive list in Sec.  106.45(b)(1)(v) of factors that 
may constitute good cause for short-term delays or extensions of the 
recipient's designated time frames relate to the fundamental fairness 
of the proceedings. Delays caused solely by administrative needs, for 
example, would be insufficient to satisfy this standard.\1101\ 
Furthermore, even where good cause exists, the final regulations make 
clear that recipients may only delay the grievance process on a 
temporary basis for a limited time. A respondent (or other party, 
advisor, or witness) would not be able to indefinitely delay a Title IX 
proceeding by refusing to cooperate. While recipients must attempt to 
accommodate the schedules of parties and witnesses throughout the 
grievance

[[Page 30270]]

process in order to provide parties with a meaningful opportunity to 
exercise the rights granted to parties under these final regulations, 
it is the recipient's obligation to meet its own designated time 
frames, and the final regulations provide that a grievance process can 
proceed to conclusion even in the absence of a party or witness.
---------------------------------------------------------------------------

    \1101\ The Department notes that temporary delay of a hearing 
caused by a recipient's need to provide an advisor to conduct cross-
examination on behalf of a party at a hearing as required under 
Sec.  106.45(b)(6)(i) may constitute good cause rather than mere 
administrative convenience, although a recipient aware of that 
potential obligation ought to take affirmative steps to ascertain 
whether a party will require an advisor provided by the recipient or 
not, in advance of the hearing, so as not to delay the proceedings.
---------------------------------------------------------------------------

    The Department understands commenters' concerns that the longer a 
grievance process is pending, the more risk there is of loss of 
information, evidence, and availability of witnesses. These concerns 
are addressed through requiring that a grievance process is concluded 
within a ``reasonably prompt'' time frame, yet in a manner that applies 
procedures designed to ensure fairness and accuracy. Administrative 
leave under Sec.  106.44(d) of the final regulations would not preclude 
an investigation from proceeding; regardless of whether a party has 
been voluntarily or involuntarily separated from the recipient's 
campus, the recipient can provide for the party to return to 
participate in the grievance process, including with safety measures in 
place for the other parties and witnesses. Under Sec.  106.45(b)(6)(i) 
a postsecondary institution has discretion to hold a live hearing 
virtually, or to allow any participant to participate remotely, using 
technology. Where a party refuses to participate, the recipient may 
still proceed with the grievance process (though the recipient must 
still send to a party who has chosen not to participate notices 
required under Sec.  106.45; for instance, a written notice of the 
date, time, and location of a live hearing).
    The Department disagrees that Sec.  106.45(b)(1)(v) will jeopardize 
the safety of complainants or the educational environment, or that 
complainants will feel deterred from filing formal complainants because 
the grievance process might drag on indefinitely. As noted above, 
supportive measures designed to protect safety and deter sexual 
harassment are available during the pendency of the grievance 
process.\1102\ Furthermore, under Sec.  106.44(c) recipients may remove 
a respondent on an emergency basis without awaiting conclusion of a 
grievance process. As also noted above, the final regulations do not 
permit any recipient's grievance process to go on indefinitely.
---------------------------------------------------------------------------

    \1102\ Section 106.30 (defining ``supportive measures''); Sec.  
106.44(a) (requiring recipients to offer supportive measures to 
complainants, with or without the filing of a formal complaint).
---------------------------------------------------------------------------

    With respect to a commenter's assertion that the Department did not 
provide data to show that the 60-day time frame has compromised 
accuracy and fairness, commenters on behalf of complainants and 
respondents have noted that the grievance process often takes too long, 
which may indicate that a 60-day time frame was not a reasonable 
expectation for recipients to conclude a fair process, and some 
comments on behalf of recipients expressed that many of the cases that 
go through a Title IX proceeding present complex facts that require 
more than 60 days for a recipient to conclude a fair process. For 
recipients who determine that 60 days (or less) is a reasonable time 
frame under which to conclude a fair process, recipients may designate 
such a time frame as part of their Sec.  106.45 grievance process.
    Changes: To ensure that reasonably prompt time frames are included 
for every stage of a grievance process, we have revised Sec.  
106.45(b)(1)(v) of the final regulations to apply the reasonably prompt 
time frame requirement to informal resolution processes, if recipients 
choose to offer them, and we have removed the phrase ``if the recipient 
offers an appeal'' because under the final regulations, Sec.  
106.45(b)(8), appeals are mandatory, not optional.
Effects on Recipients
    Comments: Other commenters expressed opposition to Sec.  
106.45(b)(1)(v) because they believed it would weaken schools' 
accountability and incentives for prioritizing sexual harassment 
complaints and would increase the chances that reports are brushed 
under the rug or not promptly and appropriately handled. Some 
commenters noted concerns that the provision is too vague to be clear, 
effective, and enforceable, and would give schools too much leeway to 
decide what is reasonably prompt. Other commenters expressed concern 
that schools already have incentives to delay, such as to protect their 
reputations or resources, and so might drag out investigations until 
one or both parties graduate, a survivor drops the case, or until after 
a season ends or a major game is played, in cases involving athletes. A 
number of commenters called for set time frames for clearer 
expectations and accountability. One commenter felt that a set time 
frame would also leave schools less vulnerable to lawsuits or 
complaints.
    Discussion: The Department does not believe that this provision 
perversely incentivizes recipients to sweep allegations of sexual 
harassment under the rug, gives recipients the freedom to simply 
indefinitely delay proceedings against the interests of fairness and 
justice, or increases the risk of litigation against recipients. The 
Department believes that Sec.  106.45(b)(1)(v) strikes an appropriate 
balance between imposing clear constraints on recipients in the 
interests of achieving Title IX's purpose, and ensuring they have 
adequate flexibility and discretion to select reasonably prompt time 
frames in a manner that each recipient can apply within its own unique 
educational environment. We also believe that moving away from a strict 
timeline that does not permit short-term extensions will help to 
address pitfalls and implementation problems that commenters have 
recounted in recipients' Title IX proceedings under the previous 
guidance, where some recipients felt pressure to resolve their 
grievance processes within 60 days regardless of the circumstances of 
the situation. The Department believes that recipients are in the best 
position to balance the interests of promptness, and fairness and 
accuracy, within the confines of such a decision resulting in 
``reasonably prompt'' conclusion of grievance processes. This provision 
does not permit a recipient to conduct a grievance process without a 
``set'' time frame; to the contrary, this provision requires a 
recipient to designate and include in its grievance process what its 
set time frame will be, for each phase of the grievance process 
(including appeals and any informal resolution process). Permitting 
recipients to set their own reasonably prompt time frames increases the 
likelihood that recipients will meet the time frames they have 
designated and thereby more often meet the expectations of students and 
employees as to how long a recipient's grievance process will take. 
Requiring recipients to notify the parties whenever the recipient 
applies a short-term delay or extension will further promote 
predictability and transparency of recipients' grievance process. 
Prescribing that any delay or extension must be for good cause, and 
must be temporary and limited in duration, ensures that no grievance 
process is open-ended and that parties receive a reasonably prompt 
resolution of each formal complaint.
    Changes: None.
Concerns Regarding Concurrent Law Enforcement Activity
    Comments: Some commenters opposed to this provision emphasized 
concerns about permitting delay for concurrent ongoing criminal 
investigations. Commenters asserted

[[Page 30271]]

that criminal investigations can and often do take months or years 
because of rape kit backlogs or lengthy DNA analyses, and expressed 
concern about allowing schools to delay action for unspecified and 
lengthy periods. These commenters felt this would force students to 
wait months or longer for resolution as they suffer serious emotional 
and academic harm when they need timely responses and support to 
continue in school and to heal from their trauma. Some commenters felt 
that it would deny due process in school Title IX proceedings, ignore 
schools' independent Title IX obligations to remedy sex-based 
harassment, and allow perpetrators to evade responsibility or 
consequences or to perpetrate again. A number of commenters were 
concerned that schools delaying or suspending investigations at the 
request of law enforcement or prosecutors creates a safety risk to the 
survivor and to other students, by allowing assailants to harass or 
assault survivors or others during the waiting period. Commenters also 
asserted that Title IX and criminal justice proceedings have different 
purposes, considerations, rules of evidence, burdens of proof, and 
outcomes, and felt as a result that their determinations are separate 
and independent from each other. Some of these commenters also argued 
that schools should prioritize and not delay a complainant's 
educational access and can provide supportive measures that are not 
available from the police.
    A number of commenters emphasized concerns about problematic 
incentives and consequences that they believed would result from 
permitting delays for concurrent ongoing criminal investigations. For 
example, some commenters felt that such a provision would incentivize 
survivors not to report to law enforcement, since it would delay 
resolution of their Title IX case, thereby increasing safety risks to 
both survivors and school communities. Other commenters believed this 
provision would force survivors who pursue a police investigation to 
wait a long time for it to end before receiving accommodations from 
their school or to drop their criminal case to get measures only 
schools can provide. At least one commenter expressed concern that 
students would be forced to bring civil cases to protect themselves 
during a criminal investigation. Many others asserted that it would 
force elementary and secondary school students to wait months or even 
longer for any resolution to their complaints as most school employees 
are legally required to report child sexual abuse to the police as 
mandatory reporters. A number of these commenters expressed concern 
that this might impede elementary and secondary schools from 
implementing critical safety measures for child victims until a 
criminal investigation is completed.
    Discussion: We acknowledge the concerns raised by some commenters 
specifically relating to recipients' flexibility under Sec.  
106.45(b)(1)(v) to temporarily delay the grievance process due to 
concurrent law enforcement activity. The Department acknowledges that 
the criminal justice system and the Title IX grievance process serve 
distinct purposes. However, the two systems sometimes overlap with 
respect to allegations of conduct that constitutes sex discrimination 
under Title IX and criminal offenses under State or other laws. By 
acknowledging that concurrent law enforcement activity may constitute 
good cause for short-term delays or extensions of a recipient's 
designated time frames, this provision helps recipients navigate 
situations where a recipient is expected to meet its Title IX 
obligations while intersecting with criminal investigations that 
involve the same facts and parties. For example, if a concurrent law 
enforcement investigation uncovers evidence that the police plan to 
release on a specific time frame and that evidence would likely be 
material to the recipient's determination regarding responsibility, 
then the recipient may have good cause for a temporary delay or limited 
extension of its grievance process in order to allow that evidence to 
be included as part of the Title IX investigation. Because the final 
regulations only permit ``temporary'' delays or ``limited'' extensions 
of time frames even for good cause such as concurrent law enforcement 
activity, this provision does not result in protracted or open-ended 
investigations in situations where law enforcement's evidence 
collection (e.g., processing rape kits) occurs over a time period that 
extends more than briefly beyond the recipient's designated time 
frames.\1103\
---------------------------------------------------------------------------

    \1103\ E.g., Williams v. Bd. of Regents of Univ. Sys. of Ga., 
477 F.3d 1282\,\ 1297 (11th Cir. 2007) (``[T]he pending criminal 
charges did not affect [the university's] ability to institute its 
own procedures'' and did not justify university waiting 11 months 
for outcome of the criminal matter before finishing its own 
investigation and conducting its own disciplinary proceeding against 
sexual misconduct respondents).
---------------------------------------------------------------------------

    In response to commenters concerned that concurrent law enforcement 
activity is prevalent especially in sexual misconduct situations in 
elementary and secondary schools (where mandatory child abuse reporting 
laws often require reporting sexual misconduct to law enforcement), 
Sec.  106.45(b)(1)(v) benefits recipients and young victims in such 
situations by allowing circumstance-driven flexibility for schools and 
law enforcement to coordinate efforts so that sexual abuse against 
children is effectively addressed both in terms of the purposes of the 
criminal justice system and Title IX's non-discrimination mandate. 
While a grievance process is pending, recipients may (and must, if 
refusing to do so is clearly unreasonable under the circumstances) 
implement supportive measures designed to ensure a complainant's equal 
access to education, protect the safety of parties, and deter sexual 
harassment.
    Changes: None.
Consistency With Other Federal Law
    Comments: Some commenters raised concerns that allowing temporary 
delays or limited extensions conflicts with Title IX and Clery Act 
requirements that schools provide ``prompt'' resolution of complaints. 
Similarly, some commenters felt that permitting extensions for language 
assistance or disability accommodations is inconsistent with statutory 
obligations to provide these in a timely manner under Title VI, the 
Equal Educational Opportunities Act of 1974 (``EEOA''), ADA, and 
Section 504. Commenters also expressed concerns that the final 
regulations would permit delays for far longer than is permitted of 
employers under Title VII.
    Discussion: Section 106.45(b)(1)(v) requires recipients to have 
good cause for any short-term delays or extensions, with written notice 
to the parties and an explanation for the delay or extension. Because 
the overall time frame must be reasonably prompt, and any delay or 
extension must be temporary or limited, Sec.  106.45(b)(1)(v) poses no 
conflict with the Clery Act or other laws that require ``prompt'' 
resolution of processes designed to redress sexual harassment or sex 
offenses.\1104\ Neither does application of short-term delays or 
extensions violate the ``promptness'' requirement that Title IX 
regulations have required since 1975; under the final regulations the 
grievance process still must be concluded in a ``reasonably prompt'' 
time frame and any delay or extension, even for good cause, may only be 
brief in length.
---------------------------------------------------------------------------

    \1104\ For further discussion see the ``Clery Act'' subsection 
of the ``Miscellaneous'' section of this preamble.
---------------------------------------------------------------------------

    Recipients must still satisfy their legal obligation to provide 
timely auxiliary

[[Page 30272]]

aids and services and reasonable accommodations under the ADA, Section 
504, and Title VI, and should reasonably consider other services such 
as meaningful access to language assistance. With respect to the EEOA, 
Title VII, or other laws that may impose time frames on the same 
grievance process that recipients must apply under Sec.  106.45, these 
final regulations permit a recipient to apply short-term delays or 
extensions for good cause. These final regulations do not require a 
recipient to apply short-term delays or extensions, and thus if a 
recipient is precluded by another law from extending a time frame the 
recipient is not required to do so under these final regulations.
    Changes: None.
Alternative Proposals
    Comments: A number of commenters suggested alternative approaches 
to address their concerns about the proposed time frames. Commenters 
also suggested other approaches such as: Eliminating any time frame 
requirement for recipients; barring delays due to an ongoing criminal 
investigation; prohibiting extensions for refusal to cooperate, lack of 
witnesses, or the need for language assistance or accommodation of 
disabilities; setting a time limit for law enforcement delays that is 
brief, such as three to ten days; setting a time limit for temporary 
delays and allowing delays for concurrent law enforcement activity only 
if requested by external municipal entities to gather evidence and for 
not more than ten days except when specifically requested and 
justified; and narrowing delay for law enforcement activity to only 
when absolutely necessary like when a school cannot proceed without 
evidence in law enforcement's exclusive domain (for example, a DNA 
sample to identify an unknown assailant). Other suggestions raised by 
commenters included: Requiring supportive measures while criminal and 
school investigations are ongoing; and ensuring schools and criminal 
justice agencies set protocols for concurrent investigations that are 
responsive to the complexity of these situations and to each entity's 
duties and timelines.
    Discussion: The Department believes that recipients are in the best 
position to designate ``reasonably prompt time frames'' that balance 
the need to conclude Title IX grievance processes promptly with 
providing the fairness and accuracy that these final regulations 
require. For reasons discussed above, prompt resolution is important to 
serve the purpose of Title IX's non-discrimination mandate, and the 
Department thus declines to remove the requirement that recipients 
conclude grievance processes promptly. For reasons discussed above, the 
Department believes that categorically prohibiting delays based on 
concurrent law enforcement investigations would deprive recipients of 
flexibility to work effectively and appropriately with law enforcement 
where the purpose of both the criminal justice system and the Title IX 
grievance process is to protect victims of sexual misconduct, and this 
discretion is appropriately balanced by not permitting a recipient to 
apply a delay or extension (even for good cause) that is not 
``temporary'' or ``limited.'' For similar reasons, the Department 
declines to specify a particular number of days that constitute 
``temporary'' delays or ``limited'' extensions of time frames. State 
laws that do specify such maximum delays may be complied with by 
recipients without violating these final regulations, because Sec.  
106.45(b)(1)(v) allows but does not require a recipient to implement 
short-term delays even for good cause. The Department also reiterates 
that nothing in the final regulations precludes recipients from 
offering supportive measures to one or both parties while the grievance 
process is temporarily delayed, and revised Sec.  106.44(a) obligates a 
recipient to offer supportive measures to complainants, with or without 
a grievance process pending.
    The Department declines to allow short-term delays on the basis of 
working with a concurrent law enforcement effort only where the law 
enforcement agency specifically requests that the recipient delay, or 
only where the school and law enforcement agency have a memorandum of 
understanding or similar cooperative agreement in place. Recipients' 
obligations under Title IX are independent of recipients' obligations 
to cooperate or coordinate with law enforcement with respect to 
investigations or proceedings affecting the recipient's students or 
employees. These final regulations do not attempt to govern the 
circumstances where such cooperation or coordination may be required 
under other laws, or advisable as a best practice, but Sec.  
106.45(b)(1)(v) gives recipients flexibility to address situations that 
overlap with law enforcement activities so that potential victims of 
sex offenses are better served by both systems while ensuring that a 
recipient's grievance process is not made dependent on a concurrent law 
enforcement investigation, and thus a Title IX grievance process will 
still be concluded promptly even if the law enforcement matter is still 
ongoing.
    Changes: None.
Clarification Requests
    Comments: Commenters requested clarifications of certain terms used 
in this provision, including the terms reasonably prompt, absence of 
the parties or witnesses, administrative delay, limited extensions, and 
temporary delay. Commenters also requested clarification as to what 
does or does not constitute good cause for delay, such as with respect 
to administrative needs or accommodation of disabilities, as well as 
when and for how long schools should delay for law enforcement 
activity. Some commenters asked for more clarity about the limits on 
extensions, the mechanisms to end delays when the advantages are 
outweighed by the benefits of resolution, the steps schools must take 
to protect students regardless of law enforcement activity, and what 
OCR will assess in determining if a grievance process is prompt. Other 
commenters asked for a clarification that the list of examples of good 
cause for delay are not exhaustive, and several commenters requested 
clarifying that schools can excuse complainants from participating in 
the process for study abroad or other academic programming involving a 
significant time away from campus.
    Discussion: As clarified above, the Department believes that 
recipients should retain flexibility to designate time frames that are 
reasonably prompt, and what is ``reasonable'' is a decision made in the 
context of a recipient's purpose of providing education programs or 
activities free from sex discrimination, thus requiring recipients to 
designate time frames taking into account the importance to students of 
resolving grievance processes so that students may focus their 
attention on participating in education programs or activities, and the 
reality that every academic term (e.g., an academic quarter, semester, 
trimester, etc.) is important to a student's progress toward advancing 
a grade level or completing a degree. A recipient must balance the 
foregoing realities with the need for recipients to conduct grievance 
processes fairly in a manner that reaches reliable outcomes, meeting 
the requirements of Sec.  106.45, in deciding what time frames to 
include as ``reasonably prompt'' in a recipient's grievance process for 
formal complaints of sexual harassment under Title IX.
    This provision's reference to the absence of parties or witnesses 
has its ordinary meaning, suggesting that the reasons for a party or 
witness's absence

[[Page 30273]]

is a factor in a recipient deciding whether circumstances constitute 
``good cause'' for a short-term delay or extension. With respect to 
administrative delay, we intend that concept to include delays caused 
by recipient inefficiencies or mismanagement of their own resources, 
but not necessarily circumstances outside the recipient's control 
(e.g., if technology relied on to conduct a live hearing is interrupted 
due to a power outage). We intend delay to have its ordinary meaning; a 
delay is a postponement of a deadline that would otherwise have 
applied. We appreciate the opportunity to clarify here that the 
examples of good cause listed in Sec.  106.45(b)(1)(v) of the final 
regulations are illustrative, not exhaustive. We defer to recipients' 
experience and familiarity with the cases recipients investigate to 
determine whether other factual circumstances present good cause that 
could justify extending the time frame. Further, we wish to emphasize 
that any delay or extension contemplated by Sec.  106.45(b)(1)(v) must 
be on a limited and temporary basis, regardless of the good cause that 
exists. The Department trusts recipients to make sound determinations 
regarding the length of a brief delay; we believe recipients are in the 
best position to make these decisions as they may be closer to the 
parties and have a deeper understanding of how to balance the interests 
of promptness, fairness to the parties, and accuracy of adjudications 
in each case. As noted above, a recipient's response to sexual 
harassment must include offering supportive measures to a complainant 
(with or without a grievance process pending). While a recipient is not 
obligated in every situation to offer supportive measures to a 
respondent, if refusing to offer supportive measures to a respondent 
(for instance, where a live hearing date that falls on a respondent's 
final examination date results in a respondent needing to reschedule 
the examination) would be clearly unreasonable in light of the known 
circumstances such a refusal could also violate these final 
regulations.
    Changes: None.
Section 106.45(b)(1)(vi) Describe Range or List of Possible Sanctions 
and Remedies
    Comments: Several commenters support this provision because it 
furthers due process. One commenter supported Sec.  106.45(b)(1)(vi) 
because it will increase parties' understanding of the proceedings and 
decrease the possibility of arbitrary, disproportionate, or 
inconsistent sanctions. A group of concerned attorneys and educators 
commented that consistent standards, such as this provision, are 
necessary to ensure a fair process will benefit everyone. Another 
commenter expressed support for Sec.  106.45(b)(1)(vi) because it 
promotes parity between parties; requiring recipients' grievance 
procedures to contain significant specificity is key because 
individuals must have a clear understanding of the procedures and 
possible penalties for wrongdoing. One commenter agreed that full and 
proper notice to all students, faculty, and other personnel is critical 
to the effective implementation of Title IX and therefore consistent 
with due process, so a recipient's grievance procedures must describe 
the range of possible sanctions and remedies that the recipient may 
implement following any determination of responsibility.
    Discussion: The Department agrees with commenters that it is 
important to provide to all students, faculty, and other personnel a 
clear understanding of the possible remedies and sanctions under a 
recipient's Title IX grievance process. The Department agrees with 
commenters who asserted that Sec.  106.45(b)(1)(vi) furthers due 
process protections for both parties and lessens the likelihood of 
ineffective remedies and arbitrary, disproportionate, or inconsistent 
disciplinary sanctions. For consistency of terminology, the final 
regulations use ``disciplinary sanctions'' rather than ``sanctions'' 
including in this provision, to avoid ambiguity as to whether a 
``sanction'' differed from a ``disciplinary sanction.'' Throughout the 
NPRM and these final regulations, where reference is made to 
disciplinary sanctions, the provisions are calling attention to the 
disciplinary nature of the action taken by the recipient, and the 
phrase ``disciplinary sanctions'' is thus more specific and accurate 
than the word ``sanctions.'' Because the intent of this provision is to 
provide clarity for recipients and their educational communities, we 
have also revised this provision to state that the recipient's 
grievance process must describe ``or list'' the range of disciplinary 
sanctions, to clarify that complying with this provision also complies 
with the Clery Act.\1105\
---------------------------------------------------------------------------

    \1105\ For further discussion see the ``Clery Act'' subsection 
of the ``Miscellaneous'' section of this preamble.
---------------------------------------------------------------------------

    Changes: We have revised the final regulations to use the phrase 
``disciplinary sanctions'' consistently, replacing ``sanctions'' with 
``disciplinary sanctions'' in provisions such as Sec.  
106.45(b)(1)(vi). We have also revised Sec.  106.45(b)(1)(vi) to state 
that a recipient may describe the range of possible sanctions and 
remedies or list the possible disciplinary sanctions and remedies that 
the recipient may implement following any determination of 
responsibility.
    Comments: A number of commenters opposed Sec.  106.45(b)(1)(vi). 
One commenter expressed concern that this provision is too restrictive 
because disciplinary actions are often implemented in a number of 
creative ways that are specific to each individual case. One commenter 
expressed concern that the proposed regulations, including this 
provision, are unconstitutional, since the decisions to be made by the 
``decision-maker'' determining responsibility and sanctions against a 
student are those that must be made by the judicial branch of 
government acting under Article III of the U.S. Constitution, and not 
by the executive branch, or by the recipient.
    Several commenters expressed concern that recipients should not be 
required to describe a range of sanctions. One commenter expressed 
concern that each type of employee at their university has their own 
grievance procedures and penalties and appeals process, and the 
university does not have the expertise to know in certain circumstances 
how a faculty member's tenure would be implicated. One university 
commented that notice of investigation letters may exacerbate tense 
situations because the practice will be to describe every possible 
sanction, including termination, even when the possibility of some 
sanctions is remote or would contravene good practice.
    Several commenters proposed modifications to Sec.  
106.45(b)(1)(vi). One commenter urged the Department to offer examples 
of the types of remedies it would find equitable, and the types of 
sanctions it would find acceptable, asserting that at a minimum, the 
Department should make clear that it defers to the educational judgment 
of schools to take into consideration the myriad factors impacting the 
elementary and secondary school environment, from age to developmental 
level and beyond, in implementing the ``equitability'' requirement. One 
commenter suggested the language be altered due to the importance of 
ensuring that any sanction imposed be proportional to the offense 
committed, and noted that this principle reflects our societal 
understanding of punishment, as reflected in the U.S. Constitution's 
prohibition on ``cruel and unusual punishment.'' The commenter argued 
that the proposed language would allow

[[Page 30274]]

minor violations of university policy to be punished in extreme, 
disproportionate ways and would also allow for different violations to 
be punished in the same manner as long as the punishment had been 
described in the grievance process. One commenter suggested that this 
provision should be altered to clarify that collective punishment is 
unacceptable to the extent that it punishes individuals or 
organizations that did not perpetrate, or were not found responsible 
for perpetrating, the offense in question.
    One commenter suggested that recipients should be required to list 
any factors that will or will not be considered in issuing a sanction. 
One commenter suggested the Department should make clear how specific 
the range of sanctions must be and that recipients be permitted to 
state, for example, ``suspension of varying lengths'' rather than 
having to itemize every possible length of a suspension.
    Discussion: The Department proposed Sec.  106.45(b)(1)(vi) to 
provide consistency, predictability, and transparency as to the range 
of consequences (both in terms of remedies for complainants, and 
disciplinary sanctions for respondents) students can expect from the 
outcome of a grievance process. A transparent grievance process 
benefits all parties because they are more likely to trust in, engage 
with, and rely upon the process as legitimate. After a respondent has 
been found responsible for sexual harassment, any disciplinary sanction 
decision rests within the discretion of the recipient, and the 
recipient must provide remedies to the complainant designed to restore 
or preserve the complainant's educational access, as provided for in 
Sec.  106.45(b)(1)(i). Both parties should be advised of the potential 
range of remedies and disciplinary sanctions.
    The Department disagrees that the decision-maker imposing 
disciplinary sanctions must be a judge appointed under Article III of 
the Constitution. As discussed in the ``Adoption and Adaption of the 
Supreme Court's Framework to Address Sexual Harassment'' section of 
this preamble, Title IX is a Federal civil rights law, and the Supreme 
Court has judicially implied a private right of action under Title IX, 
and in private litigation in Federal courts a Federal judge may impose 
remedies to effectuate the purposes of Title IX. However, the Title IX 
statute expressly authorizes Federal agencies, such as the Department, 
to administratively enforce Title IX and require recipients to take 
remedial action following violations of Title IX or regulations 
implementing Title IX. Such administrative enforcement of Title IX does 
not require the participation or direction of an Article III Federal 
judge. In these final regulations, the Department has determined that 
the Department's interest in effectuating Title IX's non-discrimination 
mandate necessitates setting forth a predictable, fair grievance 
process for resolving allegations of Title IX sexual harassment and 
requiring recipients to provide remedies to complainants if a 
respondent is found responsible. The Department has determined that 
administrative enforcement of Title IX does not require overriding 
recipients' discretion to make decisions regarding disciplinary 
sanctions, and thus these final regulations focus on ensuring that 
respondents are not punished or disciplined unless a fair process has 
determined responsibility, but respects the discretion of State and 
local educators to make disciplinary decisions pursuant to a 
recipient's own code of conduct.
    The Department acknowledges commenters' concerns that each type of 
employee at their university has their own grievance procedures, 
penalties, and appeals process as well as concerns about whether tenure 
may be implicated, but disagrees that this presents a problem under 
Sec.  106.45(b)(1)(vi). The Department believes that simply providing a 
range of sanctions to respondents is feasible despite the reality of 
the different grievance procedures and penalties and appeals that may 
apply depending on whether a recipient's employee is tenured, and the 
final regulations permit the recipient to either list the possible 
disciplinary sanctions or describe the range of possible disciplinary 
sanctions. Describing a range of disciplinary sanctions should not be 
difficult for recipients, particularly regarding a maximum sanction.
    Nothing in the final regulations prevents the recipient from 
communicating that the described range is required by Federal law under 
Title IX and that the published range is purely for purposes of notice 
as to the possibility of a range of remedies and disciplinary sanctions 
and does not reflect the probability that any particular outcome will 
occur.
    The Department does not believe offering examples of types of 
appropriate disciplinary sanctions is necessary because as discussed 
above, whether and what type of sanctions are imposed is a decision 
left to the sound discretion of recipients. Similarly, these final 
regulations do not impose a standard of proportionality on disciplinary 
sanctions. Some commenters raised concerns that disciplinary sanctions 
against respondents found responsible are too severe, not severe 
enough, or that student discipline should be an educational process 
rather than a punitive process. These final regulations permit 
recipients to evaluate such considerations and make disciplinary 
decisions that each recipient believes are in the best interest of the 
recipient's educational environment. Because the recipient's grievance 
process must describe the range, or list the possible, disciplinary 
sanctions and remedies, a recipient's students and employees will 
understand whether the recipient has, for example, decided that certain 
disciplinary sanctions or certain remedies are not available following 
a grievance process. This clarity gives potential complainants a sense 
of what a recipient intends provide in terms of remedies and potential 
respondents a sense of what a recipient is prepared to impose in terms 
of disciplinary sanctions, with respect to victimization and 
perpetration of Title IX sexual harassment.
    Because remedies are required under the final regulations, the 
Department agrees with commenters who suggested more clarity as to what 
constitute possible remedies. The final regulations revise another 
provision, Sec.  106.45(b)(1)(i), to specify that remedies designed to 
restore or preserve equal access to the recipient's education program 
or activity may include the same individualized services described in 
Sec.  106.30 ``supportive measures,'' but that remedies need not be 
non-disciplinary or non-punitive and need not avoid burdening the 
respondent. The Department believes this level of specificity is 
sufficient to emphasize that remedies aim to ensure a complainant's 
equal educational access. As discussed in the ``Adoption and Adaption 
of the Supreme Court's Framework to Address Sexual Harassment'' section 
of this preamble, a recipient's choice of remedies will be evaluated 
under the deliberate indifference standard.
    With respect to a recipient punishing an organization or group of 
individuals following a member of the organization or group being found 
responsible for sexual harassment, these final regulations require a 
recipient to respond to sexual harassment incidents in specific ways, 
including by investigating and adjudicating allegations of sexual 
harassment made in a formal complaint. The final regulations only 
contemplate adjudication of allegations against a respondent (defined 
in Sec.  106.30 as an

[[Page 30275]]

``individual,'' not a group or organization). In order for a respondent 
to face disciplinary sanctions under the final regulations, the 
respondent must be brought into the grievance process through a formal 
complaint alleging conduct that could constitute sexual harassment 
defined in Sec.  106.30.\1106\ The final regulations do not address 
sanctions by a recipient imposed against groups for non-sexual 
harassment offenses.
---------------------------------------------------------------------------

    \1106\ Emergency removal under Sec.  106.44(c) is an exception 
that allows punitive action (i.e., removal from education programs 
or activities) against a respondent without going through a 
grievance process.
---------------------------------------------------------------------------

    By describing the range, or listing the possible disciplinary 
sanctions, a recipient is notifying its community of the possible 
consequences of a determination that a respondent is responsible for 
Title IX sexual harassment; this provision is thus intended to increase 
the transparency and predictability of the grievance process, but it is 
not intended to unnecessarily restrict a recipient's ability to tailor 
disciplinary sanctions to address specific situations. We therefore 
decline to state that the range or list provided by the recipient under 
this provision is exclusive. For similar reasons, we decline to require 
a recipient to state what factors might be considered with respect to 
decisions regarding disciplinary sanctions or to impose more detailed 
requirements in this provision than the requirement to describe a 
range, or list the possible disciplinary sanctions. As described above, 
in response to commenters' desire for more specificity in this 
provision, the final regulations revise this provision to permit a 
recipient to either ``describe the range'' or ``list the possible'' 
disciplinary sanctions and remedies; this change gives recipients the 
option to comply with this provision in a more specific manner (i.e., 
by listing possible disciplinary sanctions and remedies rather than by 
describing a range).
    Changes: The final regulations revise Sec.  106.45(b)(1)(vi) to 
give recipients the option to either ``describe the range of'' or 
``list the possible'' disciplinary sanctions and remedies.
Section 106.45(b)(1)(vii) Describe Standard of Evidence
    Comments: A number of commenters expressed support for Sec.  
106.45(b)(1)(vii). One commenter stated that fully informing the 
parties of the standard of evidence as part of the recipients' policies 
is very important in Title IX procedures, since the respondent and the 
complainant must understand how such proceedings will unfold. Other 
commenters expressed support because a consistent standard of evidence 
is necessary to ensure a fair process. One commenter expressed support 
because this is a common-sense provision. One commenter supported Sec.  
106.45(b)(1)(vii) because it will increase parties' understanding of 
the proceedings and decrease the possibility of arbitrary, 
disproportionate, or inconsistent decisions.
    Discussion: The Department agrees that fully informing the parties 
of the standard of evidence that a recipient has determined most 
appropriate for reaching conclusions about Title IX sexual harassment, 
by describing that standard of evidence in the recipient's grievance 
process, is an important element of a fair process. The Department 
agrees that a standard of evidence selected by each recipient and 
applied consistently to formal complaints of sexual harassment is 
necessary to ensure a fair process.\1107\
---------------------------------------------------------------------------

    \1107\ E.g., Lavinia M. Weizel, The Process That Is Due: 
Preponderance of The Evidence as The Standard of Proof For 
University Adjudications of Student-On-Student Sexual Assault 
Complaints, 53 Boston College L. Rev. 1613, 1631 (2012) (explaining 
that selecting a standard of evidence (also called a standard of 
proof) ``is important for theoretical and practical reasons'' 
including that the ``standard of proof imposed in a particular class 
of cases reflects the value society places on the rights that are in 
jeopardy'' because ``standards of proof signal to the fact-finder 
the level of certainty society requires before the state may act to 
impair an individual's rights'' and whichever standard is selected, 
``articulating a specific standard of proof for a particular type of 
hearing . . . helps to ensure the meaningfulness of the hearing's 
other procedural safeguards'') (internal citations omitted).
---------------------------------------------------------------------------

    In response to commenters who noted, under comments directed to 
Sec.  106.45(b)(7), that the NPRM lacked clarity as to whether a 
recipient's choice between the preponderance of the evidence standard 
and the clear and convincing evidence standard was a choice that a 
recipient could make in each individual case, the Department revised 
language in Sec.  106.45(b)(7) and correspondingly revised language in 
Sec.  106.45(b)(1)(vii) to read: ``State whether the standard of 
evidence to be used to determine responsibility is the preponderance of 
the evidence standard or the clear and convincing evidence standard, 
apply the same standard of evidence for formal complaints against 
students as for formal complaints against employees, including faculty, 
and apply the same standard of evidence to all formal complaints of 
sexual harassment[.]'' These revisions clarify that the standard of 
evidence must be selected, stated, and applied consistently by each 
recipient to all formal complaints of sexual harassment.
    Changes: The final regulations revise Sec.  106.45(b)(1)(vii) to 
clearly require a recipient's grievance process to state up front which 
of the two permissible standards of evidence the recipient has selected 
and then to apply that selected standard to all formal complaints of 
sexual harassment, including those against employees.
Section 106.45(b)(1)(viii) Procedures and Bases for Appeal
    Comments: Some commenters expressed general support for Sec.  
106.45(b)(1)(viii), arguing that requiring recipients to specify appeal 
procedures will promote a fair process that will benefit everyone and 
ensure parity between the parties. Two commenters recommended that the 
Department add specific language regarding when a decision may be 
appealed. One commenter suggested that the Department clarify that the 
parties are allowed to raise a procedural problem at the hearing 
without waiting to file an appeal over the procedural breach. Another 
commenter suggested that the Department add language describing the 
specific instances in which a complainant or respondent is permitted to 
appeal. The commenter stated that in instances where the recipient 
determines the respondent to be responsible for the alleged conduct and 
implements a remedy designed to restore a complainant's equal access to 
the recipient's education program or activity, the complainant may 
appeal the remedy as inadequate to restore the complainant's equal 
access to the recipient's education program or activity to prevent its 
reoccurrence, and address its adverse effects on the complainant and 
others who may have been adversely affected by the sexual harassment. 
The commenter further stated that in instances where the recipient 
determines the respondent to be responsible for the alleged conduct, 
the respondent can appeal the recipient's determination of 
responsibility. The commenter explained that these should be the only 
two situations in which an appeal is permitted because allowing a 
complainant to appeal a recipient's determination of non-responsibility 
subjects the respondent to administrative double jeopardy and 
contravenes the principles of basic fairness. The commenter asserted 
that this is especially troublesome for students from low-income 
families with little or no access to free legal counsel.
    Discussion: The Department appreciates the general support received 
from commenters for Sec.  106.45(b)(1)(viii), which requires 
recipients' Title IX

[[Page 30276]]

grievance process to include the permissible bases and procedures for 
complainants and respondents to appeal. The Department is persuaded by 
commenters that we should clarify the circumstances in which the 
parties may appeal, and that both parties should have equal appeal 
rights, and Sec.  106.45(b)(8) of the final regulations require 
recipients to offer appeals, equally to both parties, on at least the 
three following bases: (1) Procedural irregularity that affected the 
outcome; (2) new evidence that was not reasonably available when the 
determination of responsibility was made that could affect the outcome; 
or (3) the Title IX Coordinator, investigator, or decision-maker had a 
conflict of interest or bias that affected the outcome. Nothing in the 
final regulations precludes a party from raising the existence of 
procedural defects that occurred during the grievance process during a 
live hearing, and the final regulations ensure that whether or not a 
party has observed or objected to a procedural defect during the 
hearing, the party may still appeal on the basis of procedural 
irregularity after the determination regarding responsibility has been 
made. The Department believes that a complainant entitled to remedies 
should not need to file an appeal to challenge the recipient's 
selection of remedies; instead, we have revised Sec.  106.45(b)(7)(iv) 
to require that Title IX Coordinator is responsible for effective 
implementation of remedies. This permits a complainant to work with the 
Title IX Coordinator to select and effectively implement remedies 
designed to restore or preserve the complainant's equal access to 
education.
    Complainants and respondents have different interests in the 
outcome of a sexual harassment complaint. Complainants ``have a right, 
and are entitled to expect, that they may attend [school] without fear 
of sexual assault or harassment'' and to expect recipients to respond 
promptly to complaints.\1108\ For respondents, a ``finding of 
responsibility for a sexual offense can have a `lasting impact' on a 
student's personal life, in addition to [the student's] `educational 
and employment opportunities'[.]'' \1109\ Although these interests may 
differ, each represents high-stakes, potentially life-altering 
consequences deserving of an accurate outcome.\1110\
---------------------------------------------------------------------------

    \1108\ Doe v. Univ. Of Cincinnati, 872 F.3d 393, 403 (6th Cir. 
2017).
    \1109\ Id. at 400 (internal citations omitted).
    \1110\ Id. at 404 (recognizing that the complainant ``deserves a 
reliable, accurate outcome as much as'' the respondent).
---------------------------------------------------------------------------

    We disagree with the commenters who argued that the final 
regulations should prohibit appeals of not responsible determinations 
because of double jeopardy concerns. The Department emphasizes that the 
constitutional prohibition on double jeopardy does not apply to Title 
IX proceedings and the Department does not believe that such a 
prohibition is needed to ensure fair and accurate resolution of sexual 
harassment allegations under Title IX. Where a procedural error, newly 
discovered evidence, or conflict of interest or bias has affected the 
outcome resulting in an inaccurate determination of non-responsibility, 
the recipient's obligation to redress sexual harassment in its 
education program or activity may be hindered, but the recipient may 
correct that inaccurate outcome on appeal and thus accurately identify 
the nature of sexual harassment in its education program or activity 
and provide remedies to the victim. Further, and as discussed above, we 
believe that both respondents and complainants face potentially life-
altering consequences from the outcomes of Title IX proceedings. Both 
parties have a strong interest in accurate determinations regarding 
responsibility and it is important to protect complainants' right to 
appeal as well as respondents' right to appeal. We note that the final 
regulations do not require a party to hire an attorney for any phase of 
the grievance process, including on appeal.
    Changes: We have revised Sec.  106.45(b)(1)(viii) to remove the 
``if the recipient offers an appeal'' language because Sec.  
106.45(b)(8) of the final regulations make appeals for both parties 
mandatory, on three bases: Procedural irregularity, newly discovered 
evidence, and bias or conflict of interest on the part of the Title IX 
Coordinator, investigator, or decision-maker.
Section 106.45(b)(1)(ix) Describe Range of Supportive Measures
    Comments: Several commenters supported Sec.  106.45(b)(1)(ix) 
requiring recipients to describe the range of supportive measures 
available to complainants and respondents. Some commenters asserted 
that this requirement would promote parity between the parties and 
ensure a fair process that will benefit everyone. One commenter 
recommended that the Department encourage recipients to retain and 
maintain the names and contact information for individual groups, and 
other entities that provide support in these circumstances, including 
counselors, psychiatrists, law firms, and educational advocates, and 
make the information available to all parties. Two commenters suggested 
that the Department add language to the final regulations clarifying 
that complainants and respondents must be afforded the same level of 
advocacy and supportive care so that both parties are treated equally. 
Another commenter was concerned that the requirement would be difficult 
to meet because supportive measures are often determined on an ad hoc 
basis and vary from investigation to investigation. To address this 
concern, the commenter recommended that the Department instead require 
grievance procedures to address the availability of supportive measures 
and describe some common examples.
    Discussion: The Department agrees that requiring recipients to 
describe the range of supportive measures available to complainants and 
respondents is an important part of ensuring that the grievance process 
is transparent to all members of a recipient's educational community. 
Section 106.45(b)(1)(ix), particularly, notifies both parties of the 
kind of individualized services that may be available while a party 
navigates a grievance process, which many commenters asserted is a 
stressful and difficult process for complainants and respondents.
    The Department clarifies that this provision does not require 
equality or parity in terms of the supportive measures actually 
available to, or offered to, complainants and respondents generally, or 
to a complainant or respondent in a particular case. This provision 
must be understood in conjunction with the obligation of a recipient to 
offer supportive measures to complainants (including having the Title 
IX Coordinator engage in an interactive discussion with the complainant 
to determine appropriate supportive measures), while no such obligation 
exists with respect to respondents. By defining supportive measures to 
mean individualized services that cannot unreasonably burden either 
party, these final regulations incentivize recipients to make 
supportive measures available to respondents, but these final 
regulations require recipients to offer supportive measures to 
complainants. In revised Sec.  106.44(a), and in Sec.  106.45(b)(1)(i) 
these final regulations reinforce that equitable treatment of 
complainants and respondents means

[[Page 30277]]

providing supportive measures and remedies for complainants, and 
avoiding disciplinary action against respondents unless the recipient 
follows the Sec.  106.45 grievance process. The Department does not 
intend, and the final regulations do not require, to impose a 
requirement of equality or parity with respect to supportive measures 
provided to complainants and respondents.
    The Department declines to require recipients to disseminate to 
students the names and contact information for organizations that 
provide support in these circumstances, including counselors, 
psychiatrists, law firms, educational advocates, and so forth, or make 
such a list available to all parties, although nothing in these final 
regulations precludes a recipient from doing so. The specific resources 
available in the general community surrounding the recipient's campus 
may change frequently making it difficult for recipients to accurately 
list currently available resources. The Department believes that by 
requiring recipients to describe the range of supportive measures made 
available by a recipient as part of the recipient's grievance process, 
and defining ``supportive measures'' in Sec.  106.30 (which also 
includes an illustrative list of possible supportive measures), parties 
will be adequately advised of the types of individualized services 
available as they navigate a grievance process. A recipient may choose 
to create and distribute lists of specific resources in addition to 
complying with Sec.  106.45(b)(1)(ix).
    The Department appreciates the commenter's concern that the 
requirement would be difficult to meet because supportive measures are 
often determined on an ad hoc basis and vary from investigation to 
investigation. However, it is for this reason that the Department is 
only requiring a recipient's grievance process to describe the range of 
supportive measures available rather than a list of supportive measures 
available. One commenter requested that the Department provide examples 
of supportive measures. A non-exhaustive list of types of supportive 
measures is stated in the definition of ``supportive measures'' in 
Sec.  106.30. Recipients retain the flexibility to employ age-
appropriate methods, exercise common sense and good judgment, and take 
into account the needs of the parties involved when determining the 
type of supportive measures appropriate for a particular party in a 
particular situation, and this flexibility is not inhibited by the 
requirement to describe the range of available supportive measures in 
Sec.  106.45(b)(1)(ix).
    Changes: None.
Section 106.45(b)(1)(x) Privileged Information
    Comments: As discussed in more detail in the ``Hearings'' 
subsection of the ``Section 106.45 Recipient's Response to Formal 
Complaints'' section of this preamble, commenters inquired whether the 
Sec.  106.45 grievance process required cross-examination questions 
that call for disclosure of attorney-client privileged information to 
be allowed to be asked during a live hearing held by a postsecondary 
institution.
    Discussion: To ensure that a recipient's grievance process respects 
information protected by a legally recognized privilege (for example, 
attorney-client privilege, doctor-patient privilege, spousal privilege, 
and so forth), the Department has added a provision addressing 
protection of all privileged information during a grievance process.
    Changes: We have added new Sec.  106.45(b)(1)(x) to ensure that 
information protected by a legally recognized privilege is not used 
during a grievance process.

Written Notice of Allegations

Section 106.45(b)(2) Written Notice of Allegations
Retaliation
    Comments: Many commenters opposed Sec.  106.45(b)(2), arguing that 
respondents may retaliate against complainants if respondents are given 
notice of a formal complaint that contains the complainant's identity. 
Some commenters cited a study which found that the fear of retaliation 
by the accused or by peers is a barrier for people to report sexual 
assault.\1111\ These commenters also expressed concern that Sec.  
106.45(b)(2) does not require the recipient to assure the complainant 
that, if retaliation occurs, the recipient would take steps to correct 
the retaliatory actions. Commenters argued that such a requirement 
would affirm to complainants that they will be safeguarded by 
recipients in their complaints, and would help encourage complainants 
to come forward with reports of sexual harassment or assault. Several 
commenters argued that, because the Department provides for a warning 
to complainants against false allegations, the provision should also 
require recipients to warn respondents against retaliation. One 
commenter suggested that the provision should identify the types of 
retaliation prohibited, such as threats of civil litigation against the 
complainant for defamation, or spreading rumors intended to intimidate 
the complainant from filing a complaint. Another commenter asserted 
that the provision should notify the parties of the retaliation 
prohibition that is included in the Title IX regulation, at 34 CFR 
106.71 that currently states that the Title VI regulation at 34 CFR 
100.7(e) is incorporated by reference into the Title IX regulations. 
One commenter asked the Department to create an independent Title IX 
prohibition against retaliation to protect the complainant. Another 
commenter stated that the Clery Act requires that recipients' sexual 
misconduct policies include prohibitions of retaliation. A commenter 
cited Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) for 
the proposition that civil rights cannot be adequately protected if 
people can be punished for asserting such rights.
---------------------------------------------------------------------------

    \1111\ Commenters cited: Shelley Hymel & Susan M. Swearer: Four 
Decades of Research on School Bullying: An Introduction, 70 Am. 
Psychol. 293, 295 (May-June 2015) (youth ``are reluctant to report 
bullying, given legitimate fears of negative repercussions''); Ganga 
Vijayasiri, Reporting Sexual Harassment: The Importance of 
Organizational Culture and Trust, 25 Gender Issues 43, 53-54, 56 
(2008) (``fear of adverse career consequences, or being blamed for 
the incident are a major deterrent to reporting'' and this includes 
peer mistreatment or disapproval).
---------------------------------------------------------------------------

    Commenters argued that some allegations of sexual assault involve 
circumstances so serious that providing respondents notice of a 
complaint would place the complainant at significant risk of further--
and potentially escalating levels of--violence. Other commenters argued 
that respondents may destroy evidence or create false alibis if 
recipients give respondents detailed notice of the allegations in a 
formal complaint.
    Other commenters expressed strong support for Sec.  106.45(b)(2), 
arguing that society cannot purport to deliver justice for victims when 
extra-governmental institutions are permitted to ignore due process and 
the rule of law. Some commenters opined that only in the most 
totalitarian systems are people investigated and adjudicated without 
knowledge of the specific details of the charges before they are 
expected to present a defense. A number of commenters shared personal 
stories about respondents being interviewed multiple times by school 
officials before they were told what allegations had been made against 
them. Other commenters shared personal stories about recipients 
interviewing respondents without informing the respondent what 
precisely the

[[Page 30278]]

complainant had alleged or when or where the alleged misconduct had 
occurred, and then when the respondent expressed uncertainty in 
recalling certain details in the interview, the recipient later cited 
the respondent's uncertain memory as evidence of the respondent's 
guilt. Commenters stated that, in these instances, respondents lost 
credibility when they were unable to clearly quote facts and events 
involving unclear allegations on a moment's notice at a surprise 
interview.
    Discussion: The Department is persuaded by commenters' unease over 
a perceived lack of protection against retaliation and therefore the 
final regulations add Sec.  106.71, which prohibits any person from 
intimidating, threatening, coercing, or discriminating against any 
individual for the purpose of interfering with any right or privilege 
secured by Title IX including, among other things, making a report or 
formal complaint of sexual harassment. Recipients may communicate this 
protection against retaliation to the parties in any manner the 
recipient chooses. The Department disagrees that the warning about 
consequences for making false statements (if such a prohibition exists 
in the recipient's code of conduct) is directed only to complainants; 
such a warning is for the benefit of both parties so that if the 
recipient has chosen to make a prohibition against false statements 
part of the recipient's code of conduct, both parties are on notice 
that the Sec.  106.45 grievance process potentially implicates that 
provision of the recipient's code of conduct. Similarly, Sec.  106.71 
protects all parties (and witnesses, and other individuals) from 
retaliation for exercising rights under Title IX, and is not directed 
solely toward complainants.
    The Department understands that some complainants may fear to 
report sexual harassment or file a formal complaint alleging sexual 
harassment, because of the possibility of retaliation, and intends that 
adding Sec.  106.71 prohibiting retaliation will empower complainants 
to report and file a formal complaint, if and when the complainant 
desires to do so. Recipients are obligated to offer supportive measures 
to a complainant (with or without the filing of a formal complaint) and 
to engage the complainant in an interactive discussion regarding the 
complainant's wishes with respect to supportive measures.\1112\ 
Recipients must keep confidential the provision of supportive measures 
to the extent possible to allow implementation of the supportive 
measures.\1113\ Thus, a complainant may discuss with the Title IX 
Coordinator the type of supportive measures that may be appropriate due 
to a complainant's concerns about retaliation by the respondent (or 
others), or fears of continuing or escalating violence by the 
respondent. A recipient's decision about which supportive measures are 
offered and implemented for a complainant is judged under the 
deliberate indifference standard, which by definition takes into 
account the unique, particular circumstances faced by a complainant. 
For reasons described below in this section of the preamble, the 
Department has determined that a grievance process cannot proceed, 
consistent with due process and fundamental fairness, without the 
respondent being apprised of the identity of the complainant (as well 
as other sufficient details of the alleged sexual harassment incident). 
Thus, a complainant's identity cannot be withheld from the respondent 
once a formal complaint initiates a grievance process, yet this does 
not obviate a recipient's ability and responsibility to implement 
supportive measures designed to protect a complainant's safety, deter 
sexual harassment, and restore or preserve a complainant's equal 
educational access.\1114\
---------------------------------------------------------------------------

    \1112\ Section 106.44(a).
    \1113\ Section 106.30 (defining ``supportive measures'').
    \1114\ Id. (supportive measures must not be punitive or 
disciplinary). However, a recipient may warn a respondent that 
retaliation is prohibited and inform the respondent of the 
consequences of retaliating against the complainant, as part of a 
supportive measure provided for a complainant, because such a 
warning is not a punitive or disciplinary action against the 
respondent.
---------------------------------------------------------------------------

    The Department believes that providing written notice of the 
allegations to both parties equally benefits complainants; after a 
recipient receives a formal complaint, a complainant benefits from 
seeing and understanding how the recipient has framed the allegations 
so that the complainant can prepare to participate in the grievance 
process in ways that best advance the complainant's interests in the 
case. The Department disagrees that providing written notice of 
allegations increases the risk that a respondent will destroy evidence 
or concoct alibis, and even if such a risk existed the Department 
believes that benefit of providing detailed notice of the allegations 
outweighs such a risk because a party cannot be fairly expected to 
respond to allegations without the allegations being described prior to 
the expected response. Further, if a respondent does respond to a 
notice of allegations by destroying evidence or inventing an alibi, 
nothing in the final regulations prevents the recipient from taking 
such inappropriate conduct into account when reaching a determination 
regarding responsibility, numerous provisions in Sec.  106.45 provide 
sufficient ways for the recipient (and complainant) to identify ways in 
which a respondent has fabricated (or invented, or concocted) untrue 
information, and such actions may also violate non-Title IX provisions 
of a recipient's code of conduct.
    Changes: The final regulations add Sec.  106.71 prohibiting 
retaliation by any person, against any person exercising rights under 
Title IX, and specify that complaints of retaliation may be filed with 
the recipient for handling under the ``prompt and equitable'' grievance 
procedures that recipients must adopt and publish for non-sexual 
harassment sex discrimination complaints by students and employees 
under Sec.  106.8(c).
Warning Against False Statements
    Comments: Several commenters asserted that the requirement in Sec.  
106.45(b)(2) that the written notice of allegations sent to both 
parties must contain information about any prohibition against 
knowingly submitting false information will chill reports of sexual 
assault because the provision implies that the Department does not 
believe allegations of sexual assault. One commenter shared the 
Department's interest in preserving the truth-seeking nature of the 
grievance process, but expressed concern that the threat implicit in 
the proposed admonition will outweigh its value. The commenter asserted 
that parties' and witnesses' statements rarely neatly align and 
inconsistencies can stem from passage of time, effects of drugs or 
alcohol, general unreliability of human perception and memory, and 
other factors. The commenter asserted that school officials are rarely 
so certain a party is lying that they should pursue discipline, yet the 
admonition in Sec.  106.45(b)(2) suggests otherwise. The commenter 
warned that the resulting fear is likely to discourage participation in 
the process and inhibit the candor the Department stated it is seeking, 
and the commenter believed that parties may interpret the statement as 
their school's endorsement of harmful stereotypes about the prevalence 
of false sexual misconduct reports.
    Many commenters asserted that most women who choose not to come 
forward do so because of the fear that people will not believe them. 
Commenters cited research showing that victims rarely make false 
allegations, and that only

[[Page 30279]]

somewhere between two to ten percent of sexual assault allegations are 
false.\1115\ Commenters asserted that men are more likely to be 
sexually assaulted themselves than to be falsely accused of committing 
sexual assault.\1116\ Commenters argued that because false allegations 
are so rare, there is no benefit to including a warning against making 
false statements and the only purpose of such a warning is to deter 
complainants from reporting or filing formal complaints.
---------------------------------------------------------------------------

    \1115\ Commenters cited: David Lisak et al., False Allegations 
of Sexual Assault: An Analysis of Ten Years of Reported Cases, 16 
Violence Against Women 12 (2010).
    \1116\ Commenters cited: Tyler Kingkade, Males are More Likely 
to Suffer Sexual Assault Than to be Falsely Accused of it, The 
Huffington Post (Dec. 8, 2014).
---------------------------------------------------------------------------

    One commenter suggested that Sec.  106.45(b)(2) should state that, 
if the recipient finds the respondent not responsible at the conclusion 
of the proceedings, a determination of not responsible will not, based 
on the finding alone, result in the complainant being deemed to have 
made false allegations. The commenter further requested that the 
written notice include a statement that the recipient presumes that the 
complainant is bringing a truthful complaint.
    One commenter wanted clarification as to how false accusations 
would be determined. One commenter wished to know whether false 
accusations are a Title IX offense, and if so, who is authorized to 
bring a complaint alleging a false accusation. The commenter also 
wondered if a complainant can be held accountable for making a false 
report of sexual harassment if the recipient's code of conduct does not 
have a provision about submitting false statements during a 
disciplinary proceeding.
    Several commenters who favored Sec.  106.45(b)(2) suggested that 
the provision should subject students who knowingly made false 
allegations to disciplinary proceedings. Other commenters asked the 
Department to explain what minimum consequences will apply to students 
who make false allegations of sexual assault.
    Discussion: The Department first notes that Sec.  
106.45(b)(2)(i)(B) will only apply to those situations in which the 
recipient's code of conduct prohibits students from knowingly making 
false statements or submitting false information during a disciplinary 
proceeding. If the recipient's code of conduct is silent on the issue 
of false statements in the grievance process, then the final 
regulations do not require recipients to include reference to false 
statements in the Sec.  106.45(b)(2) written notice. If, on the other 
hand, a recipient's own code of conduct does reference making false 
statements during a school disciplinary proceeding then the Department 
believes that both parties deserve to know that their school, college, 
or university has such a provision that could subject either party to 
potential school discipline as a result of participation in the Title 
IX grievance process. Further, this ``warning'' about making false 
statements applies equally to respondents, as to complainants. 
Respondents should understand how a recipient intends to handle false 
statements (e.g., in the form of a respondent's denials of allegations) 
made during the grievance process.
    Because the warning about making false statements occurs at a time 
when the complainants have already filed a formal complaint, the 
Department does not foresee that a complainant's decision to report 
sexual harassment (which need not also involve filing a formal 
complaint) will be affected by the recipient's notice about whether the 
recipient's code of conduct prohibits making false statements during a 
grievance process. The warning about false statements is not a 
requirement that the complainants' statements ``neatly align'' with the 
statements of other parties' or witnesses' statements, as one commenter 
suggested. Nor does the Department agree that the warning enforces 
harmful stereotypes about the prevalence of false sexual misconduct 
reports. The warning informs both parties about code of conduct 
provisions that govern either party's conduct at the grievance process, 
and only applies if such provisions exist in the recipients' own code 
of conduct. In response to commenters' concerns and to clarify for 
recipients, complainants, and respondents that merely making an 
allegation that a respondent or witness disagrees with (or is otherwise 
unintentionally inaccurate) constitutes a punishable ``false 
statement,'' the final regulations include Sec.  106.71 prohibiting 
retaliation for exercising Title IX rights generally, and specifically 
stating that while it is not retaliatory when a recipient charges a 
party with a code of conduct violation for making a bad faith, 
materially false statement in a Title IX proceeding, such a conclusion 
cannot be based solely on the determination regarding responsibility. 
This emphasizes that the mere fact that the outcome was not favorable 
(which could turn on a decision-maker deciding that the party or a 
witness was not credible, or did not provide accurate information, or 
that there was insufficient evidence to meet the recipient's burden of 
proof) is not sufficient to conclude that the party who ``lost'' the 
case made a bad faith, materially false statement warranting 
punishment.
    The Department is sympathetic to the difficulties complainants face 
in bringing a formal complaint. But recognition of the difficulties 
faced by complainants navigating the grievance process should not 
overshadow the fact that the respondent also faces significant 
consequences in the grievance process, nor lessen the need for both 
parties to be advised by the recipient of the allegations under 
investigation. The Department appreciates commenters' assertions 
regarding the relative infrequency of false allegations; however, Sec.  
106.45(b)(2) is intended to emphasize the importance of both parties 
being truthful during the grievance process by giving both parties 
information about how a particular recipient addresses false statements 
in the recipient's own code of conduct. Because the statement about 
false statements referred to in Sec.  106.45(b)(2) is not a statement 
about the truthfulness of respondents, the Department declines to 
require any statement in this provision regarding the truthfulness of 
complainants. Similarly, the statement in the written notice provision 
regarding the presumption that a respondent is not responsible is not a 
statement about the credibility or truthfulness of respondents,\1117\ 
and the Department declines to require any statement in the written 
notice regarding truthfulness of complainants. Regardless of the 
frequency or infrequency of false or unfounded allegations, every party 
involved in a formal complaint of sexual harassment deserves a fair 
process designed to resolve the truth of the particular allegations at 
issue, without reference to whether similar allegations are ``usually'' 
(based on statistics or generalizations) true or untrue.
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    \1117\ As discussed previously in the ``Section 106.45(b)(1)(iv) 
Presumption of Non-Responsibility'' subsection of the ``General 
Requirements for Sec.  106.45 Grievance Process'' subsection of the 
``Section 106.45 Recipient's Response to Formal Complaints'' section 
of this preamble, the presumption of non-responsibility is not a 
presumption of credibility or truthfulness for respondents, and 
Sec.  106.45(b)(1)(ii) expressly prohibits the recipient from 
drawing any inferences about credibility based on status as a 
complainant or respondent.
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    Any determination that a complainant (or respondent) has violated 
the recipient's code of conduct with respect to making false statements 
during a grievance process is a fact-specific determination for the 
recipient to decide; however, as noted above, the

[[Page 30280]]

final regulations add Sec.  106.71 advising recipients that it could 
constitute retaliation to punish a party for false statements if that 
conclusion is reached solely based on the determination regarding 
responsibility, thus cautioning recipients to carefully assess whether 
a particular complainant (or respondent) should face code of conduct 
charges involving false statements.
    The Department declines to follow the recommendations of commenters 
who argued that Sec.  106.45(b)(2) should include a provision that 
subjects students who knowingly make false statements to disciplinary 
proceedings, nor does the Department wish to prescribe what the minimum 
consequences of making a false statement would be. If the recipient 
believes that a party violated the recipient's code of conduct during 
the grievance process, the recipient may investigate the matter under 
its own code of conduct, but the Department does not require such 
action.
    Changes: The final regulations add Sec.  106.71 prohibiting 
retaliation for exercising Title IX rights generally, and specifically 
stating that while it is not retaliatory when a recipient punishes a 
party for making a bad faith, materially false statement in a Title IX 
proceeding, such a conclusion cannot be based solely on the 
determination regarding responsibility.
Investigative Process
    Comments: Several commenters with experience conducting criminal 
investigations asserted that, to get reliable and truthful information, 
it is important not to warn subjects of a criminal investigation that 
they are under investigation. The commenters argued that giving parties 
notice of the details of an alleged incident before the initial 
interview may give them the ability to affect the outcome of their case 
by manipulating their own testimony, tampering with evidence, or 
intimidating witnesses. Several commenters asked the Department to 
change the notice requirement to align with standard investigation 
practices that call for unplanned interviews. These commenters 
suggested that recipients not be required to give parties notice of 
allegations until the university has decided to proceed with formal 
charges. Another commenter stated that, although there is general 
agreement that providing sufficient notice prior to interviews 
effectuates the rights to an advisor guaranteed by VAWA Section 304, 
the industry standard is to provide this notice prior to charging, not 
prior to interviewing.
    One commenter who designs policies to address sexual assault on a 
university campus pointed out that universities lack the power to 
subpoena witnesses in its investigations. Since the notice provision in 
Sec.  106.45(b)(2) gives witnesses ample time to craft their testimony 
before an initial interview, and as the university already lacks the 
ability to compel witnesses to hand over evidence, the commenter argued 
that the notice provision will hamper a recipient's ability to gather 
accurate testimony. To repair this problem, the commenter suggested 
that the Department instead require recipients to give notice of 
allegations to interested parties after the university has completed 
all initial interviews and has decided to proceed with a formal 
grievance procedure.
    One commenter wanted to know how the provision would affect 
university police investigative techniques. Specifically, the commenter 
wondered whether university police would be prohibited from 
interviewing an accused party in a criminal investigation unless the 
university provided written notice of the interview. Another commenter 
requested further guidance from the Department on how schools should 
handle overlapping enforcement entities, especially regarding the 
notice requirement and whether an interview with law enforcement would 
violate Title IX if the police officer conducted the interview before 
the Title IX Coordinator was able to provide notice of allegations to 
the respondent.
    Several commenters expressed concern about the notice provision 
interfering with the ability of campus officials to perform 
investigations concurrently with police. Commenters warned that an 
institution may inadvertently interfere with an ongoing law enforcement 
investigation if the institution contacts a respondent or witnesses 
before law enforcement has had a chance to do so. One commenter asked 
the Department to clarify that institutions may allow for a temporary 
delay of notice to the respondent at the request of law enforcement 
after receipt of a complaint, but before initiation of grievance 
proceedings.
    Discussion: While the Department appreciates commenters' concerns 
about best practices in conducting criminal investigations, the 
Department reiterates that a Sec.  106.45 grievance process occurs 
independently of any criminal investigation that may occur 
concurrently, and the recipient's obligation to inform the parties of 
the allegations under investigation is a necessary procedural benefit 
for both parties. Precisely because schools, colleges, and universities 
are not law enforcement entities but rather educational institutions, 
the Department does not intend to require recipients to adopt best 
practices from law enforcement. For purposes of a fair, impartial 
investigation into allegations in a formal complaint, the Department 
believes that providing written notice of the allegations to both 
parties at the beginning of the investigation best serves the important 
goal of fostering reliable outcomes in Title IX grievance processes.
    The Department understands commenters' concerns that investigators 
(whether law enforcement or not) may believe that catching a respondent 
by surprise gets at the truth better than giving a respondent notice of 
the allegations with sufficient time for the respondent to prepare a 
response, including by making it less likely that a respondent has time 
or opportunity to destroy evidence or manipulate testimony. However, 
the Department agrees with commenters supporting Sec.  106.45(b)(2) who 
asserted that notice of the allegations is an essential feature of a 
fair process; without knowing the scope and purpose of an interview a 
respondent will not have a fair opportunity to seek assistance from an 
advisor of choice and think through the respondent's view of the 
alleged facts. The Department declines to require written notice only 
if a recipient decides to proceed with a formal investigation, because 
the final regulations require a recipient to investigate the 
allegations in a formal complaint.\1118\ The Sec.  106.45 grievance 
process does not recognize, or permit a recipient to recognize, a 
difference between commencing an investigation upon receipt of a formal 
complaint, and a separate step of ``charging'' the respondent that, by 
commenters' descriptions, sometimes involves a recipient interviewing 
parties or witnesses before deciding whether to ``charge'' a respondent 
and thereby conduct a full investigation. If an investigation reveals 
facts requiring or permitting dismissal of the formal complaint 
pursuant to Sec.  106.45(b)(3), the parties have been informed of the 
formal complaint, the allegations therein, and then the reasons for the 
dismissal, such that both parties can exercise their right to appeal 
the dismissal decision.\1119\ While a recipient may take steps that the

[[Page 30281]]

recipient considers part of an ``investigation'' without having 
received a formal complaint, the recipient may not impose discipline on 
a respondent without first complying with a grievance process that 
complies with Sec.  106.45,\1120\ which includes providing a party with 
written notice of the date, time, location, participants, and purpose 
of all investigative interviews with a party with sufficient time for 
the party to prepare to participate.\1121\ Thus, even if a recipient is 
not in ``receipt of a formal complaint'' which triggers the recipient's 
obligation to send the written notice of allegations in Sec.  
106.45(b)(2), the recipient cannot impose disciplinary sanctions on a 
respondent, or take other actions against a respondent that do not fit 
the definition of ``supportive measures'' in Sec.  106.30, without 
following the Sec.  106.45 grievance process.
---------------------------------------------------------------------------

    \1118\ Section 106.44(a); Sec.  106.45(b)(3)(i).
    \1119\ The final regulations revise Sec.  106.45(b)(8) to 
expressly grant both parties equal right to appeal a recipient's 
mandatory or discretionary dismissal decisions.
    \1120\ Section 106.44(a); Sec.  106.45(b)(1)(i).
    \1121\ Section 106.45(b)(5)(v).
---------------------------------------------------------------------------

    If a respondent reacts to a notice of allegations by manipulating 
the respondent's own testimony, or by tampering with evidence, the 
Sec.  106.45 grievance process provides adequate avenues through which 
the investigation and adjudication can account for such conduct, so 
that a respondent's attempt to fabricate or falsify information would 
be part of the objective evaluation of evidence a decision-maker 
performs in reaching a determination. For example, if a respondent 
manufactures a counter-narrative to the allegations, the complainant 
and the recipient have the opportunity to question the respondent about 
the respondent's statements and reveal inaccuracies, inconsistencies, 
or false statements.\1122\ Similarly, if a witness crafts or 
manipulates the witness's own testimony, inaccuracy and untruthfulness 
can be revealed through questioning of the witness by parties and the 
recipient. If a respondent reacts to a written notice of allegations by 
intimidating witnesses, such conduct is prohibited as retaliation under 
Sec.  106.71.
---------------------------------------------------------------------------

    \1122\ Section 106.45(b)(6)(ii) (providing that whether or not a 
hearing is held in elementary and secondary schools, the parties 
have opportunity to submit written questions to the other party, 
including questions designed to test credibility); Sec.  
106.45(b)(6)(i) (providing that during a live hearing held by a 
postsecondary institution, each party has an opportunity to cross-
examine the other party, but only with cross-examination conducted 
by party advisors).
---------------------------------------------------------------------------

    The Department notes that the Sec.  106.45 grievance process 
applies only to investigation and adjudication of formal complaints 
under Title IX, and has no applicability to criminal investigations. 
Regardless of whether a criminal investigation is conducted by ``campus 
police'' or other law enforcement officers, the recipient's obligations 
to comply with Sec.  106.45 apply when a party is interviewed for the 
purpose of a Title IX grievance process, as opposed to furtherance of a 
criminal investigation.
    The Department recognizes that a recipient's obligation to 
investigate a formal complaint of sexual harassment may overlap with 
concurrent law enforcement investigation into the same allegations. 
Where appropriate, the final regulations acknowledge that potential 
overlap; for example, by acknowledging concurrent law enforcement 
activity as ``good cause'' to temporarily delay the Sec.  106.45 
grievance process under Sec.  106.45(b)(1)(v). However, the Department 
emphasizes that a recipient's obligation to investigate and adjudicate 
promptly and fairly under Sec.  106.45 exists separate and apart from 
any concurrent law enforcement proceeding, and the recipient therefore 
must comply with all provisions in Sec.  106.45, including the written 
notice provision, regardless of whether law enforcement is conducting a 
concurrent investigation. The Department notes that Sec.  
106.45(b)(1)(v) addressing the recipient's designated, reasonably 
prompt time frames contemplates good cause temporary delays and limited 
extensions of time frames only after the parties have received the 
initial written notice of allegations under Sec.  106.45(b)(2), such 
that concurrent law enforcement activity is not good cause to delay 
sending the written notice itself.\1123\
---------------------------------------------------------------------------

    \1123\ Section 106.45(b)(1)(v) (specifying that where a 
recipient delays or extends a time frame for good cause, the 
recipient must send written notice to the complainant and the 
respondent of the delay or extension and the reasons for the 
action).
---------------------------------------------------------------------------

    Changes: None.
Administrative Burden on Schools
    Comments: Many commenters urged the Department to give recipients 
more flexibility in determining the appropriate timing for sending the 
written notice of allegations under Sec.  106.45(b)(2). Commenters 
argued that many complaints require an initial investigation to confirm 
the identity of the involved parties, to clarify any missing 
information, and to determine whether Title IX or the campus policy 
applies, and requiring written notice to the parties right away does 
not make sense when many complaints turn out to lack merit or not 
allege Title IX or policy violations. Several commenters asked the 
Department to provide that recipients must give respondents ``prompt 
written notice'' instead of ``upon receipt of a formal complaint,'' to 
give recipients a reasonable amount of time before providing the 
written notice of allegations.
    One commenter asked the Department to make the written notice 
provision more flexible for smaller universities, because college 
officials often have a close personal connection with students. One 
commenter argued that the written notice provision would amount to a 
disturbing constraint on a campus administrator's authority to respond 
quickly to allegations. The commenter quoted the Department's 
commentary in the NPRM that ``when determining how to respond to sexual 
harassment, recipients have flexibility to employ age-appropriate 
methods, exercise common sense and good judgment, and take into account 
the needs of the parties involved,'' but the commenter opined that 
Sec.  106.45(b)(2) runs contrary to this stated intent.
    Other commenters noted that many institutions receive more 
disclosures of inappropriate conduct than formal complaints, and 
asserted that in many of those cases, the disclosing student is seeking 
supportive measures and feels satisfied when those personalized 
supports are put in place (extensions of time, opportunities to change 
housing, escorts, etc.). Commenters argued that the written notice 
provision, by alerting the respondent of a report alleging sexual 
assault before an investigation has taken place, escalates the matter 
too early.
    Another commenter asserted that, at the onset of an investigation, 
recipients should have the authority to identify allegations under 
their policy broadly, and then provide an additional, more specific, 
notice when the investigation process concludes because the proposed 
regulations appear to require as many written notices to parties as 
there are changes to the allegations over the course of an 
investigation, placing an undue burden on recipients with no clear 
added value to the transparency of the investigation.
    Another commenter argued that Sec.  106.45(b)(2) is burdensome to 
schools because Title IX already requires schools to file annual 
proactive notice to parties of the school's grievance procedures. 
Numerous commenters asserted that the administrative burdens placed on 
schools by the written notice of allegations provision will incentivize 
schools to try to avoid legal jeopardy rather than try to achieve 
school safety.
    Discussion: The Department disagrees that Sec.  106.45(b)(2) leaves 
recipients with insufficient flexibility to respond quickly to 
allegations or contradicts the intent expressed in the NPRM that

[[Page 30282]]

recipients should employ age-appropriate methods, exercise common sense 
and good judgment, and take into account the needs of the parties 
involved. The Department reiterates that the written notice of 
allegations provision applies only after a recipient receives a formal 
complaint; thus, a recipient need not wait until written notice of 
allegations has been sent in order to, for example, provide supportive 
measures to the complainant (or the respondent).\1124\ For similar 
reasons, nothing about Sec.  106.45(b)(2) restricts a recipient's 
flexibility to implement supportive measures designed to restore or 
preserve the complainant's equal access to education by taking into 
account the unique needs of the parties and using common sense and good 
judgment, and the definition of supportive measures emphasizes that 
supportive measures are ``individualized services'' reasonably 
available ``before or after the filing of a formal complaint or where 
no formal complaint has been filed.'' \1125\ With respect to the 
written notice itself, nothing in Sec.  106.45(b)(2) prescribes how the 
information in the written notice is phrased, such that recipients are 
free to employ age-appropriate methods, common sense, and good judgment 
in choosing how to convey the information required to be included in 
the written notice.
---------------------------------------------------------------------------

    \1124\ In fact, revised Sec.  106.44(a) obligates recipients to 
promptly respond to any notice of Title IX sexual harassment 
(regardless of whether a complainant or Title IX Coordinator also 
files a formal complaint) by, among other things, promptly offering 
the complainant supportive measures. We reiterate that no written or 
signed document, much less a ``formal complaint'' as defined in 
Sec.  106.30, is required in order to trigger the recipient's 
response obligations. To emphasize this, we have revised Sec.  
106.30 defining ``actual knowledge'' to expressly state that 
``notice'' conveying actual knowledge to the recipient (triggering 
the recipient's response obligations) includes a report to the Title 
IX Coordinator as described in Sec.  106.8(a), which in turn states 
that any person may report sexual harassment to the Title IX 
Coordinator in person, by mail, phone, or email. Section 106.8(b)(2) 
also requires the recipient to prominently display that contact 
information for the Title IX Coordinator on the recipient's website.
    \1125\ Section 106.30 (defining ``supportive measures'').
---------------------------------------------------------------------------

    The Department agrees with commenters who noted that many 
complainants report sexual harassment seeking supportive measures 
rather than a formal grievance process, and the Department reiterates 
that Sec.  106.45 only applies after a recipient has received a formal 
complaint; a recipient need not send written notice of allegations 
based on reports, disclosures, or other forms of ``notice'' that 
charges a recipient with actual knowledge that do not consist of 
receipt of a formal complaint (and a formal complaint may only be filed 
by a complainant, or signed by the Title IX Coordinator).\1126\
---------------------------------------------------------------------------

    \1126\ Section 106.30 (defining ``formal complaint'').
---------------------------------------------------------------------------

    The Department disagrees that a recipient should have discretion to 
decide to dismiss formal complaints that are unsubstantiated or 
otherwise fail to meet some threshold of merit. The Department believes 
that where a complainant has chosen to file a formal complaint, or the 
Title IX Coordinator has decided to sign a formal complaint, the 
recipient must investigate those allegations; determinations about the 
merits of the allegations must be reached only by following the fair, 
impartial grievance process designed to reach accurate outcomes. As 
noted above, the final regulations revise Sec.  106.45(b)(3) to provide 
for discretionary dismissals on specified grounds, but those grounds do 
not include a recipient's premature determination that allegations lack 
merit.
    Whether or not many recipients currently provide written notice 
prior to conducting an interview as part of a Title IX grievance 
process, the Department believes written notice of allegations with 
adequate time to prepare for an interview constitutes a core procedural 
protection important to a fair process. A fundamental element of 
constitutional due process of law is effective notice that enables the 
person charged to participate in the proceeding.\1127\ The final 
regulations promote clarity as to recipient's legal obligations, and 
promote respect for each complainant's autonomy, by distinguishing 
between a complainant's report of sexual harassment, on the one hand, 
and the filing of a formal complaint that has initiated a grievance 
process against a respondent, on the other hand. While the complainant 
and recipient may discuss the complainant's report of sexual harassment 
without notifying the respondent (including discussion to decide on 
appropriate supportive measures), when the complainant files a formal 
complaint, the respondent must be notified that the respondent is under 
investigation for the serious conduct defined as ``sexual harassment'' 
under Sec.  106.30.
---------------------------------------------------------------------------

    \1127\ Goss v. Lopez, 419 U.S. 565, 579 (1975) (``At the very 
minimum, therefore, students facing suspension and the consequent 
interference with a protected property interest must be given some 
kind of notice and afforded some kind of hearing. `Parties whose 
rights are to be affected are entitled to be heard; and in order 
that they may enjoy that right they must first be notified.' '') 
(internal citation omitted) (emphasis added); id. at 583 (``On the 
other hand, requiring effective notice and informal hearing 
permitting the student to give his version of the events will 
provide a meaningful hedge against erroneous action.'') (emphasis 
added).
---------------------------------------------------------------------------

    The Department understands commenters' assertions that waiting to 
provide notice of the allegations until after conducting an initial 
interview prevents a respondent from manipulating the respondent's own 
statements, and that some recipients' current practices permit the 
recipient an opportunity to decide after the initial respondent 
interview whether or not the recipient intends to proceed with the 
investigation. However, the Department believes that complainants 
deserve the clarity of knowing that the filing of a formal complaint 
obligates the recipient to investigate the allegations, and once the 
respondent is under investigation the respondent must be made aware of 
the allegations with sufficient time to prepare for an initial 
interview because ``effective notice'' in time to give the respondent 
opportunity to tell the respondent's ``version of the events'' helps 
prevent erroneous outcomes.\1128\
---------------------------------------------------------------------------

    \1128\ Goss, 419 U.S. at 579.
---------------------------------------------------------------------------

    In response to commenters' concerns that the proposed rules did not 
provide a recipient sufficient leeway to halt investigations that 
seemed futile, the final regulations revise Sec.  106.45(b)(3)(ii) to 
provide that a recipient may (in the recipient's discretion) dismiss a 
formal complaint, or allegations therein, in certain circumstances 
including where a complainant requests the dismissal (in writing to the 
Title IX Coordinator), where the respondent is no longer enrolled or 
employed by the recipient, or where specific circumstances prevent the 
recipient from meeting the recipient's burden to collect sufficient 
evidence (for example, where a postsecondary institution complainant 
has ceased participating in the investigation and the only inculpatory 
evidence available is the complainant's statement in the formal 
complaint or as recorded in an interview by the investigator). 
Similarly, where it turns out that the allegations in a formal 
complaint do not meet the definition of sexual harassment under Sec.  
106.30, or did not occur against a person in the United States, or did 
not occur in the recipient's education program or activity, Sec.  
106.45(b)(3)(i) requires the recipient to dismiss the allegations 
(though the final regulations clarify that the recipient has discretion 
to address the allegations through a non-Title IX code of conduct) and 
notify the parties of the dismissal (which implies that the ``parties'' 
have already been informed that they are parties via receiving the 
Sec.  106.45(b)(2) written notice of allegations). However, the fact 
that

[[Page 30283]]

allegations of sexual harassment were raised in a formal complaint 
warrant notifying the respondent that those allegations had triggered 
an investigation, even if the allegations are subsequently dismissed, 
whether the dismissal is mandatory under Sec.  106.45(b)(3)(i) or 
discretionary under Sec.  106.45(b)(3)(ii). This gives both parties 
equal opportunity to appeal the recipient's dismissal decision, or to 
request that dismissed allegations be addressed under non-Title IX 
codes of conduct.\1129\
---------------------------------------------------------------------------

    \1129\ The final regulations revise Sec.  106.45(b)(8) so that 
parties have the right to appeal any dismissal decision. While some 
respondents may not desire to appeal a dismissal, other respondents 
may desire to challenge the recipient's conclusion that, for 
instance, the conduct alleged did not constitute sexual harassment 
as defined in Sec.  106.30, because if the conduct constitutes Title 
IX sexual harassment the recipient is not permitted to discipline 
the respondent without first following the Sec.  106.45 grievance 
process, which may provide stronger procedural rights and 
protections than other disciplinary proceedings a recipient might 
use if the recipient charges the respondent with a non-Title IX code 
of conduct violation over the allegations.
---------------------------------------------------------------------------

    The Department believes that requiring subsequent written notice of 
allegations when the allegations under investigation change 
appropriately notifies the parties of a change in the scope of the 
investigation, and does not believe that this benefit would be achieved 
by only requiring a follow-up written notice after the investigation 
has concluded. The Department is requiring recipients to inform the 
parties of the alleged conduct that potentially constitutes sexual 
harassment under Sec.  106.30, including certain details about the 
allegations (to the extent such details are known at the time). 
Although Sec.  106.45(b)(2) requires subsequent written notice to the 
parties as the recipient discovers additional potential violations, the 
Department does not agree with the commenter that this requirement adds 
``no clear value'' to the transparency of the investigation or that the 
benefits of such subsequent notice to the parties is outweighed by the 
administrative burden to the recipient of generating and sending such 
notices.\1130\ If the respondent is facing an additional allegation, 
the respondent has a right to know what allegations have become part of 
the investigation for the same reasons the initial written notice of 
allegations is part of a fair process, and the complainant deserves to 
know whether additional allegations have (or have not) become part of 
the scope of the investigation. This information allows both parties to 
meaningfully participate during the investigation, for example by 
gathering and presenting inculpatory or exculpatory evidence (including 
fact and expert witnesses) relevant to each allegation under 
investigation.
---------------------------------------------------------------------------

    \1130\ Deciding whether additional procedural safeguards are 
required under constitutional due process of law involves balancing 
the ``private'' interests at stake (here, the interests of the 
parties in a recipient reaching an accurate outcome), the 
administrative burden and cost to the government (here, the 
recipient) to provide the additional procedure, and the likelihood 
that the additional procedure may reduce the risk of erroneous 
outcome. Mathews v. Eldridge, 424 U.S. 319, 334 (1976). The 
Department believes that consideration of these factors weighs in 
favor of requiring subsequent written notices to the parties when 
the allegations change during an investigation: The outcome of a 
case poses serious consequences for both parties; recipients are not 
unaccustomed to sending written notices to students (and parents of 
minor students) for a wide range of activities; and ensuring that 
the parties' participation throughout the grievance process focuses 
on the actual allegations being investigated by the recipient 
significantly reduces the risk of erroneous outcomes.
---------------------------------------------------------------------------

    The Department does not believe that requiring recipients to send 
written notice of the allegations under investigation will incentivize 
recipients to care less about school safety than about legal liability. 
While the written notice provision constitutes a legal obligation, the 
purpose of the provision is to ensure that parties have critical 
information about the recipient's investigation; in that way, the 
obligation to send written notice of the allegations forms part of the 
recipient's response demonstrating concern about the safety of the 
recipient's educational environment, not simply a legalistic 
obligation. Measures that a recipient should take specifically to 
protect the safety of a complainant, respondent, or members of the 
recipient's community are unaffected by the recipient's obligation to 
send written notice of the allegations to the parties. For example, a 
recipient's non-deliberately indifferent response under Sec.  106.44(a) 
includes offering supportive measures to complainants, and supportive 
measures as defined in Sec.  106.30 may be designed to protect a 
complainant's safety or deter sexual harassment. Under Sec.  106.44(c), 
a respondent who poses an immediate threat to the physical health or 
safety of any student or other individual may be removed from the 
recipient's education program or activity on an emergency basis, with 
or without a grievance process pending.
    Although the Department understands recipients' desire for as much 
flexibility as possible to design disciplinary proceedings that best 
meet the needs of a recipient's unique educational community, for the 
reasons discussed previously the Department believes that providing 
written notice of the allegations under investigation is not a 
procedural right that should be left to a recipient's discretion. The 
final regulations leave recipients flexibility to select the method of 
delivery of the written notices required under Sec.  106.45(b)(2) 
(including the initial notice and any subsequent notices), and while 
the initial notice must be sent ``upon receipt'' of a formal complaint, 
with ``sufficient time'' for a party to prepare for an initial 
interview, such provisions do not dictate a specific time frame for 
sending the notice, leaving recipients flexibility to, for instance, 
inquire of the complainant details about the allegations that should be 
included in the written notice that may have been omitted in the formal 
complaint, and draft the written notice, while bearing in the mind that 
the entire grievance process must conclude under the recipient's own 
designated time frames.
    Changes: We have revised Sec.  106.45(b)(3) to provide recipients 
with the discretion to dismiss a formal complaint, or allegations 
therein, where the complainant notifies the Title IX Coordinator in 
writing that the complainant wishes to withdraw the formal complaint or 
allegations, where the respondent is no longer enrolled or employed by 
the recipient, or where specific circumstances prevent a recipient from 
gathering evidence sufficient to reach a determination regarding 
responsibility.
Elementary and Secondary Schools
    Comments: Several commenters argued that Sec.  106.45(b)(2) would 
be harmful to students and administrators at elementary and secondary 
schools because accusations of sexual assault or abuse are often 
described without specific details or in a way that makes it difficult 
to determine whether the alleged misconduct falls under Title IX, under 
the recipient's code of conduct, or neither. Commenters argued that 
Sec.  106.45(b)(2) would require school administrators to provide 
multiple written notices, because an initial description of the 
misconduct might make it seem like the allegations fall under several 
different codes of conduct. Another commenter stated that requiring 
that the respondent be given ``sufficient time for a response before 
any initial interview'' does not consider the possible threat to the 
learning environment or the developing nature of a minor's memory. 
Another commenter asserted that courts do not give elementary and 
secondary school students due process rights, so the written notice of 
allegations provision should not apply to elementary and secondary 
school recipients.

[[Page 30284]]

    A few commenters advised changing the written notice provision to 
account for young complainants and respondents, especially students in 
preschool and elementary and secondary schools by giving the Title IX 
Coordinator discretion to communicate to parents or parties over the 
phone rather than strictly in writing.
    Commenters argued that, in elementary and secondary schools 
addressing peer harassment incidents, the written notice of allegations 
provision fails to take into account the high volume of low-level 
incidents schools address and how burdensome and expensive this 
provision would become for students, parents, and administrators. 
Commenters argued that this provision would escalate situations from 
relatively informal to extremely formal, which would be alarming for 
students and parents. One commenter agreed that the accused student 
must be afforded due process, including notice of the allegations and 
an opportunity to respond, but disagreed that the written notice 
provision should apply to elementary and secondary schools, because it 
is neither necessary nor reasonable for an elementary and secondary 
school administrator to send the level of detail required by Sec.  
106.45(b)(2) in a written notice for all sexual harassment cases. At 
least one commenter argued that public elementary and secondary schools 
in the commenter's State do not have ``codes of conduct'' and instead 
have policies approved by a board of education pursuant to the 
commenter's State education code. The commenter stated that the 
language of Sec.  106.45(b)(2) does not fit the elementary and 
secondary school setting.
    Discussion: The Department reiterates that the recipient need not 
provide the written notice of allegations under Sec.  106.45(b)(2) 
unless a formal complaint has been filed; this should reduce 
commenters' concerns that elementary and secondary schools will be 
inundated with the need to generate written notices whenever any 
conduct termed ``sexual harassment'' is reported or that elementary and 
secondary school administrators will need to send out written notices 
concerning ``vague'' or ``unspecific'' reports of conduct that may or 
may not constitute sexual harassment. Further, the Department clarifies 
that when a formal complaint contains allegations of conduct that could 
constitute not only sexual harassment defined by Sec.  106.30 but also 
violations of other codes of conduct, the final regulations have 
revised the language used in Sec.  106.45(b)(2) to remove confusing 
references to the recipient's code of conduct and focus this provision 
on the need to send notice of allegations that could constitute sexual 
harassment as defined in Sec.  106.30. The Department appreciates the 
opportunity to clarify here that references in the final regulations to 
a recipient's ``code of conduct'' refer to any set of policies, rules, 
or similar codes that purport to govern the conduct or behavior of 
students or employees, whether such policies, rules, or codes have been 
crafted by the individual school itself, under mandates from a State or 
local law, pursuant to school board resolutions, or by other means. 
Furthermore, Sec.  106.45(b)(2) requires the recipient to include in 
the written notice ``sufficient details known at the time'' (emphasis 
added), such that even if a young student describes a sexual harassment 
incident in a manner that omits precise, specific details, a recipient 
may still comply with Sec.  106.45(b)(2)(i), and then send subsequent 
notices as described in Sec.  106.45(b)(2)(ii) as details about 
allegations may be discovered during the investigation.
    The Department notes that Sec.  106.44(c) and Sec.  106.44(d) allow 
a recipient to remove a respondent from the recipient's education 
program on an emergency basis, and place a non-student employee on 
administrative leave during the pendency of an investigation, 
alleviating commenters' concerns that giving the respondent sufficient 
time to respond by sending written notice that a grievance process is 
underway will allow a threat to remain in the educational environment. 
The recipient is also obligated to offer the complainant supportive 
measures, including during the pendency of a grievance process, and 
thus the Department does not believe that requiring written notice to 
the parties after a formal complaint has been filed restricts a 
recipient's ability to provide for the safety of parties and deter 
sexual harassment.\1131\
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    \1131\ Section 106.30 (defining ``supportive measures'' as 
individualized services designed to, among other things, protect the 
safety of all parties and/or deter sexual harassment).
---------------------------------------------------------------------------

    The Department agrees with commenters that elementary and secondary 
school recipients, as well as postsecondary recipients, must 
appropriately address incidents of sexual harassment in order to avoid 
subjecting students and employees to sex discrimination in violation of 
Title IX. The Department notes that the Supreme Court has confirmed 
that public elementary and secondary school students are entitled to 
due process under the U.S. Constitution in school disciplinary 
proceedings.\1132\ Although commenters are correct that no Supreme 
Court decision specifically requires written notice when a formal 
complaint of sexual misconduct has been filed, the Supreme Court has 
held that ``effective notice'' constitutes an essential element of due 
process because it allows the person accused to make sure that their 
``version of the events'' is heard,\1133\ and the Department reasonably 
has determined that providing written notice of allegations, containing 
details of the allegations that are known at the time, after a formal 
complaint has triggered a recipient's obligation to investigate and 
adjudicate sexual harassment constitutes an important procedural 
protection for the benefit of all participants in the grievance 
process, and increases the likelihood that the recipient will reach an 
accurate determination regarding responsibility, which is necessary to 
hold recipients accountable for providing remedies to victims of Title 
IX sexual harassment.
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    \1132\ Goss, 419 U.S. at 578-79 (holding that in the educational 
context ``the interpretation and application of the Due Process 
Clause are intensely practical matters'' that require at a minimum 
notice and ``opportunity for hearing appropriate to the nature of 
the case'') (internal quotation marks and citations omitted).
    \1133\ Goss, 419 U.S. at 583.
---------------------------------------------------------------------------

    The Department does not believe that the requirement for parties to 
receive written notice of the allegations needs to be modified when the 
parties are young. The final regulations revise Sec.  106.8(b) to 
include parents on the list of persons to whom recipients send notice 
and information about the recipient's non-discrimination policy and 
procedures; the final regulations add Sec.  106.6(g) to expressly state 
that these regulations do not alter the legal right of parents and 
guardians to exercise rights on behalf of parties; and nothing in the 
final regulations precludes a Title IX Coordinator from communicating 
with a young student's parent about the process (including conveying 
the same information as contained in a written notice) via telephone or 
in person so long as the written notice meets the requirements of Sec.  
106.45(b)(2).
    The Department reiterates that the grievance process is initiated 
(and thus the written notice requirement applies) only when the 
complainant has filed, or the Title IX Coordinator has signed, a formal 
complaint. Thus, the written notice requirement does not ``escalate'' 
an incident; rather, a complainant's choice (or a Title IX 
Coordinator's decision) has resulted in a formal complaint triggering a 
grievance process. Only then is the recipient

[[Page 30285]]

required to send the written notice of allegations under Sec.  
106.45(b)(2). Where no formal complaint has been filed by a complainant 
or signed by a Title IX Coordinator, the recipient is not obligated to 
``escalate'' the reported incident by, for example, informing the 
respondent that the respondent has been reported to be a perpetrator of 
sexual harassment; a recipient is obligated to keep confidential 
provision of supportive measures to a complainant (which the recipient 
must offer to complainants), except as necessary to actually implement 
the supportive measures (for example, the respondent may need to know 
the identity of a complainant who has reported the respondent to have 
perpetrated sexual harassment if the appropriate supportive measure is 
a no-contact order and the respondent needs to know with whom to avoid 
communicating under the terms of the order).
    Because of the seriousness of the allegations in a formal complaint 
of sexual harassment, and the access to education that is at stake for 
both parties in a grievance process addressing those allegations, the 
Department requires the recipient to allow the parties to meaningfully 
participate in the grievance process. This participation requires 
written notice of allegations to both parties where there is a formal 
complaint, including the details specified in this provision. The 
Department disagrees that pertinent information such as the identity of 
the parties involved, location and date of the incident, and the nature 
of the misconduct that could constitute sexual harassment as defined in 
Sec.  106.30, with ``sufficient details known at the time'' (as Sec.  
106.45(b)(2) provides) amounts to an unnecessary or unreasonable amount 
of detail for recipients to include in a written notice of allegations, 
including in elementary and secondary schools. The provision's use of 
the phrases ``known at the time'' and ``if known'' in this provision 
indicates that the Department understands that not every significant 
detail will be known in every situation, yet expects the written notice 
to provide both parties with key information about the alleged incident 
so that both parties understand the scope of the investigation and can 
prepare to meaningfully participate by advancing the party's own 
interests in the outcome of the case. The final regulations also revise 
Sec.  106.45(b)(2) so that the written notice of allegations also 
notifies the parties of each party's right to an advisor of choice, 
further ensuring that parties are prepared to meaningfully participate 
in a grievance process.
    Changes: We have revised Sec.  106.45(b)(2)(ii) to remove 
references to a recipient's ``code of conduct'' and adds reference to 
sexual harassment ``as defined in Sec.  106.30'' to reduce confusion 
among commenters as to whether the written notice requirement applies 
to allegations that constitute sexual harassment as defined in Sec.  
106.30 or to other violations of a recipient's code of conduct. For the 
same reason, we have revised Sec.  106.45(b)(2)(i) to reference the 
grievance process ``that complies with Sec.  106.45'' to clarify that 
the written notice pertains to the grievance process a recipient must 
follow to comply with Title IX. We have revised Sec.  106.8(a) to 
include parents and legal guardians of elementary and secondary school 
students on the list of persons to whom recipients send notice and 
information about the recipient's non-discrimination policy and 
procedures. We have added Sec.  106.6(g) to state that nothing in the 
final regulations alters the legal right of parents or guardians to 
exercise rights on behalf of a party.
Confidentiality and Anonymity for Complainants
    Comments: One commenter suggested that written notice of 
allegations sent to the parties naming the complainant and listing the 
details of the allegations could be leaked or forwarded to unrelated 
third parties, which could damage the respondent's reputation, threaten 
both parties' access to education, and possibly violate State and 
Federal health care privacy laws regarding the respondent's or 
complainant's medical history. Some commenters requested that Sec.  
106.45(b)(2) be revised to bar both respondents and complainants from 
disclosing personally identifiable information except as necessary to 
prepare a response.
    Other commenters believed that Sec.  106.45(b)(2), by sending 
notice of the formal complaint, exposes complainants to increased 
scrutiny not applied to students reporting other kinds of student 
misconduct.
    Several commenters wanted the Department to give recipients 
flexibility to allow complainants to stay anonymous in certain 
circumstances, and to retain the approach under the 2001 Guidance, 
which advised that an institution may ``evaluate the confidentiality 
request'' of a complainant or respondent ``in the context of its 
responsibility to provide a safe and non-discriminatory environment for 
all schools,'' \1134\ considering factors like the severity of the 
alleged conduct.
---------------------------------------------------------------------------

    \1134\ Commenters cited: 2001 Guidance at 17.
---------------------------------------------------------------------------

    One commenter asserted that there is precedent for including only 
the initials of parties in the pre-investigation stage of the 
complaint.\1135\ Other commenters argued that respondents do not need 
to know the complainant's identity to meaningfully participate in the 
recipient's grievance procedure.
---------------------------------------------------------------------------

    \1135\ Commenter cited: Maricella Miranda, Victims' names can be 
withheld in criminal complaints, court rules in Ramsey County case, 
Pioneer Press (Aug. 18, 2009).
---------------------------------------------------------------------------

    Several commenters argued that it is unfair to complainants to 
expose the complainant's identity, especially because proposed Sec.  
106.44(b)(2) required a Title IX Coordinator to file a formal complaint 
over the wishes of a complainant where multiple reports had been made 
against the same respondent. Commenters argued that this could 
significantly chill a complainant's willingness to report sexual 
misconduct because the complainant's identity could be revealed to the 
respondent even when the complainant never even wanted to initiate a 
grievance process. Commenters wondered whether a Title IX Coordinator 
must deny requests by complainants to remain anonymous if the Title IX 
Coordinator elects to file a formal complaint.
    Commenters argued that, due to a fear of retaliation, many students 
are unwilling to report an employee or professor if the student cannot 
remain anonymous. One commenter stated that, for other types of 
misconduct allegations, such as theft of property, employees are often 
questioned without being told who reported them.
    Some commenters suggested modifying Sec.  106.45(b)(2) to expressly 
bar complainants from maintaining anonymity, or to forbid schools from 
investigating allegations unless complainant agree to identify 
themselves.
    Commenters suggested that Sec.  106.45(b)(2) should be modified to 
require schools to give the respondent a copy of the complainant's 
written formal complaint when sending the written notice of 
allegations, or if the formal complaint was not written then the 
recipient should send the respondent a verbatim summary of the oral 
complaint.
    Other commenters supported Sec.  106.45(b)(2) and shared personal 
stories where, as respondents, the commenters could not understand the 
allegations without knowing the identity of the complainant. For

[[Page 30286]]

example, one commenter stated that the recipient attempted to inform 
the respondent of sexual misconduct allegations while also withholding 
the identity of the complainant and as a result, the respondent spent 
much of the investigation believing that the allegations centered 
around a kiss at a party with one person, only to find out after the 
identity of the complainant was finally revealed that the allegations 
were actually made by a different person. Other commenters supported 
Sec.  106.45(b)(2) because while campus sexual misconduct hearings are 
not criminal cases, they are proceedings with significant and far-
reaching consequences, including possible expulsion making it difficult 
for a respondent to transfer to any other university, and respondents 
deserve the basic due process right to know details about the 
allegations. At least one commenter cited a survey of public 
perceptions of higher education, including topics such as campus sexual 
assault and due process; in the survey, 81 percent of people agreed 
that students accused of sexual assault on college campuses should have 
the right to know the charges against them before being called to 
defend themselves, which the commenters argued should include the 
identity of the complainant.\1136\
---------------------------------------------------------------------------

    \1136\ Commenters cited: Bucknell Institute for Public Policy, 
Perceptions of Higher Education Survey--Topline Results (2017).
---------------------------------------------------------------------------

    Discussion: The Department clarifies that recipients (and, as 
applicable, parties) must follow relevant State and Federal health care 
privacy laws throughout the grievance process. Nothing in the notice 
should divulge the complainant's (or respondent's) medical information 
or other sensitive information, nor does Sec.  106.45(b)(2) require 
disclosure of such information. To further respond to commenters' 
concerns about disclosure of medical information, the final regulations 
add to Sec.  106.45(b)(5)(i) a prohibition against a recipient 
accessing or using for a grievance process the medical, psychological, 
and similar records of any party without the party's voluntary, written 
consent.\1137\ If the party is not an ``eligible student,'' as defined 
in 34 CFR 99.3, then the recipient must obtain the voluntary, written 
consent of a ``parent,'' as defined in 34 CFR 99.3.\1138\ The 
Department agrees with commenters that it is unacceptable for any 
person to leak or disseminate information to retaliate against another 
person, and the final regulations add Sec.  106.71, which prohibits the 
recipient or any other person from intimidating, threatening, coercing, 
or discriminating against any individual for the purpose of interfering 
with any right or privilege secured by Title IX. As discussed in this 
preamble at Sec.  106.45(b)(5)(iii), the parties have a right to 
discuss the allegations under investigations, but this right does not 
preclude a recipient from warning the parties not to discuss or 
disseminate the allegations in a manner that constitutes retaliation or 
unlawful tortious conduct.
---------------------------------------------------------------------------

    \1137\ Section 106.45(b)(5)(i).
    \1138\ Id.
---------------------------------------------------------------------------

    The Department understands commenters' concerns that complaints of 
other forms of student misconduct may not lead to the same grievance 
process (for example, the recipient sending a written notice of 
allegations to both parties) as the process required under these final 
regulations for Title IX sexual harassment. However, for reasons 
described above, the Department believes that both parties should have 
the benefit of understanding how the recipient has framed the scope of 
a sexual harassment investigation upon receipt of a formal complaint, 
including sufficient details known at the time, to permit the 
respondent opportunity to respond to the allegations. The Department 
disagrees that this results in unwarranted ``scrutiny'' of a 
complainant, and reiterates that written notice of allegations is 
required only after a formal complaint has been filed; thus, 
complainants need not be identified by name to a respondent upon a 
report of sexual harassment, including for the purpose of obtaining 
supportive measures.\1139\ However, a formal complaint alleging sexual 
harassment triggers a grievance process, and in the interest of 
fairness that process must commence with both parties receiving written 
notice of the pertinent details of the incident under investigation. We 
have removed proposed Sec.  106.44(b)(2) from these final regulations, 
which provision would have required a Title IX Coordinator to file a 
formal complaint upon receiving multiple reports against the same 
respondent. Removal of that proposed provision reduces the likelihood 
that a complainant's desire not to file a formal complaint will be 
overridden by a Title IX Coordinator's decision to sign a formal 
complaint.
---------------------------------------------------------------------------

    \1139\ Under Sec.  106.30 defining ``supportive measures'' 
recipients must keep confidential the provision of supportive 
measures to a complainant or respondent to the extent that 
maintaining confidentiality does not impair the ability of the 
recipient to provide the supportive measures. Thus, unless a 
particular supportive measure affects the respondent in a way that 
requires the respondent to know the identity of the complainant (for 
example, a mutual no-contact order), the Title IX Coordinator need 
not, and should not, disclose the complainant's identity to the 
respondent during the process of selecting and implementing 
supportive measures for the complainant.
---------------------------------------------------------------------------

    The Department disagrees that using only the initials of the 
parties (instead of the full names), or withholding the complainant's 
identity entirely, or requiring both parties to refrain from disclosing 
each other's personally identifiable information, sufficiently permits 
the parties to meaningfully participate in the grievance process. The 
Department reiterates that the written notice of allegations serves 
both parties' interests. While complainants may often know the identity 
of a respondent, in some situations a complainant does not know the 
respondent's identity, but the written notice of allegations provision 
ensures that if the recipient knows or discovers the respondent's 
identity, the complainant is informed of that important fact. Further, 
the complainant's receipt of written notice under this provision 
ensures that the complainant understands the way in which the recipient 
has framed the scope of the investigation so that the complainant can 
meaningfully participate and advance the complainant's own interests 
throughout the grievance process.\1140\
---------------------------------------------------------------------------

    \1140\ As discussed throughout this preamble, the final 
regulations: Acknowledge the right of parents or guardians to 
exercise legal rights to act on behalf of a complainant (or 
respondent) in Sec.  106.6(g); give both parties the right to select 
an advisor of choice and revise Sec.  106.45(b)(2) to require the 
initial notice of allegations to advise parties of that right, and 
to notify the parties of the recipient's grievance process which 
includes a description of the range of supportive measures available 
to complainants and respondents; and forbid recipients from 
restricting the ability of the parties to discuss the allegations 
under investigation, in Sec.  106.45(b)(5)(iii), including for the 
purpose of emotional or personal support, advice, or advocacy. Thus, 
these final regulations acknowledge that participation in a 
grievance process is often a difficult circumstance for any party 
and aim to provide numerous avenues by which a party may receive 
support, assistance, and advice tailored to the party's individual 
needs and wishes throughout the grievance process.
---------------------------------------------------------------------------

    The Department notes that the written notice of allegations 
provision does not require listing personally identifiable information 
of either party beyond the ``identity'' of the parties; thus, the 
written notice need not, and should not, for example, contain other 
personally identifiable information such as dates of birth, social 
security numbers, or home addresses, and nothing in the final 
regulations precludes a recipient from directing parties not to 
disclose such personally identifiable information.
    The Department acknowledges that the final regulations require 
identification of the parties after a formal complaint has triggered a

[[Page 30287]]

grievance process, in a way that the 2001 Guidance did not.\1141\ The 
Department does not believe that anonymity during a grievance process 
can lead to fair, reliable outcomes, and thus requires party identities 
(to the extent they are known) to be included in the written notice of 
allegations. As noted above, where a formal complaint has not been 
filed by a complainant or signed by a Title IX Coordinator, the final 
regulations do not require a recipient to disclose a complainant's 
identity to a respondent (unless needed in order to provide a 
particular supportive measure, such as a mutual no-contact order where 
a respondent would need to know the identity of the person with whom 
the respondent's communication is restricted). In situations where a 
complainant's life is in danger from the respondent, such a situation 
may present the kind of immediate threat to physical health or safety 
that justifies an emergency removal of a respondent under Sec.  
106.44(c). Further, nothing in the final regulations affects a 
complainant's ability to seek emergency protective orders from a court 
of law. The final regulations also expressly prohibit retaliation, in 
Sec.  106.71, and recipients must respond to complaints of retaliation 
in order to protect complainants whose identity has been disclosed as a 
result of a formal complaint (or, as also discussed herein, where 
providing supportive measures to the complainant necessitates the 
respondent knowing the complainant's identity). Thus, in situations 
where a complainant fears that disclosure to the respondent of the 
complainant's identity (or the fact that the complainant has filed a 
formal complaint) poses a risk of retaliation against the complainant, 
the Title IX Coordinator must discuss available supportive measures and 
consider the complainant's wishes regarding supportive measures 
designed to protect the complainant's safety and deter sexual 
harassment.
---------------------------------------------------------------------------

    \1141\ 2001 Guidance at 17 (``The school should inform the 
student that a confidentiality request may limit the school's 
ability to respond. The school also should tell the student that 
Title IX prohibits retaliation and that, if he or she is afraid of 
reprisals from the alleged harasser, the school will take steps to 
prevent retaliation and will take strong responsive actions if 
retaliation occurs. If the student continues to ask that his or her 
name not be revealed, the school should take all reasonable steps to 
investigate and respond to the complainant consistent with the 
student's request as long as doing so does not prevent the school 
from responding effectively to the harassment and preventing 
harassment of other students.''); cf. id. (stating that 
constitutional due process of law requires recipients that are 
public institutions to disclose the complainant's identity to the 
respondent and in such a situation the recipient should honor the 
complainant's desire for confidentiality and not proceed to 
discipline the alleged harasser.). The final regulations require 
identification of the name of the complainant where a formal 
complaint has been filed by a complainant or signed by a Title IX 
Coordinator, not only with respect public institutions but also as 
to private institutions, because constitutional due process and 
fundamental fairness require the respondent to know the identity of 
the alleged victim in order to meaningfully respond to the 
allegations.
---------------------------------------------------------------------------

    The Department understands commenters' concerns that complainants 
may not want to report misconduct by an employee if the complainant 
cannot remain anonymous. The Department reiterates that the written 
notice of allegations identifying the parties to a sexual harassment 
incident is required only after a formal complaint has been filed by a 
complainant or signed by a Title IX Coordinator. Complainants, 
therefore, need not feel dissuaded from reporting sexual harassment by 
an employee due to a desire for the complainant's identity to be 
withheld from the respondent, because unless and until a formal 
complaint is filed, the final regulations do not require a recipient to 
disclose the complainant's identity to a respondent, including an 
employee-respondent (unless the respondent must be informed of the 
complainant's identity in order for the Title IX Coordinator to 
effectively implement a particular supportive measure that would 
necessitate the respondent knowing the complainant's identity, such as 
a no-contact order). The Department understands that some recipients 
may choose to question an employee-respondent about misconduct, such as 
stealing or theft, without disclosing to the employee the identity of 
the person who reported the theft. The Department notes that the final 
regulations do not prevent a recipient from questioning an employee-
respondent about sexual harassment allegations without disclosing the 
complainant's identity,\1142\ provided that the recipient does not take 
disciplinary action against the respondent without first applying the 
Sec.  106.45 grievance process (or unless emergency removal is 
warranted under Sec.  106.44(c), or administrative leave is permitted 
under Sec.  106.44(d)).
---------------------------------------------------------------------------

    \1142\ The Department notes that a recipient's questioning of a 
respondent (whether a student or employee) about a reported sexual 
harassment incident, in the absence of a formal complaint, may not 
be used as part of an investigation or adjudication if a formal 
complaint is later filed by the complainant or signed by the Title 
IX Coordinator, because Sec.  106.45(b)(5)(v) requires that a party 
be given written notice of any interview or meeting relating to the 
allegations under investigation, and a recipient is precluded from 
imposing disciplinary sanctions on a respondent without following 
the Sec.  106.45 grievance process.
---------------------------------------------------------------------------

    For the reasons already mentioned, the Department declines to 
require recipients to maintain the anonymity of complainants once a 
formal complaint has been filed. The Department also will not require 
recipients to give respondents a copy of the formal complaint. The 
written notice of allegations provision already requires the recipient 
to provide the date, time, alleged conduct, and identity of the 
complainant, so the information required by Sec.  106.45(b)(2) provides 
sufficient opportunity for the respondent to participate in the 
grievance process while protecting the complainant's privacy rights to 
the extent that, for example, the complainant alleged facts in the 
formal complaint that are unrelated to Title IX sexual harassment and 
thus do not relate to the allegations that a recipient investigates in 
the grievance process.
    While the Department does not decide policy matters based on public 
opinion polls, the Department agrees with commenters that informing the 
respondent of the ``charges against them'' represents a staple of a 
fair process that increases party and public confidence in the fairness 
and accuracy of Title IX proceedings, and believes that Sec.  
106.45(b)(2) is an important feature of the Sec.  106.45 grievance 
process.
    Changes: The final regulations add Sec.  106.71 prohibiting 
retaliation against any person for exercising rights under Title IX or 
for participating (or refusing to participate) in a Title IX grievance 
process, and revise Sec.  106.45(b)(5)(i) to prevent recipients from 
using a party's treatment records without the party's (or party's 
parent, if applicable) voluntary, written consent.
General Modification Suggestions
    Comments: Because anything a respondent says may be used against 
the respondent in subsequent proceedings at an interview regarding 
sexual assault, including criminal proceedings, one commenter 
recommended that Sec.  106.45(b)(2) include a statement that, when the 
allegation against the respondent would constitute a felony in the 
State in which the accusation is made, the respondent's silence may not 
be construed as evidence of guilt or responsibility for the allegation.
    Another commenter asked the Department to require the Title IX 
Coordinator to email both the complainant and the respondent at least 
once a week to let them know of progress, changes, and updates on their 
case.
    Discussion: To make clear that respondents may remain silent in

[[Page 30288]]

circumstances in which answering a question might implicate a 
respondent's constitutional right to avoid self-incrimination, and to 
protect other rights of the parties, Sec.  106.6(d)(2) states that 
nothing in Title IX requires a recipient to deprive a person of any 
rights that would otherwise be protected from government action under 
the Due Process Clauses of the Fifth and Fourteenth Amendments of the 
U.S. Constitution. The final regulations also add to Sec.  
106.45(b)(6)(i) a provision that the decision-maker must not draw 
inferences about the determination regarding responsibility based on a 
party's failure or refusal to appear at the hearing or answer cross-
examination questions.
    The Department declines to follow the commenter's recommendation to 
require the Title IX Coordinator to email both the complainant and the 
respondent at least once a week to let them know of progress, changes, 
and updates on their case. The recipient has discretion to be more 
responsive than the final regulations require, but the final 
regulations do not require the recipient to contact the parties at 
least once a week. The Department notes that the final regulations 
require the recipient to send notice to the parties regarding essential 
case developments such as where additional allegations become part of 
the investigation; where allegations or the entire formal complaint 
have been dismissed; where any short-term delay or time frame extension 
has been granted for good cause; and after the determination regarding 
responsibility has been made.
    Changes: The final regulations also add to Sec.  106.45(b)(6)(i) a 
provision that the decision-maker must not draw inferences about the 
determination regarding responsibility based on a party's failure or 
refusal to appear at the hearing or answer cross-examination questions.
General Clarification Requests
    Comments: Several commenters requested that the Department clarify 
what ``sufficient time [for the respondent] to prepare a response'' 
means. Likewise, several commenters asked that the Department clarify 
when a recipient must provide notice of any additional allegations to 
the parties, asserting that Sec.  106.45(b)(2) does not define ``upon 
receipt,'' but that if read literally, that phrase could suggest 
``immediately upon receipt,'' which is impossible in light of the 
detailed information that must be provided in the written notice. One 
commenter suggested a definitive guideline (e.g., at least five 
workdays after receipt) should be imposed. Commenters asserted that 
ascertaining what the allegations are or how they should be phrased is 
not always obvious ``upon receipt'' of a formal complaint; a degree of 
fact-finding and/or analysis must be conducted first. One commenter 
argued that the provision should set forth a reasonable time frame for 
institutions to evaluate the information provided in a formal complaint 
before issuing the notice described in 106.45(b)(2)(i). Another 
commenter asked the Department to explain the consequences to 
universities of violating Sec.  106.45(b)(2).
    Discussion: The Department understands commenters' concerns that 
sometimes preparing a written notice of the allegations requires time 
for the recipient to intake a formal complaint and then compile the 
details required for a written notice. The Department will not 
interpret this provision to require notice to be provided 
``immediately'' (and the provision does not use that word), but rather 
notice must be provided early enough to allow the respondent 
``sufficient time to prepare a response.'' The Department also notes 
that a recipient's discretion in this regard is constrained by a 
recipient's obligation to conduct a grievance process within the 
recipient's designated, reasonably prompt time frames, such that 
waiting to send the written notice of allegations (even without yet 
conducting initial interviews with parties) could result in the 
recipient failing to meet time frames applicable to its grievance 
process. Whether the recipient provided the respondent ``sufficient 
time'' under Sec.  106.45(b)(2) is a fact-specific determination. 
Consequences for failing to comply with the final regulations include 
enforcement action by the Department requiring the recipient to come 
into compliance by taking remedial actions the Department deems 
necessary, consistent with 20 U.S.C. 1682, and potentially placing the 
recipient's Federal funding at risk.
    Changes: None.

Dismissal and Consolidation of Formal Complaints

Section 106.45(b)(3)(i) Mandatory Dismissal of Formal Complaints
    Comments: Many commenters supported proposed Sec.  106.45(b)(3) 
because it obligates recipients to investigate only allegations in a 
formal complaint, and thus provides the victim with control over 
whether or not to trigger the formal grievance process by filing a 
formal complaint. Other commenters appreciated how clear this provision 
was for recipients to follow. Some commenters sought clarification with 
respect to the practical application of this provision, such as what 
standard would schools be held to if they initiate proceedings on their 
own, but were not required to do so under Title IX. Certain commenters 
asked whether a respondent could claim that the school failed to comply 
with the proposed regulations and thus violated respondent's rights if 
the school used separate proceedings because the respondent's alleged 
conduct did not satisfy the three requirements in Sec.  106.44(a) and 
Sec.  106.45(b)(3)(i). Other commenters asked whether a respondent can 
use the dismissal provision to demand that a school dismiss a complaint 
against the respondent.
    In contrast, several comments recommended that the Department 
remove any provision requiring dismissal of certain complaints so that 
recipients retain institutional flexibility to investigate complaints 
at their own discretion. Many commenters expressed the belief that 
schools should investigate each and every claim and refrain from making 
an initial determination (some viewed this initial determination as 
requiring individuals to make a prima facie case) of whether the 
alleged conduct satisfied the Sec.  106.30 definition of sexual 
harassment. At least one commenter believed that schools should not 
have to dismiss even when a victim is not actually harmed. Another 
commenter stated that the proposed rules provided no avenue for 
reviewing or appealing a recipient's determination as to whether the 
alleged conduct satisfies the definition of sexual harassment. 
Commenters asserted that the Department has no authority to forbid or 
preclude schools from investigating non-Title IV matters that affect 
their institutions, but only the authority to require schools to 
respond to sexual harassment. Several commenters also urged the 
Department to transform the provision from a mandatory provision to a 
permissive provision by replacing ``must'' with ``may.'' Many 
commenters opposed the dismissal provision believing that the provision 
required institutions to always dismiss or ignore allegations that 
occurred off-campus. Several commenters cited the concern that 
dismissing a large number of off-campus complaints will disincentivize 
reporting by students altogether, forcing students to go to police 
departments instead.
    Combined with urging the Department to expand the definition of 
sexual harassment in Sec.  106.30 or alter

[[Page 30289]]

the ``education program or activity'' jurisdictional requirement in 
Sec.  106.44(a) for fear that recipients will be required to dismiss 
too many complaints, many commenters argued that the mandatory 
dismissal language in Sec.  106.45(b)(3) effectively foreclosed 
recipients from addressing sexual harassment that harms students at 
alarming rates (e.g., harassment that is severe but not pervasive, or 
sexual assaults of students, by other students, that occur outside the 
recipient's education program or activity) even voluntarily (or under 
State laws) under a recipient's non-Title IX codes of conduct.
    Some commenters argued that the language in Sec.  106.45(b)(3) was 
inconsistent with the language of Sec.  106.44(a) because proposed 
Sec.  106.45(b)(3) omitted reference to conduct that occurred ``against 
a person in the United States.''
    Discussion: We appreciate commenters' support for this provision's 
requirement that recipients must investigate allegations in a formal 
complaint, and agree that this provides complainants with autonomy over 
choosing to file a formal complaint that triggers an investigation. We 
acknowledge those comments expressing the concern that as proposed, 
Sec.  106.45(b)(3) effectively required recipients to make an initial 
determination as to whether the alleged conduct satisfies the 
definition of sexual harassment in Sec.  106.30 and whether it occurred 
within the recipient's education program or activity, and to dismiss 
complaints based on that initial determination, leaving recipients, 
complainants, and respondents unclear about whether dismissed 
allegations could be handled under a recipient's non-Title IX code of 
conduct. As discussed below, we have revised Sec.  106.45(b)(3)(i) to 
mirror the conditions listed in Sec.  106.44(a) (by adding ``against a 
person in the United States''), and we have added language to clarify 
that the mandatory dismissal in this provision is only for Title IX 
purposes and does not preclude a recipient from responding to 
allegations under a recipient's non-Title IX codes of conduct.
    We are also persuaded by commenters who expressed concern that the 
proposed rules did not provide an avenue for reviewing or appealing a 
recipient's initial determination to dismiss allegations under this 
provision, and we have revised Sec.  106.45(b)(3)(iii) to require the 
recipient to notify the parties of a dismissal decision, and we have 
revised Sec.  106.45(b)(8) to give both parties equal right to appeal a 
dismissal decision.
    The Sec.  106.45 grievance process obligates recipients to 
investigate and adjudicate allegations of sexual harassment for Title 
IX purposes; the Department does not have authority to require 
recipients to investigate and adjudicate misconduct that is not covered 
under Title IX, nor to preclude a recipient from handling misconduct 
that does not implicate Title IX in the manner the recipient deems fit. 
In response to commenters' concerns, the final regulations clarify that 
dismissal is mandatory where the allegations, if true, would not meet 
the Title IX jurisdictional conditions (i.e., Sec.  106.30 definition 
of sexual harassment, against a person in the United States, in the 
recipient's education program or activity), reflecting the same 
conditions that trigger a recipient's response under Sec.  106.44(a). 
The criticism of many commenters was well-taken as to the lack of 
clarity in the proposed rules regarding a recipient's discretion to 
address allegations subject to the mandatory dismissal through non-
Title IX code of conduct processes. The final regulations therefore 
revise Sec.  106.45(b)(3)(i) to expressly state (emphasis added) that 
``the recipient must dismiss the formal complaint with regard to that 
conduct for purposes of sexual harassment under title IX or this part; 
such a dismissal does not preclude action under another provision of 
the recipient's code of conduct.'' The Department notes that recipients 
retain the flexibility to employ supportive measures in response to 
allegations of conduct that does not fall under Title IX's purview, as 
well as to investigate such conduct under the recipient's own code of 
conduct at the recipient's discretion. This clarifies that the 
Department does not intend to dictate how a recipient responds with 
respect to conduct that does not meet the conditions specified in Sec.  
106.44(a). For similar reasons, the Department does not believe that it 
has the authority to make dismissal optional by changing ``must 
dismiss'' to ``may dismiss'' because that change would imply that if a 
recipient chose not to dismiss allegations about conduct that does not 
meet the conditions specified in Sec.  106.44(a), the Department would 
nonetheless hold the recipient accountable for following the prescribed 
grievance process, but the Sec.  106.45 grievance process is only 
required for conduct that falls under Title IX. The Department 
therefore retains the mandatory dismissal language in this provision 
and adds the clarifying language described above. Thus, these final 
regulations leave recipients discretion to address allegations of 
misconduct that do not trigger a recipient's Title IX response 
obligations due to not meeting the Section 106.30 definition of sexual 
harassment, not occurring in the recipient's education program or 
activity, or not occurring against a person in the U.S.
    Changes: We are revising Sec.  106.45(b)(3)(i) to add ``against a 
person in the United States'' to align this provision with the 
conditions stated in Sec.  106.44(a). We are also revising Sec.  
106.45(b)(3)(i) to clarify that a mandatory dismissal under this 
provision is a dismissal for purposes of Title IX and does not preclude 
action under another provision of the recipient's code of conduct. We 
add Sec.  106.45(b)(3)(iii) to require recipients to send the parties 
written notice of any dismissal decision, and we have revised Sec.  
106.45(b)(8) to give both parties equal rights to appeal a recipient's 
dismissal decisions.
Section 106.45(b)(3)(ii)-(iii) Discretionary Dismissals/Notice of 
Dismissal
    Comments: Some commenters suggested that the Department provide 
greater flexibility to institutions to decide whether or not a full 
investigation is merited. For instance, some commenters suggested that 
in circumstances involving a frivolous accusation, a matter that has 
already been investigated, complaints by multiple complainants none of 
whom are willing to participate in the grievance process, or when there 
has been an unreasonable delay in filing that could prejudice the 
respondent, the Department should grant institutions greater 
flexibility to determine whether or not to start or continue a formal 
investigation. At least one commenter suggested that, if greater 
flexibility were provided, institutions should also be required to 
document why they did not choose to conduct a formal investigation. 
Other commenters requested that the Department expand victims' options 
for institutional responses to include non-adversarial choices.
    Discussion: We are persuaded by the commenters urging the 
Department to grant recipients greater discretion and flexibility to 
dismiss formal complaints under certain circumstances. Accordingly, we 
are revising Sec.  106.45(b)(3) to permit discretionary dismissals. 
Specifically, the Department is adding Sec.  106.45(b)(3)(ii), which 
allows (but does not require) recipients to dismiss formal complaints 
in three specified circumstances: Where a complainant notifies the 
Title IX

[[Page 30290]]

Coordinator in writing that the complainant would like to withdraw the 
formal complaint or any allegations therein; where the respondent is no 
longer enrolled or employed by the recipient; or where specific 
circumstances prevent the recipient from gathering evidence sufficient 
to reach a determination as to the allegations contained in the formal 
complaint.
    The Department believes that Sec.  106.45(b)(3)(ii) reaffirms the 
autonomy of complainants and their ability to choose to remove 
themselves from the formal grievance process at any point, while 
granting recipients the discretion to proceed with an investigation 
against a respondent even where the complainant has requested that the 
formal complaint or allegations be withdrawn (for example, where the 
recipient has gathered evidence apart from the complainant's statements 
and desires to reach a determination regarding the respondent's 
responsibility). By granting recipients the discretion to dismiss in 
situations where the respondent is no longer a student or employee of 
the recipient, the Department believes this provision appropriately 
permits a recipient to make a dismissal decision based on reasons that 
may include whether a respondent poses an ongoing risk to the 
recipient's community, whether a determination regarding responsibility 
provides a benefit to the complainant even where the recipient lacks 
control over the respondent and would be unable to issue disciplinary 
sanctions, or other reasons.\1143\ The final category of discretionary 
dismissals addresses situations where specific circumstances prevent a 
recipient from meeting the recipient's burden to collect evidence 
sufficient to reach a determination regarding responsibility; for 
example, where a complainant refuses to participate in the grievance 
process (but also has not decided to send written notice stating that 
the complainant wishes to withdraw the formal complaint), or where the 
respondent is not under the authority of the recipient (for instance 
because the respondent is a non-student, non-employee individual who 
came onto campus and allegedly sexually harassed a complaint), and the 
recipient has no way to gather evidence sufficient to make a 
determination, this provision permits dismissal. The Department wishes 
to emphasize that this provision is not the equivalent of a recipient 
deciding that the evidence gathered has not met a probable or 
reasonable cause threshold or other measure of the quality or weight of 
the evidence, but rather is intended to apply narrowly to situations 
where specific circumstances prevent the recipient from meeting its 
burden in Sec.  106.45(b)(5)(i) to gather sufficient evidence to reach 
a determination. Accordingly, a recipient should not apply a 
discretionary dismissal in situations where the recipient does not know 
whether it can meet the burden of proof under Sec.  106.45(b)(5)(i). 
Decisions about whether the recipient's burden of proof has been 
carried must be made in accordance with Sec. Sec.  106.45(b)(6)-(7)--
not prematurely made by persons other than the decision-maker, without 
following those adjudication and written determination requirements.
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    \1143\ The Department notes that the Elementary and Secondary 
Education Act of 1965 (ESEA), as amended by the Every Student 
Succeeds Act (ESSA), may require a recipient subject to ESEA to take 
certain steps with respect to an employee who has been accused of 
sexual misconduct and that continuing a Title IX sexual harassment 
investigation even when the accused employee has left the 
recipient's employ may assist the recipient in knowing whether the 
recipient does, or does not, have probable cause to believe the 
employee engaged in sexual misconduct. E.g., https://www2.ed.gov/policy/elsec/leg/essa/section8546dearcolleagueletter.pdf.
---------------------------------------------------------------------------

    The Department declines to authorize a discretionary dismissal for 
``frivolous'' or ``meritless'' allegations because many commenters have 
expressed to the Department well-founded concerns that complainants 
have faced disbelief or skepticism when reporting sexual harassment, 
and the Department believes that where a complainant has filed a formal 
complaint, the recipient must be required to investigate the 
allegations without dismissing based on a conclusion that the 
allegations are frivolous, meritless, or otherwise unfounded, because 
the point of the Sec.  106.45 grievance process is to require the 
recipient to gather and objectively evaluate relevant evidence before 
reaching conclusions about the merits of the allegations. In making the 
revisions to Sec.  106.45(b)(3)(ii) authorizing three grounds for a 
discretionary dismissal of a formal complaint (or allegations therein), 
the Department believes it is reaching a fair balance between 
obligating the recipient to fully investigate all allegations that a 
complainant has presented in a formal complaint, with the recognition 
that certain circumstances render completion of an investigation 
futile. Because these three grounds for dismissal are discretionary 
rather than mandatory, the recipient retains discretion to take into 
account the unique facts and circumstances of each case before reaching 
a dismissal decision.
    Finally, we are also persuaded by commenters' recommendations that 
the Department offer the parties an appeal from a recipient's dismissal 
decisions. The final regulations add Sec.  106.45(b)(3)(iii) requiring 
that the recipient promptly send the parties written notice so that the 
parties know when a formal complaint (or allegations therein) has been 
dismissed (whether under mandatory dismissal, or discretionary 
dismissal), including the reason for the dismissal. This requirement 
promotes a fair process by informing both parties of recipient's 
actions during the grievance process particularly as to a matter as 
significant as a dismissal of a formal complaint (or allegations 
therein). Including an explicit notice requirement under this provision 
is also consistent with the Department's goal of providing greater 
clarity and transparency as to a recipient's obligations and what the 
parties to a formal grievance process can expect. The final regulations 
also revise the appeals provision at Sec.  106.45(b)(8) to allow the 
parties equal opportunity to appeal any dismissal decision of the 
recipient.
    Changes: The Department is adding Sec.  106.45(b)(3)(ii) to specify 
three situations where a recipient is permitted but not required to 
dismiss a formal complaint: Where a complainant notifies the Title IX 
Coordinator in writing that the complainant would like to withdraw the 
formal complaint or any allegations therein; where the respondent is no 
longer enrolled or employed by the recipient; or where specific 
circumstances prevent the recipient from gathering evidence sufficient 
to reach a determination as to the allegations contained in the formal 
complaint. The Department is also adding Sec.  106.45(b)(3)(iii) to 
require a recipient to notify the parties, in writing, as to any 
mandatory or discretionary dismissal and reasons for the dismissal. We 
also revise the appeals provision at Sec.  106.45(b)(8) to allow the 
parties equal opportunity to appeal any dismissal decision of the 
recipient.
Section 106.45(b)(4) Consolidation of Formal Complaints
    Comments: One commenter suggested revising references to ``both 
parties'' to ``all parties'' to account for incidents that involve more 
than two parties. One commenter criticized the proposed rules for 
seeming to contemplate that sexual harassment incidents only involve a 
single victim and a single perpetrator and failing to acknowledge that 
the process may involve multiple groups of people on either side. 
Another

[[Page 30291]]

commenter asked the Department to explain how a single incident 
involving multiple parties would be handled. A few commenters asserted 
that some recipients have a practice of not allowing a respondent to 
pursue a counter-complaint against an original complainant, resulting 
in what one commenter characterized as an unfair rule that amounts to 
``first to file, wins.''
    Discussion: In response to commenters' concerns that the proposed 
rules did not sufficiently provide clarity about situations involving 
multiple parties, and in response to commenters who asserted that 
recipients have not always understood how to handle a complaint filed 
by one party against the other party, the Department adds Sec.  
106.45(b)(4), addressing consolidation of formal complaints. The 
Department believes that recipients and parties will benefit from 
knowing that recipients have discretion to consolidate formal 
complaints in situations that arise out of the same facts or 
circumstances and involve more than one complainant, more than one 
respondent, or what amount to counter-complaints by one party against 
the other. Section 106.45(b)(4) further clarifies that where a 
grievance process involves more than one complainant or respondent, 
references to the singular ``party,'' ``complainant'' or ``respondent'' 
include the plural.
    Changes: The final regulations add Sec.  106.45(b)(4) to give 
recipients discretion to consolidate formal complaints of sexual 
harassment where the allegations of sexual harassment arise out of the 
same facts or circumstances. Where a grievance process involves more 
than one complainant or more than one respondent, references in Sec.  
106.45 to the singular ``party,'' ``complainant,'' or ``respondent'' 
include the plural, as applicable.

Investigation

Section 106.45(b)(5)(i) Burdens of Proof and Gathering Evidence Rest on 
the Recipient
    Comments: Some commenters supported this provision based on 
personal stories involving the recipient placing the burden of proof on 
a party when the party had no rights to interview witnesses or inspect 
locations involved in the incident. One commenter supported this 
provision because it is entirely appropriate that complainants not be 
assigned the burden of proof or burden of producing evidence since they 
are seeking equal access to education and it is the school that should 
provide equal access, and removing these burdens from the shoulders of 
the respondent is also an important part of the accused's presumption 
of innocence. One commenter supported placing the burden of proof on 
the recipient because it is always the school's responsibility to 
ensure compliance with Title IX.
    Some commenters believe that placing the burden of proof on the 
recipient is tantamount to putting it on the survivor(s) to prove all 
the elements of the assault, which is an impossible burden and which 
will deter survivor(s) from reporting and recovering from the assault. 
One commenter supported placing the burden of gathering evidence on the 
recipient but not the burden of proof because the recipient is not a 
party to the proceeding. Some commenters expressed concern that this 
provision of the final regulations will cause instability in the system 
because placing the burden of gathering evidence on the recipient 
suggests an adversarial rather than educational process and opens 
recipients up to charges that the recipient failed to do enough to 
gather evidence. Various commenters also contended that this provision 
of the final regulations is too strict and demanding. Some commenters 
suggested that Title IX requires only that an institution demonstrate 
that it did not act with deliberate indifference when it had actual 
knowledge of sexual harassment or sexual assault--not proving whether 
each factual allegation in a complaint has merit--and that requiring a 
recipient to prove each allegation is a burden that Title IX itself has 
not imposed on recipients.
    Some commenters suggested explaining what the recipient can and 
cannot do in pursuit of gathering evidence, or limiting the recipient's 
burden to gathering evidence ``reasonably available.'' Other commenters 
suggested requiring the recipient to investigate all reasonable leads 
and interview all witnesses identified by the parties.
    Discussion: The Department appreciates commenters' support for 
Sec.  106.45(b)(5)(i). The Department agrees with commenters who 
asserted that the recipient is responsible for ensuring equal access to 
education programs and activities and should not place the burden of 
gathering relevant evidence, or meeting a burden of proof, on either 
party; Title IX obligates recipients to operate education programs and 
activities free from sex discrimination, and does not place burdens on 
students or employees who are seeking to maintain the equal educational 
access that recipients are obligated to provide. The Department 
believes that Sec.  106.45(b)(5)(i) is important to providing a fair 
process to both parties by taking the burden of factually determining 
which situations require redress of sexual harassment off the shoulders 
of the parties. At the same time, the final regulations ensure that 
parties may participate fully and robustly in the investigation 
process, by gathering evidence, presenting fact and expert witnesses, 
reviewing the evidence gathered, responding to the investigative report 
that summarizes relevant evidence, and asking questions of other 
parties and witnesses before a decision-maker has reached a 
determination regarding responsibility.
    The Department disagrees that Sec.  106.45(b)(5)(i) places a de 
facto burden of proof on the complainant to prove the elements of an 
alleged assault, and disagrees that this provision is likely to chill 
reporting. To the contrary, this provision clearly prevents a recipient 
from placing that burden on a complainant (or a respondent). The 
Department disagrees that the recipient should bear the burden of 
producing evidence yet not bear the burden of proof at the 
adjudication; the Department recognizes that the recipient is not a 
party to the proceeding, but this does not prevent the recipient from 
presenting evidence to the decision-maker, who must then objectively 
evaluate relevant evidence (both inculpatory and exculpatory) and reach 
a determination regarding responsibility. Nothing about having to carry 
the burden of proof suggests that the recipient must desire or advocate 
for meeting (or not meeting) the burden of proof; to the contrary, the 
final regulations contemplate that the recipient remains objective and 
impartial throughout the grievance process, as emphasized by requiring 
a recipient's Title IX personnel involved in a grievance process to 
serve free from bias and conflicts of interest and to be trained in how 
to serve impartially and how to conduct a grievance process.\1144\ 
Whether the evidence gathered and presented by the recipient (i.e., 
gathered by the investigator and with respect to relevant evidence, 
summarized in an investigative report) does or does not meet the burden 
of proof, the recipient's obligation is the same: To respond to the 
determination regarding responsibility by complying with Sec.  106.45 
(including effectively implementing remedies for the complainant if the 
respondent is determined to be responsible).\1145\
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    \1144\ Section 106.45(b)(1)(iii).
    \1145\ Section 106.45(b)(1)(i); Sec.  106.45(b)(7)(iv).

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[[Page 30292]]

    The Department recognizes that bearing the burden of proof may seem 
uncomfortable for recipients who do not wish to place themselves 
``between'' two members of their community or be viewed as prosecutors 
adversarial to the respondent. The Department does not believe that 
this provision makes Title IX proceedings more adversarial; rather, 
these proceedings are inherently adversarial, often involving competing 
plausible narratives and high stakes for both parties, and recipients 
are obligated to identify and address sexual harassment that occurs in 
the recipient's education program or activity. The final regulations do 
not require a recipient to take an adversarial posture with respect to 
either party, and in fact require impartiality. Ultimately, however, 
the recipient itself must take action in response to the determination 
regarding responsibility that directly affects both parties, and it is 
the recipient's burden to impartially gather evidence and present it so 
that the decision-maker can determine whether the recipient (not either 
party) has shown that the weight of the evidence reaches or falls short 
of the standard of evidence selected by the recipient for making 
determinations. The Department is aware that the final regulations 
contemplate a recipient fulfilling many obligations that, while 
performed by several different individuals, are legally attributable to 
the recipient itself. However, this does not mean that the recipient, 
having appropriately designated individuals to perform certain roles in 
fulfillment of the recipient's obligations, cannot meet a burden to 
gather and collect evidence, present the evidence to a decision-maker, 
and reach a fair and accurate determination. Thus, the Department 
disagrees that this provision is too strict or demanding.
    The Department agrees that the Supreme Court framework for private 
Title IX litigation applies a deliberate indifference standard to known 
sexual harassment (including reports or allegations of sexual 
harassment). As explained in the ``Adoption and Adaption of the Supreme 
Court's Framework to Address Sexual Harassment'' section of this 
preamble, the Department intentionally adopts that framework, and 
adapts it for administrative enforcement purposes so that these final 
regulations hold a recipient liable not only when the recipient may be 
deemed to have intentionally committed sex discrimination (i.e., by 
being deliberately indifferent to actual knowledge of actionable sexual 
harassment) but also when a recipient has violated regulatory 
obligations that, while they may not purport to represent definitions 
of sex discrimination are required in order to further Title IX's non-
discrimination mandate. One of the ways in which the Department adapts 
that framework is concluding that where a complainant wants a recipient 
to investigate allegations, the recipient must conduct an investigation 
and adjudication, and provide remedies to that complainant if the 
respondent is found responsible. While this response may or may not be 
required in private Title IX lawsuits, the Department has determined 
that a consistent, fair grievance process to resolve sexual harassment 
allegations, under the conditions prescribed in the final regulations, 
effectuates the purpose of Title IX to provide individuals with 
effective protections against discriminatory practices.
    The Department appreciates commenters' suggestions that this 
provision be narrowed (e.g., to state that the burden is to gather 
evidence ``reasonably available'') or broadened (e.g., to require 
investigation of ``all'' leads or interviews of all witnesses), or to 
further specify steps a recipient must take to gather evidence. The 
Department believes that the scope of Sec.  106.45(b)(5)(i) 
appropriately obligates a recipient to undertake a thorough search for 
relevant facts and evidence pertaining to a particular case, while 
operating under the constraints of conducting and concluding the 
investigation under designated, reasonably prompt time frames and 
without powers of subpoena. Such conditions limit the extensiveness or 
comprehensiveness of a recipient's efforts to gather evidence while 
reasonably expecting the recipient to gather evidence that is 
available.
    Changes: None.
Section 106.45(b)(5)(ii) Equal Opportunity To Present Witnesses and 
Other Inculpatory/Exculpatory Evidence
    Comments: Many commenters supported Sec.  106.45(b)(5)(ii), 
asserting that it will provide equal opportunity for the parties to 
present witnesses and other evidence. Commenters stated that this 
provision will make the grievance process clearer, provide more 
reliable outcomes, and afford participants important due process 
protections. One commenter asserted that this provision will create 
greater uniformity between Title IX regulations and other justice 
systems in the U.S. designed to deal with similar issues. This 
commenter also asserted that this provision will reduce the risk of a 
false positive guilty finding for an innocent student accused of sexual 
harassment.
    At the same time, one commenter expressed concerns that allowing 
respondents to hear the complainant's evidence and learn the identity 
of the complainants' witnesses will enable the respondent to intimidate 
the complainant, intimidate the complainant's witnesses, or spread lies 
about the complainant. Another commenter argued that previous guidance 
and regulations already allowed for schools to give each party a chance 
to present evidence, so the proposed rules are superfluous.
    Several commenters recounted personal stories about Title IX 
Coordinators failing to consider a respondent's exculpatory evidence, 
including refusing to ask questions the respondent wished to ask the 
complainant or the complainant's witnesses, and refusing to speak with 
the respondent's witnesses. One commenter submitted a personal story 
about the recipient never providing the respondent with the 
complainant's evidence, which the commenter contended severely hindered 
the respondent's ability to defend against the complainant's 
allegations.
    One commenter stated approvingly that a provision similar to Sec.  
106.45(b)(5)(ii) also appears in the Harvard Law School Sexual and 
Gender-Based Harassment Policy, under which all parties are afforded 
due process protections, including the right to present evidence and 
witnesses at a live hearing before an impartial decision maker. Another 
commenter suggested that Sec.  106.45(b)(5)(ii) should give the parties 
an equal opportunity to identify witnesses.
    One commenter believed that the provision is consistent with the 
Sixth Amendment right to confront adverse witnesses, call favorable 
witnesses, as well as the right to effective assistance of counsel. The 
commenter argued that some universities have a practice refusing 
respondents the assistance of counsel, which meant that a young person 
must defend against trained, seasoned Title IX Coordinators who often 
serve as the investigator (and sometimes also the decision-maker) in a 
case. The commenter also cited numerous situations of students being 
prevented from introducing exculpatory evidence ostensibly on the basis 
of the complex rules of evidence applied in courtrooms that 
universities purport to apply to Title IX proceedings, yet universities 
selectively apply court-based evidentiary rules in ways designed to 
disadvantage respondents. Commenters asserted that universities

[[Page 30293]]

allow hearsay and other evidence into Title IX proceedings under the 
argument that the hearings are an ``informal'' or an ``educational'' 
process where more relaxed rules are applied, yet do not carefully 
apply all the court evidentiary rules that ensure hearsay evidence is 
reliable before being admissible, and at the same time refuse to allow 
respondents to cross-examine witnesses who are making non-hearsay 
statements at a hearing.
    One commenter asked the Department to require recipients to provide 
training materials to parties upon request. The commenter requested 
that the training materials must explain what evidence may or may not 
be considered in light of what the commenter believed is bias that most 
Title IX Coordinators hold in favor of victims.
    Discussion: The Department agrees with commenters who asserted that 
Sec.  106.45(b)(5)(ii) will improve the grievance process for all 
parties, and appreciates references to the beneficial impact of other 
laws and policies (including Department guidance) that include similar 
provisions.\1146\ The Department acknowledges the personal experiences 
shared by commenters describing instances in which recipients have 
ignored, discounted, or denied opportunities to introduce exculpatory 
evidence, and the Department also acknowledges that other commenters 
recounted personal experiences involving recipients ignoring, 
discounting, or denying opportunity to introduce inculpatory evidence 
(by, for example, showing evidence to a respondent or respondent's 
attorney without showing it to the complainant). The Department 
appreciates that many recipients already require Title IX personnel to 
allow both parties equal opportunity to present evidence and witnesses, 
but in light of commenters' anecdotal evidence and for reasons 
discussed in the ``Role of Due Process in the Grievance Process'' 
section of this preamble, the reality and perception is that too many 
recipients fail to consider inculpatory or exculpatory evidence 
resulting in real and perceived injustices for complainants and 
respondents. Equal opportunity to present inculpatory evidence and 
exculpatory evidence, including fact witnesses and expert witnesses, is 
an important procedural right and protection for both parties, and will 
improve the reliability and legitimacy of the outcomes recipients reach 
in Title IX sexual harassment grievance processes.
---------------------------------------------------------------------------

    \1146\ As discussed throughout this preamble, including in the 
``Support and Opposition for the Grievance Process in the Sec.  
106.45 Grievance Process'' and the ``Role of Due Process in the 
Grievance Process'' sections of this preamble, the Department has 
considered grievance procedures in use by particular recipients, 
prescribed under various State and other Federal laws, recommended 
by advocacy organizations, and from other sources, and has 
intentionally crafted the Sec.  106.45 grievance process to contain 
those procedural rights and protections that best serve Title IX's 
non-discrimination mandate, comport with constitutional due process 
and fundamental fairness, and may reasonably be implemented in the 
context of an educational institution as opposed to courts of law.
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    The Department received numerous comments expressing concern about 
the potential for retaliation and recounting experiences of retaliation 
suffered by complainants and respondents. The Department has added 
Sec.  106.71 in these final regulations, explicitly prohibiting any 
person from intimidating, threatening, coercing, or discriminating 
against another individual for the purpose of interfering with any 
right or privilege secured by Title IX. The retaliation provision also 
requires that the identities of complainants, respondents, and 
witnesses must be kept confidential, except as permitted by FERPA, 
required by law, or to the extent necessary to carry out a Title IX 
grievance process. Section 106.71 also authorizes parties to file 
complaints alleging retaliation under Sec.  106.8(c) which requires 
recipients to adopt and publish grievance procedures that provide for 
the prompt and equitable resolution of complaints of sex 
discrimination. The Department believes that this provision will deter 
retaliation, as well as afford parties and the recipient the 
opportunity promptly to redress retaliation that does occur.
    In response to commenters who asserted that recipients should 
specify in their materials used to train Title IX personnel what 
evidence is relevant or admissible, we have revised Sec.  
106.45(b)(1)(iii) to require a recipient's investigators and decision-
makers to receive training on issues of relevance,\1147\ including for 
a decision-maker training on when questions about a complainant's prior 
sexual history are deemed ``not relevant'' under Sec.  106.45(b)(6). 
Section 106.45(b)(1)(iii) continues to require training on how to 
conduct an investigation and grievance process, such that each aspect 
of a recipient's procedural rules (including evidentiary rules) that a 
recipient must adopt in order to comply with these regulations, and any 
additional rules that are consistent with these final 
regulations,\1148\ must be included in the training for a recipient's 
Title IX personnel. Further, if a recipient trains Title IX personnel 
to evaluate, credit, or assign weight to types of relevant, admissible 
evidence, that topic will be reflected in the recipient's training 
materials. The Department agrees with commenters who urged the 
Department to require that the recipients publicize their training 
materials, because such a requirement will improve the transparency of 
a recipient's grievance process. Accordingly, the Department requires 
recipients to make materials used to train a recipient's Title IX 
personnel publicly available on recipients' websites, under Sec.  
106.45(b)(10).
---------------------------------------------------------------------------

    \1147\ For discussion of these final regulations' requirement 
that relevant evidence, and only relevant evidence, must be 
objectively evaluated to reach a determination regarding 
responsibility, and the specific types of evidence that these final 
regulations deem irrelevant or excluded from consideration in a 
grievance process (e.g., a complainant's prior sexual history, any 
party's medical, psychological, and similar records, any information 
protected by a legally recognized privilege, and (as to 
adjudications by postsecondary institutions), party or witness 
statements that have not been subjected to cross-examination at a 
live hearing, see the ``Hearings'' subsection of the ``Section 
106.45 Recipient's Response to Formal Complaints'' section of this 
preamble.
    \1148\ The revised introductory sentence of Sec.  106.45(b) 
expressly allows recipients to adopt rules that apply to the 
recipient's grievance process, other than those required under Sec.  
106.45, so long as such additional rules apply equally to both 
parties. For example, a postsecondary institution recipient may 
adopt reasonable rules of order and decorum to govern the conduct of 
live hearings.
---------------------------------------------------------------------------

    Changes: We are revising Sec.  106.45(b)(5)(ii) to require 
recipients to provide an equal opportunity for all parties to present 
both fact and expert witnesses. We are also revising Sec.  
106.45(b)(10) to require recipients to make the materials used to train 
Title IX personnel publicly available on recipients' websites or, if a 
recipient does not have a website, available upon request for 
inspection by members of the public. We have also added Sec.  106.71 to 
the final regulations to expressly prohibit retaliating against any 
individual for exercising rights under Title IX.
    Comments: One commenter requested the Department to modify Sec.  
106.45(b)(5)(ii) to expressly allow a party's mental health history to 
be introduced as evidence. One commenter argued that the respondent 
should be permitted to admit as evidence instances where the 
complainant had accused other students of sexual misconduct in the 
past. One commenter argued that complainants often receive the benefit 
of certain types of evidence, such as hearsay and victim impact 
statements, while respondents are denied the use of the same evidence 
and arguments. The commenter asked the Department to level the playing 
field by allowing respondents to write their own

[[Page 30294]]

impact statement and present evidence such as the results of lie 
detector tests if the hearing allows complainants the use of similar 
evidence. Another commenter asked the Department to direct recipients 
to exclude irrelevant evidence.
    One commenter suggested that, at the initial complaint stage, 
complainants should be able to present additional evidence to prevent 
the recipient from quickly dismissing the complainant's complaint and 
if the complainant can provide sufficient evidence, then the commenter 
asked the Department to require the recipient to open a case and 
investigate the allegations. A few commenters asked the Department to 
afford both parties the right to present evidence, not just at the 
investigation stage, but also during the hearings themselves and during 
the appeal process. One commenter suggested that the Department should 
require recipients to consider new evidence at the hearing, including 
evidence of retaliation or additional harassment by the respondent.
    Discussion: A recipient's grievance process must objectively 
evaluate all relevant evidence (Sec.  106.45(b)(1)(ii)). Section 
106.45(b)(5)(iii) of these final regulations requires the recipients to 
refrain from restricting the ability of either party to gather and 
present relevant evidence. Section 106.45(b)(5)(vi) permits both 
parties equal opportunity to inspect and review all evidence directly 
related to the allegations. Section 106.45(b)(6)(i)-(ii) directs the 
decision-maker to allow parties to ask witnesses all relevant questions 
and follow-up questions, and Sec.  106.45(b)(6)(i) expressly states 
that only relevant cross-examination questions may be asked at a live 
hearing. The requirement for recipients to summarize and evaluate 
relevant evidence, and specification of certain types of evidence that 
must be deemed not relevant or are otherwise inadmissible in a 
grievance process pursuant to Sec.  106.45, appropriately directs 
recipients to focus investigations and adjudications on evidence 
pertinent to proving whether facts material to the allegations under 
investigation are more or less likely to be true (i.e., on what is 
relevant). At the same time, Sec.  106.45 deems certain evidence and 
information not relevant or otherwise not subject to use in a grievance 
process: Information protected by a legally recognized privilege; 
\1149\ evidence about a complainant's prior sexual history; \1150\ any 
party's medical, psychological, and similar records unless the party 
has given voluntary, written consent; \1151\ and (as to adjudications 
by postsecondary institutions), party or witness statements that have 
not been subjected to cross-examination at a live hearing.\1152\
---------------------------------------------------------------------------

    \1149\ Section 106.45(b)(1)(x).
    \1150\ Section 106.45(b)(6)(i)-(ii).
    \1151\ Section 106.45(b)(5)(i).
    \1152\ Section 106.45(b)(6)(i).
---------------------------------------------------------------------------

    These final regulations require objective evaluation of relevant 
evidence, and contain several provisions specifying types of evidence 
deemed irrelevant or excluded from consideration in a grievance 
process; a recipient may not adopt evidentiary rules of admissibility 
that contravene those evidentiary requirements prescribed under Sec.  
106.45. For example, a recipient may not adopt a rule excluding 
relevant evidence whose probative value is substantially outweighed by 
the danger of unfair prejudice; although such a rule is part of the 
Federal Rules of Evidence, the Federal Rules of Evidence constitute a 
complex, comprehensive set of evidentiary rules and exceptions designed 
to be applied by judges and lawyers, while Title IX grievance processes 
are not court trials and are expected to be overseen by layperson 
officials of a school, college, or university rather than by a judge or 
lawyer. Similarly, a recipient may not adopt rules excluding certain 
types of relevant evidence (e.g., lie detector test results, or rape 
kits) where the type of evidence is not either deemed ``not relevant'' 
(as is, for instance, evidence concerning a complainant's prior sexual 
history \1153\) or otherwise barred from use under Sec.  106.45 (as is, 
for instance, information protected by a legally recognized privilege 
\1154\). However, the Sec.  106.45 grievance process does not prescribe 
rules governing how admissible, relevant evidence must be evaluated for 
weight or credibility by a recipient's decision-maker, and recipients 
thus have discretion to adopt and apply rules in that regard, so long 
as such rules do not conflict with Sec.  106.45 and apply equally to 
both parties.\1155\ In response to commenters' concerns that the final 
regulations do not specify rules about evaluation of evidence, and 
recognizing that recipients therefore have discretion to adopt rules 
not otherwise prohibited under Sec.  106.45, the final regulations 
acknowledge this reality by adding language to the introductory 
sentence of Sec.  106.45(b): ``Any provisions, rules, or practices 
other than those required by Sec.  106.45 that a recipient adopts as 
part of its grievance process for handling formal complaints of sexual 
harassment, as defined in Sec.  106.30, must apply equally to both 
parties.'' A recipient may, for example, adopt a rule regarding the 
weight or credibility (but not the admissibility) that a decision-maker 
should assign to evidence of a party's prior bad acts, so long as such 
a rule applied equally to the prior bad acts of complainants and the 
prior bad acts of respondents. Because a recipient's investigators and 
decision-makers must be trained specifically with respect to ``issues 
of relevance,'' \1156\ any rules adopted by a recipient in this regard 
should be reflected in the recipient's training materials, which must 
be publicly available.\1157\
---------------------------------------------------------------------------

    \1153\ Section 106.45(b)(6)(i)-(ii).
    \1154\ Section 106.45(b)(1)(x).
    \1155\ Section 106.45(b) (introductory sentence).
    \1156\ Section 106.45(b)(1)(iii).
    \1157\ Section 106.45(b)(10)(i)(D).
---------------------------------------------------------------------------

    As to a commenter's request that the Department require the 
recipient to investigate a complaint of sexual harassment or assault if 
the complainant can supply enough evidence to overcome the recipient's 
dismissal, the final regulations address mandatory and discretionary 
dismissals, including expressly giving both parties the right to appeal 
a recipient's dismissal decision, and one basis of appeal expressly 
includes where newly discovered evidence may affect the outcome.\1158\ 
Thus, if a recipient dismisses a formal complaint under Sec.  
106.45(b)(3)(i) because, for instance, the recipient concludes that the 
misconduct alleged does not meet the definition of sexual harassment in 
Sec.  106.30, the complainant can appeal that dismissal, for example by 
asserting that newly discovered evidence demonstrates that the 
misconduct in fact does meet the Sec.  106.30 definition of sexual 
harassment, or alternatively by asserting procedural irregularity on 
the basis that the alleged conduct in fact does meet the definition of 
Sec.  106.30 sexual harassment and thus mandatory dismissal was 
inappropriate under Sec.  106.45(b)(3)(i).
---------------------------------------------------------------------------

    \1158\ Section 106.45(b)(8).
---------------------------------------------------------------------------

    As to commenters' request to allow both parties to introduce new 
evidence at every stage, including the hearing and on appeal, the final 
regulations require recipients to allow both parties equally to appeal 
on certain bases including newly discovered evidence that may affect 
the outcome of the matter (as well as on the basis of procedural 
irregularity, or conflict of interest of bias, that may have affected 
the outcome).\1159\ For reasons discussed above, the Department 
declines to be

[[Page 30295]]

more prescriptive than the Department believes is necessary to ensure a 
consistent, fair grievance process, and thus leaves decisions about 
other circumstances under which a party may offer or present evidence 
in the recipient's discretion, so long as a recipient's rules in this 
regard comply with Sec.  106.45(b)(5)(ii) by giving ``equal 
opportunity'' to both parties to present witnesses (including fact 
witnesses and expert witnesses) and other evidence (including 
inculpatory and exculpatory evidence).
---------------------------------------------------------------------------

    \1159\ Id.
---------------------------------------------------------------------------

    Changes: The Department is revising Sec.  106.45(b)(5)(ii) to add 
the phrase ``including fact and expert witnesses'' to clarify that the 
equal opportunity to present witnesses must apply to experts. The final 
regulations also add language to the introductory sentence of Sec.  
106.45(b) stating that rules adopted by a recipient for use in the 
grievance process must apply equally to both parties. We have also 
added Sec.  106.45(b)(1)(x) prohibiting use of information protected by 
a legally recognized privilege. We have also revised Sec.  
106.45(b)(5)(i) prohibiting use of a party's medical, psychological, 
and other treatment records without the party's voluntary, written 
consent.
Section 106.45(b)(5)(iii) Recipients Must Not Restrict Ability of 
Either Party To Discuss Allegations or Gather and Present Relevant 
Evidence
    Comments: Some commenters expressed support for Sec.  
106.45(b)(5)(iii), noting that First Amendment free speech issues are 
implicated when schools impose ``gag orders'' on parties' ability to 
speak about a Title IX situation. A few commenters noted that 
recipients' application of gag orders ends up preventing parties from 
collecting evidence by preventing them from talking to possible 
witnesses, and even from calling parents or friends for support.
    Many commenters argued that this provision will harm survivors and 
chill reporting because survivors often feel severe distress when other 
students know of the survivor's report, or experience stigma and 
backlash when other students find out the survivor made a formal 
complaint, which deters reporting.\1160\ Other commenters argued that a 
provision that permits sensitive information to be disseminated and 
even published on social media or campus newspapers results in loss of 
privacy and anonymity that betrays already-traumatized survivors. Other 
commenters opposed this provision fearing it will negatively affect 
both parties by leading to gossip, shaming, retaliation, and 
defamation. Other commenters believed this provision opens the door to 
witness or evidence tampering and intimidation and/or interference with 
the investigation. Other commenters asserted that the final regulations 
should permit each party to identify witnesses but then permit only the 
recipient to discuss the allegations with the witnesses, because 
witnesses might be more forthcoming with an investigator than with a 
party.
---------------------------------------------------------------------------

    \1160\ Commenters cited: Alan M. Gross et al., An examination of 
sexual violence against college women, 12 Violence Against Women 3 
(2006).
---------------------------------------------------------------------------

    Some commenters believed that with regard to elementary and 
secondary schools, the final regulations should clarify the extent to 
which this provision applies because common sense suggests that a 
school administrator, such as a principal, should be able to restrict a 
student from randomly or maliciously discussing allegations of sexual 
harassment without impeding the student's ability to participate in the 
formal complaint process.
    Several commenters urged the Department to modify this provision in 
one or more of the following ways: The parties must be permitted to 
discuss allegations only with those who have a need to know those 
allegations; the recipient may limit any communication to solely 
neutral communication specifically intended to gather witnesses and 
evidence or participate in the grievance process; the recipient may 
limit the parties' communication or contact with each other during the 
investigation and prohibit disparaging communications, if those limits 
apply equally to both parties; recipients must be permitted to restrict 
the discussion or dissemination of materials marked as confidential; 
while parties should be allowed to discuss the general nature of the 
allegations under investigation, recipients should have the authority 
to limit parties from discussing specific evidence provided under Sec.  
106.45(b)(5)(vi) with anyone other than their advisor; the evidence 
discussed should be limited to that which is made accessible to the 
decision-maker(s), which mirrors the requirements in VAWA; the final 
regulations should provide an initial warning that neither party is to 
aggravate the problem in any manner; the final regulations should 
include language permitting the issuance of ``no contact'' orders as a 
supportive measure; the final regulations should prohibit parties from 
engaging in retaliatory conduct in violation of institutional policies.
    Discussion: The Department appreciates commenters' support for 
Sec.  106.45(b)(5)(iii). The Department acknowledges the concerns 
expressed by other commenters concerned about confidentiality and 
retaliation problems that may arise from application of this provision. 
This provision contains two related requirements: That a recipient not 
restrict a party's ability to (i) discuss the allegations under 
investigation or (ii) gather and present evidence. The two requirements 
overlap somewhat but serve distinct purposes.
    As to this provision's requirement that a recipient not restrict a 
party's ability to discuss the allegations under investigation, the 
Department believes that a recipient should not, under the guise of 
confidentiality concerns, impose prior restraints on students' and 
employees' ability to discuss (i.e., speak or write about) the 
allegations under investigation, for example with a parent, friend, or 
other source of emotional support, or with an advocacy organization. 
Many commenters have observed that the grievance process is stressful, 
difficult to navigate, and distressing for both parties, many of whom 
in the postsecondary institution context are young adults ``on their 
own'' for the first time, and many of whom in the elementary and 
secondary school context are minors. The Department does not believe 
recipients should render parties feeling isolated or alone through the 
grievance process by restricting parties' ability to seek advice and 
support outside the recipient's provision of supportive measures. Nor 
should a party face prior restraint on the party's ability to discuss 
the allegations under investigation where the party intends to, for 
example, criticize the recipient's handling of the investigation or 
approach to Title IX generally. The Department notes that student 
activism, and employee publication of articles and essays, has spurred 
many recipients to change or improve Title IX procedures, and often 
such activism and publications have included discussion by parties to a 
Title IX grievance process of perceived flaws in the recipient's Title 
IX policies and procedures. The Department further notes that Sec.  
106.45(b)(5)(iii) is not unlimited in scope; by its terms, this 
provision stops a recipient from restricting parties' ability to 
discuss ``the allegations under investigation.'' This provision does 
not, therefore, apply to discussion of information that does not 
consist of ``the allegations under investigation'' (for example, 
evidence related to the allegations that has been collected and 
exchanged between the parties and their

[[Page 30296]]

advisors during the investigation under Sec.  106.45(b)(5)(vi), or the 
investigative report summarizing relevant evidence sent to the parties 
and their advisors under Sec.  106.45(b)(5)(vii)).
    As to the requirement in Sec.  106.45(b)(5)(iii) that recipients 
must not restrict parties' ability ``to gather and present evidence,'' 
the purpose of this provision is to ensure that parties have equal 
opportunity to participate in serving their own respective interests in 
affecting the outcome of the case. This provision helps ensure that 
other procedural rights under Sec.  106.45 are meaningful to the 
parties; for example, while the parties have equal opportunity to 
inspect and review evidence gathered by the recipient under Sec.  
106.45(b)(5)(vi), this provision helps make that right meaningful by 
ensuring that no party's ability to gather evidence (e.g., by 
contacting a potential witness, or taking photographs of the location 
where the incident occurred) is hampered by the recipient.
    Finally, the two requirements of this provision sometimes overlap, 
such as where a party's ability to ``discuss the allegations under 
investigation'' is necessary precisely so that the party can ``gather 
and present evidence,'' for example to seek advice from an advocacy 
organization or explain to campus security the need to access a 
building to inspect the location of an alleged incident.
    The Department appreciates the opportunity to clarify that this 
provision in no way immunizes a party from abusing the right to 
``discuss the allegations under investigation'' by, for example, 
discussing those allegations in a manner that exposes the party to 
liability for defamation or related privacy torts, or in a manner that 
constitutes unlawful retaliation. In response to many commenters 
concerned that the proposed rules did not address retaliation, the 
final regulations add Sec.  106.71 prohibiting retaliation and stating 
in relevant part (emphasis added): ``No recipient or other person may 
intimidate, threaten, coerce, or discriminate against any individual 
for the purpose of interfering with any right or privilege secured by 
title IX or this part[.]'' \1161\ The Department thus believes that 
Sec.  106.45(b)(5)(iii)--permitting the parties to discuss the 
allegations under investigation, and to gather and present evidence--
furthers the Department's interest in promoting a fair investigation 
that gives both parties meaningful opportunity to participate in 
advancing the party's own interests in case, while abuses of a party's 
ability to discuss the allegations can be addressed through tort law 
and retaliation prohibitions.
---------------------------------------------------------------------------

    \1161\ As discussed in the ``Retaliation'' section of this 
preamble, Sec.  106.71 takes care to protect the constitutional free 
speech rights of students and employees at public institutions that 
must protect constitutional rights. Nonetheless, abuse of speech 
unprotected by the First Amendment, when such speech amounts to 
intimidation, threats, or coercion for the purpose of chilling 
exercise of a person's Title IX rights, is prohibited retaliation.
---------------------------------------------------------------------------

    The Department recognizes commenters' concerns that some discussion 
about the allegations under investigation may fall short of retaliation 
or tortious conduct, yet still cause harmful effects. For example, 
discussion and gossip about the allegations may negatively impact a 
party's social relationships. For the above reasons, the Department 
believes that the benefits of Sec.  106.45(b)(5)(iii), for both 
parties, outweigh the harm that could result from this provision. This 
provision, by its terms, applies only to discussion of ``the 
allegations under investigation,'' which means that where a complainant 
reports sexual harassment but no formal complaint is filed, Sec.  
106.45(b)(5)(iii) does not apply, leaving recipients discretion to 
impose non-disclosure or confidentiality requirements on complainants 
and respondents. Thus, reporting should not be chilled by this 
provision because it does not apply to a report of sexual harassment 
but only where a formal complaint is filed. One reason why the final 
regulations take great care to preserve a complainant's autonomy to 
file or not file a formal complaint (yet still receive supportive 
measures either way) is because participating in a grievance process is 
a weighty and serious matter, and each complainant should have control 
over whether or not to undertake that process.\1162\ Once allegations 
are made in a formal complaint, a fair grievance process requires that 
both parties have every opportunity to fully, meaningfully participate 
by locating evidence that furthers the party's interests and by 
confiding in others to receive emotional support and for other 
personally expressive purposes. The Department believes that this 
provision, by its plain language, limits the scope of what can be 
discussed, and laws prohibiting tortious speech and invasion of 
privacy, and retaliation prohibitions, protect all parties against 
abusive ``discussion'' otherwise permitted by this provision.
---------------------------------------------------------------------------

    \1162\ As discussed elsewhere in the preamble, including in the 
``Formal Complaint'' subsection of the ``Section 106.30 
Definitions'' section, the decision to initiate a grievance process 
against the wishes of a complainant is one that must be undertaken 
only when the Title IX Coordinator determines that signing a formal 
complaint initiating a grievance process against a respondent is not 
clearly unreasonable in light of the known circumstances.
---------------------------------------------------------------------------

    The Department has considered carefully the concerns of several 
commenters who believe this provision will lead to witness tampering or 
intimidation, or otherwise interfere with a proper investigation. As to 
witness intimidation, such conduct is prohibited under Sec.  106.71(a). 
As to whether a party approaching or speaking to a witness could 
constitute ``tampering,'' the Department believes that generally, a 
party's communication with a witness or potential witness must be 
considered part of a party's right to meaningfully participate in 
furthering the party's interests in the case, and not an 
``interference'' with the investigation. However, where a party's 
conduct toward a witness might constitute ``tampering'' (for instance, 
by attempting to alter or prevent a witness's testimony), such conduct 
also is prohibited under Sec.  106.71(a). Some commenters were 
particularly concerned that a party's communication with a witness 
could result in the witness telling a different story to the party than 
the witness is willing to tell an investigator; any such 
inconsistencies or discrepancies would be taken into account by the 
parties, investigator, and decision-maker but do not necessarily 
constitute ``interference'' with the investigation by the party who 
spoke with the witness. Furthermore, in some situations, a party may 
not know the identity of witnesses until discussing the situation with 
others (for example, asking a roommate who was at the party at which 
the alleged incident occurred so as to discover whether any party 
attendees witnessed relevant events); thus, the Department declines to 
require that only recipients (or their investigators) may communicate 
with witnesses or potential witnesses.
    With respect to commenters concerned about applying this provision 
in elementary and secondary schools, the Department disagrees that this 
provision forbids a school principal from warning students not to speak 
``maliciously'' since malicious discussion intended to interfere with 
the other party's Title IX rights would constitute prohibited 
retaliation.
    For the reasons discussed above, the Department declines to narrow 
or modify this provision per commenters' various suggestions. The 
Department believes that parties, not recipients, should determine who 
has a ``need to know'' about the allegations in order to provide 
advice, support, or assistance to a party during a grievance process; 
for similar reasons, recipients should not

[[Page 30297]]

determine what information to label ``confidential.'' Limiting a 
party's discussions to ``neutral'' communications, or to communications 
solely for the purpose of gathering evidence, would deprive the parties 
of the benefits discussed above, such as seeking emotional support and 
using the party's experience to express viewpoints on the larger issues 
of sexual violence or Title IX policies and procedures; for the same 
reasons the Department declines to narrow this provision to allow 
discussion only with advisors or to require a warning to parties that 
neither party should ``aggravate the problem.'' This provision does not 
affect a recipient's discretion to restrict parties from contact or 
communication with each other through, e.g., mutual no-contact orders 
that meet the definition of supportive measures in Sec.  106.30. Where 
``disparaging communications'' are unprotected under the Constitution 
and violate tort laws or constitute retaliation, such communications 
may be prohibited without violating this provision. This provision 
applies to discussion of ``the allegations under investigation'' and 
not to the evidence subject to the parties' inspection and review under 
Sec.  106.45(b)(5)(vi).
    Changes: The final regulations add Sec.  106.71 prohibiting 
retaliation.
Section 106.45(b)(5)(iv) Advisors of Choice
Supporting Presence and Participation of Advisors
    Comments: Some commenters supported allowing parties to have an 
advisor present because of the severe nature of Title IX charges and 
the potentially life-altering consequences. Commenters argued the 
proposed regulations would promote due process and give students more 
control over the proceedings. Other commenters supported allowing 
students to have an advisor because it will reduce the risk of false 
findings by allowing students to avail themselves of an advisor's 
expertise. Some commenters supported this provision believing the 
proposed regulations will reconcile Title IX proceedings with 
protections that are offered in analogous proceedings, such as criminal 
trials.
    Discussion: The Department appreciates the general support from 
commenters regarding Sec.  106.45(b)(5)(iv), which requires recipients 
to provide all parties with the same opportunities to have advisors 
present in Title IX proceedings and to also have advisors participate 
in Title IX proceedings, subject to equal restrictions on advisors' 
participation, in recipients' discretion. We share commenters' beliefs 
that this provision will make the grievance process substantially more 
thorough and fairer and that the resulting outcomes will be more 
reliable. The Department recognizes the high stakes for all parties 
involved in sexual misconduct proceedings under Title IX, and that the 
outcomes of these cases can carry potentially life-altering 
consequences, and thus believes every party should have the right to 
seek advice and assistance from an advisor of the party's choice. 
However, providing parties the right to select an advisor of choice 
does not align with the constitutional right of criminal defendants to 
be provided with effective representation. The more rigorous 
constitutional protection provided to criminal defendants is not 
necessary or appropriate in the context of administrative proceedings 
held by an educational institution rather than by a criminal court. To 
better clarify that parties' right to an advisor of choice differs from 
the right to legal representation in a criminal proceeding, the final 
regulations revise Sec.  106.45(b)(5)(iv) to specify that the advisor 
of choice may be, but is not required to be, an attorney.
    Changes: To clarify that a recipient may not limit the choice or 
presence of an advisor we have added ``or presence'' to Sec.  
106.45(b)(5)(iv), and we have added language in this section to clarify 
that a party's advisor may be, but is not required to be, an attorney.
Fairness Considerations
    Comments: Some commenters argued that Sec.  106.45(b)(5)(iv) is not 
survivor-centered and will tip the scales in favor of wealthy students 
who can afford counsel.
    Discussion: The Department believes that by permitting both parties 
to receive guidance from an advisor of their choice throughout the 
Title IX proceedings, the process will be substantially more thorough 
and fairer and the resulting outcomes will be more reliable. In 
response to commenters' concerns, the final regulations revise Sec.  
106.45(b)(5)(iv) to specify that a party's chosen advisor may be, but 
is not required to be, an attorney. The Department acknowledges that a 
party's choice of advisor may be limited by whether the party can 
afford to hire an advisor or must rely on an advisor to assist the 
party without fee or charge. The Department wishes to emphasize that 
the status of any party's advisor (i.e., whether a party's advisor is 
an attorney or not), the financial resources of any party, and the 
potential of any party to yield financial benefits to a recipient, must 
not affect the recipient's compliance with Sec.  106.45. The Department 
believes that the clear procedural rights provided to both parties 
during the grievance process give both parties opportunity to advance 
each party's respective interests in the case, regardless of financial 
ability. Further, while the final regulations do not require the 
recipient to pay for parties' advisors, nothing the in the final 
regulations precludes a recipient from choosing to do so.
    Changes: We have added language in Sec.  106.45(b)(5)(iv) to 
clarify that a party's advisor may be, but is not required to be, an 
attorney.
Conflicts of Interest, Confidentiality, and Union Issues
    Comments: Commenters argued that student-picked advisors will have 
a conflict of interest and will raise confidentiality issues. Other 
commenters expressed concern that Sec.  106.45(b)(5)(iv) may conflict 
with a union's duty of providing fair representation in the grievance 
process. One commenter stated that Federal labor law and many State 
labor laws already provide that an employee subject to investigatory 
interviews may have a union representative present for a meeting that 
might lead to discipline.
    Discussion: The Department acknowledges the concerns raised by 
commenters regarding potential conflicts of interest and 
confidentiality issues arising from permitting the presence or 
participation of advisors of a party's choice in Title IX proceedings, 
and potential conflict with labor union duties in grievance processes. 
With respect to potential conflicts of interest, we believe that 
parties are in the best position to decide which individuals should 
serve as their advisors. Advisors, for example, may be friends, family 
members, attorneys, or other individuals with whom the party has a 
trusted relationship. The Department believes it would be inappropriate 
for it to second guess this important decision.
    With respect to confidentiality, the Department notes that 
commenters who raised this issue did not explain exactly how parties' 
confidentiality interests would be compromised by permitting them to 
have an advisor of choice to attend or participate in Title IX 
proceedings. As explained more fully in the ``Section 106.6(e) FERPA'' 
subsection of the ``Clarifying Amendments to Existing Regulations'' 
section of this preamble, we note that Sec.  106.6(e) of the final 
regulations makes it clear that the final regulations should be 
interpreted to be consistent with a recipient's obligations under 
FERPA. Recipients may require advisors to use

[[Page 30298]]

the evidence received for inspection and review under Sec.  
106.45(b)(5)(vi) as well as the investigative report under Sec.  
106.45(b)(5)(vii) only for purposes of the grievance process under 
Sec.  106.45 and require them not to further disseminate or disclose 
these materials. Additionally, these final regulations do not prohibit 
a recipient from using a non-disclosure agreement that complies with 
these final regulations and other applicable laws.
    Lastly, it is not the intent of the Department to undermine the 
important role that union advisors may play in grievance proceedings. 
However, we wish to clarify that in the event of an actual conflict 
between a union contract or practice and the final regulations, then 
the final regulations would have preemptive effect.\1163\ We note that 
the final regulations do not preclude a union lawyer from serving as an 
advisor to a party in a proceeding.
---------------------------------------------------------------------------

    \1163\ For further discussion see the ``Section 106.6(h) 
Preemptive Effect'' subsection of the ``Clarifying Amendments to 
Existing Regulations'' section of this preamble.
---------------------------------------------------------------------------

    Changes: None.
Modification Requests
    Comments: Some commenters argued that Sec.  106.45(b)(5)(iv) 
conflicts with past guidance from the Department. Other commenters 
argued that advisors should not be allowed so students can learn to 
speak for themselves. Some commenters opposed this provision because 
they believe there should be no limits on attorney participation in 
grievance procedures. Some commenters argued that recipients should 
provide each party with an advisor to assist them throughout the 
grievance process. Some commenters expressed concern that the presence 
of advisors could complicate the proceedings, for instance, if the 
advisor was needed to also serve as a witness, if the advisor did not 
wish to take part in cross-examinations, if taking part in cross-
examinations would adversely affect a teacher-student relationship, or 
if the advisor had limited availability to attend hearings and 
meetings. Other commenters suggested there should be no limits placed 
on who can serve as an advisor and that advisors should be allowed to 
be fully active participants, especially on behalf of students with 
disabilities or international students who may need active 
representation by counsel. Other commenters suggested that advisors 
should be required to be attorneys in order to avoid unauthorized 
practice of law.
    Discussion: With respect to allowing advisors of choice, who may be 
attorneys, and the participation of such advisors in grievance 
procedures, these final regulations take a similar approach to 
Department guidance, with two significant differences. The withdrawn 
2011 Dear Colleague Letter stated that recipients could ``choose'' to 
allow students to be represented by lawyers during grievance procedures 
and directed that any rules about a lawyer's appearance or 
participation must apply equally to both parties.\1164\ These final 
regulations better align the Department's approach to advisors of 
choice for Title IX purposes with the Clery Act as amended by 
VAWA,\1165\ clarifying that in a Title IX grievance process recipients 
must allow parties to select advisors of the parties' choice, who may 
be, but need not be, attorneys, while continuing to insist that any 
restrictions on the active participation of advisors during the 
grievance process must apply equally to both parties. Unlike Department 
guidance or Clery Act regulations, these final regulations implementing 
Title IX specify that when live hearings are held by postsecondary 
institutions, the recipient must permit a party's advisor to conduct 
cross-examination on behalf of a party.\1166\ The Department believes 
that requiring recipients to allow both parties to have an advisor of 
their own choosing accompany them throughout the Title IX grievance 
process, and also to participate within limits set by recipients, is 
important to ensure fairness for all parties. For discussion of the 
reasons why cross-examination at a live hearing must be conducted by a 
party's advisor rather than by parties personally, see the ``Hearings'' 
subsection of the ``Section 106.45 Recipient's Response to Formal 
Complaints'' section of this preamble. As discussed above, the 
Department believes that Sec.  106.45(b)(5)(iv) will help to make the 
grievance process substantially more thorough and fairer, and the 
resulting outcomes more reliable. While nothing in the final 
regulations discourages parties from speaking for themselves during the 
proceedings, the Department believes it is important that each party 
have the right to receive advice and assistance navigating the 
grievance process. As such, we decline to forbid parties from obtaining 
advisors of choice. Section 106.45(b)(5)(iv) (allowing recipients to 
place restrictions on active participation by party advisors) and the 
revised introductory sentence to Sec.  106.45(b) (requiring any rules a 
recipient adopts for its grievance process other than rules required 
under Sec.  106.45 to apply equally to both parties) would, for 
example, permit a recipient to require parties personally to answer 
questions posed by an investigator during an interview, or personally 
to make any opening or closing statements the recipient allows at a 
live hearing, so long as such rules apply equally to both parties. We 
do not believe that specifying what restrictions on advisor 
participation may be appropriate is necessary, and we decline to remove 
the discretion of a recipient to restrict an advisor's participation so 
as not to unnecessarily limit a recipient's flexibility to conduct a 
grievance process that both complies with Sec.  106.45 and, in the 
recipient's judgment, best serves the needs and interests of the 
recipient and its educational community. The Department therefore 
disagrees that the final regulations should prohibit recipients from 
imposing any restrictions on the participation of advisors, including 
attorneys, in the Title IX grievance process.\1167\ These final 
regulations ensure that a party's advisor of choice must be included in 
the party's receipt of, for instance, evidence subject to party 
inspection and review,\1168\ and the investigative report,\1169\ so 
that a party's advisor of choice is fully informed throughout the 
investigation in order to advise and assist the party.
---------------------------------------------------------------------------

    \1164\ E.g., 2011 Dear Colleague Letter at 11 (``While OCR does 
not require schools to permit parties to have lawyers at any stage 
of the proceedings, if a school chooses to allow the parties to have 
their lawyers participate in the proceedings, it must do so equally 
for both parties. Additionally, any school-imposed restrictions on 
the ability of lawyers to speak or otherwise participate in the 
proceedings should apply equally.'').
    \1165\ For discussion of the Clery Act and these final 
regulations, see the ``Clery Act'' subsection of the 
``Miscellaneous'' section of this preamble.
    \1166\ Section 106.45(b)(6)(i).
    \1167\ As discussed in the ``Section 106.45(b)(6)(i) 
Postsecondary Institution Recipients Must Provide Live Hearing with 
Cross-Examination'' subsection of the ``Hearings'' subsection of the 
``Section 106.45 Recipient's Response to Formal Complaints'' section 
of this preamble, the final regulations make one exception to the 
provision in Sec.  106.45(b)(5)(iv) that recipients have discretion 
to restrict the extent to which party advisors may actively 
participate in the grievance process: Where a postsecondary 
institution must hold a live hearing with cross-examination, such 
cross-examination must be conducted by party advisors.
    \1168\ Section 106.45(b)(5)(vi) (evidence subject to inspection 
and review must be sent electronically or in hard copy to each party 
and the party's advisor of choice).
    \1169\ Section 106.45(b)(5)(vii) (a copy of the investigative 
report must be sent electronically or in hard copy to each party and 
the party's advisor of choice).
---------------------------------------------------------------------------

    The Department understands the concerns of commenters who raised 
the question of whether acting as a party's advisor of choice could 
constitute the practice of law such that parties will feel obligated to 
hire licensed attorneys

[[Page 30299]]

as advisors of choice, to avoid placing non-attorney advisors (such as 
a professor, friend, or advocacy organization volunteer) in the 
untenable position of potentially violating State laws that prohibit 
the unauthorized practice of law.\1170\ While the issues raised by 
allegations of sexual misconduct may make it preferable or advisable 
for one or both parties to receive legal advice or obtain legal 
representation, the Department recognizes school disciplinary 
proceedings, including the grievance process required under these final 
regulations, as an administrative setting that does not require either 
party to be represented by an attorney. The Department believes that 
the Sec.  106.45 grievance process sets forth clear, transparent 
procedural rules that enable parties and non-lawyer party advisors 
effectively to navigate the grievance process. Because the grievance 
process occurs in an educational setting and does not require court 
appearances or detailed legal knowledge, the Department believes that 
assisting a party to a grievance process is best viewed not as 
practicing law, but rather as providing advocacy services to a 
complainant or respondent. The Department concludes that with respect 
to Title IX proceedings the line between assisting a party, and 
providing legal representation to the party, is a line that has been 
and will continue to be, an issue taken into consideration by students, 
recipients, and advocates pursuant to the variety of State unauthorized 
practice of law statutes.
---------------------------------------------------------------------------

    \1170\ E.g., Michelle Cotton, Experiment, Interrupted: 
Unauthorized Practice of Law Versus Access to Justice, 5 DePaul J. 
for Social Justice 179, 188-89 (2012) (``Most States continue to 
have broad definitions of the practice of law and broad concepts of 
[unauthorized practice of law] UPL that prevent or inhibit the 
involvement of nonlawyers in providing assistance to unrepresented 
persons.''); Derek A. Denckla, Nonlawyers and the Unauthorized 
Practice of Law: An Overview of the Legal and Ethical Parameters, 67 
Fordham L. Rev. 2581, 2585-88 (1999) (noting that in every state, 
nonlawyers are generally prohibited from practicing law, that the 
definition of unauthorized practice of law (UPL) varies widely from 
jurisdiction to jurisdiction, and that exceptions to what 
constitutes UPL often include appearing in administrative 
proceedings).
---------------------------------------------------------------------------

    The Department notes that some commenters argued that the grievance 
process is complex and frequently intersects with legal proceedings 
(for example, when a complainant sues the respondent for civil assault 
or battery, or files a police report that results in a criminal 
proceeding against the respondent), and that legal representation would 
benefit both parties to a Title IX proceeding.\1171\ The Department 
leaves recipients flexibility and discretion to determine whether a 
recipient wishes to provide legal representation to parties in a 
grievance process, but the final regulations do not restrict the right 
of each party to select an advisor with whom the party feels most 
comfortable and believes will best assist the party, and thus clarifies 
in this provision that the party's advisor of choice may be, but is not 
required to be, an attorney.
---------------------------------------------------------------------------

    \1171\ E.g., Merle H. Weiner, Legal Counsel for Survivors of 
Campus Sexual Violence, 29 Yale J. of L. & Feminism 123 (2017) 
(arguing that campuses should provide student survivors with legal 
representation, and noting that providing accused students with 
legal representation is also beneficial).
---------------------------------------------------------------------------

    The Department acknowledges commenters' concerns that advisors may 
also serve as witnesses in Title IX proceedings, or may not wish to 
conduct cross-examination for a party whom the advisor would otherwise 
be willing to advise, or may be unavailable to attend all hearings and 
meetings. Notwithstanding these potential complications that could 
arise in particular cases, the Department believes it would be 
inappropriate to restrict the parties' selection of advisors by 
requiring advisors to be chosen by the recipient, or by precluding a 
party from selecting an advisor who may also be a witness. The 
Department notes that the Sec.  106.45(b)(1)(iii) prohibition of Title 
IX personnel having conflicts of interest or bias does not apply to 
party advisors (including advisors provided to a party by a 
postsecondary institution as required under Sec.  106.45(b)(6)(i)), and 
thus, the existence of a possible conflict of interest where an advisor 
is assisting one party and also expected to give a statement as a 
witness does not violate the final regulations. Rather, the perceived 
``conflict of interest'' created under that situation would be taken 
into account by the decision-maker in weighing the credibility and 
persuasiveness of the advisor-witness's testimony. We further note that 
live hearings with cross-examination conducted by party advisors is 
required only for postsecondary institutions, and the requirement for a 
party's advisor to conduct cross-examination on a party's behalf need 
not be more extensive than simply relaying the party's desired 
questions to be asked of other parties and witnesses.\1172\
---------------------------------------------------------------------------

    \1172\ For further discussion see the ``Hearings'' subsection of 
the ``Section 106.45 Recipient's Response to Formal Complaints'' 
section of this preamble.
---------------------------------------------------------------------------

    Changes: We have added language in Sec.  106.45(b)(5)(iv) to 
clarify that a party's advisor may be, but is not required to be, an 
attorney.
Section 106.45(b)(5)(v) Written Notice of Hearings, Meetings, and 
Interviews
    Comments: Several commenters supported Sec.  106.45(b)(5)(v) 
because it will promote fairness, due process, and increase the 
likelihood of reaching an accurate result. One commenter shared a 
personal story of a family member with a disability who was not allowed 
to prepare a defense after being accused of sexual harassment. Other 
commenters supported this provision believing it offers the same 
protections that would be offered in a criminal trial. Other commenters 
supported this provision believing it will limit the abuse of power 
that can be wielded under Title IX investigations.
    Discussion: The Department agrees with commenters who supported 
this provision on the grounds that it will promote fairness, provides 
both parties with due process protections, and increase the likelihood 
of reaching an accurate result. The Department believes that written 
notice of investigative interviews, meetings, and hearings, with time 
to prepare, permits both parties meaningfully to advance their 
respective interests during the grievance process, which helps ensure 
that relevant evidence is gathered and considered in investigating and 
adjudicating allegations of sexual harassment.
    Changes: None.
    Comments: Several commenters argued that the proposed regulations, 
including Sec.  106.45(b)(5)(v), would be burdensome by requiring 
recipients to provide written notice, placing them under time 
constraints, adding administrative layers, and that these burdens would 
be particularly difficult for elementary and secondary schools.
    Discussion: The Department acknowledges the concern of commenters 
that Sec.  106.45(b)(5)(v) will place a burden on recipients, including 
elementary and secondary schools, but believes the burden associated 
with providing this notice is outweighed by the due process protections 
such notice provides. Because the stakes are high for both parties in a 
grievance process, both parties should receive notice with sufficient 
time to prepare before participating in interviews, meetings, or 
hearings associated with the grievance process, and written notice is 
better calculated to effectively ensure that parties are apprised of 
the date, time, and nature of interviews, meetings, and hearings than 
relying solely on notice in the form of oral communications. For 
example, if a party receives written notice of the date of an 
interview, and needs to request rescheduling of the

[[Page 30300]]

date or time of the interview due to a conflict with the party's class 
schedule, the recipient and parties benefit from having had the 
originally-scheduled notice confirmed in writing so that any 
rescheduled date or time is measured accurately against the original 
schedule. We note that nothing in these final regulations precludes a 
recipient from also conveying notice via in-person, telephonic, or 
other means of conveying the notice, in addition to complying with 
Sec.  106.45(b)(5)(v) by sending written notice.
    Changes: We have made non-substantive revisions to Sec.  
106.45(b)(5)(v), such as changing ``the'' to ``a'' in the opening 
clause ``Provide to a party'' and adding a comma after ``invited or 
expected,'' for clarity.
    Comments: Some commenters argued that the procedures required by 
the proposed regulations are not suited to the campus environment where 
proceedings should not be adversarial, where notice of hearings might 
allow accused students time to destroy evidence and prepare alibis, and 
where it will contribute to underreporting as complainants will feel a 
loss of control or bullied because the proposed regulations are not 
informed by a victim-centered perspective.
    Discussion: The Department disagrees that Sec.  106.45(b)(5)(v), or 
the final regulations overall, increase the adversarial nature of 
sexual misconduct proceedings or incentivize any party to fabricate or 
destroy evidence. Allegations of sexual harassment often present an 
inherently adversarial situation, where parties have different 
recollections and perspectives about the incident at issue. The final 
regulations do not increase the adversarial nature of such a situation, 
but the Sec.  106.45 grievance process (including this provision 
requiring written notice to both parties with time to prepare to 
participate in interviews and hearings) helps ensure that the 
adversarial nature of sexual harassment allegations are investigated 
and adjudicated impartially by the recipient with meaningful 
participation by the parties whose interests are adverse to each 
other.\1173\ Accordingly, the final regulations require schools to 
investigate and adjudicate formal complaints of sexual harassment, and 
to give complainants and respondents a meaningful opportunity to 
participate in the investigation that increases the likelihood that the 
recipient will reach an accurate, reliable determination regarding the 
respondent's responsibility.
---------------------------------------------------------------------------

    \1173\ E.g., Pennsylvania v. Finley, 481 U.S. 551, 568 (1987) 
(``The very premise of our adversarial system . . . is that partisan 
advocacy on both sides of a case will best promote the ultimate 
objective that the guilty be convicted and the innocent go free.'') 
(internal quotation marks and citation omitted); see also Tolan v. 
Cotton, 572 U.S. 650, 660 (2014) (``The witnesses on both sides come 
to this case with their own perceptions, recollections, and even 
potential biases. It is in part for that reason that genuine 
disputes are generally resolved by juries in our adversarial 
system.'').
---------------------------------------------------------------------------

    The Department does not agree that providing the parties with 
advance notice of investigative interviews, meetings, and hearings 
increases the likelihood that any party will concoct alibis or destroy 
evidence. The final regulations contain provisions that help ensure 
that false statements (e.g., making up an alibi) or destruction of 
evidence will be revealed during the investigation and taken into 
account in reaching a determination. For example, Sec.  106.45(b)(2) 
requires the initial written notice to the parties to include a 
statement about whether the recipient's code of conduct prohibits false 
statements, and Sec.  106.45(b)(5)(vi) gives both parties equal 
opportunity to inspect and review all evidence gathered by the 
recipient that is directly related to the allegations, such that if 
relevant evidence seems to be missing, a party can point that out to 
the investigator, and if it turns out that relevant evidence was 
destroyed by a party, the decision-maker can take that into account in 
assessing the credibility of parties, and the weight of evidence in the 
case.
    The Department disagrees that Sec.  106.45(b)(5)(v) will contribute 
to underreporting because complainants will feel a loss of control or 
bullied, or feel chilled from reporting, or that this provision is not 
informed by a victim-centered perspective. The Department believes this 
provision provides a fundamental and essential due process protection 
that equally benefits complainants and respondents by giving both 
parties advance notice of interviews, meetings, and hearings so that 
each party can meaningfully participate and assert their respective 
positions and viewpoints through the grievance process.\1174\ This is 
an important part of ensuring that the grievance process reaches 
accurate determinations, which in turn ensures that schools, colleges, 
and universities know when and how to provide remedies to victims of 
sex discrimination in the form of sexual harassment.
---------------------------------------------------------------------------

    \1174\ Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (``The 
fundamental requirement of due process is the opportunity to be 
heard `at a meaningful time and in a meaningful manner.' '') 
(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
---------------------------------------------------------------------------

    Changes: None.
    Comments: Some commenters suggested that recipients should only be 
required to give respondents notice of charges, not necessarily of 
interviews, in order to reflect the standards set by VAWA. Some 
commenters suggested that the final regulations should require an 
advisor be copied on all correspondence between the institutions and 
the parties.
    Discussion: The Department disagrees with the commenters who 
suggested that recipients should only be required to give respondents 
notice of charges, not necessarily of interviews, in order to reflect 
the standards set by Section 304 of VAWA. The commenter offered no 
rationale for why the approach under VAWA is superior to the Sec.  
106.45(b)(5)(v) requirements in this regard, and the Department 
believes that parties are entitled to notice of interviews, meetings, 
and hearings where the party's participation is expected or invited; 
otherwise, a party may miss critical opportunities to advance the 
party's interests during the grievance process. To clarify that this 
provision intends for notice to be given only to the party whose 
participation is invited or expected, we have made non-substantive 
revisions to the language of this provision to better convey that 
intent. Because this provision is consistent with the VAWA provision 
cited by commenters, even though this provision requires more notice 
than the VAWA provision, the Department sees no conflict raised for 
recipients who must comply with both VAWA and Title IX.
    We note that the final regulations do require that copies of the 
evidence subject to the parties' inspection and review, and a copy of 
the investigative report, must be sent (electronically or in hard copy) 
to the parties and to the parties' advisors, if any. The Department 
appreciates commenters' request that advisors be copied on all 
correspondence between recipients and the parties, but declines to 
impose such a rule in order to preserve a recipient's discretion under 
Sec.  106.45(b)(5)(iv) to limit the participation of party advisors, 
and to preserve a party's right to decide whether or not, for what 
purposes, and at what times, the party wishes for an advisor of choice 
to participate with the party. Nothing in the final regulations 
precludes a recipient from adopting a practice of copying party 
advisors on all notices sent under Sec.  106.45(b)(5)(v), so long as 
the recipient complies with the revised introductory sentence of Sec.  
106.45(b) by ensuring that such a practice applies equally with respect 
to both parties.

[[Page 30301]]

    Changes: We have revised the language in Sec.  106.45(b)(5)(v) to 
more clearly convey that notice must be sent to a party when that 
party's participation is invited or expected with respect to any 
meeting, interview, or hearing during the grievance process, by 
changing ``the'' to ``a'' in the clause ``Provide to a party'' in this 
provision.
Section 106.45(b)(5)(vi) Inspection and Review of Evidence Directly 
Related to the Allegations, and Directed Question 7
    Comments: Many commenters expressed support for Sec.  
106.45(b)(5)(vi) and asserted that the proposed regulations seek the 
equal treatment of complainants and respondents. One commenter asserted 
that the proposed regulations would remedy sex-biased investigations 
and included citations to circuit court cases involving male students 
challenging the Title IX processes at institutions that suspended or 
expelled the male students for sexual misconduct. A different commenter 
stated that the proposed regulations would restore fairness and provide 
full disclosure to both parties so that they can adequately prepare 
defenses and present additional facts and witnesses. Another commenter 
concluded that the proposed regulations would ensure justice for 
complainants and protection for those falsely accused.
    A number of commenters shared stories of their personal experiences 
with recipients withholding information from parties in a Title IX 
proceeding.
    One commenter concluded that both parties having access to all of 
the evidence will ensure a fair process for both parties. Many 
commenters remarked that a Title IX investigator should not have 
unilateral authority to deem certain evidence ``irrelevant.'' Another 
commenter stated that schools should not hinder evidence reviews with 
short or limited time windows. One commenter stated that all evidence 
collected, including evidence collected by law enforcement, should be 
made available to the respondent.
    Some commenters concluded that the electronic view-only format is 
unreasonable. Other commenters stated that all of the evidence should 
be provided to the parties to download and review on their own. The 
commenters remarked that this was necessary, especially in complex 
cases where review of the evidence would take a significant period of 
time. Some of these commenters also argued that any effort on the part 
of a recipient to limit a party's access to the evidence should be 
viewed as a bad faith effort to negatively impact the proceeding.
    While generally supportive of the provision, one commenter argued 
that the final regulations should require that the investigator 
incorporate the parties' responses into the final investigative report. 
Another generally supportive commenter proposed the inclusion of a 
party's right to call an external investigator. A different commenter 
supported the adoption of a special master to oversee the adjudicative 
process.
    Some commenters agreed with the ten-day review and comment 
requirement, determining that it is an appropriate period for allowing 
the parties to read and provide written responses. Another commenter 
stated that the exchange of information between the parties will result 
in expedited hearings.
    One supporter of the provision requested that the Department 
include a provision that would inform the parties of the consequences 
of submitting false information to the investigator.
    A number of commenters opposed Sec.  106.45(b)(5)(vi). One 
commenter concluded that the proposed regulations, including this 
provision, were antithetical to the purpose of Title IX. Another 
commenter called this provision a blunt solution to a nuanced problem 
that attempts to solve the ``canard'' of false allegations. The 
commenter added that the Department fails to see the issue through a 
victim-centered lens, pointing out that the term ``trauma'' is used 
only once in the NPRM. The same commenter stated that this provision is 
not informed by best practices for working with trauma survivors.
    One commenter argued that the proposed regulations would lead to 
retaliation and witness tampering. Another commenter stated that Sec.  
106.45(b)(5)(vi) would ``revictimize'' complainants. Many commenters 
stated that this provision will hamstring and compromise 
investigations, would likely chill the reporting process, is part of 
the administration's indifference to sexual violence, and will have 
negative effects on safety and fairness. One commenter concluded that 
the proposed rules would allow institutions to turn a ``blind eye'' to 
sexual violence on campus.
    One commenter wrote that this provision ``fails to adequately 
acknowledge the seriousness and complexity of sexual misconduct on 
college campuses'' and called for a simpler, fairer, and more 
responsive approach. A different commenter argued that Sec.  
106.45(b)(5)(vi) would deter reporting, create difficulties in 
maintaining student privacy, and make Title IX cases more time-
consuming and expensive. According to this commenter, this provision 
did not account for the potential for reputational damage and that it 
eliminates key aspects of the discretion that enables institutions to 
act in the ``best interests of all parties.'' Another commenter 
concluded that this provision is ``unhelpful and hurtful'' to victims, 
which, the commenter opined, may be the purpose of the provision.
    One commenter stated that the provision allows evidence of past 
sexual conduct to be presented in an investigation and that such 
history would be raised to shame complainants.
    Another commenter concluded that this provision would result in the 
respondent being able to coerce new witnesses because the ``regulations 
allow that.'' The same commenter also stated that the Department's 
focus on due process is misplaced because there is no due process 
problem until corrective action is proposed. A different commenter 
concluded that the provision is a barrier to effective investigation 
and resolution of Title IX grievances, calling it an ``unacceptable'' 
and ``untimely'' step. The same commenter proposed eliminating the ten-
day period for review of the collected evidence or, conversely, the 
inclusion of a requirement that each party must have a reasonable 
opportunity to review the evidence and provide feedback while the 
investigation is ongoing, but without a set timeline.
    One commenter stated that fair notice and an opportunity to respond 
does not require discovery of all evidence ``directly related'' to the 
allegations, where the evidence will not be relied upon in making a 
responsibility determination. Similarly, the commenter argued that 
requiring recipients to turn over all evidence directly related to the 
allegations was overbroad and may result, ultimately, in less 
information being shared by parties during the investigation. Another 
commenter argued that no rational basis exists for requiring the 
disclosure of evidence not relied upon in reaching a determination. The 
commenter added that the provision is extremely confusing and benefits 
no one.
    Many commenters questioned why the Department would allow parties 
to review evidence upon which the decision-maker does not intend to 
rely upon in adjudicating the claim. These commenters agreed that only 
relevant information should be shared with the parties. One of these 
commenters concluded that the provision ``further legalizes'' the 
process.

[[Page 30302]]

    Another commenter argued that, under current judicial precedent, no 
formal right to discovery exists in a student disciplinary hearing.
    One commenter argued in favor of the recipient only sharing 
information with the parties, allowing them to determine whether the 
information should be shared with their advisor.
    Many commenters supported limitations on the information being 
shared, including the exclusion or redaction of medical, psychological, 
financial, sexual history, or other personal and private information 
that has ``no bearing'' on the investigative report. One commenter 
argued in favor of permitting schools to release information to the 
parties based upon the individual circumstances of the case. The 
commenter stated that this information would unnecessarily violate the 
privacy of the disclosing parties and would prevent investigators from 
gathering evidence out of fear that personal information would need to 
be revealed. The commenter concluded that the result would be ``truly 
harmful and possibly destructive to anyone who would engage in the 
formal Title IX process.'' A different commenter concluded that there 
is no purpose to sharing this information except to intrude into the 
privacy of the parties. Commenters stated that the final regulations 
would allow the improper, and potentially widespread, sharing of 
confidential information and incentivize respondents to ``slip in'' 
prejudicial information to undermine the process.
    A number of commenters concluded that students would be less likely 
to report sexual harassment and sexual violence if investigations are 
not conducted properly because there is no incentive for schools to 
actually investigate. The commenter stated that, if enacted, the 
proposed rules would harm many students who ``face these problems every 
day.''
    A number of commenters concluded that schools should not be 
required to disclose irrelevant information and that institutions 
should be allowed to place ``reasonable restrictions'' on records. Some 
stated that an exception could be provided for a ``showing of 
particularized relevance.'' One commenter proposed that schools should 
not allow access to information they themselves cannot use. Calling the 
provision ``utterly illogical,'' one commenter stated that sharing 
irrelevant information would lead to extreme disparity of potential 
outcomes.
    Many commenters opposed the electronic sharing of evidence with the 
parties. They argued that no system currently exists that limits the 
user's ability to take pictures of the information on the screen. One 
commenter was concerned that the proposed regulations do not include a 
requirement that the viewing of the relevant evidence be supervised and 
suggested the inclusion of such a provision. Some commenters argued 
that sharing records electronically could exacerbate gender and 
socioeconomic inequality and put some students at a disadvantage if 
they do not have access to a private computer.
    A number of commenters proposed sharing the evidence file in hard 
copy format. Some of these commenters argued in favor of the supervised 
viewing of evidence files, to protect the party's confidentiality and 
to prevent parties from taking photographs of the evidence, while 
others argued for investigators to use their discretion in redacting 
certain information from the files before sharing with the parties. 
Some commenters supported redactions for information deemed more 
prejudicial than probative and for ``inflammatory'' evidence. Many of 
these commenters expressed concern that the parties should not be 
allowed to take physical possession of the evidence files. Commenters 
who favored redactions, also argued that the final regulations 
unreasonably limit the discretion of investigators. These commenters 
argued that recipients should have the right to reasonably redact 
confidential and private information, including the identity of the 
complainant, if the recipient deems it necessary to do so. One 
commenter, who favored the hard copy format, argued that students with 
disabilities may have a difficult time reviewing the files if not 
submitted in hard copy.
    Some commenters remarked that electronic file sharing programs are 
cost prohibitive, leading some to conclude that such cost would 
prohibit institutions from paying for advisors for the parties.
    Many commenters asserted that the provision could run afoul of 
State laws, including laws regarding student privacy and the sharing of 
confidential information, as well as potentially violate State rape 
shield laws. Some commenters were also concerned about the effect of 
open-records statutes as a means to publicize investigative files to 
embarrass the opposing party.
    A commenter stated that the proposed regulations fail to state that 
the report should include all exculpatory and inculpatory evidence, 
which could prevent an adequate record, jeopardize the parties' ability 
to make a defense, might diminish the thoroughness with which facts are 
considered, and unduly raise the risk of bias. Another commenter agreed 
that crafting a full report before sharing it with the parties is 
premature and could lead to errors, dissatisfaction, and the appearance 
of bias.
    A number of commenters pointed out that the proposed provision 
would require recipients to change their current processes, causing a 
disruption in how they handle Title IX cases on their campuses.
    One commenter pointed out that student conduct processes at 
institutions of higher education are not criminal processes and should 
not be expected to mirror them. The commenter stated that colleges and 
universities are not making criminal law decisions, but rather a policy 
violation determination. In addition, the commenter believed that the 
best policy would allow students to provide information, respond to 
information, and ask questions, but in a manner that is appropriate to 
limit creating an adversarial environment. Similarly, one commenter 
concluded that the final regulations place a greater burden on 
recipients than on a criminal prosecutor.
    Some commenters opposed enacting a ten-day requirement for review 
and responses. One commenter suggested that the ten-day timeline was an 
``overregulation'' of institutions, suggesting instead that 
institutions should set their own time frames, so long as they are 
equitable. A number of commenters argued that institutions should be 
able to determine appropriate timelines for their own processes. Many 
commenters questioned whether the Department meant ten calendar days or 
ten business days. Another commenter suggested shortening the review 
period from ten to five days. A different commenter stated that the 
Department should not mandate any time period as, in their opinion, a 
uniform rule does not fit every circumstance at every school.
    One commenter wrote that the final regulation's timeline is more 
rigid than a similar proceeding in a courtroom, where courts often 
expedite hearings when time is of the essence.
    A commenter asked for clarification as to whether the proposed 
regulations would require an extra ten days for re-inspection of the 
supplemented investigative file. The same commenter also asked what, if 
any, guidelines should be put in place regarding supplementing the 
record at each stage of the adjudicative process.
    One commenter proposed including a non-disclosure agreement as part 
of the adjudicative process. Another commenter requested that the final

[[Page 30303]]

regulations should include a provision to punish institutions that have 
committed ``wrongs'' against respondents in the past.
    One commenter requested a regulatory provision that would provide 
meaningful consequences for violations of confidentiality, including 
punishment for recipients that do not implement reasonable privacy 
safeguards or do not permit reasonable redaction policies.
    One commenter requested clarification on how long institutions 
would be required to retain records associated with a Title IX 
proceeding. Another commenter requested that the Department provide an 
electronic platform for the storing of data associated with Title IX 
investigations.
    A number of commenters raised issues with the implementation of the 
final regulations in the K-12 context. Commenters stated that the 
majority of changes in the proposed rules were not written with a clear 
understanding of their application to the K-12 environment and that the 
proposed rules may actually hamper a school district's ability to 
maintain a safe school environment. For example, the commenter stated 
that the extension of the timeline (for example, by imposing a ten-day 
period for review of evidence) impairs a K-12 recipient's ability to 
effectuate meaningful change to a student's behavior. In addition, the 
commenter wrote that a ``battle of responses'' will foster more 
hostility, not less, where there is a high likelihood that the parties 
will remain within the same school district. The same commenter 
suggested that the Department should look to provide, and detail, 
restorative justice options that align with best practices for 
effective responses to incidents of sexual harassment and sexual 
violence. One commenter concluded that sharing the evidence file may be 
appropriate at the postsecondary level, but is inappropriate at the K-
12 level. Another commenter called Sec.  106.45(b)(5)(vi) ``overkill'' 
in the K-12 context. A different commenter supported leaving the issue 
of evidence review to local school officials. One commenter stated that 
the ten days to review and respond was unnecessary and would needlessly 
lengthen K-12 investigations.
    Many commenters raised concerns over the burden caused by the 
proposed regulations on small institutions. Those commenters pointed 
out that sharing evidence with parties, waiting the required time 
period, and creating the investigative report and the parties' 
responses to it is onerous, has limited benefits as a truth-seeking 
process, and is too burdensome for institutions with only one staff 
member in charge of all of these responsibilities. Another commenter 
similarly asserted that small institutions do not currently have staff 
capacity to comply with Sec.  106.45(b)(5)(vi)-(vii). A different 
commenter argued that continuous updates to the parties is ``completely 
impractical'' and ``unduly burdensome'' on the investigator, especially 
at small colleges.
    Discussion: The Department appreciates commenters' support of Sec.  
106.45(b)(5)(vi). We believe that this provision provides complainants 
and respondents an equal opportunity to inspect and review evidence and 
provides transparent disclosure of the universe of relevant and 
potentially relevant evidence, with sufficient time for both parties to 
meaningfully prepare arguments based on the evidence that further each 
party's view of the case, or present additional relevant facts and 
witnesses that the decision-maker should objectively evaluate before 
reaching a determination regarding responsibility, including the right 
to contest the relevance of evidence.
    The Department is sensitive to commenters' concerns regarding the 
parties sharing irrelevant information, as well as relevant information 
that is relevant but also highly sensitive and personal, as part of the 
investigative process. This concern, however, must be weighed against 
the demands of due process and fundamental fairness, which require 
procedures designed to promote accuracy through meaningful 
participation of the parties. The Department believes that the right to 
inspect all evidence directly related to the allegations is an 
important procedural right for both parties, in order for a respondent 
to present a defense and for a complainant to present reasons why the 
respondent should be found responsible. This approach balances the 
recipient's obligation to impartially gather and objectively evaluate 
all relevant evidence, including inculpatory and exculpatory evidence, 
with the parties' equal right to participate in furthering each party's 
own interests by identifying evidence overlooked by the investigator 
and evidence the investigator erroneously deemed relevant or irrelevant 
and making arguments to the decision-maker regarding the relevance of 
evidence and the weight or credibility of relevant evidence. In 
response to commenters' suggestions, we have added phrasing in Sec.  
106.45(b)(5)(vi) to emphasize that the evidence gathered and sent to 
the parties for inspection and review is evidence ``directly related to 
the allegations'' which must specifically include ``inculpatory or 
exculpatory evidence whether obtained from a party or other source.'' 
Such inculpatory or exculpatory evidence (related to the allegations) 
may, therefore, be gathered by the investigator from, for example, law 
enforcement where a criminal investigation is occurring concurrently 
with the recipient's Title IX grievance process.
    While it may be true in some respects that this provision affords 
parties greater protection than some courts have determined is required 
under constitutional due process or concepts of fundamental fairness, 
that does not necessarily mean that protections such as those contained 
in Sec.  106.45 are not desirable features of a consistent, transparent 
grievance process that enhances the fairness and truth-seeking function 
of the process.\1175\ In response to commenters' concerns about 
disclosure of private medical, psychological, and similar treatment 
records, these final regulations provide in Sec.  106.45(b)(5)(i) that 
a recipient cannot access, consider, disclose, or otherwise use a 
party's records that are made or maintained by a physician, 
psychiatrist, psychologist, or other recognized professional or 
paraprofessional acting in the professional's or paraprofessional's 
capacity, or assisting in that capacity, and which are made and 
maintained in connection with the provision of treatment to the party, 
unless the recipient obtains the party's voluntary, written consent to 
do so for a grievance process under Sec.  106.45. If the party is not 
an ``eligible student,'' as defined in 34 CFR 99.3, then the recipient 
must obtain the voluntary, written consent of a ``parent,'' as defined 
in 34 CFR 99.3.\1176\ Accordingly, a recipient will not access, 
consider, disclose, or otherwise use some of the most sensitive 
documents about a party without the party's (or the parent of the 
party's) voluntary, written consent, regardless of whether the 
recipient already has possession of such treatment records, even if the 
records are relevant. This provision adequately addresses commenter's 
concerns about sensitive information that may be shared with the other 
party pursuant to

[[Page 30304]]

Sec.  106.45(b)(5)(vi). Non-treatment records and information, such as 
a party's financial or sexual history, must be directly related to the 
allegations at issue in order to be reviewed by the other party under 
Sec.  106.45(b)(5)(vi), and all evidence summarized in the 
investigative report under Sec.  106.45(b)(5)(vii) must be ``relevant'' 
such that evidence about a complainant's sexual predisposition would 
never be included in the investigative report and evidence about a 
complainant's prior sexual behavior would only be included if it meets 
one of the two narrow exceptions stated in Sec.  106.45(b)(6)(i)-(ii) 
(deeming all questions and evidence about a complainant's sexual 
predisposition ``not relevant,'' and all questions and evidence about a 
complainant's prior sexual behavior ``not relevant'' with two limited 
exceptions).
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    \1175\ For further discussion see the ``Role of Due Process in 
the Grievance Process'' section of this preamble.
    \1176\ 34 CFR 99.3 is part of regulations implementing FERPA; 
for further discussion of the intersection between FERPA and these 
final regulations, see the ``Section 106.6(e) FERPA'' subsection of 
the ``Clarifying Amendments to Existing Regulations'' section of 
this preamble.
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    The Department declines to define certain terms in this provision 
such as ``upon request,'' ``relevant,'' or ``evidence directly related 
to the allegations,'' as these terms should be interpreted using their 
plain and ordinary meaning. We note that ``directly related'' in Sec.  
106.45(b)(5)(vi) aligns with requirements in FERPA, 20 U.S.C. 
1232g(a)(4)(A)(i).\1177\ We also acknowledge that ``directly related'' 
may sometimes encompass a broader universe of evidence than evidence 
that is ``relevant.'' However, the Sec.  106.45 grievance process is 
geared toward reaching reliable, accurate outcomes in a manner that 
keeps the burden of collecting and evaluating relevant evidence on the 
recipient while giving both parties equally strong, meaningful 
opportunities to present, point out, and contribute relevant evidence, 
so that ultimately the decision-maker objectively evaluates relevant 
evidence and understands the parties' respective views and arguments 
about how and why evidence is persuasive or should lead to the outcome 
desired by the party. The Department therefore believes it is important 
that at the phase of the investigation where the parties have the 
opportunity to review and respond to evidence, the universe of that 
exchanged evidence should include all evidence (inculpatory and 
exculpatory) that relates to the allegations under investigation, 
without the investigator having screened out evidence related to the 
allegations that the investigator does not believe is relevant. The 
parties should have the opportunity to argue that evidence directly 
related to the allegations is in fact relevant (and not otherwise 
barred from use under Sec.  106.45), and parties will not have a robust 
opportunity to do this if evidence related to the allegations is 
withheld from the parties by the investigator. For example, an 
investigator may discover during the investigation that evidence exists 
in the form of communications between a party and a third party (such 
as the party's friend or roommate) wherein the party characterizes the 
incident under investigation. If the investigator decides that such 
evidence is irrelevant (perhaps from a belief that communications 
before or after an incident do not make the facts of the incident 
itself more or less likely to be true), the other party should be 
entitled to know of the existence of that evidence so as to argue about 
whether it is relevant. The investigator would then consider the 
parties' viewpoints about whether such evidence (directly related to 
the allegations) is also relevant, and on that basis decide whether to 
summarize that evidence in the investigative report. A party who 
believes the investigator reached the wrong conclusion about the 
relevance of the evidence may argue again to the decision-maker (i.e., 
as part of the party's response to the investigative report, and/or at 
a live hearing) about whether the evidence is actually relevant, but 
the parties would not have that opportunity if the evidence had been 
screened out by the investigator (that is, deemed irrelevant) without 
the parties having inspected and reviewed it as part of the exchange of 
evidence under Sec.  106.45(b)(5)(vi).
---------------------------------------------------------------------------

    \1177\ For further discussion see the ``Section 106.6(e) FERPA'' 
subsection of the ``Clarifying Amendments to Existing Regulations'' 
section of this preamble.
---------------------------------------------------------------------------

    In response to commenters' concerns that proposed Sec.  
106.45(b)(5)(vi) unduly imposed costly or burdensome restrictions by 
specifying that the evidence sent to the parties must be ``in an 
electronic format, such as a file sharing platform, that restricts the 
parties and advisors from downloading or copying the evidence,'' we 
have removed reference to a file-sharing platform and revised this 
provision to state that recipients must send the evidence subject to 
inspection and review to each party, and the party's advisor (if any), 
in electronic format or hard copy. Under the final regulations, 
therefore, recipients are neither required nor prohibited from using a 
file sharing platform that restricts parties and advisors from 
downloading or copying the evidence. Recipients may require parties and 
advisors to refrain from disseminating the evidence (for instance, by 
requiring parties and advisors to sign a non-disclosure agreement that 
permits review and use of the evidence only for purposes of the Title 
IX grievance process), thus providing recipients with discretion as to 
how to provide evidence to the parties that directly relates to the 
allegations raised in the formal complaint.
    With regard to the sharing of confidential information, a recipient 
may permit or require the investigator to redact information that is 
not directly related to the allegations (or that is otherwise barred 
from use under Sec.  106.45, such as information protected by a legally 
recognized privilege, or a party's treatment records if the party has 
not given written consent) contained within documents or other evidence 
that are directly related to the allegations, before sending the 
evidence to the parties for inspection and review. Further, as noted 
above, recipients may impose on the parties and party advisors 
restrictions or require a non-disclosure agreement not to disseminate 
any of the evidence subject to inspection and review or use such 
evidence for any purpose unrelated to the Title IX grievance process, 
as long as doing so does not violate these final regulations or other 
applicable laws. We reiterate that redacting ``confidential'' 
information is not the same as redacting information that is not 
``directly related to the allegations'' because information that is 
confidential, sensitive, or private may still be ``directly related to 
the allegations'' and thus subject to review by both parties. 
Similarly, a recipient may permit or require the investigator to redact 
from the investigative report information that is not relevant, which 
is contained in documents or evidence that is relevant, because Sec.  
106.45(b)(5)(vii) requires the investigative report to summarize only 
``relevant evidence.''
    Section 106.45(b)(5)(vi) is not a ``blunt solution'' as a commenter 
suggested. The Department recognizes that Title IX enforcement is, in 
fact, a nuanced problem, and this recognition has informed the policy 
formation as well as the drafting and revising of this particular 
provision. We do not believe, as the commenter thinks, that a concern 
over false allegations is a ``canard,'' nor does the number of times 
that a particular word is used in the NPRM suggest that the Department 
is uninterested in, or unmoved by, best practices in the field. We 
disagree that Sec.  106.45(b)(5)(vi) fails to acknowledge the 
``complexity'' of sexual misconduct on college campuses, because this 
provision is part of a carefully prescribed grievance process that aims 
to ensure that the parties have

[[Page 30305]]

meaningful opportunities to participate in advancing each party's 
interests in these high-stakes cases. The provision proposed in the 
NPRM, and revised in these final regulations, not only takes into 
account the complexity of sexual misconduct on college campuses, but 
considers, as fundamental fairness demands, the experiences and 
challenges faced by both complainants and respondents.
    The Department is sensitive to commenters' concerns over whether 
the final regulations might deter the reporting of sexual harassment. 
The Sec.  106.45 grievance process is designed to improve the 
reliability and legitimacy of recipients' investigations and 
adjudications of Title IX sexual harassment allegations, and we believe 
that providing the parties with strong, clear procedural rights 
improves the fairness and legitimacy of the grievance process. We 
recognize that a formal grievance process is challenging, difficult, 
and stressful to navigate, for both complainants and respondents. It is 
for this reason that these final regulations ensure that parties are 
not inhibited from seeking support and assistance from any source (see 
Sec.  106.45(b)(5)(iii)) and that parties have the right to select an 
advisor of choice to advise and accompany a party throughout the 
grievance process (see Sec.  106.45(b)(5)(iv)). More broadly, the 
Department is persuaded by some commenters' concerns that if a 
complainant is forced to undergo a grievance process whenever a 
complainant reports sexual harassment, complainants may decide not to 
report at all, and by other commenters' concerns that without strong, 
clear procedural rights, recipients' grievance processes will not reach 
reliable outcomes in which parties and public have confidence. The 
final regulations therefore increase the obligations on recipients to 
respond promptly and supportively to every complainant when the 
recipient receives notice that the complainant has allegedly been 
victimized by sexual harassment (without requiring any proof or 
evidence supporting the allegations) irrespective of the existence of a 
grievance process, promote respect for a complainant's autonomy over 
whether or not to file a formal complaint that initiates a grievance 
process, and protect complainants from retaliation for refusing to 
participate in a grievance process. We have revised Sec.  106.8, Sec.  
106.30, and Sec.  106.44 significantly to achieve these aims and have 
added Sec.  106.71. For example, Sec.  106.8 emphasizes the need for 
every complainant and all third parties to have clear, accessible 
options for how to report sexual harassment to the Title IX 
Coordinator; the definitions of ``complainant'' and ``formal 
complaint'' in Sec.  106.30 have been revised to clarify that the 
choice to initiate a grievance process must remain within the control 
of a complainant unless the Title IX Coordinator has specific reasons 
justifying the filing of a formal complaint over the wishes of a 
complainant; Sec.  106.44(a) now requires a recipient to offer 
supportive measures to a complainant with or without a formal complaint 
being filed using an interactive process whereby the Title IX 
Coordinator must discuss and take into account the complainant's wishes 
regarding the supportive measures to be provided and explain to the 
complainant the option of filing a formal complaint; and Sec.  106.71 
protects the right of any individual to choose not to participate in a 
grievance process without facing retaliation. The Department intends 
for these final regulations to assure complainants that complainants 
may report sexual harassment and receive supportive measures whether or 
not the complainant also participates in a grievance process, and to 
assure complainants and respondents that a grievance process will be 
fair, consistent with constitutional due process, and give both parties 
meaningful opportunity to advance the party's own interests regarding 
the case outcome, in an investigation and adjudication overseen by 
impartial, unbiased Title IX personnel who do not prejudge the facts at 
issue and objectively evaluate inculpatory and exculpatory evidence 
before reaching determinations regarding responsibility.
    The Department disagrees with commenters' assertions that the final 
regulations would allow the recipient (or the respondent) to coerce 
witnesses, turn a ``blind eye'' to sexual violence, or ``revictimize'' 
complainants. As discussed above, Sec.  106.71 prohibits retaliation 
(which includes coercion) against any person for participating or 
refusing to participate in a Title IX proceeding and Sec.  106.44(a) 
requires recipients to respond to every complainant by offering 
supportive measures; these requirements ensure that no recipient may 
turn a blind eye to reported sexual violence. The Sec.  106.45 
grievance process, including allowing both parties the opportunity to 
inspect and review evidence directly related to the allegations, 
benefits complainants as much as respondents by ensuring that each 
party is aware of evidence and may then make arguments that further the 
party's own interests based on the evidence.\1178\
---------------------------------------------------------------------------

    \1178\ E.g., Monroe H. Freedman, Our Constitutionalized 
Adversary System, 1 Chapman L. Rev. 57, 57 (1998) (``In its simplest 
terms, an adversary system resolves disputes by presenting 
conflicting views of fact and law to an impartial and relatively 
passive arbiter, who decides which side wins what. . . . Thus, the 
adversary system represents far more than a simple model for 
resolving disputes. Rather, it consists of a core of basic rights 
that recognize and protect the dignity of the individual in a free 
society.'') (emphasis added); see also David L. Kirn, Proceduralism 
and Bureaucracy: Due Process in the School Setting, 28 Stanford L. 
Rev. 841, 847-48 (1976) (due process includes the right of parties 
to participate in the presentation of evidence, which serves the 
dual interest of improving the reliability of outcomes and the 
parties' sense of fairness of the proceeding).
---------------------------------------------------------------------------

    The Department disagrees that due process is not implicated until 
corrective action is proposed. Due process is not only a concern after 
corrective or punitive action is taken, but throughout the entire 
process leading to a recipient's decision to impose corrective or 
disciplinary action.\1179\
---------------------------------------------------------------------------

    \1179\ For further discussion see the ``Role of Due Process in 
the Grievance Process'' section of this preamble.
---------------------------------------------------------------------------

    The Department disagrees that Sec.  106.45(b)(5)(vi)-(vii) are a 
barrier to effective investigations and case resolutions, and believes 
that to the contrary, these provisions work to guarantee effective 
investigations and resolutions by allowing the parties full access to 
the evidence gathered, and to the investigative report that summarizes 
relevant evidence, so the parties may make corrections, provide 
appropriate context, and prepare their responses and defenses before a 
decision-maker reaches a determination regarding responsibility.
    We appreciate the commenters who stated that the ten-day time frame 
provision is appropriate for the parties to review and respond to the 
evidence directly related to the allegations. We agree that the result 
of this provision will be expedited hearings because the parties will 
have had the opportunity to see, review, and consider their responses 
to evidence prior to showing up at a hearing. However, this provision's 
purpose is not solely to speed up the process. The Department believes 
that this provision, in conjunction with the other provisions in Sec.  
106.45, balances the need for reasonably prompt resolution of Title IX 
grievance processes with the need to ensure that these grievance 
processes are thorough and fair.
    The Department understands commenters' concerns that a ten-day time 
period for the parties to inspect and review evidence (and then a ten-
day

[[Page 30306]]

time period to review and respond to the investigative report) is too 
long a timeline, but we do not agree that this timeline is an 
``overregulation'' or that it is more rigid than a similar proceeding 
in a criminal court. Instead, the Department finds that the time frame 
is appropriate for the parties to read and respond to the evidence 
subject to inspection and review, and then to the investigative report. 
Recipients may choose whether the ten days should be business days or 
calendar days (or may use a different calculation of ``days'' that 
works with the recipient's administrative operations, such as ``school 
days.'') Although the recipient is required to provide at least ten 
days for inspection and review, the recipient may give the parties more 
than ten days to respond, bearing in mind that the recipient must 
conclude the grievance process within the reasonably prompt time frames 
to which the recipient must commit under Sec.  106.45(b)(1)(v).
    Section 106.45(b)(5)(vi)-(vii) concerning inspection and review of 
evidence, and review of the investigative report, are not overbroad or 
likely to lead to information withholding, and do not force the parties 
to share irrelevant information. These provisions appropriately focus 
the investigation on evidence ``directly related to the allegations'' 
and to ``relevant'' evidence in furtherance of each party's interest in 
permitting pertinent evidence to come to light so that any 
misunderstandings, confusions, and contradictions can be clarified. As 
discussed above, the Department has revised Sec.  106.45 to expressly 
forbid a recipient from using a party's medical, psychological, and 
similar records without the party's voluntary, written consent, and 
from using information protected by a legally recognized privilege, and 
deems ``not relevant'' questions and evidence about a complainant's 
prior sexual behavior (with two limited exceptions).
    We appreciate the commenters' suggestions regarding the inclusion 
of: A requirement that the viewing of the relevant evidence be 
supervised; the appointment of a special master; and a provision 
informing parties of the consequences of submitting false information. 
Commenters have noted that recipients' restrictions on a party's 
ability to view the evidence gathered in a case (for example, by 
requiring the party to sit in a certain room in the recipient's 
facility, for only a certain length of time, with or without the 
ability to take notes while reviewing the evidence, and perhaps while 
supervised by a recipient administrator) have reduced the 
meaningfulness of the party's opportunity to review evidence and use 
that review to further the party's interests. We believe it is 
important for the parties to receive a copy of the evidence subject to 
inspection and review so that the parties and their advisors may, over 
the course of a ten-day period, carefully consider the evidence 
directly related to the allegations, prepare arguments about whether 
all of that evidence is relevant and whether relevant evidence has been 
omitted, and consider how the party intends to respond to the evidence. 
On the other hand, we do not believe that the purposes of the parties' 
right to inspect and review evidence necessitates or justifies the 
Department requiring recipient to appoint a ``special master'' to 
oversee the exchange of evidence. The recipient's investigator will be 
well-trained in how to conduct an investigation and grievance process 
and in issues of relevance, under Sec.  106.45(b)(1)(iii). We address 
warnings about making false statements during a grievance process in 
Sec.  106.45(b)(2), which requires the written notice of allegations 
that a recipient sends to both parties upon receipt of a formal 
complaint to contain a statement about whether the recipient's code of 
conduct contains a prohibition against making false statements during a 
grievance process. We do not believe that a further statement about 
false statements accompanying sending the evidence to the parties under 
Sec.  106.45(b)(5)(vi) serves a necessary purpose and decline to 
require it.
    We decline to change the requirement that recipients send the 
evidence to a party's advisor (if the party has one).\1180\ If a party 
has exercised the party's right to select an advisor of the party's 
choice, it is for the purpose of receiving that advisor's assistance 
during the grievance process, and we do not believe that a party's ten-
day window to review and respond to the evidence should be narrowed by 
placing the burden on the party to receive the evidence from the 
recipient and then send the evidence to the party's advisor. However, 
nothing in these final regulations precludes a party from requesting 
that the recipient not send the evidence subject to inspection and 
review to the party's advisor. Similarly, the final regulations do not 
preclude the recipient from asking the parties to confirm whether or 
not the party has an advisor prior to sending the evidence under Sec.  
106.45(b)(5)(vi).
---------------------------------------------------------------------------

    \1180\ We have revised Sec.  106.45(b)(5)(vii) to require the 
investigative report to be sent to the parties and their advisors 
(if any), for the same reasons that we decline to remove the 
requirement to send the evidence subject to inspect and review to 
the parties and their advisors.
---------------------------------------------------------------------------

    The Department disagrees that sending the evidence, or 
investigative report, to the parties (and their advisors, if any) will 
lead to an ``extreme disparity of potential outcomes.'' The provisions 
in Sec.  106.45(b)(5)(vi)-(vii) are focused on providing precisely the 
opposite of the commenter's conclusion: Predictable procedural 
requirements that respondents and complainants can rely upon to afford 
them a predictable, fair process.
    The Department does not agree that Sec.  106.45(b)(5)(vi)-(vii), or 
the Sec.  106.45 grievance process as a whole, creates the same rights 
to discovery afforded to civil litigation parties or criminal 
defendants. For example, parties to a Title IX grievance process are 
not granted the right to depose parties or witnesses, nor to invoke a 
court system's subpoena powers to compel parties or witnesses to appear 
at hearings, which are common features of procedural rules governing 
litigation and criminal proceedings. Recognizing that schools, 
colleges, and universities are educational institutions and not courts 
of law, the Department has prescribed a grievance process that 
incorporates procedures rooted in principles of due process and 
fundamental fairness, to give parties clear, meaningful opportunities 
to participate in influencing the case outcome that advances each 
party's interests, without imposing on recipients the expectation that 
recipients should function as de facto courts.
    Similarly, the Department does not agree that Sec.  
106.45(b)(5)(vi)-(vii) will prolong proceedings, create ancillary 
disputes, or invade the privacy of parties and witnesses. As various 
courts have held,\1181\ parties are entitled to constitutional due 
process from public institutions and a fair process from private 
institutions during Title IX grievance proceedings. In these final 
regulations, the Department has prescribed a process that provides 
sufficient due process protections to resolve allegations of sexual 
harassment in a recipient's education program or activity, in a manner 
that permits (and requires) a recipient to conclude its grievance 
process within designated, reasonably prompt time frames, and has taken 
care to protect party privacy while ensuring that the parties have 
access to

[[Page 30307]]

information that may affect the outcome of the case.
---------------------------------------------------------------------------

    \1181\ E.g., Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 69 
(1st Cir. 2019); Doe v. Purdue Univ. et al., 928 F.3d 652 (7th Cir. 
2019); Doe v. Baum, 903 F.3d 575 (6th Cir. 2018).
---------------------------------------------------------------------------

    We appreciate the concerns of many commenters about the burden and 
costs that Sec.  106.45(b)(5)(vi)-(vii) may impose upon recipients. The 
Department understands that these provisions have the potential to 
generate modest burden and costs, but believes that the financial costs 
and administrative burdens resulting from the provisions are far 
outweighed by the due process protections ensured by these provisions. 
We disagree with the assertion that ``sharing evidence with parties'' 
results in unacceptable burdens on recipients, because reviewing the 
universe of evidence that is, or may be, relevant represents a critical 
part of enabling parties to have a meaningful opportunity to be heard, 
which is an essential component of due process and fundamental 
fairness. The Department appreciates that many recipients' Title IX 
offices are inundated and over-worked, but sacrificing procedures 
important to concepts of due process and fundamental fairness is not an 
acceptable means of alleviating administrative burdens. We reiterate 
that where reasonable, we have revised Sec.  106.45(b)(5)(vi)-(vii) to 
alleviate unnecessary administrative burdens on recipients, for example 
by removing reference to a file sharing platform and allowing the 
recipient to send the evidence and investigative report electronically 
or by hard copy.
    The Department also understands that a potentially different set of 
issues regarding Sec.  106.45(b)(5)(vi)-(vii) may occur where there are 
multiple formal complaints arising out of a single incident. To 
expressly authorize recipients to handle cases that arise out of the 
same incident of sexual harassment involving multiple complainants, 
multiple respondents, or both, we have added Sec.  106.45(b)(4) to 
expressly grant discretion to recipients to consolidate formal 
complaints involving more than one complainant or more than one 
respondent, where the allegations of sexual harassment arise out of the 
same facts or circumstances. The Department also provides in Sec.  
106.45(b)(4) that where a grievance process involves more than one 
complainant or more than one respondent, references in Sec.  106.45 to 
the singular ``party,'' ``complainant,'' or ``respondent'' must include 
the plural, as applicable. These revisions help clarify that a single 
grievance process might involve multiple complainants or multiple 
respondents; we emphasize that in such a situation, each individual 
party has each right granted to a party under Sec.  106.45 and these 
final regulations. For example, in a case involving multiple 
complainants, a recipient would not be permitted to designate one 
complainant as a ``lead complainant'' and use such a designation to, 
for instance, only send the evidence to the ``lead complainant'' 
instead of to each complainant individually.
    Parties have the opportunity to provide additional information or 
context in their written response after reviewing the evidence under 
Sec.  106.45(b)(5)(vi). The final regulations do not directly address 
an extension of the timeline for responses, should the parties present 
additional information after reviewing the evidence. These final 
regulations provide that the parties must have at least ten days to 
submit a written response after review and inspection of the evidence 
directly related to the allegations raised in a formal complaint. A 
recipient may require all parties to submit any evidence that they 
would like the investigator to consider prior to when the parties' time 
to inspect and review evidence begins. Alternatively, a recipient may 
choose to allow both parties to provide additional evidence in response 
to their inspection and review of the evidence under Sec.  
106.45(b)(5)(vi) and also an opportunity to respond to the other 
party's additional evidence. Similarly, a recipient has discretion to 
choose whether to provide a copy of each party's written response to 
the other party to ensure a fair and transparent process and to allow 
the parties to adequately prepare for any hearing that is required or 
provided under the grievance process. A recipient's rules or practices 
other than those required by Sec.  106.45 that a recipient adopts must 
apply equally to both parties as required by Sec.  106.45(b). If a 
recipient chooses not to allow the parties to respond to additional 
evidence provided by a party in these circumstances, the parties will 
still receive the investigative report that fairly summarizes relevant 
evidence under Sec.  106.45(b)(5)(vii) and will receive an opportunity 
to inspect and review all relevant evidence at any hearing and to refer 
to such evidence during the hearing, including for purposes of cross-
examination at live hearings under Sec.  106.45(b)(5)(vi). If a 
recipient allows parties to provide additional evidence after reviewing 
the evidence under Sec.  106.45(b)(5)(vi), any such additional evidence 
that is summarized in the investigative report will not qualify as new 
evidence that was reasonably available at the time the determination 
regarding responsibility was made for purposes of an appeal under Sec.  
106.45(b)(8).
    The Department agrees with the commenter's concern that the 
investigative report should contain relevant evidence including 
exculpatory and inculpatory evidence. Section 106.45(b)(1)(ii) makes 
clear that the recipient must evaluate relevant evidence including 
inculpatory and exculpatory evidence. The final regulations add the 
phrase ``and inculpatory or exculpatory evidence whether obtained from 
a party or other source'' to Sec.  106.45(b)(5)(vi) with respect to the 
evidence sent to the parties for inspection and review. Thus, where 
Sec.  106.45(b)(5)(vii) requires the investigative report to fairly 
summarize all the relevant evidence, the final regulations make clear 
that evidence may be relevant whether it is inculpatory or exculpatory.
    We do not agree that sharing the investigative report prior to its 
finalization would lead to errors, dissatisfaction, and the appearance 
of bias. In fact, those are the very potential problems that sharing 
the report with the parties seeks to avoid. The parties' responses may 
address perceived errors that may be corrected, so that the parties 
have an opportunity to express and note their contentions for or 
against the investigative report, and sharing the investigative report 
at the same time, to both parties, helps avoid any appearance of bias.
    We appreciate the commenter's questions regarding how the evidence 
and the investigative report should be shared with the parties. The 
final regulations revise Sec.  106.45(b)(5)(vi) to state that ``the 
recipient must send to each party and the party's advisor, if any, the 
evidence subject to inspection and review in an electronic format or a 
hard copy.'' Similar language is used in Sec.  106.45(b)(5)(vii) 
regarding sending the parties, and their advisors, copies of the 
investigative report, electronically or in hard copy format. The 
Department reminds recipients that these provisions contain baseline 
requirements, and additional practices to address privacy concerns, 
such as digital encryption, that do not run afoul of Sec.  
106.45(b)(5)(vi)-(vii), or any other provision of the final 
regulations, are not precluded by these final regulations. The final 
regulations do not require recipients to provide individual laptops to 
parties to review the evidence or investigative report, but a recipient 
may do so at the recipient's discretion, and the option to send parties 
hard copies under these provisions gives recipients the flexibility to 
respond to a party's

[[Page 30308]]

inability to access digital or electronic copies.
    The Department does not wish to prohibit the investigator from 
including recommended findings or conclusions in the investigative 
report. However, the decision-maker is under an independent obligation 
to objectively evaluate relevant evidence, and thus cannot simply defer 
to recommendations made by the investigator in the investigative 
report. As explained in the ``Section 106.45(b)(7)(i) Single 
Investigator Model Prohibited'' subsection of the ``Determinations 
Regarding Responsibility'' subsection of the ``Section 106.45 
Recipient's Response to Formal Complaints'' section of this preamble, 
the decision-maker cannot be the same person as the Title IX 
Coordinator or the investigator and must issue a written determination 
regarding responsibility, and one of the purposes of that requirement 
is to ensure that independent evaluation of the evidence gathered is 
made prior to reaching the determination regarding responsibility.
    The Department appreciates commenters' concerns and requests for 
clarification regarding the application of the final regulations to the 
elementary and secondary school environment. We disagree that the 
grievance process timeline impairs an elementary and secondary school 
recipient's ability to effectuate meaningful change to a student's 
behavior. There are many actions a recipient may take with respect to a 
respondent that constitute permissible supportive measures as defined 
in Sec.  106.30, which may correct or modify a respondent's behavior 
without being punitive or disciplinary. Educational conversations with 
students, for example, and impressing on a student the recipient's 
anti-sexual harassment policy and code of conduct expectations, need 
not constitute punitive or disciplinary actions that a school is 
precluded from taking without following a Sec.  106.45 grievance 
process. Similarly, we disagree that Sec.  106.45 generally, or Sec.  
106.45(b)(5)(vi)-(vii) in particular, foster hostility or hamper a 
school district's ability to maintain a safe school environment. 
Providing a predictable, fair grievance process before imposing 
discipline on students may help reduce hostility and tensions in a 
school environment, and recipients have many options under the Sec.  
106.30 definition of supportive measures for taking action to protect 
party safety and deter sexual harassment before or during any grievance 
process and regardless of whether a grievance process is ever 
initiated. We also remind recipients that Sec.  106.44(c) allows a 
respondent to be removed from education programs or activities on an 
emergency basis, without pre-removal notice or hearing, and regardless 
of whether a grievance process is pending regarding the sexual 
harassment allegations from which the imminent threat posed by the 
respondent has arisen.
    With regard to records retention, the Department addresses this 
issue under Sec.  106.45(b)(10). We have revised that provision, 
including by extending the record retention period from three years as 
proposed in the NPRM, to seven years under these final regulations.
    The Department appreciates the commenter's responses to Directed 
Question 7. After considering the many public comments responsive to 
this directed question posed in the NPRM, the Department finds that it 
would be inappropriate to dilute the requirement that there be a direct 
relationship between the evidence in question and the allegations under 
investigation. For reasons discussed above, the final regulations 
require inspection and review of evidence that is directly related to 
the allegations, including inculpatory and exculpatory evidence 
obtained from a party or any other source, and require the 
investigative report to summarize only relevant evidence.
    Changes: The Department makes the following changes to 
106.45(b)(5)(vi). First, the phrase ``and inculpatory or exculpatory 
evidence whether obtained from a party or other source,'' is added. 
Second, we have added ``or a hard copy'' as an option for sending to 
the parties and their advisors the evidence subject to inspection and 
review. Lastly, we have removed the phrase ``such as a file sharing 
platform, that restricts the parties and advisors from downloading or 
copying the evidence.''
Section 106.45(b)(5)(vii) An Investigative Report That Fairly 
Summarizes Relevant Evidence
    Comments: Many commenters expressed support for Sec.  
106.45(b)(5)(vii) and asserted that the provision would work to restore 
fairness and due process for complainants and respondents. A number of 
commenters stated that, in their experience, the ten-day period 
response period is a reasonable and appropriate time frame. One 
commenter characterized the NPRM as a long overdue correction to the 
withdrawn 2011 Dear Colleague Letter, which the commenter called a 
``wrongful repudiation'' of due process. The commenter also argued for 
the Department to adopt a particular recipient's policy as a model for 
procedures that other recipients should employ in addressing 
inappropriate sexual activity while simultaneously assuring due process 
protections.
    A number of commenters opposed the provision. Many commenters 
expressed concern over the mandated ten-day period. Commenters asserted 
that recipients should determine the appropriate timelines for their 
process, rather than the Department prescribing this timeline. 
Similarly, another commenter asserted that ``rigid time frames'' 
substantially lengthen investigation and adjudication processes. One 
commenter requested clarification as to why the investigative report 
must be completed and made available ten days prior to a hearing. The 
commenter was concerned that such a requirement results in an overly 
burdensome process with negligible benefits. A different commenter 
expressed concern that if new information arises during the review of 
the report, the timeline should be extended to avoid exploitative 
efforts by either party. One commenter questioned how institutions 
should respond when a party requests additional time to review the 
report before the hearing.
    One commenter requested clarification over when the parties' 
written responses to the investigative report are due and what the 
investigator is supposed to do with the parties' responses.
    Some commenters argued that the proposed provision is unnecessary 
because the parties could address and respond to evidence during a 
hearing. Many commenters stated that sharing the investigative report 
is burdensome and could obstruct the investigation. A number of 
commenters pointed out that the proposed provision would require them 
to change processes, causing a disruption in how they handle Title IX 
enforcement on their campus. Citing the addition of significant time 
and resource requirements to their institution's current procedures, 
one commenter argued that small institutions lack the capacity right 
now to comply with this requirement. A different commenter concluded 
that this provision will impose ``shadow costs'' on institutions.
    Another commenter proposed deleting Sec.  106.45(b)(5)(vii) 
entirely because of concerns over what should be included in the 
investigative report, the potential for one of the parties to demand a 
time extension if the report contains a recommendation of 
responsibility, and the issues raised in multiple complainant 
proceedings. The same commenter recommended that the investigative 
report include facts, interview statements from the parties, a 
preliminary credibility analysis, and the

[[Page 30309]]

policy applied to the analysis of the alleged behavior. A different 
commenter suggested that the report only include facts, with no 
recommended findings or conclusions, stating that summaries can be 
fraught with ``asymmetrical information delivery'' and may not provide 
a means for any party to submit corrections. One commenter proposed 
removing the mandate to share the investigative report with the 
student's advisor and allowing the student to choose whether they want 
their advisor to see the report.
    One commenter expressed concern that the provision is too vague and 
leaves many unanswered questions, such as what the final regulations 
would allow if the parties need to make changes following their review 
or if additional evidence is located.
    A commenter requested a clarification of, or a change to, the 
language in Sec.  106.45(b)(5)(vi), which refers to ``directly related 
to the evidence,'' and Sec.  106.45(b)(5)(vii), which refers to 
``relevant evidence.''
    A commenter stated that, as written, this provision would allow 
institutions to implement access controls that could limit or deny due 
process, such as declaring that the report is the property of the 
institution or creating time limits on viewings. The commenter proposed 
that the provision should be revised to allow the parties easy access 
to the report until the final determination is made.
    A commenter concluded that provision goes beyond any due process 
requirement, that they are aware of, to have information in the 
evidentiary file synthesized into a summary report ten days before the 
hearing. The commenter also requested clarification as to how the 
recipient must amend its investigative report in light of the parties' 
responses.
    Many commenters questioned whether the Department meant ten 
calendar days or ten business days.
    Discussion: The Department appreciates commenters' support of Sec.  
106.45(b)(5)(vii). We agree that the final regulations seek to provide 
strong, clear procedural protections to complainants and respondents, 
including apprising both parties of the evidence the investigator has 
determined to be relevant, in order to adequately prepare for a hearing 
(if one is required or otherwise provided) and to submit responses 
about the investigative report for the decision-maker to consider even 
where a hearing is not required or otherwise provided.
    We appreciate the commenter's proposal to follow policies in place 
at a particular institution. We acknowledge the efforts of particular 
institutions and have considered policies in place at various 
individual institutions, but for reasons described in the ``Role of Due 
Process in the Grievance Process'' section and throughout this 
preamble, we do not adopt any particular institution's policies or 
procedures wholesale. We believe that the provisions outlined in these 
final regulations provide necessary and appropriate due process and 
fundamental fairness protections to complainants and respondents.
    As some commenters have noted, Sec.  106.45(b)(5)(vii) aligns with 
the practice of many recipients who have become accustomed to 
conducting investigations in Title IX sexual harassment proceedings and 
create an investigative report as part of such an investigation. We 
believe that a standardized provision regarding an investigative report 
is important in the context of Title IX proceedings even though such a 
step may not be required in civil litigation or criminal proceedings 
and even though specific parts of this provision may differ from 
recipients' current practices (i.e., ensuring that parties are sent a 
copy of the investigative report ten days prior to the time that a 
determination regarding responsibility will be made). The Department 
believes that the purpose of Sec.  106.45(b)(5)(vii) and the specific 
requirements in this provision are appropriate because a Title IX 
grievance process occurs in an educational institution (not in a court 
of law) and because a recipient of Federal funds agrees, under Title 
IX, to operate education programs or activities free from sex 
discrimination. It is thus appropriate to obligate the recipient (and 
not the parties to disputed sexual harassment allegations) to take 
reasonable steps calculated to ensure that the burden of gathering 
evidence remains on the recipient, yet to also ensure that the 
recipient gives the parties meaningful opportunity to understand what 
evidence the recipient collects and believes is relevant, so the 
parties can advance their own interests for consideration by the 
decision-maker. A valuable part of this process is giving the parties 
(and advisors who are providing assistance and advice to the parties) 
adequate time to review, assess, and respond to the investigative 
report in order to fairly prepare for the live hearing or submit 
arguments to a decision-maker where a hearing is not required or 
otherwise provided. Without advance knowledge of the investigative 
report, the parties will be unable to effectively provide context to 
the evidence included in the report.
    While we are sensitive to recipients' concerns regarding burden, 
cost, and capacity, the Department believes that the required process 
in Sec.  106.45(b)(5)(vii) does not present onerous demands on 
recipients. Concerns over burden and capacity should be weighed, not 
only against fundamental fairness and due process, but in the context 
of the phase of an investigation when this requirement is in place: 
During the period when the investigative report should be compiled 
anyway (that is, after evidence has been gathered and before a 
determination will be made). In the context of a grievance process that 
involves multiple complainants, multiple respondents, or both, a 
recipient may issue a single investigative report. We have added Sec.  
106.45(b)(4) to expressly authorize a recipient, in the recipient's 
discretion, to consolidate formal complaints when allegations all arise 
out of the same facts or circumstances.
    Section 106.45(b)(5)(vii) is important for fairness as well as 
efficiency purposes; it assures that the investigative report is 
completed in an expeditious manner, provides the opportunity to the 
parties to prepare their arguments and defenses, and serves the goal of 
ensuring constructive, meaningful, and effective hearings (where 
required, or otherwise provided) and informed determinations regarding 
responsibility even where the determination is reached without a 
hearing. Section 106.45(b)(5)(vii) presents no obstacle to an effective 
investigation and reliable resolution because it comes after an 
investigation has finished gathering evidence.
    The Department shares commenters' concerns about recipient 
practices that limit access to the investigative report. Practices or 
rules that limit a party's (or party's advisor's) access to the 
investigative report violate Sec.  106.45(b)(5)(vii) because under this 
provision recipients must send a copy of the investigative report 
electronically or by hard copy to each party and the party's advisor, 
if any. While this provision does not require a recipient to use a file 
sharing platform that restricts the parties and advisors from 
downloading or copying the evidence, recipients may choose to use a 
file sharing platform that restricts the parties and advisors from 
downloading or copying the investigative report under Sec.  
106.45(b)(5)(vii) and this would constitute sending the parties a copy 
``in an electronic format,'' meeting the requirements of this 
provision.

[[Page 30310]]

    The Department appreciates commenters' suggestions as to what 
elements recipients should include in their investigative reports. The 
Department takes no position here on such elements beyond what is 
required in these final regulations; namely, that the investigative 
report must fairly summarize relevant evidence. We note that the 
decision-maker must prepare a written determination regarding 
responsibility that must contain certain specific elements (for 
instance, a description of procedural steps taken during the 
investigation) \1182\ and so a recipient may wish to instruct the 
investigator to include such matters in the investigative report, but 
these final regulations do not prescribe the contents of the 
investigative report other than specifying its core purpose of 
summarizing relevant evidence.
---------------------------------------------------------------------------

    \1182\ Section 106.45(b)(7)(ii).
---------------------------------------------------------------------------

    The Department does not adopt commenters' suggestions to allow 
institutions to set their own timelines with respect to the parties' 
window of time to review the investigative report, but the Department 
has intentionally given recipients flexibility to designate the 
recipient's own ``reasonably prompt time frames'' for the conclusion of 
each phase of the grievance process (including appeals and any informal 
resolution processes) pursuant to Sec.  106.45(b)(1)(v). While we 
understand from commenters that some recipients may desire to conclude 
their grievance process in fewer than 20 days (i.e., the two ten-day 
timelines prescribed in Sec.  106.45 which, in combination, preclude a 
recipient from designating a time frame for conclusion of an entire 
grievance process in fewer than 20 days), the Department believes that 
20 or fewer days has not been widely viewed as a reasonable time frame 
for conducting and concluding a truly fair investigation and 
adjudication of allegations that carry such high stakes for all parties 
involved. This belief is buttressed by commenters who appreciated that 
the Department has withdrawn the expectation set forth in the withdrawn 
2011 Dear Colleague Letter for recipients to conclude a grievance 
process within 60 calendar days.\1183\ We reiterate that a formal 
complaint of Title IX sexual harassment alleges serious misconduct that 
has jeopardized a person's equal educational access, and the 
determination regarding responsibility carries grave consequences for 
each party; the purpose of the Sec.  106.45 grievance process is to 
reduce the likelihood of positive or negative erroneous outcomes (i.e., 
inaccurate findings of responsibility and inaccurate findings of non-
responsibility). Ensuring that each party, in each case, receives 
effective notice and meaningful opportunity to be heard necessitates 
some procedures that involve some passage of time (e.g., time for 
parties and their advisors to review evidence, and to review the 
investigator's summary of relevant evidence). The Sec.  106.45 
grievance process aims to balance the need for a thorough, fair 
investigation that permits the parties' meaningful participation, with 
the need to conclude a grievance process promptly to bring resolution 
to situations that are difficult for both parties to navigate.
---------------------------------------------------------------------------

    \1183\ 2011 Dear Colleague Letter at 12 (``Based on OCR 
experience, a typical investigation takes approximately 60 calendar 
days following receipt of the complaint.''). The Department's 
experience, therefore, has long been that an adequate investigation 
into sexual harassment allegations typically takes longer than 20 
days.
---------------------------------------------------------------------------

    We appreciate the commenter's suggestion that the student should 
get to choose what the student's advisor can see in the investigative 
report. We do not believe that this issue requires regulation and we do 
not wish to create unnecessary complexity in the recipient's 
obligations with respect to sending the investigative report. A party 
may always request that the recipient not send the investigative report 
to the party's advisor, but if the party has already indicated that the 
party has selected an advisor of choice then we believe the better 
default practice is for the party's advisor to be sent the 
investigative report, so that the burden of receiving the report, then 
forwarding it to the party's advisor, does not rest on the party, which 
would also result in a de facto shortening of the ten-day window in 
which a party--with assistance from an advisor--may review and prepare 
responses to the investigator's summary of relevant evidence.
    The Department acknowledges the difference between the use of 
``directly related to the allegations'' in Sec.  106.45(b)(5)(vi) and 
``relevant evidence'' in Sec.  106.45(b)(5)(vii). As discussed above, 
in the ``Section 106.45(b)(5)(vi) Inspection and Review of Evidence 
Directly Related to the Allegations, and Directed Question 7'' 
subsection of the ``Investigation'' subsection of the ``Section 106.45 
Recipient's Response to Formal Complaints'' section of this preamble, 
we acknowledge that ``directly related to the allegations'' may 
encompass a broader universe of evidence than evidence that is 
``relevant,'' and believe that it is most beneficial for the parties' 
access to evidence to be limited by what is directly related to the 
allegations, but for the investigator to determine what is relevant 
after the parties have reviewed that evidence.
    Independent of whether this provision would be required to satisfy 
constitutional due process of law, Sec.  106.45(b)(5)(vii) (giving the 
parties copies of the investigative report prior to the live hearing or 
other time of determination) serves an important function in a Title IX 
grievance process, placing the parties on level footing with regard to 
accessing information to allow the parties to serve as a check on any 
decisions that the recipient makes regarding the relevance of evidence 
and omission of relevant evidence. Allowing the parties to review and 
respond to the investigative report is important to providing the 
parties with notice of the evidence the recipient intends to rely on in 
deciding whether the evidence supports the allegations under 
investigation. The parties cannot meaningfully respond and put forward 
their perspectives about the case when they do not know what evidence 
the investigator considers relevant to the allegations at issue.
    These final regulations do not prescribe a process for the 
inclusion of additional information or for amending or supplementing 
the investigative report in light of the parties' responses after 
reviewing the report. However, we are confident that even without 
explicit regulatory requirements, best practices and respect for 
fundamental fairness will inform recipients' choices and practices with 
regard to amending and supplementing the report. Recipients enjoy 
discretion with respect to whether and how to amend and supplement the 
investigative report as long as any such rules and practices apply 
equally to both parties, under the revised introductory sentence of 
Sec.  106.45(b).
    A recipient may give the parties the opportunity to provide 
additional information or context in their written response to the 
investigative report, as provided in Sec.  106.45(b)(5)(vii), to remedy 
any ``asymmetrical information delivery,'' but the Department believes 
that in combination, Sec.  106.45(b)(5)(vi)-(vii) reduce the likelihood 
of asymmetrical information delivery because the parties each will have 
the opportunity to review all the evidence related to the allegations 
and then all the evidence the investigator decides is relevant. A 
recipient may require all parties to submit any evidence that they 
would like the investigator to consider prior to the finalization of 
the investigative report thereby allowing each party to respond to the 
evidence in the investigative report sent to the

[[Page 30311]]

parties under Sec.  106.45(b)(5)(vii). A recipient also may provide 
both parties with an opportunity to respond to any additional evidence 
the other party proposes after reviewing the investigative report. If a 
recipient allows parties to provide additional evidence in response to 
the investigative report, any such additional evidence will not qualify 
as new evidence that was reasonably available at the time the 
determination regarding responsibility was made for purposes of an 
appeal under Sec.  106.45(b)(8)(i)(B). Similarly, a recipient has 
discretion to choose whether to provide a copy of each party's written 
response to the other party as an additional measure to allow the 
parties to prepare for the hearing (or to be heard prior to the 
determination regarding responsibility being made, if no hearing is 
required or provided). As noted above, any rules or practices other 
than those required by Sec.  106.45 that a recipient adopts must apply 
equally to both parties, and a recipient must be mindful that rules it 
chooses to adopt that extend time frames must take into account the 
recipient's obligation to conclude the entire grievance process within 
the recipient's own designated time frame, under Sec.  106.45(b)(1)(v).
    To conform with the changes we made to Sec.  106.45(b)(5)(vi), we 
have revised Sec.  106.45(b)(5)(vii) to include a provision that 
requires the investigative report to be sent to each party and the 
party's advisor, if any, in an electronic format or a hard copy. As 
stated elsewhere in this preamble, the final regulations do not require 
a specific method for calculating ``days.'' Recipients retain 
flexibility to adopt the method that best works for the recipient's 
operations, including calculating ``days'' using calendar days, 
business days, school days, or so forth.
    Changes: The Department has revised Sec.  106.45(b)(5)(vii) by 
changing the parenthetical to refer to ``this section'' instead of 
``Sec.  106.45'' and adding ``or otherwise provided'' after ``if a 
hearing is required by this section,'' by requiring the investigative 
report to be sent to parties and their advisors, if any, and by adding 
the option of sending a copy in electronic format or hard copy.

Hearings

Cross-Examination Generally
Support for Cross-Examination
    Comments: Some commenters expressed support for the proposed rules' 
requirement in Sec.  106.45(b)(6)(i) that postsecondary institutions 
allow cross-examination at a live hearing because in a college or 
university setting, where participants are usually adults, cross-
examination is an essential pillar of fair process, and where cases 
turn exclusively or largely on witness testimony as is often the case 
in peer-on-peer grievances, cross-examination is especially critical to 
resolve factual disputes between the parties and give each side the 
opportunity to test the credibility of adverse witnesses, serving the 
goal of reaching legitimate and fair results.\1184\
---------------------------------------------------------------------------

    \1184\ Commenters cited: American Bar Association, ABA Criminal 
Justice Section Task Force on College Due Process Rights and Victim 
Protections, Recommendations for Colleges and Universities in 
Resolving Allegations of Campus Sexual Misconduct 9 (2017).
---------------------------------------------------------------------------

    Some commenters supported Sec.  106.45(b)(6)(i) because live 
hearings with cross-examination are consistent with Supreme Court cases 
interpreting due process of law,\1185\ as well as recent case law in 
which courts have held that cross-examination must be provided in 
higher education disciplinary proceedings, particularly when 
credibility is at issue, to meet standards of fundamental fairness and 
constitutional due process.\1186\ Commenters relied on Sixth Circuit 
cases in particular \1187\ to assert that high-stakes cases involving 
competing narratives require a mutual test of credibility, and to argue 
that the cost to a university of providing a live hearing with cross-
examination is far outweighed by the benefit of reducing the risk of an 
erroneous finding of responsibility. Some commenters also pointed to a 
California appellate court decision \1188\ where the court found it 
ironic that an institution of higher learning, where American history 
and government are taught, should stray so far from the principles that 
underlie our democracy, and two other California appellate court 
decisions \1189\ that one commenter characterized together as 
representing unanimous rulings by nine appellate judges that public and 
private colleges and universities owe basic due process protections to 
students in Title IX proceedings. Several commenters argued that the 
recent Sixth Circuit and California appellate decisions illustrate a 
trend, or growing judicial consensus, that some kind of cross-
examination should be permitted in serious student misconduct cases 
that turn on credibility.\1190\ A few commenters argued that under many 
State APAs (Administrative Procedure Acts) students in serious 
misconduct cases have a right to cross-examine an accuser and cited 
cases from Washington and Oregon as examples.\1191\
---------------------------------------------------------------------------

    \1185\ Commenters cited: Goss v. Lopez, 419 U.S. 565 (1975); 
Mathews v. Eldridge, 424 U.S. 319 (1976).
    \1186\ Commenters cited: Doe v. Baum [University of Michigan], 
903 F.3d 575, 578 (6th Cir. 2018) (``[t]he ability to cross-examine 
is most critical when the issue is the credibility of the 
accuser.''); Doe v. Univ. of Cincinnati, 872 F.3d 393, 401 (6th Cir. 
2017) (``In the case of competing narratives, `cross-examination has 
always been considered a most effective way to ascertain truth.' '') 
(internal citations omitted); Doe v. Alger [James Madison 
University], 228 F. Supp. 3d 713, 730 (W.D. Va. 2016); Doe v. 
Claremont McKenna Coll., 25 Cal. App. 5th 1055, 1070 (2018).
    \1187\ Commenters cited: Baum, 903 F.3d at 581; Univ. of 
Cincinnati, 872 F.3d at 403.
    \1188\ Commenters cited: Doe v. Regents of Univ. of Cal., 28 
Cal. App. 5th 44, 61 (2018) (university failed to provide a fair 
hearing by selectively applying rules of evidence, refusing to show 
respondent all the evidence against him, and refusing to consider 
respondent's proffered evidence, and the lack of due process 
protections resulted in neither the respondent nor the complainant 
receiving a fair hearing).
    \1189\ Commenters cited: Doe v. Allee [University of Southern 
California], 30 Cal. App. 5th 1036 (2019); Doe v. Claremont McKenna 
Coll., 25 Cal. App. 5th 1055 (2018).
    \1190\ Cf. Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 70 
(1st Cir. 2019) (declining to require the same opportunity for 
cross-examination as required by the Sixth Circuit but holding that 
due process of law was satisfied if the university conducted 
``reasonably adequate questioning'' designed to ferret out the 
truth, if the university declined to grant students the right to 
cross-examine parties and witnesses at a hearing).
    \1191\ Commenters cited: Arishi v. Wash. State Univ., 196 Wash. 
App. 878, 908 (2016); Liu v. Portland State Univ., 281 Or. App. 294, 
307 (2016).
---------------------------------------------------------------------------

    Commenters opined that requiring a live hearing with cross-
examination for postsecondary institutions is perhaps the single most 
important change in the proposed rules to ensure that determinations 
are fair. Commenters referred to cross-examination as a ``game-
changer'' because currently many college and university processes 
require parties to submit written questions in advance, to be asked by 
a school official, which may or may not occur at a live hearing. 
Commenters asserted that in numerous instances, college and university 
administrators have refused to ask some or all of a party's submitted 
questions, reworded a party's questions in ways that undermined the 
question's effectiveness, ignored follow-up questions, and simply 
refused to ask ``hard questions'' of parties even when evidence such as 
text messages appeared to contradict a party's testimony. Commenters 
argued that written questions are not an effective substitute for live 
cross-examination because credibility can be determined only when 
questions are asked in real time in the presence of parties and 
decision-makers who can listen and observe how a witness answers 
questions, and when immediate follow-up questions are permitted. 
Commenters argued that cross-examination is necessary to allow the 
decision-maker to

[[Page 30312]]

observe each witness answering questions that can bring out 
contradictions and improbabilities in the witness's testimony. 
Commenters cited Supreme Court criminal law cases discussing the 
symbolic and practical value of cross-examination in the context of the 
Sixth Amendment's Confrontation Clause.\1192\
---------------------------------------------------------------------------

    \1192\ Commenters cited: Coy v. Iowa, 487 U.S. 1012, 1017 (1988) 
(stating that cross-examination has symbolic importance because 
``there is something deep in human nature that regards face-to-face 
confrontation between accused and accuser as essential to a fair 
trial in a criminal prosecution'') (internal quotation marks and 
citation omitted); id. at 1019 (noting the practical importance of 
cross-examination because it ``is always more difficult to tell a 
lie about a person to his [or her] face than behind his [or her] 
back'') (internal quotation marks and citation omitted); Mattox v. 
United States, 156 U.S. 237, 242-43 (1895) (cross-examination 
provides the trier-of-fact opportunity to judge by the witness's 
demeanor on the stand and ``the manner in which he gives his 
testimony whether he is worthy of belief.'').
---------------------------------------------------------------------------

    Some commenters argued that despite other commenters' assumptions 
that the proposed rules would allow a complainant to be aggressively or 
abusively questioned by a respondent's advisor, it is unlikely that 
campus officials will permit an advisor to question a party in an 
inappropriate manner; for example, commenters asserted, under current 
policies most universities only allow lawyers or other advisors to be 
``potted plants'' in hearings and school officials enforce that potted-
plant policy, demonstrating that recipients are capable of controlling 
advisors. One commenter asserted that universities, which are dedicated 
to the free flow of information, will figure out an acceptable way for 
cross-examination to occur so that campus adjudications can meet 
generally accepted standards of due process. Several commenters 
asserted that recipients should, and under the proposed rules would be 
allowed to, adopt measures to prevent irrelevant, badgering questions 
and ensure respectful treatment of parties and witnesses. Commenters 
supported requiring cross-examination to be conducted by party advisors 
because this will mean that the questioning will be left to 
professionals, or at least to adults better attuned to the nuances of 
these cases. Commenters asserted that concerns about aggressive 
attorneys berating complainants are overblown, because attorneys and 
even non-attorney advisors know better than to alienate the fact-
finder, which is what berating a complainant would do. Commenters 
asserted that the proposed rules reach a balanced solution by allowing 
cross-examination to determine credibility while disallowing direct 
student-to-student questioning and permitting questioning to occur with 
the parties in separate rooms.
    Some commenters supported the cross-examination requirement based 
on belief that confronting an accuser is a part of the fundamental 
concept of the rule of law that should apply on college campuses. Some 
commenters believed that cross-examination will change the ``kangaroo 
court'' nature of campus Title IX proceedings that lacked basic due 
process protections, and that asking complainants questions about the 
allegations does not revictimize a complainant. Several commenters 
expressed support for cross-examination in the context of belief that 
the withdrawn 2011 Dear Colleague Letter, and/or the #MeToo movement, 
have tilted too many colleges and universities to be predisposed to 
believing young men guilty of sexual assault.
    Many commenters supported cross-examination because of personal 
experiences being accused of a Title IX violation without any 
opportunity to confront the complainant, asserting that lack of cross-
examination allowed a complainant's version of events to go 
unchallenged.
    Many commenters supported cross-examination as an important part of 
the proposed rules' restoration of due process and fairness that 
distinguishes the United States from dictatorial regimes where to be 
accused is the same as being proved guilty. Several commenters argued 
that cross-examination is vital for finding the truth, which should be 
the goal of any investigation, because cross-examination reveals a 
witness's faulty memory or false testimony. Commenters asserted that 
cross-examination allows the parties to make a searching inquiry to 
uncover facts that may have been omitted, confused, or overstated.
    Some commenters believed that cross-examination will reduce the 
likelihood of false allegations being made or succeeding. One commenter 
argued that regardless of whether false allegations happen infrequently 
or frequently, every case must be considered individually using a 
proper investigation process with cross-examination. One commenter 
opposed the proposed rules as problematic and offensive to victims, but 
supported the cross-examination provision because due process is an 
inherent right in the United States. This commenter also supported 
cross-examination because victims going through a criminal trial get 
cross-examined, and even though false allegations are rare, where there 
is one, it should be taken care of in accordance with due process.
    A few commenters supported the cross-examination requirement 
because full and fair adversarial procedures are likely to reduce bias 
in decision making. One commenter quoted Supreme Court criminal law 
decisions for the proposition that the adversarial ``system is premised 
on the well-tested principle that truth--as well as fairness--is `best 
discovered by powerful statements on both sides of the question.' '' 
\1193\ Another commenter asserted that nothing can completely eliminate 
sex or racial bias in a system but bias can be reduced by expanding the 
evidence considered by decision-makers, such as by requiring a full 
investigation and cross-examination.\1194\ One commenter asserted that 
it is within the Department's jurisdiction to create regulations about 
cross-examination and other procedures that reduce impermissible 
implicit bias on the basis of sex stereotypes and unconscious sex-
bias.\1195\
---------------------------------------------------------------------------

    \1193\ Commenters cited: Penson v. Ohio, 488 U.S. 75, 84 (1988) 
(quoting Irving R. Kaufman, Does the Judge Have a Right to Qualified 
Counsel?, 61 Am. Bar. Ass'n J. 569, 569 (1975)); United States v. 
Cronic, 466 U.S. 648, 656 (1984) (describing the ``crucible of 
meaningful adversarial testing''); Cal. v. Green, 399 U.S. 149, 158 
(1970) (describing cross-examination as the ``greatest legal engine 
ever invented for the discovery of truth'') (internal quotation 
marks and citations omitted). Several commenters paraphrased the 
``greatest legal engine ever invented for discovery of truth'' 
passage without citing to the Supreme Court case or the Wigmore 
treatise from which it originates.
    \1194\ Commenters cited: Stephen P. Klein et al., Race and 
Imprisonment Decisions in California, 24 Science 812 (1990) (for the 
proposition that most decisions after a full trial are not based on 
using race as a proxy, but rather on evidence at trial, resulting in 
racially fair decisions).
    \1195\ Commenters cited: Maryland v. Craig, 497 U.S. 836, 846 
(1990) (quoting Cal. v. Green, 399 U.S. 149, 158 (1970)) for the 
proposition that when procedures typical to our adjudicative 
processes, such as cross-examination, are introduced into university 
grievance proceedings such procedures allow for the ``discovery of 
the truth'' in a manner that reduces stereotyping.
---------------------------------------------------------------------------

    A few commenters supported cross-examination because both parties 
need due process including the right to use cross-examination to 
establish credibility so that each party has their stated facts 
scrutinized to find the truth. Some commenters asserted that cross-
examination ensures a level of fairness that benefits all parties 
involved in Title IX cases. A few commenters believed the proposed 
rules, including the cross-examination requirement, provide a fair and 
equal opportunity for both sides. One commenter argued that cross-
examination holds a great benefit to both parties and allows the 
investigator and other staff on the case to hear both sides of the 
story; another commenter stated there are two sides to every issue and 
both sides must be questioned. One

[[Page 30313]]

commenter supported the cross-examination requirement and stated that 
current, unfair procedures harm respondents who are women, and who are 
gay or lesbian, as well as respondents who are men, giving examples 
such as a young woman the commenter represented who was so drunk she 
could not have consented to sex and yet was expelled because the male 
filed with the Title IX office first. Several commenters asserted that 
cross-examination is as beneficial for the recipient as for the parties 
because the decision-maker has the opportunity to observe and judge the 
credibility of parties and witnesses, thereby serving the recipient's 
interest in reaching accurate determinations.
    Another commenter argued that the opportunity to cross-examine 
witnesses is a procedural protection that should not be controversial 
given it is a bedrock principle of the American criminal justice system 
designed to create a more reliable fact finding process. The commenter 
believed that a reliable process is in the interest of all parties 
including recipients, because greater reliability will lead to greater 
acceptance of the legitimacy of the decisions. This commenter also 
asserted that institutional opposition to basic notions of due process 
has led to widespread mistrust of the decision-making processes of 
Title IX offices, evidenced by the prevalence of Federal lawsuits 
challenging Title IX decisions made by institutions. The commenter 
argued that institutions must conform their Title IX procedures to 
basic notions of due process to establish the legitimacy of their 
decisions.
    One commenter argued that it is unfair to a complainant not to be 
able to cross-examine a respondent or witnesses. At least one commenter 
argued that cross-examination will provide greater reliability, which 
should encourage complainants to report harassment and further support 
Title IX's objective of protecting the educational environment. One 
commenter argued that giving respondents a full hearing with cross-
examination means that victims of ``contemptible rapists'' can exact 
justice, and that even if answering questions about painful memories is 
difficult it is worth it to make sure that rape accusations are not 
approached lightly. Another commenter asserted that claiming that 
having an accusation examined is too traumatic for a complainant 
infantilizes complainants. Several commenters argued that even though 
testifying about traumatic events is difficult and uncomfortable, 
testimony from any party that is never questioned cannot be evaluated 
for truthfulness.
    Some commenters supported the proposed rules, and cross-examination 
as the opportunity to test the credibility of claims, because, 
commenters asserted, women reject the trampling of constitutional 
rights in the name of women's rights. One commenter supported live 
hearings and cross-examination conducted through advisors, including 
attorneys, because students will have an opportunity to learn about how 
misconduct allegations are factually examined and determined.
    Some commenters supported Sec.  106.45(b)(6)(i) but requested that 
the provision be expanded to expressly give parties the right to also 
cross-examine any investigator or preparer of an investigative report, 
because the entire grievance procedure is often based on the findings 
in the investigative report and it is thus essential that the parties 
be able to cross-examine the individuals who prepared the report to 
probe how conclusions were reached and whether the report is credible.
    Discussion: The Department appreciates commenters' support for the 
requirement in Sec.  106.45(b)(6)(i) that postsecondary institutions 
must hold live hearings with cross-examination conducted by party 
advisors. The Department agrees with commenters who observed that 
several appellate courts over the last few years have carefully 
considered the value of cross-examination in high-stakes student 
misconduct proceedings in colleges and universities and concluded that 
part of a meaningful opportunity to be heard includes the ability to 
challenge the testimony of parties and witnesses. The Department agrees 
with commenters who noted that this conclusion has been reached by 
courts both in the context of constitutional due process in public 
institutions and a fair process in private institutions. The Department 
agrees with commenters who observed that some States already provide 
rights to a robust hearing and cross-examination under State APA laws, 
demonstrating that the notion of live hearings and cross-examination is 
not new or foreign to many postsecondary institutions. The Department 
is aware that many postsecondary institutions have created disciplinary 
systems for sexual misconduct issues that intentionally avoid live 
hearings and cross-examination, due to concern about retraumatizing 
sexual assault victims; however, the Department agrees with commenters 
that in too many instances recipients who have refused to permit 
parties or their advisors to conduct cross-examination and instead 
allowed questions to be posed through hearing panels have stifled the 
value of cross-examination by, for example, refusing to ask relevant 
questions posed by a party, changing the wording of a party's question, 
or refusing to allow follow-up questions.
    The Department agrees with commenters that cross-examination serves 
the interests of complainants, respondents, and recipients, by giving 
the decision-maker the opportunity to observe parties and witnesses 
answer questions, including those challenging credibility, thus serving 
the truth-seeking purpose of an adjudication. The Department 
acknowledges that Title IX grievance processes are not criminal 
proceedings and thus constitutional protections available to criminal 
defendants (such as the right to confront one's accuser under the Sixth 
Amendment) do not apply in the educational context; however, the 
Department agrees with commenters that cross-examination is a valuable 
tool for resolving the truth of serious allegations such as those 
presented in a formal complaint of sexual harassment. The Department 
emphasizes that cross-examination that may reveal faulty memory, 
mistaken beliefs, or inaccurate facts about allegations does not mean 
that the party answering questions is necessarily lying or making 
intentionally false statements. The Department's belief that cross-
examination serves a valuable purpose in resolving factual allegations 
does not reflect a belief that false accusations occur with any 
particular frequency in the context of sexual misconduct proceedings. 
However, the degree to which any inaccuracy, inconsistency, or 
implausibility in a narrative provided by a party or witness should 
affect a determination regarding responsibility is a matter to be 
decided by the decision-maker, after having the opportunity to ask 
questions of parties and witnesses, and to observe how parties and 
witnesses answer the questions posed by the other party.
    The Department agrees with commenters that the truth-seeking 
function of cross-examination can be achieved while mitigating any re-
traumatization of complainants because under the final regulations: 
Cross-examination is only conducted by party advisors and not directly 
or personally by the parties themselves; upon any party's request the 
entire live hearing, including cross-examination, must occur with the 
parties in separate rooms; questions about a complainant's prior sexual 
behavior are barred subject to two limited exceptions; a party's 
medical or psychological records can

[[Page 30314]]

only be used with the party's voluntary consent; \1196\ recipients are 
instructed that only relevant questions must be answered and the 
decision-maker must determine relevance prior to a party or witness 
answering a cross-examination question; and recipients can oversee 
cross-examination in a manner that avoids aggressive, abusive 
questioning of any party or witness.\1197\
---------------------------------------------------------------------------

    \1196\ Section 106.45(b)(5)(i) (providing that a party's 
treatment records can only be used in a grievance process with that 
party's voluntary, written consent).
    \1197\ Section 106.45(b) (introductory sentence as revised in 
the final regulations provides that any provisions, rules, or 
practices other than those required by Sec.  106.45 that a recipient 
adopts as part of its grievance process for handling formal 
complaints of sexual harassment as defined in Sec.  106.30, must 
apply equally to both parties).
---------------------------------------------------------------------------

    The Department agrees with commenters that sex bias is a unique 
risk in the context of sexual harassment allegations, where the case 
often turns on plausible, competing factual narratives of an incident 
involving sexual or sex-based interactions, and application of sex 
stereotypes and biases may too easily become a part of the decision-
making process. The Department agrees with commenters that ensuring 
fair adversarial procedures lies within the Department's authority to 
effectuate the purpose of Title IX because such procedures will prevent 
and reduce sex bias in Title IX grievance processes and better ensure 
that recipients provide remedies to victims of sexual harassment.
    The Department agrees with commenters that cross-examination 
equally benefits complainants and respondents, and that both parties in 
a high-stakes proceeding raising contested factual issues deserve equal 
rights to fully participate in the proceeding. This ensures that the 
decision-maker observes each party's view, perspective, opinion, 
belief, and recollection about the incident raised in the formal 
complaint of sexual harassment. The Department agrees with commenters 
who note that any person can be a complainant, and any person can be a 
respondent, regardless of a person's race, sexual orientation, gender 
identity, or other personal characteristic, and each party, in every 
case, deserves the opportunity to promote and advocate for the party's 
unique interests.
    The Department agrees with commenters that postsecondary-level 
adjudications with live hearings and cross-examination will increase 
the reality and perception by parties and the public that Title IX 
grievance processes are reaching fair, accurate determinations, and 
that robust adversarial procedures improve the legitimacy and 
credibility of a recipient's process, making it more likely that no 
group of complainants or respondents will experience unfair treatment 
or unjust outcomes in Title IX proceedings (for example, where formal 
complaints involve people of color, LGBTQ students, star athletes, 
renowned faculty, etc.).
    The Department agrees with commenters that cross-examination is as 
powerful a tool for complainants seeking to hold a respondent 
responsible as it is for a respondent, and that a determination of 
responsibility reached after a robust hearing benefits victims by 
removing opportunity for the respondent, the recipient, or the public 
to doubt the legitimacy of that determination. The Department agrees 
with commenters that there is no tension between providing strong 
procedural protections aimed at discovering the truth about allegations 
in each particular case, and upholding the rights of women (and every 
person) to participate in education programs or activities free from 
sex discrimination. The Department appreciates a commenter's belief 
that observing a live hearing with cross-examination may provide 
students with opportunity to learn about adjudicatory processes, though 
the Department notes that the purpose of the Sec.  106.45 grievance 
process is to reach factually reliable determinations so that sex 
discrimination in the form of sexual harassment is appropriately 
remedied by recipients so that no student's educational opportunities 
are denied due to sex discrimination.
    The Department understands commenters' point that often a case is 
shaped and directed by the evidence gathered and summarized by the 
investigator in the investigative report, including the investigator's 
findings, conclusions, and recommendations. The Department emphasizes 
that the decision-maker must not only be a separate person from any 
investigator, but the decision-maker is under an obligation to 
objectively evaluate all relevant evidence both inculpatory and 
exculpatory, and must therefore independently reach a determination 
regarding responsibility without giving deference to the investigative 
report. The Department further notes that Sec.  106.45(b)(6)(i) already 
contemplates parties' equal right to cross-examine any witness, which 
could include an investigator, and Sec.  106.45(b)(1)(ii) grants 
parties equal opportunity to present witnesses including fact and 
expert witnesses, which may include investigators.
    Changes: None.
Retraumatizing Complainants
    Comments: Many commenters opposed Sec.  106.45(b)(6)(i) requiring 
postsecondary institutions to hold live hearings with cross-examination 
conducted by the parties' advisors. Commenters argued that cross-
examination is an adversarial, contentious procedure that will 
revictimize, retraumatize, and scar survivors of sexual harassment; 
that cross-examination will exacerbate survivors' PTSD (post-traumatic 
stress disorder),\1198\ RTS (rape trauma syndrome), anxiety, and 
depression; and cross-examination will interrogate victims like they 
are the criminals, rub salt in victims' wounds, put rape victims 
through a second rape, and essentially place the victim on trial when 
victims are already trying to heal from a horrific experience. 
Commenters argued that no other form of misconduct gives respondents 
the right to ``put on trial'' the person accusing the respondent of 
wrongdoing; one commenter argued that for instance, professors accusing 
a student of cheating are not ``put on trial,'' a student accusing 
another student of vandalism is not ``put on trial,'' so singling out 
sexual misconduct complainants for a procedure designed to intimidate 
and undermine the complainant's credibility heightens the misperception 
that the credibility of sexual assault complainants is uniquely 
suspect. Other commenters acknowledged that some recipients do use 
cross-examination in non-sexual misconduct hearings because cross-
examination can be helpful in getting to the heart of the

[[Page 30315]]

allegations; these commenters asserted that Title IX hearings are 
different due to the subject matter and relationships between the 
parties and cross-examination is inappropriate in sexual misconduct 
proceedings.
---------------------------------------------------------------------------

    \1198\ Commenters cited: Anke Ehlers & David M. Clark, A 
Cognitive Model of Posttraumatic Stress Disorder, 38 Behavior 
Research & Therapy 4 (2000); Mary P. Koss, Blame, Shame, and 
Community: Justice Responses to Violence Against Women, 55 Am. 
Psychol. 11 (2000); Sue Lees, Carnal Knowledge: Rape on Trial 
(Hamish Hamilton 2002); Sue Lees & Jeanne Gregory, Attrition in Rape 
and Sexual Assault Cases, 36 British J. of Criminology 1 (1996); 
Amanda Konradi, ``I Don't Have To Be Afraid of You'': Rape 
Survivors' Emotion Management in Court, 22 Symbolic Interaction 1 
(1999); Venezia Kingi & Jan Jordan, Responding to Sexual Violence: 
Pathways to Recovery, Wellington: Ministry of Women's Affairs 
(2009); Mary P. Koss et al., Campus Sexual Misconduct: Restorative 
Justice Approaches to Enhance Compliance with Title IX Guidance, 15 
Trauma Violence & Abuse 3 (2014); Fiona Mason & Zoe Lodrick, 
Psychological Consequences of Sexual Assault, 27 Best Practice & 
Research Clinical Obstetrics & Gynecology 1 (2013); National Center 
on Domestic Violence, Trauma & Mental Health, Representing Domestic 
Violence Survivors Who Are Experiencing Trauma and Other Mental 
Health Challenges: A Handbook for Attorneys (2011); Kaitlin Chivers-
Wilson, Sexual Assault and Posttraumatic Stress Disorder: A Review 
of The Biological, Psychological and Sociological Factors and 
Treatments, 9 McGill J. of Med.: MJM: An Int'l Forum for the 
Advancement of Medical Sciences by Students 2 (2006).
---------------------------------------------------------------------------

    Commenters argued that fear of undergoing such a retraumatizing 
experience will chill reporting of sexual harassment and cause more 
victims to stay in the shadows because survivors will have no non-
traumatic options in the wake of sexual violence.\1199\ Commenters 
asserted that coming forward is hard enough for victims because often 
the trauma has resulted in nightmares, intrusive thoughts, inability to 
concentrate, and hypervigilance, and the prospect of facing grueling, 
retraumatizing cross-examination will result in even fewer students 
coming forward.\1200\ Commenters argued that reporting will be 
especially chilled with respect to claims against faculty members, 
where a power differential already exists.
---------------------------------------------------------------------------

    \1199\ Many commenters cited to information regarding low rates 
of reporting of sexual harassment such as the data noted in the 
``Reporting Data'' subsection of the ``General Support and 
Opposition'' section of this preamble, in support of arguments that 
cross-examination will further reduce rates of reporting. Commenters 
also cited: Joanne Belknap, Rape: Too Hard to Report and Too Easy to 
Discredit Victims, 16 Violence Against Women 12 (2010); Suzanne B. 
Goldberg, Keep Cross-examination Out of College Sexual-Assault 
Cases, Chronicle of Higher Education (Jan. 10, 2019).
    \1200\ Commenters cited: Judith Lewis Herman, Justice From the 
Victim's Perspective, 11 Violence Against Women 5 (2005) for the 
proposition that cross-examination is inherently retraumatizing and 
can trigger vivid memories forming one of the ``psychological 
barriers that discourage victim participation[.]'' Commenters also 
cited: Gregory Matoesian, Reproducing Rape: Domination through Talk 
in the Courtroom (Univ. of Chicago Press 1993); Michelle J. 
Anderson, Women Do Not Report the Violence They Suffer: Violence 
Against Women and the State Action Doctrine, 46 Vill. L. Rev. 907, 
932, 936-37 (2001); Tom Lininger, Bearing the Cross, 74 Fordham L. 
Rev. 1353, 1357 (2005); Anoosha Rouhanian, A Call for Change: The 
Detrimental Impacts of Crawford v. Washington on Domestic Violence 
and Rape Prosecutions, 37 Boston Coll. J. of L. & Social Justice 1 
(2017).
---------------------------------------------------------------------------

    Commenters believed cross-examination creates secondary 
victimization, which commenters referred to as a result of interacting 
with community service providers who engage in victim-blaming 
attitudes.\1201\ Some commenters believed it is cruel to let victims be 
cross-examined by the person who committed the assault, or to force a 
victim to be face-to-face with the perpetrator. Some commenters 
believed that a public hearing where a victim must be cross-examined 
would be severely traumatizing.
---------------------------------------------------------------------------

    \1201\ Commenters cited to information regarding secondary 
victimization and institutional betrayal such as the data noted in 
the ``Commonly Cited Sources'' subsection of the ``General Support 
and Opposition'' section of this preamble, including, for example, 
Rebecca Campbell, Survivors' Help-Seeking Experiences With the Legal 
and Medical Systems, 20 Violence & Victims 1 (2005). Commenters also 
cited: Jim Parsons & Tiffany Bergin, The Impact of Criminal Justice 
Involvement on Victims Mental Health, 23 Journal of Traumatic Stress 
2 (2010).
---------------------------------------------------------------------------

    Commenters asserted that anyone taken advantage of by sexual 
harassment should be able to voice that experience without fear of a 
traumatizing court case. Commenters argued that subjecting a victim 
courageous enough to come forward to the re-traumatization of cross-
examination is an invasion of the victim's right to privacy and safety. 
Commenters asserted that as survivors, they have experienced stress, 
anxiety, nausea, and fear simply from passing by their attackers, and 
the thought of being cross-examined near their attacker makes these 
commenters believe they would not be able to speak at all due to fear, 
would feel permanently traumatized, would drop out of school, or would 
even contemplate suicide.\1202\ Commenters shared personal experiences 
feeling traumatized by cross-examination in Title IX proceedings, 
stating that even where a complainant won the case, the experience of 
cross-examination was so mentally and emotionally taxing that 
complainants suffered years of mental health treatment, felt unable to 
perform academically, or dropped out of school.
---------------------------------------------------------------------------

    \1202\ Commenters cited: Amelia Gentleman, Prosecuting Sexual 
Assault: ``Raped All Over Again,'' The Guardian (Apr. 13, 2013) for 
the story of a woman who committed suicide shortly after being 
cross-examined in a criminal trial in England.
---------------------------------------------------------------------------

    Some commenters supported reform of school discipline procedures 
and agreed that complainants and respondents should be treated the same 
when it comes to procedural rights including a right of cross-
examination, but argued that recipients should be allowed discretion to 
decide whether, or how, to incorporate cross-examination into Title IX 
grievance processes so long as the decision applies equally to both 
parties, and that it is intrusive and myopic for the Department to 
unilaterally impose procedures onto sexual misconduct processes, 
especially in a way that, in the commenters' views, tilts the system 
against victims of sexual harassment.
    Discussion: The Department believes that cross-examination as 
required under Sec.  106.45(b)(6)(i) is a necessary part of a fair, 
truth-seeking grievance process in postsecondary institutions, and that 
these final regulations apply safeguards that minimize the traumatic 
effect on complainants. We have revised Sec.  106.45(b)(6)(i) to 
clearly state that the entire live hearing (and not only cross-
examination) must occur with the parties in separate rooms, at the 
request of any party; that cross-examination must never be conducted by 
a party personally; and that only relevant cross-examination questions 
must be answered and the decision-maker must determine the relevance of 
a cross-examination question before a party or witness answers. 
Recipients may adopt rules that govern the conduct and decorum of 
participants at live hearings so long as such rules comply with these 
final regulations and apply equally to both parties.\1203\ We 
understand that cross-examination is a difficult and potentially 
traumatizing experience for any person, perhaps especially a 
complainant who must answer questions about sexual assault allegations. 
These final regulations aim to ensure that the truth-seeking value and 
function of cross-examination applies for the benefit of both parties 
while minimizing the discomfort or traumatic impact of answering 
questions about sexual harassment.
---------------------------------------------------------------------------

    \1203\ As revised, the introductory sentence of Sec.  106.45(b) 
provides: ``Any provisions, rules, or practices other than those 
required by this section that a recipient adopts as part of its 
grievance process for handling formal complaints of sexual 
harassment as defined in Sec.  106.30, must apply equally to both 
parties.''
---------------------------------------------------------------------------

    While the Department acknowledges that complainants may find a 
cross-examination procedure emotionally difficult, the Department 
believes that a complainant can equally benefit from the opportunity to 
challenge a respondent's consistency, accuracy, memory, and credibility 
so that the decision-maker can better assess whether a respondent's 
narrative should be believed. The complainant's advisor will conduct 
the cross-examination of the respondent and, thus, the complainant will 
not be retraumatized by having to personally question the respondent. 
The Department disagrees that cross-examination places a victim (or any 
party or witness) ``on trial'' or constitutes an interrogation; rather, 
cross-examination properly conducted simply constitutes a procedure by 
which each party and witness answers questions posed from a party's 
unique perspective in an effort to advance the asking party's own 
interests. The Department disagrees that cross-examination implies that 
sexual assault complainants are uniquely unreliable; rather, to the 
extent that cross-examination implies anything about credibility, the 
Department notes that by giving both parties equal cross-examination 
rights, the final regulations contemplate that a complainant's 
allegations, and a respondent's denials,

[[Page 30316]]

equally warrant probes for credibility and truthfulness.
    The Department appreciates commenters' observations that some 
recipients do not use live hearings or cross-examination for any form 
of misconduct charges while other recipients use hearings and cross-
examination for some types of misconduct but not for sexual misconduct. 
The Department does not opine through these final regulations as to 
whether cross-examination is beneficial for non-sexual harassment 
misconduct allegations because the Department's focus in these final 
regulations are the procedures most likely to reach reliable outcomes 
in the context of Title IX sexual harassment. The Department agrees 
with commenters who note that sexual harassment allegations present 
unique circumstances, but disagrees that the subject matter or 
relationships between parties involved in sexual harassment allegations 
make cross-examination less useful than for other types of misconduct 
allegations. Rather, the Department believes that precisely because the 
subject matter involves sensitive, personal matters presenting high 
stakes and long-lasting consequences for both parties, robust 
procedural rights for both parties are all the more important so that 
each party may fully, meaningfully put forward the party's viewpoints 
and beliefs about the allegations and the case outcome.
    The Department acknowledges that predictions of harsh, aggressive, 
victim-blaming cross-examination may dissuade complainants from 
pursuing a formal complaint out of fear of undergoing questioning that 
could be perceived as an interrogation. However, recipients retain 
discretion under the final regulations to educate a recipient's 
community about what cross-examination during a Title IX grievance 
process will look like, including developing rules and practices (that 
apply equally to both parties) \1204\ to oversee cross-examination to 
ensure that questioning is relevant, respectful, and non-abusive. We 
have revised Sec.  106.45(b)(6)(i) to specifically state that only 
relevant cross-examination questions must be answered and the decision-
maker must determine the relevance of a cross-examination question 
before the party of witness answers. We have revised Sec.  
106.45(b)(1)(iii) to specifically require decision-makers to be trained 
on conducting live hearings and determining relevance (including the 
non-relevance of questions and evidence about a complainant's prior 
sexual history). The Department also notes that recipients must comply 
with obligations under applicable disability laws, and that the final 
regulations contemplate that disability accommodations (e.g., a short-
term postponement of a hearing date due to a party's need to seek 
medical treatment for anxiety or depression) may be good cause for a 
limited extension of the recipient's designated, reasonably prompt time 
frame for the grievance process.\1205\
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    \1204\ The introductory sentence of Sec.  106.45(b) expressly 
permits recipients to adopt rules for the Title IX grievance process 
so long as such rules are applied equally to both parties.
    \1205\ Section 106.45(b)(1)(v).
---------------------------------------------------------------------------

    The Department understands that victims of sexual violence often 
experience PTSD and other significant negative impacts, and that 
participating in a grievance process may exacerbate these impacts. The 
Department believes that the final regulations appropriately provide a 
framework under which a recipient must offer supportive measures to 
each complainant (without waiting for a factual adjudication of the 
complainant's allegations),\1206\ and provide remedies for a 
complainant where the respondent is found responsible following a fair 
grievance process.\1207\ Complainants can receive supportive measures 
from a recipient, and each complainant can decide whether, in addition 
to supportive measures, participating in a grievance process is a step 
the complainant wants to take.\1208\ In this manner, these final 
regulations respect the complainant's autonomy. The Department 
therefore disagrees with commenters who asserted that under the final 
regulations complainants will have ``no non-traumatic options'' and 
will feel deterred from reporting; complainants can report sexual 
harassment and receive supportive measures without even filing a formal 
complaint, much less participating in a grievance process or undergoing 
cross-examination. This option for reporting exists regardless of the 
identity of the respondent (e.g., whether the respondent is an 
employee, faculty member, or student), and therefore all complainants 
have the same non-traumatic reporting option regardless of any real or 
perceived power differential between the complainant and respondent.
---------------------------------------------------------------------------

    \1206\ Section 106.44(a) (recipients must offer supportive 
measures to a complainant, and the Title IX Coordinator must 
promptly contact the complainant to discuss the availability of 
supportive measures, inform the complainant of the availability of 
supportive measures with or without the filing of a formal 
complaint, and explain to the complainant the process for filing a 
formal complaint).
    \1207\ Section 106.45(b)(1)(i).
    \1208\ Section 106.71 (prohibiting retaliation for exercise of 
rights under Title IX and specifically protecting any individual's 
right to not participate in a grievance process).
---------------------------------------------------------------------------

    The Department disagrees that including cross-examination as a 
procedure in the grievance process constitutes institutional betrayal. 
Cross-examination does not inherently involve victim-blaming attitudes, 
and as noted above, recipients retain wide discretion under the final 
regulations to adopt rules and practices designed to ensure that cross-
examination occurs in a respectful, non-abusive manner. Further, the 
reason cross-examination must be conducted by a party's advisor, and 
not by the decision-maker or other neutral official, is so that the 
recipient remains truly neutral throughout the grievance process. To 
the extent that a party wants the other party questioned in an 
adversarial manner in order to further the asking party's views and 
interests, that questioning is conducted by the party's own advisor, 
and not by the recipient. Thus, no complainant (or respondent) need 
feel as though the recipient is ``taking sides'' or otherwise engaging 
in cross-examination to make a complainant feel as though the recipient 
is blaming or disbelieving the complainant.
    The Department appreciates the opportunity to clarify that contrary 
to the fears of some commenters, Sec.  106.45(b)(6)(i) prohibits any 
complainant from being questioned directly by the respondent; rather, 
only party advisors can conduct cross-examination. We have revised 
Sec.  106.45(b)(6)(i) specifically to state that cross-examination must 
occur ``directly, orally, and in real-time'' by the party's advisor and 
``never by a party personally.'' Similarly, Sec.  106.45(b)(6)(i) is 
revised to require recipients to hold the entire live hearing (and not 
just cross-examination) with the parties in separate rooms (facilitated 
by technology) so that the parties need never be face-to-face, upon a 
party's request. Similarly, the Department notes that the live hearing 
is not a ``public'' hearing, and the final regulations add Sec.  106.71 
that requires recipients to keep party and witness identities 
confidential except as permitted by law and as needed to conduct an 
investigation or hearing.
    The Department understands commenters' concerns that sexual 
harassment victims have already suffered the underlying conduct and 
that participating in a grievance process may be difficult for victims. 
However, before allegations may be treated as fact (i.e., before a 
complainant can be

[[Page 30317]]

deemed a victim of particular conduct by a particular respondent), a 
fair process must reach an accurate outcome, and in situations that 
involve contested allegations, procedures designed to discover the 
truth by permitting opposing parties each to advocate for their own 
viewpoints and interests are most likely to reach accurate outcomes 
based on facts and evidence rather than assumptions and bias.
    The Department disagrees that adjudication via a live hearing with 
cross-examination invades a complainant's privacy or risks a 
complainant's safety. The final regulations revise Sec.  106.45(b)(5) 
to ensure that recipients do not access or use any party's treatment 
records without obtaining the party's written consent, thus limiting 
the type of sensitive, private information that becomes part of a Sec.  
106.45 grievance process without a party's consent. Further, Sec.  
106.45(b)(5)(vi) limits the exchange of evidence from an investigation 
only to evidence directly related to the allegations in the formal 
complaint. Additionally, Sec.  106.45(b)(6)(i) deems questions and 
evidence regarding a complainant's prior sexual behavior or sexual 
predisposition to be irrelevant, with specified exceptions, to further 
protect complainants' privacy, and upon a party's request the entire 
live hearing must be held with the parties located in separate rooms. 
The Department disagrees that an adjudication process that includes a 
live hearing with cross-examination jeopardizes any party's safety, 
particularly with the privacy and anti-retaliation provisions 
referenced above, and the Department further notes that safety-related 
measures remain available under the final regulations including the 
ability for a recipient to impose no-contact orders on the parties 
under Sec.  106.30 defining ``supportive measures,'' or to remove a 
respondent on an emergency basis under Sec.  106.44(c). Further, a 
complainant also retains the ability to obtain an order of protection 
(e.g., a restraining order) from a court of law.
    The Department understands commenters' concerns about the prospect 
of cross-examination, and appreciates commenters' personal experiences 
with the difficulties of cross-examination, but reiterates that cross-
examination essentially consists of questions posed from one party's 
perspective to advance the asking party's views about the allegations 
at issue, that recipients retain discretion to control the conduct of 
cross-examination in a manner that ensures that no party is treated 
abusively or disrespectfully, that only relevant cross-examination 
questions must be answered, and that either party may demand that the 
live hearing occur with the parties in separate rooms. Based on 
comments from many recipients, the Department believes that recipients 
desire to treat all their students and employees with dignity and 
respect, and that recipients will therefore conduct hearings in a 
manner that keeps the focus on respectful questioning regarding the 
allegations at issue while permitting each party (through advisors) to 
advocate for the party's own interests before the decision-maker.
    The Department appreciates commenters' support for ensuring that 
both parties have equal rights with respect to cross-examination, but 
disagrees that Sec.  106.45(b)(6)(i) is intrusive or myopic because, 
for reasons explained throughout this preamble, the Department has 
determined that in the context of resolution of Title IX sexual 
harassment allegations the procedures in Sec.  106.45 constitute those 
procedures necessary to ensure consistent, predictable application of 
Title IX rights, and does not believe that cross-examination in the 
postsecondary context tilts the system against sexual harassment 
victims. An equal right of cross-examination benefits complainants as 
well as respondents, by permitting complainants to participate in 
advocating for their own view of the case so that a decision-maker is 
more likely to reach an accurate determination, and where a respondent 
is found responsible the victim will receive remedies designed to 
restore or preserve equal access to education.
    Changes: We have revised Sec.  106.45(b)(6)(i) to state that cross-
examination must occur ``directly, orally, and in real-time'' by a 
party's advisor ``and never by a party personally'' and that upon a 
party's request the entire live hearing (not only cross-examination) 
must occur with the parties located in separate rooms (with technology 
enabling participants to see and hear each other). We have further 
revised Sec.  106.45(b)(6)(i) to state that only relevant cross-
examination questions must be answered, and the decision-maker must 
determine the relevance of a cross-examination or other question before 
the party or witness answers the question (and explain any decision to 
exclude a question as not relevant). The final regulations add Sec.  
106.71 prohibiting retaliation and providing in relevant part that the 
recipient must keep confidential the identity of any individual who has 
made a report or complaint of sex discrimination, including any 
individual who has made a report or filed a formal complaint of sexual 
harassment, any complainant, any individual who has been reported to be 
the perpetrator of sex discrimination, any respondent, and any witness, 
except as may be permitted by the FERPA statute or regulations, as 
required by law, or to carry out the purposes of 34 CFR part 106, 
including the conduct of any investigation, hearing, or judicial 
proceeding arising thereunder.
Reducing Truth-Seeking
    Comments: Many commenters asserted that cross-examination would 
mean that complainants are questioned via verbal attacks on the 
complainant's character rather than sensitively in a respectful manner 
designed to aid the fact-finding process.\1209\ Commenters argued that 
in criminal cases, it is accepted that the defense counsel's job to put 
the prosecutor's case in the worst possible light regardless of the 
truth and to impeach an adverse witness even if the defense attorney 
believes the witness is telling the truth.\1210\
---------------------------------------------------------------------------

    \1209\ Commenters cited: Abbe Smith, Representing Rapists: The 
Cruelty of Cross-Examination and Other Challenges for a Feminist 
Criminal Defense Lawyer, 53 Am. Crim. L. Rev. 255, 290 (2016) 
(noting that a defense attorney recently acknowledged, ``Especially 
when the defense is fabrication or consent--as it often is in adult 
rape cases--you have to go at the witness. There is no way around 
this fact. Effective cross-examination means exploiting every 
uncertainty, inconsistency, and implausibility. More, it means 
attacking the witness's very character.'') (emphasis in original).
    \1210\ Commenters cited: United States v. Wade, 388 U.S. 218, 
257-58 (1967) (White, J., dissenting in part and concurring in part) 
for the proposition that Justice Byron White explained five years 
before Title IX was enacted that cross-examination ``in many 
instances has little, if any, relation to the search for the 
truth.'' Instead, at least in criminal cases, it is accepted that 
defense counsel's job is ``to put the State's case in the worst 
possible light, regardless of what he thinks or knows to be the 
truth'' and to ``cross-examine a prosecution witness, and impeach 
him if he can, even if he thinks the witness is telling the truth.'' 
Id. Commenters also cited: Louise Ellison, The Mosaic Art: Cross-
Examination and the Vulnerable Witness, 21 Legal Studies 353, 366, 
368-369, 373-375 (2001); John Spencer, ``Conclusions,'' in Children 
and Cross-Examination: Time to Change the Rules? 189 (John Spencer & 
Michael Lamb eds., Hart Publishing 2012).
---------------------------------------------------------------------------

    Commenters argued that cross-examinations are just emotional 
beatings to twist survivors' perception and memory and lead them to 
mistakenly admit to or believe in false information, make the survivor 
feel insecure about what really happened, challenge the legitimacy of 
the survivor's experience, and therefore lead to an unjust outcome. 
Commenters argued that cross-examination took the place of torture in 
our legal system and

[[Page 30318]]

remains a brutal exercise.\1211\ Commenters stated that when working 
with victims as clients, victims' number one fear is often cross-
examination whether in a civil court or criminal court; while they do 
not fear the truth, they fear defense lawyers' attempts to confuse them 
and blame them for not remembering every single part of the story even 
when it was drug or alcohol induced, and they fear telling their story 
to near strangers and still not getting the justice and safety they 
need. Commenters argued that cross-examination is designed to engage in 
DARVO (deny, attack, reverse victim/offender) strategies that harm 
victims. Commenters argued that even cases that seem to be ``he said/
she said'' often involve more evidence than just the parties' 
statements,\1212\ so cross-examination is unnecessary and may 
disincentivize recipients from conducting a full investigation that 
uncovers relevant evidence.
---------------------------------------------------------------------------

    \1211\ Commenters cited: David Luban, Partisanship, Betrayal and 
Autonomy in the Lawyer-Client Relationship: A Reply to Stephen 
Ellmann, 90 Colum. L. Rev. 1004, 1027-28 (1990) (examining the legal 
ethics of cross-examinations in rape cases, even with rape shield 
laws in place) (``To make it seem plausible that the victim 
consented and then turned around and charged rape, the lawyer must 
play to the jurors' deeply rooted cultural fantasies about feminine 
sexual voracity and vengefulness. All the while, without seeming 
like a bully, the advocate must humiliate and browbeat the 
prosecutrix, knowing that if she blows up she will seem less 
sympathetic, while if she pulls inside herself emotionally she loses 
credibility as a victim. Let us abbreviate all of this simply as 
`brutal cross-examination.' ''). Commenters also cited: 5 John Henry 
Wigmore, Evidence in Trials at Common Law Sec.  1367 (James H. 
Chabourn ed., Little Brown 1974) (Wigmore explained that ``in more 
than one sense'' cross-examination took ``the place in our system 
which torture occupied in the medieval system of the civilians.'').
    \1212\ Commenters cited: Eliza Lehner, Rape Process Templates: A 
Hidden Cause of the Underreporting of Rape, 29 Yale J. of L. & 
Feminism 1 (2018).
---------------------------------------------------------------------------

    Many commenters believed the negative results of cross-examination 
would be heightened by the proposed rules' requirement that cross-
examination be conducted by a party's advisor, who could be a 
respondent's angry parent, fraternity brother, roommate, or other 
person untrained in conducting cross-examination and holding severe 
bias against the complainant. Some commenters asserted that cross-
examination by advisors would turn misconduct hearings into unregulated 
kangaroo courts where untrained, unskilled non-attorney advisors are 
``playing attorney'' yet eliciting little or no useful information. 
Commenters argued that in court trials, the parties themselves feel 
constrained to come across to judges and juries as nice, earnest, and 
sympathetic, while attorneys feel free to ``take the gloves off'' when 
cross-examining the opposing party and the same dynamic would prevail 
in college disciplinary hearings.
    Some commenters asserted that telling complainants that they will 
be cross-examined by a lawyer or a respondent's parent, roommate, or 
fraternity brother will make the complainant feel as though the 
university the complainant should be able to trust is throwing the 
complainant to proverbial wolves. One commenter recounted being 
questioned by a respondent's advisor of choice and asserted that the 
advisor spoke to the commenter in a disempowering, blaming, and 
condescending way, fueling the commenter's feelings of being 
traumatized and harming the commenter's ability to function as a 
student. Some commenters asserted that allowing questioning to take 
place through an advisor removes accountability students should have 
for their own actions and will result in students blaming their 
advisors for poor conduct during a hearing.
    Many commenters opposed the cross-examination requirement because 
the proposed rules do not guarantee procedural protections that 
accompany cross-examination in criminal or civil trials, such as the 
right to representation by counsel, rules of evidence,\1213\ and a 
judge ruling on objections. Commenters argued that cross-examination is 
only potentially useful for discovering the truth when used by skilled 
lawyers in courtrooms overseen by experienced judges, and that in the 
hands of untrained, inexperienced advisors will be only a tool to trap, 
harass, and blame complainants rather than discern truth about 
allegations.\1214\ Commenters asserted that colleges will not 
adequately protect parties from inappropriate or irrelevant questions, 
so that cross-examination will intrude into irrelevant details about 
victims' private lives, reputations, and trustworthiness. Commenters 
argued that institutions have no power to hold an attorney in contempt, 
and attorneys are trained to be very aggressive, and thus institutions 
will not be able to control overly hostile, abusive party advisors who 
are attorneys. Commenters stated that school administrators are ill 
equipped to make nuanced legal determinations about the relevant scope 
of questions and answers, and that schools will be too nervous to act 
to control lawyers, who will run the show and not respect even the few 
limits placed on cross-examination.
---------------------------------------------------------------------------

    \1213\ Commenters cited: Flaim v. Med. Coll. of Ohio, 418 F.3d 
629, 635 (6th Cir. 2005) for the proposition that Federal or State 
rules of evidence do not apply to college disciplinary proceedings.
    \1214\ Commenters cited: Francis P. Karam, The Truth Engine: 
Cross-Examination Outside the Box (Themistocles Books 2018) 
(describing cross-examination as a tool requiring great skill and 
experience for lawyers to utilize well); Association of Title IX 
Administrators (ATIXA), ATIXA Position Statement on Cross-Examining: 
The Urge to Transform College Conduct Proceedings into Courtrooms 1 
(Oct. 5, 2018) (without the complex procedural and evidentiary rules 
that apply to cross-examination in courtrooms, in a college setting 
``emotional or verbal meltdown is considerably more likely than 
effective probing for truth'').
---------------------------------------------------------------------------

    Commenters asserted that even in court where judges oversee defense 
attorneys, survivors describe cross-examination as the most distressing 
part of their experience within the criminal justice system even when 
the survivors report feeling reasonably able to give accurate 
evidence.\1215\ Commenters asserted that most rape victims face defense 
lawyer tactics like interrupting, asking for only yes-no answers, 
asking illogical questions, grilling on minute details of the incident, 
and asking irrelevant personal questions.\1216\ Commenters argued that 
cross-examination outside a controlled courtroom setting will subject 
victims to intrusive, retraumatizing questions designed to humiliate, 
intimidate, and blame them, with no recourse as a victim would have 
being questioned in front of a judge, thereby weaponizing university 
proceedings against victims. At least one commenter argued that even in 
criminal settings, in-person cross-examination is not always required; 
under some laws vulnerable witnesses such as children are allowed to 
pre-record evidence in advance rather than testify live.\1217\
---------------------------------------------------------------------------

    \1215\ Commenters cited: Mark R. Kebbell et al., Rape Victims' 
Experiences of Giving Evidence in English Courts: A Survey, 14 
Psychiatry, Psychol. & L. 1 (2007); Shana L. Maier, I Have Heard 
Horrible Stories . . . : Rape Victim Advocates' Perceptions of the 
Revictimization of Rape Victims by the Police and Medical System, 14 
Violence Against Women 7 (2008) for the proposition that rape 
victims are often traumatized by seeking help from the health care 
system too, but traumatic processes should only be used when 
necessary--e.g., when medical care is needed, or when a criminal 
trial requires cross-examination.
    \1216\ Commenters cited: Amanda Konradi, Taking the Stand: Rape 
Survivors and the Prosecution of Rapists (Praeger Publishers (2007); 
American Bar Association Center of Children and the Law, Handbook On 
Questioning Children--A Linguistic Perspective 48-49 (2d ed. 1999); 
Annie Cossins, Cross-examination in Child Sexual Assault Trials: 
Evidentiary Safeguard or Opportunity to Confuse, 33 Melbourne L. 
Rev. 1, 78-79 (2009) (quoting and summarizing Mark Brennan, The 
Discourse of Denial: Cross-examining Child Victim Witnesses, 23 
Journal of Pragmatics 1 (1995)).
    \1217\ Commenters cited: Elizabeth McDonald & Yvette Tinsley, 
Use of Alternative Ways of Giving Evidence by Vulnerable Witnesses: 
Current Proposals, Issues and Challenges, Victoria Univ. of 
Wellington L. Rev. (July 2, 2012) (forthcoming Victoria University 
of Wellington Legal Research Paper No. 2/2011).

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

[[Page 30319]]

    Discussion: The Department is aware that the perception, and in 
some circumstances the reality, of cross-examination in sexual assault 
cases has felt to victims like an emotional beating under which a 
skilled defense lawyer tries to twist a survivor's words, question the 
survivor's experience, or convince a fact-finder to find the defense 
lawyer's client is innocent by blaming the victim for the sexual 
assault or discrediting the victim with irrelevant character 
aspersions. The Department reiterates, however, that the essential 
function of cross-examination is not to embarrass, blame, humiliate, or 
emotionally berate a party, but rather to ask questions that probe a 
party's narrative in order to give the decision-maker the fullest view 
possible of the evidence relevant to the allegations at issue. The 
Department disagrees with commenters' assertion that cross-examination 
is the equivalent of torture; while commenters noted Wigmore's 
observation that cross-examination has taken the place that torture 
historically occupied in civil law systems (as opposed to our common 
law system), such an observation implies that cross-examination differs 
from torture and is the enlightened, humane manner of testing a 
witness's testimony. The Department purposefully designed these final 
regulations to allow recipients to retain flexibility to adopt rules of 
decorum that prohibit any party advisor or decision-maker from 
questioning witnesses in an abusive, intimidating, or disrespectful 
manner.
    While the Department understands commenters' concerns that cross-
examination has in some situations utilized DARVO strategies, cross-
examination does not inherently rely on or necessitate DARVO 
techniques, and recipients retain discretion to apply rules designed to 
ensure that cross-examination remains focused on relevant topics 
conducted in a respectful manner. Recipients are in a better position 
than the Department to craft rules of decorum best suited to their 
educational environment. To emphasize that cross-examination must focus 
only on questions that are relevant to the allegations in dispute, we 
have revised Sec.  106.45(b)(6)(i) to state that only relevant cross-
examination or other questions may be asked of a party or witness, and 
before a party or witness answers a cross-examination question the 
decision-maker must determine whether the question is relevant (and 
explain a decision to exclude a question as not relevant).\1218\
---------------------------------------------------------------------------

    \1218\ We have also revised Sec.  106.45(b)(1)(iii) to 
specifically require that decision-makers are trained on issues of 
relevance, including application of the ``rape shield'' protections 
in Sec.  106.45(b)(6).
---------------------------------------------------------------------------

    The Department further reiterates that the tool of cross-
examination is equally as valuable for complainants as for respondents, 
because questioning that challenges a respondent's narrative may be as 
useful for a decision-maker to reach an accurate determination as 
questioning that challenges a complainant's narrative. The Department 
agrees with commenters that even so-called ``he said/she said'' cases 
often involve evidence in addition to the parties' respective 
narratives, and the Sec.  106.45 grievance process obligates recipients 
to bear the burden of gathering evidence and to objectively evaluate 
all relevant evidence, both inculpatory and exculpatory, including the 
parties' own statements as well as other evidence. The Department 
disagrees that cross-examination disincentivizes recipients from 
conducting a full investigation that uncovers all relevant evidence, in 
part because Sec.  106.45 obligates recipients to gather relevant 
evidence, and in part because cross-examination occurs at the end of 
the grievance process such that the parties have already had an 
opportunity to inspect and review the evidence collected by the 
recipient.
    The Department acknowledges commenters' concerns that under Sec.  
106.45(b)(6)(i) cross-examination is conducted by party advisors, and 
the final regulations do not require a party's advisor of choice to be 
an attorney, nor may a recipient restrict a party's choice of advisor, 
resulting in scenarios where a party's advisor may be the party's 
friend or relative or other person who may not be trained or 
experienced in conducting cross-examination. Regardless of the 
identity, status, or profession of a party's advisor of choice, a 
recipient retains discretion under the final regulations to apply rules 
at a live hearing that require participants to refrain from engaging in 
abusive, aggressive behavior. Further, regardless of who serves as a 
party's advisor, recipients are responsible for ensuring that only 
relevant cross-examination and other questions are asked, and decision-
makers must determine the relevance of each cross-examination question 
before a party or witness answers. Thus, recipients retain the ability 
and responsibility to ensure that hearings in a Sec.  106.45 grievance 
process are in no way ``kangaroo courts'' and instead function as 
truth-seeking processes.
    The Department recognizes that party advisors may be, but are not 
required to be, attorneys and thus in some proceedings cross-
examination on behalf of one or both parties will be conducted by non-
lawyers who may be emotionally attached to the party whom they are 
advising. However, the Department believes that requiring cross-
examination to be conducted by party advisors is superior to allowing 
parties to conduct cross-examination themselves; with respect to 
complainants and respondents in the context of sexual harassment 
allegations in an education program or activity, the strictures of the 
Sixth Amendment do not apply. The Department believes that having 
advisors as buffers appropriately prevents personal confrontation 
between the parties while accomplishing the goal of a fair, truth-
seeking process. Precisely because a Title IX grievance process is 
neither a civil nor criminal proceeding in a court of law, the 
Department clarifies here that conducting cross-examination consists 
simply of posing questions intended to advance the asking party's 
perspective with respect to the specific allegations at issue; no legal 
or other training or expertise can or should be required to ask factual 
questions in the context of a Title IX grievance process. Thus, the 
Department disagrees that non-lawyer party advisors will be ``playing 
attorney.'' The Department notes that a recipient is free to explain to 
complainants (and respondents) that the recipient is required by these 
Title IX regulations to provide cross-examination opportunities. The 
final regulations do not prevent a recipient from adopting rules of 
decorum for a hearing to ensure respectful questioning, and thus 
recipients may re-assure parties that the recipient is not throwing a 
party to the proverbial wolves by conducting a hearing designed to 
resolve the allegations at issue.
    The Department appreciates commenters who described experiences 
being questioned by party advisors as feeling like the advisor asked 
questions in a disempowering, blaming, and condescending way; however, 
the Department notes that such questioning may feel that way to the 
person being questioned by virtue of the fact that cross-examination is 
intended to promote the perspective of the opposing party, and this 
does not necessarily mean that the questioning was irrelevant or 
abusive. The Department disagrees that allowing questioning to take 
place through an advisor removes

[[Page 30320]]

accountability students should have for their own actions. Under the 
final regulations, the parties themselves retain significant control 
and responsibility for their own decisions; the role of an advisor is 
to assist and advise the party. The Department does not agree that the 
final regulations encourage students to blame their advisors for poor 
conduct during a hearing; the final regulations do not preclude a 
recipient from enforcing rules of decorum that ensure all participants, 
including parties and advisors, participate respectfully and non-
abusively during a hearing. If a party's advisor of choice refuses to 
comply with a recipient's rules of decorum (for example, by insisting 
on yelling at the other party), the recipient may require the party to 
use a different advisor. Similarly, if an advisor that the recipient 
provides refuses to comply with a recipient's rules of decorum, the 
recipient may provide that party with a different advisor to conduct 
cross-examination on behalf of that party. This incentivizes a party to 
work with an advisor of choice in a manner that complies with a 
recipient's rules that govern the conduct of a hearing, and 
incentivizes recipients to appoint advisors who also will comply with 
such rules, so that hearings are conducted with respect for all 
participants.
    The Department understands that cross-examination in a Title IX 
grievance process is not the same as cross-examination in a civil or 
criminal court, that a Sec.  106.45 grievance process need not be 
overseen by a judge, and that party advisors need not be attorneys. 
However, the Department believes that recipients are equipped to 
oversee and implement a hearing process focused on the relevant facts 
at issue, including relevant cross-examination questions, without 
converting classrooms into courtrooms or necessitating that 
participants be attorneys or judges. To ensure that recipients 
understand that the individuals serving as a recipient's decision-
maker(s) must understand how to conduct a live hearing and how to 
address relevance issues, we have revised Sec.  106.45(b)(1)(iii) to 
require decision-makers to receive such training.
    The Department agrees with commenters who asserted that 
postsecondary institutions have already become familiar with the 
concept of party advisors of choice, that many postsecondary 
institutions routinely enforce a rule that forbids party advisors from 
speaking during proceedings (often referred to as a ``potted plant'' 
rule), and that this practice demonstrates that postsecondary 
institutions are capable of appropriately controlling party advisors 
even without the power to hold attorneys in contempt of court. The 
Department does not believe that determinations about whether certain 
questions or evidence are relevant or directly related to the 
allegations at issue requires legal training and that such factual 
determinations reasonably can be made by layperson recipient officials 
impartially applying logic and common sense. The Department believes 
that recipients are capable of, and committed to, controlling a hearing 
environment to keep the proceeding focused on relevant evidence and 
ensuring that participants are treated respectfully, such that a 
recipient's Title IX grievance process will not be ``weaponized'' for 
or against any party. The Department notes that in criminal 
proceedings, defendants have a right to self-representation raising the 
potential for a party to personally conduct cross-examination of 
witnesses, whereas the final regulations do not grant a right of self-
representation and thus avoid the risks of ineffectiveness and trauma 
for complainants that may arise where a perpetrator personally cross-
examines a victim.
    The Department acknowledges that even in criminal settings, in-
person cross-examination is not always required, and Sec.  
106.45(b)(6)(i) has adapted the procedure of cross-examination in a way 
that avoids importation of criminal law standards, for example by 
requiring the parties to be in separate rooms (upon either party's 
request), and disallowing a right of self-representation even if a 
party would otherwise wish to be self-represented. The Department 
disagrees, however, that allowing pre-recorded testimony in lieu of 
answering of questions during a live hearing would sufficiently 
accomplish the function of cross-examination in the postsecondary 
context, where the parties' and decision-maker's ability to hear 
parties' and witness's answers to questions and immediate follow-up 
questions is the better method of ``airing out'' all viewpoints about 
the allegations at issue. Pre-recorded testimony does not, for example, 
allow a party to challenge in real time any inconsistencies and 
inaccuracies in the other party's testimony by posing follow-up 
questions.
    Changes: None.
Demeanor Evaluation Is Unreliable
    Comments: Commenters argued that cross-examination is an 
opportunity to evaluate the body language and demeanor of a party under 
questioning for the purpose of assessing credibility \1219\ but that 
while credibility is typically based on a number of factors such as 
sufficient specific detail, inherent plausibility, internal 
consistency, corroborative evidence, and demeanor, the most unreliable 
factor is demeanor. Commenters asserted that research shows how people 
interpret another person's demeanor is easily misconstrued, what people 
``read'' in facial expression and body language is ``highly ambiguous 
and cannot be interpreted without reference to pre-existing schemas and 
assumptions,'' \1220\ a person's ability to judge truthfulness is not 
better than 50 percent accuracy, and what people often mistake for 
signs of deception are often actually indicators of stress-coping 
mechanisms.\1221\ Commenters argued that research shows that cross-
examination does not accurately assess credibility or yield accurate 
testimony, especially for vulnerable witnesses such as sexual abuse 
victims, individuals with intellectual disabilities, or children, and 
accuracy of children's testimony may be affected by a child's self-
esteem, confidence, and the presence of parents during testimony.\1222\ 
Commenters argued that

[[Page 30321]]

decisions based on observing demeanor could lead to erroneous findings 
of responsibility when facts do not warrant that outcome, that 
decision-makers may be more likely to find a respondent responsible 
after watching an emotional complainant describe an alleged assault, or 
unfairly view a respondent as not credible just because the respondent 
seems nervous when the nervousness is due to the serious potential 
consequences of the hearing. Thus, commenters argued, injecting cross-
examination into a Title IX campus adjudication that likely depends on 
under-trained volunteers to assess credibility, will not improve 
accuracy of outcomes or increase fairness over the status quo but will 
make survivors reticent even to report sex discrimination.\1223\ 
Commenters asked what the Department's data-driven basis is for 
concluding that cross-examination is the most effective procedure for 
determining truth and credibility. Commenters argued that cross-
examination will take an emotional toll on all participants \1224\ and 
that complainants, respondents, and witnesses will all be unwilling to 
endure it, including because cross-examination could compromise their 
position in criminal and civil proceedings.
---------------------------------------------------------------------------

    \1219\ Commenters cited: H. Hunter Bruton, Cross-Examination, 
College Sexual-Assault Adjudications, and the Opportunity for Tuning 
up the Greatest Legal Engine Ever Invented, 27 Cornell J. of L. & 
Pub. Pol'y 145 (2017).
    \1220\ Commenters cited: Susan A. Bandes, Remorse, Demeanor, and 
the Consequences of Misinterpretation: The Limits of Law as a Window 
into the Soul, 3 Journal of L., Religion & St. 170, 179 (2014).
    \1221\ Commenters cited: Olin Guy Wellborn III, Demeanor, 76 
Cornell L. Rev. 1075, 1080 (1991) for the proposition that when 
interviewees are questioned by ``suspicious interviewers, subjects 
tend to view their responses as deceptive even when they are 
honest'' in part because the interrogation places the interviewee 
under stress, which induces behavior likely to be interpreted as 
deceptive.
    \1222\ Commenters cited: Mark W. Bennett, Unspringing the 
Witness Memory and Demeanor Trap: What Every Judge and Juror Needs 
to Know About Cognitive Psychology and Witness Credibility, 64 Am. 
Univ. L. Rev. 1331 (2015); Megan Reidy, Comment: The Impact of Media 
Coverage on Rape Shield Laws in High-Profile Cases: Is the Victim 
Receiving a ``Fair Trial'', 54 Cath. Univ. L. Rev. 297, 308 (2005); 
Jules Epstein, The Great Engine That Couldn't: Science, Mistaken 
Identifications, and the Limits of Cross-Examination, 36 Stetson L. 
Rev. 3 (2007); Tim Valentine & Katie Maras, The Effect of Cross-
Examination on the Accuracy of Adult Eyewitness Testimony, 25 
Applied Cognitive Psychol. 4 (2011); Jacqueline Wheatcroft & Louise 
Ellison, Evidence in Court: Witness Preparation and Cross-
Examination Style Effects on Adult Witness Accuracy, 30 Behavioral 
Sci. & the L. 6 (2012); Rachel Zajac & Harlene Hayne, I Don't Think 
That's What Really Happened: The Effect of Cross-examination on the 
Accuracy' of Children's Reports, 9 Journal of Experimental Psychol.: 
Applied 3 (2003); Fiona Jack & Rachel Zajac, The Effect of Age and 
Reminders on Witnesses' Responses to Cross-Examination-Style 
Questioning, 3 Journal of Applied Research in Memory & Cognition 1 
(2014); Saskia Righarts et al., Addressing the Negative Effect of 
Cross-examination Questioning on Children's Accuracy: Can We 
Intervene?, 37 Law & Hum. Behavior 5 (2013); Lauren R. Shapiro, 
Eyewitness Memory for a Simulated Misdemeanor Crime: The Role of Age 
and Temperament in Suggestibility, 19 Applied Cognitive Psychol. 3 
(2005); Emily Henderson, Bigger Fish to Fry: Should the Reform of 
Cross-examination Be Expanded Beyond Vulnerable Witnesses, 19 Int'l 
J. of Evidence & Proof 2 (2015); Rachel Zajac et al., Disorder in 
the Courtroom: Child Witnesses Under Cross-examination, 32 
Developmental Rev. 3, 198 (2012); ``Cross-examination: Impact on 
Testimony,'' Wiley Encyclopedia of Forensic Science 656 (Allan 
Jamieson & Andre Moenssens eds., 2009); Caroline Bettenay et al., 
Cross-examination: The Testimony of Children With and Without 
Intellectual Disabilities, 28 Applied Cognitive Psychol. 2 (2014); 
Joyce Plotnikoff & Richard Woolfson, ```Kicking and Screaming': The 
Slow Road to Best Evidence,'' in Children and Cross-examination: 
Time to Change the Rules? 28 (John Spencer & Michael Lamb eds., 
2012); Rhiannon Fogliati & Kay Bussey, The Effects of Cross-
examination on Children's Coached Reports, 21 Psychol., Pub. Pol'y, 
& L. 1 (2015); Saskia Righarts et al., Young Children's Responses to 
Cross-examination Style Questioning: The Effects of Delay and 
Subsequent Questioning, 21 Psychol., Crime & L. 3 (2015); Rhiannon 
Fogliati & Kay Bussey, The Effects of Cross-examination on 
Children's Reports of Neutral and Transgressive Events, 19 Legal & 
Crim. Psychol. 2 (2014); Rachel Zajac & Harlene Hayne, The Negative 
Effect of Cross-examination Style Questioning on Children's 
Accuracy: Older Children are Not Immune, 20 Applied Cognitive 
Psychol. 3 (2006); Rachel Zajac et al., Asked and Answered: 
Questioning Children in the Courtroom, 10 Psychiatry, Psychol., & L 
1 (2003); Rachel Zajac et al., The Diagnostic Value of Children's 
Responses to Cross-examination Questioning, 34 Behavioral Sci. & the 
L. 1 (2016); John E.B. Myers, The Child Witness: Techniques for 
Direct Examination, Cross-examination, and Impeachment, 18 Pacific 
L. Rev. 801, 882, 886, 887, 890, 891 (1987); Gail S. Goodman et al., 
Testifying in Criminal Court: Emotional Effects on Child Sexual 
Assault Victims, Monographs of the Society for Research in Child 
Development, Serial no. 229, Vol. 57, No. 5, at p. 85 (1992); 
Richard S. Ofshe & Richard A. Leo, The Decision to Confess Falsely, 
Rational Choice and Irrational Action, 74 Denv. Univ. L. Rev. 979, 
985 (1997); Thomas J. Berndt, Developmental Changes in Conformity to 
Peers and Parents, 15 Developmental Psychol. 608, 615 (1979).
    \1223\ Commenters cited: Kathryn M. Stanchi, The Paradox of the 
Fresh Complaint Rule, 37 Boston Coll. L. Rev. 146 (1996); Kathryn M. 
Stanchi, Dealing with Hate in the Feminist Classroom, 11 Mich. J. of 
Gender & L. 173 (2005); Morrison Torrey, When Will We Be Believed? 
Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24 
U.C. Davis L. Rev. 1013, 1014 (1991).
    \1224\ Commenters cited: Eleanor W. Myers & Edward D. Ohlbaum, 
Discrediting the Truthful Witness: Demonstrating the Reality of 
Adversary Advocacy, 69 Fordham L. Rev. 1055 (2000).
---------------------------------------------------------------------------

    Some commenters argued that cross-examination contemplates a 
decision-maker observing witnesses to assess credibility based on a 
witness's demeanor, which increases the danger of racial bias and 
stereotypes infecting the decision-making process. Commenters argued 
that Black female students are disadvantaged by cross-examination due 
to negative, unsupportable stereotypes that Black females are 
aggressive and sexually promiscuous, and that these students are more 
likely to be falsely seen as the initiator of sexual harassment or 
abuse upon cross-examination. Commenters asserted that cross-
examination will make male victims scared to report sexual assault 
perpetrated by a male, for fear of facing a skilled cross-examiner 
whose aim will be to discredit the male survivor by painting him as an 
instigator or as having consented to gay sexual activity.
    A few commenters argued that cross-examination contradicts the 
concept of an impartial hearing.
    Discussion: The Department agrees with commenters who asserted that 
cross-examination provides opportunity for a decision-maker to assess 
credibility based on a number of factors, including evaluation of body 
language and demeanor, specific details, inherent plausibility, 
internal consistency, and corroborative evidence. Even if commenters 
correctly characterize research that casts doubt on the human ability 
to discern truthfulness by observing body language and demeanor, with 
respect to determining the credibility of a narrative or statement, as 
commenters acknowledged, such credibility determinations are not based 
solely on observing demeanor, but also are based on other factors 
(e.g., specific details, inherent plausibility, internal consistency, 
corroborative evidence). Cross-examination brings those important 
factors to a decision-maker's attention in a way that no other 
procedural device does; furthermore, while social science research 
demonstrates the limitations of demeanor as a criterion for judging 
deception, studies demonstrate that inconsistency is correlated with 
deception.\1225\ Thus, cross-examination remains an important part of 
truth-seeking in adjudicative proceedings, partly because of the live, 
in-the-moment nature of the questions and answers, and partly because 
cross-examination by definition is conducted by someone whose very 
purpose is to advance one side's perspective. When that happens on 
behalf of each side, the decision-maker is more likely to see and hear 
relevant evidence from all viewpoints and have more information with 
which to reach a determination that better reflects the truth of the 
allegations.\1226\ While commenters contended that some studies cast 
doubt on the effectiveness of cross-examination in eliciting accurate 
information, many such studies focus on cross-examination of child 
victims as

[[Page 30322]]

opposed to adult victims \1227\ and in any event that literature has 
not persuaded U.S. legal systems to abandon cross-examination, 
particularly with respect to adults, as the most effective--even if 
imperfect--tool for pursuing reliable outcomes through exposure of 
inaccuracy or lack of candor on the part of parties and witnesses.
---------------------------------------------------------------------------

    \1225\ E.g., H. Hunter Bruton, Cross-Examination, College 
Sexual-Assault Adjudications, and the Opportunity for Tuning up the 
Greatest Legal Engine Ever Invented, 27 Cornell J. of L. & Pub. 
Pol'y, 145, 161 (2017) (``While not all inconsistencies arise from 
deceit, studies have reliably established a link between consistency 
in testimony and truth telling. And in general, deceitful witnesses 
have a harder time maintaining consistency under questioning that 
builds upon their previous answers.'') (internal citations omitted).
    \1226\ Id. at 158-59 (``Cross-examination highlights the errors 
of well-intentioned and deceptive witnesses alike. Witnesses can 
neglect to explain their account fully or make mistakes. When a 
witness first testifies, her words are `a selective presentation of 
aspects of what the witness remembers, organized in a willful or at 
least a purposeful manner.' Cross-examination breaks down carefully 
curated narratives: `[it] places in the hands of the cross-examiner 
some of the means to show the gaps between the truth and the telling 
of it.' What witnesses think they know may in fact be an illusion 
constructed by the unholy union between the human's brain fallible 
nature and outside influences. Probing questioning elicits details 
that did not appear in the witness's first account. As the witness 
adds details, his story may change or completely contradict original 
assertions. Each new detail or differing characterization represents 
information the fact-finder would not have otherwise received. In so 
doing, adversarial questioning exposes witness error, or at least 
the source of possible error. The shortcomings of perception and 
memory are among the errors that remain hidden without cross-
examination. Cross-examination reminds fact-finders that the 
limitations of perception and memory affect the verisimilitude of 
all testimony. Without this reminder, fact-finders may place undue 
weight on witness testimony.'') (internal citations omitted).
    \1227\ Id. at 164-65 (``Experimental studies suggest that cross-
examination can mislead witnesses and cause them to change accurate 
answers to inaccurate answers. Admittedly, there are more studies 
documenting how cross-examination negatively affects the accuracy of 
child-victims' testimony, but the literature suggesting similar 
results for adult victims continues to grow. A number of factors 
contribute to the likelihood that a witness will revise what was at 
first accurate testimony. . . . Put simply, in many cases, `honest 
witnesses can be misled by cross-examination.' '') (internal 
citations omitted).
---------------------------------------------------------------------------

    The Department notes that to the extent that commenters correctly 
characterize research as indicating that what decision-makers may 
interpret as signs of deception may in fact be signs of stress, many 
commenters have pointed out that a grievance process is stressful for 
both complainants and respondents, and therefore that concern exists 
for both parties. However, it does not negate the value of cross-
examination in bringing to light factors other than demeanor that bear 
on credibility (such as plausibility and consistency). The final 
regulations require decision-makers to explain in writing the reasons 
for determinations regarding responsibility; \1228\ if a decision-maker 
inappropriately applies pre-existing assumptions that amount to bias in 
the process of evaluating credibility, such bias may provide a basis 
for a party to appeal.\1229\ The Department expects that decision-
makers will be well-trained in how to serve impartially, including how 
to avoid prejudgment of the facts at issue and avoid bias,\1230\ and 
the Department notes that judging credibility is traditionally left in 
the hands of non-lawyers without specialized training, in the form of 
jurors who serve as fact-finders in civil and criminal jury trials, 
because assessing credibility based on factors such as witness 
demeanor, plausibility, and consistency are functions of common sense 
rather than legal expertise.
---------------------------------------------------------------------------

    \1228\ Section 106.45(b)(7).
    \1229\ Section 106.45(b)(8).
    \1230\ Section 106.45(b)(1)(iii).
---------------------------------------------------------------------------

    The Department acknowledges that cross-examination may be 
emotionally difficult for parties and witnesses, especially when the 
facts at issue concern sensitive, distressing incidents involving 
sexual conduct. The Department recognizes that not every party or 
witness will wish to participate, and that recipients have no ability 
to compel a party or witness to participate. The final regulations 
protect every individual's right to choose whether to participate by 
including Sec.  106.71, which expressly forbids retaliating against any 
person for exercising rights under Title IX including participation or 
refusal to participate in a Title IX proceeding. Further, Sec.  
106.45(b)(6)(i) includes language that directs a decision-maker to 
reach the determination regarding responsibility based on the evidence 
remaining even if a party or witness refuses to undergo cross-
examination, so that even though the refusing party's statement cannot 
be considered, the decision-maker may reach a determination based on 
the remaining evidence so long as no inference is drawn based on the 
party or witness's absence from the hearing or refusal to answer cross-
examination (or other) questions. Thus, even if a party chooses not to 
appear at the hearing or answer cross-examination questions (whether 
out of concern about the party's position in a concurrent or potential 
civil lawsuit or criminal proceeding, or for any other reason), the 
party's mere absence from the hearing or refusal to answer questions 
does not affect the determination regarding responsibility in the Title 
IX grievance process.
    The Department acknowledges that in any situation where a 
complainant has alleged sexual misconduct without the complainant's 
consent, the possibility exists that the respondent will contend that 
the sexual conduct was in fact consensual, and that cross-examination 
in those situations might include questions concerning whether consent 
was present, resulting in discomfort for complainants in such cases, 
including for complainants alleging male-on-male sexual violence. 
However, where a sexual offense turns on the existence of consent and 
that issue is contested, evidence of consent is relevant and each 
party's advisor can respectfully ask relevant cross-examination 
questions about the presence or absence of consent.
    The Department disagrees that the cross-examination procedure 
described in Sec.  106.45(b)(6)(i) contradicts the concept of 
impartiality of the Sec.  106.45 grievance process. Because these final 
regulations require each party's advisor, and not the recipient (as the 
investigator, decision-maker, or other recipient official), to conduct 
cross-examination, the recipient remains impartial and neutral toward 
both parties throughout the entirety of the grievance process. By 
contrast, the parties (through their advisors) are not impartial, are 
not neutral, and are not objective. Rather, the parties involved in a 
formal complaint of sexual harassment each have their own viewpoints, 
beliefs, interests, and desires about the outcome of the grievance 
process and their participation in the process is for the purpose of 
furthering their own viewpoints. Cross-examination is conducted by the 
parties' advisors, who have no obligation to be neutral, while the 
recipient remains impartial and neutral with respect to both parties by 
observing the parties' respective advocacy of their own perspectives 
and interests and reaching a determination regarding responsibility 
based on objective evaluation of the evidence. Thus, the grievance 
process remains impartial, even though the parties and their advisors 
are, by definition, not impartial.
    Changes: The final regulations add language to Sec.  
106.45(b)(6)(i) stating that if a party or witness does not submit to 
cross-examination at the hearing, the decision-maker must not rely on 
any statement of that party or witness in reaching a determination 
regarding responsibility; provided, however, that the decision-maker 
cannot draw any inference about the determination regarding 
responsibility based solely on a party's or witness's absence from the 
hearing or refusal to answer cross-examination or other questions. The 
final regulations also add Sec.  106.71 prohibiting retaliation and 
providing in relevant part that no recipient or other person may 
intimidate, threaten, coerce, or discriminate against any individual 
for the purpose of interfering with any right or privilege secured by 
title IX or part 106 of the Department's regulations, or because the 
individual has made a report or complaint, testified, assisted, or 
participated or refused to participate in any manner in an 
investigation, proceeding, or hearing under this part.
Trauma Responses
    Comments: Some commenters argued that cross-examination is 
inherently unfair for survivors because any adversarial questioning may 
trigger a trauma response (manifesting as panic attacks, flashbacks, 
painful memories, dissociation, or even suicidal ideation) and instead 
survivors must be able to recount their experience in a non-stressful 
environment where they feel safe, without the stress and pressure of 
cross-examination that can result in a survivor not being able to give 
a correct account of what happened or mixing up important facts that 
can affect the outcome of the case. Commenters argued that trauma 
shapes memory

[[Page 30323]]

patterns making details of sexual violence difficult to remember, such 
that traditional cross-examination may lead to a mistaken conclusion 
that a trauma victim is lying when in reality the victim is being 
truthful but is unable to recall or answer questions about events in a 
detailed, linear, or consistent manner. Commenters argued that cross-
examination is designed to point out inconsistencies in a person's 
testimony often by asking confusing, complex, or leading 
questions,\1231\ and neurobiological effects of trauma affect the brain 
resulting in fragmented or blocked memories of details of the traumatic 
event.\1232\
---------------------------------------------------------------------------

    \1231\ Commenters cited: Rachel Zajac & Paula Cannan, Cross-
Examination of Sexual Assault Complainants: A Developmental 
Comparison, 16 Psychiatry, Psychol. & L. (sup.1) 36 (2009).
    \1232\ Many commenters cited to information regarding the impact 
of trauma, such as the data noted in the ``Commonly Cited Sources'' 
subsection of the ``General Support and Opposition'' section of this 
preamble, in support of arguments that cross-examination may trigger 
a trauma response and that trauma victims are often unable to recall 
the traumatic events in a detailed, linear fashion. Commenters also 
cited: Substance Abuse and Mental Health Services Administration, 
Center for Substance Abuse Treatment, Trauma-Informed Care in 
Behavioral Health Services (2014); Massachusetts Advocates for 
Children: Trauma and Learning Policy Initiative, Helping Traumatized 
Children Learn: Supportive School Environments for Children 
Traumatized by Family Violence (2005).
---------------------------------------------------------------------------

    Commenters argued that counterintuitive responses to rape, sexual 
assault, and other forms of sexual violence are common because trauma 
impacts the body and brain in ways that impact a person's affect, 
emotions, behaviors, and memory recall, such that these normal 
responses to abnormal circumstances can seem perplexing to individuals 
untrained in sexual violence dynamics and research about the 
neurobiology of trauma, leading people to unfairly undermine a victim's 
credibility. Commenters argued that research shows that trauma-informed 
questioning results in potentially more valuable, reliable information 
than traditional cross-examination.\1233\ Commenters asserted that 
yelling at someone to recall a specific sequence of events they 
experienced under traumatic conditions decreases the accuracy of the 
recall provided.
---------------------------------------------------------------------------

    \1233\ Commenters cited: Sara F. Dudley, Paved with Good 
Intentions: Title IX Campus Sexual Assault Proceedings and the 
Creation of Admissible Victim Statements, 46 Golden Gate Univ. L. 
Rev. 117 (2016).
---------------------------------------------------------------------------

    Commenters asserted that because rape is about power and control, 
giving a perpetrator more power and control via cross-examination will 
only intimidate and hurt a victim more.\1234\ Commenters argued that 
while cross-examination is uncomfortable for most people, it can have 
severe impacts on survivors' mental health \1235\ and therefore also on 
their academic performance. One commenter argued that we would never 
require our military veterans suffering from PTSD to return from war 
and sit in a room listening to exploding bombs, so why would we require 
a rape victim to face interrogation in front of the source of their 
trauma immediately after the trauma occurred?
---------------------------------------------------------------------------

    \1234\ Commenters cited: Ryan M. Walsh & Steven E. Bruce, The 
Relationships Between Perceived Levels of Control, Psychological 
Distress, and Legal System Variables in a Sample of Sexual Assault 
Survivors, 17 Violence Against Women 5 (2011).
    \1235\ Commenters cited: Jacqueline M. Wheatcroft et al., 
Revictimizing the Victim? How Rape Victims Experience the UK Legal 
System, 4 Victims & Offenders 3 (2009); Mark Littleton, ``Sexual 
Harassment of Students by Faculty Members,'' in Encyclopedia of Law 
and Higher Education 411-12 (Charles J. Russo ed., 2010).
---------------------------------------------------------------------------

    Discussion: The Department understands commenters' concerns that 
survivors of sexual harassment may face trauma-related challenges to 
answering cross-examination questions about the underlying allegations. 
The Department is aware that the neurobiology of trauma and the impact 
of trauma on a survivor's neurobiological functioning is a developing 
field of study with application to the way in which investigators of 
sexual violence offenses interact with victims in criminal justice 
systems and campus sexual misconduct proceedings. Under these final 
regulations, recipients have discretion to include trauma-informed 
approaches in the training provided to Title IX Coordinators, 
investigators, decision-makers, and persons who facilitate informal 
resolutions so long as the training complies with the requirements of 
Sec.  106.45(b)(1)(iii) and other requirements in Sec.  106.45, and 
nothing in the final regulations impedes a recipient's ability to 
disseminate educational information about trauma to students and 
employees. As attorneys and consultants with expertise in Title IX 
grievance proceedings have noted, trauma-informed practices can be 
implemented as part of an impartial, unbiased system that does not rely 
on sex stereotypes, but doing so requires taking care not to permit 
general information about the neurobiology of trauma to lead Title IX 
personnel to apply generalizations to allegations in specific 
cases.\1236\ Because cross-examination occurs only after the recipient 
has conducted a thorough investigation, trauma-informed questioning can 
occur by a recipient's investigator giving the parties opportunity to 
make statements under trauma-informed approaches prior to being cross-
examined by the opposing party's advisor.
---------------------------------------------------------------------------

    \1236\ See, e.g., Jeffrey J. Nolan, Fair, Equitable Trauma-
Informed Investigation Training (Holland & Knight updated July 19, 
2019) (white paper summarizing trauma-informed approaches to sexual 
misconduct investigations, identifying scientific and media support 
and opposition to such approaches, and cautioning institutions to 
apply trauma-informed approaches carefully to ensure impartial 
investigations); ``Recommendations of the Post-SB 169 Working 
Group,'' 3 (Nov. 14, 2018) (report by a task force convened by 
former Governor of California Jerry Brown to make recommendations 
about how California institutions of higher education should address 
allegations of sexual misconduct) (trauma-informed ``approaches have 
different meanings in different contexts. Trauma-informed training 
should be provided to investigators so they can avoid re-
traumatizing complainants during the investigation. This is distinct 
from a trauma-informed approach to evaluating the testimony of 
parties or witnesses. The use of trauma-informed approaches to 
evaluating evidence can lead adjudicators to overlook significant 
inconsistencies on the part of complainants in a manner that is 
incompatible with due process protections for the respondent. 
Investigators and adjudicators should consider and balance 
noteworthy inconsistencies (rather than ignoring them altogether) 
and must use approaches to trauma and memory that are well grounded 
in current scientific findings.''). Because of the lack of a 
singular definition of ``trauma-informed'' approaches, and the 
variety of contexts that such approaches might be applied, the 
Department does not mandate ``trauma-informed'' approaches but 
recipients have flexibility to employ trauma-informed approaches so 
long as the recipient also complies with all requirements in these 
final regulations.
---------------------------------------------------------------------------

    With respect to cross-examination, the Department notes that the 
final regulations do not prevent a recipient from granting breaks 
during a live hearing to permit a party to recover from a panic attack 
or flashback, nor do the final regulations require answers to cross-
examinations to be in linear or sequential formats. The final 
regulations do not require that any party, including a complainant, 
must recall details with certain levels of specificity; rather, a 
party's answers to cross-examination questions can and should be 
evaluated by a decision-maker in context, including taking into account 
that a party may experience stress while trying to answer questions. 
Because decision-makers must be trained to serve impartially without 
prejudging the facts at issue, the final regulations protect against a 
party being unfairly judged due to inability to recount each specific 
detail of an incident in sequence, whether such inability is due to 
trauma, the effects of drugs or alcohol, or simple fallibility of human 
memory. We have also revised Sec.  106.45(b)(6)(i) in a manner that 
builds in a ``pause'' to the cross-examination process; before a party 
or witness answers a cross-examination question, the decision-maker 
must determine if the question is relevant. This helps ensure that 
content of cross-examination remains focused

[[Page 30324]]

only on relevant questions and that the pace of cross-examination does 
not place undue pressure on a party or witness to answer immediately.
    The Department reiterates that recipients retain the discretion to 
control the live hearing environment to ensure that no party is 
``yelled'' at or asked questions in an abusive or intimidating manner. 
The Department further reiterates that cross-examination is as valuable 
a tool for complainants to challenge a respondent's version of events 
as it is for a respondent to challenge a complainant's narrative. 
Because cross-examination is conducted only through party advisors, we 
believe that the cross-examination procedure helps to equalize power 
and control, because both parties have equal opportunity to ask 
questions that advocate the party's own perspectives and beliefs about 
the underlying incident regardless of any power, control, or authority 
differential that exists between the parties.
    The Department agrees that cross-examination is likely an 
uncomfortable experience for most people, including complainants and 
respondents; numerous commenters have informed the Department that 
navigating a grievance process as a complainant or as a respondent has 
caused individuals to feel stressed, have difficulty focusing on 
academic performance, and feel anxious and depressed. The final 
regulations offer both parties protection against feeling forced to 
participate in a grievance process and equal procedural protections 
when an individual does participate. To that end, the final regulations 
require recipients to offer complainants supportive measures regardless 
of whether a formal complaint is filed \1237\ (and encourage supportive 
measures for respondents as well),\1238\ and where a party does 
participate in a grievance process the party has the right to an 
advisor of choice.\1239\ Additionally, the final regulations add Sec.  
106.71 prohibiting retaliation and specifically protecting an 
individual's right to participate or not participate in a grievance 
process.
---------------------------------------------------------------------------

    \1237\ Section 106.44(a).
    \1238\ Section 106.30 (defining ``supportive measures'' and 
expressly indicating that such individualized services may be 
provided to complainants or respondents); Sec.  106.45(b)(1)(ix) 
(requiring a recipient's grievance process to describe the range of 
supportive measures available to complainants and to respondents).
    \1239\ Section 106.45(b)(5)(iv).
---------------------------------------------------------------------------

    The Department appreciates a commenter's analogy to a military 
veteran experiencing PTSD; however, the we believe that Sec.  
106.45(b)(6)(i) anticipates the potential for re-traumatization of 
sexual assault victims and mitigates such an effect by ensuring that a 
complainant (or respondent) can request being in separate rooms for the 
entire live hearing (including during cross-examination) so that the 
parties never have to face each other in person, by leaving recipients 
flexibility to design rules (applied equally to both parties) that 
ensure that no party is questioned in an abusive or intimidating 
manner, and by requiring the decision-maker to determine the relevance 
of each cross-examination question before a party or witness answers. 
Further, the Department notes that there is no statute of limitations 
setting a time frame for filing a formal complaint,\1240\ and that 
completing the investigation under Sec.  106.45 requires a reasonable 
amount of time (for example, the parties must be given an initial 
written notice of the allegations, the recipient must gather evidence, 
give the parties ten days to review the evidence, prepare an 
investigative report, and give the parties ten days to review the 
investigative report),\1241\ and therefore it is unlikely that a 
complainant would ever be required to ``immediately'' undergo cross-
examination following a sexual assault covered by Title IX.
---------------------------------------------------------------------------

    \1240\ Section 106.30 (defining ``formal complaint'' and 
providing that a complainant must be ``participating or attempting 
to participate'' in the recipient's education program or activity at 
the time of filing a formal complaint). Even a complainant who has 
graduated may, for instance, be ``attempting to participate'' in the 
recipient's education program or activity by, for example, desiring 
to apply to a graduate program with the recipient, or desiring to 
remain involved alumni events and organizations.
    \1241\ E.g., Sec.  106.45(b)(2); Sec.  106.45(b)(5)(i); Sec.  
106.45(b)(5)(vi); Sec.  106.45(b)(5)(vii).
---------------------------------------------------------------------------

    Changes: None.
Reliance on Rape Myths
    Comments: Many commenters cited an article \1242\ by Sarah 
Zydervelt et al., (herein, ``Zydervelt 2016'') describing cross-
examination of rape victims as often involving detailed, personal, 
humiliating questions rooted in sex stereotypes and rape myths that 
tend to blame victims for incidents of sexual violence.\1243\ 
Commenters argued that because cross-examination relies on rape myths, 
requiring cross-examination contradicts Sec.  106.45(b)(1)(iii) which 
forbids training materials for Title IX personnel from relying on sex 
stereotypes.
---------------------------------------------------------------------------

    \1242\ Commenters cited: Sarah Zydervelt, et al., Lawyers' 
Strategies for Cross-examining Rape Complainants: Have we Moved 
Beyond the 1950s?, 57 British J. of Criminology 3 (2016); Olivia 
Smith & Tina Skinner, How Rape Myths Are Used and Challenged in Rape 
and Sexual Assault Trials, 26 Social & Legal Studies 4 (2017).
    \1243\ Many commenters cited to information regarding negative 
impacts of sexual harassment and harmful effects of institutional 
betrayal, such as the data noted in the ``Impact Data'' and 
``Commonly Cited Sources'' subsections of the ``General Support and 
Opposition'' section of this preamble, in support of arguments that 
cross-examination will further reduce rates of reporting.
---------------------------------------------------------------------------

    Commenters argued that the Department's insistence on cross-
examination for rape victims when victims of non-sexual crimes do not 
have to undergo cross-examination demonstrates ``rape exceptionalism,'' 
an unfounded notion that sexual assault and rape are different kinds of 
cases because rape victims lie more than victims of other crimes.\1244\
---------------------------------------------------------------------------

    \1244\ Commenters cited: Naomi Mann, Taming Title IX Tensions, 
20 Univ. Pa. J. of Constitutional L. 631, 666 (2018); Michelle 
Anderson, Campus Sexual Assault Adjudication and Resistance to 
Reform, 125 Yale L. J. 1940, 2000 (2016) (Title IX is a civil rights 
mechanism about institutional accountability for providing equal 
education); id. at 1943, 1946-50 (the tendency to treat rape victims 
as distinct from other crime victims has roots in criminal justice 
and civil litigation where rules have required victim testimony to 
be corroborated and victims have carried extra burdens to show they 
resisted rape); cf. Donald Dripps, After Rape Law: Will the Turn to 
Consent Normalize the Prosecution of Sexual Assault?, 41 Akron L. 
Rev. 957, 957 (2008) (``Rape is an exceptional area of law.'').
---------------------------------------------------------------------------

    Discussion: The study cited most often by commenters for the 
proposition that cross-examination relies on questions rooted in sex 
stereotypes and rape myths, Zydervelt 2016, is a research study in 
which the authors compared strategies and tactics employed by defense 
attorneys in criminal trials in Australia and New Zealand during two 
time periods (from 1950-1959, and from 1996-2011) to analyze whether 
the strategies and tactics differed in those time periods (the earlier 
time period representing pre-legal reforms in the area of rape law, and 
the later time period representing contemporary legal reforms such as 
defining rape to include marital rape, eliminating the requirement of 
corroborating evidence and the requirement that the victim showed 
physical resistance to the sexual attack, and imposing rape shield 
protections limiting questions about a victim's sexual history and 
sexual behavior).\1245\ Zydervelt 2016 identified four strategies 
employed by defense attorneys to challenge a rape victim's testimony:

[[Page 30325]]

Questions designed to challenge plausibility, consistency, credibility, 
and reliability. Zydervelt 2016 further identified tactics used to 
further each of those four strategies; \1246\ for example, the most 
common strategy identified in the study was challenging plausibility, 
and the most common tactic used in that strategy involved questions 
about the complainant's behavior immediately before or after the 
alleged attack.\1247\
---------------------------------------------------------------------------

    \1245\ Sarah Zydervelt et al., Lawyers' Strategies for Cross-
examining Rape Complainants: Have we Moved Beyond the 1950s?, 57 
British J. of Criminology 3 (2016), at 2. Page numbers referenced in 
this section are to the version of this article located at: https://www.researchgate.net/profile/Sarah_Zydervelt/publication/295084744_Lawyers%27_Strategies_for_Cross-Examining_Rape_Complainants_Have_we_Moved_Beyond_the_1950s/links/56f35e4208ae95e8b6cb4ceb/Lawyers-Strategies-for-Cross-Examining-Rape-Complainants-Have-we-Moved-Beyond-the-1950s.pdf?origin=publication_detail, pp. 1-19.
    \1246\ Id. at 8-10. For the strategy of challenging 
plausibility, the study identified the following tactics used by 
defense attorneys during cross-examination questions: Defendant's 
good character; lack of injury or clothing damage; complainant's 
behavior immediately before and after offense; lack of resistance; 
delayed report; continued relationship. For the strategy of 
challenging credibility, the study identified the following tactics 
used by defense attorneys during cross-examination questions: Prior 
relationship with the defendant; sexual history; personal traits; 
previous sexual assault complaint; ulterior motive. For the strategy 
of challenging reliability, the study identified the following 
tactics used by defense attorneys during cross-examination 
questions: Alcohol/drug intoxication; barriers to perception; memory 
fallibility. For the strategy of challenging consistency, the study 
identified the following tactics used by defense attorneys during 
cross-examination questions: Inconsistency with complainant's own 
account, with defendant's account, with another witness's account, 
and with physical evidence.
    \1247\ Id. at 11.
---------------------------------------------------------------------------

    Zydervelt 2016 defined ``rape myths'' as ``beliefs about rape that 
serve to deny, downplay or justify sexually aggressive behavior that 
men commit against women'' which ``can be descriptive, reflecting how 
people believe instances of sexual assault typically unfold, or they 
can be prescriptive, reflecting beliefs about how a victim of sexual 
assault should react'' and further identified common rape myths as 
``the belief that victims invite sexual assault by the way that they 
dress, their consumption of alcohol, their sexual history or their 
association with males with whom they are not in a relationship; the 
belief that many women make false allegations of rape; the belief that 
genuine assault would be reported to authorities immediately; and the 
belief that victims would fight back--and therefore sustain injury or 
damage to clothing--during an assault.'' \1248\ Zydervelt 2016 
concluded that historically and contemporarily, defense attorneys 
employ similar strategies and tactics when cross-examining rape victims 
in criminal trials, and that rape victims still report cross-
examination as a distressing and demeaning experience.\1249\ Zydervelt 
2016 concluded that leveraging rape myths was a common tactic when 
cross-examining rape victims,\1250\ for example, asking questions 
suggesting that willingly accompanying a defendant alone to a room 
implied consent to a sexual act, or that a ``real'' victim would not 
have returned to a party with a defendant if they had just been 
sexually assaulted.
---------------------------------------------------------------------------

    \1248\ Id. at 3-4 (internal quotation marks and citations 
omitted).
    \1249\ Id. at 15.
    \1250\ Id.
---------------------------------------------------------------------------

    The authors of Zydervelt 2016 opined in conclusion that the extent 
to which misconceptions about rape shape cross-examination questions in 
rape cases likely reflects the extent to which society adheres to 
particular beliefs about rape.\1251\ The study's authors also noted 
that more research is required to assist policy makers to make informed 
decisions about how best to address these issues,\1252\ and further 
surmised that because the strategies and tactics used in cross-
examination during rape cases remained similar over time, 
investigators, prosecutors, and advocates could preemptively assist 
rape victims who need to testify by better preparing the victim to 
anticipate the kinds of questions that commonly arise during rape 
cross-examinations.\1253\
---------------------------------------------------------------------------

    \1251\ Id. at 16-17 (``The root of the problem with cross-
examination likely lies in the combative nature of proceedings'' 
where it is a defense lawyer's job ``to create reasonable doubt. . . 
. Perhaps, then, cross-examination will not change until social 
beliefs about rape do. . . . Judges and juries are not imbued with a 
special ability to determine the truth; instead, their rely on their 
understanding of human nature and common sense. . . . To the extent 
that putting these myths in front of the jury has a good chance of 
creating reasonable doubt, it is likely that lawyers will continue 
to use them.'') (internal citations omitted).
    \1252\ Id. at 17.
    \1253\ Id. at 16.
---------------------------------------------------------------------------

    The Department understands commenters' concerns that Zydervelt 2016 
indicates that misconceptions about rape and sexual assault victims 
permeate cross-examination strategies and tactics in the criminal 
justice system. However, this study indicates that to the extent that 
misconceptions or negative stereotypes about sexual assault affect 
cross-examination in rape cases, the problem lies with societal beliefs 
about sexual assault and not with cross-examination as a tool for 
resolving competing narratives in sexual assault cases. The final 
regulations require recipients to ensure that decision-makers are well-
trained in conducting a grievance process and serving impartially, 
using materials that avoid sex stereotypes, and specifically on issues 
of relevance including application of the rape shield protections in 
Sec.  106.45(b)(6). Further, as noted above, nothing in the final 
regulations precludes a recipient from including in that training 
information about the impact of trauma on victims or other aspects of 
sexual violence dynamics, so long as any such training promotes 
impartiality and avoidance of prejudgment of the facts at issue, bias, 
conflicts of interest, and sex stereotypes. Thus, unlike a civil or 
criminal court system, where jurors who act as fact-finders are not 
trained, the Sec.  106.45 grievance process requires recipients to use 
decision-makers who have been trained to avoid bias and sex stereotypes 
and to focus proceedings on relevant questions and evidence, such that 
even if a cross-examination question impermissibly relies on bias or 
sex stereotypes while attempting to challenge a party's plausibility, 
credibility, reliability, or consistency, it is the trained decision-
maker, and not the party advisor asking a question, who determines 
whether the question is relevant and if it is relevant, then evaluates 
the question and any resulting testimony in order to reach a 
determination regarding responsibility. For the same reasons, the 
Department disagrees that cross-examination violates or contradicts 
Sec.  106.45(b)(1)(iii), which forbids training materials for Title IX 
personnel from relying on sex stereotypes; the latter provision serves 
precisely to ensure that decision-makers do not allow sex stereotypes 
to influence the decision-maker's determination regarding 
responsibility.
    The Department disagrees that the Sec.  106.45 grievance process, 
including cross-examination at live hearings in postsecondary 
institutions, reflects adherence to rape exceptionalism or any belief 
that women (or complainants generally) tend to lie about rape more than 
other offenses. The Department believes that cross-examination as a 
tool for testing competing narratives serves an important truth-seeking 
function in a variety of types of misconduct allegations; these final 
regulations focus on the procedures designed to prescribe a consistent 
framework for recipients' handling of formal complaints of sexual 
harassment so that a determination is likely to be accurate in each 
particular case, regardless of how infrequently false allegations are 
made. The Department reiterates that cross-examination provides 
complainants with the same opportunity through an advisor to question 
and expose inconsistencies in the respondent's testimony and to reveal 
any ulterior motives. In this manner, cross-examination levels the 
playing field by giving a complainant as much procedural control as a 
respondent, regardless of the fact that exertion of

[[Page 30326]]

power and control is often a dynamic present in perpetration of sexual 
assault.
    Changes: None.
Cross-Examination as a Due Process Requirement
    Comments: Commenters argued that cross-examination is not necessary 
because neither the Constitution, nor other Federal law, requires 
cross-examination in school conduct proceedings.\1254\ Commenters 
characterized recent Sixth Circuit cases, holding that cross-
examination must be provided, as anomalous rather than indicative of a 
judicial trend favoring live cross-examination in college disciplinary 
proceedings.\1255\ Commenters asserted that the Department's cross-
examination requirement does not contain the limitations that the Sixth 
Circuit delineated in Baum; namely, that cross-examination is required 
only for public colleges, in situations where credibility is in dispute 
and material to the outcome, where potential sanctions are suspension 
or expulsion, and where the burden on the university is minimal because 
the university already holds hearings for some types of misconduct.
---------------------------------------------------------------------------

    \1254\ Commenters cited: Goss v. Lopez, 419 U.S. 565, 583 (1975) 
(holding that a ten-day suspension imposed on high school students 
by a public school district required due process of law under the 
U.S. Constitution, including notice and opportunity to be heard, but 
did not require opportunity to cross-examine witnesses); Mathews v. 
Eldridge, 424 U.S. 319 (1976); Dixon v. Ala. St. Bd. of Educ., 294 
F.2d 150, 158 (5th Cir. 1961); Osteen v. Henley, 13 F.3d 221, 225 
(7th Cir. 1993) (holding no violation of constitutional due process 
where college student was expelled without a right of cross-
examination); Fellheimer v. Middlebury Coll., 869 F. Supp. 238, 247 
(D. Vt. 1994); Coplin v. Conejo Valley Unified Sch. Dist., 903 F. 
Supp. 1377, 1383 (C.D. Cal. 1995).
    \1255\ Commenters cited: Joanna L. Grossman & Deborah L. Brake, 
A Sharp Backward Turn: Department of Education Proposes to Protect 
Schools, Not Students, in Cases of Sexual Violence, Verdict (Nov. 
29, 2018) (arguing that Doe v. Baum, 903 F.3d 575 (6th Cir. 2018) is 
anomalous); William J. Migler, Comment: An Accused Student's Right 
to Cross-Examination in University Sexual Assault Adjudicatory 
Proceedings, 20 Chap. L. Rev. 357, 380 (2017) (``Lower federal 
courts and state courts have applied both Goss and Eldridge (or 
similar reasoning behind these cases) to the question of whether 
cross-examination is a due process requirement in university 
disciplinary proceedings, resulting in a split amongst the 
jurisdictions. Among the states that have directly decided on the 
issue, courts in eleven states have held that an accused student has 
the right to some form of cross-examination of witnesses. Likewise, 
the Ninth Circuit and district courts in the First, Second, Third, 
and Eighth Circuits have held accused students have the right to 
some form of cross-examination. Conversely, courts in sixteen 
states, the First, Second, Fourth, Fifth, Sixth, Tenth, and Eleventh 
Circuits, and district courts in the Seventh and Eighth Circuits, 
have found that cross-examination is not required to protect a 
student's Due Process rights in a disciplinary proceeding.'') 
(internal citations omitted); cf. Doe v. Baum, 903 F.3d 575 (6th 
Cir. 2018).
---------------------------------------------------------------------------

    Commenters argued that Federal case law shows a split in how courts 
view cross-examination in college disciplinary proceedings with the 
weight of Federal case law favoring significant limits on cross-
examination by requiring, at most, questioning through a panel or 
submission of written questions rather than traditional, adversarial 
cross-examination, for both public and private institutions.\1256\ 
Commenters argued that colleges and universities should not be required 
to ignore judicial precedent simply because the Department currently 
finds a recent two-to-one decision from the Sixth Circuit (i.e., Baum) 
more persuasive than the many other Federal court decisions that do not 
require live cross-examination as part of constitutional due process or 
fundamental fairness, and that principles of federalism, administrative 
law, and general rule of law demand that the Department refrain from 
overreaching by imposing this requirement.
---------------------------------------------------------------------------

    \1256\ Commenters cited: Sara O'Toole, Campus Sexual Assault 
Adjudication, Student Due Process, and a Bar on Direct Cross-
Examination, 79 Univ. of Pitt. L. Rev. 511 (2018) (examining due 
process cases law in educational settings and arguing that parties 
directing questions to each other through a hearing panel is 
constitutionally sufficient); commenters also cited, e.g., Dixon v. 
Ala. St. Bd. of Educ., 294 F.2d 150, 159 (5th Cir. 1961); Winnick v. 
Manning, 460 F.2d 545, 549 (2d Cir.1972); Boykins v. Fairfield Bd. 
of Edu., 492 F.2d 697, 701 (5th Cir. 1974); Nash v. Auburn Univ., 
812 F.2d 655, 664 (11th Cir. 1987); Gorman v. Univ. of Rhode Island, 
837 F.2d 7, 16 (1st Cir. 1988); Donohue v. Baker, 976 F. Supp. 136, 
147 (N.D.N.Y. 1997); Schaer v. Brandeis Univ., 432 Mass. 474, 482 
(2000).
---------------------------------------------------------------------------

    Several commenters argued that regardless of how cross-examination 
is viewed under a constitutional right to due process, private colleges 
and universities owe contractual obligations to their students and 
employees, not constitutional ones, and requiring live hearings and 
cross-examination marks a substantial governmental intrusion into the 
relationship between private institutions and their students. Several 
commenters asserted that private institutions should remain free to 
craft their own adjudication rules so long as such rules are fair and 
equitable.
    Commenters argued that unless lawmakers specifically direct 
universities to grant cross-examination rights, or the right to 
counsel, in civil or administrative hearings,\1257\ such elevated 
procedures cannot be expected of universities.
---------------------------------------------------------------------------

    \1257\ Commenters cited: North Carolina Gen. Stat. Sec.  116-
40.11 (student's right to be represented by counsel, at student's 
expense, in campus disciplinary hearings); Mass. Gen. c.71 Sec.  
37H-3/4 (student facing expulsion or suspension longer than ten days 
for bullying has right to cross-examination and right to counsel).
---------------------------------------------------------------------------

    Commenters argued that cross-examination by skilled defense counsel 
is the most aggressive means of testing a witness's credibility and, by 
requiring this, the proposed rules seem based on a premise that a 
complainant's credibility is highly suspect. Commenters asserted that 
because a university Title IX grievance process is neither a civil 
lawsuit (where a plaintiff seeks money damages against the defendant) 
or a criminal trial (where a criminal defendant faces loss of liberty), 
the highest degree of credibility-testing is neither necessary nor 
reasonable. Commenters argued that State laws restricting Sixth 
Amendment rights to confront accusers can be constitutionally 
permissible due to policy concerns for protecting sexual assault 
victims from suffering further psychological harms,\1258\ and thus 
similar or greater restrictions can be part of a noncriminal proceeding 
like a Title IX process.
---------------------------------------------------------------------------

    \1258\ Commenters cited: Linda Mohammadian, Sexual Assault 
Victims v. Pro Se Defendants, 22 Cornell J. of L. & Pub. Pol'y 491 
(2012) (arguing that a Washington State law providing that sexual 
assault victims in criminal trials may receive court-appointed 
``standby'' counsel and use closed-circuit television to testify is 
constitutionally adequate under Sixth Amendment case law).
---------------------------------------------------------------------------

    Commenters argued that fairness, including testing credibility, can 
be fully achieved without live, adversarial cross-examination, through 
questioning by a neutral college administrator,\1259\ referred to by 
some commenters as ``indirect cross-examination.'' Commenters similarly 
argued that allowing parties to submit questions to be asked by a 
hearing officer or panel is sufficiently reliable without causing 
trauma to any involved party,\1260\ a practice commenters asserted 
should be adopted from the withdrawn 2011 Dear Colleague Letter. 
Commenters asserted that this method allows the parties and decision-
maker to hear parties and witnesses answer questions in ``real time'' 
but without the adversarial purpose and tone of cross-examination.

[[Page 30327]]

Commenters asserted a similar version of this practice, used by Harvard 
Law School and endorsed by the American Bar Association Criminal 
Justice Section, and by the University of California Post SB 169 
Working Group, should be called ``submitted questions'' instead of 
``cross-examination'' and would invite both parties to submit questions 
to the presiding decision-maker who must then ask all the questions 
unless the questions are irrelevant, excluded by a rule clearly adopted 
in advance, harassing, or duplicative.
---------------------------------------------------------------------------

    \1259\ Commenters cited: Sara O'Toole, Campus Sexual Assault 
Adjudication, Student Due Process, and a Bar On Direct Cross-
Examination, 79 Univ. of Pitt. L. Rev. 511, 511-14 (2018) (review of 
relevant case law demonstrates that live cross-examination is not a 
due process requirement in the university setting and questioning 
through a hearing panel is constitutionally sufficient) (finding 
``the appropriate balance'' between rights for complainants and for 
accused students ``is essential to the goal of creating a more equal 
and safe educational environment, as moving too far in one direction 
may lead to a detrimental backlash and thus prevent effective 
solutions'').
    \1260\ Commenters cited: The Association of Title IX 
Administrators (ATIXA), The 7 Deadly Sins of Title IX 
Investigations: The 2016 White Paper (2016).
---------------------------------------------------------------------------

    Commenters argued that indirect cross-examination, or submitted 
questions, is sufficient to meet constitutional due process 
requirements under the Supreme Court's Mathews v. Eldridge balancing 
test \1261\ and avoids risks inherent to cross-examination in an 
educational rather than courtroom setting, namely, that outside a 
courtroom lawyers or other advisors could engage in hurtful, harmful 
techniques that may impede educational access for the parties. 
Commenters argued that a trained fact-finder listening to party 
advisors ask questions and introduce evidence is a reactionary approach 
and a proactive approach is preferable, whereby the trained decision-
maker elicits appropriate, relevant information from the parties and 
witnesses. Commenters argued that most postsecondary institutions 
currently use a trauma-informed method of questioning such as indirect 
cross-examination or submitted questions,\1262\ and that such practices 
have been upheld by nearly all Federal court decisions considering 
them.
---------------------------------------------------------------------------

    \1261\ Commenters cited: Mathews v. Eldridge, 424 U.S. 319, 321 
(1976) (setting forth a three-part balancing test for evaluating the 
sufficiency of due process procedures--the private interest being 
affected, the risk of erroneous deprivation of that interest through 
the procedures at issue, and the government's interest, including 
financial and administrative burden that additional procedures would 
entail).
    \1262\ Commenters cited: Tamara Rice Lave, A Critical Look at 
How Top Colleges and Universities are Adjudicating Sexual Assault, 
71 Univ. of Miami L. Rev. 377, 396 (2017) (survey of 35 highly-
ranked colleges and universities determined that only six percent of 
surveyed institutions permitted traditional cross-examination, while 
50 percent permitted questioning through the hearing panel and 30 
percent did not allow a respondent to ask questions of the 
complainant in any capacity).
---------------------------------------------------------------------------

    Commenters argued that because credibility is determined by the 
decision-maker, and not by parties or witnesses, there should be no 
right for parties to directly question the other party or witnesses. 
Commenters stated that if the Department's assumption that live cross-
examination is better than submission of questions through a neutral 
hearing officer rests on concern that the hearing officer might 
unfairly refuse to ask a party's questions, the proposed rules address 
that concern by requiring the decision-maker to explain the reasons for 
exclusion of any questions, so live cross-examination is not a 
necessity on that basis. One commenter argued that although cross-
examination may be the greatest legal engine ever invented for 
discovery of truth, engines come in different shapes and sizes for a 
reason, and the effective, appropriate version of the engine of cross-
examination in the Title IX context is questioning by neutral hearing 
officers.
    Some commenters proposed that the decision-maker act as a liaison 
between the parties, such that each party's advisor would ask a 
question one at a time, live and in full hearing of the other party, 
and the decision-maker would then decide whether the other party should 
or should not answer the question; commenters asserted that this 
version of live cross-examination would better filter out abusive, 
irrelevant questions while preserving the opportunity of party advisors 
to ask the cross-examination questions. Commenters argued that some 
States such as New York have better embodied the settled state of the 
law by requiring a fair campus adjudicatory process that does not 
include cross-examination. Commenters asserted that the final 
regulations should follow the process used by the U.S. Senate during 
the confirmation hearings for the Honorable Brett Kavanaugh, Associate 
Justice, Supreme Court of the United States, which process was 
described by commenters as disallowing any interaction between the 
accuser and accused, while conducting questioning of each party 
separately by the Senators and a designated neutral questioner.
    Discussion: The Department acknowledges that the Supreme Court has 
not ruled on what procedures satisfy due process of law under the U.S. 
Constitution in the specific context of a Title IX sexual harassment 
grievance process held by a postsecondary institution, and that Federal 
appellate courts that have considered this particular issue in recent 
years have taken different approaches. The Department, as an agency of 
the Federal government, is subject to the U.S. Constitution, including 
the Fifth Amendment, and cannot interpret Title IX to compel a 
recipient, whether public or private, to deprive a person of due 
process rights.\1263\ Procedural due process requires, at a minimum, 
notice and a meaningful opportunity to be heard.\1264\ Due process 
```is flexible and calls for such procedural protections as the 
particular situation demands.' '' \1265\ ``The fundamental requirement 
of due process is the opportunity to be heard `at a meaningful time and 
in a meaningful manner.' '' \1266\
---------------------------------------------------------------------------

    \1263\ E.g., Peterson v. City of Greenville, 373 U.S. 244 
(1963); Truax v. Raich, 239 U.S. 33, 38 (1915).
    \1264\ Goss v. Lopez, 419 U.S. 565, 580 (1975) (``At the very 
minimum, therefore, students facing suspension and the consequent 
interference with a protected property interest must be given some 
kind of notice and afforded some kind of hearing.''); Mathews v. 
Eldridge, 424 U.S. 319, 333 (1976).
    \1265\ Id. at 334 (quoting Morrissey v. Brewer, 408 U.S. 471, 
481 (1972)).
    \1266\ Id. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 
(1965)).
---------------------------------------------------------------------------

    The Department has determined that the procedures contained in 
Sec.  106.45 of these final regulations best achieve the purposes of 
(1) effectuating Title IX's non-discrimination mandate by ensuring 
fair, reliable outcomes viewed as legitimate in resolution of formal 
complaints of sexual harassment so that victims receive remedies, (2) 
reducing and preventing sex bias from affecting outcomes, and (3) 
ensuring that Title IX regulations are consistent with constitutional 
due process and fundamental fairness. The procedures in Sec.  106.45 
are consistent with constitutional requirements and best serve the 
foregoing purposes, including the right for both parties to 
meaningfully be heard by advocating for their own narratives regarding 
the allegations in a formal complaint of sexual harassment. In 
recognition that what is a meaningful opportunity to be heard may 
depend on particular circumstances, the final regulations apply 
different procedures in different contexts; for example, where an 
emergency situation presents a threat to physical health or safety, 
Sec.  106.44(c) permits emergency removal with an opportunity to be 
heard that occurs after removal. Where a grievance process is initiated 
to adjudicate the respondent's responsibility for sexual harassment, a 
live hearing with cross-examination is required in the postsecondary 
context but not in elementary and secondary schools. These differences 
appropriately acknowledge that different types of process may be 
required in different circumstances while prescribing a consistent 
framework in similar circumstances so that Title IX as a Federal civil 
rights law protects every person in an education program or activity.
    As commenters supportive of cross-examination pointed out, and as 
commenters opposed to cross-examination acknowledge, the Sixth

[[Page 30328]]

Circuit has held that cross-examination, at least conducted through a 
party's advisor, is necessary to satisfy due process in sexual 
misconduct cases that turn on party credibility. ``Due process requires 
cross-examination in circumstances like these because it is the 
greatest legal engine ever invented for uncovering the truth.'' \1267\ 
The Sixth Circuit reasoned, ``Cross-examination is essential in cases 
like Doe's because it does more than uncover inconsistencies--it takes 
aim at credibility like no other procedural device.'' \1268\ The Sixth 
Circuit in Baum disagreed with the institution's argument that written 
statements could substitute for cross-examination, explaining that 
``[w]ithout the back-and-forth of adversarial questioning, the accused 
cannot probe the witness's story to test her memory, intelligence, or 
potential ulterior motives. . . . Nor can the fact-finder observe the 
witness's demeanor under that questioning. . . . For that reason, 
written statements cannot substitute for cross-examination. . . . 
Instead, the university must allow for some form of live questioning in 
front of the fact-finder,'' though this requirement can be facilitated 
through modern technology, for example by allowing a witness to be 
questioned via Skype.\1269\ The Sixth Circuit carefully distinguished 
this cross-examination requirement from the Sixth Amendment right of a 
criminal defendant to confront witnesses, reasoning that administrative 
proceedings need not contain the same protections accorded to the 
accused in criminal proceedings.\1270\ The Sixth Circuit further 
reasoned that ``[u]niversities have a legitimate interest in avoiding 
procedures that may subject an alleged victim to further harm or 
harassment . . . [but] the answer is not to deny cross-examination 
altogether. Instead, the university could allow the accused student's 
agent to conduct cross-examination on his behalf. After all, an 
individual aligned with the accused student can accomplish the benefits 
of cross-examination--its adversarial nature and the opportunity for 
follow-up--without subjecting the accuser to the emotional trauma of 
directly confronting her alleged attacker.'' \1271\
---------------------------------------------------------------------------

    \1267\ Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018) (internal 
quotation marks and citations omitted).
    \1268\ Id. at 582 (internal quotation marks and citations 
omitted) (emphasis in original); Doe v. Univ. of Cincinnati, 872 
F.3d 393, 401 (6th Cir. 2017) (``Few procedures safeguard accuracy 
better than adversarial questioning.'').
    \1269\ Baum, 903 F.3d at 582-83 (internal citations omitted) 
(emphasis in original).
    \1270\ See id. at 583.
    \1271\ Id.
---------------------------------------------------------------------------

    The Department agrees with the Sixth Circuit's reasoning that a 
Title IX grievance process should strike an appropriate balance between 
avoiding retraumatizing procedures, and ensuring both parties have the 
right to question each other in a manner that captures the real-time, 
adversarial benefits of cross-examination to a truth-seeking process. 
Section 106.45(b)(6)(i) follows the Sixth Circuit's reasoning by 
requiring recipients to give both parties opportunity for cross-
examination, allowing either party to request that cross-examination 
(and the entire live hearing) be conducted with the parties in separate 
rooms, ensuring that only party advisors conduct cross-examination and 
expressly forbidding personal confrontation between parties, and 
requiring the decision-maker to determine the relevance of a cross-
examination question before a party or witness answers.
    Commenters correctly note that the Sixth Circuit's rationale in 
Baum rested on certain limitations or circumstances that justified 
requiring cross-examination: The Baum opinion was in the context of a 
public university that owes constitutional due process of law to 
students and employees; cross-examination is of greatest benefit where 
a sexual misconduct case turns on credibility and involves serious 
consequences; and a university that already provided hearings for other 
types of misconduct could not argue that it faced more than a minimal 
burden to provide a live hearing for sexual misconduct cases. As 
explained in the ``Role of Due Process in the Grievance Process'' 
section of this preamble, the Department understands that some 
recipients are public institutions that owe constitutional protections 
to students and employees while other recipients are private 
institutions that do not owe constitutional protections. However, 
consistent application of a grievance process to accurately resolve 
allegations of sexual harassment under Title IX is as important in 
private institutions as public ones, and the Department therefore 
adopts a Sec.  106.45 grievance process that results in fair, reliable 
outcomes in all postsecondary institutions with procedures that, while 
likely to satisfy constitutional due process requirements, remain 
independent of constitutional requirements.
    The Department notes that while commenters are correct that not 
every formal complaint of sexual harassment subject to Sec.  106.45 
turns on party or witness credibility, other commenters noted that most 
of these complaints do involve plausible, competing narratives of the 
alleged incident, making party participation in the process vital for a 
thorough evaluation of the available, relevant evidence.\1272\ The 
final regulations revise Sec.  106.45(b)(6)(i) to clarify that where a 
party or witness does not appear at a live hearing or refuses to answer 
cross-examination questions, the decision-maker must disregard 
statements of that party or witness but must reach a determination 
without drawing any inferences about the determination regarding 
responsibility based on the party or witness's failure or refusal to 
appear or answer questions. Thus, for example, where a complainant 
refuses to answer cross-examination questions but video evidence exists 
showing the underlying incident, a decision-maker may still consider 
the available evidence and make a determination. The Department thus 
disagrees with commenters who argued that the proposed rules force a 
party to undergo cross-examination even where the case does not turn on 
credibility; if the case does not depend on party's or witness's 
statements but rather on other evidence (e.g., video evidence that does 
not consist of ``statements'' or to the extent that the video contains 
non-statement evidence) the decision-maker can still consider that 
other evidence and reach a determination, and must do so without 
drawing any inference about the determination based on lack of party or 
witness testimony. This result thus comports with the Sixth Circuit's 
rationale in Baum that cross-examination is most needed in cases that 
involve the need to evaluate credibility of parties as opposed to 
evaluation of non-statement evidence.\1273\ Furthermore,

[[Page 30329]]

Sec.  106.45(b)(9) permits recipients to facilitate informal resolution 
processes (thus avoiding the need to hold a live hearing with cross-
examination), which may be particularly desirable by the parties and 
the recipient in situations where the facts about the underlying 
incident are not contested by the parties and thus resolution does not 
turn on resolving competing factual narratives.
---------------------------------------------------------------------------

    \1272\ See H. Hunter Bruton, Cross-Examination, College Sexual-
Assault Adjudications, and the Opportunity for Tuning up the 
Greatest Legal Engine Ever Invented, 27 Cornell J. of L. & Pub. 
Pol'y, 145, 180-81 (2017) (``Participation in these cases becomes 
all the more necessary because the hearing's resolution often 
depends on weighing the victim's credibility against the accused's 
credibility. In the vast majority of cases, no one else witnesses 
the act and no other evidence exists.'') (internal citations 
omitted).
    \1273\ See Baum, 903 F.3d at 583-84 (despite the university's 
contention that prior Sixth Circuit precedent, in Univ. of 
Cincinnati, 872 F.3d at 395, 402, meant that a respondent is not 
entitled to cross-examination where the university's decision did 
not depend entirely on a credibility contest between Roe and Doe, 
the Baum Court clarified that University of Cincinnati merely held 
that cross-examination was unnecessary when the university's 
decision did not rely on any testimonial evidence at all but that 
case, and Baum, stand for the proposition that if ``credibility is 
in dispute and material to the outcome, due process requires cross-
examination.''); Sec.  106.45(b)(6)(i) is consistent with this Baum 
holding inasmuch as the provision bars reliance on statements from 
witnesses who do not submit to cross-examination, leaving a 
decision-maker able to consider non-statement evidence that may 
exist in a particular case.
---------------------------------------------------------------------------

    With respect to the other limitations commenters asserted that the 
Sixth Circuit noted in its rationale requiring cross-examination (i.e., 
that it is a procedure justified where serious consequences such as 
suspension or expulsion are at issue, and where the burden on a 
university is minimal), the Department notes that the Baum Court did 
not rest its rationale on situations where only suspension or expulsion 
was at issue, but rather the Sixth Circuit observed that ``[b]eing 
labeled a sex offender by a university has both an immediate and 
lasting impact on a student's life'' whereby the student ``may be 
forced to withdraw from his classes and move out of his university 
housing. His personal relationships might suffer. . . . And he could 
face difficulty obtaining educational and employment opportunities down 
the road, especially if he is expelled.'' \1274\ The Sixth Circuit thus 
recognized the high stakes involved with sexual misconduct allegations 
regardless of whether the sanction is expulsion. Further, the 
Department doubts that recipients are likely to determine that the type 
of conduct captured under the Sec.  106.30 definition of sexual 
harassment would not potentially warrant suspension or expulsion. 
Additionally, the final regulations revise Sec.  106.45(b)(6)(i) to 
permit a recipient to hold live hearings virtually, using technology, 
to ameliorate the administrative burden on colleges and universities 
that do not already conduct hearings for any type of misconduct 
allegation.
---------------------------------------------------------------------------

    \1274\ Baum, 903 F.3d at 582 (internal citations omitted) 
(emphasis added).
---------------------------------------------------------------------------

    The Department is aware that after the public comment period on the 
NPRM closed, the First Circuit decided a Title IX sexual misconduct 
case in which the First Circuit disagreed with the Sixth Circuit's 
holding regarding cross-examination.\1275\ In Haidak, the First Circuit 
held that a university could satisfy due process requirements by using 
an inquisitorial rather than adversarial method of cross-examination, 
by having a neutral school official pose probing questions of parties 
and witnesses in real-time, designed to ferret out the truth about the 
allegations at issue.\1276\ The First Circuit reasoned that 
``[c]onsiderable anecdotal experience suggests that cross-examination 
in the hands of an experienced trial lawyer is an effective tool'' but 
cross-examination performed by the respondent personally might devolve 
into ``acrimony'' rather than a truth-seeking tool that reduces the 
risk of erroneous outcomes, while cross-examination conducted by 
lawyers risks university proceedings mimicking court trials.\1277\ Also 
after the public comment period on the NPRM closed, the First Circuit 
decided a case \1278\ under Massachusetts State law involving 
discipline of a student by a private college for sexual misconduct, in 
which the student argued that failure of the recipient to provide any 
form of ``real-time'' cross-examination violated the recipient's 
contractual obligation of ``basic fairness'' but the First Circuit held 
that the private college owed no constitutional due process to the 
student and that State law did not require any form of real-time cross-
examination as part of contractual basic fairness.\1279\ As noted 
elsewhere throughout this preamble, while private colleges do not owe 
constitutional protections to students or employees, the Department is 
obligated to interpret Title IX consistent with constitutional 
guarantees, including the Fifth and Fourteenth Amendment guarantees of 
due process of law, and the Department believes that Sec.  
106.45(b)(6)(i) comports with constitutional due process and notions of 
fundamental fairness while effectuating the non-discrimination mandate 
of Title IX, even if State laws or a recipient's contract with its 
students would not impose the same requirements on private colleges.
---------------------------------------------------------------------------

    \1275\ Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 68-70 (1st 
Cir. 2019) (``[D]ue process in the university disciplinary setting 
requires some opportunity for real-time cross-examination, even if 
only through a hearing panel.'').
    \1276\ Id. at 69-70.
    \1277\ Id.
    \1278\ Doe v. Trustees of Boston Coll., 942 F.3d 527 (1st Cir. 
2019).
    \1279\ Id.
---------------------------------------------------------------------------

    The Department understands the concerns expressed by commenters, 
and echoed in the reasoning of the First Circuit in Haidak, that cross-
examination conducted personally by students may not effectively 
contribute to the truth-seeking purpose of a live hearing. Thus, the 
Department has crafted Sec.  106.45(b)(6)(i) to require postsecondary 
institution recipients to provide parties with an advisor for the 
purpose of conducting cross-examination, if a party does not have an 
advisor of choice at the hearing. This provision avoids the possibility 
of self-representation where a party personally conducts cross-
examination of the opposing party and witnesses, and as commenters 
supporting cross-examination pointed out, this provision ensures that 
advisors conducting cross-examination will be either professionals 
(e.g., attorneys or experienced advocates) or at least adults capable 
of understanding the purpose and scope of cross-examination. Although 
no Federal circuit court has interpreted constitutional due process to 
require recipients to provide counsel to parties in a disciplinary 
proceeding, the Department has the authority to effectuate the purposes 
of Title IX by prescribing administrative requirements even when those 
requirements do not purport to represent a definition of discrimination 
under the Title IX statute. The Department has determined that 
requiring postsecondary institutions to provide advisors to parties for 
the purpose of conducting cross-examination best serves Title IX's non-
discrimination mandate by ensuring that adversarial cross-examination 
occurs, thereby ferreting out the truth of sexual harassment 
allegations, while protecting sexual harassment victims from personal 
confrontation with a perpetrator. At the same time, these final 
regulations expressly state that no party's advisor of choice, and no 
advisor provided to a party by a recipient, needs to be an attorney, 
furthering the Department's intent that the Sec.  106.45 grievance 
process is suitable for implementation in an educational institution 
without trying to mimic a court trial.
    The Department agrees with commenters that Federal case law is 
split on the specific issue of whether constitutional due process, or 
basic fairness under a contract theory between a private college and 
student, requires live cross-examination in sexual misconduct 
proceedings. The Department disagrees that Sec.  106.45(b)(6)(i) 
represents overreach, violations of federalism, administrative law, or 
rule of law, and contends instead that the final regulations prescribe 
a grievance process carefully tailored to be no more prescriptive than 
necessary to (1) be consistent with constitutional due process and 
fundamental fairness, even if Sec.  106.45 includes procedures that 
exceed

[[Page 30330]]

minimal guarantees, and (2) address the challenges inherent in 
resolving sexual harassment allegations so that recipients are 
effectively held responsible for redressing sex discrimination in the 
form of sexual harassment in recipients' education programs or 
activities. As noted elsewhere in this preamble, when a recipient draws 
conclusions about whether sexual harassment occurred in its education 
program or activity, the recipient is not merely making an internal, 
private decision about its own affairs; rather, the recipient is making 
determinations that implicate the recipient's obligation to comply with 
a Federal civil rights law that requires a recipient to operate 
education programs or activities free from sex discrimination. The 
Department therefore has regulatory authority to prescribe a framework 
for consistent, reliable determinations regarding responsibility for 
sexual harassment under Title IX.
    The Department appreciates that some State laws already require 
universities to grant cross-examination rights in administrative 
hearings that apply to students or employees, but the Department 
disagrees that a university may be required to utilize the cross-
examination procedure only if a State law has specifically directed 
that result. The fact that some States already require public 
universities to allow cross-examination demonstrates that the concept 
is familiar to many recipients. The Department is regulating only as 
far as necessary to enforce the Federal civil rights law at issue; the 
final regulations govern only student and employee misconduct that 
constitutes sex discrimination in the form of sexual harassment under 
Title IX, and does not purport to require postsecondary institutions to 
utilize cross-examination in non-Title IX matters. The procedures in 
Sec.  106.45 are consistent with constitutional requirements and best 
further the purposes of Title IX, including the right for both parties 
to meaningfully be heard by advocating for the party's own narratives 
regarding the allegations in a formal complaint of sexual harassment.
    A cross-examination procedure does not imply that the credibility 
of sexual assault complainants is particularly suspect; rather, 
wherever allegations of serious misconduct involve contested facts, 
cross-examination is one of the time-tested procedural devices 
recognized throughout the U.S. legal system as effective in reaching 
accurate determinations resolving competing versions of events. The 
Department notes that Sec.  106.45(b)(6)(i) grants the right of cross-
examination equally to complainants and respondents, and cross-
examination is as useful and powerful a truth-seeking tool for a 
complainant's benefit as for a respondent, so that a complainant may 
direct the decision-maker's attention to implausibility, inconsistency, 
unreliability, ulterior motives, and lack of credibility in the 
respondent's statements. While the purpose of the Sixth Amendment's 
right to confront accusers via cross-examination in a criminal 
proceeding may be to protect the criminal defendant from deprivation of 
liberty unless guilt is certain beyond a reasonable doubt,\1280\ the 
Department recognizes, and the final regulations reflect, that the 
purpose of a Title IX grievance process differs from that of a criminal 
proceeding. Under Sec.  106.45, cross-examination is not for the 
protection only of respondents, but is rather a device for the benefit 
of the recipient and both parties, by assisting the decision-maker in 
reaching a factually accurate determination regarding responsibility so 
that deprivations of a Federal civil right may be appropriately 
remedied.
---------------------------------------------------------------------------

    \1280\ E.g., Niki Kuckes, Civil Due Process, Criminal Due 
Process, 25 Yale L. & Pol'y Rev. 1, 14 (2006) (``The body of 
criminal due process precedents is highly protective of defendants 
in many regards.'').
---------------------------------------------------------------------------

    The Department disagrees with commenters who argued that indirect 
cross-examination conducted by a neutral college administrator, or a 
submitted questions procedure, which is permissible for elementary and 
secondary schools under these final regulations,\1281\ can adequately 
ensure a fair process and reliable outcome in postsecondary 
institutions. Whether or not such a practice would meet constitutional 
due process requirements, the Department believes that Sec.  106.45 
appropriately and reasonably balances the truth-seeking function of 
live, real-time, adversarial cross-examination in the postsecondary 
institution context with protections against personal confrontation 
between the parties. Thus, regardless of whether the provisions in 
Sec.  106.45(b)(6)(i) are required under constitutional due process of 
law, the Department believes that these procedures meet or exceed the 
due process required under Mathews,\1282\ and the Department is 
exercising its regulatory authority under Title IX to adopt measures 
that the Department has determined best effectuate the purpose of Title 
IX.\1283\ The Sec.  106.45 grievance process requires recipients to 
remain neutral and impartial throughout the grievance process, 
including during investigation and adjudication. To require a recipient 
to step into the shoes of an advocate by asking each party cross-
examination questions designed to challenge that party's plausibility, 
credibility, reliability, motives, and consistency would place the 
recipient in the untenable position of acting partially (rather than 
impartially) toward the parties,\1284\ or else failing to fully probe 
the parties' statements for flaws that reflect on the veracity of the 
party's statements. The Department does not believe that it is 
acceptable or necessary to place recipients in such a position, because 
as the Sixth Circuit has outlined, there is an alternative approach 
that balances the need for adversarial testing of testimony with 
protection against personal confrontation between the parties. 
Therefore, Sec.  106.45(b)(6)(i) respects and reinforces the 
impartiality of the recipient by requiring adversarial questioning to 
be conducted by party advisors (who by definition need not be impartial 
because their role is to assist one party and not the other). Precisely 
because the recipient must provide a neutral, impartial decision-maker, 
the function of adversarial questioning must be undertaken by persons 
who owe no duty of impartiality to the parties. Rather, the impartial 
decision-maker benefits from observing the questions

[[Page 30331]]

and answers of each party and witness posed by a party's advisor 
advocating for that party's particular interests in the case. The 
Department believes that Sec.  106.45(b)(6)(i) prescribes an approach 
that is both proactive and reactive, for the benefit of the recipient 
and both parties; that is, the decision-maker has the right and 
responsibility to ask questions and elicit information from parties and 
witnesses on the decision-maker's own initiative to aid the decision-
maker in obtaining relevant evidence both inculpatory and exculpatory, 
and the parties also have equal rights to present evidence in front of 
the decision-maker so the decision-maker has the benefit of perceiving 
each party's unique perspectives about the evidence.
---------------------------------------------------------------------------

    \1281\ Section 106.45(b)(6)(ii) (expressly providing that 
recipients that are not postsecondary institutions need not hold a 
hearing (live or otherwise) but must provide the parties equal 
opportunity to submit written questions to be asked of the other 
party and witnesses).
    \1282\ Mathews v. Eldridge, 424 U.S. 319, 321 (1976) (setting 
forth a three-part balancing test for evaluating the sufficiency of 
due process procedures--the private interest being affected, the 
risk of erroneous deprivation of that interest through the 
procedures at issue, and the government's interest, including 
financial and administrative burden that additional procedures would 
entail).
    \1283\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979) 
(noting that the primary congressional purposes behind Title IX were 
``to avoid the use of Federal resources to support discriminatory 
practices'' and to ``provide individual citizens effective 
protection against those practices.''); see also Gebser, 524 U.S. at 
291-92 (refusing to allow plaintiff to pursue a claim under Title IX 
based on the school's failure to comply with the Department's 
regulatory requirement to adopt and publish prompt and equitable 
grievance procedures, stating ``And in any event, the failure to 
promulgate a grievance procedure does not itself constitute 
`discrimination' under Title IX. Of course, the Department of 
Education could enforce the requirement administratively: Agencies 
generally have authority to promulgate and enforce requirements that 
effectuate the statute's non-discrimination mandate, 20 U.S.C. 1682, 
even if those requirements do not purport to represent a definition 
of discrimination under the statute.'').
    \1284\ Doe v. Miami Univ., 882 F.3d 579, 601 (6th Cir. 2018) 
(``School officials responsible for deciding to exclude a student 
from school must be impartial.'') (internal quotation marks and 
citation omitted).
---------------------------------------------------------------------------

    The Department notes, with respect to commenters' arguments in 
favor of the Harvard Law School's submitted questions model, that a 
decision-maker must exclude irrelevant questions, and nothing in the 
final regulations precludes a recipient from adopting and enforcing (so 
long as it is applied clearly, consistently, and equally to the parties 
\1285\) a rule that deems duplicative questions to be irrelevant, or to 
impose rules of decorum that require questions to be asked in a 
respectful manner; however, any such rules adopted by a recipient must 
ensure that all relevant questions and evidence are admitted and 
considered (though varying weight or credibility may of course be given 
to particular evidence by the decision-maker). Thus, for example, where 
the substance of a question is relevant, but the manner in which an 
advisor attempts to ask the question is harassing, intimidating, or 
abusive (for example, the advisor yells, screams, or physically ``leans 
in'' to the witness's personal space), the recipient may appropriately, 
evenhandedly enforce rules of decorum that require relevant questions 
to be asked in a respectful, non-abusive manner.
---------------------------------------------------------------------------

    \1285\ The introductory sentence to Sec.  106.45(b) provides 
that any rules a recipient adopts to use in the grievance process, 
other than those necessary to comply with Sec.  106.45, must apply 
equally to both parties.
---------------------------------------------------------------------------

    The Department disagrees that the provision in Sec.  
106.45(b)(6)(i) requiring the decision-maker to explain any decision 
that a cross-examination question is irrelevant means that submission 
of written questions adequately substitutes for real-time, adversarial 
questioning. For the reasons explained by the Sixth Circuit, written 
submission of questions is no substitute for live cross-
examination.\1286\ The Department agrees with the commenter who argued 
that engines come in different shapes and sizes, so that the engine of 
cross-examination may appropriately look different in a Title IX 
grievance process than in a criminal proceeding. In recognition of 
these different purposes and contexts, Sec.  106.45 does not attempt to 
incorporate protections constitutionally guaranteed to criminal 
defendants such as the Sixth Amendment right to confront accusers face 
to face, the right of self-representation, or the right to effective 
assistance of counsel.
---------------------------------------------------------------------------

    \1286\ E.g., Doe v. Baum, 903 F.3d 575, 582-83 (6th Cir. 2018) 
(``Without the back-and-forth of adversarial questioning, the 
accused cannot probe the witness's story to test her memory, 
intelligence, or potential ulterior motives. . . . Nor can the fact-
finder observe the witness's demeanor under that questioning . . . 
For that reason, written statements cannot substitute for cross-
examination. . . . Instead, the university must allow for some form 
of live questioning in front of the fact-finder'' though this 
requirement can be facilitated through modern technology, for 
example by allowing a witness to be questioned via Skype.'') 
(internal quotation marks and citations omitted; emphasis in 
original).
---------------------------------------------------------------------------

    The Department appreciates commenters' proposal to modify the real-
time cross-examination requirement by requiring party advisors to ask 
questions one at a time, in full hearing of the other party, while the 
decision-maker decides whether or not the question should be answered, 
to better screen out irrelevant or abusive questions. We have revised 
Sec.  106.45(b)(6)(i) to reflect the commenters' suggestion; this 
provision now provides that ``Only relevant cross-examination and other 
questions may be asked of a party or witness. Before a complainant, 
respondent, or witness answers a cross-examination question, the 
decision-maker must first determine whether the question is relevant 
and explain any decision to exclude a question as not relevant.'' We 
agree that such a provision better ensures that cross-examination in 
the out-of-court setting of a campus Title IX proceeding remains 
focused only on relevant questions and answers.
    The Department appreciates commenters' descriptions of State laws 
that have prescribed grievance procedures for campus sexual misconduct 
allegations, and of the process utilized by the U.S. Senate during the 
confirmation hearings for Justice Kavanaugh. The Department has 
considered sexual misconduct disciplinary proceeding models in use by 
various individual recipients, prescribed under State laws, used by the 
U.S. Senate, and suggested by advocacy organizations, and for the 
reasons previously stated, the Department has carefully selected those 
procedures in Sec.  106.45 as procedures rooted in principles of due 
process and appropriately adapted for application when a formal 
complaint of sexual harassment requires reaching accurate outcomes in 
education programs or activities.
    Changes: We have revised Sec.  106.45(b)(6)(i) to provide that only 
relevant cross-examination and other questions may be asked of a party 
or witness, and before a complainant, respondent, or witness answers a 
cross-examination question, the decision-maker must first determine 
whether the question is relevant and explain to the party's advisor 
asking cross-examination questions any decision to exclude a question 
as not relevant.
Discourages Participation
    Comments: Commenters argued that any process that requires cross-
examination will discourage many students, including complainants, 
respondents, and witnesses, from participating in a Title IX grievance 
process.\1287\ Commenters similarly argued that overseeing cross-
examination will discourage recipients' employees, staff, and 
volunteers from serving as decision-makers or party advisors. At least 
one commenter argued that undocumented students, and LGBTQ students, 
will be particularly deterred from reporting sexual assault because 
cross-examination will make Title IX proceedings more legalistic and 
undocumented students, and LGBTQ students, are already wary of the 
criminal justice system.
---------------------------------------------------------------------------

    \1287\ Commenters cited to information regarding reasons for not 
reporting such as the data noted in the ``Reporting Data'' 
subsection of the ``General Support and Opposition'' section of this 
preamble, in support of arguments that fear of the ordeal of a 
potential trial already discourages many sexual assault victims from 
reporting to law enforcement, and making Title IX grievance 
processes more court-like by requiring cross-examination will have a 
similar chilling effect on reporting sexual assault to universities.
---------------------------------------------------------------------------

    Discussion: The Department understands commenters' concerns that 
participation in a formal grievance process may be difficult for 
participants, including students and employees. The final regulations 
require recipients to notify students and employees of the recipient's 
grievance process,\1288\ and to train personnel whom the recipient 
designates to serve as a Title IX Coordinator, investigator, decision-
maker, or person who facilitates an

[[Page 30332]]

informal resolution.\1289\ The final regulations require recipients to 
allow each party involved in a grievance process to select an advisor 
of the party's choice, for the purpose of accompanying, advising, and 
assisting the party with navigating the grievance process. The 
Department recognizes that the Sec.  106.45 grievance process, 
including live hearings and cross-examination at postsecondary 
institutions, constitutes a serious, formal process, and these final 
regulations ensure that a recipient's educational community is aware of 
that process and, when involved in the process, each party has the 
right to assistance from an attorney or non-attorney advisor throughout 
the process. The final regulations also protect an individual's right 
to decide not to participate in a grievance process, by including Sec.  
106.71 that prohibits retaliation against any person for exercising 
rights under Title IX, whether by participating or refusing to 
participate in a Title IX grievance process. While participation in a 
formal process may be difficult or challenging for a participant, the 
Department believes that sex discrimination in the form of sexual 
harassment is a serious matter that warrants a predictable, fair 
grievance process with strong procedural protections for both parties 
so that reliable determinations regarding responsibility are reached by 
the recipient.
---------------------------------------------------------------------------

    \1288\ Section 106.8(c) (requiring recipients to adopt and 
publish, and send notice of, the recipient's grievance procedures 
for complaints of sex discrimination and grievance process for 
formal complaints of sexual harassment); Sec.  106.45(b)(2) 
(requiring recipients to send written notice to parties involved in 
a formal complaint of sexual harassment notice of the recipient's 
grievance process).
    \1289\ Section 106.45(b)(1)(iii).
---------------------------------------------------------------------------

    While the formality of the Sec.  106.45 grievance process may seem 
``legalistic,'' the process is very different from a civil lawsuit or 
criminal proceeding, such that Title IX grievance processes retain 
their character as administrative proceedings in an educational 
environment, focused on resolving allegations that a respondent 
committed sex discrimination in the form of sexual harassment against a 
complainant. Recipients retain discretion to communicate with their 
students and employees (including undocumented students and others who 
may be wary of the criminal justice system) about the nature of the 
Sec.  106.45 grievance process and the differences between that process 
and the criminal justice system, including for example, that the Sec.  
106.45 grievance process in a postsecondary institution involves cross-
examination by a party's advisor overseen by a trained decision-maker 
with authority to control the live hearing environment to prevent 
abusive questioning and make determinations free from bias or sex 
stereotypes that may constitute evidence of sex discrimination. To make 
it easier for participants to participate in a live hearing, the final 
regulations expressly authorize a recipient, in the recipient's 
discretion, to allow any or all participants to participate in the live 
hearing virtually.
    Changes: The final regulations revise Sec.  106.45(b)(6)(i) to 
expressly allow a recipient to hold the live hearing virtually, with 
technology enabling participants to see and hear each other.
Financial Inequities
    Comments: Many commenters argued that requiring cross-examination 
will lead to sharp inequities between parties who can afford to hire an 
attorney and those who cannot afford an attorney, and the credibility 
of a victim's case will be contingent on the effectiveness of the 
advisor doing the cross-examination rather than on the merits of the 
case. Some commenters asserted that this disparity will disfavor 
complainants because if there is a pending criminal case, a respondent 
likely will have a court-appointed attorney while a victim is likely to 
be left without an attorney. At least one commenter pointed to a study 
showing that only three percent of universities provide victims with 
legal support.\1290\ Commenters asserted that often it is respondents 
who bring lawyers while complainants more often bring non-lawyer 
advocates, so requiring advisors to cross-examine will disadvantage 
complainants.\1291\ Commenters argued that the financial disparity will 
fall hardest on students of color including children of immigrants, 
international students, and first-generation students, as they are more 
likely to come from an economically disadvantaged background and cannot 
afford expensive lawyers. Commenters expressed concern that LGBTQ 
students will be at greater financial disadvantage than other students.
---------------------------------------------------------------------------

    \1290\ Commenters cited: Kristen N. Jozkowski & Jacquelyn D. 
Wiersma[hyphen]Mosley, The Greek System: How Gender Inequality and 
Class Privilege Perpetuate Rape Culture, 66 Family Relations 1 
(2017).
    \1291\ Commenters cited: Sarah Jane Brubaker, Campus-Based 
Sexual Assault Victim Advocacy and Title IX: Revisiting Tensions 
Between Grassroots Activism and the Criminal Justice System, 14 
Feminist Criminology 3 (2018).
---------------------------------------------------------------------------

    Discussion: The Department disagrees that the final regulations 
create inequity between parties based on the financial ability to hire 
a lawyer as a party's advisor of choice. The final regulations clarify 
that a party's advisor may be, but is not required to be, an 
attorney,\1292\ and clarify that where a recipient must provide a party 
with an advisor to conduct cross-examination at a live hearing that 
advisor may be of the recipient's choice, must be provided without fee 
or charge to the party, and may be, but is not required to be, an 
attorney.\1293\ The Department understands that complainants and 
respondents may believe that hiring an attorney as an advisor may be 
beneficial for the party and that parties often will have different 
financial means, but the Sec.  106.45 grievance process is designed to 
permit both parties to navigate the process with assistance from any 
advisor of choice. The Department disagrees that cross-examination at a 
live hearing means that a complainant's case will be contingent on the 
effectiveness of the complainant's advisor. Because cross-examination 
questions and answers, as well all relevant evidence, is evaluated by a 
decision-maker trained to be impartial, the professional qualifications 
of a party's advisor do not determine the outcome. The Department 
wishes to emphasize that the status of any party's advisor (i.e., 
whether a party's advisor is an attorney or not) must not affect the 
recipient's compliance with Sec.  106.45, including the obligation to 
objectively evaluate relevant evidence. Thus, determinations regarding 
responsibility will turn on the merits of each case, and not on the 
professional qualifications of a party's advisor. Regardless of whether 
certain demographic groups are more or less financially disadvantaged 
and thus more or less likely to hire an attorney as an advisor of 
choice, decision-makers in each case must reach determinations based on 
the evidence and not solely based on the skill of a party's advisor in 
conducting cross-examination. The Department also notes that the final 
regulations require a trained investigator to prepare an investigative 
report summarizing relevant evidence, and permit the decision-maker on 
the decision-maker's own initiative to ask questions and elicit 
testimony from parties and witnesses, as part of the recipient's burden 
to reach a determination regarding responsibility based on objective 
evaluation of all relevant evidence including inculpatory and 
exculpatory evidence. Thus, the skill of a party's advisor is not the 
only factor in bringing evidence to light for a decision-maker's 
consideration.
---------------------------------------------------------------------------

    \1292\ Section 106.45(b)(5)(iv).
    \1293\ Section 106.45(b)(6)(i).
---------------------------------------------------------------------------

    The Department disagrees that respondents are advantaged due to 
having a court-appointed lawyer for a concurrent criminal case, because 
a Title IX grievance process is independent from a criminal case and a 
court-appointed lawyer in a criminal

[[Page 30333]]

matter would not be court-appointed to represent the criminal defendant 
in a recipient's Title IX grievance process.
    The Department disagrees that LGBTQ students are necessarily at a 
greater financial disadvantage than other students; however, the final 
regulations ensure that all students, including LGBTQ students, have an 
equal opportunity to select an advisor of choice.
    Changes: The final regulations revise Sec.  106.45(b)(6)(i) to 
specify that where a recipient must provide a party with an advisor to 
conduct cross-examination at a live hearing, that advisor may be of the 
recipient's choice, must be provided without fee or charge to the 
party, and may be, but is not required to be, an attorney.
Changes the Nature of the Grievance Process
    Comments: Some commenters asserted that cross-examination shifts 
the burden of adjudication from the recipient onto the parties. Many 
commenters asserted that extensive training will be necessary for 
hearing panelists and advisors conducting cross-examination, and 
recipients will not have the resources, time, and money to make cross-
examination workable, leading to chaos.\1294\
---------------------------------------------------------------------------

    \1294\ Commenters cited: Naomi Mann, Taming Title IX Tensions, 
20 Univ. of Pa. J. of Constitutional L. 631, 657 (2018), for the 
propositions that requiring mandatory counsel would ``complicate the 
proceedings by importing outside legal rules based on adversarial 
systems'' such that institutions would need to ``learn to navigate 
and utilize these foreign systems'' and that the ``use of counsel 
would shift the burden of investigating and proving allegations from 
the educational institution to the students[.]''
---------------------------------------------------------------------------

    Many commenters argued that requiring adversarial cross-examination 
will fundamentally change the nature of educational disciplinary 
proceedings, converting them into quasi-legal trials. Commenters argued 
that requiring postsecondary institutions to hold live hearings with 
cross-examination deprives institutions of the freedom to structure 
their processes according to their individual needs, resources, and 
educational communities and compels institutions to abandon alternative 
models they have carefully developed over many years, constituting an 
overly prescriptive mandate that fails to defer to school officials' 
expertise in developing adjudication models that are fair, humane, in 
alignment with State and Federal laws, and address a recipient's unique 
circumstances. Other commenters argued that requiring live hearings 
with cross-examination fails to recognize Federal court admonitions 
that universities are ill-equipped to handle the formalities and 
procedural complexities common to criminal trials, that education is a 
university's first priority with adjudication of student disputes ``at 
best, a distant second,'' \1295\ and due process does not require a 
university to ``transform its classrooms into courtrooms.'' \1296\
---------------------------------------------------------------------------

    \1295\ Commenters cited: Doe v. Univ. of Cincinnati, 872 F.3d 
393, 400 (6th Cir. 2017).
    \1296\ Commenters cited: Id; Doe v. Cummins, 662 F. App'x 437, 
448-49 (6th Cir. 2016); Doe v. Univ. of Ky., 860 F.3d 365, 370 (6th 
Cir. 2017); Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 925-
26 (6th Cir. 1988).
---------------------------------------------------------------------------

    One commenter argued that the cross-examination requirement could 
violate court-issued restraining orders prohibiting contact between the 
parties.
    Discussion: The final regulations ensure that the burden of 
gathering evidence, and the burden of proof, remain on the recipient, 
not on either party.\1297\ While the parties have strong procedural 
rights to participate and advocate for their own position throughout 
the Sec.  106.45 grievance process, the right to meaningfully 
participate does not shift the burden away from the recipient or onto 
the parties. The Department notes that while decision-makers must be 
trained to serve impartially and avoid prejudgment of the facts at 
issue, bias, and conflicts of interest, the final regulations do not 
require training for advisors of choice. This is because the recipient 
is responsible for reaching an accurate determination regarding 
responsibility while remaining impartial, yet a party's ability to rely 
on assistance from an advisor should not be limited by imposing 
training requirements on advisors, who by definition need not be 
impartial because their function is to assist one particular party. 
While the Department understands that recipients will need to dedicate 
resources to train Title IX personnel, including decision-makers 
overseeing live hearings, the benefits of a fair grievance process for 
resolving formal complaints of sexual harassment under Title IX 
outweigh the costs of training personnel to implement that fair 
grievance process. For similar reasons, the benefits of a consistent, 
predictable grievance process outweigh commenters' concerns that the 
Sec.  106.45 grievance process leaves too little flexibility for 
recipients to craft their own processes. As noted elsewhere in this 
preamble, when resolving factual allegations of sexual harassment under 
Title IX, recipients are not simply applying a recipient's own code of 
conduct; rather, recipients are reaching determinations affecting 
rights of students and employees under a Federal civil rights law. Far 
from turning classrooms into courtrooms, the Sec.  106.45 grievance 
process incorporates procedures the Department has determined are most 
needed in the Title IX sexual harassment context to result in reliable 
outcomes viewed as legitimate by the parties and the public. Cross-
examination in the postsecondary institution context is widely viewed 
as a critical part of a fair process, and as such giving both parties 
the right to cross-examination improves the reality and perception that 
recipients' Title IX grievance processes are fair and legitimate.\1298\ 
Each aspect of the grievance process, while rooted in principles of due 
process, is adapted for implementation by recipients in the context of 
education programs or activities, thereby acknowledging that schools, 
colleges, and universities exist first and foremost to educate, and not 
to mirror courts of law. Thus, for the benefit of all students 
including those who are wary of the criminal justice system, a Title IX 
grievance process remains a separate, distinct forum.
---------------------------------------------------------------------------

    \1297\ Section 106.45(b)(5)(i).
    \1298\ See H. Hunter Bruton, Cross-Examination, College Sexual-
Assault Adjudications, and the Opportunity for Tuning up the 
Greatest Legal Engine Ever Invented, 27 Cornell J. of L. & Pub. 
Pol'y 145, 172 (2017) (``[O]ur judicial system and constitutional 
law jurisprudence have selected cross-examination as the best legal 
innovation for approximating perfect procedural parity. The ability 
of the accused to participate in the proceedings against him 
prevents the accused from becoming merely the subject of a trial 
where inquisitors determine his fate. Similarly, endeavoring for 
procedural parity between adversaries increases institutional 
legitimacy in the eyes of the accused and society, which some 
maintain is a value in and of itself.'') (internal citations 
omitted); id. at 173 (cross-examination contributes to both the 
fairness and accuracy of a hearing because of its ``ability to 
expose errors and contextualize evidence'').
---------------------------------------------------------------------------

    The Department disagrees that the final regulations require 
recipients to violate court-issued restraining orders. Section 
106.45(b)(6)(i) requires recipients to conduct the entire live hearing 
(not only cross-examination) with the parties located in separate 
rooms, upon any party's request, and cross-examination must be 
conducted by a party's advisor and never by the party personally. 
Further, the final regulations revise Sec.  106.45(b)(6)(i) to 
expressly allow a recipient to hold the live hearing virtually 
(including for witness participation), with technology enabling 
participants to see and hear each other. Thus, where a court-issued 
restraining order prohibits contact between the parties, the final 
regulations do not require any in-person proximity between the parties, 
or any direct communication between the

[[Page 30334]]

parties (even virtually, using technology).
    Changes: None.
Section 106.45(b)(6)(ii) Should Apply to Postsecondary Institutions
    Comments: Several commenters argued that because the Department 
permits written questioning in elementary and secondary schools, there 
is no reason to believe that the same process would not be equally 
effective in postsecondary institutions, especially when students of 
the same age could be subjected to the two different processes (e.g., a 
17 year old high school student, versus a 17 year old college student). 
One commenter argued that cross-examination is either important in a 
quest for truth or it is not, and that if elementary and secondary 
schools have discretion to decide whether cross-examination is 
beneficial, postsecondary institutions should have the same discretion. 
One commenter stated that community colleges often enroll high school 
students in dual enrollment programs, and under the proposed rules a 
high school student would face a different process depending on whether 
a sexual assault occurred at their high school or at the community 
college where they are taking classes.
    Commenters argued that the same ``sensitivities associated with age 
and developmental ability'' relied on by the Department to justify not 
requiring live hearings and cross-examination in elementary and 
secondary schools \1299\ remain a consideration with young adults in 
college, especially in cases about personal, intimate details of a 
sexual nature. Commenters argued that modern neuroscience has 
established that adolescence, in terms of brain development, extends 
well beyond the teenage years, and the prefrontal cortex--the part of 
the brain primarily responsible for executive functioning--typically 
does not fully develop until the early to mid-twenties,\1300\ when many 
students have already graduated from college and thus until 
approximately age 25 students do not function as rational adults and 
rely heavily on their emotions when making decisions.\1301\
---------------------------------------------------------------------------

    \1299\ Commenters cited: 83 FR 61476.
    \1300\ Commenters cited: Heidi Ledford, Who Exactly Counts as an 
Adolescent?, Nature (Feb. 21, 2018); Mariam Arain et al., Maturation 
of the Adolescent Brain, 9 Neuropsychiatric Disease & Treatment 449, 
451 (2013); Lucy Wallis, Is 25 the New Cut-Off Point for Adulthood?, 
BBC.com (September 23, 2013).
    \1301\ Commenters cited: University of Rochester Medical Center, 
Understanding the Teen Brain, https://www.urmc.rochester.edu/encyclopedia/content.aspx?ContentTypeID=1&ContentID=3051.
---------------------------------------------------------------------------

    Commenters argued that when OCR conducts an investigation into 
violations of Title IX, schools have no right to question witnesses (or 
even to know who the witnesses are), and because the Department 
nevertheless presumably believes the procedures set out in its OCR Case 
Processing Manual are fair and produce reliable results there is no 
reason why a recipient needs to include cross-examination of parties 
and witnesses in a sexual misconduct case in order to have a fair 
process that reaches reliable results.
    Commenters noted that Title IX and student conduct experts oppose 
the proposed rules' cross-examination requirement and instead favor 
submission of written questions or asking questions posed by a neutral 
school official, referencing publications from organizations such as 
the Association of Title IX Administrators (ATIXA), the Association for 
Student Conduct Administration (ASCA), and the American Bar Association 
(ABA) Criminal Justice Section. One commenter described a survey the 
commenter distributed regarding the proposed rules and stated that out 
of the 597 people surveyed, 81 percent disapproved of the proposed 
rules' cross-examination requirement. Another commenter pointed to a 
different public opinion poll that indicated that 61 percent of those 
surveyed agreed that students accused of sexual assault on college 
campuses should have the right to cross-examine their accuser.
    One commenter suggested that the final regulations should require 
the recipient to provide a neutral person to conduct cross-examination 
of parties and witnesses. One commenter asked whether parties' 
submission of questions to be asked through a hearing board chair 
fulfills the proposed rules' cross-examination requirement; whether 
students may choose to conduct the cross-examination themselves instead 
of through an advisor; and whether a Title IX Coordinator who filed a 
formal complaint must then be cross-examined at the hearing.
    Discussion: The Department appreciates commenters' support for 
Sec.  106.45(b)(6)(ii) making hearings optional and requiring 
submission of written questions by parties directed to other parties 
and witnesses, in the elementary and secondary school context, and 
understands commenters' arguments that the same procedures should apply 
in postsecondary institutions. The Department acknowledges that there 
is no clear line between the ages of students in elementary and 
secondary schools versus in postsecondary institutions (e.g., a 17 year 
old might be in high school, or might be in college, or might be dually 
enrolled). As discussed in the ``Directed Questions'' section of this 
preamble, the Department appreciates commenters' arguments for and 
against differences in provisions based on the age of a student versus 
differentiating between elementary and secondary schools on the one 
hand, and postsecondary institutions on the other hand. The Department 
believes that it is desirable, to the extent feasible, to achieve 
consistency in application of Title IX rights across all recipients, 
because all students participating in education programs or activities 
regardless of age deserve the protections of Title IX's non-
discrimination mandate. The Department also believes that with respect 
to the unique circumstances presented by sex discrimination in the form 
of sexual harassment, a consistent, predictable framework can be 
prescribed while also adapting certain procedures for elementary and 
secondary schools so that the general framework is more reasonable and 
effective for students in elementary and secondary schools, who tend to 
be younger than the average college student. Thus, for example, the 
final regulations revise the definition of actual knowledge to include 
notice of sexual harassment to any employee in the elementary and 
secondary school context,\1302\ and revise Sec.  106.45(b)(6)(ii) to 
more clearly state that elementary and secondary school recipients do 
not need to use a hearing model to adjudicate formal complaints of 
sexual harassment.
---------------------------------------------------------------------------

    \1302\ Section 106.30 (defining ``Actual knowledge'').
---------------------------------------------------------------------------

    Similarly, with respect to cross-examination, the Department has 
concluded that the approach utilized for postsecondary institutions, 
whereby party advisors conduct cross-examination during a live hearing, 
is not necessarily effective in elementary and secondary schools where 
most students tend to be under the age of majority and where 
(especially for very young students) parents or guardians would likely 
exercise a party's rights.\1303\ Therefore, for example, a parent 
writing out answers to questions about a sexual harassment incident on 
behalf of a second-grade student is likely to be a more reasonable 
procedure than

[[Page 30335]]

expecting the second-grader to answer questions in real-time during a 
hearing. Conversely, in the postsecondary institution context where 
students generally are young adults, such a party can reasonably be 
expected to answer questions during a live hearing and to benefit from 
the procedural right to question the other party (through the asking 
party's advisor). The Department's cross-examination requirement in 
postsecondary institutions is based on a practical determination that 
cross-examination is a valuable procedural tool benefiting both 
parties, whereas in the elementary and secondary school context the 
parties are likely to be under the age of majority and would not 
necessarily benefit from cross-examination as a procedural device. The 
Department notes that current regulations and guidance do not require 
consistency between the procedures applied in a high school, and in a 
college, such that a 17 year old in high school, or in college, would 
face potentially different grievance procedures in these situations; 
the final regulations do not increase that discrepancy.
---------------------------------------------------------------------------

    \1303\ We have added Sec.  106.6(g) to expressly acknowledge the 
legal rights of parents and guardians to act on behalf of 
complainants, respondents, and other individuals with respect to 
exercise of Title IX rights, including but not limited to the filing 
of a formal complaint. The legal right of a parent or guardian to 
act on a party's behalf extends throughout the grievance process.
---------------------------------------------------------------------------

    The Department acknowledges the research pointed to by commenters 
indicating that the brains of young adults are still developing until a 
person is in their early or even mid-twenties. However, the laws of 
nearly every State recognize a person age 18 or older as capable of 
legally acting on the person's own behalf \1304\ (for example, by 
entering into binding contracts), and the Department maintains that 
individuals developmentally capable enough to enroll in college are 
also capable enough to make decisions about and participate in a 
grievance process designed to advance the person's rights.\1305\
---------------------------------------------------------------------------

    \1304\ E.g., LawServer.com, ``Age of Majority,'' https://www.lawserver.com/law/articles/age-of-majority (``The age of 
majority is the legal age established by state law at which a person 
is no longer considered a child. In most states, a person has 
reached the age of majority at 18. Two states (Alabama and Nebraska) 
set the age of majority to be 19 and one, Mississippi, sets the age 
of majority at 21.''). The legal voting age in the U.S. is age 18. 
USA.Gov, ``Voter Registration Age Requirements By State,'' https://www.usa.gov/voter-registration-age-requirements. The age of consent 
to sexual activity varies across States, from age 16 to age 18. See 
https://www.ageofconsent.net/states. The ages of licensing 
privileges varies across States, for example with respect to 
driver's licenses where the age for an unrestricted license ranges 
from age 16 to age 18. Very Well Family, ``Driving Age By State,'' 
https://www.verywellfamily.com/driving-age-by-state-2611172#driving-age-by-state. Similarly, regarding marriage licenses, the age for 
marrying without parental consent is age 18 in all states except 
Mississippi and Nebraska, where the age is 19, and 21, respectively. 
FindLaw.com, ``State-By-State Marriage `Age Of Consent' Laws,'' 
https://family.findlaw.com/marriage/state-by-state-marriage-age-of-consent-laws.html.
    \1305\ For example, when a student is 18 years of age or attends 
an institution of postsecondary education, the rights accorded to, 
and consent required of, parents under FERPA and its implementing 
regulations transfer from the parents to the student. 20 U.S.C. 
1232g(d); 34 CFR 99.3; 34 CFR 99.5(a)(1).
---------------------------------------------------------------------------

    The Department reiterates that in recognition that young adults may 
find navigating a grievance process challenging, the final regulations 
preserve each party's right to select an advisor of choice to assist 
the party. The Department's concern for each party's ability to receive 
emotional and personal support though a grievance process is also 
discussed in this preamble under Sec.  106.45(b)(5)(iii), providing 
that a recipient cannot restrict a party's ability to discuss the 
allegations; this applies to a young adult's desire to discuss the 
allegations with a parent, friend, or advocate to receive emotional, 
practical, or strategic advice and support, as well as the right to 
discuss the allegations with a professional (such as a lawyer). The 
Department believes that a young adult in college is capable of 
participating in a grievance process, including answering questions at 
a live hearing, even if the young adult's frontal cortex is still 
developing, and the Department respects the legal and policy 
determinations of the vast majority of States that have granted legal 
rights and responsibilities to young adults age 18 or older. In 
recognition that sexual misconduct matters involve sensitive, often 
traumatic issues for victims of any age, the final regulations ensure 
that any complainant regardless of age can insist that cross-
examination (and the entire live hearing) occur with the parties in 
separate rooms, and revise Sec.  106.45(b)(6)(i) further to grant 
recipients the discretion to hold the entire live hearing virtually 
with use of technology so that witnesses also may appear virtually.
    The Department appreciates commenters' observations that the 
Department's OCR investigations utilize procedures that do not include 
allowing a recipient under investigation for Title IX violations to 
cross-examine witnesses interviewed by OCR. For the reasons discussed 
in the ``Role of Due Process in the Grievance Process'' section of this 
preamble, the Department has determined that the procedures reflected 
in Sec.  106.45 represent those procedures most likely to result in 
fair, reliable outcomes in the particular context of a recipient's need 
to accurately resolve sexual harassment allegations in order to provide 
remedies to sexual harassment victims--a context and purpose that 
differs from that of the Department's investigation into a recipient's 
compliance with Title IX.
    The Department acknowledges that various experts in Title IX 
matters support a process of posing questions through a hearing officer 
or neutral school official, and that public opinion surveys may show 
various levels of support or opposition to the idea of cross-
examination in college disciplinary proceedings. However, for the 
reasons discussed above, the Department has determined that in the 
postsecondary institution context, the tool of cross-examination 
benefits both parties and contributes to the truth-seeking purpose of 
the Sec.  106.45 grievance process. The Department appreciates 
commenters' proposed revision that recipients simply be directed to 
give the parties opportunity to challenge credibility and require the 
decision-maker to ``reasonably assess credibility.'' The Department 
believes that the final regulations accomplish that directive, by 
giving the parties equal opportunity to challenge credibility (through 
written questions for non-postsecondary institutions, and through 
cross-examination for postsecondary institutions) and by obligating the 
decision-maker to reach a determination regarding responsibility by 
objectively evaluating all relevant evidence. The Department 
appreciates a commenter's suggestion that recipients be required to 
provide a neutral person to conduct cross-examination on behalf of both 
parties. However, for the reasons discussed above, the Department does 
not believe that the benefits of adversarial cross-examination can be 
achieved when conducted by a person ostensibly designated as a 
``neutral'' official. This is because the function of cross-examination 
is precisely not to be neutral but rather to point out in front of the 
neutral decision-maker each party's unique perspective about relevant 
evidence and desire regarding the outcome of the case.
    In response to a commenter's question as to whether requiring 
written submission of questions at a live hearing would fulfill the 
cross-examination requirement described in Sec.  106.45(b)(6)(i), the 
final regulations revise that provision to add the phrase ``directly, 
orally, and in real time'' to describe how cross-examination must be 
conducted, to clarify that submission of written questions, even during 
a live hearing, is not compliant with Sec.  106.45(b)(6)(i). In answer 
to a commenter's further question, the Department has revised Sec.  
106.45(b)(6)(i) to expressly preclude a party from

[[Page 30336]]

conducting cross-examination personally; the only method for conducting 
cross-examination is by a party's advisor.
    In response to a commenter's question about whether a Title IX 
Coordinator must be cross-examined in situations where the Title IX 
Coordinator filed the formal complaint that triggered the grievance 
process, the final regulations revise Sec.  106.30 defining ``formal 
complaint'' to clarify that where a formal complaint is signed by a 
Title IX Coordinator, the Title IX Coordinator does not become a party 
and must comply with all provisions in Sec.  106.45, including the 
training requirement and the avoidance of bias and conflict of 
interest. Thus, where the Title IX Coordinator signed the formal 
complaint that initiated the grievance process, neither Sec.  
106.45(b)(6)(i) nor other provisions in Sec.  106.45 treat the Title IX 
Coordinator as a party. Even where the Title IX Coordinator testifies 
as a witness, the Title IX Coordinator is still expected to serve 
impartially without prejudgment of the facts at issue. The Department 
notes that the recipient would not be obligated to provide the Title IX 
Coordinator with an advisor because that obligation attaches only where 
a party does not have an advisor of choice at a hearing.
    Changes: The final regulations add to Sec.  106.45(b)(6)(i) that 
cross-examination at a live hearing must be conducted directly, orally, 
and in real time by the party's advisor of choice, notwithstanding the 
discretion paragraph (b)(5)(iv) to otherwise restrict the extent to 
which advisors may participate in the proceedings. The final 
regulations further revise Sec.  106.45(b)(6)(i) to provide that 
recipients may hold the live hearing virtually, with technology 
enabling participants to see and hear each other. The final regulations 
revise the definition of ``formal complaint'' in Sec.  106.30 to 
clarify that even where a Title IX Coordinator signs a formal 
complaint, this does not make the Title IX Coordinator a ``party'' in 
the grievance process.
False Accusations Occur Infrequently
    Commenters: Many commenters argued that because false allegations 
occur infrequently,\1306\ it is unnecessary to give the accused extra 
protections like cross-examination; commenters urged the Department to 
replace cross-examination with submission of written questions, or 
asking questions through a neutral school official, to better protect 
survivors instead of protecting a minority of falsely-accused students. 
Commenters argued that an adequate regulatory provision would simply 
say ``The recipient's grievance procedure must include an opportunity 
for parties to challenge the credibility of witnesses and the other 
party. The decision-maker must reasonably assess credibility of 
witnesses and parties'' thus leaving recipients discretion to decide 
how to meet those requirements.
---------------------------------------------------------------------------

    \1306\ Commenters cited to information regarding infrequency of 
false allegations such as the data noted in the ``False 
Allegations'' subsection of the ``General Support and Opposition'' 
section of this preamble.
---------------------------------------------------------------------------

    Discussion: The Department disagrees that cross-examination in the 
Title IX grievance process is intended only to protect respondents 
against false allegations; rather, as discussed above, cross-
examination in the Sec.  106.45 grievance process is intended to give 
both parties equal opportunity to meaningfully challenge the 
plausibility, reliability, credibility, and consistency of the other 
party and witnesses so that the outcome of each individual case is more 
likely to be factually accurate, reducing the likelihood of either type 
of erroneous outcome (i.e., inaccurately finding a respondent to be 
responsible, or inaccurately finding a respondent to be non-
responsible). For that reason, we do not believe the alternate 
regulatory language suggested by the commenters is sufficient. Despite 
commenters' assertions, the Department has not designed these final 
regulations to specifically address false allegations, or in response 
to any preconceived notions about the frequency of false allegations.
    Changes: None.
Excluding Cross-Examination Questions
    Comments: Commenters noted that the proposed regulations impose a 
duty on recipients to objectively evaluate relevant evidence, and deem 
questions about a complainant's prior sexual behavior to be irrelevant 
(with two exceptions), but commenters argued that the proposed rules 
failed to clarify whether recipients have discretion to exclude 
relevant cross-examination questions on other public policy grounds on 
which rules of evidence in civil and criminal matters often exclude 
evidence, for example, party statements made during mediation 
discussions, out of court statements that constitute hearsay, evidence 
of a party's general character or prior bad acts, or evidence that is 
cumulative, duplicative, or unduly prejudicial. Commenters argued that 
the final regulations should either identify admissibility rules in 
addition to relevance, or clarify whether decision-makers have the 
authority to exclude relevant evidence for these kinds of policy 
reasons (or because State law requires exclusion of types of evidence). 
Commenters wondered what standards the Department would apply to review 
whether the recipient's evidentiary rules comply with these final 
regulations, if recipients do have authority to promulgate rules 
excluding certain types of evidence. Commenters argued that if 
relevance is the only allowable admissibility rule then hearings will 
become even more protracted and unwieldy and decision-makers should 
thus have discretion to identify appropriate grounds, other than 
relevance, for excluding evidence.
    Discussion: Commenters correctly observed that the proposed rules 
impose a duty on recipients to objectively evaluate all relevant 
evidence including inculpatory and exculpatory evidence.\1307\ The 
final regulations revise the language in Sec.  106.45(b)(6)(i)-(ii) to 
state more clearly that (subject to the two exceptions in those 
provisions \1308\) questions and evidence about a complainant's prior 
sexual behavior or predisposition are not relevant, bar the use of 
information protected by any legally recognized privilege,\1309\ and 
provide that a recipient cannot use a party's treatment records without 
the party's voluntary, written consent.\1310\ (Pursuant to Sec.  
106.45(b)(5)(i), if the party is not an ``eligible student,'' as 
defined in 34 CFR 99.3, then the recipient must obtain the voluntary, 
written consent of a ``parent,'' as defined in 34 CFR 99.3.) The 
Department appreciates the opportunity to clarify here that the final 
regulations do not allow a recipient to impose rules of evidence that 
result in

[[Page 30337]]

exclusion of relevant evidence; the decision-maker must consider 
relevant evidence and must not consider irrelevant evidence.
---------------------------------------------------------------------------

    \1307\ Section 106.45(b)(1)(ii).
    \1308\ As discussed below, the rape shield language in Sec.  
106.45(b)(6)(i)-(ii) bars questions or evidence about a 
complainant's sexual predisposition (with no exceptions) and about a 
complainant's prior sexual behavior subject to two exceptions: If 
offered to prove that someone other than the respondent committed 
the alleged sexual harassment, or if the question or evidence 
concerns sexual behavior between the complainant and the respondent 
and is offered to prove consent.
    \1309\ Section 106.45(b)(1)(x) (protecting any legally 
recognized privileged information from disclosure or use during a 
grievance process). This provision would therefore prohibit cross-
examination (or other) questions that seek disclosure of, for 
example, information protected by attorney-client privilege.
    \1310\ Section 106.45(b)(5)(i) (stating that the recipient 
cannot access, consider, disclose, or otherwise use a party's 
records that are made or maintained by a physician, psychiatrist, 
psychologist, or other recognized professional or paraprofessional 
in connection with the provision of treatment to the party, unless 
the recipient obtains that party's voluntary, written consent to do 
so for a grievance process. If the party is not an ``eligible 
student,'' as defined in 34 CFR 99.3 (i.e., FERPA regulations), then 
the recipient must obtain the voluntary, written consent of a 
``parent,'' as defined in 34 CFR 99.3.).
---------------------------------------------------------------------------

    The Department appreciates commenters' concerns that comprehensive 
rules of evidence adopted in civil and criminal courts throughout the 
U.S. legal system apply detailed, complex rules to certain types of 
evidence resulting in exclusion of evidence that is otherwise relevant 
to further certain public policy values (e.g., exclusion of statements 
made during settlement negotiations, exclusion of hearsay subject to 
specifically-defined exceptions, exclusion of character or prior bad 
act evidence subject to certain exceptions, exclusion of relevant 
evidence when its probative value is substantially outweighed by risk 
of prejudice, and other admissibility rules). The Department desires to 
prescribe a grievance process adapted for an educational environment 
rather than a courtroom, and declines to impose a comprehensive, 
detailed set of evidentiary rules for resolution of contested 
allegations of sexual harassment under Title IX. Rather, the Department 
has carefully considered the procedures most needed to result in fair, 
accurate, and legitimate outcomes in Title IX grievance processes. To 
that end, the Department has determined that recipients must consider 
relevant evidence with the following conditions: A complainant's prior 
sexual behavior is irrelevant (unless questions or evidence about prior 
sexual behavior meet one of two exceptions, as noted above); 
information protected by any legally recognized privilege cannot be 
used; no party's treatment records may be used without that party's 
voluntary, written consent; \1311\ and statements not subject to cross-
examination in postsecondary institutions cannot be relied on by the 
decision-maker. The Department notes that where evidence is duplicative 
of other evidence, a recipient may deem the evidence not relevant.
---------------------------------------------------------------------------

    \1311\ Pursuant to Sec.  106.45(b)(5)(i), if the party is not an 
``eligible student,'' as defined in 34 CFR 99.3 (i.e., FERPA 
regulations), then the recipient must obtain the voluntary, written 
consent of a ``parent,'' as defined in 34 CFR 99.3.
---------------------------------------------------------------------------

    The Department does not believe that requiring recipients to 
evaluate relevant evidence results in unfairness or inaccuracy. Unlike 
court trials where often the trier of fact consists of a jury of 
laypersons untrained in evidentiary matters, the final regulations 
require decision-makers to be trained in how to conduct a grievance 
process and how to serve impartially, and specifically including 
training in how to determine what questions and evidence are relevant. 
The fact that decision-makers in a Title IX grievance process must be 
trained to perform that role means that the same well-trained decision-
maker will determine the weight or credibility to be given to each 
piece of evidence, and the training required under Sec.  
106.45(b)(1)(iii) allows recipients flexibility to include substantive 
training about how to assign weight or credibility to certain types or 
categories of evidence, so long as any such training promotes 
impartiality and treats complainants and respondents equally. Thus, for 
example, where a cross-examination question or piece of evidence is 
relevant, but concerns a party's character or prior bad acts, under the 
final regulations the decision-maker cannot exclude or refuse to 
consider the relevant evidence, but may proceed to objectively evaluate 
that relevant evidence by analyzing whether that evidence warrants a 
high or low level of weight or credibility, so long as the decision-
maker's evaluation treats both parties equally \1312\ by not, for 
instance, automatically assigning higher weight to exculpatory 
character evidence than to inculpatory character evidence. While the 
Department will enforce these final regulations to ensure that 
recipients comply with the Sec.  106.45 grievance process, including 
accurately determining whether evidence is relevant, the Department 
notes that Sec.  106.44(b)(2) assures recipients that, when enforcing 
these final regulations, the Department will refrain from second 
guessing a recipient's determination regarding responsibility based 
solely on whether the Department would have weighed the evidence 
differently. That provision therefore reinforces the approach to the 
grievance process throughout Sec.  106.45 under which a recipient must 
objectively evaluate all relevant evidence (inculpatory and 
exculpatory) but retains discretion, to which the Department will 
defer, with respect to how persuasive a decision-maker finds particular 
evidence to be.
---------------------------------------------------------------------------

    \1312\ The final regulations revise the introductory sentence of 
Sec.  106.45(b) to provide: ``Any provisions, rules, or practices 
other than those required by Sec.  106.45 that a recipient adopts as 
part of its grievance process for handling formal complaints of 
sexual harassment as defined in Sec.  106.30, must apply equally to 
both parties.''
---------------------------------------------------------------------------

    Changes: The final regulations revise Sec.  106.45(b)(6)(i)-(ii) to 
clarify questions and evidence about the complainant's sexual 
predisposition is never relevant and about a complainant's prior sexual 
behavior are not relevant with two exceptions: Where the question or 
evidence about sexual behavior is offered to prove that someone other 
than the respondent committed the alleged misconduct, or where the 
question or evidence relates to sexual behavior between the complainant 
and respondent and is offered to prove consent. The final regulations 
add Sec.  106.45(b)(1)(x) to prevent disclosure or use during a 
grievance process of information protected by a legally recognized 
privilege. The final regulations revise Sec.  106.45(b)(5)(i) to bar a 
recipient from using a party's treatment records without the party's 
voluntary, written consent. The final regulations also revise the 
introductory sentence of Sec.  106.45(b) to provide that any 
provisions, rules, or practices other than those required by Sec.  
106.45 that a recipient adopts as part of its grievance process must 
apply equally to both parties.
Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must 
Provide Live Hearing With Cross-Examination
Self-Representation Versus Cross-Examination Conducted by Advisors
    Comments: Some commenters opposed Sec.  106.45(b)(6)(i) because 
that provision restricts cross-examination to being conducted by a 
party's advisor, foreclosing the option for a respondent (or 
complainant) to be self-represented and conduct cross-examination 
personally. Commenters argued that the right of self-representation has 
a long history under U.S. constitutional law, and that the Supreme 
Court has held that States cannot force an attorney on an unwilling 
criminal defendant,\1313\ that the Sixth Amendment's right to confront 
witnesses applies to the accused, not to lawyers,\1314\ and that 
representing oneself affirms the dignity and autonomy of the 
accused.\1315\
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    \1313\ Commenters cited: Faretta v. Cal., 422 U.S. 806, 816 
(1974) (the right to represent oneself stems in part from the 
premise that the defense may be made easier if the accused is 
permitted to bypass lawyers and conduct the trial himself); id. at 
834 (even if a lawyer could more aptly represent an accused, the 
advantage of a lawyer's training and experience can be realized only 
with the accused's cooperation).
    \1314\ Commenters cited: id. at 819-20.
    \1315\ Commenters cited: McKaskle v. Wiggins, 465 U.S. 168, 176-
77 (1984).
---------------------------------------------------------------------------

    Commenters asserted that the final regulations should be modified 
so that ``in the event that the advisor assigned by a recipient is 
unacceptable to the respondent, the respondent must have the right to 
self-represent in all cross-examinations.''
    Some commenters suggested that this provision should be modified to 
allow students to confer with their advisors and for advisors to 
actively represent the student during any part of a live hearing. At 
least one commenter argued

[[Page 30338]]

that students should be allowed to have a confidential advisor, or 
confidential advocate, allowed to accompany the party to the hearing, 
in addition to an advisor of choice or assigned advisor for cross-
examination purposes.
    Some commenters supported the proposed rules' requirement that if a 
party does not have an advisor of choice at a hearing, the recipient 
would be required to provide an advisor ``aligned with that party'' to 
ensure that each party's interest is represented during the hearing. At 
least one commenter urged the Department to require that such an 
appointed advisor be ``genuinely aligned'' with the party, because 
recipient employees appointed as advisors may be loyal to the 
institution and not to the party, or may hold ideological beliefs that 
align with complainants or respondents.
    Many commenters opposed the provision in Sec.  106.45(b)(6)(i) that 
requires recipients to provide a party with an advisor to conduct 
cross-examination if a party does not have an advisor at a live 
hearing. Commenters particularly objected to the language in the NPRM 
requiring a recipient-provided advisor to be ``aligned with that 
party'' because: Recipients will find it impossible to ensure parity 
between the parties; recipients will face additional litigation risks 
stemming from the recipient's provision of advisors for parties (such 
as claims by parties that the recipient provided an incompetent 
advisor, an advisor not sufficiently ``aligned with the party,'' or 
ineffective assistance of counsel); the NPRM provided no guidance about 
how a recipient should determine whether an advisor is ``aligned with'' 
a party; especially in smaller institutions, a recipient's obligation 
to appoint an advisor who must conduct cross-examination adverse to 
another student or employee presents potential conflicts of interest 
(particularly because appointed advisors are likely to be 
administrators, professors, or other recipient staff who interact with 
both parties outside the grievance process) and pitting a recipient's 
employee against a recipient's student is antithetical to recipients' 
educational mission.\1316\ Commenters argued that requiring recipients 
to appoint party-aligned advisors contradicts the expectation that the 
recipient is neutral and impartial toward the parties, and that 
educational disciplinary processes are not about building a case for or 
against a party but simply gathering as much information as possible; 
these commenters stated that Sec.  106.45(b)(6)(i) abandons 
institutions' processes that are ``built to assemble the voices and 
experiences of the parties involved, not the voices of third-party 
advisors.''
---------------------------------------------------------------------------

    \1316\ Commenters cited studies for the proposition that 
frequent, positive interactions with faculty and staff not only 
strongly influence academic achievement and scholastic self-concept, 
but motivation, institutional retention, and persistence towards a 
degree as well, particularly for students of color; commenters 
cited, e.g., Meera Komarraju et al., Role of Student-Faculty 
Interactions in Developing College Students' Academic Self-Concept, 
Motivation, and Achievement, 51 Journal of Coll. Student Development 
3 (2010). Commenters cited studies for the proposition that negative 
interactions between faculty and students significantly damage 
students' self-esteem, academic performance, mental health, and 
ultimately, retention and persistence; commenters cited, e.g., Kevin 
A. Nadal et al., The Adverse Impact of Racial Microaggressions on 
College Students' Self-esteem, 55 Journal of Coll. Student 
Development 5 (2014).
---------------------------------------------------------------------------

    Commenters asserted that many recipient employees will not wish to 
be viewed as providing support or advocacy to one party over another, 
including in instances where the advisor believes the party to whom the 
advisor is assigned is lying. Commenters asserted that currently, many 
recipients provide advisors to parties but such advisors are neutral, 
advising a party about the grievance process itself but not advocating 
on behalf of the party or serving as a party's proxy, and commenters 
argued that instead of requiring assigned advisors to be ``aligned 
with'' the party the provision should require that assigned advisors be 
knowledgeable about university processes and able to give neutral 
advice to the party. Other commenters asserted that this provision 
should require recipients to give parties advice about selecting 
advisors but not require recipients to provide advisors to parties. 
Commenters argued that the final regulations should state that a 
party's advisor cannot be a person who exercises any administrative or 
academic authority over the other party. Commenters asserted that party 
advisors should be required to agree to a code of conduct prohibiting 
hostile, abusive, or irrelevant questioning.
    Some commenters argued that it is vital that both parties have 
advisors of equal competency during the hearing and thus requested that 
the final regulations require recipients to appoint attorneys for both 
parties, or wherever one party has hired an attorney,\1317\ or upon the 
request of a party. Commenters suggested that this provision be 
modified to allow any party without an advisor of choice at a hearing 
to select an advisor of the party's choice from a panel of advisors 
whom the recipient has trained to be familiar with the recipient's 
grievance process.
---------------------------------------------------------------------------

    \1317\ Commenters cited: Curtis J. Berger & Vivian Berger, 
Academic Discipline: A Guide to Fair Process for the University 
Student, 99 Colum. L. Rev. 289, 341 (1999) (discussing the right to 
counsel in cases involving academic wrongdoing).
---------------------------------------------------------------------------

    Other commenters expressed concern that the requirement for 
advisors to conduct cross-examination and for recipients to provide 
advisors for parties who do not have one risks a de facto ``arms race'' 
whereby if a respondent hires an attorney, recipients will feel 
pressured to hire an attorney for the complainant to ensure equity, and 
this will be too costly for many recipients. Commenters similarly 
asserted that recipients will feel compelled to ensure that assigned 
advisors are attorneys because it will be crucial that a party and an 
assigned advisor communicate candidly which requires attorney-client 
privilege so that conversations are non-discoverable in subsequent 
civil or criminal matters. Commenters argued that it is likely that 
State bar associations will find that conducting cross-examination 
constitutes practice of law and thus recipients will end up being 
required to hire attorneys for parties, and not simply assign non-
attorney advisors.\1318\ Commenters argued that this amounts to a 
costly, unfunded mandate that will create a niche market for 
litigation-attorney advisors.
---------------------------------------------------------------------------

    \1318\ Commenters asserted that, for example, in Ohio where the 
Sixth Circuit's Baum decision applies, rape crisis advocate centers 
who typically have provided pro bono advocates to serve as advisors 
of choice for complainants have, because of Baum, forbidden staff to 
serve as advisors of choice to prevent claims of unauthorized 
practice of law, based on opinions of the Ohio Bar Association and 
the American Bar Association. These commenters asserted that the 
NPRM would make this result widespread and cut off an avenue of 
consistent, informed support that should be available to 
complainants.
---------------------------------------------------------------------------

    Commenters argued that a party disappointed about the outcome of 
the hearing should not be allowed to challenge the adequacy of the 
advisor provided by the university, either on appeal or in subsequent 
litigation.
    Commenters argued that the Department lacks statutory authorization 
under Title IX to require recipients to provide advisors to students, 
and that such a requirement does not serve to further Title IX's non-
discrimination mandate.
    Commenters requested clarification of this provision to answer 
questions such as: Who may determine whether an assigned advisor is 
aligned with the party, and what factors should be used in making that 
determination? Is the assigned advisor expected to assume the party's 
version of events is accurate? If one party hires an attorney as an 
advisor of choice and the recipient must provide

[[Page 30339]]

an advisor for the other party, must the recipient assign that party an 
attorney? Can recipients limit the participation of advisors in a 
hearing, other than conducting cross-examination? May a recipient 
impose cost or fee limitations on attorneys chosen by parties to make 
equity and parity more likely? Could a school allow advisors of choice 
but appoint separate advisors to conduct cross-examination? If a party 
shows up at a hearing without an advisor, must the recipient stop the 
hearing to appoint an advisor for the party? May a decision-maker 
punish a party if the party's advisor breaks rules during the hearing? 
Can a party decide during a hearing to ``fire'' the assigned advisor? 
Can a party delay a hearing by refusing to accept a recipient's 
assigned advisor perhaps by arguing that the advisor is not ``aligned 
with'' the party? May the party advisors also conduct direct 
examination of the party they are advising, or only cross-examination 
of the other parties and witnesses? Must a recipient provide an advisor 
for a party who is also an employee of the recipient, including at-will 
employees? May a recipient require certain training and competency 
assessments for assigned advisors? Some commenters asserted that the 
final regulations should require training for appointed advisors, 
including at a minimum how to conduct cross-examination and how to 
respond to cross-examination conducted by an attorney, so that parties 
feel adequately represented.
    Discussion: The Department understands commenters who argued for a 
right of self-representation, but the Department has concluded that 
self-representation by parties in a live hearing in the context of a 
Title IX adjudication presents substantial risk of diminishing the 
effectiveness and benefits of cross-examination while increasing the 
probability that parties will feel traumatized by the prospect and 
reality of personal confrontation. As explained above, the Department 
believes that cross-examination is a valuable tool serving the truth-
seeking function of a Title IX grievance process. However, the right to 
cross-examination is not unfettered and the effectiveness of cross-
examination depends on the circumstances presented in many Title IX 
sexual harassment cases whereby a complainant and respondent have 
alleged and denied commission of traumatic, violative acts. To retain 
the benefits of cross-examination in this sensitive, high-stakes 
context, the Department has concluded that restrictions on the right of 
cross-examination best serve the purposes of a Title IX adjudication.
    The context and purpose of a Title IX adjudication differ 
significantly from that of a criminal trial. The Sixth Amendment rights 
guaranteed to a criminal defendant are not constitutionally guaranteed 
to a respondent in a Title IX adjudication,\1319\ and the Department 
does not believe that a right of self-representation would best 
effectuate the purposes of Title IX. The Department believes that the 
final regulations appropriately give respondents and complainants equal 
and meaningful opportunity to select their own advisors of choice and 
to thereby direct and control the manner by which a party exercises a 
right of cross-examination. The final regulations thus do not ``force 
an attorney'' onto a respondent (or complainant). Rather, the final 
regulations provide as a back-stop that if a party does not (or cannot) 
take the opportunity to select an advisor of choice, rather than 
conducting cross-examination personally the recipient will provide the 
party an advisor for that purpose. A party always retains the right not 
to participate in a grievance process, but where the party does wish to 
participate and advance the party's interests in the case outcome, with 
respect to testing the credibility of testimony via cross-examination, 
the party must do this by selecting an advisor of choice, or else 
working with an advisor provided to the party (without fee or charge) 
by the recipient. The Department notes that the final regulations, 
Sec.  106.45(b)(5)(iv) and Sec.  106.45(b)(6)(i), make clear that the 
choice or presence of a party's advisor cannot be limited by the 
recipient. To meet this obligation a recipient also cannot forbid a 
party from conferring with the party's advisor, although a recipient 
has discretion to adopt rules governing the conduct of hearings that 
could, for example, include rules about the timing and length of breaks 
requested by parties or advisors and rules forbidding participants from 
disturbing the hearing by loudly conferring with each other.
---------------------------------------------------------------------------

    \1319\ E.g., I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) 
(``Consistent with the civil nature of the proceeding, various 
protections that apply in the context of a criminal trial do not 
apply in a deportation hearing.'').
---------------------------------------------------------------------------

    With respect to allowing parties to be accompanied by a 
confidential advisor or advocate in addition to a party's chosen or 
assigned advisor, the Department notes that Sec.  106.71 states ``The 
recipient must keep confidential the identity of any individual who has 
made a report or complaint of sex discrimination, including any 
individual who has made a report or filed a formal complaint of sexual 
harassment, any complainant, any individual who has been reported to be 
the perpetrator of sex discrimination, any respondent, and any witness, 
except as may be permitted by the FERPA statute or regulations, 20 
U.S.C. 1232g and 34 CFR part 99, or as required by law, or to carry out 
the purposes of [34 CFR part 106], including the conduct of any 
investigation, hearing, or judicial proceeding arising thereunder'' and 
this restriction may limit a recipient's ability to authorize the 
parties to be accompanied at the hearing by persons other than 
advisors. For example, a person assisting a party with a disability, or 
a language interpreter, may accompany a party to the hearing without 
violating Sec.  106.71(a) because such a person's presence at the 
hearing is required by law and/or necessary to conduct the hearing. The 
sensitivity and high stakes of a Title IX sexual harassment grievance 
process weigh in favor of protecting the confidentiality of the 
identity and parties to the extent feasible (unless otherwise required 
by law), and the Department thus declines to authorize that parties may 
be accompanied to a live hearing by persons other than the parties' 
advisors, or other persons for reasons ``required by law'' as described 
above.
    The Department is persuaded by commenters' concerns that the 
``aligned with that party'' language in this provision posed 
unnecessary confusion and potential problems. As a result, the 
Department has removed that language from Sec.  106.45(b)(6)(i). 
Accordingly, the Department declines to adopt a commenter's suggestion 
to specify that the assigned advisor must be ``genuinely aligned'' with 
the party. The Department does not believe it is feasible, necessary, 
or appropriate to ask recipients to screen potential assigned advisors' 
ideological beliefs or ties of loyalty to the recipient. The Department 
is persuaded by commenters' concerns that a condition of ``alignment'' 
with a party exposes recipients to claims by parties that, in the 
party's subjective view, an assigned advisor was not sufficiently 
``aligned with'' the party, and this open-ended potential to accuse 
recipients of violating these regulations does not serve the 
Department's interest in prescribing a predictable framework under 
which recipients understand and comply with their legal obligations. We 
have revised Sec.  106.45(b)(6)(i) to state: ``If a party does not have 
an advisor present at the hearing, the recipient must provide without 
fee or charge to that

[[Page 30340]]

party an advisor of the recipient's choice, who may be, but is not 
required to be, an attorney, to conduct cross-examination on behalf of 
that party.'' This directive addresses many of the commenters' concerns 
about providing an advisor. By explicitly acknowledging that advisors 
provided by a recipient may be--but need not be--attorneys, expressly 
stating that the provided advisor is ``of the recipient's choice,'' and 
limiting the role of provided advisors to conducting cross-examination 
on behalf of a party, the final regulations convey the Department's 
intent that a recipient enjoys wide latitude to fulfill this 
requirement. Claims by a party, for instance, that a recipient failed 
to provide ``effective assistance of counsel'' would not be entertained 
by the Department because this provision does not require that advisors 
be lawyers providing legal counsel nor does this provision impose an 
expectation of skill, qualifications, or competence. An advisor's 
cross-examination ``on behalf of that party'' is satisfied where the 
advisor poses questions on a party's behalf, which means that an 
assigned advisor could relay a party's own questions to the other party 
or witness, and no particular skill or qualification is needed to 
perform that role. These changes in the final regulations similarly 
address commenters' concerns that the assigned advisors need be 
``adverse'' to or ``pitted against'' members of the recipient's 
community. While an assigned advisor may have a personal or 
professional belief in, or dedication to, the position of the party on 
whose behalf the advisor conducts cross-examination, such a belief or 
dedication is not a requirement to function as the assigned advisor. 
Whether a party's cross-examination is conducted by a party's advisor 
of choice or by the advisor provided to that party by the recipient, 
the recipient itself remains neutral, including the decision-maker's 
obligation to serve impartially and objectively evaluate relevant 
evidence. The Department emphasizes that advisors of choice, and 
advisors provided to a party by the recipient, are not subject to the 
requirements of Sec.  106.45(b)(1)(iii) which obligates Title IX 
personnel (Title IX Coordinators, investigators, decision-makers, and 
persons who facilitate informal resolutions) to serve impartially 
without conflicts of interest or bias for or against complainants or 
respondents generally, or for or against an individual complainant or 
respondent.
    The Department understands commenters' point that educational 
processes have been designed to let the voices and perspectives of the 
parties be heard, and not the voices and perspectives of third-party 
advisors. For reasons described above and in Sec.  106.45(b)(5)(iv), 
the Department believes that giving each party the opportunity to be 
assisted and supported by an advisor of choice yields important 
benefits to both parties participating in a grievance process. The 
final regulations carefully balance the right of parties to rely on and 
be assisted by advisors with the interest of an educational institution 
in focusing the institution's process on the institution's own students 
and employees rather than on third parties. The final regulations allow 
recipients to limit the active participation of advisors, with the one 
exception in Sec.  106.45(b)(6)(i) that an advisor must conduct cross-
examination on behalf of a party. As noted above, the Department 
believes that the risks of allowing personal confrontation between 
parties in sexual harassment cases outweigh the downsides of allowing 
advisors to actively participate in the limited role of conducting 
cross-examination.
    The Department understands commenters' assertions that many 
recipient's employees will not wish to serve as party advisors because 
they do not want to be viewed as supporting or assisting one party over 
the other. The Department notes that Sec.  106.45(b)(6)(i) applies only 
to postsecondary institutions, and institutions of higher education 
that receive Federal student aid under Title IV of the Higher Education 
Act of 1965, as amended, already must comply with the Clery Act, which 
permits parties to have advisors of choice, and commenters have noted 
that many recipients' practice is to allow parties to choose advisors 
from among recipient employees, and that some recipients already 
provide advisors to parties. For the reasons explained above, these 
final regulations do not change that landscape qualitatively, because 
even conducting cross-examination ``on behalf of a party'' need not 
mean more than relaying that party's questions to the other parties and 
witnesses. That function could therefore equate to serving as a party's 
proxy, or advocating for a party, or neutrally relaying the party's 
desired questions; this provision leaves recipients and assigned 
advisors wide latitude in deciding how to fulfill the role of serving 
as an assigned advisor. For the same reason, the Department does not 
believe it is necessary to forbid assigned advisors from being persons 
who exercise any administrative or academic authority over the other 
party; assigned advisors are not obligated to avoid conflicts of 
interest and can fulfill the limited role described in Sec.  
106.45(b)(6)(i) regardless of the scope of the advisor's other duties 
as a recipient's employee.
    For reasons described above, the Department retains the requirement 
for recipients to provide parties with an advisor to conduct cross-
examination, instead of merely requiring recipients to advise a party 
about how to select an advisor. In order to foreclose personal 
confrontation between the parties during cross-examination while 
preserving the neutrality of the recipient's decision-maker, that 
procedure must be conducted by advisors rather than by parties, and 
where a party does not take the opportunity to select an advisor of the 
party's choice, that choice falls to the recipient. As noted above, the 
final regulations do not preclude a recipient from adopting and 
applying codes of conduct and rules of decorum to ensure that parties 
and advisors, including assigned advisors, conduct cross-examination 
questioning in a respectful and non-abusive manner, and the decision-
maker remains obligated to ensure that only relevant questions are 
posed during cross-examination.
    The Department understands commenters' desire that both parties 
have advisors of equal competency during a hearing. However, the 
Department does not wish to impose burdens and costs on recipients 
beyond what is necessary to achieve a Title IX grievance process with 
robust procedural protections leading to a reliable outcome. The 
Department believes that giving both parties equal opportunity to 
select advisors of choice, who may be, but are not required to be 
attorneys, and assuring parties who cannot or do not select their own 
advisor that the party can still accomplish cross-examination at a 
hearing because the recipient will provide an advisor for that limited 
purpose, sufficiently achieves the purpose of a Title IX grievance 
process without imposing additional burdens on recipients to hire 
attorneys for the parties. Nothing in the final regulations precludes a 
recipient from offering to provide attorney representation or non-
attorney advisors to both parties throughout the entire grievance 
process or just for a live hearing, though Sec.  106.45(b)(5)(iv) 
ensures that parties would retain the right to select their own advisor 
of choice and refuse any such offer by a recipient. To allow recipients 
to meet their obligations with as much flexibility as possible, the

[[Page 30341]]

Department declines to require recipients to pre-screen a panel of 
assigned advisors from which a party could make a selection at a 
hearing, or to require provided advisors to receive training from the 
recipient. The final regulations do not preclude a recipient from 
taking such steps, in the recipient's discretion, and the final 
regulations require decision-makers to be trained specifically in 
issues of relevance. The Department reiterates that a recipient may 
fulfill its obligation to provide an advisor for a party to conduct 
cross-examination at a hearing without hiring an attorney to be that 
party's advisor, and that remains true regardless of whether the other 
party has hired a lawyer as an advisor of choice. The final regulations 
do not create an ``arms race'' with respect to the hiring of attorneys 
by recipients, and recipients remain free to decide whether they wish 
to incur the cost or burden of providing attorneys when they must 
provide an advisor to a party at a hearing to conduct cross-
examination. This provision does not impose an unfunded mandate on 
recipients because recipients retain discretion whether to incur the 
cost of hiring attorney or non-attorney advisors.
    The Department does not believe that the final regulations' 
expectation for an advisor to ``conduct cross-examination on behalf of 
a party'' constitutes the practice of law; a Title IX adjudication is 
not a civil or criminal trial so the advisor is not representing a 
party in a court of law, and the advisor is not required to perform any 
function beyond relaying a party's desired questions to the other party 
and witnesses. However, to the extent that a recipient is concerned 
that State bar associations do, or may, consider party advisors at a 
live hearing to be practicing law, the recipient retains discretion to 
select attorneys as assigned party advisors. Whether attorneys become 
more involved in Title IX adjudications as a result is not the 
Department's concern; the final regulations focus on those procedural 
protections necessary to ensure that a Title IX grievance process is 
designed to reach accurate determinations.
    The Department believes that Sec.  106.45(b)(6)(i), as revised in 
the final regulations, addresses commenters' concerns that parties will 
challenge the outcome based on the recipient's choice of advisor. This 
provision clarifies that the choice of advisor where one must be 
provided by the recipient lies in the recipient's sound discretion, and 
removes the ``aligned with that party'' criterion so that a party 
cannot challenge the recipient's choice by claiming the assigned 
advisor was not sufficiently aligned. Whether or not the recipient 
complied with this provision is now more objectively determined, i.e., 
by observing whether the assigned advisor ``conducted cross-examination 
on behalf of the party'' which in essence only needs to mean relaying 
the party's desired questions to the other party and witnesses. The 
Department does not have control over claims made by parties against 
recipients in private litigation, but clarifies here that this 
provision does not impose a burden on the recipient to ensure the 
``adequacy'' of an assigned advisor, merely that the assigned advisor 
performs the role described in this provision.
    The Department disagrees that this provision exceeds the 
Department's statutory authority under Title IX. The Department 
believes this provision furthers Title IX's non-discrimination mandate 
by contributing to a fair grievance process leading to reliable 
outcomes, which is necessary in order to ensure that recipients 
appropriately remedy sexual harassment occurring in education programs 
or activities. The Department is authorized to promulgate rules and 
regulations to effectuate the purpose of Title IX, including regulatory 
requirements that do not, themselves, purport to represent a definition 
of discrimination. Particular requirements of a grievance process are 
no different in kind from the regulatory requirements the Supreme Court 
has expressly acknowledged fall under the Department's regulatory 
authority. For example, the Department's regulations have long required 
recipients to have grievance procedures in place even though the 
absence of grievance procedures does not, itself, constitute 
discrimination,\1320\ because adopting and publishing grievance 
procedures for the ``prompt and equitable'' resolution of sex 
discrimination \1321\ makes it more likely that a recipient will not 
engage in sex discrimination and will remedy any discrimination brought 
to the recipient's attention by a student or employee. Similarly, the 
Department has carefully considered what procedures appropriately 
address allegations of sex discrimination in the form of sexual 
harassment and has determined that the Sec.  106.45 grievance process, 
including cross-examination conducted through advisors in postsecondary 
institutions, effectuates Title IX's non-discrimination mandate by 
making it less likely that a recipient will fail to accurately 
determine whether a student or employee has been victimized by sexual 
harassment and needs remedies to restore or preserve equal access to 
the recipient's education programs or activities.
---------------------------------------------------------------------------

    \1320\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979) 
(noting that the primary congressional purposes behind Title IX were 
``to avoid the use of Federal resources to support discriminatory 
practices'' and to ``provide individual citizens effective 
protection against those practices.''); see also Gebser, 524 U.S. at 
291-92 (refusing to allow plaintiff to pursue a claim under Title IX 
based on the school's failure to comply with the Department's 
regulatory requirement to adopt and publish prompt and equitable 
grievance procedures, stating ``And in any event, the failure to 
promulgate a grievance procedure does not itself constitute 
`discrimination' under Title IX. Of course, the Department of 
Education could enforce the requirement administratively: Agencies 
generally have authority to promulgate and enforce requirements that 
effectuate the statute's non-discrimination mandate, 20 U.S.C. 1682, 
even if those requirements do not purport to represent a definition 
of discrimination under the statute.'').
    \1321\ 34 CFR 106.9; Sec.  106.8(c).
---------------------------------------------------------------------------

    The Department appreciates commenters' requests for clarification 
of this provision. Some clarification requests have been answered by 
the modifications made to this provision, such as removal of the 
``aligned with that party'' language and specification that when a 
recipient must provide an advisor during a hearing the selection of 
that advisor is ``of the recipient's choice'' and the assigned advisor 
``may be, but is not required to be, an attorney.''
    As to commenters' additional questions about this provision: The 
assigned advisor is not required to assume the party's version of 
events is accurate, but the assigned advisor still must conduct cross-
examination on behalf of the party. The only limitation on recipients' 
discretion to restrict advisors' active participation in proceedings is 
this provision's requirement that advisors conduct cross-examination, 
so recipients remain free to apply rules (equally applicable to both 
parties) restricting advisor participation in non-cross examination 
aspects of the hearing. Recipients cannot impose a cost or fee 
limitation on a party's advisor of choice and if required to provide a 
party with an advisor at a hearing, the recipient may not charge the 
party any fee. The final regulations require the recipient to keep 
confidential the identity of any individual who has made a report or 
complaint of sex discrimination, including any individual who has made 
a report or filed a formal complaint of sexual harassment, any 
complainant, any individual who has been reported to be the perpetrator 
of sex discrimination, any respondent, and any witness, except as may 
be permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 
34 CFR part 99, or as required by law, or to carry out the purposes of 
34 CFR part 106, including the conduct of any hearing. These 
confidentiality

[[Page 30342]]

obligations may affect a recipient's ability to offer parties a 
recipient-provided advisor to conduct cross-examination in addition to 
allowing the parties' advisors of choice to appear at the hearing. The 
final regulations do not preclude recipients from adopting a rule that 
requires parties to inform the recipient in advance of a hearing 
whether the party intends to bring an advisor of choice to the hearing; 
but if a party then appears at a hearing without an advisor the 
recipient would need to stop the hearing as necessary to permit the 
recipient to assign an advisor to that party to conduct cross-
examination. A party cannot ``fire'' an assigned advisor during the 
hearing, but if the party correctly asserts that the assigned advisor 
is refusing to ``conduct cross-examination on the party's behalf'' then 
the recipient is obligated to provide the party an advisor to perform 
that function, whether that means counseling the assigned advisor to 
perform that role, or stopping the hearing to assign a different 
advisor. If a party to whom the recipient assigns an advisor refuses to 
work with the advisor when the advisor is willing to conduct cross-
examination on the party's behalf, then for reasons described above 
that party has no right of self-representation with respect to 
conducting cross-examination, and that party would not be able to pose 
any cross-examination questions. Whether advisors also may conduct 
direct examination is left to a recipient's discretion (though any rule 
in this regard must apply equally to both parties). This provision 
applies to parties who are a recipient's employees, including at-will 
employees; recipients may not impose training or competency assessments 
on advisors of choice selected by parties, but nothing in the final 
regulations prevents a recipient from training and assessing the 
competency of its own employees whom the recipient may desire to 
appoint as party advisors.
    The Department declines to require training for assigned advisors 
because the goal of this provision is not to make parties ``feel 
adequately represented'' but rather to ensure that the parties have the 
opportunity for their own view of the case to be probed in front of the 
decision-maker. Whether a party views an advisor of choice as 
``representing'' the party during a live hearing or not, this provision 
only requires recipients to permit advisor participation on the party's 
behalf to conduct cross-examination; not to ``represent'' the party at 
the live hearing. A recipient may, but is not required to, allow 
advisors to ``represent'' parties during the entire live hearing (or, 
for that matter, throughout the entire grievance process).\1322\
---------------------------------------------------------------------------

    \1322\ Section 106.45(b)(5)(iv).
---------------------------------------------------------------------------

    The Department notes that nothing in these final regulations 
infringes on a recipient's ability to enforce its own codes of conduct 
with respect to conduct other than Title IX sexual harassment, and thus 
if a party or advisor ``breaks a recipients' rules'' during a hearing 
the recipient retains authority to respond in accordance with its codes 
of conduct, so long as the recipient is also complying with all 
obligations under Sec.  106.45. If a party's advisor of choice refuses 
to comply with a recipient's rules of decorum (for example, by 
insisting on yelling at the other party), the recipient may provide 
that party with an advisor to conduct cross-examination on behalf of 
that party. If a provided advisor refuses to comply with a recipient's 
rules of decorum, the recipient may provide that party with a different 
advisor to conduct cross-examination on behalf of that party. The 
Department also notes that Sec.  106.71 protects participants in a 
Title IX grievance process against retaliation so an action taken 
against any participant in a hearing may not be taken for the purpose 
of interfering with any right or privilege secured by Title IX or 
because the individual has participated in any manner in a hearing.
    Changes: The Department has revised Sec.  106.45(b)(6)(i) to remove 
the phrase ``aligned with that party'' and clarify that if a party does 
not have an advisor present at the live hearing, the recipient must 
provide without fee or charge to that party an advisor of the 
recipient's choice, who may be, but is not required to be, an attorney, 
to conduct cross-examination on behalf of that party.
    We have also added Sec.  106.71, prohibiting retaliation and 
providing in pertinent part that no recipient or other person may 
intimidate, threaten, coerce, or discriminate against any individual 
for the purpose of interfering with any right or privilege secured by 
Title IX or because the individual has made a report or complaint, 
testified, assisted, or participated or refused to participate in any 
manner in an investigation, proceeding, or hearing; and the recipient 
must keep confidential the identity of any individual who has made a 
report or complaint of sex discrimination, including any individual who 
has made a report or filed a formal complaint of sexual harassment, any 
complainant, any individual who has been reported to be the perpetrator 
of sex discrimination, any respondent, and any witness, except as 
required by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 
CFR part 99, or as required by law, or to carry out the purposes of 34 
CFR part 106, including the conduct of any investigation or hearing.
Explain Decision To Exclude Questions
    Comments: Some commenters supported the requirement in Sec.  
106.45(b)(6)(i) that decision-makers explain to the party's advisor 
posing a question any decision to exclude a question as not relevant. 
Commenters asserted that they have observed Title IX proceedings in 
which recipients refused to allow a party's questions to be asked of 
the opposing party with no explanation as to how or why the question 
was not relevant to the allegations. Commenters asserted that this 
requirement may reveal and prevent bias in proceedings by making the 
decision-maker explain the rationale for deciding that a question is 
not relevant.
    Other commenters opposed the requirement that decision-makers 
explain any reason for excluding a question as not relevant, arguing 
that decision-makers are usually not lawyers or judges and are not 
legally trained to make complex rulings, so that requiring on-the-spot 
decisions about relevance will expose recipients to legal liability. 
Commenters argued that this provision exceeds procedural norms in 
criminal courts where rules of procedure do not demand that judges 
provide explanation for rulings. Commenters argued that parties should 
have the right to appeal wrongful decisions to exclude evidence and 
thus it is unnecessary to require decision-makers to explain exclusion 
decisions during the hearing. Commenters wondered whether the parties 
are allowed to argue with the decision-maker upon hearing a decision-
maker's explanation about the relevance of a question and expressed 
concern that protracted arguments over relevance would lengthen 
hearings and feel tortuous for students. Commenters expressed concern 
that the requirement to explain irrelevancy decisions will 
disincentivize decision-makers from properly excluding questions that 
violate the rape shield protections.
    Commenters proposed that the provision be modified to require 
decision-makers to explain the decision to exclude questions in writing 
after the hearing rather than during the hearing. Commenters suggested 
that the final regulations also give decision-makers the right to 
screen questions before the hearing so the decision-maker has adequate 
time to consider whether the questions are relevant. Commenters 
wondered what type of information a

[[Page 30343]]

decision-maker is required to give to meet this provision. Commenters 
argued this provision is meaningless because if a decision-maker 
decides a question is irrelevant, presumably the decision-maker 
believes the question does not tend to prove the matter at issue and 
thus, telling the decision-maker to state self-evidently during the 
hearing: ``This question is not relevant because it is not relevant'' 
adds no value to the proceeding and only allows party advisors to bog 
down the hearing by demanding that rote explanation.
    Discussion: The Department agrees with commenters that a decision-
maker's refusal to explain why questions are excluded has caused 
problems with the accuracy and perception of legitimacy of recipients' 
Title IX proceedings and thus believes that this provision reasonably 
prevents those problems and helps ensure that decision-makers are 
making relevance determinations without bias for or against 
complainants or respondents.
    The Department disagrees that this provision requires legal 
expertise on the part of a decision-maker. One of the benefits to the 
final regulations' refusal to import wholesale any set of rules of 
evidence is that the legal sophistication required to navigate rules of 
evidence results often from determining the scope of exceptions to 
admissibility rules. By contrast, the decision-maker's only evidentiary 
threshold for admissibility or exclusion of questions and evidence is 
whether the question or evidence is relevant--not whether it would then 
still be excluded under the myriad of other evidentiary rules and 
exceptions that apply under, for example, the Federal Rules of 
Evidence. While this provision does require ``on the spot'' 
determinations about a question's relevance, the decision-maker must be 
trained in how to conduct a grievance process, specifically including 
how to determine relevance within the scope of this provision's rape 
shield language and the final regulations' protection of privileged 
information and parties' treatment records. Contrary to some 
commenters' assertions, judges in civil and criminal trials often do 
make ``on the spot'' relevance determinations, and while this provision 
requires the decision-maker to ``explain'' the decision in a way that 
rules of procedure do not require of judges, the Department believes 
that this provision will aid parties in having confidence that Title IX 
decision-makers are appropriately considering all relevant evidence. 
The final regulations contemplate that decision-makers often will be 
laypersons, not judges or lawyers. A judge's relevance ruling from the 
bench needs no in-the-moment explanation because a judge has the legal 
sophistication to have reached a ruling against the backdrop of the 
judge's legal knowledge. By contrast, a layperson's determination that 
a question is not relevant is made by applying logic and common sense, 
but not against a backdrop of legal expertise. Thus, an explanation of 
how or why the question was irrelevant to the allegations at issue, or 
is deemed irrelevant by these final regulations (for example, in the 
case of sexual predisposition or prior sexual behavior information) 
provides transparency for the parties to understand a decision-maker's 
relevance determinations.
    Commenters correctly note that parties may appeal erroneous 
relevance determinations, if they affected the outcome, because Sec.  
106.45(b)(8) allows the parties equal appeal rights on grounds that 
include procedural irregularity that affected the outcome. However, 
asking the decision-maker to also explain the exclusion of questions 
during the hearing does not affect the parties' appeal rights and may 
reduce the number of instances in which a party feels the need to 
appeal on this basis because the decision-maker will have explained the 
decision during the hearing. The final regulations do not preclude a 
recipient from adopting a rule (applied equally to both parties) that 
does, or does not, give parties or advisors the right to discuss the 
relevance determination with the decision-maker during the hearing. If 
a recipient believes that arguments about a relevance determination 
during a hearing would unnecessarily protract the hearing or become 
uncomfortable for parties, the recipient may adopt a rule that prevents 
parties and advisors from challenging the relevance determination 
(after receiving the decision-maker's explanation) during the hearing.
    The Department does not believe this requirement will negatively 
affect a decision-maker's incentive to properly exclude questions under 
this provision's rape shield protections. The decision-maker is under 
an obligation to exclude such questions and evidence, and to only 
evaluate relevant evidence in reaching a determination. Requiring the 
decision-maker to explain relevance decisions during the hearing only 
reinforces the decision-maker's responsibility to accurately determine 
relevance, including the irrelevance of information barred under the 
rape shield language. Further, we have revised Sec.  106.45(b)(1)(iii) 
to require decision-makers (and investigators) to be trained in issues 
of relevance, including how to apply the rape shield protections in 
these final regulations.
    Requiring the decision-maker to explain decisions about irrelevance 
also helps reinforce the provision in Sec.  106.45(b)(1)(iii) that a 
decision-maker must not have a bias for or against complaints or 
respondents generally or an individual complainant or respondent. 
Providing a reason for the decision reveals whether the decision-maker 
is maintaining a neutral, objective position throughout the hearing. 
The explanation for the decision may reveal any bias for a particular 
complainant or respondent or a bias for or against complainants or 
respondents generally.
    The Department declines to change Sec.  106.45(b)(6)(i) to require 
after-hearing explanation of relevance determinations, but nothing in 
the final regulations precludes a recipient from adopting a rule that 
the decision-maker will, for example, send to the parties after the 
hearing any revisions to the decision-maker's explanation that was 
provided during the hearing. In order to preserve the benefits of live, 
back-and-forth questioning and follow-up questioning unique to cross-
examination, the Department declines to impose a requirement that 
questions be submitted for screening prior to the hearing (or during 
the hearing); the final regulations revise this provision to clarify 
that cross-examination must occur ``directly, orally, and in real 
time'' during the live hearing, balanced by the express provision that 
questions asked of parties and witnesses must be relevant, and before a 
party or witness answers a cross-examination question the decision-
maker must determine relevance (and explain a determination of 
irrelevance).
    This provision does not require a decision-maker to give a lengthy 
or complicated explanation; it is sufficient, for example, for a 
decision-maker to explain that a question is irrelevant because the 
question calls for prior sexual behavior information without meeting 
one of the two exceptions, or because the question asks about a detail 
that is not probative of any material fact concerning the allegations. 
No lengthy or complicated exposition is required to satisfy this 
provision. Accordingly, the Department does not believe this 
requirement will ``bog down'' the hearing. We have revised this 
provision by moving the requirement for the decision-maker to explain 
determinations of irrelevance to be combined with a sentence that did 
not appear in the NPRM, instructing the decision-maker to determine the 
relevance of a cross-examination

[[Page 30344]]

question before the party or witness answers the question and to 
explain any decision to exclude a question as not relevant.
    Changes: The Department has revised Sec.  106.45(b)(6)(i) to add 
the phrase ``directly, orally, and in real time'' to describe how 
cross-examination must be conducted, thereby precluding a requirement 
that questions be submitted or screened prior to the live hearing. We 
have further revised this provision by moving the requirement for the 
decision-maker to explain determinations of irrelevance to be combined 
with a sentence that did not appear in the NPRM, instructing the 
decision-maker to determine the relevance of a cross-examination or 
other question before the party or witness answers the question and to 
explain any decision to exclude a question as not relevant. We have 
also revised Sec.  106.45(b)(1)(iii) to require training for decision-
makers on issues of relevance, including application of the rape shield 
protections in Sec.  106.45(b)(6).
No Reliance on Statements of a Party Who Does Not Submit to Cross-
Examination
    Comments: Some commenters supported the provision in Sec.  
106.45(b)(6)(i) prohibiting a decision-maker from relying on statements 
made by a party or witness who does not submit to cross-examination in 
a postsecondary institution live hearing, because this requirement 
ensures that only statements that have been tested for credibility, in 
the ``crucible'' of cross-examination, will be considered. Commenters 
asserted that Title IX sexual misconduct cases often concern 
accusations of a ``he said/she said'' nature where accounts differ 
between complainant and respondent and corroborating evidence is 
inconclusive or non-existent, thus making cross-examined party 
statements critical to reaching a fair determination.
    Other commenters supported this provision but argued that one 
exception should apply: Statements against a party's own interest 
should remain admissible even where the party refuses to appear or 
testify. Commenters argued that without this change, this provision 
incentivizes respondents who have already been convicted criminally not 
to appear for hearings because the respondent's absence would ensure 
that any admission, such as part of a plea bargain, could not be 
considered.
    Other commenters opposed the provision that a decision-maker cannot 
rely on statements of a party or witness who does not submit to cross-
examination. Some commenters argued that if a party refuses to submit 
to cross-examination, the consequence should be dismissal of the 
proceeding, not exclusion of the refusing party's statements.\1323\
---------------------------------------------------------------------------

    \1323\ Commenters cited: Doe v. Univ. of Cincinnati, 872 F.3d 
393, 401-02 (6th Cir. 2017) (``Given the parties' competing claims, 
and the lack of corroborative evidence to support or refute Roe's 
allegations, the present case left the [recipient] with a choice 
between believing an accuser and an accused. Yet, the [recipient] 
resolved this problem of credibility without assessing Roe's 
credibility. In fact, it decided plaintiff's fate without seeing or 
hearing from Roe at all. That is disturbing and, in this case, a 
denial of due process.'') (internal quotation marks and citations 
omitted).
---------------------------------------------------------------------------

    Commenters argued that a respondent may refuse to submit to cross-
examination in a Title IX hearing when criminal charges are also 
pending against the respondent due to concerns about self-incrimination 
and that this provision should prevent a decision-maker from drawing 
any adverse inferences against a respondent based on a respondent's 
refusal to submit to cross-examination because a decision by an accused 
not to testify has no probative value and is irrelevant to the issue of 
culpability. Commenters expressed concern that public institutions 
could be opened up to legal challenges alleging violation of 
respondents' Fifth Amendment right against self-incrimination because 
where a respondent answered some questions, but refused to answer other 
questions due to refusal to self-incriminate, the proposed rules would 
demand exclusion of all the respondent's statements, even as to the 
information about which the respondent was subjected to cross-
examination. Commenters argued this provision is unfair to respondents 
because a respondent may not want to appear for a Title IX hearing for 
fear that oral testimony could be admitted in a future criminal or 
civil proceeding, yet Sec.  106.45(b)(6)(i) will ``all but require'' 
the adjudicator to make a finding of responsibility against the 
respondent if the reporting party testifies, is cross-examined, and is 
credible. Other commenters argued that it is unfair that a 
complainant's entire statement would be excluded where a respondent 
refused to appear and thus the complainant could not be cross-examined 
by the respondent's advisor.
    Commenters argued that this provision makes cross-examination 
mandatory and forces survivors into a Hobson's choice by requiring the 
decision-maker to disregard the statement of a complainant who does not 
agree to be cross-examined. Commenters argued that it is unfair to 
exclude a complainant's statements from consideration when often a 
complainant will not wish to submit to cross-examination due to fear of 
retaliation by a respondent, or chooses not to participate in a 
grievance process initiated against the complainant's wishes (such as 
where the Title IX Coordinator signs a formal complaint). Commenters 
argued that this provision requires exclusion of a complainant's 
statements even where the complainant's absence from a hearing is 
because the respondent wrongfully procured the complainant's absence, 
in contravention of the doctrine of forfeiture by wrongdoing.\1324\
---------------------------------------------------------------------------

    \1324\ Commenters cited: Reynolds v. United States, 98 U.S. 145, 
158 (1878) for the proposition that forfeiture by wrongdoing is a 
doctrine that says a respondent gives up his right to confront the 
witness when he has procured that person's absence, and arguing that 
the NPRM requires exclusion of a complainant's statements even if 
the complainant's absence is due to the respondent's wrongdoing.
---------------------------------------------------------------------------

    Commenters argued that in criminal cases, the right to cross-
examine the prosecution's hearsay declarants only extends to declarants 
who, at the time of their statement, understood they were giving 
evidence likely to be used in a later prosecution, and the proposed 
regulations thus inappropriately exclude a common category of 
statements gathered in Title IX investigations: Statements to friends 
and family who are consoling a victim and are not aware that any crime 
is under investigation.\1325\ Commenters argued that excluding a 
complainant's statement, including the initial formal complaint, just 
because a survivor does not want to undergo cross-examination is 
prejudicial and not a trauma-informed practice, when even reporting 
sexual misconduct requires bravery. Commenters argued that this 
provision is punitive when survivors are already required to 
participate in an investigation that can last for months. Commenters 
argued it is unfair to punish a survivor by denying relief for a 
meritorious claim just because key witnesses refuse to testify or 
refuse to submit to cross-examination.
---------------------------------------------------------------------------

    \1325\ Commenters cited: Crawford v. Washington, 541 U.S. 36 
(2004).
---------------------------------------------------------------------------

    Commenters argued that this provision may make it difficult for 
schools to address situations where they know of predators operating on 
their campuses, as victim after victim declines to participate in 
cross-examination, potentially creating incentives for schools to 
coerce unwilling victims into participating in traumatizing processes, 
leading to further breakdown in trust between students and their 
institutions.

[[Page 30345]]

    Commenters argued that the statements of witnesses should not be 
excluded due to non-appearance or refusal to submit to cross-
examination, because witnesses may be unavailable for legitimate 
reasons such as studying abroad, illness, graduation, out-of-state 
residency, class activities, and so forth. Some commenters suggested 
that for witnesses (but not parties) written statements or telephonic 
testimony should be sufficient.
    Commenters argued that parties and witnesses may be unavailable for 
a hearing for a variety of reasons unrelated to the reliability of 
their statements, including death, or disability that occurs after an 
investigation has begun but before the hearing occurs.
    Commenters argued that the Federal Rules of Evidence \1326\ allow 
out-of-court statements to be admitted in certain circumstances and for 
limited purposes, while Sec.  106.45(b)(6)(i) creates a ``draconian'' 
rule that excludes even relevant, reliable statements, a result that is 
particularly unfair in light of the fact that recipients do not have 
subpoena powers to compel parties and witnesses to attend hearings. 
Commenters argued that courts do not impose cross-examination as a due 
process requirement where the legislature has not granted subpoena 
power to an administrative body because to do so would allow the 
administrative body to act in a manner contrary to its enabling 
statute, and public universities do not have subpoena power; thus, 
commenters argued, the university cannot be foreclosed from relying on 
hearsay testimony of absent witnesses.\1327\ Commenters argued that 
this provision should be modified so that a recipient may consider all 
information presented during the investigation and hearing regardless 
of who appears at the hearing, so that videos, texts, and statements 
are all evaluated on their own merits. Commenters argued that this 
provision creates a blanket exclusion of hearsay evidence, yet the 
Supreme Court has never announced a ``blanket rejection . . . of 
administrative reliance on hearsay irrespective of reliability and 
probative value'' and hearsay evidence may constitute substantial 
evidence supporting an administrative finding.\1328\
---------------------------------------------------------------------------

    \1326\ Commenters cited: Fed. R. Evid. 804, 805.
    \1327\ Commenters cited: Pub. Employees' Ret. Sys. v. Stamps, 
898 So.2d 664, 676 (Sup. Ct. Miss. 2005).
    \1328\ Commenters cited: Richardson v. Perales, 402 U.S. 389, 
407 (1971); Johnson v. United States, 628 F.2d 187, 190-91 (D.C. 
Cir. 1980) (``We have rejected a per se approach that brands 
evidence as insubstantial solely because it bears the hearsay label. 
. . . Instead, we evaluate the weight each item of hearsay should 
receive according to the item's truthfulness, reasonableness, and 
credibility.'').
---------------------------------------------------------------------------

    Commenters suggested that this provision be modified so that the 
consequence of a party failing to appear or answer questions is a 
change of the standard of evidence, not exclusion of the party's 
statements, so that if a complainant refuses to testify, the standard 
of evidence is increased to the clear and convincing evidence standard, 
while if the respondent refuses to testify, the standard of evidence is 
decreased to the preponderance of the evidence standard.
    Commenters requested clarification that where a respondent fails to 
appear for a hearing, the recipient may still enter a default finding 
against the respondent and implement protective measures for the 
complainant.
    Commenters argued that the final regulations should allow for 
evidence not subject to cross-examination (``uncrossed'') to be taken 
into account ``for what it's worth'' by the decision-maker who may 
assign appropriate weight to uncrossed statements rather than 
disregarding them altogether, so as to provide more due process and 
fundamental fairness to both parties in the search for truth.
    Commenters asked for clarification of a number of questions 
including: Does this provision exclude only statements made during the 
hearing or to all of a party's statements even those made during the 
investigation, or prior to a formal complaint being filed? What is the 
threshold for not submitting to cross-examination (e.g., if a party 
answers by saying ``I don't want to answer that'' or answers several 
questions but refuses to answer one particular question, has the party 
``submitted to cross-examination'' or not, and does the reason for 
refusing to answer matter, for instance where a respondent refuses to 
answer due to self-incrimination concerns, or a complainant refuses to 
answer due to good faith belief that the question violates rape shield 
protections and disagrees with the decision-maker's decision to the 
contrary)? Does exclusion of ``any statement'' include, for example, 
text messages or email sent by the party especially where one party 
submitted to cross-examination and the other did not, but the text 
message exchange was between the two parties? Are decision-makers able 
to consider information provided in documents during the investigation 
stage (e.g., police reports, SANE (sexual assault nurse examiner) 
reports etc.), if certain witnesses referenced in those documents 
(e.g., police officers and SANE nurses) do not submit to cross-
examination or refuse to answer a specific question during cross-
examination? If a party or witness refuses to answer a question posed 
by the decision-maker (not by a party advisor) must the decision-maker 
exclude the party's statements? Commenters suggested making this 
provision more precise by replacing ``does not submit to cross-
examination'' with ``does not appear for cross-examination.'' 
Commenters asserted that parties should have the right to ``waive a 
question'' without the party's entire statement being disregarded.
    Discussion: The Department appreciates commenters' support for this 
provision in Sec.  106.45(b)(6)(i) and agrees that it ensures that in 
the postsecondary context, only statements that have been tested for 
credibility will be considered by the decision-maker in reaching a 
determination regarding responsibility. Where a Title IX sexual 
harassment allegation does not turn on the credibility of the parties 
or witnesses, this provision allows the other evidence to be considered 
even though a party's statements are not relied on due to the party's 
or witness's non-appearance or refusal to submit to cross-examination. 
The Department declines to add exceptions to this provision, such as 
permitting reliance on statements against a party's interest. 
Determining whether a statement is against a party's interest, and 
applying the conditions and exceptions that apply in evidentiary codes 
that utilize such a rule,\1329\ would risk complicating a fact-finding 
process so that a non-attorney decision-maker--even when given training 
in how to impartially conduct a grievance process--may not be equipped 
to conduct the adjudication.
---------------------------------------------------------------------------

    \1329\ E.g., Fed. R. Evid. 804(a) (describing conditions that 
constitute ``unavailability'' of a declarant); Fed. R. Evid. 804(b) 
(listing various exceptions to hearsay exclusion where declarant is 
unavailable).
---------------------------------------------------------------------------

    The Department declines to change this provision so the consequence 
of refusal to submit to cross-examination is dismissal of the case 
rather than non-reliance on the refusing party or witness's statement. 
Such a change would operate only against complainants' interests 
because a respondent could choose to refuse cross-examination knowing 
the result would be dismissal (which, presumably, is a positive result 
in a respondent's view). This would essentially give respondents the 
ability to control the outcome of the hearing, running contrary to the 
purpose

[[Page 30346]]

of the final regulations in giving both parties equal opportunity to 
meaningfully be heard before an impartial decision-maker reaches a 
determination regarding responsibility.
    As commenters acknowledged, not all Title IX sexual harassment 
allegations rely on party testimony; for example, in some situations 
video evidence of the underlying incident is available, and in such 
circumstances even if both parties fail to appear or submit to cross-
examination the decision-maker would disregard party statements yet 
proceed to evaluate remaining evidence, including video evidence that 
does not constitute statements or to the extent that the video contains 
non-statement evidence. If a party or witness makes a statement in the 
video, then the decision-maker may not rely on the statement of that 
party or witness in reaching a determination regarding responsibility. 
The Department understands commenters' arguments that courts have noted 
the unfairness of reaching a determination without ever probing or 
testing the credibility of the complainant.\1330\ But Sec.  
106.45(b)(6)(i) does not raise such unfairness, because the central 
unfairness is where a decision-maker ``resolved this problem of 
credibility'' in favor of the party whose statements remained untested. 
The nature of such unfairness is not present under the final 
regulations where, if a party does not appear or submit to cross-
examination the party's statement cannot be relied on--this provision 
does not allow a decision-maker to ``resolve'' credibility in favor of 
a party whose statements remain untested through cross-examination.
---------------------------------------------------------------------------

    \1330\ See, e.g., Doe v. Univ. of Cincinnati, 872 F.3d 393, 401-
02 (6th Cir. 2017) (``Given the parties' competing claims, and the 
lack of corroborative evidence to support or refute Roe's 
allegations, the present case left the [recipient] with a choice 
between believing an accuser and an accused. Yet, the [recipient] 
resolved this problem of credibility without assessing Roe's 
credibility. In fact, it decided plaintiff's fate without seeing or 
hearing from Roe at all. That is disturbing and, in this case, a 
denial of due process.'') (internal quotation marks and citations 
omitted); Doe v. Purdue Univ. et al., 928 F.3d 652, 664 (7th Cir. 
2019) (finding it ``particularly concerning'' that the university 
concluded the complainant ``was the more credible witness--in fact, 
that she was credible at all--without ever speaking to her in 
person. Indeed, they did not even receive a statement written by 
Jane herself, much less a sworn statement.'').
---------------------------------------------------------------------------

    The Department understands commenters concerns that respondents, 
complainants, and witnesses may be absent from a hearing, or may refuse 
to submit to cross-examination, for a variety of reasons, including a 
respondent's self-incrimination concerns regarding a related criminal 
proceeding, a complainant's reluctance to be cross-examined, or a 
witness studying abroad, among many other reasons. In response to 
commenters' concerns, the Department has revised the proposed 
regulations as follows: (1) We have revised Sec.  106.45(b)(6)(i) to 
state that where a decision-maker must not rely on an absent or non-
cross examined party or witness's statements, the decision-maker cannot 
draw any inferences about the determination regarding responsibility 
based on such absence or refusal to be cross-examined; (2) We have 
revised Sec.  106.45(b)(6)(i) to grant a recipient discretion to hold 
the entire hearing virtually using technology that enables any or all 
participants to appear remotely; (3) Sec.  106.71 expressly prohibits 
retaliation against any party, witness, or other person exercising 
rights under Title IX, including the right to participate or refuse to 
participate in a grievance process; (4) Sec.  106.45(b)(3)(ii) grants a 
recipient discretion to dismiss a formal complaint, or allegations 
therein, where the complainant notifies the Title IX Coordinator in 
writing that the complainants wishes to withdraw the allegations, or 
the respondent is no longer enrolled or employed by the recipient, or 
specific circumstances prevent the recipient from gathering evidence 
sufficient to reach a determination. These changes address many of the 
concerns raised by commenters stemming from reasons why parties or 
witnesses may not wish to participate and the consequences of non-
participation.
    It is possible that one party's refusal to submit to cross-
examination could result in the other party's statements remaining 
under consideration by the decision-maker even though the refusing 
party's statements are excluded (e.g., where one party refuses to 
submit to cross-examination, yet that party's advisor cross-examines 
the opposing party, whose statements are then considered by the 
decision-maker), but the opportunity of the refusing party to conduct 
cross-examination of the opposing party ensures that the opposing 
party's statements are not considered unless they have been tested via 
cross-examination. Because the final regulations preclude a decision-
maker from drawing any inferences about the determination regarding 
responsibility based solely on a party's refusal to be cross-examined, 
the adjudication can still yield a fair, reliable outcome even where, 
for example, the refusing party is a respondent exercising a Fifth 
Amendment right against self-incrimination.
    Where one party appears at the hearing and the other party does 
not, Sec.  106.45(b)(6)(i) still states: ``If a party does not have an 
advisor present at the hearing, the recipient must provide without fee 
or charge to that party an advisor of the recipient's choice, who may 
be, but is not required to be, an attorney, to conduct cross-
examination on behalf of that party.'' Thus, a party's advisor may 
appear and conduct cross-examination even when the party whom they are 
advising does not appear. Similarly, where one party does not appear 
and that party's advisor of choice does not appear, a recipient-
provided advisor must still cross-examine the other, appearing party 
``on behalf of'' the non-appearing party, resulting in consideration of 
the appearing party's statements but not the non-appearing party's 
statements (without any inference being drawn based on the non-
appearance). Because the statements of the appearing party were tested 
via cross-examination, a fair, reliable outcome can result in such a 
situation.
    The Department disagrees that this provision leaves complainants 
(or respondents) in a Hobson's choice. The final regulations address a 
complainant's fear of retaliation, the inconvenience of appearing at a 
hearing, and the emotional trauma of personal confrontation between the 
parties. Further, as noted above, if a complainant still does not wish 
to appear or be cross-examined, an appointed advisor may conduct cross-
examination of the respondent (if the respondent does appear) so that a 
decision-maker only considers the respondent's statements if the 
statements have been tested for credibility. Where a grievance process 
is initiated because the Title IX Coordinator, and not the complainant, 
signed the formal complaint, the complainant who did not wish to 
initiate a grievance process remains under no obligation to then 
participate in the grievance process, and the Department does not 
believe that exclusion of the complainant's statements in such a 
scenario is unfair to the complainant, who did not wish to file a 
formal complaint in the first place yet remains eligible to receive 
supportive measures protecting the complainant's equal access to 
education. If the respondent ``wrongfully procures'' a complainant's 
absence, for example, through intimidation or threats of violence, and 
the recipient has notice of that misconduct by the respondent (which 
likely constitutes prohibited retaliation), the recipient must remedy 
the retaliation, perhaps by rescheduling the

[[Page 30347]]

hearing to occur at a later time when the complainant may appear with 
safety measures in place.
    The Department disagrees that this provision needs to be modified 
so that a party's statements to family or friends would still be relied 
upon even when the party does not submit to cross-examination. Even if 
the family member or friend did appear and submit to cross-examination, 
where the family member's or friend's testimony consists of recounting 
the statement of the party, and where the party does not submit to 
cross-examination, it would be unfair and potentially lead to an 
erroneous outcome to rely on statements untested via cross-
examination.\1331\ Further, such a modification would likely operate to 
incentivize parties to avoid submitting to cross-examination if a 
family member or friend could essentially testify by recounting the 
party's own statements. The Department understands that courts of law 
operate under comprehensive, complex rules of evidence under the 
auspices of judges legally trained to apply those rules of evidence 
(which often intersect with other procedural and substantive legal 
rules, such as rules of procedure, and constitutional rights). Such 
comprehensive rules of evidence admit hearsay (generally, out-of-court 
statements offered to prove the truth of the matter asserted) under 
certain conditions, which differ in criminal and civil trials. Because 
Title IX grievance processes are not court proceedings, comprehensive 
rules of evidence do not, and need not, apply. Rather, the Department 
has prescribed procedures designed to achieve a fair, reliable outcome 
in the context of sexual harassment in an education program or activity 
where the conduct alleged constitutes sex discrimination under Title 
IX. While judges in courts of law are competent to apply comprehensive, 
complicated rules of evidence, the Department does not believe that 
expectation is fair to impose on recipients, whose primary function is 
to provide education, not to resolve disputes between students and 
employees.
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    \1331\ E.g., Crawford v. Washington, 541 U.S. 36 (2004) 
(although decided under the Sixth Amendment's Confrontation Clause 
which only applies to criminal trials, the Supreme Court discussed 
how the Confrontation Clause stands for the principle that written 
statements are no substitute for cross-examination of witnesses in 
front of the trier of fact); id. at 49 (noting that cross-examining 
the witness who simply reads or recounts the statements of another 
witness in no way accomplishes the purposes and benefits of cross-
examination) id. at 50, 51, 53 (``Raleigh was, after all, perfectly 
free to confront those who read Cobham's confession in court'') 
(referring to the trial of Sir Walter Raleigh as a ``paradigmatic 
confrontation violation''). Although the Confrontation Clause does 
not apply in a noncriminal trial, the principle of cross-examining 
witness before allowing statements to be used is so deeply rooted in 
American jurisprudence that ensuring that these final regulations 
reflect that fundamental American notion of justice increases party 
and public confidence in the legitimacy of Title IX adjudications in 
postsecondary institutions.
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    Absent importing comprehensive rules of evidence, the alternative 
is to apply a bright-line rule that instructs a decision-maker to 
either consider, or not consider, statements made by a person who does 
not submit to cross-examination. The Department believes that in the 
context of sexual harassment allegations under Title IX, a rule of non-
reliance on untested statements is more likely to lead to reliable 
outcomes than a rule of reliance on untested statements. If statements 
untested by cross-examination may still be considered and relied on, 
the benefits of cross-examination as a truth-seeking device will 
largely be lost in the Title IX grievance process. Thus, the Department 
declines to import a rule of evidence that, for example, allows a 
witness's statement to be relied on where the statement was made to 
friends or family without awareness that a crime was under 
investigation.
    The Department notes that the Supreme Court case cited to by some 
commenters urging a rule that would essentially allow non-testimonial 
statements to be considered without having been tested by cross-
examination, analyzed a judicially-implied hearsay exception in light 
of the constitutional (Sixth Amendment's Confrontation Clause) right of 
a criminal defendant to confront witnesses; the Court reasoned that the 
plain language of the Confrontation Clause refers to ``witnesses,'' 
that the dictionary definition of a witness is one who ``bears 
testimony'' and thus the Confrontation Clause generally does not allow 
testimonial statements--such as formal statements, solemn declarations, 
or affirmations, intended to prove or establish a fact--to be used 
against a criminal defendant unless such statements are made by a 
person subject to cross-examination in court, or where the defendant 
had a previous opportunity to cross-examine the person making the 
statement.\1332\ The Court reasoned that hearsay exceptions as applied 
to non-testimonial statements, such as business records, did not raise 
the core concern of the Confrontation Clause and, thus, rules of 
evidence permitting admission of non-testimonial statements under 
specific hearsay exceptions did not raise constitutional 
problems.\1333\ While commenters correctly observe that the 
Confrontation Clause is concerned with use of testimonial statements 
against criminal defendants, even if use of a non-testimonial statement 
poses no constitutional problem under the Sixth Amendment, the 
statement would still need to meet a hearsay exception under applicable 
rules of evidence in a criminal court. For reasons discussed above, the 
Department does not wish to impose a complex set of evidentiary rules 
on recipients, whether patterned after civil or criminal rules. Even 
though a party's statements that are not subject to cross-examination 
might be admissible in a civil or criminal trial under rules of 
evidence that apply in those contexts, the Department has determined 
that such untested statements, whether testimonial or non-testimonial, 
should not be relied on in a Title IX grievance process. Reliance on 
party and witness statements that have not been tested for credibility 
via cross-examination undermines party and public confidence in the 
fairness and accuracy of the determinations reached by postsecondary 
institutions. This provision need not result in failure to consider 
relevant evidence because parties and witnesses retain the opportunity 
to have their own statements considered, by submitting to cross-
examination.
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    \1332\ Crawford v. Washington, 541 U.S. 36, 50-55 (2004).
    \1333\ Id. at 56.
---------------------------------------------------------------------------

    In cases where a complainant files a formal complaint, and then 
does not appear or refuses to be cross-examined at the hearing, this 
provision excludes the complainant's statements, including allegations 
in a formal complaint. The Department does not believe this is 
prejudicial or punitive against a complainant because the final 
regulations provide complainants with opportunities to submit to cross-
examination and thus have their statements considered, in ways that 
lessen the inconvenience and potential trauma of such a procedure. 
Complainants may request (and the recipient must grant the request) for 
the live hearing to be held with the parties in separate rooms so as 
not to come face to face with the respondent; questioning cannot be 
conducted by the respondent personally; the recipient may allow parties 
to appear virtually for the live hearing; complainants have the right 
to an advisor of choice to support and assist the party throughout the 
grievance process; and recipients may establish rules of decorum to 
ensure questioning is conducted in a respectful manner. Further, 
recipients must offer supportive measures to a complainant

[[Page 30348]]

which may, for example, forbid contact or communication between the 
parties. The Department believes that without the credibility-testing 
function of cross-examination, whether the complainant's claim is 
meritorious cannot be ascertained with sufficient assurance. The 
Department understands that complainants (and respondents) often will 
not have control over whether witnesses appear and are cross-examined, 
because neither the recipient nor the parties have subpoena power to 
compel appearance of witnesses. Some absences of witnesses can be 
avoided by a recipient thoughtfully working with witnesses regarding 
scheduling of a hearing, and taking advantage of the discretion to 
permit witnesses to testify remotely. Where a witness cannot or will 
not appear and be cross-examined, that person's statements will not be 
relied on by the decision-maker, but the Department believes that any 
determination reached under this provision will be more reliable than a 
determination reached based on statements that have not been tested for 
credibility.
    The Department notes that the final regulations expressly allow a 
recipient to remove a respondent on an emergency basis and do not 
prescribe cross-examination as a necessary procedure during the post-
removal opportunity to challenge the removal.\1334\ Recipients may also 
implement supportive measures that restrict students' or employees' 
contact or communication with others. Recipients thus have avenues for 
addressing serial predator situations even where no victim chooses to 
participate in a grievance process. A recipient is prohibited from 
coercing unwilling victims to participate in a grievance process,\1335\ 
even where the recipient's goal is to investigate a possible predator 
on campus.
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    \1334\ Section 106.44(c).
    \1335\ Section 106.71 provides: ``No recipient or other person 
may intimidate, threaten, coerce, or discriminate against any 
individual for the purpose of interfering with any right or 
privilege secured by title IX or this part, or because the 
individual has made a report or complaint, testified, assisted, or 
participated or refused to participate in any manner in an 
investigation, proceeding, or hearing under this part.'' (emphasis 
added).
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    The final regulations grant recipients discretion to allow 
participants, including witnesses, to appear at a live hearing 
virtually; however, technology must enable all participants to see and 
hear other participants, so a telephonic appearance would not be 
sufficient to comply with Sec.  106.45(b)(6)(i). For reasons discussed 
above, written statements cannot be relied upon unless the witness 
submits to cross-examination, and whether a witness's statement is 
reliable must be determined in light of the credibility-testing 
function of cross-examination, even where non-appearance is due to 
death or post-investigation disability. The Department notes that 
recipients have discretion to apply limited extensions of time frames 
during the grievance process for good cause, which may include, for 
example, a temporary postponement of a hearing to accommodate a 
disability.
    The Department understands commenters' concerns that a blanket rule 
against reliance on party and witness statements made by a person who 
does not submit to cross-examination is a broader exclusionary rule 
than found in the Federal Rules of Evidence, under which certain 
hearsay exceptions permit consideration of statements made by persons 
who do not testify in court and have not been cross-examined. The 
Department understands that postsecondary institutions lack subpoena 
power to compel parties or witnesses to appear and testify at a live 
hearing. The final regulations do not purport to grant recipients the 
authority to compel appearance and testimony. However, where a party or 
witness does not appear and is not cross-examined, the statements of 
that party or witness cannot be determined reliable, truthful, or 
credible in a non-courtroom setting like that of an educational 
institution's proceeding that lacks subpoena powers, comprehensive 
rules of evidence, and legal professionals. As many commenters noted, 
recipients are educational institutions that should not be converted 
into de facto courtrooms. The final regulations thus prescribe a 
process that simplifies evidentiary complexities while ensuring that 
determinations regarding responsibility result from consideration of 
relevant, reliable evidence. The Department declines to adopt 
commenters' suggestion that instead the decision-maker should be 
permitted to rely on statements that are not subject to cross-
examination, if they are reliable; making such a determination without 
the benefit of extensive rules of evidence would likely result in 
inconsistent and potentially inaccurate assessments of reliability. 
Commenters correctly note that courts have not imposed a blanket rule 
excluding hearsay evidence from use in administrative proceedings. 
However, cases cited by commenters do not stand for the proposition 
that every administrative proceeding must be permitted to rely on 
hearsay evidence, even where the agency lacks subpoena power to compel 
witnesses to appear.\1336\
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    \1336\ E.g., Johnson v. United States, 628 F.2d 187, 190-91 
(D.C. Cir. 1980) (holding that substantial evidence supported U.S. 
Civil Service Commission's termination determination even though it 
relied on hearsay statements of three witnesses, where the agency's 
procedural rules expressly allowed introduction of witness 
statements and the statements were found to be reliable because they 
were from disinterested witnesses, consistent with each other, and 
the defense had seen the witness statements prior to the hearing); 
Richardson v. Perales, 402 U.S. 389, 407, 410 (1971) (Social 
Security Administration hearing regarding disability benefits 
eligibility did not deprive claimant of due process by relying on 
written medical consultant reports, where those written reports were 
relevant and the claimant could have compelled the doctors to appear 
for cross-examination but did not do so).
---------------------------------------------------------------------------

    The Department acknowledges that the evidence gathered during an 
investigation may be broader than what is ultimately deemed relevant 
and relied upon in making a determination regarding responsibility, but 
the procedures in Sec.  106.45 are deliberately selected to ensure that 
all evidence directly related to the allegations is reviewed and 
inspected by the parties, that the investigative report summarizes only 
relevant evidence, and that the determination regarding responsibility 
relies on relevant evidence. Because party and witness statements so 
often raise credibility questions in the context of sexual harassment 
allegations, the decision-maker must consider only those statements 
that have benefited from the truth-seeking function of cross-
examination. The recipient, and the parties, have equal opportunity 
(and, for the recipient, the obligation) to gather and present relevant 
evidence including fact and expert witnesses, and face the same 
limitations inherent in a lack of subpoena power to compel witness 
testimony. The Department believes that the final regulations, 
including Sec.  106.45(b)(6)(i), strike the appropriate balance for a 
postsecondary institution context between ensuring that only relevant 
and reliable evidence is considered while not over-legalizing the 
grievance process.
    The Department declines to tie reliance on statements that are not 
subject to cross-examination to the standard of evidence used. For 
reasons discussed in the ``Section 106.45(b)(7)(i) Standard of Evidence 
and Directed Question 6'' subsection of the ``Determinations Regarding 
Responsibility'' subsection of the ``Section 106.45 Recipient's 
Response to Formal Complaints'' section of this preamble, the 
Department believes that it is appropriate to leave recipients 
flexibility to choose between two standards of evidence but has made

[[Page 30349]]

changes in the final regulations to clarify that a recipient's choice 
must then apply to all formal complaints of sexual harassment subject 
to a Sec.  106.45 grievance process. Making the standard of evidence 
dependent on whether a decision-maker relies on party or witness 
statements that are not subject to cross-examination would effectively 
remove a recipient's discretion to select a standard of evidence, and 
would not achieve the benefits of a recipient implementing a 
predictable grievance process.
    The Department appreciates commenters' requests for clarification 
of this provision. As noted above, even where a respondent fails to 
appear for a hearing, the decision-maker may still consider the 
relevant evidence (excluding statements of the non-appearing party) and 
reach a determination regarding responsibility, though the final 
regulations do not refer to this as a ``default judgment.'' If a 
decision-maker does proceed to reach a determination, no inferences 
about the determination regarding responsibility may be drawn based on 
the non-appearance of a party. The Department notes that under Sec.  
106.45(b)(3)(ii) a recipient may in its discretion, but is not required 
to, dismiss a formal complaint where the respondent is no longer 
enrolled or employed by the recipient or where specific circumstances 
prevent the recipient from gathering evidence sufficient to reach a 
determination regarding responsibility (or where a complainant informs 
the Title IX Coordinator in writing that the complainant wishes to 
withdraw the formal complaint).
    The prohibition on reliance on ``statements'' applies not only to 
statements made during the hearing, but also to any statement of the 
party or witness who does not submit to cross-examination. 
``Statements'' has its ordinary meaning, but would not include evidence 
(such as videos) that do not constitute a person's intent to make 
factual assertions, or to the extent that such evidence does not 
contain a person's statements. Thus, police reports, SANE reports, 
medical reports, and other documents and records may not be relied on 
to the extent that they contain the statements of a party or witness 
who has not submitted to cross-examination. While documentary evidence 
such as police reports or hospital records may have been gathered 
during investigation \1337\ and, if directly related to the allegations 
inspected and reviewed by the parties,\1338\ and to the extent they are 
relevant, summarized in the investigative report,\1339\ the hearing is 
the parties' first opportunity to argue to the decision-maker about the 
credibility and implications of such evidence. Probing the credibility 
and reliability of statements asserted by witnesses contained in such 
evidence requires the parties to have the opportunity to cross-examine 
the witnesses making the statements.
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    \1337\ The Department notes that the final regulations add to 
Sec.  106.45(b)(5)(i) a provision that restricts a recipient from 
accessing or using a party's treatment records without the party's 
voluntary, written consent. If the party is not an ``eligible 
student,'' as defined in 34 CFR 99.3, then the recipient must obtain 
the voluntary, written consent of a ``parent,'' as defined in 34 CFR 
99.3.
    \1338\ Section 106.45(b)(5)(vi).
    \1339\ Section 106.45(b)(5)(vii).
---------------------------------------------------------------------------

    The Department appreciates the opportunity to clarify here that to 
``submit to cross-examination'' means answering those cross-examination 
questions that are relevant; the decision-maker is required to make 
relevance determinations regarding cross-examination in real time 
during the hearing in part to ensure that parties and witnesses do not 
feel compelled to answer irrelevant questions for fear of their 
statements being excluded. If a party or witness disagrees with a 
decision-maker's determination that a question is relevant, during the 
hearing, the party or witness's choice is to abide by the decision-
maker's determination and answer, or refuse to answer the question, but 
unless the decision-maker reconsiders the relevance determination prior 
to reaching the determination regarding responsibility, the decision-
maker would not rely on the witness's statements.\1340\ The party or 
witness's reason for refusing to answer a relevant question does not 
matter. This provision does apply to the situation where evidence 
involves intertwined statements of both parties (e.g., a text message 
exchange or email thread) and one party refuses to submit to cross-
examination and the other does submit, so that the statements of one 
party cannot be relied on but statements of the other party may be 
relied on. If parties do not testify about their own statement and 
submit to cross-examination, the decision-maker will not have the 
appropriate context for the statement, which is why the decision-maker 
cannot consider that party's statements. This provision requires a 
party or witness to ``submit to cross-examination'' to avoid exclusion 
of their statements; the same exclusion of statements does not apply to 
a party or witness's refusal to answer questions posed by the decision-
maker. If a party or witness refuses to respond to a decision-maker's 
questions, the decision-maker is not precluded from relying on that 
party or witness's statements.\1341\ This is because cross-examination 
(which differs from questions posed by a neutral fact-finder) 
constitutes a unique opportunity for parties to present a decision-
maker with the party's own perspectives about evidence. This 
adversarial testing of credibility renders the person's statements 
sufficiently reliable for consideration and fair for consideration by 
the decision-maker, in the context of a Title IX adjudication often 
overseen by laypersons rather than judges and lacking comprehensive 
rules of evidence that otherwise might determine reliability without 
cross-examination.
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    \1340\ Parties have the equal right to appeal on three bases 
including procedural irregularity that affects the outcome, so if a 
party disagrees with a decision-maker's relevance determination, the 
party has the opportunity to challenge the relevance determination 
on appeal. Sec.  106.45(b)(8).
    \1341\ The decision-maker still cannot draw any inference about 
the determination regarding responsibility based solely on a party's 
refusal to answer questions posed by the decision-maker; the final 
regulations refer in Sec.  106.45(b)(6)(i) to not drawing inferences 
based on refusal to answer ``cross-examination or other questions'' 
(emphasis added).
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    The Department disagrees that the phrase ``does not appear for 
cross-examination'' is clearer or leads to better results than this 
provision's language, ``does not submit to cross-examination.'' The 
former would permit a party or witness to appear but not engage in the 
cross-examination procedure, which would not achieve the benefits of 
cross-examination discussed above. For similar reasons, the Department 
declines to allow a party or witness to ``waive'' a question because 
such a rule would circumvent the benefits and purposes of cross-
examination as a truth-seeking tool for postsecondary institutions' 
Title IX adjudications.
    Changes: The Department has revised Sec.  106.45(b)(6)(i) to 
clarify that although a decision-maker cannot rely on the statement of 
a party or witness who does not submit to cross-examination, the 
decision-maker cannot draw any inference about the determination 
regarding responsibility based solely on a party's or witness's absence 
from the hearing or refusal to answer cross-examination or other 
questions. This provision has been further revised to allow recipients 
discretion to hold live hearings with any or all parties, witnesses, 
and other participants appearing virtually, with technology enabling 
participants simultaneously to see and hear each other. The Department 
has also added Sec.  106.71, prohibiting retaliation against any

[[Page 30350]]

person exercising rights under Title IX including participating or 
refusing to participate in any grievance process. Section 
106.45(b)(3)(ii), added in the final regulations, grants a recipient 
discretion to dismiss a formal complaint, or allegations therein, where 
the complainant notifies the Title IX Coordinator in writing that the 
complainants wishes to withdraw the allegations, or the respondent is 
no longer enrolled or employed by the recipient, or specific 
circumstances prevent the recipient from gathering evidence sufficient 
to reach a determination.
Rape Shield Protections
    Comments: Some commenters supported the rape shield protections in 
Sec.  106.45(b)(6)(i) (prohibiting questions or evidence about a 
complainant's prior sexual behavior or sexual predisposition, with two 
exceptions--where evidence of prior sexual behavior is offered to prove 
someone other than the respondent committed the alleged offense, or 
where prior sexual behavior evidence is specifically about the 
complainant and the respondent and is offered to prove consent) because 
prohibiting asking about a complainant's sexual history will give 
victims more control when bringing claims, and because these provisions 
protect victims' privacy.
    Some commenters opposed the rape shield protections in Sec.  
106.45(b)(6)(i), arguing that the ban on evidence concerning a 
complainant's sexual history is too broad because evidence of a 
complainant's sexual history with the respondent should also be allowed 
to prove motive to fabricate or conceal a sexual interaction, and not 
only to prove consent. Commenters argued that Fed. R. Evid. 412 allows 
such evidence if the probative value substantially outweighs the danger 
of harm to any victim and of unfair prejudice to any party, and because 
the rape shield language in Sec.  106.45(b)(6)(i) is based on Fed. R. 
Evid. 412, the final regulations should incorporate that exception as 
well. Commenters argued that Fed. R. Evid. 412(b)(1)(B) allows sexual 
history evidence to be offered by a criminal defendant without 
restriction but Fed. R. Evid. 412(b)(2) provides that in civil cases, 
sexual history evidence is admissible to prove consent only if its 
probative value substantially outweighs the danger of harm and unfair 
prejudice to a victim or any party; commenters argued that because a 
Title IX grievance process is more analogous to a civil trial than a 
criminal trial, the rape shield language in Sec.  106.45(b)(6)(i)-(ii) 
should include the limitation contained in Fed. R. Evid. 412(b)(2).
    Commenters argued that the prohibition against questions or 
evidence about sexual predisposition or sexual history should also 
apply to respondents so that the questioning focuses on the allegation 
at issue and does not delve into irrelevant details about a 
respondent's sexual history. At least one commenter mistakenly 
understood this provision to allow questions about a complainant's 
sexual history but not allow the same questions about a respondent's 
sexual history such that a respondent's propensity to violence or past 
behaviors speaking to a pattern could not be considered.
    Commenters argued that an additional provision of Fed. R. Evid. 412 
should be added into the final regulations: Allowance of ``evidence 
whose exclusion would violate the defendant's constitutional rights.''
    Other commenters supported the rape shield language but expressed 
concern that the protections will be ineffective without comprehensive 
rules of evidence. Some commenters cited a study that found lawyers in 
many cases routinely attempt to circumvent rape shield 
limitations.\1342\ Other commenters argued that because the rape shield 
protections are patterned after Fed. R. Evid. 412, the final 
regulations should incorporate the explanatory information in the 
Advisory Committee notes to Fed. R. Evid. 412 \1343\ so that parties 
and decision-makers better understand the parameters of what kind of 
questioning is off-limits. Commenters argued that without further 
guidance on how to apply the rape shield limitations, the exceptions 
contained in this provision may still subject complainants to 
unwarranted invasions of privacy, character attacks, and sex 
stereotyping, and suggested that the final regulations specify how 
recipients should enforce the rape shield protections. Commenters 
argued that the two exceptions to the rape shield protections should be 
eliminated because having non-legal professionals try to determine the 
scope of the exceptions will result in the exceptions swallowing the 
rape shield protections. Commenters argued that the evidence exchange 
provision in Sec.  106.45(b)(5)(vi) risks negating the rape shield 
protections in Sec.  106.45(b)(6)(i)-(ii). Commenters asserted that 
because the proposed rules fail to define consent, the scope of the 
rape shield protections is unclear.
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    \1342\ Commenters cited: Claire McGlynn, Rape Trials and Sexual 
History Evidence, 81 J. Crim. L. 5 (2017).
    \1343\ Commenters cited: Advisory Committee Notes, Fed. R. Evid. 
412, stating sexual behavior ``connotes all activities that involve 
actual physical conduct, i.e., sexual intercourse and sexual 
contact, or that imply sexual intercourse or sexual contact'' 
including the victim's use of contraceptives, evidence of the birth 
of a child, and sexually transmitted diseases, and that the 
definition of sexual behavior also includes ``the behavior of the 
mind,'' while ``sexual predisposition'' is defined to include the 
victim's ``mode of dress, speech, or life-style.''
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    Commenters argued that the two rape shield exceptions are too 
favorable to respondents and unfair to complainants because those 
exceptions let respondents discuss a complainant's sexual history any 
time the respondent wants to point the finger at a third party or show 
consent was present due to consent being present in past sexual 
interactions, a problem that commenters argued will frequently arise 
since a significant number of sexual assaults are committed by intimate 
partners.\1344\ Commenters argued that the rape shield exceptions 
expose a thinly disguised reworking of the rape myth that women in 
sexual harassment cases are so unreliable that they may be mistaken 
about who committed the act, and allow slut-shaming (implications that 
a woman with an extensive sexual history likely consented to sexual 
activity) to be used as a defense to a sexual assault accusation. 
Commenters argued that research shows that during sexual assault trials 
victims are routinely asked about their sexual history to imply the 
presence of consent, often relying on an incorrect assumption that 
women with more sexual experience are more likely to make a false 
allegation.\1345\
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    \1344\ Commenters cited: U.S. Dep't. of Justice, Bureau of 
Justice Statistics, Special Report: Rape and Sexual Assault 
Victimization Among College-Age Females, 1995-2013 (2016).
    \1345\ Commenters cited: Olivia Smith & Tina Skinner, Observing 
Court Responses to Victims of Rape and Sexual Assault, 7 Feminist 
Criminology 4, 298, 300 (2012).
---------------------------------------------------------------------------

    Commenters argued that the ``offered to prove consent'' exception 
should be eliminated because past sexual encounters, even with the 
respondent, are always irrelevant to issues of consent because valid 
consent can only ever be given in the particular moment.\1346\ 
Commenters asserted that experts believe that there is no evidentiary 
theory under which sexual history is relevant to any claim or defense 
except when establishing a pattern of inappropriate behavior on the 
part of the harasser.\1347\
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    \1346\ Commenters cited: 10 U.S.C. 920(g)(8)(a) (governing rape 
and sexual assault in the armed forces) (``A current or previous 
dating or social or sexual relationship by itself or the manner of 
dress of the person involved with the accused in the conduct at 
issue does not constitute consent.'').
    \1347\ Commenters cited: Linda J. Krieger & Cindi Fox, 
Evidentiary Issues in Sexual Harassment Litigation, 1 Berkeley 
Women's L. J. 115 (1985); Megan Reidy, Comment: The Impact of Media 
Coverage on Rape Shield Laws in High-Profile Cases: Is the Victim 
Receiving a ``Fair Trial'', 54 Cath. Univ. L. Rev. 297, 308 (2005).

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[[Page 30351]]

    Commenters argued that this provision violates State laws, such as 
in New York, that have legislated an affirmative consent standard for 
campus sexual misconduct. Commenters asserted that this provision 
should: State that evidence of sexual behavior is never allowed to 
prove reputation or character (or only allowed if the complainant has 
placed the complainant's own reputation or character at issue); \1348\ 
require that sexual behavior evidence that ostensibly meets one of the 
rape shield exceptions be allowed only if a neutral evaluator decides 
in advance that the evidence meets an exception and that its probative 
value outweighs potential harm or prejudice to the complainant; and 
require recipients to inform complainants in advance if such evidence 
will be allowed.
---------------------------------------------------------------------------

    \1348\ Commenters cited: Seth I. Koslow, Rape Shield Laws and 
the Social Media Revolution, 29 Touro L. Rev. 3, Art. 19 (2013), for 
the proposition that so many students use social media that those 
platforms have become a significant means through which a 
complainant might be said to have placed their reputation in 
controversy or at issue.
---------------------------------------------------------------------------

    Commenters objected to use of the phrase ``sexual predisposition'' 
claiming the phrase harkens back to the past and puts on trial the 
sexual practices and identity of the complainant, which have no 
relevance to the adjudication of particular allegations.
    Commenters wondered if the rape shield protected complainants 
during all stages of a grievance process, for example during the 
collection of evidence phase or during an informal resolution process, 
or only during a live hearing. Commenters stated that the rape shield 
provision, though well-intentioned, conflicts with other provisions in 
Sec.  106.45 such as allowing the parties during investigation to 
review and respond to evidence gathered by the recipient as well as 
offer additional evidence during the investigation; these commenters 
asserted that while greater transparency in the grievance process is 
warranted and welcome, the unfettered right to introduce and review 
evidence conflicts with both the rape shield protections in the 
proposed rules and with some State laws that also prevent admission of 
prior sexual behavior evidence. Commenters argued that respondents 
should only be allowed to ask questions, especially about sexual 
behavior, after presenting an adequate foundation and where the 
questions do not rely on hearsay or speculation.
    Commenters asserted that this provision does not accurately mirror 
Fed. R. Evid. 412 because the latter allows the evidence where it is 
``offered by the defendant to prove consent or if offered by the 
prosecutor,'' and commenters argued that the final regulations should 
allow prior sexual behavior evidence ``if offered by the defendant to 
prove consent or welcomeness, or if offered by the institution or 
complainant.'' Commenters argued that this modification would 
appropriately allow testimony to be impeached when welcomeness is at 
issue in non-sexual assault situations, in addition to where consent is 
at issue in sexual violence situations, and would give a complainant or 
the institution equal opportunity to use such evidence where 
welcomeness or consent is contested. Other commenters argued that the 
rape shield language appeared not to take into account the full range 
of sexual harassment because under the second prong of the sexual 
harassment definition in Sec.  106.30, consent is not an element but 
rather the issue might be whether the conduct was unwelcome versus 
invited, but, commenters asserted, even if sexual history was relevant 
in those situations, the relevance would be outweighed by potential 
harm to the complainant and so should be excluded.
    Commenters argued that this provision's wording in the NPRM, 
referring to ``cross-examination must exclude evidence of the 
complainant's sexual behavior or predisposition'' lacked clarity 
because questions are not evidence, though questions can lead to 
testimony that is evidence, and the provision was thus ambiguous as to 
whether the rape shield protections applied solely to ``questions'' or 
also to ``evidence'' that concerns a complainant's sexual behavior or 
predisposition. Commenters widely used the phrase ``prior sexual 
behavior'' or ``prior sexual history'' in reference to the rape shield 
provision in Sec.  106.45(b)(6)(i). Commenters noted that some State 
laws, for example Maryland and New York, address the same issue with 
rules prohibiting ``prior'' sexual history.
    Discussion: The Department agrees with commenters that the rape 
shield protections serve a critically important purpose in a Title IX 
sexual harassment grievance process: Protecting complainants from being 
asked about or having evidence considered regarding sexual behavior, 
with two limited exceptions. The final regulations clarify that such 
questions, and evidence, are not only excluded at a hearing, but are 
deemed irrelevant.
    The Department disagrees that the rape shield language is too 
broad. Scenarios described by commenters, where a respondent might wish 
to prove the complainant had a motive to fabricate or conceal a sexual 
interaction, do not require admission or consideration of the 
complainant's sexual behavior. Respondents in that scenario could probe 
a complainant's motive by, for example, inquiring whether a complainant 
had a dating or romantic relationship with a person other than the 
respondent, without delving into a complainant's sexual behavior; 
sexual behavior evidence would remain irrelevant in such circumstances. 
Commenters correctly note that the Department adapted the rape shield 
language in Sec.  106.45(b)(6)(i) from Fed. R. Evid. 412.\1349\ As with 
other determinations about what procedures should be part of a Sec.  
106.45 grievance process, the Department carefully considered whether 
Fed. R. Evid. 412 would be useful in formulating rape shield provisions 
for application in Title IX adjudications. However, the final 
regulations do not import wholesale Fed. R. Evid. 412. The Department 
believes the protections of the rape shield language remain stronger if 
decision-makers are not given discretion to decide that sexual behavior 
is admissible where its probative value substantially outweighs the 
danger of harm to a victim and unfair prejudice to any party. If the 
Department permitted decision-makers to balance ambiguous factors like 
``unfair prejudice'' to make admissibility decisions, the final 
regulations would convey an expectation that a non-lawyer decision-
maker must possess the legal expertise of judges and lawyers. Instead, 
the Department expects decision-makers to apply a single admissibility 
rule (relevance), including this provision's specification that sexual 
behavior is irrelevant with two concrete exceptions. This approach 
leaves the decision-maker discretion to assign weight and credibility 
to evidence, but not to deem evidence inadmissible or excluded, except 
on the ground of relevance (and

[[Page 30352]]

in conformity with other requirements in Sec.  106.45, including the 
provisions discussed above whereby the decision-maker cannot rely on 
statements of a party or witness if the party or witness did not submit 
to cross-examination, a party's treatment records cannot be used 
without the party's voluntary consent, and information protected by a 
legally recognized privilege cannot be used).
---------------------------------------------------------------------------

    \1349\ 83 FR 61476 (regarding Sec.  106.45(b)(6)(i)-(ii), the 
NPRM stated ``These sections incorporate language from (and are in 
the spirit of) the rape shield protections found in Federal Rule of 
Evidence 412, which is intended to safeguard complainants against 
invasion of privacy, potential embarrassment, and stereotyping. See 
Fed. R. Evid. 412. Advisory Committee's Note. As the Court has 
explained, rape shield protections are intended to protect 
complainants `from being exposed at trial to harassing or irrelevant 
questions concerning their past sexual behavior.' Michigan v. Lucas, 
500 U.S. 145, 146 (1991).'').
---------------------------------------------------------------------------

    The Department declines to extend the rape shield language to 
respondents. The Department does not wish to impose more restrictions 
on relevance than necessary to further the goals of a Title IX sexual 
harassment adjudication, and does not believe that a respondent's 
sexual behavior requires a special provision to adequately protect 
respondents from questions or evidence that are irrelevant. By 
contrast, in order to counteract historical, societal misperceptions 
that a complainant's sexual history is somehow always relevant to 
sexual assault allegations, the Department follows the rationale of the 
Advisory Committee's Note to Fed. R. Evid. 412, and the Supreme Court's 
observation in Michigan v. Lucas,\1350\ that rape shield protections 
are intended to protect complainants from harassing, irrelevant 
questions at trial. The Department cautions recipients that some 
situations will involve counter-claims made between two parties, such 
that a respondent is also a complainant, and in such situations the 
recipient must take care to apply the rape shield protections to any 
party where the party is designated as a ``complainant'' even if the 
same party is also a ``respondent'' in a consolidated grievance 
process.\1351\ The Department clarifies here that the rape shield 
language in this provision considers all questions and evidence of a 
complainant's sexual predisposition irrelevant, with no exceptions; 
questions and evidence about a complainant's prior sexual behavior are 
irrelevant unless they meet one of the two exceptions; and questions 
and evidence about a respondent's sexual predisposition or prior sexual 
behavior are not subject to any special consideration but rather must 
be judged like any other question or evidence as relevant or irrelevant 
to the allegations at issue.
---------------------------------------------------------------------------

    \1350\ 500 U.S. 145, 146 (1991) (``Like most States, Michigan 
has a `rape-shield' statute designed to protect victims of rape from 
being exposed at trial to harassing or irrelevant questions 
concerning their past sexual behavior.'') (emphasis added).
    \1351\ Section 106.45(b)(4) allows consolidation of formal 
complaints, in a recipient's discretion, when allegations arise from 
the same facts or circumstances.
---------------------------------------------------------------------------

    For two reasons, the Department also declines to import the 
additional provision in Fed. R. Evid. 412 that would allow in evidence 
``whose exclusion would violate the defendant's constitutional 
rights.'' First, this exception to the preclusion of sexual behavior 
evidence is intended to protect the constitutional rights of criminal 
defendants, and respondents in a Title IX grievance process are not due 
the same rights as criminal defendants. Second, the Department believes 
that the procedures in Sec.  106.45, including the use of relevance as 
the only admissibility criterion, ensure that trained, layperson 
decision-makers are capable of making relevance determinations and then 
evaluating relevant evidence with discretion to decide how persuasive 
certain evidence is to a determination regarding responsibility, 
whereas imposing a complex set of evidentiary rules would make it less 
likely that a non-lawyer would feel competent to be a recipient's 
decision-maker. The final regulations permit a wide universe of 
evidence that may be ``relevant'' (and thus not subject to exclusion), 
and the Department believes it is unlikely that a recipient applying 
the Sec.  106.45 grievance process with its robust procedural 
protections would be found to have violated any respondent's 
constitutional rights, whether under due process of law Supreme Court 
cases like Mathews and Goss, or the Sixth Circuit's due process 
decision in Baum.\1352\ As discussed above, we have revised Sec.  
106.45(b)(6)(i) to direct a decision-maker who must not rely on the 
statement of a party who has not appeared or submitted to cross-
examination not to draw any inference about the determination regarding 
responsibility based on the party's absence or refusal to be cross-
examined (or refusal to answer other questions, such as those posed by 
the decision-maker). This modification provides protection to 
respondents exercising Fifth Amendment rights against self-
incrimination (though it applies equally to protect complainants who 
choose not to appear or testify).
---------------------------------------------------------------------------

    \1352\ As acknowledged in Sec.  106.6(d), the Department will 
not enforce these regulations in a manner that requires any 
recipient to violate the U.S. Constitution, including the First 
Amendment, Fifth and Fourteenth Amendment, or any other 
constitutional provision. The Department believes that the Sec.  
106.45 grievance process allows, and expects, recipients to apply 
the grievance process in a manner that avoids violation of any 
party's constitutional rights.
---------------------------------------------------------------------------

    For reasons discussed above, the Department believes that well-
trained decision-makers are fully capable of determining relevance of 
questions and evidence, including the special consideration given to a 
complainant's sexual history under this provision. Section 
106.45(b)(1)(iii) has been revised to require decision-makers to be 
trained on issues of relevance, including specifically application of 
the rape shield protections. Regardless of studies that show that 
lawyers routinely try to circumvent rape shield protections, the 
Department expects recipients to ensure that decision-makers accurately 
determine the relevance and irrelevance of a complainant's sexual 
history in accordance with these regulations. The Department disagrees 
that the two exceptions in the rape shield provisions should be 
eliminated because non-lawyer decision-makers will misapply this 
provision and end up allowing questions and evidence contrary to this 
provision. Nothing in the final regulations precludes a recipient from 
including in its training of decision-makers information about the 
purpose and scope of rape shield language in Fed. R. Evid. 412, 
including the Advisory Committee Notes, so long as the training remains 
focused on applying the rape shield protections as formulated in these 
final regulations.
    The Department disagrees that the evidence exchange provision in 
Sec.  106.45(b)(5)(vi) negates the rape shield protections in Sec.  
106.45(b)(6)(i)-(ii). As noted by the Supreme Court, rape shield 
protections generally are designed to protect complainants from 
harassing, irrelevant inquiries into sexual behavior at trial.\1353\ 
The final regulations permit exchange of all evidence ``directly 
related to the allegations in a formal complaint'' during the 
investigation, but require the investigator to only summarize 
``relevant'' evidence in the investigative report (which would exclude 
sexual history information deemed by these final regulations to be 
``not relevant''), and require the decision-maker to objectively 
evaluate only ``relevant'' evidence during the hearing and when 
reaching the determination regarding responsibility. To further 
reinforce the importance of correct application of the rape shield 
protections, we have revised Sec.  106.45(b)(6)(i) to explicitly state 
that only relevant questions may be asked, and the decision-maker must 
determine the relevance of each cross-examination question before a 
party or witness must answer.
---------------------------------------------------------------------------

    \1353\ Michigan v. Lucas, 500 U.S. 145, 146 (1991) (``Like most 
States, Michigan has a `rape-shield' statute designed to protect 
victims of rape from being exposed at trial to harassing or 
irrelevant questions concerning their past sexual behavior.'') 
(emphasis added).
---------------------------------------------------------------------------

    Commenters correctly observe that the final regulations do not 
define ``consent.'' For reasons explained in the

[[Page 30353]]

``Consent'' subsection of the ``Section 106.30 Definitions'' section of 
this preamble, the final regulations clarify that the Department will 
not require recipients to adopt a particular definition of consent. 
This provision in Sec.  106.30 allows recipients flexibility to use a 
definition of sexual consent that best reflects the recipient's values 
and/or complies with State laws that require recipients to adopt 
particular definitions of consent for campus sexual misconduct 
proceedings. The second of the two exceptions to the rape shield 
protections refers to ``if offered to prove consent'' and thus the 
scope of that exception will turn in part on the definition of consent 
adopted by each recipient. Decision-makers will be trained in how to 
conduct a grievance process and specifically on how to apply the rape 
shield protections, which will include the recipient's adopted 
definition of consent, and thus the decision-maker will understand how 
to apply the rape shield language in accordance with that definition. 
Because of the flexibility recipients have under these final 
regulations to adopt a definition of consent, the Department disagrees 
that the scope of the second exception to the rape shield protections 
is too broad or favors respondents. Rather, the scope of the ``offered 
to prove consent'' exception is determined in part by a recipient's 
definition of consent, which may be broad or narrow at the recipient's 
discretion. The Department disagrees that the first exception 
(``offered to prove that someone other than the respondent'' committed 
the alleged misconduct) is too broad, because in order for that 
exception to apply a respondent's contention must be that someone other 
than the respondent is the person who committed the sexual harassment; 
commenters have informed the Department that this defense is not common 
compared to the defense that a sexual interaction occurred but consent 
was present, a conclusion buttressed by commenters' assertions that a 
significant number of sexual assaults are committed by intimate 
partners. When a respondent has evidence that someone else committed 
the alleged sexual harassment, a respondent must have opportunity to 
pursue that defense, or else a determination reached by the decision-
maker may be an erroneous outcome, mistakenly identifying the nature of 
sexual harassment occurring in the recipient's education program or 
activity.\1354\
---------------------------------------------------------------------------

    \1354\ The Department notes that where a decision-maker 
determines, for example, that the respondent is not responsible for 
the allegations in the formal complaint, but also determines that 
the complainant did suffer the alleged sexual harassment but it was 
perpetrated by someone other than the respondent, the recipient is 
free to provide supportive measures to the complainant designed to 
restore or preserve equal access to education.
---------------------------------------------------------------------------

    Neither of the two exceptions to the rape shield protections 
promote the notion that women, or complainants generally, are 
unreliable and that they may be mistaken about who committed an 
assault, or allow slut-shaming as a defense to sexual assault 
accusations. Rather, the first exception applies to the narrow 
circumstance where a respondent contends that someone other than the 
respondent committed the misconduct, and the second applies narrowly to 
allow sexual behavior questions or evidence concerning incidents 
between the complainant and respondent if offered to prove consent. The 
second exception does not admit sexual history evidence of a 
complainant's sexual behavior with someone other than the respondent; 
thus, ``slut-shaming'' or implication that a woman with an extensive 
sexual history probably consented to sexual activity with the 
respondent, is not validated or promoted by this provision. As noted 
above, the scope of when sexual behavior between the complainant and 
respondent might be relevant to the presence of consent regarding the 
particular allegations at issue depends in part on a recipient's 
definition of consent. Not all definitions of consent, for example, 
require a verbal expression of consent; some definitions of consent 
inquire whether based on circumstances the respondent reasonably 
understood that consent was present (or absent), thus potentially 
making relevant evidence of past sexual interactions between the 
complainant and the respondent. The Department reiterates that the rape 
shield language in this provision does not pertain to the sexual 
predisposition or sexual behavior of respondents, so evidence of a 
pattern of inappropriate behavior by an alleged harasser must be judged 
for relevance as any other evidence must be.
    As discussed above, the Department defers to recipients on a 
definition of consent, and thus recipients subject to State laws 
imposing particular definitions may comply with those State laws during 
a Sec.  106.45 grievance process. The recipient's definition of consent 
will determine the scope of the rape shield exception that refers to 
``consent.'' The Department does not believe that the provision needs 
to expressly state that a complainant's sexual behavior can never be 
allowed to prove a complainant's reputation or character; rather, this 
provision already deems irrelevant all questions or evidence of a 
complainant's prior sexual behavior unless offered to prove that 
someone other than the respondent committed the alleged offense or if 
the questions or evidence concern specific sexual behavior between the 
complainant and respondent and are offered to prove consent. No other 
use of a complainant's sexual behavior is authorized under this 
provision.
    The Department declines to require questions or evidence that may 
meet one of the rape shield exceptions to be allowed to be asked or 
presented at a hearing only if a neutral evaluator first decides that 
one of the two exceptions applies. As discussed above, the decision-
maker will be trained in how to conduct a grievance process, including 
how to determine relevance and how to apply the rape shield 
protections, and at the live hearing the decision-maker must determine 
the relevance of a cross-examination question before a party or witness 
must answer. As discussed above, the Department declines to import a 
balancing test that would exclude sexual behavior questions and 
evidence (even meeting the two exceptions) unless probative value 
substantially outweighs potential harm or undue prejudice, because that 
open-ended, complicated standard of admissibility would render the 
adjudication more difficult for a layperson decision-maker competently 
to apply. Unlike the two exceptions in this provision, a balancing test 
of probative value, harm, and prejudice contains no concrete factors 
for a decision-maker to look to in making the relevance determination.
    The Department's use of the phrase ``sexual predisposition'' is 
mirrored in Fed. R. Evid. 412; far from indicating intent to harken 
back to the past where sexual practices of a complainant were used 
against a complainant, the final regulations take a strong position 
that questions or evidence of a complainant's ``sexual predisposition'' 
are simply irrelevant, without exception.
    The final regulations clarify the rape shield language to state 
that questions and evidence subject to the rape shield protections are 
``not relevant,'' and therefore the rape shield protections apply 
wherever the issue is whether evidence is relevant or not. As noted 
above, this means that where Sec.  106.45(b)(5)(vi) requires review and 
inspection of evidence ``directly related to the allegations'' that 
universe of evidence is not screened for relevance, but rather is 
measured by whether it is ``directly related to the allegations.'' 
However, the investigative report must

[[Page 30354]]

summarize ``relevant'' evidence, and thus at that point the rape shield 
protections would apply to preclude inclusion in the investigative 
report of irrelevant evidence. The Department believes these provisions 
work consistently and logically as part of the Sec.  106.45 grievance 
process, under which all evidence is evaluated for whether it is 
directly related to the allegations, evidence summarized in the 
investigative report must be relevant, and evidence (and questions) 
presented in front of, and considered by, the decision-maker must be 
relevant. The Department declines to require respondents to ``lay a 
foundation'' before asking questions, or to impose rules excluding 
questions based on hearsay or speculation. For reasons described above, 
relevance is the sole gatekeeper evidentiary rule in the final 
regulations, but decision-makers retain discretion regarding the weight 
or credibility to assign to particular evidence. Further, for the 
reasons discussed above, while the final regulations do not address 
``hearsay evidence'' as such, Sec.  106.45(b)(6)(i) does preclude a 
decision-maker from relying on statements of a party or witness who has 
not submitted to cross-examination at the live hearing.
    The Department notes that the rape shield language does not limit 
the ``if offered to prove consent'' exception to when the question or 
evidence is offered by the respondent. Rather, such questions or 
evidence could be offered by either party, or by the investigator, or 
solicited on the decision-maker's own initiative. The Department 
appreciates commenters' suggestion that the rape shield exception 
regarding ``to prove consent'' apply to proof of ``welcomeness'' so 
that it would apply to allegations of sexual harassment that turn on 
welcomeness and not on consent of the victim. However, as explained in 
the ``Sexual Harassment'' subsection of the ``Section 106.30 
Definitions'' section of this preamble, the Department interprets the 
``unwelcome'' element in the first and second prongs of the Sec.  
106.30 definition of sexual harassment subjectively; that is, if 
conduct is unwelcome to the complainant, that is sufficient to support 
that element of an allegation of sexual harassment. By contrast, the 
final regulations impose a reasonable person standard on the other 
elements in the second prong of the Sec.  106.45 definition--whether 
the unwelcome conduct was so ``severe, pervasive, and objectively 
offensive'' that it ``effectively denied a person equal access'' to 
education. The Department therefore declines to extend the rape shield 
language to encompass situations where the respondent wishes to prove 
the conduct was ``welcome'' as opposed to ``unwelcome.'' The Department 
rejects the premise that a respondent may need to use a complainant's 
sexual behavior to challenge a complainant's subjective interpretation 
of conduct as unwelcome. Respondents facing allegations under the first 
or second prong of the Sec.  106.30 definition may defend by, for 
example, arguing that the unwelcome conduct was not ``conditioning any 
aid or benefit'' on participation in the unwelcome sexual activity, or 
that the unwelcome conduct was not ``severe'' or was not ``pervasive,'' 
etc. A complainant's sexual behavior is simply irrelevant to those 
defenses. Contrary to commenters' concerns, the rape shield language 
deems irrelevant all questions or evidence of a complainant's sexual 
behavior unless offered to prove consent (and it concerns specific 
instances of sexual behavior with the respondent); thus, if ``consent'' 
is not at issue--for example, where the allegations concern solely 
unwelcome conduct under the first or second prong of the Sec.  106.30 
definition--then that exception does not even apply, and the rape 
shield protections would then bar all questions and evidence about a 
complainant's sexual behavior, with no need to engage in a balancing 
test of whether the value of the evidence is outweighed by harm or 
prejudice.
    The Department is persuaded by commenters who argued that the 
NPRM's wording of the rape shield language lacked clarity as to whether 
``exclusion'' applied only to questions, or also to evidence. The 
Department has revised this provision in the final regulations to refer 
to both questions and evidence, and replace reference to ``exclusion'' 
with deeming the sexual predisposition and sexual behavior questions or 
evidence to be ``not relevant'' (subject to the same two exceptions as 
stated in the NPRM). To conform the final regulations with the intent 
of the rape shield provision and with commenters' widely understood 
view of this provision, we have added the word ``prior'' before 
``sexual behavior'' in Sec.  106.45(b)(6)(i), and in Sec.  
106.45(b)(6)(ii) that contains the same rape shield language.\1355\
---------------------------------------------------------------------------

    \1355\ The Department notes that ``prior'' sexual behavior is a 
phrase widely used by commenters to discuss rape shield protections, 
and commenters noted that various State laws, such as New York and 
Maryland, use the word ``prior'' to distinguish a complainant's 
sexual behavior that is unrelated to the sexual misconduct 
allegations at issue. The Department emphasizes that ``prior'' does 
not imply admissibility of questions or evidence about a 
complainant's sexual behavior that occurred after the alleged sexual 
harassment incident, but rather must mean anything ``prior'' to 
conclusion of the grievance process. This aligns with the intent of 
Fed. R. Evid. 412, which prohibits evidence of a victim's ``other'' 
sexual behavior; the Advisory Committee Notes on that rule explain 
that use of the word ``other'' is to ``suggest some flexibility in 
admitting evidence `intrinsic' to the alleged sexual misconduct.'' 
The Department chooses to use the phrase ``prior sexual behavior'' 
rather than ``other sexual behavior'' because based on public 
comments, ``prior sexual behavior'' is a widely understood reference 
to evidence unrelated to the alleged sexual harassment at issue.
---------------------------------------------------------------------------

    Changes: The Department has revised the rape shield language in 
Sec.  106.45(b)(6)(i)-(ii) to clarify that questions and evidence about 
the complainant's prior sexual behavior or predisposition are not 
relevant unless offered to prove that someone other than the respondent 
committed the offense or if the sexual history evidence concerns 
specific sexual incidents with the respondent and is offered to prove 
consent. We have also revised Sec.  106.45(b)(1)(iii) to require 
decision-makers to be trained on issues of relevance, including 
application of the rape shield protections in Sec.  106.45(b)(6).
Separate Rooms for Cross-Examination Facilitated by Technology; 
Directed Question 9
    Comments: Some commenters supported the provision in Sec.  
106.45(b)(6)(i) that upon request of any party a recipient must permit 
cross-examination to occur with the parties located in separate rooms 
with technology facilitating the ability of all participants to see and 
hear the person answering questions. Commenters asserted that this 
provision appropriately acknowledges the intimidating nature of cross-
examination. Commenters also asserted that this provision reaches a 
reasonable balance between allowing cross-examination and protecting 
victims from personal confrontation with a perpetrator. Some commenters 
supported this provision but expressed concern that the live question-
and-answer format, even avoiding face-to-face trauma, will still impose 
significant trauma for both parties. Commenters stated that many 
recipients already effectively utilize technology to enable parties to 
testify at live hearings without being physically present in the same 
room at the same time, including asking the non-testifying party to 
wait in a separate room listening by telephone or watching by 
videoconference while the testifying party is in the same room as the 
decision-maker, and then the parties switch rooms with safety measures 
imposed so the parties do not encounter each other during transitions.

[[Page 30355]]

    At least one commenter opposed this provision, arguing that there 
is no substitute for direct eye contact and full view of a person's 
mannerisms and gestures, which will not be as effective using 
technology, even though face-to-face confrontation may cause trauma to 
both complainants and respondents.
    Some commenters opposed this provision, asserting that complainants 
should not be forced to be ``live streamed'' and instead should have 
the right to remain anonymous. Some commenters argued that ``watering 
down'' the Sixth Amendment right to face-to-face confrontation just to 
avoid traumatizing victims is not appropriate because the Constitution 
expects victims to endure the experience of making their accusations 
directly in front of an accused \1356\ and the proposed rules do not 
even require a threshold showing of the potential for trauma before 
granting a request to permit virtual testimony.
---------------------------------------------------------------------------

    \1356\ Commenters cited: Maryland v. Craig, 497 U.S. 836, 851 
(1990) for the proposition that a limited exception to a criminal 
defendant's Sixth Amendment right to confront witnesses was approved 
by the Supreme Court in the context of protecting child sex abuse 
victims by permitting a child victim to testify via closed circuit 
television.
---------------------------------------------------------------------------

    Other commenters argued that separating the parties does not 
adequately diminish the intimidating, retraumatizing prospect of a live 
hearing. Commenters shared personal examples of being cross-examined 
during Title IX proceedings and feeling traumatized even with the 
respondent located in a separate room; one commenter described being 
cross-examined during a hearing with the perpetrator telling each 
question to a judge, who then asked the question over Skype if the 
judge approved the question, and the commenter stated that even with 
technology separating the commenter from the perpetrator, the commenter 
was still diagnosed a week later with PTSD (post-traumatic stress 
disorder). Commenters argued that survivors of sexual violence will 
still be aware that their attacker is witnessing the proceedings and 
may feel less safe as a result. At least one commenter argued that 
accommodating a complainant's request to testify from a separate room 
puts the complainant at a disadvantage because, for example, the 
respondent might be located in the same room as the decision-maker who 
would thus have a greater opportunity to ``develop a personal 
connection'' with the respondent than with the complainant, and 
advantage the respondent by allowing the respondent to observe the 
decision-maker's reactions to testimony while the complainant cannot 
observe those reactions when located in a separate room. At least one 
commenter argued that remote cross-examination puts survivors at a 
distinct disadvantage because assessing non-verbal and behavioral 
evidence of trauma is necessary in sexual violence incidents.
    At least one commenter argued that witnesses must also be given the 
right to request to testify in a separate room. One commenter recounted 
a case in which a witness had also been raped by the respondent but the 
recipient did not allow the witness to testify in a separate room and 
the witness had to frequently leave the room during testimony due to 
sobbing too hard to speak.
    Commenters opposed requiring testimony in separate rooms on the 
basis that internet functionality on campus is not always reliable, and 
thus a rule that depends on technology is not realistic. Commenters 
supported use of technology to facilitate parties being in separate 
rooms as ``ideal'' but expressed concern that the cost of technology 
that is both reliable and secure could be prohibitive for some 
recipients because while software enabling simultaneous viewing of 
parties in separate rooms may be relatively inexpensive, acquiring 
additional hardware that may be necessary and expensive, such as audio-
visual equipment, monitors, and microphones. Commenters stated that 
some recipients do not currently have technology set up in the spaces 
used for Title IX proceedings and acquiring the requisite technology 
would be costly.\1357\ Commenters asserted that complying with this 
provision may also require acquisition of, or renovations to, 
facilities that are not currently used for Title IX purposes by the 
recipient, or specialized technology that meets the needs of 
individuals with disabilities, resulting in expenditures that will only 
be used for the limited purpose of Title IX hearings. Commenters 
requested that the Department provide grant funding for acquiring 
technology needed to meet this provision.
---------------------------------------------------------------------------

    \1357\ At least one commenter cited: ezTalks.com, ``How Much 
Does Video Conferencing Equipment Cost?,'' https://www.eztalks.com/video-conference/video-conference-equipment-cost.html, for the 
proposition that room-based video conferencing could cost $10,000 to 
$100,000 to set up.
---------------------------------------------------------------------------

    Other commenters asserted that it is reasonable for separate rooms 
to be used to ensure complete, comfortable honesty by each party and 
that numerous low cost, secure presentation videoconferencing 
technologies are available and already in use by many recipients to 
ensure that participants can view and hear questions and responses in 
real time.\1358\ Some commenters stated that while this provision would 
require some monetary investment in technology the requirement was 
reasonable and beneficial to allow the parties to participate in a 
hearing from separate rooms.
---------------------------------------------------------------------------

    \1358\ Commenters listed GoTo Meeting, Skype, Skype for 
Business, Zoom, and Google Hangouts as examples of existing 
technology platforms.
---------------------------------------------------------------------------

    Discussion: The Department appreciates commenters' support for the 
provision in Sec.  106.45(b)(6)(i) that requires recipients, upon any 
party's request, to permit cross-examination to occur with the parties 
in separate rooms using technology that enables participants to see and 
hear the person answering questions. Commenters correctly asserted that 
this provision is a direct acknowledgment of the potential for cross-
examination to feel intimidating and retraumatizing in sexual 
harassment cases. Because the decision-maker cannot know until the 
conclusion of a fair, reliable grievance process whether a complainant 
is a victim of sexual harassment perpetrated by the respondent, cross-
examination is necessary to test party and witness statements for 
veracity and accuracy, but the Department has determined that the full 
value of cross-examination can be achieved while shielding the 
complainant from being in the physical presence of the respondent. The 
Department disagrees that only in-person, face-to-face confrontation 
enables parties and decision-makers to adequately evaluate 
credibility,\1359\ and declines to remove this shielding provision. As 
discussed above, assessing demeanor is just one of the ways in which 
cross-examination tests credibility, which includes assessing 
plausibility, consistency, and reliability; judging truthfulness based 
solely on demeanor has been shown to be less accurate than, for 
instance, evaluating credibility based on consistency.\1360\ Thus, any 
minimal reduction in the ability to gauge demeanor by use of technology 
is outweighed by the

[[Page 30356]]

benefits of shielding victims from testifying in the presence of a 
perpetrator. The Department disagrees that complainants should have to 
make a threshold showing that trauma is likely because the Department 
is persuaded by the many commenters who asserted that facing a 
perpetrator is inherently traumatic for a victim. Further, the Sixth 
Amendment's Confrontation Clause protects criminal defendants, and the 
Department is not obligated to ensure that this provision would comply 
with the Confrontation Clause, which does not apply to a respondent in 
a noncriminal adjudication under Title IX.
---------------------------------------------------------------------------

    \1359\ H. Hunter Bruton, Cross-Examination, College Sexual-
Assault Adjudications, and the Opportunity for Tuning up the 
Greatest Legal Engine Ever Invented, 27 Cornell J. of L. & Pub. 
Pol'y, 145, 169 (2017) (``For example, studies comparing live-video 
or videotaped testimony to traditional live-testimony formats show 
no significant differences across mediums in observers' ability to 
detect deception.'').
    \1360\ E.g., Susan A. Bandes, Remorse, Demeanor, and the 
Consequences of Misinterpretation: The Limits of Law as a Window 
into the Soul, Journal of L., Religion & St. 3, 170, 179 (2014); cf. 
H. Hunter Bruton, Cross-Examination, College Sexual-Assault 
Adjudications, and the Opportunity for Tuning up the Greatest Legal 
Engine Ever Invented, 27 Cornell J. L. & Pub. Pol'y, 145, 161 
(2017).
---------------------------------------------------------------------------

    The Department notes that recipients are obligated under Sec.  
106.71 to ``keep confidential the identity of any individual who has 
made a report or complaint of sex discrimination, including any 
individual who has made a report or filed a formal complaint of sexual 
harassment, any complainant, any individual who has been reported to be 
the perpetrator of sex discrimination, any respondent, and any 
witness'' in a Title IX grievance process except as permitted by FERPA, 
required by law, or as necessary to conduct the hearing or proceeding; 
this cautions recipients to ensure that technology used to comply with 
this provision does not result in ``live streaming'' a party in a 
manner that exposes the testimony to persons outside those 
participating in the hearing.
    The Department understands commenters' assertions that even with 
shielding, cross-examination by a respondent's advisor may still be a 
daunting prospect. The final regulations provide both parties with the 
right to be supported and assisted by an advisor of choice, and protect 
the parties' ability to discuss the allegations freely, including for 
the purpose of seeking out emotional support or strategic advice.\1361\ 
The final regulations do not preclude a recipient from adopting rules 
(applied equally to complainants and respondents) that govern the 
taking of breaks and conferences with advisors during a hearing, to 
further ameliorate the stress and emotional difficulty of answering 
questions about sensitive, traumatic events. We have also revised Sec.  
106.45(b)(6)(i) to provide that upon a party's request the entire live 
hearing (and not only cross-examination) must occur with the parties 
located in separate rooms. These measures are intended to balance the 
need for statements to be tested for credibility so that accurate 
outcomes are reached, with accommodations for the sensitive nature of 
the underlying matters at issue.
---------------------------------------------------------------------------

    \1361\ For further discussion see the ``Section 
106.45(b)(5)(iii) Recipients Must Not Restrict Ability of Either 
Party to Discuss Allegations or Gather and Present Relevant 
Evidence'' subsection of the ``Investigation'' subsection of the 
``Section 106.45 Recipient's Response to Formal Complaints'' section 
of this preamble.
---------------------------------------------------------------------------

    The Department disagrees that shielding under Sec.  106.45(b)(6)(i) 
disadvantages complainants (or respondents) and reiterates that both 
parties' meaningful opportunity to advance their own interests in a 
case may be achieved by party advisors conducting cross-examination 
virtually. The Department notes that decision-makers are obligated to 
serve impartially and thus should not endeavor to ``develop a personal 
relationship'' with one party over another regardless of whether one 
party is located in a separate room or not. For the same reasons that 
judging credibility solely on demeanor presents risks of inaccuracy 
generally, the Department cautions that judging credibility based on a 
complainant's demeanor through the lens of whether observed demeanor is 
``evidence of trauma'' presents similar risks of inaccuracy.\1362\ The 
Department reiterates that while assessing demeanor is one part of 
judging credibility, other factors are consistency, plausibility, and 
reliability. Real-time cross-examination presents an opportunity for 
parties and decision-makers to test and evaluate credibility based on 
all these factors.
---------------------------------------------------------------------------

    \1362\ E.g., Jeffrey J. Nolan, Fair, Equitable Trauma-Informed 
Investigation Training 10 (Holland & Knight updated July 19, 2019) 
(while counterintuitive behaviors may be driven by trauma-related 
hormones or memory issues, counterintuitive behavior may also bear 
on a witness's credibility, and thus training about whether or how 
trauma or stress may influence a person's demeanor should be applied 
equally to interviewing any party or witness); ``Recommendations of 
the Post-SB 169 Working Group,'' 3 (Nov. 14, 2018) (report by a task 
force convened by former Governor of California Jerry Brown to make 
recommendations about how California institutions of higher 
education should address allegations of sexual misconduct) (trauma-
informed ``approaches have different meanings in different contexts. 
Trauma-informed training should be provided to investigators so they 
can avoid re-traumatizing complainants during the investigation. 
This is distinct from a trauma-informed approach to evaluating the 
testimony of parties or witnesses. The use of trauma-informed 
approaches to evaluating evidence can lead adjudicators to overlook 
significant inconsistencies on the part of complainants in a manner 
that is incompatible with due process protections for the 
respondent. Investigators and adjudicators should consider and 
balance noteworthy inconsistencies (rather than ignoring them 
altogether) and must use approaches to trauma and memory that are 
well grounded in current scientific findings.'').
---------------------------------------------------------------------------

    The Department declines to grant witnesses the right to demand to 
testify in a separate room, but revises Sec.  106.45(b)(6)(i) to allow 
a recipient the discretion to permit any participant to appear 
remotely. Unlike complainants, witnesses usually do not experience the 
same risk of trauma through cross-examination. Witnesses also are not 
required to testify and may simply choose not to testify because the 
determination of responsibility usually does not directly impact, 
implicate, or affect them. With respect to a witness who claims to also 
have been sexually assaulted by the respondent, the recipient has 
discretion to permit the witness to testify remotely, or to hold the 
entire live hearing virtually.
    The Department appreciates commenters' assertions that some 
recipients already effectively use technology to enable virtual 
hearings, and other commenters' concerns that acquiring technology may 
cause a recipient to incur costs. The Department agrees with some 
commenters who asserted that even where this provision requires a 
monetary investment in technology, low-cost technology is available and 
the importance of this shielding provision outweighs the burden of 
setting up the requisite technology. Although this shielding provision 
requires that a Title IX live hearing would be held in two ``separate 
rooms'' the Department is not persuaded that such a requirement 
necessitates any recipient's capital investment in renovations or 
acquiring new real property, because the Department is unaware of a 
recipient whose existing facilities consist of a single room. These 
final regulations do not address the eligibility or purpose of grant 
funding for recipients, and the Department thus declines to provide 
technology grants via these regulations.
    Changes: We have revised Sec.  106.45(b)(6)(i) to allow recipients, 
in their discretion, to hold live hearings virtually or for any 
participant to appear remotely, using technology to enable participants 
to see and hear each other, and to require a recipient to grant any 
party's request for the entire live hearing to be held with the parties 
located in separate rooms.
Discretion To Hold Live Hearings and Control Conduct of Hearings
    Comments: Many commenters supported the requirement in Sec.  
106.45(b)(6)(i) that postsecondary institutions hold live hearings at 
the conclusion of an investigation of a formal complaint, because a 
live hearing ensures that the decision-maker hears from the parties and 
witnesses, which gives both parties an opportunity to present their 
side of the story to the decision-maker and reduces opportunity for 
biased decision making. Commenters argued that in the college or 
university

[[Page 30357]]

setting, where the participants are usually adults, live hearings 
provide the most transparent mechanism for ensuring all parties have 
the opportunity to submit, review, contest, and rebut evidence to be 
considered by the fact-finder in reaching a determination, and this is 
critical where both parties' interests are at stake and potential 
sanctions are serious.\1363\ Commenters stated that live hearings are 
the only method by which deciding parties can accurately assess the 
veracity of both the complainant's and respondent's statements, and 
where allegations have been tested in a live hearing and the 
determination finds the respondent to be responsible that outcome is 
more likely to be reliable and less likely to be overturned on appeal 
or in litigation. Commenters argued that requiring a live hearing 
ensures that all parties see the same evidence and testimony as the 
fact-finder, so that each party can fully rebut or buttress that 
evidence and testimony to serve the party's own interest. Commenters 
argued that live hearings also decrease the chance that the bias of a 
single investigator or fact-finder may warp the process by reaching 
determinations not by the facts and a desire for a just outcome, but by 
prejudice, well-intentioned or otherwise.
---------------------------------------------------------------------------

    \1363\ Commenters cited: American Bar Association, ABA Criminal 
Justice Section Task Force on College Due Process Rights and Victim 
Protections, Recommendations for Colleges and Universities in 
Resolving Allegations of Campus Sexual Misconduct 3 (2017) 
(expressing a preference for the ``adjudicatory model,'' defined as 
``a hearing in which both parties are entitled to be present, 
evidence is presented, and the decision-maker(s) determine(s) 
whether a violation of school policy has occurred'').
---------------------------------------------------------------------------

    Many commenters opposed the live hearing requirement. Commenters 
argued that even though the withdrawn 2011 Dear Colleague Letter caused 
many recipients to overcorrect their sexual misconduct policies by 
shirking due process responsibilities,\1364\ commenters asserted that 
recipients should have the option but not the mandate to provide live 
hearings to preserve recipients' flexibility to design a fair process. 
Commenters argued that live hearings make campus proceedings so much 
like court proceedings that the benefit of going through an equitable 
Title IX process instead of formal court trials will be lost.\1365\ 
Commenters argued that while hearings and cross-examination may be 
deeply rooted in the legal system, such procedures are not deeply 
rooted in school disciplinary processes. Commenters also argued that 
requiring live hearings is going ``a bridge too far'' because 
recipients are not equipped to conduct court-like hearings.
---------------------------------------------------------------------------

    \1364\ Commenters cited: Blair Baker, When Campus Sexual 
Misconduct Policies Violate Due Process Rights, 26 Cornell J. of L. 
& Pub. Pol'y 533, 535 (2017) (in response to the 2011 Dear Colleague 
Letter ``colleges overcorrected their sexual assault policies by 
adopting policies that shirk the legally mandated due process rights 
of students accused of misconduct and effectively presume their 
guilt'').
    \1365\ Commenters cited: Alexandra Brodsky, A Rising Tide: 
Learning About Fair Disciplinary Process from Title IX, 77 Journal 
of Legal Educ. 4 (2017).
---------------------------------------------------------------------------

    Commenters argued that requiring an adversarial, high-stakes live 
hearing ignores many cultures that rely on the inquisitorial system to 
achieve justice, under which decision makers are vested with the duty 
of fact finding instead of pitting the parties against each other to 
offer competing versions of the truth.
    Commenters asserted that live hearings add no value to the fact-
finding process so long as a full, fair investigation was conducted. 
Commenters described experiences with particular recipients where the 
recipient used a live hearing model for a significant period of time 
but stopped using a live hearing model after experiencing pitfalls that 
outweighed its usefulness, stating that hearings became a springboard 
to introduce new evidence and witnesses, embarrassed parties in ways 
that derailed the hearing, and hearing panels were left needing legal 
advice on a myriad of issues like evidentiary determinations. 
Commenters argued that while school employees who are asked to 
adjudicate are well-intentioned, they lack the legal expertise and 
immunity available in court proceedings, and an investigative model has 
been more efficient than a live hearing model, has resulted in fewer 
contested outcomes, and has led to increased reporting of sexual 
harassment.
    Commenters asserted that a live hearing contains no mechanism to 
act as a check against bias \1366\ and that decision-makers are capable 
of being impartial and reaching unbiased decisions without the parties 
and witnesses appearing at a live hearing.
---------------------------------------------------------------------------

    \1366\ Commenters cited: Jessica A. Clarke, Explicit Bias, 113 
Northwestern Univ. L. Rev. 505 (2018); Cara A. Person et al., ``I 
Don't Know That I've Ever Felt Like I Got the Full Story'': A 
Qualitative Study of Courtroom Interactions Between Judges and 
Litigants in Domestic Violence Protective Order Cases, 24 Violence 
Against Women 12 (2018); Lee Ross, From the Fundamental Attribution 
Error to the Truly Fundamental Attribution Error and Beyond, 13 
Perspectives on Psychol. Science 6 (2018); Margit E. Oswald & Ingrid 
Stucki, Automatic Judgment and Reasoning About Punishment, 23 Social 
Science Research 4 (2018); Eve Hannan, Remorse Bias, 83 Missouri L. 
Rev. 301 (2018).
---------------------------------------------------------------------------

    Likening campus disciplinary proceedings to administrative 
proceedings, commenters argued that courts permit a wide variety of 
administrative proceedings to utilize less formal procedures and still 
comport with constitutional due process, for example allowing 
consideration of hearsay evidence, not requiring a live hearing, and 
not requiring cross-examination, even when such proceedings implicate 
liberty and property interests.\1367\
---------------------------------------------------------------------------

    \1367\ Commenters cited, e.g., Richardson v. Perales, 402 U.S. 
389, 402 (1971) (cross-examination is not an absolute requirement in 
a Social Security Disability benefits case); Wolff v. McDonnell, 418 
U.S. 539, 567-68 (1974) (prison officials may rely on hearsay 
evidence to add to a prisoner's sentence); Johnson v. United States, 
628 F.2d 187 (D.C. Cir. 1980) (cross-examination not required where 
professional licensing was at stake); Williams v. U.S. Dep't. of 
Transp., 781 F.2d 1573 (11th Cir. 1986) (cross-examination not 
required for a Coast Guard finding that a pilot negligently operated 
a boat); Matter of Friedel v. Bd. of Regents, 296 N.Y. 347, 352-353 
(N.Y. Ct. App. 1947) (limitation on right to confront investigators 
in suspension hearing for performing illegal procedures); Delgado v. 
City of Milwaukee Employees' Ret. Sys./Annuity and Pension Bd., 268 
Wis.2d 845 (Wisc. Ct. App. 2003) (cross-examination is not required 
at a hearing to revoke a police officer's duty disability payments); 
In re J.D.C., 284 Kan. 155, 170 (Kan. 2007) (child welfare officials 
may depend on hearsay to determine child custody if it is relevant 
and probative, particularly where the parent waives the right to 
cross-examine the child).
---------------------------------------------------------------------------

    Commenters asserted that sometimes a witness is a friend of a party 
and must truthfully share information that damages the witness's 
friendship with the party, and that while a witness might be willing to 
put truth above friendship by privately talking to an investigator, a 
witness is less likely to do this when it requires testimony at a live 
hearing in front of the witness's friend. Commenters argued that the 
live hearing requirement puts a burden on the parties to pressure or 
cajole their friends into appearing as witnesses because the recipient 
has no subpoena power to compel witness participation.
    Commenters argued that requiring the formal process of a live 
hearing demonstrates that the proposed regulations value the potential 
future of respondents more than the safety and well-being of 
complainants. Commenters asserted that the formalities of a live 
hearing with cross-examination ``swing the pendulum'' too far when 
schools need a refined approach to reach balanced fairness.
    Commenters asserted that recipients have spent time and resources 
developing non-hearing adjudication models and should have the 
flexibility to continue using such models so long as the procedures are 
fair and equitable. Commenters asserted that requiring live hearings 
will force recipients to abandon hybrid investigatory models

[[Page 30358]]

that recipients have carefully developed over the last several years.
    Commenters argued that where the facts are not contested, or where 
the respondent has admitted responsibility, or video evidence of the 
incident in question exists, there is no need to put parties through 
the ordeal of a live hearing yet the proposed rules would force an 
institution to hold a live hearing anyway, straining the limited 
resources of all schools but especially smaller institutions. One 
commenter argued that if, for example, a respondent video-taped the 
respondent raping a student and the hearing officer watches the video 
and hears from the complainant who confirms the incident did happen, 
and the respondent denies doing it, a live hearing with cross-
examination would not be useful in such a scenario.
    Commenters suggested that this provision be modified to require the 
parties to attempt mediation, so that a live hearing is required only 
if mediation fails. Commenters stated that some recipients use an 
administrative disposition model where a respondent may accept 
responsibility based on an investigator's findings and the final 
regulations should permit the recipient, or the respondent, in that 
situation to waive the right to a live hearing. Commenters asserted 
that the final regulations should include a provision allowing the 
parties to enter into a voluntary resolution agreement (VRA) that 
includes disciplinary action against the respondent, where the 
recipient could offer the VRA to both parties in advance of a live 
hearing, and if the parties accepted the VRA it would become the final 
outcome, or the parties could reject the VRA and demand a live hearing. 
Other commenters argued that either party should have the right to 
waive a live hearing so that a live hearing should only occur if both 
parties and the recipient agree it is the appropriate method of 
resolution for a particular case.
    Commenters argued that the proposed regulations do not allow 
universities to follow State APAs (Administrative Procedure Acts), for 
example in Washington State where a student may appeal a responsibility 
finding made in an investigation to a live hearing, or in New York 
where New York Education Law Article 129-B (known as ``Enough is 
Enough'') allows written submission of questions instead of live cross-
examination. Commenters argued that some public universities are 
already subject to State APAs that impose the kind of live hearings and 
cross-examination procedures required by these final regulations, and 
recipients find these procedures to be burdensome, costly, and lengthy.
    Commenters quoted a Federal district court memorandum from 1968 
setting forth guidelines on how that district court should evaluate 
claims against tax-funded colleges and universities, where the court 
memorandum stated the nature and procedures of college discipline 
should not be required to conform to Federal criminal law processes 
which are ``far from perfect'' and designed for circumstances unrelated 
to the academic community.\1368\ Commenters argued that most Federal 
courts adopt that approach, acknowledging that student discipline is 
part of the education process and is not punitive in the criminal 
sense; rather, expelled students may suffer damaging effects but do not 
face imprisonment, fines, disenfranchisement, or probation. Commenters 
asserted that deference to a college or university's chosen 
disciplinary system is even more warranted for private institutions 
that do not owe constitutional due process to students or 
employees.\1369\
---------------------------------------------------------------------------

    \1368\ Commenters cited: General Order on Judicial Standards of 
Procedure and Substance in Review of Student Discipline in Tax 
Supported Institutions of Higher Education, ED025805 (1968); Esteban 
v. Cent. Mo. State Coll., 415 F.2d 1077, 1090 (8th Cir. 1969) 
(``school regulations are not to be measured by the standards which 
prevail for the criminal law and for criminal procedure.'').
    \1369\ Commenters cited: William A. Kaplin & Barbara A. Lee, The 
Law of Higher Education Sec.  10.2.3 (5th ed. 2013) (``Private 
institutions, not being subject to federal constitutional 
constraints, have even more latitude than public institutions do in 
promulgating disciplinary rules.'').
---------------------------------------------------------------------------

    Many commenters argued that the NPRM gave recipients too little 
flexibility to determine how hearings should be conducted, and that the 
final regulations should grant recipients discretion to adopt rules to 
control the conduct and environment of hearings in a manner that is 
effective and fair to all parties and witnesses. Some commenters 
suggested that the final regulations should state more broadly that 
recipients must offer parties reasonable mitigating measures during a 
live hearing, of which locating the parties in separate rooms is but 
one example.
    Commenters asked for clarification such as: Can recipients limit 
the hearing to consideration only of evidence previously included in 
the investigative report? Can recipients impose rules of evidence left 
unaddressed by the proposed regulations, such as excluding questions 
that are misleading, assume facts not in evidence, or call for 
disclosure of attorney-client privileged information, or questions that 
are cumulative, repetitive, or abusive? Can recipients impose time 
limits on hearings so that parties and witnesses do not spend multiple 
days in a hearing rather than fulfilling their academic or work 
responsibilities? Can a recipient specify who may raise objections to 
evidence during the hearing?
    Commenters asserted that live hearings are administratively time-
consuming and will lengthen the grievance process by requiring both 
parties and their advisors to be on campus simultaneously, which is 
impractical and often undesirable. Commenters urged the Department to 
authorize recipients to hold the entire live hearing virtually, with 
parties in separate locations, using technology so that each party can 
see and hear all other parties, because some recipients offer mostly 
online courses such that parties might reside significant distances 
from any physical campus, or parties may move or be called to military 
service after a formal complaint has been filed, or the alleged 
harassment itself may have occurred entirely online and the parties may 
not reside close to campus. Commenters asserted that since the proposed 
rules already allow the parties to be located in separate rooms, there 
is no reason not to also allow a recipient to hold the entire hearing 
virtually using technology. At least one commenter asserted that even 
allowing participation virtually would not make this provision fair 
because the commenter had a case in which a key witness was studying 
abroad in a country with a large time zone difference making it 
impossible for the witness to testify even remotely using technology. 
Commenters argued that coordinating the schedules of parties, advisors, 
hearing panels, and witnesses to appear for a live hearing will delay 
proceedings. Other commenters stated that some rural university systems 
have satellite campuses in remote locations off the road system, with 
insufficient internet access even to allow videoconferencing, posing 
significant barriers to complying with a live hearing requirement.
    Commenters asserted that all hearings should be recorded and either 
a transcript or video or audio recording should be provided to each 
party following the hearing, so the parties have access to it when 
appealing decisions or possibly for later use in litigation, because 
too many Title IX proceedings have occurred in secret, behind closed 
doors, with no record of the proceedings. According to this commenter, 
universities typically forbid parties from recording hearings and not 
having such a record can allow a

[[Page 30359]]

grievance board's illegal bias against a party to fester and remain 
unchecked by the university, regulatory agencies, or the courts.
    One commenter asserted that hearings should be closed and attended 
only by the parties, their advisors, witnesses, and school officials 
relevant to the hearing, and requested that confidentiality of the 
hearing be written into the final regulations.
    Discussion: The Department appreciates commenters' support for this 
provision, requiring postsecondary institutions to hold live hearings. 
The Department agrees that a live hearing gives both parties the most 
meaningful, transparent opportunity to present their views of the case 
to the decision-maker, reducing the likelihood of biased decisions, 
improving the accuracy of outcomes, and increasing party and public 
confidence in the fairness and reliability of outcomes of Title IX 
adjudications.
    The Department agrees with commenters that hearings and cross-
examination of witnesses are deeply rooted concepts in American legal 
systems, but disagrees that the principles underlying those procedures 
should be absent from postsecondary institutions' adjudications under 
Title IX. Administrative law ``seeks to ensure that those whose rights 
are affected by the decisions of administrative tribunals are given 
notice of hearings, guaranteed an oral, often public hearing, have a 
right to be represented, are granted disclosure of the case against 
them, are able to introduce evidence, call witnesses and cross-examine 
those testifying against them, have access to reason for decision, and 
an opportunity to appeal an adverse outcome. . . . The process assumes 
the value of an adversarial hearing in which impartial adjudicators are 
exposed to representations from those asserting a claim and those 
seeking a contrary finding.'' \1370\ Furthermore, while not all 
recipients use a hearing model in student misconduct matters, many do 
or have in the recent past.\1371\
---------------------------------------------------------------------------

    \1370\ Farzana Kara & David MacAlister, Responding to academic 
dishonesty in universities: a restorative justice approach, 13 
Contemporary Justice Rev. 4, 443-44 (2010) (internal citations 
omitted).
    \1371\ See Tamara Rice Lave, Ready, Fire, Aim: How Universities 
Are Failing The Constitution In Sexual Assault Cases, 48 Ariz. State 
L. J. 637, 656 (2016) (in a survey of 50 American universities, 84 
percent reported that they use an adjudicatory model with a hearing 
at which witnesses testify in front of a fact-finder); Vivian 
Berger, Academic Discipline: A Guide to Fair Process for the 
University Student, 99 Columbia L. Rev. 289 (1999) (authors surveyed 
200 public and private colleges and universities, and 90 percent of 
public institutions and 80 percent of private institutions reported 
using adjudicatory hearings with cross-examination rights).
---------------------------------------------------------------------------

    The Department agrees that postsecondary institutions are not 
equipped to act as courts of law. The final regulations acknowledge 
this reality by prescribing a grievance process that intentionally 
avoids importation of comprehensive rules of procedure (including 
discovery procedures) and rules of evidence that govern civil or 
criminal court trials. Instead, the Sec.  106.45 grievance process 
requires procedures rooted in fundamental concepts of due process and 
fairness that layperson recipient officials are capable of applying 
without professional legal training. The Department disagrees that live 
hearings transform Title IX adjudications into court proceedings; the 
advantages to reaching determinations about sex discrimination in the 
form of sexual harassment without going through a civil or criminal 
trial remain distinct under the final regulations.
    The Department disagrees that live hearings add no value to the 
fairness or accuracy of outcomes even where an investigation was full 
and fair. Despite some commenters' contention that recipients prefer 
moving to an investigative model rather than a hearing model, the 
Department believes that an adversarial adjudication model better 
serves the interests of fairness, accuracy, and legitimacy that 
underlie the Sec.  106.45 grievance process.
    The adversarial system ``stands with freedom of speech and the 
right of assembly as a pillar of our constitutional system.'' \1372\ 
Just as the final regulations reflect acute awareness of the importance 
of freedom of speech and academic freedom, these regulations are 
equally concerned with reflecting the importance of the adversarial 
model with respect to adjudications of contested facts. ``Rights like 
trial by jury and the assistance of counsel--the cluster of rights that 
comprise constitutional due process of law--are most important when the 
individual stands alone against the state as an accused criminal. The 
fundamental characteristics of the adversary system also have a 
constitutional source, however, in our administration of civil 
justice'' to redress grievances, resolve conflicts, and vindicate 
rights.\1373\ ``The Supreme Court has held that the Due Process Clauses 
protect civil litigants who seek recourse in the courts, either as 
plaintiffs attempting to redress grievances or as defendants trying to 
maintain their rights.'' \1374\ The final regulations recognize the 
importance of due process principles in a noncriminal context by 
focusing on procedures that apply equally to complainants and 
respondents and give both parties equal opportunity to actively pursue 
the case outcome they desire.
---------------------------------------------------------------------------

    \1372\ Geoffrey C. Hazard, Jr., Ethics in the Practice of Law 
122-23 (Yale Univ. Press 1978).
    \1373\ Monroe H. Freedman, Our Constitutionalized Adversary 
System, 1 Chapman L. Rev. 57, 66-67 (1998) (``In fact, the adversary 
system in civil litigation has played a central role in fulfilling 
the constitutional goals `to . . . establish Justice, insure 
domestic Tranquility, . . . promote the general Welfare, and secure 
the Blessings of Liberty. . . .' '') (quoting U.S. Const. Preamble).
    \1374\ Id. at 67.
---------------------------------------------------------------------------

    In addition to representing core constitutional values, an 
adversarial system yields practical benefits. ``[T]he available 
evidence suggests that the adversary system is the method of dispute 
resolution that is most effective in determining truth'' and that 
``gives the parties the greatest sense of having received justice.'' 
\1375\ ``An adversary presentation seems the only effective means for 
combating this natural human tendency to judge too swiftly in terms of 
the familiar that which is not yet fully known.'' \1376\ With respect 
to ``the idea of individual autonomy--that each of us should have the 
greatest possible involvement in, if not control over, those decisions 
that affect our lives in significant ways [--] . . . empirical studies 
that have been done suggest, again, a preference for the adversary 
system over the inquisitorial.'' \1377\

[[Page 30360]]

Studies conducted to determine ``whether a litigant's acceptance of the 
fairness of the actual decision is affected by the litigation system 
used'' have concluded that ``the perception of the fairness of an 
adversary procedure carries over to create a more favorable reaction to 
the verdict . . . regardless of the outcome.'' \1378\ As to commenters' 
contention that moving to an investigatory rather than hearing model 
resulted in increased reporting of sexual harassment, the Department 
emphasizes that the final regulations ensure that every complainant may 
report and receive supportive measures without undergoing an 
investigation or adjudication.\1379\
---------------------------------------------------------------------------

    \1375\ Id. at 73-74; David L. Kirn, Proceduralism and 
Bureaucracy: Due Process in the School Setting, 28 Stanford L. Rev. 
841, 847-49 (1976) (``In the classic due process hearing, the 
disputants themselves, not the decisionmaker, largely determine what 
evidence bearing on the issue is to be introduced. The veracity of 
that evidence is tested through questioning of witnesses, a 
procedure structured to uncover both lapses of memory and 
falsehoods, conducted by an advocate skilled in this enterprise. 
During the course of the hearing, the decisionmaker acts only to 
contain the colloquy within the bounds of the actual dispute. He is 
a disinterested and impartial arbiter, constrained to reach a 
judgment based exclusively on facts presented at the hearing, with 
respect to which there has been opportunity for rebuttal. His 
decision is a reasoned one that explicitly resolves disagreements 
concerning facts and relates a determination in the case before him 
to the governing rule. Subject to the availability of appeal, that 
decision is dispositive of the matter. These several elements of the 
ideal due process hearing are intended primarily to assure that 
factual determinations have been reliably made, and hence to promote 
the societal interest in just outcomes.''); id. (``Reliability, 
valued by society, is not the only end held to be promoted by due 
process. The participants to the dispute are themselves seen as 
better off. . . . Participation also assures that the individual is 
not being treated as a passive creature, but rather as a person 
whose dignitary rights include an interest in influencing what 
happens to his life. Personal involvement, it is argued, promotes 
fairness in individual perception as well as fairness in fact.'').
    \1376\ Monroe H. Freedman, Our Constitutionalized Adversary 
System, 1 Chapman L. Rev. 57, 76 (1998).
    \1377\ Id. at 87.
    \1378\ Id. at 89 (internal quotation marks and citations 
omitted).
    \1379\ Section 106.44(a).
---------------------------------------------------------------------------

    The Department does not dispute that other countries rely on an 
inquisitorial rather than adversarial model of adjudication, but Title 
IX is a Federal civil rights statute representing the American value 
placed on education programs and activities free from sex 
discrimination, and Title IX must be applied and interpreted in 
accordance with American law rather than laws and systems that prevail 
elsewhere.\1380\ While commenters cited research studies calling into 
doubt the truth-seeking effectiveness of the adversarial process and 
calling for reforms including moving toward inquisitorial models, the 
adversarial system remains deeply embedded in the U.S. Constitution and 
in American legal systems and civic values, and ``the research that has 
been done provides no justification for preferring the inquisitorial 
search for truth or for undertaking radical changes in our adversary 
system.'' \1381\
---------------------------------------------------------------------------

    \1380\ Monroe H. Freedman, Our Constitutionalized Adversary 
System, 1 Chapman L. Rev. 57, 74 (1998) (observing that 
sophisticated critics of the adversarial system of criminal and 
civil litigation ``have turned to the inquisitorial systems of 
continental European democracies for an alternative to the adversary 
system. The central characteristic of the inquisitorial model is the 
active role of the judge, who is given the principal responsibility 
for searching out the relevant facts. In an adversary system the 
evidence is presented in dialectical form by opposing lawyers; in an 
inquisitorial system the evidence is developed in a predominantly 
unilateral fashion by the judge, and the lawyers' role is 
minimal.'') (internal citation omitted).
    \1381\ Id. at 80; Crawford v. Washington, 541 U.S. 36, 43-44 
(2004). Although decided under the Sixth Amendment's Confrontation 
Clause which only applies to criminal trials, the Supreme Court 
analyzed the history of American legal systems' insistence that 
adversarial procedures rooted in English common law (as opposed to 
inquisitorial procedures utilized by civil law countries in Europe) 
represented fundamental notions of due process of law, and American 
founders deliberately rejected devices that English common law 
borrowed from civil law.
---------------------------------------------------------------------------

    The Department appreciates commenters' concerns that based on 
experience holding hearings, a hearing model was abandoned by 
particular recipients in favor of an investigatory model, but the 
Department disagrees that properly conducted hearings will become a 
springboard to introduce new evidence, derail hearings by embarrassing 
the parties, or require hearing panels to seek out extensive legal 
advice. The Department reiterates that recipients may adopt rules to 
govern a Title IX grievance process in addition to those required under 
Sec.  106.45, so long as such rules apply equally to both 
parties.\1382\ Thus, recipients may decide whether or how to place 
limits on evidence introduced at a hearing that was not gathered and 
presented prior to the hearing, and rules controlling the conduct of 
participants to ensure that questioning is done in a respectful manner. 
The Department reiterates that the procedures in Sec.  106.45 have been 
selected with awareness that decision-makers in Title IX grievance 
processes need not be judges or lawyers, and the Department believes 
that each provision of these final regulations may be complied with and 
applied by layperson recipient officials.
---------------------------------------------------------------------------

    \1382\ The introductory sentence of revised Sec.  106.45(b) 
provides: ``For the purpose of addressing formal complaints of 
sexual harassment, a recipient's grievance process must comply with 
the requirements of this section. Any provisions, rules, or 
practices other than those required by this section that a recipient 
adopts as part of its grievance process for handling formal 
complaints of sexual harassment as defined in Sec.  106.30, must 
apply equally to both parties.''
---------------------------------------------------------------------------

    The Department does not dispute that decision-makers are capable of 
being impartial and unbiased without the parties appearing at a live 
hearing, and the final regulations expect that decision-makers will 
serve impartially without bias. However, adversarial procedures make it 
even less likely that any bias held by a decision-maker will prevail 
because the parties' own views about the evidence are presented to the 
decision-maker, and the decision-maker observes the parties as 
individuals which makes it more difficult to apply even unconsciously-
held stereotypes or generalizations about groups of people.
    The Department agrees that a variety of administrative agency 
proceedings have been declared by courts to comport with constitutional 
due process utilizing procedures less formal than those that apply in 
criminal or even civil courts. The Department believes that the 
procedures embodied in the Sec.  106.45 grievance process meet or 
exceed constitutional due process of law, while being adapted for 
application with respect to an education program or activity, and do 
not mirror civil or criminal trials.
    The Department realizes that witnesses with information relevant to 
sexual harassment allegations that involve the witness's friends or co-
students may feel disinclined to provide information during an 
investigation, and perhaps more so at a live hearing. However, the 
importance of both parties' opportunity to present and challenge 
evidence--particularly witness statements--requires that a witness make 
statements in front of the decision-maker, with both parties' advisors 
able to cross-examine. This does not permit parties to coerce witnesses 
into appearing at a hearing. No person should coerce or intimidate any 
witness into participating in a Title IX proceeding, and Sec.  
106.71(a) protects every individual's right not to participate free 
from retaliation.
    The final regulations, and the live hearing requirement in 
particular, benefit complainants and respondents equally by granting 
both parties the same rights and specifying the same consequences for 
lack of participation. The safety of complainants can be addressed in 
numerous ways consistent with these final regulations, including 
holding the hearing virtually, having the parties in separate rooms, 
imposing no-contact orders on the parties, and allowing advisors of 
choice to accompany parties to the hearing. For the reasons described 
above, the Department believes that the final regulations balance the 
pendulum rather than swing the pendulum too far, in terms of balancing 
the rights of both parties in a contested sexual harassment situation 
to pursue their respective desires regarding the case outcome.
    The Department believes that the time and resources recipients have 
spent over the past several years developing non-hearing adjudication 
models can largely be applied to a recipient's obligations under these 
final regulations. For example, recipients who have developed thorough 
and fair investigative processes may continue to conduct such 
investigations. The benefits of a full, fair investigation will 
continue to be an important part of the Sec.  106.45 grievance process. 
Even though postsecondary institutions will reach actual determinations 
regarding responsibility after holding a live hearing, the time and 
resources dedicated to developing recipients' current systems will 
largely carry over into compliance with the final regulations.
    Where the facts alleged in a formal complaint are not contested, or 
where the respondent has admitted, or wishes

[[Page 30361]]

to admit responsibility, or where both parties want to resolve the case 
without a completed investigation or adjudication, Sec.  106.45(b)(9) 
allows a recipient to facilitate an informal resolution of the formal 
complaint that does not necessitate a full investigation or 
adjudication.\1383\ As noted above, even if no party appears for the 
live hearing such that no party's statements can be relied on by the 
decision-maker, it is still possible to reach a determination regarding 
responsibility where non-statement evidence has been gathered and 
presented to the decision-maker. Commenters' descriptions of an 
administrative disposition model, or a proposed voluntary resolution 
agreement, are permissible under the final regulations if applied as 
part of an informal resolution process in conformity with Sec.  
106.45(b)(9), which requires both parties' written, voluntary consent 
to the informal process. The Department declines to authorize one or 
both parties, or the recipient, simply to ``waive'' a live hearing, and 
Sec.  106.45(b)(9) in the final regulations impresses upon recipients 
that a recipient cannot condition enrollment, employment, or any other 
right on the waiver of rights under Sec.  106.45, nor may a recipient 
ever require parties to participate in an informal resolution process. 
Participating in mediation, which is a form of informal resolution, 
should remain a decision for each party, individually, to make in a 
particular case, and the Department will not require the parties to 
attempt mediation.
---------------------------------------------------------------------------

    \1383\ Section 106.45(b)(9) does not permit recipients to offer 
or facilitate informal resolution of allegations that an employee 
sexually harassed a student.
---------------------------------------------------------------------------

    The Department appreciates commenters' concerns that State APAs may 
prescribe grievance procedures that differ from those in a Sec.  106.45 
grievance process. To the extent that a recipient is able to comply 
with both, it must do so, and if compliance with both is not possible 
these final regulations, which constitute Federal law, preempt 
conflicting State law.\1384\ The Department cautions, however, that 
preemption may not be necessary where, for example, a State law 
requires fewer procedures than do these final regulations, such that a 
recipient complying with Sec.  106.45 is not violating State law but 
rather providing more or greater procedures than State law requires. To 
the extent that recipients find hearings under State APAs to be 
burdensome, the Department contends that the value of hearings 
outweighs such burdens, a policy judgment ostensibly shared by State 
legislatures that already require recipients to hold hearings.
---------------------------------------------------------------------------

    \1384\ For further discussion see the ``Section 106.6(h) 
Preemptive Effect'' subsection of the ``Clarifying Amendments to 
Existing Regulations'' section of this preamble.
---------------------------------------------------------------------------

    The Department generally does not disagree with the general 
propositions set forth in the Federal district court memorandum cited 
by commenters to explain that college discipline differs from Federal 
criminal processes.\1385\ The Department observes that the memorandum 
notes that ``Only where erroneous and unwise actions in the field of 
education deprive students of federally protected rights or privileges 
does a federal court have power to intervene in the educational 
process.'' \1386\ These final regulations precisely protect the rights 
and privileges owed to every person participating in an education 
program or activity under Title IX, a Federal civil rights law. In so 
doing, these final regulations reflect that a Title IX grievance 
process is not a criminal proceeding and defer to all recipients 
(public and private institutions) to make their own decisions within a 
consistent, predictable framework.
---------------------------------------------------------------------------

    \1385\ General Order on Judicial Standards of Procedure and 
Substance in Review of Student Discipline in Tax Supported 
Institutions of Higher Education, ED025805 (1968).
    \1386\ Id.
---------------------------------------------------------------------------

    In response to commenters' concerns that the NPRM was unclear about 
the extent of recipients' discretion to adopt rules and practices to 
govern the conduct of hearings (and other aspects of a grievance 
process) the Department has added to the introductory sentence of Sec.  
106.45(b): ``Any provisions, rules, or practices other than those 
required by Sec.  106.45 that a recipient adopts as part of its 
grievance process for handling formal complaints of sexual harassment 
as defined in Sec.  106.30, must apply equally to both parties.'' Under 
this provision a recipient may, for instance, adopt rules that instruct 
party advisors to conduct questioning in a respectful, non-abusive 
manner, decide whether the parties may offer opening or closing 
statements, specify a process for making objections to the relevance of 
questions and evidence, place reasonable time limitations on a hearing, 
and so forth. The Department declines to require recipients to offer 
``mitigating measures'' during hearings in addition to the shielding 
provision in Sec.  106.45(b)(6)(i) that requires a recipient to allow 
parties to participate in the live hearing in separate rooms upon any 
party's request. Similarly, recipients may adopt evidentiary rules 
(that also must apply equally to both parties), but any such rules must 
comport with all provisions in Sec.  106.45, such as the obligation to 
summarize all relevant evidence in an investigative report, the 
obligation to evaluate all relevant evidence both inculpatory and 
exculpatory, the right of parties to gather and present evidence 
including fact and expert witnesses, the right to pose relevant cross-
examination questions, and the rape shield provisions that deem sexual 
behavior evidence irrelevant subject to two exceptions. Thus, a 
recipient's additional evidentiary rules may not, for example, exclude 
relevant cross-examination questions even if the recipient believes the 
questions assume facts not in evidence or are misleading. In response 
to commenters' concerns that relevant questions might implicate 
information protected by attorney-client privilege, the final 
regulations add Sec.  106.45(b)(1)(x) to bar the grievance process from 
requiring, allowing, relying on, or otherwise using questions or 
evidence that constitute, or seek disclosure of, information protected 
under a legally recognized privilege. This bar on information protected 
under a legally recognized privilege applies at all stages of the Sec.  
106.45 grievance process, including but not limited to the 
investigator's gathering of evidence, inspection and review of 
evidence, investigative report, and the hearing. This protection of 
privileged information also applies to a privilege held by a recipient. 
Additionally, questions that are duplicative or repetitive may fairly 
be deemed not relevant and thus excluded.
    In response to commenters' concerns that holding live hearings is 
administratively time-consuming and presents challenges coordinating 
the schedules of all participants, the Department has revised this 
provision to allow a recipient discretion to conduct hearings 
virtually, facilitated by technology so participants simultaneously see 
and hear each other. The Department appreciates the concerns of 
commenters that some recipients operate programs or activities that are 
difficult to access via road systems and are in remote locations where 
technology is not accessible or reliable. The final regulations permit 
a recipient to apply temporary delays or limited extensions of time 
frames to all phases of a grievance process where good cause exists. 
For example, the need for parties, witnesses, and other hearing 
participants to secure transportation, or for the recipient to 
troubleshoot technology to facilitate a

[[Page 30362]]

virtual hearing, may constitute good cause to postpone a hearing.
    The Department is persuaded by commenters' suggestions that all 
hearings should be recorded or transcribed, and has revised Sec.  
106.45(b)(6)(i) to require recipients to create an audio or audiovisual 
recording, or transcript, of any live hearing and make that recording 
or transcript available to the parties for inspection and review. As 
the commenters asserted, such a recording or transcript will help any 
party who wishes to file an appeal pursuant to Sec.  106.45(b)(8) and 
also will reinforce the requirement that a decision-maker not have a 
bias for or against complainants or respondents generally or an 
individual complainant or respondent as set forth in Sec.  
106.45(b)(1)(iii).
    The Department appreciates the opportunity to clarify here that 
hearings under Sec.  106.45(b)(6) are not ``public'' hearings, and 
Sec.  106.71(a) states that recipients must keep confidential the 
identity of any individual who has made a report or complaint of sex 
discrimination, including any individual who has made a report or filed 
a formal complaint of sexual harassment, any complainant, any 
individual who has been reported to be the perpetrator of sex 
discrimination, any respondent, and any witness, except as permitted by 
the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, 
or as required by law, or as necessary to conduct the hearing.
    Changes: The Department has revised Sec.  106.45(b)(6)(i) to add 
language authorizing recipients to conduct live hearings virtually, 
specifically providing that live hearings pursuant to this subsection 
may be conducted with all parties physically present in the same 
geographic location, or at the recipient's discretion, any or all 
parties, witnesses, and other participants may appear at the live 
hearing virtually, with technology enabling participants simultaneously 
to see and hear each other. We have also revised this provision so that 
upon a party's request the parties must be in separate rooms for the 
live hearing, and not only for cross-examination. We have also revised 
Sec.  106.45(b)(6)(i) to add a requirement that recipients create an 
audio or audiovisual recording, or transcript, of any live hearing held 
and make the recording or transcript available to the parties for 
inspection and review.
    Additionally, we have revised the introductory sentence of Sec.  
106.45(b) to provide that any provisions, rules, or practices other 
than those required by Sec.  106.45 that a recipient adopts as part of 
its grievance process for handling formal complaints of sexual 
harassment as defined in Sec.  106.30, must apply equally to both 
parties.
    We have revised Sec.  106.45(b)(9) to provide that a recipient may 
not require as a condition of enrollment or continuing enrollment, or 
employment or continuing employment, or enjoyment of any other right, 
waiver of the right to an investigation and adjudication of formal 
complaints of sexual harassment consistent with Sec.  106.45. We have 
also added Sec.  106.71 prohibiting retaliation and stating that 
recipients must keep confidential the identity of any individual who 
has made a report or complaint of sex discrimination, including any 
individual who has made a report or filed a formal complaint of sexual 
harassment, any complainant, any individual who has been reported to be 
the perpetrator of sex discrimination, any respondent, and any witness, 
except as may be permitted by the FERPA statute or regulations, 20 
U.S.C. 1232g and 34 CFR part 99, or as required by law, or to carry out 
the purposes of 34 CFR part 106, including these final regulations.
    Finally, we have added Sec.  106.45(b)(1)(x) to bar the grievance 
process from requiring, allowing, relying on, or otherwise using 
questions or evidence that constitute, or seek disclosure of, 
information protected under a legally recognized privilege.
Section 106.45(b)(6)(ii) Elementary and Secondary School Recipients May 
Require Hearing and Must Have Opportunity To Submit Written Questions
    Comments: Many commenters supported Sec.  106.45(b)(6)(ii), making 
hearings optional for elementary and secondary schools and prescribing 
a right for parties to submit written questions to other parties and 
witnesses prior to a determination regarding responsibility whether a 
hearing is held or not. Commenters asserted that high school students 
deserve due process protections as much as college students, and 
believed that this provision provides adequate due process in 
elementary and secondary schools while taking into account that 
students in elementary and secondary schools are usually under the age 
of majority.
    Other commenters recounted personal experiences with family members 
being accused of sexual misconduct as high school students and argued 
that the required live hearings with cross-examination in Sec.  
106.45(b)(6)(ii) should also apply in high schools.
    Some commenters asserted that this provision should be modified to 
require live hearings and cross-examination in elementary and secondary 
schools, but only for peer-on-peer sexual harassment allegations; 
commenters argued that this level of due process was more consistent 
with Goss and Mathews \1387\ and where the allegations involve peers, 
the parties are on equal footing such that a hearing will effectively 
reduce risk of erroneous outcomes.
---------------------------------------------------------------------------

    \1387\ Commenters cited: Goss v. Lopez, 419 U.S. 565 (1975); 
Mathews v. Eldridge, 419 U.S. 565 (1975).
---------------------------------------------------------------------------

    Commenters requested that this provision be modified to expressly 
state that live hearings are not required in elementary and secondary 
schools, instead of the phrasing that the grievance process ``may 
require a live hearing.''
    Commenters called the written question process in this provision 
appropriately fair, flexible, and trauma-informed, and consistent with 
recommendations in the withdrawn 2011 Dear Colleague Letter. Commenters 
asserted that this provision, more so than Sec.  106.45(b)(6)(i), 
balances the potential benefits of cross-examination with the drawbacks 
of a live hearing, including the chilling effect on complainants, the 
significant cost to recipients, and the potential for errors and poor 
spur-of-the-moment judgment calls in a setting with critically high 
stakes. Many commenters approved of this provision and urged the 
Department to make it apply also to postsecondary institutions in 
replacement of Sec.  106.45(b)(6)(i) under which live hearings and 
cross-examination are required.
    Some commenters opposed this provision, asserting that even a 
written form of cross-examination exposes elementary and secondary 
school students to unnecessarily hostile proceedings and limits the 
discretion of local educators who are more knowledgeable about their 
students and school communities, obligating schools to expend valuable 
resources in an unwarranted manner. Commenters argued that this 
provision would allow five year old students (or their parents or 
advisors) to face off against other five year old students about the 
veracity of allegations with written questions and responses being 
exchanged. Commenters argued this is inappropriate because it does not 
take into account how to obtain information from young children or 
students with disabilities, creates an air of intimidation and 
potential revictimization, allows confidential information to be shared 
with ``countless individuals'' whereas an

[[Page 30363]]

appeal could address concerns about the investigation without sharing 
FERPA-protected information, and formal discipline proceedings 
involving potential exclusion of a public school student are already 
subject to State laws giving sufficient due process protections to an 
accused student.
    Commenters argued that in elementary and secondary schools, a 
formal investigation process is not always needed or advisable because 
often State law may require school interventions prior to when 
exclusionary discipline is considered. Commenters argued that this 
provision perpetuates America's patriarchal culture that already does 
not believe survivors, because this provision allows survivors to be 
questioned when we do not question someone who goes to the police and 
says they were robbed or someone who reports being hit by a car, so 
questioning sexual assault victims just gives perpetrators a chance to 
terrorize the victim again and fails to convey to the victim respect, 
belief, or justice.
    Commenters asserted that this provision essentially provides the 
non-hearing equivalent of cross-examination via the written submission 
of questions, but argued this will be difficult for elementary and 
secondary school officials to implement without significant legal 
guidance because the purpose of cross-examination is to judge 
credibility and officials will not know how to accomplish that purpose. 
Commenters argued it is unclear how many back-and-forth follow-up 
questions need to be allowed in this ``quasi-cross examination 
process'' and asserted that this process will result in even greater 
hesitation among classmates to offer information about the parties 
involved, because peer pressure looks different among susceptible 
children and adolescents than with college-age students and already 
works against ``tattling'' or ``ratting'' on fellow students. 
Commenters expressed concern that the written ``cross-examination'' 
procedure will delay the ability of schools to timely respond to sexual 
harassment complaints, that this procedure is not already in use by 
schools, and that a cycle of written questions at the end of already 
overly formal, prescribed procedures will only serve to extend the time 
frame for completing investigations impairing an elementary and 
secondary school recipient's ability to effectuate meaningful change to 
student behavior if the behavior is found to be misconduct.
    Commenters opposed this provision and urged the Department to 
remove the option for live hearings, because even permitting elementary 
and secondary schools the discretion to hold live hearings adds the 
possibility of a new layer to the investigative process that could 
subject a young student to cross-examination, which would intimidate 
and retraumatize victims.\1388\ Commenters argued that research has 
consistently shown the extreme importance of handling investigations 
and interviews properly when dealing with childhood sexual abuse 
situations, that subjecting child victims of sexual abuse to multiple 
interviews is re-traumatizing and that the interview process should be 
conducted with an interdisciplinary team and trained mental health 
professionals utilizing trauma-informed practices, yet Sec.  
106.45(b)(6)(ii) would allow school administrators to ignore all of 
these best practices that are in the interest of protecting young 
victims,\1389\ subjecting abused children to secondary 
victimization.\1390\
---------------------------------------------------------------------------

    \1388\ Commenters cited the Zydervelt 2016 study discussed in 
the ``Section 106.45(b)(6)(i) Postsecondary Institution Recipients 
Must Provide Live Hearings with Cross-Examination'' subsection of 
the ``Hearings'' subsection of the ``Section 106.45 Recipient's 
Response to Formal Complaints'' section of this preamble, for the 
proposition that cross-examination often relies on victim-blaming 
attitudes, sex stereotypes, and rape myths.
    \1389\ Commenters cited: Monit Cheung & Needha McNeil 
Boutt[eacute]-Queen, Assessing the Relative Importance of the Child 
Sexual Abuse Interview Protocol Items to Assist Child Victims in 
Abuse Disclosure, 25 Journal of Family Violence 11 (2010); John F. 
Tedesco & Steven V. Schnell, Children's Reactions to Sex Abuse 
Investigation and Litigation, 11 Child Abuse & Neglect 2 (1987); 
Joseph H. Beitchman et al., A Review of the Long-term Effects of 
Child Sexual Abuse, 16 Child Abuse & Neglect 1 (1992).
    \1390\ Commenters cited: Janet Leach Richards, Protecting Child 
Witnesses in Abuse Cases, 34 Family L. Quarterly 393 (2000).
---------------------------------------------------------------------------

    Commenters argued that the Supreme Court has held, even in the 
criminal law context, that a State's interest in protecting child abuse 
victims outweighs an accused's constitutional right to face-to-face 
confrontation of witnesses.\1391\ Commenters argued that child sexual 
abuse is far too common an experience among America's schoolchildren, 
and teachers, counselors, and principals have no training in, and are 
not, forensic interviewers, criminal investigators, judges, or evidence 
technicians, and thus no school district should even be allowed to 
choose a live hearing model for sexual misconduct allegations. 
Commenters stated that live hearings place a sharp spotlight on both 
parties, and students in elementary and secondary schools typically 
lack the maturity necessary to participate. Commenters argued that live 
hearings should not even be optional in elementary and secondary 
schools because it is difficult to imagine any positive effects of a 
respondent's attorney cross-examining a sixth grader alleging sexual 
harassment at school or a complainant's attorney cross-examining the 
alleged perpetrator. Commenters argued that live hearings should only 
be allowed for elementary and secondary schools if otherwise required 
under State law. Commenters stated that if live hearings are even an 
option, school districts will be inundated with requests to hold 
adversarial live hearings.
---------------------------------------------------------------------------

    \1391\ Commenters cited: Maryland v. Craig, 497 U.S. 836 (1990).
---------------------------------------------------------------------------

    Commenters asked for clarity as to which circumstances require an 
elementary and secondary school recipient to hold a live hearing, who 
would preside over a hearing, whether the hearing would need to be held 
on school grounds, and what responsibility the school district would 
have to mitigate re-traumatization, or whether if a school district 
opts to hold live hearings all the provisions in Sec.  106.45(b)(6)(i) 
would then apply.
    Commenters inquired whether a vocational school that is neither an 
elementary or secondary school, nor an institution of higher education, 
would have to follow Sec.  106.45(b)(6)(i), Sec.  106.45(b)(6)(ii), or 
some other process for Title IX adjudications.
    Commenters suggested that this provision be modified to state that 
a minor has the right for a parent to help the minor student pose 
questions and answer questions but that the parent (or advisor) is not 
allowed to write the questions or answers without input from the minor 
student; commenters reasoned that it would be unfair if a respondent 
was an adult capable of strategically posing questions while a minor 
complainant lacked the developmental ability to do the same. Other 
commenters argued that written submission of questions by the parties 
should never be allowed in the elementary and secondary school context 
because the procedure is likely to devolve into a fight between the 
parents of the complainant and parents of the respondent, further 
traumatizing both children involved.
    Discussion: The Department appreciates commenters' support for 
Sec.  106.45(b)(6)(ii) making hearings optional for elementary and 
secondary schools while providing opportunity for the parties to submit 
written questions and follow-up questions to other parties and 
witnesses with or without a hearing. The Department agrees that this 
provision ensures due process

[[Page 30364]]

protections and fairness while taking into account that students in 
elementary and secondary schools are usually under the age of majority. 
Thus, the Department declines to mandate hearings and cross-examination 
for elementary and secondary schools, including only as applied to 
allegations of peer-on-peer harassment, or to high schools. Even where 
the parties are in a peer age group, parties in elementary and 
secondary schools generally are not adults with the developmental 
ability and legal right to pursue their own interests on par with 
adults. The Department is persuaded by commenters' concerns that the 
language in this provision should state even more clearly that hearings 
are optional and not required, and has revised this provision to state 
that ``the recipient's grievance process may, but need not, provide for 
a hearing.'' For the reasons explained in the ``Section 106.45(b)(6)(i) 
Postsecondary Institution Recipients Must Provide Live Hearing with 
Cross-Examination'' subsection of the ``Hearings'' subsection of the 
``Section 106.45 Recipient's Response to Formal Complaints'' section of 
this preamble, the Department declines to make Sec.  106.45(b)(6)(ii) 
applicable to postsecondary institutions.
    The Department disagrees that the written submission of questions 
procedure in this provision exposes students to hostile proceedings, 
unnecessarily limits the discretion of local school officials, or 
obligates school districts to expend resources in an unwarranted 
manner. While due process of law is a flexible concept, at a minimum it 
requires notice and a meaningful opportunity to be heard, and the 
Department has determined that with respect to sexual harassment 
allegations under Title IX, both parties deserve procedural protections 
that translate those due process principles into meaningful rights for 
parties and increase the likelihood of reliable outcomes. This 
provision prescribes written submission of questions prior to 
adjudication, a procedure that benefits the truth-seeking purpose of 
the process even when the rights of a young student are exercised by a 
parent or legal guardian.
    The final regulations do not preclude a recipient from providing 
training to an investigator concerning effective interview techniques 
applicable to children or to individuals with disabilities. Even when a 
party's rights are being exercised by a parent, each party's interest 
in the case is best advanced when the parties have the right to review 
and present evidence; the Department disagrees that the Sec.  106.45 
grievance process results in confidential information being shared with 
``countless individuals'' or in violation of FERPA.\1392\ Section 
106.71 directs recipients to keep confidential the identity of any 
individual who has made a report or complaint of sex discrimination, 
including any individual who has made a report or filed a formal 
complaint of sexual harassment, any complainant, any individual who has 
been reported to be the perpetrator of sex discrimination, any 
respondent, and any witness, except as may be permitted by the FERPA 
statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as 
required by law, or to carry out the purposes of 34 CFR part 106, 
including these final regulations.
---------------------------------------------------------------------------

    \1392\ For further discussion see the ``Section 106.6(e) FERPA'' 
subsection of the ``Clarifying Amendments to Existing Regulations'' 
section of this preamble.
---------------------------------------------------------------------------

    The Department appreciates commenters' concerns that State laws 
already govern disciplinary proceedings, especially with respect to 
exclusionary discipline. The Department has determined that the 
procedural protections in Sec.  106.45 best serve the interests 
implicated in resolution of allegations of sexual harassment under 
Title IX, a Federal civil rights law, and discipline for non-Title IX 
matters does not fall under the purview of these final regulations. To 
the extent that these final regulations provide the same protections as 
State laws governing student discipline already provide, these final 
regulations pose no challenge for recipients; to the extent that a 
recipient cannot comply with both State law and these final 
regulations, these final regulations, as Federal law, would 
control.\1393\
---------------------------------------------------------------------------

    \1393\ For further discussion see the ``Section 106.6(h) 
Preemptive Effect'' subsection of the ``Clarifying Amendments to 
Existing Regulations'' section of this preamble.
---------------------------------------------------------------------------

    The Department disputes a commenter's contention that only sexual 
assault survivors are ``questioned'' when they report being assaulted; 
contrary to the commenter's assertion, robbery victims and hit-and-run 
victims are also ``questioned'' during criminal or civil proceedings. 
Similarly, students accused of cheating also are often questioned. 
Whether or not commenters accurately describe American culture as 
``patriarchal,'' the Department believes that these final regulations 
further the sex-equality mandate of Title IX by ensuring fair, accurate 
determinations regarding responsibility where sexual harassment is 
alleged under Title IX, so that sexual harassment victims receive 
remedies from recipients to promote equal educational access.
    The Department disagrees that this provision will require 
significant legal guidance for school officials to comply. The 
provision gives each party the opportunity to submit written questions 
to be asked of other parties and witnesses, including limited follow-up 
questions. The decision-maker then objectively evaluates the answers to 
such questions, and any other relevant evidence gathered and presented 
during the investigation and reaches a determination regarding 
responsibility. Although observing demeanor is not possible without 
live cross-examination, a decision-maker may still judge credibility 
based on, for example, factors of plausibility and consistency in party 
and witness statements. Specialized legal training is not a 
prerequisite for evaluating credibility, as evidenced by the fact that 
many criminal and civil court trials rely on jurors (for whom no legal 
training is required) to determine the facts of the case including the 
credibility of witnesses.
    This provision requires ``limited follow-up questions'' and leaves 
recipients discretion to set reasonable limits in that regard. The 
Department understands commenters' concerns that witnesses face peer 
pressure in many sexual harassment situations, and that stating factual 
information may be viewed as ``tattling'' or ``ratting out'' friends or 
fellow students which may be very uncomfortable for witnesses. Nothing 
in these final regulations purports to authorize recipients to compel 
witness participation in a grievance process, and Sec.  106.71(a) 
protects every individual from retaliation for participating or 
refusing to participate in a Title IX proceeding.
    The Department understands commenters' concerns that the written 
submission of questions procedure in Sec.  106.45(b)(6)(ii) may be a 
new procedure in elementary and secondary schools, and the concern that 
such a procedure may create a ``cycle'' that extends the time frame for 
concluding a grievance process. To clarify that the written submission 
of questions procedure need not delay conclusion of the grievance 
process, we have revised Sec.  106.45(b)(6)(ii) to state that the 
opportunity for each party to submit written questions to other parties 
and witnesses must take place after the parties are sent the 
investigative report, and before the determination regarding 
responsibility is reached. Because Sec.  106.45(b)(5)(vii) gives the 
parties ten

[[Page 30365]]

days \1394\ to submit a response to the investigative report, this 
revision to Sec.  106.45(b)(6)(ii) makes it clear that the written 
submission of questions procedure may overlap with that ten-day period, 
so that the written questions procedure need not extend the time frame 
of the grievance process.
---------------------------------------------------------------------------

    \1394\ As noted in the ``Other Language/Terminology Comments'' 
subsection of the ``Section 106.30 Definitions'' section of this 
preamble, the final regulations allow recipients to choose how to 
calculate ``days'' as used in these final regulations; a recipient 
may, for instance, calculate a ten-day period by calendar days, 
school days, business days, or other method.
---------------------------------------------------------------------------

    In order to leave school districts as much flexibility as possible 
while creating a consistent, predictable grievance process framework, 
the Department declines to foreclose the option of holding hearings 
(whether ``live'' or otherwise) in elementary and secondary schools. 
Local school officials, for example, could determine that their 
educational community is best served by holding live hearings for high 
school students, for students above a certain age, or not at all.\1395\ 
State law may prescribe hearings for school discipline matters, in 
which case by leaving hearings optional these final regulations makes a 
conflict with State laws less likely. Further, the final regulations 
clarify that this provision applies not only to elementary and 
secondary schools but also to any other recipient that is not a 
postsecondary institution, and the nature of such a recipient's 
operations may lead such a recipient to desire a hearing model for 
adjudications. For these reasons the final regulations leave hearings 
optional regardless of whether State law requires hearings. The 
Department understands commenters' concerns that if hearings are an 
option, school districts may become ``inundated'' with requests to hold 
hearings. The Department reiterates that this provision does not 
require elementary or secondary schools to use hearings (live or 
otherwise) to adjudicate formal complaints under Title IX, and any 
choice to do so remains within a recipient's discretion.
---------------------------------------------------------------------------

    \1395\ The Department notes that this provision states that non-
postsecondary institution recipients' grievance processes may, but 
need not, provide for a hearing. Therefore, the recipient has 
flexibility to make a hearing available on a case by case basis, for 
example where the Title IX Coordinator determines a hearing is 
needed, so long as the grievance process (of which the recipient's 
students and employees receive notice, pursuant to Sec.  106.8) 
clearly identifies the circumstances under which a hearing may, or 
may not, be held. A recipient's discretion in this regard is limited 
by the introductory sentence in Sec.  106.45(b) that any rules 
adopted by a recipient must apply equally to both parties. Thus, a 
recipient's grievance process could not, for example, state that a 
hearing will be held only if a respondent requests it, or only if a 
complainant agrees to it, but could state that a hearing will be 
held only if both parties request it or consent to it.
---------------------------------------------------------------------------

    As noted above, nothing in the final regulations precludes a 
recipient from training investigators in best practices for 
interviewing children, and the final regulations minimize the number of 
times a young victim might have to be interviewed, by not requiring 
appearances at live hearings. The Department understands that school 
officials are not forensic or criminal investigation experts, and 
recognizes that in many situations, conduct that constitutes sexual 
harassment as defined in Sec.  106.30 will also constitute sexual abuse 
resulting in law enforcement investigations. These final regulations 
contemplate the intersection of a recipient's investigation under Title 
IX with concurrent law enforcement activity, expressly stating that 
good cause may exist to temporarily delay the Title IX grievance 
process to coordinate or cooperate with a concurrent law enforcement 
investigation. The Department disagrees that these final regulations 
require schools to disregard best practices with respect to 
interviewing child sex abuse victims and reiterate that the final 
regulations do not preclude a recipient from training Title IX 
personnel in interview techniques sensitive to the unique needs of 
traumatized children.
    If an elementary and secondary school recipient chooses to hold a 
hearing (live or otherwise), this provision leaves the recipient 
significant discretion as to how to conduct such a hearing, because 
Sec.  106.45(b)(6)(i) applies only to postsecondary institutions. The 
Department desires to leave elementary and secondary schools as much 
flexibility as possible to apply procedures that fit the needs of the 
recipient's educational environment. The Department notes that Sec.  
106.45(b) requires any rules adopted by a recipient for use in a Title 
IX grievance process, other than those required under Sec.  106.45, 
must apply equally to both parties. Within that restriction, elementary 
and secondary school recipients retain discretion to decide how to 
conduct hearings if a recipient selects that option.
    In response to commenters wondering whether hearings are optional 
or required for a recipient that is neither a postsecondary institution 
nor an elementary and secondary school, the Department has revised 
Sec.  106.30 to define ``postsecondary institution'' and ``elementary 
and secondary school'' and clarify that Sec.  106.45(b)(6)(ii) applies 
to elementary and secondary schools and any ``other recipient that is 
not a postsecondary institution.''
    In response to commenters concerned about whether a minor party has 
the right to have a parent help pose questions and answers under this 
provision, we have added Sec.  106.6(g) to clarify that nothing in 
these regulations changes or limits the legal rights of parents or 
guardians to act on behalf of a party. The Department declines to 
specify whether a parent writing out questions or answers on behalf of 
the student-party must consult their child; this matter is addressed by 
other laws concerning the scope of a parent's legal right to act on 
behalf of their child. The Department understands commenters' concerns 
that the written submission of questions procedure may ``devolve into a 
fight'' between parents of minor parties, but reiterates that 
recipients retain discretion to adopt rules of decorum that, for 
example, require questions to be posed in a respectful manner (e.g., 
without using profanity or irrelevant ad hominem attacks). Further, the 
decision-maker has the obligation to permit only relevant questions to 
be asked and must explain to the party posing the question any decision 
to exclude a question as not relevant.
    Changes: The Department has revised Sec.  106.45(b)(6)(ii) to 
clarify that it applies to elementary and secondary schools and to 
``other recipients that are not postsecondary institutions,'' and to 
clarify that ``the recipient's grievance process may, but need not, 
provide for, a hearing.'' We have further revised Sec.  
106.45(b)(6)(ii) to provide that, with or without a hearing, after the 
recipient has sent the investigative report to the parties pursuant to 
Sec.  106.45(b)(5)(vii) and before reaching a determination regarding 
responsibility, the decision-maker(s) must afford each party the 
opportunity to submit written, relevant questions that a party wants 
asked of any party or witness, provide each party with the answers, and 
allow for additional, limited follow-up questions from each party.
    We have added definitions of ``elementary and secondary schools'' 
and ``postsecondary institutions'' in Sec.  106.30. We have also added 
Sec.  106.6(g) acknowledging that nothing in these final regulations 
abrogates the legal rights of parents or guardians to act on behalf of 
party. We have added Sec.  106.71 directing recipients to keep 
confidential the identity of any individual who has made a report or 
complaint of sex discrimination, including any individual who has made 
a report or filed a formal complaint of sexual harassment, any 
complainant, any individual who has been reported to be the perpetrator 
of sex discrimination, any respondent, and any witness, except

[[Page 30366]]

as may be permitted by the FERPA statute or regulations, 20 U.S.C. 
1232g and 34 CFR part 99, or as required by law, or to carry out the 
purposes of 34 CFR part 106, including these final regulations.
    Comments: Some commenters supported or opposed the rape shield 
protections in Sec.  106.45(b)(6)(ii) for the same reasons stated in 
support of or opposition to the same language in Sec.  
106.45(b)(6)(ii); see discussion under the ``Section 106.45(b)(6)(i) 
Postsecondary Institution Recipients Must Provide Live Hearings with 
Cross-Examination'' subsection of the ``Hearings'' subsection of the 
``Section 106.45 Recipient's Response to Formal Complaints'' section of 
this preamble.
    Some commenters argued that the two exceptions should be eliminated 
with respect to minors because the sexual behavior of children should 
never be relevant or asked about or because minors cannot legally 
consent and thus an exception where ``offered to prove consent'' serves 
no purpose with respect to minors.
    Discussion: The Department's incorporates here its response to 
commenters' support and opposition for the rape shield language stated 
in the ``Section 106.45(b)(6)(i) Postsecondary Institution Recipients 
Must Provide Live Hearings with Cross-Examination'' subsection of the 
``Hearings'' subsection of ``Section 106.45 Recipient's Response to 
Formal Complaints'' section of this preamble.
    The Department disagrees that the two exceptions (or even the 
exception that refers to ``consent'') should be eliminated in this 
provision because minors cannot legally consent to sexual activity. 
While this fact may make the issue of ``consent'' irrelevant in certain 
sexual harassment cases, consent may be relevant in other formal 
complaints investigated and adjudicated by elementary and secondary 
school recipients; for example, where the parties are over the age of 
consent in the relevant jurisdiction, or the age difference between the 
two minor parties is such that State law decriminalizes consensual 
sexual activity between the two individuals.\1396\ The Department will 
defer to State law regarding the age when a person has the ability to 
consent. Further, we have revised this provision in the final 
regulations to clarify that it applies not only to elementary and 
secondary schools but also to other recipients that are not 
postsecondary institutions, and parties associated with such ``other 
recipients'' may be adults rather than children. The Department thus 
retains the rape shield language in this provision, including the two 
exceptions, mirroring the rape shield language used in Sec.  
106.45(b)(6)(i).
---------------------------------------------------------------------------

    \1396\ The age of consent to sexual activity varies across 
States, from age 16 to age 18, and many States have a ``close in age 
exemption'' to decriminalize consensual sex between two individuals 
who are both under the age of consent. Age of Consent.net, United 
States Age of Consent Map, ``What is the legal Age of Consent in the 
United States?,'' https://www.ageofconsent.net/states.
---------------------------------------------------------------------------

    Changes: For the same reasons as discussed under Sec.  
106.45(b)(6)(i), the Department has revised the rape shield language in 
Sec.  106.45(b)(6)(ii) by clarifying that questions and evidence about 
the complainant's prior sexual behavior or predisposition are not 
relevant unless such questions or evidence are offered for one of the 
two exceptions (offered to prove someone other than the respondent 
committed the alleged conduct, or offered to prove consent).
    Comments: Some commenters supported or opposed the requirement in 
Sec.  106.45(b)(6)(ii) that decision-makers explain the reason for 
excluding any question proposed by a party as not relevant, for the 
same reasons stated in support or opposition for similar language in 
Sec.  106.45(b)(6)(i); see discussion under the ``Section 
106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live 
Hearings with Cross-Examination'' subsection of the ``Hearings'' 
subsection of the ``Section 106.45 Recipient's Response to Formal 
Complaints'' section of this preamble.
    Some commenters opposed this requirement because it would 
essentially force an elementary and secondary school administrator to 
make evidentiary determinations that can be difficult even for lawyers 
and judges. Commenters opposed this requirement based on personal 
experience handling questions from minor parties and their parents in 
Title IX proceedings and observing that many questions posed by parents 
are irrelevant, so having to explain the relevance of each excluded 
question would draw out the length of proceedings unnecessarily.
    Discussion: The Department incorporates here its response to 
commenters' support of and opposition to the similar provision in Sec.  
106.45(b)(6)(i) under which the decision-maker must explain any 
decision to exclude questions as not relevant; see the ``Section 
106.45(b)(6)(i) Postsecondary Institution Recipients Must Provide Live 
Hearings with Cross-Examination'' subsection of the ``Hearings'' 
subsection of the ``Section 106.45 Recipient's Response to Formal 
Complaints'' section of this preamble.
    The Department appreciates commenters' concerns that based on 
experience with parents exercising rights on behalf of students during 
Title IX proceedings, parents tend to pose a lot of irrelevant 
questions. The Department believes the burden of this requirement is 
outweighed by the right of parties (including when a party's rights are 
exercised by parents) to meaningfully participate in the grievance 
process through posing questions to the other party and witnesses, and 
understanding why a question has been deemed irrelevant is important to 
ensure that the parties feel confident that their perspectives about 
the facts and evidence are appropriately taken into account prior to 
the determination regarding responsibility being reached.
    Changes: None.

Determinations Regarding Responsibility

Section 106.45(b)(7)(i) Single Investigator Model Prohibited
Benefits of Ending the Single Investigator Model
    Comments: Many commenters supported the NPRM's prohibition on the 
single investigator model because it would reduce the risk of bias and 
unfairness. Commenters argued that ending the single investigator model 
would decentralize power from one individual, allow for checks and 
balances, reduce the risk of confirmation bias, and increase the 
overall fairness and reliability of Title IX proceedings. Commenters 
stated that a strict separation of investigative and decision-making 
functions is essential because it is unrealistic to expect a person to 
fairly review their own investigative work. One commenter argued that 
procedural protections are necessary but not sufficient to render fair 
outcomes; the commenter stated it is also necessary to prohibit, 
detect, and eliminate bias. The commenter argued that unbiased 
adjudicators are a bedrock principle of any disciplinary proceeding, 
and this principle has been well understood since the founding of this 
country and development of the common law.\1397\ Several commenters

[[Page 30367]]

asserted that schools are currently facing significant pressure from 
the media and general public to achieve ``social justice'' and find 
respondents guilty. Commenters argued that blending the investigative 
and adjudicative functions increases the risk of false positives (i.e., 
inaccurate findings of responsibility).
---------------------------------------------------------------------------

    \1397\ Commenters cited: The Federalist No. 10 (J. Madison) 
(``No man is allowed to be a judge in his own cause; because his 
interest would certainly bias his judgment, and, not improbably, 
corrupt his integrity.''). At least one commenter cited: Caperton v. 
A.T. Massey Coal Co., Inc., 556 U.S. 868, 867, 877 (2009) (common 
law recognized the need for unbiased adjudicators, and the U.S. 
Constitution incorporated and expanded upon the protections at 
common law against biased adjudicators).
---------------------------------------------------------------------------

    Several commenters submitted personal stories where investigators 
under the single investigator model acted improperly, for instance by 
meeting with complainants but not respondents, failing to promptly 
notify the respondent of charges, withholding evidence, ignoring 
exculpatory evidence, ignoring inconsistencies in complainant's 
testimony, framing language in an inflammatory way against the 
respondent, relying on triple hearsay favoring the complainant, and 
entering a suspected personal relationship with the complainant. 
Commenters stated that improper or biased actions by an investigator 
might at least be recognized and corrected where the decision-maker is 
a different person. A few commenters asserted that ending the single 
investigator model would reinforce a genuine live hearing process with 
cross-examination. One commenter suggested that the single investigator 
model precludes effective confrontation of witnesses because even where 
there is a live hearing the investigator's finding is a ``heavy thumb 
on the scale.'' Commenters noted that under the single investigator 
model often there is no live hearing at all where parties can probe 
each other's credibility, and no opportunity for parties to know what 
evidence the investigator is considering before rendering an ultimate 
decision.
    Discussion: The Department appreciates the support from commenters 
for Sec.  106.45(b)(7)(i) of the final regulations which, among other 
things, would require the decision-maker to be different from any 
person who served as the Title IX Coordinator or investigator, thus 
foreclosing recipients from utilizing a ``single investigator'' or 
``investigator-only'' model for Title IX grievance processes. The 
Department believes that fundamental fairness to both parties requires 
that the intake of a report and formal complaint, the investigation 
(including party and witness interviews and collection of documentary 
and other evidence), drafting of an investigative report, and ultimate 
decision about responsibility should not be left in the hands of a 
single person (or team of persons each of whom performed all those 
roles). Rather, after the recipient has conducted its impartial 
investigation, a separate decision-maker must reach the determination 
regarding responsibility; that determination can be made by one or more 
decision-makers (such as a panel), but no decision-maker can be the 
same person who served as the Title IX Coordinator or investigator.
    Commenters correctly noted that separating the investigative and 
decision-making functions will not only increase the overall fairness 
of the grievance process but also will increase the reliability of 
fact-finding and the accuracy of outcomes, as well as improve party and 
public confidence in outcomes. Combining the investigative and 
adjudicative functions in a single individual may decrease the accuracy 
of the determination regarding responsibility, because individuals who 
perform both roles may have confirmation bias and other prejudices that 
taint the proceedings, whereas separating those functions helps prevent 
bias and prejudice from impacting the outcome.
    Changes: None.
Consistency With Case Law
    Comments: Several commenters contended that ending the single 
investigator model would be consistent with case law. Commenters cited 
cases where courts overturned recipient findings against respondents, 
raised concerns regarding preconceptions and biases that may arise 
where a single person has the power to investigate, prosecute, and 
convict, and asserted that a single investigator model can impede 
effective cross-examination and credibility determinations.\1398\ On 
the other hand, some commenters cited case law to suggest the single 
investigator model can be fair and appropriate.\1399\
---------------------------------------------------------------------------

    \1398\ Commenters cited: Doe v. Claremont McKenna Coll., 25 Cal. 
App. 5th 1055, 1072-73 (Cal. App. 2018) (all decision makers ``must 
make credibility determinations, and not simply approve the 
credibility determinations of the one Committee member who was also 
the investigator.''); Doe v. Miami Univ., 882 F.3d 579, 601, 605 
(6th Cir. 2018) (court found ``legitimate concerns'' raised by the 
investigator's ``alleged dominance on the three-person [decision 
making] panel,'' because ``she was the only one of the three with 
conflicting roles.''); Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 
573 (D. Mass. 2016) (referring to the ``obvious'' ``dangers of 
combining in a single individual the power to investigate, 
prosecute, and convict, with little effective power of review''); 
Doe v. Allee, 30 Cal. App. 5th 1036, 1068 (Cal. App. 2019) (``As we 
have explained, in U.S.C.'s system, no in-person hearing is ever 
held, nor is one required. Instead, the Title IX investigator 
interviews witnesses, gathers other evidence, and prepares a written 
report in which the investigator acts as prosecutor and tribunal, 
making factual findings, deciding credibility, and imposing 
discipline. The notion that a single individual, acting in these 
overlapping and conflicting capacities, is capable of effectively 
implementing an accused student's right of cross-examination by 
posing prepared questions to witnesses in the course of the 
investigation ignores the fundamental nature of cross-examination: 
Adversarial questioning at an in-person hearing at which a neutral 
fact finder can observe and assess the witness' credibility.'').
    \1399\ Commenters cited: Withrow v. Larkin, 421 U.S. 35, 49 
(1975) (rejecting the argument that a ``combination of investigative 
and adjudicative functions necessarily creates an unconstitutional 
risk of bias''); Hess v. Bd. of Trustees of So. Ill. Univ., 839 F.3d 
668 (7th Cir. 2016) (bias of decision-maker would violate due 
process, but combination of investigative and adjudicative functions 
into a single person does not, by itself, demonstrate that the 
decision-maker is actually biased); Pathak v. Dep't. of Veterans 
Affairs, 274 F.3d 28, 33 (1st Cir. 2001); Doe v. Purdue Univ., 281 
F. Supp. 3d 754, 779 (N.D. Ind. 2017), aff'd, Doe v. Purdue Univ., 
928 F.3d 652 (7th Cir. 2019).
---------------------------------------------------------------------------

    Discussion: The Department appreciates commenters' input on the 
consistency of the single investigator model with case law. We 
acknowledge that the Supreme Court has held that a biased decision-
maker violates due process but that combining the investigative and 
adjudicative functions in a single agency does not present a 
constitutional due process problem.\1400\ The final regulations comport 
with that holding, inasmuch as a single recipient is expected to 
perform the investigative and adjudicative roles in a Title IX 
grievance process. As noted by commenters, lower courts have reached 
mixed results as to whether a single person performing the 
investigative and adjudicative functions in a student misconduct 
process violates due process.\1401\
---------------------------------------------------------------------------

    \1400\ Kenneth Oshita, Home Court Advantage? The SEC and 
Administrative Fairness, 90 S. Cal. L. Rev. 879, 902 (2017) (noting 
that the Supreme Court established that ``the combination of 
investigative and adjudicative functions does not, without more, 
constitute a due process violation'' but continuing, 
``Interestingly, the Withrow Court recognized that a biased 
adjudicator is `constitutionally unacceptable' and that `our system 
of law has always endeavored to prevent even the probability of 
unfairness.' Yet, even recognizing the importance of fairness in 
this constitutional principle, the Court reasoned that the 
combination of functions within an agency is constitutionally 
acceptable.'') (citing Withrow v. Larkin, 421 U.S. 35, 49 (1975)).
    \1401\ E.g., Richard H. Underwood, Administrative Adjudication 
in Kentucky: Ethics and Unauthorized Practice Considerations, 29 N. 
Ky. L. Rev. 359, 361 (2002) (``[T]he case law generally rejects the 
proposition that a combination of functions in one agency 
necessarily creates an unconstitutional risk of bias, or that such a 
combination automatically constitutes a denial of due process such 
as to warrant disqualification of the involved administrative 
adjudicator. On the other hand, when functions are combined in a 
single individual, the case for disqualification for `unfairness' or 
bias is stronger. How can an administrative adjudicator deal fairly 
with a party or parties if he or she has performed other functions--
investigatory or prosecutorial--in the same matter?'') (internal 
quotation marks and citations omitted; emphasis added).
---------------------------------------------------------------------------

    Notwithstanding whether the single investigator model withstands 
constitutional scrutiny under due process requirements, the Department 
believes that combining these functions raises an unnecessary risk of 
bias that

[[Page 30368]]

may unjustly impact one or both parties in a given Title IX 
proceeding.\1402\ Particularly because the stakes are so high in these 
cases, with potentially life-altering consequences that may flow from a 
decision in favor of either party, the Department believes that 
separating investigation from decision making is important to promote 
the overall fairness of the process.
---------------------------------------------------------------------------

    \1402\ Michael R. Lanzarone, Professional Discipline: Unfairness 
and Inefficiency in the Administrative Process, 51 Fordham L. Rev. 
818, 827 (1983) (noting that the ``commingling of investigatory and 
adjudicatory functions'' is a ``daily occurrence in [professional] 
disciplinary proceedings. The Supreme Court in [Withrow v. Larkin, 
421 U.S. 35 (1975)], however, concluded that the Constitution 
tolerates such commingling. Entirely apart from any specific 
constitutional infirmities, the question remains whether the basic 
unfairness of the procedure counsels against its use.'') (internal 
citations omitted); id. at fn. 60 (``There are dangers in allowing 
an individual who has investigated misconduct and determined that 
there is probable cause to suspend a professional's license to sit 
as a trier of fact in a later de novo hearing. The state board that 
is responsible for professional discipline may view its role as more 
of a prosecutor than as a disinterested finder of fact. A board of 
education may find it difficult to be unbiased when the chief 
executive of the school district has already recommended dismissal 
of a tenured teacher. And the danger of bias undoubtedly increases 
when an individual actually conducts an investigation (as opposed to 
passing upon another's work) and then sits as the trier of fact to 
hear and pass upon the credibility of witnesses.'').
---------------------------------------------------------------------------

    Changes: None.
Alternative Approaches To Ending Single Investigator Model
    Comments: Some commenters asserted that ending the single 
investigator model is unnecessary to reduce bias and may in fact 
increase the risk of unfairness. Commenters argued that Title IX 
investigators are highly-trained professionals who are often most 
familiar with the evidence and best-positioned to make credibility 
determinations and render consistent decisions. These commenters 
suggested that requiring different decision-makers may increase the 
risk of overlooked details and incorrect outcomes because other persons 
may not be as close to the evidence as investigators.
    Some commenters argued that hybrid models are adequate and can 
satisfy due process concerns because, for example, hybrid models in use 
by some recipients use an investigator (or team of investigators) to 
gather evidence and write up recommendations about responsibility yet 
allow both parties to review gathered evidence and pose questions to 
each other, and hold live hearings for the sanctioning and appeals 
processes, while parties may resort to civil litigation to challenge 
the school's proceedings. One commenter acknowledged the possibility of 
bias within the single investigator model and recommended a hybrid 
system involving investigation by an impartial investigator followed by 
referral to a student conduct system for live hearing. One commenter 
proposed that the Department's concern regarding bias with the single 
investigator model could be addressed through less restrictive means, 
such as by allowing parties to assert alleged bias before or during an 
investigation and by offering an appeal to a different decision-maker 
to consider alleged bias during the investigation. One commenter 
suggested that the Department allow recipients who use two 
investigators to also use them as decision-makers. This commenter 
argued that two investigators are in the best position to review all 
the evidence and determine responsibility and appropriate sanction; 
moreover, ensuring two investigators assigned to each case prevents any 
one person from being decision-maker and allows the second person to 
serve as an effective check. Other commenters asserted that prohibiting 
the single investigator model is unnecessary because the Department 
already carefully safeguarded the selection process for investigators, 
Title IX Coordinators, and decision-makers by prohibiting bias and 
conflicts of interest in Sec.  106.45(b)(1)(iii).
    Discussion: The Department believes the robust training and 
impartiality requirements for all individuals serving as Title IX 
Coordinators, investigators, or decision-makers contained in Sec.  
106.45(b)(1)(iii) of the final regulations \1403\ will effectively 
promote the reliability of fact-finding and the overall fairness and 
accuracy of the grievance process. In addition, the final regulations 
require that any materials used to train Title IX personnel must not 
rely on sex stereotypes. We believe these measures will promote 
consistent outcomes, addressing commenters' concerns about decision-
makers not having the same level of training or expertise as 
investigators. Furthermore, Sec.  106.45(b)(5)(vii) requires the 
investigator to prepare an investigative report that fairly summarizes 
all relevant evidence, and therefore the parties and decision-maker 
will be aware of the evidence gathered during the investigation.
---------------------------------------------------------------------------

    \1403\ The final regulations revise Sec.  106.45(b)(1)(iii) to 
include training for persons who facilitate informal resolution 
processes, in addition to Title IX Coordinators, investigators, and 
decision-makers.
---------------------------------------------------------------------------

    The Department appreciates commenters' suggestion that a ``hybrid'' 
model could provide many of the same checks against bias and inaccuracy 
as complete separation of the investigation and adjudication roles. 
However, the Department believes that formally separating the 
investigative and adjudicative roles in the Title IX grievance process 
is important to reduce the risk and perception of bias, increase the 
reliability of fact-finding, and promote sound bases for responsibility 
determinations. As such, the Department concludes that adopting the 
various less restrictive means that commenters suggested to reduce the 
bias inherent in the single investigator model, such as permitting two 
investigators to also serve as decision-makers, would not go far enough 
to promote these important goals. Consistent with the commenters' 
suggestion, however, the Department also emphasizes that Sec.  
106.45(b)(8), in addition to requiring that recipients offer appeals 
for both parties, explicitly permits either party to assert that the 
Title IX Coordinator, investigator, or decision-maker had a conflict of 
interest or bias. These provisions are meant to reinforce each other in 
increasing the fairness of Title IX proceedings.
    Changes: None.
Chilling Reporting and Other Harmful Effects
    Comments: Commenters suggested that ending the single investigator 
model would increase the number of people who must be involved in the 
Title IX process, and this may increase the risk of untrained and 
biased people shaming survivors and not believing in them, and also 
lead to re-traumatization for survivors having to share their stories 
multiple times. Commenters suggested that ending the single 
investigator model reinforces the requirement for traumatizing and 
unnecessary live hearings with cross-examination, which could 
discourage reporting. Commenters argued that the single investigator 
model reduces pressure on both parties because the investigator can 
interact with each party in a less stressful, less adversarial setting.
    Commenters asserted that the NPRM's prohibition of the single 
investigator model could be problematic under Title IX and potentially 
harmful to parties who want closure, because requiring a separate 
decision-maker could lengthen the adjudicative process, make it less 
efficient, and delay resolutions. One commenter argued that ending the 
single investigator model could frustrate the NPRM's due process goals, 
by perversely incentivizing recipients to avoid the NPRM's formal 
grievance process through informal resolution, or incentivize schools 
to not provide an

[[Page 30369]]

appeal process due to added compliance costs.
    Discussion: The Department does not believe that precluding a 
single investigator model for investigations and adjudications will 
discourage reporting, traumatize parties, unreasonably lengthen the 
grievance process, or incentivize recipients to forgo important due 
process protections for parties. Rather, the purpose of formally 
separating the investigative and adjudicative functions is to reduce 
the risk of bias, increase the reliability of fact-finding, and promote 
sound bases for determinations of responsibility. The Department 
acknowledges that without a requirement that the decision-maker be 
separate from any person that performed the role of Title IX 
Coordinator and investigator, a complainant potentially could give a 
statement only once--to the single person or team of people performing 
all those functions, and that complainants may feel intimidated by 
needing speak with more than one person during the course of the 
grievance process. Such a necessity, however, is not different from 
participation in any typical adjudicative process, whether civil or 
criminal, where a complainant (or civil plaintiff, or victim-witness in 
a criminal case) would also need to recount the allegations and answer 
questions several times during the course of an investigation and 
adjudication. Because a grievance process must contain consistent 
procedural protections in order to reach factually accurate outcomes, 
the final regulations ensure that a complainant retains control over 
deciding whether to participate in a grievance process \1404\ and 
ensures that a complainant can receive supportive measures to restore 
or preserve the complainant's equal access to education regardless of 
whether a grievance process is undertaken.\1405\ The final regulations 
also permit recipients to offer and facilitate informal resolution 
processes which can resolve allegations without a full investigation 
and adjudication.\1406\
---------------------------------------------------------------------------

    \1404\ E.g., Sec.  106.30 specifies that only a complainant, or 
a Title IX Coordinator, can sign or file a formal complainant 
initiating the grievance process such that even if a report about 
the complainant's alleged victimization is made to the recipient by 
a third party, the complainant retains autonomy to decide whether to 
file a formal complaint; Sec.  106.30 revises the definition of 
``complainant'' to remove the phrase ``or on whose behalf the Title 
IX Coordinator files a formal complaint'' to clarify that even when 
a Title IX Coordinator does sign a formal complaint initiating a 
grievance process, that action is not taken ``on behalf of'' the 
complainant, so that the complainant remains in control of when a 
formal process is undertaken on the complainant's behalf. The final 
regulations removed proposed Sec.  106.44(b)(2) that would have 
required a Title IX Coordinator to file a formal complaint upon 
receipt of multiple reports against the same respondent, in order to 
avoid situations where a Title IX Coordinator would have been forced 
(by the proposed rules) to sign a formal complaint over the wishes 
of a complainant. The final regulations add Sec.  106.71 prohibiting 
retaliation and including under prohibited actions those taken to 
dissuade a complainant from reporting or filing and those taken to 
punish a complainant (or anyone else) from refusing to participate 
in a Title IX proceeding.
    \1405\ E.g., Sec.  106.44(a) requires the Title IX Coordinator 
promptly to contact each complainant to discuss the availability of 
supportive measures (with or without a formal complaint being 
filed), consider the wishes of the complainant with respect to 
supportive measures, and explain to the complainant the process for 
filing a formal complaint.
    \1406\ Section 106.45(b)(9) (permitting informal resolutions of 
any formal complaint except where the allegations are that an 
employee has sexually harassed a student).
---------------------------------------------------------------------------

    Contrary to the claims made by some commenters that increasing the 
number of people who must be involved in the formal grievance process 
would increase the risk of using untrained personnel and causing 
unfairness, the Department believes that the robust training and 
impartiality requirements contained in Sec.  106.45(b)(1)(iii) that 
apply to all individuals participating as Title IX Coordinators, 
investigators, decision-makers, or persons facilitating informal 
resolution processes, reduce these risks. Furthermore, ensuring that 
the investigative and adjudicative functions are performed by different 
individuals is critical for effective live cross-examination, as other 
commenters noted, because under the single investigator model the 
decision-maker may be biased in favor of the decision-maker's own 
investigative recommendations and conclusions rather than listening to 
party and witness statements during a hearing impartially and with an 
open mind; similarly, if the decision-maker is the same person as the 
Title IX Coordinator the decision-maker may be influenced by 
information gleaned from a complainant due to implementation of 
supportive measures rather than by information relevant to the 
allegations at issue. Moreover, under the single investigator model 
often there is no live hearing where parties can probe each other's 
credibility and as discussed under Sec.  106.45(b)(6)(i), the 
Department believes that live hearings are a critical part of a fair 
process in the postsecondary context.
    The Department acknowledges concerns that separating the 
investigative and adjudicative functions may lengthen the adjudicative 
process in some cases. However, we emphasize that Sec.  106.45(b)(1)(v) 
of the final regulations requires that the grievance process be 
completed within a reasonably prompt time frame, including completion 
of a live hearing (for postsecondary institutions). We do not believe 
that eliminating the single investigator model will incentivize 
recipients to offer informal resolution process to avoid the grievance 
process. We have revised Sec.  106.45(b)(9) so that informal 
resolutions must be voluntarily agreed to by each party, forbidding 
recipients from requiring any party to participate in an informal 
process, and preventing recipients from conditioning enrollment, 
employment, or any other right on a party's participation in informal 
resolution. We have also revised Sec.  106.45(b)(8) to require 
recipients to offer appeals equally to both parties, which also must be 
subject to a recipient's designated, reasonably prompt time frames; 
this revision also ensures that recipients cannot rationalize removal 
of the single investigator model as a reason to refuse to offer an 
appeal.
    Changes: We have revised Sec.  106.45(b)(9) governing informal 
resolutions, to forbid recipients from requiring parties to participate 
in informal resolution and to preclude recipients from conditioning 
enrollment, employment, or enjoyment of rights on a party's 
participation in informal resolution. We have revised Sec.  
106.45(b)(8) governing appeals to require recipients to offer appeals 
equally to both parties, on three specified bases: Procedural 
irregularity, newly discovered evidence, or conflict of interest or 
bias on the part of Title IX personnel.
Respecting the Roles of Title IX Coordinators and Investigators
    Comments: A few commenters asserted that excluding Title IX 
Coordinators and investigators from any decision-making role is 
inherently insulting to them because it undervalues their training, 
professionalism, and expertise. One commenter proposed that the 
Department require separate investigators and decision-makers, but not 
prohibit Title IX Coordinators from being decision-makers. This 
commenter reasoned that Title IX Coordinators are highly trained 
professionals and Title IX subject matter experts who are reliably 
impartial and that removing their expertise from the equation may 
increase the risk of bias, unfairness, and inconsistency across cases.
    Discussion: The Department appreciates the integrity and 
professionalism of individuals serving as Title IX Coordinators. 
However, and as discussed above, given the high stakes involved for all 
parties in Title IX

[[Page 30370]]

cases, the Department believes that separating the investigative and 
adjudicative functions is essential to mitigate the risk of bias and 
unfairness in the grievance process. The final regulations would not 
remove the expertise of Title IX Coordinators from the grievance 
process. Section 106.45(b)(7)(i) does not prevent the Title IX 
Coordinator from serving as the investigator; rather, this provision 
only prohibits the decision-maker from being the same person as either 
the Title IX Coordinator or the investigator. As other commenters have 
pointed out, the final regulations place significant responsibilities 
on Title IX Coordinators. Separating the functions of a Title IX 
Coordinator from those of the decision-maker is no reflection on the 
ability of Title IX Coordinators to serve impartially and with 
expertise. Rather, requiring different individuals to serve in those 
roles acknowledges that the different phases of a report and formal 
complaint of sexual harassment serve distinct purposes. At each phase, 
the person responsible for the recipient's response likely will receive 
information and have communications with one or both parties, for 
different purposes. For example, the Title IX Coordinator must inform 
every complainant about the availability of supportive measures and 
coordinate effective implementation of supportive measures, while the 
investigator must impartially gather all relevant evidence including 
party and witness statements, and the decision-maker must assess the 
relevant evidence, including party and witness credibility, to decide 
if the recipient has met a burden of proof showing the respondent to be 
responsible for the alleged sexual harassment. Placing these varied 
responsibilities in the hands of a single individual (or even team of 
individuals) risks the person(s) involved improperly relying on 
information gleaned during one role to affect decisions made while 
performing a different role. For example, a Title IX Coordinator may 
have a history of communications with the complainant before any formal 
complaint has been filed (for instance, due to implementing supportive 
measures for the complainant), which may influence the Title IX 
Coordinator's perspective about the complainant's situation before the 
Title IX Coordinator (if allowed to be the ``decision-maker'') has even 
spoken with the respondent. Similarly, an investigator may obtain 
information from a party that is not related to the allegations under 
investigation during an interview with a party, and if the investigator 
also serves as the decision-maker, such unrelated information may 
influence that person's decision making, resulting in a determination 
that is not based on relevant evidence. Separating the roles of 
investigation from adjudication therefore protects both parties by 
making a fact-based determination regarding responsibility based on 
objective evaluation of relevant evidence more likely.
    Changes: None.
Preserving Recipient Autonomy
    Comments: Several commenters contended that ending the single 
investigator model constitutes Federal overreach into recipient 
decision making. Commenters emphasized that recipients vary widely in 
size, resources, mission, and composition of students, faculty, and 
staff, and that imposing a one-size-fits-all approach on them by ending 
the single investigator model is unwise. Commenters argued that, 
currently, disciplinary processes are tailored to fit each recipient's 
unique needs, including the single investigator model where a recipient 
has deemed that to best fit the recipient's needs. Commenters argued 
that the Department should not limit school autonomy or dictate how 
private institutions allocate their staff.
    Discussion: The Department respects the importance of granting 
recipients flexibility and discretion to design and implement policies 
and procedures that reflect their unique values and the needs of their 
educational communities. However, this interest must be balanced with 
other important goals, including increasing the reliability of fact-
finding, the overall fairness in the process, and the accuracy of 
responsibility determinations. Title IX is a Federal civil rights law 
that requires recipients to operate education programs and activities 
free from sex discrimination, and when a recipient is presented with 
allegations of sexual harassment, the Department and the recipient have 
an interest in ensuring that the recipient applies procedures designed 
to accurately identify the nature of sexual harassment that has 
occurred in the recipient's education program or activity. The 
Department believes that separating the investigative and adjudicative 
functions most effectively balance the goals of ensuring accurate 
identification of sexual harassment and respecting recipients' 
autonomy. The Department notes that the final regulations leave 
significant flexibility to recipients, including whether the Title IX 
Coordinator can also serve as the investigator, whether to use a panel 
of decision-makers or a single decision-maker, and whether to use the 
recipient's own employees or outsource investigative and adjudicative 
functions to professionals outside the recipient's employ.
    Changes: None.
Consistency With Federal Law and Employment Practices
    Comments: Some commenters argued that ending the single 
investigator model would conflict with Federal and State laws and 
employment practices. One commenter reasoned that if the respondent is 
an employee, then the site administrator with line authority may be in 
best position to investigate due to confidentiality with personnel 
issues and the Department should not create a conflicting process. 
Commenters argued that the NPRM's prohibition of the single 
investigator model is unworkable in the employee context, especially 
where schools take disciplinary action against at-will employees 
because at-will employees do not have the same due process rights to 
their jobs as students do to their education. Commenters asserted that 
ending the single investigator model could conflict with existing 
collective bargaining agreements and faculty handbooks. Commenters also 
asserted that the NPRM's application to the employment context is 
problematic because workplace harassment is already addressed by Title 
VII and State non-discrimination laws.
    Discussion: The Department acknowledges efficiency interests and 
the value of a recipient's flexibility and discretion to address sexual 
misconduct situations involving the recipient's employees, such as by 
using site administrators to investigate and adjudicate complaints 
against employee-respondents. However, these interests must be balanced 
with other important goals, including increasing the reliability of 
fact-finding, the overall fairness in the process, and the accuracy of 
responsibility determinations. The Department believes that separating 
the investigative and adjudicative functions most effectively promotes 
these goals. As such, the prohibition of the single investigator model 
contained in Sec.  106.45(b)(7)(i) of the final regulations would apply 
to all recipients, including elementary and secondary schools and 
postsecondary institutions, and it would also equally apply to student 
and employee respondents. For reasons discussed in the ``Section 
106.6(f) Title VII and Directed Question 3 (Application to Employees)'' 
subsection of the ``Clarifying Amendments to Existing Regulations'' 
section of this preamble, these final regulations apply

[[Page 30371]]

to any person, including employees, in an education program or activity 
receiving Federal financial assistance.
    A recipient may use a site administrator to conduct the 
investigation into a formal complaint of sexual harassment against an 
employee, as long as the site administrator is not the decision-maker, 
as set forth in Sec.  106.45(b)(7)(i). In that situation, the recipient 
must designate someone other than the site administrator to serve as 
the decision-maker. If the recipient would like the site administrator 
to serve as the decision-maker, then the recipient must designate 
someone other than the site administrator to serve as the investigator.
    The Department appreciates the concerns raised by several 
commenters that ending the single investigator model may pose untenable 
conflict with State laws, the nature of at-will employment 
relationships where the respondent is an employee, and with existing 
collective bargaining agreements and faculty handbooks. With respect to 
potential conflict with State laws regarding the prohibition of the 
single investigator model contained in Sec.  106.45(b)(7)(i) of the 
final regulations, the final regulations preclude the decision-maker 
from being the same person as the Title IX Coordinator or the 
investigator, but do not preclude the Title IX Coordinator from serving 
as the investigator. Further, the final regulations do not prescribe 
which recipient administrators are in the most appropriate position to 
serve as a Title IX Coordinator, investigator, or decision-maker, and 
leave recipients discretion in that regard, including whether a 
recipient prefers to have certain personnel serve in certain Title IX 
roles when the respondent is an employee. To generally address 
commenters' questions about preemption, the Department has added Sec.  
106.6(h) which provides that to the extent of a conflict between State 
or local law and Title IX as implemented by Sec. Sec.  106.30, 106.44, 
and 106.45, the obligation to comply with Sec. Sec.  106.30, 106.44, 
and 106.45 is not obviated or alleviated by any State or local law.
    The Department acknowledges that Title VII and Title IX impose 
different requirements and that some recipients will need to comply 
with both Title VII and Title IX, as reflected in Sec.  106.6(f) of 
these final regulations. The Department believes that recipients may 
comply with different regulations implementing Title VII and Title IX. 
These final regulations require all recipients with actual knowledge of 
sexual harassment in an education program or activity of the recipient 
against a person in the United States, to respond promptly in a manner 
that is not deliberately indifferent, irrespective of whether the 
complainant and respondent are students or employees. The grievance 
process in Sec.  106.45 does not contradict Title VII or its 
implementing regulations in any manner and at most may provide more 
process than Title VII requires (such as specifying that a decision-
maker must be a different person than the Title IX Coordinator or 
investigator). These final regulations, however, do not expand Title 
VII, as these final regulations are promulgated under Title IX. For 
further discussion of the intersection between Title VII and these 
final regulations, see the ``Section 106.6(f) Title VII and Directed 
Question 3 (Application to Employees)'' subsection of the ``Clarifying 
Amendments to Existing Regulations'' section of this preamble.
    With respect to the general at-will employment doctrine, or the 
fact that recipients often have employment contracts or collective 
bargaining agreements in place that govern employee misconduct, where 
Title IX is implicated the Department has determined that the 
protections and rights set forth in these final regulations represent 
the most effective ways to promote Title IX's non-discrimination 
mandate, and recipients of Federal financial assistance agree to comply 
with Title IX obligations as a condition of receiving Federal funds. 
Recipients' contractual arrangements with employees must conform to 
Federal law, as a condition of receipt of Federal funds.
    Changes: None.
Limiting the Prohibition of the Single Investigator Model
    Comments: Some commenters supported ending the single investigator 
model but argued against a categorical prohibition. One commenter 
proposed that the Department only prohibit the single investigator 
model where the respondent faces the possibility of expulsion or 
dismissal. This commenter argued that more minor cases, such as sexual 
harassment claims against respondents for making inappropriate jokes, 
can be fairly investigated and resolved by a single person without 
bias. However, the commenter reasoned, where the stakes are higher, 
such as with a sexual assault allegation and the possibility of 
dismissal, then a strict separation of the investigative and 
adjudicative functions is justified. The commenter asserted that this 
is a logical cost/benefit analysis, especially for smaller recipients. 
One commenter suggested that the Department should only prohibit the 
single investigator model for larger schools (such as those with over 
3,000 students) or for schools that have greater numbers of Title IX 
complaints that result in formal investigations (such as ten or more 
per year). One commenter requested that the Department prohibit the 
single investigator model but exempt recipients that submit a reasoned 
written explanation as to why their disciplinary system is fair and 
necessary. One commenter urged the Department to allow the single 
investigator model, but only where both parties consent to it. Another 
commenter emphasized that postsecondary institutions generally have 
more resources than elementary and secondary school districts, and 
therefore the Department should initially apply the single investigator 
prohibition only to postsecondary institutions, and see how effective 
it is before applying it to elementary and secondary schools.
    Discussion: The Department appreciates the logistical concerns 
raised by some commenters regarding an across-the-board prohibition on 
the single investigator model contained in the final regulations and 
the suggestions for alternative approaches. However, the Department 
believes, as discussed above, that separating requiring investigative 
and adjudicative roles to be filled by different individuals is 
critical for reducing the risk of unfairness, increasing the 
reliability of fact-finding, and enhancing the accuracy of Title IX 
adjudications. Furthermore, we do not see the propriety in crafting 
different sets of procedural requirements under Title IX for recipients 
based on their size, the number of Title IX complaints they typically 
receive on an annual basis, or the potential severity of the punishment 
the respondent may receive if determined to be responsible for the 
alleged sexual harassment. It is unclear what criteria would justify an 
exemption to the general requirement that the same person cannot 
investigate and adjudicate a case, particularly because all the conduct 
described as ``sexual harassment'' under Sec.  106.30 is serious 
conduct that jeopardizes a victim's equal access to education, and the 
Department resists attempts to characterize certain forms of sexual 
harassment defined under Sec.  106.30 as automatically warranting more 
or less severe sanctions. The Department notes that Sec.  106.45(b)(9) 
of the final regulations permits informal resolutions as long as both 
parties voluntarily consent to attempt an informal process.

[[Page 30372]]

Informal resolutions under the final regulations would not require more 
than one person to facilitate the process. In this regard, the 
Department recognizes the importance of giving recipients flexibility 
and discretion to satisfy their Title IX obligations in a manner 
consistent with their unique values and the needs of their educational 
communities, and the wishes of the parties to each formal complaint.
    Changes: None.
Requests for Clarification
    Comments: Commenters sought clarification on several issues 
regarding the NPRM's prohibition of the single investigator model. A 
few commenters asked whether the NPRM requires that the Title IX 
Coordinator be different than the investigator and, if so, how a Title 
IX Coordinator can remain fair and unbiased in situations where the 
NPRM requires the Title IX Coordinator to file a formal complaint. One 
commenter inquired as to whether the Title IX Coordinator can make 
preliminary determinations of responsibility that are then passed along 
to the decision-maker. Another commenter requested more clarity as to 
whether the NPRM's prohibition on a Title IX Coordinator serving as 
decision-maker also applies to appeal decisions. One commenter asked 
whether the decision-maker and hearing officer presiding over the live 
hearing can be different individuals. Another commenter asserted that 
Sec.  106.45(b)(7)(i) has been understood to require different 
individuals to assume each of three different roles: Decision-maker, 
investigator, and Title IX Coordinator. This commenter inquired as to 
what the Title IX Coordinator's role would be regarding investigations 
under the NPRM.
    Discussion: The Department appreciates the questions commenters 
raised regarding the implications of the prohibition of the single 
investigator model contained in Sec.  106.45(b)(7)(i) of the final 
regulations. The Department wishes to clarify that the final 
regulations require the Title IX Coordinator and investigator to be 
different individuals from the decision-maker, but nothing in the final 
regulations requires the Title IX Coordinator to be an individual 
different from the investigator. Nothing in the final regulations 
prevents Title IX Coordinators from offering recommendations regarding 
responsibility to the decision-maker for consideration, but the final 
regulations require the ultimate determination regarding responsibility 
to be reached by an individual (i.e., the decision-maker) who did not 
participate in the case as an investigator or Title IX Coordinator.
    The final regulations have removed proposed Sec.  106.44(b)(2) that 
would have required Title IX Coordinators to file formal complaints 
upon receiving multiple reports of sexual harassment against the same 
respondent; however, the final regulations leave Title IX Coordinators 
with discretion to decide to sign a formal complaint on the recipient's 
behalf. Although signing a formal complaint initiates a grievance 
process, for reasons discussed in the ``Formal Complaint'' subsection 
of the ``Section 106.30 Definitions'' section of this preamble, we do 
not believe that taking such an action necessarily renders a Title IX 
Coordinator biased or poses a conflict of interest, and we have revised 
the Sec.  106.30 definition of ``formal complaint'' to clarify that 
Title IX Coordinators must comply with Sec.  106.45(b)(1)(iii) even in 
situations where the Title IX Coordinator decides to sign a formal 
complaint.
    The final regulations revise Sec.  106.45(b)(8) to provide that 
appeals on specified bases must be offered equally to both parties and 
that the appeal decision-maker cannot be the same person as the 
decision-maker who reached the determination regarding responsibility, 
the Title IX Coordinator, or the investigator. With respect to the 
roles of a hearing officer and decision-maker, the final regulations 
leave recipients discretion to decide whether to have a hearing officer 
(presumably to oversee or conduct a hearing) separate and apart from a 
decision-maker, and the final regulations do not prevent the same 
individual serving in both roles. Lastly, regarding the role of the 
Title IX Coordinator, as discussed above, Sec.  106.8(a) of the final 
regulations requires recipients to designate and authorize at least one 
employee to serve as Title IX Coordinator and coordinate the 
recipient's efforts to comply with the final regulations. Among other 
things, the Title IX Coordinator is responsible for responding to 
reports and complaints of sex discrimination (including reports and 
formal complaints of sexual harassment), informing complainants of the 
availability of supportive measures and of the process for filing a 
formal complaint, offering supportive measures to complainants designed 
to restore or preserve equal access to the recipient's education 
program or activity, working with respondents to provide supportive 
measures as appropriate, and coordinating the effective implementation 
of both supportive measures (to one or both parties) and remedies (to a 
complainant). As noted previously, the Title IX Coordinator is not 
precluded from also serving as the investigator, under these final 
regulations.
    Changes: None.
Section 106.45(b)(7)(i) Standard of Evidence and Directed Question 6
Mandating a Higher Standard of Evidence
    Comments: Several commenters asserted that the Department should 
mandate a higher standard of evidence than the preponderance of the 
evidence standard. Commenters cited cases describing the preponderance 
of the evidence standard as inadequate in sexual misconduct cases given 
the seriousness of allegations, the lack of other procedural safeguards 
found in civil litigation, and the reputational and socioeconomic 
damage resulting from a finding of sexual misconduct responsibility. 
Some commenters argued that the Department should mandate, or at least 
permit, recipients to use the criminal ``beyond a reasonable doubt'' 
standard in Title IX adjudications.\1407\ One commenter suggested that 
the Department mandate the clear and convincing evidence standard but 
only where the alleged sexual misconduct is a Clery Act/VAWA offense or 
where the potential sanction is expulsion or suspension. One commenter 
asserted that Supreme Court case law requires application of the beyond 
a reasonable doubt standard in school Title IX proceedings.\1408\
---------------------------------------------------------------------------

    \1407\ Commenters cited: Valerie Wilson, The Problem with Title 
IX and Why it Matters, The Princeton Tory (February 19, 2015).
    \1408\ Commenters cited: James M. Piccozi, Note, University 
Disciplinary Process: What's Fair, What's Due, and What You Don't 
Get, 96 Yale L. J. 2132, 2138 (1987) (impairment of accused's 
reputation severely limits the accused student's freedom and can 
make it virtually impossible to successfully transfer). Commenters 
also cited: Jackson v. Metro. Edison Co., 419 U.S. 345 (1974) for 
the proposition that State action results where a private party 
conducts activities exclusively and traditionally reserved to the 
State, such as adjudication of sexual misconduct.
---------------------------------------------------------------------------

    Commenters asserted that the clear and convincing evidence standard 
would enhance the overall accuracy of the system by reducing false 
positives as compared to the preponderance of the evidence standard. 
One commenter argued that requiring the clear and convincing evidence 
standard is essential to protect academic freedom and free speech 
because it would be unjust to have a mere 50 percent threshold to 
punish professors for ``improper'' or controversial speech in their 
classrooms. One commenter asserted that it is especially important to 
raise the standard of evidence because

[[Page 30373]]

in the current #MeToo environment women are automatically believed and 
men are assumed guilty; this commenter argued that sexual misconduct 
cases often boil down to credibility and such allegations are virtually 
impossible to disprove.
    Discussion: The Department acknowledges the suggestions offered by 
commenters to mandate a higher standard of evidence than the 
preponderance of the evidence standard, such as the clear and 
convincing evidence standard, or the beyond a reasonable doubt standard 
used in criminal proceedings. In recognition that sexual misconduct 
cases involve high stakes and potentially life-altering consequences 
for both parties, and such cases often involve competing, plausible 
narratives about the truth of allegations, the Department authorizes 
recipients, in Sec.  106.45(b)(1)(vii) of the final regulations, to 
select either the preponderance of the evidence standard or the clear 
and convincing evidence standard to reach determinations regarding 
responsibility.\1409\ Because Title IX proceedings differ in purpose 
and consequence from criminal proceedings, the Department does not 
believe the criminal law standard of ``beyond a reasonable doubt'' is 
appropriate in a noncriminal setting like a Title IX grievance process 
for various reasons.\1410\ Recipients are not courts and do not have 
the power to impose a criminal punishment such as imprisoning a 
respondent. Recipients bear the burden of proof under Sec.  
106.45(b)(5)(i), but they do not have subpoena power. These final 
regulations also provide privacy protections for complainants and 
respondents which prohibits the recipient from accessing, considering, 
disclosing, or otherwise using a party's treatment records without the 
party's voluntary, written consent under Sec.  106.45(b)(5)(i), even if 
these treatment records are relevant to the allegations in a formal 
complaint. The ``beyond a reasonable doubt'' standard also is rarely 
used in any civil proceeding.\1411\ We therefore decline to permit a 
recipient to select that standard of evidence, and instead permit a 
recipient to select either of two standards of evidence, each of which 
is used in civil matters.\1412\ The Department shares commenters' 
concerns for protecting academic freedom and free speech, and Sec.  
106.6(d)(1) emphasizes that nothing in the final regulations requires 
restriction of rights otherwise protected by the First Amendment. To 
further reinforce First Amendment rights, Sec.  106.44(a) of the final 
regulations would explicitly prohibit the Department from deeming 
recipients' restriction of rights protected under the First Amendment 
to be evidence that the recipient was not deliberately indifferent, and 
the conduct constituting actionable harassment under Sec.  106.30 must 
be either serious misconduct constituting quid pro quo harassment or 
Clery Act/VAWA sex offenses, or meet the Davis standard of being 
severe, pervasive, and objectively offensive denying a person equal 
educational access.\1413\ When a formal complaint alleges conduct 
constituting ``sexual harassment'' as defined in Sec.  106.30, the 
Department has concluded that the robust procedural protections granted 
to both parties in Sec.  106.45 mean that the preponderance of the 
evidence standard, or the clear and convincing evidence standard, may 
be used to reach consistently fair, reliable outcomes. Contrary to the 
claims made by one commenter, the Supreme Court has never required 
application of the criminal ``beyond a reasonable doubt'' standard in 
Title IX proceedings, and the Department is not aware of a Federal 
appellate court decision requiring adoption of the criminal standard of 
evidence in Title IX proceedings. The Department believes that 
requiring such a ``beyond a reasonable doubt'' standard of evidence in 
a noncriminal Title IX proceeding is unnecessary to meet due process of 
law and fundamental fairness requirements, or increase accuracy of 
outcomes, in Title IX grievance processes.
---------------------------------------------------------------------------

    \1409\ A preponderance of the evidence standard of evidence is 
understood to mean concluding that a fact is more likely than not to 
be true. E.g., Concrete Pipe & Prod. of Cal., Inc. v. Constr. 
Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (a 
preponderance of the evidence standard ``requires the trier of fact 
to believe that the existence of a fact is more probable than its 
nonexistence'') (internal quotation marks and citation omitted). A 
clear and convincing evidence standard of evidence is understood to 
mean concluding that a fact is highly probable to be true. E.g., 
Sophanthavong v. Palmateer, 378 F.3d 859, 866-67 (9th Cir. 2004) (a 
clear and convincing evidence standard requires ``sufficient 
evidence to produce in the ultimate factfinder an abiding conviction 
that the truth of its factual contentions are [sic] highly 
probable.'') (internal quotation marks and citation omitted).
    \1410\ See, e.g., Santosky v. Kramer, 455 U.S. 745, 768 (1982) 
(noting that the Supreme Court hesitates to apply the ``unique 
standard'' of beyond a reasonable doubt ``too broadly or casually in 
noncriminal cases'') (internal quotation marks and citations 
omitted).
    \1411\ Id.
    \1412\ E.g., Addington v. Tex., 441 U.S. 418, 424 (1979) 
(holding that the clear and convincing evidence standard was 
required in civil commitment proceedings) (noting that clear and 
convincing evidence is an ``intermediate standard'' between 
preponderance of the evidence and the criminal beyond a reasonable 
doubt standard and that the clear and convincing evidence standard 
``usually employs some combination of the words `clear,' `cogent,' 
`unequivocal,' and `convincing' '' and while less commonly used than 
the preponderance of the evidence standard, the clear and convincing 
evidence standard is ``no stranger to the civil law'' and is 
sometimes used in civil cases ``involving allegations of fraud or 
some other quasi-criminal wrongdoing by the defendant'' where ``the 
interests at stake are deemed to be more substantial than mere loss 
of money'' justifying reduction of ``the risk to the defendant of 
having his [or her] reputation tarnished erroneously.'') (internal 
quotation marks and citations omitted).
    \1413\ For discussion of the intersection between the Sec.  
106.30 definition of sexual harassment, and the First Amendment, see 
the ``Sexual Harassment'' subsection of the ``Section 106.30 
Definitions'' section of this preamble.
---------------------------------------------------------------------------

    Changes: The final regulations revise Sec.  106.45(b)(7)(i) to 
refer to the revised requirement in Sec.  106.45(b)(1)(vii), such that 
the a recipient must select between the preponderance of the evidence 
standard and clear and convincing evidence standard, and apply that 
selected standard consistently to all formal complaints alleging Title 
IX sexual harassment regardless of whether the respondent is a student 
or an employee. We also revise Sec.  106.44(a) of the final regulations 
to explicitly prohibit the Department from deeming recipients' 
restriction of rights protected under the First Amendment to be 
evidence that the recipient was not deliberately indifferent.
Supporting Sec.  106.45(b)(7)(i)
    Comments: Some commenters expressed support for the NPRM's approach 
to the standard of evidence. Commenters asserted that many collective 
bargaining agreements (CBAs) applicable to school employees mandate the 
clear and convincing evidence standard and argued that students deserve 
the same rights and protections since students are the ones paying 
tuition. One commenter cited a poll about public perceptions of higher 
education that found 71 percent of people responding to the poll 
believed, ``[s]tudents accused of sexual assault on college campuses 
should be punished only if there is clear and convincing evidence that 
they are guilty of a crime.'' \1414\
---------------------------------------------------------------------------

    \1414\ Commenter cited: Bucknell Institute for Public Policy, 
Perceptions of Higher Education Survey--Topline Results (2017).
---------------------------------------------------------------------------

    Discussion: The Department appreciates the support from commenters 
regarding the proposed rules' approach to the standard of evidence. For 
reasons discussed above, the final regulations at Sec.  
106.45(b)(1)(vii) and Sec.  106.45(b)(7)(i) continue to permit 
recipients to select between the preponderance of the evidence 
standard, or the clear and convincing evidence standard. We acknowledge 
the poll cited by one

[[Page 30374]]

commenter finding that the majority of people responding to the poll 
supported application of the clear and convincing evidence standard to 
address allegations of sexual assault in the postsecondary context. 
While the Department does not reach legal or policy decisions on the 
basis of public polls, we believe that in light of the strong 
procedural rights granted to both parties under the Sec.  106.45 
grievance process, either the preponderance of the evidence standard or 
the clear and convincing evidence standard may be applied to reach 
fair, accurate determinations regarding responsibility in Title IX 
grievance processes, and recipients should be permitted to select 
either standard.
    We acknowledge that many employee CBAs mandate the clear and 
convincing evidence standard. The Department believes that giving 
recipients the choice between the preponderance of the evidence 
standard and the clear and convincing evidence standard, along with the 
requirement contained in Sec.  106.45(b)(1)(vii) that the same standard 
of evidence must apply for complaints against students as for 
complaints against employees and faculty, helps to ensure consistency 
in recipients' handling of Title IX proceedings. To better ensure that 
recipients have a true choice between the two standards of evidence, we 
have removed the NPRM's language from Sec.  106.45(b)(7)(i) that would 
have allowed selection of the preponderance of the evidence standard 
only if the recipient also used that standard for non-sexual harassment 
misconduct that carried similar potential sanctions. The grievance 
process, including the standard of evidence the recipient will apply, 
should not vary based on the identity or status of the respondent 
(i.e., student or employee). However, each recipient is allowed to 
select one of the two standards of evidence (both of which are used in 
a variety of civil proceedings) to decide what degree of confidence the 
recipient's decision-makers must have in the factual correctness of 
determinations regarding responsibility in Title IX grievance 
processes.
    Changes: The Department has revised Sec.  106.45(b)(7)(i) of the 
final regulations such that recipients have the choice of either 
applying the preponderance of the evidence standard or the clear and 
convincing evidence standard, and Sec.  106.45(b)(1)(vii) requires a 
recipient to make that choice applicable to all formal complaints of 
sexual harassment, including those against employees and faculty. We 
have removed the limitation contained in the NPRM that would have 
permitted recipients to use the preponderance of the evidence standard 
only if a recipient used that standard for non-sexual misconduct that 
has the same maximum disciplinary sanction.
One-Sided Condition on Choice of Evidentiary Standard
    Comments: Commenters questioned the NPRM's requirement that if the 
preponderance of the evidence standard is used in Title IX cases then 
it must be used in non-Title IX cases with the same maximum punishment. 
Commenters suggested this would undermine recipient flexibility. Some 
commenters asserted that the NPRM presented a false choice of an 
evidentiary standard because the proposed rules imposed a one-way 
ratchet where schools may use the clear and convincing evidence 
standard in sexual assault cases and a lower standard in other cases, 
but not vice versa, thereby disadvantaging complainants in sexual 
harassment situations but not in other situations. Some commenters 
asserted that the Department lacks authority under Title IX to impose 
requirements on non-Title IX related disciplinary proceedings.
    One commenter argued that the Department should not interfere with 
recipient autonomy in determining the appropriate standard of evidence; 
this commenter suggested that the Department: (1) Limit the 
preponderance of the evidence standard to recipients who used it before 
the Department advised them to; (2) limit the preponderance of the 
evidence standard for sexual misconduct cases to recipients who had the 
preponderance of the evidence standard for non-sexual cases before the 
NPRM; or (3) mandate all recipients use the clear and convincing 
evidence standard, but allow recipients to adopt the preponderance of 
the evidence standard if done by internal process initiated at least 
one year after the clear and convincing evidence standard takes effect.
    One commenter asserted the NPRM's approach to standard of evidence 
is a heavy-handed Federal mandate to use the clear and convincing 
evidence standard, which is inconsistent with the current 
Administration's deregulatory agenda. This commenter asserted that the 
Department should not usurp the authority of school boards or 
micromanage recipients.
    Discussion: The Department is persuaded by the concerns raised by 
commenters that the NPRM's prohibition on recipients using the 
preponderance of the evidence standard unless they also used that 
standard for non-sexual misconduct that carries the same maximum 
punishment constituted a one-way restriction that appeared to many 
commenters to leave a recipient without a genuine choice between the 
two standards of evidence. The Department is also persuaded by 
commenters' objections that the NPRM approach may have had the 
unintended consequence of pressuring recipients to choose a standard of 
evidence for non-Title IX misconduct situations, potentially exceeding 
the Department's authority to effectuate the purpose of Title IX. For 
these reasons, the Department has simplified its approach to the 
standard of evidence contained in Sec.  106.45(b)(1)(vii) and 
referenced in Sec.  106.45(b)(7)(i), such that recipients may select 
the preponderance of the evidence standard or the clear and convincing 
evidence standard, without restricting that selection based on what 
standard of evidence a recipient uses in non-Title IX proceedings. The 
Department believes this revised approach better ensures that the 
Department is not inspecting how recipients handle non-Title IX 
misconduct proceedings.
    We acknowledge the alternative approaches to the standard of 
evidence raised by one commenter that would limit the application of 
the preponderance of the evidence standard. However, the Department 
believes that recipients are in the best position to select the 
standard of evidence that suits their unique values and the needs of 
their educational community and the Department thus declines to impose 
restrictions or requirements upon recipients who select the 
preponderance of the evidence standard. Because the final regulations 
grant recipients the unrestricted right to choose between the 
preponderance of the evidence standard and the clear and convincing 
evidence standard, we disagree that the final regulations reflect a 
heavy-handed Federal mandate inconsistent with the current 
Administration's deregulatory agenda.
    Changes: The Department has revised Sec.  106.45(b)(7)(i) of the 
final regulations such that recipients have the choice of either 
applying the preponderance of the evidence standard or the clear and 
convincing evidence standard, and Sec.  106.45(b)(1)(vii) requires a 
recipient to make that choice applicable to all formal complaints of 
sexual harassment, including those against employees and faculty. We 
have removed the limitation contained in the NPRM that would have 
permitted recipients to use the preponderance of the evidence standard 
only if they used that standard for non-sexual misconduct that has the 
same maximum disciplinary sanction.

[[Page 30375]]

Same Evidentiary Standard in Student and Faculty Cases
    Comments: Several commenters expressed support for the NPRM's 
requirement that the same standard of evidence be used in student and 
faculty cases. Commenters stated that this is important for fairness; 
the Department should not permit recipients to disfavor certain groups. 
A few commenters raised the point that, unlike students, employees and 
faculty often have superior leverage as a group when negotiating terms 
with recipients. Commenters stated that the NPRM's approach would level 
this playing field. One commenter contended that setting the same 
standard for both students and employees will enhance predictability 
and consistency. Another commenter asserted that promoting a uniform 
set of evidentiary standards would reduce recipients' costs to 
administer their Title IX disciplinary programs and train personnel.
    Some commenters believed that the Department was correctly 
encouraging schools to apply the clear and convincing evidence standard 
in Title IX cases. They stated that the clear and convincing evidence 
standard is appropriate given the long-lasting and serious consequences 
of being deemed responsible for sexual misconduct. Commenters argued 
that faculty may lose lifelong employment and suffer permanent 
reputational damage, and the preponderance of the evidence standard is 
insufficient to protect academic freedom and tenure. One commenter 
argued that just because the preponderance of the evidence standard is 
used in civil litigation does not mean it is appropriate for Title IX 
proceedings; the two systems are fundamentally distinct because the 
latter does not have procedural protections such as civil access to 
counsel, discovery, cross-examination, presumption of innocence, 
juries, or impartiality of decision-makers that may otherwise render 
the proceeding fair despite a lower evidentiary standard. The commenter 
asserted that the clear and convincing evidence standard may also 
mitigate the impact of racial bias that disproportionately affects male 
students and faculty in sexual harassment cases.
    Other commenters opposed the NPRM's requirement that the same 
standard of evidence apply in student and faculty cases. Commenters 
emphasized the practical difficulty of recipients changing applicable 
standards for employee cases, given the reality that many faculty 
collective bargaining agreements (CBAs) mandate the clear and 
convincing evidence standard \1415\ and that many postsecondary 
institutions choose to follow American Association of University 
Professors (AAUP) standards that include a clear and convincing 
evidence standard for faculty misconduct, even if the recipient's CBA 
does not mandate that standard.\1416\ Commenters asserted that some 
State laws require recipients to use the clear and convincing evidence 
standard, especially for tenured faculty discipline cases, which may 
negate the flexibility that the Department was trying to provide 
recipients regarding a choice of standard of evidence. Commenters 
argued that recipients subject to such CBAs or State laws do not have a 
neutral choice because these recipients may be required to use a clear 
and convincing evidence standard for employees and the NPRM requires 
such recipients to also use that standard for students even if 
recipients would rather use different standards for students than 
employees. Other commenters stated that some State laws require 
postsecondary institution recipients to apply a preponderance of the 
evidence standard to student sexual misconduct disciplinary proceedings 
yet the proposed regulations may leave such recipients with a potential 
conflict between continuing to follow their State law by using the 
preponderance of the evidence standard (in student cases) but violating 
these final regulations (if the recipient is also bound under a CBA to 
apply a clear and convincing evidence standard to faculty misconduct 
and cannot raise the standard of evidence used in student cases without 
violating State law).
---------------------------------------------------------------------------

    \1415\ Commenters cited: Vill. of Posen v. Ill. Fraternal Order 
of Police Labor Council, 2014 Ill. App. 133329 (Ill. Ct. App. 2014) 
(in cases involving criminal conduct or stigmatizing behavior, many 
arbitrators apply higher burden of proof, typically the clear and 
convincing evidence standard) (quoting American Bar Association 
Section of Labor and Employment Law, Elkouri & Elkouri: How 
Arbitration Works 15-25 (Kenneth May et al. eds., 7th ed. 2012)); 
Nick Gier, An Update on Unions in Higher Education, Idaho State 
Journal (Sept. 2, 2018).
    \1416\ Commenters cited: Judith Areen, Government as Educator: A 
New Understanding of First Amendment Protection of Academic Freedom 
and Governance, 97 Georgetown L. J. 946 (2009).
---------------------------------------------------------------------------

    One commenter stated that at the commenter's university, clear and 
convincing evidence is required to dismiss a faculty member while a 
preponderance of the evidence is required to punish a student, even for 
similar misconduct, which ``translates to the school being less 
inclined to fire a faculty member over an allegation than to punish a 
student over an allegation.'' This commenter argued that the proposed 
rules would force schools in that situation to make a choice: Either 
lower the standard of evidence required to dismiss a faculty member, or 
raise the standard of evidence for all claims to the standard used for 
dismissing a faculty member, which would mean either making it easier 
to prove accusations against a faculty member or making it harder to 
prove any allegation (against any respondent). The commenter believed 
that the proposed rules should not force schools to make a choice 
between making it easier to fire faculty or making it harder to believe 
sexual assault victims.
    One commenter cited studies of faculty sexual harassment cases that 
showed professors usually have multiple victims, mostly students, and 
that faculty harassers who experience sanctions are less likely to 
repeat serious harassment.\1417\ This commenter argued that if the 
proposed rules' approach leads universities to comply by applying the 
clear and convincing evidence standard across the board for student and 
faculty sexual misconduct matters, then in effect universities would be 
forced by Federal regulatory requirements to ``single out'' for 
unfavorable treatment their faculty and graduate students who are 
investigated for research misconduct because Federal regulations 
require research misconduct linked to federally funded research grants 
to be shown under a preponderance of the evidence standard, while 
sexual misconduct would be investigated under a clear and convincing 
evidence standard. The commenter asserted that because a finding of 
research misconduct carries significant public stigma (such as the 
respondent's name and case summary posted on government websites and 
scientific watchdog organization websites), concern for the heightened 
stigma faced by respondents accused of sexual misconduct is not an 
appropriate justification for the proposed rules' apparent 
encouragement of the clear and convincing evidence standard.
---------------------------------------------------------------------------

    \1417\ Commenters cited: Nancy Chi Cantalupo & William Kidder, A 
Systematic Look at a Serial Problem: Sexual Harassment of Students 
by University Faculty, 2018 Utah L. Rev. 671, 744 fig. 5B (2018); 
Margaret A. Lucero et al., Sexual Harassers: Behaviors, Motives, and 
Change Over Time, 55 Sex Roles 331 (2006).
---------------------------------------------------------------------------

    Some commenters argued that discipline of students, and discipline 
of employees, serve fundamentally different goals and applying a one-
size-fits-all approach is inappropriate. Commenters asserted that 
student discipline has a mainly educational purpose, whereas employee 
discipline is about when to take adverse

[[Page 30376]]

employment action. Commenters cited scholarly articles and cases to 
suggest that students and employees are different constituencies with 
different interests; for example, universities have obligations to 
protect student safety that differ from obligations to protect employee 
safety.\1418\ Commenters asserted that the student/recipient 
relationship is different than the employee/recipient relationship, in 
part because the student pays tuition to gain educational and 
developmental services from the school and the school has an 
affirmative obligation to create an educational environment conducive 
to that goal. On the other hand, commenters argued, employees provide 
services to the school, mainly to benefit the students, and are paid by 
the school for their services, and while all employees have a right to 
a workplace free from discrimination, the school has no obligation to 
encourage an employee's social and personal development. Commenters 
argued that Title IX is about equal educational access, not about 
making sure that schools treat all classes of respondents the same way. 
One commenter contended that it is unfair to hold students to the same 
standard of evidence as employees because students are not parties to 
the employee union's CBAs and argued that the Department should not 
bind students to outcomes of negotiations in which the students could 
not participate. One commenter stated that, unlike students, university 
employees can lose lifetime employment, a much more serious outcome 
than being forced to leave one particular university, and this 
difference justifies using a higher burden of proof in faculty cases.
---------------------------------------------------------------------------

    \1418\ Commenters cited, e.g., Kristen Peters, Protecting the 
Millennial College Student, 16 S. Cal. Rev. of L. & Social Justice 
431, 448 (2007) (schools have a qualitatively different relationship 
with their employees than their students. In the modern university 
context, courts ``have increasingly recognized a college's duty to 
provide a safe learning environment both on and off campus.''); 
Duarte v. State, 88 Cal. App. 3d 473 (Cal. 1979) (noting that 
students ``in many substantial respects surrender[]the control of 
[their] person[s], control of [their] own security to the 
university''); Mullins v. Pine Manor Coll., 449 NE2d 331, 335-36 
(Mass. 1983) (holding that ``[p]arents, students, and the general 
community . . . have a reasonable expectation, fostered in part by 
colleges themselves, that reasonable care will be exercised to 
protect resident students from foreseeable harm.'').
---------------------------------------------------------------------------

    One commenter asserted that the proposed rules' requirement to use 
the same standard of evidence for cases with student-respondents as 
with employee-respondents stems from anti-union bias.
    One commenter argued that the proposed choice given to recipients 
in the NPRM could potentially expose recipients to liability for sex 
discrimination under 34 CFR 106.51 (``A recipient shall not enter into 
a contractual or other relationship which directly or indirectly has 
the effect of subjecting employees or students to discrimination . . 
.'') (emphasis added). This commenter argued that recipients who 
currently use the preponderance of the evidence standard in sexual 
harassment cases involving student-respondents, may be forced by the 
NPRM to raise the standard of evidence to the clear and convincing 
evidence standard in order to comply with recipients' CBAs, yet that 
reason for raising the standard of evidence (and, in the commenter's 
view, disfavoring complainants by raising the standard of evidence) may 
constitute violation of 34 CFR 106.51 because raising the standard of 
evidence to match what the recipient uses in a CBA could be viewed as 
having entered into a CBA (i.e., a contractual or other relationship) 
that indirectly has the effect of subjecting students to discrimination 
(i.e., by ``disfavoring'' complainants alleging sexual harassment).
    One commenter contended that the inherent power imbalance between 
faculty and students means that faculty may be viewed as more credible 
than students, and thus the applicable standard of evidence should not 
necessarily be identical.
    Discussion: The Department appreciates commenters' support for the 
approach to recipients' selection of a standard of evidence, and agrees 
that offering a choice between two reasonable standards provides 
consistency across cases, within each recipient's educational 
community, regardless of whether the respondent is an employee or a 
student, while providing recipients flexibility to select the standard 
that best meets the recipient's unique needs and reflects the 
recipient's values. The Department disputes commenters' assertion that 
the Department is encouraging the selection of the clear and convincing 
evidence standard. As shown by the fact the final regulations respond 
to commenters' concerns by removing the NPRM's restriction on the use 
of the preponderance of the evidence standard, the Department's 
intention is to permit recipients to choose between two standards of 
evidence, either of which can be applied to Title IX grievance 
processes to produce fair and reliable outcomes.
    The Department acknowledges the concerns raised by some commenters 
regarding the challenges that may arise from implementing the 
requirement contained in Sec.  106.45(b)(1)(vii) and Sec.  
106.45(b)(7)(i) that the same standard of evidence be used for 
complaints against students as for complaints against employees and 
faculty. We recognize the reality that some employee CBAs or State laws 
mandate application of the clear and convincing evidence standard for 
employee or faculty misconduct, that some recipients use a lower 
standard of evidence in cases involving student-respondents than in 
cases involving employee-respondents, and that it may be challenging 
for such recipients to decide whether to raise the standard of evidence 
(for student cases) or lower the standard of evidence (for employee 
cases) so that all formal complaints of sexual harassment use the same 
standard of evidence as required under the final regulations. The 
Department believes that recipients should carry the same burden of 
proof,\1419\ weighing relevant evidence against the same standard of 
evidence, with respect to any complainant's allegations of Title IX 
sexual harassment. The Department believes that complainants in a 
recipient's educational community should face the same process, 
including the same standard of evidence, in a Title IX grievance 
process regardless of whether the respondent who allegedly sexually 
harassed the complainant is a student, employee, or faculty member. The 
Department believes that either the preponderance of the evidence 
standard, or the clear and convincing evidence standard, may be applied 
to allegations of sexual harassment to reach fair, reliable outcomes, 
and thus the Department permits recipients to select either of those 
standards of evidence. As shown by the fact that commenters confirmed 
that many recipients currently use the clear and convincing evidence 
standard of evidence in employee-respondent sexual misconduct cases 
while using the preponderance of the evidence standard of evidence 
standard in student-respondent cases, valid reasons exist as to why a 
recipient might believe that either one of those standards of evidence 
reflects the appropriate level of confidence that decision-makers 
should have in the factual correctness of determinations regarding 
responsibility in sexual misconduct cases. The final regulations 
require recipients to give complainants the predictability of knowing 
that the standard of evidence that applies to a formal complaint of 
sexual harassment in a particular

[[Page 30377]]

recipient's grievance process will not vary depending on whether the 
complainant was sexually harassed by a fellow student, or by a school 
employee.
---------------------------------------------------------------------------

    \1419\ Under the final regulations, Sec.  106.45(b)(5)(i), the 
burden of proof rests on the recipient, not on the parties.
---------------------------------------------------------------------------

    The Department acknowledges that employees and faculty members may 
have greater bargaining power and leverage than students in extracting 
guarantees of protection under a recipient's grievance procedures, and 
that some recipients apply a clear and convincing evidence standard for 
complaints of employee misconduct through CBAs or due to choosing to 
follow AAUP guidelines. However, the Department does not believe that 
is necessary or reasonable to draw distinctions among complainants 
alleging Title IX sexual harassment based on the status of the 
respondent as a ``student'' versus an ``employee.'' Furthermore, a 
growing trend within postsecondary institutions is for graduate 
students to unionize, and such a trend blurs the lines between 
categories of students and employees, with respect to collective 
bargaining power.\1420\
---------------------------------------------------------------------------

    \1420\ E.g., Leslie Crudele, Graduate Student Employees or 
Employee Graduate Students? The National Labor Relations Board and 
the Unionization of Graduate Student Workers in Postsecondary 
Education, 10 William & Mary Bus. L. Rev. 739, 741-42 (2019) (noting 
that as college enrollment has increased, so has the number of 
teaching staff, and that as of 2013 the Bureau of Labor Statistics 
found there were approximately 1.13 million graduate teaching 
assistants employed at postsecondary institutions); id. at 780 
(after detailing the history of unionization of graduate students at 
public and private colleges and universities, concluding that the 
National Labor Relations Board has most recently laid groundwork for 
a continuing trend toward graduate student unionization).
---------------------------------------------------------------------------

    Collective bargaining through a union may, as commenters asserted, 
give employees greater ``bargaining power'' than students have; on the 
other hand, student activism often succeeds in ``bargaining'' for 
university action on a variety of matters that affect students. 
Regardless of the relative strength of ``bargaining power'' of 
employees and students, the Department believes that a recipient must 
implement a fair grievance process for all complainants that does not 
use a different standard of evidence based on whether the complainant 
alleges sexual harassment against an employee, or against a student. 
Complainants (especially students) who allege sexual harassment against 
an employee already face the possibility that the respondent, as an 
employee, may be in a position of actual or perceived authority over 
the complainant, and the Department does not wish to encourage 
recipients to exacerbate that power differential by treating some 
complainants (i.e., those who allege sexual harassment against a 
recipient's employee) differently from other complainants (i.e., those 
who allege sexual harassment against a recipient's student) by 
requiring the former group of complainants to navigate a grievance 
process that will apply a higher standard of evidence than complainants 
in the latter group of complainants.\1421\ Complainants should know 
that their school, college, or university has selected a standard of 
evidence (representing the ``degree of confidence''\1422\ that a 
recipient requires a decision-maker to have in the factual accuracy of 
the determination regarding responsibility) that will apply regardless 
of the identity, status, or position of authority of the respondent.
---------------------------------------------------------------------------

    \1421\ The standard of evidence used for a class of claims 
reflects a societal judgment about the level of confidence a 
decision-maker should have before reaching a conclusion in the case. 
E.g., In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., 
concurring) (the purpose of a standard of proof is ``to instruct the 
factfinder concerning the degree of confidence our society thinks he 
should have in the correctness of factual conclusions for a 
particular type of adjudication.''). The Department believes that a 
recipient's selection of a standard of evidence appropriate for 
resolving sexual harassment formal complaints should reflect the 
recipient's decision about the level of confidence the recipient 
believes a decision-maker should have in reaching a conclusion, that 
all complainants who file formal complaints of sexual harassment 
with a recipient should have the benefit of understanding the 
recipient's decision on that issue, and that different ``degrees of 
confidence'' should not be applied based on a respondent's status as 
a student or employee because whether the respondent is a student or 
employee does not necessarily alter the nature of the harm that the 
alleged conduct inflicted on the complainant or lessen the 
seriousness of potential consequences for the respondent.
    \1422\ Id.
---------------------------------------------------------------------------

    The Department does not view the potential consequences of being 
found responsible for sexual harassment as less serious for students 
than employees; while employees face potential loss of employment, 
students face potential loss of educational opportunities which may 
also affect a student's career opportunities. While some employees 
found responsible for sexual harassment may lose all future career 
opportunities and some students found responsible may transfer to other 
institutions, the converse also occurs; some employees found 
responsible find work elsewhere and some students found responsible 
find it impossible to transfer to other institutions. The potential 
consequences of being found responsible, therefore, may be just as 
serious for a student as for an employee, and differences in the nature 
of potential consequences does not justify using a different standard 
of evidence for employee-respondent cases than for student-respondent 
cases. At the same time, a complainant alleging Title IX sexual 
harassment faces potential loss of equal educational access if sexual 
harassment allegations are not resolved accurately, regardless of 
whether the complainant has been allegedly sexually harassed by a 
student or by an employee. For respondents (whether students or 
employees) and for complainants (whether students or employees), it is 
important for a Title IX grievance process to reach a reliable 
outcome.\1423\
---------------------------------------------------------------------------

    \1423\ For an example of divergent views about the appropriate 
standard of evidence within a university's faculty members, raising 
arguments for and against retaining the clear and convincing 
evidence standard for employees, see, e.g., Matt Butler, Standard of 
proof in sexual assault cases debated by professors, The Review 
(Nov. 10, 2014) (University of Delaware student newspaper article 
reporting on a faculty debate about whether the university should 
lower the standard of evidence used in faculty sexual misconduct 
cases from the clear and convincing evidence standard to the 
preponderance of the evidence standard, in light of OCR's insistence 
that universities must use the preponderance of the evidence 
standard, reporting that ``some faculty supported the lower burden 
of proof as a means of creating--in reality and perception--a safer 
place for students'' but also quoting Kathy Turkel, a women and 
gender studies professor, as asserting that ``the student 
environment should be the most important factor'' but ``the lower 
standards of proof violate due process rights of the professors'' 
and a ``higher standard of proof'' would ``outweigh the negatives, 
and it would actually help both the accuser and the accused in cases 
of sexual assault'' because ``it is due process that protects both 
complainants and perpetrators in these cases'').
---------------------------------------------------------------------------

    The Department agrees that recipients have a different relationship 
with the recipient's students than with the recipient's employees; the 
Department's approach to the standard of evidence ensures that a 
recipient does not adjudicate a student-complainant's formal complaint 
differently based on whether the student-complainant was allegedly 
sexually harassed by a student, or by an employee. Because the final 
regulations do not require particular disciplinary sanctions, the final 
regulations do not preclude a recipient from imposing student 
discipline as part of an ``educational purpose'' that may differ from 
the purpose for which a recipient imposes employee discipline. The 
Department's approach to the standard of evidence is not based on 
concern that a recipient must treat all classes of respondents the same 
way, but is based on the Department's concern that all complainants 
within a recipient's education program or activity are treated the same 
way, including facing the same standard of evidence when a 
complainant's sexual harassment allegations are resolved.
    Permitting recipients to select between the two standards of 
evidence allows recipients who face conflicting

[[Page 30378]]

requirements imposed by contracts or laws outside these final 
regulations the ability to resolve such conflict in whichever way a 
recipient deems appropriate.\1424\ Not all recipients are subject to 
CBAs that require a different standard of evidence for employee 
discipline than the recipient uses for student discipline, and not all 
recipients are subject to State laws that mandate the standard of 
evidence to be used in student disciplinary cases; such recipients may 
select a standard of evidence in compliance with these final 
regulations without the external factors of CBA or State law 
requirements. For recipients who have CBAs requiring a clear and 
convincing evidence standard in employee cases but no State law 
directive requiring a different standard of evidence in student cases, 
recipients may comply with these final regulations by using the clear 
and convincing evidence standard in student cases, or by renegotiating 
their CBAs to use the preponderance of the evidence standard for 
employee cases.
---------------------------------------------------------------------------

    \1424\ The challenge with potential conflict between Federal 
Title IX expectations regarding a standard of evidence, and CBAs 
that require a different (usually higher) standard of evidence, is a 
challenge that has faced recipients since the Department first took 
a position with respect to an appropriate standard of evidence. In 
the withdrawn 2011 Dear Colleague Letter the Department insisted 
that only the preponderance of the evidence standard was appropriate 
in Title IX sexual harassment cases and made no exception for cases 
against faculty. The Department believes that the approach in these 
final regulations may help recipients address the challenge that 
some recipients face in reconciling CBAs with Title IX obligations, 
by allowing recipients to select one of two reasonable options 
regarding a standard of evidence for Title IX purposes. See Lance 
Toron Houston, Title IX Sexual Assault Investigations in Public 
Institutions of Higher Education: Constitutional Due Process 
Implications of the Evidentiary Standard Set Forth in the Department 
of Education's 2011 Dear Colleague Letter, 34 Hofstra Labor & 
Employment L. J. 321, 322-23 (2017) (``This issue represents the 
evolution and eventual collision of years of legal jurisprudence 
involving collective bargaining rights from the origin of public 
employee law and the administratively relaxed evidentiary standards 
at play in Title IX sexual assault investigations in public higher 
education. In a nutshell, when collectively bargained labor 
agreements on American public college campuses calls for the 
heightened `clear and convincing' evidentiary standard in a sexual 
assault investigation of a unionized employee, but federally 
mandated Title IX investigations as required by the 2011 Dear 
Colleague Letter only require the much lower threshold 
`preponderance of the evidence' standard to discipline the accused 
public employee, which prevails?'').
---------------------------------------------------------------------------

    For recipients who do have CBAs requiring a clear and convincing 
evidence standard (in employee cases) and State laws requiring a 
preponderance of the evidence standard (in student cases), such 
recipients may find it appropriate to comply with these final 
regulations by renegotiating their CBAs rather than violate State law. 
We acknowledge commenters' point that renegotiating a CBA is often a 
time-consuming process; however, a recipient's contractual and 
employment arrangements must comply with Federal laws,\1425\ and 
recipients of Federal financial assistance understand that a condition 
placed upon receipt of Federal funds is operation of education programs 
or activities free from sex discrimination under Title IX, including 
compliance with regulations implementing Title IX. Some recipients 
cooperatively worked with their employee unions and renegotiated their 
CBAs in response to the Department's withdrawn 2011 Dear Colleague 
Letter so that the recipient would use the preponderance of the 
evidence standard with respect to employee cases, and student 
cases.\1426\ These final regulations do not require recipients who have 
already modified their policies and procedures in that manner to make 
further changes in that regard, because under these final regulations a 
recipient may select the preponderance of the evidence standard.
---------------------------------------------------------------------------

    \1425\ E.g., a typical clause included in a college's faculty 
CBA states: ``This agreement and its component provisions are 
subordinate to any present or future Federal or New York laws and 
regulations.'' Agreement (Faculty) Between Onondaga Community 
College And The Onondaga Community College Federation Of Teachers 
And Administrators AFT, Local 1845 September 1, 2014-August 31, 
2019.
    \1426\ Lance Toron Houston, Title IX Sexual Assault 
Investigations in Public Institutions of Higher Education: 
Constitutional Due Process Implications of the Evidentiary Standard 
Set Forth in the Department of Education's 2011 Dear Colleague 
Letter, 34 Hofstra Labor & Employment L. J. 321, 351 (2017) (stating 
that ``some schools have taken the bold initiative to preemptively 
lower the standard of proof in cooperation with university labor 
unions in order to avoid litigation and potential DOE [Department of 
Education] Title IX investigations'' and citing a University of 
Delaware CBA from 2015, and a California State University system CBA 
from 2014, as examples).
---------------------------------------------------------------------------

    These final regulations are focused on the appropriate standard of 
evidence for use in resolving allegations of Title IX sexual 
harassment, and not on the appropriate standard of evidence for use in 
cases of other types of misconduct by students, or employees. This is 
emphasized by our revision to the final regulations removing the NPRM's 
approach that tied the preponderance of the evidence standard to the 
standard of evidence a recipient uses in non-sexual harassment 
misconduct cases. Whether or not a recipient is required to use a 
certain standard of evidence under Federal regulations governing non-
sexual misconduct violations (for instance, research misconduct by 
faculty or graduate students), the Department's concern in these final 
regulations is ensuring that a recipient uses a single, selected 
standard of evidence for Title IX sexual harassment cases so that 
complainants alleging sexual harassment face a predictable grievance 
process regardless of whether the complainant has alleged sexual 
harassment by a student, employee, or faculty member.
    Contrary to commenters' assertions otherwise, the Department does 
not through these final regulations promote or encourage the clear and 
convincing evidence standard (or the preponderance of the evidence 
standard) and while we acknowledge that reputational stigma and 
potential life-altering consequences facing respondents accused of 
sexual misconduct may be reasons why a recipient might select a clear 
and convincing evidence standard, we do not contend that reputational 
stigma or life-altering consequences are absent in other types of 
misconduct allegations, such as research misconduct by graduate 
students or faculty.\1427\
---------------------------------------------------------------------------

    \1427\ We disagree that using a clear and convincing evidence 
standard for formal complaints of sexual harassment, while using a 
preponderance of the evidence standard for allegations of research 
misconduct, necessarily places respondents accused of the latter 
misconduct in a disfavored position. The elements of research 
misconduct differ from the elements of sexual harassment (as defined 
in Sec.  106.30) in ways that may justify using different standards 
of evidence (as explained above, a standard of evidence represents 
the degree of confidence the decision-maker must have in having 
reached a factually correct conclusion). For instance, ``research 
misconduct'' requires the misconduct to be committed intentionally, 
knowingly, or recklessly, while the Sec.  106.30 definition of 
sexual harassment does not require an element of intentionality. 
E.g., Gary S. Marx, An Overview of The Research Misconduct Process 
and an Analysis of the Appropriate Burden of Proof, 42 Journal of 
Coll. & Univ. L. 311, 317 (2016) (``Under the regulations adopted by 
HHS and by NSF, the following evidence is required to establish 
research misconduct: (a) There must be a significant departure from 
accepted practices of the relevant research community, (b) the 
misconduct must be committed intentionally, knowingly, or 
recklessly; and (c) the allegation must be proven by a preponderance 
of the evidence.'').
---------------------------------------------------------------------------

    The Department does not believe this approach to a recipient 
selecting the standard of evidence for use in all Title IX sexual 
harassment cases harms unions or reflects anti-union bias. If a 
recipient decides to renegotiate CBA terms in order to comply with 
Title IX obligations, that result is for the benefit of all students 
and employees (including complainants and respondents) whose Title IX 
rights will be more predictable and transparent, reflecting the 
recipient's judgment as to what level of confidence decision-makers 
should have in the accuracy of determinations regarding responsibility 
in sexual harassment cases. The Department does not believe that this

[[Page 30379]]

approach subjects recipients to liability under 34 CFR 106.51, because 
the Department does not assume that a recipient that changes the 
standard of evidence used in student cases to be the same standard as 
the recipient uses under employee CBAs makes that change for the 
purpose of disadvantaging complainants who allege sexual harassment; 
the Department believes that a recipient that makes that decision does 
so because the recipient has determined that the selected standard of 
evidence is the appropriate standard for resolving sexual harassment 
allegations. As discussed throughout this ``Section 106.45(b)(7)(i) 
Standard of Evidence and Directed Question 6'' subsection, commenters 
noted a variety of reasons to prefer the preponderance of the evidence 
standard over the clear and convincing evidence standard and vice 
versa. The Department believes that either standard of evidence 
(preponderance of the evidence, or clear and convincing evidence) may 
be applied fairly to reach reliable outcomes. The Department also does 
not believe that a recipient that selects the clear and convincing 
evidence standard subjects complainants to discrimination by 
``disfavoring'' complainants of sexual harassment compared to 
complainants of other forms of misconduct just because the 
preponderance of the evidence is used as the standard in other forms of 
misconduct. As noted previously with respect to, for example, Federal 
regulations that require use of the preponderance of the evidence 
standard in cases of research misconduct, there may be differences in 
the elements needed to prove a type of misconduct that may justify 
using different standards of evidence. Further, the severity of 
potential consequences of a finding of responsibility for sexual 
misconduct may differ from the potential consequences of a finding of 
other kinds of misconduct. Additionally, recipients sometimes use a 
standard of evidence lower than the preponderance of the evidence 
standard for student misconduct. Thus, unless using preponderance also 
``disfavors'' complainants of sexual harassment because some misconduct 
may continue to be decided under a lower standard of evidence, the 
Department does not believe that a recipient's use of the clear and 
convincing evidence standard subjects complainants of sexual harassment 
to discrimination (by ``disfavoring'' them) just because other types of 
misconduct may be decided under the preponderance of the evidence 
standard.\1428\
---------------------------------------------------------------------------

    \1428\ E.g., Lavinia M. Weizel, The Process That Is Due: 
Preponderance of the Evidence as the Standard of Proof for 
University Adjudications of Student-on-Student Sexual Assault 
Complaints, 53 Boston Coll. L. Rev. 1613, 1633, 1637 (2012) 
(``Substantial evidence is defined as enough relevant evidence that 
a reasonable person would support the fact-finder's conclusion'' and 
substantial evidence is a lower standard than the preponderance of 
the evidence standard because the former requires only ``some 
reasonable quantity of evidence'' while the latter requires ``facts 
to be true to the degree of more likely than not''); id. at 1642-43 
(noting that OCR's interpretation of Title IX and implementing 
regulations was, as of 2011, that only the preponderance of the 
evidence standard could be used for sexual harassment cases and ``As 
a practical matter, schools may be more likely to face 
constitutional challenges for moving from the higher clear and 
convincing evidence standard to the lower preponderance of the 
evidence standard than for moving from the lower substantial 
evidence standard to the higher preponderance of the evidence 
standard,'' analyzing ``the benefits of preponderance of the 
evidence as compared to the lower substantial evidence standard'' 
focusing on ``whether the preponderance of the evidence standard is 
sufficient to protect accused students' due process rights or 
whether the higher standard of clear and convincing evidence is 
required,'' and asserting that ``the use of the preponderance of the 
evidence standard, rather than the lower substantial evidence 
standard, will benefit schools, accused students, and perhaps all 
students, by lending greater legitimacy and uniformity to school 
disciplinary proceedings.''); see also, e.g., Miss. Code Ann. Sec.  
37-9-71 (in Mississippi, ``The standard of proof in all disciplinary 
proceedings shall be substantial evidence'' and students may be 
suspended or expelled for ``unlawful activity'' defined in Miss. 
Code Ann. Sec.  37-11-29 to include rape, sexual battery, and 
fondling as well as non-sex crimes such as aggravated assault; thus, 
if Mississippi follows OCR's position since the withdrawn 2011 Dear 
Colleague Letter that only the preponderance of the evidence 
standard should be used for sexual violence cases, and follows 
Mississippi State law directing schools to apply the substantial 
evidence standard for unlawful activity, Mississippi would use 
preponderance of the evidence for sexual harassment complainants and 
a lower standard of evidence for complainants of other types of 
misconduct, and the Department does not view this as Mississippi 
subjecting complainants of sexual harassment to discrimination by 
``disfavoring'' them as compared to complainants of non-sexual 
harassment misconduct).
---------------------------------------------------------------------------

    Whether or not commenters are correct in noting that power 
differentials between employees (particularly faculty) and students may 
tempt recipients to treat faculty as more credible than students, the 
final regulations allow recipients to select one of two standards of 
evidence consistently to all formal complaints; under either standard 
selected, the recipient is obligated to assess credibility based on 
objective evaluation of the evidence and not due to the party's status 
as a complainant or respondent,\1429\ and without bias for or against 
complainants or respondents generally or for or against an individual 
complainant or respondent.\1430\
---------------------------------------------------------------------------

    \1429\ Section 106.45(b)(1)(ii).
    \1430\ Section 106.45(b)(1)(iii).
---------------------------------------------------------------------------

    Changes: The Department has revised Sec.  106.45(b)(7)(i) of the 
final regulations such that recipients have the choice of either 
applying the preponderance of the evidence standard or the clear and 
convincing evidence standard, and Sec.  106.45(b)(1)(vii) requires a 
recipient to make that choice applicable to all formal complaints of 
sexual harassment, including those against employees and faculty. We 
have removed the limitation contained in the NPRM that would have 
permitted recipients to use the preponderance of the evidence standard 
only if they used that standard for non-sexual misconduct that has the 
same maximum disciplinary sanction.
Requiring the Preponderance of the Evidence Standard
    Comments: Many commenters urged the Department to mandate the 
preponderance of the evidence standard in Title IX proceedings. 
Commenters argued that the preponderance of the evidence standard is 
the only standard that treats both parties fairly, consistent with 
Title IX's requirement that grievance procedures be ``equitable,'' and 
that a higher standard would unfairly tilt proceedings in favor of 
respondents and against complainants.\1431\ Commenters argued that 
application of a heightened standard specifically in sexual misconduct 
cases reflects wrongful stereotypes that survivors, mainly girls and 
women, are more likely to lie than students who report other types of 
misconduct.\1432\ Commenters argued that the preponderance of the 
evidence standard is most appropriate because both parties have an 
equal interest in continuing their education. Commenters cited Title IX 
experts who support the preponderance of the evidence standard because, 
for example, it treats both parties equitably, levels the playing field 
between men and women, and because any higher standard than 
preponderance of the evidence would unfairly benefit respondents and 
discourage reporting of sexual assault by sending the message that a 
respondent's future at the institution is more important than the 
complainant's future

[[Page 30380]]

at the institution.\1433\ At least one commenter opined that using 
anything other than the preponderance standard demonstrates caring more 
about the accused than the complainant.\1434\
---------------------------------------------------------------------------

    \1431\ Commenters cited: Katharine Baker et al., Title IX & the 
Preponderance of the Evidence: A White Paper (July 18, 2017) (signed 
by 90 law professors).
    \1432\ Commenters cited, e.g., Sarah McMahon & G. Lawrence 
Farmer, An Updated Measure for Assessing Subtle Rape Myths, 35 
Social Work Research 2 (2011); Linda A. Fairstein, Sexual violence: 
Our war against rape (William Morrow & Co. 1993); S. Zydervelt et 
al., Lawyers' Strategies for Cross-Examining Rape Complainants: Have 
We Moved Beyond the 1950s?, 57 British Journal of Criminology 3 
(2016); Martha R. Burt, Cultural Myths and Supports for Rape, 38 
Journal of Personality & Social Psychol. 2 (1980).
    \1433\ Commenters cited: Edward Stoner II & John Wesley Lowery, 
Navigating Past the ``Spirit of Subordination'': A Twenty-First 
Century Model Student Conduct Code with a Model Hearing Script, 31 
Journal of Coll. & Univ. L. 1, 49 (2004); Lavinia M. Weizel, The 
Process that is Due: Preponderance of the Evidence as the Standard 
of Proof for University Adjudications of Student-on-Student Sexual 
Assault Complaints, 53 Boston Coll. L. Rev. 4, 1613, 1632 (2012); 
National Center for Higher Education Risk Management (The NCHERM 
Group), Due Process and the Sex Police (Apr. 2017) at 2, 17-18; 
Elizabeth Bartholet et al., Fairness For All Students Under Title IX 
5 (Aug. 21, 2017); Association of Title IX Administrators (ATIXA), 
ATIXA Position Statement: Why Colleges Are in the Business of 
Addressing Sexual Violence 4 (Feb. 17, 2017) (``The whole point of 
Title IX is to create a level playing field for men and women in 
education, and the preponderance standard does exactly that. No 
other evidentiary standard is equitable.''); Student Affairs 
Administrators in Higher Education (NASPA), NASPA Priorities for 
Title IX: Sexual Violence Prevention & Response 1 (``Rather than 
leveling the field for survivors and respondents, setting a standard 
higher than preponderance of the evidence tilts proceedings to 
unfairly benefit respondents.''); Association for Student Conduct 
Administration (ASCA), ASCA 2014 White Paper: Student Conduct 
Administration & Title IX: Gold Standard Practices for Resolution of 
Allegations of Sexual Misconduct on College Campuses 2 (2014); 
Association for Student Conduct Administration (ASCA), The 
Preponderance of Evidence Standard: Use In Higher Education Campus 
Conduct Processes (``Considering the serious potential consequences 
for all parties in these cases, it is clear that preponderance is 
the appropriate standard by which to reach a decision, since it is 
the only standard that treats all parties equitably. To use any 
other standard says to the victim/survivor, `Your word is not worth 
as much to the institution as the word of accused' or, even worse, 
that the institution prefers that the accused student remain a 
member of the campus community over the complainant. Such messages 
do not contribute to a culture that encourages victims to report 
sexual assault.'').
    \1434\ Commenters cited: Michelle J. Anderson, Campus Sexual 
Assault Adjudication and Resistance to Reform, 125 Yale L. J. 1940, 
1986 (2016).
---------------------------------------------------------------------------

    Commenters also asserted that the Department's longstanding 
practice has been to require the preponderance of the evidence 
standard, that many recipients currently use this standard,\1435\ and 
that courts generally use the preponderance of the evidence standard in 
civil rights litigation including for Title VI and Title VII.\1436\ At 
least one commenter argued that VAWA created civil rights of action for 
claims of rape and sexual assault and requires the preponderance of the 
evidence standard, and thus Title IX should not permit a different 
evidentiary standard to be used for conduct that also constitutes rape 
and sexual assault.\1437\ One commenter invoked the canon of in pari 
materia, in which similar statutes should be interpreted similarly, and 
argued that because lawsuits under Title VI and Title VII cases apply 
the preponderance of the evidence standard and these statutes serve the 
same basic civil rights purpose as Title IX, the preponderance of the 
evidence standard should also apply in Title IX proceedings.
---------------------------------------------------------------------------

    \1435\ Commenters cited: Letter from Association of Title IX 
Administrators (ATIXA) et al. to Russlynn Ali, Assistant Sec'y for 
Civil Rights, Office for Civil Rights, Dep't. of Education 2 (Feb. 
7, 2012) (for the proposition that 80 percent of schools already 
used the preponderance of the evidence standard before OCR insisted 
on its use). Some commenters cited: Heather M. Karjane et al., 
Campus Sexual Assault: How America's Institutions of Higher 
Education Respond 120, Final Report, NIJ Grant # 1999-WA-VX-0008 
(Education Development Center, Inc. 2002); Angela Amar et al., 
Administrators' Perceptions of College Campus Protocols, Response, 
and Student Prevention Efforts for Campus Sexual Assault, 29 
Violence & Victims 579, 584-85 (2014); Jake New, Burden of Proof in 
the Balance, Inside Higher Education (Dec. 16, 2016) (for the 
proposition that 60-70 percent of institutions already used the 
preponderance of the evidence standard prior to the withdrawn 2011 
Dear Colleague Letter); Michelle J. Anderson, The Legacy of the 
Prompt Complaint Requirement, Corroboration Requirement, and 
Cautionary Instructions on Campus Sexual Assault, 84 Boston Univ. L. 
Rev. 945, 1000 (2004) (for the proposition that most postsecondary 
institutions had voluntarily adopted the preponderance of the 
evidence standard for all student misconduct (not just sexual 
misconduct) by the early 2000s).
    \1436\ Commenters cited: Bazemore v. Friday, 478 U.S. 385, 400 
(1986), citing cases under Title VII (e.g., Desert Palace, Inc. v. 
Costa, 539 U.S. 90, 99 (2003)), Price Waterhouse v. Hopkins, 490 
U.S. 228, 253 (1989); Tex. Dep't. of Cmty. Affairs v. Burdine, 
superseded by statute, Civil Rights Act of 1991, as recognized in 
Landgraf v. USI Film Prods., 511 U.S. 244, 251 (1994); Elston v. 
Talladega Cnty. Bd. of Educ., 997 F.2d 1394, 1407 (11th Cir. 1993); 
Ramya Sekaran, The Preponderance of the Evidence Standard and 
Realizing Title IX's Promise: An Educational Environment Free from 
Sexual Violence, 19 Georgetown J. of Gender & the L. 3 (2018); 
Judicial Business 2014, U.S. Courts (Sept. 30, 2014) (for the 
proposition that the majority of cases in U.S. legal system use the 
preponderance of the evidence standard, shown by the fact that the 
number of filings for criminal defendants represented less than a 
third of all Federal case filings in 2014); SEC v. Posner, 16 F.3d 
520, 521 (2d Cir. 1994); EEOC v. Gaddis, 733 F.2d 1373, 1378-79 
(10th Cir. 1984); D. Allison Baker, Gender-Based Discrimination, 1 
Georgetown J. of Gender & the L. 2 (2000) (for the proposition that 
preponderance of the evidence is the standard used in civil 
proceedings involving sexual harassment claims). Commenters also 
cited: Steadman v. SEC, 450 U.S. 91, 95-102 (1982); Valmonte v. 
Bane, 18 F.3d 992, 1003-05 (2d Cir. 1994) (for the proposition that 
preponderance is used in various administrative proceedings 
involving imposition of serious sanctions). Commenters also cited: 
William E. Thro, No Clash of Constitutional Values: Respecting 
Freedom and Equality in Public University Sexual Assault Cases, 28 
Regent Univ. L. Rev. 197, 209 (2016) (for the proposition that a 
higher standard should not be used for campus proceedings than what 
is used in traditional court litigation); Patricia H. Davis, Higher 
Education Law: Title IX Cases, 80 Tex. Bus. J. 512 (2017) (for the 
proposition that preponderance is essential to hold perpetrators 
accountable and promote healthy campus environments).
    \1437\ Commenters cited: Amy Chmielewski, Defending the 
Preponderance of the Evidence Standard in College Adjudications of 
Sexual Assault, 2013 BYU Educ. & L. J. 143 (2013).
---------------------------------------------------------------------------

    Commenters argued that Title IX proceedings do not involve 
potential denial of significant liberty interests or jail, but rather 
involve determinations about whether the accused has violated school 
policy. These commenters described Supreme Court cases requiring a 
higher standard of evidence (such as clear and convincing evidence) in 
only a narrow set of cases implicating particularly important 
interests,\1438\ such as civil commitment, deportation, 
denaturalization, termination of parental rights, and similar cases, 
and commenters argued that school disciplinary proceedings do not 
implicate uniquely important interests that would warrant a heightened 
evidentiary standard.\1439\ A few commenters argued that potential 
damage to future career prospects does not justify a higher standard 
because the preponderance of the evidence standard applies to Federal 
research misconduct cases, civil anti-fraud proceedings, and 
professional discipline cases.\1440\
---------------------------------------------------------------------------

    \1438\ Commenters cited: Amy Chmielewski, Defending the 
Preponderance of the Evidence Standard in College Adjudications of 
Sexual Assault, 2013 BYU Educ. & L. J. 143, 150 (2013).
    \1439\ Commenter cited: Chelsea Avent, Karasek v. Regents of the 
University of California: The Victimization of Title IX, 96 Neb. L. 
Rev. 772, 776 (2018).
    \1440\ Commenters cited, e.g., In re Barach, 540 F.3d 82, 85 
(1st Cir. 2008); Granek v. Tex. State Bd. of Med. Examiners, 172 
SW3d 761, 777 (Tex. Ct. App. 2005) (for the proposition that many 
State and Federal courts apply the preponderance of the evidence 
standard to professional license revocation proceedings); Commenters 
cited an HHS study finding that two-thirds of States use the 
preponderance of the evidence standard in physician misconduct 
cases: Randall R. Bovbjerg et al., State Discipline of Physicians 
14-15 (2006). Commenters cited: Gary S. Marx, An Overview of the 
Research Misconduct Process and an Analysis of the Appropriate 
Burden of Proof, 42 Journal of Coll. & Univ. L. 311, 364 (2016).
---------------------------------------------------------------------------

    One commenter asserted that the clear and convincing evidence 
standard is unfairly vague compared to the preponderance of the 
evidence standard, and can increase ambiguity in situations where there 
is already distrust of sexual assault survivors. This commenter 
asserted that schools often do not have capacity to thoroughly 
undertake investigations and uncover corroborative evidence, so the 
preponderance of the evidence standard is the most appropriate 
standard. Commenters expressed concern that economically disadvantaged 
students might not have the ability to access resources immediately 
after being raped or assaulted, and thus might not be able to obtain 
evidence that courts deem to meet a clear and convincing evidence 
standard. Another commenter expressed concern that applying a 
heightened standard for sexual misconduct could

[[Page 30381]]

inadvertently set up young men to fail once they enter the corporate 
world, where a zero-tolerance approach applies.
    Discussion: The Department acknowledges the arguments raised by 
many commenters that the Department should mandate a preponderance of 
the evidence standard in Title IX proceedings for reasons including 
fairness, consistency with civil litigation, and consistency with other 
civil rights laws including Title VI and Title VII. As to the 
sufficiency of evidence to meet a clear and convincing evidence 
standard, the Department appreciates the opportunity to clarify that 
neither the preponderance of the evidence standard, nor the clear and 
convincing evidence standard, requires corroborating evidence.\1441\ We 
recognize, as have many commenters, that sexual harassment situations 
may arise under circumstances where the only available evidence is the 
statement of each party involved. A recipient is obligated to 
objectively evaluate all relevant evidence, including inculpatory and 
exculpatory evidence.\1442\ The decision-maker can reach a 
determination regarding responsibility under a preponderance of the 
evidence standard, or a clear and convincing evidence standard, based 
on objective evaluation of party statements, with or without evidence 
that corroborates either party's statements.\1443\ As discussed 
previously, a standard of evidence represents the ``degree of 
confidence'' that a decision-maker must have in the conclusion reached; 
\1444\ a standard of evidence does not dictate the nature of available 
evidence that might lead a decision-maker to reach the designated level 
of confidence.
---------------------------------------------------------------------------

    \1441\ Courts do not impose a requirement of corroborating 
evidence with respect to meeting either the preponderance of the 
evidence, or clear and convincing evidence, standard. See, e.g., 
Concrete Pipe & Prod. of Cal., Inc. v. Constr. Laborers Pension Tr. 
for S. Cal., 508 U.S. 602, 622 (1993) (quoting In re Winship, 397 
U.S. 358, 371-372 (1970) (Harlan, J., concurring) (``The burden of 
showing something by a `preponderance of the evidence,' the most 
common standard in the civil law, `simply requires the trier of fact 
to believe that the existence of a fact is more probable than its 
nonexistence before [he] may find in favor of the party who has the 
burden to persuade the [judge] of the fact's existence.' '')); cf., 
Sophanthavong v. Palmateer, 378 F.3d 859, 866-67 (9th Cir. 2004) 
(``Clear and convincing evidence requires greater proof than 
preponderance of the evidence. To meet this higher standard, a party 
must present sufficient evidence to produce `in the ultimate 
factfinder an abiding conviction that the truth of its factual 
contentions are [sic] highly probable.'') (quoting Colorado v. New 
Mexico, 467 U.S. 310, 316 (1984)).
    \1442\ Section 106.45(b)(1)(ii).
    \1443\ Gary S. Marx, An Overview of The Research Misconduct 
Process and an Analysis of the Appropriate Burden of Proof, 42 
Journal of Coll. & Univ. L. 311, 347 (2016) (noting that with 
respect to a clear and convincing evidence standard, while ``the 
proof must be of a heavier weight than merely the greater weight of 
the credible evidence, it does not require the evidence be 
unequivocal or undisputed'').
    \1444\ In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., 
concurring) (the purpose of a standard of proof is ``to instruct the 
factfinder concerning the degree of confidence our society thinks he 
should have in the correctness of factual conclusions for a 
particular type of adjudication.'').
---------------------------------------------------------------------------

    The statutory text of Title IX does not dictate a standard of 
evidence to be used by recipients in investigations of sexual 
harassment. The Department's 2001 Guidance was silent on an appropriate 
standard of evidence during Title IX grievance procedures,\1445\ 
although the withdrawn 2011 Dear Colleague Letter took the position 
that using a clear and convincing evidence standard violates Title IX 
because only a preponderance of the evidence standard is consistent 
with resolution of civil rights claims.\1446\
---------------------------------------------------------------------------

    \1445\ 2001 Guidance at 20.
    \1446\ 2011 Dear Colleague Letter at 11.
---------------------------------------------------------------------------

    It is true that civil litigation generally uses the preponderance 
of the evidence standard (although a clear and convincing evidence 
standard is applied in some civil litigation issues),\1447\ and that 
Title IX grievance processes are analogous to civil litigation in some 
ways. However, it is also true that Title IX grievance processes (as 
prescribed under these final regulations) do not have the same set of 
procedures available in civil litigation. For example, many recipients 
choose not to allow active participation by counsel; there are no 
comprehensive rules of evidence or rules of civil procedure in Title IX 
grievance processes that allow and govern pretrial motion practice; and 
Title IX grievance processes do not afford parties the same discovery 
tools available under rules of civil procedure. The Department does not 
wish to force schools, colleges, and universities to become de facto 
civil courts by imposing all the features of civil litigation onto the 
Title IX grievance process; rather, the Department has included in the 
Sec.  106.45 grievance process those procedural protections the 
Department has determined necessary to serve the critical interests of 
creating a consistent, fair process promoting reliable outcomes. While 
selecting a standard of evidence is important to ensuring a 
transparent, fair, reliable process, the Department has determined that 
a recipient may apply either the preponderance of the evidence 
standard, or the clear and convincing evidence standard, to fairly and 
accurately resolve formal complaints of sexual harassment. The 
Department believes that recipients reasonably may conclude that the 
preponderance of the evidence standard is more appropriate (perhaps for 
the reasons advocated by commenters) or that the clear and convincing 
evidence standard is more appropriate (perhaps for the reasons 
advocated by other commenters). The Department believes that either 
standard of evidence, in combination with the rights and protections 
required under Sec.  106.45, creates a consistent, fair process under 
which recipients can reach accurate determinations regarding 
responsibility. Factually accurate outcomes are critical in sexual 
harassment cases, where both parties face potentially life-altering 
consequences from the outcome, and either standard of evidence allowed 
under these final regulations reduces the risk of a factually 
inaccurate outcome. ``Being labeled a sex offender by a university has 
both an immediate and lasting impact on a student's life'' may affect 
``educational and employment opportunities down the road''.\1448\ When 
a finding of responsibility is erroneous, such consequences are unjust. 
At the same time, when a respondent is found not responsible for sexual 
harassment, the complainant receives no remedy restoring the 
complainant's equal access to education,\1449\ with immediate and 
lasting impact on the complainant's life, which may affect educational 
and employment opportunities down the road. When the finding of non-
responsibility is erroneous, such consequences are unjust. A 
complainant ``deserves a reliable, accurate outcome as much as'' a 
respondent.\1450\
---------------------------------------------------------------------------

    \1447\ Cal. ex rel. Cooper v. Mitchell Bros.' Santa Ana Theater, 
454 U.S. 90, 92-93 (1981) (noting that the ``purpose of a standard 
of proof is to instruct the factfinder concerning the degree of 
confidence our society thinks he should have in the correctness of 
factual conclusions for a particular type of adjudication'' and 
``[t]hree standards of proof are generally recognized, ranging from 
the preponderance of the evidence standard employed in most civil 
cases, to the clear and convincing evidence standard reserved to 
protect particularly important interests in a limited number of 
civil cases, to the requirement that guilty be proved beyond a 
reasonable doubt in a criminal prosecution.'') (internal quotation 
marks and citations omitted).
    \1448\ Doe v. Baum, 903 F.3d 575, 582 (6th Cir. 2018).
    \1449\ Nothing in these final regulations prevents a recipient 
from providing supportive measures to a complainant even after a 
determination of non-responsibility.
    \1450\ Doe v. Univ. of Cincinnati, 872 F.3d 393, 404 (6th Cir. 
2017).
---------------------------------------------------------------------------

    The Department disagrees that the preponderance of the evidence 
standard means that complainants and respondents are treated 
``equally'' or placed ``on a level playing field.'' Where

[[Page 30382]]

the evidence in a case is ``equal'' or ``level'' or ``in equipoise,'' 
the preponderance of the evidence standard results in a finding that 
the respondent is not responsible.\1451\
---------------------------------------------------------------------------

    \1451\ See, e.g., Vern R. Walker, Preponderance, Probability, 
and Warranted Factfinding, 62 Brooklyn L. Rev. 1075, 1076 (1996) 
(noting that the traditional formulation of the preponderance of the 
evidence standard by courts and legal scholars is that the party 
with the burden of persuasion must prove that a proposition is more 
probably true than false meaning a probability of truth greater than 
50 percent); Neil B. Cohen, The Gatekeeping Role in Civil Litigation 
and the Abdication of Legal Values in Favor of Scientific Values, 33 
Seton Hall L. Rev. 943, 954-56 (2003) (noting that the preponderance 
of the evidence standard applied in civil litigation results in the 
plaintiff losing the case where the plaintiff's and defendant's 
positions are ``in equipoise,'' i.e., where the evidence presented 
makes the case ``too close to call'').
---------------------------------------------------------------------------

    The Department recognizes that consistency with respect to 
administrative enforcement of Title IX and other civil rights laws 
(such as Title VI and Title VII) is desirable. However, these final 
regulations focus on furthering Title IX's non-discrimination mandate 
and address challenges unique to recipients' responses to sexual 
harassment. In this regard the Department has determined that 
recipients should retain flexibility to select the standard of evidence 
that they believe is most appropriate, because either of the two 
standards of evidence permitted under these final regulations may be 
used to produce reliable outcomes. The Department does not believe this 
approach to a standard of evidence under Title IX is in conflict with 
statutory or regulatory requirements under Title VI or Title VII that 
may apply to recipients who also have obligations under Title IX. 
Similarly, while VAWA authorizes private rights of action that 
(similarly to judicially implied private rights of action under Title 
VI and Title IX) use a preponderance of the evidence standard in civil 
litigation exercising those rights of action, these final regulations 
do not impact the standard of evidence that applies in civil litigation 
under any statute. For the reasons explained above the Department 
believes that either the preponderance of the evidence standard, or the 
clear and convincing evidence standard, is an appropriate standard in 
Title IX grievance processes, which differs from civil litigation. Even 
as to ways in which a Title IX grievance process is similar to civil 
litigation, both standards of evidence (the preponderance of the 
evidence standard and the clear and convincing evidence standard) are 
used in various types of civil litigation.
    As many commenters have noted, a Title IX grievance process differs 
in purpose and context from criminal, civil, and administrative agency 
proceedings. A Title IX grievance process serves a unique purpose 
(i.e., reaching accurate factual determinations about whether sexual 
harassment must be remedied by restoring a victim's equal access to 
education) in a unique context (i.e., decisions must be reached by 
schools, colleges, and universities whose primary function is to 
educate, not to serve as courts or administrative bodies). A Title IX 
grievance process is different from criminal, civil, and administrative 
proceedings, yet bears similarities to each. The preponderance of the 
evidence standard, and the clear and convincing evidence standard, each 
are used in various civil and administrative proceedings.\1452\ 
Additionally, recipients have historically used either the 
preponderance of the evidence standard or the clear and convincing 
evidence standard for a variety of student and employee misconduct 
proceedings, under a variety of rationales for choosing one or the 
other.\1453\ The Department believes that a recipient could view either 
standard as appropriate in the context of Title IX proceedings, and the 
Department agrees that either standard may be fairly applied to reach 
accurate outcomes, and thus these final regulations allow recipients to 
select the preponderance of the evidence standard, or the clear and 
convincing evidence standard, for use in resolving formal complaints of 
sexual harassment under Sec.  106.45.\1454\ Selecting a standard of 
evidence represents a statement about the ``degree of confidence'' that 
a recipient believes its decision-makers should have in reaching 
determinations regarding responsibility in Title IX sexual harassment 
cases. We do not agree that the recipient's selection of one standard 
over the other implies a belief that any party is lying or untruthful, 
and regardless of the applicable standard of evidence, Title IX 
personnel must avoid prejudgment of the facts at issue \1455\ and reach 
determinations regarding responsibility based on objective evaluation 
of the evidence without drawing credibility determinations based on a 
party's status as a complainant or respondent.\1456\ We also reiterate 
that regardless of the applicable standard of evidence, the burden of 
proof rests on the recipient, not on either party.\1457\
---------------------------------------------------------------------------

    \1452\ See, e.g., Nguyen v. Wash. Dep't. of Health, 144 Wash.2d 
516 (2001) (concluding that the Due Process Clause requires proof by 
at least the clear and convincing evidence standard in a sexual 
misconduct case in a medical disciplinary proceeding); Disciplinary 
Counsel v. Bunstine, 136 Ohio St. 3d 276 (2013) (applying the clear 
and convincing evidence standard in sexual harassment case involving 
a lawyer); cf. In re Barach, 540 F.3d 82, 85 (1st Cir. 2008); Granek 
v. Tex. State Bd. of Med. Examiners, 172 SW3d 761, 777 (Tex. Ct. 
App. 2005) (noting that many State and Federal courts apply the 
preponderance of the evidence standard to professional license 
revocation proceedings).
    \1453\ As many commenters noted, there exist valid reasons for 
supporting the preponderance of the evidence standard, and for 
supporting the clear and convincing evidence standard, with respect 
to sexual misconduct allegations. Commenters, for instance, cited 
this debate by citing to: Nancy Chi Cantalupo & John Villasenor, Is 
a Higher Standard Needed for Campus Sexual Assault Cases?, The New 
York Times (Jan. 4, 2017). The final regulations permit recipients 
to select between these standards to best meet the legal, cultural, 
and pedagogical needs of the recipient's community with respect to 
the degree of certainty the recipient expects decision-makers to 
have when reaching determinations regarding responsibility for 
sexual harassment allegations.
    \1454\ For reasons explained in the ``Mandating a Higher 
Standard of Evidence'' subsection of this ``Section 106.45(b)(7)(i) 
Standard of Evidence and Directed Question 6'' subsection of this 
preamble, the Department does not permit recipients to select a 
standard of evidence higher than clear and convincing evidence (such 
as the criminally used ``beyond a reasonable doubt'' standard).
    \1455\ Section 106.45(b)(1)(iii).
    \1456\ Section 106.45(b)(1)(i).
    \1457\ Section 106.45(b)(5)(i).
---------------------------------------------------------------------------

    We disagree that the clear and convincing evidence standard is 
unfairly vague. The clear and convincing evidence standard is a widely 
recognized standard of evidence used in a variety of civil and 
administrative proceedings,\1458\ and

[[Page 30383]]

many recipients have historically used clear and convincing evidence as 
an evidentiary standard for various types of student or employee 
misconduct.\1459\
---------------------------------------------------------------------------

    \1458\ E.g., Addington v. Texas, 441 U.S. 418, 424 (1979) 
(holding that the clear and convincing evidence standard was 
required in civil commitment proceedings) (noting that clear and 
convincing evidence is an ``intermediate standard'' between 
preponderance of the evidence and the criminal beyond a reasonable 
doubt standard and that the clear and convincing evidence standard 
``usually employs some combination of the words `clear,' `cogent,' 
`unequivocal,' and `convincing' '' and while less commonly used than 
the preponderance of the evidence standard the clear and convincing 
evidence standard is ``no stranger to the civil law'' and is 
sometimes used in civil cases ``involving allegations of fraud or 
some other quasi-criminal wrongdoing by the defendant'' where ``the 
interests at stake are deemed to be more substantial than mere loss 
of money'' justifying reduction of ``the risk to the defendant of 
having his reputation tarnished erroneously.'') (internal quotation 
marks and citations omitted); Sophanthavong v. Palmateer, 378 F.3d 
859, 866-67 (9th Cir. 2004) (``Clear and convincing evidence 
requires greater proof than preponderance of the evidence. To meet 
this higher standard, a party must present sufficient evidence to 
produce `in the ultimate factfinder an abiding conviction that the 
truth of its factual contentions are [sic] highly probable.' '') 
(quoting Colorado. v. New Mexico, 467 U.S. 310, 316 (1984)) 
(brackets in original); Jane B. Baron, Irresolute Testators, Clear 
and Convincing Wills Law, 73 Wash. & Lee L. Rev. 3, 45 (2016) 
(discussing application of the ``clear and convincing evidence'' 
standard in the context of proving that a facially defective will 
represented the testator's intent, and noting that ``It is common, 
however, for courts to vary in their formulation and expression of a 
legal standard. No evidentiary standard can define itself; all are 
indeterminate to some degree. Still, the idea behind requiring clear 
and convincing evidence seems intuitive enough; the factfinder need 
not be absolutely certain, but highly confident, about the fact in 
issue.''); Haley Hawkins, Clearly Unconvincing: How Heightened 
Evidentiary Standards in Judicial Bypass Hearings Create an Undue 
Burden Under Whole Woman's Health, 67 Am. Univ. L. Rev. 1911, 1923 
(2018) (``The clear and convincing evidence standard of proof is the 
highest evidentiary standard employed in civil proceedings, second 
only to the `beyond a reasonable doubt' standard employed in 
criminal proceedings. In general, standards of proof function to 
`instruct the factfinder concerning the degree of confidence our 
society thinks he should have in the correctness of factual 
conclusions for a particular type of adjudication.' Within the range 
of standards, clear and convincing evidence is situated to `protect 
particularly important individual interests in various civil cases' 
that involve more than `mere loss of money.' Though the meaning of 
`clear and convincing' varies by state, one can generally articulate 
the standard as `persuad[ing] the [factfinder] that the proposition 
is highly probable, or . . . produc[ing] in the mind of the 
factfinder a firm belief or conviction that the allegations in 
question are true.' '') (internal citations omitted).
    \1459\ 2011 Dear Colleague Letter at 11 (noting that the clear 
and convincing evidence standard was, at that time, ``currently used 
by some schools'' and insisting that only the preponderance of the 
evidence standard is permissible under Title IX); Matthew R. 
Triplett, Sexual Assault on College Campuses: Seeking the 
Appropriate Balance Between Due Process and Victim Protection, 62 
Duke L. J. 487, fn. 107 (2012) (noting that ``the standard of proof 
in student disciplinary hearings has historically varied wildly 
across institutions'' and listing examples of several prominent 
universities that lowered their standard of evidence from the clear 
and convincing evidence standard, to the preponderance of the 
evidence standard, after OCR issued the [now-withdrawn] 2011 Dear 
Colleague Letter).
---------------------------------------------------------------------------

    We disagree that a recipient who selects the clear and convincing 
evidence standard for resolution of sexual harassment cases is failing 
to prepare students for future careers in the corporate world. While 
corporate employers may or may not choose to, or be required to, use 
the clear and convincing evidence standard for sexual misconduct 
proceedings involving employees, workplaces differ from educational 
environments and different laws and policies govern discrimination 
complaints and misconduct proceedings in each context. Whether or not 
the commenter correctly characterized corporate environments as having 
``zero tolerance policies,'' we note that nothing in these final 
regulations precludes a recipient from adopting a zero tolerance policy 
(with respect to harassment or any other misconduct); these final 
regulations apply only to a recipient's obligations to respond to 
sexual harassment (as defined in Sec.  106.30) of which the recipient 
knows and which occurs in the recipient's education program or 
activity.\1460\ As noted in Sec.  106.45(b)(3)(i), even if a recipient 
must dismiss allegations of sexual harassment in a formal complaint 
under these final regulations, such dismissal is only for Title IX 
purposes and does not preclude action under another provision of the 
recipient's code of conduct.
---------------------------------------------------------------------------

    \1460\ Section 106.44(a) (requiring a recipient with actual 
knowledge of sexual harassment in the recipient's education program 
or activity against a person in the United States to respond 
promptly in a manner that is not deliberately indifferent).
---------------------------------------------------------------------------

    Changes: The Department has revised Sec.  106.45(b)(7)(i) of the 
final regulations such that recipients have the choice of either 
applying the preponderance of the evidence standard or the clear and 
convincing evidence standard, and Sec.  106.45(b)(1)(vii) requires a 
recipient to make that choice applicable to all formal complaints of 
sexual harassment, including those against employees and faculty. We 
have removed the limitation contained in the NPRM that would have 
permitted recipients to use the preponderance of the evidence standard 
only if they used that standard for non-sexual misconduct that has the 
same maximum disciplinary sanction.
Improving Accuracy of Outcomes
    Comments: A number of commenters asserted that the preponderance of 
the evidence standard increases the overall accuracy of the system 
because it is an error-minimizing standard and argued that the clear 
and convincing evidence standard would increase false negative errors 
to a greater extent than it reduces false positive errors, thus 
reducing the accuracy of Title IX outcomes.\1461\ Other commenters 
pointed to a study explaining that use of the preponderance of the 
evidence standard increases false positive errors.\1462\
---------------------------------------------------------------------------

    \1461\ Commenters cited: Nicholas E. Khan, The Standard of Proof 
in the Substantiation of Child Abuse and Neglect, 14 Journal of 
Empirical Legal Studies 333, 356-57 (2017).
    \1462\ Commenters cited: John Villasenor, A Probabilistic 
Framework for Modelling False Title IX `convictions' under the 
Preponderance of the Evidence Standard, 15 Law, Probability & Risk 4 
(2016).
---------------------------------------------------------------------------

    Discussion: The Department shares commenters' concerns that 
increasing the overall accuracy of determinations of responsibility in 
Title IX proceedings is critical and that minimizing either type of 
error (i.e., false positives and false negatives) is important and 
desirable. The Department does not believe that evidence is conclusive 
either way regarding whether using the preponderance of the evidence 
standard or the clear and convincing evidence standard as the standard 
of evidence in Title IX proceedings best reduces risk of error, in part 
because studies that may shed light on that question assume features 
and processes in place that differ from those prescribed by the final 
regulations under Sec.  106.45. The final regulations permit recipients 
to select either the preponderance of the evidence standard or the 
clear and convincing evidence standard for application to formal 
complaints of sexual harassment in the recipient's educational 
community, because in combination with the other procedural features of 
the Sec.  106.45, either standard of evidence can be applied fairly to 
result in accurate outcomes.
    Changes: The Department has revised Sec.  106.45(b)(7)(i) of the 
final regulations such that recipients have the choice of either 
applying the preponderance of the evidence standard or the clear and 
convincing evidence standard, and Sec.  106.45(b)(1)(vii) requires a 
recipient to make that choice applicable to all formal complaints of 
sexual harassment, including those against employees and faculty. We 
have removed the limitation contained in the NPRM that would have 
permitted recipients to use the preponderance of the evidence standard 
only if they used that standard for non-sexual misconduct that has the 
same maximum disciplinary sanction.
Safety Concerns
    Comments: Many commenters contended that the clear and convincing 
evidence standard will make campuses less safe, chill reporting, and 
harm already vulnerable students.\1463\ Commenters argued that the 
clear and convincing evidence standard will discourage survivors, 
particularly students of color, LGBTQ students, and students with 
disabilities, from reporting because this standard unjustly favors 
respondents. Commenters argued that the clear and convincing evidence 
standard may result in a lower number of respondents found responsible 
and removed from campus, thus increasing the risk of victim re-
traumatization by encountering their perpetrator and possibly resulting 
in ``constructive expulsion,'' where survivors leave school to avoid 
seeing their perpetrator. Commenters argued that the clear and 
convincing evidence standard may perversely incentivize perpetrators to

[[Page 30384]]

attack again because of the perception they will not be held 
accountable.
---------------------------------------------------------------------------

    \1463\ Commenters cited: Nancy Chi Cantalupo, For the Title IX 
Civil Rights Movement: Congratulations and Cautions, 125 Yale L. J. 
of Feminism 282, 290 (2016); Kathryn J. Holland & Lilia M. Cortina, 
``It happens to girls all the time'': Examining sexual assault 
survivors' reasons for not using campus supports, 59 Am. J. of 
Community Psychol. 1-2 (2017); Shamus Khan et al., ``I Didn't Want 
to Be `That Girl' '': The Social Risks of Labeling, Telling, and 
Reporting Sexual Assault, 5 Sociological Sci. 432 (2018).
---------------------------------------------------------------------------

    Discussion: Under the final regulations, complainants (or third 
parties) may report sexual harassment triggering a recipient's 
mandatory obligation to offer the complainant supportive measures and 
inform the complainant about the option of filing a formal complaint; 
complainants are not required to file a formal complaint or participate 
in a grievance process in order to report sexual harassment and receive 
supportive measures.\1464\ Thus, regardless of how a complainant 
perceives or anticipates the experience of a grievance process, a 
complainant has the right to report sexual harassment and receive 
supportive measures. If or when a complainant also decides to file a 
formal complaint initiating a grievance process against a respondent, 
Sec.  106.45 ensures that the burden of gathering evidence, and the 
burden of proof, remain on the recipient and not on the complainant (or 
respondent). Complainants who participate in a grievance process 
receive the strong, clear procedural rights and protections in Sec.  
106.45 including, among other things, the right to gather, present, 
review, and respond to evidence, the right to review and respond to the 
recipient's investigative report summarizing relevant evidence, and the 
right to pose questions to be answered by a respondent to further the 
complainant's perspective about the case and what the outcome should 
be, and the right to an advisor of choice to advise and assist the 
complainant throughout the process.\1465\ Whether the recipient selects 
a preponderance of the evidence standard, or a clear and convincing 
evidence standard, complainants have the right and opportunity to 
participate in the process on an equal basis with the respondent. 
Regardless of which standard of evidence a recipient selects, we 
reiterate that neither standard requires corroborating evidence in 
order to reach a determination regarding responsibility; the standard 
of evidence reflects the ``degree of confidence'' that a decision-maker 
has in correctness of the factual conclusions reached.\1466\
---------------------------------------------------------------------------

    \1464\ Section 106.44(a).
    \1465\ Section 106.45(b)(5)(i); Sec.  106.45(b)(5)(iii); Sec.  
106.45(b)(5)(iv); Sec.  106.45(b)(5)(vi); Sec.  106.45(b)(5)(vii); 
Sec.  106.45(b)(6).
    \1466\ Cal. ex rel. Cooper v. Mitchell Bros.' Santa Ana Theater, 
454 U.S. 90, 92-93 (1981) (noting that the ``purpose of a standard 
of proof is to instruct the factfinder concerning the degree of 
confidence our society thinks he should have in the correctness of 
factual conclusions for a particular type of adjudication'').
---------------------------------------------------------------------------

    The Department understands that whether a determination regarding 
responsibility is reached using the preponderance of the evidence 
standard or the clear and convincing evidence standard, the outcome 
reflects the weight and persuasiveness of the available, relevant 
evidence in the case. We have added Sec.  106.71 in the final 
regulations to caution recipients not to draw conclusions about any 
party's truthfulness during a grievance process based solely on the 
outcome of the case. The final regulations do not preclude a recipient 
from keeping supportive measures in place even after a determination 
that a respondent is not responsible, so complainants do not 
necessarily need to be left in constant contact with the respondent, 
regardless of the result of a grievance process. The Department 
understands the potential for loss of educational access for 
complainants, and for respondents, in situations where sexual 
harassment allegations are not resolved accurately. The Department is 
not aware of a Federal appellate court holding that the clear and 
convincing evidence standard is required to satisfy constitutional due 
process or fundamental fairness in Title IX proceedings, and the 
Department is not aware of a Federal appellate court holding that the 
preponderance of the evidence standard is required under Title IX. 
Because recipients have historically used either the preponderance of 
the evidence standard or the clear and convincing evidence standard in 
sexual misconduct disciplinary proceedings, and because studies are 
inconclusive about which standard is more likely to reduce the risk of 
erroneous outcomes, the Department concludes that recipients must 
select and consistently apply a standard of evidence that is not lower 
than the preponderance of the evidence standard and not higher than the 
clear and convincing evidence standard, but that either the 
preponderance of the evidence standard or the clear and convincing 
evidence standard may be applied to reach accurate determinations in a 
Title IX grievance process, consistent with constitutional due process 
and fundamental fairness and with Title IX's non-discrimination 
mandate. The Department believes that the predictable, fair grievance 
process prescribed under Sec.  106.45 will convey to complainants and 
respondents that the recipient treats formal complaints of sexual 
harassment seriously and aims to reach a factually accurate conclusion; 
the Department does not agree that using one standard of evidence 
rather than the other conveys to respondents that Title IX sexual 
harassment can be perpetrated without consequence.
    Changes: The Department has revised Sec.  106.45(b)(7)(i) of the 
final regulations such that recipients have the choice of either 
applying the preponderance of the evidence standard or the clear and 
convincing evidence standard, and Sec.  106.45(b)(1)(vii) requires a 
recipient to make that choice applicable to all formal complaints of 
sexual harassment, including those against employees and faculty. We 
have removed the limitation contained in the NPRM that would have 
permitted recipients to use the preponderance of the evidence standard 
only if they used that standard for non-sexual misconduct that has the 
same maximum disciplinary sanction. We have added Sec.  106.71 
prohibiting retaliation for exercising rights under Title IX and 
specifying that while a recipient may punish a party for making bad-
faith materially false statements during a grievance process, the 
outcome of the case alone cannot be the basis for concluding that a 
party made a bad-faith materially false statement.
Consistency of Standards of Evidence Across Recipients
    Comments: A few commenters raised concerns that allowing recipients 
to choose between two standards of evidence will lead to inconsistent 
systems across the country, which may complicate campus crime reporting 
under the Clery Act and make it harder for prospective students to 
compare crime statistics across campuses. Commenters argued that the 
Department should not allow justice to apply unequally across the 
country.
    Discussion: These final regulations do not alter requirements under 
the Clery Act or its implementing regulations. The Department disagrees 
that data gathering and reporting under the Clery Act will be affected 
by the standard of evidence selected by a recipient for resolving 
formal complaints of sexual harassment under Title IX. A recipient's 
obligations to report under the Clery Act depend on when a crime has 
been reported to the recipient and do not depend on the outcome of any 
disciplinary proceeding that results from a person's report of a crime.
    The final regulations' approach to the standard of evidence for 
Title IX grievance processes (whereby a recipient may select either the 
preponderance of the evidence standard, or the clear and convincing 
evidence standard), may result in some recipients selecting one 
standard and other recipients selecting the other standard. The 
Department disagrees that this approach results in ``unequal justice'' 
across the country. The Department believes that this approach

[[Page 30385]]

to the standard of evidence maintains consistency with respect to all 
Title IX grievance processes, across recipients, because all grievance 
processes regardless of which standard of evidence a recipient applies, 
are fair processes likely to lead to accurate determinations regarding 
responsibility.
    Changes: The Department has revised Sec.  106.45(b)(7)(i) of the 
final regulations such that recipients have the choice of either 
applying the preponderance of the evidence standard or the clear and 
convincing evidence standard, and Sec.  106.45(b)(1)(vii) requires a 
recipient to make that choice applicable to all formal complaints of 
sexual harassment, including those against employees and faculty. We 
have removed the limitation contained in the NPRM that would have 
permitted recipients to use the preponderance of the evidence standard 
only if they used that standard for non-sexual misconduct that has the 
same maximum disciplinary sanction.
Standards of Evidence Below the Preponderance of the Evidence
    Comments: A few commenters proposed that the Department consider 
lower standards of evidence than the preponderance of the evidence 
standard. One commenter suggested ``substantial evidence,'' or enough 
relevant evidence that a reasonable person would find supports the 
fact-finder's conclusion. Another commenter suggested ``reasonable 
cause'' and noted that child welfare agencies protecting children from 
abuse use the ``reasonable cause'' standard, which is lower than the 
preponderance of the evidence standard.
    Discussion: As discussed above, the Department does not wish to be 
more prescriptive than necessary to ensure a consistent grievance 
process yielding accurate outcomes, so that recipients are held 
responsible for redressing sexual harassment as a form of sex 
discrimination under Title IX. As commenters pointed out, the two 
standards of evidence between which the final regulations permit 
recipients to choose are not the only possible standards of evidence 
that could be used in Title IX proceedings. For example, some 
commenters urged adoption of the higher, criminal ``beyond a reasonable 
doubt'' standard, while other commenters noted that preponderance of 
the evidence standard is not ``the lowest'' possible standard that 
could be used, because lower standards such as ``substantial 
evidence,'' ``reasonable cause,'' or ``probable cause'' are used, or 
have been used, in student discipline and certain types of legal 
proceedings. The Department believes that students and employees 
deserve clarity as to the standard of evidence a recipient will apply 
during the grievance process and that recipients should be permitted as 
much flexibility as reasonably possible while ensuring reliable 
outcomes in these high-stakes cases. For reasons described above, the 
Department believes that either the preponderance of the evidence 
standard or the clear and convincing evidence standard can be applied 
within the Sec.  106.45 grievance process and yield reliable outcomes, 
but does not believe that a standard lower than the preponderance of 
the evidence standard, or higher than the clear and convincing evidence 
standard, would result in a fair process or reliable outcomes.\1467\
---------------------------------------------------------------------------

    \1467\ See Lavinia M. Weizel, The Process That Is Due: 
Preponderance of The Evidence as The Standard of Proof For 
University Adjudications of Student-On-Student Sexual Assault 
Complaints, 53 Boston Coll. L. Rev. 1613, 1635 (2012) (analyzing 
court cases that have criticized colleges for using a standard of 
evidence lower than the preponderance of the evidence standard, such 
as what many schools have referred to as ``substantial evidence'' 
because using a standard lower than the preponderance of the 
evidence standard ``leaves the fact-finder adrift to be persuaded by 
individual prejudices rather than by the weight of the evidence 
presented'') (internal quotation marks and citations omitted).
---------------------------------------------------------------------------

    As discussed above, the Department does not believe that the 
highest possible standard (beyond a reasonable doubt) should apply in a 
noncriminal proceeding such as a Title IX grievance process where, as 
commenters have accurately pointed out, a respondent's liberty 
interests are not at stake.\1468\ The Supreme Court has cautioned 
against applying the ``beyond a reasonable doubt'' standard to 
noncriminal proceedings.\1469\ At the same time, the Department does 
not believe that a standard lower than preponderance (such as 
substantial evidence or probable cause) should apply to the Title IX 
grievance process either, because the stakes are high for both parties 
in a Title IX process; without a determination based on a probability 
of accuracy greater than 50 percent (i.e., more likely than not to be 
true), the Department does not believe that an outcome can be deemed 
reliable or perceived as legitimate. Without a reliable outcome, the 
parties, recipients, Department, and the public cannot confidently 
assess whether a recipient has responded to sex discrimination in the 
recipient's education program or activity by providing remedies to 
victims and taking disciplinary action against perpetrators with 
respect to sexual harassment allegations.
---------------------------------------------------------------------------

    \1468\ The clear and convincing evidence standard is an 
``intermediate standard'' that while less commonly used than the 
preponderance of the evidence standard, is sometimes used in civil 
cases ``involving allegations of fraud or some other quasi-criminal 
wrongdoing by the defendant'' that justify reducing ``the risk to 
the defendant of having his reputation tarnished erroneously.'' 
Addington v. Texas, 441 U.S. 418, 424 (1979) (internal quotation 
marks and citations omitted). As some commenters observed, the 
consequences for a respondent in a Title IX case often involve 
allegations of quasi-criminal wrongdoing with possible lifelong 
impact on a respondent's reputation.
    \1469\ See, e.g., Santosky v. Kramer, 455 U.S. 745, 768 (1982) 
(noting that the Supreme Court hesitates to apply the ``unique 
standard'' of beyond a reasonable doubt ``too broadly or casually in 
noncriminal cases'') (internal quotation marks and citations 
omitted).
---------------------------------------------------------------------------

    Changes: None.
Questioning the Department's Legal Authority
    Comments: Several commenters contended that the NPRM's choice of 
evidence standard exceeds the Department's legal authority. One 
commenter argued that allowing the clear and convincing evidence 
standard for sexual harassment cases but a lower preponderance of the 
evidence standard for non-sexual harassment cases could violate the 
Fourteenth Amendment Equal Protection Clause. Other commenters 
suggested that allowing a clear and convincing evidence standard is 
inconsistent with Title IX's statutory objectives and would not 
effectuate the prohibition on sex discrimination. One commenter stated 
that the Supreme Court, not the Department, must ultimately determine 
the applicable Title IX standard of evidence. Another commenter 
suggested that the NPRM's approach to the standard of evidence violates 
the International Covenant on Civil and Political Rights, under which 
the U.S. is obligated to prohibit and eliminate sex discrimination. One 
commenter asserted that the Department lacks authority over evidence 
standards at all, and that the Department should instead defer to 
recipients' administrative discretion to set their own evidentiary 
standards. One commenter argued that the Department lacks authority 
over negotiated agreements between recipient management and employees, 
and the Department's attempt to supersede these agreements with 
mandated evidentiary standards is regulatory overreach. This commenter 
emphasized that recipients did not contemplate such a requirement when 
accepting Federal funding.
    Discussion: Contrary to the claims made by some commenters, the 
Department believes the final regulations address the issue of what 
standard of evidence should apply in Title IX proceedings, in a 
reasonable manner that falls within the Department's regulatory 
authority. The

[[Page 30386]]

Department acknowledges that the statutory text of Title IX does not 
reference, much less dictate, a standard of evidence to be used by 
recipients to resolve allegations of sexual harassment. The 
Department's authority to regulate on the subject of sexual harassment, 
including how a recipient responds when a complainant files a formal 
complaint raising allegations of sexual harassment against a 
respondent, flows from the Department's statutory directive to 
promulgate rules and regulations to effectuate the purposes of Title 
IX.\1470\ Those purposes have been described by the Supreme Court as 
preventing Federal funds from supporting education programs or 
activities that tolerate sex discriminatory practices and providing 
individuals with effective protections against such sex discriminatory 
practices.\1471\
---------------------------------------------------------------------------

    \1470\ 20 U.S.C. 1681; 20 U.S.C. 1682; Davis v. Monroe Cnty. Bd. 
of Educ., 526 U.S. 629, 638-39 (1999).
    \1471\ See Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979) 
(noting that the primary congressional purposes behind Title IX were 
``to avoid the use of Federal resources to support discriminatory 
practices'' and to ``provide individual citizens effective 
protection against those practices.''). As noted previously, the 
Department is not aware of a Federal appellate court holding that 
the preponderance of the evidence standard is required in order to 
be consistent with Title IX's non-discrimination mandate, and is not 
aware of a Federal appellate court holding that the clear and 
convincing evidence standard is required to satisfy constitutional 
due process or fundamental fairness in Title IX proceedings. The 
Department believes that either of these two standards of evidence 
may be applied by a recipient in a Title IX grievance process 
because both are consistent with Title IX's non-discrimination and 
due process protections.
---------------------------------------------------------------------------

    Where sexual harassment allegations present contested narratives 
regarding a particular incident between a complainant and respondent, 
accurately determining the truth of the allegations in a non-sex biased 
manner is critical to ensuring that a recipient responds appropriately 
by providing the complainant with remedies that restore or preserve the 
complainant's equal access to education. As noted previously in this 
preamble, a complainant is a victim of sexual harassment where a fair 
process has reached an accurate determination that the respondent 
perpetrated sexual harassment against the complainant and the final 
regulations require recipients to provide such complainants with 
remedies. For the reasons discussed above, the Department has 
determined that a fair, reliable outcome requires that a recipient 
notify its students and employees in advance of the standard of 
evidence the recipient will apply in sexual harassment grievance 
processes, and the Department has further determined that either the 
preponderance of the evidence standard, or the clear and convincing 
evidence standard (but not a standard lower than preponderance of the 
evidence or higher than clear and convincing evidence) can produce an 
accurate determination. Both of the standards of evidence available for 
recipients to choose under these final regulations are standards common 
to civil proceedings, and not to criminal proceedings. The difference 
between the two options is a difference in the degree of confidence 
that each recipient decides that a decision-maker must have in the 
factual correctness of the conclusions reached in Title IX sexual 
harassment cases; that is, the difference between having confidence 
that a conclusion is based on facts that are more likely true than 
not,\1472\ or having confidence that a conclusion is based on facts 
that are highly probable to be true.\1473\ Thus, the Department's 
provisions regarding selection and application of a standard of 
evidence effectuates the dual purposes of Title IX--preventing Federal 
dollars from flowing to schools that fail to protect victims of sexual 
harassment, and providing individuals with effective protections 
against discriminatory practices that occur by failure to accurately 
determine who has been victimized by sexual harassment. At the same 
time, these provisions regarding selection and application of a 
standard of evidence are consistent with constitutional due process and 
fundamental fairness. Fair adversarial procedures increase the 
probability that the truth of allegations will be accurately 
determined,\1474\ and reduce the likelihood that impermissible sex bias 
will affect the outcome. Acknowledging the arguments from commenters 
urging the Department to mandate one or the other standard, the 
Department has determined that either the preponderance of the evidence 
standard or the clear and convincing evidence standard reasonably can 
be applied as part of the fair procedures prescribed under Sec.  
106.45.
---------------------------------------------------------------------------

    \1472\ A preponderance of the evidence standard of evidence is 
understood to mean concluding that a fact is more likely than not to 
be true. E.g., Concrete Pipe & Prod. of Cal., Inc. v. Constr. 
Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (a 
preponderance of the evidence standard ``requires the trier of fact 
to believe that the existence of a fact is more probable than its 
nonexistence'') (internal quotation marks and citation omitted).
    \1473\ A clear and convincing evidence standard of evidence is 
understood to mean concluding that a fact is highly probable to be 
true. E.g., Sophanthavong v. Palmateer, 378 F.3d 859, 866-67 (9th 
Cir. 2004) (a clear and convincing evidence standard requires 
``sufficient evidence to produce in the ultimate factfinder an 
abiding conviction that the truth of its factual contentions are 
[sic] highly probable.'') (internal quotation marks and citation 
omitted; brackets in original).
    \1474\ The adversarial ``system is premised on the well-tested 
principle that truth--as well as fairness--is `best discovered by 
powerful statements on both sides of the question.' '' Penson v. 
Ohio, 488 U.S. 75, 84 (1988) (quoting Irving R. Kaufman, Does the 
Judge Have a Right to Qualified Counsel?, 61 Am. Bar Ass'n J. 569, 
569 (1975)).
---------------------------------------------------------------------------

    The Department further notes that the Supreme Court has 
specifically approved of the Department's authority to regulate 
specific requirements under Title IX even when those requirements are 
not referenced under the statute and even when the administratively 
imposed requirements do not represent a definition of sex 
discrimination under the statute; the Department has wide latitude to 
issue requirements for the purpose of furthering Title IX's non-
discrimination mandate, including measures designed to make it less 
likely that sex discrimination will occur, even if a Federal court 
would not hold the recipient accountable to the same requirements in a 
private lawsuit under Title IX.\1475\ For example, the Department's 
existing regulations in 34 CFR 106 have, since 1975, required 
recipients to have in place grievance procedures for the ``prompt and 
equitable'' resolution of complaints that a recipient is committing sex 
discrimination,\1476\ even though the Title IX statute does not require 
recipients to have in place any grievance procedures to handle sex 
discrimination complaints.
---------------------------------------------------------------------------

    \1475\ See, e.g., Gebser, 524 U.S. at 291-92 (refusing to allow 
plaintiff to pursue a claim under Title IX based on the school's 
failure to comply with the Department's regulatory requirement to 
adopt and publish prompt and equitable grievance procedures, stating 
``And in any event, the failure to promulgate a grievance procedure 
does not itself constitute `discrimination' under Title IX. Of 
course, the Department of Education could enforce the requirement 
administratively: Agencies generally have authority to promulgate 
and enforce requirements that effectuate the statute's non-
discrimination mandate, 20 U.S.C. 1682, even if those requirements 
do not purport to represent a definition of discrimination under the 
statute.'').
    \1476\ The final regulations revise 34 CFR 106.8(b), in ways 
discussed in the ``Section 106.8(b) Dissemination of Policy'' 
subsection of the ``Clarifying Amendments to Existing Regulations'' 
section of this preamble. Under the final regulations, recipients 
still must have grievance procedures that provide for the prompt and 
equitable resolutions of complaints from students and employees 
alleging sex discrimination. The final regulations update Sec.  
106.8 to clarify that ``prompt and equitable'' grievance procedures 
must still exist for sex discrimination that is not sexual 
harassment, and that recipients must also notify students, 
employees, and others that the recipient has a grievance process 
that complies with Sec.  106.45 for the purpose of resolving formal 
complaints of sexual harassment.
---------------------------------------------------------------------------

    The Department rejects the contention made by one commenter that 
the approach to the standard of evidence

[[Page 30387]]

contained in Sec.  106.45(b)(7)(i) of the final regulations may violate 
the Fourteenth Amendment Equal Protection Clause. Nothing in the final 
regulations dictates what standard of evidence recipients use in non-
sexual harassment cases, so a recipient does not necessarily treat 
different types of cases differently because of the final regulations. 
Further, the Department notes that the appropriate standard of review 
under an Equal Protection challenge would be the rational basis test, 
which upholds a State action that makes distinctions that are not based 
on suspect classifications, if there is any reasonable set of facts 
that could provide a rational basis for the action.\1477\ The 
Department has determined that allowing recipients to select one of two 
standards of evidence,\1478\ either of which can be applied within a 
fair grievance process to reach accurate determinations, is rationally 
related to the legitimate interest of ensuring reliable outcomes in 
Title IX sexual harassment cases.
---------------------------------------------------------------------------

    \1477\ F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993) 
(holding that in areas of social and economic policy, statutory 
classification that neither proceeds along suspect lines nor 
infringes fundamental constitutional rights must be upheld against 
equal protection challenge if there is any reasonably conceivable 
state of facts that could provide rational basis for 
classification).
    \1478\ As noted above, the final regulations removed the NPRM 
condition that a recipient only use the preponderance of the 
evidence standard if the recipient also uses that standard in non-
sexual harassment code of conduct proceedings.
---------------------------------------------------------------------------

    With respect to obligations under international law such as the 
International Covenant on Civil and Political Rights, nothing in the 
final regulations impairs any U.S. obligation to prohibit and eliminate 
sex discrimination, nor does the Department see any conflict between 
recipients' compliance with the final regulations, and U.S. compliance 
with applicable international laws or treaties.\1479\
---------------------------------------------------------------------------

    \1479\ For further discussion, see the ``Conflicts with First 
Amendment, Constitutional Confirmation, International Law'' 
subsection of the ``Miscellaneous'' section of this preamble.
---------------------------------------------------------------------------

    We discuss the implications of the final regulations' approach to 
the standard of evidence with respect to a recipient's employees and 
CBAs in the ``Same Evidentiary Standard in Student and Faculty Cases'' 
subsection of this section, above. For further discussion of the 
Department's application of these final regulations to employees, see 
the ``Section 106.6(f) Title VII and Directed Question 3 (Application 
to Employees)'' subsection of the ``Clarifying Amendments to Existing 
Regulations'' section of this preamble. For reasons discussed in the 
``Spending Clause'' subsection of the ``Miscellaneous'' section of this 
preamble, the Department disagrees that these final regulations exceed 
the Department's regulatory authority to promulgate rules that 
effectuate the purposes of Title IX with respect to education programs 
or activities that receive Federal financial assistance.
    Changes: None.
Alternative Approaches and Clarification Requests
    Comments: Several commenters proposed alternative regulatory 
language for Sec.  106.45(b)(7)(i). One commenter urged the Department 
to explicitly address both sexual harassment and ``sexual misconduct'' 
in the standard of evidence provisions. This commenter agreed that it 
was appropriate to require the same standard of evidence in student and 
faculty cases but also believed that the Department should apply the 
same due process rights for students and faculty alike. This commenter 
also requested that the Department include ``staff'' and not just 
``faculty'' in this provision.
    One commenter requested that the Department explicitly define the 
preponderance of the evidence standard as satisfied where the 
conclusion is supported by persuasive, relevant, and substantial 
evidence and the procedures are both transparent and fair. This 
commenter rejected the notion that the preponderance of the evidence 
standard is 50 percent ``plus a feather.'' One commenter suggested that 
if in a particular case the preponderance of the evidence standard is 
satisfied, but not the clear and convincing evidence standard, then the 
Department should allow recipients to suspend or expel the respondent 
but not put a permanent notation on the respondent's transcript that 
would prevent transfer to another school. The commenter argued that 
this strikes a balance between protecting wrongly convicted students 
and protecting victims seeking to continue their education. One 
commenter requested that the Department adopt the provision as written, 
but also require recipients to provide a written explanation as to why 
it is necessary to use one evidentiary standard instead of another. 
Another commenter argued that the clear and convincing evidence 
standard is unclear, and the Department should explicitly define it in 
the final regulations. And one commenter suggested that the Department 
include statistics in the final regulations to justify changing its 
approach to evidentiary standards.
    Commenters also raised several questions regarding evidentiary 
standards. One commenter inquired as to whether the requirement that if 
the preponderance of the evidence standard is used in Title IX cases 
then it must be used in non-Title IX cases with the same maximum 
punishment is satisfied where the preponderance of the evidence 
standard is used for: (a) All conduct code violations with same maximum 
punishment; (b) most of such conduct code violations; (c) more than one 
but less than a majority of such violations; (d) even a single such 
violation; (e) a penalty phase only (such as to impose expulsion); (f) 
student infractions governed by a separate policy than the student 
conduct code; or (g) student conduct code violations, but not for other 
forms of discrimination or harassment by students. The same commenter 
asked whether the requirement that the same standard of evidence be 
used for Title IX complaints against students and faculty means 
recipients must use the clear and convincing evidence standard for 
student cases if the clear and convincing evidence standard is applied 
to: (a) All Title IX complaints against employees; (b) Title IX 
complaints against a majority of employees; (c) Title IX complaints 
against even a single employee: (d) Title IX complaints against some 
but not all types of misconduct by employees; (e) Title IX complaints 
about even a single type of misconduct; (f) complaints about employee 
misconduct not involving alleged discrimination and/or harassment by 
employees towards students; (g) complaints about employee misconduct 
not involving alleged discrimination and/or harassment by employees 
towards other employees, (h) some, but not all, aspects of complaints 
against employees (for example, where the preponderance of the evidence 
standard is used to determine whether misconduct occurred, but the 
clear and convincing evidence standard is required for some forms of 
discipline against a class of employees, such as revoking tenure for 
tenured faculty).
    Discussion: The Department notes that ``sexual harassment'' is 
defined in Sec.  106.30 of the final regulations, and this definition 
encompasses a wide range of sexual misconduct. The Department does not 
believe that the term ``sexual misconduct'' would be more appropriate 
than ``sexual harassment'' in these regulations, because the Supreme 
Court interpretations of Title IX refer to sexual harassment. 
Furthermore, Sec.  106.45(b)(1)(vii) and Sec.  106.45(b)(7)(i) mandate 
that recipients use the same standard of evidence to reach 
determinations regarding responsibility in response to formal 
complaints against

[[Page 30388]]

students as they do for formal complaints against employees, including 
all staff and faculty, and the final regulations also require the other 
provisions in Sec.  106.45 to apply to all formal complaints of sexual 
harassment whether against students and employees, including faculty.
    The Department declines to provide definitions of the 
``preponderance of the evidence'' standard and the ``clear and 
convincing evidence'' standard. The Department believes that each 
standard of evidence referenced in the final regulations has a commonly 
understood meaning in other legal contexts and intends the 
``preponderance of the evidence'' standard to have its traditional 
meaning in the civil litigation context and the ``clear and convincing 
evidence'' standard to have its traditional meaning in the subset of 
civil litigation and administrative proceedings where that standard is 
used.\1480\
---------------------------------------------------------------------------

    \1480\ See, e.g., Concrete Pipe & Prod. of Cal., Inc. v. Constr. 
Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (quoting 
In re Winship, 397 U.S. 358, 371-372 (1970) (Harlan, J., concurring) 
(``The burden of showing something by a `preponderance of the 
evidence,' the most common standard in the civil law, `simply 
requires the trier of fact to believe that the existence of a fact 
is more probable than its nonexistence before [he] may find in favor 
of the party who has the burden to persuade the [judge] of the 
fact's existence.' '') (brackets in original; citation omitted)); 
Sophanthavong v. Palmateer, 378 F.3d 859, 866-67 (9th Cir. 2004) 
(``Clear and convincing evidence requires greater proof than 
preponderance of the evidence. To meet this higher standard, a party 
must present sufficient evidence to produce `in the ultimate 
factfinder an abiding conviction that the truth of its factual 
contentions are [sic] highly probable.' '') (quoting Colorado v. New 
Mexico, 467 U.S. 310, 316 (1984)) (brackets in original); 
Justia.com, ``Evidentiary Standards and Burdens of Proof,'' https://www.justia.com/trials-litigation/lawsuits-and-the-court-process/evidentiary-standards-and-burdens-of-proof/ (describing 
preponderance of the evidence as proof ``that a particular fact or 
event was more likely than not to have occurred'' and clear and 
convincing evidence as proof ``that a particular fact is 
substantially more likely than not to be true.'').
---------------------------------------------------------------------------

    For discussion of transcript notations, see the ``Transcript 
Notations'' subsection of the ``Determinations Regarding 
Responsibility'' subsection of the ``Section 106.45 Recipient's 
Response to Formal Complaints'' section of this preamble.
    The Department expects that recipients will select a standard of 
evidence based on the recipient's belief about which standard best 
serves the interests of the recipient's educational community, or 
because State law requires the recipient to apply one or the other 
standard, or because the recipient has already bargained with unionized 
employees for a particular standard of evidence in misconduct 
proceedings. The Department declines to require recipients to explain 
why a recipient has selected one or the other standard of evidence, 
though nothing in the final regulations precludes a recipient from 
communicating its rationale to its educational community.
    The Department has examined statistics, data, and information 
regarding standards of evidence submitted by commenters through public 
comment on the NPRM, and has considered commenters' arguments in favor 
of the preponderance of the evidence standard, in favor of the clear 
and convincing evidence standard, and in favor of other standards of 
evidence. For reasons described above, the Department has determined 
that the approach to the standard of evidence contained in Sec.  
106.45(b)(1)(vii) and Sec.  106.45(b)(7)(i) of the final regulations 
represents the most effective way of legally obligating recipients to 
select a standard of evidence for use in resolving formal complaints of 
sexual harassment under Title IX to ensure a fair, reliable grievance 
process without unnecessarily mandating that a recipient select one 
standard over the other.
    As discussed above, and after careful consideration of many 
comments we found to be persuasive, the Department removed the NPRM's 
requirement that recipients may only apply the preponderance of the 
evidence standard to reach determinations regarding responsibility in 
Title IX proceedings if they use that same standard to address non-
sexual misconduct cases that carry the same maximum punishment. 
However, the final regulations retain the NPRM's requirement that 
recipients use the same standard of evidence to reach determinations of 
responsibility in Title IX proceedings against students as they do for 
Title IX proceedings against employees including faculty, for reasons 
discussed above. With respect to the questions raised by one commenter 
as to the scope of this requirement, the Department wishes to clarify 
that the same standard of evidence must apply to each formal complaint 
alleging sexual harassment against employees as it does for each formal 
complaint alleging sexual harassment against students. In short, under 
the final regulations the same standard of evidence will apply to all 
formal complaints of sexual harassment under Title IX responded to by a 
particular recipient, whether the respondent is a student or employee.
    Changes: The Department has revised Sec.  106.45(b)(7)(i) of the 
final regulations such that recipients have the choice of either 
applying the preponderance of the evidence standard or the clear and 
convincing evidence standard, and Sec.  106.45(b)(1)(vii) requires a 
recipient to make that choice applicable to all formal complaints of 
sexual harassment, including those against employees and faculty. We 
have removed the limitation contained in the NPRM that would have 
permitted recipients to use the preponderance of the evidence standard 
only if they used that standard for non-sexual misconduct that has the 
same maximum disciplinary sanction.
Section 106.45(b)(7)(ii) Written Determination Regarding Responsibility 
Must Include Certain Details
    Comments: A number of commenters expressed support for Sec.  
106.45(b)(7) because it requires the decision-maker to provide a 
written determination regarding responsibility. Commenters stated that 
putting decisions in writing will prevent confusion as to what was 
decided and provide a written record for appeals or other 
administrative needs, or judicial review. Commenters asserted that a 
written determination will protect due process and prevent schools from 
inserting bias into proceedings. Commenters expressed support for Sec.  
106.45(b)(7) due to concern that institutions were ``railroading'' 
respondents.
    One commenter argued that Sec.  106.45(b)(7) is a reasonable means 
of reducing sex discrimination because requiring decision-makers to 
give reasons for their decisions has been shown to enhance the 
thoroughness of decision making and to improve the willingness of 
decision-makers to engage in self-critical thinking,\1481\ a concept 
well known to the legal system.\1482\ The commenter further argued that 
requiring reason-giving tends to foster independent decision making and 
reduce overconfidence in decision making,\1483\ so that individual

[[Page 30389]]

decision-makers become less susceptible to group pressure,\1484\ all of 
which contribute to rendering more accurate decisions.
---------------------------------------------------------------------------

    \1481\ Commenters cited: Itamar Simonson & Peter Nye, The Effect 
of Accountability on Susceptibility to Decision Errors, 51 
Organizational Behavior & Hum. Decision Processes 416, 430-32, 437 
(1992); Itamar Simonson & Barry M. Staw, Deescalation Strategies: A 
Comparison of Techniques for Reducing Commitment to Losing Courses 
of Action, 77 J. Applied Psychol. 419, 422-25 (1992); Diederik A. 
Stapel et al., The Impact of Accuracy Motivation on Interpretation, 
Comparison, and Correction Processes: Accuracy x Knowledge 
Accessibility Effects, 74 Journal of Personality & Social Psychol. 
878, 891 (1998); Erik P. Thompson et al., Accuracy Motivation 
Attenuates Covert Priming: The Systematic Reprocessing of Social 
Information, 66 Journal of Personality & Social Psychol. 474, 484 
(1994).
    \1482\ Commenters cited: Frederick Schauer, Giving Reasons, 47 
Stan. L. Rev. 633, 657-58 (1995) (``[W]hen institutional designers 
have grounds for believing that decisions will systematically be the 
product of bias, self-interest, insufficient reflection, or simply 
excess haste, requiring decision-makers to give reasons may 
counteract some of these tendencies.'').
    \1483\ Commenters cited: Karen Siegel-Jacobs & J. Frank Yates, 
Effects of Procedural and Outcome Accountability on Judgment 
Quality, 65 Organizational Behavior & Hum. Decision Processes 1, 15 
(1996); Philip E. Tetlock & Jae Il Kim, Accountability and Judgment 
Processes in a Personality Prediction Task, 52 Journal of 
Personality & Social Psychol. 700, 706-07 (1987).
    \1484\ Commenters cited: Marceline B.R. Kroon et al., Managing 
Group Decision Making Processes: Individual Versus Collective 
Accountability and Groupthink, 2 Int'l J. of Conflict Mgmt. 91, 99 
(1991).
---------------------------------------------------------------------------

    A few commenters urged the Department to also require that the 
written determination must include or describe contradictory facts, 
exculpatory evidence, all evidence presented at the hearing, and/or 
credibility assessments. One commenter argued that Sec.  
106.45(b)(7)(ii)(C) should be revised to require findings of fact 
sufficient to allow the parties and any appellate reviewer to 
understand the facts tending to support or refute the determination.
    Some commenters argued that requiring a written determination is 
too burdensome, especially for smaller institutions and for elementary 
and secondary schools.
    Discussion: The Department believes Sec.  106.45(b)(7) serves the 
important function of ensuring that both parties know the reasons for 
the outcome of a Title IX grievance process, and agrees that requiring 
decision-makers to give written reasoning helps ensure independent 
judgment and decision making free from bias. Section 106.45(b)(7)(i) 
requires recipients to issue a written determination regarding 
responsibility to foster reliability and thoroughness, and to ensure 
that a recipient's findings are adequately explained.
    Section 106.45(b)(7)(ii) mandates that the written determination 
must include certain key elements so that the parties have a thorough 
understanding of the investigative process and information considered 
by the recipient in reaching conclusions. Section 106.45(b)(7)(iii) 
requires that this written determination be provided to the parties 
simultaneously. The substance of these provisions generally tracks 
language in the Clery Act regulations at 34 CFR 668.46(k)(2)(v) and 
(k)(3)(iv) and reflect concepts familiar to institutions of higher 
education that receive Federal student aid under Title IV of the Higher 
Education Act of 1965, as amended. The Department believes that the 
benefits of these provisions, including promoting transparency and 
equal treatment of the parties, are also important in the elementary 
and secondary school context, even though elementary and secondary 
schools are not subject to the Clery Act. Furthermore, the provisions 
in Sec.  106.45(b)(7) are consistent with Department guidance, which 
has always been applicable to both postsecondary institutions and 
elementary and secondary schools. For example, the 2001 Guidance stated 
that an equitable grievance procedure should include providing notice 
to the parties of the outcome of a sexual harassment complaint,\1485\ 
and the withdrawn 2011 Dear Colleague Letter stated that notice of the 
outcome should be in writing and sent to both parties 
concurrently.\1486\
---------------------------------------------------------------------------

    \1485\ 2001 Guidance at 20 (prompt and equitable grievance 
procedures should provide for ``Notice to the parties of the outcome 
of the complaint'').
    \1486\ 2011 Dear Colleague Letter at 13 (``Both parties must be 
notified, in writing, about the outcome of both the complaint and 
any appeal, i.e., whether harassment was found to have occurred. OCR 
recommends that schools provide the written determination of the 
final outcome to the complainant and the alleged perpetrator 
concurrently.'').
---------------------------------------------------------------------------

    Requiring recipients to describe, in writing, conclusions (and 
reasons for those conclusions) will help prevent confusion about how 
and why a recipient reaches determinations regarding responsibility for 
Title IX sexual harassment. We agree that requiring a written 
determination (sent simultaneously to both parties) is an important due 
process protection for complainants and respondents, ensuring that both 
parties have relevant information about the resolution of allegations 
of Title IX sexual harassment. Section 106.45(b)(7) also helps prevent 
injection of bias into Title IX sexual harassment grievance processes, 
by requiring transparent descriptions of the steps taken in an 
investigation and explanations of the reasons why objective evaluation 
of the evidence supports findings of facts and conclusions based on 
those facts. Because the Department believes that Sec.  106.45(b)(7) is 
important to ensure that recipients consistently, transparently, 
fairly, and accurately respond to Title IX sexual harassment, the 
Department declines to exempt smaller institutions, or elementary and 
secondary schools, from the requirements of this provision. The 
Department believes that the requirements of this provision are 
reasonable, and that the burden of complying with this provision is 
outweighed by the benefit of a consistent, transparent Title IX 
grievance process for students in elementary and secondary schools, as 
well as students at postsecondary institutions, irrespective of the 
size of the institution's student body.
    In order to ensure that the written determination resolves 
allegations that a respondent committed sexual harassment as defined in 
Sec.  106.30, and to avoid confusion caused by the NPRM's reference in 
Sec.  106.45(b)(7)(ii)(A) to a recipient's code of conduct, we have 
revised that provision to reference identification of ``allegations 
potentially constituting sexual harassment as defined in Sec.  106.30'' 
instead of ``identification of sections of the recipient's code of 
conduct alleged to have been violated.'' Recipients retain discretion 
to also refer in the written determination to any provision of the 
recipient's own code of conduct that prohibits conduct meeting the 
Sec.  106.30 definition of sexual harassment; however, this revision to 
Sec.  106.45(b)(7)(ii)(A) helps ensure that these final regulations are 
understood to apply to a recipient's response to Title IX sexual 
harassment, and not to apply to a recipient's response to non-Title IX 
types of misconduct.
    We decline to expressly require the written determination to 
address evaluation of contradictory facts, exculpatory evidence, ``all 
evidence'' presented at a hearing, or how credibility assessments were 
reached, because the decision-maker is obligated to objectively 
evaluate all relevant evidence, including inculpatory and exculpatory 
evidence (and to avoid credibility inferences based on a person's 
status as a complainant, respondent, or witness), under Sec.  
106.45(b)(1)(ii). It is precisely this objective evaluation that 
provides the basis for the decision-maker's ``rationale'' for ``the 
result'' of each allegation, which must be described in the written 
determination under Sec.  106.45(b)(7)(ii)(E). The Department believes 
that Sec.  106.45(b)(7), as revised in these final regulations, 
provides for a written determination adequate for the purposes of an 
appeal or judicial proceeding reviewing the determination regarding 
responsibility. We therefore decline to revise the language of this 
provision to specify that findings of fact must be described 
sufficiently to allow the parties and any appellate reviewer to 
understand the facts supporting or refuting the determination.
    Changes: We have revised Sec.  106.45(b)(7)(ii)(A) to reference 
identification of allegations potentially constituting sexual 
harassment as defined in Sec.  106.30, instead of referencing 
identification of sections of the recipient's code of conduct alleged 
to have been violated.
    Comments: One commenter argued that requiring a written 
determination that describes the procedural steps of the investigation 
(i.e., Sec.  106.45(b)(7)(ii)(B) requiring inclusion

[[Page 30390]]

of notifications to parties, interviews of parties and witnesses, site 
visits, methods used to gather evidence) has no equivalent within 
criminal or civil procedure. Commenters argued that this provision 
would be unreasonably burdensome for recipients, especially for smaller 
institutions and for elementary and secondary schools. Some commenters 
asserted that the only procedural detail that should be included in the 
written determination is the investigation timeline. Other commenters 
asserted that information about the investigation should be included in 
the investigative report, but not in the written determination.
    One commenter argued that proposed Sec.  106.45(b)(7)(ii)(C)-(D), 
which required that the written determination include findings of fact 
supporting the determination and ``conclusions regarding the 
application of the recipient's code of conduct to the facts,'' would be 
contrary to the Administrative Procedure Act (``APA''), 5 U.S.C. 701 et 
seq., because the Department is not authorized to impose requirements 
on a recipient based whether the recipient's own code of conduct has 
been violated. The commenter argued that the Department's authority is 
strictly restricted to the application of Title IX to the facts and 
does not extend to application of the recipient's code of conduct to 
the facts.
    One commenter expressed concern that the requirements related to 
the written determination are an example of how the proposed rules 
would conflate a sexual harassment investigation with disciplinary 
proceedings for behavioral violations. The commenter asserted that in 
the elementary and secondary school context, a sexual harassment 
investigation is designed to determine whether or not a student 
experienced sexual harassment and what remedies are necessary to stop 
the harassment, eliminate a hostile environment, prevent the harassment 
from reoccurring, and address any effects of the hostile environment. 
The commenter furthered argued that determinations of an individual 
student's culpability for sexual harassment should be handled under a 
school district's code of conduct and State student discipline due 
process laws.
    A number of commenters expressed concerns about including 
``remedies'' in the written determination, under proposed Sec.  
106.45(b)(7)(ii)(E). One commenter requested a definition of the term 
``remedies.'' One commenter argued that this proposed provision's 
reference to including ``any sanctions the recipient imposes on the 
respondent, and any remedies provided by the recipient to the 
complainant'' is consistent with FERPA. Other commenters asserted that 
disclosing a complainant's remedies to the respondent may violate 
FERPA, and would violate the complainant's right to privacy regardless 
of whether FERPA would allow the disclosure. Commenters asserted that 
including remedies in the written determination would endanger safety 
on campus, deter students from seeking help, deter faculty and staff 
from participating in the process, and subject victims to further 
harassment from respondents. With respect to describing sanctions and 
remedies, some commenters suggested adding a FERPA compliance clause to 
this provision, and other commenters suggested modifying this provision 
to mirror the Clery Act.
    Commenters asserted that the Department should require the written 
determination to contain assurances that the school will take steps to 
prevent recurrence of harassment, correct the discriminatory effects of 
harassment, and prevent any retaliation against the complainant. 
Commenters argued that the effects of harassment can impact not only 
the complainant and respondent but also other members of the 
recipient's community; because of this, commenters asserted, the final 
regulations should specify that a school's obligation to respond 
following a determination of responsibility is not time-limited, and 
should require the school to take steps to ensure that remedial efforts 
are successful and to take further remedial steps if initial remedial 
efforts are not successful.
    One commenter suggested that the Department should require 
recipients to make a transcript or recording of all proceedings, and 
that the Department should require recipients to provide the transcript 
or recording to the parties along with the determination regarding 
responsibility, at least ten days prior to any appeal deadline.
    Commenters suggested that the written determination should not be 
prepared by the recipient but, rather, should be prepared by the 
Department, the U.S. Department of Justice, or a local or State human 
rights commission under work-sharing agreements. Commenters suggested 
that the same arrangement should be used to conduct the entire 
investigation.
    Discussion: The Department believes that the written determination 
must include certain key elements so that the parties have a complete 
understanding of the process and information considered by the 
recipient to reach its decision and that as revised, Sec.  
106.45(b)(7)(ii) appropriately and reasonably prescribes what a 
determination regarding responsibility must include. Such key 
information includes: Identification of the allegations alleged to 
constitute sexual harassment as defined in Sec.  106.30; the procedural 
steps taken from receipt of the formal complaint through the 
determination regarding responsibility; findings of fact supporting the 
determination; conclusions regarding the application of the recipient's 
code of conduct to the facts of the conduct allegedly constituting 
Title IX sexual harassment; a determination regarding responsibility 
for each allegation and the decision-maker's rationale for the result; 
any disciplinary sanctions the recipient imposes on the respondent and 
whether the recipient will provide remedies to the complainant; and 
information regarding the appeals process and the recipient's 
procedures and permissible bases for the complainant and respondent to 
appeal. These requirements promote transparency and consistency so that 
both parties have a thorough understanding of how a complainant's 
allegations of Title IX sexual harassment have been resolved. We 
believe these requirements are reasonable, and that the cost or burden 
associated with compliance with this provision is outweighed by the 
benefit of promoting a consistent, transparent Title IX grievance 
process, including in elementary and secondary schools, and in 
institutions of a smaller size.
    The Department acknowledges a commenter's point that a requirement 
to prepare a written determination that details steps of the 
investigation has no equivalent within criminal or civil procedure. 
However, in a criminal or civil proceeding, the criminal defendant or 
the civil litigation parties would likely have access to the same 
information through a combination of discovery rules and the ability to 
compel witnesses to appear at trial. To avoid attempting to make 
educational institutions mimic courts of law, the final regulations 
refrain from imposing discovery rules or purporting to create subpoena 
powers to compel parties or witnesses to be interviewed or to testify, 
in a Title IX grievance process. However, the written determination 
detailing the steps of the recipient's investigation ensures that both 
parties in a Title IX grievance process understand the investigative 
process. This gives the parties equal opportunity

[[Page 30391]]

to raise any procedural irregularities on appeal.\1487\
---------------------------------------------------------------------------

    \1487\ Section 106.45(b)(8) (requiring recipients to offer both 
parties equal opportunity to appeal, on any of three bases, 
including that procedural irregularity affected the outcome of the 
matter).
---------------------------------------------------------------------------

    The Department disagrees with the suggestion by commenters that the 
Department should require the investigator's timeline to be included in 
the investigative report, and not in the written determination. The 
investigative report must fairly summarize relevant evidence, but Sec.  
106.45(b)(5)(vii) does not require that investigative report to 
describe the investigator's timeline. The procedural steps in the 
investigation will instead appear in the written determination 
regarding responsibility, so that both parties have a thorough 
understanding of the investigative process that led to the decision-
maker's determination regarding responsibility.
    The Department disagrees that requiring the written determination 
to include findings of fact supporting the determination and 
conclusions regarding application of the recipient's code of conduct to 
the facts runs contrary to the APA or otherwise exceeds the 
Department's regulatory authority. The Department recognizes that the 
Department's regulatory authority to enforce Title IX does not extend 
to purporting to enforce a recipient's own code of conduct. Nothing in 
these final regulations, including with respect to a recipient's 
issuance of a written determination regarding responsibility, purports 
to regulate a recipient's application of the recipient's own code of 
conduct. Instead, these final regulations, including the provisions in 
Sec.  106.45(b)(7)(ii), govern how a recipient describes and explains 
its conclusions regarding Title IX sexual harassment in the recipient's 
education program or activity. The facts supporting the determination 
required to be included in the written determination under Sec.  
106.45(b)(7)(ii) are relevant to evaluating a recipient's response to 
Title IX sexual harassment regardless of the recipient's code of 
conduct. However, requiring the recipient to ``match up'' how the 
conduct that allegedly constituted Title IX sexual harassment also 
violates the recipient's code of conduct serves to notify the parties 
of any rules the recipient applies in its own code of conduct that, 
while not required by the Sec.  106.45 grievance process, are 
permissible exercises of a recipient's discretion with respect to a 
Title IX grievance process. In response to commenters' concerns, we 
have revised Sec.  106.45(b)(7)(ii)(A) to remove reference to 
identification of sections of the recipient's code of conduct alleged 
to have been violated, and replaced that language with a requirement to 
identify the allegations potentially constituting sexual harassment as 
defined in Sec.  106.30. Similarly, as discussed in the ``Written 
Notice of Allegations'' subsection of the ``Section 106.45 Recipient's 
Response to Formal Complaints'' section of this preamble, we have 
revised Sec.  106.45(b)(2) to remove unnecessary references to the 
recipient's ``code of conduct'' that could have mistakenly implied that 
alleged conduct under investigation in a Sec.  106.45 grievance process 
is conduct that violates the recipient's code of conduct without also 
constituting sexual harassment as defined in Sec.  106.30. With these 
revisions, we do not believe that the final regulations, including 
106.45(b)(7)(ii), unduly or impermissibly reference a recipient's code 
of conduct. Rather, this provision gives the parties information about 
how the conduct under investigation and adjudication (i.e., Title IX 
sexual harassment) fits within a recipient's own unique code of conduct 
so that the parties are apprised of rules unique to the recipient's own 
code of conduct that affect the determination or consequences of a 
determination regarding responsibility. For example, the final 
regulations include an entry for ``Consent'' under Sec.  106.30 that 
assures recipients that the Department will not require recipients to 
adopt any particular definition of consent. Parties will benefit from a 
written determination that, for example, explains how the recipient's 
own definition of ``consent'' has been applied in a particular case to 
an allegation of sexual assault. Thus, the written determination 
requirement to include how the conduct being adjudicated fits into the 
recipient's code of conduct does not imply that the Department is 
regulating conduct outside Title IX sexual harassment.
    The Department disagrees that the final regulations, or the written 
determination provision in particular, conflate sexual harassment with 
student code of conduct violations. As explained above, the written 
determination requirements in Sec.  106.45(b)(7)(ii) are intended to 
transparently disclose to the parties how the conduct under 
investigation and subject to adjudication (which conduct, by virtue of 
Sec.  106.45(b)(2) must consist of allegations that meet the Sec.  
106.30 definition of sexual harassment) ``matches up'' against 
particular portions of a recipient's code of conduct, so that the 
parties understand how rules unique to a recipient's code of conduct 
affect the determination. As to conduct that does not meet the Sec.  
106.30 definition of sexual harassment (or does not otherwise meet the 
jurisdictional conditions specified in Sec.  106.44(a)), a formal 
complaint regarding such conduct must be dismissed for purposes of 
Title IX, though such conduct may be addressed by the recipient under 
its own code of conduct.\1488\ Thus, the written determination 
provision in Sec.  106.45(b)(7) only applies to Title IX sexual 
harassment, and does not govern a recipient's investigation or 
adjudication (or other response) to other misconduct under the 
recipient's own student conduct codes.
---------------------------------------------------------------------------

    \1488\ Section 106.45(b)(3)(i).
---------------------------------------------------------------------------

    The Department does not believe a definition of the term 
``remedies'' is necessary, but the final regulations add a statement in 
Sec.  106.45(b)(1)(i) to lend clarity as to the nature of remedies. 
That provision now explains that remedies may include the same 
individualized services described in Sec.  106.30 as ``supportive 
measures'' but that remedies need not be non-disciplinary or non-
punitive and need not avoid burdening the respondent. Beyond this, the 
Department believes recipients should have the flexibility to offer 
such remedies as they deem appropriate to the individual facts and 
circumstances of each case, bearing in mind that the purpose of 
remedies is to restore or preserve the complainant's equal access to 
education.
    The Department acknowledges the privacy concerns expressed by 
commenters regarding the inclusion of remedies in the written 
determination of responsibility. In response to commenters' concerns 
about the privacy aspects of disclosing what remedies a victim receives 
and the resulting possible effects of deterring reporting or making 
complainants feel unsafe, and in an effort to align these Title IX 
regulations with what recipients are required to do under the Clery 
Act, the final regulations revise Sec.  106.45(b)(7)(ii)(E) to state 
(emphasis added) that the written determination must include any 
disciplinary sanctions the recipient imposes on the respondent,\1489\ 
``and whether remedies will be provided by the recipient to the 
complainant'' to assure complainants that the nature of remedies 
provided

[[Page 30392]]

does not appear in the written determination, while preserving the 
overall fairness of giving both parties identical copies of the written 
determination simultaneously. The final regulations also add Sec.  
106.45(b)(7)(iv) stating that the Title IX Coordinator is responsible 
for the effective implementation of remedies. These revisions to Sec.  
106.45(b)(7) help ensure that complainants know that where the final 
determination has indicated that remedies will be provided, the 
complainant can then communicate separately with the Title IX 
Coordinator to discuss what remedies are appropriately designed to 
preserve or restore the complainant's equal access to education. The 
Department believes that these changes address commenters' concerns 
about the privacy implications, safety concerns, and discouragement of 
students and employees from participating in the process, that were 
raised by the proposed rules' requirement that remedies granted to a 
victim must be stated and described in the written determination. For 
discussion of these final regulations' reference to remedies and 
disciplinary sanctions, and FERPA, see the ``Sec.  106.6(e) FERPA'' 
subsection of the ``Clarifying Amendments to Existing Regulations'' 
section of this preamble.
---------------------------------------------------------------------------

    \1489\ We have also revised this provision to use the phrase 
``disciplinary sanctions'' instead of ``sanctions'' as part of 
consistent use throughout the final regulations of ``disciplinary 
sanctions'' to avoid confusion over whether ``sanctions'' means 
something other than ``disciplinary sanctions.''
---------------------------------------------------------------------------

    Commenters suggested requiring assurances that the school will take 
steps to prevent recurrence of harassment, correct its discriminatory 
effects, and prevent any retaliation against the complainant because 
the effects of harassment can go beyond the complainant and the 
respondent. The Department does not believe such assurances are 
necessary given the recipient's ongoing and continuous duty to not be 
deliberatively indifferent. The Department believes the existing 
requirements under the final regulations are sufficient to promote 
prevention of recurrence of harassment and restore equal access to 
education. The Department believes the standard it has articulated, 
that a recipient's response to sexual harassment must not be clearly 
unreasonable in light of the known circumstances, sufficiently 
addresses further Title IX concerns for all students following a 
determination of responsibility. In response to concerns about 
retaliation, the Department has added a new section addressing the 
topic, Sec.  106.71.
    The Department is persuaded by the suggestion from commenters that 
the Department require recipients to make a transcript or recording of 
the live hearing. The Department believes that such a transcript is 
necessary to preserve the record for appeal and judicial review. This 
requirement is now contained in Sec.  106.45(b)(6)(i), requiring a 
recipient to make an audiovisual recording, or a transcript, of any 
live hearing, but the Department notes that this recording or 
transcript is not required to be part of the written determination sent 
to the parties. Rather, under Sec.  106.45(b)(6)(i) the parties have 
equal opportunity to inspect and review the recording or transcript of 
a live hearing, but that inspection and review right does not obligate 
the recipient to send the parties a copy of the recording or 
transcript.
    The Department acknowledges the suggestions by commenters that the 
written determination should be prepared by the Department, the 
Department of Justice, or a local or State human rights commissions 
through work-sharing agreements. While the final regulations do not 
preclude a recipient from delegating the recipient's obligation to 
investigate and adjudicate formal complaints of sexual harassment to 
persons or entities not affiliated with the recipient (for example, 
under a regional center model), Title IX governs each recipient's 
obligation to appropriately respond to sexual harassment in the 
recipient's education program or activity, and the recipient remains 
responsible for ensuring that it responds to a formal complaint by 
conducting a grievance process that complies with Sec.  106.45, 
including issuing a written determination.
    Changes: The Department revised this provision to harmonize the 
language with other provisions of the final regulations. Section 
106.45(b)(7) has been revised to reflect changes in Sec.  106.45(b)(8), 
which now makes appeals mandatory. The proposed version of Sec.  
106.45(b)(7)(i) included language reflecting that providing for appeals 
was optional. Section 106.45(b)(7)(ii) uses the phrase ``disciplinary 
sanctions'' instead of ``sanctions.'' We have added Sec.  
106.45(b)(7)(iv) to clarify that the Title IX Coordinator is 
responsible for effective implementation of any remedies. This 
clarification reflects the mirror provision in the Sec.  106.30 
definition of ``supportive measures'' that made the Title IX 
Coordinator responsible for the effective implementation of supportive 
measures. We have also revised Sec.  106.45(b)(7)(ii)(E) to require the 
written determination to state whether remedies will provided to the 
complainant.
Section 106.45(b)(7)(iii) Timing of When the Decision Becomes Final
    Comments: One commenter expressed general support for Sec.  
106.45(b)(7)(iii). A few commenters expressed concerns regarding when 
the determination regarding responsibility becomes final and argued 
that the Department should permit recipients flexibility to impose 
sanctions on respondents upon the initial determination of 
responsibility and before the appeal process is complete. One commenter 
asserted that this approach is a best practice; appeals are meant to be 
limited to correcting rare error, and recipients can offer remote 
learning opportunities to respondents during the appeal period to 
preserve educational access.
    One commenter argued that the proposed requirement that an appeal 
by either party ``stays'' the determination is also problematic because 
practice is not accepted in other elementary and secondary school 
proceedings. The commenter reasoned that a school for example, would 
almost never stay a school's suspension or expulsion order pending an 
appeal and that if a school district determines after a thorough 
investigation that sexual harassment occurred, school officials need to 
implement remedies as soon as possible in addition to continuing any 
interim measures already in place.
    One commenter expressed concern about the possibility that nearly 
all respondents found in violation of a school's code of conduct will 
automatically appeal to OCR to have their findings overturned since 
such an appeal is free and can only help their position. This will 
significantly increase the effort and expenditures of recipients when 
compared with the far less expensive task of responding to an OCR data 
request and addressing any issues through the administrative process.
    One commenter suggested that the Department clarify the meaning of 
``final,'' because if ``final'' means the determination can be the 
basis for disciplinary measures then it could conflict with existing 
State timelines and appeal procedures for disciplinary decisions. One 
commenter expressed concern that making a ``final determination'' at 
the hearing could have the effect of limiting essential time to render 
informed decisions, thus unfairly altering the hearing process for all 
parties.
    One commenter suggested that institutions should not be required to 
disclose the final outcome where doing so might upset the complainant.
    Discussion: The Department appreciates the support for

[[Page 30393]]

Sec.  106.45(b)(7)(iii) regarding the timing of when determinations 
regarding responsibility become final. We acknowledge the concerns 
raised by some commenters regarding the effect that the timing of when 
a decision becomes final may have on recipients' ability to impose 
sanctions on respondents and remedies for complainants. The intent of 
this provision is to promote transparency for, and equal treatment of, 
the parties, and to ensure that the recipient takes action on a 
determination that represents a reliable, accurate outcome. 
Importantly, the final regulations require recipients to offer both 
parties an appeals process to help mitigate risks such as procedural 
irregularity and investigator, decision-maker, or informal resolution 
facilitator bias. In order to ensure that both parties have the 
opportunity to benefit from their right to file an appeal, the written 
determination becomes ``final'' only after the time period to file an 
appeal has expired, or if a party does file an appeal, after the appeal 
decision has been sent to the parties. If the written determination 
became final prior to the outcome of an appeal, the right to have the 
case heard on appeal might be undermined. We also note that the Sec.  
106.44(c) emergency removal provision gives recipients some flexibility 
to remove respondents to protect the physical health or safety of 
students or employees. The Department notes that the final regulations 
also require recipients to designate reasonably prompt time frames for 
concluding appeals and leave recipients discretion over appeal 
procedures; thus, the appeals process would not necessarily have to be 
lengthy.
    The Department disagrees with commenters who argued that the 
proposed requirement that an appeal by either party ``stays'' the 
determination is problematic. The Department acknowledges that the 
``judgment'' in a recipient's determination regarding responsibility is 
more analogous to injunctive relief than monetary damages, and that 
civil court rules (e.g., the Federal Rules of Civil Procedure) do not 
provide for automatic stay of injunctions. However, the process for 
concluding a recipient's appeal (thereby finalizing the determination) 
differs from the process for an appeal in civil court. The recipient's 
appeal process is likely to conclude during a much shorter time period 
than an appeal from a court judgment, and furthermore, the final 
regulations obligate the recipient to offer supportive measures 
throughout the grievance process (unless failing to do so would not be 
clearly unreasonable) thus maintaining a status quo through the 
grievance process that may continue a short time longer while an appeal 
is being resolved. The Department believes that in order for an appeal, 
by either party, to be fully effective, the recipient must wait to act 
on the determination regarding responsibility while maintaining the 
status quo between the parties through supportive measures designed to 
ensure equal access to education. Because a recipient's determination 
regarding responsibility in the nature of injunctive relief, if the 
recipient acts on a determination prior to resolving any appeal against 
that determination, the recipient likely will have taken steps 
requiring the parties to change their positions, in ways that cannot be 
easily reversed if the determination is changed due to the appeal. On 
the other hand, maintaining the status quo a short time while an appeal 
is resolved gives the parties, and the recipient, confidence that the 
determination regarding responsibility acted upon represents a 
factually accurate, reliable outcome.
    The Department disagrees that all respondents will file an 
``appeal'' with OCR, or that the rate at which respondents file 
complaints with OCR challenging the recipient's response to a formal 
complaint of sexual harassment will interfere with victims' abilities 
to receive remedies under a promptly-resolved grievance process. Any 
person, including any complainant or respondent, may file a complaint 
with OCR claiming that a recipient has not complied with the 
recipient's obligations under Title IX. However, filing a complaint 
with OCR does not ``stay'' or reverse the recipient's determination 
regarding responsibility. Moreover, the final regulations include Sec.  
106.44(b)(2) which gives deference to the recipient's determination 
regarding responsibility by assuring recipients that the Department 
will not deem a recipient's determination regarding responsibility to 
be evidence of deliberate indifference by the recipient, or otherwise 
evidence of discrimination under Title IX by the recipient, solely 
because the Assistant Secretary would have reached a different 
determination based on an independent weighing of the evidence. Thus, 
after a party (whether respondent or complainant) has taken advantage 
of the recipient's own appeal process, the Department believes it is 
unlikely that parties will rush to file with OCR, first because the 
recipient's appeal process will address procedural, new evidence, and 
bias or conflict of interest problems that affected the outcome, and 
second because the final regulations clarify for all parties that the 
Department will not reverse an outcome based solely on re-weighing the 
evidence.
    We appreciate the opportunity to address commenters' questions 
regarding the meaning of a ``final'' determination. A ``final'' 
determination means the written determination containing the 
information required in Sec.  106.45(b)(7), as modified by any appeal 
by the parties. With respect to potential conflict with State 
procedures, under the final regulations recipients have substantial 
discretion to designate time frames for concluding the grievance 
process, including appeals, thus lessening the likelihood that a 
recipient must violate a State law with respect to timely conclusion of 
a grievance process. In the event of actual conflict, our position is 
that the final regulations would have preemptive effect.\1490\ Further, 
the Department appreciates the opportunity to clarify here that nothing 
in the final regulations requires final determinations to be made at 
the hearing; the commenter who expressed concern over this possibility 
appears to have misinterpreted the NPRM, as the proposed regulations 
did not provide for that outcome. Rather, the final regulations provide 
that a determination regarding responsibility cannot be reached without 
conducting a live hearing (for postsecondary institutions), or without 
first giving the parties an opportunity to submit written questions to 
parties and witnesses (for elementary and secondary schools, and other 
recipients who are not postsecondary institutions), and Sec.  
106.45(b)(7)(ii) states that the decision-maker ``must issue a written 
determination regarding responsibility'' but does not require that 
written determination to be issued at the hearing. The Department notes 
that the time frame for when the decision-maker should issue the 
written determination will be governed by the recipient's designated, 
reasonably prompt time frames under Sec.  106.45(b)(1)(v).
---------------------------------------------------------------------------

    \1490\ See discussion under the ``Section 106.6(h) Preemptive 
Effect'' subsection of the ``Clarifying Amendments to Existing 
Regulations'' section of this preamble.
---------------------------------------------------------------------------

    The Department wishes to make clear that it is certainly not our 
intent to upset or traumatize complainants by requiring recipients to 
provide a written determination regarding responsibility to both 
complainants and respondents. To promote transparency, equal treatment 
of the parties, and to ensure that both parties' right to appeal may be 
meaningfully exercised, the final

[[Page 30394]]

regulations require the decision-maker to simultaneously send a copy of 
the written determination to both parties. In response to commenters' 
concerns that including details about remedies for complainants in the 
written determination could pose unnecessary privacy, confidentiality, 
or safety problems that could negatively impact complainants, the final 
regulations revise this provision to require that the written 
determination state whether remedies will be provided to a complainant; 
the nature of such remedies can then be discussed separately between 
the complainant and the Title IX Coordinator. The final regulations 
also add Sec.  106.45(b)(7)(iv) to state that the Title IX Coordinator 
is responsible for the effective implementation of remedies.
    Changes: We have revised Sec.  106.45(b)(7)(iii) such that 
responsibility determinations will become final either on the date the 
recipient simultaneously provides the written determination of the 
appeal result to the parties, or the date on which an appeal is no 
longer timely if neither party appeals. We have revised Sec.  
106.45(b)(7)(ii)(E) to state that while the written determination must 
include ``any sanctions the recipient imposes on the respondent,'' the 
written determination must only state ``whether remedies designed to 
restore or preserve equal access to the recipient's education program 
or activity will be provided by the recipient to the complainant.'' 
(Emphasis added.) We also add Sec.  106.45(b)(7)(iv) to state that the 
Title IX Coordinator is responsible for the effective implementation of 
remedies.
[Sec.  106.45(b)(7)(iv) Title IX Coordinator Responsible for Effective 
Implementation of Remedies: Addressed Under Sec.  106.45(b)(7)(iii)]
Transcript Notations
    Comments: Some commenters expressed concern about harms to the 
education, career, well-being, and lives of students whose transcripts 
are marked as responsible for sexual misconduct. Several commenters 
referenced the notation as a ``black mark'' on a student's record and 
asserted that it is overly stigmatizing or punitive, and imposes 
permanent barriers to success in one's education and career. One 
commenter, for example, noted the damage of respondents having to 
disclose such records to apply to graduate school, to receive a 
professional license, or to potential employers, which risks being 
denied admission, disciplined, or suspended from one's professional 
practice, as well as a stain on one's personal relationships and 
reputation. Several commenters emphasized their concerns about such 
transcript notations being imposed without due process protections or 
using a low standard of evidence. Another commenter asserted that the 
records have no predictive value, would not prevent crimes even if 
shared, are often inaccurate or misleading (such as recording both an 
unwanted touch and rape as sexual misconduct), and create a high 
financial burden to clearing one's name through litigation that only 
well-off families can afford. Similarly, another commenter asserted 
that expunging disciplinary records would significantly improve the 
lives of respondents while imposing minimal costs or administrative 
burdens on schools.
    A number of commenters suggested mechanisms be added to the final 
regulations for removing sexual misconduct notations or for expunging 
such records so that the students involved could clear their names and 
reputations. Several commenters suggested expunging records after a 
certain time period, such as after a sanction has been served or after 
a certain number of years. Other commenters suggested limiting 
expungement to less egregious cases, such as in cases: Not involving 
rape; with no criminal charges or findings; or for lower-level, 
noncriminal, or non-violent cases not involving weapons, evidence of 
force, incapacitation, multiple parties, or multiple witnesses. Several 
commenters suggested allowing schools to expunge records of students 
found responsible under withdrawn or disapproved OCR policies, which 
commenters stated could be accomplished if the Department would express 
to recipients that the Department will not penalize a recipient that 
chooses to re-open and reconsider closed cases.
    One commenter suggested deeming a school in violation of Title IX 
for not removing a notation based on flawed prior proceedings or for 
refusing to provide continuing enrollment at an institution if a 
student does not proceed with a Title IX investigation and hearing that 
lacks fundamental safeguards; this commenter asserted that schools have 
used flawed procedures as a result of the Department's withdrawn 2011 
Dear Colleague Letter. Another commenter proposed allowing transcript 
notations only in the most egregious cases and that used a clear and 
convincing evidence standard, allowed cross-examination, and gave the 
accused a chance to help select the trier of fact.
    Some commenters provided other points of view. A few expressed 
concerns that individuals found responsible for sexual misconduct could 
transfer to other educational institutions that have no awareness of 
such misconduct. One such commenter proposed mandating that Title IX 
findings be shared between universities to help them avoid hiring 
sexual harassers. Another commenter, a State's attorney general, urged 
the Department not to restrict schools from being more aggressive in 
addressing sexual harassment, citing their State law requiring 
transcript notations for respondents who are suspended, dismissed, or 
who withdraw while under investigation for sexual assault.
    Discussion: The Department understands the concerns that commenters 
raise about transcript notations, the value of these transcript 
notations, and the impact that these transcript notations may have on a 
respondent's future educational and career opportunities. The 
Department also appreciates the concerns of other commenters that 
individuals found responsible for sexual misconduct could transfer to 
other educational institutions that have no awareness of such 
misconduct. The Department intentionally did not take a position in the 
NPRM on transcript notations or the range of possible sanctions for a 
respondent who is found responsible for sexual harassment. The 
Department does not wish to dictate to recipients the sanctions that 
should be imposed when a respondent is found responsible for sexual 
harassment as each formal complaint of sexual harassment presents 
unique facts and circumstances. As previously stated, the Department 
believes that teachers and local school leaders with unique knowledge 
of the school climate and student body, are best positioned to make 
disciplinary decisions. If a respondent determines that a school is 
discriminating against the respondent based on sex with respect to a 
sanction such as a transcript notation, then a respondent may be able 
to challenge such a discriminatory practice through a recipient's 
procedures under Sec.  106.8(c) or through filing a complaint with OCR.
    We do not wish to deem a school in violation for a school's conduct 
prior to the effective date of these final regulations, including 
conduct such as not removing a notation based on a prior proceeding 
that lacked due process or a school's past refusal to provide 
continuing enrollment at a postsecondary institution if a student does 
not proceed with a Title IX investigation and hearing that lacks

[[Page 30395]]

fundamental safeguards. These final regulations will apply 
prospectively to give recipients adequate notice of the standards that 
apply to them. The Department shares some of the concerns that the 
commenter has about the 2011 Dear Colleague Letter, and the Department 
has withdrawn the 2011 Dear Colleague Letter.\1491\
---------------------------------------------------------------------------

    \1491\ U.S. Dep't. of Education, Office for Civil Rights, Dear 
Colleague Letter (Sept. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.
---------------------------------------------------------------------------

    The Department understands the commenter's concerns that 
respondents who have been found responsible for sexual harassment may 
transfer to another institution or be hired by another institution and 
declines to require that institutions share the result of a Title IX 
investigation or proceeding with other institutions. Requiring such 
disclosure of personally identifiable information from a student's 
education record outside the elementary or secondary school or 
postsecondary institution may require institutions to violate FERPA, 
and its implementing regulations. These final regulations are 
consistent with FERPA, and the Department does not wish to impose any 
requirements that violate FERPA.
    As at least one commenter stated, some States have adopted laws 
concerning transcript notations in the context of sexual harassment, 
and the Department's approach does not present any conflict with these 
State laws. The Department's policy aligns with the holding of the 
Supreme Court in Davis that courts must not second guess recipients' 
disciplinary decisions.\1492\ Where a respondent has been found 
responsible for sexual harassment, any disciplinary sanction decision 
rests within the discretion of the recipient, although the recipient 
must also provide remedies, as appropriate, to the complainant designed 
to restore or preserve the complainant's equal educational 
access.\1493\
---------------------------------------------------------------------------

    \1492\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646 
(1999) (recognizing school officials' ``comprehensive authority'' to 
control student conduct subject to constitutional limitations) 
(internal citation omitted).
    \1493\ Section 106.45(b)(1)(i).
---------------------------------------------------------------------------

    The Department also appreciates the concern that transcript 
notations may be imposed without adequate due process protections or a 
low standard of evidence. In response to these concerns, the Department 
revised Sec.  106.44(a) to provide that an equitable response for a 
respondent means a grievance process that complies with Sec.  106.45 
before the imposition of any disciplinary sanctions or other actions 
that are not supportive measures, as defined in Sec.  106.30. Although 
the Department will not interfere with the recipient's discretion in 
imposing an appropriate sanction, the Department requires that a 
respondent receive a grievance process with the fulsome due process 
protections in Sec.  106.45 before any sanctions are imposed. 
Accordingly, a recipient will be held in violation of these regulations 
for failing to proceed with a Title IX investigation and hearing that 
lacks fundamental safeguards. These final regulations provide that a 
recipient may use either a preponderance of the evidence standard or a 
clear and convincing evidence standard and must apply the same standard 
of evidence for complaints against students as it does for complaints 
against employees, including faculty.\1494\ If a recipient chooses to 
use a preponderance of the evidence standard, then the recipient must 
carefully consider whether the sanction of a transcript notation is 
appropriate under Federal case law. As noted in Sec.  106.6(d)(2), 
nothing in these final regulations deprives a person of any rights that 
would otherwise be protected from government action under the Due 
Process Clauses of the Fifth and Fourteenth Amendments of the U.S. 
Constitution.
---------------------------------------------------------------------------

    \1494\ Section 106.45(b)(1)(vii); Sec.  106.45(b)(7)(i).
---------------------------------------------------------------------------

    The Department also appreciates the comments regarding the 
expungement of records. The Department did not address expungement in 
its proposed regulations and declines to do so here. The concept of 
expungement in the context of an education program or activity appears 
novel. A recipient may choose to have an expungement process that 
removes a sanction or result of a hearing or appeal from a respondent's 
official academic or disciplinary record at the school or institution 
if a respondent is found not responsible after a hearing or an appeal. 
A recipient, however, must retain certain records of a sexual 
harassment investigation for at least seven years under Sec.  
106.45(b)(10), even if the recipient has a process for expungement. As 
explained earlier in this preamble, this seven-year period aligns with 
the record retention period in the Department's regulations,\1495\ 
which is important as the definitions for sexual assault, dating 
violence, domestic violence, and stalking from the regulations 
implementing the Clery Act are part of the definition of sexual 
harassment in Sec.  106.30. The Department will not dictate how 
recipients must treat these records after seven years because 
recipients may have other obligations that require them to preserve the 
records for a longer period of time such as the obligation to preserve 
records for litigation. Recipients, however, may choose to destroy 
records after this seven-year retention period. The Department notes 
that these final regulations, including the seven-year retention 
period, apply prospectively only.
---------------------------------------------------------------------------

    \1495\ 34 CFR 668.24(e)(2)(ii); see Dep't. of Education, Office 
of Postsecondary Education, The Handbook for Campus Safety and 
Security Reporting 9-11 (2016), https://www2.ed.gov/admins/lead/safety/handbook.pdf.
---------------------------------------------------------------------------

    Just as the Department is not dictating when and whether a 
recipient may destroy records after the seven-year retention period, 
the Department will not dictate when and whether recipients may destroy 
records of respondents found responsible for sexual harassment before 
these final regulations become effective. As long as recipients adhere 
to all other Federal retention requirements that the Department 
imposes, the Department will not interfere with a recipient's decision 
to expunge records of responsibility determinations made under prior 
OCR policies, irrespective of whether these policies were rescinded. 
Recipients, however, should be mindful of adhering to any retention 
requirements in State law and in their own policies. Recipients also 
must not treat or categorize records in a manner that results in 
discrimination based on sex under the Department's regulations. In 
other words, a recipient cannot treat people differently on the basis 
of their sex with respect to records pertaining to sexual harassment.
    Changes: The Department revised Sec.  106.44(a) to provide that an 
equitable response for a respondent means a grievance process that 
complies with Sec.  106.45 before the imposition of any disciplinary 
sanctions or other actions that are not supportive measures, as defined 
in Sec.  106.30.

Appeals

Section 106.45(b)(8) Appeals
    Comments: A number of commenters supported equal appeal rights for 
both complainants and respondents because they believe it will bring 
campus procedures in line with the requirements of due process, First 
Amendment free speech rights, established case law, and existing 
legislation. Commenters also argued that equal appeal rights will 
reduce litigation by reducing the abuses of Title IX procedures and 
helping to ensure accuracy. Some commenters argued that the proposed 
regulations promote fairness and push back on misguided efforts to 
micromanage the lives of students. Commenters stated that many 
institutions may not be equipped to decide whether to offer an appeal, 
or

[[Page 30396]]

that institutions may have a conflict of interest, and that the 
proposed regulations balance the complexities of the modern education 
environment. Some commenters shared personal stories about how they 
have benefitted from attending institutions that offered appeal rights 
or, conversely, about how costly it was to overturn a denial of due 
process at institutions that did not offer appeal rights. Some 
commenters supported the NPRM because denying appeal rights to 
complainants would cause further trauma, while offering them the option 
to appeal will provide needed support. Other commenters argued that the 
NPRM promotes fair and impartial procedures that will protect justice 
and civil rights. Commenters supported giving both parties the 
opportunity to submit a written statement supporting or challenging the 
outcome.
    Discussion: The Department appreciates the general support received 
from commenters regarding our approach to offering appeal rights to 
both parties in Title IX proceedings, and the urging of many commenters 
to require recipients to offer appeals. The Department is persuaded by 
commenters that recipient-level appeals should be mandatory and offered 
equally to both parties because this will make it more likely that 
recipients reach sound determinations, giving the parties greater 
confidence in the ultimate outcome. Complainants and respondents have 
different interests in the outcome of a sexual harassment complaint. 
Complainants ``have a right, and are entitled to expect, that they may 
attend [school] without fear of sexual assault or harassment,'' while 
for respondents a ``finding of responsibility for a sexual offense can 
have a lasting impact on a student's personal life, in addition to [the 
student's] educational and employment opportunities[.]'' \1496\ 
Although these interests may differ, each represents high-stakes, 
potentially life-altering consequences deserving of an accurate 
outcome.\1497\ Accordingly, the Department has revised Sec.  
106.45(b)(8) to require recipients to offer both parties equal appeal 
rights on three bases: procedural irregularity, newly discovered 
evidence, and bias or conflict of interest. This provision further 
states that recipients may offer appeals on additional grounds but must 
do so equally for both parties. The revised provision also expressly 
permits both parties to appeal a recipient's dismissal of a formal 
complaint (or allegations therein), whether the dismissal was mandatory 
or discretionary under Sec.  106.45(b)(3). We have also removed the 
limitation that precluded a complainant from appealing the severity of 
sanctions; the final regulations leave to a recipient's discretion 
whether severity or proportionality of sanctions is an appropriate 
basis for appeal, but any such appeal offered by a recipient must be 
offered equally to both parties.
---------------------------------------------------------------------------

    \1496\ Doe v. Univ. of Cincinnati, 872 F.3d 393, 400, 403 (6th 
Cir. 2017).
    \1497\ Id. at 404 (recognizing that the complainant ``deserves a 
reliable, accurate outcome as much as'' the respondent).
---------------------------------------------------------------------------

    Changes: We have revised Sec.  106.45(b)(8) such that recipients 
must offer both parties an appeal from determinations regarding 
responsibility, or from a recipient's dismissal of a formal complaint 
or any allegations contained in a formal complaint. Recipients must 
offer appeals on at least the three following bases: (1) Procedural 
irregularity that affected the outcome; (2) new evidence that was not 
reasonably available when the determination of responsibility was made 
that could affect the outcome; or (3) the Title IX Coordinator, 
investigator, or decision-maker had a general or specific conflict of 
interest or bias against the complainant or respondent that affected 
the outcome. Recipients may offer appeals equally to both parties on 
additional bases. Complainants and respondents have equal appeal rights 
under the final regulations; we have removed the NPRM's limitation on 
complainants' right to appeal sanctions.
    Comments: Some commenters argued that the proposed regulations do 
not reflect the high ideals we should have for education. Other 
commenters expressed concern about the application of Sec.  
106.45(b)(8), arguing that appeals procedures will not be applied 
equally across the country and that appeals should be made mandatory 
instead. Other commenters suggested that appeals should only be granted 
when parties can demonstrate specific rights that were violated by the 
proceedings. Other commenters suggested adding greater due process 
protections, such as barring appeals of any not guilty finding, in 
accordance with the double-jeopardy principle enshrined in the 
Constitution and applied in criminal proceedings. Commenters opposed 
Sec.  106.45(b)(8) because many institutions already offer equal 
appeals to both parties.
    Discussion: The Department is persuaded by commenters who asserted 
that appeal rights should be mandatory for Title IX proceedings. We 
have revised Sec.  106.45(b)(8) to require recipients to offer both 
parties the opportunity to appeal a determination regarding 
responsibility on any of three bases, and equal opportunity to appeal a 
recipient's decision to dismiss a formal complaint or an allegation 
contained in a formal complaint.\1498\ This will help to ensure that 
appeal rights are applied equally by recipients across the country, 
increasing the legitimacy of recipients' determinations regarding 
responsibility and ensuring that recipients have an opportunity to 
self-correct erroneous outcomes. The final regulations clearly specify 
which rights or interests could justify an opportunity to appeal; 
namely, where the outcome was affected by procedural irregularity, 
newly discovered evidence, or conflict of interest or bias in key 
personnel involved with the investigation and adjudication of the case. 
The Department also believes that giving recipients flexibility and 
discretion in crafting their Title IX processes is important, and we 
believe that recipients are in best position to know the unique values 
and interests of their educational communities. For this reason, Sec.  
106.45(b)(8) grants recipients discretion to offer appeals on 
additional grounds, so long as such additional bases for appeal are 
offered equally to both parties.
---------------------------------------------------------------------------

    \1498\ Section 106.45(b)(3)(i) (addressing mandatory 
dismissals); Sec.  106.45(b)(3)(ii) (addressing discretionary 
dismissals).
---------------------------------------------------------------------------

    We respectfully disagree with the commenters who argued that the 
final regulations should prohibit appeals of not responsible 
determinations because of double jeopardy concerns. As discussed above, 
we believe that both respondents and complainants face potentially 
life-altering consequences from the outcomes of Title IX proceedings. 
As such, it is important to protect complainants' right to appeal as 
well as respondents' right to appeal. We believe the final regulations 
adequately protect both parties' interests in a fair, accurate outcome 
by requiring recipients to offer both parties the opportunity to appeal 
on at least three specific bases; requiring that appeal decision-makers 
be different than the Title IX Coordinator, investigator(s), or 
decision-maker(s) that reached the initial determination; requiring 
appeal decision-makers to satisfy the robust anti-bias and training 
requirements of Sec.  106.45(b)(1)(iii); giving both parties a 
meaningful and equal opportunity to submit written statements 
supporting or challenging the outcome; and requiring written 
determinations explaining the appeal result and rationales to be given 
to both parties.
    Changes: None.

[[Page 30397]]

    Comments: Some commenters expressed concern that Sec.  106.45(b)(8) 
was not drafted with the victim in mind. Commenters opposed restricting 
the complainant's right to appeal because equal appeal rights are 
supported by experts, or because the complainant may have new evidence 
and restricting their appeal rights will put the integrity of the 
proceeding at risk. Commenters argued that appeals for only the 
respondent are not needed because false accusations are rare. These 
commenters also believed that approach proposed in the NPRM offers 
unequal appeal rights, which reinforces sex stereotypes, can be a form 
of sex bias, and can signal that sexual harassment is not treated 
seriously.
    Some commenters opposed restricting the complainant's right to 
appeal because the Secretary spoke in favor of equal appeals. Other 
commenters argued that appeals are a guaranteed right for any 
individual who is participating in a federally-funded program and that 
complainants should not be restricted at all in their grounds for 
appeals. Commenters argued that a school's grievance procedure should 
be compared to an administrative process rather than a criminal 
process, and that appeals ensure an additional layer of review that is 
needed when fact-finders may not be sympathetic to claims that access 
to educational opportunities has been impaired. Some commenters 
expressed concern that the proposed appeal procedures would disrupt the 
balance of rights in campus procedures and, by treating sexual 
harassment uniquely, will cause sexual harassment claims to be received 
with skepticism.
    Discussion: The Department has revised many provisions of the final 
regulations with the well-being of victims in mind, including revisions 
to Sec.  106.45(b)(8) that require recipients to offer appeals equally 
to both parties and remove the restriction in the NPRM on complainants' 
ability to appeal a determination based on the severity of the 
sanctions imposed on the respondent. The Department is persuaded by 
many commenters' concerns that the right to appeals should be mandatory 
and equally available to both parties. We have revised Sec.  
106.45(b)(8) to provide equal appeal rights to both parties and include 
robust protections such as anti-bias and training requirements for 
appeal decision-makers, strict separation of the appeal decision-makers 
from the individuals who investigated and adjudicated the underlying 
case to reinforce independence and neutrality, and retain the proposed 
provision's requirements allowing both parties equal opportunity to 
participate in the appeals process through submitting written 
statements, and requiring reasoned written decisions describing the 
appeal results to be provided to both parties. Under the final 
regulations, the appeal rights of complainants and respondents are 
identical. Appeals may be an important mechanism to reduce the 
possibility of unfairness or to correct potential errors made in the 
initial responsibility determination.
    As a general principle, we agree with commenters that one of the 
goals of these regulations should be to preserve recipients' autonomy 
to craft procedures by which they address issues of sexual misconduct. 
However, the Department also believes that the requirements contained 
in the final regulations, including Sec.  106.45(b)(8) on appeals, 
further the twin purposes of the Title IX statute. As the Supreme Court 
has stated, the objectives of Title IX are two-fold: first, to ``avoid 
the use of Federal resources to support discriminatory practices'' and 
second, to ``provide individual citizens effective protection against 
those practices'' \1499\ The Department is persuaded by commenters who 
urged that recipient-level appeals are not only a best practice, but 
should be required equally for both parties, to provide additional, 
effective protections against a recipient reaching an unjust or 
inaccurate outcome in Title IX sexual harassment proceedings.
---------------------------------------------------------------------------

    \1499\ Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).
---------------------------------------------------------------------------

    Changes: None.
    Comments: Some commenters argued that granting the complainant a 
right to appeal will adversely affect the proceedings by empowering 
institutions to be advocates for complainants. Commenters asserted that 
institutions can offer supportive measures to complainants such that 
the benefits to the complainant of being able to appeal a finding of 
non-responsibility are not sufficient to outweigh the respondent's 
interest in not having to face the same accusation more than once. 
Commenters also argued that the Department has not offered enough 
guidance on how institutions can offer complainants appeals while 
preserving the presumption of innocence.
    Discussion: We believe that granting appeal rights to complainants 
will not have the effect of turning recipients into advocates for 
complainants, and granting those same appeal rights to respondents does 
not turn recipients into advocates for respondents, either. The 
Department wishes to emphasize that supportive measures, such as mutual 
no-contact orders or academic course adjustments, remain available to 
help restore or preserve either party's equal access to education and 
that such measures may continue in place throughout an appeal 
process.\1500\ We believe that maintaining a level of equal educational 
access while the recipient takes an additional step (assuming one or 
both parties decide to appeal) contributes to the benefit of requiring 
equal appeal rights, so that recipients may self-correct erroneous 
outcomes, better ensuring that the Sec.  106.45 grievance process as a 
whole leads to reliable determinations regarding responsibility. As a 
result, we have revised Sec.  106.45(b)(8) to require recipients to 
offer both parties equal appeal rights on bases of procedural 
irregularity, newly discovered evidence, or bias or conflict of 
interest; if such grounds exist, a party should be able to appeal and 
ask the recipient to revisit the outcome so that the recipient has the 
opportunity to correct the outcome, whether such an improvement in the 
accuracy of the outcome is for the complainant's benefit or the 
respondent's benefit. The Department notes that under the final 
regulations, whether the parties can appeal based solely on the 
severity of sanctions is left to the recipient's discretion, though if 
the recipient allows appeals on that basis, both parties must have 
equal opportunity to appeal on that basis.
---------------------------------------------------------------------------

    \1500\ We reiterate that as to complainants, revised Sec.  
106.44(a) requires recipients to offer supportive measures to 
complainants, and the definition of supportive measures in Sec.  
106.30 states that supportive measures may be available for either 
party.
---------------------------------------------------------------------------

    The Department does not believe that this approach to appeals 
constitutes double jeopardy unfair to respondents; the Department 
reiterates that the Title IX grievance process differs in purpose and 
procedure from a criminal proceeding, and the Department is not 
persuaded that a fair process under Title IX requires protection 
against ``double jeopardy'' the way that the U.S. Constitution grants 
such protection to criminal defendants. The Department acknowledges 
that respondents face a burden if a complainant appeals a determination 
of non-responsibility, but the Department believes it is important for 
recipients to revisit determinations that were reached via alleged 
procedural irregularity or bias or conflict of interest affecting the 
outcome, or where newly discovered evidence may affect the outcome. The 
Department notes that Sec.  106.45(b)(1)(v) requires recipients to 
conclude the appeal process under designated, reasonably prompt time 
frames, and thus the end result is that

[[Page 30398]]

the recipient's final determination in a Title IX grievance process is 
both accurate and reasonably prompt.
    With respect to commenters' request that the Department offer 
additional guidance on how recipients may offer appeals to complainants 
while also respecting the presumption of non-responsibility contained 
in Sec.  106.45(b)(1)(iv), we believe that nothing about Sec.  
106.45(b)(1)(iv), or the underlying principles justifying the 
presumption of non-responsibility, conflicts with the equal appeal 
rights that Sec.  106.45(b)(8) of the final regulations offers to both 
complainants and respondents. As discussed in the ``Section 
106.45(b)(1)(iv) Presumption of Non-Responsibility'' subsection of the 
``General Requirements for Sec.  Grievance Process'' subsection of the 
``Section 106.45 Recipient's Response to Formal Complaints'' section of 
this preamble, the presumption of non-responsibility is intended to 
ensure that recipients do not treat respondents as responsible prior to 
ultimate resolution of the grievance process. For the reasons discussed 
above, asking recipients to offer appeals where the outcome may have 
been affected by procedural irregularity, bias or conflict of interest, 
or where newly discovered evidence becomes available helps ensure that 
the final determination in each particular case is factually accurate, 
because a proceeding infected by such defects may have resulted in an 
erroneous outcome to the prejudice of the complainant or the 
respondent.
    Changes: None.
    Comments: Some commenters argued that unequal appeal rights will 
have an adverse effect on campus safety. Commenters cited the high 
rates of sexual assault and harassment and expressed fear about 
attending campus if these regulations take effect. Commenters expressed 
concern that victims will experience further trauma and not be able to 
receive an education if recipients cannot punish their attacker.
    Discussion: In response to commenters' concerns that any inequality 
in the appeals provision could undermine the safety and security of 
recipients' educational communities, the Department has revised Sec.  
106.45(b)(8) to require recipients to offer appeals to both 
complainants and respondents on three specified bases, and if a 
recipient chooses to offer appeals on additional bases such appeals 
also must be offered equally to both parties. As discussed above, the 
Department believes that by offering the opportunity to appeal to both 
parties, recipients will be more likely to reach sound determinations, 
giving the parties greater confidence in the ultimate outcome and 
better ensuring that recipients appropriately respond to sexual 
harassment for the benefit of all students and employees in recipients' 
education programs and activities.
    Changes: None.
    Comments: Some commenters argued that the NPRM's appeal provisions 
conflicted with Federal law, including the Campus SAVE Act, because as 
proposed, Sec.  106.45(b)(8) gave unequal appeal rights to the parties. 
Commenters also asserted that the Department mischaracterized case law 
in the NPRM's preamble to purportedly justify imposing unequal appeal 
rights on the parties. Some commenters contended the NPRM's appeal 
provisions conflicted with OCR's past enforcement practices.
    Discussion: In response to well-taken arguments made by commenters, 
the Department is persuaded that the final regulations, unlike the 
NPRM, should require recipients to give equal appeal rights to the 
parties. That is why, as discussed above, the limitation contained in 
the NPRM that complainants could not appeal sanction decisions has been 
removed from the final regulations. We are leaving recipients with the 
discretion to permit both parties to appeal sanctions, provided that 
such an appeal must be offered equally to both parties. We therefore 
decline to address the contention raised by some commenters that the 
approach to appeal rights contained in the NPRM may have conflicted 
with Federal law such as the Campus SAVE Act, or with past Department 
enforcement practices.
    The Department believes that by offering appeals to both 
complainants and respondents on an equal basis, recipients will be more 
likely to reach sound determinations, giving the parties greater 
confidence in the ultimate outcome. Both complainants and respondents 
have significant interests in the outcomes of these proceedings; the 
consequences of a particular determination of responsibility or 
sanction can be life-altering for both parties and thus each 
determination must be factually accurate. The stakes are simply too 
high in the context of sexual misconduct for appeals not to be part of 
the grievance process; as many commenters pointed out, a recipient-
level appeal gives the recipient an opportunity to ensure factual 
accuracy in determinations by permitting either party to bring to the 
recipient's attention improper factors that affected the initial 
determination. The Department is persuaded by commenters who urged the 
Department to recognize that an error or bias affecting the initial 
determination regarding responsibility is as likely to negatively 
affect a complainant as a respondent, and thus the equality of both 
parties' right to appeal is critical to the parties' sense of justice 
and confidence in the outcome. Furthermore, a procedural irregularity 
that affected the outcome, newly discovered evidence that may have 
affected the outcome, or bias or conflict of interest that affected the 
outcome, each represents an error that, if left uncorrected by the 
recipient, indicates that the determination was inaccurate, and thus 
that sexual harassment in the recipient's education program or activity 
has not been identified and appropriately addressed. Appeals enable 
recipients to correct errors in the adjudicative process, and may also 
reduce parties' reliance on OCR or private litigation to challenge the 
outcomes thereby yielding just outcomes more quickly than when a party 
must seek justice in a process outside the recipient's own Title IX 
grievance process. The Department has therefore revised Sec.  
106.45(b)(8) to ensure that both parties have equal right to appeal by 
asking recipients to reconsider determinations (using a different 
decision-maker from any person who served as the Title IX Coordinator, 
investigator, or decision-maker reaching the initial determination) 
where procedural irregularity, newly discovered evidence, or bias or 
conflict of interest affected the outcome.
    The same reasoning applies to a recipient's dismissal of a formal 
complaint, or allegations therein; where a recipient's dismissal is in 
error (for example, the recipient incorrectly decided that the 
underlying alleged incident did not occur in the recipient's education 
program or activity leading to mandatory dismissal for Title IX 
purposes, or the recipient's discretionary dismissal was based on 
incorrect facts), the parties should have the opportunity to challenge 
the recipient's dismissal decision so that the recipient may correct 
the error and avoid inaccurately dismissing a formal complaint that 
needs to be resolved in order to identify and remedy Title IX sexual 
harassment. Thus, we have also revised this provision to expressly 
allow both parties the equal right to appeal a recipient's mandatory or 
discretionary dismissals under Sec.  106.45(b)(3)(i)-(ii).
    Changes: None.
    Comments: Some commenters opposed restricting complainants' rights 
to appeal because of the effect this provision would have on sanctions

[[Page 30399]]

issued during the grievance process. Commenters argued that respondents 
are often given light sanctions and are permitted to remain at the 
institution, adversely impacting complainants' access to education. 
They contended that it is unfair to allow one party to appeal 
sanctions, but not the other party. Commenters asserted that 
complainants should have a say in the sanctions delivered to the 
respondents. Other commenters argued that complainants should be 
allowed to appeal sanctions because they will have a strong interest in 
doing so, while respondents should not be allowed to appeal sanctions 
because they would only do so out of self-interest.
    Discussion: As discussed above, and in response to well-taken 
concerns raised by commenters, the Department has decided to remove the 
limitation contained in the NPRM that would have prevented complainants 
from appealing recipients' sanction decisions. Under Sec.  106.45(b)(8) 
of the final regulations, recipients have the discretion to permit 
parties to appeal sanctions. The Department wishes to clarify that if 
recipients decide to offer appeal rights regarding sanctions, then both 
complainants and respondents must have the same rights to appeal. We 
agree with commenters that it would be unfair and run counter to the 
spirit of Title IX to permit complainants to appeal sanction decisions 
but not permit respondents to appeal sanction decisions, and vice 
versa, and as such if a recipient allows appeals on the basis of 
severity of sanctions that appeal must be offered equally to both 
parties.
    Changes: None.
    Comments: Some commenters argued that the Department should require 
institutions to offer appeals. They argued that mandated appeals will 
ensure uniformity, reduce litigation, and will be necessary due to the 
decreased standard of liability. Other commenters expressed concern 
that offering complainants the right to appeal would violate due 
process. They argued that a false finding of responsibility will result 
in life-altering stigma and harm to respondents and that their interest 
in avoiding double jeopardy is significant. Some commenters suggested 
that if respondents are allowed to appeal, they should only be allowed 
to appeal for blatant errors. Some commenters argued that Sec.  
106.45(b)(8) was not clear that an appeals panel must be different from 
the original panel. Commenters suggested that the Department ensure a 
third-party appeals process to protect the fairness and independence of 
the decisions on appeal.
    Discussion: The Department is persuaded by the concerns raised by 
commenters, and we note that Sec.  106.45(b)(8) of the final 
regulations requires recipients to offer appeals equally to both 
parties. Further, we acknowledge that being found responsible for 
sexual misconduct under Title IX may carry a significant social stigma 
and life-altering consequences that could impact the respondent's 
future educational and economic opportunities. However, we also believe 
that complainants have significant, life-altering interests at stake, 
and that they ``have a right, and are entitled to expect, that they may 
attend [school] without fear of sexual assault or harassment.'' \1501\ 
For these reasons, along with the centrality of appeals as a mechanism 
for addressing potential unfairness or error in an adjudication, the 
Department believes that appeal rights should be offered equally to 
both complainants and respondents in recipients' Title IX proceedings. 
Further, we believe that appeal rights for respondents should not be 
limited to ``blatant errors,'' as suggested by one commenter. Instead, 
the final regulations specify the bases upon which either party can 
appeal, including procedural irregularity or bias or conflict of 
interest in key personnel involved in the adjudicative process that 
affected the outcome, or newly discovered evidence that would affect 
the outcome. Moreover, we recognize the importance of granting 
recipients flexibility and discretion in designing and implementing 
their Title IX systems; the Department believes recipients are in best 
position to know the unique needs and values of their educational 
communities. For this reason, Sec.  106.45(b)(8) permits recipients to 
offer appeals to both parties on additional bases in their discretion.
---------------------------------------------------------------------------

    \1501\ Doe v. Univ. of Cincinnati, 872 F.3d 393, 403 (6th Cir. 
2017).
---------------------------------------------------------------------------

    With respect to ensuring that appeal decision-makers are different 
individuals than investigators, Title IX Coordinators, or decision-
makers who rendered the initial determination regarding responsibility, 
the Department agrees with commenters and therefore, Sec.  
106.45(b)(8)(iii) makes it clear that the appeal decision-maker cannot 
be the same person as the decision-maker below, or as the Title IX 
Coordinator or investigator in the case. This ensures that the 
recipient's appeal decision reviews the underlying case independently. 
The Department also notes that appeal decision-makers must be free from 
bias and conflicts of interest, and be trained to serve impartially, as 
required under Sec.  106.45(b)(1)(iii).
    We respectfully disagree with the commenters who argued that the 
final regulations should prohibit appeals of not responsible 
determinations because of double jeopardy concerns. As discussed above, 
we believe that both respondents and complainants face potentially 
life-altering consequences from the outcomes of Title IX proceedings. 
As such, it is important to protect complainants' right to appeal as 
well as respondents' right to appeal.
    The Department does not believe that a third party independent from 
the recipient would need to handle appeals to ensure impartiality and 
fairness. Rather, the robust anti-bias and training requirements of 
Sec.  106.45(b)(1)(iii) that apply to appeal decision-makers, along 
with the requirement contained in Sec.  106.45(b)(8)(iii) that the 
appeal decision-maker must be a different person than the Title IX 
Coordinator or any investigators or decision-makers that reached the 
initial determination of responsibility, will help to ensure that 
recipients' appeal processes are adequately independent and effective 
in curing possible unfairness or error.
    Changes: None.

Informal Resolution

Section 106.45(b)(9) Informal Resolution
Supporting and Expanding Informal Resolution
    Comments: Some commenters appreciated the option of informal 
resolution in the proposed rules for reasons that echoed one 
commenter's assertions as follows: ``Restrictions on informal 
resolution have had several problematic consequences. Would-be 
complainants often declined to come forward with complaints because 
they were offered only two roads forward: The full formal process 
leading to possibly severe punishment for the respondent, or counseling 
for themselves. These students often said: `I don't want the respondent 
to be punished; I just want them to realize how bad this event was for 
me.' Students fully prepared to confess, apologize, and take their 
sanction were sometimes ground through the formal process for no good 
reason. Additionally, often both parties would have preferred informal 
resolution; a rule that pushed them to adopt an adversarial posture vis 
a vis each other meant that the conflict persisted, and even escalated, 
when it could have been settled.''
    A number of commenters urged the Department to make informal 
resolution

[[Page 30400]]

the default option for addressing sexual misconduct. One commenter 
emphasized that sometimes alleged victims just want to be heard, that 
confidential settlement conferences should be required before any 
formal hearing process, and the final regulations should prohibit any 
settlement mediator from being called as a witness in subsequent 
proceedings. Another commenter argued that where the default option of 
mediation fails, the parties should then turn to the court system. One 
commenter suggested the Department place informal resolution near the 
start of the final regulations to encourage its use. Several commenters 
noted that informal resolution can empower victims and increase 
flexibility to address unique situations; they argued that informal 
resolution increases choice by allowing both parties to choose the 
option that is right for them and that the Department should not 
arbitrarily force them into a formal process. Commenters asserted that 
confidential conversations between the parties can be ideal where there 
is insufficient evidence to warrant investigation, or where there may 
be confusion or misunderstanding as to what exactly happened between 
the parties. One commenter asserted that it is inaccurate to call 
mediation ``forced'' or ``unregulated'' because the NPRM imposes 
important requirements on recipients' use of informal resolution and 
recipients remain free to prohibit it. A few commenters contended that 
informal resolution is more efficient than formal proceedings because 
it is faster and less costly and parties do not need to hire expensive 
attorneys.
    Discussion: The Department appreciates the support from commenters 
regarding informal resolution and agrees that, subject to limitations, 
informal resolution may represent a beneficial outcome for both parties 
superior to forcing the parties to complete a formal investigation and 
adjudication process as the only option once a formal complaint has 
raised allegations of sexual harassment. As discussed below, the 
Department has made several changes to the informal resolution 
provision in the final regulations to better address potential risks 
while retaining the benefits that such an option may hold for parties 
in particular cases.
    As a general matter, informal or alternative dispute resolution 
processes have become increasingly available throughout the American 
legal system, in recognition of a variety of potential benefits (such 
as shortening the time frames governing litigation, greater party 
control over outcomes which may improve parties' sense of justice and 
increase compliance with outcomes, and yielding remedies more 
customized to the needs of unique situations) of alternative dispute 
resolution as a substitute for the adversarial process.\1502\ 
Alternative dispute resolution presents the same potential benefits for 
sexual harassment cases as for other disputes.\1503\
---------------------------------------------------------------------------

    \1502\ E.g., Marjorie A. Silver, The Uses and Abuses of Informal 
Procedures in Federal Civil Rights Enforcement, 55 George Wash. L. 
Rev. 482, 493 (1987) (noting that the legal system has ``witnessed a 
massive movement towards the use of ADR procedures'' to achieve 
fairness and justice while relieving overburdened court systems and 
providing access to resolutions for parties who find litigation 
cost-prohibitive, and noting that ADR gives greater autonomy to 
parties ``by placing control over the dispute in their hands''); 
Developments, The Paths of Civil Litigation: ADR, 113 Harv. L. Rev. 
1851, 1851 (2000) (referring to ADR as a ``virtual revolution'' in 
the legal system); id. at 1852-53 (``In the 1970s, jurists began to 
voice concerns about the rising costs and increasing delays 
associated with litigation, and some envisioned cheaper, faster, 
less formal, and more effective dispute resolution in such 
alternatives as arbitration and mediation. As the use of ADR 
mechanisms grew, proponents viewed them as promising vehicles for an 
array of agendas. . . . In the 1980s, social scientists, game 
theorists, and other scholars showed how ADR mechanisms could 
facilitate settlement by dealing proactively with heuristic biases 
through the strategic imposition of a neutral third party. 
Meanwhile, process-oriented ADR advocates emphasized that problem-
solving approaches would yield remedies better tailored to parties' 
unique needs and that the more direct involvement of disputants 
would encourage greater compliance with outcomes and help rebuild 
ruptured relationships.'') (internal citations omitted).
    \1503\ E.g., Barbara J. Gazeley, Venus, Mars, and the Law: On 
Mediation of Sexual Harassment Cases, 33 Willamette L. Rev. 605 
(1997) (notwithstanding ``a perception'' that sexual harassment, 
rape, and domestic violence cases ``uniformly involve a severe 
imbalance of power, rendering the woman incapable of participating 
effectively in mediation'' many sexual harassment situations benefit 
from mediation where an ``educative approach, which restores both 
parties' dignity, can be much more satisfying to all concerned''); 
Carrie A. Bond, Note, Shattering the Myth: Mediating Sexual 
Harassment Disputes in the Workplace, 65 Fordham L. Rev. 2489 (1997) 
(advocating for greater use of mediation in the context of sexual 
harassment).
---------------------------------------------------------------------------

    We acknowledge the suggestions made by some commenters that the 
Department go further to promote informal resolution as a means of 
addressing sexual misconduct under Title IX, such as by making informal 
resolution a default option or placing the informal resolution 
provisions near the start of the final regulations. As recognized by 
many commenters, the Department believes that informal resolution may 
empower complainants and respondents to address alleged sexual 
misconduct incidents through a process that is most appropriate for 
them, and that it is inaccurate to call informal resolution mechanisms 
such as mediation ``forced'' or ``unregulated.'' Informal resolution 
also enhances recipient and party autonomy and flexibility to address 
unique situations. However, the Department also believes that the more 
formal grievance process under Sec.  106.45 may be an appropriate 
mechanism to address sexual misconduct under Title IX in many 
circumstances because these provisions establish procedural safeguards 
providing a fair process for all parties, where disputed factual 
allegations must be resolved. Furthermore, the existence of a formal 
grievance process provides parties (where a recipient has chosen to 
offer informal resolution processes) with expanded choice in the form 
of alternatives that will best meet the needs of parties involved in a 
particular situation; the Department does not believe that requiring 
informal resolution to be attempted prior to engaging the formal 
grievance process results in the parties having genuine choice and 
control over the process. Because informal resolution, as opposed to 
formal investigation and adjudication, relies on the voluntary 
participation of both parties, the Department declines to require or 
allow informal resolution processes to be a ``default.'' The 
``default'' is that a formal complaint must be investigated and 
adjudicated by the recipient; within the parameters of Sec.  
106.45(b)(9) a recipient may choose to offer the parties an informal 
process that resolves the formal complaint without completing the 
investigation and adjudication, but such a result depends on whether 
the recipient determines that informal resolution may be appropriate 
and whether both parties voluntarily agree to attempt informal 
resolution. To clarify the intent of this provision, we have revised 
Sec.  106.45(b)(9) to state that recipients may not offer informal 
resolution unless a formal complaint has been filed.
    At the same time, the Department is persuaded by some commenters 
who expressed concern that it may be too difficult to ensure that 
mediation or other informal resolution is truly voluntary on the part 
of students who report being sexually harassed by a recipient's 
employee, due to the power differential and potential for undue 
influence or pressure exerted by an employee over a student. For this 
reason, the Department has revised Sec.  106.45(b)(9)(iii) to state 
that recipients cannot offer an informal resolution process to resolve 
formal complaints alleging that an employee sexually harassed a 
student.
    With respect to informal resolution facilitators potentially 
serving as witnesses in subsequent formal

[[Page 30401]]

grievance processes, we leave this possibility open to recipients. If 
recipients were to accept such witnesses, then the Department would 
expect this possibility to be clearly disclosed to the parties as part 
of the Sec.  106.45(b)(9)(i) requirement in the final regulations to 
provide a written notice disclosing any consequences resulting from 
participating in the informal resolution process, including the records 
that will be maintained or could be shared.
    Changes: The Department has made several changes to the informal 
resolution provision that we proposed in the NPRM. Individuals 
facilitating informal resolution must be free from conflicts of 
interest, bias, and trained to serve impartially.\1504\ Informal 
resolution processes must have reasonably prompt time frames.\1505\ The 
initial written notice of allegations sent to both parties must include 
information about any informal resolution processes the recipient has 
chosen to make available.\1506\ In the informal resolution provision 
itself, Sec.  106.45(b)(9), the final regulations now provide that 
recipients are explicitly prohibited from requiring students or 
employees to waive their right to a formal Sec.  106.45 grievance 
process as a condition of enrollment or employment or enjoyment of any 
other right; recipients are explicitly prohibited from requiring the 
parties to participate in an informal resolution process; a recipient 
may not offer informal resolution unless a formal complaint is filed; 
either party has the right to withdraw from informal resolution and 
resume a Sec.  106.45 grievance process at any time before agreeing to 
a resolution; and recipients are categorically prohibited from offering 
or facilitating an informal resolution process to resolve allegations 
that an employee sexually harassed a student.
---------------------------------------------------------------------------

    \1504\ Section 106.45(b)(1)(iii).
    \1505\ Section 106.45(b)(1)(v).
    \1506\ Section 106.45(b)(2)(i).
---------------------------------------------------------------------------

Terminology Clarifications
    Comments: A number of commenters expressed concerns regarding the 
terminology surrounding informal resolution in the NPRM. Commenters 
stated that calling this process ``informal'' can cause recipients to 
underestimate the training, skill, and preparation necessary to 
successfully execute this resolution method, and it might also lead 
recipients to treat sexual misconduct claims with greater skepticism 
than other misconduct. Several commenters argued that mediation is 
inappropriate in sexual misconduct cases because it suggests both 
parties are at fault. Many commenters contended that mediation is 
categorically inappropriate in sexual assault cases, even on a 
voluntary basis, because of the power differential between assailants 
and victims, the potential for re-traumatization by having to face the 
attacker again, the implication that survivors share partial 
responsibility for their own assault, the seriousness of the offense, 
and the inadequate punishment imposed on offenders. Other commenters, 
however, argued that informal resolution of disputed sexual harassment 
allegations often provides both parties with a preferable outcome to 
formal adjudication procedures. Some commenters suggested that the 
Department clearly define what ``informal resolution'' is in the final 
regulations and also explain the relationship and possible overlap 
between informal resolution and the ``supportive measures'' 
contemplated in the NPRM. One commenter asked whether the provisions 
requiring written notice be provided to ``parties'' refers only to 
complainants and respondents, or whether parents and/or legal guardians 
would receive notice instead where the complainant and/or respondent is 
a minor or legally incompetent person.
    Discussion: It is not the intent of the Department in referring to 
resolution processes under Sec.  106.45(b)(9) as ``informal'' to 
suggest that personnel who facilitate such processes need not have 
robust training and independence, or that recipients should take 
allegations of sexual harassment less seriously when reaching a 
resolution through such processes. Indeed, the Department acknowledges 
the concerns raised by some commenters regarding the training and 
independence of individuals who facilitate informal resolutions. In 
response to these well-taken comments, we have extended the anti-
conflict of interest, anti-bias, and training requirements of Sec.  
106.45(b)(1)(iii) to these personnel in the final regulations. The same 
requirements that apply to Title IX Coordinators, investigators, and 
decision-makers now also apply to any individuals who facilitate 
informal resolution processes. Contrary to the claims made by some 
commenters that mediation is categorically inappropriate, the 
Department believes that recipients' good judgment and common sense 
should be important elements of a response to sex discrimination under 
Title IX.
    The Department believes an explicit definition of ``informal 
resolution'' in the final regulations is unnecessary. Informal 
resolution may encompass a broad range of conflict resolution 
strategies, including, but not limited to, arbitration, mediation, or 
restorative justice. Defining this concept may have the unintended 
effect of limiting parties' freedom to choose the resolution option 
that is best for them, and recipient flexibility to craft resolution 
processes that serve the unique educational needs of their communities.
    With respect to the relationship between supportive measures and 
informal resolution, the Department wishes to clarify that supportive 
measures are designed to restore or preserve equal access to the 
recipient's education program or activity without unreasonably 
burdening the other party and without constituting punitive or 
disciplinary actions including by protecting the safety of all parties 
and the recipient's educational environment or deterring sexual 
harassment. Unlike informal resolutions, which may result in 
disciplinary measures designed to punish the respondent, supportive 
measures must be non-disciplinary and non-punitive. Supportive measures 
may include counseling, extensions of deadlines or other course-related 
adjustments, modifications of work or class schedules, campus escort 
services, mutual restrictions on contact between the parties, changes 
in work or housing locations, leaves of absence, increased security and 
monitoring of certain areas of the campus, and other similar measures. 
Informal resolutions may reach agreements between the parties, 
facilitated by the recipient, that include similar measures but that 
also could include disciplinary measures, while providing finality for 
both parties in terms of resolving allegations raised in a formal 
complaint of sexual harassment. Because an informal resolution may 
result in disciplinary or punitive measures agreed to by a respondent, 
we have revised Sec.  106.45(b)(9) to expressly state that a recipient 
may not offer informal resolution unless a formal complaint is filed. 
This ensures that the parties understand the allegations at issue and 
the right to have the allegations resolved through the formal grievance 
process, and the right to voluntarily consent to participate in 
informal resolution.
    Furthermore, the Department wishes to clarify that where the 
complainant or respondent is a minor or legally incompetent person, 
then the party's parent or legal guardian will receive the required 
written notice under Sec.  106.45(b)(9) of the final regulations. The 
final regulations address the rights of parents and guardians in Sec.  
106.6(g), which states that nothing in the final

[[Page 30402]]

regulations may be read in derogation of the legal rights of a parent 
or guardian to act on behalf of an individual.
    Changes: The Department has added Sec.  106.6(g) to acknowledge the 
importance of the legal rights of parents or guardians to act on behalf 
of individuals exercising Title IX rights or involved in Title IX 
proceedings. We have also revised Sec.  106.45(b)(9) to state that no 
recipient may require parties to participate in informal resolution, 
and a recipient may not offer informal resolution unless a formal 
complaint has been filed.
Written Notice Implications
    Comments: One commenter expressed concern that the NPRM requires 
written notice of the allegations provided to both parties before 
informal resolution. At public institutions, written notice constitutes 
a public record; this would frustrate the utility of informal 
resolution as a confidential forum. The commenter argued that the 
Department should either withdraw this requirement or instead extend a 
privilege to records created in informal resolution.
    Discussion: The Department acknowledges the confidentiality 
concerns raised by some commenters regarding informal resolution. 
Section 106.45(b)(9)(i) provides that the written notice given to both 
parties before entering an informal resolution process must indicate 
what records would be maintained or could be shared in that process. 
Importantly, records that could potentially be kept confidential could 
include the written notice itself, which would not become a public 
record. The Department leaves it to the discretion of recipients to 
make these determinations. The Department believes this requirement 
effectively puts both parties on notice as to the confidentiality and 
privacy implications of participating in informal resolution. 
Recipients remain free to exercise their judgment in determining the 
confidentiality parameters of the informal resolution process they 
offer to parties.
    Changes: None.
Voluntary Consent
    Comments: Many commenters argued that the NPRM fails to ensure that 
the parties' consent to informal resolution is truly voluntary. 
Commenters argued that recipients may have perverse reputational and 
monetary incentives to downplay sexual misconduct claims and push 
parties to undergo informal resolution instead of lengthy, costly, 
complex, and public formal proceedings. Commenters noted these perverse 
incentives may be particularly strong where the respondent is a star 
athlete or child of a major donor. Some commenters suggested that the 
Department failed to consider social pressure and power disparities 
between parties, such as between children and teachers,\1507\ and 
victims and domestic abusers,\1508\ and their effect on the ``choice'' 
of informal resolution. Commenters argued that all sexual violence 
situations reflect power dynamics that make mediation or informal 
resolution not truly voluntary and pose a risk of further harm to 
victims.\1509\ A few commenters noted that the prospect of 
retraumatizing cross-examination under the NPRM's grievance procedures 
means many parties have no real choice at all. One commenter asserted 
that the final regulations should require recipients to ensure the 
parties first confer with an advisor or counsel of their choice, and if 
none is available, then one provided by the recipient, so that consent 
to informal resolution is truly voluntary. Another commenter asserted 
that, to avoid recipient biases to promote their own interests, the 
final regulations should specify the circumstances in which recipients 
can recommend informal resolution. Commenters believed that mediation 
improperly shifts the burden of resolution to the parties, instead of 
school professionals. One commenter claimed that informal resolution 
could also violate a respondent's due process rights because recipients 
could impose sanctions without formally investigating the case.
---------------------------------------------------------------------------

    \1507\ Commenters cited: Samantha Craven et al., Sexual grooming 
of children: Review of literature and theoretical considerations, 12 
Journal of Sexual Aggression 3 (2006); Anne-Marie Mcalinden, Setting 
'Em Up': Personal, Familial and Institutional Grooming in the Sexual 
Abuse of Children, 15 Social & Legal Studies 3 (2006).
    \1508\ Commenters cited: Karla Fischer et al., The Culture of 
Battering and the Role of Mediation in Domestic Violence Cases, 46 
S. Methodist Univ. L. Rev. 2117 (1993); Jacquelyn C. Campbell et 
al., Risk Factors for Femicide in Abusive Relationships: Results 
from a Multisite Case Control Study, 93 Am. J. of Pub. Health 1089 
(2003).
    \1509\ Commenters cited: Lois Presser & Cynthia A. Hamilton, The 
Micropolitics of Victim-Offender Mediation, 76 Social Inquiry 316 
(2006); Helen C. Whittle et al., A Comparison of Victim and Offender 
Perspectives of Grooming and Sexual Abuse, 36 Deviant Behavior 7, 
539 (2015); Mary P. Koss & Elise C. Lopez, VAWA After the Party: 
Implementing Proposed Guidelines on Campus Sexual Assault 
Resolution, 18 CUNY L. Rev. 1 (2014); Rajib Chanda, Mediating 
University Sexual Assault Cases, 6 Harv. Negotiation L. Rev. 312 
(2001); Mori Irvine, Mediation: Is it Appropriate for Sexual 
Harassment Grievances, 9 Ohio State J. on Dispute Resolution 1 
(1993).
---------------------------------------------------------------------------

    Discussion: The Department appreciates the concerns expressed by 
many commenters regarding whether parties' consent to informal 
resolution is truly voluntary. To ensure that the parties do not feel 
forced into an informal resolution by a recipient, and to ensure that 
the parties have the ability to make an informed decision, Sec.  
106.45(b)(9) requires recipients to inform the parties in writing of 
the allegations, the requirements of the informal resolution process, 
any consequences resulting from participating in the informal process, 
and to obtain both parties' voluntary and written consent to the 
informal resolution process. The Department acknowledges the concerns 
expressed by these commenters, and the final regulations go a step 
further than the NPRM by explicitly prohibiting recipients from 
requiring the parties to participate in an informal resolution process, 
and expressly forbidding recipients from making participation in 
informal resolution a condition of admission or employment, or 
enjoyment of any other right. We wish to emphasize that consent to 
informal resolution cannot be the product of coercion or undue 
influence because coercion or undue influence would contradict the 
final regulations' prohibitions against a recipient ``requiring'' 
parties to participate in informal resolution, obtaining the parties' 
``voluntary'' consent, and/or conditioning ``enjoyment of any other 
right'' on participation in informal resolution. In addition, and as 
discussed above, the Department believes that by extending the robust 
training and impartiality requirements of Sec.  106.45(b)(1)(iii) to 
individuals who facilitate informal resolutions, the perverse 
incentives and biases that may otherwise taint an informal resolution 
process will be effectively countered. The Department believes these 
requirements have the cumulative effect of ensuring that the parties' 
consent to informal resolution is truly voluntary, and that no party is 
involuntarily denied the right to have sexual harassment allegations 
resolved through the investigation and adjudication process provided 
for by the final regulations. Indeed, we believe the cumulative effect 
of these requirements will help to ensure that parties' consent to 
informal resolution is truly voluntary, and therefore we decline to 
mandate that the parties confer with an advisor before entering an 
informal resolution process, or to mandate that recipients provide the 
parties with advisors before entering an informal resolution process.
    The Department shares commenters' concerns regarding grooming 
behaviors common in situations where an employee sexually harasses a 
student, which may result in any ostensibly

[[Page 30403]]

``voluntary'' choice of the student to engage in informal resolution 
actually being the product of undue influence of the employee. Because 
the option of informal resolution rests on the premise that no party is 
ever required to participate, and where each party voluntarily engages 
in informal resolution only because the party believes such a process 
may further the party's own wishes and desires, we have removed from 
the final regulations the option of informal resolution for any 
allegations that an employee sexually harassed a student. The final 
regulations leave recipients discretion to make informal resolution 
available as an option, or not, with respect to sexual harassment 
allegations other than when the formal complaint alleges that an 
employee sexually harassed a student.
    Subject to the modifications made in these final regulations, 
described above, the Department believes that informal resolution 
empowers the parties by offering alternative conflict resolution 
systems that may serve their unique needs and provides greater 
flexibility to recipients in serving their educational communities. 
Thus, the Department concludes that permitting informal resolution is 
an appropriate policy development subject to the limitations and 
restrictions in the final regulations, notwithstanding the 2001 
Guidance's position on mediation. The 2001 Guidance approved of 
informal resolution for sexual harassment (as opposed to sexual 
assault) ``if the parties agree to do so,'' cautioned that it is 
inappropriate for a school to simply instruct parties to work out the 
problem between themselves, stated that ``mediation will not be 
appropriate even on a voluntary basis'' in cases of alleged sexual 
assault, and stated that the complainant must be notified of the right 
to end the informal process at any time and begin the formal complaint 
process.\1510\ Within the conditions, restrictions, and parameters the 
final regulations place on a recipient's facilitation of informal 
resolution, we believe that the concerns underlying the Department's 
prior position regarding mediation are ameliorated, while providing the 
benefits of informal resolution as an option where that option is 
deemed potentially effective by the recipient and all parties to the 
formal complaint. The Department notes that nothing in Sec.  
106.45(b)(9) requires an informal resolution process to involve the 
parties confronting each other or even being present in the same room; 
mediations are often conducted with the parties in separate rooms and 
the mediator conversing with each party separately. The final 
regulations ensure that only a person free from bias or conflict of 
interest, trained on how to serve impartially, will facilitate an 
informal resolution process. Further, we have revised Sec.  
106.45(b)(9) to expressly allow either party to withdraw from the 
informal resolution process and resume the grievance process with 
respect to the formal complaint. These provisions address the concerns 
about mediation addressed in the 2001 Guidance, without removing 
informal resolution as an option for cases where informal resolution 
may present the parties with a more desirable process and outcome than 
a formal investigation and adjudication.
---------------------------------------------------------------------------

    \1510\ 2001 Guidance at 21 (``Grievance procedures may include 
informal mechanisms for resolving sexual harassment complaints to be 
used if the parties agree to do so. OCR has frequently advised 
schools, however, that it is not appropriate for a student who is 
complaining of harassment to be required to work out the problem 
directly with the individual alleged to be harassing him or her, and 
certainly not without appropriate involvement by the school (e.g., 
participation by a counselor, trained mediator, or, if appropriate, 
a teacher or administrator). In addition, the complainant must be 
notified of the right to end the informal process at any time and 
begin the formal stage of the complaint process. In some cases, such 
as alleged sexual assaults, mediation will not be appropriate even 
on a voluntary basis.'').
---------------------------------------------------------------------------

    We believe concerns about perverse institutional incentives to 
promote informal resolutions will be adequately addressed by the robust 
requirements contained in the final regulations. Many commenters have 
asserted that a recipient's student disciplinary process traditionally 
has an educational rather than punitive purpose and thus object to the 
formal procedures prescribed under the Sec.  106.45 grievance process. 
The Department believes that the option of informal resolution gives 
recipients an avenue for using the disciplinary process to educate and 
change behavior in a way that the adversarial formal grievance process 
might not, in situations where both parties voluntarily agree to 
participate. At the same time, the final regulations ensure that 
recipients cannot require the parties to use informal resolution, the 
parties must give voluntary consent to informal resolution, and the 
recipient cannot condition enrollment, employment, or enjoyment of any 
other right, on participation in informal resolution. Recipients also 
must not intimidate, threaten, or coerce any person for the purpose of 
interfering with a person's rights under Title IX,\1511\ including the 
right to voluntarily decide whether or not to participate in informal 
resolution. These requirements counteract incentives a recipient may 
have to pressure parties to engage in informal resolution.
---------------------------------------------------------------------------

    \1511\ Section 106.71 prohibits retaliation: ``No recipient or 
other person may intimidate, threaten, coerce, or discriminate 
against any individual for the purpose of interfering with any right 
or privilege secured by title IX or this part[.]''
---------------------------------------------------------------------------

    We disagree that mediation improperly shifts the burden of 
resolution to the parties instead of school professionals, and that 
informal resolution could violate a respondent's due process rights. 
Informal resolution under the final regulations is not possible without 
the informed, voluntary consent of all parties, and persons who 
facilitate informal resolution must be well-trained pursuant to Sec.  
106.45(b)(1)(iii). Recipients must explain the parameters and 
processes, consequences, and confidentiality implications of informal 
resolution to the parties. Furthermore, the final regulations respond 
to commenters' concerns by expressly providing that either party can 
withdraw from the informal resolution process at any time prior to 
reaching a final resolution and resume the formal grievance process. A 
benefit of informal resolution may be that parties have a greater sense 
of personal autonomy and control over how particular allegations are 
resolved; however, where that avenue is not desirable to either party, 
for any reason, the party is never required to participate in informal 
resolution.
    Changes: None.
Safety Concerns Based on Confidentiality
    Comments: A few commenters expressed concerns that the confidential 
nature of informal resolution could present safety risks to the 
survivor and broader campus community because informal resolutions such 
as mediation often happen behind closed doors and the broader school 
community and other students may not become aware of the risks posed by 
the perpetrator and so cannot take precautions.\1512\ Further, some 
commenters believed that confidentiality requirements in resolution 
agreements could silence survivors who would otherwise raise awareness 
of the allegations and

[[Page 30404]]

criticize the recipient's handling of the case.
---------------------------------------------------------------------------

    \1512\ Commenters cited: Jennie Kihnley, Unraveling the Ivory 
Fabric: Institutional Obstacles to the Handling of Sexual Harassment 
Complaints, 25 Law & Social Inquiry 69, 84 (2000); Laurie Rudman et 
al., Suffering in Silence: Procedural Justice versus Gender 
Socialization in University Sexual Harassment Grievance Procedures, 
17 Basic & Applied Social Psychol. 4 (1995); Stephanie Riger, Gender 
Dilemmas in Sexual Harassment Policies and Procedures, 46 Am. 
Psychol. 5 (1991); Margaret B Drew, It's Not Complicated: Containing 
Criminal Law's Influence on the Title IX Process, 6 Tenn. J. of 
Race, Gender & Social Justice 2 (2017).
---------------------------------------------------------------------------

    Discussion: The Department appreciates the concerns raised by some 
commenters that the confidential nature of informal resolutions may 
mean that the broader educational community is unaware of the risks 
posed by a perpetrator; however, the final regulations impose robust 
disclosure requirements on recipients to ensure that parties are fully 
aware of the consequences of choosing informal resolution, including 
the records that will be maintained or that could or could not be 
shared, and the possibility of confidentiality requirements as a 
condition of entering a final agreement. We believe as a fundamental 
principle that parties and individual recipients are in the best 
position to determine the conflict resolution process that works for 
them; for example, a recipient may determine that confidentiality 
restrictions promote mutually beneficial resolutions between parties 
and encourage complainants to report,\1513\ or may determine that the 
benefits of keeping informal resolution outcomes confidential are 
outweighed by the need for the educational community to have 
information about the number or type of sexual harassment incidents 
being resolved.\1514\ The recipient's determination about the 
confidentiality of informal resolutions may be influenced by the 
model(s) of informal resolution a recipient chooses to offer; for 
example, a mediation model may result in a mutually agreed upon 
resolution to the situation without the respondent admitting 
responsibility, while a restorative justice model may reach a mutual 
resolution that involves the respondent admitting responsibility. The 
final regulations permit recipients to consider such aspects of 
informal resolution processes and decide to offer, or not offer, such 
processes, but require the recipient to inform the parties of the 
nature and consequences of any such informal resolution processes.
---------------------------------------------------------------------------

    \1513\ Rajib Chanda, Mediating University Sexual Assault Cases, 
6 Harv. Negotiation L. Rev. 265, 280 (2001) (acknowledging the 
argument that the confidentiality of mediation is a negative feature 
but asserting that mediation is still advantageous over litigation 
or arbitration of sexual harassment cases because empirical evidence 
suggests that parties not part of a dispute do not learn from the 
public resolution of the case, and suggesting that the ``vast 
underreporting'' of sexual harassment could be ``possibly due to the 
public and adversarial nature of litigation and arbitration'' such 
that the confidentiality of mediation could encourage more 
reporting).
    \1514\ Id. (acknowledging the argument that the confidentiality 
of mediation means that people other than the parties ``may not even 
know about the existence of the dispute'' and thus ``may discount 
the incidence of sexual harassment, and thus underestimate the 
seriousness of the problem'').
---------------------------------------------------------------------------

    Changes: None.
Consistency With Other Law and Practice
    Comments: A number of commenters asserted that informal resolution 
under the NPRM would trigger conflict with other Federal and State law 
and is inconsistent with best practices. For example, some commenters 
stated that the Department failed to provide a reasoned explanation for 
allowing mediation, given that such a position was rejected by both the 
Bush and Obama Administrations for serious sexual misconduct cases. 
Several commenters suggested that informal resolutions such as 
mediation will chill reporting. Commenters urged the Department to 
preserve the approach to mediation contained in the 2001 Guidance. 
Commenters asserted that the Department of Justice has traditionally 
discouraged use of mediation in sexual and intimate partner violence 
cases and that some Federal programs prohibit grant recipients serving 
victims from engaging clients in mediation related to their abuse; 
commenters argued that all sexual violence cases but especially those 
involving children and domestic abusers, involve power differential 
dynamics that make mediation high-risk for the complainants.\1515\ A 
few commenters argued that the NPRM's conflicts with State law 
regarding mediation could trigger enforcement problems, cause confusion 
for recipients and students, impose additional cost burdens, and prompt 
lengthy litigation. Commenters argued that since 2000, the American Bar 
Association (ABA) has recommended that mediation generally not be used 
in domestic violence cases. And one commenter asserted that the 
Department should not hold schools to lower standards than U.S. 
companies, many of which are withdrawing mandatory mediation, 
arbitration, and other alternative dispute resolution in their employee 
contracts. Some commenters asserted that smaller recipients may not 
have adequate resources and staff to handle mediations and other 
informal resolutions.
---------------------------------------------------------------------------

    \1515\ Commenters cited: Mary P. Koss et al., Campus Sexual 
Misconduct: Restorative Justice Approaches to Enhance Compliance 
with Title IX Guidance, 15 Trauma, Violence & Abuse 3 (2014).
---------------------------------------------------------------------------

    Discussion: The Department acknowledges there may be differences 
between the approach to informal resolution contained in the final 
regulations and other Federal practices relating to informal 
resolution. As discussed above, the Department believes that the 
concerns underlying the position on mediation in the 2001 Guidance are 
adequately addressed by these final regulations, including 
modifications in response to commenters' concerns that allegations 
involving sexual harassment of a student by an employee pose a 
significant risk of ostensibly ``voluntary'' consent to mediation (or 
other informal resolution) being the product of undue pressure by the 
respondent on the complainant, and thus the final regulations preclude 
informal resolution as an option with respect to allegations that an 
employee sexually harassed a student. Because informal resolution is 
only an option, and is never required, under the final regulations, the 
Department does not believe that Sec.  106.45(b)(9) presents conflict 
with other Federal or State laws or practices concerning resolution of 
sexual harassment allegations through mediation or other alternative 
dispute resolution processes.\1516\
---------------------------------------------------------------------------

    \1516\ See discussion under the ``Section 106.6(h) Preemptive 
Effect'' subsection of the ``Clarifying Amendments to Existing 
Regulations'' section of this preamble.
---------------------------------------------------------------------------

    The Department believes that an option of mediation may encourage 
reporting of sexual harassment incidents,\1517\ but reiterates that the 
final regulations do not require any recipient to offer informal 
resolution and preclude a party from being required to participate in 
informal resolution.
---------------------------------------------------------------------------

    \1517\ Rajib Chanda, Mediating University Sexual Assault Cases, 
6 Harv. Negotiation L. Rev. 265, 305 (2001) (a ``mediation option 
for sexual assault victims addresses'' each of the three main 
reasons why sexual assault is underreported--``that victims 
anticipate social stigmatization, perceive a difficulty in 
prosecution, and consider the effect on the offender'' because 
mediation is not adversarial, avoids the need to ``prove'' charges, 
and gives the victim control over the range of penalties on the 
offender, all of which likely ``encourage [victims] to report the 
incident'').
---------------------------------------------------------------------------

    The Department agrees that informal resolution should not be 
mandatory, and the final regulations explicitly prohibit recipients 
from requiring students or employees to waive their right to a Sec.  
106.45 investigation and adjudication of formal complaints as a 
condition of enrollment or continuing enrollment, or employment or 
continuing employment with the recipient. Recipients cannot force 
individuals to undergo informal resolution under the final regulations. 
Furthermore, the Department reiterates that nothing in the final 
regulations requires recipients to offer an informal resolution 
process. Recipients remain free to craft or not craft an informal 
resolution process that serves their unique educational needs; 
therefore,

[[Page 30405]]

smaller recipients that may not have adequate resources or staff to 
handle informal resolution need not offer such processes.
    Changes: None.
Training Requirements
    Comments: Many commenters contended that the final regulations 
should impose training and qualification requirements on mediators, 
facilitators, arbitrators, and other staff involved in informal 
resolution. For example, these commenters wanted the Department to 
impose the same training requirements on personnel involved in formal 
grievance procedures as on personnel handling informal resolution; 
ensure no conflicts of interest; and minimize the risk of inappropriate 
questioning during informal process and possible re-traumatization. One 
commenter suggested that the Department encourage recipients to enter 
into memoranda of understanding (MOUs) with third-party informal 
resolution providers.
    Discussion: The Department appreciates the well-taken concerns 
raised by many commenters that the NPRM did not explicitly require 
informal resolution personnel to be appropriately trained and 
qualified. As a result, as discussed above, we have revised Sec.  
106.45(b)(1)(iii) of the final regulations to require recipients to 
ensure any individuals who facilitate an informal resolution process 
must receive training on the definition of sexual harassment contained 
in Sec.  106.30 and the scope of the recipient's education program or 
activity; how to conduct informal resolution processes; and how to 
serve impartially, including by avoiding prejudgment of the facts at 
issue, conflicts of interest, or bias. As such, the Department believes 
that it is unnecessary to encourage recipients to enter MOUs with third 
party informal resolution providers, though the Department notes that 
the final regulations permit recipients to outsource informal 
resolutions to third party providers.
    Changes: The Department has revised Sec.  106.45(b)(1)(iii) to 
include persons who facilitate an informal resolution process as 
persons who must be free from conflicts of interest and bias and 
receive the same training as that provision requires for Title IX 
Coordinators, investigators, and decision-makers.
Non-Binding Informal Resolution
    Comments: Several commenters asserted that the Department should 
allow mediation but require recipients to allow parties to return to 
formal proceedings if they want to; otherwise respondents might have 
less incentive to mediate in good faith and reach a reasonable outcome. 
If mediation is binding, respondents may have no incentive to mediate 
in good faith and reach a reasonable outcome. A few commenters argued 
that schools must not offer a one-time choice of informal mediation 
versus formal investigation. Survivors need to be able to change their 
minds; their access to education can change over time. One commenter 
asserted that informal resolution should only be binding where all 
parties voluntarily agree on a resolution and the agreement's terms are 
not breached. This commenter suggested that the final regulations 
should include a provision stating that any agreement reached in 
informal resolution or mediation must be signed by all parties, clearly 
specify the terms by which the case is resolved, establish consequences 
for breaching the agreement, detail how the parties can report breach 
of agreement, and define how the breach would be addressed.
    Discussion: The Department acknowledges that the NPRM proposed to 
allow recipients to prohibit parties from leaving the informal 
resolution process and returning to a formal grievance process. As 
noted above, we have amended our approach to this issue such that Sec.  
106.45(b)(9) of the final regulations explicitly permits either party 
to withdraw from an informal resolution at any time before agreeing to 
a resolution and resume the grievance process under Sec.  106.45. The 
Department expects informal resolution agreements to be treated as 
contracts; the parties remain free to negotiate the terms of the 
agreement and, once entered into, it may become binding according to 
its terms. The Department believes the cumulative effect of these 
provisions will help to ensure that informal resolutions such as 
mediation are conducted in good faith and that these processes may 
reach reasonable outcomes satisfactory to both parties. As such, the 
Department believes the alternative approaches offered by some 
commenters, such as requiring a new subsection provision that would 
cover breaches of informal resolution agreements, are unnecessary to 
address such concerns.
    Changes: The Department has revised Sec.  106.45(b)(9) to provide 
that any party may withdraw from informal resolution at any time prior 
to agreeing to a resolution, and resume the formal grievance process.
Survivor-Oriented Protections
    Comments: A few commenters asserted the final regulations should 
include explicit protections for survivors in the informal resolution 
process. For example, the final regulations should prohibit in-person 
questioning during informal process but allow written submissions by 
the parties to avoid re-traumatization. Commenters suggested that the 
final regulations should categorically prohibit schools from requiring 
complainants to resolve the problem alone with the respondent. Some 
commenters stated that if mediation is an option, survivors should 
determine the format, such as having someone sit in on their behalf or 
requiring the parties to be in separate rooms. Otherwise, the process 
could become irresponsible and cause more harm than good. A few 
commenters asserted that the final regulations should require 
recipients to evaluate all potential risks before proposing informal 
resolution. One commenter suggested that Sec.  106.44(c) regarding 
safety and risk analysis for emergency removals could be a model for 
informal resolutions, such that recipients should thoroughly 
investigate the situation and parties' relationship to ensure informal 
resolution is appropriate.
    Discussion: The Department appreciates the suggestions offered by 
some commenters to include explicit survivor-oriented protections in 
the informal resolution provisions in Sec.  106.45(b)(9) of the final 
regulations. The Department declines to make these changes because the 
changes would restrict recipients' flexibility and discretion in 
satisfying their Title IX obligations and meeting the needs of the 
members of their educational community. The Department believes that 
the parties are in the best position to make the right decision for 
themselves when choosing informal resolution, and that choice will be 
limited in scope based on what informal processes a recipient has 
deemed appropriate and has chosen to make available. As such, we 
believe that to require a safety and risk analysis before recipients 
may offer informal resolutions would be unnecessary, though nothing in 
the final regulations precludes a recipient from following such a 
practice. Similarly, nothing in Sec.  106.45(b)(9) precludes a 
recipient from categorically refusing to offer and facilitate an 
informal process that involves the parties directly interacting, from 
prohibiting a facilitator from directly questioning parties, or from 
requiring the parties to be in separate rooms.

[[Page 30406]]

    Changes: None.
Restorative Justice
    Comments: Many commenters opposed mediation but supported expanding 
access to, and Department funding of, restorative justice. These 
commenters raised the point that restorative justice requires the 
perpetrator to admit wrongdoing from the beginning and work to redress 
the harm caused, whereas mediation requires no admission of guilt, 
implicitly rests on the premise both parties are partially at fault for 
the situation and must meet in the middle, and often entails debate 
over the facts. Commenters cited studies suggesting restorative justice 
has resulted in reduced recidivism for offenders and better outcomes 
for survivors.\1518\ One commenter stated that many recipients 
currently implement restorative justice, but only where the respondent 
is willing to accept responsibility, and stated that the process does 
not require face-to-face meeting between the parties, and the most 
severe misconduct is not eligible. One commenter was concerned that 
because Sec.  106.45(b)(9) suggests informal processes can only be 
facilitated prior to reaching a determination regarding responsibility 
this can complicate or end up precluding restorative justice, because 
restorative justice requires admission of responsibility before 
participation.
---------------------------------------------------------------------------

    \1518\ Commenters cited: Clare McGlynn et al., ``I just wanted 
him to hear me'': Sexual violence and the possibilities of 
restorative justice, 39 Journal of L. & Society 2 (2012); Katherine 
Mangan, Why More Colleges Are Trying Restorative Justice in Sex-
Assault Cases, Chronicle of Higher Education (Sept. 17, 2018); Kerry 
Cardoza, Students Push for Restorative Approaches to Campus Sexual 
Assault, Truthout (Jun. 30, 2018); Howard Zehr, The Little Book of 
Restorative Justice (Good Books 2002); David R. Karp et al., Campus 
Prism: A Report On Promoting Restorative Initiatives For Sexual 
Misconduct On College Campuses, Skidmore College Project on 
Restorative Justice (2016); Margo Kaplan, Restorative Justice and 
Campus Sexual Misconduct, 89 emp. L. Rev. 701, 715 (2017).
---------------------------------------------------------------------------

    Discussion: The Department appreciates commenters' support for 
restorative justice as a viable method of informal resolution, 
commenters' concerns regarding mediation, and the common differences 
between the two resolution processes.\1519\ One of the underlying 
purposes of Sec.  106.45(b)(9) is to recognize the importance of 
recipient autonomy and the freedom of parties to choose a resolution 
mechanism that best suits their needs. As such, nothing in Sec.  
106.45(b)(9) prohibits recipients from using restorative justice as an 
informal resolution process to address sexual misconduct incidents.
---------------------------------------------------------------------------

    \1519\ Mediation does not bar imposition of disciplinary 
sanctions. E.g., Rajib Chanda, Mediating University Sexual Assault 
Cases, 6 Harv. Negotiation L. Rev. 265, 301 (2001) (defining 
mediation as ``a process through which two or more disputing parties 
negotiate a voluntary settlement with the help of a `third party' 
(the mediator) who typically has no stake in the outcome'' and 
stressing that this ``does not impose a `win-win' requirement, nor 
does it bar penalties. A party can `lose' or be penalized; mediation 
only requires that the loss or penalty is agreed to by both 
parties--in a sexual assault case, `agreements . . . may include 
reconciliation, restitution for the victim, rehabilitation for 
whoever needs it, and the acceptance of responsibility by the 
offender.''') (internal citations omitted).
---------------------------------------------------------------------------

    With respect to the implications of restorative justice and the 
recipient reaching a determination regarding responsibility, the 
Department acknowledges that generally a critical feature of 
restorative justice is that the respondent admits responsibility at the 
start of the process. However, this admission of responsibility does 
not necessarily mean the recipient has also reached that determination, 
and participation in restorative justice as a type of informal 
resolution must be a voluntary decision on the part of the respondent. 
Therefore, the language limiting the availability of an informal 
resolution process only to a time period before there is a 
determination of responsibility does not prevent a recipient from using 
the process of restorative justice under Sec.  106.45(b)(9), and a 
recipient has discretion under this provision to specify the 
circumstances under which a respondent's admission of responsibility 
while participating in a restorative justice model would, or would not, 
be used in an adjudication if either party withdraws from the informal 
process and resumes the formal grievance process. Similarly, a 
recipient could use a restorative justice model after a determination 
of responsibility finds a respondent responsible; nothing in the final 
regulations dictates the form of disciplinary sanction a recipient may 
or must impose on a respondent.
    Changes: None.
Avoiding Formal Process
    Comments: One commenter expressed concern that recipients could 
simply offer informal resolution and only informal resolution to get 
around the NPRM's formal process requirements. To address this, the 
commenter argued the final regulations should clearly state that 
recipients must implement a formal resolution process regardless of 
their choice to facilitate an informal resolution process.
    Discussion: The Department acknowledges the concern that under the 
NPRM it may have appeared that recipients could avoid formal grievance 
procedures altogether by solely offering informal resolution. To 
address this concern, we have revised Sec.  106.45(b)(9) to preclude 
recipients from requiring students or employees to waive their rights 
to a Sec.  106.45 grievance process as a condition of enrollment or 
employment, or enjoyment of any other right, include a statement that a 
recipient may never require participation in informal resolution, and 
clarify that a recipient may not offer informal resolution unless a 
formal complaint is filed. As such, recipients must establish a 
grievance process that complies with Sec.  106.45 to ensure that 
parties' Title IX rights are realized, and the parties may participate 
in informal resolution only after a formal complaint has been filed, 
ensuring that the parties are therefore aware of the allegations at 
issue and the formal procedures for investigation and adjudication that 
will apply absent an informal resolution process.
    Changes: The Department has revised Sec.  106.45(b)(9) to preclude 
a recipient from requiring any party to waive the right to a formal 
grievance process as a condition of enrollment, employment, or 
enjoyment of any other right, that a recipient may never require 
participation in informal resolution, and that a recipient may not 
offer informal resolution unless a formal complaint is filed.
Electronic Disclosures
    Comments: One commenter asserted that the Department should allow 
electronic disclosures and signatures to obtain parties' consent to 
informal resolution to enhance privacy and security of sensitive 
documents, and because written notice requirements are costly and 
unnecessary in 2019.
    Discussion: The final regulations do not specify the method of 
delivery for written notices and disclosures required under the final 
regulations, including the method by which the recipient must obtain 
parties' voluntary written consent to informal resolution. The 
Department acknowledges the potential convenience, privacy, and 
security benefits of shifting from physical disclosures and signatures 
to electronic disclosures and signatures but leaves recipients with 
discretion as to the method of delivery of written notices under Sec.  
106.45(b)(9).
    Changes: None.
Expulsion Through Informal Resolution
    Comments: One commenter argued that expulsion is an inappropriate 
sanction for informal resolution, and the Department should prohibit 
schools from expelling students through

[[Page 30407]]

informal resolution to ensure a fair process for all.
    Discussion: The Department believes that the robust disclosure 
requirements of Sec.  106.45(b)(9), the requirement that both parties 
provide voluntary written consent to informal resolution, and the 
explicit right of either party to withdraw from the informal resolution 
process at any time prior to agreeing to the resolution (which may or 
may not include expulsion of the respondent), will adequately protect 
the respondent's interest in a fair process before the sanction of 
expulsion is imposed. Accordingly, the Department believes that 
prohibiting recipients from using informal resolution where it results 
in expulsion is unnecessary; if expulsion is the sanction proposed as 
part of an informal resolution process, that result can only occur if 
both parties agree to the resolution. If a respondent, for example, 
does not believe that expulsion is appropriate then the respondent can 
withdraw from the informal resolution process and resume the formal 
grievance process under which the recipient must complete a fair 
investigation and adjudication, render a determination regarding 
responsibility, and only then decide on any disciplinary sanction.
    Changes: None.
Clarification Requests
    Comments: Several commenters raised questions regarding the 
informal resolution provisions of the NPRM. One commenter inquired as 
to whether a time frame could apply after which neither party could ask 
for an ongoing informal resolution process to be set aside and proceed 
with formal investigation and adjudication. One commenter raised 
concerns regarding recipients' legal liability if the informal 
resolution process included a respondent's acknowledgement of a policy 
violation, but the respondent was allowed to remain on campus and 
violated that same policy again. One commenter sought clarification as 
to whether informal resolution could include a respondent taking 
responsibility and accepting disciplinary action without any meeting or 
process at all. One commenter raised questions as to what happens to 
ongoing informal resolution process where more complaints are brought 
against the same respondent. One commenter asked whether parties can 
proceed with informal resolution even where the recipient believes it 
is inappropriate to resolve the case. One commenter inquired whether 
the NPRM's informal resolution provisions only apply where a formal 
complaint was filed against the respondent. And one commenter sought 
clarification as to whether schools remain free to prohibit informal 
resolutions under the NPRM.
    Discussion: The Department appreciates the questions raised by 
commenters regarding Sec.  106.45(b)(9). The final regulations clarify 
that either party can withdraw from the informal resolution process and 
resume the formal grievance process at any time prior to agreeing to a 
resolution. The Department appreciates the opportunity to clarify here 
that informal resolution compliant with Sec.  106.45(b)(9) is a method 
of resolving allegations in a formal complaint of sexual harassment. 
Because a recipient must investigate and adjudicate allegations in a 
formal complaint, informal resolution stands as a potential alternative 
to completing the investigation and adjudication that the final 
regulations otherwise require. Under the final regulations, a recipient 
may not offer informal resolution unless a formal complaint has been 
filed.
    With respect to recipients' potential legal liability where the 
respondent acknowledges commission of Title IX sexual harassment (or 
other violation of recipient's policy) during an informal resolution 
process, yet the agreement reached allows the respondent to remain on 
campus and the respondent commits Title IX sexual harassment (or 
violates the recipient's policy) again, the Department believes that 
recipients should have the flexibility and discretion to determine 
under what circumstances respondents should be suspended or expelled 
from campus as a disciplinary sanction, whether that follows from an 
informal resolution or after a determination of responsibility under 
the formal grievance process. Recipients may take into account legal 
obligations unrelated to Title IX, and relevant Title IX case law under 
which Federal courts have considered a recipient's duty not to be 
deliberately indifferent by exposing potential victims to repeat 
misconduct of a respondent, when considering what sanctions to impose 
against a particular respondent. The Department declines to adopt a 
rule that would mandate suspension or expulsion as the only appropriate 
sanction following a determination of responsibility against a 
respondent; recipients deserve flexibility to design sanctions that 
best reflect the needs and values of the recipient's educational 
mission and community, and that most appropriately address the unique 
circumstances of each case. While Federal courts have found recipients 
to be deliberately indifferent where the recipient failed to take 
measures to avoid subjecting students to discrimination in light of 
known circumstances that included a respondent's prior sexual 
misconduct,\1520\ courts have also emphasized that the deliberate 
indifference standard is not intended to imply that a school must 
suspend or expel every respondent found responsible for sexual 
harassment.\1521\
---------------------------------------------------------------------------

    \1520\ E.g., Williams v. Bd. of Regents of Univ. Sys. of Ga., 
477 F.3d 1282, 1296-97 (11th Cir. 2007).
    \1521\ E.g., id. at 1297 (suspending or expelling offenders 
would have been one measure the university could have taken to avoid 
subjecting the plaintiff to discrimination in the form of further 
sexual misconduct perpetrated by the offenders, but other measures 
could also have been pursued by the university, such as removal of 
the offenders from their housing, or implementing a more protective 
sexual harassment policy to address future incidents); Davis v. 
Monroe Cnty. Bd. of Educ., 546 U.S. 629, 648 (1999) (``We thus 
disagree with respondents' contention that, if Title IX provides a 
cause of action for student-on-student harassment, `nothing short of 
expulsion of every student accused of misconduct involving sexual 
overtones would protect school systems from liability or damages.' 
See Brief for Respondents 16; see also [Davis v. Monroe Cnty. Bd. of 
Educ.,] 120 F.3d [1390 (11th Cir. 1997)] at 1402 (Tjoflat, J.) ('[A] 
school must immediately suspend or expel a student accused of sexual 
harassment'). Likewise, the dissent erroneously imagines that 
victims of peer harassment now have a Title IX right to make 
particular remedial demands. See post, at 34 (contemplating that 
victim could demand new desk assignment). In fact, as we have 
previously noted, courts should refrain from second guessing the 
disciplinary decisions made by school administrators.'').
---------------------------------------------------------------------------

    The Department reiterates that the final regulations do not require 
recipients to establish an informal resolution process. As such, if 
recipients believe it is inappropriate, undesirable, or infeasible to 
use informal resolution to address sexual harassment under Title IX, 
then recipients may instead offer only the Sec.  106.45 grievance 
process involving investigation and adjudication of formal complaints.
    Changes: We have revised Sec.  106.45(b)(9) to state that 
recipients may not offer informal resolution unless a formal complaint 
has been filed.

Recordkeeping

Section 106.45(b)(10) Recordkeeping and Directed Question 8
    Comments: Many commenters expressed general support for the 
recordkeeping requirements in Sec.  106.45(b)(10). Some commenters 
expressed that this provision would improve the overall transparency 
and integrity of the Title IX grievance process, discourage colleges 
and universities from utilizing training materials that employ sex 
stereotypes, and encourage recipients to adopt a high standard of 
training that provides investigators with proper trauma training. Many 
commenters, however,

[[Page 30408]]

opposed any recordkeeping requirement, arguing that these requirements 
are not victim-centered or trauma-informed, that it is burdensome, time 
consuming, and will greatly slow the investigation process.
    Some commenters stated that several institutions of higher 
educations' retention policies dictate keeping records for even longer 
periods of time than the three years suggested in the NPRM, and that 
lengthening the retention period in this provision would facilitate the 
parties' abilities to prepare cases and appeals.
    Many commenters opposed the recordkeeping requirement. The 
commenters stated that a three-year time period fails to take into 
account that State law may require a longer period of retention, or 
that three years often does not cover a student's educational tenure at 
an institution. They also argued that this closely resembles 
requirements in the criminal justice system, which will reduce the 
likelihood of an erroneous finding of guilt. Many of the commenters 
opposed the three-year period of retention of records as being too 
short. Because most students take more than three years to graduate 
from an institution of higher education, a student's record could be 
erased prior to their graduation. This could limit a recipient's 
ability to fully address sporadic but repeated sex discrimination that 
fails to garner the notice of recipients and is lost forever in records 
discarded from three years prior. Also, such circumstances could 
trigger the Title IX Coordinator's duty to file a formal complaint 
under proposed Sec.  106.44(b)(2). As the average graduation rate at an 
institution of higher education is six years, there may be times in 
which a respondent had a prior allegation in year one, and another 
allegation in year five. Commenters also asked whether the Title IX 
Coordinator is required to bring forward a complaint, and if so, what 
records would be used if this three-year period had passed?
    Commenters asserted that freshmen college students are more likely 
to be involved in a sexual harassment proceeding than upperclassmen and 
thus by allowing schools to destroy these records before such a 
freshman student graduates, the recipient and the larger community 
might be prevented from learning from the earlier incident if the 
respondent reoffends.
    Commenters argued that for students attending schools where they 
could be present for more than three years, such as a K-8 school, 
students could outlast the record of their harassment or assault, even 
within a single institution. Commenters argued that it makes little 
sense for a student sexually harassed in the third grade to enter the 
seventh grade, at the same institution, without a record of those past 
experiences; for example, the perpetrator might be placed in a 
survivor's class and the relevant teachers might not understand how to 
implement appropriate supportive measures. Commenters asserted that for 
elementary and secondary school students, these records are important 
when students transfer between schools or school districts, and that a 
funding recipient must know when a new student at their school has been 
sexually assaulted or harassed in the past in order to provide 
appropriate services.
    Other commenters opposed the three-year retention period on the 
grounds that it would impair the legal rights of minor children, and is 
inconsistent with State statutes of limitations, if evidence 
surrounding the student's harassment and their schools' response was 
unavailable because it was older than three years. Commenters stated 
that many States allow for minors to file civil suits only once they 
reach the age of majority, and that Federal and State laws consistently 
toll relevant statute of limitations periods until minors reach the age 
of majority and have the ability to vindicate their own rights, 
recognizing that they should not be punished for the failure of a 
guardian to file a claim on their behalf.
    Several commenters stated that, in the case of employee-on-student 
harassment and ``sexually predatory educators,'' this would allow 
employee records to be periodically cleansed of evidence of wrongdoing 
relatively quickly (three years), thereby putting future students at 
risk.
    Other commenters stated that the three-year retention period is so 
short that it would limit complainants' ability to succeed in a Title 
IX lawsuit or OCR complaint because it would allow recipients to 
destroy relevant records before a party has had the opportunity to file 
a complaint or complete discovery, and therefore escape liability. 
Commenters recommended the provision be modified to state: ``If 
litigation is pursued before the expiration of the three-year period, 
records should be kept until the final action is completed.'' 
Commenters argued that the Title IX statute does not contain a statute 
of limitations, so courts generally apply the statute of limitation of 
the most analogous State laws regarding retention periods or statutes, 
e.g., a State's civil rights statute or personal injury statute which 
varies from one to six years.
    Many commenters found the three-year retention period confusing and 
argued that the Department provided no rationale for it. Commenters 
stated the retention period would conflict with State requirements, or 
other disciplinary actions (e.g., long-term suspension) that require 
longer document retention (e.g., in Washington State, districts must 
retain records related to discrimination complaints for six years.)
    Several commenters, in asserting that the three-year retention 
period is too short, proposed alternate retention periods. One 
commenter stated, in order to avoid conflict with State requirements, 
the Department should modify Sec.  106.45(b)(10) to read: ``maintain 
for a minimum of three years or as required by State statute . . .'' or 
``seven years, or 3 years after all parties graduate, whichever is 
sooner,'' or keeping records until one year after a student graduates. 
Some commenters stated the retention period should not be tied to the 
Clery Act's limitation period for reporting specific campus crimes in 
an annual security report. (Clery Act, 20 U.S.C. 1092(f); 34 CFR 
668.46(c)(1) (requiring schools to annually report all crimes which 
occurred in the prior three calendar years by the end of the following 
year). Other commenters suggested the period be six years, or modified 
to state ``files should be retained for the time the student is 
involved on campus and extended for a reasonable time period that 
considers the student may enroll for a graduate degree.''
    Many commenters proposed that records be kept for a minimum of 
seven years, instead of three, in keeping with best practices for 
student record-keeping as well as general accounting practices. Some 
commenters stated medical and tax records are required to be kept for 
seven years, so records of sexual abuse should be kept for the same 
amount of time, if not more. Furthermore, the commenters stated a 
three-year period would hinder the Department's efforts to ensure 
compliance, especially if a continuing violation is alleged or class-
wide discrimination is occurring over multiple years, and conflict with 
the Clery records retention requirement of seven years. Rather, 
commenters asserted, this section should mirror the Clery Act retention 
effective time period requirement of seven years to avoid confusion and 
the potential for documents to be misfiled and destroyed. Commenters 
recommended this provision be modified to state: ``All records must be 
kept for at least three years following the generation of the last 
record associated with the report or complaint.'' Or: ``. . . and 
maintain for

[[Page 30409]]

a period of three years from the date the disciplinary proceedings, 
including any appeals, is completed.'' Commenters also requested to 
extend the time period by stating: ``. . . or in the presence of an 
active investigation by OCR or other court system, until the 
investigation and determination is completed.'' Commenters noted that 
in the past, OCR complaints involving campus sexual assault have taken 
an average of more than four years to resolve.
    Many commenters recommended that the retention period be linked to 
the parties' attendance in the recipient's program or activity. For 
example, commenters referenced the FERPA statute in recommending that 
the standard time period for retention be five to seven years after 
graduation or separation from an institution. Other commenters 
recommended the retention period be changed to three years or the point 
at which any parties are no longer in attendance at the institution, 
whichever comes later. Commenters stated that three-year retention 
period should be limited to student-complainants or student-respondents 
because if one or both parties are staff or faculty, their association 
with the recipient may extend for many years. Commenters recommended 
that Sec.  106.45(b)(10) require the recipient to create, gather, and 
maintain the records for the duration of the students' time in school 
and then five years after the last student involved has graduated, and 
to define all important terms in a way that prevents loopholes and 
misconduct.
    Other commenters recommended that recipients be allowed to 
determine the appropriate amount of time to retain records, in keeping 
with their own policies. Commenters requested that this requirement be 
made permissive for elementary and secondary school recipients--that 
such recipients ``may'' create records--and may only retain them for 
one year, stating that some primary or secondary schools are not 
required to maintain these kinds of records, and may not retain them in 
excess of one year.
    Some commenters recommended that records be maintained for a 
minimum of ten years, arguing that, if not, the proposed rules would 
decrease the volume of relevant records, and in turn burden the Federal 
government because Federal background clearance investigations would 
become unreliable; agencies would inevitably make a favorable national 
security clearance or employment suitability determination without 
being aware of a candidate's past proven sexual assault if it occurred 
more than three years prior.
    Some commenters stated that records should be kept based on the 
criminal justice systems' statutes of limitations, if not longer, to 
ensure consistency between institutional standards and State standards 
and ensuring parties can appropriately represent themselves. The three-
year requirement could undermine criminal prosecutions related to the 
incidents at issue because it would permit recipients to discard vital 
records that could help the criminal prosecution of sexual assault or 
rape before the statute of limitations for such crimes has run, thereby 
potentially letting the perpetrators go free. For example, commenters 
contended, an elementary and secondary school could have ceased 
maintaining records of a sexual assault investigation before the 
student reaches the age of 18 and has the ability to vindicate their 
own rights. Other commenters argued that, if the underlying offense can 
still be prosecuted ten years after it occurred, then the recipient has 
a duty to retain those records for an equal length of time, especially 
if any aspect of the school's investigation had to be put on hold for 
``good cause,'' e.g., until police and the court system have wrapped up 
their investigations.
    Some commenters asserted that records should be kept at least as 
long as the educational program at which the events took place exists, 
if not indefinitely. Otherwise, they argue, it would allow the records 
of employees, who may have a longer tenure at an institution, to be 
periodically cleansed of any evidence of wrongdoing. Most students 
attend the same institution for four or more years during their 
elementary school, middle school, high school, college, and graduate 
school experiences. Commenters argued that an indefinite timeline is 
critical to ensure that complainants have ongoing access to their files 
and evidence to allow them flexibility to pursue the Title IX or 
criminal law process when it is safe and appropriate for them. Some 
commenters argued that if a complainant chooses to access the legal 
system simultaneously or independently from the institution, their 
evidence should be accessible to them at any point in time. If someone 
were to make a report within their first year of enrollment, and waited 
longer than the proposed three years to go through with a formal 
investigation or hearing, the complainant would not have access to the 
information shared when they had a fresher memory of the incident. 
Commenters stated that complainants may not come forward immediately 
for various reasons, including trauma, youth, coping mechanisms, lapses 
in memory, fear of re-assault, escalation, or retaliation.
    Commenters asserted that three years is too short a time period to 
allow OCR to conduct a thorough investigation of the prevalence of 
sexual harassment in a recipient's programs or activities and that it 
would also not allow recipients to monitor campus climate, identify 
trends in sexual misconduct that need to be addressed on a community 
level, or flag sexual predators. Commenters argued that problematic 
sexual behavior tends to develop and escalate over time, and that if 
school systems keep track of developing behavior patterns, they can 
both prevent future violations and ensure that the individual with the 
problematic behavior pattern receive educational intervention to 
prevent the individual from forfeiting the individual's education by 
committing, for example, criminal offenses. Recipients, commenters 
stated, could maintain records indefinitely in a digital cloud account.
    Several commenters requested further clarification as to what types 
of records a recipient should keep. Commenters asked whether the 
recipient should keep transcripts of hearings or merely a list of steps 
taken. Other commenters asked when the clock begins to calculate the 
time at which recipients may destroy records: Does the time toll from 
the date of the incident or the date the incident is reported? Or does 
the clock begin at the conclusion of the complaint?
    Several commenters stated that the requirement about access to 
records seemed to contradict the provision that requires supportive 
measures to be kept confidential. Commenters argued that this provision 
will erode any confidentiality in the Title IX office and create 
institutional liability. Commenters also queried whether the 
recordkeeping provision encompasses an investigation of unwelcome 
conduct on the basis of sex that did not effectively deny the victim 
equal access to the recipient's program or activity and was not 
otherwise sexual harassment within the meaning of Sec.  106.30.
    Several commenters requested that access to records be limited, 
that they not be made available through the Freedom of Information Act 
(FOIA), that access be in accordance with FERPA, and that Sec.  
106.45(b)(7)(i)(A) be modified to include ``their sexual harassment 
investigation . . .'' to avoid the burdensome interpretation that 
complainants and respondents may have access to ``each sexual 
harassment investigation'' maintained by the recipient. Similarly, 
commenters requested that this provision require

[[Page 30410]]

that any records collected be protected in a manner that will not 
permit access to the personal identification of students to individuals 
or entities other than the authorized representatives of the Secretary; 
and that any personally identifiable data be destroyed at the end of 
the retention period.
    Some commenters argued that the required access to records is 
ambiguous and vague. Several commenters requested further clarification 
on the parameters of this requirement, including whether the access 
requirement affords the complainant and respondent access to each 
other's files, or just their own. Another commenter asked whether a 
recipient who chose to take no action at all in response to a report of 
sexual harassment must maintain a record of the report. A commenter 
also asked whether the provision applies only to reports or complaints 
that were known at the time to an individual with authority to 
institute corrective measures.
    Several commenters who were in overall support of the provision 
stated that a recipient's Title IX training materials should be made 
publicly available because this allows the training materials to be 
assessed for fairness, absence of bias, and respect for the parties. 
Many commenters stated that training should be available to all 
students, teachers, parents, and the public because and it may help 
students decide which college to attend, and that the training needs to 
incorporate due process protections, be evidence-based, and focused on 
determining the truth. Commenters stated that public dissemination of 
the training materials would keep a check on quality of training and 
promote accountability and confidence in the Title IX grievance system.
    Commenters requested that the requirement concerning the retention 
of training materials only pertain to changes that are of material 
significance; updates that are proofreading or aesthetic in nature 
should not require notation. Commenters also recommended that the 
provision narrow the required window for archiving of training 
materials to three years prior to the date of the hearing.
    Some commenters found this requirement confusing, unnecessary, and 
burdensome. Commenters queried about the type of documentation that 
must be maintained regarding training, and that data and storage 
requirements to maintain records for three years could become 
burdensome for smaller recipients. Some commenters suggested that a 
list of annual training, including topics and who attended, be 
maintained instead.
    Some commenters opposed the provision and requested that recipients 
keep an internal database of all sexual harassment reports, so that 
after a second or third independent report from a different 
complainant, a school can escalate its response to the alleged 
harassment to prevent further harm. Other commenters requested the 
entire deletion of subsection (D), asserting that: The provision does 
not explain what OCR's expectations will be regarding the training, so 
it is impossible to know what training records to maintain; training is 
an ongoing process that involves information from informal and formal 
sources; and at most, recipients should be required to summarize the 
qualifications of the investigators, Title IX Coordinators, and 
adjudicators.
    Commenters who opposed Sec.  106.45(b)(10) also requested that this 
provision clarify that recipients should not release information about 
remedies provided to the complainant as this should be kept as private 
as possible because remedies are often personal, and may include 
changes to a complainant's schedule, medical information, counseling, 
and academic support. Commenters argued that a respondent has little 
legitimate interest in knowing the complainant's remedies and could 
exploit such information in a retaliatory manner. Some commenters 
requested that if a student then sues, or goes to OCR, the college 
should hand over all materials without the need for legal action.
    Some commenters wanted recipients to collect additional data 
regarding when the complaint was filed, whether there were any cross 
complaints, when, how, and to what extent the respondent was notified, 
demographic information about the parties, the number of complaints 
that found respondent responsible, and the sanctions.
    Other commenters suggested the creation of a new section requiring 
recipients to send all records once a year to the Department. Some 
commenters requested that the Department require the collection of 
additional data: Number and names of Title IX staff, consultants and 
advisors, budget and person hours, the number of Title IX complaints 
reported, how each complaint was resolved, remedies provided, number of 
complaints deemed false accusations or where evidence did not support 
accusation, number of Title IX law suits by both complainants and 
respondents, ongoing court cases, number and type of settlements, legal 
costs to an institution of Title IX litigation, settlement costs to the 
institution and/or the institution's insurance companies. Commenters 
argued that demographic data on complainants and respondents would help 
the public evaluate whether discipline has a disparate impact on the 
basis of race, sex, disability, and other protected statuses, and the 
fact that recipients already perform such data collection for the CRDC 
demonstrates that postsecondary institutions could do the same without 
undue burden; these commenters asserted that the Department has the 
authority to require such data collection. Other commenters requested 
that discipline records prior to college must be sealed to avoid 
excessively harmful or unfair use of juvenile records.
    Some commenters requested that the Department remove the 
requirement that recipients keep records for the bases of their 
conclusion about deliberate indifference, as this is a determination 
made by the Department if and when a civil rights complaint is filed.
    Other commenters requested that the recordkeeping requirement 
exempt ombudspersons. These commenters argued that ombudspersons are 
objective, neutral, and confidential resources who provide information 
regarding the grievance process, and advocates for equitably 
administered processes.
    Commenters suggested the deletion of the last sentence of 
106.45(b)(7)(ii), ``The documentation of certain bases or measures . . 
. .'' The commenters argued that the sentence would allow recipients to 
add post hoc alterations and justifications to the record of a formal 
complaint, which is inconsistent with principles of basic fairness.
    Discussion: The Department, having considered the commenters' 
concerns about the three-year retention period proposed in the NPRM, is 
persuaded that the three-year retention period should be extended to 
seven years for consistency with the Clery Act's recordkeeping 
requirements.\1522\ Although elementary and secondary schools are not 
subject to the Clery Act, the Department desires to harmonize these 
final regulations with the obligations of institutions of higher 
education under the Clery Act to facilitate compliance with both the 
Clery Act and Title IX. At the same time, we do not believe that a 
seven year period rather than the proposed three-year period will be 
more difficult for elementary and secondary schools (who

[[Page 30411]]

are not subject to the Clery Act), because elementary and secondary 
schools are often under recordkeeping requirements under other laws 
with retention periods of similar length. The seven-year requirement 
also addresses many commenters' concerns about three years being an 
inadequate amount of time for reasons such as a college freshman's 
Title IX case file being destroyed before that student has even 
graduated from a four-year program, or that a young student in 
elementary school who becomes a party to a Title IX proceeding cannot 
count on the student's case file being available by the time the 
student is in junior high, or that three years is too short a time for 
recipients to benefit from records of sexual harassment where a 
respondent re-offends years later.
---------------------------------------------------------------------------

    \1522\ Clery Act, 20 U.S.C. 1092(f); 34 CFR 668.46(c)(1).
---------------------------------------------------------------------------

    The Department notes that while the final regulations require 
records to be kept for seven years, nothing in the final regulations 
prevents recipients from keeping their records for a longer period of 
time if the recipient wishes or due to other legal obligations. Any 
recipient that needs or desires to keep records for ten years to 
facilitate more complete Federal background checks as one commenter 
requested, or indefinitely as another commenter proposed, may do so. 
The Department declines to base this record retention provision around 
the potential need for use in litigation; the Department does not 
regulate private litigation, and in any event the Department believes 
that the extension of the retention period in these final regulations 
to seven years adequately covers the period of most statutes of 
limitations that apply to causes of action that may derive from the 
same facts and circumstances as the recipient's handling of a Title IX 
sexual harassment report or formal complaint. The Department declines 
to base the retention period around the length of time each student is 
enrolled by a recipient because a standardized expectation of the 
minimum time that these Title IX records will be kept by a recipient 
more easily allows a recipient to meet this requirement than if the 
time frames were customized to the duration of each student's 
enrollment.
    The Department understands commenters' concerns that records of 
sexual harassment cases involving employees posed particular reasons 
supporting a longer retention period, and the modification to a seven 
year requirement addresses those concerns while allowing recipients to 
adopt a policy keeping sexual harassment records concerning employees 
for longer than the seven year retention period required under these 
final regulations.
    In response to commenters' concerns that this provision giving the 
parties access to records might contradict the requirement to keep 
supportive measures confidential, the Department has revised Sec.  
106.45(b)(10)(i) to remove the language making records available to 
parties. Because the parties to a formal complaint receive written 
notice of the allegations, the evidence directly related to the 
allegations, the investigative report, and the written determination 
(as well as having the right to inspect and review the recording or 
transcript of a live hearing), the Department is persuaded that the 
parties' ability to access records relevant to their own case is 
sufficiently ensured without the risk that making records available to 
parties under proposed Sec.  106.45(b)(10) would have resulted in 
disclosure to one party of the supportive measures (or remedies) 
provided to the other party.
    Section 106.45(b)(10)(i)(A) requires recipients to maintain records 
of ``each sexual harassment investigation.'' Any record that the 
recipient creates to investigate an allegation, regardless of later 
dismissal or other resolution of the allegation, must be maintained for 
seven years. Therefore, recipients must preserve all records, even 
those records from truncated investigations that led to no adjudication 
because the acts alleged did not constitute sex discrimination under 
Title IX and the formal complaint (or allegation therein) was 
dismissed. The Department also wishes to clarify that the date of the 
record's creation begins the seven year retention period. We reiterate 
that recipients may choose to keep each record for longer than seven 
years, for example to ensure that all records that form part of a 
``file'' representing a particular Title IX sexual harassment case are 
retained for at least seven years from the date of creation of the last 
record pertaining to that case.
    Regarding the Freedom of Information Act (FOIA),\1523\ and similar 
State laws that require public disclosure of certain records, the 
Department cannot opine on whether disclosure of records required to be 
retained under the final regulations would, or would not, be required 
under FOIA or similar laws because such determinations require fact-
specific analysis.
---------------------------------------------------------------------------

    \1523\ 5 U.S.C. 552 et seq.
---------------------------------------------------------------------------

    Additionally, as explained in the ``Section 106.6(e) FERPA'' 
subsection of the ``Clarifying Amendments to Existing Regulations'' 
section of this preamble, these final regulations, including Sec.  
106.45(b)(10)(i), do not run afoul of FERPA and to the extent possible, 
should be interpreted consistently with a recipient's obligations under 
FERPA. To address any concerns, the Department has removed the phrase 
``make available to the complainant and respondent'' in Sec.  
106.45(b)(10) out of an abundance of caution and in case this phrase 
may have created confusion. Accordingly, the requirement to maintain 
records is separate and apart from the right to inspect and review 
these records under FERPA, and these final regulations specifically 
address when the parties must have an opportunity to inspect and review 
records relating to the party's particular case. For example, Sec.  
106.45(b)(5)(vi) requires that the recipient provide both parties an 
equal opportunity to inspect and review any evidence obtained as part 
of the investigation that is directly related to the allegations raised 
in a formal complaint. The Department acknowledges that a parent of a 
student or an eligible student may have the right to inspect and review 
their education records pursuant to 34 CFR 99.10 through 34 CFR 99.12, 
and these final regulations do not diminish these rights. As previously 
explained, FERPA allows a recipient to share information with the 
parties that is directly related to both parties.\1524\ Further, Sec.  
106.71 authorizes any party who has suffered retaliation to alert the 
recipient by filing a complaint according to the prompt and equitable 
grievance procedures for sex discrimination required to be adopted 
under Sec.  106.8(c).\1525\
---------------------------------------------------------------------------

    \1524\ 73 FR 74806, 74832-33 (Dec. 9, 2008).
    \1525\ The Department notes that other laws and regulations may 
require disclosure of recipient records to the Department, for 
instance when the Department investigates allegations that a 
recipient has failed to comply with Title IX. E.g., 34 CFR 100.6 
(addressing a recipient's obligation to permit the Department access 
to a recipient's records and other information to determine 
compliance with this part).
---------------------------------------------------------------------------

    In response to numerous commenters who requested the requirement to 
publish training materials, the Department agrees with commenters that 
such publication will improve the overall transparency and integrity of 
the Title IX grievance process, and thus revises Sec.  106.45(b)(10) to 
require recipients to publish on their websites training materials 
referenced in Sec.  106.45(b)(1)(iii). The Department believes the 
seven-year requirement will not significantly burden recipients, for 
whom keeping and publishing materials relevant to training its 
employees is good practice in light of the numerous lawsuits recipients 
have faced over handling of Title IX allegations. Regarding the request 
to clarify that recipients need only update published training 
materials when the recipient makes material changes to the materials,

[[Page 30412]]

this provision requires the recipient to publish training materials 
which are up to date and reflect the latest training provided to Title 
IX personnel.
    Although we acknowledge that creating and storing records uses some 
resources, publishing training materials on a website and retaining the 
notes, reports, and audio or audiovisual recordings or transcripts from 
an investigation and any hearing are not cost prohibitive. The 
Department believes the recordkeeping requirements are practical and 
reasonable. To the extent that commenters' concerns that a recipient 
may be unable to publicize its training materials because some 
recipients hire outside consultants to provide training, the materials 
for which may be owned by the outside consultant and not by the 
recipient itself, the Department acknowledges that a recipient in that 
situation would need to secure permission from the consultant to 
publish the training materials, or alternatively, the recipient could 
create its own training materials over which the recipient has 
ownership and control.
    The Department disagrees that it is ``impossible'' to know what 
training records recipients should maintain. Section 106.45(b)(1)(iii) 
specifies that recipients must train Title IX Coordinators, 
investigators, decision-makers, and persons who facilitate informal 
resolutions on specific topics for specific purposes, providing 
sufficient basis for a recipient to understand its obligations 
regarding retention and publication of materials used to conduct such 
training.
    The Department does not wish to burden recipients with a 
requirement to send the records it maintains under this provision to 
the parties. However, parties preparing for a lawsuit or for an OCR 
complaint are entitled to receive copies of the evidence directly 
related to the allegations raised in a formal complaint,\1526\ the 
investigative report,\1527\ and the written determination regarding 
responsibility,\1528\ and thus parties to a Title IX grievance process 
have relevant information that they may desire to review or submit as 
part of a school-level appeal, a lawsuit, or an OCR complaint.
---------------------------------------------------------------------------

    \1526\ Sec.  106.45(b)(5)(vi).
    \1527\ Sec.  106.45(b)(5)(vii).
    \1528\ Sec.  106.45(b)(7)(iii).
---------------------------------------------------------------------------

    The Department declines to require the data collections requested 
by commenters concerning Title IX reports and formal complaints. The 
Department wishes to correct a lack of due process and neutrality in 
the grievance process, among numerous other problems that occurred 
under previous Title IX guidance, and believes that prescribing a 
consistent framework for recipient responses to sexual harassment will 
benefit all individuals involved in reports and formal complaints of 
sexual harassment without regard to demographics. The Department notes 
that nothing in the final regulations precludes a recipient from 
collecting demographic data relating to the recipient's Title IX 
reports and formal complaints. Additionally, the Department does not 
believe that the concept of ``sealing'' records applies in the context 
of most educational institutions, nor does the Department believe that 
furthering the purposes of Title IX requires the Department to 
micromanage the manner in which recipients keep records. Recipients 
will maintain records of their Title IX investigations aimed at 
determining a respondent either responsible or not responsible; the 
Department does not believe that a recipient's retention of such 
records is the equivalent of keeping records of criminal juvenile 
delinquency.
    The Department disagrees that the provision in Sec.  
106.45(b)(10)(ii) requiring a recipient to document the recipient's 
conclusion that its response to sexual harassment was not deliberately 
indifferent is useless. Although commenters may correctly assert that 
recipients ``of course'' believe their responses have been sufficient, 
requiring a recipient to document reasons for that conclusion requires 
the recipient to evaluate how it has handled any report or formal 
complaint of sexual harassment, documenting reasons why the recipient's 
response has not been clearly unreasonable in light of the known 
circumstances. For example, if a Title IX Coordinator decides to sign a 
formal complaint against the wishes of a complainant, the recipient 
should document the reasons why such a decision was not clearly 
unreasonable and how the recipient believes that it met its 
responsibility to provide that complainant with a non-deliberately 
indifferent response. To reinforce the obligation imposed on recipients 
to offer supportive measures (and engage in an interactive discussion 
with the complainant about appropriate, available supportive measures) 
in revised Sec.  106.44(a), we have revised Sec.  106.45(b)(10)(ii) to 
add that if a recipient does not provide a complainant with supportive 
measures, then the recipient must document the reasons why such a 
response was not clearly unreasonable in light of the known 
circumstances; for example, where a complainant refuses supportive 
measures or refuses to communicate with the Title IX Coordinator in 
order to know of supportive measures the recipient is offering. The 
Department declines to remove the final sentence of Sec.  
106.45(b)(10)(ii) because assuring a recipient that the recipient may 
provide additional documentation or explanations about the recipient's 
responses to sexual harassment after creating its initial records does 
not foreclose the ability of a court or administrative agency 
investigating a recipient's Title IX compliance to question the 
accuracy of a recipient's later-added documentation or explanations, 
and where such a court or agency is satisfied that later-added 
information was not, for example, fabricated to protect the recipient 
from exposure to liability, the later-added information helps such a 
court or agency accurately assess the recipient's response to sexual 
harassment.
    The Department wishes to clarify that, unless ombudspersons have 
created records that the Department requires the recipient to maintain 
or publish, ombudspersons do not fall under Sec.  106.45(b)(10). The 
provision identifies the type of record that must be kept, not the 
category of persons whose records do or do not fall under this 
provision.
    Changes: The Department has removed from Sec.  106.45(b)(10)(i) the 
word ``create'' and the phrase ``make available to the complainant and 
respondent.'' The Department has also revised the requirement to 
maintain records from three years to seven years. In Sec.  
106.45(b)(10)(i)(A), the Department has added ``Title IX'' to 
``Coordinator'' and added any audio or audiovisual recording or 
transcript of a live hearing to the list of records required to be 
kept. We have revised Sec.  106.45(b)(10)(i)(D) to add persons who 
facilitate informal resolutions to the list of Title IX personnel, and 
direct recipients to make materials used to train Title IX personnel 
available on the recipient's website or if the recipient does not have 
a website then such training materials must be available for public 
inspection. We have revised Sec.  106.45(b)(10)(ii) to add the 
introductory clause ``For each response required under Sec.  106.44(a) 
. . .'' and by increasing the retention period from three years to 
seven years. We have further revised Sec.  106.45(b)(10)(ii) by 
replacing ``was not clearly unreasonable'' with ``was not deliberately 
indifferent'' and by adding that if a recipient does not provide a 
complainant with supportive measures, then the recipient must document 
the reasons why such a response was not

[[Page 30413]]

clearly unreasonable in light of the known circumstances.

Clarifying Amendments to Existing Regulations

Section 106.3(a) Remedial Action

    Comments: One commenter stated favorably that Sec.  106.3(a) 
expands the remedial power of the Assistant Secretary in some cases, 
such as where a regulatory requirement has been violated, but where no 
sex discrimination has occurred. The commenter asserted that this is 
important for students who are deprived of due process in a Title IX 
proceeding.
    Some commenters expressed concern that Sec.  106.3(a) allows the 
Assistant Secretary to require a school to remedy any violation of the 
Title IX regulations, as opposed to only violations that constitute sex 
discrimination. Commenters argued that this will inappropriately shift 
the Department toward focusing on procedural requirements which will 
result in more complaints being filed with OCR that do not involve 
actual sex discrimination but only involve regulatory violations, and 
that this will unjustifiably expand the Department's jurisdiction over 
complaints brought by parties who were the respondents in underlying 
Title IX sexual harassment proceedings.
    Discussion: The Department believes that the final regulations 
appropriately state that the Assistant Secretary may require recipients 
to remedy violations of Title IX regulations, even where the violation 
does not itself constitute sex discrimination. The Department, 
recipients, and the Supreme Court have long recognized the Department's 
statutory authority under 20 U.S.C. 1682 to promulgate rules to 
effectuate the purposes of Title IX even when regulatory requirements 
do not, themselves, purport to represent a definition of 
discrimination.\1529\ In these final regulations, we revise Sec.  
106.3(a) to reflect the Department's statutory authority and 
longstanding Department practice with respect to requiring recipients 
to remedy violations both in the form of sex discrimination and other 
violations of our Title IX implementing regulations, including where 
the violation does not, itself, constitute sex discrimination. We 
emphasize that the Department's remedial powers are not intended to 
benefit only respondents; rather, any party can request that the 
Department take action against a recipient that has not complied with 
Title IX implementing regulations, including these final regulations. 
For example, if a recipient fails to offer supportive measures to a 
complaint pursuant to Sec.  106.44(a), or fails to send written notice 
after dismissing a complainant's allegations under Sec.  106.45(b)(3), 
the recipient is in violation of these final regulations and the 
Department may require the recipient to take remedial action.
---------------------------------------------------------------------------

    \1529\ E.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 
274, 291-92 (1998) (refusing to allow plaintiff to pursue a claim 
under Title IX based on the school's failure to comply with the 
Department's regulatory requirement to adopt and publish prompt and 
equitable grievance procedures, stating ``And in any event, the 
failure to promulgate a grievance procedure does not itself 
constitute `discrimination' under Title IX. Of course, the 
Department of Education could enforce the requirement 
administratively: Agencies generally have authority to promulgate 
and enforce requirements that effectuate the statute's non-
discrimination mandate, 20 U.S.C. 1682, even if those requirements 
do not purport to represent a definition of discrimination under the 
statute.'').
---------------------------------------------------------------------------

    Changes: We have revised Sec.  106.3(a) to clarify that the 
Department may require a recipient to take remedial action for 
discriminating in violation of Title IX or for violating Title IX 
implementing regulations. We have removed the reference in the proposed 
regulations to assessment of damages and instead state that remedial 
action must be consistent with the Title IX statute, 20 U.S.C. 1682.
    Comments: Commenters argued that proposed Sec.  106.3(a) was 
unclear because the line between equitable remedies and monetary 
damages is sometimes unclear. Commenters asserted that proposed Sec.  
106.3(a) left open too many questions and would lead to confusion for 
students who file Title IX complaints with OCR. Another commenter 
suggested that the final regulations should unambiguously clarify that 
a complainant may always bring a Title IX claim in a private right of 
action.
    Discussion: The Department agrees that the line between equitable 
and monetary relief may be difficult to discern, and is persuaded that 
attempting to distinguish between damages and equitable relief may 
cause confusion for students and for recipients. The current regulatory 
provision at 34 CFR 106.3(a) does not distinguish among various types 
of remedial action the Department might require of recipients, and the 
Supreme Court has noted that the current regulations ``do not appear to 
contemplate a condition ordering payment of monetary damages,'' but the 
Supreme Court did not indicate what types of remedial action might be 
contemplated under 20 U.S.C. 1682.\1530\ In response to commenters' 
concerns that proposed Sec.  106.3(a) would cause confusion, we have 
revised Sec.  106.3(a) in these final regulations to remove the 
proposed reference to ``assessment of damages'' and instead indicate 
that the Department's remedial authority is consistent with 20 U.S.C. 
1682.
---------------------------------------------------------------------------

    \1530\ Gebser, 524 U.S. at 288-89 (``While agencies have 
conditioned continued funding on providing equitable relief to the 
victim, the regulations do not appear to contemplate a condition 
ordering payment of monetary damages, and there is no indication 
that payment of damages has been demanded as a condition of finding 
a recipient to be in compliance with the statute.'') (internal 
citation omitted).
---------------------------------------------------------------------------

    While the Supreme Court has recognized a judicially implied right 
of private action under Title IX,\1531\ these final regulations pertain 
to how the Department administratively enforces Title IX, and we 
therefore decline to reference private Title IX rights of action in 
these regulations implementing Title IX.
---------------------------------------------------------------------------

    \1531\ Cannon v. Univ. of Chicago, 441 U.S. 677, 717 (1979).
---------------------------------------------------------------------------

    Changes: We have revised Sec.  106.3(a) to clarify that the 
Department may require a recipient to take remedial action for 
discriminating in violation of Title IX or for violating Title IX 
implementing regulations. We have removed the reference to assessment 
of damages and instead state that remedial action must be consistent 
with the Title IX statute at 20 U.S.C. 1682.
    Comments: Some commenters suggested that monetary damages ought to 
be available to complainants through the administrative enforcement 
process, particularly where there is no other means of remedying the 
sexual harassment that occurred. Commenters argued that damages ought 
to include damages for pain and suffering caused by a school's 
deliberate indifference. According to these commenters, depriving a 
complainant of a damages remedy will leave the complainant--even one 
who has established a bona fide Title IX violation--less than 
completely whole. Victims of sexual harassment, stated commenters, 
might miss work, might incur legal fees, might pay out-of-pocket for 
treatment expenses, or incur other monetary losses. Some commenters 
asserted that OCR ought to be able to award damages in cases where 
monetary relief is necessary to restore a complainant's position.
    Discussion: The Department believes that remedial action should be 
carefully crafted to restore a victim's equal access to education and 
ensure that a recipient comes into compliance with Title IX and its 
implementing regulations. This approach has been cited approvingly by

[[Page 30414]]

the Supreme Court.\1532\ The Department's revisions to Sec.  106.3(a) 
ensure that the Department may exercise its administrative enforcement 
authority to fulfill these goals by requiring remedies consistent with 
20 U.S.C. 1682, regardless of whether the remedies are deemed necessary 
due to a recipient's discrimination under Title IX or a recipient's 
violation of Department regulations implementing Title IX.\1533\
---------------------------------------------------------------------------

    \1532\ Gebser, 524 U.S. at 289 (``In Franklin [v. Gwinnett Co. 
Pub. Sch., 503 U.S. 64, fn. 3 (1992)], for instance, the Department 
of Education found a violation of Title IX but determined that the 
school district came into compliance by virtue of the offending 
teacher's resignation and the district's institution of a grievance 
procedure for sexual harassment complaints.'').
    \1533\ The Title IX statute at 20 U.S.C. 1682 provides in 
relevant part that any agency that disburses Federal financial 
assistance to a recipient is ``authorized and directed to effectuate 
the provisions of section 1681 of this title [i.e., Title IX's non-
discrimination mandate] with respect to such program or activity by 
issuing rules, regulations, or orders of general applicability which 
shall be consistent with achievement of the objectives of the 
statute authorizing the financial assistance in connection with 
which the action is taken. . . . Compliance with any requirement 
adopted pursuant to this section may be effected (1) by the 
termination of or refusal to grant or to continue assistance under 
such program or activity to any recipient as to whom there has been 
an express finding on the record, after opportunity for hearing, of 
a failure to comply with such requirement, . . . or (2) by any other 
means authorized by law: Provided, however, That no such action 
shall be taken until the department or agency concerned has advised 
the appropriate person or persons of the failure to comply with the 
requirement and has determined that compliance cannot be secured by 
voluntary means.''
---------------------------------------------------------------------------

    Changes: We have revised Sec.  106.3(a) to clarify that the 
Department may require a recipient to take remedial action for 
discriminating in violation of Title IX or for violating Title IX 
implementing regulations. We have removed the reference to assessment 
of damages and instead state that remedial action must be consistent 
with the Title IX statute at 20 U.S.C. 1682.
    Comments: Some commenters stated that proposed Sec.  106.3(a) 
inappropriately narrowed the remedies available for sexual harassment, 
and that any effort to take rights away from victims was troubling. 
These commenters asserted that the Department ought to be using its 
power to expand protections for victims, not narrow them. Some 
commenters stated that preventing OCR from awarding monetary damages 
would reduce the incentive to report sex discrimination, meaning that 
it was more likely to continue unabated. Other commenters argued that 
monetary damages serve as an effective deterrent to a school not taking 
sex discrimination allegations seriously. One commenter asserted that 
this was part of a nefarious motive on the part of Secretary Betsy 
DeVos to hurt victims of discrimination, and not an effort to help the 
American people.
    Discussion: The Department's purpose and motive in these final 
regulations is to implement legally binding obligations governing 
recipients' responses to sexual harassment so that recipients respond 
supportively to complainants and fairly to both complainants and 
respondents and operate education programs and activities free from sex 
discrimination, including in the form of sexual harassment. The 
Department intends to continue vigorously enforcing recipients' Title 
IX obligations. We are persuaded by commenters that specifying the type 
of remedies that OCR may require of recipients in administrative 
enforcement risks confusion for students, employees, and recipients, 
including as to whether the Department intends to continue vigorously 
enforcing recipients' Title IX obligations. We have therefore revised 
Sec.  106.3(a) to clarify that the Department may require a recipient 
to take remedial action, consistent with the Department's regulatory 
authority under 20 U.S.C. 1682, whenever a recipient has discriminated 
in violation of Title IX or whenever a recipient has violated the 
Department's regulations implementing Title IX.
    Changes: We have revised Sec.  106.3(a) to clarify that the 
Department may require a recipient to take remedial action for 
discriminating in violation of Title IX or for violating Title IX 
implementing regulations. We have removed the reference to assessment 
of damages and instead state that remedial action must be consistent 
with the Title IX statute at 20 U.S.C. 1682.
    Comments: Some commenters asserted that the withdrawal of all 
Federal funds happens so rarely that the payment of monetary damages is 
the only true way to get at a school's pocketbook for ignoring sex 
discrimination. Commenters argued that some schools will read Sec.  
106.3(a) too broadly, and deny even equitable relief to complainants, 
who then may never file with OCR and will simply be denied relief to 
which they are entitled. One commenter suggested that the Equal 
Employment Opportunity Commission has made public statements adopting 
the viewpoint that the best way to ensure compliance with non-
discrimination law is to make employers pay damages for violating those 
laws. Commenters stated that if monetary damages cannot be a part of a 
resolution agreement, this would have the effect of increasing and 
encouraging sexual assault. It would also mean, commenters argued, that 
complainants could not obtain necessary treatment to respond to their 
trauma from the very misconduct that the recipient caused or 
exacerbated.
    Discussion: The Department acknowledges that the termination of 
Federal financial assistance is rare, but this is because the statutory 
enforcement scheme that Congress set forth in 20 U.S.C. 1682 recognized 
termination of Federal funds as a ``severe'' remedy that should serve 
as a ``last resort'' when other, less severe measures have 
failed.\1534\ Loss of Federal funding to a school district, college, or 
university is a serious consequence that may have devastating results 
for a recipient and the educational community the recipient exists to 
serve.\1535\ Termination of Federal funds as a remedy is statutorily 
intended to serve as a ``last resort'' in order to ``avoid diverting 
education funding from beneficial uses'' unless that severe remedy is 
necessary.\1536\ The fact that the severe remedy of terminating Federal 
funds is appropriately intended and utilized as a last resort does not 
preclude the Department from effectively enforcing Title IX by securing 
voluntary resolution agreements with recipients who have violated Title 
IX or its

[[Page 30415]]

implementing regulations.\1537\ The Department will continue to 
effectively enforce Title IX, including these final regulations, in 
furtherance of Title IX's non-discrimination mandate.
---------------------------------------------------------------------------

    \1534\ Cannon, 441 U.S. at 705, fn. 38 (``Congress itself has 
noted the severity of the fund-cutoff remedy and has described it as 
a last resort, all else--including `lawsuits'--failing.''); id. at 
704-05 (describing termination of Federal financial assistance as 
``severe'' and stating that it is not always the appropriate means 
of furthering Title IX's non-discrimination mandate where ``an 
isolated violation has occurred.''); see also Nancy Chi Cantalupo, 
Burying Our Heads in The Sand: Lack of Knowledge, Knowledge 
Avoidance, and the Persistent Problem of Campus Peer Sexual 
Violence, 43 Loy. Univ. Chi. L. J. 205, 241 (2011) (referring to the 
ability of OCR to terminate Federal funding as the ``nuclear 
option'').
    \1535\ ``Federal financial assistance'' includes, for example, 
``scholarships, loans, grants, wages or other funds extended to any 
entity for payment to or on behalf of students admitted to that 
entity, or extended directly to such students for payment to that 
entity.'' 34 CFR 106.4(g)(1)(ii); see also Pamela W. Kernie, 
Protecting Individuals from Sex Discrimination: Compensatory Relief 
Under Title IX of the Education Amendments of 1972, 67 Wash. L. Rev. 
155, 166 (1992) (``Indeed, the fund-termination remedy, if applied, 
might actually prove detrimental to the very people Title IX is 
designed to protect: if an educational program's funds are 
terminated, future participants in the program will be denied the 
benefits of much-needed federal financial assistance.'').
    \1536\ Gebser, 524 U.S. at 289 (``Presumably, a central purpose 
of requiring notice of the violation to the appropriate person and 
an opportunity for voluntary compliance before administrative 
enforcement proceedings [to terminate Federal funding] can commence 
is to avoid diverting education funding from beneficial uses where a 
recipient was unaware of discrimination in its programs and is 
willing to institute prompt corrective measures.'').
    \1537\ Catharine A. MacKinnon, In Their Hands: Restoring 
Institutional Liability for Sexual Harassment in Education, 125 Yale 
L. J. 2038, fn. 102 (2016) (noting that the fact that OCR has not 
actually terminated a school's Federal funds ``only means schools, 
knowing OCR means business, have complied, not that OCR is unwilling 
to use this tool.'').
---------------------------------------------------------------------------

    The Equal Employment Opportunity Commission enforces non-
discrimination laws, including Title VII, that provide specific limits 
on the amount of compensatory and punitive damages that a person can 
recover. For example, Title VII expressly limits the amount of 
compensatory and punitive damages that a person may recover against an 
employer with more than 500 employees to $300,000, in 20 U.S.C. 
1981a(b)(3)(D). Title IX, unlike Title VII, does not expressly include 
any reference to such compensatory and punitive damages, nor does any 
statute address the amount of compensatory and punitive damages that 
may be awarded under Title IX. Instead, Congress expressly references 
an agency's suspension or termination of Federal financial assistance, 
which is a severe consequence, and also allows a recipient to secure 
compliance with its regulations through any ``other means authorized by 
law''. The Department will therefore continue to enforce Title IX 
consistent with 20 U.S.C. 1682, and not by reference to the enforcement 
schemes set forth in other laws. Remedial action required of a 
recipient for violating Title IX or these final regulations may 
therefore include any action consistent with 20 U.S.C. 1682, and may 
include equitable and injunctive actions as well as financial 
compensation to victims of discrimination or regulatory violations, as 
necessary under the specific facts of a case.\1538\
---------------------------------------------------------------------------

    \1538\ See Dana Bolger, Gender Violence Costs: Schools' 
Financial Obligations Under Title IX, 125 Yale L. J. 2106, 2120-21 
(2016) (noting that ``OCR has required financial reimbursement in a 
surprisingly small number of its enforcement decisions'' and arguing 
that the Department should more often order schools to financially 
reimburse survivors for costs incurred due to the school's Title IX 
violations rather than permitting ``the same schools that violated 
the survivors' rights to determine what remedies are appropriate''); 
see also Gebser, 524 U.S. at 288-89 (noting that while 34 CFR 
106.3(a) does not appear to authorize an agency to order monetary 
damages as a remedy, and agencies generally seem to order equitable 
relief (for instance, termination of a teacher who committed sexual 
harassment), the absence of express reference to monetary damages in 
20 U.S.C. 20 and in 34 CFR 106.3 did not imply that monetary damages 
could not be an appropriate remedy in a private lawsuit under Title 
IX).
---------------------------------------------------------------------------

    Changes: We have revised Sec.  106.3(a) to clarify that the 
Department may require a recipient to take remedial action for 
discriminating in violation of Title IX or for violating Title IX 
implementing regulations. We have removed the reference to assessment 
of damages and instead state that remedial action must be consistent 
with the Title IX statute at 20 U.S.C. 1682.
    Comments: Some commenters asserted that proposed Sec.  106.3(a) was 
inconsistent with the statutory provisions of Title IX, since Title IX 
does not limit the types of relief that OCR may provide to 
complainants. Other commenters stated that the proposed rules would 
shift existing policy away from how Congress and the agency have 
interpreted the current regulatory provisions for the past 50 years, 
arguing that Title VI contains an express limit on relief, allowing 
only ``preventive relief'' under 42 U.S.C. 2000a-3 while Title IX does 
not contain such limiting language in its remedial provisions, at 20 
U.S.C. 1682, which allows for relief by ``any other means authorized by 
law''. Commenters referred to resolution agreements where OCR has 
seemingly awarded monetary damages remedies.
    Discussion: As discussed above, the Department is persuaded by 
commenters' concerns that because Title IX, 20 U.S.C. 1682, does not 
expressly approve or disapprove of monetary damages as one of the 
``other means authorized by law'' which the Department may use to 
secure compliance under the Department's administrative enforcement 
authority, the Department should not differentiate in Sec.  106.3(a) 
among potential remedies that may be deemed necessary to ensure that a 
recipient complies with Title IX and its implementing regulations. We 
have revised Sec.  106.3(a) to expressly provide that discrimination 
under Title IX, or violations of the Department's Title IX regulations, 
may require a recipient to take remedial action, and that such remedial 
action ordered by the Department in an enforcement action must be 
consistent with 20 U.S.C. 1682. The Department notes that actions that 
some commenters characterize as OCR requiring a recipient to pay 
``monetary damages'' may be viewed as financial compensation that OCR 
requires a recipient to pay to a victim of sex discrimination as a form 
of equitable relief, which does not necessarily constitute ``monetary 
damages.'' However, the revisions to Sec.  106.3(a) affirm that the 
Department will continue to enforce Title IX and its implementing 
regulations vigorously by using all tools at the Department's disposal 
under 20 U.S.C. 1682.
    Changes: We have revised Sec.  106.3(a) to clarify that the 
Department may require a recipient to take remedial action for 
discriminating in violation of Title IX or for violating Title IX 
implementing regulations. We have removed the reference to assessment 
of damages and instead state that remedial action must be consistent 
with the Title IX statute at 20 U.S.C. 1682.
    Comments: Some commenters stated that the proposed rules' reliance 
on Supreme Court case law is faulty, because those cases arose in the 
context of private rights of action in civil suits, and not the 
administrative context. Another commenter stated that OCR already does 
not award monetary damages, and so Sec.  106.3 is unnecessary, but 
could engender confusion, particularly where equitable remedies 
involving monetary payments are necessary to make a complainant whole. 
Another commenter asserted that there is a discord between changing the 
legal standards in other parts of the proposed rules to more closely 
mirror the legal standards in civil suits, while expressly barring 
complainants from obtaining the relief that they would otherwise be 
entitled to in civil suits.
    Discussion: The Department is persuaded by commenters' concerns 
that proposed Sec.  106.3(a) may have had the unintended effect, or 
perceived effect, of restricting the Department's ability to vigorously 
enforce Title IX through all ``means authorized by law,'' \1539\ may 
have caused unnecessary confusion on topics such as whether the 
Department's administrative enforcement of Title IX pursues the same 
goals as private lawsuits under Title IX (i.e., enforcement of Title 
IX's non-discrimination mandate), whether financial compensation when 
necessary to remedy a recipient's discrimination against individual 
victims would no longer be part of the Department's enforcement 
efforts, and may have indicated tension with the Department's approach 
to adopting and adapting the three-part Gebser/Davis framework \1540\ 
(which the Supreme Court developed in the context of private litigation 
subjecting schools to monetary damages). To address commenters' 
concerns and clarify the Department's intent to vigorously enforce 
Title IX, we have revised Sec.  106.3(a) to state that the Department 
may order remedial action as necessary to correct discrimination

[[Page 30416]]

under Title IX or violations of the Department's Title IX regulations, 
consistent with 20 U.S.C. 1682.
---------------------------------------------------------------------------

    \1539\ 20 U.S.C. 1682.
    \1540\ ``Adoption and Adaption of the Supreme Court's Framework 
to Address Sexual Harassment'' section of this preamble.
---------------------------------------------------------------------------

    Changes: We have revised Sec.  106.3(a) to clarify that the 
Department may require a recipient to take remedial action for 
discriminating in violation of Title IX or for violating Title IX 
implementing regulations. We have removed the reference to assessment 
of damages and instead state that remedial action must be consistent 
with the Title IX statute at 20 U.S.C. 1682.
    Comments: Commenters stated that because the current regulations 
need clarity and modification, it is good that the proposed rules 
addressed the remedies issue. Some commenters stated that the proposed 
rules set forth a fair and reliable procedure with respect to damages 
and remedies. Commenters who worked for postsecondary institutions 
expressed support for proposed Sec.  106.3(a) as a significant 
improvement upon the current Title IX landscape. Some commenters on 
behalf of institutions expressed appreciation for the focus on remedial 
action that does not include the assessment of damages against a 
recipient because some recipients are small, rural schools with limited 
resources, and would prefer to use those resources to remedy violations 
rather than pay damages. Commenters asserted that proposed Sec.  
106.3(a) helps recipient institutions avoid unnecessary burdens. 
Commenters stated that they supported the limitation of remedial action 
to exclude assessment of damages against the recipient because parties 
seeking monetary damages may always avail themselves of the courts, 
which are better equipped than OCR to assess damages to compensate a 
victim for harms like emotional distress. One commenter asserted that 
proposed Sec.  106.3(a) would appropriately focus Title IX enforcement 
on securing equitable relief and bringing schools into compliance with 
Title IX. Commenters offered that it is appropriate for OCR to focus 
exclusively on equitable relief and bringing schools into compliance, 
as opposed to compensating victims.
    Discussion: The Department appreciates some commenters' support for 
the intention of proposed Sec.  106.3(a), to distinguish between 
monetary damages and equitable relief in determining remedial action 
the Department should pursue in its administrative enforcement actions. 
However, for the reasons discussed above, the Department is persuaded 
by the concerns of other commenters and we have revised Sec.  106.3(a) 
to remove reference to assessment of damages.
    Changes: We have revised Sec.  106.3(a) to clarify that the 
Department may require a recipient to take remedial action for 
discriminating in violation of Title IX or for violating Title IX 
implementing regulations. We have removed the reference to assessment 
of damages and instead state that remedial action must be consistent 
with the Title IX statute at 20 U.S.C. 1682.
    Comments: Some commenters argued that proposed Sec.  106.3(a) 
conveyed that the Department will not be enforcing Title IX at all and 
will look the other way at a recipient's failure to respond to 
allegations of sexual harassment. Another commenter suggested that the 
proposed rules ought to state that all remedial action should be 
dedicated to minimizing, to the extent possible, harm done to the 
complainant. One commenter argued that proposed Sec.  106.3 would 
create an inconsistency with other laws and regulations that OCR 
enforces, such as Title VI or Section 504.
    One commenter argued that Sec.  106.3(a) is a change in position 
from prior Department guidance that contemplates monetary relief, is in 
tension with a Department of Justice manual about Title IX,\1541\ and 
could potentially put the Department's Title IX enforcement practices 
in tension with other executive branch agencies that enforce Title IX. 
The commenter asserted that it is strange for a complainant's scope of 
relief to change depending on the agency with which the complaint is 
filed. The commenter asserted that such a significant shift ought to be 
more fulsomely explained by the Department. Additionally, the commenter 
stated that the commenter had filed a Freedom of Information Act (FOIA) 
request but had not yet received a response, and that the proposed 
rules ought to be withdrawn until the commenter had opportunity to 
review the FOIA response and comment further. The same commenter argued 
that the proposed rules would pose anomalous situations that would 
strain OCR's ability to separate equitable relief involving payments of 
money, from non-equitable relief in the form of monetary damages. The 
commenter raised the scenario of a complainant that suffers damages 
caused by a third party; in the hypothetical, a student is sexually 
harassed at their school and reports the incident, and later the 
student obtains a scholarship at another school, and if the first 
school retaliates against the reporting student by interfering with the 
scholarship so the student loses the scholarship, the first school may 
or may not be liable for the loss of the scholarship under revised 
Sec.  106.3(a), depending on whether OCR construes that relief as 
monetary damages or equitable relief.
---------------------------------------------------------------------------

    \1541\ Commenters cited: U.S. Dep't. of Justice, Title IX Legal 
Manual ``VIII Private Right of Action and Individual Relief through 
Agency Action, C. Recommendations for Agency Action.''
---------------------------------------------------------------------------

    Discussion: For reasons discussed above, the Department is 
persuaded by commenters' concerns that proposed Sec.  106.3(a) could 
cause unnecessary confusion, such as about how the Department intends 
to enforce Title IX and whether the Department intends to continue 
vigorously enforcing Title IX administratively. We have revised Sec.  
106.3(a) to clarify that the Department will require remedial action 
for a recipient's discrimination under Title IX or a recipient's 
violations of Title IX regulations, in a manner consistent with 20 
U.S.C. 1682. In light of these revisions, the Department does not 
believe it is necessary to analyze prior Department guidance as to 
whether the Department's past practice has, or has not, been to impose 
monetary damages for Title IX violations, and for similar reasons there 
is no conflict between Sec.  106.3(a) in the final regulations, and the 
Department of Justice Title IX Manual referenced by commenters, or 
among the Department's approach to remedial action and the approach of 
other Federal agencies, each of which is subject to the same provision 
in the Title IX statute (20 U.S.C. 1682) regarding administrative 
enforcement of Title IX, to which Sec.  106.3(a) now refers. We note 
that the sufficiency of the Department's response to any individual 
FOIA request is beyond the scope of this rulemaking, and decline to 
comment on the content of such a request or its relationship to these 
final regulations. The revisions to Sec.  106.3(a) additionally 
ameliorate the commenter's concern raised in a hypothetical, that a 
dividing line between equitable relief and monetary damages could lead 
to the Department being constrained from requiring a recipient to, for 
example, reimburse a student for the value of a lost scholarship under 
circumstances where such remedial action is necessary to remediate the 
effects of a recipient's discrimination against an individual student.
    Changes: We have revised Sec.  106.3(a) to clarify that the 
Department may require a recipient to take remedial action for 
discriminating in violation of Title IX or for violating Title IX 
implementing regulations. We have removed the reference to assessment 
of damages and instead state that remedial action must be consistent 
with the Title IX statute at 20 U.S.C. 1682.

[[Page 30417]]

    Comments: Some commenters suggested that if changes to Sec.  106.3 
are made at all, the changes ought to strengthen the penalties that can 
be adjudicated against actual perpetrators of sexual harassment, 
including students. One commenter suggested that students who engage in 
sexual harassment ought to themselves be liable for monetary damages as 
part of OCR's enforcement practices. Additionally, this commenter 
argued that OCR ought to make students who engage in sexual harassment 
repay grants given to them by the Federal government, and permanently 
bar such students from applying for any financial assistance in the 
future. Another commenter suggested that the Department ought to bar 
students who commit sexual harassment from attending any other 
postsecondary institution in the future.
    Discussion: Title IX applies to recipients of Federal financial 
assistance operating education programs or activities.\1542\ Title IX 
does not apply as a direct bar against perpetration of sexual 
harassment by individual respondents; rather, Title IX requires 
recipients to operate education programs and activities free from sex 
discrimination. When a recipient knowingly, deliberately refuses to 
respond to sexual harassment, such response is a violation of Title 
IX's non-discrimination mandate, and a recipient's failure to respond 
appropriately in other ways mandated by these final regulations 
constitutes a violation of the Department's regulations implementing 
Title IX.\1543\ The Department will vigorously enforce Title IX's non-
discrimination mandate and the obligations contained in these final 
regulations to ensure recipients' compliance.
---------------------------------------------------------------------------

    \1542\ 20 U.S.C. 1681(a).
    \1543\ See discussion in the ``Adoption and Adaption of the 
Supreme Court's Framework to Address Sexual Harassment'' section of 
this preamble.
---------------------------------------------------------------------------

    These final regulations clarify the conditions that trigger a 
recipient's legal obligations with respect to sexual harassment and 
enforcement of Title IX, and these final regulations are focused on 
remedial actions the recipient must take, rather than on punitive 
actions against individuals who perpetrate sexual harassment.\1544\ 
These final regulations explain the circumstances under which a 
recipient must provide remedies to victims of sexual harassment, and 
leave decisions about appropriate disciplinary sanctions imposed on 
respondents found responsible for sexual harassment within the sound 
discretion of the recipient.\1545\ These final regulations do not 
impact eligibility of a student for Federal student aid or the 
eligibility of an individual to apply for Federal grants. The Title IX 
statute authorizes the Department to enforce Title IX by terminating 
Federal financial assistance provided to a recipient operating 
education programs or activities--not by terminating Federal financial 
aid to individual students. As discussed previously, these final 
regulations leave sanctions and punitive consequences that a recipient 
chooses to take against a respondent found responsible for sexual 
harassment in the sound discretion of the recipient. Nothing in these 
final regulations precludes a recipient from barring such a respondent 
found responsible for sexual harassment from continuing enrollment or 
from re-enrolling with the recipient, or from including a notation on 
the student's transcript with the intent or effect of prohibiting the 
respondent from future enrollment with a different recipient.\1546\
---------------------------------------------------------------------------

    \1544\ Id.
    \1545\ Id.
    \1546\ For further discussion of transcript notations, see the 
``Transcript Notations'' subsection of the ``Determinations 
Regarding Responsibility'' subsection of the ``Section 106.45 
Recipient's Response to Formal Complaints'' section of this 
preamble.
---------------------------------------------------------------------------

    Changes: We have revised Sec.  106.3(a) to clarify that the 
Department may require a recipient to take remedial action for 
discriminating in violation of Title IX or for violating Title IX 
implementing regulations. We have removed the reference to assessment 
of damages and instead state that remedial action must be consistent 
with the Title IX statute at 20 U.S.C. 1682.
    Comments: Some commenters asserted that the proposed rules ought to 
eliminate the ability of a recipient to engage in affirmative action 
absent any finding of a violation; commenters referenced a provision 
under 34 CFR 106.3(b) that the proposed rules did not propose to alter. 
Additionally, some commenters stated that the proposed rules ought to 
more clearly define what monetary damages are, since monetary payments 
may nevertheless be equitable in nature, in some circumstances. 
Commenters suggested that the Assistant Secretary for Civil Rights 
ought to be more constrained in assessment of remedies than proposed 
Sec.  106.3(a) set forth and should not require that schools engage in 
disciplinary or exclusionary processes in order to remedy sexual 
harassment. Commenters argued that the Assistant Secretary should only 
have jurisdiction to require supportive measures for victims of sexual 
harassment in order to restore access to education and bring a 
recipient into compliance with Title IX.
    Discussion: In the NPRM, the Department proposed revisions to Sec.  
106.3(a), which concerns remedial action, and did not propose changing 
the provisions of 34 CFR 106.3(b), which concerns affirmative action, 
and the Department declines to revise 34 CFR 106.3(b) in these final 
regulations.
    The Department disagrees that the Department lacks authority to 
require recipients to investigate and adjudicate sexual harassment 
allegations in order to determine whether remedies are necessary to 
restore or preserve the equal educational access of a victim of sexual 
harassment, including deciding whether disciplinary sanctions are 
warranted against a respondent found responsible for sexual harassment. 
Since 1975, Department regulations have required recipients to adopt 
and publish grievance procedures to address student and employee 
complaints of sex discrimination,\1547\ and through guidance since 1997 
the Department has interpreted this regulatory requirement to apply to 
complaints of sexual harassment. Adopting and publishing a grievance 
process to address sexual harassment as a form of sex discrimination 
prevents instances in which a recipient violates Title IX by failing to 
provide remedies to victims of sexual harassment, falling squarely 
within the Department's authority to promulgate rules that further 
Title IX's non-discrimination mandate.\1548\ As previously discussed, 
with respect to disciplinary sanctions, the Department, like the 
courts, will ``refrain from second guessing the disciplinary decisions 
made by school administrators'' \1549\ because school administrators 
are best positioned to determine the appropriate discipline to be 
imposed. The final regulations remove reference to ``assessment of 
damages'' in Sec.  106.3(a), and thus the Department declines to 
provide a definition of ``monetary damages'' in order to clarify when 
payments of money are part of equitable relief, versus damages.
---------------------------------------------------------------------------

    \1547\ Compare 34 CFR 106.9 with Sec.  106.8(c).
    \1548\ ``Role of Due Process in the Grievance Process'' section 
of this preamble.
    \1549\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 
(1999). Disciplinary sanctions, however, cannot be retaliatory or 
discriminatory on the basis of sex. Sec.  106.71(a); Sec.  
106.45(a).
---------------------------------------------------------------------------

    Changes: We have revised Sec.  106.3(a) to clarify that the 
Department may require a recipient to take remedial action for 
discriminating in violation of Title IX or for violating Title IX 
implementing regulations. We have

[[Page 30418]]

removed the reference to assessment of damages and instead state that 
remedial action must be consistent with the Title IX statute at 20 
U.S.C. 1682.

Section 106.6(d)(1) First Amendment

    Comments: A number of commenters expressed support for Sec.  
106.6(d) generally, including Sec.  106.6(d)(1) regarding the First 
Amendment. Other commenters argued the provision is necessary to 
prevent a chilling effect on free speech. Other commenters supported 
this provision because they believed that Title IX should conform with 
Supreme Court rulings on free speech. Commenters argued that the 
protection of free speech on campuses is important and that this 
provision helps prevent Title IX enforcement from chilling free speech. 
Commenters argued that Sec.  106.6(d) is necessary in light of the 
growing number of instances in which institutions have violated 
students' rights in campus Title IX adjudications. Commenters expressed 
support for the saving clause nature of this provision because of 
concerns that Title IX has a disproportionate impact on men of color 
and other disadvantaged demographic groups.
    Some commenters requested more clarity on the application of the 
saving clause to specific situations. Commenters requested that OCR 
``provide additional guidance or clarity on what responsibilities 
school districts have with respect to the First Amendment and other 
constitutional protections.'' One commenter requested guidance on the 
parameters of free speech protections. Other commenters supported the 
saving clause but requested that the Department modify the language to 
provide greater protection for free speech, such as providing explicit 
protection of academic freedom, or such as changing the provision to 
not just state that the regulations do not require a recipient to 
restrict constitutional rights, but that the regulations do not permit 
deprivations of constitutional rights. Some commenters expressed 
confusion as to whether the saving clauses in 106.6(d) cover recipients 
that are not government actors.
    A number of commenters opposed the saving clause because they 
believed it is unnecessary.
    One commenter opposed the saving clause due to the concern that it 
could be seen as calling for the courts to give greater weight to the 
listed constitutional protections than a court may have given 
otherwise. As an example, the commenter posed a hypothetical case where 
First Amendment rights are implicated; without the addition of Sec.  
106.6(d)(1), a court could give different weight to factors in its 
factored-analysis as to whether a constitutional violation occurred but 
with the saving clause in the proposed rules, the court may conclude 
that the Department has determined that greater weight should be given 
to First Amendment protections than the other factors used in its 
making of a determination of a constitutional violation.
    One commenter argued that the saving clause is an unwarranted and 
harmful restriction on Title IX. The commenter reasoned that under 
Title IX's non-discrimination mandate the Department could, for 
example, reasonably determine that Title IX requires that a trigger 
warning be given to students before the start of any academic class 
discussing topics involving sexual violations, so that students could 
avoid being subjected to the traumatizing class discussion; the 
commenter argued that such a requirement is constitutional and could be 
necessary under Title IX, yet because of Sec.  106.6(d) such a 
reasonable, constitutional requirement (because even First Amendment 
speech rights are not unlimited, inasmuch as yelling ``fire'' in a 
crowded theater has long been deemed unprotected speech) to promote 
Title IX's purposes might be forgone by the Department. On the other 
hand, another commenter argued that classroom discussions about 
sensitive topics involving sex and sexuality are protected by academic 
freedom--in the teacher or professor's judgment--even if such topics 
are offensive and uncomfortable to some students.
    Discussion: The Department added Sec.  106.6(d)(1) to act as a 
saving clause.\1550\ Its purpose is to ensure the Department is 
promoting non-discrimination enforcement consistent with constitutional 
protections, and with First Amendment protections of free speech and 
academic freedom in particular. Due to significant confusion regarding 
the intersection of individuals' rights under the U.S. Constitution 
with a recipient's obligations under Title IX, the proposed regulations 
clarify that these regulations do not require a recipient to infringe 
upon any individual's rights protected under the First Amendment.
---------------------------------------------------------------------------

    \1550\ ``Saving Clause,'' Black's Law Dictionary (11th ed. 2019) 
(``A statutory provision exempting from coverage something that 
would otherwise be included. A saving clause is generally used in a 
repealing act to preserve rights and claims that would otherwise be 
lost.'').
---------------------------------------------------------------------------

    The Department disagrees with the commenter who argued that Sec.  
106.6(d)(1) will chill Title IX enforcement without more precise 
language. Rather, stating that nothing in regulations implementing 
Title IX requires restriction of constitutional rights protects robust 
Title IX enforcement by clarifying that furthering Title IX's non-
discrimination mandate does not conflict with constitutional 
protections. Failure to recognize and respect principles of free speech 
and academic freedom has led to overly broad anti-harassment policies 
that have resulted in chilling and infringement of constitutional 
protections.\1551\
---------------------------------------------------------------------------

    \1551\ ``Sexual Harassment'' subsection of the ``Section 106.30 
Definitions'' section of this preamble.
---------------------------------------------------------------------------

    The Department disagrees with commenters who argued that additional 
language or guidance is necessary in Sec.  106.6(d)(1). We believe that 
Sec.  106.6(d)(1) is clear without further explanation. The Department 
also includes an explanation of First Amendment law and the interaction 
of First Amendment law with these final regulations throughout the 
preamble; for example, in the ``Davis standard generally'' subsection 
of the ``Prong (2) Davis standard'' subsection of the ``Sexual 
Harassment'' subsection in the ``Section 106.30 Definitions'' section, 
the Department includes discussion about how the second prong of the 
definition of sexual harassment in Sec.  106.30, with language from 
Davis, interacts with the First Amendment. The Department will abide by 
courts' rulings as to the scope of the First Amendment.
    In response to requests from commenters for stronger First 
Amendment protections in these final regulations, the Department has 
added additional language in the final regulations, addressing 
circumstances under which First Amendment concerns often intersect with 
Title IX policies and procedures. For example, the Department has added 
Sec.  106.71 (prohibiting retaliation) to state that the exercise of 
rights protected under the First Amendment does not constitute 
retaliation. The final regulations also add language in Sec.  106.44(a) 
to state that the Department may not deem a recipient to have satisfied 
the recipient's duty to not be deliberately indifferent based on the 
recipient's restriction of rights protected under the U.S. 
Constitution, including the First Amendment. The Department reinforces 
Sec.  106.6(d) in the context of a recipient's non-deliberately 
indifferent response in Sec.  106.44(a) and evaluation of retaliation 
under new Sec.  106.71 to caution recipients that the Department will 
not

[[Page 30419]]

require a recipient to restrict constitutional rights as a method of 
Title IX compliance. Because academic freedom is well understood to be 
protected under the First Amendment, the Department declines to 
expressly reference ``academic freedom'' in Sec.  106.6(d)(1), but that 
provision applies to all rights protected under the First Amendment.
    Title IX, including Sec.  106.6(d), applies to all recipients of 
Federal financial assistance, including private actors. The language is 
intended to clarify that, under Title IX regulations, recipients--
including private recipients--are not obligated by Federal law under 
Title IX to restrict free speech or other rights that the Federal 
government could not restrict directly. Accordingly, the government may 
not compel private actors to restrict conduct that the government 
itself could not constitutionally restrict.\1552\
---------------------------------------------------------------------------

    \1552\ Peterson v. City of Greenville, 373 U.S. 244, 248 (1963); 
Truax v. Raich, 239 U.S. 33, 38 (1915).
---------------------------------------------------------------------------

    The Department agrees with commenters who stated that Sec.  
106.6(d)(1) will ensure that nothing in these final regulations is 
interpreted to violate the First Amendment to the U.S. Constitution, 
and we agree that this provision is important to prevent a chilling 
effect on free speech. As discussed in more detail in the ``Sexual 
Harassment'' subsection of the ``Section 106.30 Definitions'' section 
of this preamble, overly broad definitions applied in anti-harassment 
codes of conduct have led to confusion about how to enforce non-sex 
discrimination laws like Title IX consistent with First Amendment 
protections, and we therefore disagree that Sec.  106.6(d)(1) is 
unnecessary.
    The Department disagrees that Sec.  106.6(d)(1) will change the way 
courts interpret the Constitution or Title IX. These types of clauses 
are routinely included in regulations to note similar issues, and we 
have no reason to believe including a saving clause such as Sec.  
106.6(d) would encourage courts to apply the Constitution differently 
or more broadly than they otherwise would. The Department believes that 
Sec.  106.6(d)(1) acts as a saving clause to ensure that institutions 
do not violate the First Amendment's requirements, but the scope and 
meaning of First Amendment rights and protections are not affected by 
these final regulations.
    The Department disagrees that these final regulations including 
Sec.  106.6(d)(1), unnecessarily and harmfully prohibit the Department 
from promulgating regulations under Title IX that are constitutionally 
permissible. Contrary to the commenter's assertions, these final 
regulations clarify that part 106 of title 34 of the Code of Federal 
Regulations in no way requires the restriction of rights that would 
otherwise be protected from government action by the First Amendment. 
The U.S. Constitution applies to the Department as a Federal government 
agency, and the Department cannot enforce Title IX (e.g., interpret 
Title IX and promulgate rules enforcing the purposes of Title IX) in a 
manner that requires restricting constitutional rights protected from 
government action by the First Amendment. These final regulations 
neither require nor prohibit a recipient from providing a trigger 
warning prior to a classroom discussion about sexual harassment 
including sexual assault; Sec.  106.6(d)(1) does assure students, 
employees (including teachers and professors), and recipients that 
ensuring non-discrimination on the basis of sex under Title IX does not 
require restricting rights of speech, expression, and academic freedom 
guaranteed by the First Amendment. Whether the recipient would like to 
provide such a trigger warning and offer alternate opportunities for 
those students fearing renewed trauma from participating in such a 
classroom discussion is within the recipient's discretion. However, 
nothing in Sec.  106.6(d) restricts the Department from issuing any 
rule effectuating the purpose of Title IX that the Department would 
otherwise be permitted to issue; in other words, with or without Sec.  
106.6(d), the Department as a Federal government agency is required to 
abide by the First Amendment, and would not be permitted to issue a 
rule that restricts constitutional rights, whether or not a saving 
clause such as Sec.  106.6(d) exists to remind recipients that Title IX 
enforcement never requires any recipient to restrict constitutional 
rights.
    Changes: None.

Section 106.6(d)(2) Due Process

    Comments: A number of commenters expressed general support for 
Sec.  106.6(d)(2) and the protection of due process of law. Commenters 
supported the provision because they asserted that there is confusion 
now as to how Title IX affects individual rights, and that this 
provision provides clarity. Commenters supported this provision in 
light of actions of educational institutions that commenters believed 
have violated the constitutional rights of students in Title IX 
proceedings; some commenters asserted that due process deprivations 
were caused by policies implemented under the withdrawn 2011 Dear 
Colleague Letter.
    Some commenters expressed confusion as to whether the saving 
clauses in Sec.  106.6(d) cover recipients that are not government 
actors.
    Commenters requested clarification of Sec.  106.6(d)(2), asserting 
that the Department must comply with Executive Order 13563, which calls 
for regulations to reduce uncertainty and be written in plain language.
    A number of commenters opposed Sec.  106.6(d)(2). Commenters 
opposed the saving clause, arguing that it is unnecessary. Other 
commenters opposed this provision because they argued that it 
inappropriately pits Title IX's civil rights mandate against the 
Constitution, when no such conflict exists. Other commenters opposed 
this provision, asserting that schools are not courts of law.
    Other commenters argued that Sec.  106.6(d)(2) could be seen by the 
courts as calling for the courts to give greater weight to the listed 
constitutional protections than courts may give without this provision.
    Other commenters opposed this provision stating that it would be 
burdensome on institutions.
    Discussion: The Department added Sec.  106.6(d)(2) to act as a 
saving clause. The Department included this provision to promote 
enforcement of Title IX's non-discrimination mandate consistent with 
constitutional protections.\1553\ Due to significant confusion 
regarding the intersection of individuals' rights under the U.S. 
Constitution with a recipient's obligations under Title IX, the 
Department believes that this provision will help clarify that nothing 
in regulations implementing Title IX requires a recipient to infringe 
upon any individual's rights protected under the Due Process Clauses of 
the U.S. Constitution.
---------------------------------------------------------------------------

    \1553\ 83 FR 61480.
---------------------------------------------------------------------------

    As noted previously, some commenters expressed confusion as to 
whether the saving clauses in Sec.  106.6(d) cover recipients that are 
not government actors. The Department reiterates that Title IX, 
including Sec.  106.6(d), applies to all recipients of Federal funding, 
including private actors. The language is intended to make clear that, 
under Title IX regulations, recipients--including private recipients--
are not obligated to choose between complying with Title IX and 
respecting constitutional rights. Section 106.6(d)(2) clarifies that no 
recipient, including a private recipient, is required to take actions 
constituting deprivation of rights secured by the Constitution that the 
Federal government could not take directly. The government may not 
compel private

[[Page 30420]]

actors to restrict conduct that the government itself could not 
constitutionally restrict.\1554\
---------------------------------------------------------------------------

    \1554\ Peterson v. City of Greenville, 373 U.S. 244 (1963); 
Truax v. Raich, 239 U.S. 33, 38 (1915).
---------------------------------------------------------------------------

    The Department believes it has complied with Executive Order 13563 
with respect to Sec.  106.6(d)(2).\1555\ We believe that this provision 
is clear, uses plain language, and is tailored to the objective of 
clarifying that nothing in these regulations requires a recipient to 
infringe upon any individual's rights protected under the Due Process 
Clauses of the Fifth or Fourteenth Amendments. We intend for Sec.  
106.6(d)(2) to reduce uncertainty about the interaction between these 
final regulations and recipients' due process obligations. The 
Department agrees with commenters who supported Sec.  106.6(d)(2) as 
necessary to protect the constitutional rights of complainants and 
respondents in Title IX proceedings. The Department also disagrees that 
Sec.  106.6(d)(2) pits Title IX's civil rights mandate against the 
Constitution; to the contrary, this provision helps clarify that there 
is no conflict between enforcement of Title IX and respect for 
constitutional rights.
---------------------------------------------------------------------------

    \1555\ 83 FR 61462, 61483-84.
---------------------------------------------------------------------------

    The Department disagrees that Sec.  106.6(d)(2) could be seen by 
the courts as calling for giving greater weight to the listed 
constitutional protections than courts may have otherwise given. These 
types of saving clauses are routinely included in regulations to note 
similar issues, and we have no reason to believe including one here 
would encourage courts to apply the Constitution differently or more 
broadly than they otherwise would. Nothing in these final regulations 
alters the meaning or scope of constitutional rights or protections, 
but rather acknowledges that whatever the meaning and scope of a 
constitutional right, that right never needs to be restricted to comply 
with Title IX regulations.
    We agree that schools are not courts of law; however, the Due 
Process Clauses of the Fifth and Fourteenth Amendments do not just 
apply in judicial proceedings. Constitutional protections such as the 
right to due process of law apply to the actions of governmental 
actors, including governmental decisions in administrative hearings 
which deprive individuals of liberty or property interests.\1556\ For 
example, when a State university imposes a serious disciplinary 
sanction, it must comply with the terms of the Due Process Clause of 
the Fourteenth Amendment.\1557\ For private institutions receiving 
Federal financial assistance, the Department cannot require such 
institutions to deprive persons of rights protected under the U.S. 
Constitution in order to comply with these final regulations 
implementing Title IX.\1558\
---------------------------------------------------------------------------

    \1556\ E.g., Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
    \1557\ Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 
179, 192 (1988).
    \1558\ Adickes v. S.H. Kress & Co., 398 U.S. 144, 170 (1970) 
(government is responsible for discriminatory act of private party 
when government, by its law, has compelled the act).
---------------------------------------------------------------------------

    Changes: None.

Section 106.6(d)(3) Other Constitutional Rights

    Comments: A number of commenters expressed support for Sec.  
106.6(d)(3). One commenter who opposed the NPRM in general agreed with 
Sec.  106.6(d)(3). Commenters supported Sec.  106.6(d)(3) due to their 
own experiences with Title IX procedures and adjudications, stating 
that such processes lacked basic due process protections. Several 
commenters supported Sec.  106.6(d)(3), asserting that 
constitutionally-guaranteed due process rights trump any guidance or 
requirements established under Title IX. Other commenters argued that 
the Department should add additional specific constitutional saving 
clauses, similar to Sec.  106.6(d)(1)-(3), to protect individual 
liberty from government overreach, such as Sixth Amendment and Seventh 
Amendment protections.
    Several commenters opposed Sec.  106.6(d)(3). Commenters opposed 
Sec.  106.6(d)(3) because they believed the provision is unnecessary. 
Some commenters opposed Sec.  106.6(d)(3) asserting it was inapplicable 
to private institutions. Commenters opposed this provision asserting it 
would be burdensome for recipients. Commenters opposed this provision 
arguing that the provision implies that there has been past fault by 
institutions depriving constitutional rights. Commenters opposed this 
provision arguing that it could be seen by courts as calling for the 
courts to give greater weight to constitutional protections than a 
court may otherwise give.
    Discussion: The purpose of Sec.  106.6(d)(3) is to ensure that 
regulations implementing Title IX promote the non-discrimination 
mandate of Title IX consistent with all constitutional rights and 
protections. To avoid confusion regarding the intersection of 
individuals' rights under the U.S. Constitution, and a recipient's 
obligations under Title IX, Sec.  106.6(d)(3) clarifies that nothing in 
regulations implementing Title IX requires a recipient to infringe upon 
any rights guaranteed by the U.S. Constitution. This provision also 
makes it clear that, under Title IX regulations, recipients--including 
private recipients--are not obligated by Title IX to restrict rights 
that the Federal government could not restrict directly. Consistent 
with Supreme Court case law, the government may not compel private 
actors to restrict conduct that the government itself could not 
constitutionally restrict.\1559\
---------------------------------------------------------------------------

    \1559\ Peterson v. City of Greenville, 373 U.S. 244 (1963); 
Truax v. Raich, 239 U.S. 33, 38 (1915).
---------------------------------------------------------------------------

    The Department agrees that constitutionally-guaranteed due process 
rights trump any guidance or requirements established by Title IX, and 
disagrees that Sec.  106.6(d)(3) may be interpreted by courts to give 
greater weight to constitutional protections than a court may otherwise 
give. Congress authorized and directed the Department to promulgate 
regulations to effectuate Title IX.\1560\ The Department, thus, has the 
authority to promulgate regulations that further Title IX's non-
discrimination mandate, though such regulations must not require 
restriction of constitutional rights. Section 106.6(d)(3) states that 
position. Nothing in the final regulations alters the meaning or scope 
of constitutional rights or protections. Section 106.6(d)(3) is in the 
nature of a saving clause, and such clauses are routinely included in 
regulations to note similar issues; we have no reason to believe 
including one here would encourage courts to apply the Constitution 
differently or more broadly than courts otherwise would.
---------------------------------------------------------------------------

    \1560\ 20 U.S.C. 1682.
---------------------------------------------------------------------------

    With respect to the suggestion to list additional constitutional 
rights specifically in Sec.  106.6(d), the Department believes the 
concerns raised by the commenters are already sufficiently addressed by 
this provision, which covers ``any other rights guaranteed against 
government action by the U.S. Constitution'' and by Sec.  106.6(d)(1)-
(2) which specifically refer to constitutional rights that most often 
intersect with Title IX enforcement--First Amendment rights, and the 
right to due process of law.
    The Department disagrees that this provision is unnecessary or 
burdensome. The Department's goal is to ensure that non-discrimination 
provisions are enforced in a manner that is consistent with the entire 
U.S. Constitution. Although the First Amendment and Due Process Clauses 
tend to be the most directly relevant provisions to these final 
regulations concerning responses to sexual harassment, the Department 
believes a

[[Page 30421]]

catch-all saving clause regarding constitutional rights is necessary 
and appropriate. In addition, emphasizing and clarifying that these 
final regulations do not require a recipient to restrict rights, should 
not pose a burden.
    We do not believe that inclusion of Sec.  106.6(d)(3) in these 
final regulations implies ``fault'' on the part of particular 
recipients or indicates a belief regarding the extent to which 
recipients may, or may not, have regarded Title IX obligations as 
necessitating restriction of constitutional rights, but we believe that 
including this provision will help ensure that constitutional rights 
are properly respected in all efforts to enforce Title IX.
    Changes: None.

Section 106.6(e) FERPA

Background
    These final regulations, including Sec.  106.45(b)(5)(vi) (giving 
the parties access to all evidence directly related to the allegations 
in the formal complaint) and Sec.  106.45(b)(5)(iv) (allowing the 
parties to bring an advisor of choice to all meetings in the Title IX 
proceeding), help protect a party's, including an employee-
respondent's, procedural due process rights under the Fifth and 
Fourteenth Amendments to the U.S. Constitution. Procedural due process 
requires notice and a meaningful opportunity to respond.\1561\ The 
Department is precluded from administering, enforcing, and interpreting 
statutes, including Title IX and FERPA, in a manner that would require 
a recipient to deny the parties, including employee-respondents, their 
constitutional right to due process because the Department, as an 
agency of the Federal government, is subject to the U.S. Constitution. 
The Department's position is consistent with the principle articulated 
in the Department's 2001 Guidance that the ``rights established under 
Title IX must be interpreted consistent with any federally guaranteed 
due process rights involved in a complaint proceeding.'' \1562\
---------------------------------------------------------------------------

    \1561\ Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (stating 
that the ``essence of due process is the requirement that `a person 
in jeopardy of serious loss (be given) notice of the case against 
him and opportunity to meet it''') (internal citations omitted).
    \1562\ 2001 Guidance at 22.
---------------------------------------------------------------------------

    The Department expressly stated in the 2001 Guidance that ``[FERPA] 
does not override federally protected due process rights of persons 
accused of sexual harassment'' in the context of public school 
employees or other recipients that are public entities, and the 2001 
Guidance will continue to constitute the Department's interpretation of 
the intersection of Title IX and FERPA even after these final 
regulations become effective.\1563\ The Department's NPRM addresses 
private schools and expressly states:
---------------------------------------------------------------------------

    \1563\ Id.

    We are proposing to add paragraph (d) to clarify that nothing in 
these regulations requires a recipient to infringe upon any 
individual's rights protected under the First Amendment or the Due 
Process Clauses, or [ ] any other rights guaranteed by the U.S. 
Constitution. The language also makes it clear that, under the Title 
IX regulations, recipients--including private recipients--are not 
obligated by Title IX to restrict speech or other behavior that the 
Federal government could not restrict directly. Consistent with 
Supreme Court case law, the government may not compel private actors 
to restrict conduct that the government itself could not 
constitutionally restrict. See e.g., Peterson v. City of Greenville, 
373 U.S. 244 (1963); Truax v. Raich, 239 U.S. 33, 38 (1915). Thus, 
recipients that are private entities are not required by Title IX or 
its regulations to restrict speech or other behavior that would be 
protected against restriction by governmental entities.\1564\
---------------------------------------------------------------------------

    \1564\ 83 FR 61480-81 (emphasis added).

    The Department acknowledged in the NPRM that it cannot interpret 
Title IX to compel a private school to deprive employee-respondents of 
their due process rights, specifically the opportunity to review the 
evidence that directly relates to the allegations against that employee 
and to bring an advisor to help defend against the allegations. 
Similarly, the Department cannot interpret FERPA to compel a private 
school to apply the Department's Title IX regulations in a manner that 
deprives parties, including any respondent-employees, of due process. 
In Peterson v. City of Greenville, the U.S. Supreme Court held that the 
City of Greenville through an ordinance could not compel a private 
restaurant to operate in a manner that treated patrons differently on 
the basis of race in violation of the Equal Protection Clause of the 
Fourteenth Amendment.\1565\ Similarly, in Truax v. Raich, the Supreme 
Court held that Arizona cannot use a State statute to compel private 
entities to employ a specific percentage of native-born Americans as 
employees in violation of the Equal Protection Clause of the Fourteenth 
Amendment.\1566\ Like the City of Greenville and the State of Arizona, 
the Department cannot compel private schools that apply FERPA and Title 
IX, as interpreted by the Department, to violate a party's due process 
rights, including an employee's due process rights.
---------------------------------------------------------------------------

    \1565\ 373 U.S. 244, 247-48 (1963).
    \1566\ 239 U.S. 33, 38 (1915).
---------------------------------------------------------------------------

    (The Department sometimes uses the terms ``alleged victim'' and 
``alleged perpetrator'' in responding to comments about the 
intersection between Title IX and FERPA because FERPA, e.g., 20 U.S.C. 
1232g(b)(6), and its implementing regulations, e.g., 34 CFR 
99.31(a)(13)-(a)(14) and 34 CFR 99.39, use these specific terms.)
Comments, Discussion, and Changes
    Comments: Some commenters commended the proposed rules for 
appropriately balancing Title IX protections with FERPA, suggesting 
that both are important laws but that in most cases, the proposed rules 
and FERPA can co-exist without conflict.
    Some commenters argued that nothing in FERPA prevents parties from 
accessing information or evidence that directly relates to their case, 
particularly if the evidence could potentially be used against them to 
establish responsibility for sexual harassment. Commenters suggested 
that one way to protect privacy might be to provide only a hard copy of 
relevant documents, or a hard copy and ongoing electronic access that 
was limited. Some commenters also stated that all parties should have a 
hard copy of the evidence and ongoing electronic access. Commenters 
asserted that the proposed rules protect the rights of students who 
attend school and will calm the fears of parents who are concerned 
about their children being falsely accused of sexual harassment. One 
commenter, anticipating criticism, argued that ``victim-centered'' 
approaches do not work in a context where both parties have a right to 
present their case, and where schools have a duty to fairly determine 
whether a party is responsible. Another commenter suggested that 
FERPA's provision allowing the production of student records in 
connection with a law enforcement action might also reduce tension 
between the proposed rules and FERPA.
    Commenters also noted that the proposed rules are good for 
providing predictability and certainty when a conflict between Title IX 
and FERPA does arise, which is what recipients need in order to comply 
with both. One student expressed appreciation that the proposed rules 
expressly recognized and considered FERPA in its provisions. Some 
commenters noted that it was appropriate to favor due process in cases 
where that principle conflicts with FERPA, since due process is a 
constitutional right, while FERPA is a Federal statute. Several 
commenters

[[Page 30422]]

suggested that the proposed rules would ensure justice for victims and 
protections for those falsely accused.
    Discussion: The Department appreciates the comments in support of 
its proposed regulations and agrees that a recipient may comply with 
both these final regulations and FERPA. The Department does not believe 
that the proposed or final regulations offer a ``complainant-centered'' 
(or ``victim-centered'') or ``respondent-centered'' approach. The 
Department's final regulations provide a fair, impartial process for 
both complainants and respondents.
    The Department acknowledges that a recipient may use, but is not 
required to use, a file sharing platform that restricts the parties and 
advisors from downloading or copying evidence. In the final 
regulations, the Department has removed the specific reference to such 
a file sharing platform to emphasize that using such a platform is 
discretionary and not mandatory.
    A recipient must provide both parties an equal opportunity to 
inspect and review any evidence obtained as part of the investigation 
that is directly related to the allegations raised in a formal 
complaint, as described in Sec.  106.45(b)(5)(vi). The Department also 
specifies in Sec.  106.45(b)(5)(vi) that the recipient must send to 
each party and the party's advisor, if any, the evidence subject to 
inspection and review in an electronic format. The Department neither 
requires nor prohibits a recipient from providing parties with a hard 
copy of the investigative report in Sec.  106.45(b)(5)(vii) or any 
evidence obtained as part of an investigation that is directly related 
to the allegations raised in a formal complaint as described in Sec.  
106.45(b)(5)(vi). To clarify the Department's position in this regard, 
the Department revised Sec.  106.45(b)(5)(vi)-(vii) to allow a 
recipient to provide a hard copy of the evidence and investigative 
report to the party and the party's advisor of choice, or to provide 
the evidence and investigative report in an electronic format. The 
Department discusses this revision in the ``Section 106.45(b)(5)(vi) 
Inspection and Review of Evidence Directly Related to the Allegations, 
and Directed Question 7'' subsection and the ``Section 
106.45(b)(5)(vii) An Investigative Report that Fairly Summarizes 
Relevant Evidence'' subsection of the ``Investigation'' subsection of 
the ``Section 106.45 Recipient's Response to Formal Complaints'' 
section of this preamble.
    The Department does not fully understand how the provision in FERPA 
allowing the production of student records in connection with a law 
enforcement action might also reduce tension between the proposed rules 
and FERPA. These final regulations do not directly implicate law 
enforcement, and it is not clear how these final regulations directly 
implicate or address any exemptions under FERPA that allow for the 
disclosure of personally identifiable information from an education 
record without consent in relation to a law enforcement action.
    The Department is not ``favoring'' due process over FERPA. As 
explained earlier in this section, the Department is bound by the U.S. 
Constitution, including the Due Process Clause in the Fifth and 
Fourteenth Amendment. The Department, thus, cannot administer Title IX 
or FERPA in a manner that deprives persons of due process of law.
    Changes: The Department revised Sec.  106.45(b)(5)(vi)-(vii) to 
allow a recipient to provide a hard copy of the evidence and 
investigative report to the party and the party's advisor of choice or 
to provide the evidence and investigative report in an electronic 
format.
    Comments: Many commenters thought that the proposed rules 
appropriately balanced student privacy with the need for students to 
obtain evidence during the Title IX grievance process. One commenter 
stated that the provisions of the proposed rules are necessary to 
ensure that respondents have the evidence that they need to defend 
themselves from false accusations, and that schools occasionally 
deprive respondents of relevant evidence under the guise of student 
privacy. Some commenters argued that because schools have had a 
negative track record in providing relevant evidence to respondents, it 
was important for the proposed rules to avoid giving schools too much 
flexibility in applying Title IX, which ensures that schools cannot 
abuse the process in order to disadvantage respondents. One commenter 
asserted that without the proposed rules, most parents could not in 
good conscience send their sons to college, given the possibility of 
being denied due process when defending against an accusation of sexual 
harassment.
    Discussion: The Department appreciates the commenters' support of 
its proposed regulations and agrees that the grievance process in Sec.  
106.45 for formal complaints of sexual harassment provides sufficient 
due process protections for both complainants and respondents.
    Changes: None.
    Comments: Many commenters suggested that there was no true conflict 
between FERPA and Title IX in terms of the requirements surrounding 
evidence production. According to the commenters, this is because there 
is nothing in FERPA that prevents the parties from gaining access to 
the evidence that directly relates to their case, and which may be used 
against them in the Title IX process. One commenter stated that FERPA 
includes provisions that relate to the disclosure of information 
related to a sexual assault allegation, and the commenter cited a 
provision that specifically allows schools to disclose to the alleged 
victim of any crime of violence or rape and other sexual assaults, the 
final results of any disciplinary proceedings conducted by the 
institution against the alleged perpetrator of the offense.\1567\ This 
commenter stated that FERPA's limits on redisclosure of information do 
not apply to information that institutions are required to disclose 
under the Clery Act.\1568\ The commenter also stated that institutions 
may not require a complainant to abide by a nondisclosure agreement in 
writing or otherwise in a way that would prevent the re-disclosure of 
this information.
---------------------------------------------------------------------------

    \1567\ 20 U.S.C. 1232g(b)(6).
    \1568\ 34 CFR 99.33(c).
---------------------------------------------------------------------------

    Discussion: The Department agrees that there is no inherent 
conflict between these final regulations implementing Title IX, and 
FERPA and its implementing regulations with respect to the Title IX 
requirements concerning evidence production. The Department 
acknowledges that provisions in FERPA, e.g. 20 U.S.C. 1232g(b)(6), 
address the conditions permitting the disclosure, without prior written 
consent, to an alleged victim of a crime of violence or a nonforcible 
sex offense, among others, of the final results of any disciplinary 
proceeding conducted by an institution against the alleged perpetrator 
of such crime or offense with respect to such crime or offense.\1569\ 
The Department also acknowledges Sec.  99.33(c), concerning the 
inapplicability of the general limitations in FERPA on the redisclosure 
of personally identifiable information contained in education records 
that the Clery Act and its implementing regulations require to be 
disclosed.
---------------------------------------------------------------------------

    \1569\ The Department uses the terms ``alleged victim'' and 
``alleged perpetrator'' in this section because these terms are in 
FERPA, 20 U.S.C. 1232g(b)(6).
---------------------------------------------------------------------------

    The Department does not interpret Title IX as either requiring 
recipients to, or prohibiting recipients from, using a non-disclosure 
agreement, as long as such non-disclosure agreement does not restrict 
the ability of either party to discuss the allegations under

[[Page 30423]]

investigation or to gather and present relevant evidence under Sec.  
106.45(b)(5)(iii). Any non-disclosure agreement, however, must comply 
with all applicable laws.
    Changes: None.
    Comments: Some commenters suggested that concerns regarding the 
private information of complainants were either overstated or 
outweighed by the need to reach a fair conclusion in the Title IX 
process. One commenter stated that there is no way to provide adequate 
due process while still avoiding the discomfort complainants may feel 
having to review the investigative report that contains summaries of 
traumatic incidents which include private details about the 
complainant. This commenter suggested that while recipients may be 
allowed to redact highly sensitive information, or threaten parties 
with punitive action for publicly disclosing private information in the 
investigative report or evidence collected by the investigator, both 
parties need to be able to review the evidence and the investigative 
report. The commenter believed that exchange of evidence, and reviewing 
the investigative report, is necessary to provide due process for both 
parties.
    Discussion: The Department appreciates the comments in support of 
its proposed regulations. The Department acknowledges that sharing 
information may be uncomfortable and that sharing such information in a 
grievance process under Sec.  106.45 is necessary to provide adequate 
due process to both parties. Each party should be able inspect and 
review any evidence obtained as part of the investigation that is 
directly related to the allegations raised in a formal complaint, as 
this evidence may be used to support or challenge the allegations in a 
formal complaint.
    Changes: None.
    Comments: Some commenters opposed most of the proposed rules but 
stated their appreciation that the proposed rules acknowledged FERPA 
and that schools had a duty to comply with FERPA to the extent 
compliance was consistent with Title IX. One commenter stated the 
proposed rules were workable so long as a recipient itself has sole 
discretion to determine what evidence is directly related to sexual 
harassment allegations. The commenter suggested that any process where 
OCR second guesses a recipient's determination as to whether documents 
are directly related to the allegations raised in a formal complaint 
will significantly impair a recipient's ability to provide a prompt and 
equitable resolution and will effectively turn disputes among the 
recipient and the parties about evidence into Federal matters. Other 
commenters supported the proposed rule, noting that even in cases of 
private medical or behavioral information, if that information is 
relevant to an allegation of sexual harassment, then the party needing 
access to the records should have it.
    Discussion: The Department appreciates the comments in support of 
these final regulations. A recipient has some discretion to determine 
whether evidence obtained as part of an investigation is directly 
related to allegations raised in a formal complaint as described in 
Sec.  106.45(b)(5)(vi), and the Department is required to enforce both 
FERPA and Title IX. The Department previously noted that the ``directly 
related to'' requirement in Sec.  106.45(b)(vi) aligns with FERPA. For 
example, the regulations implementing FERPA define education records as 
records that are ``directly related to a student'' pursuant to Sec.  
99.3. Accordingly, the Department in enforcing both FERPA and Title IX 
is well positioned to determine whether records constitute education 
records and also whether records are directly related to the 
allegations in a formal complaint. The Department has a responsibility 
to administer both FERPA and Title IX and cannot shirk its 
responsibility. If a party files a complaint that the recipient did not 
provide the party with an equal opportunity to inspect and review any 
evidence obtained as part of the investigation that is directly related 
to the allegations raised in a formal complaint, then the Department 
will investigate and must determine whether the recipient complied with 
Sec.  106.45(b)(5)(vi).
    In the final regulations, the Department has clarified in Sec.  
106.45(b)(5)(i) that a recipient cannot access, consider, disclose, or 
otherwise use a party's records that are made or maintained by a 
physician, psychiatrist, psychologist, or other recognized professional 
or paraprofessional acting in the professional's or paraprofessional's 
capacity, or assisting in that capacity, and which are made and 
maintained, in connection with provision of treatment to the party, 
unless the recipient obtains that party's voluntary, written consent to 
do so for the grievance process under Sec.  106.45(b).\1570\ This 
provision prevents the recipient from accessing, considering, 
disclosing, or otherwise using such records without the party's 
knowledge for a grievance process under Sec.  106.45(b). If the party 
would like the recipient to access, consider, disclose, or otherwise 
use such records in a grievance process under Sec.  106.45(b), then the 
party must give the recipient voluntary, written consent to do so. If 
the party is not an ``eligible student,'' as defined in 34 CFR 99.3, 
then the recipient must obtain the voluntary, written consent of a 
``parent,'' as defined in 34 CFR 99.3. Absent such voluntary, written 
consent, a recipient may not access, consider, disclose, or otherwise 
use such records in a grievance process under Sec.  106.45(b). If a 
party provides such voluntary, written consent and if such records are 
directly related to the allegations raised in a formal complaint, then 
the recipient must provide both parties an equal opportunity to inspect 
and review the records pursuant to Sec.  106.45(b)(5)(vi).
---------------------------------------------------------------------------

    \1570\ While the Department based this regulatory provision on 
the exemption for treatment records in the definition of the term 
``education records,'' as set forth in FERPA at 20 U.S.C. 
1232g(a)(4)(B)(iv), we made two minor modifications to the FERPA 
exemption to better align the provision in these final regulations 
with the purpose of protecting the privacy of such treatment records 
in a grievance process under Sec.  106.45, rather than the purpose 
of the exemption for treatment records in FERPA, which is to 
disallow college students from being able ``directly to inspect'' 
such treatment records, although allowing college students to have 
``a doctor or other professional of their choice inspect their 
records.'' ``Joint Statement in Explanation of the Buckley/Pell 
Amendment [to FERPA],'' 120 Cong. Rec. 39858, 39862 (Dec. 13, 1974). 
For this reason, we removed the limitation in the FERPA definition 
of treatment records narrowing the applicability of the exemption to 
students who are 18 years of age or older or in attendance at an 
institution of postsecondary education because this provision should 
apply to any party in a grievance process under Sec.  106.45, 
regardless of that party's age. We also revised the phrase used in 
the FERPA exemption, ``made, maintained, or used only in connection 
with the provision of treatment to the student,'' to ``made and 
maintained in connection with the provision of treatment to the 
party'' so that this provision will apply where a recipient has the 
discretion under FERPA to use treatment records for other than 
treatment purposes, such as billing or litigation purposes. Thus, 
under these final regulations a recipient cannot access, consider, 
disclose, or otherwise use a party's records that are made or 
maintained by a physician, psychiatrist, psychologist, or other 
recognized professional or paraprofessional acting in the 
professional's or paraprofessional's capacity, or assisting in that 
capacity, and which are made and maintained in connection with the 
provision of treatment to the party, unless the recipient obtains 
that party's voluntary, written consent to do so for a grievance 
process under Sec.  106.45. Also, if the party is not an ``eligible 
student,'' as defined in 34 CFR 99.3 (FERPA regulations), then the 
recipient must obtain the voluntary, written consent of a 
``parent,'' as defined in 34 CFR 99.3.
---------------------------------------------------------------------------

    Changes: The Department clarified in Sec.  106.45(b)(5)(i) that a 
recipient cannot access, consider, disclose, or otherwise use a party's 
records that are made or maintained by a physician, psychiatrist, 
psychologist, or other recognized professional or paraprofessional 
acting in the professional's or

[[Page 30424]]

paraprofessional's capacity, or assisting in that capacity, and which 
are made and maintained in connection with the provision of treatment 
to the party, unless the recipient obtains that party's voluntary, 
written consent. If the party is not an ``eligible student,'' as 
defined in 34 CFR 99.3, then the recipient must obtain the voluntary, 
written consent of a ``parent,'' as defined in 34 CFR 99.3.
    Comments: One commenter cautioned the Department that the proposed 
rules would not garner as many supportive comments as critical 
comments, but that the Department should pay more attention to reason 
and logic, as opposed to sheer numbers. The commenter argued that 
opponents of the proposed rules are better funded, and that there is 
less of a stigma to openly criticizing the Department than there is in 
saying that one was accused of sexual harassment, even if wrongly 
accused, and openly supporting the Department's proposed rules. Another 
commenter argued that depriving respondents of relevant evidence only 
created more victims, not fewer.
    Discussion: The Department appreciates the commenters' 
perspectives.
    Changes: None.
    Comments: Several commenters opposed the requirement in Sec.  
106.45(b)(5)(v) (written notice of investigative interviews, meetings, 
and hearings) because they stated it generally conflicts with FERPA. 
One commenter suggested adding a FERPA compliance clause to Sec.  
106.45(b)(5)(v) due to concerns about student privacy.
    One commenter argued specifically that the requirement in Sec.  
106.45(b)(5)(v) that recipients disclose the identities of all the 
parties' conflicts with FERPA. One commenter specifically argued that 
requiring a recipient to disclose all sanctions imposed on the 
respondent conflicts with the school's responsibilities under FERPA. 
Several commenters specifically suggested that the Department remove 
from the documentation of the recipient's response to a Title IX 
complaint any requirement to include information regarding remedies and 
supportive measures accessed by a complainant who is a student.
    Several commenters stated that the parties should not be informed 
of the remedies given to the complainant, or to the disciplinary 
sanctions imposed on the respondent, in cases where the allegation 
involves assault, stalking, dating violence, or other violent crimes. 
Not only does disclosure of these items violate FERPA, but it would be 
troubling, for instance, to inform a respondent that after they were 
found responsible, the complainant was given remedies like moving to 
other classes, counseling, and so on. Commenters also asserted that the 
respondent who is found responsible should not have any knowledge about 
what safety measures the school is taking to protect the complainant, 
since those very measures will be undermined if the respondent learns 
of them. In support of these arguments, some commenters cited the Clery 
Act, arguing that it requires less than the proposed rule, and that the 
final regulations should map Clery specifically. These commenters 
asserted that when such results become final, Sec.  668.46(k)(2)(v) of 
the Clery Act regulations further clarify that the ``result'' must 
include any sanctions and rationale for results and sanction, 
notwithstanding FERPA.
    Discussion: The Department disagrees that Sec.  106.45(b)(5)(v) 
inherently or directly conflicts with FERPA. A recipient should 
interpret Title IX and FERPA in a manner to avoid any conflicts. To the 
extent that there may be rare and unusual circumstances, where a true 
conflict between Title IX and FERPA exists, the Department includes a 
provision in Sec.  106.6(e) to expressly state that the obligation to 
comply with these final regulations under Title IX is not obviated or 
alleviated by the FERPA statute or regulations. Section 106.45(b)(5)(v) 
requires recipients to provide to the party whose participation is 
invited or expected written notice of all hearings, investigative 
interviews, or other meetings with a party, with sufficient time for 
the party to prepare to participate in the proceeding. The Department 
notes that this provision is similar to the provision in the 
Department's regulations, implementing the Clery Act, which requires 
timely notice of meetings at which the accuser or accused, or both, may 
be present and provides timely and equal access to the accuser, the 
accused, and appropriate officials to any information that will be used 
during informal and formal disciplinary meetings and hearings under 
Sec.  668.46(k)(3)(1)(B). The Department has not interpreted its 
regulations, implementing the Clery Act, to violate FERPA and will not 
interpret similar regulations in these final regulations to violate 
FERPA.
    There is no need to add a FERPA compliance clause in this 
particular section, as a recipient is always required to comply with 
all applicable laws. Adding a FERPA compliance clause would contradict 
the General Education Provisions Act (GEPA), 20 U.S.C. 1221(d), which 
is reflected in Sec.  106.6(e). GEPA provides in relevant part: 
``Nothing in this chapter shall be construed to affect the 
applicability of title VI of the Civil Rights Act of 1964, title IX of 
the Education Amendments of 1972, title V of the Rehabilitation Act of 
1973, the Age Discrimination Act, or other statutes prohibiting 
discrimination, to any applicable program.'' \1571\ Since at least 
2001, the Department has interpreted ``this provision to mean that 
FERPA continues to apply in the context of Title IX enforcement, but if 
there is a direct conflict between the requirements of FERPA and the 
requirements of Title IX, such that enforcement of FERPA would 
interfere with the primary purpose of Title IX to eliminate sex-based 
discrimination in schools, the requirements of Title IX override any 
conflicting FERPA provisions.'' \1572\ Section 106.6(e) reflects the 
Department's longstanding interpretation of GEPA and provides that the 
``obligation to comply with this part is not obviated or alleviated by 
the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 
99.''
---------------------------------------------------------------------------

    \1571\ 20 U.S.C. 1221(d).
    \1572\ 2001 Guidance at vii.
---------------------------------------------------------------------------

    A party such as a complainant or respondent must know who the other 
parties in a formal complaint are in order to support or challenge the 
allegations in the formal complaint. With respect to recipients that 
are State actors, constitutional due process would require as much. As 
previously stated, the Department interprets these final regulations in 
a manner that will not require a recipient to violate a person's 
constitutional due process rights, whether the recipient is private or 
public.
    Additionally, FERPA and its implementing regulations define the 
term ``education records'' as meaning, with certain exceptions, records 
that are directly related to a student and maintained by an educational 
agency or institution, or by a party acting for the agency or 
institution.\1573\ The Department previously stated: ``Under this 
definition, a parent (or eligible student) has a right to inspect and 
review any witness statement that is directly related to the student, 
even if that statement contains information that is also directly 
related to another student, if the information cannot be segregated and 
redacted without destroying its meaning.'' \1574\ The Department made 
this statement in response to comments regarding

[[Page 30425]]

impairing due process in student discipline cases in its notice-and-
comment rulemaking to promulgate regulations to implement FERPA.\1575\ 
Written notices under Sec.  106.45(b)(5)(v) may pertain to students who 
are complainants or respondents, in which case they would need to know 
who is being interviewed as a witness in an investigation of the formal 
complaint of harassment.
---------------------------------------------------------------------------

    \1573\ 20 U.S.C. 1232g(a)(4); 34 CFR 99.3.
    \1574\ U.S. Dep't. of Education, Office of Planning, Evaluation, 
and Policy Development, Final Regulations, Family Educational Rights 
and Privacy, 73 FR 74806, 74832-33 (Dec. 9, 2008).
    \1575\ Id.
---------------------------------------------------------------------------

    FERPA, 20 U.S.C. 1232g(b)(6), and its implementing regulations, 34 
CFR 99.31(a)(13)-(a)(14) and 34 CFR 99.39, address the conditions 
permitting the disclosure, without prior written consent, to an alleged 
victim of a crime of violence or a nonforcible sex offense, among 
others, of the final results of any disciplinary proceeding conducted 
by an institution against the alleged perpetrator of such crime or 
offense with respect to such crime or offense. Similarly, the Clery 
Act, 20 U.S.C. 1092(g)(8)(B)(ii), and its implementing regulations, 34 
CFR 668.46(k)(3)(iv), require an institution to provide the result of a 
proceeding, including any sanctions imposed by the institution, to both 
parties. The Department believes that both parties should receive the 
same information about the result as to each allegation, including a 
determination regarding responsibility, the reasons for the 
determination, any sanctions the recipient imposes on the respondent, 
and whether remedies will be provided by the recipient to the 
complainant, under Sec.  106.45(b)(7)(ii)(E) as revised in the final 
regulations.\1576\ The Department believes that the result as to each 
allegation in a formal complaint of sexual harassment concerns both 
parties and clarifies in the final regulations that the result includes 
both sanctions and whether remedies will be provided. The result of 
each determination, including listing any sanctions and stating whether 
remedies will be provided, should help ensure that no person is 
excluded from participation in, denied the benefits of, or subjected to 
discrimination under any education program or activity receiving 
Federal financial assistance without unnecessarily disclosing to the 
respondent the details of remedies provided to the complainant. The 
details of remedies provided to the complainant remain part of the 
complainant's education record and not the respondent's education 
record, unless the remedy also imposes requirements on the respondent. 
We acknowledge that sanctions may at times overlap with remedies. For 
example, the recipient may impose a unilateral no-contact order on the 
respondent as part of a sanction that also may constitute a remedy. 
Under the final regulations, the written determination should list the 
one-way no-contact order as a sanction against the respondent and state 
that the recipient will provide remedies to the complainant. Thus, even 
where the no-contact order constitutes both a sanction and a remedy, 
the written determination would only list the measure insofar as it 
constitutes a sanction, preserving as much confidentiality as possible 
around the particular nature of a complainant's remedies. By way of 
further example, if a recipient wishes to change the housing 
arrangement of the complainant as part of a remedy, the written 
determination should simply state that remedies will be provided to the 
complainant; the complainant would then communicate separately with the 
Title IX Coordinator to discuss remedies,\1577\ and the decision to 
change the complainant's housing arrangement as part of a remedy would 
not have been disclosed to the respondent in the written determination. 
That remedy (which does not directly affect the respondent) must not be 
disclosed to the respondent.
---------------------------------------------------------------------------

    \1576\ The Department's position is consistent with the 2001 
Guidance, that FERPA does not conflict with the Title IX requirement 
``that the school notify the harassed student of the outcome of its 
investigation, i.e., whether or not harassment was found to have 
occurred, because this information directly relates to the victim.'' 
2001 Guidance at vii. The Department, however, departs from the 2001 
Guidance inasmuch as that guidance document stated, ``FERPA 
generally prevents a school from disclosing to a student who 
complained of harassment information about the sanction, or 
discipline imposed upon a student who was found to have engaged in 
that harassment.'' Id. The Department acknowledged in the 2001 
Guidance that exceptions ``include the case of a sanction that 
directly relates to the person who was harassed (e.g., an order that 
the harasser stay away from the harassed student), or sanctions 
related to offenses for which there is a statutory exception, such 
as crimes of violence or certain sex offenses in postsecondary 
institutions.'' Id. at fn. 3. Through these final regulations, the 
Department takes the position that sanctions always directly impact 
the victim, as to sanctions imposed for any conduct described in 
Sec.  106.30 as ``sexual harassment,'' irrespective of whether the 
sanction is for a crime of violence or certain sex offenses, for 
quid pro quo sexual harassment, or for the Davis definition of 
sexual harassment in Sec.  106.30. Irrespective of whether the 
sexual harassment rises to the level of a crime of violence, the 
sanction directly relates to the victim who should know what to 
expect after the conclusion of the grievance process. For example, 
the victim should know whether the perpetrator was expelled, or 
whether the perpetrator was suspended for a period of time, as such 
information will inevitably impact the victim. The sanction 
represents part of the recipient's response to addressing sexual 
harassment, and the victim should know how the sexual harassment 
which the victim suffered, was addressed.
    \1577\ To clarify this, the final regulations additionally 
revise Sec.  106.45(b)(7)(iv) to state that the Title IX Coordinator 
is responsible for the effective implementation of remedies. Thus, 
where a written determination states that remedies will be provided, 
the complainant may contact the Title IX Coordinator to discuss the 
nature and implementation of such remedies.
---------------------------------------------------------------------------

    Changes: The Department revised Sec.  106.45(b)(7)(ii)(E) to state 
that the written determination must include any sanctions the recipient 
imposes on the respondent, and whether remedies designed to restore or 
preserve equal access to the recipient's education program or activity 
will be provided by the recipient to the complainant.
    Comments: Commenters objected to the proposed rule, stating that 
Title IX should not control over FERPA, but vice versa--FERPA should 
take precedence over Title IX in cases of a conflict. Some commenters 
suggested that the 2001 Guidance more effectively handled these types 
of FERPA issues, and better avoided blanket statements about whether 
FERPA ought to be superseded by Title IX. One suggested an express 
statement that Title IX overrides FERPA, arguing that the 2001 Guidance 
states as much unambiguously. Commenters stated that the proposed rules 
exacerbate the conflict between FERPA and Title IX. Several commenters 
stated that the final regulations ought to specify that complainants 
have the right to keep their education records private. Some commenters 
even stated that the Department lacked the authority to tell schools 
that Title IX controls over FEPRA, and that schools have an independent 
duty to comply with FERPA. Some commenters suggested removing any 
mention of FERPA, since it might confuse recipients to mention it, but 
say that Title IX supersedes FERPA in the case of a conflict. Other 
commenters asserted it might be confusing because FERPA does not apply 
to the types of information likely to be shared under the grievance 
procedures. These commenters contended that the proposed rules were not 
``trauma-informed,'' inasmuch as they are overly focused on addressing 
the minor problem of false accusations, as opposed to remedying sexual 
harassment.
    Many commenters argued that FERPA does not authorize one student--
or an employee, for that matter--to review the education records of a 
student merely because the student complains of sexual harassment. One 
commenter expressed concern that the proposed rules would require the 
sharing of student records with employees who would otherwise not be 
authorized to view records without the student's consent.
    Some commenters suggested that the preamble's justification for 
records that relate to a student being construed as an exception to 
FERPA is wrong.

[[Page 30426]]

Commenters contended that not every document that relates to a 
complainant or to an incident relates to the respondent. Schools, if 
they comply with the rule, asserted commenters, will be held 
accountable for their FERPA violations. Commenters stated the 
Department should reconsider whether the parties ought to be entitled 
to physical, mental, and academic performance records of other 
students.
    Other commenters argued that the proposed rules would force schools 
to violate State law, for which they also have an independent legal 
duty to comply. For instance, commenters asserted that the Department 
cannot require schools to provide recordings that were obtained in 
violation of a State's two-party consent law for recordings. Commenters 
cited Florida and Washington law for these arguments. They argued that 
Washington State protects IEPs (individualized education plans) and 
Section 504 plans from production, but the proposed regulations would 
likely allow the production of these records in some cases. One 
commenter asserted that Florida law protects records related to sexual 
harassment until a finding is made, so the proposed rules will force 
schools to violate Florida law. A few commenters proposed that the 
Department should indicate whether it thinks that Title IX reports and 
files should be subject to a public records request, and if so, the 
scope and extent of such requests.
    Discussion: The Department disagrees that Sec.  106.45(b)(5)(v) 
inherently or directly conflicts with FERPA. A recipient should 
interpret Title IX and FERPA in a manner to avoid any conflicts. To the 
extent that there may be unusual circumstances, where a true conflict 
between Title IX and FERPA may exist (such as a student's formal 
complaint against an employee), the Department includes a provision in 
Sec.  106.6(e) to expressly state that the obligation to comply with 
these final regulations under Title IX is not obviated or alleviated by 
the FERPA statute or regulations. In addressing conflicts between FERPA 
and Title IX, the Department in the Preamble of the 2001 Guidance 
states:

    In 1994, as part of the Improving America's Schools Act, 
Congress amended the General Education Provisions Act (GEPA)--of 
which FERPA is a part--to state that nothing in GEPA ``shall be 
construed to affect the applicability of . . . title IX of the 
Education Amendments of 1972 . . . .'' The Department interprets 
this provision to mean that FERPA continues to apply in the context 
of Title IX enforcement, but if there is a direct conflict between 
requirements of FERPA and requirements of Title IX, such that 
enforcement of FERPA would interfere with the primary purpose of 
Title IX to eliminate sex-based discrimination in schools, the 
requirements of Title IX override any conflicting FERPA 
provisions.\1578\
---------------------------------------------------------------------------

    \1578\ 2001 Guidance at vii.

    The General Education Provisions Act (GEPA), of which FERPA is a 
part, states: ``Nothing in this chapter shall be construed to affect 
the applicability of title VI of the Civil Rights Act of 1964, Title IX 
of the Education Amendments of 1972, title V of the Rehabilitation Act 
of 1973, the Age Discrimination Act, or other statutes prohibiting 
discrimination, to any applicable program.'' \1579\ The legislative 
history underlying this provision in GEPA demonstrates that Congress 
did not intend for GEPA to limit the implementation or enforcement of 
the Civil Rights Act of 1964. There is not much legislative history 
with respect to the 1994 amendment to GEPA,\1580\ adding Title IX, but 
the legislative history with respect to the 1974 amendment to 
GEPA,\1581\ concerning Title VI of the Civil Rights Act, is 
instructive. The legislative history reveals the Senate was concerned 
that certain provisions in GEPA may limit the Civil Rights Act of 
1964.\1582\ Consequently, the Senate specifically stated that ``in 
order to make clear that the provisions in the [GEPA] do not conflict 
with the Civil Rights Act of 1964, subparagraph (B) expressly states 
that such Civil Rights Act is not an applicable statute and therefore 
subject to limitations on interpretations of such a statute which may 
occur in [GEPA].'' \1583\ The Senate's proposed amendment was slightly 
revised in the conference committee, but there was no mention of any 
change in purpose or scope. Specifically, the Conference Report from 
the House notes that the final amendments to GEPA include language that 
expressly addresses the conflict between GEPA and Title VI.\1584\ This 
Conference Report provides in relevant part:
---------------------------------------------------------------------------

    \1579\ 20 U.S.C. 1221(d).
    \1580\ The 1994 amendment to GEPA was part of Sec.  211, title 
II of Improving America's Schools Act, Public Law 103-382, 108 Stat 
3518.
    \1581\ The 1974 amendment to GEPA was part of Sec.  505(a)(1), 
title V of the Education Amendments of 1974, Public Law 93-380, 88 
Stat 484.
    \1582\ S. Rep. No. 93-763, at 233 (1974).
    \1583\ Id.
    \1584\ H.R. Rep. No. 93-1211, at 177 (1974).

    The Senate amendment, but not the House bill, clarifies that for 
the purposes of the General Education Provisions Act, the Civil 
Rights Act shall not be considered an applicable statute, but shall 
continue to have full force and effect over education programs. . . 
. The conference substitute contains these provisions of the Senate 
amendment, except that the provision relating to the Civil Rights 
Act of 1964 states that nothing in the General Education Provisions 
Act shall be construed to affect the applicability of such [Civil 
Rights Act of 1964] to any program subject to the provisions of the 
General Education Provisions Act.\1585\
---------------------------------------------------------------------------

    \1585\ Id.

    The legislative history thus supports the Department's 2001 
interpretation that Congress intended the Civil Rights Act of 1964 to 
override GEPA, which includes FERPA, if there was a direct conflict 
between the two statutes. When Congress amended GEPA to also include 
Title IX in the same section and context as Title VI, Congress 
presumably intended that Title IX, like Title VI, override GEPA, 
including FERPA, if there was a direct conflict. The Department's 
position is consistent with its 2001 Guidance, and the Department is 
not departing from this position.
    The Department has the authority to enforce both Title IX under 20 
U.S.C. 1681 and 34 CFR part 106 and FERPA under 20 U.S.C. 1232g and 34 
CFR part 99. Whether FERPA applies to a particular record is a fact-
specific determination that FERPA and its implementing regulations 
address, not these final regulations.
    The Department disagrees that the proposed regulations are not 
``trauma-informed'' insofar as the Department recognizes and 
acknowledges the traumatic impact of sexual harassment and aims to hold 
recipients accountable for legally binding obligations throughout these 
final regulations in part because the experience of sexual harassment 
can traumatize victims in a way that jeopardizes the victim's equal 
access to education. The Department disagrees that these final 
regulations are overly focused on addressing false allegations instead 
of remedying sexual harassment. The Department notes that under Sec.  
106.44(a), the Title IX Coordinator must promptly contact the 
complainant to discuss the availability of supportive measures as 
defined in Sec.  106.30, consider the complainant's wishes with respect 
to supportive measures, inform the complainant of the availability of 
supportive measures with or without the filing of a formal complaint, 
and explain to the complainant the process for filing a formal 
complaint. Accordingly, complainants have more control over the process 
to address their allegations of sexual harassment.
    As previously explained, FERPA and its implementing regulations 
define the term ``education records'' as meaning,

[[Page 30427]]

with certain exceptions, records that are directly related to a student 
and maintained by an educational agency or institution, or by a party 
acting for the agency or institution.\1586\ The Department previously 
stated: ``Under this definition, a parent (or eligible student) has a 
right to inspect and review any witness statement that is directly 
related to the student, even if that statement contains information 
that is also directly related to another student, if the information 
cannot be segregated and redacted without destroying its meaning.'' 
\1587\ The Department's statement was made in response to a comment 
about FERPA impairing due process in student disciplinary proceedings. 
The Department does not think that evidence obtained as part of an 
investigation pursuant to these final regulations that is directly 
related to the allegations raised in a formal complaint can be 
segregated and redacted because the evidence directly relates to 
allegations by a complainant against a respondent and, thus, 
constitutes an education record of both the complainant and a 
respondent. A formal complaint that raises allegations against a 
student-respondent is directly related to that student. The Department 
is bound by the U.S. Constitution and must interpret Title IX and FERPA 
in a manner that does not violate a person's due process rights, 
including notice and an opportunity to respond. If a complainant or 
respondent provides sensitive records such as medical records as part 
of an investigation, then the parties must have an equal opportunity to 
inspect and review information that constitutes evidence directly 
related to the allegations raised in a formal complaint. If some of the 
information in the medical records is not directly related to the 
allegations raised in a formal complaint, then these final regulations 
do not require a recipient to share the information that is not 
directly related to the allegations raised in the formal complaint. As 
previously explained, the Department has clarified in Sec.  
106.45(b)(5)(i) that a recipient cannot access, consider, disclose, or 
otherwise use a party's records that are made or maintained by a 
physician, psychiatrist, psychologist, or other recognized professional 
or paraprofessional acting in the professional's or paraprofessional's 
capacity, or assisting in that capacity, and which are made and 
maintained in connection with provision of treatment to the party, 
unless the recipient obtains that party's voluntary, written consent to 
do so for the grievance process under Sec.  106.45(b). Accordingly, a 
recipient would not have access to a party's medical records unless 
that party gave the recipient voluntary, written consent to do so for a 
grievance process under Sec.  106.45(b). If the party is not an 
``eligible student,'' as defined in 34 CFR 99.3, then the recipient 
must obtain the voluntary, written consent of a ``parent,'' as defined 
in 34 CFR 99.3.
---------------------------------------------------------------------------

    \1586\ 20 U.S.C. 1232g(a)(4); 34 CFR 99.3.
    \1587\ 73 FR 74806, 74832-33 (Dec. 9, 2008).
---------------------------------------------------------------------------

    The Department is not persuaded that these final regulations 
require a recipient to violate State law. If a recipient knows that a 
recording is unlawfully created under State law, then the recipient 
should not share a copy of such unlawful recording. The Department is 
not requiring a recipient to disseminate any evidence that was 
illegally or unlawfully obtained. Similarly, the Florida laws that the 
commenter cites, Florida Statutes Sec. Sec.  119.071(2)(g)(1) and 
1012.31(3)(a)(1) concern public disclosure of records under sunshine 
laws, and the Department is not requiring that a recipient widely 
disseminate public records upon request. The Department's requirement 
concerns disclosure solely to the other party to provide sufficient 
notice and an opportunity to respond. Similarly, the Department takes 
no position in these final regulations on whether records generated 
during a Title IX grievance process must, or should, become subject to 
disclosure under State sunshine laws. The Department also is not 
regulating on FERPA in this rulemaking and takes no position in this 
rulemaking as to FERPA's potential restrictions on the nonconsensual 
disclosure of student's education records in the context of sunshine 
law. Sunshine laws vary among states. Additionally, the manner in which 
a request under State sunshine laws is handled depends on the unique 
context and circumstances of the particular request. A recipient also 
would not be required to release an IEP or Section 504 plan that is in 
the recipient's possession. A recipient is required to provide any 
evidence ``obtained as part of the investigation that is directly 
related to the allegations raised in a formal complaint'' under Sec.  
106.45(b)(5)(vi); however, the final regulations revise Sec.  
106.45(b)(5)(i) to restrict a recipient from accessing, considering, 
disclosing, or otherwise using a party's records that are made or 
maintained by a physician, psychiatrist, psychologist, or other 
recognized professional or paraprofessional acting in the 
professional's or paraprofessional's capacity, or assisting in that 
capacity, and which are made and maintained in connection with 
provision of treatment to the party, unless the recipient obtains that 
party's voluntary, written consent to do so for a grievance process 
under Sec.  106.45(b). If the party is not an ``eligible student,'' as 
defined in 34 CFR 99.3, then the recipient must obtain the voluntary, 
written consent of a ``parent,'' as defined in 34 CFR 99.3. When a 
party offers an IEP or Section 504 plan as part of the evidence that a 
recipient should consider, or has granted the recipient consent to use 
those records in a Title IX grievance process, then the other party 
should be able to inspect and review this evidence, if that evidence is 
directly related to the allegations raised in a formal complaint.
    Changes: None.
    Comments: Several commenters argued that the proposed rules would 
put schools in direct conflict with FERPA, and that FERPA does not 
maintain an exception that would be applicable for all Title IX 
grievance proceedings. Some noted that there is no express carve-out 
under FERPA for such proceedings, and that schools will quickly be 
caught trying to navigate the legal boundaries of their obligations. 
The need to hire legal counsel to figure out these issues will be 
immediate, asserted some commenters, and schools will have difficulty 
believing that they really ought to be reviewing and potentially 
sharing with other students one student's medical records, therapy 
notes, or documents that contain information about prior sexual 
history.
    One commenter argued that there is an internal contradiction, given 
that supportive measures are supposed to remain confidential, with 
Sec.  106.45(b)(7), the provision regarding disclosure of the results 
of grievance process.\1588\
---------------------------------------------------------------------------

    \1588\ Commenter cited: Sec.  106.45(b)(7)(ii)(E).
---------------------------------------------------------------------------

    One commenter stated that the proposed rules leave ambiguity about 
whether FERPA will apply to conduct that is not covered by these 
proposed regulations under Title IX because it does not rise to the 
level of the definition of sexual harassment in Sec.  106.30, which 
this commenter characterizes as narrower than the Department's past 
definition.
    Another commenter stated that the proposed rules give students more 
rights than does FERPA, since time frames for production are shorter, 
which the commenter believed to be bad policy. Several commenters 
stated that schools need flexibility on which information is private 
and which information is relevant to a claim of sexual harassment.

[[Page 30428]]

    Discussion: As explained above, the Department disagrees that there 
is any inherent conflict between FERPA and these final regulations, 
which address sexual harassment under Title IX. The Department 
administers both Title IX and FERPA and expressly provides in Sec.  
106.6(e) that the obligation to comply with Part 106 of Title 34 of the 
Code of Federal Regulations ``is not obviated or alleviated by the 
FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99.'' 
The Department offers technical assistance and will address compliance 
with FERPA and Title IX, and recipients may consult with their own 
counsel about compliance with various laws. As the Department 
administers both FERPA and Title IX, the Department will not interpret 
compliance with its regulations under Title IX to violate requirements 
in its regulations under FERPA.
    If a party (or the parent of a party) gives voluntary, written 
consent to a recipient under Sec.  106.45(b)(5) to use the party's 
medical records that are directly related to the allegations raised in 
a formal complaint as part of its investigation, then the recipient 
must provide both parties with an equal opportunity to inspect and 
review such evidence. If some of the information in the medical records 
is not directly related to the allegations raised in a formal 
complaint, then these final regulations do not require a recipient to 
share the information that is not directly related to the allegations 
raised in the formal complaint. With respect to evidence of prior 
sexual behavior, the Department revised Sec.  106.45(b)(6) to prohibit 
evidence about the complainant's sexual predisposition or prior sexual 
behavior unless such evidence is offered to prove that someone other 
than the respondent committed the conduct alleged by the complainant or 
to prove consent. If a recipient obtains evidence about a party's 
sexual predisposition or prior sexual behavior that is directly related 
to the allegations raised in a formal complaint, the recipient should 
allow both parties an equal opportunity to inspect and review such 
evidence to be able to prepare to respond to it or object to its 
introduction in the investigative report or at the hearing.
    There is no internal contradiction that supportive measures should 
be confidential and that the result of a grievance process under Sec.  
106.45 should be made known to both parties. A complainant must be 
offered and may receive supportive measures irrespective of whether the 
complainant files a formal complaint, and the supportive measures that 
a complainant or a respondent receives typically relate only to them 
and must be kept confidential pursuant to Sec.  106.30. The definition 
of supportive measures in Sec.  106.30 clarifies that it may be 
necessary to notify the other party of a supportive measure if the 
supportive measure requires both the complainant and the respondent's 
cooperation (i.e., mutual restrictions on contact between the parties). 
The result at the end of a grievance process under Sec.  106.45, 
including any sanctions and whether remedies will be provided to a 
complainant, impact both parties and can, and should, be part of the 
written determination simultaneously sent to both parties. The 
complainant should know what sanctions the respondent receives because 
knowledge of the sanctions may impact the complainant's equal access to 
the recipient's education program and activity. The Department revised 
Sec.  106.45(b)(7)(ii)(E) to require a recipient to state whether 
remedies will be provided to the complainant but not what remedies will 
be provided. Thus, the recipient may note in the written determination 
only that a complainant will receive remedies but should not note in 
the written determination that the recipient, for example, will change 
the complainant's housing arrangements as part of a remedy. A 
respondent should know whether the recipient will provide remedies to 
the complainant because the respondent should be aware that the 
respondent's actions denied the complainant equal access to the 
recipient's education program or activity. Similarly, the parties 
should both know the rationale for the result as to each allegation, 
including a determination regarding responsibility, as provided in 
Sec.  106.45(b)(7)(ii)(E), because due process principles require the 
recipient to provide a basis for its determination. The rationale also 
will reveal whether there was any unlawful bias such that there may be 
grounds for appeal under Sec.  106.45(b)(8)(i)(C).
    As to the commenter's question about the applicability of FERPA to 
conduct that is not defined in Sec.  106.30, FERPA applies to all 
education records as defined in 20 U.S.C. 1232g(a)(4)(A) and 34 CFR 
99.3. Whether FERPA applies does not depend on whether the conduct at 
issue satisfies the definition defined in Sec.  106.30. Accordingly, 
there is no inherent conflict between FERPA, and these final 
regulations addressing sexual harassment under Title IX.
    The Department does not believe that these final regulations give 
students more rights than FERPA due to short time frames for 
production. The Department acknowledges that under 20 U.S.C. 
1232g(a)(1)(A) and Sec.  99.10(b) in the FERPA regulations, an 
educational agency or institution must comply with a request for access 
to covered education records within a reasonable period of time, but 
not more than 45 days after it has received the request. FERPA, 
however, was only intended to establish a minimum Federal standard for 
access to education records \1589\ and thus other laws may require 
access to education records in a shorter time frame than FERPA does. A 
recipient, moreover, has an obligation to include reasonably prompt 
time frames for the conclusion of a grievance process as described in 
Sec.  106.45(b)(1)(v). Taking 45 days to respond to a request for 
access to records would not provide a reasonably prompt time frame for 
the conclusion of a grievance process. The ten-day time frame in these 
final regulations governs the minimum length of time that the parties 
have to submit a written response to the recipient after the recipient 
sends to each party and the party's advisor, if any, the evidence 
subject to inspection and review. These final regulations do not 
require a recipient to obtain evidence within a specific time frame, 
although a recipient is required to include reasonably prompt time 
frames for the conclusion of a grievance process pursuant to Sec.  
106.45(b)(1)(v) and to respond promptly under Sec.  106.44(a). 
Additionally, the school has some discretion to determine what evidence 
is directly related to the allegations in a formal complaint.
---------------------------------------------------------------------------

    \1589\ ``Joint Statement in Explanation of the Buckley/Pell 
Amendment [to FERPA],'' 120 Cong. Rec. 39858, 39863 (Dec. 13, 1974).
---------------------------------------------------------------------------

    Changes: None.
    Comments: Some commenters expressed concern about the fact that 
private information would be readily shared with another party. One 
commenter asserted that the proposed regulations facilitate--rather 
than discourage--retaliation by having an opposing party learn 
confidential information about the complainant. One commenter argued 
that giving students access to other students' files would lead to 
bullying and intimidation. Commenters suggested that even if one minor 
portion of a document is relevant--perhaps a medical examination that 
occurred on the night of an alleged rape--the rest of the medical 
information may include a wealth of information that is totally 
irrelevant to the complaint, and should be redacted. A commenter argued 
that some documents may involve non-parties such that disclosing a 
complainant's documents to a respondent could reveal private

[[Page 30429]]

information that has nothing to do with the complainant. The commenter 
suggested that the Department modify the proposed regulations to insist 
that schools redact irrelevant information from information produced to 
the parties.
    Similarly, commenters suggested that the disadvantage to the 
privacy issues would always fall, asymmetrically, on complainants. 
These commenters stated respondents will typically have little 
information in their student file that is relevant to the accusation--
no rape kits, no medical or counseling information, etc.--so providing 
student files is asymmetrically damaging to a complainant.
    Many commenters contended that there will be a chilling effect on 
student-complainants obtaining counseling services, if counseling 
records must be disclosed to a respondent. Some commenters stated that 
even victims who do report will often dismiss their own complaints once 
they realize that there is a chance of being humiliated by their 
records being disclosed to their harasser, and for those records to go 
public. One commenter stated that this effect would be particularly 
damaging to women of color, arguing that these women report sexual 
harassment at very low rates, and would be deterred from reporting if 
their privacy were at stake.
    Some contended that even student-witnesses will be unwilling to 
come forward, believing that their student records might also be 
subject to discovery by the respondent. These commenters stated that 
student-witnesses will be subject to threats and intimidation, as well 
as potential witness tampering.
    Discussion: The Department disagrees that these final regulations 
will lead to retaliation. As a precaution, the Department adopts a 
provision in Sec.  106.71 to expressly prohibit retaliation to address 
the commenter's concerns. This retaliation provision is broad and would 
prohibit threats and intimidation as well as interfering with potential 
witnesses.
    The Department also disagrees that the parties will be able to 
obtain information that is unrelated to the allegations raised in a 
formal complaint. Section 106.45(b)(5)(vi) only requires a recipient to 
provide both parties an equal opportunity to inspect and review any 
evidence that is directly related to the allegations raised in a formal 
complaint as part of the investigation. Accordingly, if there is 
information in a medical record that is not directly related to the 
allegations raised in a formal complaint, these final regulations do 
not require a recipient to share such information. Consistent with 
FERPA, these final regulations do not prohibit a recipient from 
redacting personally identifiable information from education records, 
if the information is not directly related to the allegations raised in 
a formal complaint. Accordingly, the Department does not need to revise 
the final regulations to specifically address redactions. A recipient, 
however, should be judicious in redacting information and should not 
redact more information than is necessary under the circumstances so as 
to fully comply with obligations under Sec.  106.45.
    The Department disagrees that its final regulations asymmetrically 
affect complainants, as respondents may have sensitive information too. 
For example, the recipient may obtain information from a criminal 
investigation of a respondent. Additionally, the rape shield provisions 
in Sec.  106.45(b)(6) apply only to complainants.
    The Department disagrees that these final regulations will have a 
chilling effect on reporting. A complainant is not required to submit 
counseling records to a recipient as part of an investigation. If the 
complainant does not want a respondent to inspect and review any 
counseling records that are directly related to allegations raised in a 
formal complaint, then the complainant is not required to release such 
counseling records to the recipient under Sec.  106.45(b)(5)(i). (The 
Department notes that the same is true for respondents.) These final 
regulations do not foster complainants or respondents being humiliated 
and certainly do not result in their records being made public. The 
recipient is simply giving both parties an equal opportunity to inspect 
and review any evidence obtained as part of the investigation that is 
directly related to the allegations raised in a formal complaint so 
that each party can meaningfully respond to the evidence prior to the 
conclusion of the investigation. This provision is critical for a 
complainant to provide evidence in support of allegations and for a 
respondent to provide evidence to challenge allegations. This provision 
also allows each party an opportunity to meaningfully respond to the 
evidence that is directly related to the allegations.
    The Department disagrees that these final regulations, including 
the provision about an equal opportunity to inspect and review any 
evidence, will result in increased harm to women of color. These final 
regulations apply to all persons, irrespective of race, national 
origin, or color. Some commenters suggested that respondents who are 
persons of color have been more severely impacted by the lack of due 
process protections in a grievance process. These final regulations 
provide everyone the same fair and impartial grievance process 
described in Sec.  106.45.
    Changes: The Department adopts a provision in Sec.  106.71 to 
expressly prohibit retaliation.
    Comments: Some commenters were not concerned about privacy issues 
for respondents who have been found responsible for sexual harassment. 
Some suggested that if a student is found responsible, that finding 
should follow a student if they try to enroll in a new school so as to 
help keep students safe in the new school. Some commenters asserted 
using FERPA to protect these students is unfair and endangers students 
at other schools when respondents who have been found responsible 
transfer schools. Other commenters stated that the final regulations 
should provide that a student's disciplinary measures cannot be 
conveyed to another college under FERPA, so as to avoid destroying 
their lives by having a finding of responsibility follow them to other 
schools.
    Discussion: FERPA and its implementing regulations, 20 U.S.C. 
1232g(b)(6) and 34 CFR 99.31(a)(13), 99.31(a)(14), and 99.39, address 
the conditions permitting the disclosure, without prior written 
consent, to an alleged victim of a crime of violence or a nonforcible 
sex offense and to the general public of the final results of any 
disciplinary proceeding conducted by an institution against the alleged 
perpetrator of such crime or offense with respect to such crime or 
offense. Recipients may have the discretion to disclose, without prior 
written consent, personally identifiable information from education 
records of student-respondents who have been found responsible for a 
violation of Title IX to other third parties under other exceptions to 
consent in FERPA. The Department notes that such disclosures of 
personally identifiable information are permissive and not mandatory 
under FERPA, and the Department takes no position in these final 
regulations as to whether a recipient should disclose any personally 
identifiable information under FERPA. For example, an exception in 
FERPA and its implementing regulations at 20 U.S.C. 1232g(b)(1)(B) and 
34 CFR 99.31(a)(2) and 99.34 permits a school to disclose, without 
prior, written consent, personally identifiable information contained 
in a student's education records to another school in which the student 
seeks or intends to enroll, or where the student is already enrolled so 
long as the disclosure is for purposes

[[Page 30430]]

related to the student's enrollment or transfer. The sending school may 
make the disclosure if it has included in its annual notification of 
FERPA rights a statement that it forwards education records in such 
circumstances. Otherwise, the sending school must make a reasonable 
attempt to notify the parent or eligible student in advance of making 
the disclosure, unless the parent or eligible student has initiated the 
disclosure. The school also must provide a parent or an eligible 
student with a copy of the records that were released, if requested by 
the parent or eligible student, and an opportunity to seek to amend the 
education records. FERPA and its implementing regulations also provide 
that an educational agency or institution may include and disclose, 
without prior, written consent, appropriate information in a student's 
education records concerning disciplinary information taken against 
such student for conduct that posed a significant risk to the safety or 
well-being of that student, other students, or other members of the 
school community to teachers and school officials, within the agency or 
institution or in other schools, who have legitimate educational 
interests in the behavior of the student.\1590\ Similarly, the Clery 
Act, 20 U.S.C. 1092(g)(8)(B)(ii), and its implementing regulations, 34 
CFR 668.46(k)(3)(iv), require an institution to provide the result of a 
proceeding, including any sanctions imposed by the institution, to both 
parties. In this manner, a recipient has discretion as to whether to 
share information with another school about a respondent.
---------------------------------------------------------------------------

    \1590\ 20 U.S.C. 1232g(h) and 34 CFR 99.36(b). As explained in 
the ``Section 106.44(c) Emergency Removal'' subsection in the 
``Additional Rules Governing Recipients' Response'' subsection of 
the ``Section 106.44 Recipient's Response to Sexual Harassment,'' 
section of this preamble, the Department revised Sec.  106.44(c), 
which concerns emergency removal, to better align with the 
disclosure, without prior written consent, of personally 
identifiable information from education records in a health and 
safety emergency under FERPA and its implementing regulations. 
Compare Sec.  106.44(c) with 20 U.S.C. 1232g(h) and 34 CFR 99.36.
---------------------------------------------------------------------------

    The Department does not regulate what information schools must 
share when a student transfers to a different school and declines to do 
so here. Requiring institutions to share information goes beyond the 
mandate of Title IX to prohibit discrimination on the basis of sex in a 
particular recipient's education program or activity. Recipients may 
share such information as long as doing so is permissible under other 
applicable Federal, State, and local laws.
    Changes: None.
    Comments: Some commenters expressed concern that in cases where a 
formal complaint must be opened by a Title IX Coordinator, as opposed 
to by a student or employee reporting sexual harassment, that the 
victim's confidential information will be subject to discovery despite 
declining to file a formal complaint. This leaves students and 
employees with no way to protect their privacy and would lead to a 
dramatic chilling effect on reporting.
    Discussion: The Department notes that the final regulations 
entirely removed proposed provision Sec.  106.44(b)(2) that would have 
required a Title IX Coordinator to file a formal complaint upon 
receiving multiple reports against the same respondent. The final 
regulations do not mandate circumstances where a Title IX Coordinator 
is required to sign a formal complaint; rather, the final regulations 
leave a Title IX Coordinator with discretion to sign a formal 
complaint. If the Title IX Coordinator signs a formal complaint against 
the wishes of the complainant, then the recipient likely will have 
difficulty obtaining evidence from the complainant that is directly 
related to the allegations in a formal complaint. As previously 
explained, the Department revised Sec.  106.45(b)(5)(i) to specifically 
state that the recipient cannot access, consider, disclose, or 
otherwise use a party's records that are made or maintained by a 
physician, psychiatrist, psychologist, or other recognized professional 
or paraprofessional acting in the professional's or paraprofessional's 
capacity, or assisting in that capacity, and which are made and 
maintained in connection with the provision of treatment to the party, 
unless the recipient obtains that party's voluntary, written consent to 
do so for a grievance process under this section (if a party is not an 
``eligible student,'' as defined in 34 CFR 99.3, then the recipient 
must obtain the voluntary, written consent of a ``parent'' as defined 
in 34 CFR 99.3). Accordingly, a recipient will not be able to access, 
consider, disclose or otherwise use such confidential records without a 
party's consent.
    The complainant is not required to participate in the process or to 
provide any information to the Title IX Coordinator and in fact, the 
final regulations expressly protect a complainant (or other person's) 
right not to participate in a Title IX proceeding by including such 
refusal to participate in the anti-retaliation provision in Sec.  
106.71. If the recipient has commenced a Sec.  106.45 grievance process 
without a cooperating complainant, the recipient must still obtain 
evidence about the allegations, and the complainant and respondent must 
have an opportunity to inspect, review, and respond to such evidence. 
Such evidence would be directly related to the respondent under FERPA's 
definition of ``education records'' \1591\ because it is related to the 
allegations against the respondent. The respondent would have access to 
such education records under both FERPA and these final regulations 
implementing Title IX, and the Department interprets both FERPA and 
Title IX consistent with constitutionally guaranteed due process 
rights. A respondent should have notice of and a meaningful opportunity 
to respond to the evidence about the allegations against the 
respondent. Full and fair adversarial procedures increase the 
probability that the truth of allegations will be accurately 
determined,\1592\ and reduce the likelihood that impermissible sex bias 
will affect the outcome. Accordingly, the respondent, like the 
complainant, must have the opportunity to inspect, review, and respond 
to such evidence. Even if a complainant chooses not to participate in a 
Sec.  106.45 grievance process initiated by the Title IX Coordinator's 
signing of a formal complaint, the complainant is still treated as a 
party \1593\ entitled to, for example, the written notice of 
allegations under Sec.  106.45(b)(2), notice of meetings or interviews 
to which the complainant is invited under Sec.  106.45(b)(5)(v), and a 
copy of the evidence subject to inspection and review under Sec.  
106.45(b)(5)(vi). Thus, the complainant would at least know what 
evidence was obtained and have the opportunity to respond to that 
evidence, if the complainant so desired.\1594\
---------------------------------------------------------------------------

    \1591\ 20 U.S.C. 1232g(a)(4); 34 CFR 99.3.
    \1592\ The adversarial ``system is premised on the well-tested 
principle that truth--as well as fairness--is `best discovered by 
powerful statements on both sides of the question.''' Penson v. 
Ohio, 488 U.S. 75, 84 (1988) (quoting Irving R. Kaufman, Does the 
Judge Have a Right to Qualified Counsel?, 61 Am. Bar Ass'n J. 569, 
569 (1975)).
    \1593\ See Sec.  106.30 defining a ``complainant'' as ``an 
individual who is alleged to be the victim of conduct that could 
constitute sexual harassment.'' The final regulations removed the 
phrase ``or on whose behalf the Title IX Coordinator filed a formal 
complaint'' to reduce the likelihood that a complainant would feel 
pressured to participate in a grievance process against the 
complainant's wishes. Thus, even where the Title IX Coordinator 
signs the formal complaint that initiates the grievance process (as 
opposed to the complainant filing the formal complaint), the 
complainant is treated as a party during the grievance process yet 
the complainant's right not to participate is protected (for 
example, under the anti-retaliation provision in Sec.  106.71).
    \1594\ The final regulations protect a complainant's right to 
seek the kind of response from a recipient that best meets the 
complainant's needs (i.e., supportive measures, a grievance process, 
or both) and nothing in the final regulations requires a complainant 
to participate in a grievance process against the complainant's 
wishes, even where the Title IX Coordinator signed a formal 
complaint initiating a grievance process against the respondent. 
Commenters pointed out the importance of respecting complainant 
autonomy and asserted that for a variety of reasons a complainant 
may not wish to file a formal complaint, yet may decide later to 
file a formal complaint or to participate in a grievance process 
initiated by the Title IX Coordinator. The final regulations balance 
these interests in deference to a complainant's autonomy and control 
as to whether initiating or participating in a grievance process 
best serves the complainant's needs.

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

[[Page 30431]]

    The Department disagrees that these final regulations will chill 
reporting. These final regulations will encourage complainants to 
report allegations of sexual harassment because complainants must be 
offered supportive measures irrespective of whether they choose to file 
a formal complaint under Sec.  106.44(a).\1595\ These final regulations 
provide a fair, impartial, and transparent grievance process for formal 
complaints that helps ensure that all parties receive the opportunity 
to inspect and review any evidence obtained as part of an investigation 
that is directly related to the allegations in a formal complaint.
---------------------------------------------------------------------------

    \1595\ Sec.  106.71, prohibiting retaliation, protects any 
person's right not to participate in a Title IX grievance process, 
thereby buttressing a complainant's right under Sec.  106.44(a) to 
receive supportive measures regardless of whether the complainant 
files a formal complaint or otherwise participates in a grievance 
process.
---------------------------------------------------------------------------

    Changes: The Department revised Sec.  106.45(b)(5)(i) to 
specifically state that the recipient cannot access, consider, 
disclose, or otherwise use a party's records that are made or 
maintained by a physician, psychiatrist, psychologist, or other 
recognized professional or paraprofessional acting in the 
professional's or paraprofessional's capacity, or assisting in that 
capacity, and which are made and maintained in connection with the 
provision of treatment to the party, unless the recipient obtains that 
party's voluntary, written consent to do so for a grievance process 
under this section (if a party is not an ``eligible student,'' as 
defined in 34 CFR 99.3, then the recipient must obtain the voluntary, 
written consent of a ``parent'' as defined in 34 CFR 99.3).
    Comments: Commenters expressed concerns about schools producing 
information to students. Some contended that the proposed rules 
contained provisions regarding the content of the required notice that 
directly conflict with FERPA. Other commenters argued that the right to 
appeal is generally a safety net against a lack of evidence, such that 
there is no need for schools to produce literally all evidence directly 
related to the allegation. One commenter suggested that the proposed 
rules would likely create an inconsistency with all other forms of 
student misconduct investigations, where schools generally do not 
provide FERPA-protected education records to the accused student. Some 
argued that this would put Title IX in ``least-favored nation'' status, 
such that only Title IX allegations were likely to trigger these 
privacy concerns, as opposed to allegations based on race or disability 
harassment.
    With respect to production of documents, many commenters expressed 
concern that the proposed rules did not sufficiently clarify what is 
discoverable and what is confidential. Commenters stated that schools 
may opt to collect as much information as possible in their 
investigations, out of fear that OCR will find them in violation of the 
new Title IX rules, but that will also mean access to a host of 
irrelevant information being given to the parties. Once in the hands of 
students, asserted commenters, the information is totally unprotected. 
The proposed rule, commenters argued, does not prohibit parties from 
photographing and texting even highly confidential information about 
the other party, even when young children are involved. One commenter 
suggested that there should be some exceptions on production, such as 
nude photos or other photos of a graphic sexual nature. Even the effort 
to ensure that technological platforms do not allow sharing is 
inadequate, commenters asserted, because smart phones are ubiquitous, 
and because many schools will simply operate out of compliance with 
this requirement, due to a lack of funds for technological updates. 
Other commenters disagreed, however, stating that it would be better to 
allow easier access to electronic documents, since the inability to cut 
and paste from materials would make preparing one's defense more 
difficult.
    Some commenters argued that a school having to review so much 
evidence prior to production will increase the cost of attorneys and 
advisors who need to be paid to review all evidence, turning the Title 
IX process into an expensive one. Some commenters stated that the 
natural result of this process is that students and employees in Title 
IX proceedings will try to hire attorneys to redact their own evidence 
before giving it to schools.
    By way of contrast, some commenters argued that the proposed rules 
offer respondents more disclosure of exculpatory evidence than the 
Brady case does in the criminal context, which is anomalous for a 
noncriminal proceeding in a school setting. These commenters stated 
that under Brady, criminal prosecutors only have to disclose 
exculpatory evidence. They also stated that prosecutors do not have to 
produce evidence about sexual contact with the alleged perpetrator in 
the past, which is contrary to the proposed rule. Apart from 
prosecutors, commenters argued that police officers need not circulate 
draft reports to the people involved in a crime scene investigation, 
which is seemingly what commenters believed has to happen in the Title 
IX context.
    One commenter stated that the production of so much evidence will 
jeopardize law enforcement investigations. Another commenter suggested 
that Title IX administrators will tell complainants not to submit 
certain evidence, out of fear that it will be produced to the 
respondent. One commenter stated that parties would strategically 
introduce evidence of academic performance and perhaps sexual history 
in order to embarrass the other party, and deter them from continuing 
the process; the commenter also suggested that introducing such 
evidence might bias an adjudicator against the other party. Even in the 
best cases, asserted commenters, adjudicators would be forced to weigh 
whether evidence was relevant, and forced to spend time and energy on 
making rulings on the admissibility of documents.
    Discussion: As previously explained, there is no inherent conflict 
between these final regulations and FERPA. An appeal right does not 
address the concern that parties should have access to the universe of 
evidence obtained as part of the investigation that is directly related 
to the allegations raised in a formal complaint. Having such evidence 
will help parties adequately prepare for a hearing. These final 
regulations do not require disclosing education records in violation of 
FERPA as the Department has previously interpreted FERPA to allow for 
the disclosure of records that are directly related to a particular 
student in the context of impairing due process in student disciplinary 
proceedings where the information could not be segregated and redacted 
without destroying the meaning of the education records. These final 
regulations require disclosure of evidence that is directly related to 
the allegations raised in a formal complaint. As previously stated, 
these final regulations do not require a recipient to share information 
in a record that does

[[Page 30432]]

not directly relate to the allegations in a formal complaint.
    These final regulations address sexual harassment, and the 
Department acknowledges that recipients may use a different grievance 
process to address sex discrimination that is not sexual harassment 
just as a recipient may use a different grievance process to address 
allegations related to race and disability. A grievance process to 
address race or disability concerns different considerations than a 
grievance process to address sexual harassment.
    The Department disagrees that these final regulations require a 
recipient to provide completely irrelevant evidence because Sec.  
106.45(b)(5)(vi) expressly states that the recipient must provide ``any 
evidence obtained as part of the investigation that is directly related 
to the allegations raised in a formal complaint.'' The only evidence 
that a recipient should be providing is evidence that is directly 
related to the allegations raised in a formal complaint. These final 
regulations neither require nor prohibit a recipient to use a file 
sharing platform that restricts the parties and advisors from 
downloading or copying the evidence. Recipients also may specify that 
the parties are not permitted to photograph the evidence or disseminate 
the evidence to the public. Recipients thus have discretion to 
determine what measures are reasonably appropriate to allow the parties 
to respond to and use the evidence at a hearing, while preventing the 
evidence from being used in an impermissible manner as long as such 
measures apply equally to both parties under Sec.  106.45(b). Such 
measures may be used to address sensitive materials such as photographs 
with nudity.
    The Department agrees that a recipient will need to review all the 
evidence obtained as part of the investigation and determine what 
evidence is directly related to the allegations raised in a formal 
complaint. The Department disagrees that attorneys must conduct this 
review as lay persons also may determine what evidence is directly 
related to the allegations raised in a formal complaint.
    Irrespective of what information is available in a criminal case, 
the Department believes that both parties should have the opportunity 
to inspect and review any evidence obtained as part of an investigation 
that is directly related to the allegations raised in a formal 
complaint. The grievance process in Sec.  106.45 does not have all of 
the same protections as a court proceeding in a criminal case. For 
example, these final regulations do not contain a comprehensive set of 
rules of evidence. Neither party may issue a subpoena to gather 
information from each other or the recipient for purposes of the 
grievance process under Sec.  106.45. Neither of the parties has a 
right to effective assistance of counsel under these final regulations, 
whereas a criminal defendant does have that right throughout the 
criminal proceeding. Under these final regulations, the parties only 
receive an advisor, who does not need to be an attorney, to conduct 
cross-examination on behalf of that party so as to ensure that the 
parties do not directly cross-examine each other. The parties should 
have an equal opportunity to review and inspect evidence that directly 
relate to the allegations raised in a formal complaint as these 
allegations necessarily relate to both parties. Even if these final 
regulations did not exist, parties who are students would have a right 
to inspect and review records directly related to the allegations in a 
formal complaint under FERPA, 20 U.S.C. 1232g(a)(1)(A)-(B), and its 
implementing regulations, 34 CFR 99.10 through 99.12, because these 
records would directly relate to the parties in the complaint.\1596\
---------------------------------------------------------------------------

    \1596\ 73 FR at 74832-33.
---------------------------------------------------------------------------

    With respect to evidence of prior sexual behavior, the Department 
revised Sec.  106.45(b)(6) to prohibit all evidence (and not just 
questions) about the complainant's sexual behavior or predisposition 
unless such evidence is offered to prove that someone other than the 
respondent committed the conduct alleged by the complainant or to prove 
consent. If a recipient obtains evidence about a party's sexual 
behavior or predisposition that is directly related to the allegations 
raised in a formal complaint, the recipient should allow both parties 
an equal opportunity to inspect and review such evidence to be able to 
prepare to respond to it or object to its inclusion in the 
investigative report and its use at the hearing.
    These final regulations will not jeopardize or delay a law 
enforcement investigation, which is a completely separate process. If 
there is a concurrent law enforcement investigation, then a recipient 
may temporarily delay or extend the grievance process under Sec.  
106.45(b)(1)(v), as long as the recipient documents the good cause for 
the temporary delay or extension. A Title IX Coordinator should not 
encourage or discourage a party from submitting evidence and should 
inform both parties that the grievance process will provide them with 
an opportunity to inspect and review any evidence obtained as part of 
the investigation that is directly related to the allegations raised in 
a formal complaint. These final regulations do not allow a Title IX 
Coordinator to restrict a party's ability to provide evidence. If a 
Title IX Coordinator restricts a party from providing evidence, then 
the Title IX Coordinator would be violating these final regulations and 
may even have a conflict of interest or bias, as described in Sec.  
106.45(b)(1)(iii).
    If the academic record of a party is directly related to the 
allegations of sexual harassment, then the recipient may obtain, 
access, use, and disclose such evidence as part of the investigation 
under Sec.  106.45. For example, if a complainant alleges that the 
complainant frequently missed classes as a result of the sexual 
harassment, then the attendance records of the complainant for that 
class are directly related to these allegations. Accordingly, a 
recipient may obtain or a party may request the recipient to obtain 
such attendance records as part of an investigation under Sec.  106.45, 
if such records are directly related to the allegations in the formal 
complaint. Similarly, if a student-complainant alleges that an 
employee-respondent sexually harassed them on a field trip and the 
employee-respondent or that student-complainant did not attend the 
field trip, then the employee-respondent may provide the attendance 
records for the field trip, as these attendance records are directly 
related to the allegations of sexual harassment. Decision-makers should 
be able to determine what evidence is relevant at a hearing. Decision-
makers also are capable of objectively considering the evidence without 
developing a bias for or against a complainant or respondent and will 
receive training about conflicts of interest and bias from the 
recipient under Sec.  106.45(b)(1)(iii).
    Changes: None.
    Comments: Some commenters raised questions about procedural aspects 
of the grievance procedures. One stated that a single rule for the 
number of days before certain steps of the process occurs is arbitrary. 
Some cases will take longer than others to review the evidence, 
asserted a commenter. One commenter asked whether, if evidence is not 
adequately uploaded and available to the parties ten days before a 
hearing, must the hearing be delayed, or can the parties agree to keep 
the hearing date in place, and mutually waive whatever requirements the 
proposed rules implement? The same commenter asked whether, if no 
waiver occurs and one of the parties objects to holding the hearing but 
the school insists on proceeding, must the

[[Page 30433]]

evidence that was produced only nine days prior to the hearing be 
struck?
    One commenter argued the proposed rules are highly prescriptive, 
and that is inconsistent with the 2018 Report issued by the Federal 
Commission on School Safety,\1597\ which stated that overly 
prescriptive Federal standards burdened local schools.
---------------------------------------------------------------------------

    \1597\ Commenters cited: Dep't. of Education et al., Final 
Report of the Federal Commission on School Safety (Dec. 18, 2018), 
https://www2.ed.gov/documents/school-safety/school-safety-report.pdf.
---------------------------------------------------------------------------

    Discussion: These final regulations require that the parties have 
at least ten days to submit a written response to the evidence that is 
directly related to the allegations raised in a formal complaint under 
Sec.  106.45(b)(5)(vi) and that the parties have the investigative 
report at least ten days prior to a hearing under Sec.  
106.45(b)(5)(vii). The Department does not define whether these ten 
days are calendar days or business days, and recipients have discretion 
as to whether to calculate ``days'' by calendar days, business days, 
school days, or other reasonable method. Recipients also may give the 
parties more than ten days in each circumstance.
    If the investigative report that fairly summarizes relevant 
evidence is not ready at least ten days prior to a hearing, then the 
recipient should wait to hold the hearing until the parties have at 
least ten days with the investigative report pursuant to Sec.  
106.45(b)(6)(i). If a recipient does not give the parties at least ten 
days with the investigative report prior to a hearing, the recipient 
will be found in violation of these final regulations, irrespective of 
whether the parties waive the requirements in these final regulations.
    The Department disagrees that these final regulations are overly 
prescriptive because recipients still have ample discretion. For 
example, recipients determine what supportive measures to offer, the 
standard of evidence, how to weigh the evidence to reach the 
determination regarding responsibility, the sanction, and any remedies.
    Changes: None.
    Comments: Several commenters suggested that there was tension 
between the proposed rules and FERPA, and argued that there is a 
conflict between the proposed rules and 20 U.S.C. 1232g(b)(1), since 
records would need to be disclosed as part of the grievance process 
even without the written consent of the parties involved. One commenter 
suggested that the final regulations expressly state that ``nothing in 
this part shall be read in derogation of the FERPA statute, 20 U.S.C. 
1232g, or FERPA regulations, 34 CFR part 99.'' In support of that 
argument, commenters stated that schools know FERPA well, that FERPA 
guidance is well-established, and should control so that schools do not 
have to modify their existent knowledge of privacy issues. One 
commenter suggested that schools and students should be bound not to 
disclose any information if the disclosure would be inconsistent with 
FERPA's provisions.
    Discussion: As explained earlier, the Department disagrees that 
there is an inherent conflict between these final regulations and 
FERPA. FERPA and its implementing regulations define the term 
``education records'' as meaning, with certain exemptions, records that 
are directly related to a student and maintained by an educational 
agency or institution, or by a party acting for the agency or 
institution.\1598\ The Department previously stated: ``Under this 
definition, a parent (or eligible student) has a right to inspect and 
review any witness statement that is directly related to the student, 
even if that statement contains information that is also directly 
related to another student, if the information cannot be segregated and 
redacted without destroying its meaning.'' \1599\ The Department made 
this statement in response to comments regarding impairing due process 
in student discipline cases in its notice-and-comment rulemaking to 
promulgate regulations to implement FERPA.\1600\ The evidence and 
investigative report that is being shared under these final regulations 
directly relate to the allegations in a complaint and, thus, directly 
relate to both the complainant and respondent.
---------------------------------------------------------------------------

    \1598\ 20 U.S.C. 1232g(a)(4); 34 CFR 99.3.
    \1599\ 73 FR 74806, 74832-33 (Dec. 9, 2008).
    \1600\ Id.
---------------------------------------------------------------------------

    As explained earlier, the Department's interpretation in the 2001 
Guidance still stands that ``if there is a direct conflict between 
requirements of FERPA and requirements of Title IX, such that 
enforcement of FERPA would interfere with the primary purpose of Title 
IX to eliminate sex-based discrimination in schools, the requirements 
of Title IX override any conflicting FERPA provisions.'' \1601\
---------------------------------------------------------------------------

    \1601\ 2001 Guidance at vii.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Several commenters suggested that the final regulations 
ought to model their FERPA language on the Clery Act regulations, 
namely 34 CFR 668.46(l), because the Clery Act regulations clearly 
state that compliance with the Clery Act does not violate FERPA but, 
commenters argued, proposed Sec.  106.6(e) does not clearly assure 
recipients that complying with these Title IX regulations does not 
violate FERPA. Other commenters cited to 34 CFR 668.46(k)(3)(B)(3) and 
suggested that the final regulations should clearly state that medical 
records would not be released without the written authorization 
required in 45 CFR 164.508(b), implementing the Health Insurance 
Portability and Accountability Act of 1996 (``HIPAA''), Public Law 104-
191, to mirror VAWA. In addition, commenters suggested that any release 
of medical records be consistent with 45 CFR 164.508(b), which is part 
of the Standards for Privacy of Individually Identifiable Health 
Information (``Privacy Rule'') adopted under HIPAA. Other commenters 
suggested that the Department require a data security standard 
benchmarked to HIPAA. This commenter stated that information about 
sexual assault may include medical information as sensitive Protected 
Health Information (PHI). Information about sexual history and abuse 
would be valuable to criminals and State adversaries. The commenter 
argued that because HIPAA is a known standard, familiar to technical 
support professionals, and has allowances for anonymization for 
research, using the data security standard as provided for in HIPAA 
will allow anonymized data for use in secure research that may inform 
policies and that absent a data security standard, information 
technology (IT) personnel will not be aware of any obligation to make 
sure that computers being used to create and store the sensitive 
information contained in evidence and investigative reports in Title IX 
grievance processes need to meet data security protocols.
    Other commenters stated that even given these confines, FERPA's 
definition of ``directly related to'' is too broad. These commenters 
expressed concern that schools will get it wrong when trying to 
determine which evidence is directly related to certain allegations, 
which means that some highly sensitive student records will be 
produced, even when they should not be.
    Other commenters disagreed, stating that the Department should add 
a sentence after the ``directly related to'' language that reads as or 
similar to the following: ``In determining whether evidence is 
`directly related to the allegations obtained as part of the 
investigation,' the recipient must construe the phrase `directly 
related to' broadly and in favor of production of any evidence 
obtained.''

[[Page 30434]]

    Discussion: The Department disagrees that it needs to adopt 
language in Sec.  668.46(l) and expressly state that ``compliance [with 
these final regulations] does not constitute a violation of FERPA.'' 
The Department does not believe that there is any inherent conflict 
between these final regulations and FERPA. Additionally, these final 
regulations expressly state in Sec.  106.6(e) that the obligation to 
comply with these final regulations ``is not obviated or alleviated by 
the FERPA statute, 20 U.S.C. 1232g or FERPA regulations, 34 CFR part 
99.'' Such a statement sufficiently addresses concerns that compliance 
with these final regulations does not violate FERPA.
    The Department does not enforce HIPAA, which protects the privacy 
and security of certain health information. The regulations, 
implementing HIPAA, which include the Privacy Rule and its provisions 
at 45 CFR 164.508(b), apply to ``covered entities,'' and a recipient 
may or may not be a covered entity. Accordingly, a recipient may not be 
required to comply with HIPAA, and the Department will not require 
recipients to comply with HIPAA through these final regulations. A 
recipient must comply with all laws that apply to it and is best 
positioned to determine whether and how HIPAA may apply to it. A 
recipient's grievance procedures and grievance process, which are 
required to be published pursuant to Sec.  106.8(c), should provide 
notice to the parties that they will receive an equal opportunity to 
inspect and review any evidence obtained as part of an investigation 
that is directly related to the allegations raised in a formal 
complaint of sexual harassment. Indeed, Sec.  106.8(c) requires the 
recipient to notify applicants for admission and employment, students, 
parents or legal guardians of elementary and secondary school students, 
employees, and all unions or professional organizations holding 
collective bargaining or professional agreements with the recipient 
notice of the recipient's grievance procedures and grievance process. 
If a party does not want the other party to receive any of the party's 
medical records, then the party (or the party's parent, if applicable) 
is not required to provide such medical records to the recipient as 
part of the investigation, nor to provide consent to the recipient with 
respect to medical and other treatment records for which a recipient is 
required to obtain voluntary, written consent before accessing or using 
such records, under Sec.  106.45(b)(5)(i). Recipients do not have 
subpoena power, and as the commenter implies, a recipient will not be 
able to receive a party's medical records from a covered entity under 
the regulations implementing HIPAA without the party's consent.
    The Department also does not wish to require that recipients use a 
data security standard benchmarked to HIPAA or its Privacy Rule because 
the Department does not administer HIPAA and does not wish to add yet 
another set of regulations governing the same type of information that 
HIPAA may cover. Recipients that are subject to both HIPAA and these 
final regulations would then be subject to two different sets of data 
security standards governing the same type of information, as the 
Department may interpret its data security provisions differently than 
other Federal agencies such as the U.S. Department of Health and Human 
Services, which administers HIPAA. Although the Department encourages 
recipients to use secure data systems, Title IX does not directly 
concern data security, and the Department's proposed regulations did 
not directly address data security requirements.
    The Department disagrees that ``directly related to'' is too broad 
or not broad enough. The Department purposefully chose ``directly 
related to,'' as such a requirement aligns with FERPA, and recipients 
that are subject to FERPA will understand how to apply such a 
requirement. The Department also acknowledges that recipients have 
discretion to determine what constitutes evidence directly related to 
the allegations in a formal complaint. The purpose of the provision in 
Sec.  106.45(b)(5)(vi) is to give parties an opportunity to inspect, 
review, and respond to evidence that may be used to support or 
challenge allegations made in a formal complaint prior to the 
investigator's completion of the investigative report. The recipient 
certainly cannot exclude any evidence that the investigator intends to 
use in the investigative report.
    Changes: None.
    Comments: Several commenters had concerns about privacy with 
respect to the evidence-sharing provisions of the grievance procedures. 
Commenters stated, for instance, that only ``non-privileged'' materials 
ought to be shared during the process, and suggested that medical 
records ought to be considered privileged. Similarly, some commenters 
suggested that financial records of students should be considered 
privileged, and therefore not produced.
    Commenters asserted that the final regulations should clarify that 
under no circumstances will a school access campus medical and 
counseling records. These records, stated commenters, would include the 
results of medical tests, rape kits, and forensic evidence that is 
covered by HIPAA and FERPA.
    Discussion: Nothing in these final regulations requires a recipient 
to share materials subject to the attorney-client privilege in the 
recipient's possession with a party as part of a Sec.  106.45 grievance 
process. If a party holds the attorney-client privilege and chooses to 
waive the privilege to share records protected by the attorney-client 
privilege, then the party may do so. To clarify this point, the 
Department added Sec.  106.45(b)(1)(x) to expressly state that a 
recipient's grievance process must not: ``require, allow, rely upon, or 
otherwise use questions or evidence that constitute, or seek disclosure 
of, information protected under a legally recognized privilege, unless 
the person holding such privilege has waived the privilege.''
    Medical records may be subject to other Federal and State laws that 
govern recipients, and recipients should comply with those laws. The 
Department believes that the final regulations, and specifically Sec.  
106.45(b)(5)(i), protect a party's records that are made or maintained 
by a physician, psychiatrist, psychologist, or other recognized 
professional or paraprofessional acting in the professional's or 
paraprofessional's capacity, or assisting in that capacity, and which 
are made and maintained in connection with the provision of treatment 
to the party. Pursuant to Sec.  106.45(b)(5)(i), a recipient cannot 
access, consider, disclose or otherwise use such records unless the 
party gives the recipient voluntary, written consent.\1602\ This 
restriction applies even where HIPAA or any State-law equivalent do not 
apply.
---------------------------------------------------------------------------

    \1602\ Pursuant to Sec.  106.45(b)(5)(i), if the party is not an 
``eligible student,'' as defined in 34 CFR 99.3, then the recipient 
must obtain the voluntary, written consent of a ``parent,'' as 
defined in 34 CFR 99.3. Sec.  106.45(b)(5)(i).
---------------------------------------------------------------------------

    The Department does not wish to create more complexity and 
confusion by creating yet another set of regulations that apply to 
medical records by incorporating by reference HIPAA or attorney-client 
privilege rules. These final regulations, and specifically Sec.  
106.45(b)(1)(x) and Sec.  106.45(b)(5)(i), appropriately protect 
medical records and attorney-client privileged information.
    With respect to medical and counseling records to which a recipient 
does not have access, whether a recipient may access such medical and

[[Page 30435]]

counseling records would be governed by other laws that typically 
require a party's consent. A recipient should comply with all 
applicable laws governing medical and counseling records. For purposes 
of these final regulations, the recipient should not obtain as part of 
an investigation any evidence, directly relating to the allegations in 
a formal complaint, that cannot legally be shared with the parties.
    Changes: The Department added Sec.  106.45(b)(1)(x) to expressly 
state that a recipient's grievance process must not require, allow, 
rely upon, or otherwise use questions or evidence that constitute, or 
seek disclosure of, information protected under a legally recognized 
privilege, unless the person holding such privilege has waived the 
privilege.
    Comments: Several commenters addressed the evidence-sharing 
provisions of the grievance procedures in other ways, stating that the 
final regulations ought to discourage schools from providing electronic 
access to documents. Many noted that students generally live close to 
the school itself, such that in-person access exclusively would likely 
be adequate, and would prevent the documents from being shared with 
outside parties or the press. Commenters also noted that electronic 
access may pose difficulties for students who lack a computer, or who 
lack internet access. Even for students who have access to these 
technologies, reliable access may not always be easily obtainable. Some 
might have to view evidence on a shared computer in a public library or 
a computer lab.
    Some commenters contended that some students with disabilities 
would have difficulty accessing and reviewing all evidence in a digital 
format, particularly given how much material is likely to be produced 
under the final regulations. One commenter suggested limiting 
production to hard copy documents, unless the parties all agree to 
consent to electronic production as well. Some noted that hard copies 
of evidence will have to be made in many cases anyway, since those 
documents may need to be submitted as exhibits during the proceeding. 
Some commenters suggested not even providing the parties with the 
evidence, but instead just describing the evidence verbally, in the 
hopes of encouraging dialogue and discourse.
    Some commenters asserted that the final regulations should only 
require supervised access to all material available to the decision-
makers. Other commenters disagreed with the idea of only providing 
supervised hard-copy access to relevant documents, arguing that parties 
need private access to the documents, to be able to discuss information 
with their advisors. Some commenters asked the Department not to allow 
schools to give documents directly to party advisors, asserting that a 
party ought to have control over what they give to their own advisor.
    Some commenters suggested that schools should have flexibility to 
provide information in the way they see fit, accounting for the expense 
of some technology. One commenter suggested that the final regulations 
should eliminate language that dictates the manner in which records 
will be shared, and instead state that the files should be shared ``in 
a manner that will prevent either party from copying, saving, or 
disseminating the records.''
    Commenters contended that the time frames for providing evidence 
are too short, and therefore unduly burdensome for schools. These 
commenters argued that the ruling in Davis v. Monroe County Board of 
Education, 526 U.S. 629 (1999), provides schools and school 
administrators with flexibility and is not designed to make the process 
rigid and one-size-fits-all.
    Discussion: The Department disagrees that parties should only be 
provided with hard copies of the evidence, as directly providing the 
parties with a hard copy of the evidence will prevent a recipient from 
being able to provide ``view only'' access, if the recipient would like 
to provide ``view only'' access. The Department also does not wish to 
require recipients to provide parties the opportunity only to inspect 
and review hard copies of the evidence because the parties may have 
obligations that prevent them from inspecting and reviewing the 
evidence during the hours when the recipient's operations are open to 
allow for such inspection and review. Nothing in these final 
regulations prevents a recipient from providing a hard copy of the 
evidence in addition to the evidence in an electronic format. Indeed, 
the Department revised Sec.  106.45(b)(5)(vi)-(vii) to allow the 
recipient to provide a party and the party's advisor of choice with 
either a hard copy of the evidence and the investigative report or the 
evidence and the investigative report in an electronic format. Allowing 
the recipient to send the parties the evidence in an electronic format 
gives the recipient sufficient discretion to determine whether to use a 
file sharing platform that restricts the parties and advisors from 
downloading or copying the evidence, and the recipient also may opt to 
provide a hard copy of the evidence for the parties.\1603\ The 
Department also fully encourages recipients to provide whatever 
reasonable accommodations are necessary for students with disabilities; 
recipients must comply with applicable disability laws while also 
complying with these final regulations. The Department also reiterates 
that a recipient may require parties to agree not to photograph or 
otherwise copy the evidence that the recipient provides for inspection 
and review. The Department also takes no position on nondisclosure 
agreements that comply with these final regulations. The Department, 
however, will not impose a uniform approach for recipients and would 
like recipients to have discretion in this regard. A recipient may 
choose to share records in a manner that will prevent either party from 
copying, saving, or disseminating the records, but the Department will 
not require the recipient to do so. Finally, the Department disagrees 
that describing the evidence verbally will provide the parties with a 
sufficient opportunity to respond to the evidence. Descriptions of 
evidence may not be accurate and even the best description will not 
always capture the nuances of the actual evidence.
---------------------------------------------------------------------------

    \1603\ In response to many commenters concerned that requiring 
recipients to provide the evidence to parties by using a digital 
platform that restricts users from downloading the information would 
be unnecessarily costly or burdensome, the final regulations revised 
Sec.  106.45(b)(5)(vi) to remove that requirement.
---------------------------------------------------------------------------

    The Department agrees with commenters that providing hard copy 
access under and subject to the recipient's supervision may prevent the 
parties from freely discussing the evidence with their advisors. If a 
party does not want a recipient to provide a copy of the evidence or 
investigative report to the party's advisor, then the recipient should 
honor such a request. These final regulations simply prevent a 
recipient from refusing to provide evidence or an investigative report 
to a party's advisor, if the party would like the advisor to have 
access to the evidence or investigative report.
    Changes: The Department revised Sec.  106.45(b)(5)(vi)-(vii) to 
allow a recipient to provide a hard copy of the evidence and 
investigative report to the party and the party's advisor of choice or 
to provide the evidence and investigative report in an electronic 
format.
    Comments: Several commenters had concerns about the grievance 
proceeding itself, and how student privacy ought to be protected in 
that context. Some contended that the proposed rules needed more 
clarity as to

[[Page 30436]]

the content of the investigative report. The assumption by schools, 
asserted the commenter, will be that facts, interview statements, a 
credibility analysis, and the school's policy are the only components 
of such a report, so any other items that ought to be included, 
asserted the commenter, should be expressly mentioned.
    Commenters asked whether, if there are multiple complainants and 
one respondent, are the complainants entitled to the disciplinary 
results for allegations related to other complainants' complaints?
    Discussion: The Department does not wish to impose specific 
requirements for the investigative report other than the requirement 
that the investigative report must fairly summarize relevant evidence, 
as described in Sec.  106.45(b)(5)(vii). A recipient may include facts 
and interview statements in the investigative report. If a recipient 
chooses to include a credibility analysis in its investigative report, 
the recipient must be cautious not to violate Sec.  106.45(b)(7)(i), 
prohibiting the decision-maker from being the same person as the Title 
IX Coordinator or the investigator. Section 106.45(b)(7)(i) prevents an 
investigator from actually making a determination regarding 
responsibility. If an investigator's determination regarding 
credibility is actually a determination regarding responsibility, then 
Sec.  106.45(b)(7)(i) would prohibit it. Otherwise, the Department does 
not wish to be overly prescriptive with respect to the contents of the 
investigative report, and the recipient has discretion as to what to 
include in it.
    If there are multiple complainants and one respondent, then the 
recipient may consolidate the formal complaints where the allegations 
of sexual harassment arise out of the same facts or circumstances, 
under Sec.  106.45(b)(4). The requirement for the same facts and 
circumstances means that the multiple complainants' allegations are so 
intertwined that their allegations directly relate to all the parties. 
Accordingly, if the allegations of sexual harassment arise out of the 
same facts or circumstances, the parties must receive the same written 
determination regarding responsibility under Sec.  106.45(b)(7), 
although the determination of responsibility may be different with 
respect to each allegation depending on the facts. Section 
106.45(b)(7)(iii) requires the recipient to provide the written 
determination regarding responsibility to both parties simultaneously, 
and a recipient may not redact or withhold any part of the written 
determination regarding responsibility from the parties. If a recipient 
consolidates formal complaints, a recipient must issue the same written 
determination regarding responsibility to all parties because the 
allegations of sexual harassment must arise out of the same facts or 
circumstances such that the written determination directly relates to 
all the parties. If a recipient does not consolidate the formal 
complaints, then the recipient must issue a separate written 
determination regarding responsibility for each formal complaint. If 
the formal complaints are not consolidated, then each complainant would 
receive the written determination regarding responsibility with respect 
to that complainant's formal complaint.
    Changes: None.
    Comments: Some commenters were skeptical that the proposed rules 
could adequately protect privacy, given work-arounds that allow parties 
to share information easily. Other commenters suggested that the final 
regulations should avoid specifying how information should be shared, 
given how obsolete technology can quickly become. Another commenter 
stated that the final regulations should require that a school provide 
the parties only with a log of all documents--and not the documents 
themselves--so that if certain documents in the log are protected by 
FERPA, the parties can argue over whether the document is relevant or 
not.
    Discussion: The Department acknowledges that recipients have some 
discretion to determine how privacy should best be protected while 
fully complying with these final regulations. The Department permitted 
but never required that a recipient use a file sharing platform that 
restricts the parties and advisors from downloading or copying the 
evidence in the proposed regulations. The Department is removing the 
phrase ``such as a file sharing platform, that restricts the parties 
and advisors from downloading or copying the evidence'' in Sec.  
106.45(b)(5)(vi) to help alleviate any confusion that the proposed 
regulations required such a platform.
    The Department disagrees that a log of all documents in an 
investigation will provide the parties with the same benefit as 
inspecting and reviewing all evidence directly related to the 
allegations in a formal complaint prior to the completion of an 
investigative report. The purpose of this provision in Sec.  
106.45(b)(5)(vi) is for parties to respond to the evidence prior to the 
completion of the investigative report to help recipients provide a 
fair and accurate investigative report. A log of documents will not 
allow the parties to respond to the evidence, and the parties may not 
always be able to determine whether a record is an education record and 
whether FERPA prohibits the disclosure of personally identifiable 
information contained in an education record merely by reviewing a log 
of documents.
    Changes: The Department removed the phrase ``such as a file sharing 
platform, that restricts the parties and advisors from downloading or 
copying the evidence'' in Sec.  106.45(b)(5)(vi).
    Comments: Some commenters expressed concern that the proposed rules 
would allow employees accused of sexual assault to review the private 
medical records of the complainant, and that it would be strange for 
staff members or employees of a school to have access to private 
student records.
    Discussion: As previously stated, the Department is bound by the 
U.S. Constitution and must administer its final regulations in a manner 
that would not require any person to be deprived of due process or 
other constitutional rights. If an employee is a respondent, then the 
employee must be able to respond to any evidence that directly relates 
to the allegations in a formal complaint. With respect to medical 
records, in order for the medical record to be used in the grievance 
process, a complainant must either offer the recipient medical records 
for such use, or provide voluntary, written consent for the recipient 
to access and use the medical records.\1604\ In the written notice of 
allegations required under Sec.  106.45(b)(2), a recipient will notify 
the parties of the grievance process under Sec.  106.45, including the 
requirement that both parties be able to review and inspect evidence 
obtained as part of the investigation that is directly related to the 
allegations raised in a formal complaint. If a complainant does not 
wish for the respondent to inspect and review any medical record or any 
part of any medical record that is directly related to the allegations, 
then the complainant does not have to provide that medical record to 
the recipient for use in the grievance process or provide consent for 
the recipient to otherwise access or use that medical record.
---------------------------------------------------------------------------

    \1604\ Sec.  106.45(b)(5)(i).
---------------------------------------------------------------------------

    Changes: The final regulations revise Sec.  106.45(b)(5)(i) to 
restrict a recipient from accessing, considering, disclosing, or 
otherwise using a party's records that are made or maintained by a 
physician, psychiatrist, psychologist, or other recognized professional 
or paraprofessional acting in the

[[Page 30437]]

professional's or paraprofessional's capacity, or assisting in that 
capacity, and which are made and maintained in connection with 
provision of treatment to the party, unless the recipient obtains that 
party's voluntary, written consent to do so for a grievance process 
under Sec.  106.45(b). If the party is not an ``eligible student,'' as 
defined in 34 CFR 99.3, then the recipient must obtain the voluntary, 
written consent of a ``parent,'' as defined in 34 CFR 99.3.
    Comments: Some commenters made more general suggestions for 
modifying the proposed rule. One suggested that the final regulations 
ought to clarify that FERPA does not require that hearings be closed 
off to the press and to the public. The same commenter argued that in 
fact all hearings needed to be open to the press and the public under 
the First Amendment. One other commenter stated that the final 
regulations ought to specify whether final adjudication determinations 
can be publicized and published by either of the parties, or by the 
school itself. One commenter suggested that the final regulations state 
that it is not retaliation or a FERPA violation to contest or discuss 
allegations or to criticize dishonest allegations of sexual harassment.
    Discussion: The Department disagrees that hearings under Sec.  
106.45(b)(6) must be open to the press and the public under the First 
Amendment, as the First Amendment does not require that a hearing to 
adjudicate allegations of sexual harassment in an education program or 
activity of a recipient of Federal financial assistance be made open to 
the public and the press. FERPA would preclude hearings to be open to 
the press and the public if the hearings would require disclosure, 
without prior written consent, of personally identifiable information 
from an education record. FERPA and its implementing regulations may 
govern whether the final adjudication determinations can be publicized 
and published by a recipient to which FERPA applies, and these final 
regulations do not address whether the final adjudication 
determinations may be publicized or published other than providing the 
written determination to the parties pursuant to Sec.  
106.45(b)(7)(iii). Additionally, some recipients may have non-
disclosure agreements that comply with other laws, and these final 
regulations neither require nor prohibit such non-disclosure 
agreements. The final regulations provide that the recipient cannot 
restrict the ability of either party to discuss the allegations under 
investigation or to gather and present relevant evidence in Sec.  
106.45(b)(5)(iii). To address the commenter's concerns, the final 
regulations also provide that the exercise of rights protected under 
the First Amendment does not constitute retaliation pursuant to Sec.  
106.71. Threatening to publicize or make a written determination public 
for the purpose of retaliation, however, is strictly prohibited under 
Sec.  106.71 of these final regulations.
    Changes: The Department included a retaliation provision in Sec.  
106.71 that expressly states that the exercise of rights protected 
under the First Amendment does not constitute retaliation.
    Comments: Some commenters offered suggestions to improve the rule. 
One suggested that police investigation files ought to also be made 
available to the parties, in addition to student records. One commenter 
argued that social media profiles and materials ought to be relevant to 
any grievance proceeding as well, particularly for accusers who claim 
trauma but then post contrary items on social media. Another commenter 
argued that the Department should offer technical assistance to schools 
to ensure that the platforms for sharing information are created 
appropriately and that they work.
    One commenter suggested that the final regulations ought to specify 
that records created as part of the grievance process are themselves 
protected by FERPA. Some commenters suggested that the final 
regulations should require that grievance process records containing 
personally identifiable information in them ought to be destroyed at 
the conclusion of the grievance process. One commenter asked that the 
Department clarify that schools have a right to redact documents, so 
long as the redactions are not relevant to the proceeding and the 
redactions are consistent with providing the parties due process. At 
the very least, argued commenters, a school should be allowed to place 
certain restrictions on students repeating information learned as part 
of the evidentiary production or hearing process. In the same vein, 
commenters asked that the Department state clearly that parties are not 
entitled to evidence that is not relevant to a determination of 
responsibility.
    Commenters argued that the final regulations ought to include 
meaningful consequences for parties who violate the confidentiality of 
information. One suggested that the final regulations ought to include 
some statement about retaliation, which is also covered under Title IX, 
in terms of confidential documents.
    One commenter suggested that the final regulations ought to include 
meaningful consequences for schools that fail to implement privacy 
safeguards. One stated that the final regulations ought to instruct 
schools to follow the guidance issued by the Department in the Letter 
to Wachter (signed by Michael Hawes).\1605\
---------------------------------------------------------------------------

    \1605\ See Letter from Michael Hawes, Director of Student 
Privacy Policy, U.S. Dep't. of Education, Off. of Mgmt., to Timothy 
S. Wachter, Knox McLaughlin Gornall & Sennett, P.C. (Dec. 7, 2017), 
https://studentprivacy.ed.gov/sites/default/files/resource_document/file/Letter%20to%20Wachter%20%28Surveillance%20Video%20of%20Multiple%20Students%29_0.pdf.
---------------------------------------------------------------------------

    Discussion: These final regulations do not prevent a recipient from 
making police investigation files available to the parties. If a 
recipient obtains police investigation files as part of its 
investigation of a formal complaint under Sec.  106.45(b)(5) and some 
of the evidence in the police investigation files is directly related 
to the allegations raised in a formal complaint as described in Sec.  
106.45(b)(5)(vi), then the recipient must provide that evidence to the 
parties for their inspection and review. A recipient may use social 
media profiles, assuming that these social media profiles are lawfully 
obtained, as part of the investigation. The Department will continue to 
provide recipients with technical assistance and as previously 
explained, does not require recipients to use a specific platform for 
sharing information.
    Whether FERPA applies to records that are part of a Sec.  106.45 
grievance process depends on the circumstances. For example, education 
records under FERPA may not be implicated at all in a formal complaint 
of sexual harassment by a non-student complainant against a non-student 
respondent. The requirement to destroy records with personally 
identifiable information at the conclusion of the grievance process 
violates the record-keeping requirements in these final regulations. 
Such a requirement also may violate record-keeping requirements under 
the Clery Act, which provides for a seven-year retention period for 
sexual assault, dating violence, domestic violence, and stalking.\1606\
---------------------------------------------------------------------------

    \1606\ 34 CFR 668.24(e)(2)(ii); see U.S. Dep't. of Education, 
Office of Postsecondary Education, The Handbook for Campus Safety 
and Security Reporting 9-11 (2016), https://www2.ed.gov/admins/lead/safety/handbook.pdf.
---------------------------------------------------------------------------

    As previously explained, these final regulations do not require a 
recipient to share any information in records obtained as part of an 
investigation that is not directly related to the allegations in a 
formal complaint, and FERPA may

[[Page 30438]]

even require redaction of such information. The Department disagrees 
with the statement that parties are not entitled to evidence that is 
not relevant to a determination of responsibility. The parties must 
receive all evidence obtained as part of an investigation that is 
directly relevant to the allegations in a formal complaint. Such 
evidence may not always be directly relevant to a determination 
regarding responsibility. The purpose of these final regulations is to 
provide both parties with the opportunity to respond to any evidence 
that directly relates to the allegations in a formal complaint, which 
is why the parties should have the opportunity to inspect and review 
such evidence prior to the hearing or prior to when a determination 
regarding responsibility is made if no hearing is required.
    A recipient may require restrictions or use a non-disclosure 
agreement for confidential information as long as doing so does not 
violate these final regulations or other applicable laws. These final 
regulations do not address confidential information or how to safeguard 
confidential information because the Department cannot begin to 
identify what the universe of confidential information or records may 
constitute. A recipient is better able to identify what constitutes 
confidential records and how these records should be protected in a 
manner that complies with these final regulations. The Department 
includes a retaliation provision in Sec.  106.71, but this provision 
does not specifically address confidential documents. Nonetheless, if 
confidential documents are used for retaliation as defined in Sec.  
106.71, then these final regulations would prohibit such retaliation.
    The Department notes that the Department's Letter to Wachter 
(signed by Michael Hawes),\1607\ may be helpful to recipients in 
determining how to comply with the regulations implementing FERPA.
---------------------------------------------------------------------------

    \1607\ See Letter from Michael Hawes, Director of Student 
Privacy Policy, U.S. Dep't. of Education, Off. of Mgmt., to Timothy 
S. Wachter, Knox McLaughlin Gornall & Sennett, P.C. (Dec. 7, 2017), 
https://studentprivacy.ed.gov/sites/default/files/resource_document/file/Letter%20to%20Wachter%20%28Surveillance%20Video%20of%20Multiple%20Students%29_0.pdf.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Some commenters argued that parties ought to have access 
to all evidence--not just evidence that the school deems relevant--that 
is gathered during the course of investigating a formal complaint. 
Commenters argued that schools cannot be trusted to appropriately 
review and determine which evidence is ``directly relevant,'' as 
opposed to merely ``relevant'' or ``irrelevant.'' Commenters contended 
that schools would under-produce evidence that might be directly 
relevant, out of a bias toward finding a respondent to be responsible 
for sexual harassment. The commenters argued that schools like it when 
respondents are found responsible, since that will facilitate their 
efforts of showing that they are complying with Title IX. One commenter 
suggested that any evidence not produced to a party be logged, such 
that the parties have sufficient information to dispute the 
characterization as not directly relevant.
    Discussion: The Department requires the recipient to provide the 
parties an equal opportunity to inspect and review any evidence 
obtained as part of an investigation that is directly related to 
allegations raised in a formal complaint, including the evidence upon 
which the recipient does not intend to rely in reaching a determination 
regarding responsibility and inculpatory or exculpatory evidence 
whether obtained from a party or other source under Sec.  
106.45(b)(vi). Even though a recipient has some discretion as to what 
evidence is directly related to allegations raised in a formal 
complaint, the Department may determine that a recipient violated Sec.  
106.45(b)(vi) if a recipient does not provide evidence that is directly 
related to allegations raised in a formal complaint to the parties for 
review and inspection. A recipient may choose to log information that 
it does not produce and allow the parties to dispute whether the 
information is directly related to the allegations. Although the 
Department does not impose a requirement to produce such a log during 
an investigation under Sec.  106.45, recipients are welcome to do so 
and may use such a log to demonstrate that both parties agreed certain 
evidence is not directly related to the allegations raised in a formal 
complaint.
    Changes: None.
    Comment: One commenter asked how the recordkeeping requirement in 
Sec.  106.45(b)(10) complies with FERPA. On the issue of records 
retention, one commenter suggested that seven years was slightly 
different than FERPA, stating that FERPA contemplated a range of five 
to seven years.
    Discussion: The recordkeeping requirement in Sec.  106.45(b)(10) 
does not conflict with FERPA. FERPA and its implementing regulations do 
not require recipients of Federal financial assistance to keep records 
for a specific amount of time. FERPA's implementing regulations only 
require that an educational agency or institution not destroy any 
education records if there is an outstanding request to inspect and 
review the records.\1608\ Accordingly, the seven-year retention period 
that the Department adopts in Sec.  106.45(b)(10) does not in any way 
impact a recipient's obligations under FERPA.
---------------------------------------------------------------------------

    \1608\ 34 CFR 99.10(e) (``The educational agency or institution, 
or SEA or its component shall not destroy any education records if 
there is an outstanding request to inspect and review the records 
under this section.'').
---------------------------------------------------------------------------

    Changes: None.

Section 106.6(f) Title VII and Directed Question 3 (Application to 
Employees)

    Comments: A few commenters expressed support for applying the 
proposed rules to employees because it would ensure fairness and help 
to safeguard a level playing field.
    Several commenters expressed general opposition to the NPRM itself 
but asserted that Title IX should apply to employees because it is 
necessary for student safety. Commenters stated that no unique 
circumstances justify treating students and faculty differently under 
Title IX. One commenter emphasized that employees in the workplace who 
are accused of sexual harassment may face life-altering consequences. 
This commenter asserted that recipients may have perverse incentives, 
due to pressure from media and the general public in the current #MeToo 
environment, not to provide adequate due process absent a government 
mandate. The commenter asserted that the NPRM's due process 
protections, including a clear definition of sexual harassment, with 
adequate notice and opportunity for a live hearing with cross-
examination, also should extend to employees. The commenter also 
identified a risk that campus administrators may selectively promote or 
ignore certain Title IX claims to help or undermine the careers of 
certain faculty. And the commenter described a risk that a complainant 
faculty with seniority could coerce witnesses to provide favorable 
testimony.
    One commenter asserted that the Department enforces Title VII, 
while other commenters concluded that the Department does not have 
authority to regulate complaints that do not involve students at all, 
such as employee-on-employee cases. Commenters urged the Department to 
explicitly state that the final regulations, including the adjudication 
processes contained therein, only apply to ``students.'' These 
commenters reasoned that Congress did not intend Title IX's protections 
for equal access to education to apply to employees, because employees 
do not receive education. According to these commenters, the Department 
lacks

[[Page 30439]]

jurisdiction to regulate how recipients handle employee-related 
matters. One commenter requested that the Department supplement the 
final regulations with a clarification of the relationship between 
claims that contain the potential to be adjudicated under either, or 
both, Title VII and Title IX.
    Another commenter requested further explanation of the intersection 
of Title VII and Title IX in the context of the respondent being a 
student-employee on campus.
    One commenter stated that the location of the definition of 
``formal complaint'' and the procedures themselves (Sec.  106.45) were 
located in Subpart D of the NPRM, which implied that they do not apply 
to employee complaints alleging sexual harassment in employment. The 
commenter asserted that it is unclear if recipients are expected to 
handle employee complaints under Sec.  106.8 instead, which would 
require two different processes with different definitions of sexual 
harassment, and inquired as to how complaints by student-employees 
should be handled.
    Several commenters opposed the written notice requirements in Sec.  
106.45(b)(5)(v) because they believe the provision is unclear as to how 
it will apply to a recipient's employees.
    Several commenters noted that the deliberate indifference standard 
is lower than the standard imposed on employers under Title VII and/or 
the standard articulated by the 2001 guidance. One commenter asserted 
that the obligation to dismiss the formal complaint with respect to 
conduct that does not constitute sexual harassment as defined in Sec.  
106.30 or that did not occur within the recipient's program or activity 
undercuts an employer's ability to take proactive steps to investigate 
and sanction unwelcome conduct of a sexual nature before it becomes 
sexual harassment as defined in the proposed Title IX regulations or 
sexual harassment prohibited under the Title VII standard.
    One commenter argued that the Department should avoid taking a 
position on whether Title IX applies to employees. This commenter 
reasoned that the Department should limit this rulemaking to student-
complainant cases because of a split among Federal circuit courts 
regarding whether Title VII provides the exclusive remedy for employee 
discrimination claims. Similarly, other commenters noted that because 
some Federal courts have held Title VII preempts Title IX regarding 
employment claims, extending the proposed rules in this context may be 
ineffective. Similarly, another commenter urged the Department to 
clarify that Sec.  106.6(f) is not intended to create a new Title IX 
private right of action for employees.
    Discussion: The Department appreciates support for its final 
regulations, which apply to employees. Congress did not limit the 
application of Title IX to students. Title IX, 20 U.S.C. 1681, 
expressly states: ``No person in the United States shall, on the basis 
of sex, be excluded from participation in, be denied the benefits of, 
or be subjected to discrimination under any education program or 
activity receiving Federal financial assistance . . . .'' Title IX, 
thus, applies to any person in the United States who experiences 
discrimination on the basis of sex in any education program or activity 
receiving Federal financial assistance. Similarly, these final 
regulations, which address sexual harassment, apply to any person, 
including employees, in an education program or activity receiving 
Federal financial assistance.
    The Department also notes that Title VII is not limited to 
employees and may apply to individuals other than employees. Title VII 
prohibits ``unlawful employment practices'' against ``an individual'' 
by employers, labor unions, employment agencies, joint-labor management 
committees, apprenticeship programs and, thus, protects individuals 
other than employees such as job and apprenticeship applicants.\1609\ 
As Title VII protects more than just employee's rights, the Department 
revises Sec.  106.6(f) to state that nothing in Part 106 of Title 34 of 
the Code of Federal Regulations may be read in derogation of any 
individual's rights rather than just any employee's rights under Title 
VII. The Department recognizes that employers must fulfill their 
obligations under Title VII and also under Title IX. There is no 
inherent conflict between Title VII and Title IX, and the Department 
will construe Title IX and its implementing regulations in a manner to 
avoid an actual conflict between an employer's obligations under Title 
VII and Title IX.
---------------------------------------------------------------------------

    \1609\ 42 U.S.C. 2000e-(a)-(d).
---------------------------------------------------------------------------

    The Department agrees that students and employees, including 
faculty and student workers, should not be treated differently under 
its final regulations.\1610\ Employees should receive the same benefits 
and due process protections that students receive under these final 
regulations, and these final regulations, including the due process 
protections in Sec.  106.45, apply to employees. The Department notes 
that its regulations have long addressed employees. For example, 34 CFR 
part 106, subpart E expressly addresses discrimination on the basis of 
sex in areas unique to employment. Prior to the establishment of the 
Department of Education, the Supreme Court noted that the Department of 
Health, Education, and Welfare's ``workload [was] primarily made up of 
`complaints involving sex discrimination in higher education academic 
employment.' ''\1611\
---------------------------------------------------------------------------

    \1610\ As discussed in the ``Section 106.44(d) Administrative 
Leave'' subsection of the ``Additional Rules Governing Recipients' 
Responses to Sexual Harassment'' section of this preamble, the 
exception in the final regulations under which employees are treated 
differently from students, is that a ``non-student employee'' may be 
placed on administrative leave during the pendency of a grievance 
process that complies with Sec.  106.45.
    \1611\ Cannon v. Univ. of Chicago, 441 U.S. 677, 708 fn. 42 
(1979).
---------------------------------------------------------------------------

    The split among Federal courts relates to whether an implied 
private right of action exists for damages under Title IX for 
redressing employment discrimination by employers.\1612\ These Federal 
cases focus on whether Congress intended for Title VII to provide the 
exclusive judicial remedy for claims of employment 
discrimination.\1613\ Courts have not precluded the Department from 
administratively enforcing Title IX with respect to employees. The 
Supreme Court also expressly recognized the application of Title IX to 
redress employee-on-student sexual harassment in Gebser.\1614\
---------------------------------------------------------------------------

    \1612\ See Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545 (3d 
Cir. 2017); Lakosi v. James, 66 F.3d 751, 755 (5th Cir. 1995); 
Burrell v. City Univ. of N.Y., 995 F. Supp. 398, 410 (S.D.N.Y. 
1998); Cooper v. Gustavus Adolphus Coll., 957 F. Supp. 191, 193 (D. 
Minn. 1997); Bedard v. Roger Williams Univ., 989 F. Supp. 94, 97 
(D.R.I. 1997); Torres v. Sch. Dist. of Manatee Cnty., Fla., No. 
8:14-CV-1021-33TBM, 2014 WL 418364 at *6 (M.D. Fla. Aug. 22, 2014); 
Winter v. Pa. State Univ., 172 F. Supp. 3d 756, 774 (M.D. Pa. 2016); 
Uyai v. Seli, No. 3:16-CV-186, 2017 WL 886934 at *6 (D. Conn. Mar. 
6, 2017); Fox v. Pittsburg State Univ., 257 F. Supp. 3d 1112, 1120 
(D. Kan. 2017).
    \1613\ See id.
    \1614\ Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 277 
(1998).
---------------------------------------------------------------------------

    The Department's longstanding position is that its Office for Civil 
Rights (OCR) addresses, under Title IX, sex discrimination in the form 
of sexual harassment, including by or against employees. For example, 
the Department's 2001 Guidance specifically addressed the sexual 
harassment of students by school employees.\1615\ The Department also 
has enforced its Title IX regulations, including regulations 
interpreted to address sexual harassment, as to employees.\1616\
---------------------------------------------------------------------------

    \1615\ 2001 Guidance at iv-v, 3, 5, 8-12.
    \1616\ See, e.g., U.S. Dep't. of Education, Office for Civil 
Rights, Resolution Letter to Univ. of Va. 18-20 (Sept. 21, 2015), 
https://www2.ed.gov/documents/press-releases/university-virginia-letter.pdf; U.S. Dep't. of Education, Office for Civil Rights, Title 
IX Resolution Letter to Yale Univ. 3 (June 15, 2012) (``The Title IX 
regulation, at 34 CFR Section 106.8(a), specifically requires that 
each recipient designate at least one employee to coordinate its 
responsibilities to comply with and carry out its responsibilities 
under Title IX, including any investigation of any complaint 
communicated to it alleging noncompliance with Title IX (including 
allegations that the recipient failed to respond adequately to 
sexual harassment). This provision further requires that the 
recipient notify all its students and employees of the name (or 
title), email and office address and telephone number of the 
employee(s) so designated.'') (emphasis added), https://www2.ed.gov/about/offices/list/ocr/docs/investigations/01112027-a.pdf.

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

[[Page 30440]]

    Contrary to the commenter's assertion, the Department does not have 
the authority to create a Title IX private right of action for 
employees through these final regulations. The Department has the 
authority to administratively enforce Title IX. Accordingly, these 
final regulations do not need to expressly state that the Department is 
not intending to create a new Title IX private right of action for 
employees. The commenter accurately notes that the definition of 
``formal complaint'' and the grievance process for a formal complaint 
are in 34 CFR part 106, subpart D, which addresses sex discrimination 
on the basis of sex in education programs and activities, and not 
subpart E, which addresses discrimination on the basis of sex in 
employment in education programs and activities. Subpart D applies to 
all sex discrimination on the basis of sex and not just sex 
discrimination on the basis of sex with respect to students. Subpart D 
is the only subpart that directly addresses sexual harassment through 
these final regulations. The Department expressly states in Sec.  
106.51(b) that subpart E applies to recruitment, advertising, and the 
process of application for employment, the rate of pay or any other 
form of compensation, and change in compensation, and other matters 
that specifically concern employment, but subpart E does not apply to 
allegations of sexual harassment by or against an employee. Only 
subpart D addresses sexual harassment, and these final regulations in 
subpart D apply to any person who experiences sex discrimination in the 
form of sexual harassment in an education program or activity of a 
recipient of Federal financial assistance. To help clarify these 
points, the Department has revised the final regulations so that the 
definitions in Sec.  106.30 apply to the entirety of 34 CFR part 106 
and not just to subpart D of 34 CFR part 106.\1617\ Accordingly, 
recipients are expected to handle any formal complaints of sexual 
harassment in an education program or activity against a person in the 
United States through the grievance process in Sec.  106.45. The 
grievance process in Sec.  106.45 applies irrespective of whether the 
complainant or respondent is a student or employee. The Department is 
aware that Title VII imposes different obligations with respect to 
sexual harassment, including a different definition, and recipients 
that are subject to both Title VII and Title IX will need to comply 
with both sets of obligations. Nothing in these final regulations, 
however, shall be read in derogation of an individual's rights, 
including an employee's rights, under Title VII, as expressly stated in 
Sec.  106.6(f). Similarly, nothing in these final regulations precludes 
an employer from complying with Title VII. The Department recognizes 
that employers must fulfill both their obligations under Title VII and 
Title IX, and there is no inherent conflict between Title VII and Title 
IX.
---------------------------------------------------------------------------

    \1617\ Consistent with these clarifications regarding the 
coverage of sexual harassment under subpart D, including with 
respect to employees, we also revised Sec.  106.44(d) (authorizing a 
recipient to place a non-student employee on administrative leave 
during the pendency of a Sec.  106.45 grievance process) to state 
that nothing in subpart D precludes administrative leave, instead of 
stating that nothing in Sec.  106.44 precludes administrative leave.
---------------------------------------------------------------------------

    The Department does not share the commenter's concerns about the 
application of Sec.  106.45(b)(5)(v) to a recipient's employees. 
Section 106.45(b)(5)(v) requires a recipient to provide to the party 
whose participation is invited or expected written notice of the date, 
time, location, participants, and purpose of all hearings, 
investigative interviews, or other meetings with a party, with 
sufficient time for the party to prepare to participate. Employees that 
go through the grievance process described in Sec.  106.45 deserve the 
same written notice as other individuals who go through this grievance 
process. Nothing precludes the recipient from providing such written 
notice to its employees.
    The Department acknowledges that the final regulations deviate from 
the standard articulated in its 2001 Guidance, by which recipients must 
respond to allegations of sexual harassment. We explain the rationale 
for our departure from prior policy positions earlier in this preamble 
in the section on ``Adoption and Adaption of the Supreme Court's 
Framework to Address Sexual Harassment.'' Additionally, the Department 
acknowledges that the standard for responding to sexual harassment 
under Title VII is different than the standard under Title IX. The 
deliberate indifference standard in Sec.  106.44(a) is the most 
appropriate standard under Title IX as recipients are in the business 
of education where people are engaged in a marketplace of ideas that 
may challenge their own. To avoid restrictions on the speech, conduct, 
and other expressive activity that helps provide a robust education for 
students and academic freedom for faculty and staff, the Department 
adopts the standard that the Supreme Court articulated for Title IX 
cases rather than the standard that the Supreme Court has articulated 
for Title VII or other statutory schemes.
    With respect to Sec.  106.45(b)(3)(i), which requires mandatory 
dismissal in certain circumstances, the Department has revised this 
provision to clarify that such a dismissal does not preclude action 
under a non-Title IX provision of the recipient's code of 
conduct.\1618\ If a recipient has a code of conduct for employees that 
goes beyond what Title IX and these final regulations require (for 
instance, by prohibiting misconduct that does not meet the definition 
of ``sexual harassment'' under Sec.  106.30, or by prohibiting 
misconduct that occurred outside the United States), then a recipient 
may enforce its code of conduct even if the recipient must dismiss a 
formal complaint (or allegations therein) for Title IX purposes. These 
regulations do not preclude a recipient from enforcing a code of 
conduct that is separate and apart from what Title IX requires, such as 
a code of conduct that may address what Title VII requires. 
Accordingly, recipients may proactively address conduct prohibited 
under Title VII, when the conduct does not meet the definition of 
sexual harassment in Sec.  106.30, under the recipient's own code of 
conduct, as these final regulations apply only to sexual harassment as 
defined in Sec.  106.30.
---------------------------------------------------------------------------

    \1618\ Sec.  106.45(b)(3)(i) (providing that the ``recipient 
must investigate the allegations in a formal complaint. If the 
conduct alleged by the complainant would not constitute sexual 
harassment as defined in Sec.  106.30 even if proved, did not occur 
in the recipient's education program or activity, or did not occur 
against a person in the United States, then the recipient must 
dismiss the formal complaint with regard to that conduct for 
purposes of Title IX but ``such a dismissal does not preclude action 
under another provision of the recipient's code of conduct.'').
---------------------------------------------------------------------------

    Campus administrators will not be able to ignore or promote certain 
reports of sexual harassment to help or undermine the careers of 
certain faculty. These final regulations apply to all reports of sexual 
harassment, and a recipient cannot ignore or promote certain reports. 
In response to these and

[[Page 30441]]

other comments, the Department has added a provision to expressly 
prohibit retaliation in Sec.  106.71. Under Sec.  106.71, a faculty 
member with seniority could not coerce witnesses to provide favorable 
testimony. No recipient or other person may intimidate, threaten, 
coerce, or discriminate against any individual for the purpose of 
interfering with any right or privilege secured by Title IX or this 
part.
    Contrary to the commenter's assertion, the Department does not have 
authority to enforce, implement, or administer Title VII. While we 
appreciate the commenter's interest in supplementing the final 
regulations to clarify the relationship between Title VII and Title IX, 
we decline to include such an explanation at this time. As previously 
stated, there is no inherent conflict between Title VII and Title IX, 
and the Department will construe Title IX and its implementing 
regulations, including these final regulations, in a manner to avoid an 
actual conflict between an employer's obligations under Title VII and 
Title IX.
    Changes: The Department revises Sec.  106.6(f) to state that 
nothing in 34 CFR part 106 may be read in derogation of any 
individual's rights under Title VII. The Department has added Sec.  
106.71 to expressly prohibit retaliation. Additionally, the Department 
has revised Sec.  106.30 to clarify that aside from the definitions of 
``elementary and secondary school'' and ``postsecondary institution,'' 
the definitions in Sec.  106.30 apply to all of 34 CFR part 106 and not 
just to subpart D of part 106.\1619\ For similar clarity we have 
revised Sec.  106.44(d) to refer to subpart D of 34 CFR part 106 rather 
than solely to Sec.  106.44. With respect to a mandatory dismissal 
under Sec.  106.45(b)(3)(i), the Department has revised this provision 
to clarify that such a dismissal is only for Title IX purposes and does 
not preclude action under another provision of the recipient's code of 
conduct.
---------------------------------------------------------------------------

    \1619\ The NPRM proposed that the definitions in Sec.  106.30 
apply only to Subpart D, Part 106 of Title 34 of the Code of Federal 
Regulations. 83 FR 61496. Aside from the words ``elementary and 
secondary school'' and ``postsecondary institution,'' the words that 
are defined in Sec.  106.30 do not appear elsewhere in Part 106 of 
Title 34 of the Code of Federal Regulations. Upon further 
consideration and for the reasons articulated in this preamble, the 
Department would like the definitions in Sec.  106.30 to apply to 
Part 106 of Title 34 of the Code of Federal Regulations, except for 
the definitions of the words ``elementary and secondary school'' and 
``postsecondary institution.'' The definitions of the words 
``elementary and secondary school'' and ``postsecondary 
institution'' in Sec.  106.30 will apply only to Sec. Sec.  106.44 
and 106.45. This revision is not a substantive revision because this 
revision does not change the definitions or meaning of existing 
words in Part 106 of Title 34 of the Code of Federal Regulations. 
Ensuring that the definitions in Sec.  106.30 apply throughout Part 
106 of Title 34 of the Code of Federal Regulations will provide 
clarity and consistency for future application. We also have 
clarified in Sec.  106.81 that the definitions in Sec.  106.30 do 
not apply to 34 CFR 100.6-100.11 and 34 CFR part 101, which are 
procedural provisions applicable to Title VI. Section 106.81 
incorporates these procedural provisions by reference into Part 106 
of Title 34 of the Code of Federal Regulations.
---------------------------------------------------------------------------

    Comments: Another commenter urged the Department to explicitly 
require that all of a recipient's employees be aware of the possibly 
criminal nature of employee-on-student sexual misconduct under State 
laws and to comply with State mandatory reporting requirements. One 
commenter stated that elementary and secondary school recipients must 
ensure that if a student discloses information about sexual misconduct 
by another student or employee, that all employees must report the 
information to the Title IX Coordinator.
    Discussion: The Department encourages all recipients to comply with 
all laws applicable to the recipient. The Department, however, does not 
have the authority to enforce or administer State laws or State 
mandatory reporting requirements. Additionally, it would be a huge 
burden for the Department to keep track of all the possibly criminal 
nature of employee-on-student sexual misconduct under State laws and 
State mandatory reporting requirements to make certain that recipients 
are aware of such State law requirements or are complying with such 
requirements.
    The Department agrees with the commenter's sentiment that any 
employee in the elementary and secondary context should be responsible 
for instituting corrective measures on behalf of the recipient if these 
employees have notice of sexual harassment or allegations of sexual 
harassment, and the Department has revised the definition of ``actual 
knowledge'' in Sec.  106.30 to include notice to all employees of an 
elementary or secondary school. Although an elementary or secondary 
school may require employees to report the information to the Title IX 
Coordinator, a student's report of sexual harassment or notice of 
sexual harassment or allegations of sexual harassment to any employee 
of the elementary or secondary school is sufficient to hold the school 
district liable for a proper response under these final regulations.
    Changes: The Department has revised the definition of actual 
knowledge in Sec.  106.30 to include notice of sexual harassment to any 
employee in the elementary or secondary school context.
    Comments: Some commenters proposed that the Department apply the 
proposed rules to employees but with some modifications. Commenters 
asserted that overzealous Title IX enforcement and a broad conception 
of ``harassment'' has undermined faculty rights, free speech, and 
academic inquiry. One commenter requested that the Department not adopt 
the student-on-student harassment definition for faculty, but to 
instead adopt a ``severe or pervasive'' standard for the employment 
context. This commenter also suggested that the final regulations 
clearly state they do not preclude recipients' obligation to honor 
additional rights negotiated by faculty in any collective bargaining 
agreement or employment contract. Another commenter contended that, 
unlike employees, students can be protected during an investigation by 
a no-contact order. But employees presumably have ongoing relationships 
with other community members and are likely to continue working 
together throughout the investigation period. The commenter expressed 
concern that employees may risk their jobs by acting as a complainant 
or witness.
    Discussion: As explained above, the Department's final regulations 
apply to employees, and the Department cannot discern any meaningful 
justification to treat employees, including faculty, differently than 
students with respect to allegations of sexual harassment. The 
Department believes that students and employees should have the same 
protections with respect to regulations addressing sexual harassment. 
The Department notes that employees, including faculty, sometimes 
sexually harass students. It would be difficult to reconcile how 
regulations would apply to employee-on-student sexual harassment, if 
the Department had a different set of regulations that apply to 
employees than to students such that a student-complainant's rights 
depended on the identity of the respondent as a student or employee.
    The Department does not wish to adopt a ``severe or pervasive'' 
standard for the reasons explained throughout this preamble, including 
in the ``Definition of Sexual Harassment'' subsection of the ``Adoption 
and Adaption of the Supreme Court's Framework to Address Sexual 
Harassment'' section, and these reasons include guarding against the 
infringement of First Amendment freedoms such as academic freedom. The 
Department recognizes that other laws such as Title VII may have a 
different standard and impose different requirements. There is no 
inherent conflict between Title VII and Title IX, and employers may 
comply with the requirements under both Title VII and Title IX.

[[Page 30442]]

    These final regulations do not preclude a recipients' obligation to 
honor additional rights negotiated by faculty in any collective 
bargaining agreement or employment contract, and such contracts must 
comply with these final regulations. In the Department's 2001 Guidance, 
and specifically in the context of the due process rights of the 
accused, the Department recognized that ``additional or separate rights 
may be created for employees . . . by . . . institutional regulations 
and policies, such as faculty or student handbooks, and collective 
bargaining agreements.''\1620\ The Department has never impeded a 
recipient's ability to provide parties with additional rights as long 
as the recipient fulfils its obligations under Title IX. The Department 
has never suggested otherwise, and we believe it is unnecessary to 
expressly address this concern in the regulatory text. Although 
recipients may give employees additional or separate rights, recipients 
must still comply with these final regulations, which implement Title 
IX.
---------------------------------------------------------------------------

    \1620\ 2001 Guidance at 22.
---------------------------------------------------------------------------

    A recipient may provide a mutual restriction on contact between the 
parties, including when an employee is a party, under the final 
regulations. The final regulations do not restrict the availability of 
supportive measures, as defined in Sec.  106.30, to only students. 
Rather, supportive measures are available to any complainant or 
respondent, including employee-complainants and employee-respondents.
    In response to commenters' concerns, the Department has added a 
provision to expressly prohibit retaliation in Sec.  106.71. Under 
Sec.  106.71, no recipient or other person may intimidate, threaten, 
coerce, or discriminate against any individual for the purpose of 
interfering with any right or privilege secured by Title IX or this 
part, or because the individual has made a report or complaint, 
testified, assisted, or participated in any manner in an investigation, 
proceeding, or hearing under this part. The Department will not 
tolerate retaliation against anyone, including an employee who is a 
complainant or a witness.
    Changes: The Department has added a provision to Sec.  106.71 to 
expressly prohibit retaliation.
    Comments: Many commenters argued that application of the proposed 
rules to employees is problematic because it would conflict with 
Federal law and congressional intent. Commenters noted that Title VII 
already prohibits sex discrimination, including sexual harassment, in 
the employment context, and that other Federal laws prohibit harassment 
based on other protected characteristics such as race, age, and 
disability in the employment context. Commenters contended that it 
would be illogical for the Department to establish protections for 
respondents accused of sexual harassment that do not exist for 
respondents accused of race, age, or disability discrimination. A few 
commenters proposed that the final regulations explicitly state that 
they apply only to allegations involving student-respondents, and that 
sexual allegations against employees are governed by Title VII and 
State and local non-discrimination in employment laws. Similarly, 
another commenter asked that the final regulations explicitly state 
that Title VII and similar State and local laws apply where the 
respondent is an employee, and that Title IX does not require any 
process in such cases. Some commenters also expressed concern that if 
the proposed rules apply in the employment context, then recipients 
would face the impossible situation of having to comply with 
contradictory Title IX and Title VII standards. Commenters described 
specific conflicting elements of Title IX and Title VII, including the 
NPRM's formal complaint requirement, notice requirement, deliberate 
indifference standard, sexual harassment definition, and the live 
hearing requirement. Commenters argued these Title IX provisions, which 
they alleged conflict with Title VII, are less protective than Title 
VII, and that the Department should not provide less protection to 
children in school than adults in the workplace. Some commenters also 
suggested that conflicts between Title IX and Title VII may create 
confusion and expose recipients to liability. One commenter asserted 
that the Department should proceed carefully when affecting a 
recipient's personnel decisions because Congress expressed concern 
about the potential for Federal overreach when creating the Department 
in 1979 and included a clear statutory prohibition that the Department 
may not exercise direction, supervision, or control over any 
recipient's administration or personnel.
    Some commenters expressed confusion about the applicability of the 
proposed grievance process provisions (specifically, Sec.  106.45) to 
employees and asked the Department to clarify the scope of the 
grievance procedure requirements with respect to employees. These 
commenters argued that applying the grievance process required under 
the final regulations to complaints against all faculty and staff would 
be an expansion of Title VII and is outside of the Department's 
jurisdiction. They also noted that employers already have well-
established policies and procedures informed by decades of Title VII 
jurisprudence which drive their responses to allegations of sexual 
harassment and differ greatly from the requirements in Sec.  106.45.
    Discussion: The Department disagrees that applying these final 
regulations to employees conflicts with Federal law and congressional 
intent. Congress enacted both Title VII and Title IX to address 
different types of discrimination. Congress enacted Title IX to address 
sex discrimination in any education program or activity receiving 
Federal financial assistance, whereas Congress enacted Title VII to 
address sex discrimination in the workplace. As commenters also 
acknowledge, the Supreme Court in interpreting Title IX and Title VII 
has held that different definitions of and standards for addressing 
sexual harassment apply under Title IX than under Title VII. Although 
there may be some overlap between Title VII and Title IX, it is not 
illogical for the Department to establish protections for parties who 
are reporting sexual harassment or defending against allegations of 
sexual harassment that are not the same as for parties who are dealing 
with race, age, or disability discrimination because Title IX, unlike 
Title VII, solely concerns sex discrimination in an education program 
or activity that receives Federal financial assistance. Allegations of 
sexual harassment may implicate a person's reputation, for example, in 
ways that allegations of race, age, or disability discrimination may 
not, even though all of these types of discrimination are prohibited. 
For instance, false statements about a person's sexual activity may be 
actionable as defamation per se.\1621\
---------------------------------------------------------------------------

    \1621\ E.g., Rose v. Dowd, 265 F. Supp. 3d 525, 541 (E.D. Pa. 
2017) (noting that statements imputing serious sexual misconduct 
constitute defamation per se under multiple State laws).
---------------------------------------------------------------------------

    The Department acknowledges that Title VII and Title IX impose 
different requirements and that some recipients will need to comply 
with both Title VII and Title IX. Although recipients have noted that 
Title VII and Title IX have different standards for sexual harassment, 
recipients have not explained why they cannot comply with both 
standards. The Department's view is that there is no inherent conflict 
between Title VII and Title IX, including these final regulations. For

[[Page 30443]]

example, Title VII defines sexual harassment as severe or pervasive 
conduct, while Title IX defines sexual harassment as severe and 
pervasive conduct. Nothing in these final regulations precludes a 
recipient-employer from addressing conduct that it is severe or 
pervasive, and Sec.  106.45(b)(3)(i) provides that a mandatory 
dismissal under these final regulations does not preclude action under 
another provision of the recipient's code of conduct. Thus, a 
recipient-employer may address conduct that is severe or pervasive 
under a code of conduct for employees to satisfy its Title VII 
obligations. Courts impose different requirements under Title VII and 
Title IX, and recipients comply with case law that interprets Title VII 
and Title IX differently. Similarly, recipients may comply with 
different regulations implementing Title VII and Title IX. For example, 
nothing in Title VII precludes an employer from allowing employees to 
file formal complaints or from providing notice to an employee such as 
notice of the allegations against the employee or notice of the 
dismissal of any allegations as required in these final regulations. 
These final regulations require all recipients with actual knowledge of 
sexual harassment in an education program or activity of the recipient 
against a person in the United States, to respond promptly in a manner 
that is not deliberately indifferent, irrespective of whether the 
complainant and respondent are students or employees.
    The Department is not exercising direction, supervision, or control 
over any recipient's administration or personnel. Indeed, Sec.  
106.44(b)(2) specifically states that the Assistant Secretary will not 
deem a recipient's determination regarding responsibility to be 
evidence of deliberate indifference by the recipient, or otherwise 
evidence of discrimination under Title IX by the recipient, solely 
because the Assistant Secretary would have reached a different 
determination based on an independent weighing of the evidence. 
Accordingly, the Department will not dictate what the recipient's 
determination regarding responsibility should be for a respondent who 
is an employee. Similarly, the Department will not require a recipient 
to impose a specific type of disciplinary sanction on a respondent who 
is an employee. The Department only requires a recipient to describe 
the range of possible disciplinary sanctions in Sec.  106.45(b)(1)(vi) 
and does not otherwise require a recipient to include specific 
disciplinary sanctions.
    The Department acknowledges that the grievance process in Sec.  
106.45 may apply to employees and disagrees that applying such a 
grievance process to employees is an expansion of Title VII. The 
grievance process in Sec.  106.45 does not contradict Title VII or its 
implementing regulations in any manner and at most may provide more 
process than Title VII requires. These final regulations, however, do 
not expand Title VII, as these final regulations are promulgated under 
Title IX. As previously explained, Title IX prohibits discrimination on 
the basis of sex in a recipient's education program or activity against 
a person in the United States. Title IX and these implementing 
regulations do not necessarily apply in all circumstances, and there 
may be circumstances in which Title VII but not Title IX applies. For 
example, if the alleged sexual harassment did not occur in an education 
program or activity of the recipient, then Title IX and these final 
regulations would not apply.
    Changes: None.
    Comments: A handful of commenters argued that application of the 
proposed rules to employees is problematic because it would conflict 
with State laws, collective bargaining agreements, and other employee 
contracts. Commenters asserted several State employment statutes and 
local policies covering issues including the definition of sexual 
harassment, retaliation, complaint processes, discovery and cross-
examination, and other related matters that may conflict with the 
proposed standards and grievance procedures.
    Commenters also noted the proposed rules would conflict with many 
collective bargaining agreements covering unionized employee groups 
that cover matters such as employee pay, working conditions, and 
disciplinary processes such as the applicable standard of evidence. 
Application of the NPRM to these employee groups, they contended, could 
violate existing multi-year agreements, undermine parties' 
expectations, and would likely require recipients to undergo a lengthy 
and complex renegotiation of union contracts. Commenters expressed 
concern about Federal intrusion on freedom of contract. One commenter 
argued that a collective bargaining agreement providing for notice to 
the accused employee and availability of a post-termination grievance 
procedure and evidentiary hearing before a neutral and experienced 
arbitrator satisfies an employee's constitutional due process rights 
under U.S. Supreme Court case law and is superior to the NPRM's hearing 
process because, among other things, the arbitration process preserves 
the employer's decision-making role and is more efficient because the 
union cannot initiate arbitration if misconduct is clear in its 
judgment.
    One commenter asserted that the live hearing requirement for 
postsecondary institutions creates an unnecessary and duplicative 
process for employees who are subject to a collective bargaining 
agreement. According to this commenter, the collective bargaining 
agreement between a recipient and a union usually requires ``just 
cause'' for discipline, and ``just cause'' requires the employer to 
have evidence of guilt and make decisions after a fair 
investigation.\1622\ This commenter further asserts that a hearing is 
typically not part of the determination of ``just cause'' unless the 
recipient and the union specifically bargain for such a pre-termination 
hearing. This commenter stated that unions that do not require a pre-
termination hearing often bargain to provide a grievance procedure that 
concludes with an arbitration of the dismissal through a hearing with 
cross-examination. This commenter is concerned that a live hearing with 
cross-examination under Sec.  106.45(b)(6)(i) will create a significant 
disincentive for an employee to complain about harassment because that 
employee may be subject to a pre-termination live hearing as well as an 
arbitration that requires a hearing with cross-examination. This 
commenter also asserts that employers will resolve employment disputes 
with employees and unions through resolution agreements to avoid an 
additional hearing.
---------------------------------------------------------------------------

    \1622\ Kenneth May et al., Elkouri & Elkouri: How Arbitration 
Works 15-4 to 15-6 (8th ed. 2017 Supp.).
---------------------------------------------------------------------------

    Another commenter expressed concern that applying the proposed 
rules to unions or members of unions with collective bargaining 
agreements may cause unrest, strikes, and increase litigation risk 
under Federal and State labor laws. One commenter asserted that 
applying the NPRM to non-student employees may conflict with State tort 
law requirements, which impose liability on employers for actions of 
their employees in certain circumstances. A few commenters emphasized 
that the relationship between recipients and employees is fundamentally 
different than the relationship between recipients and students; 
recipients may have a strong interest in maintaining privacy for 
parties and witnesses in workplace

[[Page 30444]]

investigations because those individuals may continue working within 
the campus community. Another commenter asked whether the NPRM requires 
disclosure of all related evidence in employee matters, including 
potentially confidential employment information regarding other 
employees.
    Discussion: The Department acknowledges that some collective 
bargaining agreements may need to be renegotiated for a recipient to 
comply with these final regulations, and the Department understands 
that some recipients have concerns about strikes and unrest as well as 
increased litigation risk under Federal and State labor laws. The 
Department also acknowledges concerns about a recipient's obligation to 
comply with various State employment laws and other laws as well as 
these final regulations. The Department reminds recipients that 
recipients choose to receive Federal financial assistance and that 
these final regulations are a condition of that Federal financial 
assistance. Recipients may wish to forego receiving Federal financial 
assistance if the recipients do not wish to renegotiate a collective 
bargaining agreement or are concerned about complying with State 
employment laws or other laws. The Department is not intruding on the 
freedom of contract, as recipients remain free to choose whether to 
enter into an agreement with the Department to comply with these final 
regulations as a result of receiving Federal financial assistance.
    The Department disagrees with the commenter who recommends adopting 
an arbitration process for employees for the purpose of responding to 
sexual harassment. We believe that the process in Sec.  106.45 to 
address formal complaints of sexual harassment provides robust due 
process protections and are not certain whether these same due process 
protections will be offered in an arbitration process. With respect to 
the arbitration process described by the commenter, the union cannot 
initiate arbitration if misconduct is clear in its judgment. Such an 
arbitration provision gives great authority to the union to determine 
whether the employee is even eligible to receive the opportunity to 
enjoy the alleged due process protections in the arbitration process. 
Unlike the arbitration process that the commenter describes, these 
final regulations provide a formal complaint process that any 
complainant may initiate. Additionally, recipients may facilitate an 
informal resolution process under Sec.  106.45(b)(9).
    The Department appreciates the commenter's concerns about 
collective bargaining agreements that require a post-termination 
grievance procedure. The commenter acknowledges that requirements in 
collective bargaining agreements differ and that some agreements 
provide a pre-termination hearing, while other agreements provide a 
post-termination hearing. The commenter further acknowledges that the 
hearing required in a collective bargaining agreement is a result of a 
negotiation or bargain between unions and recipients. If a recipient 
chooses to accept Federal financial assistance and thus become subject 
to these final regulations, then the recipient may negotiate a 
collective bargaining agreement that requires a pre-termination hearing 
consistent with the requirements for a hearing under Sec.  
106.45(b)(6). Nothing precludes a recipient and a union from 
renegotiating agreements to preclude the possibility of having both a 
pre-termination live hearing that complies with Sec.  106.45(b)(6) and 
a post-termination arbitration that requires a hearing with cross-
examination. These final regulations do not require both a pre-
termination hearing and a post-termination hearing, and recipients have 
discretion to negotiate and bargain with unions acting on behalf of 
employees for the most suitable process that complies with these final 
regulations.
    The Department agrees that employers have a strong interest in 
maintaining privacy for parties and witnesses in workplace 
investigations. In response to concerns regarding privacy and 
confidentiality, the Department has added a provision in Sec.  106.71 
that requires the recipient to keep confidential the identity of any 
individual who has made a report or complaint of sex discrimination, 
including any individual who has made a report or filed a formal 
complaint of sexual harassment, any complainant, any individual who has 
been reported to be the perpetrator of sex discrimination, any 
respondent, and any witness, except as may be permitted by the FERPA 
statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as 
required by law, or to carry out the purposes of 34 CFR part 106, 
including the conduct of any investigation, hearing, or judicial 
proceeding arising thereunder.
    Changes: The Department has added a provision to Sec.  106.71 that 
requires the recipient to keep confidential the identity of any 
individual who has made a report or complaint of sex discrimination, 
including any individual who has made a report or filed a formal 
complaint of sexual harassment, any complainant, any individual who has 
been reported to be the perpetrator of sex discrimination, any 
respondent, and any witness, except as may be permitted by the FERPA 
statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as 
required by law, or to carry out the purposes of 34 CFR part 106, 
including the conduct of any investigation, hearing, or judicial 
proceeding arising thereunder.
    Comments: Commenters cautioned that the Department should not 
disrupt school processes. One commenter contended that the NPRM is too 
prescriptive and wrongly imposes a one-size-fits-all system, thus 
ignoring the reality that recipients employ a wide variety of workers 
with different relationships to their employer, such as temporary, 
part-time, and full-time employees; or at-will, unionized, and tenured 
employees. These different roles often have unique applicable grievance 
procedures, and the commenter contended that the Department is wrongly 
considering imposing the same process on all of them.
    Some commenters believed the NPRM interferes with the at-will 
employment doctrine. Commenters asserted the NPRM should not address 
harassment by employees; under the at-will doctrine, absent a specific 
contract term to the contrary, an employee can quit or be fired without 
liability on the employer or employee, with or without cause. One 
commenter asserted that the Department failed to provide a principled 
reason why sex discrimination and harassment cases, but not other types 
of discrimination or harassment, justify overruling the at-will 
doctrine. Another commenter emphasized that while Title VII also 
prohibits sex discrimination, it does not require the type of detailed 
disciplinary proceedings under the NPRM. However, private employers can 
presumably fire employees for sexual harassment after simply conducting 
an internal investigation. This commenter concluded that it would be 
illogical for private employees in every industry except for higher 
education to be subject to general rules governing at-will employees, 
while the Department suddenly vests employees at private universities 
with certain ``due process'' rights.
    Commenters discussed specific aspects of the NPRM such as the live 
hearing requirement and the possibility that recipients would have to 
supply legal advisors for employees and described these provisions as 
dramatically altering the nature of the

[[Page 30445]]

relationship between the employee and recipient.
    Discussion: The Department realizes that recipients, like most 
employers, may have different types of employees, including temporary, 
part-time, full-time, tenured, and at-will employees. The presence of 
different types of employees does not require that these employees be 
treated any differently for purposes of sexual harassment. A recipient 
should not be able to treat an allegation of sexual harassment 
differently based on the type of employee who is reporting the sexual 
harassment or who is the subject of the report. The Department believes 
that irrespective of position, tenure, part-time status, or at-will 
status, no employee should be subjected to sexual harassment or be 
deprived of employment as a result of allegations of sexual harassment 
without the protections and the process that these final regulations 
provide.
    Employers also may not take an adverse employment action against 
at-will employees, if such an adverse employment action constitutes 
discrimination under Title VII, which includes sex discrimination. 
Thus, these final regulations are not imposing obligations that unduly 
burden recipient-employers. Contrary to the commenters' assertions, the 
Department is not ``overruling'' the at-will employment doctrine or 
requiring private employees in every industry except for higher 
education to be subject to general rules governing at-will employees. 
These final regulations do not apply only to postsecondary institutions 
but also to elementary and secondary schools as well as other 
recipients of Federal financial assistance such as some museums. These 
final regulations apply to any education program or activity of a 
recipient receiving Federal financial assistance. If recipients do not 
wish to become subject to these final regulations, then recipients may 
choose not to receive Federal financial assistance. If the commenter's 
argument is followed to its logical conclusion, then a recipient may 
terminate an at-will employee for reporting sexual harassment and not 
offer any protections to such employees to come forward with 
allegations of sexual harassment under Title IX. The Department finds 
it concerning that recipients would wish to terminate any employee, 
including an at-will employee, for reporting sexual harassment and not 
offer any protections to such employees to come forward with 
allegations of sexual harassment. Similarly, the Department finds it 
concerning that recipients may wish to terminate a person's employment 
based on an allegation of sexual harassment without any investigation 
or other fact-finding activity. We believe that these final regulations 
provide the most appropriate protections and process for both employees 
reporting sexual harassment and employees accused of sexual harassment. 
As explained earlier in this section, allegations of sexual harassment 
have different consequences than allegations of other types of 
discrimination. For example, allegations of sexual harassment may lead 
to a criminal conviction.
    Contrary to the commenter's assertions, these final regulations 
would not require a recipient to provide legal advisors for employees. 
Advisors do not have to be attorneys, and the Department has revised 
the final regulations to clarify that the advisors may be, but are not 
required to be, attorneys.\1623\ These final regulations do not 
otherwise dramatically alter the relationship between the recipient and 
the employee, as employers have always had to address sexual harassment 
in the workplace under either Title IX or Title VII. These final 
regulations simply provide greater clarity and consistency with respect 
to the recipient's obligations to respond to allegations of sexual 
harassment under Title IX.
---------------------------------------------------------------------------

    \1623\ The final regulations include language clarifying that 
party advisors may be, but need not be, attorneys, in Sec.  
106.45(b)(5)(iv) (regarding both parties' equal opportunity to 
select an advisor of choice), Sec.  106.45(b)(2) (initial written 
notice of allegations must advise parties of their right to select 
an advisor of choice), and Sec.  106.45(b)(6)(i) (requiring 
recipients to provide a party with an advisor to conduct cross-
examination on behalf of a party if the party does not have an 
advisor at the hearing).
---------------------------------------------------------------------------

    Changes: The Department has revised Sec.  106.45(b)(5)(iv) and 
Sec.  106.45(b)(6)(i) to clarify that an advisor may be, but is not 
required to be, an attorney.
    Comments: One commenter requests clarification on whether the 
definition of student as a person who has gained admission implies that 
one also becomes an employee at the time of a job offer as opposed to 
at the time the offer is signed and accepted.
    Discussion: The Department appreciates the opportunity to clarify 
whether the definition of the term ``student'' as ``a person who has 
gained admission'' \1624\ implies that one also becomes an employee at 
the time of a job offer as opposed to at the time the offer is signed 
and accepted. The Department notes that the definition of ``student'' 
in 34 CFR 106.2(r) only refers to that term and does not affect the 
definition of the term ``employee'' under the final regulations. The 
Department defers to State law with respect to employees, and State law 
will govern whether a person is an employee as opposed to an 
independent contractor. State law also will govern whether a person is 
an employee at the time of a job offer as opposed to the time when that 
person accepts the job offer. The Department notes, however, that 
employment status may not always be the most relevant determination as 
a complainant must be participating in or attempting to participate in 
an education program or activity of the recipient at the time of filing 
a formal complaint as explained in the definition of ``formal 
complaint'' in Sec.  106.30.
---------------------------------------------------------------------------

    \1624\ See 34 CFR 106.2(r) (``Student means a person who has 
gained admission.'') (emphasis in original).
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter argued the NPRM is unconstitutional under 
U.S. Supreme Court case law as applied to religiously-affiliated 
institutions insofar as it would preclude recipients from immediately 
terminating employment of any employee whose duties include ministerial 
tasks.
    Discussion: An educational institution that is controlled by a 
religious organization is exempt from complying with Title IX and these 
final regulations to the extent that Title IX or its implementing 
regulations would not be consistent with the religious tenets of such 
organization under 20 U.S.C. 1681(a)(3). These final regulations, thus, 
are not unconstitutional, and a recipient may assert an exemption under 
Sec.  106.12 of these final regulations, if applicable.
    Changes: None.
    Comments: A few commenters expressed concern about applying the 
NPRM to student complaints against employees because it could increase 
unfairness and chill reporting. Commenters noted that employee-
respondents generally have funding to pay for private, skilled 
attorneys with experience in cross-examination, whereas students may be 
more likely to hire non-attorneys or less talented low-cost attorneys 
as advisors. This would only exacerbate a power differential between 
employees tied to the campus and students who stand to lose a degree 
for which they invested significant time, energy, and money. Commenters 
also stated that it can be extremely challenging for student-
complainants to be subjected to cross-examination by employee-
respondents, especially if the respondent is a prominent faculty 
member.
    Discussion: We disagree that these final regulations will chill 
reporting as applied to employee-on-student sexual harassment. These 
final regulations

[[Page 30446]]

provide a complainant with various options, including the guarantee 
that the recipient must offer supportive measures, irrespective of 
whether the complainant files a formal complaint. These final 
regulations also contain robust retaliation protections. It is unfair 
and inaccurate to assume that an employee will always have more 
resources than a student and that an employee will be able to hire a 
skilled attorney as an advisor. Employees include all levels of 
employees, and an employee who is a janitor may not earn as much as an 
employee who is a tenured professor. Additionally, some students may 
come from wealthy families who will provide an attorney as an advisor 
for the student. The status of a party as a student or an employee is 
not always indicative of the resources available to that party. Both 
parties will be subjected to cross-examination through a party's 
advisor, and parties have the option of being in separate rooms during 
the live hearing pursuant to Sec.  106.45(b)(6)(i).
    Changes: None.
    Comments: Some commenters stated that the NPRM's requirements, as 
applied to employees, are unduly burdensome on recipients, would 
unnecessarily lengthen resolution time frames, and would increase 
compliance costs. In particular, commenters noted, the NPRM's live 
hearing with cross-examination requirement would lengthen complaint 
resolution time, impede recipients' ability to take action against 
employees who violated policy, and add substantial compliance costs as 
recipients must ensure those overseeing hearings and conducting cross-
examination are competent and qualified to do so. Commenters urged the 
Department not to turn recipients into arms of the criminal justice 
system.
    Discussion: The Department believes that these final regulations 
provide a balanced approach to responding to a complainant's report of 
sexual harassment, while also affording both parties due process 
protections. These final regulations provide that a recipient must 
respond promptly in a manner that is not deliberately indifferent under 
Sec.  106.44(a). The Department further notes that under Sec.  
106.45(b)(1)(v), a recipient must include reasonably prompt time frames 
for the conclusion of the grievance process, including reasonably 
prompt time frames for filing and resolving appeals and informal 
resolution processes, if the recipient offers informal resolution 
processes. These final regulations require a recipient-employer to 
respond promptly including when a respondent is an employee. For the 
reasons stated earlier in this preamble and earlier in this section, 
these final regulations should apply to both students and employees. 
Recipients should be willing to respond in a manner that is not 
deliberately indifferent irrespective of the cost of compliance of 
providing hearing officers and advisors to conduct cross-examination. 
Additionally, a recipient has more discretion under these final 
regulations than under the Department's past guidance. For example, a 
recipient may offer an informal resolution process to resolve sexual 
harassment allegations as between two employees under Sec.  
106.45(b)(9). A recipient, however, cannot offer or facilitate an 
informal resolution process to resolve allegations that an employee 
sexually harassed a student because as explained more fully in the 
``Informal Resolution'' subsection of the ``Section 106.45 Recipient's 
Response to Formal Complaints'' section of this preamble, the power 
dynamic and differential between an employee and a student may cause 
the student to feel coerced into resolving the allegations.
    Changes: None.
    Comments: One commenter argued that the NPRM's application to 
academic medical centers is problematic because these institutional 
structures typically have thousands of employees uninvolved with any 
education program or activity, who work entirely in clinical care and 
do not interact with students. The commenter asserted that the 
Department should not establish broader due process protections for 
these employees than for similarly situated employees at non-academic 
medical centers or for students alleging sexual misconduct outside an 
education program or activity. The commenter proposed that the 
Department allow these entities to develop their own disciplinary 
processes.
    Another commenter suggested that case law is split as to whether 
medical residents and post-graduate fellows, who meet the definition of 
``employees'' under Title VII and most statutes, are covered by Title 
IX at all. This uncertainty exposes academic medical centers to 
litigation risk from both complainants and respondents. The commenter 
contended that if the Department concludes medical residents are 
covered by Title IX, then the final regulations should not apply to 
sexual harassment complaints by patients against medical residents 
because the formal grievance process would be unworkable for cases 
involving only non-students.
    Discussion: The Department understands that academic medical 
centers are unique entities, but Congress did not exempt academic 
medical centers that receive Federal financial assistance from Title 
IX.\1625\ Title IX and these final regulations require recipients to 
respond to sexual harassment in the recipient's education program or 
activity, as defined in Sec.  106.30. The Department is not creating 
broader due process protections for employees at these academic medical 
centers than at non-academic medical centers. The Department is 
providing adequate due process protections in this context for 
employees of any recipient of Federal financial assistance, 
irrespective of the nature or character of the recipient. The recipient 
remains free to choose not to receive Federal financial assistance and, 
thus, not become subject to these final regulations.
---------------------------------------------------------------------------

    \1625\ The Department notes that academic medical centers also 
may fall under the jurisdiction of the Office for Civil Rights at 
the U.S. Department of Health and Human Services.
---------------------------------------------------------------------------

    The Department realizes that the live hearing required for 
postsecondary institutions in Sec.  106.45(b)(6)(i) may prove 
unworkable in a different context. Accordingly, as to recipients that 
are not postsecondary institutions, the Department has revised Sec.  
106.45(b)(6)(ii) to provide that the recipient's grievance process may 
require a live hearing and must afford each party the opportunity to 
submit written questions, provide each party with the answers, and 
allow for additional, limited follow-up questions from each party. 
Academic medical centers are not postsecondary institutions, although 
an academic medical center may be affiliated with a postsecondary 
institution or even considered part of the same entity as the 
postsecondary institution. Through this revision the Department is 
giving entities like academic medical centers greater flexibility in 
determining the appropriate process for a formal complaint.
    Academic medical centers may develop their own disciplinary 
processes as long as these processes comply with these final 
regulations. These final regulations address sexual harassment as 
defined in Sec.  106.30, and nothing in these final regulations 
precludes a recipient, including an academic medical center, to respond 
to conduct that is not sexual harassment under another provision of the 
recipient's code of conduct.
    The Department is not categorically exempting any person, including 
medical residents, from Title IX and these final regulations. Whether 
these final regulations apply to a person, including a medical 
resident, requires a factual determination as each incident

[[Page 30447]]

of sexual harassment is unique. If a medical resident is accused of 
sexual harassment in an education program or activity of the recipient 
against a person in the United States, the recipient must respond 
promptly in a manner that is not deliberately indifferent. The 
Department notes that the Title IX statute \1626\ and existing Title IX 
regulations,\1627\ already contain detailed definitions of ``program or 
activity'' that, among other aspects of such definitions, include ``all 
of the operations of'' a postsecondary institution or local education 
agency. The Department will interpret ``program or activity'' in these 
final regulations in accordance with the Title IX statutory (20 U.S.C. 
1687) and regulatory definitions (34 CFR 106.2(h)) as well as the 
statement (based on Supreme Court language in Davis \1628\) added in 
the final regulations to Sec.  106.44(a) that ``education program or 
activity'' includes locations, events, or circumstances over which the 
recipient exercised substantial control over both the context of the 
harassment and the respondent.\1629\
---------------------------------------------------------------------------

    \1626\ 20 U.S.C. 1687.
    \1627\ 34 CFR 106.2(h); 34 CFR 106.2(i) (defining 
``recipient''); 34 CFR 106.31(a) (referring to ``any academic, 
extracurricular, research, occupational training, or other education 
program or activity operated by a recipient which receives Federal 
financial assistance'').
    \1628\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 646 
(1999).
    \1629\ ``Education program or activity'' in Sec.  106.44(a) also 
includes any building owned or controlled by a student organization 
that is officially recognized by a postsecondary institution.
---------------------------------------------------------------------------

    The Department disagrees that the formal complaint process would be 
unworkable for cases involving only non-students. A recipient may make 
supportive measures available to patients and medical residents. For 
example, patients may be assigned to a different physician, and a 
medical resident's schedule may be changed to avoid interaction with a 
complainant or a respondent. Patients may choose to resolve any report 
of sexual harassment against a medical resident through an informal 
resolution process, if the recipient provides such an informal 
resolution process. The Department acknowledges that a person, 
including a patient, must be participating in or attempting to 
participate in the education program or activity of the recipient with 
which the formal complaint is filed. The Department realizes that the 
recipient may not require a patient to participate in a formal 
complaint process, but a patient who is participating in or attempting 
to participate in the education program or activity of the recipient 
must have the option to file a formal complaint under these final 
regulations.
    The Department realizes that the live hearing required for a 
postsecondary institution in Sec.  106.45 may prove unworkable in a 
different context. Accordingly, for recipients that are not 
institutions of higher education, the recipient's grievance process may 
require a live hearing and must afford each party the opportunity to 
submit written questions, provide each party with the answers, and 
allow for additional, limited follow-up questions from each party under 
Sec.  106.45(b)(6)(ii). As previously stated, academic medical centers 
are not postsecondary institutions, although an academic medical center 
may be affiliated with a postsecondary institution or even considered 
part of the same entity as the institution of higher education. Through 
this revision the Department is giving entities like academic medical 
centers greater flexibility in determining the appropriate process for 
a formal complaint.
    Changes: The Department has revised Sec.  106.45(b)(6)(ii), which 
concerns the type of process a recipient must provide in response to a 
formal complaint, to apply to recipients that are not postsecondary 
institutions.
    Comments: One commenter asserted that aspects of Sec.  106.45(b) 
are unworkable for U.S. medical schools because medical students 
typically participate in clinical clerkships with preceptors located at 
separate facilities far from the medical school building. The commenter 
emphasized that it is not feasible to ask preceptive physicians at 
separate hospital systems who are parties or witnesses to participate 
in interviews, hearings, and cross-examination at the home institution.
    Discussion: Recipients, including medical schools, must determine 
what constitutes an education program or activity. If a medical student 
experiences sexual harassment or is accused of sexual harassment in an 
education program or activity of the recipient against a person in the 
United States, the recipient must respond promptly in a manner that is 
not deliberately indifferent. The Title IX statute \1630\ and existing 
Title IX regulations,\1631\ already contain detailed definitions of 
``program or activity'' that, among other aspects of such definitions, 
include ``all of the operations of'' a postsecondary institution or 
local education agency. The Department will interpret ``program or 
activity'' in these final regulations in accordance with the Title IX 
statutory (20 U.S.C. 1687) and regulatory definitions (34 CFR 106.2(h)) 
as well as the statement (based on Supreme Court language in 
Davis\1632\) added in the final regulations to Sec.  106.44(a) that 
``education program or activity'' includes locations, events, or 
circumstances over which the recipient exercised substantial control 
over both the context of the harassment and the respondent. The 
commenter's description of the clinical clerkships with preceptors 
located at separate facilities far from the medical school building may 
or may not be part of the recipient's education program or activity. 
The recipient must consider whether the recipient exercised substantial 
control over both the respondent and the hospital or medical clinic 
where the clinical clerkship is held. The Department also notes that we 
have revised Sec.  106.45(b)(1)(iii) to require recipients to train 
Title IX personnel on the scope of the recipient's education program or 
activity.
---------------------------------------------------------------------------

    \1630\ 20 U.S.C. 1687.
    \1631\ 34 CFR 106.2(h); 34 CFR 106.2(i) (defining 
``recipient''); 34 CFR 106.31(a) (referring to ``any academic, 
extracurricular, research, occupational training, or other education 
program or activity operated by a recipient which receives Federal 
financial assistance'').
    \1632\ Davis, 526 U.S. at 646.
---------------------------------------------------------------------------

    If the clinical clerkship is part of the education program or 
activity of the recipient, the recipient may always ask preceptive 
physicians at separate hospital systems to participate in interviews, 
hearings, and cross-examination remotely. The Department realizes that 
the recipient may not have any control over physicians at separate 
hospital systems and allows a recipient to dismiss a formal complaint 
if specific circumstances prevent the recipient from gathering evidence 
sufficient to reach a determination as to the formal complaint or 
allegations therein under Sec.  106.45(b)(3)(ii). Even if a recipient 
cannot gather evidence sufficient to reach a determination, the 
recipient must still offering supportive measures to its students or 
employees who are complainants under Sec.  106.44(a), which may include 
the opportunity to participate in a different clinical clerkship to 
fulfill an academic requirement.
    Changes: None.
    Comments: Many commenters offered suggestions to the Department 
regarding the application of the NPRM to employees. One commenter 
requested that the final regulations explicitly endorse the important 
role of shared governance in an institution of higher education's 
development of Title IX policies, as faculty are in the best position 
to make responsibility determinations regarding faculty-

[[Page 30448]]

respondents. This commenter argued that any Title IX investigation of 
faculty should start with a referral to the established faculty 
governance committee or, if it does not exist, the final regulations 
should mandate its creation.
    The commenter also proposed that the final regulations explicitly 
require equal due process protections for faculty employees at all 
levels. Another commenter proposed that the Department define 
``employee'' as including all adults, staff, and volunteers working 
under the school's purview. One commenter argued that the final 
regulations should not apply to third parties who do not have a formal 
affiliation with the recipient.
    One commenter requested that the Department make deliberately false 
accusations by students against employee-respondents a Title IX 
violation as gender discrimination and, if not, then at least require 
recipients to take action under other civil rights laws or recipient 
policy.
    One commenter asserted that the NPRM requires ``equitable'' 
procedural elements and ``equal'' treatment of parties, but that Title 
IX's mandate is for ``equitable'' not ``equal'' access. This commenter 
recommended that the Department revise the final regulations to address 
the need for ``equitable'' treatment of parties. According to this 
commenter, equitable treatment might not be exactly the same treatment 
due to the parties' different circumstances, and this commenter 
asserted that equity and equality are not synonymous.
    Discussion: The Department is aware that many postsecondary 
institutions require faculty-governance, and these final regulations do 
not preclude participation of a faculty-governance committee for 
reports of sexual harassment against faculty members. Indeed, the 
hearing officers may be faculty members as long as these hearing 
officers are trained, do not have any conflict of interest, do not have 
bias for or against complainants or respondents generally or for an 
individual complainant or respondent, and comply with the other 
requirements in Sec.  106.45(b)(1)(iii). The Department need not 
mandate such a faculty-governance committee, as recipients have 
discretion to determine how best to deal with reports or formal 
complaints of sexual harassment against faculty members. The Department 
will defer to the discretion of the recipient in this regard.
    As previously stated, Congress did not limit the application of 
Title IX to students. Title IX, 20 U.S.C. 1681, expressly states: ``No 
person in the United States shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination under any education program or activity receiving 
Federal financial assistance . . . .'' Title IX, thus, applies to any 
person in the United States who experiences discrimination on the basis 
of sex under any education program or activity receiving Federal 
financial assistance. Similarly, these final regulations, which address 
sexual harassment, apply to any person, including an employee, in an 
education program or activity receiving Federal financial assistance. 
The Department does not define the level and type of employee, as the 
Department may not be able to adequately capture all the possible types 
of employees who work for a recipient of Federal financial assistance.
    These final regulations also may apply to volunteers, if the 
volunteers are persons in the United States who experience 
discrimination on the basis of sex under any education program or 
activity receiving Federal financial assistance. As previously stated, 
each incident of sexual harassment presents unique facts that must be 
considered to determine the recipient's obligations under these final 
regulations.
    These final regulations recognize that a party may make 
deliberately false accusations, and the retaliation provision in Sec.  
106.71(b)(2) expressly states in relevant part: ``Imposing sanctions 
for making a materially false statement in bad faith in the course of a 
grievance proceeding under this part does not constitute retaliation . 
. . .'' A recipient may take action against a party who makes a 
materially false statement in bad faith in the course of a grievance 
proceeding. Such a materially false statement may but does not always 
constitute discrimination on the basis of sex. A recipient would need 
to examine the content, purpose, and intent of the materially false 
statement as well as the circumstances under which the statement was 
made to determine whether the statement constitutes sex discrimination.
    The Department has made revisions to address the need to treat the 
parties equitably. The Department revised Sec.  106.44(a) to require 
that recipients treat complainants and respondents equitably, 
specifically to mean offering supportive measures to a complainant and 
a grievance process that complies with Sec.  106.45 before the 
imposition of any disciplinary sanctions or other actions that are not 
supportive measures, as defined in Sec.  106.30, for a respondent. 
Similarly, we have revised Sec.  106.45(b)(1)(i) to require equitable 
treatment of complainants by providing remedies where a respondent is 
found responsible, and equitable treatment of respondents by applying a 
grievance process that complies with Sec.  106.45 before imposing 
disciplinary sanctions or other actions that are not ``supportive 
measures,'' as defined in Sec.  106.30. In this manner, the final 
regulations more clearly define where equal treatment of parties, 
versus equitable treatment of parties, is required.
    Changes: The Department has revised Sec.  106.44(a) to require 
recipients to treat complainants and respondents equitably by offering 
supportive measures to a complainant and by following a grievance 
process that complies with Sec.  106.45 before the imposition of any 
disciplinary sanctions or other actions that are not supportive 
measures as defined in Sec.  106.30, against a respondent. Similarly, 
we have also revised Sec.  106.45(b)(1)(i) to require equitable 
treatment of the parties by providing remedies to a complainant where a 
respondent is found responsible and requiring a grievance process that 
complies with Sec.  106.45 before the imposition of any disciplinary 
sanctions or other actions that are not supportive measures as defined 
in Sec.  106.30, against a respondent.
    Comments: Many commenters requested clarification from the 
Department on matters relating to the application of Title IX to 
employees. Commenters asked whether the NPRM only applies to complaints 
by students against students, employees, and third parties or whether 
it also applies to complaints by employees against students and other 
employees. One commenter inquired whether the proposed rules applies to 
third-party complaints against students.
    Another commenter asserted that Title VII deems employers 
responsible for harassment by non-supervisory employees or non-
employees over whom it has control if the employer knew about the 
harassment and failed to take prompt and appropriate corrective action; 
however, the commenter asserted, the NPRM stated that recipients are 
only liable for conduct over which they ``have control.'' This 
commenter requested that the Department clarify this intersection of 
Title VII and Title IX.
    One commenter asked whether the Title VII or Title IX sexual 
harassment definition applies where employees allege harassment by 
students. One commenter asked whether the NPRM's deliberate 
indifference standard or the Title VII standard regarding employer 
liability applies for employee-on-employee cases that occur on campus.

[[Page 30449]]

Another commenter asked whether the NPRM applies to students who are 
also full-time employees of the recipient.
    One commenter expressed concern that the NPRM's live hearing 
requirement for sex discrimination, whether involving faculty, staff, 
or students, may create confusion and conflict between Title IX, Title 
VI, and Title VII. For example, this commenter stated, if allegations 
also involve racial discrimination then it is unclear whether the 
recipient must carve out the non-sex discrimination issue and proceed 
without a live hearing yet address the sex-related claims with a 
hearing.
    Discussion: These final regulations may apply to reports and formal 
complaints by employees against students and other employees, and also 
may apply to third-party complaints against students. These final 
regulations also may apply to students who are full-time employees. As 
explained earlier, Title IX, 20 U.S.C. 1681 prohibits discrimination on 
the basis of sex against a person in the United States in an education 
program or activity and does not preclude application to specific 
groups of people such as employees. Similarly, these final regulations 
require a recipient with actual knowledge of sexual harassment in an 
education program or activity of the recipient against a person in the 
United States to respond promptly and in a manner that is not 
deliberately indifferent, under Sec.  106.44(a). If a recipient has 
actual knowledge of a student sexually harassing an employee or a third 
party in a recipient's education program or activity in the United 
States, then the recipient must respond in a manner that is not 
deliberately indifferent.\1633\ With respect to the whether a grievance 
process is initiated against a respondent, at the time of filing a 
formal complaint, a complainant, whether an employee or a third party 
or a student, must be participating in or attempting to participate in 
the education program or activity of the recipient with which the 
formal complaint is filed.\1634\ The Department acknowledges that a 
third party may be less likely to participate in a grievance process 
under Sec.  106.45 than a party who is a student or employee of the 
recipient,\1635\ but nothing prevents a recipient from complying with 
these final regulations by promptly responding when the recipient has 
actual knowledge of sexual harassment or allegations of sexual 
harassment under Sec.  106.44(a), including by offering supportive 
measures to a complainant.
---------------------------------------------------------------------------

    \1633\ Any person may be a complainant (i.e., a person alleged 
to be the victim of sexual harassment), including a student, 
employee, or third party. Sec.  106.30 (defining ``complainant''). 
Any person may report sexual harassment--whether the person 
reporting is the alleged victim themselves, or a third party--and 
trigger the recipient's response obligations. E.g., Sec.  106.8(a); 
Sec.  106.30 (defining ``actual knowledge'').
    \1634\ Sec.  106.30 (defining ``formal complaint''). See also 
Sec.  106.45(b)(3)(ii) (authorizing discretionary dismissal of a 
formal complaint in certain circumstances, including when the 
respondent is no longer enrolled or employed by the recipient, or 
where specific circumstances prevent the recipient from gathering 
evidence sufficient to reach a determination regarding 
responsibility).
    \1635\ We reiterate that a recipient is prohibited from 
retaliating against any person for participating, or refusing to 
participate, in a Title IX grievance process. Sec.  106.71(a).
---------------------------------------------------------------------------

    The Department recognizes that Title VII and Title IX may impose 
different obligations, but the Department does not administer or 
oversee the administration of Title VII. Accordingly, the Department 
will not opine on how Title VII should be administered or a recipient's 
obligations under Title VII, including when the sexual harassment 
definition or reasonableness standard under Title VII applies. To the 
extent that the commenters seek clarity on a recipient's 
responsibilities under Title IX, these final regulations provide such 
clarity. The Department adopts a deliberate indifference standard in 
Sec.  106.44(a). The Department recognizes that an employer may have a 
different standard under Title VII, and nothing in these final 
regulations or in 34 CFR part 106 precludes an employer from satisfying 
its legal obligations under Title VII. There is no inherent conflict 
between Title VII and Title IX, and the Department will construe Title 
IX and its implementing regulations in a manner to avoid an actual 
conflict between an employer's obligations under Title VII and Title 
IX. The Department also clarifies in Sec.  106.44(a) that education 
program or activity includes locations, events, or circumstances over 
which the recipient exercised substantial control over both the 
respondent and the context in which the harassment occurs.
    These final regulations may impose different requirements than 
Title VI and Title VII, but they do not present an inherent conflict 
with these other statutory schemes. The Department also administers 
Title VI and acknowledges that a recipient has discretion to determine 
whether the non-sex discrimination issue such as race discrimination 
should go through a process like the process described in Sec.  106.45. 
If allegations of sexual harassment arise out of the same facts and 
circumstances as allegations of race discrimination under Title VI, the 
recipient has the discretion to use the process described in Sec.  
106.45 to address sex and race discrimination or choose a different 
process that complies with the Department's regulations implementing 
Title VI to address the allegations of race discrimination.
    Changes: None.
    Comments: One commenter expressed support for Sec.  106.6(f), and 
asserted that the provision appropriately clarifies that Title IX 
cannot deprive individuals of their Title VII rights.
    Another commenter argued that Sec.  106.6(f) fails to clearly 
distinguish application of Title IX from Title VII. This commenter 
urged the Department to clarify Sec.  106.6(f) by identifying which 
specific employee Title VII rights Title IX will not derogate, and to 
also explicitly state that the NPRM does not create a new Title IX 
right of action for employees. Another commenter requested that Title 
VII be the exclusive remedy for complainants alleging sex 
discrimination in employment, and that the final regulations should 
explicitly state that Title VII preempts Title IX in such cases. One 
commenter argued that the Department lacks regulatory authority under 
Title IX to override statutory rights provided by Title VII. This 
commenter provided no further explanation. One commenter suggested that 
if Sec.  106.6(f) states that employee rights under Title VII will not 
be impinged by Title IX regulations, then the final regulations should 
similarly state that Title IX rights will not be impinged by Title VII 
regulations.
    Discussion: The Department appreciates the comment in support of 
its final regulations. The Department does not have the authority to 
administer or oversee the administration of Title VII and, thus, will 
not opine on any specific rights under Title VII that an employee has.
    The Department does not have the power to create a ``new Title IX 
right of action for employees.'' The courts will determine what rights 
of action employees have under Title IX and Title VII. As previously 
noted, the split among Federal courts is whether an implied private 
right of actions exists for damages under Title IX for redressing 
employment discrimination by employers.\1636\ These cases focus on

[[Page 30450]]

whether Congress intended for Title VII to provide the exclusive 
judicial remedy for claims of employment discrimination.\1637\ Courts, 
however, have not precluded the Department from administratively 
enforcing Title IX with respect to employees. Indeed, the Supreme Court 
expressly recognized the application of Title IX to redress employee-
on-student sexual harassment in Gebser.\1638\ The Department notes that 
its regulations have long addressed employees. For example, 34 CFR part 
106, subpart E expressly addresses discrimination on the basis of sex 
in areas unique to employment. When the Department was formerly part of 
the Department of Health, Education, and Welfare, the Supreme Court 
noted that the Department's ``workload [was] primarily made up of 
`complaints involving sex discrimination in higher education academic 
employment.' '' \1639\
---------------------------------------------------------------------------

    \1636\ See Lakosi v. James, 66 F.3d 751, 755 (5th Cir. 1995); 
Burrell v. City Univ. of N.Y., 995 F. Supp. 398, 410 (S.D.N.Y. 
1998); Cooper v. Gustavus Adolphus Coll., 957 F. Supp. 191, 193 (D. 
Minn. 1997); Bedard v. Roger Williams Univ., 989 F. Supp. 94, 97 
(D.R.I. 1997); Torres v. Sch. Dist. of Manatee Cnty., Fla., No. 
8:14-CV-1021-33TBM, 2014 WL 418364 at *6 (M.D. Fla. Aug. 22, 2014); 
Winter v. Penn. State Univ., 172 F. Supp. 3d 756, 774 (M.D. Pa. 
2016); Uyai v. Seli, No. 3:16-CV-186, 2017 WL 886934 at *6 (D. Conn. 
Mar. 6, 2017); Fox v. Pittsburg State Univ., 257 F. Supp. 3d 1112, 
1120 (D. Kan. 2017).
    \1637\ See id.
    \1638\ Gebser, 524 U.S. at 277.
    \1639\ Cannon, 441 U.S. at 708 fn.42.
---------------------------------------------------------------------------

    The Department is not overriding statutory rights provided by Title 
VII, and the commenter does not explain how these final regulations 
override any statutory rights under Title VII.
    These final regulations do not need to state that Title IX rights 
will not be impinged by Title VII regulations, as nothing suggests that 
Title VII may impinge on Title IX rights under these final regulations. 
As previously noted, the Department does not administer or oversee the 
administration of Title VII and will not issue regulations to 
administer Title VII.
    Changes: None.
    Comments: Several commenters contended that establishing different 
Title IX standards than other non-discrimination laws will send the 
wrong message. Commenters emphasized that all forms of discrimination 
are wrong, and the Department should not create different standards for 
Title IX with different levels of protection that do not apply to Title 
VII and other non-discrimination statutes schools must follow. One 
commenter asserted that telling employees to report sexual harassment 
under Title IX may confuse people and lead them to believe that sexual 
harassment wasn't already illegal prior to Title IX or prior to the 
existence of a Title IX office on campus.
    Discussion: The Department respectfully disagrees that establishing 
different requirements under Title IX than other non-discrimination 
laws will send the wrong message. Sex discrimination and the handling 
of sex discrimination claims differ in some important ways from other 
types of discrimination, such as discrimination on the basis of race. 
For example, a person may be criminally charged with some forms of 
sexual harassment such as sexual assault. The Department discusses the 
differences among various non-discrimination statutes, such as Title 
VI, Title IX, and Section 504, in greater detail in the ``Different 
Standards for Other Harassment'' subsection of the ``Miscellaneous'' 
section of this preamble.
    The Department acknowledges that these final regulations share some 
similarities with Title VII but also differ from Title VII. As 
previously explained, an employee of the recipient conditioning the 
provision of an aid, benefit, or service of the recipient on the 
individual's participation in unwelcome sexual conduct, which is 
commonly referred to as quid pro quo sexual harassment, also remains a 
part of the Department's definition. Quid pro quo sexual harassment is 
also recognized under Title VII.\1640\ As discussed in greater detail, 
below, some commenters requested that the Department more closely align 
its definition of sexual harassment with the definition that the 
Supreme Court uses in the context of discrimination based on sex in the 
workplace under Title VII. The Supreme Court declined to adopt the 
definition of sexual harassment in the workplace for Title IX, and the 
Department is persuaded by the Supreme Court's reasoning in Davis that 
``schools are unlike the adult workplace and that children may 
regularly interact in a manner that would be unacceptable among 
adults.'' \1641\ Similarly, a postsecondary institution also differs 
from the workplace. The sense of Congress is that institutions of 
higher education should facilitate the free and robust exchange of 
ideas,\1642\ but such an exchange may prove disruptive, undesirable, or 
impermissible in the workplace. The Department, like the Supreme Court, 
does not wish to extend the definition of sexual harassment in Title 
VII to Title IX because such an extension would broaden the scope of 
prohibited speech and expression and may continue to cause recipients 
to infringe upon the First Amendment freedoms of students and 
employees.
---------------------------------------------------------------------------

    \1640\ E.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 
752-53 (1998).
    \1641\ Davis, 526 U.S. at 651-52 (citing Meritor Sav. Bank, FSB 
v. Vinson, 277 U.S. 57, 67 (1986)).
    \1642\ 20 U.S.C. 1101a(a)(2)(C).
---------------------------------------------------------------------------

    The Department does not believe that allowing employees to report 
sexual harassment or other sex discrimination under Title IX or to the 
Title IX Coordinator or a Title IX office will somehow lead people to 
believe that sexual harassment was lawful until Title IX was enacted or 
until these final regulations take effect. As many commenters have 
noted, Title VII also prohibits discrimination based on sex in 
employment, and employees should know that Congress has prohibited sex 
discrimination in the workplace.
    Changes: None.
    Comments: Many commenters stated that establishing different 
standards in Title IX than in other non-discrimination law will reduce 
recipient flexibility. One commenter argued that the NPRM appears to 
require schools to establish a more complainant-hostile process for 
employee sexual harassment matters than other discrimination-related 
and employee misconduct matters. According to this commenter, this may 
expose schools to potential Title VII liability for sex discrimination.
    One commenter asserted that Sec.  106.45(b)(6)(i), as proposed in 
the NPRM, requires a recipient to permit a party's advisor to ask any 
questions that are relevant and that the rape shield provision does not 
preclude. This commenter was concerned that a wide range of cross-
examination questions may deter victims of sexual harassment, including 
employees, from filing a formal complaint.
    Commenters also sought clarity as to what extent application of the 
proposed rules would impede employers' affirmative defense to 
harassment claims under Title VII or be evidence of negligence in 
responding to sexual harassment. At least two commenters opined that 
these final regulations diminish a recipient's affirmative defense 
under Faragher v. City of Boca Raton \1643\ and Burlington Industries, 
Inc. v. Ellerth \1644\ commonly referred to as the Faragher-Ellerth 
defense. These commenters noted that under the Faragher-Ellerth 
defense, an employer must demonstrate that the employee unreasonably 
failed to utilize the employer's internal corrective mechanism. One 
commenter expressed concern that an employee may successfully argue 
that it was reasonable to refuse to participate in a process that 
requires a live hearing with cross-examination because such a process 
actually deters complaints of sexual harassment. Another commenter 
asserted that the Faragher-Ellerth defense requires the employer to 
exercise reasonable care and noted that

[[Page 30451]]

an employer is vicariously liable for the actions of its supervisors 
under Title VII. This commenter contended that vicarious liability is 
at odds with the requirement of actual knowledge, as defined in Sec.  
106.30.
---------------------------------------------------------------------------

    \1643\ 524 U.S. 775, 777-78 (1998).
    \1644\ 524 U.S. 742, 765 (1998).
---------------------------------------------------------------------------

    A few commenters suggested that the Department is perversely 
imposing more stringent standards for students, including minors, than 
adults to get help. These commenters argued that there should not be a 
more demanding standard to take care of children than adults. One 
commenter generally stated that the Department should be mindful of the 
existing Trump Administration policy against creating duplicative or 
conflicting regulations.
    Another commenter asserted that while one might argue that the 
boilerplate language in the proposed rules indicating that nothing 
therein derogates an employee's Title VII rights means that schools may 
disregard the requirements set out in the proposed rules when 
considering employee complaints of sexual harassment, schools choosing 
this path would run significant risks. According to this commenter, 
such schools would invite OCR complaints or lawsuits by respondents 
alleging that their Title IX rights under the proposed regulations had 
been violated. This commenter asserted that such a legal challenge by 
respondents would no doubt rely heavily upon the Department's 
suggestion that any deviation from the proposed rules may constitute 
sex discrimination against respondents in violation of Title IX. This 
commenter contended that the confusion and potential litigation created 
by the proposed rules threatens harm to employees and employers, 
serving no one's interest.
    Discussion: The Department disagrees that establishing unique 
obligations under Title IX than under other non-discrimination law will 
reduce flexibility for recipients. Instead, these final regulations 
will provide consistency and clarity as to what a recipient's 
obligations are under Title IX and how a recipient must respond to 
allegations of sexual harassment under Title IX. These final 
regulations provide a recipient discretion through the deliberate 
indifference standard in Sec.  106.44(a) and through other provisions 
such as the provision in Sec.  106.44(b) that the Assistant Secretary 
will not second-guess the recipient's determination regarding 
responsibility.
    These final regulations do not establish a more complainant-hostile 
process for employee sexual harassment matters than other 
discrimination-related and employee misconduct matters that may expose 
schools to potential Title VII liability for sex discrimination. These 
final regulations do not favor either complainants or respondents and 
require a recipient's response to treat complainants and respondents 
equitably under Sec.  106.44(a) and Sec.  106.45(b)(1)(i) by offering a 
complainant supportive measures (or remedies where a determination of 
responsibility for sexual harassment has been made against the 
respondent), and both Sec.  106.44(a) and Sec.  106.45(b)(1)(i) 
preclude the imposition of disciplinary sanctions or other actions that 
are not supportive measures as defined in Sec.  106.30, against a 
respondent unless the recipient first applies a grievance process that 
complies with Sec.  106.45. These final regulations do not require a 
recipient to violate Title VII, and the commenter does not explain how 
these final regulations may expose recipients to liability under Title 
VII for sex discrimination. Recipients should comply with both Title 
VII and Title IX, to the extent that these laws apply, and nothing in 
these final regulations precludes a recipient from complying with Title 
VII.
    The Department appreciates the commenters' concerns about a live 
hearing with cross-examination that allows all relevant questions that 
the rape shield provision in Sec.  106.45(b)(6) does not preclude. 
Allowing all relevant questions provides a robust process where 
decision-makers may make informed decisions regarding responsibility 
after hearing all the facts, and these decision-makers receive training 
on how to serve impartially, including by avoiding prejudgment of the 
facts at issue, conflicts of interest, and bias pursuant to Sec.  
106.45(b)(1)(iii). Such a fulsome process does not necessarily deter 
complainants from coming forward with allegations of sexual harassment 
and filing a formal complaint. Complainants receive the same 
opportunity to ask any and all relevant questions, including questions 
about a respondent's sexual behavior or predisposition, as the rape 
shield provision applies only to the complainant's sexual behavior or 
predisposition. A live hearing with cross-examination provides both 
parties with a fair, equitable process that results in more accurate 
and reliable outcomes. Additionally, the Department added a strong 
retaliation provision in Sec.  106.71 which will protect any individual 
involved in a Title IX matter, including employees, from intimidation, 
threats, coercion, or other discrimination for participating or 
refusing to participate in any manner in an investigation, proceeding, 
or hearing.
    These final regulations would not impede an employer's affirmative 
defenses to sexual harassment claims under Title VII, nor do these 
final regulations provide evidence of negligence in responding to 
sexual harassment under Title VII. These final regulations provide in 
Sec.  106.6(f) that nothing in this part shall be read in derogation of 
an individual's rights, including an employee's rights, under Title VII 
or its implementing regulations. Employers may not be able to use 
affirmative defenses to sexual harassment under Title VII for the 
purposes of Title IX, but these final regulations do not in any way 
derogate an employers' affirmative defenses to sexual harassment under 
Title VII. What constitutes sexual harassment and how a recipient is 
required to respond to allegations of sex harassment may be different 
under Title VII and Title IX.
    The Department acknowledges that employers may invoke the Faragher-
Ellerth affirmative defense under Title VII. The Faragher-Ellerth 
affirmative defense essentially allows an employer to avoid strict or 
vicarious liability for a supervisor's harassment of an employee, when 
it does not result in a tangible employment action.\1645\ The defense 
requires ``(a) that the employer exercised reasonable care to prevent 
and correct promptly any . . . harassing behavior, and (b) that the 
plaintiff employee unreasonably failed to take advantage of any 
preventive or corrective opportunities provided by the employer to 
avoid harm otherwise.'' \1646\ The Department acknowledges that the 
definition and standard of sexual harassment under Title VII is 
different than under Title IX, and an employer may need to implement 
policies to address conduct that goes beyond the definition of sexual 
harassment in Sec.  106.30 to fulfill its obligations under Title VII.
---------------------------------------------------------------------------

    \1645\ Ellerth, 524 U.S. at 765.
    \1646\ Id.
---------------------------------------------------------------------------

    For example, the Faragher-Ellerth affirmative defense requires an 
employer to exercise reasonable care with respect to supervisor-on-
employee harassment, while Title IX requires a recipient not to be 
deliberately indifferent. As one commenter stated, Title VII also 
requires a negligence standard if a co-worker harasses another co-
worker. Title VII defines sexual harassment as severe or pervasive 
conduct, while Title IX defines sexual harassment as severe and 
pervasive. Under Title VII, an employer may be held vicariously liable 
for its

[[Page 30452]]

supervisors' actions, whereas Title IX requires a recipient to have 
actual knowledge of sexual harassment. Employers are aware that 
complying with Title IX and its implementing regulations does not 
satisfy compliance with Title VII. These final regulations expressly 
provide that nothing in this part may be read in derogation of an 
individual's rights, including an employee's rights, under Title VII, 
and these final regulations do not prevent or preclude a recipient from 
complying with Title VII.
    Additionally, these final regulations clearly provide that a 
complainant need not file a formal complaint for the recipient to 
provide supportive measures. Indeed, Sec.  106.44(a) requires a 
recipient to offer supportive measures to a complainant, irrespective 
of whether the complainant files a formal complaint. Nothing in these 
final regulations prevents an employer from asserting that the 
consideration and provision of supportive measures may fulfill an 
employer's obligation to take preventive or corrective measures for 
purposes of the Faragher-Ellerth affirmative defense. Similarly, these 
final regulations do not prevent an employer from asserting that an 
employee's opportunity to file a formal complaint and initiate a 
grievance process under Sec.  106.45 may fulfill an employer's 
obligation to provide a preventive or corrective opportunity for 
purposes of the Faragher-Ellerth affirmative defense, especially as 
recipients are required under Sec.  106.8 to notify all employees and 
applicants for employment of the Title IX Coordinator's contact 
information and the grievance procedures and grievance process, 
including how to report or file a complaint of sex discrimination, how 
to report or file a formal complaint of sexual harassment, and how the 
recipient will respond. Employers will not have to choose between 
asserting the Faragher-Ellerth affirmative defense or complying with 
these final regulations.\1647\ Although employers may have different 
obligations and be subject to different standards under Title VII and 
Title IX, these final regulations may be implemented in a manner that 
complements these similar yet different obligations.
---------------------------------------------------------------------------

    \1647\ The Department has revised Sec.  106.45(b)(3)(i), which 
requires a mandatory dismissal in certain circumstances, to clarify 
that such a dismissal is solely for Title IX purposes, and does not 
preclude action under another provision of the recipient's code of 
conduct. If a recipient has a code of conduct for employees that 
goes beyond what Title IX requires and these final regulations 
require, then a recipient may proceed to enforce its code of conduct 
despite dismissing a formal complaint (or allegations therein) for 
Title IX purposes. These regulations do not preclude a recipient 
from enforcing a code of conduct that is separate and apart from 
what Title IX requires; for example, with respect to investigating 
and adjudicating misconduct that does not meet the definition of 
``sexual harassment'' as defined in Sec.  106.30.
---------------------------------------------------------------------------

    The Department disagrees that it is providing more stringent 
standards for students, including minors, than adults to get help. As 
previously noted, a recipient must offer supportive measures to any 
complainant who reports sexual harassment, which will help ensure that 
all complainants receive help. These final regulations also contain 
some greater protections in the elementary and secondary context, where 
there are more minors, than in the higher education context. For 
example, the Department's definition of actual knowledge in Sec.  
106.30 includes all employees working in the recipient's education 
program or activity in the elementary and secondary context, and a 
recipient with actual knowledge of sexual harassment in an education 
program or activity against a person in the United States is required 
to respond promptly in a manner that is not deliberately indifferent 
under Sec.  106.44(a).
    The Department is mindful of President Trump's Executive Orders, 
and these final regulations are not duplicative. The Department is 
finally providing regulations that address sexual harassment as sex 
discrimination in education programs or activities under Title IX. The 
Department has the authority to issue these final regulations and is 
clearly stating in these final regulations that these regulations do 
not derogate an employee's rights under Title VII.
    Finally, at least one commenter misunderstands what the Department 
means in Sec.  106.6(f). The Department is not stating in Sec.  
106.6(f) that these final regulations do not apply to employees or that 
recipients who receive Federal financial assistance must only comply 
with Title VII with respect to employees. To the extent that Title IX 
may apply to a recipient's employees, a recipient must comply with 
Title IX. If a recipient does not comply with Title IX, then a 
recipient may be liable under these final regulations and may be the 
subject of a complaint to OCR. As explained earlier, Title IX may apply 
to a recipient's employees. The Department simply clarifies, through 
Sec.  106.6(f), that individuals, including employees, also may have 
rights under Title VII, and these final regulations do not derogate 
those rights.
    Changes: None.
    Comments: Several commenters requested that the Department issue 
joint guidance with the EEOC to ensure Title VII and Title IX are 
interpreted consistently with each other and to minimize potential 
conflicts between the two frameworks. One such commenter argued that 
the Title IX grievance process should not apply to any adverse 
employment action against a student-employee where the job in question 
is not an integral part of the recipient's educational program (for 
example, where the student accused of sexual harassment is fired from 
working at the campus cafeteria).
    Discussion: The Department appreciates the commenters' desire for 
guidance on Title VII and Title IX. The Department acknowledges that 
the Supreme Court has interpreted Title VII and Title IX differently 
and we encourage people to rely on case law to understand the different 
legal frameworks for Title VII and Title IX. For example, adverse 
employment actions are a concept that exist under Title VII case law, 
but not Title IX case law. The Department of Education also cannot bind 
the EEOC to act or respond in a certain manner through this notice-and-
comment rulemaking on Title IX.
    As previously explained, these final regulations require a 
recipient with actual knowledge of sexual harassment in an education 
program or activity of the recipient against a person in the United 
States to respond promptly in a manner that is not deliberately 
indifferent. It is irrelevant whether the student-respondent is an 
employee if the sexual harassment occurs in an education program or 
activity of the recipient against a person in the United States. 
Depending on the facts and circumstances of such an incident of sexual 
harassment, the recipient may have obligations under both Title VII and 
Title IX.
    Changes: None.
    Comments: One commenter raised the specific issue of a potential 
conflict between Sec.  106.44(b)(2) and Title VII implementing 
regulations. This commenter asserted that Sec.  106.44(b)(2) would 
provide that the Department ordinarily accepts the recipient's factual 
determinations regarding responsibility and would not deem it as 
deliberately indifferent solely because the Assistant Secretary would 
have reached a different outcome. This commenter asserted that Sec.  
106.44(b)(2) may conflict with the Title VII requirement that employee 
complaints or complaints solely alleging employment discrimination 
against an individual filed with the Department must be referred to the 
EEOC for their own investigation and evaluation under 28 CFR 42.605. 
The commenter emphasized that the EEOC would never

[[Page 30453]]

simply defer to an employer's conclusion that its officials did nothing 
wrong. According to this commenter, the EEOC conducts its own 
investigation and makes an independent assessment of the facts. This 
commenter stated that in some circumstances a referring agency, such as 
the Department, is required to ``give due weight to EEOC's 
determination that reasonable cause exists to believe that Title VII 
has been violated'' under 28 CFR 42.610(a). The commenter urged the 
Department to clarify which set of regulations apply in this context to 
avoid recipient confusion.
    Discussion: The Department appreciates the commenter's concerns but 
disagrees that a conflict exists. The Department acknowledges that the 
Assistant Secretary will not second-guess a recipient's determination 
regarding responsibility under Sec.  106.44(b)(2). These final 
regulations, however, do not apply to the EEOC and do not dictate how 
the EEOC will administer Title VII or its implementing regulations. If 
the Assistant Secretary refers a complaint to the EEOC under Title VII 
or 28 CFR 42.605, then the EEOC will make a determination under its own 
regulations and not the Department's regulations. Even if the 
Department is required in some circumstances to give due weight to the 
EEOC's determination regarding Title VII under 28 CFR 42.610(a), the 
Department does not have authority to administer or enforce Title VII. 
There may be incidents of sexual harassment that implicate both Title 
VII and Title IX, and this Department will continue to administer Title 
IX and its implementing regulations and will defer to the EEOC to 
administer Title VII and its implementing regulations.\1648\
---------------------------------------------------------------------------

    \1648\ 28 CFR 42.610(c) also states: ``If the referring agency 
determines that the recipient has not violated any applicable civil 
rights provision(s) which the agency has a responsibility to 
enforce, the agency shall notify the complainant, the recipient, and 
the Assistant Attorney General and the Chairman of the EEOC in 
writing of the basis of that determination.'' Accordingly, these 
regulations contemplate that each agency enforces the civil rights 
provisions that the agency has the responsibility to enforce.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Several commenters raised a number of issues that did not 
directly relate to the provision in Sec.  106.6(f) regarding Title VII. 
One commenter suggested that the Department collect racial data from 
campuses to ensure we know how many persons of color have been expelled 
under Title IX ``campus kangaroo courts.'' This commenter expressed 
concern that the Department may be inadvertently encouraging racial 
discrimination while trying to eliminate sex discrimination. Another 
commenter sought to remind the Department that, in addition to 
enforcing Title IX, the Department enforces Title VII and other civil 
rights laws and should vigorously enforce all of them to protect 
individual rights. One commenter asserted that the proposed regulations 
would apply to sexual harassment complaints and investigations 
involving more than eight million employees in primary and secondary 
schools, and more than four million employees at institutions of higher 
education, including a disproportionately female workforce in 
elementary and secondary schools and almost half of faculty in degree-
granting institutions of higher education who are women.
    Discussion: The Department did not propose any reporting 
requirements from postsecondary institutions or other recipients in the 
NPRM and does not think that such reporting requirements are necessary 
to address any racial discrimination that may occur in proceedings 
under these final regulations. Students who experience racial 
discrimination in a proceeding under Title IX may file a complaint 
under Title VI with OCR, and the Department will vigorously enforce 
Title VI's racial discrimination prohibitions. With respect to concerns 
about the number of students of color who may be expelled from school, 
we believe that the grievance process in Sec.  106.45 will provide all 
parties, including persons of color, with sufficient due process 
protections.
    Contrary to the commenter's assertions, the Department does not 
have the authority to enforce Title VII. The Department is committed to 
rigorously enforcing the civil rights laws that it is legally 
authorized to enforce.
    The Department is aware that these final regulations will impact 
recipients and the people in a recipient's education program or 
activity and appreciates the commenter's references to statistics about 
the people whom these final regulations will affect.
    Changes: None.

Section 106.6(g) Exercise of Rights by Parents/Guardians

    Comments: Some commenters expressed concern about whether the 
proposed regulations allowed parents, on behalf of their child, to 
report sexual harassment, file a formal complaint, request particular 
supportive measures, review the evidence during a grievance process, 
and exercise similar rights given to a party under the proposed rules. 
Commenters wondered if a minor student's parent would be permitted to 
attend interviews, meetings, and hearings during a grievance process or 
whether that would be allowed only if the minor student's parent was 
also the party's advisor of choice under Sec.  106.45(b)(5)(iv).
    Discussion: The Department recognizes that when a party is a minor 
or has a guardian appointed, the party's parent or guardian may have 
the legal right to act on behalf of the party. For example, if the 
parent or guardian of a student has a legal right to act on behalf of a 
student, then the parent or guardian must be allowed to file the formal 
complaint on behalf of the student, although the student would be the 
``complainant'' under the proposed regulation. In such a situation, the 
parent or guardian must be permitted to exercise the rights granted to 
the party under these final regulations, whether such rights involve 
requesting supportive measures or participating in a grievance process. 
Similarly, the parent or guardian must be permitted to accompany the 
student to meetings, interviews, and hearings during a grievance 
process to exercise rights on behalf of the student, while the 
student's advisor of choice may be a different person from the parent 
or guardian. Whether or not a parent or guardian has the legal right to 
act on behalf of an individual would be determined by State law, court 
orders, child custody arrangements, or other sources granting legal 
rights to parents or guardians. Additionally, FERPA and its 
implementing regulations address the circumstances under which a parent 
or guardian is accorded certain rights granted thereunder, such as the 
opportunity to inspect and review a student's education records as set 
forth at 34 CFR 99.10 and 99.12.\1649\ Thus, FERPA generally would 
address a parent's or guardian's opportunity to inspect and review 
evidence obtained as part of the investigation that is directly related 
to the allegations raised in a formal complaint pursuant to Sec.  
106.45(b)(5)(vi), provided such evidence constitutes a student's 
education record. However, in circumstances in which FERPA would not 
accord a party the opportunity to inspect and review such evidence, 
these final regulations do so and provide a parent or guardian who has 
a legal right to act on behalf of a party with the same 
opportunity.\1650\ To clarify that these final regulations respect all 
legal rights of parents or guardians, we have added

[[Page 30454]]

Sec.  106.6(g) to address this issue; this provision applies not only 
to sexual harassment proceedings under Title IX but also to any issue 
of sex discrimination arising under Title IX.
---------------------------------------------------------------------------

    \1649\ 20 U.S.C. 1232g; 34 CFR part 99.
    \1650\ Sec.  106.6(e) (providing that the obligation to comply 
with this part is not obviated or alleviated by the FERPA statute or 
regulations).
---------------------------------------------------------------------------

    Changes: We have added Sec.  106.6(g), which addresses exercise of 
rights by parents or guardians, and states that nothing in part 106 may 
be read in derogation of any legal right of a parent or guardian to act 
on behalf of a complainant, respondent, party, or other individual, 
subject to paragraph (e) of this section, including but not limited to 
filing a formal complaint.

Section 106.6(h) Preemptive Effect

    Comments: Commenters requested that the final regulations clearly 
state whether these final regulations supersede enforcement of State 
non-discrimination or civil rights laws with respect to provisions 
concerning sexual harassment. Some commenters reasoned that the final 
regulations should be a floor that does not preclude States from 
supplementing the legal requirements in these final regulations. 
Another commenter expressed concern that these final regulations will 
preempt State laws that the commenter described as designed to protect 
survivors of sexual violence. One commenter asserted that at least ten 
States have State laws that would conflict with the Department's 
proposed rules.\1651\ One commenter argued that Virginia law is more 
protective of victims than the proposed rules, including prompt review 
of any sexual violence report by a university committee within 72 hours 
of the report, mandatory notification of law enforcement, robust 
privacy protections, extensive outside support for victims, annual 
review of sexual violence policies with certification to the Virginia 
Secretary of Education, provisions for transcript notations on 
perpetrators' academic transcripts, and requiring certain injuries to 
children be reported by physicians, nurses, and teachers.
---------------------------------------------------------------------------

    \1651\ Commenter cited: California (Cal. Educ. Code Sec.  67386, 
Cal. Educ. Code Sec.  66290.1); Connecticut (Conn. Gen. Stat. Ann. 
Sec.  10a-55m); Hawaii (Haw. Rev. Stat. Ann. Sec.  304A-120), 
Illinois (110 Ill. Comp. Stat. Ann. 155); Maryland (Md. Code Ann., 
Educ. Sec.  11-601); New Jersey (N.J. Stat. Ann. Sec.  18A:61E-2); 
New York (N.Y. Educ. Law Sec. Sec.  6439-49); Oregon (Or. Rev. Stat. 
Ann. Sec.  350.255, Or. Rev. Stat. Ann. Sec.  342.704); Texas (Tex. 
Educ. Code Ann. Sec.  51.9363); and Virginia (Va. Code Ann. Sec.  
23.1-806).
---------------------------------------------------------------------------

    Another commenter requested that the Department implement the Title 
IX regulations in a manner that allows institutions of higher education 
in Colorado to retain their existing processes and procedures; while 
this commenter did not assert that the proposed regulations directly 
conflict with the processes and procedures that institutions of higher 
education in Colorado use, the commenter asserted that changing current 
Title IX policies and procedures would be costly and Colorado 
institutions of higher education already have policies and procedures 
in place that address due process concerns and protect survivors. A 
commenter from Hawaii expressed concerns that a ``2018 state Title IX 
bill'' shows that Hawaii constituents take Title IX very seriously and 
argued that the NPRM makes it unclear how Hawaii would implement its 
State law if the NPRM were to take effect.
    At least one commenter advised the Department to include an 
explicit preemption clause in the final regulations, given the 
likelihood of conflict with State laws, unclear case law, and because 
education is an area where the Federal government does not occupy the 
entire field. This commenter relied for its arguments on the Tenth 
Amendment, and the Supreme Court's ruling in National Federation of 
Independent Business v. Sebelius.\1652\ This commenter specifically 
noted that there is a provision in the Department's current regulations 
implementing Title IX, which addresses preemption. Current 34 CFR 
106.6(b) provides ``The obligation to comply with this part is not 
obviated or alleviated by any State or local law or other requirement 
which would render any applicant or student ineligible, or limit the 
eligibility of any applicant or student, on the basis of sex, to 
practice any occupation or profession.'' This commenter contended that 
34 CFR 106.6(b) may cause a court to question why the regulations 
implementing Title IX contain only one provision that specifically 
addresses preemption.
---------------------------------------------------------------------------

    \1652\ 567 U.S. 519 (2012).
---------------------------------------------------------------------------

    Discussion: The Department reiterates that nothing in these final 
regulations, including the provisions concerning sexual harassment with 
which commenters expressed concern, inherently prevents recipients from 
complying with State and local laws or policies. With respect to 
aspects of State laws that commenters asserted ``diverge from'' the 
NPRM, the Department disagrees that commenters identified an actual 
conflict between State law and these final regulations, as explained 
throughout this section of the preamble.
    Virginia law, as described by the commenter, does not conflict with 
these final regulations. These final regulations do not prohibit 
extensive outside support for victims, notations on academic 
transcripts, annual review of sexual violence policies, or any of the 
other aspects of Virginia law that the commenter described. Similarly, 
these final regulations may not conflict with processes and procedures 
used by institutions of higher education in Colorado; to the extent 
that the commenter was asserting that Colorado institutions should not 
be required to expend resources changing aspects of their Title IX 
policies and procedures because Colorado law already ensures that 
Colorado institutions appropriately support survivors while addressing 
due process concerns, the Department has determined that a standardized 
Title IX grievance process and uniform requirements that recipients 
offer supportive measures to complainants constitute the most effective 
procedures and requirements to further Title IX's non-discrimination 
mandate. While institutions may find it necessary to expend resources 
to come into compliance with these final regulations, the benefits of 
ensuring that every student, in every school, college, and university 
that receives Federal funds, can rely on predictable, transparent, 
legally binding rules for how a recipient responds to sexual 
harassment, outweigh the costs to recipients of altering procedures to 
come into compliance with the requirements in these final regulations. 
Recipients may continue to comply with State law to the extent that it 
does not conflict with the requirements in these final regulations 
addressing sexual harassment. The Department appreciates that many 
States have laws that address sexual harassment, sexual violence, sex 
offenses, sex discrimination, and other misconduct that negatively 
impacts students' equal educational access. Nothing in these final 
regulations precludes a State, or an individual recipient, from 
continuing to address such matters while also complying with these 
final regulations.
    In the event of an actual conflict between State or local law and 
the provisions in Sec. Sec.  106.30, 106.44, and 106.45, which address 
sexual harassment, the latter would have preemptive effect. Under 
conflict preemption, ``a federal statute implicitly overrides state law 
. . . when state law is in actual conflict with federal law'' either 
because it is ``impossible for a private party to comply with both 
state and federal requirements'' or because ``state law stands as an 
obstacle to the accomplishment and execution of the full purposes and 
objectives of Congress.'' \1653\ It is well-established that

[[Page 30455]]

``state laws can be pre-empted by federal regulations as well as by 
federal statutes.'' \1654\ The Supreme Court has held: ``Pre-emption 
may result not only from action taken by Congress itself; a federal 
agency acting within the scope of its congressionally delegated 
authority may pre-empt state regulation.'' \1655\ The Department is 
acting within the scope of its congressionally delegated authority in 
promulgating these final regulations under Title IX to address sexual 
harassment as a form of sex discrimination.
---------------------------------------------------------------------------

    \1653\ Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995) 
(internal quotation marks and citations omitted). The U.S. 
Department of Justice previously expressed a similar position with 
respect to the preemptive effect of other regulations promulgated by 
the Department. Statement of Interest by the United States, 
Massachusetts v. Pa. Higher Educ. Assistance Agency, d/b/a FedLoan 
Servicing, No. 1784-CV-02682 (Mass. Super. Ct. filed Jan. 8, 2018).
    \1654\ Hillsborough Cnty., Fla. v. Automated Med. Labs., Inc., 
471 U.S. 707, 713 (1985) (``state laws can be pre-empted by federal 
regulations as well as federal statutes''); see Geier v. Am. Honda 
Motor Co., Inc., 529 U.S. 861, 873 (2000).
    \1655\ La. Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 396 (1986).
---------------------------------------------------------------------------

    In response to commenters' requests for a regulation that expressly 
addresses whether these final regulations concerning sexual harassment 
preempt State or local law and to generally address commenters' 
concerns about preemption, the Department has added Sec.  106.6(h) 
which provides that to the extent of a conflict between State or local 
law and Title IX as implemented by Sec. Sec.  106.30, 106.44, and 
106.45, the obligation to comply with Sec. Sec.  106.30, 106.44, and 
106.45 is not obviated or alleviated by any State or local law. The 
Department acknowledges that its current regulations in 34 CFR 106.6(b) 
expressly address preemption with respect to any State or local law or 
other requirement which would render any applicant or student 
ineligible, or limit the eligibility of any applicant or student, on 
the basis of sex, to practice any occupation or profession. The 
Department does not wish for any recipient or court to conclude that 34 
CFR 106.6(b) constitutes the only instance in which the Department 
intended to give preemptive effect to its regulations promulgated under 
Title IX. By adding Sec.  106.6(h), the Department clearly and 
unequivocally states its intention that these final regulations 
concerning sexual harassment preempt State and local law to the extent 
of a conflict.
    The Department cannot state categorically that the final 
regulations concerning sexual harassment are always a ``floor'' because 
in some cases these final regulations may require more protections with 
respect to sexual harassment as a form of sex discrimination than what 
State law may require. Similarly, some State laws may require 
recipients to provide additional protections for both complainants and 
respondents that exceed these final regulations.\1656\ As long as State 
and local laws do not conflict with the final regulations concerning 
sexual harassment, recipients should comply with the State and local 
laws as well as these final regulations.
---------------------------------------------------------------------------

    \1656\ The Department in its 2001 Guidance and specifically in 
the context of the due process rights of the accused, acknowledged 
that ``additional or separate rights may be created for employees or 
students by State law.'' 2001 Guidance at 22. In both the 2001 
Guidance and these final regulations, the Department takes the 
position that any additional or separate rights do not relieve the 
recipient of complying with Title IX and its implementing 
regulations. See id.
---------------------------------------------------------------------------

    Changes: The Department has added Sec.  106.6(h), which provides 
that to the extent of a conflict between State or local law, and Title 
IX as implemented by Sec. Sec.  106.30, 106.44, and 106.45, the 
obligation to comply with Sec. Sec.  106.30, 106.44, and 106.45 is not 
obviated or alleviated by any State or local law.
    Comments: One commenter argued that the Department has no right to 
invade the police powers of a State like New York, which has already 
regulated extensively on the topic of campus sexual harassment and 
assault, and the NPRM would inappropriately ``lessen the 
effectiveness'' of New York's ``Enough is Enough'' law as well as the 
New York's Dignity for all Students Act (DASA), if not outright 
contradict it. For example, some commenters noted that New York's 
``Enough is Enough'' law requires extensive information outlining 
requirements that cover content, training, and distribution of specific 
information, requires postsecondary institutions to adopt a uniform 
definition of affirmative consent, requires ongoing training year-round 
to address topics related to sexual harassment, and requires periodic 
campus climate assessments, among other requirements. Other commenters 
also described aspects of New York's ``Enough is Enough'' law. One 
commenter asserted that the proposed regulations require a recipient to 
dismiss a complaint if alleged misconduct did not occur within the 
institution's program or activity, whereas New York law may still 
require a recipient to address such misconduct. One commenter stated 
that New York law requires affirmative consent for sexual activity. At 
least one commenter urged the Department to adopt the provisions in New 
York's ``Enough is Enough'' law.
    Some commenters expressed concerns about the proposed rules 
permitting delays in a grievance process for longer than what is 
permitted under State law. According to one commenter, New York's law 
specifies that ten days is the maximum number of days for a temporary 
delay when law enforcement action is taking place concurrently with a 
campus disciplinary process.
    Discussion: The Department does not believe that these final 
regulations generally conflict with State and local laws. To address 
commenters' questions about preemption and for the reasons explained 
above, the Department has added Sec.  106.6(h) which provides that to 
the extent of a conflict between State or local law and Title IX as 
implemented by Sec. Sec.  106.30, 106.44, and 106.45, the obligation to 
comply with Sec. Sec.  106.30, 106.44, and 106.45 is not obviated or 
alleviated by any State or local law.
    With respect to New York's ``Enough is Enough'' law and DASA, these 
final regulations do not appear to directly conflict with the 
commenters' description of State law requirements. These final 
regulations do not prevent a postsecondary institution from engaging in 
ongoing or year-round training (of employees, or students), conducting 
campus climate assessments, or adopting a particular definition of 
consent. Indeed, Sec.  106.30 expressly states that the Assistant 
Secretary will not require recipients to adopt a particular definition 
of consent with respect to sexual assault, a provision that 
specifically addresses the issue raised by commenters, that some State 
laws require institutions to use an affirmative consent definition. 
Similarly, these final regulations acknowledge in revised Sec.  
106.45(b)(3)(i) that even though a recipient may be required to dismiss 
a formal complaint in certain circumstances, such a dismissal is only 
for Title IX purposes and does not preclude the recipient from action 
under another provision of the recipient's code of conduct. 
Accordingly, if New York law requires a recipient to respond to conduct 
that these final regulations do not deem covered under Title IX, a 
recipient may do so. The Department has considered the provisions for 
addressing sexual harassment and sexual assault contained in various 
State laws, including in New York, and in use by various individual 
institutions. However, the Department does not wish to adopt wholesale 
New York's ``Enough is Enough'' law or other State laws or 
institutional policies and explains throughout this preamble why these 
final regulations provide the best means

[[Page 30456]]

for effectuating Title IX's non-discrimination mandate.
    These final regulations do not require a recipient to delay a 
grievance process for longer time periods than what is permitted under 
State law. The Department emphasizes that a recipient must respond 
``promptly'' when it has actual knowledge of sexual harassment in its 
education program or activity pursuant to Sec.  106.44(a). Section 
106.45(b)(1)(v) regarding reasonably prompt time frames for the 
conclusion of the grievance process would not necessarily conflict with 
State laws by allowing delays during a grievance process, for good 
cause, including concurrent law enforcement activity. For example, 
there is no inherent conflict with a temporary ten-day delay, which 
according to a commenter is permissible under New York State law when a 
concurrent law enforcement action is taking place, as long as a 
recipient responds promptly when it has actual knowledge of sexual 
harassment in its education program or activity and also meets the 
requirement in Sec.  106.45(b)(1)(v) to conclude its grievance process 
under reasonably prompt time frames the recipient has designated. 
Accordingly, the commenter's example of a potentially conflicting State 
law does not in fact present an inherent conflict with these final 
regulations.
    Changes: None.
    Comments: Other commenters expressed concern that the proposed 
regulations may conflict with a union's duty to provide representation 
during the grievance process. One commenter asserted that many State 
labor laws already provide that an employee subject to investigatory 
interviews is allowed to have a union representative present for a 
meeting that might lead to discipline.
    Discussion: There is no inherent conflict between these final 
regulations and any requirement that a union representative must be 
present for an investigatory interview that might lead to discipline. 
These final regulations require a recipient to provide a written notice 
upon receipt of a formal complaint of sexual harassment, to both 
parties, that the parties may have ``an advisor of their choice, who 
may be, but is not required to be, an attorney'' pursuant to Sec.  
106.45(b)(2)(i)(B), and also require (in Sec.  106.45(b)(5)(iv)) a 
recipient to provide the parties with the same opportunities to have an 
advisor present during any grievance proceeding, without limiting the 
choice or presence of advisor for either the complainant or respondent. 
Nothing in these final regulations precludes a recipient from complying 
with the State laws that the commenter describes; Sec.  
106.45(b)(5)(iv) means that a recipient cannot preclude a party from 
selecting a union representative as the party's advisor of choice 
during a Title IX grievance process. Furthermore, while Sec.  106.71 
requires a recipient to keep confidential the identity of parties to a 
Title IX grievance process, which limits the discretion of a recipient 
to permit parties to have persons other than the party's advisor of 
choice present during the grievance process, that provision limits the 
confidentiality obligation by expressly stating that the recipient must 
keep party identities confidential except as required by law. If a 
State law requires a recipient to permit a union representative to be 
present during a disciplinary proceeding, the recipient may not be in 
violation of these final regulations by permitting a party to a Title 
IX grievance process from being accompanied by both an advisor of 
choice and a union representative. We reiterate, however, that a party 
is always entitled under these final regulations to select a union 
representative as the party's advisor of choice to advise and assist 
the party during the grievance process.
    In the event of an actual conflict between State labor laws or 
union contracts and the final regulations, then the final regulations 
would have preemptive effect. To generally address commenters' 
questions about preemption and for the reasons explained above, the 
Department has added Sec.  106.6(h) which provides that to the extent 
of a conflict between State or local law and Title IX as implemented by 
Sec. Sec.  106.30, 106.44, and 106.45, the obligation to comply with 
Sec. Sec.  106.30, 106.44, and 106.45 is not obviated or alleviated by 
any State or local law.
    Changes: None.
    Comments: One commenter asserted that Sec.  106.8(d) conflicts with 
Minnesota State law, under which Minnesota institutions of higher 
education can address sexual misconduct occurring outside the United 
States. This commenter argued that, because study abroad programs are 
educational and approved by the home campus (located in the United 
States), the Department should ensure that recipients have the ability 
to protect students and employees by providing remedial services and 
imposing discipline over campus activities occurring outside the United 
States.
    Discussion: The final regulations, by recognizing the 
jurisdictional limitation in the Title IX statute, 20 U.S.C. 1681(a) 
(which states that ``no person in the United States'' may be 
discriminated against on the basis of sex), do not conflict with State 
laws that allow or require a recipient to address discrimination or 
misconduct that falls outside Title IX. Nothing in the final 
regulations precludes recipients from addressing sexual misconduct that 
occurs in a recipient's study abroad programs. The Department has 
revised Sec.  106.45(b)(3)(i) to clarify that a mandatory dismissal of 
allegations in a formal complaint of sexual harassment because the 
allegations concern sexual harassment that occurred outside the United 
States is a dismissal only for Title IX purposes and does not preclude 
action under another provision of the recipient's code of conduct. 
Accordingly, a recipient may address conduct that occurs outside of the 
United States pursuant to its own code of conduct, including where a 
recipient is required to address such conduct under a State law.
    Changes: None.
    Comments: Some commenters argued that ending the single 
investigator model would conflict with State laws. Commenters stated 
that ending the single investigator model conflicts with State law 
requirements governing elementary and secondary school administrators 
because in the elementary and secondary school context, a site 
administrator typically has final responsibility for Title IX 
compliance. These commenters argued that the Department should not 
preclude a site administrator from being the Title IX Coordinator, the 
investigator, and the decision-maker, because the typical job 
description for a site administrator requires that person to be a 
knowledgeable investigator familiar with school district policy and the 
school community best positioned to fulfill the functions of a Title IX 
Coordinator, investigator, and decision-maker. Commenters asserted that 
under State laws, site administrators must respond to, investigate, and 
intervene regarding discrimination complaints, including following 
established disciplinary procedures as applicable. One commenter 
reasoned that if the respondent is an employee then the site 
administrator with line authority may be in the best position to 
investigate due to confidentiality with personnel issues, and the 
Department should not create a conflicting process.
    Discussion: With respect to potential conflict with State laws 
regarding the prohibition of the single investigator model contained in 
Sec.  106.45(b)(7)(i) of the final regulations, the final regulations 
preclude the decision-maker from being the same person as the Title IX 
Coordinator or the investigator, but

[[Page 30457]]

do not preclude the Title IX Coordinator from also serving as the 
investigator. Further, the final regulations do not prescribe which of 
the recipient's administrators are in the most appropriate position to 
serve as a Title IX Coordinator, investigator, or decision-maker, and 
leave recipients discretion in that regard, including whether a 
recipient prefers to have certain personnel serve in certain Title IX 
roles when the respondent is an employee. Finally, although the final 
regulations, Sec.  106.45(b)(7)(i) precludes the decision-maker from 
being the same person as the Title IX Coordinator or investigator, this 
provision does not preclude the investigator from, for instance, making 
recommendations in an investigative report, so long as the decision-
maker exercises independent judgment in objectively evaluating relevant 
evidence to reach a determination regarding responsibility. Thus, the 
Department does not believe that the commenter's description of the 
typical job duties of a site administrator under State laws poses an 
actual conflict with the final regulations. To generally address 
commenters' questions about preemption and for the reasons explained 
above, the Department has added Sec.  106.6(h) which provides that to 
the extent of a conflict between State or local law and Title IX as 
implemented by Sec. Sec.  106.30, 106.44, and 106.45, the obligation to 
comply with Sec. Sec.  106.30, 106.44, and 106.45 is not obviated or 
alleviated by any State or local law.
    Changes: None.
    Comments: Some commenters contended that the NPRM's jurisdictional 
approach conflicts with State laws, which may pose enforcement 
problems, create confusion, impose additional cost burdens, and trigger 
lengthy litigation. These commenters noted, for example, that 
California explicitly requires institutions of higher education to have 
policies addressing sexual violence involving students both on campus 
and off campus and that New Jersey law includes a broader definition of 
sexual misconduct that includes conduct occurring in certain off-campus 
locations.
    Discussion: With respect to potential conflict with State laws that 
may have different jurisdictional schemes, the Department reiterates 
that nothing in the final regulations prevents recipients from 
initiating a student conduct proceeding or offering supportive measures 
to students who report sexual harassment that occurs outside the 
recipient's education program or activity, and that the final 
regulations do not distinguish between off-campus and on-campus 
conduct. Instead, these final regulations require a recipient with 
actual knowledge of sexual harassment in an education program or 
activity of the recipient against a person in the United States to 
respond promptly in a manner that is not deliberately indifferent. The 
Department has revised Sec.  106.45(b)(3)(i) to clarify that a 
mandatory dismissal of allegations in a formal complaint of sexual 
harassment because the alleged conduct did not occur in the recipient's 
education program or activity is only for purposes of Title IX and does 
not preclude action under another provision of the recipient's code of 
conduct. A recipient may address conduct that Title IX and these final 
regulations do not require a recipient to address, pursuant to its own 
code of conduct, including where the recipient is obligated to address 
the conduct under a State law. To generally address commenters' 
questions about preemption and for the reasons explained above, the 
Department has added Sec.  106.6(h) which provides that to the extent 
of a conflict between State or local law and Title IX as implemented by 
Sec. Sec.  106.30, 106.44, and 106.45, the obligation to comply with 
Sec. Sec.  106.30, 106.44, and 106.45 is not obviated or alleviated by 
any State or local law.
    Changes: None.
    Comments: Some commenters argued that the proposed rules should not 
require school districts to adopt and publish a grievance procedure 
that aligns with the proposed regulations, and that instead the 
Department should permit school districts to adopt and publish 
grievance procedures that align with their State's requirements where 
States have acted on their own authority to require school districts to 
adopt grievance procedures related to non-discrimination, sexual 
harassment, and due process in the context of student discipline. 
Commenters argued that if the Department does not permit school 
districts to do this, the final regulations will create uncertainty and 
impose an unnecessary burden on school districts, potentially 
conflicting with State laws.
    Discussion: Nothing in the final regulations inherently prevents 
school districts from adopting and publishing grievance procedures, and 
a grievance process that complies with Sec.  106.45 for resolution of 
formal complaints of sexual harassment, that align with their State's 
requirements where States have acted on their own authority to require 
school districts to adopt grievance procedures related to non-
discrimination, sexual harassment, and due process in the context of 
student discipline. However, in the event of an actual conflict between 
these final regulations concerning sexual harassment and State laws or 
local laws, the final regulations would have preemptive effect over 
conflicting State or local law. To generally address commenters' 
questions about preemption and for the reasons explained above, the 
Department has added Sec.  106.6(h) which provides that to the extent 
of a conflict between State or local law and Title IX as implemented by 
Sec. Sec.  106.30, 106.44, and 106.45, the obligation to comply with 
Sec. Sec.  106.30, 106.44, and 106.45 is not obviated or alleviated by 
any State or local law.
    Changes: None.
    Comments: A few commenters argued that the NPRM proposes to set a 
national standard on various matters related to the investigation and 
adjudication of claims of sexual harassment, including sexual assault, 
by school districts and public and private institutions of higher 
education, that those same topics are the subject of State, local, and 
Tribal laws, but that the NPRM contains no discussion of preemption, 
contrary to both Executive Order 13132 and Executive Order 12988, and 
the 2009 Presidential Preemption Memorandum.
    A few commenters asserted that it is inappropriate for the 
Department to intrude on areas of traditional State and local control, 
such as regulation of education. Commenters argued that, under 
Executive Order 13132, the Department should have consulted with State 
and local officials before issuing the proposed rules because the 
Department is formulating policy that will have federalism implications 
and may limit States' ability to protect their own constituents' 
safety. One commenter contended that the Department is leaving States 
with an impossible choice between accepting Federal funding and 
protecting students' full access to their education. This commenter 
also asserted that the NPRM could keep States from regulating in an 
area of traditional State authority without good cause, thus amounting 
to a constructive revocation of States' power beyond the Department's 
authority under statute.
    Another commenter asserted that the impact of the Supreme Court's 
Sebelius decision \1657\ on Title IX is unclear and argued that a law 
enacted under the Spending Clause may be analyzed for constitutionality 
under a contract theory or the unconstitutional conditions doctrine. 
This commenter contended that the Department is favoring a

[[Page 30458]]

contract theory and that if the unconstitutional conditions doctrine is 
applied, then the impact of these final regulations on State laws, 
recipients, and students will require a State-by-State fact-intensive 
inquiry. According to this commenter, the uncertainty of how 
constitutional law will apply to these final regulations will create 
confusion for recipients who must comply with State laws as well as 
these final regulations.
---------------------------------------------------------------------------

    \1657\ Commenter cited: Nat'l Fed'n of Indep. Bus. v. Sebelius, 
567 U.S. 519 (2012).
---------------------------------------------------------------------------

    Discussion: As an initial matter, some commenters' characterization 
of Executive Order 13132, 64 FR 43255 (Aug. 10, 1999) is inaccurate. 
That Order's goal was ``to guarantee the Constitution's division of 
governmental responsibilities between the Federal government and the 
states'' by ``further[ing] the policies of the Unfunded Mandates Reform 
Act''.\1658\ The purpose of that statute is ``to end the imposition, in 
the absence of full consideration by Congress, of Federal mandates on 
State, local, and Tribal governments without adequate Federal funding, 
in a manner that may displace other essential State, local, and tribal 
governmental priorities.'' \1659\ In other words, when the Federal 
government proposes to impose an unfunded mandate on the States 
(including local governments) and Tribal governments with federalism 
implications and effects on State and local laws, Executive Order 13132 
requires the Federal government to consult with State and local 
authorities. However, application of these final regulations is 
entirely dependent on whether an education program or activity receives 
Federal financial assistance; these final regulations are not a mandate 
(unfunded or otherwise).\1660\
---------------------------------------------------------------------------

    \1658\ 2 U.S.C. 1501 et seq.
    \1659\ 2 U.S.C. 1501(2).
    \1660\ See 20 U.S.C. 1681(a).
---------------------------------------------------------------------------

    Furthermore, as this preamble's discussion pertaining to the 
Spending Clause of the U.S. Constitution demonstrates,\1661\ Title IX 
was enacted pursuant to that constitutional provision. ``Congress may 
use its spending power to create incentives for States to act in 
accordance with Federal policies.'' \1662\ ``[W]hen `pressure turns 
into compulsion,' ''--such as undue influence, coercion or duress--
``the legislation runs contrary to our system of federalism.'' \1663\ 
As the Spending Clause analysis demonstrates, the Federal government is 
not coercing recipients to comply with these final regulations. Title 
IX and its implementing regulations fall within the authority of the 
Federal government: operators of education programs or activities must 
comply with Title IX's non-discrimination mandate, if an education 
program or activity receives Federal financial assistance. By statute, 
Congress has conferred authority to the Department to promulgate 
regulations under Title IX to effectuate the purposes of Title 
IX.\1664\ Nor is there any support for the argument that the Federal 
government is precluding the States from regulating in an area of 
traditional State authority without good cause. Compliance with Title 
IX and its implementing regulations is ``much in the nature of a 
contract: in return for Federal funds, the States agree to comply with 
federally imposed conditions.'' \1665\ The commenter's assertion that 
protection of students' equal access to education is an area of 
traditional State control indicates that these final regulations are 
not invalid even under the unconstitutional conditions doctrine of the 
Spending Clause analysis, because the States themselves are at liberty 
to enact these regulations.\1666\ Nothing in these final regulations 
prevents States from continuing to address discrimination on the basis 
of sex in education, or equal educational access on the basis of sex, 
in a manner that also complies with these final regulations. Moreover, 
these final regulations do not require the relinquishment of a 
constitutional right and expressly provide in Sec.  106.6(d) that these 
final regulations do not require the restriction of any rights 
guaranteed against government action by the U.S. Constitution, 
including but not limited to the First, Fifth, and Fourteenth 
Amendments of the U.S. Constitution. Irrespective of whether a court 
applies a contract theory or the unconstitutional conditions doctrine, 
these final regulations pass constitutional muster. These final 
regulations are in pursuit of the general welfare, are unambiguous, and 
are related to a national concern.\1667\ Sexual harassment as a form of 
sex discrimination is an issue that is national in scope and 
significance, and Congress enacted Title IX to address sex 
discrimination on a Federal level.
---------------------------------------------------------------------------

    \1661\ See the ``Spending Clause'' subsection of the 
``Miscellaneous'' section of this preamble.
    \1662\ Sebelius, 567 U.S. at 577-78.
    \1663\ Id. (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 
590 (1937)).
    \1664\ 20 U.S.C. 1682.
    \1665\ Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 
17 (1981).
    \1666\ See South Dakota v. Dole, 483 U.S. 203, 209-12 (1987).
    \1667\ See id. at 206-09.
---------------------------------------------------------------------------

    Nor does the 2009 Presidential Preemption Memorandum (``2009 Obama 
Memorandum'') support the commenters' argument.\1668\ The objective of 
that 2009 Obama Memorandum was to proclaim the ``general policy'' that 
``preemption of State law by executive departments and agencies should 
be undertaken only with full consideration of the legitimate 
prerogatives of the States and with a sufficient legal basis for 
preemption.'' \1669\ The 2009 Obama Memorandum asserted that the States 
do have a potent role in protecting the health and safety of citizens 
and the environment.\1670\ The 2009 Obama Memorandum stated that 
Federal overreach through preemption obstructs States from ``apply[ing] 
to themselves rules and principles that reflect their own particular 
circumstances and values.'' \1671\ On this ground, President Obama 
directed executive branch agencies not to include preemption statements 
in ``regulatory preambles . . . except where preemption provisions are 
also included in the codified regulation'' or in ``codified regulations 
except where such provisions would be justified under legal principles 
governing preemption, including the principles outlined in Executive 
Order 13132.'' \1672\ President Obama also directed agencies to 
``review regulations issued in the last 10 years that contain 
statements in regulatory preambles or codified provisions intended . . 
. to preempt State law, in order to decide whether such statements are 
justified under applicable legal principles governing preemption.'' 
\1673\ Even assuming that the 2009 Obama Memorandum applies, the 
Department has in fact complied with it, with respect to promulgation 
of these final regulations.
---------------------------------------------------------------------------

    \1668\ See 74 FR 24693 (2009).
    \1669\ Id.
    \1670\ Id.
    \1671\ Id.
    \1672\ Id.
    \1673\ Id.
---------------------------------------------------------------------------

    Furthermore, Executive Order 12988, a Clinton Administration 
executive order (to which the 2009 Obama Memorandum does not cite), 
requires agencies, when promulgating regulations, to ``make every 
reasonable effort . . . [to] specif[y] in clear language the preemptive 
effect, if any, to be given to the regulation.'' The Department has 
complied with Executive Order 12988 as well, and these final 
regulations clearly state in Sec.  106.6(h) that to the extent of a 
conflict between State or local law, and Title IX as implemented by 
Sec. Sec.  106.30, 106.44, and 106.45, the obligation to comply with 
Sec. Sec.  106.30, 106.44, and 106.45 is

[[Page 30459]]

not obviated or alleviated by any State or local law.
    These final regulations also do not violate the Tenth Amendment. 
That Amendment states: ``The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people.'' \1674\ The Supreme 
Court's position is sufficiently clear on this topic. ``[W]hile [the 
Federal government] has substantial power under the Constitution to 
encourage the States to provide for [a set of new rules concerning a 
national problem], the Constitution does not confer upon [the Federal 
government] the ability simply to compel the States to do so.'' \1675\ 
The Tenth Amendment ``states but a truism that all is retained which 
has not been surrendered.''\1676\ As the constitutional commenter and 
chronicler, the Honorable Joseph Story, Associate Justice, Supreme 
Court of the United States, explained, ``[t]his amendment is a mere 
affirmation of what, upon any just reasoning, is a necessary rule of 
interpreting the constitution. Being an instrument of limited and 
enumerated powers, it follows irresistibly, that what is not conferred, 
is withheld, and belongs to the state authorities.'' \1677\ The Supreme 
Court always has maintained that ``[t]he States unquestionably do 
retai[n] a significant measure of sovereign authority . . . to the 
extent that the Constitution has not divested them of their original 
powers and transferred those powers to the Federal Government.''\1678\ 
Just as in New York v. United States, in which the ``Petitioners d[id] 
not contend that [the Federal government] lacks the power to regulate 
the disposal of low level radioactive waste,'' \1679\ here too there 
can be no dispute that the Federal government retains the authority to 
regulate sexual harassment and assault, a national problem, in 
education programs or activities that receive Federal financial 
assistance, even though the same matters also fall within the 
traditional police powers of the States. The Department, through these 
final regulations, is not compelling the States to do anything. In 
exchange for Federal funds, recipients--including States and local 
educational institutions--agree to comply with Title IX and regulations 
promulgated to implement Title IX as part of the bargain for receiving 
Federal financial assistance, so that Federal funds are not used to 
fund sex-discriminatory practices. As a consequence, the final 
regulations are consistent with the Tenth Amendment.
---------------------------------------------------------------------------

    \1674\ U.S. Const. amend. X.
    \1675\ New York v. United States, 505 U.S. 144, 149 (1992).
    \1676\ United States v. Darby, 312 U.S. 100, 124 (1941).
    \1677\ 3 J. Story, Commentaries on the Constitution of the 
United States 752 (1833).
    \1678\ Garcia v. San Antonio Metro. Transit Auth., 469 U. S. 
528, 549 (1985) (citations and internal quotation marks omitted).
    \1679\ New York, 505 U.S. at 159-60.
---------------------------------------------------------------------------

    Although a commenter's assertion that States possess general police 
powers is correct,\1680\ the Supreme Court also has held that 
Congress's authority to act can be quite expansive under the powers 
granted to Congress under the U.S. Constitution, and such exercise of 
enumerated powers by Congress does not convert Federal government 
authority into general police powers.\1681\ The Department disagrees 
with a commenter's assertion that these final regulations alter the 
nature of the bargain recipients accept in exchange for Federal 
financial assistance in violation of Congress's Spending Clause 
authority, notwithstanding the Supreme Court's holding in Sebelius that 
congressional expansion of the Medicaid program violated the Spending 
Clause. The Sebelius Court reasoned that the Affordable Care Act at 
issue in that case expanded the Medicaid program in a manner that 
``accomplishes a shift in kind, not merely degree.'' \1682\ The 
Sebelius Court explained that Congress exceeded its Spending Clause 
authority because it attempted to ``transform[]'' the original Medicaid 
program from a program ``to cover medical services for four particular 
categories of the needy [individuals with disabilities, the blind, 
elderly, and needy families with dependent children]'' into part of a 
``comprehensive national plan to provide universal health insurance 
coverage.'' \1683\ By contrast, the Department's Title IX regulations 
do not expand or stray from the original purpose and scope of the Title 
IX statute enacted by Congress. The subject of these final regulations 
remains the same as that described in the Title IX statute--ensuring 
that no person in the United States shall, on the basis of sex, be 
excluded from participation in, be denied the benefits of, or be 
subjected to discrimination under any education program or activity 
receiving Federal financial assistance. These final regulations do not 
expand the category of persons protected under Title IX (i.e., any 
person in the United States participating in or benefiting from an 
education program or activity). As discussed elsewhere in this 
preamble, the final regulations adopt and adapt the Supreme Court's 
interpretation of Title IX recognizing sexual harassment as a form of 
sex discrimination. Furthermore, the Department's Title IX regulations 
have, for decades, required recipients to adopt and publish grievance 
procedures for the prompt and equitable resolution of complaints of sex 
discrimination. Thus, the final regulations are akin to the Medicaid 
program amendments acknowledged by the Sebelius Court to have 
constituted an appropriate exercise of Spending Clause authority,\1684\ 
rather than the ``transformation'' of Title IX into coverage of 
subjects outside the scope of the original statute or an expansion of 
Title IX obligations ``in kind'' rather than ``in degree.''
---------------------------------------------------------------------------

    \1680\ Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 
535-36 (2012) (affirming that States have general police powers).
    \1681\ Id. at 536-37 (analyzing the Affordable Care Act under 
Congress's enumerated powers to regulate interstate commerce and 
``tax and spend'' and noting that the latter authority gives ``the 
Federal Government considerable influence even in areas where it 
cannot directly regulate.'').
    \1682\ Id. at 583 (``The Medicaid expansion, however, 
accomplishes a shift in kind, not merely degree. The original 
program was designed to cover medical services for four particular 
categories of the needy: The disabled, the blind, the elderly, and 
needy families with dependent children. See 42 U.S.C. 1396a(a)(10). 
Previous amendments to Medicaid eligibility merely altered and 
expanded the boundaries of these categories. Under the Affordable 
Care Act, Medicaid is transformed into a program to meet the health 
care needs of the entire nonelderly population with income below 133 
percent of the poverty level. It is no longer a program to care for 
the neediest among us, but rather an element of a comprehensive 
national plan to provide universal health insurance coverage.'').
    \1683\ Id. at 583-84.
    \1684\ Id. at 583 (noting previous amendments affecting, and 
expanding, the Medicare program that constituted an expansion ``in 
degree'' and not ``in kind'').
---------------------------------------------------------------------------

    The NPRM provided that this regulatory action does not unduly 
interfere with State, local, or tribal governments in the exercise of 
their governmental functions.\1685\ For example, the NPRM acknowledged 
that when a party is a minor, has been appointed a guardian, is 
attending an elementary or secondary school, or is under the age of 18, 
recipients have discretion to look to State law and local educational 
practice in determining whether the rights of the party shall be 
exercised by the parent(s) or guardian(s) instead of or in addition to 
the party.\1686\ The final regulations set forth this proposition more 
clearly in Sec.  106.6(g). These final regulations also provide 
significant flexibility to recipients; for example, the final 
regulations in Sec.  106.30 expressly provide that the Assistant 
Secretary will not require recipients to adopt a particular

[[Page 30460]]

definition of consent with respect to sexual assault, such that States 
are free to prescribe a definition of consent for use in sexual assault 
cases in educational institutions without conflict with these final 
regulations. Similarly, these final regulations do not prohibit 
recipients from addressing conduct that is not covered under these 
final regulations, such that States are free to require recipients to 
address conduct that, for instance, did not occur in an education 
program or activity, or that does not meet the Sec.  106.30 definition 
of sexual harassment. Finally, the NPRM also ``encouraged State and 
local elected officials to review and provide comments on the[ ] 
proposed regulations,'' and the Department has carefully considered and 
responded to such comments.\1687\
---------------------------------------------------------------------------

    \1685\ 83 FR 61484.
    \1686\ 83 FR 61482.
    \1687\ 83 FR 61495.
---------------------------------------------------------------------------

    Recipients do not need to choose between Federal financial 
assistance and protecting students' equal access to their education 
because these final regulations help ensure that students have equal 
access to a recipient's education program or activity. For example, 
Sec.  106.44(a) requires a recipient to treat complainants and 
respondents equitably by offering supportive measures as defined in 
Sec.  106.30 to a complainant, and by following a grievance process 
that complies with Sec.  106.45 before the imposition of any 
disciplinary sanctions or other actions that are not supportive 
measures as defined in Sec.  106.30, against a respondent. Supportive 
measures are designed to restore or preserve equal access to the 
recipient's education program or activity without unreasonably 
burdening the other party. Where a respondent is found responsible for 
sexually harassing a complainant, the recipient must effectively 
implement remedies for the complainant, which must be designed to 
restore or preserve equal access to the recipient's education program 
or activity, pursuant to Sec.  106.45(b)(1)(i) and Sec.  
106.45(b)(7)(iv).
    Changes: None.
    Comments: Many commenters identified substantive areas of potential 
conflict between State and local laws and the NPRM. Commenters noted 
that Illinois law requires Illinois IHEs to address, investigate, and 
resolve sexual misconduct complaints regardless of location; whereas 
the NPRM only applies to conduct within an education program or 
activity against a person in the United States. New Jersey law 
explicitly includes harassment occurring online and in certain off-
campus locations.
    A few commenters generally asserted that the proposed rules 
appeared to be inconsistent with other laws such as the Clery Act and 
VAWA. Other commenters argued that conflict regarding geographical 
application may also arise under VAWA and the Clery Act. One commenter 
stated that the NPRM may conflict with VAWA and the Clery Act regarding 
evidentiary standards.
    Some commenters noted that States such as California, Connecticut, 
Illinois, and New Mexico have laws requiring that school disciplinary 
boards use the preponderance of the evidence standard to evaluate 
sexual misconduct on campus. One commenter asserted that applying the 
same standard of evidence for complaints against students as it does 
for complaints against employees, including faculty, is problematic 
because the Connecticut General Statutes require that for cases of 
sexual assault, stalking, and intimate partner violence, the 
institution must use the preponderance of the evidence standard. 
Additionally, one commenter stated that Connecticut requires 
``affirmative consent.''
    One commenter generally argued that the NPRM would undermine State 
efforts to require or encourage schools to provide more robust 
supportive measures to students. This commenter did not explain 
further. One commenter stated that the NPRM would preempt State laws 
that include broader sexual harassment definitions, such as New Jersey 
law.
    Commenters raised the issue that Illinois law prohibits parties 
from cross-examining each other and permits only indirect questioning 
at the presiding school officials' discretion, whereas the proposed 
rules require cross-examination through advisors. One commenter also 
argued that this provision conflicts with or is inconsistent with 
Illinois State law Preventing Sexual Violence in Higher Education, 110 
ILCS 155, which requires all higher education institutions in Illinois 
to adopt a comprehensive policy concerning sexual violence, domestic 
violence, dating violence, and stalking consistent with governing 
Federal and State law, regarding the standard of evidence because 
Illinois State law requires use of the preponderance of the evidence 
standard to determine whether the alleged violation of the 
comprehensive policy occurred.\1688\ Another commenter expressed 
concern about providing documentation to both parties as part of the 
grievance process and noted that such a provision conflicts with 
practices in Illinois courts where the State prevents the reporting 
party from providing the defendant with a copy of a police report, and 
the police report can only be provided to an attorney due to safety 
concerns.
---------------------------------------------------------------------------

    \1688\ 110 Ill. Comp. Stat. 155/25(5).
---------------------------------------------------------------------------

    One commenter asserted that in Kentucky, evidence offered to 
provide that the reporting party engaged in other sexual behavior or 
evidence offered to prove the reporting party's sexual disposition is 
inadmissible and opined that allowing this type of evidence to be 
introduced within a Title IX proceeding is a clear conflict between the 
proposed rules, and State law.
    Commenters asserted substantive conflicts with State law may arise 
regarding grievance procedures under the proposed rules, including with 
respect to privacy protections, equal opportunity for the parties to 
inspect and review evidence, admissibility of past sexual history, and 
the presumption of non-responsibility.
    One commenter opined that it would be confusing for school and 
university officials to conform to Federal regulations that conflict 
with local and State laws.
    Discussion: For some of the State laws that the commenters cited 
(such as Illinois and New Jersey laws that may include sexual 
misconduct complaints of conduct that occurs outside of an education 
program or activity, State laws encouraging more robust supportive 
measures, and the broader definition of sexual harassment in New 
Jersey's law), there is no actual conflict because nothing in these 
final regulations prohibits a recipient from complying with these 
particular State laws. For example, if a State law contains stricter 
requirements such as stricter reporting requirements and timelines, and 
also addresses anti-bullying, then there is no inherent conflict with 
these final regulations. Similarly, if a State law requires a recipient 
to investigate and address conduct that these final regulations do not 
address, then these final regulations do not prevent a recipient from 
doing so. Indeed, the Department revised Sec.  106.45(b)(3)(i), which 
concerns mandatory dismissals, to expressly state that such a dismissal 
is only for Title IX purposes and does not preclude action under 
another provision of the recipient's code of conduct. Accordingly, 
recipients may continue to respond to conduct even if Title IX and 
these implementing regulations do not require a recipient to do so. 
Similarly, the Department revised the definitions in Sec.  106.30 to 
address ``Consent,'' and Sec.  106.30 expressly states that the

[[Page 30461]]

Assistant Secretary will not require recipients to adopt a particular 
definition of consent with respect to sexual assault and, thus, there 
is no conflict with any State law that requires a particular definition 
of consent with respect to sexual assault.
    The Department disagrees that these final regulations conflict with 
State laws that require the use of the preponderance of the evidence 
standard because recipients are free to adopt the preponderance of the 
evidence standard under these final regulations. There also is nothing 
problematic with requiring that the same standard be used for 
complaints against employees as complaints against students. Indeed, if 
a State's laws require institutions to use a preponderance of the 
evidence standard, then using that same standard for complaints against 
employees as complaints against students may level the field when a 
student files a formal complaint against an employee. Students should 
not be subject to a higher burden of proof for complaints against 
employees than complaints against students, especially as the power 
dynamic is typically skewed in favor of an employee in these 
circumstances.
    With respect to the Illinois law requiring higher education 
institutions to adopt policies, no conflict appears to exist because, 
as the commenter explains, such policies must be consistent with 
Federal law, which includes these final regulations. Also, with respect 
to Illinois law, these final regulations do not require the parties to 
directly cross-examine each other; instead, the cross-examination is 
conducted by a party's advisor and personal questioning by one party of 
another is expressly prohibited under Sec.  106.45(b)(6)(i). These 
final regulations also do not appear to conflict with court practices 
in Illinois regarding sharing documents with complainants and 
respondents. The commenter appears to reference a practice by Illinois 
courts and does not indicate that the State mandates that postsecondary 
institutions or elementary and secondary schools comply with a court 
practice to provide documents to an attorney rather than to a 
defendant. To the extent that these final regulations present an 
actual, direct conflict with Illinois State law, then these final 
regulations preempt State law pursuant to Sec.  106.6(h). A recipient 
may choose not to accept Federal financial assistance, if the recipient 
does not wish to be subject to Title IX and these final regulations.
    The Department notes that these final regulations provide a robust 
rape shield provision in Sec.  106.45(b)(6)(i)-(ii) that provides: 
``Questions and evidence about the complainant's sexual predisposition 
or prior sexual behavior are not relevant, unless such questions and 
evidence about the complainant's prior sexual behavior are offered to 
prove that someone other than the respondent committed the conduct 
alleged by the complainant, or if the questions and evidence concern 
specific incidents of the complainant's prior sexual behavior with 
respect to the respondent and are offered to prove consent.'' To the 
extent that this rape shield provision directly conflicts with Kentucky 
State law, then these final regulations preempt State law.
    To generally address commenters' questions about preemption and for 
the reasons explained above, the Department has added Sec.  106.6(h) 
which provides that to the extent of a conflict between State or local 
law and Title IX as implemented by Sec. Sec.  106.30, 106.44, and 
106.45, the obligation to comply with Sec. Sec.  106.30, 106.44, and 
106.45 is not obviated or alleviated by any State or local law.
    These final regulations do not conflict with the Clery Act and VAWA 
or the Department's regulations implementing the Clery Act and VAWA, in 
any aspect, including with respect to geographic requirements and the 
standard of evidence. If the Department interprets these final 
regulations as consistent with the Clery Act and VAWA, then recipients 
that are subject to these final regulations must be able to comply with 
these final regulations as well as the Department's regulations 
implementing the Clery Act and VAWA. The Department addresses comments 
about the Clery Act in the ``Clery Act'' subsection of the 
``Miscellaneous'' section. These final regulations do not conflict with 
the Clery Act, as amended by VAWA, and even incorporate the definitions 
of ``dating violence,'' ``domestic violence,'' and ``stalking'' in VAWA 
as part of the definition of sexual harassment in Sec.  106.30.
    Recipients have been able to navigate the art of complying with 
numerous Federal regulations promulgated by various executive agencies 
while also complying with State laws. School and university officials 
will determine how to comply with the State and Federal legal 
obligations. The Department will provide technical assistance with 
respect to the obligations under these Federal regulations.
    Changes: None.
    Comments: Many commenters contended that there would be negative 
consequences from conflicts between the NPRM and other Federal and 
State law. Commenters argued against imposing a one-size-fits-all 
approach, given the vast diversity among recipients in terms of size, 
resources, missions, and communities, and urged the Department to give 
recipients flexibility to tailor their own systems. Commenters 
expressed concern that the interaction between the NPRM and FERPA, the 
Clery Act, Title VI, and Title VII may be confusing and unclear.
    One commenter generally argued the NPRM would provide narrower 
protections and preempt many State anti-harassment laws, which would 
unfairly benefit respondents over complainants. Another commenter 
stated that the Department is jeopardizing recipients' access to State 
funding because schools would be in an impossible position of having to 
comply with both State and Federal law. Commenters emphasized the 
widespread nature of the NPRM's conflict with State laws across the 
country including laws in at least ten States, arguing that these 
conflicts could chill reporting, pose enforcement problems, impose 
additional cost burdens, and prompt lengthy litigation battles. One 
commenter asserted that the NPRM is so overly prescriptive that it 
would be difficult for institutions of higher education to 
simultaneously comply with it and the State of Washington's 
Administrative Procedure Act (Washington's APA) which, among other 
things, requires the presiding officer to be free of bias, prejudice, 
or other interest in the case, permits representation, contains notice 
procedures, allows the opportunity to respond and present evidence and 
argument, permits cross-examination, prohibits ex parte communications 
with the decision-maker, prohibits the investigator from being the 
presiding officer at the hearing, requires written orders, and permits 
appeal. Another commenter raised similar concerns about what the State 
of Washington requires and requested that the Department clarify these 
final regulations do not preclude a determination that a recipient's 
actions constitute discrimination under State civil rights laws.
    Discussion: The Department acknowledges that State laws may impose 
different requirements than these final regulations and asserts that in 
most circumstances, compliance with both State law and the final 
regulations is feasible. State laws that have a different definition of 
sexual harassment or require a recipient's response regardless of where 
misconduct occurs do not necessarily conflict with the final 
regulations. As previously explained, Sec.  106.45(b)(3)(i), concerning 
mandatory

[[Page 30462]]

dismissals of formal complaints, expressly provides that such a 
dismissal is only for Title IX purposes and does not preclude action 
under another provision of the recipient's code of conduct. 
Accordingly, recipients are free to respond to conduct that these final 
regulations do not address.
    Similarly, the requirements in Washington's APA, as described by 
the commenter, do not conflict with and may complement these final 
regulations. The requirements that the commenter describes in 
Washington's APA actually mirror many of the requirements in these 
final regulations. For example, the final regulations require the Title 
IX Coordinator, investigator, and decision-maker to be free from bias 
and conflicts of interest just as Washington's APA requires the 
presiding officer to be free of bias, prejudice, or other interest in 
the case. The final regulations allow the parties to have an advisor 
(who may be, but is not required to be, an attorney), and Washington's 
APA permits representation. Both these final regulations and 
Washington's APA contain notice procedures, allow the opportunity to 
respond and present evidence and argument, permit cross-examination, 
prohibit the investigator from also being a decision-maker, and permit 
appeal.
    We seek to provide recipients flexibility to tailor their systems 
as they see fit where we believe such flexibility is appropriate. These 
final regulations do not preclude a State from determining whether a 
recipient's actions constitute discrimination under State civil rights 
laws. To generally address commenters' questions about preemption and 
for the reasons explained above, the Department has added Sec.  
106.6(h) which provides that to the extent of a conflict between State 
or local law and Title IX as implemented by Sec. Sec.  106.30, 106.44, 
and 106.45, the obligation to comply with Sec. Sec.  106.30, 106.44, 
and 106.45 is not obviated or alleviated by any State or local law.
    In various sections of this preamble, we explain how these final 
regulations are consistent with FERPA and other Federal statutory 
provisions.\1689\
---------------------------------------------------------------------------

    \1689\ E.g., the ``Section 106.6(e) FERPA'' subsection and the 
``Section 106.6(f) Title VII and Directed Question 3 (Application to 
Employees)'' subsection of the ``Clarifying Amendments to Existing 
Regulations'' section of this preamble.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Some commenters argued the NPRM may exceed the 
Department's authority under Title IX and the Administrative Procedure 
Act (``APA''). A few commenters argued the NPRM is inconsistent with 
Title IX and its legislative purpose. This commenter requested that the 
Department not move forward with the proposed regulations until it 
publishes a substantive analysis addressing federalism and conflict of 
law issues created by it. This commenter also noted that the 
constitutional authority for Title IX could be either or both the 
Spending Clause and the Fourteenth Amendment. According to this 
commenter, the Fourteenth Amendment does not require a recipient to 
consent to conditions and, thus, reliance on such consent is misplaced 
to mitigate federalism concerns. However, this commenter cited case law 
suggesting that preemption and federalism analyses vary depending on 
which authority the Department is invoking. This commenter urged the 
Department to prove it has not exceeded its authority in issuing the 
proposed regulations.
    Discussion: Throughout the preamble and specifically in the 
``Miscellaneous'' section (e.g., ``Executive Orders and Other 
Requirements,'' ``Length of Public Comment Period/Requests for 
Extension,'' ``Conflicts with First Amendment, Constitutional 
Confirmation, and International Law,'' ``Different Standards for Other 
Harassment,'' and ``Spending Clause'' subsections) the Department has 
thoroughly explained why it believes the final regulations are 
consistent with the APA \1690\ and other Federal statutes. The 
Department adhered to the notice-and-comment rulemaking process 
required under the APA. The Department also already noted that with 
respect to these final regulations' relationship with State law, the 
final regulations are not an unfunded mandate that implicate federalism 
and conflict of law issues, but rather condition Federal financial 
assistance on compliance with these final regulations. To generally 
address commenters' questions about preemption and for the reasons 
explained above, the Department has added Sec.  106.6(h) which provides 
that to the extent of a conflict between State or local law and Title 
IX as implemented by Sec. Sec.  106.30, 106.44, and 106.45, the 
obligation to comply with Sec. Sec.  106.30, 106.44, and 106.45 is not 
obviated or alleviated by any State or local law.
---------------------------------------------------------------------------

    \1690\ 5 U.S.C. 701 et seq.
---------------------------------------------------------------------------

    The Department agrees that these final regulations could be 
justified under the Federal government's Fourteenth Amendment 
authority, in addition to the straightforward Spending Clause 
authority. The Fourteenth Amendment's Enforcement Clause, in Sec.  5 of 
the Amendment, authorizes the Federal government to enforce it by 
appropriate legislation. That power includes ``the authority both to 
remedy and to deter violation of rights guaranteed [by the Fourteenth 
Amendment] by prohibiting a somewhat broader swath of conduct, 
including that which is not itself forbidden by the Amendment's text.'' 
\1691\ The Supreme Court often has stated that ``Congress may enact so-
called prophylactic legislation that proscribes facially constitutional 
conduct, in order to prevent and deter unconstitutional conduct.'' 
\1692\ ``Legislation which deters or remedies constitutional violations 
can fall within the sweep of Congress's enforcement power even if in 
the process it prohibits conduct which is not itself unconstitutional 
and intrudes into legislative spheres of autonomy previously reserved 
to the States.'' \1693\ In Hibbs, in which the Supreme Court considered 
whether a male State employee could recover money damages against the 
State because of its failure to comply with the family-care leave 
provision of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. 
2601 et seq., the Court upheld the FMLA as a legitimate exercise of 
Congress's Sec.  5 power to combat unconstitutional sex discrimination, 
``even though there was no suggestion that the State's leave policy was 
adopted or applied with a discriminatory purpose that would render it 
unconstitutional'' under the Equal Protection Clause.\1694\ The Court 
explained that when the Federal government seeks to remedy or prevent 
discrimination on the basis of sex ``Sec.  5 authorizes it to enact 
prophylactic legislation proscribing practices that are discriminatory 
in effect, if not in intent, to carry out the basic objectives of the 
Equal Protection Clause'' including in the sphere of private 
discrimination.\1695\ After all, the Fourteenth Amendment's enforcement 
power is a ``broad power indeed.'' \1696\ These final regulations could 
thus be justified under this power, in addition to the Federal 
government's Spending Clause powers.\1697\ And in all events, these 
regulations are consistent with the APA,

[[Page 30463]]

Title IX, and other Federal statutory provisions.
---------------------------------------------------------------------------

    \1691\ Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000).
    \1692\ Nev. Dep't. of Human Resources v. Hibbs, 538 U.S. 721, 
727-728 (2003).
    \1693\ Fitzpatrick v. Bitzer, 427 U.S. 445, 455 (1976) 
(citations and internal quotation marks omitted).
    \1694\ Tennessee v. Lane, 541 U.S. 509, 519-20 (2004) (emphasis 
added).
    \1695\ Id. at 520.
    \1696\ Miss. Univ. for Women v. Hogan, 458 U.S. 718, 732 (1982).
    \1697\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 637 
(1999); South Dakota v. Dole, 483 U.S. 203 (1987).
---------------------------------------------------------------------------

    Changes: None.
    Comments: A number of commenters asserted that informal resolution 
under the NPRM would conflict with State law. Commenters argued that 
the NPRM's conflicts with State law regarding mediation could trigger 
enforcement problems, cause confusion for recipients and students, 
impose additional cost burdens, and prompt lengthy litigation.
    Discussion: The final regulations allow but do not require 
recipients to provide an informal resolution process pursuant to Sec.  
106.45(b)(9). If State law prohibits informal resolution, then a 
recipient does not need to offer an informal resolution process. 
Additionally, Sec.  106.45(b)(9) provides that a recipient may not 
require the parties to participate in an informal resolution process. 
The Department believes that Sec.  106.45(b)(9) leaves substantial 
flexibility with recipients as to whether to adopt informal resolution 
processes and how to structure and administer such processes, 
decreasing the likelihood that a recipient's compliance with these 
final regulations causes conflict with the recipient's compliance with 
any State law addressing mediations for campus sexual assault.
    To generally address commenters' questions about preemption and for 
the reasons explained above, the Department has added Sec.  106.6(h) 
which provides that, to the extent of a conflict between State or local 
law and Title IX as implemented by Sec. Sec.  106.30, 106.44, and 
106.45, the obligation to comply with Sec. Sec.  106.30, 106.44, and 
106.45 is not obviated or alleviated by any State or local law.
    Changes: None.

Section 106.8(a) Designation of Coordinator

    Comments: Several commenters expressed general support for Sec.  
106.8(a), noting that it codifies good practices already implemented at 
many schools, standardizes the importance of the Title IX Coordinator's 
role, and explicitly clarifies the independent compliance and 
investigatory responsibilities of the Title IX office. One commenter 
specifically appreciated the addition of the Title IX Coordinator's 
email address to the required notification, and another appreciated 
that this provision requires institutions to specify the Title IX 
Coordinator's ``name or title'' because recipients experience high 
turnover rates in the position of Title IX Coordinator. At least one 
commenter appreciated that this provision allows the Title IX 
Coordinator to delegate responsibilities to other staff members 
including the responsibility for implementing supportive measures.
    Some commenters requested clarification that Title IX Coordinators 
can delegate certain responsibilities or play more of a coordinating 
role rather than a direct role in certain circumstances. Many of these 
commenters asserted that the current regulations provide for this 
interpretation, but that proposed Sec.  106.8(a) did not afford the 
same flexibility to Title IX Coordinators. For instance, commenters 
asked whether a Title IX Coordinator's delegated employee can evaluate 
reports to determine whether they are covered by Title IX, determine 
which reports require formal proceedings, coordinate responses to all 
reports, or sign formal complaints on behalf of the Title IX 
Coordinator. Some commenters asked the Department to include an express 
list of nondelegable functions which the Title IX Coordinator must 
carry out personally.
    Some commenters recommended that the Department add language 
requiring a minimum standard of ``at least one full-time, dedicated'' 
employee for recipients with student populations under 10,000, and for 
recipients with student populations over 10,000 to employ one full-time 
Title IX Coordinator, at least one full-time investigator, and a full-
time administrative assistant to ensure minimum capacity. Several 
commenters suggested that more than one Title IX Coordinator may be 
necessary to fulfill all the required functions of the office, further 
suggesting that the number of Title IX Coordinators or size of the 
office should be proportionate to the size of the student body. One 
commenter stated that Sec.  106.8(a) made the Title IX Coordinator more 
inaccessible and invisible to complainants because it situated the 
Title IX Coordinator as an administrator at the school district level.
    Some commenters suggested that the Department should provide 
additional financial resources to institutions so that institutions can 
develop a more efficient and decentralized Title IX office under the 
direction of the Title IX Coordinator.
    Discussion: We appreciate the comments received in support of Sec.  
106.8(a). Based on the widespread use by commenters of the term ``Title 
IX Coordinator,'' the Department revised this provision to specifically 
label the employee designated under Sec.  106.8(a) as the ``Title IX 
Coordinator,'' specify that recipients must refer to that person as the 
``Title IX Coordinator,'' and we use that label throughout the final 
regulations. Uniformity in the label by which the person designated in 
Sec.  106.8(a) is referred will further the Department's interest in 
ensuring that students in schools, colleges, and universities know that 
notifying their school's ``Title IX Coordinator'' triggers their 
school's legal obligations to respond to sexual harassment under these 
final regulations. The final regulations require recipients to identify 
the designated individual by the official title, ``Title IX 
Coordinator,'' as well as require recipients to notify students and 
employees (and others) of the electronic mail address of the Title IX 
Coordinator, in addition to providing their office address and 
telephone number, to better ensure that students and employees have 
accessible options for contacting a recipient's Title IX 
Coordinator.\1698\ We have also revised Sec.  106.8(a) to state that 
the recipient must not only designate but also ``authorize'' at least 
one Title IX Coordinator, to further reinforce that a recipient's Title 
IX Coordinator (and/or any deputy Title IX Coordinators or other 
personnel to whom a Title IX Coordinator delegates tasks) must be 
authorized to coordinate the recipient's obligations under these final 
regulations. Nothing in the final regulations restricts the tasks that 
a Title IX Coordinator may delegate to other personnel, but the 
recipient itself is responsible for ensuring that the recipient's 
obligations are met, including the responsibilities specifically 
imposed on the recipient's Title IX Coordinator under these final 
regulations, and the Department will hold the recipient responsible for 
meeting all obligations under these final regulations.\1699\
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    \1698\ We have also revised Sec.  106.8(a) to expressly provide 
that every person has clear, accessible reporting channels to the 
Title IX Coordinator, by stating that any person may report sexual 
harassment (whether or not the person reporting is the person 
alleged to be the victim of conduct that could constitute sexual 
harassment), in person, by mail, by telephone, or by email, using 
the listed contact information for the Title IX Coordinator (or by 
any other means that results in the Title IX Coordinator receiving 
the person's verbal or written report), and that a report may be 
made at any time (including during non-business hours) by using the 
listed telephone number or email address, or by mail to the listed 
office address.
    \1699\ For example, under Sec.  106.44(a) the recipient must 
respond to sexual harassment promptly in a non-deliberately 
indifferent manner, and as part of this obligation the recipient's 
Title IX Coordinator must promptly contact the complainant to 
discuss the availability of supportive measures, consider the 
complainant's wishes with respect to supportive measures, inform the 
complainant of the availability of supportive measures with or 
without the filing of a formal complaint, and explain to the 
complainant the process for filing a formal complaint.

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[[Page 30464]]

    Nothing in the final regulations precludes a recipient from 
designating multiple Title IX Coordinators, nor from designating 
``deputy'' or ``assistant'' coordinators to whom a Title IX Coordinator 
delegates responsibilities, nor is a Title IX Coordinator prevented 
from working with other administrative offices and personnel within a 
recipient institution in order to ``coordinate'' the recipient's 
efforts to comply with Title IX. Ultimately, the recipient itself is 
responsible for compliance with obligations under Title IX and these 
final regulations, and Sec.  106.8(a) requires at least one recipient 
employee to serve as a Title IX Coordinator. If a recipient enrolls so 
many students that a single Title IX Coordinator is unable to 
coordinate the recipient's Title IX compliance then the recipient may 
need to hire additional personnel, but the Department declines to 
require that result. The Department's interest is in the recipient's 
compliance with Title IX obligations, but the Department desires to 
leave recipients as much flexibility as possible to decide how to 
achieve compliance so that a recipient's funds and resources are most 
efficiently allocated to achieve fulfilment of a recipient's Title IX 
obligations as well as a recipient's educational purpose and mission. 
Similarly, the Department declines to mandate that recipients with 
larger student populations employ more Title IX staff or that a Title 
IX Coordinator must be a full-time or dedicated position. The 
Department does not wish to prescribe a recipient's administrative or 
personnel affairs; the Department's interest is in prescribing each 
recipient's obligations under Title IX. To emphasize that the 
recipient's Title IX Coordinator must not be designated ``in name 
only'' to merely technically comply with this provision, we have 
revised Sec.  106.8(a) to state that the recipient must designate ``and 
authorize'' a Title IX Coordinator to coordinate the recipient's 
efforts to comply with Title IX.
    The Department recognizes that the position of Title IX Coordinator 
tends to be a high-turnover position, and that this creates challenges 
for recipients and their educational communities.\1700\ We believe that 
revisions to Sec.  106.8(a) in these final regulations help ensure that 
a recipient provides constant access to a Title IX Coordinator, without 
forcing recipients to divert educational resources to Title IX 
personnel unless the recipient has determined that the recipient needs 
additional personnel in order to fulfill the recipient's Title IX 
obligations.
---------------------------------------------------------------------------

    \1700\ E.g., Sarah Brown, Life Inside the Title IX Pressure 
Cooker, Chronicle of Higher Education (Sept. 5, 2019) (``Nationwide, 
the administrators who are in charge of dealing with campus sexual 
assault and harassment are turning over fast. Many colleges have had 
three, four, or even five different Title IX coordinators in the 
recent era of heightened enforcement, which began eight years ago. 
Two-thirds of Title IX coordinators say they've been in their jobs 
for less than three years, according to a 2018 survey by the 
Association of Title IX Administrators, or ATIXA, the field's 
national membership group. One-fifth have held their positions for 
less than a year.''); Jacquelyn D. Wiersma-Mosley & James DiLoreto, 
The Role of Title IX Coordinators on College and University 
Campuses, 8 Behavioral. Sci. 4 (2018) (finding that most Title IX 
Coordinators have fewer than three years of experience, and 
approximately two-thirds are employed in positions in addition to 
serving as the Title IX Coordinator).
---------------------------------------------------------------------------

    The Department disagrees that proposed Sec.  106.8(a) modified 
existing 34 CFR 106.8(a) in any manner that would result in the Title 
IX Coordinator being less accessible to students because a recipient's 
Title IX Coordinator may be a single coordinator for an entire school 
district; the existing regulations, proposed regulations, and final 
regulations consistently and appropriately recognize that Title IX 
governs each ``recipient'' \1701\ of Federal financial assistance which 
``operates an education program or activity,'' \1702\ not each 
individual school building. In order to better address the 
accessibility of a recipient's Title IX Coordinator for all students 
(as well as employees and others), we have revised Sec.  106.8(a) in 
these final regulations to expressly provide that any person may use 
the Title IX Coordinator's contact information (which must include an 
office address, telephone number, and email address) to report sexual 
harassment. Therefore, even if the Title IX Coordinator's office 
location is in an administrative building that is not easily accessible 
to all students, any person may contact the Title IX Coordinator (in 
person, by mail, telephone, or email) including in ways that allow 
reporting during non-business hours (i.e., by mail, telephone, or 
email).\1703\ Furthermore, if a recipient designates or authorizes 
employees to serve as deputy or assistant Title IX Coordinators 
(perhaps with the goal of having Title IX office personnel located on 
various satellite campuses, or in individual school buildings, to make 
Title IX personnel more accessible to students), then such employees 
are officials with authority to institute corrective measures on behalf 
of the recipient \1704\ and notice to such employees conveys actual 
knowledge to the recipient, requiring the recipient's prompt response 
under Sec.  106.44(a).
---------------------------------------------------------------------------

    \1701\ 34 CFR 106.2(i) (defining ``recipient'').
    \1702\ 34 CFR 106.2(i) (defining ``recipient''); 34 CFR 106.2(h) 
(defining ``program or activity'').
    \1703\ We have added Sec.  106.71 prohibiting retaliation 
against any individual for exercising rights under Title IX, and we 
emphasize that any person has the right to report sexual harassment 
to the recipient's Title IX Coordinator. Thus, for example, a 
recipient may not intimidate, threaten, coerce, or discriminate 
against an employee who reports sexual harassment allegations 
(whether as the alleged victim or as a third party) to the Title IX 
Coordinator, even if the recipient's code of conduct or employment 
policies state that such an employee is not permitted to report 
directly to the Title IX Coordinator (e.g., states that such an 
employee must only report ``up'' the employee's chain of command.)
    \1704\ Section 106.30 (defining ``actual knowledge'' to include 
notice to any official of the recipient who has authority to 
institute corrective measures on behalf of the recipient).
---------------------------------------------------------------------------

    If the Title IX Coordinator is located in an administrative office 
or building that restricts, or impliedly restricts, access only to 
certain students (e.g., a women's center), such a location could 
violate Sec.  106.8(a) by not ``authorizing'' a Title IX Coordinator to 
comply with all the duties required of a Title IX Coordinator under 
these final regulations (for example, a Title IX Coordinator must 
intake reports and formal complaints of sexual harassment from any 
complainant regardless of the complainant's sex).
    These final regulations are focused on clarifying recipients' legal 
obligations under Title IX and do not address grants or funding that a 
recipient might use to hire Title IX personnel.
    We have revised Sec.  106.8, for clarity and ease of reference, by 
describing the group of individuals and entities entitled to receive 
notice of the recipient's non-discrimination policy, and notice of the 
recipient's Title IX Coordinator's contact information, in paragraph 
(a) rather than (as in the NPRM) in Sec.  106.8(b)(1); thus, in 
provisions such as Sec.  106.8(b)(2) reference is made to ``persons 
entitled to a notification under paragraph (a)'' rather than the NPRM's 
reference to ``persons entitled to a notification under paragraph 
(b)(1).'' We have further revised Sec.  106.8(a) by requiring reference 
to the recipient's employee(s) designated to coordinate the recipient's 
Title IX responsibilities as the recipient's ``Title IX Coordinator,'' 
and references throughout Sec.  106.8 (and throughout the entirety of 
these final regulations), including Sec.  106.8(b)(1), now reference 
the ``Title IX Coordinator'' instead of ``the employee designated 
pursuant to paragraph (a).'' We have further revised Sec.  
106.8(b)(2)(i) to require the recipient to prominently display the 
contact information required to be listed for the Title IX Coordinator 
under paragraph (a) of this section, and the notice of non-
discrimination

[[Page 30465]]

described in paragraph (b)(1) of this section, on the recipient's 
website, if any, and in each handbook or catalog that the recipient 
makes available to persons entitled to a notification under Sec.  
106.8(a).
    Changes: We have revised Sec.  106.8(a) to clarify that the 
individual designated by the recipient is referred to as the ``Title IX 
Coordinator'' and added that the Title IX Coordinator must not only be 
designated but also ``authorized'' to coordinate the recipient's Title 
IX obligations. We have moved the list of persons whom a recipient must 
notify of the recipient's non-discrimination policy, and of the Title 
IX Coordinator's contact information, to Sec.  106.8(a) rather than 
listing those persons in Sec.  106.8(b)(1). We have revised Sec.  
106.8(a) to state that any person may report sex discrimination, 
including sexual harassment (whether or not the person reporting is the 
person alleged to be victimized by sex discrimination or sexual 
harassment) by using the listed contact information for the Title IX 
Coordinator, and stating that such a report may be made at any time 
(including during non-business hours) by using the telephone number or 
email address, or by mail to the office address, listed for the Title 
IX Coordinator. We have revised Sec.  106.8(b)(2)(i) to require the 
recipient to prominently display on the recipient's website the Title 
IX Coordinator's contact information required to be listed under Sec.  
106.8(a), as well as the recipient's notice of non-discrimination 
required under Sec.  106.8(b)(1).

Section 106.8(b) Dissemination of Policy

Removal of 34 CFR 106.9(c)
    Comments: Some commenters discussed the removal of 34 CFR 106.9 and 
the way the Department incorporated, but modified, provisions found in 
34 CFR 106.9 into the final regulations at Sec.  106.8(b). One 
commenter stated that for elementary and secondary schools, which are 
not subject to subpart C of the current part 106 (admissions and 
recruitment) and which do not solicit applicants for admission, 
proposed Sec.  106.8(b) created confusion as to how to implement such a 
provision. The commenter believed that notice on the recipient's 
website would be sufficient notice to stakeholders within the 
recipient's community.
    Some commenters objected to removing the requirement in 34 CFR 
106.9 that recipients take specific, continuing steps to notify 
specified people of the recipient's non-discrimination policy, and 
removal of the requirement that recipients distribute publications 
without discrimination on the basis of sex. Some commenters noted the 
Department expected that the availability of websites would address the 
removal of ``taking continuing steps'' but these commenters were not 
convinced that posting on websites achieves the same purpose. Other 
commenters asserted that changing the language around publications is 
not sufficient to ensure, as 34 CFR 106.9(c) did, that publications 
will be distributed without discrimination on the basis of sex. One 
commenter asserted that for example, under 34 CFR 106.9(c) a school 
district could not send school catalogs to parents of girls but not 
parents who have only boys, yet this would be allowed under the NPRM.
    At least one commenter stated that the Department failed to mention 
or justify the removal of the requirement to train recruiters on its 
non-discrimination policy, which the commenter argued is an important 
requirement to ensure that such a policy is not diluted in the field. 
One commenter generally expressed that 34 CFR 106.9 contains important 
mechanisms to prevent discrimination based on sex and their removal 
only makes Title IX protections weaker.
    Discussion: The Department appreciates commenters' support for, and 
other commenters' concerns about, removing 34 CFR 106.9 and 
incorporation of many of its provisions into Sec.  106.8(b). As 
discussed further below, the Department believes that Sec.  106.8(b) 
now more clearly and reasonably describes recipients' obligations to 
notify its educational community of a recipient's obligation not to 
engage in sex discrimination under Title IX. The Department appreciates 
commenters' concerns that requiring the recipient's non-discrimination 
policy to be posted on a recipient's website is not the same as 
requiring notice to each of the categories of persons and organizations 
listed under now-removed 34 CFR 106.9(a)(1).\1705\ However, the 
Department believes that recipients and their educational stakeholders 
should benefit from the technological developments (such as wide use of 
websites) that have emerged in the decades since promulgation of Title 
IX regulations in 1975, to more efficiently and cost-effectively 
communicate important notices, including the required notice of non-
discrimination. The Department believes that Sec.  106.8(b)(1) now 
appropriately requires recipients to notify an appropriately broad list 
of persons and organizations of, as well as to post on its website and 
in handbooks and catalogs (in Sec.  106.8(b)(2)), the recipient's non-
discrimination policy (as well as the Title IX Coordinator's contact 
information). The Department believes that these requirements 
reasonably reduce the burden on recipients to take ``specific and 
continuing steps'' to notify relevant persons of the recipient's non-
discrimination policy, without diminishing the goal of ensuring that a 
recipient's educational community understands that the recipient has a 
policy of non-discrimination in accordance with Title IX (as well as 
knowing the contact information for the Title IX Coordinator so that 
any person may report sex discrimination, including sexual harassment).
---------------------------------------------------------------------------

    \1705\ Now-removed 34 CFR 106.9(a)(1) refers to the following 
group of persons: Applicants for admission and employment, students 
and parents of elementary and secondary school students, employees, 
sources of referral of applicants for admission and employment, and 
all unions or professional organizations holding collective 
bargaining or professional agreements with the recipient. Section 
Sec.  106.8(a) alters this list by removing ``sources of referral of 
applicants for admission and employment'' and adding ``legal 
guardians'' of elementary and secondary school students.
---------------------------------------------------------------------------

    The Department understands commenters' concerns that 34 CFR 
106.9(c) specifically prohibited recipients from distributing 
publications on the basis of sex. Although similar language does not 
appear in Sec.  106.8(b), the Department believes that such language is 
not necessary because if a commenter's example did occur (e.g., a 
school sent a school catalog only to male students but not to female 
students), Title IX already prohibits different treatment on the basis 
of sex.
    The Department understands a commenter's concern that removing 
reference to ``sources of referral'' (language that appears in 34 CFR 
106.9(a)) from the group of persons and entities who must be notified 
of a recipient's non-discrimination policy could dilute the 
understanding of a recipient's non-discrimination policy ``in the 
field.'' We disagree, however, that recipients should continue to be 
required to send separate notice to all persons who act as recruiters 
for a recipient, because such persons are not always easily 
identifiable, and will have the benefit of the publicly available 
notice that Sec.  106.8(b)(2) requires to be prominently displayed on 
each recipient's website. Additionally, 34 CFR 106.51(a)(3) continues 
to prohibit a recipient from entering into any contractual or other 
relationship which directly or indirectly has the effect of subjecting 
employees or students to

[[Page 30466]]

discrimination, including ``relationships with employment and referral 
agencies'' such that Title IX regulations continue to clearly prohibit 
a recipient from indirectly discriminating in employment by, for 
instance, working with a referral source that discriminates on the 
basis of sex.\1706\ Similarly, 34 CFR 106.21(a) continues to prohibit 
recipients from discriminating on the basis of sex with respect to 
admissions, and the Department will continue to hold recipients 
responsible for sex discriminatory admissions policies and practices 
regardless of whether any individual or entity recruits applicants on 
the recipient's behalf.
---------------------------------------------------------------------------

    \1706\ See also Sec.  106.53(a) (``A recipient shall not 
discriminate on the basis of sex in the recruitment and hiring of 
employees.'').
---------------------------------------------------------------------------

    Changes: To more clearly acknowledge that the reference to 
``employment'' in Sec.  106.8(b)(1) is unrelated to the provision's 
reference to ``subpart C of this part'' (which applies to admissions), 
the word ``employment'' is moved to follow reference to ``subpart C'' 
instead of appearing as ``admissions and employment'' preceding that 
reference. The list of persons whom a recipient must notify of the 
recipient's non-discrimination policy has been moved from Sec.  
106.8(b)(1) to Sec.  106.8(a) so that Sec.  106.8(b)(1) now references 
``persons entitled to a notification under paragraph (a).''
List of Publications
    Comments: Some commenters discussed the way that Sec.  
106.8(b)(2)(i) changes the provision in removed 34 CFR 106.9(b)(1) 
regarding the list of types of publications and other materials where 
recipients must publish the recipient's non-discrimination policy 
required under Sec.  106.8(b)(1). One commenter supported proposed 
Sec.  106.8(b)(2)(i), stating that the provision streamlines the list 
of types of publications and asserted that requiring the recipient's 
non-discrimination policy to be published on the recipient's website, 
and in handbooks and catalogs, is more consistent with the ways 
institutions of higher education disseminate important information to 
students and employees. The commenter stated that the Department 
previously issued guidance on notices of non-discrimination in 2010 and 
recommended that if the proposed rules are adopted, the Department 
should clarify any parts of the sample notice provided in the 2010 
guidance that have changed as a result.
    Other commenters opposed these changes. One commenter stated that 
the Department failed to provide a reason for why the list of 
publications needed to be streamlined or why particular materials were 
removed from the list in 34 CFR 106.9(b) (e.g., application 
forms).\1707\ The commenter also argued that the Department failed to 
explain why it added handbooks to the list and how that item overlaps 
or not with items removed from that list, such as announcements and 
bulletins. The commenter stated that if the scope of handbooks is the 
same as, for instance, announcements and bulletins, then there is no 
reason for this change and if it is different than the practical effect 
will be to increase burden on recipients because the prior list of 
publications and materials remains in the Title IX regulations of 25 
other Federal agencies.
---------------------------------------------------------------------------

    \1707\ Now-removed 34 CFR 106.9(b)(1) listed the following types 
of publications in which a recipient needed to include the 
recipient's non-discrimination policy: Announcement, bulletin, 
catalog, or application form. Section 106.8(b)(1)(i) removes 
reference to announcements, bulletins, and application forms, 
retains reference to catalogs, adds handbooks, and Sec.  
106.8(b)(2)(i) adds a requirement to post the non-discrimination 
policy on the recipient's website, if any.
---------------------------------------------------------------------------

    Discussion: The Department appreciates commenters' support for, and 
concerns regarding, Sec.  106.8(b). The Department streamlined the list 
of types of publications that must contain the recipient's non-
discrimination policy (and, under the final regulations, must also 
contain the Title IX Coordinator's contact information) because the 
Department believes that the items listed in 34 CFR 106.9(b) that do 
not appear in Sec.  106.8(b) were superfluous; for example, applicants 
for admission are required to receive notification of the recipient's 
non-discrimination policy, so including ``application forms'' as a 
listed type of publication is unnecessary. As to ``announcements'' and 
``bulletins,'' such items lack a clear definition, and as described 
below, the Department believes that the streamlined list of types of 
publications, combined with the new requirement to post on the 
recipient's website, ensures that the recipient's educational community 
is aware of the recipient's non-discrimination policy (and Title IX 
Coordinator's contact information). The Department added ``handbooks'' 
and retained ``catalogs'' on the list to reflect the reality of what 
types of publications schools most frequently use that ought to contain 
the recipient's non-discrimination policy (and Title IX Coordinator's 
contact information). In addition, Sec.  106.8(b)(2) requires that the 
non-discrimination policy must be posted prominently on the recipient's 
website. The Department believes this list of types of publications is 
broad enough to achieve the purpose of ensuring that relevant 
individuals and organizations (i.e., the list of persons entitled to 
notice under Sec.  106.8(a)) see the recipient's non-discrimination 
policy on pertinent recipient materials without also retaining 
reference to ``announcements,'' ``bulletins'' and ``application forms'' 
from now-removed 34 CFR 106.9(b)(1). The Department does not agree with 
commenters who asserted that the Department is increasing the burden on 
recipients because the list of publications in removed 34 CFR 
106.9(b)(1) (i.e., announcements, bulletins, catalogs, application 
forms) remains in the Title IX regulations of 25 other Federal 
agencies. The Department believes that these final regulations 
appropriately update relevant Title IX regulations enforced by the 
Department regardless of whether other agencies also adopt the same 
regulations, and nothing in Sec.  106.8 makes it difficult for a 
recipient to comply with other agency regulations.
    The Department appreciates a commenter's request to clarify whether 
Sec.  106.8 changes anything in the sample notice of non-discrimination 
contained in the fact sheet on non-discrimination policies published by 
the Department in 2010.\1708\ These final regulations, including Sec.  
106.8, apply and control over any statements contained in Department 
guidance, and recipients should be aware that the sample notice 
contained in that 2010 fact sheet does not require reference to a 
``Title IX Coordinator'' or an email address listed for a Title IX 
Coordinator, while Sec.  106.8 does require that information.
---------------------------------------------------------------------------

    \1708\ U.S. Dep't. of Education, Office for Civil Rights, Fact 
Sheet, ``Notice of Non-discrimination'' (August 2010), https://www2.ed.gov/about/offices/list/ocr/docs/nondisc.pdf. The 2001 
Guidance at 20 encourages recipients to ensure that the school 
community has adequate notice of the school's non-discrimination 
policy, and of the procedures for filing complaints of sex 
discrimination, by having copies available at various locations 
throughout the school or campus, including a summary of the 
procedures in handbooks and catalogs sent to students and parents, 
and identifying personnel who can explain how the procedures work. 
These final regulations at Sec.  106.8(b)-(c) similarly require 
notice of the recipient's non-discrimination policy, and notice of 
the recipient's grievance procedures for complaints of sex 
discrimination, and grievance process for formal complaints of 
sexual harassment, to members of the recipient's educational 
community, as well as the contact information for the Title IX 
Coordinator.
---------------------------------------------------------------------------

    Changes: We have revised Sec.  106.8(b)(2)(i) to require recipients 
to publish on their websites, if any, the contact information for their 
Title IX Coordinator required under Sec.  106.8(a).
Professional Organizations
    Comments: One commenter objected to the requirement in Sec.  
106.8(b)(1) to

[[Page 30467]]

notify professional organizations, asserting that such organizations do 
not have much bearing at the elementary and secondary school level. The 
commenter further asserted that the proposed rules did not clarify how 
to identify appropriate professional organizations, nor whether the 
organization has a right of action or standing that warrants the need 
to provide it with separate notice. Finally, the commenter stated that 
the proposed rules did not clarify whether publishing the recipient's 
non-discrimination policy on the recipient's website as required under 
Sec.  106.8(b)(2)(i) also fulfils the requirement under Sec.  
106.8(b)(1) that the recipient ``must notify'' the group of persons 
listed in that provision, which would include any applicable 
professional organizations.
    Discussion: The Department does not agree that the reference to 
``professional organizations'' has little or no bearing in elementary 
and secondary schools, because the phrase appears in Sec.  106.8(b)(1) 
as part of describing ``all unions or professional organizations 
holding collective bargaining agreements or professional agreements 
with the recipient'' and the Department believes that the persons and 
organizations in this description do have need to receive notice of a 
recipient's non-discrimination policy. Whether an organization 
describes itself as a ``union'' or uses a different label, the term 
``or professional organizations holding collective bargaining 
agreements or professional agreements'' encompasses the reality that 
many elementary and secondary schools have employees who are unionized 
or otherwise collectively bargain or hold professional agreements with 
the recipient. Such unions or similar organizations should receive 
notice that the recipient does not discriminate under Title IX (and 
should receive notice of the recipient's Title IX Coordinator's contact 
information), both for the protection of union or similar organization 
members as employees of the recipient with rights under Title IX, and 
because such employees may have duties and responsibilities flowing 
from a recipient's Title IX obligations. For these reasons, the 
Department disagrees that ``professional organizations'' should be 
removed from the list of persons whom a recipient must notify of the 
recipient's non-discrimination policy (and of the Title IX 
Coordinator's contact information).
    The Department appreciates the opportunity to clarify that posting 
the recipient's non-discrimination policy (and the Title IX 
Coordinator's contact information) prominently on a recipient's website 
(required under Sec.  106.8(b)(2)(i)) does not satisfy the recipient's 
obligation to ``notify'' the persons listed in Sec.  106.8(a) (i.e., 
applicants for admission and employment, students, parents or legal 
guardians of elementary and secondary school students, employees, 
unions and similar organizations) of the non-discrimination policy and 
Title IX Coordinator's contact information. These final regulations do 
not prescribe a particular form or method by which recipients ``must 
notify'' the foregoing group of persons and entities, in recognition 
that existing regulations at 34 CFR 106.9(a)(2), which became effective 
in 1975 and constituted the Department's first Title IX implementing 
regulations, were concerned with prescribing the form of ``initial'' 
notice (within 90 days after the effective date of the 1975 
regulations) of a recipient's non-discrimination policy (and thus 
prescribed that notice could occur via publication in local newspapers, 
alumni or other recipient-operated newspapers or newsletters, and other 
written communications to students and employees). Most recipients have 
already complied with the regulatory requirement to send an ``initial'' 
notice within 90 days of the effective date of the 1975 regulations. As 
to every recipient, regardless of when the recipient first becomes 
subject to Title IX, the recipient under these final regulations ``must 
notify'' the list of persons and entities in Sec.  106.8(a) by some 
effective method separate and apart from also complying with Sec.  
106.8(b)(2)(i) by posting required information on the recipient's 
website.
    Changes: None.
Parents of Elementary and Secondary School Students
    Comments: Commenters expressed concerns about the removal of 
parents of elementary and secondary school students from the list in 
proposed Sec.  106.8(b)(1) \1709\ of persons to whom recipients must 
send notice of their non-discrimination policy (and Title IX 
Coordinator's contact information). Commenters asserted that the 
Department did not provide a reason for why the list of individuals and 
entities needs to be streamlined, and argued that streamlining the list 
will not reduce the burden on school districts because the requirement 
to notify parents of elementary and secondary school students remains 
in the Title IX regulations of 25 other Federal agencies. Commenters 
expressed concern that eliminating parents of elementary and secondary 
school students from this list would lead to underreporting of sexual 
harassment because if parents are not informed of the school's non-
discrimination policy, parents will be deprived of the tools they need 
to protect their children's rights under Title IX.
---------------------------------------------------------------------------

    \1709\ As discussed previously, the list of persons whom a 
recipient ``must notify'' of the recipient's non-discrimination 
policy, and of the Title IX Coordinator's contact information, has 
been moved in the final regulations to Sec.  106.8(a) instead of in 
proposed Sec.  106.8(b)(1).
---------------------------------------------------------------------------

    One commenter was concerned with omitting parents of elementary and 
secondary school students from the list in proposed Sec.  106.8(b)(1) 
in light of the fact that per the proposed rules, elementary and 
secondary school students could be subject to cross-examination and 
their parents would not have knowledge of the procedures involved in 
reporting sexual harassment. Commenters argued that most elementary and 
secondary school students are minors and rely on their parents in 
making decisions related to school. Commenters expressed concern that 
by removing parents of elementary and secondary school students from 
the list, the Department would be placing a large burden on minor 
students to be aware of a complex policy regarding sex discrimination. 
Commenters argued that the lack of notice to parents limits the 
potential for legal remedies because the proposed rules require actual 
knowledge of sexual harassment via notice to the Title IX Coordinator 
or an official with the authority to institute corrective measures on 
behalf of the recipient, and young students cannot be expected to know 
how to contact those officials. Commenters asserted that since the 
parents of elementary and secondary school students would no longer be 
required to receive notice of the non-discrimination policy, children 
would have the task of providing notice to these individuals and would 
have to understand that what they have experienced is sexual harassment 
and feel comfortable sharing the experience with a stranger.
    Discussion: The Department is persuaded by commenters' arguments 
that streamlining the list of persons who must be notified of the 
recipient's non-discrimination policy (described in Sec.  106.8(b)(1)) 
should not include eliminating ``parents of elementary and secondary 
school students'' from that list.\1710\ The Department is further

[[Page 30468]]

persuaded by commenters' concerns that neglecting to include parents on 
this list places young students at unnecessary risk of not knowing 
their Title IX rights, and not having an effective means of asserting 
their rights because their parent has not been notified of the 
recipient's non-discrimination policy (and of the Title IX 
Coordinator's contact information). Therefore, the final regulations 
not only restore ``parents'' to this list, but add ``parents and legal 
guardians'' of elementary and secondary school students (emphasis 
added), to ensure that a responsible adult with the ability to exercise 
rights on behalf of elementary and secondary school students receives 
notice of the recipient's non-discrimination policy as well as notice 
of the recipient's Title IX Coordinator's contact information. We have 
also added Sec.  106.6(g) to these final regulations, to expressly 
acknowledge the legal rights of parents and guardians to act on behalf 
of individuals with respect to exercise of rights under Title IX, 
including but not limited to filing a formal complaint of sexual 
harassment.
---------------------------------------------------------------------------

    \1710\ As noted above, we have revised Sec.  106.8 to move this 
list of persons whom a recipient ``must notify'' of the recipient's 
non-discrimination policy and of the recipient's Title IX 
Coordinator's contact information to Sec.  106.8(a), such that Sec.  
106.8(b)(1) now refers back to the ``persons entitled to a 
notification'' listed in Sec.  106.8(a).
---------------------------------------------------------------------------

    Changes: The final regulations revise Sec.  106.8(a) to add to the 
list of persons receiving notice of the recipient's non-discrimination 
policy, and notice of the recipient's Title IX Coordinator's contact 
information, ``parents or legal guardians of elementary and secondary 
school students.'' We have also added Sec.  106.6(g) to these final 
regulations, to expressly acknowledge the legal rights of parents and 
guardians to act on behalf of individuals with respect to exercise of 
rights under Title IX.
Subjectivity in Publications' Implication of Discrimination
    Comments: Several commenters discussed the change in language from 
removed 34 CFR 106.9(b)(2) to Sec.  106.8(b)(2)(ii).\1711\ One 
commenter expressed support for the change in language. The commenter 
stated that 34 CFR 106.9 is not sufficiently detailed to allow a school 
to know if a publication meets the Department's standards and may lead 
to inconsistency in enforcement across OCR's field offices. Some 
commenters opposed the change and asserted that the Department's 
rationale for the change in language was to remove subjective 
determinations so that the requirement would be clearer for those 
enforcing it and for recipients seeking to comply with it but did not 
believe more clarity was needed. Some of these commenters asserted that 
the Department had yet to respond to a commenter's Freedom of 
Information Act (FOIA) request for records about the subjectivity or 
lack of clarity in 34 CFR 106.9(b)(2) and argued that once the 
Department responds to the FOIA request the Department should reopen 
the public comment period to allow for additional evidence and 
arguments. Some commenters also contended that the elimination of the 
word ``illustration'' from 34 CFR 106.9(b)(2) is contrary to the Title 
IX regulations of 25 other Federal agencies (many of whom fund the same 
recipients as the Department) and is in tension with regulations issued 
by Federal agencies under other statutes prohibiting sex 
discrimination, which do extend to non-textual components of 
communications. Commenters argued that there is no indication in the 
NPRM or otherwise that any of these agencies have had difficulty 
enforcing such regulations, or that covered entities have sought 
greater clarity because such standards are too subjective.
---------------------------------------------------------------------------

    \1711\ 34 CFR 106.9(b)(2) (``A recipient shall not use or 
distribute a publication of the type described in this paragraph 
which suggests, by text or illustration, that such recipient treats 
applicants, students, or employees differently on the basis of sex 
except as such treatment is permitted by this part.''); cf. Sec.  
106.8(b)(2)(ii) (``A recipient must not use or distribute a 
publication stating that the recipient treats applicants, students, 
or employees differently on the basis of sex except as such 
treatment is permitted by title IX or this part.'').
---------------------------------------------------------------------------

    Discussion: The Department appreciates commenters' arguments that 
34 CFR 106.9(b)(2)'s phrasing that a recipient cannot use or distribute 
any publication that ``suggests, by text or illustration'' that the 
recipient treats people differently based on sex is superior to the 
phrasing in Sec.  106.8(b)(2)(ii) that a recipient must not use or 
distribute a publication ``stating that the recipient'' treats people 
differently based on sex. The Department believes, however, that 
requiring recipients to (a) have a non-discrimination policy, (b) 
notify relevant persons and entities of that policy, and (c) post that 
policy on the recipient's website and in handbooks and catalogs, 
sufficiently ensures that a wide pool of people affiliated with the 
recipient, and the general public, understand a recipient's obligation 
to not discriminate based on sex.\1712\ The Department does not believe 
that recipients' graphic or pictorial illustrations that appear on a 
recipient's various publications (e.g., pictures of children in a 
classroom in a recipient's catalog, or photos of students in caps and 
gowns on a recipient's website) should be scrutinized by the Department 
for the purpose of deciding whether by virtue of such graphics, photos, 
or illustrations the recipient is ``suggesting'' that the recipient 
discriminates in violation of the recipient's clearly stated policy 
that the recipient does not discriminate. Rather, the Department 
believes that recipients' publications should take care not to 
``state'' different treatment based on sex in contravention of the 
recipient's required non-discrimination policy.
---------------------------------------------------------------------------

    \1712\ We have revised Sec.  106.8(b)(2)(ii) to refer to ``title 
IX or this part'' rather than simply ``this part'' to acknowledge 
that Title IX, 20 U.S.C. 1681 et seq. contains exemptions and 
exceptions to Title IX's non-discrimination mandate, not all of 
which are reflected expressly in the Department's implementing 
regulations.
---------------------------------------------------------------------------

    The sufficiency of the Department's response to any individual FOIA 
request is beyond the scope of this rulemaking. Further, the Department 
does not believe that evidence of specific instances in which a 
recipient or the Department actually found the ``suggests, by text or 
illustration'' language in 34 CFR 106.9(b)(2) to be confusing or 
unfairly subjective is necessary in order to justify the Department's 
reconsideration of this language and the Department's conclusion that 
the better policy is to evaluate ``statements'' made in recipient's 
publications rather than ``suggestions'' made via illustrations.
    The Department acknowledges that Sec.  106.8(b)(2)(ii) uses 
different language than the Title IX regulations of other Federal 
agencies. The Department believes that these final regulations 
appropriately update the Title IX regulations enforced by the 
Department, regardless of whether other agencies also adopt the same 
language in each provision, and nothing in Sec.  106.8 creates a 
conflict with, or makes it difficult for a recipient to comply with, 
other agencies' regulations.
    Changes: None.
Judicial Requirements for Sex Discrimination
    Comments: One commenter stated that for more than 30 years, courts 
and agencies enforcing Title IX have applied the language in 34 CFR 
106.9(b)(2) to address sex stereotyping without apparent difficulty and 
asserted that not including in Sec.  106.8(b)(2)(ii) the language from 
34 CFR 106.9(b)(2) regarding a publication that ``suggests, by text or 
illustration'' different treatment on the basis of sex (and replacing 
that language with language in Sec.  106.8(b)(2)(ii) referencing a 
publication ``stating'' different treatment on the basis of sex) runs 
contrary to clearly established Supreme Court precedent that explicitly 
recognizes the right to be protected from discrimination and harassment 
based on

[[Page 30469]]

sex, including sex stereotyping. This commenter further asserted that 
for the same reason, Sec.  106.8 is fundamentally inconsistent with the 
plain language of the Title IX statute (20 U.S.C. 1681) because the 
Supreme Court has held that a school can violate Title IX where a 
student is denied access to educational benefits and opportunities on 
the basis of sex, even in the absence of a facially discriminatory 
policy. This commenter also contended that Sec.  106.8 is inconsistent 
with the Title IX statute and applicable case law because the language 
in Sec.  106.8 prohibits explicit intentional discrimination yet allows 
implicit discrimination, which can deny students a fair and equal 
education. In support of this, the commenter stated that courts have 
consistently recognized and upheld Title IX regulations that prohibit 
policies found to have a discriminatory effect on one sex.
    Discussion: The Department does not believe that the reference in 
Sec.  106.8(b)(2)(ii) to a recipient's publication as ``stating'' that 
the recipient does not treat people differently based on sex instead of 
a publication that ``suggests, by text or illustration'' that a 
recipient treats people differently based on sex, constitutes rejection 
or modification of the way that Federal courts have applied sex 
stereotyping as a theory of sex discrimination. Nothing in the language 
of Sec.  106.8(b)(2)(ii) restricts or changes the Department's ability 
to evaluate a recipient's publication for statements of different 
treatment on the basis of sex, including on a theory of sex 
stereotyping. Whether a publication ``states'' different treatment on 
the basis of sex, including based on a theory of sex stereotyping, is 
an inquiry distinct from whether the publication might be viewed as 
``suggesting'' or implying different treatment on the basis of sex, 
including based on a theory of sex stereotyping. For reasons explained 
above, the Department does not believe it is reasonable or useful for 
the Department to scrutinize every graphic, picture, and illustration 
in a recipient's publications to discern whether such illustrations 
suggest, or imply, different treatment that is not intended, not 
applied, and not reasonably perceived as such.
    Changes: None.
Implicit Forms of Sex Discrimination
    Comments: A number of commenters offered examples of ways schools 
could suggest that they discriminate on the basis of sex without 
explicitly stating it, to explain commenters' concerns regarding the 
proposed rules' replacement of language from 34 CFR 106.9(b)(2) with 
the language in Sec.  106.8(b)(2)(ii). One commenter argued that the 
Department provided no statistical or other evidence to show that the 
rationale for the provision has changed, or that sex stereotyping no 
longer needs to be remedied. The commenter contended that published 
policies and materials of a school can be susceptible to suggestions of 
sex stereotyping even where the publications do not ``state'' 
discriminatory practices. The commenter argued that both male and 
female students continue to be subjected to sex stereotyping in the 
forms of visual images, statements, and conduct that limits or denies 
their access to career and technical education paths based on sex. 
Commenters asserted that male students are discouraged from engaging in 
dance or theater because these occupations are not sufficiently 
``masculine,'' and female students are discouraged from participating 
in science or engineering based on stereotypical conceptions of a 
woman's ability to do math and science. One commenter asserted that it 
is rare for an entity to directly state that it discriminates and that 
there are many other ways a discriminatory message can come across; for 
example, a brochure used to recruit applicants to a nursing school 
should not contain 40 photos of female students and no photos of male 
students.
    Another commenter expressed concern that there are numerous symbols 
that get a point across as well as, if not better than, actually 
stating something (e.g., burning a cross on one's lawn). One commenter 
asserted that overt racism and sexism are less common in the modern era 
and that statements hinting at a policy of sex discrimination are used 
in lieu of explicit statements. The commenter asserted that for 
example, instead of a recipient stating that it reserves Advanced 
Placement classes for college-bound men because a woman's place is in 
the home, the recipient might state ``we promote traditional gender 
roles and encourage women to take appropriate coursework to prepare for 
those roles.'' The commenter argued that while both statements have the 
same message and refer to a school's pattern of violating Title IX by 
forbidding women from taking the same classes as men, only one is 
explicit enough to contravene the proposed regulations. One commenter 
stated that while the commenter appreciated the Department's efforts to 
instill objectivity into Sec.  106.8(b)(2)(ii), the commenter was 
concerned that the provision would allow schools to send discriminatory 
messages and then hide behind the fact that those messages did not 
explicitly state the schools were discriminating on the basis of sex. 
The commenter asserted that for example, a school may post a sign 
relating to sexual misconduct which includes images of a male student 
and the statement ``don't be that guy,'' which suggests that the school 
thinks only men commit sexual assault even though the school may state 
that it has a policy of non-discrimination. The commenter suggested 
that the Department use an objective standard that also prohibits non-
textual indications of sex discrimination.
    Some commenters stated that the only example of the Department's 
application of 34 CFR 106.9(b)(2) that they could locate was a case in 
which OCR determined that a school handbook describing a club as ``open 
to all boys'' violated 34 CFR 106.9(b)(2), even though the language did 
not state the club was ``not open to all girls'' because the 
description indicated that the club was intended for students of a 
particular sex. These commenters expressed concern that proposed Sec.  
106.8(b)(2)(ii) could overrule this decision, which would enable 
recipients to steer students into programs and activities based on sex.
    Discussion: For reasons described above, the Department does not 
believe it is appropriate to scrutinize the graphics, photos, and 
illustrations chosen by a recipient in its publications in order to 
determine whether a recipient's publication ``suggests'' different 
treatment based on sex. The Department disagrees with the commenter who 
argued that a recipient should not be allowed to use a picture on a 
nursing school brochure depicting a group of women, without additional 
context about the brochure asserting that men were treated differently 
in such a nursing program. The Department does not believe that 
examining illustrations used in a recipient's publications yields a 
reasonable, fair, or accurate assessment of whether a recipient engages 
in sex discrimination, and does not believe that expecting a 
proportionality requirement in the illustrative, graphic, and 
photographic depictions of all the kinds of students to whom a 
recipient's programs are available bears a reasonable relation to 
whether the recipient treats students or employees differently on the 
basis of sex contrary to the recipient's policy of non-discrimination. 
To the extent that a commenter accurately describes an OCR enforcement 
action as concluding that a

[[Page 30470]]

recipient's publication violated 34 CFR 106.9 because the publication 
described a program as ``open to all boys,'' such a result could also 
follow from application of Sec.  106.8 because the publication could be 
found to ``state'' different treatment on the basis of sex. Thus, the 
enforcement action described by the commenter may not reach a different 
result under the final regulations. Similarly, a commenter's example of 
a recipient publication showing a picture of a male with text stating 
``Don't be that guy'' and referring to sexual assault prevention could 
be evaluated under Sec.  106.8 as to whether the publication states 
different treatment on the basis of sex, without using the language 
``suggests, by text or illustration'' used in 34 CFR 106.9.
    Changes: None.
Analogous Provisions in Other Laws
    Comments: Some commenters asserted that proposed Sec.  
106.8(b)(2)(ii) is not aligned with analogous provisions that Congress 
has enacted in laws prohibiting sex discrimination to address the 
problem of entities attempting to exclude a protected group by 
indicating they are not welcome; commenters referred to, for example, 
Title VII and the Fair Housing Act which prohibit notices, statements, 
or advertisements that indicate preference, limitation, or 
discrimination. The commenters argued that the word ``indicate'' used 
in these statutes is much closer to the word ``suggest'' in 34 CFR 
106.9(b)(2) and asserted that it is unclear why the Department would 
want to create a regime where a recipient could not indicate that it 
did not hire or rent to women, but could suggest that it did not admit 
women to its education program.
    Discussion: The Department acknowledges commenters' references to 
non-Title IX statutes that use words like ``indicate'' to prohibit 
discrimination on prescribed bases. However, for the reasons described 
above, the Department believes that under Title IX, prohibiting 
recipients from using publications ``stating'' that the recipient 
discriminates under Title IX sufficiently advises recipients not to 
make such statements in publications, without unnecessarily 
scrutinizing recipients' publications' pictures, graphics, and 
illustrations for a ``suggestion'' of discrimination where none is 
actually practiced by the recipient, and where statements in a 
publication do not convey different treatment on the basis of sex. 
Section 106.8(b)(2)(ii) allows the Department to analyze the context of 
such a publication and require a recipient to change such statements as 
necessary to promote the purposes of Title IX.
    Changes: None.
Suggested Modifications
    Comments: One commenter suggested that the Department require a 
recipient's non-discrimination policy to be published in multiple 
locations on the website where appropriate, including for example, the 
recipient's human resources page and admissions page. Another commenter 
suggested that the Department require recipients to post all of a 
recipient's Title IX policies and procedures on their website in one 
easily accessible PDF document and located at a single website link. 
One commenter stated that the Department did not provide an adequate 
definition of the characteristics of display that would qualify as 
``prominent'' and recommended that the Department clarify the 
definition of ``prominent display'' as that phrase is used in Sec.  
106.8(b)(2)(i). The commenter also recommended that the Department 
reiterate Federal standards regarding translation of materials into 
languages other than English.
    One commenter urged the Department to require recipients that have 
identified conflicts between the application of Title IX and the 
religious tenets of religious organizations that controls such 
recipients to include such information in their non-discrimination 
policy. The commenter asserted that requiring this information would 
promote consumer choice and is consistent with all other information 
that Federal law requires a school to disclose, particularly in higher 
education, and would enable a student to make a knowing and voluntary 
choice about whether to attend the school. The commenter also argued 
that requiring recipients to disclose inapplicability of Title IX to 
some or all of their programs in their non-discrimination policy should 
not be limited to religious institutions, and that it should also 
apply, for example, to an educational institution that receives Federal 
funds and believes that it is exempt from Title IX because it is 
training people for the merchant marines, or to a voluntary youth 
services organization or social fraternity or sorority whose membership 
practices are not subject to Title IX.
    One commenter requested clarification regarding the language in 
Sec.  106.8(b)(2)(ii) that recipients must not use publications stating 
that they treat applicants, students, or employees differently ``on the 
basis of sex'' except as such treatment is permitted ``by this part.'' 
One commenter asked whether an educational institution within the scope 
of Sec.  106.12(a) is required to (a) notify applicants, students, 
employees, and others that it does not discriminate on the basis of 
sex, even though that is not true, or (b) notify applicants, students, 
employees, and others that it does not discriminate on the basis of 
sex, except in circumstances identified in that notification that are 
permissible because of Sec.  106.12(a).
    Discussion: The Department appreciates commenters' suggestions for 
modifications to the way notice and publication of a recipient's non-
discrimination policy is given in Sec.  106.8. The Department notes 
that nothing in the final regulations prevents a recipient from 
choosing to adopt commenters' suggestions, for example that the policy 
is placed on multiple, specific pages of the recipient's website; 
ensuring the policy appears as a PDF linked document on the website; 
and that the notice appears in multiple languages. However, the 
Department believes that Sec.  106.8 sets forth reasonable, enforceable 
requirements that achieve the purpose of ensuring that relevant persons 
and organizations know the recipient's non-discrimination policy, 
without prescribing how the recipient must organize its website. There 
is no exemption for a recipient's non-discrimination policy required 
under Sec.  106.8, from laws, regulations, Federal standards, and 
recipient policies regarding translation of materials and information 
into languages other than English.
    The Department does not believe that recipients with religious or 
other exemptions to Title IX are making false representations by 
complying with Sec.  106.8, because (a) a recipient's non-
discrimination policy must state that the requirement not to 
discriminate extends to admission ``unless subpart C of this part does 
not apply'' and (b) the final regulations add ``by title IX or this 
part'' instead of just ``by this part'' in Sec.  106.8(b)(2)(ii). These 
qualifiers encompass the reality that some recipients are exempt from 
Title IX in whole or in part due to the various statutory and 
regulatory exemptions, including the religious exemption whereby a 
recipient is exempt from Title IX to the extent that application of 
Title IX is inconsistent with a religious tenet of a religious 
organization that controls the recipient. Moreover, nothing in the 
final regulations precludes a recipient from stating on its website, in 
publications, and elsewhere that the recipient has a particular 
statutory or regulatory exemption under Title IX. Further, under Sec.  
106.8(b)(1) any person can inquire about application of Title IX to the 
recipient by referring

[[Page 30471]]

inquiries to the recipient's Title IX Coordinator, the Assistant 
Secretary, or both.
    Changes: The final regulations use the phrase ``permitted by title 
IX or this part'' instead of ``permitted by this part'' to more 
comprehensively reference Title IX exemptions contained in the Title IX 
statute, as well those exemptions contained in Title IX regulations.

Section 106.8(c) Adoption and Publication of Grievance Procedures

    Comments: Some commenters expressed support for Sec.  106.8(c), 
asserting that it would bring clarity to the regulatory requirement 
that formal complaints of sexual harassment must use ``prompt and 
equitable'' grievance procedures.
    One commenter expressed concern that the proposed rules did not 
address ``totalitarian'' reporting methods such as third-party 
reporting, bystander intervention, and posting fliers all over campus 
that encourage students to make reporting a habit.
    Discussion: The Department appreciates commenters' support for the 
proposed rules' intention in Sec.  106.8(c) to clarify that recipients 
must apply prompt and equitable grievance procedures to resolve 
complaints of sex discrimination generally, and to resolve formal 
complaints of sexual harassment. As explained below, we have revised 
Sec.  106.8(c) to clarify that recipients must have ``prompt and 
equitable'' grievance procedures for complaints of sex discrimination, 
and must have in place a grievance process that complies with Sec.  
106.45 for formal complaints of sexual harassment.
    The Department believes that the notice and publication 
requirements in Sec.  106.8(b) and the adoption and publication of 
grievance procedures provisions in Sec.  106.8(c) adequately ensure 
that the recipient disseminates information about its obligation not to 
discriminate under Title IX, and how to report and file complaints 
about sex discrimination, including sexual harassment. The Department 
notes that while the definition of ``actual knowledge'' in Sec.  106.30 
provides for a recipient to obtain actual knowledge of sexual 
harassment via third-party reporting, the definition of ``formal 
complaint'' in Sec.  106.30 precludes a third party from filing a 
formal complaint, which is defined as a document that must be filed by 
a complainant or signed by the Title IX Coordinator. As discussed 
elsewhere in this preamble, the final regulations neither require nor 
prohibit a recipient from disseminating information about bystander 
intervention designed to prevent sexual harassment. A primary focus of 
these final regulations is to govern a recipient's response to sexual 
harassment of which the recipient has become aware, and to provide 
accessible options for any person to report sexual harassment to 
trigger a recipient's response obligations. Similarly, nothing in the 
final regulations requires or prohibits a recipient from posting flyers 
on campus encouraging students and others to report sexual harassment; 
recipients should retain flexibility to communicate with their 
educational community regarding the importance of reporting sexual 
harassment. The Department believes that Title IX's non-discrimination 
mandate is best served by ensuring that a recipient's response 
obligations are triggered via notice of sexual harassment from any 
source, and that third-party reporting appropriately furthers the 
purposes of Title IX. We have revised Sec.  106.8(a) to emphasize that 
``any person'' may report sexual harassment (whether or not the person 
reporting is the person alleged to be the victim of sexual harassment) 
using the contact information listed for the Title IX Coordinator, and 
specifying that such a report may be made ``at any time (including 
during non-business hours)'' by using the telephone number or email 
address, or by mail to the office address, listed for the Title IX 
Coordinator. We have also revised the Sec.  106.30 definition of 
``actual knowledge'' to emphasize that ``notice'' includes (but is not 
limited to) a report to the Title IX Coordinator as described in Sec.  
106.8(a). The Department disagrees that accessible reporting channels, 
and the right of any person to report sexual harassment, constitute a 
``totalitarian'' system or otherwise has negative consequences. As 
demonstrated by the data discussed in the ``General Support and 
Opposition'' section of this preamble, sexual harassment is a prevalent 
problem affecting the educational access of students at all educational 
levels, and a recipient's knowledge of sexual harassment triggers the 
recipient's non-deliberately indifferent response under these final 
regulations so that instances of sexual harassment are addressed in a 
manner that is not clearly unreasonable in light of the known 
circumstances.\1713\
---------------------------------------------------------------------------

    \1713\ Section 106.44(a) (describing a recipient's general 
response obligations upon having actual knowledge of sexual 
harassment against a person in the United States in the recipient's 
education program or activity).
---------------------------------------------------------------------------

    Changes: We have revised Sec.  106.8(a) to state that any person 
may report sex discrimination, including sexual harassment, whether or 
not the person reporting is the person alleged to be victimized by sex 
discrimination or sexual harassment, by using the contact information 
listed for the Title IX Coordinator, and stating that such a report may 
be made at any time (including during non-business hours) by using the 
telephone number or email address, or by mail to the office address, 
listed for the Title IX Coordinator. We have also revised the Sec.  
106.30 definition of ``actual knowledge'' to specify that ``notice'' 
conveying actual knowledge on the recipient includes reporting sexual 
harassment to the recipient's Title IX Coordinator as described in 
Sec.  106.8(a).
    Comments: Some commenters expressed confusion as to whether the 
``grievance procedures'' referenced in Sec.  106.8(c) would apply to 
sexual harassment, sex discrimination generally, or both. Some 
commenters criticized the Sec.  106.45 grievance process as ``extreme'' 
and argued that recipients should not have to use the same 
``weaponized'' process to address non-sexual harassment sex 
discrimination. Other commenters asserted that the proposed rules 
created a dual system of grievance procedures: ``prompt and equitable'' 
grievance procedures applicable to sex discrimination generally, and to 
``informal complaints'' of sexual harassment, and separate grievance 
procedures (described in Sec.  106.45) for formal complaints of sexual 
harassment. Some commenters asserted that the phrasing in proposed 
Sec.  106.8(c) was unnecessarily confusing because ``grievance 
procedures that provide for the prompt and equitable resolution of 
student and employee complaints . . . and of formal complaints'' 
suggests that two separate processes are required; commenters 
recommended removing the phrase ``student and employee complaints'' to 
affirm that ``prompt and equitable'' grievance procedures are used only 
in response to ``formal complaints.'' Some commenters wondered if a 
complaint about retaliation would be handled under the Sec.  106.45 
grievance process, or under the ``prompt and equitable'' grievance 
procedures referenced in Sec.  106.8(c).
    Some commenters argued that schools do not need more specific 
procedural rules than the directive in Sec.  106.8(c) that grievance 
procedures must be ``prompt and equitable'' and that the ``extreme'' 
procedures in Sec.  106.45 are not necessary. Other commenters argued 
that schools need more guidance as to how to handle non-sexual 
harassment sex discrimination complaints than the broad ``prompt and 
equitable'' requirement in Sec.  106.8(c). Some

[[Page 30472]]

commenters argued that while Sec.  106.8(c) ``claims'' that procedures 
resolving formal complaints of sexual harassment must be ``equitable,'' 
the provisions of Sec.  106.45 are inequitable.
    Some commenters asserted that recipients know they are supposed to 
``adopt and publish'' grievance procedures yet, commenters claimed, 
most recipients still do not adopt and publish their grievance 
procedures or designate a Title IX Coordinator. Some commenters 
asserted that Sec.  106.8(c) should only require recipients to ``adopt 
and publish'' grievance procedures that align with the recipient's 
State laws regarding imposition of discipline in response to sexual 
harassment or sex discrimination. At least one commenter argued that 
Sec.  106.8(c) should expressly require that recipients must ``adopt 
and publish'' the recipient's entire grievance process ``soup-to-nuts'' 
so that parties to a sexual harassment complaint do not need to wait 
until the process has begun to be informed by the recipient of exactly 
what the grievance process entails; the commenter gave an example of 
the commenter's university's written grievance procedures that informed 
students in writing, on the university's website, of several steps in 
the grievance process and then stated that ``the remainder'' of the 
recipients' procedures would ``be explained to a respondent and 
complainant'' as needed, which the commenter asserted is unfair.
    One commenter urged the Department to modify Sec.  106.8(c) to 
specifically require elementary and secondary schools to provide copies 
of the school's complaint form, because the commenter asserted that 
many schools use their own customized form yet fail to make the form 
available, so students and employees do not know how to actually file a 
complaint.
    One commenter stated that because Title IX was written to prevent 
all discrimination, a recipient's policy should not distinguish among, 
and should address, all types of harassment with basic common sense 
rules such as: (1) Every educational institution should have a 
harassment policy written by a representative group of educators and 
students or their parents and approved by the parent's association or 
student council; (2) every student and/or parent should receive and 
sign an acknowledgement of that policy; (3) every educational 
institution should be responsible for inappropriate behavior on any of 
its educational and recreational areas; (4) complaints may be filed by 
an alleged victim or their representative who can be a parent, 
educational, medical or law enforcement professional; (5) complaints 
must be acknowledged within a week and addressed by an independent 
board of individuals which should include parents, educational, medical 
or law enforcement professionals, and peers at the postsecondary level; 
(6) complaints should be forwarded to law enforcement when appropriate; 
(7) opportunity for redress should be allowed by a second independent 
board if the first verdict is unacceptable; and (8) a no bullying/no 
harassment curriculum should be mandatory for all students and all 
teaching professionals, and coaches should be required to attend 
training on this subject.
    One commenter recommended that students and employees should be 
notified promptly when a policy or procedure is changed in order for 
the community to be made aware of any alterations to the policies and 
procedures to which they are held accountable and by which they are 
protected.
    Discussion: In response to commenters' concerns that the wording in 
Sec.  106.8(c) did not clearly convey that under the final regulations 
a recipient must adopt a grievance process that complies with Sec.  
106.45 for handling formal complaints of sexual harassment, the final 
regulations revise Sec.  106.8(c) to specify that a recipient must not 
only adopt and publish grievance procedures ``for the prompt and 
equitable resolution of student and employee complaints alleging any 
action that would be prohibited by this part'' but also a ``grievance 
process that complies with Sec.  106.45 for formal complaints as 
defined in Sec.  106.30.'' While a recipient is free to apply the Sec.  
106.45 grievance process to resolve complaints of non-sexual harassment 
sex discrimination, the final regulations only require a recipient to 
use the Sec.  106.45 grievance process with respect to formal 
complaints of sexual harassment.\1714\ These final regulations do not 
recognize a response specifically for an ``informal complaint'' of 
sexual harassment. These final regulations require a recipient to 
investigate and adjudicate using a grievance process that complies with 
Sec.  106.45 in response to any formal complaint of sexual 
harassment,\1715\ and preclude a recipient from imposing disciplinary 
sanctions on a respondent without first following a grievance process 
that complies with Sec.  106.45.\1716\ Thus, if a recipient has actual 
knowledge of sexual harassment allegations (whether via a verbal or 
written report or other means of conveying notice to a Title IX 
Coordinator, official with authority to institute corrective measures, 
or any elementary or secondary school employee), but neither the 
complainant (i.e., the person alleged to be the victim) nor the Title 
IX Coordinator decides to file a formal complaint, the recipient must 
respond promptly in a non-deliberately indifferent manner, including by 
offering supportive measures to the complainant, but cannot impose 
disciplinary sanctions without following the Sec.  106.45 grievance 
process. We have also clarified, in Sec.  106.71(a), that complaints of 
retaliation for exercise of rights under Title IX must be handled by 
the recipient under the ``prompt and equitable'' grievance procedures 
referenced in Sec.  106.8(c) for handling of complaints of non-sexual 
harassment sex discrimination.
---------------------------------------------------------------------------

    \1714\ As discussed throughout this preamble, including in the 
``Role of Due Process in the Grievance Process'' section of this 
preamble, the Department has selected the specific procedures 
prescribed in the Sec.  106.45 grievance process for the purpose of 
addressing the unique challenges presented by sexual harassment 
allegations, and such challenges may or may not be present with 
respect to other forms of sex discrimination, many of which result 
from official school policy rather than from the independent choices 
of individual students, employees, or third parties.
    \1715\ Section 106.44(b)(1).
    \1716\ Section 106.44(a).
---------------------------------------------------------------------------

    We have also revised Sec.  106.8(c) to expand the group of persons 
to whom notice of the ``prompt and equitable grievance procedures'' and 
``grievance process that complies with Sec.  106.45'' must be provided: 
Rather than sending such notice only to students and employees, 
recipients now also must send that notice to ``persons entitled to a 
notification under paragraph (a) of this section'' (i.e., Sec.  
106.8(a)), which, as discussed above, includes students, employees, 
applicants for admission and employment, parents or legal guardians of 
elementary and secondary school students, and unions and similar 
professional organizations). Moreover, this provision is revised to 
clarify that the notice about the grievance procedures (which apply to 
sex discrimination) and grievance process (which applies specifically 
to sexual harassment) must include ``how to report or file a complaint 
of sex discrimination, how to report or file a formal complaint of 
sexual harassment, and how the recipient will respond.'' These changes 
to Sec.  106.8(c) thus ensure that more people affected by a 
recipient's grievance procedures (for sex discrimination, and per Sec.  
106.71(a) of the final regulations, complaints of retaliation under 
Title IX) and grievance processes for Title IX sexual

[[Page 30473]]

harassment, receive notice of those grievance procedures and grievance 
processes, including how to initiate those procedures and processes.
    These revisions to Sec.  106.8(c) emphasize that a result of the 
final regulations is creation of a prescribed grievance process for 
Title IX sexual harassment (which is triggered when a complainant 
files, or a Title IX Coordinator signs, a formal complaint), while the 
handling of non-sexual harassment sex discrimination complaints brought 
by students and employees (for instance, complaints of sex-based 
different treatment in athletics, or with respect to enrollment in an 
academic course) remains the same as under current regulations (i.e., 
recipients must have in place grievance procedures providing for prompt 
and equitable resolution of such complaints). Thus, Sec.  106.8(c) 
better ensures that students, employees, parents of elementary and 
secondary school students, applicants for admission and employment, and 
unions, all are aware of a recipient's procedures and processes for 
intaking reports and complaints of all forms of sex discrimination 
including the particular reporting system, grievance process, and 
recipient responses required under these final regulations regarding 
sexual harassment. For reasons discussed throughout this preamble, 
including in the ``General Support and Opposition for the Grievance 
Process in Sec.  106.45'' section of this preamble, the Department 
believes that the prescribed procedures that recipients must use in a 
Title IX sexual harassment grievance process are necessary to achieve 
the purposes of increasing the legitimacy and reliability of recipient 
determinations regarding responsibility for sexual harassment while 
decreasing the likelihood of sex-based bias influencing such 
determinations, and we clarify in revised Sec.  106.8(c) that the Sec.  
106.45 grievance process is different from the directive that 
recipients' handling of complaints of other types of sex discrimination 
must be ``prompt and equitable.'' We therefore decline to authorize 
recipients to substitute a State law grievance procedure for the Sec.  
106.45 grievance process. Because recipients must ``adopt and publish'' 
(and send notice to the group of people identified in Sec.  106.8(a) 
of) a grievance process that complies with Sec.  106.45, the Department 
believes that each recipient's educational community will be aware of 
the procedures involved in a recipient's grievance process without the 
unfairness of waiting until a person becomes a party to discover what 
the recipient's grievance process looks like. Non-sexual harassment sex 
discrimination often presents situations that differ from sexual 
harassment (for example, a complaint that school policy treats female 
applicants differently from male applicants, or that school practice is 
to devote more resources to male sports teams than to female sports 
teams), and the Department does not, in these final regulations, alter 
recipients' obligation to handle complaints of non-sexual harassment 
sex discrimination by applying grievance procedures that provide for 
the ``prompt and equitable resolution'' of such complaints.
    The Department understands that despite 34 CFR 106.9 having 
required, for decades, recipients to adopt and publish prompt and 
equitable grievance procedures (and designate an employee to coordinate 
the recipient's efforts to comply with Title IX), some recipients have 
not ``adopted and published'' grievance procedures for handling sex 
discrimination complaints, and have not designated a Title IX 
Coordinator. The Department intends to enforce these final regulations 
vigorously for the benefit of all students and employees in recipients' 
education programs or activities, and any person may file a complaint 
with the Department alleging that a recipient is non-compliant with 
these final regulations. We have revised Sec.  106.8(c) to more clearly 
require recipients to give notice to its educational community of how 
to report sex discrimination or sexual harassment, how to file a 
complaint of sex discrimination or a ``formal complaint of sexual 
harassment,'' and ``how the recipient will respond.''
    We appreciate a commenter's concern that some recipients use a 
specific form for students and employees when filing a sex 
discrimination complaint. Under these final regulations at Sec.  
106.30, a ``formal complaint'' of sexual harassment is defined as a 
``document signed by a complainant'' and a formal complaint may be 
filed by a complainant in person or by mail to the office address, or 
by email, using the listed contact information for the Title IX 
Coordinator, or by any other method designated by the recipient. Thus, 
even if a recipient desires for complainants to only use a specific 
form for filing formal complaints, these final regulations permit a 
complainant to file a formal complaint by either using the recipient-
provided form (or electronic submission system such as through an 
online portal provided for that purpose by the recipient), or by 
physically or digitally signing a document and filing it as authorized 
(i.e., in person, by mail, or by email) under these final regulations.
    These final regulations do not preclude a recipient from following 
the steps suggested by a commenter with respect to involving parent and 
student groups in the development of a recipient's anti-harassment 
policy, so long as the recipient adopts and publishes a grievance 
process for formal complaints of sexual harassment that complies with 
Sec.  106.45, and so long as the recipient's reporting system for 
responding to sexual harassment complies with Sec.  106.8, Sec.  
106.30, and Sec.  106.44 in these final regulations.
    Because recipients must ``adopt and publish'' the recipient's 
grievance procedures (for sex discrimination) and grievance process 
(for formal complaints of sexual harassment), the recipient's 
obligation is to ``publish'' (and send notice, as appropriate) when the 
recipient no longer uses one grievance procedure or grievance process 
and instead uses a different procedure or process.
    Changes: The final regulations revise Sec.  106.8(c) by 
distinguishing between the ``grievance procedures'' for ``prompt and 
equitable resolution'' of complaints of non-sexual harassment sex 
discrimination, and the ``grievance process that complies with Sec.  
106.45 for formal complaints'' of sexual harassment; expands the list 
of people whom the recipient must notify of the foregoing procedures 
and processes (by referencing the revised list in Sec.  106.8(a)); and 
adds clarifying language that the information provided must include how 
to report or file a complaint of sex discrimination, how to report or 
file a formal complaint of sexual harassment, and how the recipient 
will respond.

Section 106.8(d) Application Outside the United States

    Comments: One commenter expressed general support for Sec.  
106.8(d). Some commenters argued that Sec.  106.8(d) is inconsistent 
with the spirit of Title IX and the Clery Act. Commenters contended 
that, under the NPRM, no misconduct outside the United States would be 
covered, which frustrates the basic goal of Title IX to protect 
students when participating in educational programs or activities 
receiving Federal funds. Commenters also asserted that Sec.  106.8(d) 
is inconsistent with the Clery Act because the Clery Act addresses 
conduct committed abroad on campuses of institutions of higher 
education. Commenters asserted that this inconsistency would impede the 
Title IX Coordinator's ability to implement consistent responses to 
sexual

[[Page 30474]]

misconduct and identify patterns that could threaten individuals and 
communities. Commenters argued that this conflict also creates the need 
for separate processes to address the same misconduct, which undermines 
the Department's stated goal of streamlining processes to create more 
efficient systems.
    Discussion: The Department appreciates the general support for this 
provision and appreciates commenters' concerns. Section 106.8(d) of the 
final regulations clarifies that the recipient's non-discrimination 
policy, grievance procedures that apply to sex discrimination, and 
grievance process that applies to sexual harassment, do not apply to 
persons outside the United States. Contrary to the claims made by some 
commenters that this provision conflicts with the spirit of Title IX, 
the Department believes that by its plain text the Title IX statute 
does not have extraterritorial application. Indeed, 20 U.S.C. 1681 
indicates that ``No person in the United States shall, on the basis of 
sex be excluded from participation in, be denied the benefits of, or be 
subjected to discrimination under any education program or activity 
receiving Federal financial assistance'' (emphasis added). We believe a 
plain language interpretation of a statute is most consistent with 
fundamental rule of law principles, ensures predictability, and gives 
effect to the intent of Congress. Courts have recognized a canon of 
statutory construction that ``Congress ordinarily intends its statutes 
to have domestic, not extraterritorial, application.'' \1717\ This 
canon rests on presumptions that Congress is mainly concerned with 
domestic conditions and seeks to avoid unintended conflicts between our 
laws and the laws of other nations.\1718\ If Congress intended Title IX 
to have extraterritorial application, then it could have made that 
intention explicit in the text when it was passed in 1972. The Supreme 
Court most recently acknowledged the presumption against 
extraterritoriality in Morrison v. National Australian Bank,\1719\ and 
Kiobel v. Royal Dutch Petroleum.\1720\ In Morrison, the Court 
reiterated the ``longstanding principle of American law that 
legislation of Congress, unless a contrary intent appears, is meant to 
apply only within the territorial jurisdiction of the United States.'' 
\1721\ The Court concluded that ``[w]hen a statute gives no clear 
indication of extraterritorial application, it has none.'' \1722\ As 
discussed in the ``Section 106.44(a) `against a person in the U.S''' 
subsection of the ``Section 106.44 Recipient's Response to Sexual 
Harassment, Generally'' section of this preamble, the Department 
believes that restricting Title IX coverage to persons in the United 
States applies the statute as passed by Congress. However, in response 
to commenters' assertions that Sec.  106.8(d) was not faithful to the 
wording of the Title IX statute, the final regulations revise this 
provision's header to read ``Application outside the United States'' 
and simplify the provision's wording to more clearly accomplish the 
provision's goal by stating: ``The requirements of paragraph (c) of 
this section apply only to sex discrimination occurring against a 
person in the United States.''
---------------------------------------------------------------------------

    \1717\ Small v. United States, 544 U.S. 385 (2005).
    \1718\ See Smith v. United States, 507 U.S. 197, 204 (1993).
    \1719\ 561 U.S. 247 (2010).
    \1720\ 569 U.S. 108 (2013).
    \1721\ Morrison v. Nat'l Australian Bank, 561 U.S. 247, 255 
(2010).
    \1722\ Id.; Kiobel v. Royal Dutch Petroleum, 569 U.S. 108, 115 
(2013) (citing Morrison, 561 U.S. at 255).
---------------------------------------------------------------------------

    With respect to the concerns raised by commenters that Sec.  
106.8(d) would conflict with the Clery Act, the Department acknowledges 
certain misconduct committed overseas is reportable under the Clery Act 
where, for example, the misconduct occurs in a foreign location that a 
U.S.-based institution owns and controls. However, the Clery Act and 
Title IX do not have precisely the same scope or purpose, and the text 
of the Title IX statute and controlling case law on the topic of 
extraterritoriality support the conclusion that Title IX does not apply 
to sex discrimination that occurs outside the United States. The 
Department does not believe the interpretation of Title IX as embodied 
in these final regulations prevents or complicates a postsecondary 
institution's compliance with reporting obligations under the Clery 
Act.\1723\
---------------------------------------------------------------------------

    \1723\ For further discussion on the intersection between these 
final regulations and the Clery Act, see the ``Clery Act'' 
subsection of the ``Miscellaneous'' section of this preamble.
---------------------------------------------------------------------------

    Changes: The final regulations revise Sec.  106.8(d) so that its 
header reads ``Application outside the United States'' and simplify the 
wording to more clearly accomplish the provision's goal by stating that 
the requirements of paragraph (c) of this section apply only to sex 
discrimination occurring against a person in the United States.
    Comments: A number of commenters raised the issue that Sec.  
106.8(d) may endanger students and faculty abroad. Commenters argued 
that sexual misconduct abroad, whether perpetrated by other students, 
faculty, graduate advisors, or other recipient employees, may 
significantly impact survivors' academic and career trajectories.\1724\ 
Commenters argued that the effect of Sec.  106.8(d) would be to force 
victims to drop out of their schools to avoid hostile environments 
created by misconduct committed abroad. Some commenters asserted that 
the U.S. generally has more robust disciplinary systems for addressing 
sexual misconduct than other countries. Commenters contended that for 
the Department to deny Title IX protections outside the United States 
would mean unfairly punishing students who simply were in the wrong 
place when they were assaulted. One commenter asserted that Sec.  
106.8(d) will also endanger recipient faculty and staff who are 
sexually assaulted while participating in conferences and other 
activities abroad. This commenter argued that Title IX should apply 
where both parties are affiliated with the recipient. A few commenters 
contended that the Department is ignoring the reality that study abroad 
programs and foreign educational activities are increasingly common. 
These commenters asserted that, beyond formal study abroad programs, 
many other undergraduate and graduate students are engaged in research, 
fieldwork, and data collection abroad, across a wide range of fields, 
and argued that the NPRM does not just impact study abroad programs, 
but also students temporarily visiting other countries for educational 
purposes.
---------------------------------------------------------------------------

    \1724\ Commenters cited: Robin G. Nelson et al., Signaling 
Safety: Characterizing Fieldwork Experiences and Their Implications 
for Career Trajectories, 119 Am. Anthropologist 4 (2017).
---------------------------------------------------------------------------

    Discussion: For the same reasons discussed under the ``Section 
106.44(a) `against a person in the U.S' '' subsection of the ``Section 
106.44 Recipient's Response to Sexual Harassment, Generally'' section 
of this preamble, the Department believes that restricting Title IX to 
persons in the United States applies the statute as passed by Congress, 
and notes that Congress remains free to modify Title IX to overcome the 
judicial presumption against extraterritorial application of Title IX. 
Under these final regulations recipients remain free to adopt robust 
anti-harassment and assault policies that apply to the recipient's 
programs or activities located abroad, to use recipients' disciplinary 
systems to address sexual misconduct committed outside the United 
States, and to protect their students from such harm by offering 
supportive measures to students impacted by misconduct committed 
abroad.

[[Page 30475]]

    Changes: None.

Section 106.12 Educational Institutions Controlled by a Religious 
Organization

    Comments: Some commenters expressed support for the changes to 
Sec.  106.12(b), on the basis that the changes offered additional 
flexibility to religious educational institutions, and religious 
freedom is a vital constitutional guarantee. Commenters also elaborated 
on the benefits of religious freedom, suggesting that religion helps 
preserve civic virtues, and instills positive moral values for both 
individuals and communities. Some commenters noted that freedom of 
religion is specifically contemplated by the U.S. Constitution, in the 
First Amendment's Free Exercise Clause. Drawing on this fact, 
commenters noted that the freedom of religion has been a touchstone of 
American government since the country was founded. Other commenters 
stated that proposed Sec.  106.12(b) is consistent with the Religious 
Freedom Restoration Act, since it avoids placing an unnecessary burden 
on religious institutions. Some commenters noted that proposed Sec.  
106.12(b) has the ancillary benefit of avoiding confusion for schools, 
since many institutions may not obtain a religious exemption before 
having a complaint against them filed, but now they will know that 
there is no such duty. The corollary to this point, asserted 
commenters, is that opponents of a school's religious exemption may not 
incorrectly argue that a school has ``waived'' a right to invoke a 
religious exemption.
    Discussion: The Department appreciates and agrees with the comments 
in support of Sec.  106.12(b), which align with the Title IX statute, 
the First Amendment, and the Religious Freedom Restoration Act, 42 
U.S.C. 2000bb-1. The final regulations bring Sec.  106.12(b) further in 
line with the relevant statutory framework in this context, which 
states that Title IX ``shall not apply to an educational institution 
which is controlled by a religious organization if the application of 
this subsection would not be consistent with the religious tenets of 
such organization,'' 20 U.S.C. 1681(a)(3), and that the term ``program 
or activity,'' as defined in 20 U.S.C. 1687, ``does not include any 
operation of an entity which is controlled by a religious organization 
if the application of section 1681 of this title to such operation 
would not be consistent with the religious tenets of such 
organization.''
    No part of the statute requires that recipients receive an 
assurance letter from OCR, and no part of the statute suggests that a 
recipient must be publicly on the record as a religious institution 
claiming a religious exemption before it may invoke a religious 
exemption in the context of Title IX. Nevertheless, the current 
regulations are not clear on whether recipients may claim the exemption 
under Sec.  106.12(a) only by affirmatively submitting a letter to the 
Assistant Secretary for Civil Rights.
    However, longstanding OCR practice aligns with the statute, and the 
final regulations codify OCR's practice. To the extent that a recipient 
would like to request an assurance letter from OCR, the agency will 
continue to respond to such requests, as an option for recipients that 
are educational institutions controlled by a religious organization.
    Changes: None.
    Comments: Commenters noted that religious educational institutions 
themselves are vital for American society, noting that schools, among 
other religious institutions, have contributed to the alleviation of 
social ills through philanthropic and humanitarian projects. Religious 
educational institutions, suggested commenters, are necessary for 
religious freedom, and the proposed rules are consistent with the 
robust views of religious freedom that have been expressed by the U.S. 
Constitution, the U.S. Supreme Court, and Congress itself when it 
enacted Title IX. To that end, commenters noted that the Federal 
government ought to be making it easier for religious institutions to 
operate and thrive, not harder. Commenters noted that it would be a 
waste of a school's resources to apply for a religious exemption 
assurance letter, when no letter is in fact needed to invoke a 
religious exemption to Title IX. At least under the proposed rule, 
asserted the commenters, the Department's entanglement with a religious 
institution's tenets might be limited to those cases where a complaint 
is filed, or where the school affirmatively requests an exemption 
assurance letter.
    Discussion: The Department appreciates the positive feedback on the 
proposed revisions in Sec.  106.12(b) and believes that the 
Department's prior practice and the revisions to Sec.  106.12(b) in 
these final regulations have the effect of promoting religious freedom. 
The final regulations codify longstanding OCR practices, and are 
consistent with the Title IX statute.
    Changes: None.
    Comments: Some commenters discussed current Sec.  106.12, as well 
as the practice of OCR. Commenters stated that the status quo requires 
a religious institution to affirmatively request an exemption, and that 
imposing such a duty inappropriately places the burden on religious 
educational institutions. Instead, the commenters suggested, the burden 
would more appropriately be placed on the government, by having to 
disprove the application of a religious exemption. Indeed, commenters 
suggested that the status quo could occasionally be turned against 
religious educational institutions, by denying religious exemptions or 
forcing schools to wait an excessively long period of time before 
obtaining a letter of assurance from OCR.
    Discussion: Contrary to commenters who suggested that the status 
quo requires schools to affirmatively request an assurance letter from 
OCR, OCR has previously interpreted the current regulation to mean that 
a school can invoke a religious exemption even after OCR has received a 
complaint regarding the educational institution. Additionally, the 
Department views both the status quo and the final regulations to 
require a recipient to invoke and establish its eligibility for an 
exemption, and does not view the final regulations as placing the 
burden on the Federal government to disprove any claim for religious 
exemption. However, it may be correct that many schools and 
individuals--such as these commenters themselves--have incorrectly read 
current Sec.  106.12 to mean that a recipient must always seek or 
receive an assurance letter from OCR to assert the religious exemption 
before any complaint is filed against the school, if a religious 
exemption is to be invoked. These final regulations clarify that this 
is not the case.
    Changes: None.
    Comments: In the same vein, many commenters supported Sec.  
106.12(b) because the provision alleviated the need for schools to 
request an assurance letter in order to invoke a religious exemption. 
That purported need, the commenters asserted, was inconsistent with the 
authority granted by Congress to the Department of Education in Title 
IX itself. It was better, the commenters argued, to simply allow 
schools the option to obtain the assurance ahead of time, but not 
require it. Commenters suggested that forcing religious institutions to 
jump through hoops in order to invoke a religious exemption imperils 
schools' deeply held religious beliefs. At least one commenter stated 
that religious educational institutions have a natural tendency to 
reduce their interactions with government, and thus allowing schools to 
maintain a religious

[[Page 30476]]

exemption to Title IX even absent an assurance letter was appropriate.
    Discussion: The proposed revisions to Sec.  106.12(b) codifies 
OCR's practice of permitting recipients to invoke a Title IX religious 
exemption without having obtained an assurance letter. However, the 
Department agrees with the concern that the current regulation is not 
as clear as it could be on this point, and that appears to have 
resulted in some confusion among recipients who were unaware of OCR's 
existing practice.
    Changes: None.
    Comments: Some commenters noted that Sec.  106.12(b) will aid 
religious educational institutions, and assist with their legal 
compliance regimes under Title IX. For instance, one commenter asserted 
that a religious educational institution that had single-sex classes 
would understand that they do not have to comply with the single-sex 
provisions of the current Title IX regulations and instead would simply 
be able to maintain a religious exemption generally, if the classes 
were based on religious tenets or practices. In other cases, commenters 
stated, schools would be able to maintain more flexibility in their 
school policies, such as whether to allow students who were assigned 
one sex at birth to use the intimate facilities assigned to another 
sex; whether to offer birth control as part of their health services; 
and how to structure dormitory and other housing policies.
    Discussion: The Department appreciates the positive feedback on 
Sec.  106.12(b) and agrees with commenters that stated that the final 
regulations will assist recipients with complying with Title IX. The 
final regulations codify longstanding OCR practices, and are consistent 
with the Title IX statute.
    Changes: None.
    Comments: Many commenters suggested that the proposed change in 
Sec.  106.12(b) is a good way to prevent future administrations from 
maintaining a hostile posture toward religious educational 
institutions. These commenters suggested that the process of compelling 
a school to write a request letter to the Assistant Secretary for Civil 
Rights, and then waiting for OCR to respond, may raise fears that the 
Federal government is passing judgment on religious institutions, or 
that hostility toward certain categories of exemptions could trigger 
additional delays, or perhaps unduly close scrutiny of whether a 
religious educational institution really is eligible for such an 
exemption. Commenters also suggested that close scrutiny of religious 
exemption requests excessively entangles OCR with religious educational 
institutions.
    Discussion: The Department is mindful of the concerns that 
educational institutions controlled by a religious organization 
sometimes express that OCR ``entangles'' itself with a recipient's 
religious practices by scrutinizing them too closely, or by delaying 
the issuance of an assurance letter (even when such delay is due to 
administrative backlogs and is not an intentional delay). The 
Department appreciates the positive feedback on Sec.  106.12(b) and 
believes that the final regulations will help the Department and its 
OCR administer these final regulations consistent with the U.S. 
Constitution by minimizing entanglement issues. The final regulations 
codify longstanding OCR practices, and are consistent with the Title IX 
statute.
    Changes: None.
    Comments: Some commenters sought to address concerns about 
religious exemptions generally, suggesting that religious institutions 
need to rely on Title IX less than other schools, since some acts--like 
sexual harassment or sexual assault--are generally considered abhorrent 
sins under most religious persuasions. Some comments mentioned 
Christianity, in particularly, as a religion that is committed to 
promoting the safest environment for students, free from discrimination 
and harassment. In that vein, commenters stated that Christian 
principles have caused Christian colleges to be exceptionally diligent 
in protecting students and employees from sexual harassment and sexual 
assault. Some commenters stated that it is inappropriate for a school 
to invoke a religious exemption in order to escape Title IX liability, 
since religious values disfavor discrimination, and discrimination is 
generally against a religious moral code. Commenters also stated that 
religious exemptions are contrary to the Bible, in that the Bible 
condemns sexual harassment and assault, and religious institutions 
should be leading the charge against such misconduct. One commenter 
stated that God made beings different from each other, and 
discrimination against students is contrary to God's creation.
    Discussion: The Department appreciates the commenter's concerns and 
perspectives. The Department notes that the religious exemption applies 
only to the extent application of this part would not be consistent 
with the religious tenets of such organization. Through 20 U.S.C. 1682, 
Congress authorized the Department to effectuate the provisions of 
Title IX, which includes a religious exemption. The Department does not 
take a position on whether it is appropriate for a school to invoke 
such an exemption and is effectuating the provisions of Title IX, 
including the religious exemption that Congress provided in 20 U.S.C. 
1681(a)(3) through these final regulations, which are consistent with 
the First Amendment and the Religious Freedom Restoration Act.
    Changes: None.
    Comments: Several commenters noted that they supported Sec.  
106.12(b) because of its breadth, reading the provision to mean that 
any school, even with a minor religious affiliation, would be eligible 
for a religious exemption. The commenters asserted that this was the 
correct approach, and that the Department was wise to embrace such a 
broad religious exemption.
    Discussion: Title IX and current Sec.  106.12 provide that they do 
not apply to an ``educational institution which is controlled by a 
religious organization to the extent application of this part would not 
be consistent with the religious tenets of such organization.'' The 
Department does not consider the final regulations to be broader than 
the scope of the current regulations or the statute.
    Changes: None.
    Comments: One commenter argued that there is a potential internal 
contradiction between Sec.  106.8 and proposed Sec.  106.12. While a 
recipient may have a duty to issue a general notice of non-
discrimination, the commenter argued that they might--at the same 
time--maintain a religious exemption that permitted such 
discrimination. The commenter argued that this would allow schools to 
mislead students by sending out a misleading non-discrimination notice. 
The commenter contended that this ``bait and switch'' would undermine 
OCR's credibility, and would mean that students at religious 
institutions will be deterred from filing complaints. To solve this 
problem, the commenter suggested schools claiming a religious exemption 
should have to include such a statement in the non-discrimination 
notice mandated by Sec.  106.8.
    Discussion: Recipients are permitted to distribute publications 
under Sec.  106.8(b)(2)(ii) that clarify that the recipient may treat 
applicants, students, or employees differently on the basis of sex to 
the extent ``such treatment is permitted by Title IX or this part.'' 
Nothing in the final regulations mandates that recipients deceive 
applicants, students, or employees regarding their non-discrimination 
practices, and recipients that assert a

[[Page 30477]]

religious exemption are not required to misstate their actual policies 
when disseminating their Title IX policy under Sec.  106.8. Indeed, if 
a recipient provided inaccurate or false information in any 
notification required under Sec.  106.8, then the recipient would not 
be in compliance with Sec.  106.8. We note that nothing in the final 
regulations supersedes any other contractual or other remedy that an 
applicant, student, or employee may have against a recipient based on 
an alleged misstatement or false statement. Students at schools that 
assert a religious exemption also may always file a complaint with OCR.
    Changes: None.
    Comments: Numerous commenters expressed opposition to religious 
exemptions as a general matter, suggesting that such exemptions are 
commonly used to discriminate against students or employees, cause harm 
to students and employees, and often are not adequately disclosed in a 
public and transparent way so as to give students and employees 
appropriate notice that they would not be protected by Title IX. These 
commenters argued that the interests underlying the protection of civil 
rights outweigh the need to protect a religious institution's 
discomfort regarding student behavior. Students at religious 
institutions, including LGBTQ students, asserted the commenters, 
deserve protection just as much as all other students. Commenters 
asserted that the Department owes a duty to students to protect their 
civil rights and argued that the proposed rules run contrary to that 
duty.
    In the same vein regarding transparency, some commenters argued 
that permitting recipients to invoke religious exemptions without 
having to make a public statement will pit students against their own 
schools. The commenters say that since a school is designed to 
cultivate critical thinkers, depriving students of transparency runs 
counter to this interest. Additionally, commenters stated that students 
who seek abortions, hormone therapy, or access to intimate facilities 
that are sex-segregated, may feel like their own school does not 
protect them, and may feel betrayed by their own institution, leading 
to an environment of distrust on campus. Worse, the commenters say, 
some students could feel bullied, threatened, or harassed once students 
see that the school itself is openly discriminating against its 
students. Commenters noted that the same could be true for employees, 
and not just students.
    Commenters argued that even if a school is entitled to assert a 
religious exemption, proposed Sec.  106.12(b) goes too far because it 
seems to encourage schools to lie in wait before formally invoking the 
religious exemption. Commenters stated that religious educational 
institutions should have a legal obligation to give students notice 
prior to enrolling or working at a school maintaining a religious 
exemption. For that reason, commenters stated, Sec.  106.12(b) is in 
tension with the OCR's usual assurance process for all recipients of 
Federal education funds, which requires a school to assure the 
Department that it will comply with non-discrimination laws as a 
condition of receiving Federal education dollars. Another commenter 
argued that for private religious elementary and secondary schools that 
educate students as part of their Free and Appropriate Public 
Education, it is highly troubling for parents not to know about Title 
IX exemptions prior to enrollment. One commenter alleged that allowing 
a recipient to invoke a religious exemption after a complaint has been 
filed with OCR is contrary to the due process principles that these 
final regulations are attempting to preserve and protect.
    Discussion: In response to the comments about the propriety of 
having any religious exemption or the need to protect civil rights over 
religious freedom, the Department notes that Title IX itself guarantees 
the religious exemption and these final regulations do not change our 
long-standing practice of honoring and applying the religious exemption 
in the appropriate circumstances. As some commenters in support of 
Sec.  106.12(b) noted, the proposed regulations do not prevent OCR from 
investigating a complaint simply because the complaint involves an 
educational institution controlled by a religious organization. The 
recipient must additionally invoke a religious exemption based on 
religious tenets. Moreover, this does not prevent OCR from 
investigating or making a finding against a recipient if its religious 
tenets do not address the conduct at issue. In those cases, OCR will 
proceed to investigate, and if necessary, make a finding on the merits.
    The Department also appreciates the feedback on the potential 
policy implications of the proposed rule; however, the Department is 
limited by the Title IX statute,\1725\ and cannot make changes to the 
final regulations that are inconsistent with the statute, regardless of 
the policy implications addressed by commenters. As mentioned, the 
final regulations codify longstanding OCR practices, and are consistent 
with the Title IX statute. The Department does not believe that its 
current practice or the final regulations violate the U.S. 
Constitution. The Department further asserts that Sec.  106.12(b) in 
these final regulations is consistent with the First Amendment, 
including the Free Exercise Clause as well as the Establishment Clause, 
because the Department is not establishing a religion and is instead 
respecting a recipient's right to freely exercise its religion. 
Additionally, Sec.  106.12(b) in these final regulations is consistent 
with the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq., 
which applies to the Department, and requires the Department not to 
substantially burden a person's exercise of religion unless certain 
conditions are satisfied.\1726\ As the Title IX statute does not 
require a recipient to request and receive permission from the 
Assistant Secretary to invoke the religious exemption, requiring a 
recipient to do so may constitute a substantial burden that is not in 
furtherance of a compelling government interest or the least 
restrictive means of furthering that compelling government interest 
under the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1. Such a 
requirement also is unnecessary in light of the other requirements in 
these final regulations that a recipient notify students, prospective 
students, and others about the recipient's non-discrimination statement 
as well as its grievance procedures and grievance process to address 
sex discrimination, including sexual harassment.
---------------------------------------------------------------------------

    \1725\ 20 U.S.C. 1681(a)(3) (``[T]his section shall not apply to 
an educational institution which is controlled by a religious 
organization if the application of this subsection would not be 
consistent with the religious tenets of such organization'').
    \1726\ Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014) 
(holding ``person'' within meaning of the Religious Freedom 
Restoration Act's protection of a person's exercise of religion 
includes for-profit corporations).
---------------------------------------------------------------------------

    Section 106.8 requires all recipients to notify applicants for 
admission and employment, students, parents or legal guardians of 
elementary and secondary school students, employees, and all unions or 
professional organizations holding collective bargaining or 
professional agreements with the recipient of its non-discrimination on 
the basis of sex as well as its grievance procedures and grievance 
process, including how to report or file a complaint of sex 
discrimination, how to report or file a formal complaint of sexual 
harassment, and how the recipient will respond. Additionally, Sec.  
106.8(b)(2)(ii) provides that a recipient

[[Page 30478]]

must not use or distribute a publication stating that the recipient 
treats applicants, students, or employees differently on the basis of 
sex except as such treatment is permitted by Title IX or these final 
regulations. Accordingly, students and prospective students should 
receive adequate notice of the recipient's non-discrimination statement 
as well as its grievance procedures and grievance process regarding sex 
discrimination, including sexual harassment, and such notice is 
consistent with due process principles. Such transparency helps guard 
against any misunderstandings, irrespective of whether a school asserts 
a religious exemption.
    The religious exemption in Title IX, 20 U.S.C. 1681(a)(3), applies 
to an educational institution which is controlled by a religious 
organization, and students and prospective students likely will know 
whether an educational institution is controlled by a religious 
organization so as not to be surprised by a recipient's assertion of 
such a religious exemption. Additionally, the Department also notes 
that under Sec.  106.8(b)(1) any person can inquire about the 
application of Title IX to a particular recipient by inquiring with the 
recipient's Title IX Coordinator, the Assistant Secretary, or both.
    OCR is unaware of a religious school claiming an exemption from 
Title IX's obligations to respond to sexual harassment on the basis 
that such a response conflicts with the religious tenets of an 
organization controlling the religious school. As the Department 
explains more thoroughly in the ``Gender-based harassment'' subsection 
of the ``Sexual Harassment'' subsection of the ``Section 106.30 
Definitions'' section, these final regulations focus on prohibited 
conduct. The Department believes any person may experience sex 
discrimination, irrespective of the identity of the complainant or 
respondent.
    Nothing in the final regulations mandates that recipients deceive 
applicants, students, or employees regarding their non-discrimination 
practices, a recipient remains free to describe its religious exemption 
on its website, and nothing in the final regulations supersedes any 
other contractual or other remedy that an applicant, student, or 
employee may have against a recipient based an alleged misstatement or 
false statement.
    Changes: None.
    Comments: Some commenters ascribed particularly nefarious motives 
to recipients, arguing that schools often intentionally deceive 
applicants to the school in order to obtain application fees or tuition 
revenues. These commenters alleged that religious educational 
institutions deliberately hid their purported exemptions from Title IX 
and would then blindside students once they were already enrolled in 
school. One commenter suggested bigoted university officials would use 
religious exemptions as a fig leaf to impose personal beliefs, such as 
denying transgender students medical coverage for hormone therapy.
    Discussion: Nothing in these final regulations mandates that 
recipients deceive applicants, students, or employees regarding their 
non-discrimination practices, and nothing in the final regulations 
supersedes any other contractual or other remedy that an applicant, 
student, or employee may have against a recipient based an alleged 
misstatement or false statement. On the contrary, as explained above, 
these final regulations including Sec.  106.8, promote transparency by 
requiring a recipient to provide notice of its non-discrimination 
statement as well as its grievance procedures and grievance process to 
address sex discrimination, including sexual harassment. Additionally, 
Sec.  106.8(b)(1) allows inquiries about the application of Title IX 
and this part to a recipient to be referred to the recipient's Title IX 
Coordinator, to the Assistant Secretary, or both.
    The Department disagrees with the suggestion that religious 
exemptions are tools for bigotry or should not be provided due to such 
characterizations. The First Amendment to the Constitution protects 
religious exercise, and Congress placed a religious exemption in Title 
IX and numerous other statutes. The Department's experience is that 
exemptions for religious liberty overwhelmingly serve to advance 
freedom and diversity in education, not bigotry. To the extent that an 
official of a recipient invokes a religious exemption ``as a fig leaf'' 
in order to impose only personal beliefs, that recipient would not 
qualify for a religious exemption because the religious exemption 
requires the application of Title IX and its regulations to be 
inconsistent with the religious tenets of a religious organization and 
not just inconsistent with personal beliefs.
    Changes: None.
    Comments: Some commenters ascribed nefarious motives to the 
Department. Commenters asserted that the people drafting the proposed 
rules would not be in favor of religious exemptions if their wives, 
mothers, or daughters were the victims of sexual assault. One stated 
that honoring women and girls' rights is what Jesus calls for and 
implied that the proposed regulations go against this principle. Some 
commenters objected that the inclusion of religious exemptions is 
clearly a political decision made by politicians in this administration 
who seek to avoid accountability for their own sexual misconduct. Other 
commenters stated that the drafters of the proposed rules do not have 
the interests of students at heart, and that the proposed rules are 
intentionally designed to institutionalize patriarchy and homophobia. 
Other commenters stated that the inclusion of the religious exemption 
provision was a political decision to curry favor with religious 
institutions and warned the Department not to divide people. Another 
commenter suggested that the provision was an effort by Secretary Betsy 
DeVos to establish a Christian fascist nation that favors a 
fundamentalist strain of Christianity.
    Discussion: Although the Department appreciates the feedback on the 
proposed rule, it rejects the assumptions of these commenters. As 
stated above, the Department's goals for these final regulations are to 
establish a grievance process that is rooted in due process principles 
of notice and opportunity to be heard and that ensures impartiality 
before unbiased officials. Specifically, these goals are to (i) improve 
perceptions that Title IX sexual harassment allegations are resolved 
fairly and reliably, (ii) avoid intentional or unintentional injection 
of sex-based biases and stereotypes into Title IX proceedings, and 
(iii) promote accurate, reliable outcomes, all of which effectuate the 
purpose of Title IX to provide individuals with effective protection 
from discriminatory practices, including remedies for sexual harassment 
victims. As stated above, Sec.  106.12 reflects the statutory exemption 
for religious educational institutions granted by Congress, and the 
religious exemption applies only to the extent that the tenets of a 
religious organization controlling a religious educational institution 
conflict with the application of Title IX.
    These final regulations apply to prohibit certain conduct and apply 
to anyone who has experienced such conduct, irrespective of a person's 
sexual identity or orientation. The Department believes that these 
final regulations provide the best protections for all persons, 
including women and people who identify as LGBTQ, in an education 
program or activity of a recipient of Federal financial assistance who 
experience sex discrimination, including sexual harassment.

[[Page 30479]]

    Contrary to commenters' assertions, these final regulations do not 
establish a religion, and Sec.  106.12(b) applies to all religions and 
not just Christianity.
    The Department disagrees that these final regulations are 
patriarchal. These final regulations empower complainants with a choice 
to consider and accept supportive measures that a recipient must offer 
under Sec.  106.44(a) and/or to file a formal complaint to initiate a 
grievance process under Sec.  106.45.
    The Department does not seek to curry favor with a particular 
population of recipients or individuals. The Department seeks to 
effectuate Title IX's non-discrimination mandate consistent with the 
U.S. Constitution, including the First Amendment, as well as other 
Federal laws such as the Religious Freedom Restoration Act.
    Changes: None.
    Comments: Some commenters suggested that religious educational 
institutions could manipulate the revisions to Sec.  106.12(b) to their 
benefit. For instance, one commenter asserted that a school might wait 
to see how a Title IX investigation by OCR is going, and then if OCR is 
on the verge of issuing a finding in the case, the school might invoke 
a religious exemption at the last minute. Other commenters stated that 
a school might invoke a religious exemption as a way to retaliate 
against students, or would abuse the ability to invoke a religious 
exemption even when the school's tenets do not strictly contradict 
Title IX. One commenter asserted that recipients of all religious 
persuasions will suffer, when the public assumes that all religious 
schools discriminate against students.
    Another commenter suggested that OCR ought to closely scrutinize 
claims of religious exemptions, and that schools should not receive any 
deference when invoking a religious exemption or arguing that their 
tenets conflict with Title IX. The commenter argued that this would be 
like letting a corporation verify or change its own tax status while 
being investigated by the Internal Revenue Service, e.g., moving to 
non-profit status in the middle of a tax fraud investigation.
    Discussion: The Department appreciates the feedback on the 
potential policy implications of the proposed rules and believes that 
some of the commenters misunderstand Sec.  106.12(b). Section 106.12(b) 
states: ``In the event the Department notifies an institution that it 
is under investigation for noncompliance with this part and the 
institution wishes to assert an exemption set forth in paragraph (a) of 
this section, the institution may at that time raise its exemption by 
submitting in writing to the Assistant Secretary a statement by the 
highest ranking official of the institution, identifying the provisions 
of this part which conflict with a specific tenet of the religious 
organization, whether or not the institution had previously sought 
assurance of an exemption from the Assistant Secretary.'' When the 
Department notifies a recipient that it is under investigation for 
noncompliance with this part or a particular section of this part, the 
recipient identifies the provisions of this part which conflict with a 
specific tent of the religious organization. Of course, a recipient 
must know what it is under investigation for, in order to assert an 
applicable exemption such as a religious exemption. Nonetheless, a 
recipient cannot invoke a religious exemption ``at the last minute'' 
because the recipient must be an educational institution which is 
controlled by a religious organization, and such control by a religious 
organization is not something that occurs ``at the last minute.'' The 
educational institution must have been controlled by a religious 
organization when the alleged noncompliance occurred, and the 
educational institution is only exempt from Title IX and these final 
regulations to the extent that Title IX or these final regulations are 
not consistent with the religious tenets of such organization.
    Additionally, retaliation is strictly prohibited under Sec.  
106.71, and a recipient cannot invoke a religious exemption to 
retaliate against a person. Similarly, a recipient may only assert an 
exemption to the extent that Title IX or these regulations are not 
consistent with the religious tenets of the religious organization that 
controls an educational institution.
    The Department is not aware of any assumption that all educational 
institutions which are controlled by a religious organization engage in 
discriminatory practices, and the Department's experience has not been 
that all educational institutions which are controlled by a religious 
organization engage in discriminatory practices.
    Under long-standing OCR policy, OCR's practice is generally to 
avoid questioning the tenet that an educational institution controlled 
by a religious organization has invoked to cover the conduct at issue. 
OCR does not believe it is in a position, generally, to scrutinize or 
question a recipient's sincerely held religious beliefs, and the First 
Amendment likely prohibits questioning the reasonableness of a 
recipient's sincerely held religious beliefs. However, recipients are 
not entitled to any type of formal deference when invoking eligibility 
for a religious exemption, and recipients have the duty to establish 
their eligibility for an exemption, as well as the scope of any 
exemption. These final regulations, including Sec.  106.12(b), make no 
changes to the conditions that must apply in order for a religious 
educational institution to qualify for the religious exemption.
    Changes: None.
    Comments: Some commenters stated that the Department failed to 
adequately provide a rationale for changing current 34 CFR 106.12(b) in 
the manner proposed in Sec.  106.12(b), and argued that the Department 
failed to disclose the potential negative impacts of this change. The 
commenters suggested that the proposed rules ought to more carefully 
explain how compliance with Title IX is burdensome for religious 
institutions, given that the current procedures, according to 
commenters, are exceptionally generous to religious institutions. 
Additionally, these commenters stated that the Department should 
reassess the religious exemption to weigh more heavily a school's 
potential to be dishonest and to discriminate.
    Commenters stated that they favored what they considered to be 
current OCR practice, under which, commenters asserted, most requests 
for exemptions came by letter before a complaint was opened, and under 
which OCR posts a publicly-available list of all schools that had 
invoked an exemption. Commenters contended that the Obama-era approach 
was popular among students and faculty, and was fair to all parties. 
Commenters also suggested that a requirement to force religious 
institutions to submit assurance requests ahead of time saves agency 
resources for OCR, so the preamble's assertion that the prior practice 
is confusing and burdensome is an absurd thing to say. Commenters 
argued that proceeding with this rationale will mean violating the 
Administrative Procedure Act, because the current procedures are not 
confusing or burdensome, as set forth clearly in the current 
regulation. Commenters argued that the current procedures require 
religious institutions to establish which tenets of their religion are 
in conflict with Title IX, whereas the proposed regulations would not 
require schools to fully elaborate which of their tenets are 
contradicted by Title IX.
    Discussion: The Department appreciates the feedback on the 
potential policy implications of the proposed rule. The Department 
acknowledges that its practices in the

[[Page 30480]]

recent past regarding assertion of a religious exemption, including 
delays in responding to inquiries about the religious exemption and 
publicizing some requests for a religious exemption, may have caused 
educational institutions to become reluctant to exercise their rights 
under the Free Exercise Clause of the First Amendment, and the 
Department would like educational institutions to fully and freely 
enjoy rights guaranteed under the Free Exercise Clause of the U.S. 
Constitution without shame or ridicule. The Department may be liable 
for chilling a recipient's First Amendment rights and also is subject 
to the Religious Freedom Restoration Act. The Department properly 
engaged in this notice-and-comment rulemaking to clarify that the 
Department, consistent with 20 U.S.C. 1681, will not place any 
substantial burden on a recipient that wishes to assert the religious 
exemption under Title IX.
    The Department is giving due weight to Congress' express religious 
exemption for recipients in Title IX, and Congress did not require a 
recipient to first seek assurance of such a religious exemption from 
the Department. The First Amendment and the Religious Freedom 
Restoration Act, which apply to the Department as a Federal agency, 
cause the Department to err on the side of caution in not hindering a 
recipient's ability to exercise its constitutional rights.
    Based on at least some commenters asserting that recipients needed 
more clarity on the current regulations, the Department respectfully 
disagrees with commenters arguing that confusion and burdens have not 
resulted from the text of the current regulations. In any event, the 
final regulations codify longstanding OCR practices, and are consistent 
with the Title IX statute.
    With respect to publishing a list of all recipients who have 
received assurances from OCR, OCR declines to set forth any formal 
policy in the final regulations. Such lists are necessarily incomplete, 
since they do not adequately describe the scope of every exemption, and 
because many recipients that are eligible for religious exemptions may 
nevertheless not seek assurance letters from OCR. However, nothing in 
the final regulations addresses publishing such a list, one way or 
another. In any event, correspondence between OCR and recipient 
institutions, including correspondence addressing religious exemptions, 
is subject to Freedom of Information Act requirements.
    Changes: None.
    Comments: Commenters argued that OCR's practice regarding religious 
exemptions has worked since 1975, and that the time period between 1975 
and the present day spans numerous presidencies across both Democrat 
and Republican administrations. One commenter stated that no religious 
exemption request has ever been denied, so addressing this topic in 
formal rulemaking is unnecessary.
    Commenters contended that the change to the text of the religious 
exemption regulation is not responsive to any specific issue or wrong, 
and that the current regulation appropriately burdens the institution, 
as opposed to students.
    Commenters also stated that the revisions to Sec.  106.12(b) would 
largely remove the Department and OCR out of the religious exemption 
process, since students may not challenge a school's assertion of a 
religious exemption during the school's handling of a complaint. That 
would be problematic, asserted commenters, because students would be 
blindsided by assertions of exemptions that have not yet been evaluated 
or ruled on by the Department and OCR, so a student challenging an 
exemption, asserted commenters, would have their complaint ignored or 
stayed while they waited for OCR to rule on the validity of the 
exemption assertion.
    Commenters suggested that placing the burden on a party not 
invoking the exemption is discordant with other areas of law, such as 
many States' requirement that parents submit a religious objection to 
immunizations in writing, or that an entity bear the burden of 
establishing its entitlement to tax-exempt status. Indeed, say the 
commenters, the Department administers the Clery Act, which is another 
statute that burdens schools by requiring them to collect and report 
information.
    Discussion: The Department disagrees with commenters that assert 
Sec.  106.12(b) should not be part of this notice-and-comment 
rulemaking. Some commenters have asserted that the current Sec.  
106.12(b) has caused confusion, and the Department wishes to clarify 
that neither Title IX nor these final regulations require a recipient 
to request an assurance of a religious exemption under 20 U.S.C. 
1681(a)(3). Additionally, the Department wishes to avoid liability 
under the First Amendment and the Religious Freedom Restoration Act, 
and to the extent that Sec.  106.12(b) may be ambiguous or vague, the 
Department would like to take this opportunity to revise Sec.  
106.12(b) to be even more consistent with Title IX, the First 
Amendment, and the Religious Freedom Restoration Act.
    Section 106.12(b) as proposed and as included in these final 
regulations does not burden students as the recipient must still invoke 
the exemption. Indeed, a recipient must still demonstrate that it is an 
educational institution which is controlled by a religious organization 
and that the application of Title IX or its implementing regulations 
would not be consistent with the religious tenets of such organization. 
The student does not bear the burden with respect to the religious 
exemption.
    The Department also disagrees that a complaint is placed on hold 
while the Department considers a recipient's religious exemption. The 
Department processes complaints in the normal course of business and 
will consider any religious exemption in the normal course of an 
investigation just as it considers other exemptions under Title IX 
during an investigation. Accordingly, a student will not suffer from 
any delays in the Department's processing of a complaint as a result of 
the revisions to Sec.  106.12(b).
    There also should not be any delays with respect to the recipient's 
processing of a student's complaint such as a formal complaint under 
Sec. Sec.  106.44 and 106.45. Section 106.44(a) requires a recipient 
with actual knowledge of sexual harassment in an education program or 
activity of the recipient against a person in the United States to 
respond promptly in a manner that is not deliberately indifferent. 
Section 106.12(b) clarifies that a recipient does not need to submit a 
statement in writing to the Assistant Secretary to assert a religious 
exemption before asserting an exemption and, thus, there is no need for 
the Department to intervene or delay any complaint of sex 
discrimination, including a formal complaint of sexual harassment, that 
the recipient is processing to determine whether the recipient 
qualifies for a religious exemption.
    Students should not be blindsided and may always inquire about the 
application of Title IX and its implementing regulations to the 
recipient's Title IX Coordinator, to the Assistant Secretary, or both. 
Additionally, a recipient that is an educational institution must be 
controlled by a religious organization in order to assert an exemption 
under Title IX, 20 U.S.C. 1681(a)(3), and students likely will know 
whether the educational institution is controlled by a religious 
organization.
    The Department reiterates that the burden remains on the recipient 
to establish and assert a religious exemption to Title IX, 20 U.S.C. 
1681(a)(3). Congress expressly requires

[[Page 30481]]

postsecondary institutions that receive Federal student financial aid 
through the programs authorized by Title IV of the Higher Education Act 
of 1965, as amended, to make certain reports, including reports to the 
Department. The Department's regulations, implementing the Clery Act, 
address the reporting requirements that Congress enacted. Congress, 
however, did not require educational institutions to report a religious 
exemption to the public or to the Department under Title IX, and the 
Department declines to impose any burden on the constitutional rights 
of recipients of Federal financial assistance that Congress did not 
impose. Additionally, as previously explained, the First Amendment and 
the Religious Freedom Restoration Act may prohibit any such additional 
burdens.
    Changes: None.
    Comments: One commenter objected to any form of assurance letter 
being sent by OCR, on the basis that such a process caused an undue 
entanglement with religion. The commenter suggested that the statute 
simply apply on its own terms, without the need for OCR to closely 
scrutinize the tenets of a religious educational institution.
    Discussion: The Department appreciates feedback on the proposed 
rule. The process of applying to OCR for an assurance letter is 
entirely optional, and nothing in the final regulations requires a 
school to obtain an assurance letter prior to invoking a religious 
exemption. The Department therefore sees no entanglement problem in 
allowing recipients to request an assurance letter, and generally 
avoids scrutinizing or questioning the theological tenets or sincerely 
held religious beliefs of a recipient that invokes the religious 
exemption in Title IX.\1727\
---------------------------------------------------------------------------

    \1727\ 20 U.S.C. 1681(a)(3).
---------------------------------------------------------------------------

    Changes: None.
    Comments: Several commenters asserted that the final regulations 
ought to be changed such that recipients are not entitled to religious 
exemptions under Title IX. Some commenters stated that the topic of 
religious exemptions might not be a significant one, and that it was 
unclear how many recipients had truly avoided an investigation or 
finding under Title IX due to a religious exemption. The commenter 
suggested that instead of modifying the regulations, the better course 
would be to study the issue further and determine how many recipients 
had successfully invoked a religious exemption to avoid a Title IX 
compliance issue in the last three to five years.
    Discussion: The Department appreciates the feedback on Sec.  
106.12(b) but does not believe it is necessary to examine OCR records 
to report on how many recipients have successfully invoked a religious 
exemption under Title IX. This is because the Title IX statute provides 
a religious exemption for recipients, and the Department cannot 
eliminate the religious exemption in the Title IX statute through its 
regulations. In any event, the final regulations codify longstanding 
OCR practices, and both the final regulations and OCR practice are 
consistent with the Title IX statute.
    Changes: None.
    Comments: A commenter suggested that part of the process ought to 
be a publication of a book by OCR that contains the full list of 
recipients that have obtained an assurance letter. Some commenters 
suggested, apart from a book, that OCR ought to publish on its website 
a list of all recipients that have obtained a religious exemption 
assurance letter. Another commenter suggested that OCR at least require 
recipients to inform a student who has filed a complaint that the 
recipient has invoked a religious exemption, particularly if no 
assurance letter has been previously requested. These measures, 
asserted commenters, would increase transparency for students and 
employees who may attend or work for educational institutions that 
maintain exemptions from Title IX.
    Discussion: The Department appreciates the feedback on the proposed 
rule. When OCR receives a complaint involving a recipient that invokes 
a religious exemption, OCR will proceed in accordance with OCR's Case 
Processing Manual, including with respect to notifying a complainant 
that the recipient has invoked a religious exemption. OCR's current 
practice does not require OCR to keep a complainant apprised of 
developments in an ongoing investigation of a recipient, and the 
Department has not proposed any procedural changes to the manner in 
which it processes complaints in this notice-and-comment rulemaking so 
as to give the public notice to comment on such a proposal. A 
complainant currently receives the opportunity to appeal the 
Department's determination with respect to a complaint or the dismissal 
of a complaint and may raise any concerns about a recipient's religious 
exemption as well as other matters on appeal.\1728\ The Department does 
not wish to treat a religious exemption, which Title IX provides and 
which the Department is required to honor under Title IX and in abiding 
by the First Amendment and the Religious Freedom Restoration Act, 
differently than any other exemption from Title IX that a recipient may 
invoke. Title IX provides exemptions other than a religious exemption 
in 20 U.S.C. 1681(a) (e.g., exemptions for membership policies of 
social fraternities or sororities, father-son or mother-daughter 
activities, scholarship awards in ``beauty'' pageants). The Department 
does not notify a complainant of a recipient's invocation of other 
exemptions provided in Title IX when the Department is processing a 
complaint and declines to do so for a religious exemption. Nothing in 
the final regulations prevents a recipient from informing the 
complainant of its invocation of a religious exemption. The Department 
notes that any person may direct an inquiry about the application of 
Title IX to a particular recipient to the recipient's Title IX 
Coordinator, the Assistant Secretary, or both, pursuant to Sec.  
106.8(b)(1).
---------------------------------------------------------------------------

    \1728\ U.S. Dep't. of Education, Office for Civil Rights, Case 
Processing Manual Sec.  307 Appeals, https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf.
---------------------------------------------------------------------------

    On the subject of OCR publishing a book, list of names, or copies 
of the assurance letters that have been provided to recipients that 
address a recipient's eligibility for a religious exemption, the 
Department often posts such correspondence on the OCR website. 
Additionally, such documents are subject to Freedom of Information Act 
requests, and attendant rules regarding public disclosure of commonly-
requested documents. The Department does not believe that publishing a 
book or a list of names of recipients that have asserted eligibility 
for a religious exemption is necessary, and the final regulations do 
not address that issue, one way or another.
    Changes: None.
    Comments: Some commenters stated that they would prefer the 
Department to at least encourage recipients to post information about 
Title IX religious exemptions on the recipient's website, so that 
people who are actively looking for that information can find it 
easily. Other commenters suggested that a recipient maintaining a 
religious exemption ought to be compelled to publish such information 
in their materials and policies, i.e., a student handbook, or a 
website.
    Discussion: The Department generally does not include in its 
regulations specific types of advice or encouragement for recipients 
and believes that the Title IX statute and Sec.  106.12 appropriately 
guide recipients

[[Page 30482]]

as to the scope and application of the religious exemption under Title 
IX.
    The Department does not require recipients to publish any 
exemptions from Title IX under 20 U.S.C. 1681(a)(3) that may apply to 
the recipient and does not wish to single out the religious exemption 
for special or different treatment. The Department believes that the 
requirements in these final regulations provide sufficient 
transparency. As previously stated, Sec.  106.8 requires all recipients 
to notify applicants for admission and employment, students, parents or 
legal guardians of elementary and secondary school students, employees, 
and all unions or professional organizations holding collective 
bargaining or professional agreements with the recipient of its notice 
of non-discrimination on the basis of sex as well as its grievance 
procedures and grievance process, including how to report or file a 
complaint of sex discrimination, how to report or file a formal 
complaint of sexual harassment, and how the recipient will respond. 
Additionally, Sec.  106.8(b)(2)(ii) provides that a recipient must not 
use or distribute a publication stating that the recipient treats 
applicants, students, or employees differently on the basis of sex 
except as such treatment is permitted by Title IX or these final 
regulations. Accordingly, students and prospective students should 
receive adequate notice of the recipient's non-discrimination statement 
as well as its grievance procedures and grievance process regarding sex 
discrimination, including sexual harassment, and such notice is 
consistent with due process principles. Such transparency helps guard 
against any misunderstandings, irrespective of whether a school asserts 
a religious exemption.
    The religious exemption in Title IX, 20 U.S.C. 1681(a)(3), applies 
to an educational institution which is controlled by a religious 
organization, and students and prospective students likely will know 
whether an educational institution is controlled by a religious 
organization so as not to be surprised by a recipient's assertion of 
such a religious exemption. Additionally, the Department also notes 
that under Sec.  106.8(b)(1) any person can inquire about the 
application of Title IX to a particular recipient by inquiring with the 
recipient's Title IX Coordinator, the Assistant Secretary, or both.
    Changes: None.
    Comments: Some commenters suggested that the religious exemptions 
language be altered, to carve out conduct that would be considered a 
crime. Other commenters suggested that the Department should clarify 
how a school that maintains a religious exemption ought to interact 
with a school that does not maintain a religious exemption, if an 
incident involves two students, one from each type of school. 
Specifically, a commenter asked whether a school with a religious 
exemption has a duty to cooperate with another school that was 
investigating a Title IX incident involving one of its students. 
Another commenter asked the Department to clarify whether a recipient 
that invoked a religious exemption still had the duty to provide the 
full extent of the grievance procedures in Sec.  106.45.
    Discussion: The Department appreciates these nuanced questions 
about how recipients can comply with the final regulations under 
specific fact patterns. Generally, religious exemptions cannot be 
invoked to avoid punishment for criminal activity, and absent a 
specific example, the Department believes asserting a religious 
exemption to avoid punishment for a crime is unrealistic under Title 
IX. In any event, the Department does not punish recipients for 
criminal activity. The Department enforces the non-discrimination 
mandate in Title IX, which prohibits discrimination on the basis of 
sex.
    With respect to the other factual scenarios that commenters 
present, the Department and OCR are willing to provide technical 
assistance to recipients who seek answers to individual factual 
circumstances, or to stakeholders who may file complaints against 
recipients eligible for religious exemptions, but we do not believe it 
is appropriate to attempt to answer these questions at this stage and 
without the benefit of a complete set of facts.
    As with any regulation under Title IX, including Sec.  106.45, an 
educational institution that is controlled by a religious institution 
is exempt from Title IX or its implementing regulations only to the 
extent that Title IX or one of its implementing regulations would not 
be consistent with the religious tenets of such organization.
    Changes: None.
    Comments: One commenter suggested a minor revision to Sec.  
106.12(b) to make clear that any future claims of institutional 
religious exemption under the proposed regulations are not 
predetermined by the scope or nature of any prior claims submitted in 
writing to the Assistant Secretary: ``. . . whether or not the 
institution had previously sought assurance of the an exemption from 
the Assistant Secretary as to that provision or any other provision of 
this part.''
    Discussion: The Department agrees with the reasoning behind this 
change and changes ``the'' to ``an'' as the commenter suggested. The 
Department does not believe the commenter's other suggested phrase, 
``as to that provision or any other provision of this part'' is 
necessary to adequately explain the scope and application of this 
provision.
    Changes: The word ``the'' has been changed to ``an'' in the final 
sentence of Sec.  106.12(b) of the final regulations.
    Comments: One commenter suggested that the Department ought to go 
beyond the proposed rule, and promulgate a definition for what it means 
to be ``controlled by a religious organization,'' so that recipients 
and the public would know which institutions are in fact eligible for 
religious exemptions, since there has been confusion previously. 
Additionally, the commenter asked that the definition take account of 
and be consistent with Supreme Court case law interpreting the 
Establishment Clause of the First Amendment.
    Discussion: Although the Department appreciates this feedback, it 
declines to make any changes to these final regulations because the 
scope of proposed changes to Sec.  106.12 was limited by the 
Department's proposal to change Sec.  106.12(b) but not subsection (a). 
The Department decided to address what it means to be controlled by a 
religious organization for purposes of the religious exemption in Title 
IX through a subsequent notice of proposed rulemaking.\1729\ The 
Department will continue to offer technical assistance regarding 
compliance with these final regulations.
---------------------------------------------------------------------------

    \1729\ 85 FR 3190.
---------------------------------------------------------------------------

    Changes: None.

Directed Questions \1730\
---------------------------------------------------------------------------

    \1730\ The Department addresses comments submitted in response 
to the NPRM's Directed Questions 3-4, and 6-9, throughout sections 
of this preamble to which such directed questions pertain. For 
example, Directed Question 3 inquired about applicability to the 
proposed rules to employees, and comments responsive to that 
directed question are addressed in the ``Section 106.6(f) Title VII 
and Directed Question 3 (Application to Employees)'' subsection of 
the ``Clarifying Amendments to Existing Regulations'' section of 
this preamble.
---------------------------------------------------------------------------

Directed Question 1: Application to Elementary and Secondary Schools

    Comments: Some commenters commended the proposed rules for 
including elementary and secondary schools, suggesting that their 
inclusion would have a positive impact on these schools for Title IX 
purposes. Another commenter asserted that elementary and secondary 
schools, too, have sexual harassment issues that they must confront; it 
is not only a problem in

[[Page 30483]]

postsecondary institutions. One commenter asserted that it was good to 
have different Title IX approaches for elementary and secondary schools 
as opposed to postsecondary institutions, since some procedures are 
appropriate for postsecondary institutions, but may not work for 
elementary and secondary schools; the commenter pointed to live 
hearings for postsecondary institutions but no hearing requirement for 
elementary and secondary schools as a good example of recognizing the 
differences between elementary and secondary education (ESE) and 
postsecondary education (PSE) contexts. Another commenter argued that 
elementary and secondary schools need flexibility to address sexual 
harassment issues that arise involving younger students.
    Discussion: The Department appreciates this feedback on the 
proposed rules. The Department agrees with commenters that some 
procedures are more appropriate for postsecondary institutions but not 
for other recipients, including elementary and secondary schools, and 
the final regulations reflect such differences. For example, Sec.  
106.30 defines ``actual knowledge'' more broadly in elementary and 
secondary schools and Sec.  106.45(b)(6)(ii) does not require live 
hearings or cross-examination procedures for recipients who are not 
postsecondary institutions.
    Changes: We have revised Sec.  106.30 defining ``actual 
knowledge,'' to include notice to any elementary and secondary school 
employee; and we have clarified the language in Sec.  106.45(b)(6)(ii) 
to more expressly state that unlike postsecondary institutions, 
elementary and secondary schools are not required to hold hearings as 
part of the grievance process.
    Comments: Some commenters argued that the proposed rules ought to 
make additional distinctions between ESE students and PSE students. 
These distinctions, commenters asserted, should include removing the 
presumption of non-responsibility for students accused of sexual 
harassment in ESE contexts. Commenters argued that schools at the ESE 
level ought to be able to presume, in some cases, that a student is 
responsible for sexual harassment, or at least that no presumption 
ought to exist in any direction. Commenters argued that this was 
necessary because schools need to react to time-sensitive situations 
and exclude accused students or employees from the school atmosphere 
without having to go through the extensive grievance procedures 
contemplated by the proposed rule. Commenters also suggested that 
offering supportive measures was often time-sensitive, such that a full 
grievance process is not appropriate. Other commenters supported 
significantly abbreviating the grievance procedures, on the basis that 
a full process was unworkable at the ESE level. Some commenters 
expressed concern that younger students would be put at a higher risk 
for sexual violence, because they might not know the types of touching 
that are appropriate or inappropriate to come forward to the designated 
school employee on their own.
    Discussion: The Department appreciates this feedback. The 
Department agrees that schools must have effective tools for responding 
to allegations of sexual harassment, and the final regulations protect 
this interest. The final regulations are designed to promote 
predictability and a clear understanding of every recipient's legal 
obligations to respond to sexual harassment incidents, including 
promptly offering supportive measures to a complainant (i.e., a person 
alleged to be the victim of sexual harassment) whenever any ESE 
employee has notice of sexual harassment or allegations of sexual 
harassment. One of the ways in which these final regulations 
differentiate between ESE and PSE students is recognizing that ESE 
students cannot reasonably be expected to report sexual harassment only 
to certain school officials, or even teachers, and that ESE recipients 
and their employees stand in a special relationship regarding their 
students, captured by the legal doctrine that school districts act in 
loco parentis with respect to authority over, and responsibility for, 
their students. Thus, the final regulations (at Sec.  106.30 defining 
``actual knowledge'') trigger an ESE recipient's response obligations 
any time an ESE employee has notice of sexual harassment. These final 
regulations obligate all recipients to promptly reach out to each 
complainant (i.e., a person alleged to be the victim of conduct that 
could constitute sexual harassment, regardless of who actually 
witnessed or reported the sexual harassment) and offer supportive 
measures, under Sec.  106.44(a). These final regulations (at Sec.  
106.6(g)) also expressly acknowledge the importance of respecting the 
legal rights of parents or guardians to act on behalf of students in a 
Title IX matter, including but not limited to the choice to file a 
formal complaint asking the school to investigate sexual harassment 
allegations. These final regulations define ``supportive measures'' in 
Sec.  106.30 in a manner that gives ESE recipients wide discretion to 
quickly, effectively take steps to protect student safety, deter sexual 
harassment, and preserve a complainant's equal educational access. As 
discussed in the ``Supportive Measures'' subsection of the ``Section 
106.30 Definitions'' section of this preamble, supportive measures 
cannot ``unreasonably burden'' the respondent but this does not mean 
that supportive measures cannot place any burden on a respondent, so 
actions such as changing a respondent's class or activity schedule may 
fall under permissible supportive measures, and supportive measures 
must be offered without waiting to see if a grievance process is 
eventually initiated or not. Recipients also retain the authority to 
remove a respondent from education programs or activities on an 
emergency basis if the respondent presents an imminent threat to the 
physical health or safety of any individual, under Sec.  106.44(c). We 
also reiterate that many actions commonly taken in the ESE context are 
not restricted under these final regulations; while a recipient may not 
punish or discipline a respondent without complying with the Sec.  
106.45 grievance process, actions such as holding an educational 
conversation with a respondent, explaining to the respondent in detail 
the recipient's anti-sexual harassment policy and code of conduct 
expectations, and similar actions are not restricted unless paired with 
actions that are punitive, disciplinary, or unreasonably burdensome to 
the respondent.
    We disagree that a presumption of non-responsibility \1731\ is less 
important for respondents in the ESE context than in the PSE context, 
because the presumption serves to reinforce that a recipient must not 
treat a respondent as responsible for Title IX sexual harassment unless 
such allegations have been proved or otherwise resolved under a process 
that complies with Sec.  106.45, but as discussed above, this leaves 
wide flexibility for recipients to address the need for complainants' 
equal educational access, protect safety, and deter sexual harassment, 
while a grievance process is pending or without any grievance pending.
---------------------------------------------------------------------------

    \1731\ For further discussion see the ``Section 106.45(b)(1)(iv) 
Presumption of Non-Responsibility'' subsection of the ``General 
Requirements for Sec.  106.45 Grievance Process'' subsection of the 
``Section 106.45 Recipient's Response to Formal Complaints'' section 
of this preamble.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Many commenters argued that the grievance procedures in 
the NPRM generally do not work well for ESE recipients. Commenters 
argued that

[[Page 30484]]

schools need to take swift action in the ESE setting, since young 
children are at particular risk of further harm. Commenters also argued 
that live hearings with cross-examination should not occur where young 
children are involved. The prospect of an employee or the employee's 
advisor cross-examining a student in cases where a school opted to 
allow live hearings troubled some commenters. Some stated that prior 
written notice should not be required at the ESE level for every 
investigative interview. Commenters stated that these were flaws in the 
proposed rules that stemmed from the Department not adequately 
considering how differences in structure and populations affect Title 
IX enforcement, as between ESE and PSE contexts.
    Commenters contended that the extensive due process protections in 
the proposed rules would have the consequence of making school 
proceedings more intimidating for victims. They stated that setting up 
what amounts to an expressly adversarial process between students at 
ESEs is inappropriate. Some commenters argued that even referring to 
students as ``complainants'' and ``respondents'' had the unfortunate 
effect of creating litigation-like settings in ESE schools, and argued 
that the proposed rules would require significantly more process than 
what is required by the Supreme Court.\1732\ Commenters also stated 
that students themselves will be confused by the proposed rules, and 
many will need to hire legal counsel in order to fully understand their 
rights. Commenters argued that sexual harassment incidents 
disproportionately affect Black students and transgender students, so 
the proposed rules would hurt them especially.
---------------------------------------------------------------------------

    \1732\ Commenters cited: Goss v. Lopez, 419 U.S. 565 (1975).
---------------------------------------------------------------------------

    Some commenters argued that cases at the ESE level should never be 
subject to a clear and convincing evidence standard of evidence, yet 
the proposed rules would allow a recipient to choose that standard for 
resolving allegations of sexual harassment. Some stated that schools, 
especially underfunded schools, would not be able to afford many of the 
evidence-sharing provisions of the proposed rules, or the requirement 
that the investigator be a different person than the person who 
adjudicates a claim of sexual harassment. Commenters argued that many 
schools would be destroyed by having to comply with the proposed rules. 
Some commenters objected to the requirement that every determination 
regarding responsibility for sexual harassment needed to be accompanied 
by specific findings and a written report, arguing that such a burden 
was too onerous for ESE schools. Some contended that poorer schools 
needed to rely on the single investigator model--as opposed to separate 
individuals being the Title IX Coordinator, the investigator, and the 
decision-maker for discipline--and that the proposed rules are 
unworkable at the ESE level. Other commenters contended that having to 
explain why each question is or is not asked during a hearing, if it 
occurs, will be cumbersome and unnecessary.
    Aside from the issue of financial burden, some commenters argued 
that the proposed rules were likely to cause confusion for school 
personnel, many of whom are not lawyers and who are not trained to 
administer or prepare for adversarial proceedings. The commenters 
argued that school officials will often make mistakes, and that 
confidence in the system will deteriorate to the point that students 
will opt not to report instances of sexual harassment. Commenters 
argued that the proposed rules insufficiently consider that schools 
know best how to handle their own students, and that imposing these 
burdens is not necessary to resolve claims of sexual harassment.
    Some commenters argued that even if recipients were able to 
implement the new grievance procedures properly, there would still be 
negative consequences for students and schools. For instance, some 
commenters argued that the grievance procedures are subject to 
manipulation, especially when students with financial resources are 
able to take advantage of the procedures against other students who may 
lack similar resources. Other commenters suggested that frequent 
dissatisfaction with the processes or with outcomes would lead to 
litigation in court. These commenters also argued that full compliance 
with these final regulations at the ESE level will be expensive and 
would outweigh any savings.
    Other commenters took issue with the informal resolution provisions 
of the proposed rules, stating that mediation is never appropriate at 
the ESE level, particularly if there are few requirements surrounding 
the content of the mediation or if the underlying allegation involves 
sexual assault. Commenters stated that since the informal resolution 
process can end the investigation into allegations of sexual 
harassment, it is problematic to rely on a student's willingness to 
object to informal resolution--and to insist on the formal grievance 
procedures--to adequately cause the school to respond to sexual 
harassment. Other commenters stated that forms of informal resolution 
like mediation are inherently traumatic for victims of sexual 
harassment, and some argued that mediation generally utilizes ``rape 
myths'' and ``victim-blaming language'' that ought to be avoided.
    Many commenters wanted the Department to expand the scope of the 
individuals whose knowledge could give rise to a school's duty to 
respond to sexual harassment. Some commenters expressed concern that 
students do not know who might have authority to institute corrective 
measures and who does not, per the scope of the proposed rules. Some 
commenters suggested that at least mandatory reporters should be 
covered. Other commenters argued that regardless of who receives 
information about sexual harassment, the appropriate response is a 
``trauma-informed'' response, such that the person who alleges sexual 
harassment ought to be believed from the outset.
    The net of all of these issues, argued commenters, was that 
educational environments and learning would suffer. Schools would have 
difficulty effectively responding to sexual harassment, and preventing 
future incidents, asserted commenters. Commenters contended that the 
proposed rules would discourage young vulnerable students from 
reporting instances of sexual harassment, out of fear that they might 
have to endure lengthy and onerous procedures while trying to still 
maintain their academic progress.
    Discussion: The Department appreciates this feedback. The 
Department is promulgating consistent, predictable rules for recipients 
who must respond to allegations of sexual harassment, and has balanced 
the strong need to protect students from sexual harassment and the need 
to ensure that adequate processes are in place. The Department agrees 
with commenters who stated that the types of school personnel to whom 
notice should charge a recipient with ``actual knowledge'' in the ESE 
context should be expanded. As discussed in the ``Adoption and Adaption 
of the Supreme Court's Framework to Address Sexual Harassment'' section 
and the ``Actual Knowledge'' subsection of the ``Section 106.30 
Definitions'' section of this preamble, we have revised the final 
regulations to provide that notice to any elementary or secondary 
school employee triggers the ESE recipient's response obligations.
    Within the confines of these final regulations, recipients may 
adjust their

[[Page 30485]]

procedures to minimize the amount of resources that must be spent with 
respect to each allegation of sexual harassment. The final regulations 
allow recipients the discretion to facilitate an informal resolution 
process,\1733\ and permit each recipient to conduct the grievance 
process under time frames the recipient has designated as reasonable 
for an ESE environment.\1734\ For emergencies posing imminent risks to 
any individual's safety recipients may, consistent with the terms of 
the final regulations, invoke emergency removal procedures.\1735\
---------------------------------------------------------------------------

    \1733\ Section 106.45(b)(9) allows recipients to facilitate 
informal resolution of formal complaints, except as to allegations 
that an employee sexually harassed a student. We understand that 
some commenters, including some recipients, do not believe that 
informal resolution is appropriate at all in the ESE context, or is 
not appropriate for sexual assault allegations, and the final 
regulations allow each recipient to choose whether to offer any 
informal resolution processes at all.
    \1734\ Section 106.45(b)(1)(v).
    \1735\ Section 106.44(c).
---------------------------------------------------------------------------

    The Department disagrees that the final regulations are unworkable 
in the ESE environment, or that they will destroy recipients who must 
abide by them. Instead, the final regulations offer significant 
flexibility to recipients, while still maintaining the appropriate 
balance between a recipient's duty to respond to allegations of sexual 
harassment and its duty to ensure due process protections that benefit 
both complainants and respondents.\1736\ Additionally, the Department 
expects that significant efficiencies will result, and the cost to 
implement required procedures will be reduced, as students, employees, 
and school personnel interact with consistent and predictable rules. To 
the extent that a recipient needs the advice of legal counsel to 
understand its duties, it will be easier for counsel to advise them on 
the requirements of concrete rules published in regulations than on 
Department guidance that does not represent legally binding 
obligations. What may be a cumbersome new procedure at first may soon 
become routine, and reduce confusion, as a recipient responds to all of 
its Title IX formal complaints with specific procedures. At the same 
time, many recommendations and best practices found in Department 
guidance remain viable policies and procedures for recipients while 
also complying with these final regulations, so the Department 
anticipates that not all recipients will find the need to change their 
current Title IX policies and procedures wholesale. For further 
discussion of the similarities and differences among these final 
regulations and Department guidance documents, see the ``Adoption and 
Adaption of the Supreme Court's Framework to Address Sexual 
Harassment'' section and ``Role of Due Process in the Grievance 
Process'' section of this preamble.
---------------------------------------------------------------------------

    \1736\ For further discussion see the ``Adoption and Adaption of 
the Supreme Court's Framework to Address Sexual Harassment'' section 
and ``Role of Due Process in the Grievance Process'' section of this 
preamble.
---------------------------------------------------------------------------

    As to live hearings with cross-examination, we have clarified the 
language in the final regulations to emphasize that ESE recipients are 
not required to use a hearing model to adjudicate formal complaints of 
sexual harassment under these final regulations. Moreover, if an ESE 
recipient chooses to use a hearing model, that recipient does not then 
need to comply with the provisions in Sec.  106.45(b)(6)(i), which 
applies only to postsecondary institution recipients. For further 
discussion see the ``Section 106.45(b)(6)(ii) Elementary and Secondary 
School May Require Hearing and Must Have Opportunity to Submit Written 
Questions'' subsection of the ``Hearings'' subsection of the ``Section 
106.45 Recipient's Response to Formal Complaints'' section of this 
preamble. Nothing prevents schools from counseling students as to how 
the grievance procedures will work, or aiding and assisting the 
parties, on an equal basis, with additional supports as they go through 
the process. Additionally, many provisions of the final regulations 
require only that schools provide an equal opportunity to the parties, 
leave the recipient flexibility to the extent that a recipient would 
prefer to make the grievance process less formal or intimidating for 
students. We have also added Sec.  106.6(g) in the final regulations, 
acknowledging the legal rights of parents or guardians to act on behalf 
of complainants, respondents, or other individuals with respect to 
exercising rights under Title IX, including participation in a 
grievance process.
    The Department disagrees that the final regulations will deter 
reporting, since having consistent, predictable rules for Title IX 
proceedings will likely make them less intimidating for ESE students 
and their parents, and students or employees may gain confidence in a 
process that expressly allows the complainant to choose whether 
reporting leads only to supportive measures or also leads to a 
grievance process.\1737\ Indeed, the Department believes that having 
predictable rules will encourage reporting by students or their 
parents, and ensure that students and employees who allege sexual 
harassment will not have to wonder how they will be treated upon 
reporting. As described in the ``Deliberate Indifference'' subsection 
of the ``Adoption and Adaption of the Supreme Court's Framework to 
Address Sexual Harassment'' section of this preamble, we have 
significantly revised Sec.  106.8 and Sec.  106.44(a) to emphasize that 
reporting sexual harassment is the right of any complainant (or third 
party, including a complainant's parent) and recipients must offer 
supportive measures to every complainant (i.e., person alleged to be 
the victim of sexual harassment), regardless of whether a grievance 
process is also initiated against a respondent.
---------------------------------------------------------------------------

    \1737\ Section 106.44(a); Sec.  106.30 (defining ``formal 
complaint'').
---------------------------------------------------------------------------

    The Department also disagrees that parties with significant 
financial resources will be able to manipulate the grievance process in 
an unjust manner any more than any other Title IX grievance procedures 
established in response to Department guidance, since the final 
regulations provide for meaningful participation of both parties at 
every stage in a grievance process. The grievance process is designed 
for students (including, as legally applicable, parents acting on 
behalf of their children) \1738\ to navigate without legal 
representation, though every party has the right to an advisor of 
choice who may be, but need not be, an attorney.\1739\ The Department 
believes that one way to mitigate the possibility of a party unfairly 
using financial resources is to grant both complainants and respondents 
strong procedural rights (including the right to assistance and advice 
from an advisor of the party's choosing) as they engage in the process.
---------------------------------------------------------------------------

    \1738\ Section 106.6(g).
    \1739\ Section 106.45(b)(5)(iv).
---------------------------------------------------------------------------

    The Department agrees that schools themselves know best how to 
engage with their students, and recipients are encouraged to use their 
discretion and expertise within the confines of the final regulations. 
This includes what training to give to ESE employees regarding 
reporting sexual harassment to the Title IX Coordinator (knowing that 
notice to any ESE employee triggers the recipient's response 
obligations under these final regulations), what training to give the 
Title IX Coordinator with respect to circumstances that might justify 
the Title IX Coordinator deciding to sign a formal complaint in 
situations where the complainant (and complainant's parent, as 
applicable) does not want the recipient to investigate allegations, 
which

[[Page 30486]]

supportive measures may be appropriate in certain circumstances, what 
time frames to designate for completion of a grievance process, the use 
of age-appropriate explanatory language in the written notices that 
must be sent to parties under Sec.  106.45, what standard of evidence 
to apply to resolving formal complaints, whether to use the Title IX 
Coordinator as the investigator or separate those roles, whether to use 
informal resolution, whether to offer grounds for appeal in addition to 
those required under Sec.  106.45, the selection of remedies for a 
complainant where a respondent is found responsible for sexual 
harassment, and the choice of disciplinary sanctions against a 
respondent who is found responsible. The foregoing illustrations of 
discretion that ESE recipients possess is in addition to the ability of 
ESE recipients to address conduct that does not meet the definition of 
sexual harassment as defined in Sec.  106.30, as well as other types of 
student misconduct, outside the confines of these final regulations; 
these final regulations apply only when the conditions of Sec.  
106.44(a) are present (i.e., an ESE employee has notice of conduct that 
could constitute sexual harassment as defined in Sec.  106.30, that 
occurred in the recipient's education program or activity, against a 
person in the United States). The Sec.  106.45 grievance process is a 
required part of the recipient's response only when the recipient is in 
receipt of a formal complaint (as defined in Sec.  106.30), which must 
either be filed by a complainant (i.e., the person alleged to be the 
victim of sexual harassment, or a parent or guardian legally entitled 
to act on that person's behalf) or signed by the Title IX Coordinator. 
In the absence of a formal complaint, the recipient's response must 
consist of offering supportive measures designed to preserve the 
complainant's equal access to education, as well as to protect the 
safety of all parties or deter sexual harassment. The Department does 
not believe that the final regulations present unduly burdensome, much 
less insurmountable, obstacles for ESE recipients to fulfill every 
recipient's obligation to supportively and fairly address sexual 
harassment in a recipient's education programs or activities.
    The Department disagrees that informal resolution is never 
appropriate for ESE institutions, or that ESE recipients may never use 
it in the context of allegations of sexual assault. In these cases, the 
final regulations provide adequate limitations and protections for 
parties regarding the use of informal resolutions, and we reiterate 
that the final regulations do not mandate that any recipient offer or 
facilitate information resolution processes.\1740\
---------------------------------------------------------------------------

    \1740\ Section 106.45(b)(9).
---------------------------------------------------------------------------

    For the reasons explained in the ``Section 106.45(b)(7)(i) Standard 
of Evidence and Directed Question 6'' subsection of the 
``Determinations Regarding Responsibility'' subsection of the ``Section 
106.45 Recipient's Response to Formal Complaints'' section of this 
preamble, the Department disagrees that the clear and convincing 
evidence standard of evidence is never appropriate in the ESE setting, 
such that no ESE recipient should ever be able to adopt that standard 
to resolve formal complaints of sexual harassment.
    Changes: None.
    Comments: Commenters argued that students should not have to wait 
weeks, if not months, for adjudications of and responses to their 
allegations of sexual harassment. Lack of timely resolution would be 
made worse, some commenters argued, by the fact that the grievance 
process can be delayed for law enforcement investigations. Commenters 
argued that because nearly all sexual harassment allegations in the ESE 
context will require law enforcement intervention, the proposed rules 
would result in frequent, significantly delayed processes in the ESE 
context.
    Discussion: The Department appreciates this feedback and discusses 
these concerns in the ``Section 106.45(b)(1)(v) Reasonably Prompt Time 
Frames'' subsection of the ``General Requirements for Sec.  106.45 
Grievance Process'' subsection of the ``Section 106.45 Recipient's 
Response to Formal Complaints'' section of this preamble. We reiterate 
here that the final regulations do not require a recipient to delay a 
Title IX grievance process while a law enforcement investigation is 
pending; rather, Sec.  106.45(b)(1)(v), only permits a recipient to 
provide for short-term delays or extensions of the recipient's own 
designated, reasonably prompt time frame for conclusion of the 
grievance process, when such short-term delay or extension is based on 
``good cause,'' and that provision gives as an example of good cause, 
concurrent law enforcement activity. ``Good cause'' under these final 
regulations would not justify a long or indefinite delay or extension 
of time frames for concluding the Title IX grievance process, 
regardless of whether a law enforcement investigation is still pending.
    Additionally, we reiterate that under Sec.  106.44 a recipient's 
prompt response to every complainant (once a recipient is on notice 
that a complainant has been victimized by sexual harassment) is 
triggered with or without the filing of a formal complaint and without 
awaiting the conclusion of a grievance process if a formal complaint is 
filed. We therefore disagree that the Sec.  106.45 grievance process 
poses a risk of undue delay for any complainant in the ESE context to 
expect and receive a prompt, supportive response from the ESE recipient 
designed to restore or preserve the complainant's equal educational 
access.
    Changes: None.
    Comments: Commenters argued that the proposed rules' definition of 
``sexual harassment'' would be problematic for ESE populations. These 
commenters stated that young teens are particularly vulnerable to 
sexual harassment, but that the standard for determining whether a 
school has a duty to act--whether conduct was severe, pervasive, and 
objectively offensive--is too high a bar for ESE students. In this 
vein, commenters stated that ESE students will be traumatized from 
repeated incidents of sexual misconduct that do not rise to the level 
of the Sec.  106.30 definition of sexual harassment. Other commenters 
noted that because this definition mirrors the standard for private 
rights of action in civil suits, the proposed rules would have the 
consequence of leading more people to court. The commenters argued that 
if one of the goals of the proposed rules is to reduce the amount of 
litigation involving Title IX, they do the opposite.
    Discussion: The Department appreciates this feedback, but for the 
reasons explained in the ``Sexual Harassment'' subsection of the 
``Section 106.30 Definitions'' section of this preamble and in the 
``Definition of Sexual Harassment'' subsection of the ``Adoption and 
Adaption of the Supreme Court's Framework to Address Sexual 
Harassment'' section of this preamble, the Department believes that the 
Sec.  106.30 definition of sexual harassment is appropriate for 
application in elementary and secondary schools. We reiterate that 
under these final regulations, recipients remain free to address 
misconduct that does not meet that definition under State laws or a 
recipient's own code of conduct, and as to such misconduct these final 
regulations (including the general response obligations in Sec.  106.44 
and the grievance process in Sec.  106.45) do not apply. For reasons 
discussed throughout this preamble, including in the ``Litigation 
Risk'' subsection of the ``Miscellaneous'' section of this preamble, 
the Department believes that these final regulations may have the

[[Page 30487]]

benefit of reducing litigation, because these final regulations adopt 
the Supreme Court's Gebser/Davis framework for addressing sexual 
harassment, yet adapt that framework in a manner that places on 
recipients specific legal obligations to support complainants that are 
not required in private Title IX lawsuits, and do so in a manner that 
we believe also ensures that the recipient's response meets 
constitutional requirements of due process of law and respect for First 
Amendment rights (which public schools owe to students and employees) 
and concepts of fundamental fairness that private schools owe to 
students and employees. Thus, we believe that implementing these final 
regulations may have the ancillary benefit of reducing litigation 
arising from school responses to Title IX sexual harassment.
    Changes: None.
    Comments: Commenters argued that schools will be confused when 
trying to balance certain Federal rights with other ones, in cases 
where there is tension. Commenters argued that the proposed rules did 
not adequately discuss what should happen when one of the students 
involved in allegation of sexual harassment is a student with a 
disability and has rights under the IDEA or Section 504. One commenter 
stated that under the IDEA, school districts serve students from the 
age of three to the age of 21, so providing for one-size-fits-all 
policies, even just for students with a disability, might not be 
developmentally appropriate. Other commenters argued that the proposed 
rules may be in tension with rape shield laws, or that, at least, 
school personnel will have difficulty navigating the issues if there is 
ambiguity.
    Discussion: The final regulations do not supersede the IDEA, 
Section 504, or the ADA. The final regulations provide significant 
flexibility for recipients, and recipients may utilize this flexibility 
in challenging cases, including where a recipient must comply with both 
these final regulations, and applicable disability laws. Additionally, 
the final regulations provide complainants with rape shield 
protections, and deem questions and evidence regarding a complainant's 
prior sexual behavior irrelevant (unless such questions or evidence are 
offered to prove that someone other than the respondent committed the 
alleged conduct, or if it concerns specific incidents of sexual 
behavior with the respondent and is offered to prove consent). These 
concerns are further addressed in the ``Section 106.45(b)(6)(ii) 
Elementary and Secondary School Recipients May Require Hearing and Must 
Have Opportunity to Submit Written Questions'' subsection of the 
``Hearings'' subsection of the ``Section 106.45 Recipient's Response to 
Formal Complaints'' section of this preamble.
    Changes: None.
    Comments: Some commenters stated that they were concerned about the 
proposed rules creating a two-tiered system of complaints, which would 
be particularly challenging at the ESE level. The commenters argued 
that some allegations would rise to the level of sexual harassment 
contemplated by the proposed rules and would therefore trigger a 
school's duty to respond and go through the grievance procedures. Other 
conduct, stated commenters, might be sexual in nature, and even severe 
or pervasive or objectively offensive--but not all three--and thus not 
trigger a duty to respond, and not trigger any need to go through the 
grievance procedures. But this conduct might still be prohibited by a 
school's code of conduct, noted commenters, and a school could still 
discipline students for code of conduct violations. Commenters thought 
this would pose an awkward, confusing process for both students who 
allege unwelcome conduct occurred, and for students who were accused of 
unwelcome conduct.
    Discussion: As discussed above and throughout this preamble, these 
final regulations define sexual harassment that triggers a recipient's 
response obligations to mean any of three types of misconduct (i.e., 
quid pro quo harassment by an employee, severe and pervasive and 
objectively offensive unwelcome conduct that denies a person equal 
educational access, or any of the four Clery Act/VAWA sex offenses--
sexual assault, dating violence, domestic violence, or stalking). The 
Department believes that drawing a distinction between actionable 
sexual harassment under Title IX, and other misconduct that may be 
unwelcome but does not interfere with a person's equal educational 
access (such as offensive speech protected by principles of free speech 
and academic freedom), helps a recipient reach the difficult balance 
between upholding the non-discrimination mandate of Title IX while 
comporting with constitutional rights and principles of fundamental 
fairness.\1741\ As explained in the ``Sexual Harassment'' subsection of 
the ``Section 106.30 Definitions'' section of this preamble, Federal 
non-discrimination laws such as Title IX (as interpreted under 
Department guidance) and Title VII (under which a standard of ``severe 
or pervasive'' sexual harassment applies) have long utilized some 
threshold measure of when misconduct rises to the level of being 
actionable under the Federal non-discrimination law (e.g., when a 
school must respond under Title IX, or an employer must respond under 
Title VII). The Department's use in these final regulations of the 
Supreme Court's Davis formulation of actionable sexual harassment as 
one of three categories of misconduct defined as actionable sexual 
harassment leaves recipients discretion to address other misconduct as 
the recipient deems appropriate (or as required under State laws), 
while focusing Title IX enforcement on responding to conduct that 
jeopardizes a person's equal educational access. That response must 
support a complainant while being fair to both parties, including by 
offering supporting measures to a complainant and refraining from 
punishing a respondent without following a fair grievance process. The 
Department views this flexibility as a strength of these final 
regulations, rather than to the detriment of recipients or their 
students and employees. While this may create two different sets of 
procedures for recipients, this is a natural consequence of having to 
comply with a Federal non-discrimination laws such as Title IX, which 
focuses on denial of equal educational access and does not cover all 
types of student misconduct, and appropriate enforcement of which may 
require processes that are above and beyond processes a school uses to 
address other types of student misconduct.
---------------------------------------------------------------------------

    \1741\ See the ``Role of Due Process in the Grievance Process'' 
section of this preamble.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Commenters suggested that if anything, ESE schools should 
provide more due process for respondents than PSE institutions, and not 
less, because students must generally attend ESE schools as a matter of 
compulsory State laws regarding education, whereas there is no 
compulsory education at the postsecondary level; commenters shared 
personal stories of themselves (or family members) being accused of 
sexual harassment as high school students and urged the Department to 
provide high school students with strong due process protections. One 
commenter alleged that ESE institutions are dominated by teachers' 
unions on the left side of the political spectrum, and are therefore 
trained to believe all accusers, such that accused students cannot 
expect to get fair treatment unless it is mandated by Federal law. One 
other commenter argued that whatever the proposed rules provide, they 
should offer additional

[[Page 30488]]

protections to parties who are students, as opposed to employees, given 
that there is no right or obligation related to having a job, but there 
are compulsory attendance rules for schools.
    One other commenter stated that the proposed rules do not account 
for schools that want to eschew the adversarial process in most cases 
and focus instead on practices generally referred to as ``restorative 
justice.'' These practices, asserted commenters, reduce implicit bias 
and protect school climate better than pure disciplinary models.
    Discussion: The Department believes that the final regulations 
protect due process for students and employees at both the ESE and PSE 
levels.\1742\ The final regulations effectively require that schools 
provide adequate due process protections to all students, irrespective 
of whether school personnel themselves are ideologically supportive of 
such rights, and at the same time require schools to respond 
supportively to protect complainants' equal educational access. 
Additionally, the final regulations establish sufficient rights for ESE 
students to adequately defend themselves from accusations of sexual 
harassment, for example through the right to inspect and review all 
evidence directly related to the allegations including exculpatory 
evidence, whether obtained by a party or other source, the right to 
review the investigative report containing the recipient's summary of 
relevant evidence, the right to an advisor of choice, and the right to 
pose written questions and follow-up questions to the other party and 
witnesses prior to a determination regarding responsibility being 
reached. At the same time, the foregoing procedural rights are granted 
equally to complainants, resulting in a truth-seeking grievance process 
that provides due process protections for all parties.
---------------------------------------------------------------------------

    \1742\ See the ``Role of Due Process in the Grievance Process'' 
section of this preamble.
---------------------------------------------------------------------------

    Nothing in the final regulations prevents recipients from 
facilitating informal resolution processes, including what commenters 
referred to as restorative justice processes, within the confines of 
Sec.  106.45(b)(9).
    Changes: None.
    Comments: Many commenters argued that the Department's Directed 
Question 1 was itself flawed, because it asked whether different rules 
ought to apply to different institutions that are ESE or PSE 
institutions, while many ESE students interact with PSE institutions in 
a variety of ways. Commenters noted that some PSE institutions run 
daycares, elementary and secondary school sporting enrichment programs, 
host high-school students for events, and even enroll high-school 
students in dual-enrollment courses at the PSE level. Several community 
colleges commented to say that they had numerous ESE students enrolled 
in their courses, and that many of these students came onto their 
campuses physically during the day. The schools argued that it would be 
confusing to use certain procedures designated only for the PSE 
recipients when minors--and perhaps even young children who were simply 
enrolled in daycare at the institution--were involved in an allegation 
of sexual harassment. Some commenters noted that it was theoretically 
possible to have two minors who attend high school but who are dual-
enrolled in college courses as parties to an investigation. In that 
case, asserted commenters, a school would have to use its own 
institution's grievance procedures, despite the students being minors, 
which commenters argued cannot be what the proposed rules intended.
    Discussion: The Department agrees with commenters who suggested 
that no system will perfectly distinguish individuals who ought to be 
subject to more sophisticated procedures in every instance of alleged 
sexual harassment, but that distinguishing between ESE and PSE 
recipients is valuable as a proxy. These final regulations require a 
recipient to respond to sexual harassment whenever the recipient has 
notice of sexual harassment that occurred in the recipient's own 
education program or activity, regardless of whether the complainant or 
respondent is an enrolled student or an employee of the 
recipient.\1743\ The manner in which a recipient must, or may, respond 
to the sexual harassment incident may differ based on whether the 
complainant or respondent are students, or employees, of the recipient. 
For example, if a complainant is not an enrolled student but attends a 
sports camp at the institution, the type of supportive measures 
reasonably available to help that complainant may differ from 
supportive measures that would assist an enrolled student. As another 
example, if the respondent is not enrolled or employed by the 
institution but commits sexual harassment in the recipient's education 
program or activity, the recipient may in its discretion (via the Title 
IX Coordinator signing a formal complaint) initiate a grievance process 
against that respondent,\1744\ yet must still offer supportive measures 
to the complainant. Conversely, if the respondent is not enrolled or 
employed by the institution, the recipient may, in its discretion, 
dismiss a formal complaint filed by the complainant against that 
respondent,\1745\ and again, must still offer supportive measures to 
the complainant. While the Department understands that many students 
are dual-enrolled, and that some students in ESE are over the age of 
majority and some students in PSE are minors, we believe that these 
final regulations appropriately set forth legal obligations for all 
recipients to respond supportively to complainants and fairly to both 
complainants and respondents, and that the concept of an ESE recipient, 
or a PSE recipient, needing to take into account the ages of its 
students is neither unfamiliar nor infeasible for ESE and PSE 
recipients.
---------------------------------------------------------------------------

    \1743\ Section 106.44(a) (general response obligations of a 
recipient); Sec.  106.30 (defining ``complainant'' to mean ``an 
individual'' without restricting the definition to a student or 
employee); Sec.  106.30 (defining ``respondent'' to mean ``an 
individual'' without restricting the definition to a student or 
employee); Sec.  106.30 (defining ``formal complaint'' and stating 
that a formal complaint may be filed by a complainant who is 
participating, or attempting to participate, in the recipient's 
education program or activity at the time of filing the formal 
complaint).
    \1744\ Section 106.30 (defining ``formal complaint'' as a 
document filed by a complainant or signed by the Title IX 
Coordinator alleging sexual harassment against a respondent); Sec.  
106.44(b)(1) (requiring a recipient to follow the Sec.  106.45 
grievance process in response to any formal complaint and to meet 
all Sec.  106.44(a) obligations which include offering the 
complainant supportive measures).
    \1745\ Section 106.45(b)(3)(ii) (permitting discretionary 
dismissal of a formal complaint in specified instances, including 
where the respondent is no longer enrolled or employed by the 
recipient).
---------------------------------------------------------------------------

    With respect to concerns that complainants who are minors may 
suffer sexual harassment in a PSE institution's education program or 
activity and thus the PSE institution would be applying grievance 
procedures to a formal complaint filed by that complainant, including 
procedures that are more difficult for minors to navigate in and 
participate in (for example, appearing at a live hearing and being 
subjected to cross-examination), these final regulations contain 
protections that mitigate the potential for re-traumatization of all 
complainants at a live hearing. For instance, Sec.  106.45(b)(6)(i) 
states that, at the request of either party, the recipient must provide 
for the live hearing (including cross-examination) to occur with the 
parties located in separate rooms with technology enabling the 
decision-maker and parties to simultaneously see and hear the party or 
the witness answering questions; forbids parties from personally 
questioning each other; and expressly states that

[[Page 30489]]

before any party must answer a cross-examination question the decision-
maker must first determine whether the question is relevant. Moreover, 
a complainant need not be subjected to cross-examination at a PSE 
institution's live hearing, so long as the decision-maker does not rely 
on any statement of that complainant in reaching a determination 
regarding responsibility.\1746\ Nothing in these final regulations 
precludes a recipient from training its investigators or decision-
makers in best practices for interviewing and questioning minors, so 
long as such training also meets the requirements for training of Title 
IX personnel set forth in Sec.  106.45(b)(1)(iii). These provisions 
help ensure that cross-examination (which may seem daunting especially 
for a minor) is conducted in a reasonable, respectful, truth-seeking 
manner. These final regulations provide additional protections that are 
especially helpful for a minor student navigating a grievance process, 
whether conducted by an ESE institution or a PSE institution; for 
example, Sec.  106.45(b)(5)(iv) allows each party to select an advisor 
of choice who may be, but need not be, an attorney, while Sec.  
106.6(g) recognizes the legal right of a parent to act on a 
complainant's behalf throughout the grievance process.
---------------------------------------------------------------------------

    \1746\ Section 106.45(b)(6)(i).
---------------------------------------------------------------------------

    Changes: None.
    Comments: Some commenters argued that the proposed rules ought to 
be changed to contemplate different categories of ESE students, and 
therefore distinguish between allegations of sexual harassment that 
occur at elementary schools, middle schools, and high schools.
    Discussion: As discussed in the ``Role of Due Process in the 
Grievance Process'' section of this preamble, consistency and 
predictability are important goals of these final regulations, balanced 
with the recognition that the type of due process owed may be different 
in particular situations, which the Department has concluded include 
the difference between the ESE and PSE context.\1747\ However, 
different processes for preschool, elementary school, middle school, 
and high school would significantly reduce the end goal of providing 
recipients, students, and employees with a consistent, predictable 
framework for recipient responses to Title IX sexual harassment. Within 
the framework of the final regulations, recipients retain significant 
discretion to employ age-appropriate rules and approaches (so long as 
such discretionary rules apply equally to complainants and 
respondents).\1748\
---------------------------------------------------------------------------

    \1747\ For example, the final regulations require postsecondary 
institutions to use a live hearing model for Title IX sexual 
harassment adjudications, while ESE recipients need not use any kind 
of hearing. Sec.  106.45(b)(6)(i)-(ii).
    \1748\ The introductory sentence of revised Sec.  106.45(b) 
states that any provisions, rules, or practices other than those 
required by this section that a recipient adopts as part of its 
grievance process for handling formal complaints of sexual 
harassment as defined in Sec.  106.30, must apply equally to both 
parties.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Commenters asserted that the proposed rules ought to be 
modified to state expressly that students can always rely on their 
parents or guardians for assistance as they proceed through the Title 
IX process at their school.
    Discussion: Nothing in the final regulations prevents students from 
relying on their parents or guardians for assistance or selecting a 
parent or guardian as an advisor of choice during a grievance process. 
Indeed, where parents or guardians have a legal right to act on behalf 
of a student, including during a grievance process, the final 
regulations expressly respect such right, and where a parent has the 
legal right to act on their child's behalf, the parent may accompany 
their child throughout the grievance process in addition to an advisor 
of the party's choice.\1749\ The Department expects that for many 
students, the participation of a parent or guardian in the grievance 
process will be a function of their underlying legal rights as parents 
or guardians, and the final regulations respect, and do not alter, 
those parental or guardianship rights.
---------------------------------------------------------------------------

    \1749\ Section 106.6(g); Sec.  106.45(b)(5)(iv).
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter suggested that in the ESE setting, schools 
should have the duty only to investigate and draft a report and 
recommendation, but then provide the report and recommendation to an 
outside neutral party. That way, asserted the commenter, school 
personnel would not have to adjudicate the final result and potential 
disciplinary consequences of the Title IX process.
    Discussion: The final regulations are designed for school officials 
to perform the functions of investigators and decision-makers without 
the need to hire outside contractors. The final regulations do not 
preclude a recipient from outsourcing its investigative and 
adjudicative responsibilities under these final regulations, but the 
Department declines to require recipients to do so, and the recipient 
remains responsible for compliance with these final regulations whether 
a recipient meets its obligations by using its own personnel or by 
hiring outside contractors.
    Changes: None.
    Comments: Commenters suggested that the final regulations should 
include robust training requirements for school personnel, especially 
with respect to the differences between ESE and PSE institutions. Other 
commenters suggested that school personnel undergo trauma-informed 
training, such that they would better be able to observe symptoms of 
sexual harassment.
    Discussion: Recipients must, under Sec.  106.45(b)(1)(iii), ensure 
that Title IX Coordinators, investigators, decision-makers, and any 
person who facilitates an informal resolution process receive certain 
training, including on the definition of sexual harassment, the scope 
of the recipient's education program or activity, how to conduct an 
investigation and grievance process, including hearings, appeals, and 
informal resolution processes, as applicable, and how to serve 
impartially, including by avoiding prejudgment of the facts at issue, 
conflicts of interest, and bias, and (as to investigators and decision-
makers) how to determine issues of relevance. While these training 
materials must not rely on sex stereotypes and must promote impartial 
investigations and adjudications of sexual harassment, recipients may 
use their discretion to adopt additional components to training, 
including materials describing the impact of trauma.
    Changes: None.
    Comments: Commenters stated that the proposed rules would likely be 
in tension with numerous State laws that codify certain procedures 
before students can be disciplined, particularly if the discipline is 
suspension or expulsion. Commenters asserted this would have 
unpredictable consequences, such as schools perhaps having to conduct 
two separate investigatory or grievance procedures, in order to comply 
with both the proposed rules and State law. Commenters asserted that 
having to conduct two separate processes would be awkward, confusing, 
and potentially in conflict with one another. Some suggested as a 
solution adding a waiver requirement, so that the Secretary could 
permit schools to opt out of certain grievance procedures. Other 
commenters suggested a safe harbor provision, such that a school in 
compliance with State law need not separately comply with the proposed 
rules.
    Discussion: The Department appreciates this feedback but declines 
to make any changes to the final

[[Page 30490]]

regulations in response to these comments. Recipients ought, to the 
maximum extent possible, seek to comply with all State and local laws, 
consistent with the final regulations. To the extent that a conflict 
cannot be resolved, the final regulations control. For further 
discussion of conflict with State laws, see the discussion in the 
``Section 106.6(h) Preemptive Effect'' subsection of the ``Clarifying 
Amendments to Existing Regulations'' section of this preamble. For 
reasons explained in the ``Role of Due Process in the Grievance 
Process'' section of this preamble, the Department has determined that 
the provisions in Sec.  106.45 constitute the important procedures 
needed to ensure that investigations and adjudications of Title IX 
sexual harassment allegations are fair, reliable, and viewed as 
legitimate, to effectuate the non-discrimination mandate of Title IX--
an important Federal civil rights law. As to student or employee 
misconduct that does not constitute Title IX sexual harassment, these 
final regulations do not prescribe what kind of disciplinary procedures 
a recipient must or may use. The Department does not view this 
potential for ``two separate processes'' as a negative consequence of 
these final regulations; rather, these final regulations appropriately 
confine their application only to sex discrimination in the form of 
sexual harassment, and leave other misconduct under the purview of 
States and local schools.
    Changes: None.
    Comments: Some commenters asked whether the grievance procedures 
varied based on who the complainant was, who the respondent was, or 
which institution was conducting the process. These commenters also 
asked what should occur if there are multi-party allegations, and the 
school must interact with individuals of different grade levels. One 
commenter described a hypothetical situation of a professor in a PSE 
setting who teaches ESE students, perhaps as part of a dual-enrollment 
program. In the hypothetical, one of the ESE students accuses the 
professor of sexual harassment, but refuses to participate in cross-
examination at a live hearing, since the proposed rules contemplate 
that procedure only for PSE institutions. The commenter asked if the 
school must discount the allegation, find the professor non-responsible 
for the accusation, and simply drop the issue, ignoring the possibility 
that the professor may then sexually harass other students.
    Discussion: The obligations of a recipient are tied to whether it 
is an ESE or a PSE institution, not to the individual parties involved 
in a specific allegation of sexual harassment. Whether sexual 
harassment involves two individuals or more is not relevant to the 
question of which procedures apply; however, in response to commenters 
who wondered how multi-party situations could be addressed, the final 
regulations add Sec.  106.45(b)(4) giving recipients discretion to 
consolidate formal complaints where allegations arise from the same 
facts and circumstances, so that a single grievance process might 
involve multiple complainant and/or multiple respondents. Where sexual 
harassment is alleged in the education program or activity of a PSE 
institution, Sec.  106.45(b)(6)(i) requires the recipient to adjudicate 
the allegations by holding a live hearing, with cross-examination 
conducted by party advisors (including a recipient-provided advisor if 
a party appears at the live hearing without an advisor of choice). That 
provision instructs the decision-maker not to rely on statements of a 
party who chooses not to appear or be cross-examined at the live 
hearing; however, the revised provision also directs the decision-maker 
not to draw any inference about the determination regarding 
responsibility based on the refusal of a party to appear or be cross-
examined. Thus, a recipient is not required to ``drop the issue'' or 
required to reach a non-responsibility finding whenever a complainant 
refuses to appear or be cross-examined; rather, the decision-maker may 
proceed to objectively evaluate the evidence that remains (excluding 
the non-appearing party's statements) and reach a determination 
regarding responsibility.\1750\ Further, a recipient must offer 
supportive measures to a complainant regardless of whether the 
complainant signs a formal complaint initiating a grievance process or 
refuses to participate in a grievance process, and nothing in the final 
regulations precludes a recipient from providing supportive measures 
designed to deter sexual harassment regardless of the outcome of a 
grievance process. Under Sec.  106.44(d), a recipient may place a non-
student employee-respondent on administrative leave during pendency of 
a grievance process, ensuring that regardless of the outcome of the 
grievance process the recipient may separate an employee from contact 
with students, in the recipient's discretion.
---------------------------------------------------------------------------

    \1750\ For further discussion of the consequences of a party or 
witness refusing or failing to appear at a live hearing or refusing 
to submit to cross-examination, see the ``Hearings'' subsection of 
the ``Section 106.45 Recipient's Response to Formal Complaints'' 
section of this preamble.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Some commenters asked for more guidance about how ESE 
students should pose questions to each other during the grievance 
process, and how ESE students should be expected to respond, and 
whether a parent or advisor could help them craft responses. One 
commenter suggested that the proposed rules ought to expressly provide 
that a school should take account of the English proficiency of the 
parties involved in a sexual harassment complaint. Another commenter 
suggested that the final regulations should address instances where a 
young student alleges sexual harassment, but their parent is 
unsupportive or uninvolved in the student's life and thus does not 
adequately help the student through the process.
    One commenter suggested that all cases of sexual harassment 
involving an ESE institution ought to begin with informal resolution 
processes to avoid the allegedly lengthy and onerous grievance 
processes. Another commenter suggested that a school ought to have a 
duty to appoint an advocate or trauma-informed counselor for every 
student alleging sexual harassment.
    Other commenters suggested that some provisions be clarified. For 
instance, commenters suggested that it be unambiguously expressed that 
live hearings are not required at the ESE level. Commenters also 
suggested an unambiguous provision about emergency removal being 
acceptable where a school determines that an imminent threat to health 
or safety exists in an ESE school. Another commenter suggested that 
parental rights should be more clearly spelled out than in the proposed 
regulations. One commenter suggested that OCR issue sub-regulatory 
guidance to aid ESE institutions in understanding the final 
regulations.
    Discussion: As discussed in the ``Section 106.45(b)(6)(ii) 
Elementary and Secondary School Recipients May Require Hearing and Must 
Have Opportunity to Submit Written Questions'' subsection of the 
``Hearings'' subsection of the ``Section 106.45 Recipient's Response to 
Formal Complaints'' section of this preamble, we have revised Sec.  
106.45(b)(6)(ii) in line with commenters' request to more clearly state 
that an elementary and secondary school recipient is not required to 
hold hearings to adjudicate formal complaints, and the aforementioned 
preamble discussion explains that if an ESE recipient does choose to 
hold a hearing (live or otherwise), these final regulations do not 
prescribe the procedures that must

[[Page 30491]]

occur at such a hearing held by an ESE recipient (e.g., cross-
examination need not be provided), and that preamble discussion also 
addresses commenters' concerns and questions about what the written 
submission of questions process must, and may, consist of under Sec.  
106.45(b)(6)(ii).
    As noted previously, we have added Sec.  106.6(g) to expressly 
acknowledge the legal rights of parents or guardians to act on behalf 
of parties during a Title IX grievance process. Where a young student's 
parent is unsupportive or unable to assist the student, the student is 
still entitled to an advisor of choice (under Sec.  106.45(b)(5)(iv)) 
and nothing in the final regulations precludes a recipient from 
adopting a policy of offering to provide an advisor to students, as 
long as such a policy makes a recipient-offered advisor equally 
available (on the same terms) to complainants and respondents, per the 
revised introductory sentence of Sec.  106.45(b). As noted previously, 
nothing in the final regulations precludes a recipient from training 
its Title IX personnel in trauma-informed approaches as long as such 
training also complies with the requirements in Sec.  
106.45(b)(1)(iii).
    The final regulations expressly acknowledge that recipients may 
need to adjust a grievance process to provide language assistance for 
parties; see Sec.  106.45(b)(1)(v).
    For reasons discussed in the ``Informal Resolution'' subsection of 
the ``Section 106.45 Recipient's Response to Formal Complaints'' 
section of this preamble, we decline to require parties to attempt 
informal resolution prior to commencing the grievance process; we 
believe that the parties should only engage in informal resolution when 
that choice is the result of each party's voluntary, informed, written 
consent.\1751\ We reiterate that a parent or guardian's legal right to 
act on behalf of a complainant or respondent extends to every aspect of 
a grievance process, which would include deciding whether to 
voluntarily consent to participate in informal resolution.
---------------------------------------------------------------------------

    \1751\ We have revised Sec.  106.45(b)(9) regarding informal 
resolutions to preclude a recipient from offering or facilitating 
informal resolution to resolve allegations that an employee sexually 
harassed a student.
---------------------------------------------------------------------------

    The Department believes that Sec.  106.44(c) authorizing emergency 
removals of respondents who pose an imminent threat to the physical 
health or safety of one or more individuals appropriately addresses the 
need for ESE recipients to respond quickly and effectively to emergency 
risks that arise out of sexual harassment allegations. That provision 
applies equally to all recipients, including ESE recipients.
    The Department will offer technical assistance to recipients, 
including ESE recipients, regarding implementation of these final 
regulations. However, for reasons described in the ``Notice and Comment 
Rulemaking Rather than Guidance'' section of this preamble, the 
Department believes that legally binding regulations will be more 
effective than Department guidance with respect to enforcing 
recipients' Title IX obligations.
    Changes: None.
    Comments: One commenter stated that the proposed rules create a 
separate process for one type of discrimination but do not impose the 
same requirements for other types of discrimination, and elementary and 
secondary school districts already have age appropriate procedures in 
place to respond to claims of all types of discrimination.
    One commenter asserted that postsecondary institutions have 
significantly more resources than elementary and secondary schools and 
argued that the proposed rules should be tested at the postsecondary 
level prior to implementation in elementary and secondary schools.
    One commenter asserted that the proposed rules are problematic in 
the elementary and secondary school context because many of the school 
districts in the commenter's State are small, with one administrator 
acting as Title IX Coordinator, who is typically the school district 
superintendent. The commenter stated that decisions regarding 
responsibility for behavioral violations and disciplinary actions, 
however, are typically left to school principals who are directly 
accountable for students. The same commenter asserted that implementing 
the proposed rules will be costly for small school districts, which 
will need to train additional staff and contract with third-party 
investigators.
    Discussion: These final regulations specifically address sexual 
harassment as a form of sex discrimination and are based on the premise 
that sexual harassment must be addressed through a specific grievance 
process, whether or not that process is also applied with respect to 
other types of discrimination. The ``prompt and equitable'' grievance 
procedures described in Sec.  106.8 must be used to resolve complaints 
of sex discrimination, while the grievance process in Sec.  106.45 must 
be used to resolve allegations of sexual harassment in formal 
complaints. The Department's regulations under Title VI describe the 
process for addressing discrimination based on race, color, and 
national origin. Different types of discrimination may require a 
different process, and a recipient is not required to address 
discrimination on the basis of race (for instance, under Title VI) in 
the same manner as sexual harassment under these final regulations 
implementing Title IX.\1752\
---------------------------------------------------------------------------

    \1752\ For further discussion see the ``Different Standards for 
Other Harassment'' subsection of the ``Miscellaneous'' section of 
this preamble.
---------------------------------------------------------------------------

    The Department disagrees that all elementary and secondary school 
districts have age-appropriate procedures to respond to allegations of 
sexual harassment as well as all other types of discrimination. 
Numerous commenters described experiences with ESE recipients who have 
not responded supportively and/or fairly to sexual harassment 
allegations, and the Department seeks to hold ESE recipients 
accountable for meeting legally binding response obligations under 
these final regulations.
    We disagree that all postsecondary institutions have more resources 
than elementary and secondary schools. The Department notes that these 
final regulations apply to smaller and larger postsecondary 
institutions. The Department disagrees that these final regulations 
should be tested in postsecondary institutions before being applicable 
to elementary and secondary schools because the final regulations have 
different requirements for postsecondary institutions than for 
elementary and secondary schools where appropriate, and require all 
recipients to respond supportively and fairly to sexual harassment in 
recipients' education programs or activities. Testing these final 
regulations at postsecondary institutions will not necessarily result 
in a better outcome for elementary and secondary schools. There also 
should be some uniformity or similarity among recipients, whether 
elementary and secondary schools or postsecondary institutions, in 
addressing the same type of sex discrimination in the form of sexual 
harassment. The Department disagrees that these final regulations are 
unduly burdensome for smaller elementary and secondary schools. The 
Department does not require any recipient to use third-party 
investigators or otherwise to hire contractors to perform a recipient's 
investigation and adjudication responsibilities under these final 
regulations. Any recipient, irrespective of size, may use existing 
employees to fulfill the role of Title IX Coordinator, investigator, 
and decision-maker, as long as these employees do not have a

[[Page 30492]]

conflict of interest or bias and receive the requisite training under 
Sec.  106.45(b)(1)(iii). These final regulations provide essential 
safeguards for complainants and respondents, and these safeguards 
should not be sacrificed due to concerns of administrative burden or 
financial cost. We note throughout this preamble areas in which the 
Department has revised these final regulations to relieve 
administrative burdens where doing so preserves the intention of 
important provisions of the grievance process (for example, Sec.  
106.45(b)(5)(vi) removes the requirement that evidence subject to the 
parties' inspection and review be electronically sent to parties using 
a file sharing platform that restricts downloading and copying, and now 
permits the evidence to be sent either in electronic format or hard 
copy).
    The Department is not aware of any State or local laws that 
directly conflict with these final regulations and discusses preemption 
and conflicts with State laws in greater detail in the ``Section 
106.6(h) Preemptive Effective'' subsection of the ``Clarifying 
Amendments to Existing Regulations'' section of this preamble.
    Changes: None.

Directed Question 2: Application Based on Type of Recipient or Age of 
Parties

    Comments: Numerous commenters stated that the proposed rules 
appropriately distinguished between ESE and PSE institutions, as 
opposed to distinguishing between students based on age. Some 
commenters noted that it would be difficult for schools to apply 
different procedures to different students, and it would be especially 
confusing when the students were different ages, such as 17 and 18. 
Commenters asserted that for multi-party allegations where both minors 
and adults are involved as both complainants or respondents, it would 
be hard for schools to know which policies to apply.
    Many commenters stated that once a student attends a PSE 
institution, the student should be treated as an adult for the purpose 
of the proposed rules. Some commenters cited FERPA in support of this 
proposition, contending that FERPA recognizes instances where ``a 
student has reached 18 years of age or is attending an institution of 
postsecondary education.'' Other commenters suggested that no system 
was perfect, but that using the institution that the student attends or 
employee works at is at least a rough proxy for which procedures should 
apply. One commenter asserted that since the real risk posed by the 
distinction between procedural regimes is having young children subject 
to procedures that are most effective for more sophisticated parties, 
the safer approach is to distinguish by institution, not age, since 
very few young children will be in a college setting. One commenter 
cited the varying school climates between ESE and PSE institutions as 
another reason that the distinction worked as a rough proxy for 
sophisticated parties. One commenter stated that it would do little 
good for the final regulations to distinguish parties by age, since the 
commenter argued that even two people who are over 18 can be in vastly 
different positional relationships to one another, in terms of power, 
authority, or mental development.
    Discussion: We appreciate the feedback offered by commenters, and 
the Department agrees that given the options, it is preferable to 
distinguish between the types of institution that are involved in a 
sexual harassment allegation rather than try to distinguish based on 
the ages of the parties involved. While no dividing line will ever be 
perfect, we expect that the line that the Department has chosen will 
minimize the situations where young students are subject to procedures 
conducted by a PSE institution, and we reiterate that even the most 
rigorous procedures required in PSE institutions (i.e., live hearings 
with cross-examination) may be applied in a manner that seeks to avoid 
retraumatizing any complainant, including a complainant who is 
underage.\1753\
---------------------------------------------------------------------------

    \1753\ For further discussion see the ``Hearings'' subsection of 
the ``Section 106.45 Recipient's Response to Formal Complaints'' 
section of this preamble.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Some commenters responded to the NPRM's Directed Question 
2 by disagreeing with the approach taken in the proposed rules, stating 
that it would be preferable to distinguish students and applicable 
grievance procedures by age, rather than the institution with 
jurisdiction over the incident. These commenters suggested that age, 
combined with maturity level, is the best way to determine whether a 
student ought to be subject to more sophisticated grievance procedures. 
Some commenters asserted that students who are under age 18 might be 
more likely to rely on their parents or guardians, who may be able to 
assist them with the process, whereas students over age 18 may not have 
the same ability.
    Other commenters defended the use of age as a dividing line, 
stating that some very young students go to college if they advance 
swiftly through elementary and secondary school. Commenters also stated 
that students who are over age 18 have vastly different mental maturity 
and developmental abilities than those under age 18, although 
commenters did say that some individuals with neuro-developmental 
disabilities who are over age 18 should not be subject to cross-
examination.
    Other commenters asserted that it would be strange to have teachers 
and other employees at ESE institutions receive fewer due process 
rights than PSE employees, given that these individuals may need access 
to the same grievance procedures to ensure a fair hearing. For 
instance, the commenter suggested that it was anomalous to offer a 
professor the right to have their advisor cross-examine a complainant 
who was 17 years old, but enrolled in college, whereas a teacher 
accused by an 18 year old senior in an ESE setting would have no such 
right. Indeed, where two employees at an ESE institution are involved, 
commenters asserted, it is not clear why the parties are not entitled 
to the full breadth of the grievance procedures, since both are 
presumably sophisticated parties.
    Discussion: The Department appreciates this feedback and 
acknowledges that any dividing line may lead to anomalous results in 
some cases. We believe, however, that the final regulations can best 
ameliorate those situations by structuring the distinction in certain 
procedural requirements as between ESE and PSE institutions, rather 
than by the ages of involved parties. Nothing in the final regulations, 
however, prevents schools from, for example, holding live hearings at 
the ESE level when both parties are employees or over age 18. We agree 
with commenters who stated that requiring an institution to vary its 
procedures based on the ages of the parties would likely lead to undue 
confusion, particularly where the parties are of different ages, or 
where multi-party allegations occur. We note that Sec.  106.6(g), 
acknowledging the legal rights of parents and guardians to act on 
behalf of parties in a Title IX grievance process, does not 
differentiate between when a parent or guardian's rights apply to an 
ESE student versus a PSE student, except to recognize that application 
of parental rights must also be consistent with FERPA.
    Changes: None.
    Comments: Commenters stated that informal resolution is not 
appropriate at

[[Page 30493]]

the ESE level, especially in cases involving a teacher who is accused 
of sexual harassment. Since adults sometimes groom their victims for 
sexual abuse, commenters argued that it would be inappropriate and 
harmful to permit a teacher to escape the grievance process by going 
through mediation or another informal resolution process when the 
``choice'' to participate in informal resolution may not be truly 
voluntary on the part of the young victim.
    Discussion: The Department is persuaded by commenters' concerns 
that grooming behaviors make ESE students susceptible to being 
pressured or coerced into informal resolution processes, and we have 
revised Sec.  106.45(b)(9) to preclude all recipients from offering or 
facilitating informal resolution processes to resolve allegations that 
an employee sexually harassed a student.
    Changes: As discussed elsewhere in this preamble, we have revised 
Sec.  106.45(b)(9)(iii) to prohibit ESE recipients (or any other 
recipients) from providing an informal resolution process to resolve 
allegations that an employee sexually harassed a student.
    Comments: Some commenters stated that the proposed rules should be 
revised to more consciously address students who are dual-enrolled in 
high school and college. Commenters asserted, for instance, that the 
PSE procedures (i.e., live hearings with cross-examination) should not 
apply to students who are minors, even if they are dual-enrolled in 
postsecondary institutions. Other commenters argued that the final 
regulations should be changed to focus more on age distinctions, but 
only for specific processes, such as cross-examination, which some 
commenters asserted would be fine for students over age 18. Some 
commenters suggested that a PSE institution ought to at least have the 
flexibility to apply the ESE grievance procedures for instances where 
all of the parties were dual-enrolled, or where all of the parties were 
minors. Some commenters responded to the directed question by 
suggesting even further breakdowns of students; for example, that the 
full grievance procedures should only apply to students who are adults 
and who are in a PSE setting; another set of procedures should apply to 
students in grades four through 12; and another set of procedures 
should apply to students in grades three and below.
    Other commenters responded to the directed question by proposing 
other modifications to the proposed rules. One commenter suggested that 
PSE schools be able to adopt separate policies for individuals who are 
in their education program or activity, but who are not students or 
employees. These might include, according to the commenter, students 
who are merely enrolled at the PSE institution for athletic camp, 4-H 
programs, daycare students, or other individuals who are not taking 
normal college courses at the PSE institution. The commenter suggested 
that this was particularly appropriate where State law might already 
address these situations, such as when a daycare is operated on a PSE 
campus.
    Discussion: The Department appreciates this feedback but declines 
to make any changes to the final regulations based on these comments. 
In these final regulations, we seek to balance competing interests to 
adequately make Title IX processes consistent, predictable, and 
understandable for all parties, at all types of educational 
institutions, as well as in the context of recipients who operate 
education programs or activities but are not educational institutions 
(for example, some museums and libraries are recipients of Federal 
financial assistance covered under Title IX). The commenters' 
suggestions would involve making further distinctions between students, 
than the differences acknowledged in the final regulations between ESE 
and PSE recipients. The more exceptions that are made to what is 
largely a uniform rule, the less likely it is that students and 
employees will know what to expect with respect to reporting sexual 
harassment and their school's response to such a report, including what 
a grievance process will look like if a formal complaint is filed, and 
it could become more difficult for recipients to apply these final 
regulations in a consistent, transparent manner. The distinctions the 
final regulations do make between elementary and secondary schools, and 
postsecondary institutions, are those distinctions that the Department 
believes result in a consistent, transparent set of rules appropriately 
modified to take into account the generally younger ages of students in 
elementary and secondary schools.\1754\
---------------------------------------------------------------------------

    \1754\ For example, see the discussion in the ``Hearings'' 
subsection of the ``Section 106.45 Recipient's Response to Formal 
Complaints'' section of this preamble regarding use of a live 
hearing model for adjudications in postsecondary institutions but 
not mandating hearings (live hearings or otherwise) for elementary 
and secondary schools or other recipients that are not postsecondary 
institutions.
---------------------------------------------------------------------------

    Changes: None.

Directed Question 5: Individuals With Disabilities

    Comments: While some commenters stated that the proposed rules 
adequately accounted for issues related to the needs of students and 
employees with disabilities, many commenters raised concerns and 
objections based on obstacles students with disabilities currently face 
in the context of Title IX proceedings, and expressed general 
opposition on the ground that the proposed rules fail to take into 
account the different needs, experiences, and challenges of students 
with disabilities. A few commenters suggested that the Department seek 
the counsel of, and defer to, organizations and professionals well-
versed in issues faced by individuals with disabilities, so that the 
needs of individuals with disabilities are accommodated in all phases 
of a Title IX process.
    Several commenters stated that students with invisible disabilities 
such as ADHD (attention-deficit/hyperactivity disorder), autism, and 
anxiety disorder, do not currently receive the resources and supports 
specific to their unique needs during Title IX proceedings. Some 
commenters presented personal stories of how their disabilities, or 
those of their children or students they know, were not accommodated 
during Title IX investigations and hearings. Some commenters were 
concerned about a recipient's apparent discretion to provide 
appropriate reasonable accommodations individuals with disabilities 
during the investigation and adjudication process. Some commenters 
stated that their disability, or the disability of their child, would 
make the grievance process too difficult to undergo, and would result 
in fewer people with disabilities being able to report, which may even 
lead to more suicides.
    Some commenters believed the proposed rules failed to consider the 
need for accommodations for respondents with disabilities, particularly 
those on the autism spectrum, and that it is important that 
communications with those students are made in a manner that is clearly 
understandable to those students. Commenters asserted that many 
respondents with disabilities are not informed or aware that their 
rights under disability law also are available to them in a Title IX 
disciplinary proceeding. One commenter suggested, for example, that all 
Title IX-related communications, such as emails, should have a bold 
print statement of protection for students with disabilities.

[[Page 30494]]

Commenters noted that effective communication is essential to protect 
the rights of respondents who have disabilities, particularly 
communication disorders such as autism, nonverbal learning disorders, 
and expressive and receptive language disorders. Commenters stated that 
such students often lack appropriate social skills, do not understand 
nonliteral language, desperately want to ``fit in,'' are terrified of 
persons with authority, are quick to apologize for fear of ``getting in 
trouble'' and generally can be very manipulated as they are very 
misunderstood, and that these factors may lead to unfairly holding such 
students responsible for sexual harassment when a student may not 
actually be responsible.
    Several commenters stated that there is inadequate coordination 
between Title IX offices and disability services offices when a student 
with an invisible disability becomes involved in a Title IX proceeding, 
as either a complainant or a respondent. Often, commenters stated, 
students are unaware of either the necessity of receiving 
accommodations from disability services or of the necessity of waiving 
their privacy rights to allow the two offices to communicate. Some 
commenters stated that institutions of higher education should 
coordinate with their offices of disability services to identify 
students with disabilities who are involved in Title IX proceedings 
(while respecting student privacy rights), and should disseminate Title 
IX information in ways that are accessible to all students (including 
ensuring that websites are accessible and that information is provided 
in plain language for students with intellectual disabilities). 
Commenters asserted that failure of a student to access disability 
services can result in the complainant or respondent being placed at a 
distinct disadvantage during the Title IX proceedings. Some commenters 
suggested that one way to connect the university's disability services 
with the Title IX office might be to have students who may need 
accommodations provide advance permission for a disability office to 
consult with a disciplinary office (including a Title IX office) should 
the student be subjected to a disciplinary proceeding, thereby alerting 
the Title IX office to the student's disability and ensuring the 
student's disability rights are protected.
    Discussion: The Department appreciates that some commenters 
believed that the proposed rules adequately accounted for issues faced 
by students and employees with disabilities, and understands the 
concerns from other commenters that the final regulations should more 
fully and expressly account for the needs, experiences, and challenges 
of students with disabilities. The Department appreciates that many 
stakeholders representing the interests of individuals with 
disabilities participated in the public comment process, and 
appreciates the opportunity here to emphasize the importance of 
recipients complying with all applicable disability laws when meeting 
obligations under these final regulations.
    The Department understands that a grievance process may be 
difficult to undergo for many students, regardless of disability 
status, and that such a process may be more challenging to navigate for 
individuals with disabilities. In response to commenters' concerns, we 
have revised Sec.  106.44(a) to require recipients to offer supportive 
measures as part of a prompt, non-deliberately indifferent response any 
time a recipient has notice of sexual harassment or allegations of 
sexual harassment against a person in the United States, in the 
recipient's education program or activity. This prompt response must 
include the Title IX Coordinator promptly contacting the complainant 
(i.e., the person alleged to be the victim of conduct that could 
constitute sexual harassment, regardless of who reported the sexual 
harassment to the recipient) to discuss the availability of supportive 
measures as defined in Sec.  106.30, consider the complainant's wishes 
with respect to supportive measures, inform the complainant of the 
availability of supportive measures with or without the filing of a 
formal complaint, and explain to the complainant the process for filing 
a formal complaint. The process for offering supportive measures after 
considering the complainant's wishes is an interactive process that is 
not unlike the interactive process that the ADA requires. By ensuring 
that each complainant is offered supportive measures regardless of 
whether the reported incident results in a grievance process, more 
complainants, including individuals with disabilities, can feel safe 
reporting without fearing that a report automatically leads to 
participation in a grievance process.\1755\
---------------------------------------------------------------------------

    \1755\ Supportive measures are also available for respondents. 
See Sec.  106.30 (defining ``supportive measures'' to include 
services provided to respondents); Sec.  106.45(b)(1)(ix) (ensuring 
that parties are informed of the type of supportive measures 
available to complainants and respondents).
---------------------------------------------------------------------------

    The Department appreciates the descriptions from commenters of the 
importance of clear communication with students with disabilities, 
particularly those on the autism spectrum, and the importance that 
students understand that their rights under disability laws apply 
during a Title IX proceeding. The Department appreciates the 
opportunity to emphasize here that recipients must meet obligations 
under these final regulations while also meeting all obligations under 
applicable disability laws including the IDEA, Section 504, and the 
ADA. With respect to the intersection between these Title IX final 
regulations, and disability laws under which the Department has 
enforcement authority, the Department will continue to offer technical 
assistance to recipients.
    The Department acknowledges commenters' concerns noting that a 
student with a disability may need to interact with separate offices 
within a recipient's organizational structure (e.g., a disability 
services office, and a Title IX office). The Department emphasizes that 
recipients must comply with obligations under disability laws with 
respect to students, employees, or participants in a Title IX reporting 
or grievance process situation, regardless of the recipient's internal 
organizational structure. These final regulations, which concern sexual 
harassment, do not address a recipient's obligations under the ADA and 
do not preclude recipients from notifying students involved in a Title 
IX grievance process that the students may have rights to disability 
accommodations.
    To the extent that disability accommodations may overlap with 
supportive measures or remedies required under Title IX, the Department 
notes that if an accommodation involves a Title IX supportive measure 
or remedy, the final regulations specify that the Title IX Coordinator 
is responsible for the effective implementation of such supportive 
measures (Sec.  106.30 defining ``supportive measures'') and remedies 
(Sec.  106.45(b)(7)(iv) as added in the final regulations). These 
requirements are intended, in part, to ease the burden on a student in 
need of the supportive measure or remedy to receive the needed service 
especially when doing so involves coordination of multiple offices 
within the recipient's organizational structure (for example, when a 
supportive measure involves changing a dorm room assignment and doing 
so through the housing office, and a student with a disability needs to 
ensure a housing unit modified to accommodate a disability, or when a 
remedy involves re-taking an exam and doing so through an academic 
affairs office).

[[Page 30495]]

    Changes: We have revised Sec.  106.44(a) to require recipients to 
offer supportive measures as part of a prompt, non-deliberately 
indifferent response to sexual harassment, and to require the 
recipient's Title IX Coordinator to promptly contact the complainant to 
discuss the availability of supportive measures as defined in Sec.  
106.30, consider the complainant's wishes with respect to supportive 
measures, inform the complainant of the availability of supportive 
measures with or without the filing of a formal complaint, and explain 
to the complainant the process for filing a formal complaint. Section 
106.45(b)(7)(iv) now provides that Title IX Coordinators are 
responsible for the effective implementation of remedies.
    Comments: Some commenters expressed concern that the proposed rules 
would harm students with disabilities and make them more invisible and 
vulnerable to sexual abuse because they might not know the types of 
touching that are appropriate or inappropriate to come forward to the 
designated school employee on their own.
    Several commenters stated that students with disabilities that 
limit their ability to communicate may find it even more difficult to 
discuss incidents of a sexual nature. People with significant 
intellectual disabilities may not understand what is happening or have 
a way to communicate the sexual assault to a trusted person. Some 
commenters expressed concern that the proposed rules would isolate 
students with disabilities because a recipient's disability office may 
no longer be required to report a sexual assault.
    Some commenters stated that the proposed rules discriminate against 
survivors with developmental disabilities, who are more vulnerable to 
sexual abuse and that such a disability might prevent such individuals 
from being able to communicate with school officials and provide 
evidence for their case. For example, commenters suggested, a student 
with a disability may only be comfortable communicating sensitive 
issues to their own teacher(s), and in some cases may only be able to 
communicate with appropriately trained special education staff. Other 
students, commenters asserted, with less significant disabilities, may 
realize they are being assaulted, but do not know they have a right to 
say no. In addition, they are rarely educated about sexuality issues 
(including consent) or provided assertiveness training. Even when a 
report is attempted, such students face barriers when making statements 
to police because they may not be viewed as credible due to having a 
disability. Some people with intellectual disabilities also have 
trouble speaking or describing things in detail, or in proper time 
sequence. Other commenters stated that people with disabilities may 
also face challenges in accessing services to make a report in the 
first place; for example, someone who is deaf or deaf-blind may face 
challenges accessing communication tools, like a phone, to report the 
crime or get help.
    Discussion: The Department appreciates commenters' concerns that 
students with disabilities may have challenges comprehending the types 
of touching that are inappropriate or understanding they have a right 
to say ``no,'' identifying when they have been sexually harassed, or 
communicating about an incident, and concerns that some students with 
disabilities are more vulnerable to sexual abuse than peers without the 
same disabilities. While the Department does not control school 
curricula and does not require recipients to provide instruction 
regarding sexuality or consent, nothing in these final regulations 
impedes a recipient's discretion to provide educational information to 
students. Although the Assistant Secretary will not require recipients 
to adopt a particular definition of consent with respect to sexual 
assault, a recipient's definition of consent should not violate any 
disability laws, and the Department will continue to enforce the 
disability laws that it is authorized to enforce. The Department also 
wishes to emphasize that a recipient's obligation to respond to sexual 
harassment incidents does not depend on the reporting complainant using 
specific or particular language to describe an experience that may 
constitute Title IX sexual harassment. The Supreme Court has noted that 
whether conduct rises to the level of actionable harassment depends on 
a ``constellation of surrounding circumstances, expectations, and 
relationships'' including but not limited to ``the ages of the harasser 
and the victim . . . .'' \1756\ Similarly, recognizing whether a 
student has disclosed a Title IX sexual harassment incident includes 
taking into account any disability the reporting student may have that 
may affect how that student describes or communicates about the 
incident.
---------------------------------------------------------------------------

    \1756\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 651 
(1999) (internal citations omitted).
---------------------------------------------------------------------------

    In response to commenters concerned that younger students, whether 
because of age, development, or disability, reasonably cannot be 
expected to report to a school's Title IX Coordinator, the final 
regulations expand the definition of a recipient's actual knowledge to 
include notice to any elementary or secondary school employee. Thus, in 
an elementary or secondary school context, the school's response 
obligations are triggered when, for instance, an employee in the 
school's disability office, or the teaching aide of a student with 
disabilities, has notice of a Title IX sexual harassment incident. 
These final regulations therefore expand the pool of school employees 
to whom any complainant, including a student with a disability, may 
disclose sexual harassment and expect the school to respond as required 
under Title IX, whether the student reports to a particular employee 
due to feeling more comfortable or due to only being able to 
communicate with special education staff.
    With respect to commenters' concerns that individuals with certain 
disabilities may face challenges accessing communication tools, such as 
a phone or website, when trying to report a Title IX sexual harassment 
incident, the Department reiterates that recipients must meet 
obligations under these final regulations while also meeting all 
obligations under applicable disability laws including the IDEA, 
Section 504, and ADA, including with respect to accessibility of 
websites and services. With respect to the intersection between the 
Title IX final regulations and disability laws under which the 
Department has enforcement authority, the Department will continue to 
offer technical assistance to recipients.
    Changes: We have revised Sec.  106.30 to expand the definition of 
``actual knowledge'' to include notice to any employee of an elementary 
or secondary school.
    Comments: Commenters stated that the proposed rules seemed 
concerned with the rights and needs of respondents with disabilities 
(for instance, by expressly referencing the IDEA and ADA in the 
emergency removal provision in Sec.  106.44(c) that applies to removing 
a respondent), but not with the rights and needs of students with 
disabilities who are sexually harassed, and commenters stated that 
these students face unique challenges that would be intensified if the 
proposed rules were implemented.
    Commenters asserted that some disabilities may put people at higher 
risk to be victims of crimes like sexual assault or abuse, for example 
because someone who needs regular assistance may rely on a person who 
is abusing them for care, and may be more likely to suffer physical and 
mental illnesses

[[Page 30496]]

because of violence. Other commenters noted that students with 
disabilities already face unfair challenges such as removal from 
classes because of disproportionate discipline.
    Commenters also stated that people hold negative stereotypes about 
students with disabilities (such as being child-like for life, or 
sexually deviant) that make Title IX proceedings more difficult. 
Commenters stated that students with disabilities are less likely to be 
believed when they report and often have greater difficulty describing 
the harassment they experience, and that students with disabilities who 
also identify as members of other historically marginalized and 
underrepresented groups, such as LGBTQ individuals or persons of color, 
are more likely to be ignored, blamed, and punished when they report 
sexual harassment due to harmful stereotypes that label them as 
``promiscuous.''
    Discussion: To the extent that some commenters misconstrue the 
final regulations to consider only the rights and needs of students 
with disabilities who are accused of sexual harassment and not the 
unique challenges facing students with disabilities who are sexually 
harassed, the Department appreciates the opportunity to clarify that 
recipients must comply with all disability laws protecting the rights 
and accommodating the needs of students (and employees) with 
disabilities regardless of whether such students (and employees) are 
complainants or respondents in a Title IX sexual harassment situation. 
The Department also notes that Sec.  106.44(a) has been revised to 
require recipients to provide supportive measures as part of its prompt 
and non-deliberately indifferent response to sexual harassment, and the 
Title IX Coordinator must promptly contact the complainant to discuss 
the availability of supportive measures as defined in Sec.  106.30, 
consider the complainant's wishes with respect to supportive measures, 
inform the complainant of the availability of supportive measures with 
or without the filing of a formal complaint, and explain to the 
complainant the process for filing a formal complaint. All 
complainants, including complainants with disabilities, will receive 
the benefit of supportive measures under Sec.  106.44(a).
    The Department acknowledges that some disabilities may put people 
at greater risk of being sexually assaulted or abused and that 
individuals with disabilities may be more likely to suffer physical or 
mental illness due to violence. The final regulations prescribe a 
consistent framework for a recipient's response to Title IX sexual 
harassment for the benefit of every complainant, including individuals 
with disabilities and other demographic populations who may be at 
higher risk of sexual assault than the general population.
    To the extent that commenters accurately describe negative 
stereotypes applied against students with disabilities, and 
particularly against students with disabilities who are also students 
of color or LGBTQ students, the final regulations expressly require 
recipients to interact with every complainant and every respondent 
impartially and without bias. A recipient that ignores, blames, or 
punishes a student due to stereotypes about the student violates the 
final regulations. We have revised Sec.  106.45(b)(1)(iii) prohibiting 
Title IX Coordinators, investigators, decision-makers, and persons who 
facilitate informal resolutions, from having conflicts of interest or 
bias against complainants or respondents generally, or against an 
individual complainant or respondent, by requiring training that also 
includes ``how to serve impartially, including by avoiding prejudgment 
of the facts at issue, conflicts of interest, and bias.'' No 
complainant reporting Title IX sexual harassment should be ignored or 
met with judgment or disbelief, and the final regulations obligate 
recipients to meet response obligations impartially and free from bias. 
The Department will vigorously enforce the final regulations in a 
manner that holds recipients responsible for acting impartially without 
bias, including bias based on an individual's disability status.
    In further response to commenters' concerns that harmful 
stereotypes may also lead a recipient to unfairly punish students with 
disabilities reporting sexual harassment allegations, the Department 
has added Sec.  106.71(a) to expressly prohibit retaliation and 
specifically stating that charges against an individual for code of 
conduct violations that do not involve sex discrimination or sexual 
harassment, but arise out of the same facts or circumstances as a 
report or complaint of sex discrimination, or report or formal 
complaint of sexual harassment, for the purpose of interfering with any 
right or privilege secured by Title IX or its implementing regulations, 
constitutes retaliation. This section is intended to draw recipients' 
attention to the fact that punishing a complainant with non-sexual 
harassment conduct code violations (e.g., ``consensual'' sexual 
activity when the complainant has reported the activity to be 
nonconsensual, or underage drinking, or fighting back against physical 
aggression) is retaliation when done for the purpose of deterring the 
complainant from pursuing rights under Title IX. The Department notes 
that this provision applies to respondents as well.
    Changes: We have revised Sec.  106.45(b)(1)(iii) to include in the 
required training how to serve impartially, including by avoiding 
prejudgment of the facts at issue, conflicts of interest, and bias. 
Additionally, we have added Sec.  106.71(a), prohibiting retaliation 
and stating that charging an individual with a code of conduct 
violation that does not involve sexual harassment but arise out of the 
same facts or circumstances as sexual harassment allegations, for the 
purpose of interfering with rights under Title IX, constitutes 
retaliation.
    Comments: Some commenters asserted that even in the higher 
education context cross-examination would inhibit individuals with 
disabilities from receiving equal access to the process. These 
commenters asserted that the proposed rules made no exception for 
individuals with disabilities who would require a reasonable 
modification of the live cross-examination requirement in order to 
testify in the proceeding, so the required live cross-examination would 
place undue burden on individuals with various types of disabilities or 
force recipients to violate Section 504 or the ADA. For example, 
individuals with psychiatric disabilities such as post-traumatic stress 
disorder, social anxiety disorder, or generalized anxiety disorder are 
at particular risk of having their symptoms exacerbated by such a live 
cross-examination process, potentially causing serious harm to their 
wellbeing and their ability to function in interpersonal and academic 
environments.
    Additionally, commenters stated, individuals with various other 
disabilities, especially those who utilize various verbal and nonverbal 
communication methods and/or who have disabilities impacting their 
receptive or expressive language, may also feel undue pressure of 
needing to present details as evidence in such a time-constrained 
environment.
    Discussion: The Department reiterates that recipients must meet 
obligations under these final regulations while also meeting all 
obligations under applicable disability laws including the IDEA, 
Section 504, and ADA. It is unnecessary to specify as an ``exception'' 
to the live hearing requirements in Sec.  106.45(b)(6)(i) that 
recipients must also comply with disability laws. The Department notes

[[Page 30497]]

that Sec.  106.45(b)(1)(v) expressly contemplates that good cause for 
temporary delays or limited extensions of time frames relating to a 
grievance process may include ``the need for language assistance or 
accommodation of disabilities.'' With respect to the intersection 
between the Title IX final regulations and disability laws under which 
the Department has enforcement authority, the Department will continue 
to offer technical assistance to recipients.
    Changes: None.
    Comments: Some commenters argued that the proposed rules fail to 
recognize the difference between the procedural requirements elementary 
and secondary school students have under the IDEA and how Title IX, the 
ADA, and Section 504 each distinctively require equal educational 
opportunity for all students with disabilities at all levels 
(elementary, secondary, and postsecondary institutions that receive 
Federal funds). Some commenters asserted that many students will be 
denied access to free appropriate public education (FAPE) under the 
IDEA if bullying is carved out of the definition of sexual harassment, 
and that school districts should have the flexibility to investigate 
allegations of sexual harassment and impose disciplinary consequences 
in accordance with school district policies, as well as to determine 
what additional supports and services may be necessary to ensure a safe 
and welcoming environment for all students. Other commenters stated 
that an incident under Title IX may also trigger a need for an 
individualized education plan (IEP) team to meet to discuss behavior 
modifications.
    Some commenters requested that the final regulations clarify that 
segregation of elementary and secondary school students with 
disabilities from classroom settings should be rare and only allowed 
when in compliance with IDEA; that recipients must be made aware that a 
student with a disability does not have to be eligible for FAPE in 
order to be protected under the disability laws; and that, although 
IDEA may have additional requirements to provide FAPE, recipients must 
not be misled into thinking there are different standards for 
elementary and secondary school and postsecondary education 
environments when it comes to equal access to educational 
opportunities.
    Discussion: The Department reiterates that recipients, including 
elementary and secondary schools and postsecondary institutions, must 
meet obligations under the final regulations while also meeting all 
obligations under applicable disability laws including the IDEA, 
Section 504, and ADA. With respect to the intersection between these 
Title IX final regulations, and disability laws under which the 
Department has enforcement authority, the Department will continue to 
offer technical assistance to recipients. Recipients' obligation to 
comply both with these final regulations and with disability laws 
applies to all aspects of responding to a Title IX sexual harassment 
incident including investigation, discipline, and segregating 
elementary and secondary school students with disabilities from 
classroom settings. Nothing in these final regulations precludes or 
impedes a recipient from determining what services may be necessary to 
ensure a safe, welcoming environment for all students.
    The Department does not fully understand the commenter's concern 
that bullying will be ``carved out'' of the definition of Title IX 
sexual harassment. Section 106.30 defining sexual harassment for Title 
IX purposes does not reference bullying or carve it out. To the extent 
that conduct understood as ``bullying'' is also conduct on the basis of 
sex that meets the definition in Sec.  106.30, such conduct is also 
Title IX sexual harassment. Additionally, these final regulations 
expressly prohibit retaliation in Sec.  106.71, and to the extent that 
``bullying'' constitutes retaliation as defined in Sec.  106.71(a), 
such conduct is strictly prohibited.
    Changes: None.
    Comments: Some commenters asserted that students with disabilities 
are improperly accused and mistreated in Title IX hearings in the 
elementary and secondary school and college settings, where their due 
process rights are often ignored, and they are not treated equitably. 
One commenter expressed concern that the grievance procedures outlined 
in the proposed rules rely heavily on a written communication modality, 
which may mean that individuals with communication disorders and 
disabilities, may not have access to the complaint process and 
suggested that the proposed rules should be revised to include other 
modalities, such as oral, manual, augmentative and alternative 
communication (AAC) techniques, and assistive technologies, that allow 
individuals with disabilities and individuals who rely on AAC 
technology to use unaided systems such as gestures, facial expressions, 
or sign language, or they may use basic aided systems including picture 
boards or high-tech aided systems such as speech-generating devices. 
Several commenters expressed concern that Sec.  106.45(b)(7) 
(prescribing what a written determination regarding responsibility must 
include) does not adequately protect students with disabilities.
    Some commenters stated that institutions of higher education should 
coordinate with their offices of disability services to identify 
students with disabilities who are involved in Title IX proceedings 
(while respecting student privacy rights), and disseminate Title IX 
information in ways that are accessible to all students (including 
website accessibility, and provided in plain language for students with 
intellectual disabilities). Commenters stated that electronic file 
sharing may create barriers for students with disabilities to review 
the materials confidentially, and that the proposed rules require 
documents in writing and other processes that are not accessible to 
many students with disabilities.
    Commenters stated that the final regulations should require 
recipients to be on notice that they must consider the unique needs of 
students with disabilities throughout the entire Title IX process, not 
just during an emergency removal determination (referring to Sec.  
106.44(c)). Some commenters specifically requested that recipients be 
instructed to provide training to any officials involved in Title IX 
proceedings (including any faculty or staff with reporting obligations 
under Title IX, and, per some commenters, campus police officers and 
per other commenters, all elementary and secondary school employees) 
that explicitly includes information about how to meet the needs of 
students with disabilities, the various ways in which students with 
invisible disabilities may behave as a complainant or respondent in a 
Title IX proceeding, and the intersection of Title IX, the ADA, and the 
IDEA. Similarly, commenters requested that the final regulations 
require schools to ensure that pre-existing resource guides for 
students involved in Title IX proceedings also include specialized 
resources for students with invisible disabilities.
    Other commenters stated that institutions for higher education are 
not providing their faculty and staff with the necessary training for 
them to identify and accommodate the unique needs of students with 
invisible disabilities if one of these students were to become involved 
in a Title IX proceeding, as either a complainant or respondent. These 
commenters argued that as to prevention, due process, and supportive 
measures, there are numerous advantages in recognizing and addressing 
the intersection between students with disabilities and sexual

[[Page 30498]]

harassment, both for alleged perpetrators and alleged victims.
    Commenters asserted that failure of a student to access disability 
services can result in the complainant or respondent being placed at a 
distinct disadvantage during the Title IX proceedings. Commenters 
suggested that one way to connect the university's disability services 
with the Title IX office might be to have students who may need 
accommodations to provide advance permission for a disciplinary office 
to consult with the disability office, should the student be subjected 
to a disciplinary proceeding, thereby alerting the Title IX office of 
the student's disability and ensuring the student's disability rights 
are protected. Other commenters suggested that the Title IX office 
should provide all students with a notification form at the beginning 
of the process informing the student that if the student has a 
documented disability, the student may have the right to accommodations 
during the Title IX process, for example by modifying a university's 
enrollment intake form to include the option: ``If you are ever a party 
in any disciplinary proceeding on campus, do you give permission for 
the discipline officers to be given information about your disability 
and for the disability office to be notified?'' Related to that waiver, 
some commenters requested that the Department instruct each school to 
properly inform students of their right to inform their parents about 
their involvement in a Title IX proceeding, and any additional 
ramifications that may arise from their decision to waive their 
confidentiality rights so as to ensure that any students exercise of 
such a waiver is done in an informed manner.
    Commenters also stated that the Department should expand the 
proposed rules to provide explicit support for complainants and 
respondents with disabilities, for example by allowing the presence of 
a ``support person'' separate and apart from the student's Title IX 
advisor. Some commenters requested that the final regulations specify 
that recipients have an affirmative duty to communicate the nature of 
the allegation and inquire whether a person needs an accommodation in a 
way that people with an intellectual disability can understand and 
respond, and that campus police enforcing Title IX must be trained on 
how to interact with students with disabilities in ways that are not 
harmful to the learning environment.
    Some commenters stated that at small institutions of higher 
education there is a conflict of interest if the Title IX investigator 
is also the ADA compliance officer, which diminishes the protection of 
students with disabilities.
    Some commenters stated that many colleges' and universities' Title 
IX offices do not have accessible facilities for students.
    Some commenters requested the Department consider how allowing 
parties to review even evidence the investigator deems irrelevant 
(Sec.  106.45(b)(5)(vi)) could result in disclosure of private 
disability-related information.
    Some commenters requested that other specific disability 
accommodations be described in the final regulations including:
     accessible formatting of all written and recorded based 
documentation based upon the person's individually specific needs;
     adding language about accessible formatting of materials 
distributed by the recipient regarding Title IX information and 
relevant local resources;
     the live hearing portion of this document should account 
for individuals with disabilities by guaranteeing accessible technology 
when separate room and same room hearings are conducted;
     requiring recipients to offer reasonable accommodations to 
complainants who are unable to submit a written complaint due to, for 
example, a physical disability;
     acknowledging that disability-related accommodations may 
be necessary for any part of the proceeding that requires use of 
technology (such as the evidence review (Sec.  106.45(b)(5)(vi)) and 
testimony provided via video (Sec.  106.45(b)(6)(i)).
    Discussion: To the extent that commenters asserted that students 
with disabilities are improperly accused of Title IX violations due to 
the accused person having a disability, the Department notes that the 
definition of Title IX sexual harassment includes an element that the 
allegations constitute conduct that is ``objectively offensive,'' and 
that the Supreme Court has stated that application of the ``severe, 
pervasive, and objectively offensive'' portion of the definition 
``depends on a constellation of surrounding circumstances, 
expectations, and relationships . . . including, but not limited to, 
the ages of the harasser and the victim . . . .'' \1757\ The Department 
believes that any disability of the person accused (or of the person 
making the allegation) is also part of the ``surrounding 
circumstances'' to be taken into consideration when evaluating whether 
conduct meets the definition of sexual harassment. Even when conduct 
committed by a respondent with a disability constitutes sexual 
harassment (e.g., because the conduct constitutes sexual assault, or 
because the conduct is severe, pervasive, and objectively offensive), 
the Department does not second guess whether the recipient imposes a 
disciplinary sanction on a respondent who is found responsible for 
sexual harassment, and thus recipients have flexibility to carefully 
consider the kind of consequences that the recipient believes should 
follow in a situation where a respondent with a disability 
unintentionally committed conduct that constituted sexual harassment, 
perhaps not realizing the effect of the conduct on the victim. For 
example, the recipient could determine that counseling or behavioral 
intervention is more appropriate than disciplinary sanctions for a 
particular respondent. (We note that in such a circumstance, the 
complainant is still entitled to remedies designed to restore or 
preserve the complainant's equal educational access.)
---------------------------------------------------------------------------

    \1757\ Davis, 526 U.S. at 651 (internal quotation marks and 
citations omitted).
---------------------------------------------------------------------------

    To the extent that commenters have observed, or believe, that 
students with disabilities accused of sexual harassment often have 
their due process rights ignored, the final regulations do not permit 
disciplinary sanctions against any respondent for Title IX sexual 
harassment without the recipient first following the Sec.  106.45 
grievance process, which incorporates fundamental principles of due 
process.
    In response to the commenter's concern that the grievance process 
relies heavily on a written communication modality, the Department 
reiterates that recipients must meet obligations under these final 
regulations while also meeting all obligations under applicable 
disability laws including the IDEA, Section 504, and ADA. Recipients' 
obligations to comply both with these final regulations and with 
disability laws applies to all aspects of responding to a Title IX 
sexual harassment incident including throughout the Sec.  106.45 
grievance process.
    The Department is unsure what commenters mean by asserting that 
Sec.  106.45(b)(7)(ii) (prescribing what a written determination 
regarding responsibility must include) does not adequately protect 
students with disabilities; this provision, along with Sec.  106.45 in 
its entirety, applies equally to any party in a grievance process 
including individuals with disabilities,

[[Page 30499]]

and recipients are required to comply with Sec.  106.45(b)(7)(ii) and 
to comply with applicable disability laws, including with respect to 
accessibility of written materials. Similarly, recipients must comply 
with Sec.  106.45(b)(5)(vi) requiring recipients to send evidence to 
the parties while also complying with legal obligations under 
disability laws. The Department revised Sec.  106.45(b)(5)(vi) to 
specifically provide that the recipient may provide the party and the 
party's advisor, if any, the evidence subject to inspection and review 
in an electronic format or a hard copy format, and recipients should 
provide such evidence in a format that complies with any applicable 
disability laws.
    The Department appreciates commenters urging the Department to put 
recipients on notice that recipients must comply with applicable 
disability laws in all aspects of a Title IX response including 
throughout the grievance process, and not only with respect to removals 
under Sec.  106.44(c), and the Department takes this opportunity to 
emphasize to recipients that such compliance is required.
    The Department declines to impose new requirements through these 
final regulations that recipients train employees on how to meet the 
needs of students with disabilities or training on recognizing the way 
students with invisible disabilities may behave as a complainant or 
respondent in a Title IX proceeding, or on the intersection of Title 
IX, the ADA, and the IDEA, or to provide resource guides that include 
specialized resources for students with invisible disabilities. Nothing 
in these final regulations precludes a recipient from providing 
employee training with respect to students with disabilities. In 
response to commenter's concerns about bias against various groups 
(including bias stemming from negative stereotypes), we have revised 
Sec.  106.45(b)(1)(iii) to require Title IX Coordinators, 
investigators, decision-makers, and persons who facilitate an informal 
resolution process to be trained on how to serve impartially and avoid 
conflicts of interest and bias; such impartiality and avoidance of bias 
protect all parties including individuals with disabilities. As to 
questions regarding the intersection of Title IX, the ADA, and IDEA, 
the Department will continue to offer technical assistance to 
recipients who must comply with multiple laws under which the 
Department has enforcement authority.
    The Department acknowledges commenters' concerns noting that a 
student with a disability may need to interact with separate offices 
within a recipient's organizational structure (e.g., a disability 
services office, and a Title IX office). The Department emphasizes that 
recipients must comply with obligations under disability laws with 
respect to students, employees, or participants in a Title IX reporting 
or grievance process situation, regardless of the recipient's internal 
organizational structure. These final regulations, which concern sexual 
harassment, do not address a recipient's obligations under the ADA and 
do not preclude recipients from notifying students involved in a Title 
IX grievance process or at the beginning of any Title IX process that 
the students may have rights to disability accommodations.
    With respect to allowing a ``support person'' to accompany a person 
with a disability during a grievance process, apart from an advisor of 
choice under Sec.  106.45(b)(5)(iv), recipients must comply with any 
disability laws that require such an accommodation, and Sec.  
106.71(a), which requires recipient to keep confidential the identity 
of any individual who has made a report or complaint of sex 
discrimination, including any individual who has made a report or filed 
a formal complaint of sexual harassment, any complainant, any 
individual who has been reported to be the perpetrator of sex 
discrimination, any respondent, and any witness, except as permitted by 
FERPA, required by law, or as necessary to conduct the grievance 
process. Thus, a recipient may be required under disability laws to 
permit a person with a disability to be accompanied throughout a 
grievance process by a support person, in addition to the party's 
advisor of choice. Similarly, nothing in these final regulations 
precludes a recipient from affirmatively inquiring of each party 
whether any disability accommodation is needed, and recipients must 
comply with applicable legal obligations under disability laws 
including Child Find mandates under the IDEA.
    The Department notes that Sec.  106.45(b)(1)(iii) prohibits 
conflicts of interest on the part of Title IX Coordinators, 
investigators, decision-makers, or persons who facilitate informal 
resolution processes; however, the Department declines to prematurely 
judge whether or not a Title IX Coordinator also serving as a school's 
ADA compliance officer presents a prohibited conflict of interest 
because such a determination is fact-specific. The Department will 
offer technical assistance to recipients regarding compliance with the 
final regulations.
    The Department reiterates that recipients must comply with 
applicable disability laws in all aspects of a Title IX response 
including with respect to intake of reports and formal complaints, 
written communications with complainants and respondents, review of 
evidence under Sec.  106.45(b)(5)(vi), and holding a live hearing with 
parties in separate rooms or holding live hearings virtually using 
technology in postsecondary institutions under Sec.  106.45(b)(6)(i). 
With respect to the intersection between these Title IX final 
regulations, and disability laws under which the Department has 
enforcement authority, the Department will continue to offer technical 
assistance to recipients.
    Changes: The Department has revised Sec.  106.45(b)(1)(iii) to 
include in the required training how to serve impartially, including by 
avoiding prejudgment of the facts at issue, conflicts of interest, and 
bias. The Department revised Sec.  106.45(b)(5)(vi) to provide that 
recipients must send to each party and the party's advisor, if any, the 
evidence subject to inspection and review in an electronic format or a 
hard copy, and we have removed the reference to a file sharing 
platform.
    Comments: Some commenters stated that recipients should be expected 
to carefully analyze their data on complainants and respondents with 
disabilities, and consider that information with respect to 
disproportionate outcomes and discipline for students by disability, 
race, sexual identity, sexual orientation, age, and other important 
demographics.
    Discussion: The Department does not disagree that analyzing data 
about a recipient's Title IX grievance processes could provide the 
recipient with useful information that could help the recipient self-
evaluate the fairness and effectiveness of its processes as well as the 
impact on various demographics of the recipient's educational 
community. The Department, however, declines to burden recipients with 
the obligation to collect and analyze such data in these final 
regulations, the scope of which was defined by the Department's 
proposals in the NPRM. These final regulations do not prohibit a 
recipient from engaging in such self-study or collecting data that will 
be useful for an assessment. The Department believes that these final 
regulations provide robust protections for complainants and respondents 
and that by complying with these final regulations, recipients will not 
discriminate on the basis of sex and will provide equal access to its 
education program or activities such that any self-assessment is not 
required in order to appropriately enforce Title IX, though self-
assessment may be a

[[Page 30500]]

valuable tool for recipients to undertake in the recipient's 
discretion.
    Changes: None.

Miscellaneous

Executive Orders and Other Requirements

    Comments: Some commenters expressed concerns about the process for 
commenting electronically, both in terms of how the Department 
processed comments it received electronically and the functionality of 
the electronic system for submitting public comments, regulations.gov. 
With respect to how the Department processed comments, some commenters 
contended that the Department, in the NPRM, committed to posting, 
before the comment period ended, all of the public comments it 
received. One of these commenters referred to Administrative Conference 
of the United States (ACUS) recommendation 2018-6 (see 84 FR 2139) that 
encouraged agencies to allow access to comments already received to 
help inform others who are developing comments on the same proposed 
rule. With respect to the electronic commenting process, at least one 
commenter stated that the technical problems that regulations.gov 
experienced during the comment period prevented them from accessing the 
proposed rules as a reference for informing their public comment and 
that, consequently, there was a question as to the fairness of the 
commenting process.
    Some commenters expressed concern that the manner in which people 
must submit their comments is discriminatory, for example by race, 
class, educational status, ability status, and more. Commenters argued 
that the process for submitting public comments assumes that people 
write in English-Standardized English, leaving no room for dialects and 
vernaculars like African American Vernacular English, much less non-
English languages, and assumes that people have a detailed 
understanding of the law and can comprehend the inaccessible way in 
which the proposed regulations were written.
    Discussion: The Department did not commit to electronically posting 
all of the comments it received before the comment period closed, and 
there is no legal requirement to do so. The language the commenter 
referred to is language we use in all of our NPRMs designed to inform 
interested parties that we provide avenues for review of all public 
comments, but that language did not specify that all comments received 
(and not yet posted) would be available to review on regulations.gov 
before the comment period closed. The ACUS recommendation the commenter 
cited explicitly qualifies that an agency should post comments during 
the comment period ``to the extent this is possible.'' Reviewing and 
processing comments before they are posted takes time and resources, 
and the Department did so as expeditiously as possible.
    Regarding the concern that the NPRM was not available on 
regulations.gov on February 13-14 because of a server failure, the NPRM 
was available on regulations.gov from November 29, 2018, through 
February 12, 2019, and on February 15, the day when the comment period 
reopened. The Department originally provided a 60-day comment period 
for its proposed regulations that began on November 29, 2018, and the 
Department extended the comment period for two days until January 30, 
2019,\1758\ and also reopened the comment period for one day on 
February 15, 2019.\1759\ We note that the outage the commenter referred 
to did not last for the entirety of February 13 and 14 and that 
www.regulations.gov was available for significant parts of both days. 
Additionally, the NPRM was available on other websites for viewing to 
help inform the development of comments, such as 
www.federalregister.gov and the Department's website, on February 13-
14, 2019. The comment period for the proposed rules spanned a total of 
63 days, which is longer than the 60-day comment period referenced in 
section 6(a) of Executive Order 12866.
---------------------------------------------------------------------------

    \1758\ 84 FR 409.
    \1759\  84 FR 4018.
---------------------------------------------------------------------------

    The Department followed applicable legal requirements for the 
manner in which public comments were submitted. The Department reviewed 
and considered comments submitted by any person regardless of race, 
class, educational status, ability status, or any other characteristic. 
The Department reviewed and considered comments regardless of whether a 
comment utilized language reflecting various dialects or vernaculars 
and regardless of whether a comment evidenced a detailed understanding 
of the law.
    Changes: None.
    Comments: At least one commenter stated that the Department failed 
to consult with the Department of Justice, the Small Business 
Administration (SBA), small entities, Native American tribes, and State 
and local officials pursuant to various laws and policies. 
Specifically, the commenter stated that Executive Order 12250 required 
the Department to obtain approval from the Attorney General before we 
published the NPRM. The commenter also stated that the Department did 
not transmit a copy of the NPRM to the SBA's Office of Advocacy (``SBA 
Advocacy'') which is required under Sec.  603(a) of the Regulatory 
Flexibility Act. The commenter also claimed that the Department did not 
use of any of the reasonable techniques required under 5 U.S.C. 609(a) 
to assure that small entities have been given an opportunity to 
participate in the rulemaking. Similarly, the commenter stated that the 
Department did not consult with tribal officials under Sec.  5(a) of 
Executive Order 13175, which the commenter believed was required 
because the NPRM proposed to regulate when and how tribally-operated 
schools will investigate and adjudicate complaints of sexual 
harassment. Lastly, the commenter stated that the Department did not 
consult with State and local officials as required under executive 
order. This commenter referenced a process that the Department 
allegedly used in 2000 to provide interested State and local elected 
officials opportunities for consultation through a biweekly electronic 
newsletter and to provide the National School Boards Association and 
others with opportunities for consultation through a listserv 
notification. The commenter stated that there was no language in the 
NPRM suggesting the Department complied with its internal process. In 
addition, the commenter stated that Executive Order 13132 requires the 
Department to consult with elected State and local officials ``early in 
the process of developing the proposed regulation'' under Sec.  
6(c)(1), and to publish a federalism summary impact statement under 
Sec.  6(c)(2).
    Discussion: The Assistant Attorney General for Civil Rights 
reviewed the proposed rules and approved the NPRM to be published in 
the Federal Register in accordance with Executive Order 12250. 
Additionally, SBA Advocacy had the opportunity to review the NPRM and 
submitted a public comment, which we have addressed in this preamble, 
specifically in the ``Regulatory Flexibility Act'' subsection of the 
``Regulatory Impact Analysis'' section of this document. Furthermore, 5 
U.S.C. 609(a) applies only if a rule has a significant economic impact 
on a substantial number of small entities, and we have certified that 
this rule does not have such an impact. Even if Sec.  609(a) applied, 
that section provides that one of the five techniques available to 
provide small entities the opportunity to participate in the rulemaking 
is to

[[Page 30501]]

publish the proposed rules in publications likely to be obtained by 
small entities. We published the NPRM in the Federal Register and 
specifically provided small entities the opportunity to comment on the 
proposed regulations. With regard to Native American tribal 
consultation, we note that the comment we received was not from a 
Native American tribe or from a representative of a Native American 
tribe. Nevertheless, section IV of the Department's Consultation and 
Coordination with American Indian and Alaska Native Tribal Governments 
policy,\1760\ provides that the Department will conduct tribal 
consultation regarding actions that have a substantial and direct 
effect on tribes. The policy lists specific programs that serve Native 
American students or that have a specific impact on tribes and provides 
that for those programs, regulatory changes or other policy initiatives 
will often affect tribes, but for other programs that affect students 
as a whole, but are not focused solely on Native American students, the 
Department will include Native American tribes in the outreach normally 
conducted with other stakeholders who are affected by the action. Here, 
the action affects all students and entities in the U.S. equally and is 
not specifically impacting only tribes. Thus, Native American tribes 
had the same opportunity to comment on the proposed rules as other 
stakeholders.
---------------------------------------------------------------------------

    \1760\ U.S. Dep't. of Education, Consultation and Coordination 
with American Indian and Alaska Native Tribal Governments Policy 
(``Tribal Governments Policy'') 2, https://www2.ed.gov/about/offices/list/oese/oie/tribalpolicyfinal.pdf.
---------------------------------------------------------------------------

    As previously noted in the ``General Support and Opposition for the 
Grievance Process in Sec.  106.45'' section and the ``Section 106.44(c) 
Emergency Removal'' subsection of the ``Additional Rules Governing 
Recipients' Responses to Sexual Harassment'' subsection of the 
``Section 106.44 Recipient's Response to Sexual Harassment, Generally'' 
section of this preamble, at least one commenter stated that schools 
receiving funds from the Bureau of Indian Affairs are required to 
provide greater due process protections for students pursuant to Part 
42 of Title 25 of the Code of Federal Regulations than what these final 
regulations require. Part 42 of Title 25 ``govern[s] student rights and 
due process procedures in disciplinary proceedings in all Bureau-funded 
schools'' and sets forth specific due process procedures and 
protections for all disciplinary proceedings in these schools.\1761\ 
The Department applauds the Bureau of Indian Affairs for requiring 
robust due process protections in disciplinary proceedings for students 
in Bureau-funded schools. To the extent that the regulations governing 
Bureau-funded schools may include due process protections that exceed 
what these final regulations require, such additional due process 
protections do not contradict these final regulations. There is no 
direct conflict between what these final regulations require and what 
the regulations governing Bureau-funded schools require, and nothing 
prevents a Bureau-funded school from complying with both these final 
regulations and the regulations in Part 42 of Title 25. Accordingly, 
these final regulations ``would [not] have a substantial direct effect 
on Indian educational opportunities'' such as to necessitate 
consultation with tribes under section IV of the Department's 
Consultation and Coordination with American Indian and Alaska Native 
Tribal Governments policy.\1762\
---------------------------------------------------------------------------

    \1761\ 25 CFR 42.1.
    \1762\ Tribal Governments Policy at 2.
---------------------------------------------------------------------------

    The same commenter who supported the Department's proposal for 
increased due process protection asserted that all students, and not 
just Native American students, should receive the due process 
protections required for Bureau-funded schools and suggested that not 
providing more robust due process protections may violate Title VI. The 
Department appreciates the commenter's concern but notes that Title IX 
does not apply only to students in schools, whether elementary and 
secondary schools or postsecondary institutions. Not all recipients of 
Federal financial assistance are schools; recipients covered under 
Title IX include, for instance, museums and libraries that operate 
education programs or activities. Additionally, these final regulations 
specifically address sexual harassment and do not affect all student 
disciplinary proceedings. Title IX applies to all education programs or 
activities that receive Federal financial assistance,\1763\ and impacts 
students, employees, and third parties. These final regulations provide 
the most appropriate due process protections for a wide variety of 
recipients and individuals whom Title IX affects. The Department is not 
discriminating based on race, color, or national origin in promulgating 
these final regulations, but is requiring due process protections that 
will affect students, employees, and third parties in an education 
program or activity of recipients that may, for example, include 
schools, libraries, museums, and academic medical centers, among other 
types of recipients.
---------------------------------------------------------------------------

    \1763\ 20 U.S.C. 1681(a).
---------------------------------------------------------------------------

    Some commenters' suggestion that Executive Order 13132, 64 FR 43255 
(Aug. 10, 1999), requires the Department to have consulted with State 
and local officials before issuing the NPRM is inaccurate. That Order's 
goal was ``to guarantee the Constitution's division of governmental 
responsibilities between the Federal government and the states'' and to 
``further the policies of the Unfunded Mandates Reform Act.'' \1764\ 
The purpose of the Unfunded Mandates Reform Act is, in its own words, 
``to end the imposition, in the absence of full consideration by 
Congress, of Federal mandates on State, local, and tribal governments 
without adequate Federal funding, in a manner that may displace other 
essential State, local, and tribal governmental priorities.'' \1765\ In 
other words, when the Federal government imposed an unfunded mandate on 
the States (including local governments) and tribal governments 
carrying federalism implications and had effects on State and local 
laws, this Order required the Federal government to consult with State 
and local authorities. However, these final regulations are entirely 
premised as a condition of receiving Federal funds, and the recipient 
has the right to forgo such funds if the recipient does not wish to 
comply with these final regulations. Additionally, this Order states: 
``To the extent practicable and permitted by law, no agency shall 
promulgate any regulation that has federalism implications, that 
imposes substantial direct compliance costs on State and local 
governments, and that is not required by statute'' unless the agency 
takes a few steps.\1766\ The use of ``and'' as well as ``to the extent 
practicable'' indicate that each of these requirements must be met 
before the agency is compelled to take those additional steps. These 
final regulations do not compel a recipient to accept Federal financial 
assistance. Moreover, these final regulations are consistent with Title 
IX and other Federal statutory provisions. Thus, Executive Order 13132 
may not apply to these final regulations. But even if it were 
applicable here, the Department has complied with it by carefully 
considering and addressing comments from State and local officials and 
issuing, through this preamble, a federalism summary impact statement.
---------------------------------------------------------------------------

    \1764\ 2 U.S.C. 1501 et seq.
    \1765\ 2 U.S.C. 1501(2).
    \1766\ Executive Order 13132, Sec.  6(b) (emphasis added).

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

[[Page 30502]]

    Finally, Executive Order 13132 does not provide a specific method 
to consult with State and local officials, and the Department is not 
required to use a bi-weekly electronic newsletter or listserv to 
provide opportunities for consultation with State and local officials 
or any other entity. Instead, the Department has carefully considered 
and addressed comments from State and local officials in promulgating 
these final regulations.
    Changes: None.
    Comments: Some commenters stated that the Department's NPRM did not 
disclose enough of its scientific and technical findings and studies it 
relied on, which prevented the public from having the opportunity to 
assess the accuracy of the Department's methodology and conclusions. 
These commenters asserted that, in this respect, the Department 
violated the Administrative Procedure Act (``APA''), 5 U.S.C. 701 et 
seq., and Executive Order 13563. Specifically, these commenters stated 
that the NPRM's Regulatory Impact Analysis (RIA) mentioned that the 
Department examined public Title IX reports and investigations at 55 
IHEs nationwide and drew some conclusions from this analysis but the 
Department did not specify which 55 IHEs were the subject of this 
review or make the reports publicly available. These commenters had a 
similar objection to the reference in the NPRM's RIA to a sample of 
public Title IX documents reviewed by the Department because the 
Department did not make those documents available for review by the 
public during the comment period. According to these commenters, the 
failure to specify this information made it impossible for members of 
the public to determine whether any of the information was erroneous or 
whether the conclusions the Department drew from this review may be 
improper. These commenters had similar objections to the NPRM's RIA 
discussion of different simulations of its model, including various 
footnotes within the RIA without making any of those models or the 
underlying data used to develop those models publicly available. These 
commenters believed that the NPRM's Initial Regulatory Flexibility 
Analysis (IFRA) similarly failed to disclose information it referred to 
in two places: (1) The Department's prior analyses that showed that 
enrollment and revenue are correlated for proprietary institutions; and 
(2) the Department's analysis of a number of data elements available in 
the Integrated Postsecondary Education Data System (IPEDS). 
Additionally, these commenters stated that the NPRM's RIA and IRFA did 
not ascertain or account for the potential inaccuracy of some data the 
Department relied on, namely, the Civil Rights Data Collection (CRDC) 
and Clery Act data, which the commenters stated have accuracy 
deficiencies. According to the commenters, the Department's reliance on 
this data without acknowledgement of the shortcomings for this purpose 
conflicts with the Department's responsibilities under its Information 
Quality Act (IQA) Guidelines.
    Discussion: With respect to the analysis of the Title IX reports 
from 55 IHEs, the reports we reviewed are publicly available from IHEs' 
websites and were not determinative of any assumptions or methodologies 
used within the NPRM's RIA. As clearly discussed in the NPRM, the 
Department was concerned that the data available from the U.S. Senate 
Subcommittee on Financial and Contracting Oversight report may have 
only captured a subset of incidents that would otherwise be captured in 
the definition of ``sexual assault'' in the proposed rule. Our review 
of these reports confirmed that IHEs appeared to be including a much 
wider range of offenses in their Title IX enforcement than simply those 
that might be reasonably categorized as ``sexual violence'' by the 
subcommittee report. Members of the public did not need to review these 
specific reports to assess the veracity or reasonableness of that 
analysis. Indeed, a review of any Title IX report could have provided 
insight into whether it was likely that ``sexual misconduct'' and 
``sexual violence'' were interchangeable terms and whether the former 
term subsumed activities not captured under the latter. In addition, 
our review informed our assumption that incidents of sexual misconduct 
only represented half of all current Title IX investigations. Again, 
members of the public did not need access to the specific reports we 
reviewed to ascertain the quality of this assumption. A review of any 
Title IX reports or their own experiences in enforcing Title IX would 
have provided insight into whether this assumption was reasonable. As 
discussed in the NPRM, the Department reasonably concluded that the 
term ``sexual violence'' used in the Subcommittee report was likely a 
subset of all incidents of ``sexual misconduct'' and that incidents of 
``sexual misconduct'' were a subset of all incidents investigated under 
Title IX. The documents reviewed served only to independently validate 
those logical conclusions.\1767\ In light of the public availability of 
the data, any interested party had the opportunity to assess the logic 
presented in the NPRM for the decisions regarding how to code the data. 
Further, if the general public disagreed with our decision regarding 
how to code the data, the analysis provided alternative impact analyses 
that would have resulted from a different set of decisions regarding 
how to code those data in Table 1 from our Sensitivity Analysis in the 
NPRM. Finally, we note that the Title IX ``reports'' referenced in the 
NPRM's RIA at 83 FR 61485 and the Title IX ``documents'' referenced at 
83 FR 61487 are the same documents.
---------------------------------------------------------------------------

    \1767\ 83 FR 61485.
---------------------------------------------------------------------------

    With respect to the models and underlying data that we used in the 
NPRM's RIA, we referenced the underlying data, such as the U.S. Senate 
Subcommittee on Financial and Contracting Oversight report. The 
footnotes in this discussion of the NPRM's RIA explained the formulas 
and methods we used to make our calculations. We did not employ any 
calculations that we did not explain in the text of the document. We 
believe that the NPRM's RIA included the specificity necessary to allow 
others to reproduce our analysis and test our conclusions.
    With respect to the NPRM's IRFA and our reference to our prior 
analyses, we explained later in that section that our prior analyses 
were based on our review of revenue and enrollment figures (including 
Carnegie Size Definitions, IPEDS institutional size categories, and 
total FTE) from IPEDS data. Revenue and enrollment data are publicly 
available through IPEDS, so any interested party was capable of 
analyzing this data and offering evidence to challenge our conclusion 
that enrollment and revenue are correlated for proprietary 
institutions. The NPRM's IRFA also referred to a prior rulemaking 
docket ED-2017-OPE-0076i, as a resource for the public to find more 
information on the Department's previous research on proprietary 
institutions.
    With respect to our use of CRDC and Clery Act data, we used the 
most appropriate data to which we have access. In addition, we 
specifically invited public comment on other data sources that would 
help inform our rulemaking. Specifically, we compared the Clery Act 
data to the U.S. Senate Subcommittee on Financial and Contracting 
Oversight report to try to understand how the number of investigations 
is correlated with the various types of IHEs. As described in the NPRM, 
this analysis informed our estimates that the proposed regulations

[[Page 30503]]

would decrease the number of investigations conducted per year. 
Ultimately, the Clery Act data, data from the Subcommittee report, and 
our logic and assumptions were made public for review. The public had 
ample opportunity to challenge those assumptions and provide 
alternative analyses. The CRDC data served the same purpose but as a 
tool for estimating the number of investigations within LEAs. We are 
not aware of data that is more reliable than the CRDC and Clery Act 
data that we could have used to inform our analysis, and no commenters 
provided us with an alternative high-quality comprehensive data 
source.\1768\
---------------------------------------------------------------------------

    \1768\ Although the Department may designate certain classes of 
scientific, financial, and statistical information as influential 
under its Guidelines, the Department does not designate the 
information in the Regulatory Impact Analysis in these final 
regulations or in its NPRM as influential and provides this 
information to comply with Executive Orders 12866 and 13563. U.S. 
Dep't. of Education, Information Quality Guidelines (Oct. 17, 2005), 
https://www2.ed.gov/policy/gen/guid/iq/iqg.html.
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter stated that this rulemaking should not be 
exempt from Executive Order 13771 because the cost savings are 
inaccurate and exaggerated.
    Discussion: As a result of the revisions to the proposed 
regulations, we agree that Executive Order 13771 applies to these final 
regulations and provide our revised economic analysis in support of 
this conclusion in the ``Regulatory Impact Analysis'' section of this 
preamble.
    Changes: The Department provides a revised economic analysis in the 
``Regulatory Impact Analysis'' section of this preamble, which includes 
the application of Executive Order 13771 to these final regulations.
    Comments: One commenter asserted that the law requires the 
Department to analyze the distributional effects of the proposed rules 
and that the Department did not provide this analysis. This commenter 
believed that if the Department analyzed distributional effects, it 
would have found that the proposed rules would widen existing 
inequities for groups that already face considerable challenges, namely 
young people, women, pregnant or parenting students, undocumented 
students, students of color, individuals with disabilities, and LGBTQ 
students.
    Discussion: We note that the commenter cited, as support for its 
comment, a congressional bill from 2012 that has not been passed into 
law. Nevertheless, the NPRM's RIA analyzed how the proposed rules would 
impact different types of institutions. We provided significant detail 
on the different impacts the proposed rules would have on two-year 
institutions as compared to four-year institutions and large 
institutions as compared to small institutions. We appreciate the 
concern about distributional effects among the different types of 
students, but it is unclear how these final regulations would have a 
differential impact on the types of students the commenter mentioned, 
for the purposes of our cost-benefit analysis. We note that the 
proposed rules, and these final regulations, treat all students equally 
with respect to age, sex, pregnancy or parenting status, citizenship or 
legal residency status, race and ethnicity, disability status, sexual 
orientation, and gender identity. The Department explained that the 
NPRM's RIA was not attempting to quantify the economic effects of 
sexual harassment or sexual assault because the NPRM's RIA analysis was 
limited to the economic effects of the proposed regulations.\1769\
---------------------------------------------------------------------------

    \1769\ 83 FR 61462, 61485.
---------------------------------------------------------------------------

    Changes: None.
    Comments: At least one commenter argued that the NPRM is unlawful 
because 20 U.S.C. 1098a (Sec.  492 of the Higher Education Act of 1965, 
as amended (``HEA'')) requires the Department to engage in negotiated 
rulemaking for the proposed regulations, which it did not do. In that 
section, Congress used the phrase ``pertaining to this subchapter'' 
when describing regulations for which negotiated rulemaking was 
required. Because the proposed regulations would affect all 
institutions that receive funds under Title IV of the HEA, commenters 
argued they are regulations ``pertaining to'' Title IV, for which 
negotiated rulemaking is required. One commenter proposed that the 
Department undergo a negotiated rulemaking, simplify the NPRM, and 
appoint a committee of practitioners (excluding lawyers and special 
interest groups) to discuss best practices and make recommendations.
    Commenters also argued that the HEA's master calendar requirement 
(20 U.S.C. 1089(c)(1)) should apply to these regulations, meaning that 
regulations that have not been published by November 1 prior to the 
start of the award year will not become effective until the beginning 
of the second award year after such November 1 date, July 1. One 
commenter also stated that they had submitted a Freedom of Information 
Act (FOIA) request with respect to the Department's interpretations of 
this and the negotiated rulemaking requirement and asserted that the 
Department did not respond in a satisfactory manner. This commenter 
contended that this unsatisfactory response prejudiced the commenter's 
ability to make arguments on these points, and that the comment period 
should be reopened after the Department fully responds.
    Discussion: The negotiated rulemaking requirement in section 492 of 
the HEA applies only to regulations that implement the provisions of 
Title IV of the HEA, all of which relate to student financial aid 
programs or specific grants designed to prepare individuals for 
postsecondary education programs. Specifically, Title IV contains seven 
parts: (1) Part A--Grants to Students at Attendance at Institutions of 
Higher Education; (2) Part B--Federal Family Education Loan Program; 
(3) Part C--Federal Work-Study Programs; (4) Part D--William D. Ford 
Federal Direct Student Loan Program; (5) Part E--Federal Perkins Loans; 
(6) Part F--Need Analysis; and (7) Part G--General Provisions Relating 
to Student Financial Assistance Programs.
    The requirements of section 492 do not apply to every Department 
regulation that impacts institutions of higher education; instead, they 
apply exclusively to regulations that implement Title IV of the HEA, in 
other words, that ``pertain to'' Title IV of the HEA. They do not apply 
to programs authorized by other titles of the HEA, such as the 
discretionary grant programs in Title VI, or the institutional aid 
programs in Titles III and V, all of which impact many institutions 
that also participate in the Title IV student aid programs. Title IX is 
not part of the HEA, rather it is part of the Education Amendments of 
1972, and provides, generally, that no person in the United States 
shall, on the basis of sex, be excluded from participation in, be 
denied the benefits of, or be subjected to discrimination under any 
education program or activity receiving Federal financial 
assistance.\1770\ Further, we believe the notice and comment rulemaking 
process for these final regulations was appropriate and adequate and 
that public comment provided the Department with the recommendations of 
practitioners and experts, and decline to undertake the negotiated 
rulemaking process suggested by one commenter.
---------------------------------------------------------------------------

    \1770\ 20 U.S.C. 1681(a).
---------------------------------------------------------------------------

    Similarly, the Title IV master calendar requirements do not apply 
to the Title IX regulations. The HEA provides that ``any regulatory 
changes initiated by the Secretary affecting the programs under [Title 
IV] that have not been published in final form by November 1 prior to 
the start of the award year shall not become

[[Page 30504]]

effective until the beginning of the second award year after such 
November 1 date.'' \1771\ While the Department has acknowledged that 
these Title IX regulations would impact institutions that participate 
in the Title IV student assistance programs, among others, that impact 
does not trigger the master calendar requirement. The requirement 
applies exclusively to regulations that affect Title IV programs. Title 
IX is not a ``program under title IV.''
---------------------------------------------------------------------------

    \1771\ 20 U.S.C. 1089(c)(1).
---------------------------------------------------------------------------

    Finally, we note that the sufficiency of the Department's response 
to any individual FOIA request is beyond the scope of this rulemaking, 
and decline to comment on the content of such a request or its 
relationship to these final regulations. Since, as explained above, the 
HEA's negotiated rulemaking and master calendar requirements are 
inapplicable to these regulations, it was unnecessary to discuss them 
in the NPRM in order to ensure the public's meaningful ability to 
comment.
    Changes: None.
    Comments: Commenters argued that the proposed regulations would 
create inconsistencies between the Department's approach to Title IX 
and that of the over 20 other agencies that enforce Title IX. They 
stated that more than 20 of those other agencies adopted their 
identical final Title IX regulations in 2000 based on a common NPRM. 
Because the Department's new NPRM would depart from the common rule and 
other agencies may choose to maintain their existing regulations, 
commenters asserted that institutions could be subjected to conflicting 
obligations, and the Department itself could face difficulties in 
handling complaints. The commenters noted that the Regulatory 
Flexibility Act, Executive Order 12866, and Executive Order 13563 all 
require coordination between agencies and work to reduce 
inconsistencies. Further, one commenter cited examples of why it is not 
sufficient to predict or expect that other agencies will amend their 
Title IX regulations to comport with the Department's revisions. For 
instance, they pointed to the Department's single-sex Title IX 
regulations, which were adopted in 2006 but with which other agencies 
have yet to come into conformance.
    Discussion: The Department understands the importance of cross-
agency coordination, and the effect such coordination can have on 
stakeholders. While the Department cannot control what actions other 
agencies take to ensure this coordination with respect to their 
regulations, we have taken the necessary steps to effectuate such 
coordination for these final regulations. The specifics of other 
rulemaking proceedings, while perhaps instructive, do not have direct 
bearing on this rulemaking proceeding.
    As commenters acknowledged, the Department included in the NPRM an 
initial regulatory flexibility analysis (IRFA). As discussed above, 
consistent with the requirements of Executive orders 12866 and 13563, 
the Department coordinated with other agencies by sharing the proposed 
regulations with the Office of Management and Budget (OMB) prior to 
publication of the NPRM. Through the interagency review process, OMB 
provided other Federal agencies, including SBA Advocacy and agencies 
that also administratively enforce Title IX, an opportunity to review 
and comment on the proposed regulations before they were published. 
This process is designed to avoid regulations that are inconsistent, 
incompatible, or duplicative with those of other agencies, and to 
promote coordination among agencies. Additionally, as noted above, the 
Assistant Attorney General for Civil Rights reviewed the proposed 
regulations and approved them to be published in the Federal Register 
in accordance with Executive Order 12250.
    Changes: None.
    Comments: Some commenters asserted that the proposed regulations 
will not withstand judicial scrutiny because they were developed under 
a pretextual rationale and are thus arbitrary and capricious. These 
commenters refer to public statements made by several Administration 
officials that they say demonstrate that those officials harbor sexist 
and discriminatory beliefs which motivated the content of the proposed 
regulations. The commenters say that this, together with the lack of 
data and lack of reasoned explanation for departure from past practice, 
makes it apparent that the proposed regulations are a pretext for 
implementing discriminatory policy. For instance, one commenter stated 
the Department had not produced any evidence to support its belief that 
these measures are needed to address sex-based discrimination, or even 
any evidence that sex-based discrimination exists against respondents 
in Title IX proceedings.
    Discussion: In order to permit meaningful review of an agency 
decision, an agency must disclose the basis of its action.\1772\ The 
Department is doing so through the rulemaking process for this agency 
action. Neither the Department, nor the Administration, nor its 
officials, have acted in bad faith or exhibited improper behavior with 
respect to these Title IX regulations.
---------------------------------------------------------------------------

    \1772\ See Dep't. of Commerce v. New York, 139 S. Ct. 2551, 2573 
(2019).
---------------------------------------------------------------------------

    Instead, the Department has been clear about our reasons for the 
changes we proposed in the NPRM, and revisions made in these final 
regulations, to Title IX implementing regulations. As explained more 
thoroughly in the ``Adoption and Adaption of the Supreme Court's 
Framework to Address Sexual Harassment'' section, we seek to better 
align Title IX implementing regulations with the text and purpose of 
Title IX and Supreme court precedent and other case law, which will 
help to ensure that recipients understand their legal obligations, 
including what conduct is actionable as sexual harassment under Title 
IX, the conditions that activate a mandatory response by recipients, 
and particular requirements that such a response must meet so that 
recipients protect the rights of their students to access education 
free from sex discrimination. Recognizing that every situation is 
unique, we wish to ensure that schools provide complainants with clear 
options and honor the wishes of the complainant (i.e., the person 
alleged to be the victim) about how a recipient should respond to the 
situation. Where a complainant elects to file a formal complaint 
alleging sexual harassment, we intend for the final regulations to 
ensure that a recipient's investigation be fair and impartial, applying 
strong procedural protections for both parties, which will produce more 
reliable factual outcomes, furthering Title IX's non-discrimination 
mandate consistent with constitutional protections and fundamental 
fairness.
    The Department believes that it has provided all the data required 
to be included in the NPRM.\1773\ We received over 124,000 public 
comments on the proposed regulations. We have reviewed and considered 
those comments and have made changes to the proposed regulations, 
reflected in these final regulations and discussed throughout this 
preamble, in response to many of those comments.
---------------------------------------------------------------------------

    \1773\ 83 FR 61464.
---------------------------------------------------------------------------

    The Department collected extensive anecdotal evidence through this 
notice-and-comment rulemaking that demonstrates the provisions in these 
final regulations are appropriate to address sex discrimination in the 
form of sexual harassment. Personal stories from both complainants and 
respondents are anecdotal evidence that the Department received through 
public

[[Page 30505]]

comment. Complainants generally would like recipients to provide 
supportive measures, at a minimum, and to allow complainants to retain 
some control over the response to any report of sexual harassment. Some 
complainants are also concerned that biased school-level Title IX 
proceedings have deprived complainants of due process protections. 
Similarly, many respondents specifically requested a grievance process 
with robust due process protections prior to the imposition of 
disciplinary sanctions.
    Changes: None.
    Comments: Some commenters asserted that various provisions of the 
NPRM violate the Administrative Procedure Act (``APA''), 5 U.S.C. 701 
et seq., because they reflect a departure from past Department 
regulations, guidance, policies or practices, without adequate reasons, 
explanations, or examination of relevant data. Commenters cited various 
legal authorities to substantiate an agency's responsibility to explain 
the basis for its decision making, particularly when changing position 
on a given issue. They asserted that the NPRM is arbitrary and 
capricious and will not receive Chevron deference. One commenter stated 
that the Department failed to explain which stakeholders were consulted 
on particular issues, and why their views on any change were 
persuasive.
    Commenters stated that the NPRM offered only conclusory statements 
for its dramatic changes in the Department's longstanding 
interpretation of Title IX as expressed in Department guidance 
documents. Commenters argued that the Department failed to provide 
``adequate reasons'' or ``examine relevant data'' to support its 
proposed regulations. Commenters argued that this also was illustrated 
by the data relied on in the NPRM's RIA; commenters asserted that the 
Department predicated its cost calculations on limited data sets--like 
the CRDC and the Clery Act data sets--that have significant quality 
issues, explicitly acknowledged data constraints in developing its cost 
baseline, and provided an incomplete and unconvincing outline of the 
costs and benefits resulting from the implementation of the proposed 
regulations. According to the commenters, these facts indicate that the 
Department failed to provide the necessary ``rational connection'' 
between the underlying facts and its decision to engage in its proposed 
rulemaking.
    Commenters also contended that the Department failed to consider 
reliance interests. Commenters stated that students and educational 
institutions have relied on the previous standards, expressed in 
Department guidance, to vindicate their statutory rights and to set 
their disciplinary procedures, respectively.
    Discussion: We agree with commenters that an agency must give 
adequate reasons for its decisions, and that when an agency changes its 
position, it must display awareness that it is changing position and 
show that there are good reasons for the new policy. In explaining its 
changed position, an agency must be cognizant that longstanding 
policies may have engendered serious reliance interests that must be 
taken into account. In such cases it is not that further justification 
is demanded by the mere fact of policy change, but that a reasoned 
explanation is needed for disregarding facts and circumstances that 
underlay or were engendered by the prior policy.\1774\ On the other 
hand, the agency need not demonstrate that the reasons for the new 
policy are better than the reasons for the old one; it suffices that 
the new policy is permissible under the statute, that there are good 
reasons for it, and that the agency believes it to be better.\1775\
---------------------------------------------------------------------------

    \1774\ See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 
2125-26 (2016) (quoting FCC v. Fox Television Stations, Inc., 556 
U.S. 502 (2009)).
    \1775\ Fox, 556 U.S. at 515. An agency's interpretation must 
also comport with procedural and substantive requirements in order 
to receive Chevron deference. See United States v. Mead Corp., 533 
U.S. 218, 227 (2001); Chevron, U.S.A., Inc. v. Natural Res. Defense 
Council, Inc., 467 U.S. 837 (1984).
---------------------------------------------------------------------------

    Throughout the NPRM and this document, we provide such reasons, 
discussion, and justification for our changes, both from the status quo 
and from the NPRM. These reasons, discussions, and justifications 
address, as appropriate, data cited by commenters. In the ``Adoption 
and Adaption of the Supreme Court's Framework to Address Sexual 
Harassment'' section of this preamble, we discuss in particular our 
reasoning for adopting--but adapting for administrative enforcement--
the Supreme Court's three-part framework describing the conditions that 
trigger a recipient's obligation to respond to sexual harassment, 
including the definition of actionable sexual harassment, the actual 
knowledge requirement, and the deliberate indifference standard. We 
discuss rationale for, and changes to, the Sec.  106.45 grievance 
process in the ``Role of Due Process in the Grievance Process'' section 
of this preamble. We understand that recipients have relied on our 
prior guidance and discuss these and other changes from the 
Department's past guidance in the foregoing and other applicable 
sections throughout this preamble.
    With respect to the comments about the Clery Act and CRDC data, as 
discussed in more detail above, we used the most appropriate data to 
which we had access. The costs and benefits of these final regulations, 
and our detailed analysis in determining them, are discussed in the 
``Regulatory Impact Analysis'' section of this preamble.
    The NPRM discussed the various stakeholders the Department heard 
from in developing the proposed regulations (83 FR 61463-61464), and in 
developing these final regulations and revising the NPRM the Department 
considered the input of the over 124,000 comments we received on the 
NPRM. All of these stakeholders' and commenters' views were considered 
in development of the NPRM and these final regulations, and their input 
was taken into account with respect to each issue addressed in these 
final regulations.
    Changes: None.

Length of Public Comment Period/Requests for Extension

    Comments: Several commenters requested for the NPRM comment period 
to be extended, stating that commenters needed additional time to make 
their views known. Some commenters asked that the Department also 
publicize the extension of the comment period. One commenter stated 
that the law requires a minimum 60-day public comment period but did 
not specify which law imposed that requirement. Another commenter 
stated that the public comment period coincided with many colleges' 
winter breaks. In addition to asking for an extension of the comment 
period, one commenter asked that the Department schedule public 
hearings at schools and colleges campuses throughout the country to 
encourage additional input from students, teachers, administrators, and 
advocates. One commenter argued that the Department inappropriately 
limited public commentary on the proposed regulations and failed to 
extend the comment period, making the proposal arbitrary and capricious 
under the Administrative Procedure Act (``APA''), 5 U.S.C. 701 et seq. 
One commenter thanked the Department for allowing a lengthy comment 
period on this significant NPRM.
    Discussion: The Department published the NPRM in the Federal 
Register on November 29, 2018 (83 FR 61462), for a 60-day comment 
period, with a deadline of January 28, 2019.

[[Page 30506]]

Following technical issues with the Federal eRulemaking portal, the 
Department extended the public comment period for an additional two 
days, through January 30, 2019, to ensure that the public had at least 
60 days in total to submit comments on the Department's NPRM using that 
portal (84 FR 409). In an abundance of caution, to the extent that some 
users may have experienced technical issues preventing the submission 
of comments using the Federal eRulemaking Portal, the Department again 
reopened the comment period for one day, on February 15, 2019 (84 FR 
4018). The Department also publicized each of the two extensions on its 
website, prior to their publication in the Federal Register.
    The APA does not mandate a specific length for an NPRM comment 
period, but states that agencies must ``give interested persons an 
opportunity to participate'' in the proceeding.\1776\ This provision 
has generally been interpreted as requiring a ``meaningful opportunity 
to comment.'' \1777\ Executive Order 12866 states that a meaningful 
opportunity to comment on any proposed regulation, in most cases, 
should include a comment period of not less than 60 days.\1778\ Case 
law interpreting the APA generally stipulates that comment periods 
should not be less than 30 days to provide adequate opportunity to 
comment.\1779\
---------------------------------------------------------------------------

    \1776\ 5 U.S.C. 553(c).
    \1777\ E.g., Asiana Airlines v. F.A.A., 134 F.3d 393, 396 (DC 
Cir. 1998) (internal citations omitted).
    \1778\ Exec. Order No. 12866, Section 6(a); see also Exec. Order 
13563, Section 2(b).
    \1779\ See, e.g., Nat'l Retired Teachers Ass'n v. U.S. Postal 
Serv., 430 F. Supp. 141, 147 (D.D.C. 1977).
---------------------------------------------------------------------------

    In this case, commenters had 60 days, with extensions of time to 
account for the potential effects of technical issues, to submit their 
comments. The Department received over 124,000 public comments, many of 
which addressed the substance of the proposed regulations in great 
detail, indicating that the public in fact had ample opportunity to 
participate in the proceeding. Although some of the 60-day period 
overlapped in part with many colleges' winter breaks, students were 
able to submit comments regardless of whether school was in session. 
The Department believes it provided sufficient, meaningful opportunity 
for the public to comment on the proposed regulations, and that the 
public in fact did meaningfully participate in this rulemaking.
    Changes: None.

Conflicts With First Amendment, Constitutional Confirmation, 
International Law

    Comments: First, a group of commenters argued that the NPRM is 
unlawful because it violates the First Amendment rights of 
institutions. Traditionally, these commenters contended, academic 
institutions have retained the freedom to determine for themselves `` 
`on academic grounds who may teach, what may be taught, how it shall be 
taught, and who may be admitted to study.' '' \1780\ As a result, the 
commenters argued, the NPRM infringes upon the First Amendment rights 
of institutions of higher education to determine their Title IX 
policies and procedures with sufficient latitude and autonomy because 
the proposed rules lack a compelling governmental interest and/or are 
not sufficiently narrowly tailored.
---------------------------------------------------------------------------

    \1780\ Commenters cited: Sweezy v. New Hampshire, 354 U.S. 234, 
263 (1957) (Frankfurter, J., concurring) (quoting The Open 
Universities in South Africa 10-12).
---------------------------------------------------------------------------

    Second, some commenters suggested that Secretary Elisabeth DeVos 
lacks the authority to issue the NPRM and to promulgate the final 
regulations because Vice President Michael Pence cast the deciding vote 
to confirm the Secretary after the Senators were equally divided on her 
confirmation; \1781\ they contended that the Vice President is not 
constitutionally authorized to break a tie for a cabinet member's 
confirmation, thereby rendering Secretary DeVos' Senate confirmation 
itself invalid and rendering her actions legally unauthorized.
---------------------------------------------------------------------------

    \1781\ Commenters cited: U.S. Senate, Vote: On the Nomination 
(Confirmation Elisabeth Prince DeVos, of Michigan, to be Secretary 
of Education), Feb. 7, 2017.
---------------------------------------------------------------------------

    Third, some commenters contended that the NPRM violates the United 
States' international law obligations, including the International 
Covenant on Civil and Political Rights (``ICCPR''), which prohibits 
discrimination on the basis of sex, and its commitments under the 2030 
Agenda for Sustainable Development (``Sustainable Development Goals'' 
or ``Goals'').
    Discussion: First, we appreciate some commenters' concerns that the 
NPRM transgresses upon recipients' First Amendment rights and share 
commenters' commitment to the importance of interpreting Title IX in a 
manner that respects constitutional rights, including the rights of 
recipients under the First Amendment. However, we disagree that the 
NPRM, or the final regulations, impermissibly infringe on recipients' 
First Amendment rights. These final regulations do not address what a 
recipient may teach or how the recipient should teach. These final 
regulations also do not dictate who may be admitted to study or who may 
be permitted by a recipient to teach. When a recipient follows a 
grievance process that complies with Sec.  106.45 and finds a 
respondent responsible for sexual harassment, these final regulations 
do not second guess whether or how the recipient imposes disciplinary 
sanctions on the respondent. Indeed, these final regulations expressly 
provide in Sec.  106.44(b)(2) that the Assistant Secretary will not 
deem a recipient's determination regarding responsibility to be 
evidence of deliberate indifference by the recipient, or otherwise 
evidence of discrimination under Title IX by the recipient, solely 
because the Assistant Secretary would have reached a different 
determination based on an independent weighing of the evidence. 
Accordingly, recipients retain discretion as to determinations of 
responsibility for sexual harassment, and the Department expressly 
defers to a recipient's judgment with respect to disciplinary action 
against a respondent whom the recipient has determined to be 
responsible for sexual harassment. These final regulations do not 
impact a recipient's decisions about who to admit to study, who to hire 
to teach, or what curricula a recipient uses for instructional 
materials. Even with respect to disciplinary action, these final 
regulations only apply to how a recipient responds to alleged sexual 
harassment as defined in Sec.  106.30, and not to how a recipient might 
respond (including with disciplinary action) to alleged misconduct that 
does not constitute sex discrimination in the form of sexual harassment 
under Title IX. Recipients also may determine who may be admitted to 
study and teach at their schools and who may remain to study and teach 
at their schools through disciplinary sanctions, with respect to both 
sexual harassment and non-sexual harassment misconduct. We have revised 
Sec.  106.45(b)(3)(i) to clarify that any dismissal of a formal 
complaint of sexual harassment or any allegations therein does not 
preclude action under another provision of the recipient's code of 
conduct. Thus, recipients remain free to address conduct that is not 
covered under Title IX and these final regulations. These final 
regulations also clearly provide in Sec.  106.6(d)(1) that nothing in 
Part 106 of Title 34 of the Code of Federal Regulations requires a 
recipient to restrict rights that would otherwise be protected from 
government action by the First Amendment of the U.S. Constitution, and 
recipients are not

[[Page 30507]]

required to infringe upon the First Amendment rights of students and 
employees.
    As an initial matter, commenters did not (and could not) claim an 
absolute First Amendment right of an academic institution to conduct 
its Title IX proceedings however it wishes. Title IX proceedings have 
long been part of the largely-undisputed regulatory framework.\1782\ As 
a result, this NPRM has not suddenly crossed a line making suspect its 
First Amendment validity. These final regulations are the product of 
compliance with rulemaking under the Administrative Procedure Act 
(``APA''), 5 U.S.C. 701 et seq., including robust public comment. 
Furthermore, neither Title IX nor the final regulations governs the 
recipients' speech but only their conduct in exchange for their 
accepting Federal financial assistance. But even if commenters were to 
argue that the NPRM infringes on recipients' freedom of association, 
that argument would fail because compelling governmental interests and 
narrowly tailored means to achieve those interests may qualify that 
right. Similarly, the recipient's freedom to define and engage with its 
campus with respect to sexual harassment and assault is also subject to 
qualification. It is not an absolute right, and these final 
regulations, furthering the purposes underlying Title IX, appropriately 
qualify it.
---------------------------------------------------------------------------

    \1782\ 34 CFR 106.8(b) has for decades required recipients to 
``adopt and publish grievance procedures that provide for the prompt 
and equitable resolution of student and employee complaints'' of sex 
discrimination under Title IX. Department guidance has, since 1997, 
considered sexual harassment a form of sex discrimination under 
Title IX to which those prompt and equitable grievance procedures 
must apply, and has since 2001 interpreted the ``prompt and 
equitable grievance procedures'' in regulation to mean 
investigations of sexual harassment allegations that provide for 
``Adequate, reliable, and impartial investigation of complaints, 
including the opportunity to present witnesses and other evidence.'' 
2001 Guidance at 20.
---------------------------------------------------------------------------

    Controlling precedents demonstrate the foregoing. The Supreme Court 
has never held that the right to punish or exclude non-member students 
and employees by potentially harming their future careers and 
reputations is an unfettered right of speech or association. In Roberts 
v. United States Jaycees,\1783\ the Supreme Court held that the freedom 
of association could be limited ``by regulations adopted to serve 
compelling state interests, unrelated to the suppression of ideas, that 
cannot be achieved through means significantly less restrictive of 
associational freedoms.'' Likewise, in Boys Scouts of America v. Dale, 
the Supreme Court permitted the Boy Scouts to exclude LGBTQ members as 
an exercise of the Scouts' freedom of speech but only if their 
exclusion was largely necessary for the group to advocate a particular 
viewpoint: ``[t]he freedom of expressive association . . . could be 
overridden by regulations adopted to serve compelling state interests, 
unrelated to the suppression of ideas, that cannot be achieved through 
means significantly less restrictive of associational freedoms.'' 
\1784\ In the Title IX context, though, students and employees are not 
``members'' in the conventional sense and their inclusion does not 
therefore infringe on an institution's freedom of speech or of 
association.\1785\ The NPRM, furthermore, has justified a compelling 
governmental interest in providing respondents accused of serious 
misconduct with a fair, truth-seeking grievance process, which is a 
pillar of the American legal tradition, and the final regulations 
further that interest in a manner that equally elevates the compelling 
governmental interest in ensuring that recipients provide remedies to 
victims of sexual harassment, ensures that complainants also benefit 
from the strong procedural protections set forth in the Sec.  106.45 
grievance process, and requires recipients to offer supportive measures 
to complainants with or without the filing of a formal complaint that 
initiates a grievance process. These interests are intertwined, since 
due process protections benefit both parties by permitting the parties 
to meaningfully participate in the grievance process and increase the 
accuracy of outcomes, thereby ensuring that complainants victimized by 
sexual harassment receive remedies designed to restore or preserve 
equal access to education while also ensuring that respondents are not 
treated as perpetrators of sexual harassment deserving of separation 
from educational opportunities unless that conclusion is the result of 
a fair, truth-seeking process. Yet another reason the right to exclude 
is not as strong here as it was deemed to be in Dale is that if a group 
excludes a member because of the member's status, the member is not 
ruined for life and no one will hold that against the excluded party. 
But if an inferior--typically, a student or employee--ends up being 
excluded because of an opprobrious moral failing like a sexual 
harassment violation, their prospects are ruined for a long time, 
perhaps for life. Similarly, if a recipient wrongfully determines that 
a complainant was not victimized by sexual harassment and on that basis 
does not provide remedies, the victim may suffer loss of educational 
opportunities that may derail the victim's education and future for a 
long time, perhaps for life. This, too, affirms the final regulations' 
compelling interest in protecting the integrity of a Title IX grievance 
process against a First Amendment challenge.
---------------------------------------------------------------------------

    \1783\ 468 U.S. 609, 623 (1984).
    \1784\ 530 U.S. 640, 647-48 (2000).
    \1785\ Id.
---------------------------------------------------------------------------

    The language the commenters cite from Justice Frankfurter's 
concurrence in Sweezy--some institutional latitude to determine ``on 
academic grounds who may teach, what may be taught, how it shall be 
taught, and who may be admitted to study''--that only Justice Harlan 
joined and that did not command controlling effect, is also inapposite 
on its own terms.\1786\ Those were not Justice Frankfurter's words or 
even words he was quoting as having authoritative force. He was merely 
quoting in passing an excerpt from Open Universities in South Africa 
10-12, A statement of a conference of senior scholars from the 
University of Cape Town and the University of the Witwatersrand, 
including A. v. d. S. Centlivres and Richard Feetham, as Chancellors of 
the respective universities.\1787\ For First Amendment purposes, 
Justice Frankfurter specifically refused to equate a State legislative 
inquiry into the contents of the appellant's lecture and into his 
knowledge of the Progressive Party and its members, with the Open 
Universities excerpt.\1788\ Further, Justice Frankfurter pointed out 
that certain specific kinds of ``inroads on legitimacy must be resisted 
at their incipiency.'' \1789\ This was non-binding dictum in the 
concurrence and has no bearing on the final regulations at hand.\1790\
---------------------------------------------------------------------------

    \1786\ Sweezy v. New Hampshire, 354 U.S. 234, 263 (Frankfurter, 
J., concurring).
    \1787\ See id.
    \1788\ See id.
    \1789\ Id.
    \1790\ See, e.g., Cent. Va. Cmty. Coll. v. Katz, 546 U.S. 356, 
363 (2006) (``[W]e are not bound to follow our dicta in a prior case 
in which the point now at issue was not fully debated.'').
---------------------------------------------------------------------------

    In Keyishian v. Board of Regents of the University of the State of 
New York,\1791\ the Supreme Court stated: ``Our Nation is deeply 
committed to safeguarding academic freedom, which is of transcendent 
value to all of us and not merely to the teachers concerned. That 
freedom is therefore a special concern of the First Amendment, which 
does not tolerate laws that cast a pall of orthodoxy over the 
classroom.'' The final regulations intentionally protect academic 
freedom by carefully adopting and adapting the Davis standard in the 
second prong of conduct defined as

[[Page 30508]]

sexual harassment in Sec.  106.30, as explained in the ``Sexual 
Harassment'' subsection of the ``Section 106.30 Definitions'' section 
of this preamble.
---------------------------------------------------------------------------

    \1791\ 385 U.S. 589, 603 (1967).
---------------------------------------------------------------------------

    The most analogous case here is Rumsfeld v. Forum for Academic and 
Institutional Rights, Inc.\1792\ Rumsfeld suggests that the final 
regulations are consistent with the First Amendment. There, the Supreme 
Court upheld the Federal Solomon Amendment, which had conditioned law 
schools' receipt of Federal financial assistance on their giving equal 
access to military recruiters on par with all other recruiters when 
institutions instead wished to send a message of disapproval of 
military policies on social issues. In fact, the ``message'' inherent 
in the law schools' refusal to let the military recruiters in was 
stronger in many respects than any ``message'' that a recipient can 
assert here. Nonetheless, the Rumsfeld Court determined that ``the 
compelled speech [t]here [wa]s plainly incidental to the . . . 
[Solomon] Amendment's regulation of conduct.'' \1793\ So it is here; 
Congress has determined through passage of Title IX that recipients of 
Federal financial assistance must not permit sex discrimination to 
deprive any person of educational opportunities; with respect to sexual 
harassment as a form of sex discrimination, the Supreme Court has 
interpreted Title IX to require recipients to respond to sexual 
harassment that occurs between its students, and employees, under 
certain conditions, and the Department has determined that appropriate 
adoption, with adaptations, of the Supreme Court's framework 
effectuates Title IX's non-discrimination mandate consistent with 
constitutional rights (including free speech, academic freedom, and due 
process of law) and consistent with fundamental fairness. Furthermore, 
like the conduct at issue in Rumsfeld, the conduct here is not so 
``inherently expressive'' that it deserves First Amendment 
protection.\1794\ There is nothing particularly expressive about a 
recipient's desire to deny parties to a Title IX proceeding sufficient 
due process protections before reaching determinations regarding 
responsibility. In the same way that the law schools' First Amendment 
freedom of expressive association was not violated in Rumsfeld, here 
too recipients' freedom to expressively associate with students and 
employees is not violated. It is true that under Rumsfeld, the freedom 
of expressive association protects against laws that make ``group 
membership less attractive'' because such laws adversely ``affect[] the 
group's ability to express its message.'' \1795\ But that is not the 
case here because the final regulations strive to ensure that a fair 
process will make the institution more attractive, or at least not less 
attractive, because the institution will be responsible for clearly, 
transparently, and fairly responding to sexual harassment allegations 
(including by always offering supportive measures to a complainant 
regardless of whether sexual harassment allegations are ever 
investigated or proved through a grievance process). Accordingly, the 
Department disagrees with commenters' argument that the final 
regulations infringe on the First Amendment rights of recipients, 
including academic freedom.
---------------------------------------------------------------------------

    \1792\ 547 U.S. 47 (2006).
    \1793\ Id. at 62.
    \1794\ Id. at 64-66.
    \1795\ Id. at 69.
---------------------------------------------------------------------------

    Second, we disagree with commenters' concerns that Secretary DeVos 
might not be constitutionally empowered to issue the NPRM or the final 
regulations because the Vice President lacked the constitutional 
prerogative to cast the tie-breaking vote to confirm the Secretary. 
Because the Vice President is constitutionally empowered to cast the 
tie-breaking vote in executive nominations, President Donald J. Trump's 
nomination of Secretary DeVos properly was confirmed by the United 
States Senate; and Secretary DeVos therefore may function as the 
Secretary of Education. Article I, Section 3, cl. 4 of the Constitution 
did confer on the Vice President the power to break ties when the 
Senators' votes ``be equally divided.'' Secretary DeVos' service as the 
United States Secretary of Education has therefore been lawful; no pall 
of constitutional doubt on account of her confirmation is cast on 
Secretary DeVos' service.
    A commenter largely relies on one piece of scholarship to advance 
this claim.\1796\ But that source principally concerns the Vice 
President's power to break Senate ties on judicial nominations, not 
Executive ones. Morse does not develop robustly an argument about the 
latter. Moreover, Morse acknowledges there is nothing ``conclusive'' 
about Executive nominations, and argues only that Vice Presidents are 
without constitutional authority to break ties in judicial 
nominations.\1797\ Morse cites three examples from 1806 (Vice President 
George Clinton voted to confirm John Armstrong as the Minister to 
Spain), 1832 (Vice President Calhoun cast a tie-breaking vote that 
defeated the nomination of Martin Van Buren as Minister to Great 
Britain), and 1925 (Vice President Charles G. Dawes almost cast the 
tie-breaking vote to confirm President Calvin Coolidge's nominee for 
attorney general), respectively.\1798\ But even the evidence in this 
source points to the fact that the Vice President was always considered 
to hold the tie-breaking vote for Executive nominations (indeed for all 
Senate votes). Particularly the nineteenth century examples do seem to 
show that historically Vice Presidents have enjoyed this widely-
acknowledged power.\1799\ Due to this time period's chronological 
proximity to the Constitution's ratifying generation, this is strong 
evidence that the original public meaning of the Constitution, left 
undisputed by intervening centuries of practice, confers the power of 
breaking Senate ties in executive nominations on Vice Presidents.
---------------------------------------------------------------------------

    \1796\ See Samuel Morse, The Constitutional Argument Against the 
Vice President Casting Tie-Breaking Votes in the Senate, 2018 
Cardozo L. Rev. de novo 142 (2018) (herein, ``Morse,'' ``the 
source'' or ``the article'').
    \1797\ See d. at 151.
    \1798\ See id. at 150-51.
    \1799\ See id. at 143-44 fn.4.
---------------------------------------------------------------------------

    As for the argument that the placement of this power in Article I, 
which generally deals with Congress, meant the power was limited to the 
legislative votes, this misconceives the context in which the provision 
exists: that section concerns length of Senate tenure, the roles of 
congressional personnel, and the Senate's powers, including that of 
trying impeachments.\1800\ It is not limited to what the Senate can 
accomplish but rather encompasses matters about who in the Senate gets 
to do what, concerning all Senate business. In this section of Article 
I, the Vice President, as President of the Senate, accordingly is given 
the power to break ties. This was the most logical section in which to 
put this prerogative of the Vice President. And given how the power to 
cast tie-breaking votes is left open-ended, the most natural inference 
is that it applies to all Senate votes in all Senate business. 
Consequently, this evidence refutes the commenter's claim about 
Secretary DeVos' confirmation because: (1) This section in Article I 
simply concerned the functions and prerogatives of the Senate and its 
various officers, including the Vice President's general tie-breaking 
authority; and (2) that the Senate's power to try impeachments is 
included in the same section means that this section is just as 
applicable to Executive nominations as to anything else (that neither 
the commenter nor the article is

[[Page 30509]]

challenging).\1801\ This analysis shows that Morse's argument, and 
transitively that of the commenter, is flawed.
---------------------------------------------------------------------------

    \1800\ See generally U.S. Const. art. I, Sec.  3.
    \1801\ But see Morse 144, 146.
---------------------------------------------------------------------------

    Furthermore, one commenter's reference to Senator King's statement 
in 1850 as supporting a view that could lead anyone in the present day 
to conclude Secretary DeVos's Senate confirmation is invalid is 
unhelpful because the overwhelming weight of text and history is 
against the merits of this pronouncement. Even at that time, King 
appears to have been one of a handful of people, if that, to express 
this view. It was not a widely accepted view, before or after.
    Finally, a commenter's citation to John Langford's Did the Framers 
Intend the Vice President to Have a Say in Judicial Appointments? 
Perhaps Not \1802\ and the reference to the Federalist Papers also 
misconceive the constitutional text, design, and history. To be sure, 
Alexander Hamilton in The Federalist No. 69 does contrast the New York 
council at the time,\1803\ with the Senate of the national government 
the Framers were devising (``[i]n the national government, if the 
Senate should be divided, no appointment could be made'').\1804\ The 
commenter's overall point is unpersuasive. As an initial matter, the 
Federalist Papers were persuasion pieces to convince the People (as 
sometimes addressed to ``The People of New York,'' etc.) to accept the 
Constitution. Therefore, while the Papers supply a framework and 
understanding closely linked to the Constitution's text by some of the 
authors of that text, it does not supplant the original public meaning 
of that text itself. Moreover, all The Federalist No. 69 refers to is 
that the President himself may not cast the tie-breaking vote in the 
Senate. The Vice President, however, may do so, for he is not the 
Executive.
---------------------------------------------------------------------------

    \1802\ John Langford, Did the Framers Intend the Vice President 
to Have a Say in Judicial Appointments? Perhaps Not, Balkanization 
(Oct. 5, 2018).
    \1803\ See ``The Federalist No. 69,'' at 389 (Alexander 
Hamilton) (Clinton Rossiter ed., Mentor 1999) (1961) (``[I]f the 
[New York] council be divided, the governor can turn the scale, and 
confirm his own nomination.'').
    \1804\ Id.
---------------------------------------------------------------------------

    For much of our Nation's history, including when the Equally 
Divided Clause was written as part of the original Constitution, the 
President and the Vice President could be from different parties and 
fail to get along. This Clause gave the Vice President some power and 
authority independent of the President. There is an important context 
behind this. Prior to the Twelfth Amendment's adoption, the Vice 
Presidency was awarded to the presidential candidate who won the second 
most number of votes, regardless of which political party he 
represented.\1805\ In the 1796 election, for instance, voters chose the 
Federalist John Adams to be President.\1806\ But they chose Thomas 
Jefferson, a Democratic-Republican, as the election's runner-up, so 
Jefferson became Adams' Vice President.\1807\ Under the Twelfth 
Amendment, however, usually Presidents and Vice Presidents are elected 
on the same ticket. But this does not change the Equally Divided 
Clause, preserving the Vice President's authority to break Senate ties 
for executive and other nominations. As a result, any argument to the 
contrary necessarily ignores the constitutional text, design, and 
history.
---------------------------------------------------------------------------

    \1805\ See U.S. Const. amend. XII.
    \1806\ See Jerry H. Goldfeder, Election Law and the Presidency, 
85 Fordham L. Rev. 965, 974-75 (2016).
    \1807\ See id.
---------------------------------------------------------------------------

    Langford and the commenter at issue also misunderstand what 
Hamilton actually said in The Federalist No. 76, which was: ``A man 
disposed to view human nature as it is . . . will see sufficient ground 
of confidence in the probity of the Senate, to rest satisfied, not only 
that it will be impracticable to the Executive to corrupt or seduce a 
majority of its members, but that the necessity of its co-operation, in 
the business of appointments, will be a considerable and salutary 
restraint upon the conduct of that magistrate.'' \1808\ Langford reads 
this to mean that Alexander Hamilton was saying the Executive needs a 
majority of the voting Senators present to confirm nominations.
---------------------------------------------------------------------------

    \1808\ ``The Federalist No. 76,'' at 395 (Alexander Hamilton) 
(Clinton Rossiter ed., Mentor 2003).
---------------------------------------------------------------------------

    Langford's interpretation wrongly conflates the necessary with the 
sufficient, for Hamilton was saying only that it will suffice for a 
President to get a nominee confirmed with a majority of the Senate, not 
that he needs a Senate majority to get his nominee confirmed. This is 
all the more so because Senators may abstain from voting, so not every 
Senator will necessarily be voting. Doubtless Hamilton knew this 
because the Constitution gives the Senate the power to decide its own 
rules, including quorum, see U.S. Const. art. I, Sec.  5, cl. 1, 2, and 
therefore, a President need not even ``corrupt or seduce'' a majority 
of the full Senate, The Federalist No. 76; all he needs is a majority 
of the voting Senators. Thus, Hamilton's phrasing indicates not 
precision but a common parlance. It is, accordingly, too slender a reed 
(outside the constitutional text, at that) for Langford to base much of 
his thesis on, providing no support for the commenter's argument.
    Langford is also incorrect in saying that ``the Framers situated 
the Senate's `advice and consent' powers in Article II, not Article 
I,'' where the Equally Divided Clause is located, means that the Vice 
President's tie-breaking power does not apply to nominations. This 
argument fails because, as noted earlier, it made more sense for the 
original Constitution's drafters and the ratifying generation to name 
the Vice President's tie-breaking power right in the same section of 
Article I when they were spelling out that he would be the President of 
the Senate. It is a limitation on his role as President of the Senate 
as well as his prerogative. Article II, by contrast, says what the 
President can do; and as already noted, when the original Constitution 
was ratified, the President and the Vice President were two different 
and often conflicting entities. Langford assumes the modern view that 
President and Vice President work hand in hand; that was not the 
original Constitution's presupposition, explaining why Langford's 
argument (and the commenter's) is flawed.
    Langford is also wrong to suggest that because ``the Framers 
explicitly guarded against a closely divided Senate by requiring a two-
thirds majority of Senators present to concur in order to consent to a 
particular treaty,'' this might show that: ``Perhaps the Framers 
assumed the default rule [of the Vice President's tie-breaking power] 
would apply whereby a tie goes to the Vice President; perhaps, instead, 
the Framers meant to provide for the possibility of a divided Senate, 
in which case the nomination would fail.'' However, the real reason for 
these placements is simple and has been alluded to earlier: The Treaty 
Clause belongs in Article II because the President is the first mover 
on treaties; the Senate's role is reactive. Also, the Vice President is 
a different actor from the President under the Constitution. This 
placement, therefore, has nothing to do with the Vice President's tie-
breaking power, which remains universally applicable across Senate 
floor votes. And even Langford is inconclusive about the reason for 
this placement and structure of keeping the Treaty Clause separate from 
the Equally Divided Clause.
    Therefore, the Constitution permits the Vice President to cast the 
tie-breaking vote for executive nominations. Vice President Pence 
constitutionally cast the tie-breaking vote to confirm President 
Trump's nomination of Secretary DeVos. The Secretary is a 
constitutionally appointed

[[Page 30510]]

officer functioning in her present capacity and suffers from no want of 
authority to issue the NPRM or to promulgate the final regulations on 
this or any other matter pertaining to the Department of Education.
    Third, we appreciate some commenters' concerns that the NPRM and 
the final regulations run afoul of the United States' international law 
obligations, including the ICCPR and the Sustainable Development Goals, 
but we disagree with those contentions.
    With respect to the ICCPR, both the text of Title IX and the goals 
and procedures the final regulations operationalize are similar to the 
ICCPR. As background, the ICCPR is a covenant professing to adhere to 
the principle that the ``inherent dignity and of the equal and 
inalienable rights of all members of the human family is the foundation 
of freedom, justice and peace in the world.'' \1809\ Monitored by the 
United Nations Human Rights Committee, the ICCPR is a multilateral 
treaty the United Nations General Assembly adopted in 1966, though it 
did not come into force until 1976. It is true that Article 2 of the 
ICCPR prohibits sex discrimination, but so does Title IX. To the extent 
there is any difference between what is expected under the ICCPR and 
what is expected under Title IX with respect to prohibiting sex 
discrimination, the Secretary must follow Title IX because when the 
United States Senate ratified the ICCPR, one of its formal reservations 
was that Article 2 ``of the Covenant [is] not self-executing.'' \1810\
---------------------------------------------------------------------------

    \1809\ Preamble, ICCPR.
    \1810\ See Principle III(1), U.S. reservations, declarations, 
and understandings, International Covenant on Civil and Political 
Rights, 138 Cong. Rec. S4781-01 (daily ed., April 2, 1992).
---------------------------------------------------------------------------

    This is in keeping with controlling Supreme Court precedent because 
while a treaty (such as the ICCPR) ``may constitute an international 
commitment, it is not binding domestic law unless Congress has enacted 
statutes implementing it or the treaty itself conveys an intention that 
it be `self-executing' and is ratified on that basis.'' \1811\ Under 
Foster and Medell[iacute]n, a treaty is ``equivalent to an act of the 
legislature,'' and therefore self-executing, when it ``operates of 
itself without the aid of any legislative provision.'' \1812\ Even if 
such intention were manifest in the ICCPR's text, the Senate's 
reservation would make short work of it. It follows that Article 2, 
which is the Covenant's principal relevant provision, is not binding on 
the United States. By contrast, the Department is directed and 
authorized by Congress to effectuate Title IX's non-discrimination 
mandate, pursuant to 20 U.S.C. 1682.
---------------------------------------------------------------------------

    \1811\ See Medell[iacute]n v. Texas, 552 U.S. 491 (2008) (citing 
Foster v. Neilson, 2 Pet. 253, 314 (1829), overruled on other 
grounds, United States v. Percheman, 7 Pet. 51 (1833)).
    \1812\ Foster, 2 Pet. at 314.
---------------------------------------------------------------------------

    On the merits, too, the commenter's argument is unavailing. The 
ICCPR's Article 2 states:
    1. Each State Party to the present Covenant undertakes to respect 
and to ensure to all individuals within its territory and subject to 
its jurisdiction the rights recognized in the present Covenant, without 
distinction of any kind, such as race, colour, sex, language, religion, 
political or other opinion, national or social origin, property, birth 
or other status.
    2. Where not already provided for by existing legislative or other 
measures, each State Party to the present Covenant undertakes to take 
the necessary steps, in accordance with its constitutional processes 
and with the provisions of the present Covenant, to adopt such laws or 
other measures as may be necessary to give effect to the rights 
recognized in the present Covenant.
    3. Each State Party to the present Covenant undertakes:
    (a) To ensure that any person whose rights or freedoms as herein 
recognized are violated shall have an effective remedy, notwithstanding 
that the violation has been committed by persons acting in an official 
capacity;
    (b) To ensure that any person claiming such a remedy shall have his 
right thereto determined by competent judicial, administrative or 
legislative authorities, or by any other competent authority provided 
for by the legal system of the State, and to develop the possibilities 
of judicial remedy;
    (c) To ensure that the competent authorities shall enforce such 
remedies when granted.
    Neither the commenter nor the ICCPR's text nor still the 
commenter's recent submission to the United Nations Human Rights 
Committee (``UNHRC'') \1813\ explains how Title IX or the NPRM deviate 
from the ICCPR commitment into which the United States, along with its 
reservations, has entered. This submission contends that the NPRM and 
the likely final regulations ``weaken[ ] protections for students who 
have experienced sexual harassment and assault in numerous ways, 
including by raising the standard of evidence required to `clear and 
convincing,' narrowing the definition of sexual harassment, and by 
requiring schools to begin the investigation procedure with the 
presumption that the alleged perpetrator is innocent.'' \1814\ The 
commenter's submission continues: ``The adoption of these guidelines 
will result in more limited protections for adolescent girls, who are 
already disproportionately likely to experience sexual violence.'' 
\1815\
---------------------------------------------------------------------------

    \1813\ See Letter from Yasmeen Hassan, Global Exec. Director, 
Equality Now, Dr. Ghada Khan, Network Coordinator, U.S. End FGM/C 
Network, & Jessica Neuwirth Co-President, ERA Coalition to Gabriella 
Habtrom, Human Rights Committee Secretariat, Office of the United 
Nations High Commissioner for Human Rights (Jan. 14, 2019).
    \1814\ Id.
    \1815\ Id.
---------------------------------------------------------------------------

    Endeavoring to justify those arguments, the commenter further 
states: ``The adoption of these regulations will also limit the United 
States' ability to reach Sustainable Development Goals targets 5.2 
(eliminate all forms of violence against all women and girls in the 
public and private spheres, including trafficking and sexual and other 
types of exploitation) and 16.2 (end abuse, exploitation, trafficking 
and all forms of violence against and torture of children).'' \1816\ 
But this contention is unavailing because the record cultivated by the 
NPRM and these final regulations already explains why the goal or the 
effect of the final regulations is not to remove women's protections 
and expose them to violence or to do anything short of ending ``abuse, 
exploitation, trafficking and all forms of violence against and torture 
of children.'' \1817\ There is no evidence that the final regulations 
permit or facilitate any of these abhorrent forms of misconduct.
---------------------------------------------------------------------------

    \1816\ Id.
    \1817\ Id.
---------------------------------------------------------------------------

    There is prominent international human rights case law from various 
tribunals demonstrating that children's physical integrity and lives 
deserve protection; this precept occupies a role of opinio juris 
(opinion of law by prominent scholars and jurists) in international 
law.\1818\ When a government fails to investigate such abuses, such 
failure may give rise to violations of the child's and family's 
rights.\1819\ But it does not trump the text of the salient instrument, 
and combined with the fact that the United States reserved certain 
objections, those other international law sources do not dictate what 
the United States must do. The

[[Page 30511]]

final regulations will protect complainants by requiring recipients to 
offer supportive measures designed to restore or preserve the 
complainant's equal educational access irrespective of whether the 
recipient also investigates the complainant's sexual harassment 
allegations, and regardless of whether the respondent accused of 
sexually harassing the complainant is ever proved responsible or 
disciplined. When a recipient does investigate sexual harassment 
allegations in a Title IX grievance process, the final regulations 
ensure that both complainants and respondents receive strong, clear 
procedural rights in a fair, truth-seeking grievance process, and if 
the respondent is found responsible the recipient must effectively 
implement remedies for the complainant. Nothing in the United States' 
international obligations prevents the achievement of these objectives 
set forth under the final regulations.
---------------------------------------------------------------------------

    \1818\ See Mapirip[aacute]n Massacre v. Colombia, Merits, 
Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 134 (15 Sept. 
2005); Okkal[inodot] v. Turkey, No. 52067/99, Eur. Ct. H.R. (2006); 
Stoica v. Romania, no. 42722/02, Eur. Ct. H.R. (2008).
    \1819\ See Leydi Dayan S[aacute]nchez v. Colombia, Report, 
Inter-Am. Ct. H.R. No. 43/08 (23 July 2008); Case of the ``Street 
Children'' (Villagran-Morales et al.) v. Guatemala, Judgment, Inter-
Am. Ct. H.R. (May 26, 2001).
---------------------------------------------------------------------------

    As a result, the commenter's suggestions for the UNHRC Secretariat 
to ask the United States regarding the ICCPR, are unnecessary because 
the final regulations will optimize ``protections for students who have 
experienced sexual violence'' and the final regulations remains ``in 
line with international human rights standards.'' \1820\ Furthermore, 
``students in secondary schools,'' under the final regulations, will 
continue to be ``offered a safe educational environment in which 
schools are held accountable for failure to respond to incidents of 
sexual harassment and violence.'' \1821\
---------------------------------------------------------------------------

    \1820\ Letter from Yasmeen Hassan, Global Exec. Director, 
Equality Now, Dr. Ghada Khan, Network Coordinator, U.S. End FGM/C 
Network, & Jessica Neuwirth Co-President, ERA Coalition to Gabriella 
Habtrom, Human Rights Committee Secretariat, Office of the United 
Nations High Commissioner for Human Rights 7 (Jan. 14, 2019).
    \1821\ Id.
---------------------------------------------------------------------------

    As for the Sustainable Development Goals, the United States is not 
legally obligated to abide by them because the United States never has 
assented to them--consent is the essential predicate for most 
international law norms to be binding on a sovereign nation--and they 
do not occupy the status of customary international law.\1822\ 
Customary international law ``may originate `in custom or comity, 
courtesy or concession,' '' and ``[being] `part of our law, . . . must 
be ascertained and administered by the courts of justice of appropriate 
jurisdiction as often as questions of right depending upon it are duly 
presented for their determination.' '' \1823\ Drafted in September 
2015, the Goals cannot be customary international law because they have 
not, ``over the long passage of years grow[n] `by the general assent of 
civilized nations, into a settled rule of international law.' '' \1824\
---------------------------------------------------------------------------

    \1822\ See generally Oliva v. U.S. Dep't. of Justice, 433 F.3d 
229, 233-34 (2d Cir. 2005); Comm. of U.S. Citizens Living in 
Nicaragua v. Reagan, 859 F.2d 929, 939 (D.C. Cir. 1988); see also 
Andrew Guzman, The Consent Problem in International Law 5 (Berkeley 
Program in Law and Economics Working Paper, 2011); Anthony Aust, 
Handbook of International Law 4 (2005) (``[International law] is 
based on the consent (express or implied) of states.''); Laurence R. 
Helfer, Nonconsensual International Lawmaking, 2008 Univ. of Ill. L. 
Rev. 71, 72 (2008) (``For centuries, the international legal system 
has been premised on the bedrock understanding that states must 
consent to the creation of international law.''); United Nations, 
Transforming our world: The 2030 Agenda for Sustainable Development 
(2015).
    \1823\ Oliva v. U.S. Dep't. of Justice, 433 F.3d 229, 233 (2d 
Cir. 2005) (quoting The Paquete Habana, 175 U.S. 677, 694, 700 
(1900)).
    \1824\ Id. (quoting The Paquete Habana, 175 U.S. at 694).
---------------------------------------------------------------------------

    Even on the merits, though, the Goals are consistent with the final 
regulations. The Goals pledge that, by 2030, ``[a]ll forms of 
discrimination and violence against women and girls will be eliminated, 
including through the engagement of men and boys.'' \1825\ Nothing in 
the final regulations promotes, perpetuates, or tolerates any ``form[ ] 
of discrimination and violence against women and girls,'' and indeed 
strives to ``eliminate[ ]'' ``[a]ll forms of [sex] discrimination.'' 
\1826\ That is the objective of Title IX and the final regulations. 
These final regulations do not violate any of the United States' 
international law obligations or, for that matter, norms or principles.
---------------------------------------------------------------------------

    \1825\ United Nations, Transforming our world: The 2030 Agenda 
for Sustainable Development (2015).
    \1826\ Id.
---------------------------------------------------------------------------

    Consequently, the final regulations are consistent with the United 
States' international law obligations.

Clery Act

Background
    The Jeanne Clery Disclosure of Campus Security Policy and Campus 
Crime Statistics Act (``Clery Act''), 20 U.S.C. 1092(f), applies only 
to institutions of higher education that receive Federal student 
financial aid through the programs authorized by Title IV of the Higher 
Education Act of 1965, as amended (``HEA''). The Clery Act uses the 
term ``victim.'' \1827\ Accordingly, this section of the preamble in 
which the Department responds to comments about the intersection of 
these final regulations with the Clery Act, uses the term ``victim'' in 
discussing the Clery Act and its implementing regulations. The Clery 
Act requires institutions of higher education to disclose campus crime 
statistics and security information about certain criminal offenses, 
including sexual assault, that occur in a particular geographic area, 
including the public property immediately adjacent to a facility that 
is owned or operated by the institution for educational purposes.\1828\ 
VAWA \1829\ amended the Clery Act to require institutions of higher 
education to report information about additional criminal offenses, 
including domestic violence, dating violence, and stalking.\1830\
---------------------------------------------------------------------------

    \1827\ 20 U.S.C. 1092(f).
    \1828\ 20 U.S.C. 1092(f)(1)(F); 20 U.S.C. 1092(f)(6)(A)(iv).
    \1829\ Public Law 113-4.
    \1830\ 20 U.S.C. 1092(f)(6)(A)(i); 20 U.S.C. 1092(f)(7).
---------------------------------------------------------------------------

    VAWA included several amendments to the Clery Act that may be 
relevant to some parties implicated in a report of sexual harassment or 
a grievance process to resolve allegations of sexual harassment under 
Title IX and these final regulations. For example, the Clery Act, as 
amended by VAWA, requires that students and employees receive written 
notification of available victim services including counseling, 
advocacy, and legal assistance, as well as options for modifying a 
victim's academic, living, transportation, or work arrangements.\1831\ 
The Clery Act also requires institutions of higher education to notify 
victims of their rights, including their right to report or not report 
a crime of sexual violence to law enforcement and campus 
authorities.\1832\
---------------------------------------------------------------------------

    \1831\ 20 U.S.C. 1092(f)(8)(B)(vii).
    \1832\ 20 U.S.C. 1092(f)(8)(C).
---------------------------------------------------------------------------

    The Department promulgates these final regulations under Title IX 
and not under the Clery Act. These final regulations apply to all 
recipients of Federal financial assistance, and these recipients 
include many parties that are not institutions of higher education, 
receiving Federal student financial aid under Title IV of the HEA. For 
example, these final regulations apply to elementary and secondary 
schools, which are not subject to the Clery Act. These final 
regulations do not change, affect, or alter any rights, obligations, or 
responsibilities under the Clery Act. These final regulations only 
concern a recipient's rights, obligations, and responsibilities under 
Title IX. Accordingly, the Department will not respond to any comments 
that solely concern compliance with the Clery Act and its implementing 
regulations because such comments go beyond the scope of the NPRM to 
promulgate regulations under Title IX.\1833\
---------------------------------------------------------------------------

    \1833\ 83 FR 61462.

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

[[Page 30512]]

Comments, Discussion, and Changes
    Comments: One commenter expressed concern that Sec.  
106.45(b)(1)(vi) (Describe Range of Sanctions) conflicts with the Clery 
Act, which requires institutions to include a complete list of 
sanctions that may be imposed following an institutional disciplinary 
proceeding to support transparency in adjudications, and suggested that 
recipients should be required to provide a complete list of sanctions, 
not a range. Without such transparency, the commenter argued, there 
could be inconsistency in sanctioning, a distrust of the process, as 
well as confusion among recipients regarding the requirements under the 
Clery Act and the Department's Title IX regulations.
    Discussion: If the Clery Act applies to an institution, the 
institution must, under 34 CFR 668.46(k)(1)(iii), provide a list of 
sanctions that the institution may impose following an institutional 
disciplinary proceeding based on an allegation of dating violence, 
domestic violence, sexual assault, or stalking. Such a list also 
satisfies the requirement in Sec.  106.45(b)(1)(vi) to describe the 
range of sanctions that a recipient may impose on a respondent, and the 
Department has revised Sec.  106.45(b)(1)(vi) to state that a recipient 
must describe the range of sanctions or provide a list of sanctions. 
Through this revision, the Department clarifies that a list of 
sanctions or a description of the range of sanctions satisfies Sec.  
106.45(b)(1)(vi). These final regulations apply to elementary and 
secondary schools in addition to postsecondary institutions. The 
Department believes it is appropriate for elementary and secondary 
schools and other recipients to retain discretion in imposing sanctions 
in cases involving sexual harassment, and requiring a recipient to 
describe the range of sanctions will help ensure that the parties know 
the sanctions that are appropriate in different circumstances, which 
could arise from a finding of responsibility. The requirements of the 
Clery Act were designed to fit the population, environment, and 
traditional processes used by institutions of higher education. The 
other recipients of Federal funds subject to the Title IX requirements 
have different populations, environments, and processes. The Department 
does not believe it is appropriate to prohibit recipients from crafting 
unique sanctions designed to specifically address the circumstances of 
a particular formal complaint as long as recipients stay within the 
range of sanctions described in their policies. Accordingly, the 
Department will continue to allow recipients to describe the range of 
possible sanctions and acknowledges that listing all possible sanctions 
is also permissible.
    The Department further notes that the Clery Act regulations in 
Sec.  668.46(k)(1)(iv) require an institution to describe ``the range 
of protective measures that the institution may offer to the victim 
following an allegation of dating violence, domestic violence, sexual 
assault, or stalking.'' Unlike the regulations implementing the Clery 
Act, these final regulations require that a recipient describe only the 
range of remedies that the recipient may implement following any 
determination of responsibility. The term ``remedies'' in these final 
regulations refers to measures that a recipient provides a complainant 
after a determination of responsibility for sexual harassment has been 
made against the respondent, as described in Sec.  106.45(b)(1)(i). 
Section 106.45(b)(1)(i) provides that ``remedies may include the same 
individualized services described in Sec.  106.30 `supportive 
measures'; however, remedies need not be non-disciplinary or non-
punitive and need not avoid burdening the respondent.'' To better align 
the requirement to describe the range of remedies with the revisions 
with respect to sanctions in Sec.  106.45(b)(1)(vi), the Department 
revised Sec.  106.45(b)(1)(vi) to provide that a recipient may either 
describe the range of possible remedies or list the possible remedies.
    The Department does not believe it serves the purposes of title IX 
to limit the type of ``supportive measures,'' as defined in Sec.  
106.30, that a recipient may provide and, thus, a recipient may 
describe the range of supportive measures, or list the possible 
supportive measures. A recipient retains discretion to tailor 
supportive measures to a party's unique circumstances and may not 
foresee or anticipate all possible supportive measures.
    Changes: The Department revised Sec.  106.45(b)(1)(vi) to state 
that a recipient may describe the range of possible sanctions and 
remedies or list the possible sanctions and remedies that the recipient 
may implement following any determination of responsibility.
    Comments: Some commenters expressed general concern with the 
proposed rules and asserted that they were inconsistent with the Clery 
Act without providing additional details. Some commenters noted that 
while the Department acknowledged that Title IX and the Clery Act's 
jurisdictional schemes may overlap in certain situations, the 
Department failed to explain how institutions of higher education 
should resolve the conflicts between the two sets of rules when 
addressing sexual harassment and claimed that these different sets of 
rules would likely create widespread confusion for schools.
    Some commenters expressed concern that the proposed rules conflict 
with congressional intent regarding the appropriate level of due 
process and fairness, which the commenters contended was set forth by 
Congress in the Clery Act. One commenter asserted that Congress 
specifically defined what due process rights it demands for campus 
adjudications of sexual assault in the Clery Act and nowhere did 
Congress manifest an intent that the Department should consider the 
elevated due process protections for respondents outlined in the 
proposed rule.
    Another commenter stated that the Department enacted the Clery Act 
regulations following a negotiated rulemaking process designed to 
implement Congress's intent. The commenter argued that in its Clery Act 
regulations the Department did not interpret the phrase ``prompt, fair, 
and impartial investigation and resolution'' in the Clery Act to 
require any of the elevated due process protections for respondents 
contained in the proposed Title IX rules and further noted that the 
Department disagreed with comments on the proposed Clery Act 
regulations arguing that the regulations eliminated essential due 
process protections. The commenter asserted that in response to such 
comments, the Department stated that the Clery Act statute and 
regulations require that the proceedings be fair, prompt, and impartial 
to both parties and be conducted by officials who receive relevant 
training and noted that in such cases, institutions are not making 
determinations of criminal responsibility, but are determining whether 
the institution's own rules have been violated. The commenter argued 
that the Department's interpretation of Title IX in the proposed rules 
is incompatible with its Clery Act regulations and the relevant Clery 
Act rulemaking process, which demonstrates that the Department's Title 
IX rulemaking is arbitrary and capricious and an attempt by the 
Department to circumvent its own regulations and the clear intent of 
Congress with respect to procedural due process in campus sexual 
assault proceedings.
    Discussion: Although the commenters allude to conflicts between the 
regulations implementing the Clery Act, and these final regulations

[[Page 30513]]

implementing Title IX, they did not identify a true specific conflict. 
The Department acknowledges that its Clery Act regulations overlap with 
these final regulations and impose different requirements in some 
circumstances. It has always been true that some recipients that are 
subject to both the Clery Act regulations and the Title IX regulations 
must comply with both sets of regulations. The Department has long 
interpreted Title IX to apply to incidents of sexual harassment and, 
through guidance, has provided its views of how Title IX applies to 
prohibit sexual harassment. Even before the proposed regulations, 
institutions of higher education raised concerns that the Department 
has not been clear about how requirements under Title IX interact with 
requirements under the Clery Act. The Department has consistently 
stated that institutions of higher educations must comply with both 
Title IX and the Clery Act and provided guidance in the past. These 
final regulations more formally and clearly address the obligations of 
a recipient under Title IX than the Department's past guidance.
    Contrary to creating confusion, the Department is addressing the 
intersection of the Clery Act and Title IX through these final 
regulations. Sexual harassment for purposes of Title IX means conduct 
on the basis of sex that meets the definition of sexual assault, dating 
violence, domestic violence, and stalking in the Clery Act. By aligning 
the definition of sexual harassment in Sec.  106.30 with the Clery Act, 
the Department is attempting to resolve confusion or perceived 
conflicts about a recipient's obligations under Title IX and how these 
obligations may overlap with some of the conduct that the Clery Act 
requires.
    The Department disagrees that these final regulations conflict with 
the level of due process and fairness, which the commenters contended 
was set forth by Congress in the Clery Act. Congress stated in 20 
U.S.C. 1092(f)(8)(B)(iv)(I)(aa) that an institution's proceedings must 
provide a ``prompt, fair, and impartial investigation and resolution.'' 
The Department's regulations implementing the Clery Act adhered to the 
plain meaning of the statute and establish requirements sufficient for 
purposes of the Clery Act. Congress, however, did not set forth any 
parameters for the due process that the Department should require under 
Title IX to prohibit sex discrimination in a recipient's education 
program or activity. The due process protections that the Department 
requires in these final regulations are designed to address sex 
discrimination, specifically sexual harassment, in a recipient's 
education program or activity for both parties, and not just the 
respondent. A complainant who chooses to file a formal complaint will 
benefit from a transparent grievance process under Sec.  106.45 that 
provides both an investigation and a hearing.
    The Clery Act is part of Title IV of the HEA, which requires the 
Department to use negotiated rulemaking procedures in most cases. 
Congress does not require negotiated rulemaking to promulgate 
regulations implementing Title IX. The Department used notice-and-
comment rulemaking to promulgate these final regulations in accordance 
with the Administrative Procedure Act, 5 U.S.C. 701 et seq., and that 
process was not arbitrary and capricious. The fact that there are 
differences between these final regulations and the regulations 
implementing the Clery Act do not render these final regulations 
arbitrary and capricious.
    The purpose of Title IX, which is to prohibit sex discrimination in 
a recipient's education program or activity, is different than the 
purpose of the Clery Act, which is to require disclosure of certain 
campus security policies and campus crime statistics. Additionally, 
Title IX is a condition of receipt of Federal financial assistance, 
whereas the Clery Act is a condition of receipt of Federal student 
financial aid for students at institutions of higher education. The 
Department may legally impose different conditions as requirements for 
different types of funding.
    Changes: None.
    Comments: Some commenters asserted that the proposed rules conflict 
with the Clery Act's requirements regarding geographic jurisdiction and 
coverage of conduct that occurs off-campus, online, and outside of the 
United States. One commenter found the Department's failure to follow 
the Clery Act rules regarding geographic jurisdiction especially 
problematic in light of the fact that the proposed Title IX rules 
repeatedly cite and rely on the Clery Act regulations and argued that 
the Department cannot pick and choose which parts of the Clery Act are 
applicable to Title IX.
    One commenter asserted that pursuant to the Clery Act, complainants 
alleging incidents of sexual assault, dating violence, domestic 
violence, and stalking, regardless of location, must be given 
information about off-campus resources as well and questioned why 
complainants are treated differently under the proposed Title IX rules. 
Some commenters argued that the response requirements in the Clery Act 
are not limited to Clery geography. These commenters noted that the 
Clery Act regulations require institutions to have a policy statement 
explaining the process and procedure for disclosures of sexual assault 
(and three other crimes) and asserted that the statement would apply 
whether the offense occurred on or off campus. The Clery Act final 
regulations further require institutions to follow the procedures 
described in their statement regardless of where the conduct occurred. 
In contrast, the commenters argued, the proposed Title IX rules 
requiring recipients to adopt policy and grievance procedures apply 
only to exclusion from participation, denial of benefits, or 
discrimination on the basis of sex occurring against a person in the 
United States.
    The commenters argued that the geographic limitations in the 
proposed Title IX rules conflict with the Department's traditional 
interpretation, which required institutions to respond to harassment or 
violence that could limit participation in educational programs or 
activities wherever they occurred in the world, if the covered 
institution is in the United States. According to these commenters, the 
geographic limitations in the proposed Title IX rules are inconsistent 
with the way the Department has interpreted geographic jurisdiction 
under the Clery Act, and the proposed geographic limitation will have a 
significant impact on the access of some students to their education 
and lead to confusion among institutions.
    Discussion: These final regulations do not conflict with the 
Department's regulations concerning Clery geography. Although these 
final regulations may apply to some incidents of sexual harassment that 
occur on areas included in an institution's Clery geography, these 
final regulations are promulgated under Title IX, which prohibits 
discrimination on the basis of sex in a recipient's education program 
or activity against a person in the United States. These final 
regulations are consistent with the statutory limitations that Congress 
applied to Title IX, 20 U.S.C. 1681. The Department is not ``picking 
and choosing'' which obligations from the Clery Act to incorporate in 
these Title IX final regulations. The Department is acknowledging that 
some conduct covered under Title IX also is covered under the Clery 
Act.
    These regulations apply more broadly than the Clery Act insofar as 
these regulations apply to recipients of Federal financial assistance 
that are not institutions of higher education whose

[[Page 30514]]

students receive Federal student financial aid. The Department does not 
believe it is appropriate to impose on all recipients of Federal 
financial assistance the same obligations that recipients of Federal 
student financial aid have. Many recipients of Federal financial 
assistance such as elementary and secondary schools have never been 
subject to the requirements of the Clery Act and its geography and 
forcing them to comply with such requirements as a condition of Federal 
financial assistance is inappropriate for various reasons. For example, 
elementary and secondary schools generally are more limited in the 
geographic scope of their educational activities. The requirement to 
report crimes described in the Clery Act that occur on Clery geography 
is not as helpful in the elementary and secondary school context as it 
is in the postsecondary institution context. Many students attend 
public elementary and secondary schools that they are assigned to 
attend and do not have a choice as to which school to attend. Students 
at postsecondary institutions usually have more options as to which 
college or university to attend and learning about Clery/VAWA crimes 
that occur on Clery geography or the nearby geographic area of the 
institution may help them choose which institution is best for them and 
help raise awareness of the types and frequency of crimes at or near a 
particular institution.
    The Department does not agree that the Clery Act requires the 
``disclosure'' of sexual assault. The Department acknowledges that the 
Clery Act and its implementing regulations require a postsecondary 
institution receiving Federal student financial aid, to report the 
number of incidents of sexual assault, dating violence, domestic 
violence, and stalking, among other crimes, that occur on Clery 
geography. The Department also acknowledges the Clery Act may require a 
postsecondary institution to issue a timely warning in certain 
circumstances.
    The Department acknowledges that some of the requirements in the 
Clery Act are not limited to crimes that occur on Clery geography. 
However, the Clery Act does not provide that an institution's 
obligations regarding an incident that occurred on campus are 
necessarily the same as its obligations to an incident that occurred 
off campus. The Department's Clery Act regulations provide in Sec.  
668.46(b)(11)(vii) that the institution will have ``[a] statement that, 
when a student or employee reports to the institution that the student 
or employee has been a victim of dating violence, domestic violence, 
sexual assault, or stalking, whether the offense occurred on or off 
campus, the institution will provide the student or employee a written 
explanation of the student's or employee's rights and options, as 
described in paragraphs (b)(11)(ii) through (vi) of this section.'' 
This regulation does not state that the institution must provide 
students or employees with the exact same rights and options, 
irrespective of where the offense occurred.
    The Department appreciates the commenter who noted the differences 
between the Clery Act and Title IX and agrees that each statute has a 
different purpose. For the reasons explained more thoroughly in the 
``Adoption and Adaptation of the Supreme Court's Framework to Address 
Sexual Harassment'' section, the Department is adopting and adapting 
the rubric in the Supreme Court's decisions in Gebser and Davis. The 
Department is faithfully administering the requirements in Title IX 
that ``[n]o person in the United States shall, on the basis of sex, be 
excluded from participation in, be denied the benefits of, or be 
subjected to discrimination under any education program or activity 
receiving Federal financial assistance.'' \1834\ The Department 
explains its interpretations of ``no person in the United States,'' 
``education program or activity,'' and other elements of Title IX in 
the ``Section 106.44 Recipient's Response to Sexual Harassment, 
Generally'' section of this preamble. The only specific geographic 
limitation that these final regulations respect is a limitation that 
Congress imposed in Title IX by requiring the sex discrimination to be 
against a person in the United States. No other specific, geographic 
limitations exist in Title IX, and a recipient with actual knowledge of 
sexual harassment in its education program or activity against a person 
in the United States must respond promptly and in a manner that is not 
deliberately indifferent.\1835\
---------------------------------------------------------------------------

    \1834\ 20 U.S.C. 1681(a).
    \1835\ Section 106.44(a).
---------------------------------------------------------------------------

    The Department disagrees with the commenters' claim that these 
final regulations will lead to confusion. Imposing all the requirements 
in the Department's regulations under the Clery Act on recipients of 
Federal financial assistance would result in greater confusion, 
especially for recipients who have never had to comply with the 
Department's regulations implementing the Clery Act.
    Changes: None.
    Comments: Some commenters expressed general concerns with the lack 
of coverage for off-campus sexual harassment noting that especially at 
the higher education level, many students live away from home and are 
likely to explore high-risk situations away from campus. These 
commenters argued that the proposed changes ignore the reality of the 
degree to which off-campus sexual harassment impacts a student who is 
forced to see their harasser on campus daily. These commenters asserted 
that schools should be required to provide services to students who are 
assaulted off-campus when the violence interferes with their education 
and schools should be required to discipline perpetrators who assault 
students off-campus, especially when the perpetrator is a student of 
the institution and recommended that the Department refer to the Clery 
Act rules on geographic jurisdiction.
    Some commenters expressed concern that the Clery Act requires 
institutions of higher education to report certain incidents of dating 
violence, domestic violence, stalking, and sexual assault that occur in 
certain off-campus locations and notify all students who report such 
incidents of their rights regardless of whether the offense occurred on 
or off-campus, but the proposed Title IX rules limit the ability of 
institutions of higher education to take action to address such 
incidents. Commenters concluded that Sec.  106.45(b)(3) undermines the 
Clery Act's mandate and creates a perverse system in which institutions 
would have to report incidents of sexual assault that occur off-campus 
in order to comply with the Clery Act, but would be required by the 
Department under Title IX to dismiss these complaints instead of 
investigating them. One commenter asserted that this would allow 
perpetrators to engage in sexual misconduct with impunity and prevent 
institutions from taking action to address incidents of sexual 
misconduct that impact survivors' access to education. Another 
commenter asserted that since institutions of higher education are 
required to report incidents of sexual assault, dating violence, 
domestic violence, and stalking that occur in noncampus buildings and 
locations under the Clery Act, these institutions have acquired actual 
knowledge of such incidents, which, the commenter argued, cannot be 
ignored.
    The commenter argued that this conflict between the Clery Act and 
the proposed Title IX rules would allow schools to ignore off-campus 
sexual harassment even while reporting and having actual knowledge of 
these incidents which would likely lead to lawsuits over the inaction 
of the institutions.

[[Page 30515]]

    Discussion: These final regulations require a recipient to respond 
to sexual harassment that occurs in its education program or activity, 
irrespective of whether the sexual harassment occurs on or off campus. 
For the reasons set forth earlier, it is imprudent to impose all 
requirements in the regulations implementing the Clery Act including 
requirements regarding Clery geography on recipients who are not 
subject to the Clery Act.
    The Clery Act requirements that institutions include certain off-
campus incidents in crime statistics and provide certain information 
and opportunities to victims of incidents of dating violence, domestic 
violence, stalking, and sexual assault that occur in certain off-campus 
locations do not contradict these final regulations. As previously 
noted, the Clery Act regulations do not state that the institution must 
provide students or employees with the exact same rights and options, 
irrespective of where the offense occurred. The mandatory dismissal in 
Sec.  106.45(b)(3)(i) also does not conflict with the Department's 
regulations implementing the Clery Act. In these final regulations the 
Department is clarifying that a recipient must dismiss an allegation of 
sexual harassment in a formal complaint in certain circumstances and 
that such a dismissal under these final regulations does not preclude 
action under another provision of the recipient's code of conduct. If 
recipients would like to address conduct that these final regulations 
do not address, recipients may do so.
    The Department agrees that if a recipient has actual knowledge of 
sexual harassment, the recipient must respond promptly in a manner that 
is not deliberately indifferent if the sexual harassment occurred in a 
recipient's education program or activity against a person in the 
United States. The Department notes that under these final regulations, 
a recipient may be required to respond to incidents that occur off 
campus. Whether sexual harassment occurs in an education program or 
activity requires a different analysis than whether sexual assault, 
domestic violence, dating violence, or stalking occur on campus or off 
campus. Section 106.44(a) provides that for the purposes of Sec. Sec.  
106.30, 106.44, and 106.45, education program or activity includes 
locations, events, or circumstances over which the recipient exercised 
substantial control over both the respondent and the context in which 
sexual harassment includes, and also includes any building owned or 
controlled by a student organization that is officially recognized by a 
postsecondary institution. As discussed in the ``Litigation Risk'' 
subsection of the ``Miscellaneous'' section of this preamble, the 
Department believes that these final regulations may have the effect of 
decreasing litigation arising out of a recipient's responses to sexual 
harassment.
    Changes: None.
    Comments: Some commenters raised general concerns that excluding 
study abroad programs does not reflect the current reality where many 
institutions across the United States have campuses and educational 
programs across the world and whose study abroad programs are offering 
an important component of the educational programs available to 
students. These commenters stated that schools should be required to 
provide services to students who are assaulted in a study abroad 
program when the violence interferes with their education and schools 
should be required to discipline perpetrators who assault students off-
campus, especially when they are a student of the institution and 
recommended that the Department refer to the Clery Act rules on 
geographic jurisdiction for study abroad programs. One commenter argued 
that by not covering study abroad programs under Title IX the 
Department was creating a scenario in which a U.S. institution is 
required to have institutional policies to address incidents of sexual 
assault in a campus residence hall at an abroad location of the 
institution under the Clery Act, but such policies would need to be 
independent of the Title IX process even though it would address the 
same conduct. The commenter argued that this undermines the ability of 
the Title IX Coordinator to implement a consistent response to sex 
discrimination and identify patterns that could put individuals and the 
community at risk and creates a need for separate processes to address 
the same behavior, in direct opposition to the stated goal of the 
proposed Title IX rules to streamline processes and create more 
efficient systems.
    Discussion: The Department appreciates the commenter's concerns 
about study abroad programs. As explained elsewhere in this preamble, 
the Department interprets Title IX as prohibiting discrimination on the 
basis of sex against persons in the United States. The Department notes 
that recipients of Federal financial assistance may respond to reports 
of sexual harassment that occur abroad, including in study abroad 
programs. The Department, however, cannot require a recipient to do so 
under Title IX. The Department also is not requiring recipients to 
adopt different processes to address conduct that these regulations do 
not address. In the interest of efficiency, a recipient may use, but is 
not required to use, the processes and procedures in these final 
regulations to address conduct that these final regulations do not 
address.
    Changes: None.
    Comments: One commenter who represents a system of postsecondary 
institutions raised specific concerns regarding the conflict in 
geographic jurisdiction between the Clery Act and the proposed Title IX 
rules related to Greek letter organizations at such institutions. The 
commenter explained that under prior OCR interpretations, institutions 
would be required to take action if the incidents disclosed at Greek 
letter housing could limit access to education, regardless of the level 
of oversight of the group. Under the Clery Act, analogous sexual 
assault crimes might be reported if they occurred at Greek letter 
housing, but only if the house was owned or controlled by a student 
organization that is officially recognized and the deed or lease would 
have to be held by the organization, as private homes and businesses 
are not included. The commenter argued that the Clery Act definition is 
inconsistent with the proposed Title IX rules and expressed concern 
that this conflict will create confusion among institutions. The 
commenter expressed additional concerns that some institutions may be 
incentivized to no longer recognize Greek letter associations or reduce 
their recognition so that they would not be considered a program or 
activity based on the tests drawn from cases included in the proposed 
Title IX rules. The commenter argued that recognizing such associations 
can come with requirements such as mandatory insurance, risk management 
standards, and training requirements, which can reduce incidents of 
sexual harassment and assault so there are reasons for the Department 
to incentivize such recognition.
    Discussion: The Department agrees that with respect to Greek letter 
organizations, recipients of Federal financial assistance may have 
different obligations under these final regulations, implementing Title 
IX, than under the regulations implementing the Clery Act. These 
obligations, however, do not present a conflict, and the commenter does 
not identify any specific conflict with respect to Greek letter 
organizations.
    The Department recognizes that each recipient may have a different 
arrangement with Greek letter associations active at its institution 
and

[[Page 30516]]

that the application of these final regulations will differ based upon 
the relationship between the recipient and the Greek letter 
association. Whether the Greek letter association is an education 
program or activity of the recipient will depend on the relationship 
between the recipient and the Greek letter association. These final 
regulations provide clarity and not confusion as to what an education 
program or activity includes, as Sec.  106.44(a) states that for 
purposes of Sec. Sec.  106.30, 106.44, and 106.45, an education program 
or activity includes locations, events, or circumstances over which the 
recipient exercised substantial control over both the respondent and 
the context in which the harassment occurs, and also includes any 
building owned or controlled by a student organization that is 
officially recognized by a postsecondary institution. The Department 
acknowledges that many but not all Greek letter associations are 
student organizations that own or control a building. As more fully 
explained in the ``Section 106.44(a) `education program or activity' '' 
subsection of the ``Section 106.44 Recipient's Response to Sexual 
Harassment, Generally'' section of this preamble, recipients may 
dictate the terms under which they recognize student organizations that 
own or control buildings, and the reference in Sec.  106.44(a) to 
``buildings owned or controlled by a student organization that is 
officially recognized by a postsecondary institution'' as part of a 
recipient's ``education program or activity'' for purposes of 
responding to sexual harassment under these final regulations, includes 
buildings that are on campus and off campus. By contrast, the Clery 
Act's definition of noncampus property excludes from Clery geography 
``a fraternity or sorority house that is located within the confines of 
the campus on land owned by the institution.'' \1836\ The Department 
does not intend to encourage or discourage recipients from recognizing 
Greek letter associations, and each recipient must determine what its 
relationship should be with Greek letter associations. However, where a 
postsecondary institution does choose to officially recognize a Greek 
letter association, buildings owned or controlled by that fraternity or 
sorority are part of the postsecondary institution's education program 
or activity under these final regulations.
---------------------------------------------------------------------------

    \1836\ 34 CFR 668.46 (definition of noncampus building or 
property); U.S. Dep't. of Education, Office of Postsecondary 
Education, The Handbook for Campus Safety and Security Reporting, 2-
18 to 2-19 (2016), https://www2.ed.gov/admins/lead/safety/handbook.pdf.
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter claimed that while the Department indicated 
that the proposed language regarding emergency removals in Sec.  
106.44(c) tracks the Clery Act regulation at 34 CFR 668.46(g), in fact 
the corresponding Clery Act provision says nothing about the process 
owed to respondents subject to an interim suspension, and courts have 
held that due process required under an interim suspension is less 
elaborate than during a full hearing. One commenter stated that the 
Clery Act does not prescribe what analytical procedures should be used 
to determine if an emergency exists, it asks institutions to determine 
that process for their institution and then disclose that process in 
institutional policy and in their annual security reports. When such an 
emergency is confirmed, the Clery Act requires the institution to 
inform the campus community of the nature of the emergency and what 
actions they should take to protect themselves. The commenter argued 
that applying this construct to Title IX makes it seem as though the 
Department is asking the institution to apply the Clery Act standards 
to a Title IX process without considering or providing guidance on the 
implications of such changes to Clery-required emergency notification 
policies or practices.
    Some commenters requested clarification regarding how institutions 
should utilize the referenced Clery standard, ``immediate threat to the 
health or safety of students and employees occurring on the campus'' to 
determine whether a student should be removed from campus. One 
commenter expressed concern that without additional guidance or 
directives, this requirement makes it unclear how/to whom/when such 
circumstances would apply and how and by whom these requirements should 
be carried out so as to complement, as opposed to interfere with, an 
institution's established emergency notification policy and procedures 
under the Clery Act. The commenter stated that the proposed Title IX 
rules require that an individual be given an opportunity to challenge 
the institution's emergency removal immediately following their 
removal. The commenter asserted that a successful appeal of an 
emergency removal would require the institution to determine that its 
own process for assessing an immediate threat to the health or safety 
of the campus community was flawed, which would influence Clery Act 
enforcement as well. The commenter expressed concern that without more 
clarity and consultation with the Department's Clery Act Compliance 
Division, separate parties on campus could be making separate analyses 
on the presence or absence of an immediate threat to the health or 
safety of the campus community--one in relation to an emergency removal 
and the other in relation to the institution's obligations to determine 
whether a threat exists and its impact on the broader community--
resulting in potential conflicts across departments and creating 
significant challenges for the Department in assessing an institution's 
compliance with Title IX and the Clery Act.
    One commenter appreciated the ability for schools to remove a 
respondent that may be a threat to the complainant or the broader 
campus community, but believed additional clarification was needed as 
to what elements need to be included in the assessment. The commenter 
asked for more specific information including whether there are 
specific assessment tools that are recommended, what does assessment 
look like, who conducts this assessment, what conduct or behavior would 
constitute a broader threat, whether it is a standard threat 
assessment, what constitutes the process for a ``challenge,'' and who 
hears that challenge. For example, the commenter inquired whether the 
person who hears the challenge must be someone separate from the Title 
IX Coordinator, investigator, decision maker, or appeals person, 
whether ``removal'' includes removal from all ``programs/activities,'' 
such as extra-curricular activities like athletics; and if so, whether 
such a removal impacts who conducts the assessment, and to whom a 
``challenge'' should be made. The commenter also noted that the Clery 
Act requires institutions to alert their campus communities to certain 
crimes in a manner that is timely and will aid in the prevention of 
similar crimes. Warnings are issued regarding criminal incidents to 
enable people to protect themselves. Warnings are issued after an 
assessment is conducted to determine if the crime that has occurred 
represents a serious or continuing threat to the campus community. The 
commenter asked whether it is the Department's intention to require 
institutions to conduct a similar assessment before initiating the 
emergency removal of a respondent.
    Discussion: The Department noted in the NPRM that the language 
about an immediate threat to the health or safety of students appears 
in Sec.  668.46(g) but did not intend to imply that the proposed 
regulations would have any effect on Sec.  668.46(g) or its 
application.

[[Page 30517]]

The Department acknowledges that the emergency removal provision in 
Sec.  106.44(c) of these final regulations is different than the 
emergency notification provision in Sec.  668.46(g) of the Clery Act 
regulations. The Department clarifies here that an institution that is 
subject to the Clery Act does not need to send an emergency 
notification each time an institution removes a respondent under Sec.  
106.44(c). Whether an institution needs to issue a timely warning is 
governed under the regulations implementing the Clery Act, and these 
final regulations do not address the conditions (i.e., Clery crime, 
Clery geography) that may require a recipient to issue a timely 
warning. The Department also notes that similar language about health 
or safety emergencies appears in Sec. Sec.  99.31(a)(10) and 99.36 of 
the regulations implementing FERPA, and the Department revised the 
emergency removal provision in Sec.  106.44(c) to better align with the 
health and safety emergency exception in the FERPA regulations, 
Sec. Sec.  99.31(a)(10) and 99.36. Even though the Department uses 
similar language in the regulations implementing the Clery Act and 
FERPA, the Department is not requiring recipients to use the same 
analysis in Clery or in FERPA to determine whether an emergency removal 
may be appropriate under Sec.  106.44(c). The Department defers to a 
recipient to conduct an individualized safety and risk analysis to 
determine whether an immediate threat to the physical health or safety 
of any student or other individual exists under Sec.  106.44(c). The 
emergency removal process under Sec.  106.44(c) is a separate process 
than the process that an institution uses to determine whether there is 
a threat that requires a timely warning or an emergency notification 
under the Clery Act, and a recipient may determine that there is a 
sufficient threat to justify an emergency removal under the Title IX 
regulations but not to require a timely warning or an emergency 
notification under the Clery Act regulations. Similarly, a recipient 
may determine that the circumstances justify issuing a timely warning 
or emergency notification but not an emergency removal. Section 
106.44(c) leaves recipients with flexibility to decide who conducts the 
individualized safety and risk analysis, and who hears any post-removal 
challenge. Requiring a post-removal challenge opportunity under Sec.  
106.44(c) does not create a conflict with a recipient's obligation 
under the Clery Act. Neither a recipient's decision to invoke emergency 
removal under Sec.  106.44(c), nor the outcome of a respondent's post-
removal challenge, alters a recipient's obligations under the Clery Act 
regulations.
    The recipient has discretion as to whether to remove the respondent 
from all of its education programs or activities or only some education 
programs and activities, and as long as a recipient is not deliberately 
indifferent with respect to whether an emergency removal is an 
appropriate response to sexual harassment under Sec.  106.44(a), the 
Department will not second guess the recipient's decision. The 
Department also defers to a recipient as to who hears a respondent's 
challenge to a decision to remove the respondent. A Title IX 
Coordinator, investigator, or decision-maker may have a role in the 
emergency removal process as long as such a role does not result in a 
conflict of interest with respect to the grievance process as 
prohibited in Sec.  106.45(b)(1)(iii). The Department does not require 
that a recipient use the grievance process in Sec.  106.45 to address 
an emergency removal and will defer to a recipient's process as long as 
the recipient provides the respondent with notice and an opportunity to 
challenge the decision immediately following the removal. For further 
discussion of the emergency removal provision, see the ``Section 
106.44(c) Emergency Removal'' subsection of the ``Additional Rules 
Governing Recipients' Responses to Sexual Harassment'' section of this 
preamble.
    Changes: None.
    Comments: Some commenters raised concerns about conflicts between 
language in the proposed Title IX rules related to advisors of choice 
and cross-examination and the Clery Act. One commenter argued that the 
Clery Act reflects congressional intent regarding providing advisors 
and cross-examination in campus conduct processes and the proposed 
Title IX rules conflict with that intent. The commenter stated that 
congressional intent was clear from the language in the Clery Act, and 
the Department reasonably interpreted ``advisor of their choice'' to 
mean that an institution could not ban a participating student from 
choosing an attorney. The commenter stated, however, that the 
Department itself indicated that it did not believe that the statutory 
language in the Clery Act permitted it to require institutions to 
provide legal representation to a party in a situation in which one 
party has legal representation and the other party does not and in the 
Clery Act final regulations the Department stated that it would not 
impose such a burden on institutions absent clear and unambiguous 
statutory authority. The commenter asserted that the commenter could 
find no statutory authority in Title IX for the Department to require 
advisors of choice to be provided to students at no cost. The commenter 
argued that if the Department could find no such authority in the Clery 
Act, which mentions advisors of choice, there can similarly be no such 
authority in Title IX, which does not reference advisors or attorneys, 
and which has not previously been interpreted by the Department to 
require institutions to provide such representation. Thus, the 
commenter claimed, because there is no authority or evidence that 
providing or not providing advisors has a disparate impact based on 
gender, such a requirement is therefore arbitrary and capricious under 
the law. The commenter similarly claimed that there is no statutory 
authority under Title IX to support a requirement that institutions 
allow advisors to participate in investigations and adjudications under 
Title IX and the Department could have, and did not, at least make an 
argument that the Clery Act required advisors to be permitted to 
participate in such proceedings.
    Discussion: Contrary to the commenter's assertions, these final 
regulations do not require a recipient to provide legal representation 
for the parties. The Department is clarifying in Sec. Sec.  
106.45(b)(2)(i)(B), 106.45(b)(5)(iv) and 106.45(b)(6)(i) that an 
advisor may be, but is not required to be, an attorney. The 
Department's position that an advisor does not need to be an attorney 
is consistent with the regulations implementing the Clery Act. In the 
preamble to the final regulations published October 20, 2014, 
implementing changes to the Clery Act, the Department stated: ``We do 
not believe that [the Clery Act] permits us to require institutions to 
provide legal representation in any meeting or disciplinary proceeding 
in which the accused or the accuser has legal representation but the 
other party does not. Absent clear and unambiguous statutory authority, 
we would not impose such a burden on institutions.'' \1837\ The 
Department's position has not changed with respect to the Clery Act, 
and these final regulations do not require institutions to provide 
legal representation to either the complainant or the respondent.
---------------------------------------------------------------------------

    \1837\ 79 FR 62774.
---------------------------------------------------------------------------

    As previously stated, the Clery Act has a different purpose than 
Title IX, and the Clery Act applies to recipients of Federal student 
financial aid and not

[[Page 30518]]

recipients of Federal financial assistance. Although the Clery Act does 
not require that an advisor be permitted to conduct cross-examination 
of witnesses testifying at a proceeding, the Department believes that 
for postsecondary institutions, cross-examination by a party's advisor 
is the best approach to assessing allegations of sexual harassment when 
a formal complaint is filed under these final regulations. The 
``Section 106.45(b)(6)(i) Postsecondary Institution Recipients Must 
Provide Live Hearing with Cross-Examination'' subsection of the 
``Hearings'' subsection of the ``Section 106.45 Recipient's Response to 
Formal Complaints'' section in this preamble fully explains the 
Department's position regarding the requirement that an advisor be 
permitted to conduct cross-examination on behalf of a party during a 
hearing at a postsecondary institution. Under these final regulations, 
a postsecondary institution is not required to provide an advisor to a 
party for any purpose other than for cross-examination during the live 
hearing. Providing an advisor to a party who does not have an advisor 
for the purpose of cross-examination during a hearing prevents parties 
from directly cross-examining each other.
    Changes: The Department has revised Sec. Sec.  106.45(b)(2)(i)(B), 
106.45(b)(5)(iv) and 106.45(b)(6)(i) to specify that the advisor may 
be, but is not required to be, an attorney.
    Comments: Some commenters expressed concern that the requirement 
that institutions allow for cross-examination by an advisor of choice 
in sexual harassment cases under Title IX that are also within the 
Clery Act's definition of sexual assault conflicts with the Clery Act 
regulations. The commenters noted that the Clery Act regulations 
explicitly allow institutions to establish restrictions regarding the 
extent to which the advisor of choice may participate in the 
proceedings, as long as the restriction applies to both parties, 
including prohibiting them from conducting or participating in direct 
cross-examination. At least one commenter stated that in the preamble 
to the Clery Act final regulations, the Department responded to 
concerns that advisors of choice may interfere with the process and 
make the investigation and adjudication of cases more legalistic and 
take it further away from the educational model. According to this 
commenter, the Department made several clear statements that 
institutions may restrict an advisor's role, such as by prohibiting the 
advisor from speaking during the proceeding, addressing the 
disciplinary tribunal, or questioning witnesses. This commenter 
contended that the Department's regulations, implementing VAWA, clearly 
allow colleges and universities to prohibit advisors, including 
attorneys, from participating in any way, including prohibiting them 
from conducting or participating in direct or cross-examination. One 
commenter asserted that the establishment of advisors of choice in the 
Clery Act was designed to ensure that both parties receive 
individualized support throughout the process and asserted that this 
individual is designed to play a supportive role to the complainant or 
respondent. The commenter stated it was unclear why the Department 
chose to incorporate this Clery Act requirement into the proposed Title 
IX rules, particularly if such an advisor would then be expected to 
conduct a cross-examination. The commenter argued that incorporating 
this Clery Act requirement into the proposed Title IX rules and 
requiring that person to conduct cross-examination could lead to people 
who are untrained, or at best, with limited training offered to them by 
the institution performing a role they were never intended to perform 
under the existing Clery Act regulations and creates a destructive 
process for all parties involved.
    Discussion: There is no conflict between the regulations 
implementing the Clery Act and these final regulations implementing 
Title IX with respect to an advisor conducting cross-examination on 
behalf of a party. The regulations implementing the Clery Act in Sec.  
668.46(k)(2)(iii)-(iv) are similar to these final regulations and 
require that an institution provide an accuser and the accused with the 
same opportunities to have others present during any institutional 
disciplinary proceeding, including the opportunity to be accompanied to 
any related meeting or proceeding by the advisor of their choice and 
requires that an institution not limit the choice of advisor or 
presence for either the accuser or the accused. Under Sec.  
668.46(k)(2)(iv), an institution may establish restrictions regarding 
the extent to which the advisor may participate in the proceedings, as 
long as these restrictions apply equally to both parties. Section 
106.45(b)(5)(iv) contains almost the same language as Sec.  
668.46(k)(2)(iii)-(iv) with minor revisions to clarify that the advisor 
may be, but is not required to be, an attorney. Unlike the regulations 
implementing the Clery Act, these final regulations require that 
postsecondary institutions provide an advisor to the parties for the 
purpose of conducting cross-examination at the hearing. This 
requirement does not conflict with the Clery Act regulations, as this 
requirement applies to both parties. As previously noted, the 
Department may impose different requirements on recipients of Federal 
financial assistance with respect to Title IX, which prohibits sex 
discrimination, than on recipients of Federal financial student aid 
with respect to the Clery Act. The Department's rationale for requiring 
that postsecondary institutions provide an advisor to the parties for 
the purpose of cross-examination at the live hearing or allow a party 
to have an advisor who conducts cross-examination at the live hearing 
is more fully explained in the ``Section 106.45(b)(6)(i) Postsecondary 
Institution Recipients Must Provide Live Hearing with Cross-
Examination'' subsection of the ``Hearings'' subsection of the 
``Section 106.45 Recipient's Response to Formal Complaints'' section of 
this preamble.
    Nothing in these final regulations precludes a recipient from 
preventing an advisor from being disruptive, and a recipient may 
implement rules about appropriate conduct at an interview, meeting, 
hearing, etc., to require all participants to behave in an orderly 
manner. Advisors may continue to provide support to the parties, and an 
advisor's role is not limited to an adversarial role. Institutions also 
are welcome to provide training to advisors on cross-examination. The 
Department fully acknowledges that the role of advisors under these 
final regulations, implementing Title IX, differs in some respects from 
the rules relating to advisors under the Department's Clery Act 
regulations. However, the rules regarding advisors under both sets of 
regulations are consistent with each other and do not preclude a 
recipient from complying with both. The Department does not believe 
that any such differences, including the requirement to perform cross-
examination, will lead to a destructive process and believes that this 
requirement will lead to a fair, impartial process that will help 
assess allegations of sexual harassment, as defined in Sec.  106.30.
    Changes: None.
    Comments: One commenter asserted that the requirements in the 
proposed Title IX rules related to the standard of evidence are 
inconsistent with the language in the Clery Act final regulations. The 
commenter stated that in the Clery Act final regulations, the 
Department allowed institutions to select between the preponderance of 
the evidence standard and the clear and convincing evidence standard 
without

[[Page 30519]]

an emphasis on one standard over the other or challenges to 
implementing the chosen standard. The commenter further stated that in 
response to comments on the proposed Clery Act rules that the 
Department should require the clear and convincing evidence standard 
because this standard better safeguards due process, the Department 
stated that an institution can comply with both Title IX and the Clery 
Act by using a preponderance standard. The commenter expressed concern 
that the Department's proposed Title IX rules put significant bounds on 
when the preponderance of the evidence standard can be used versus the 
clear and convincing evidence standard with a clear intent to push 
recipients to use the clear and convincing evidence standard, which 
they argue is a reversal of previous Department policy without any 
explanation other than that campus conduct processes are not the same 
as civil litigation. The commenter further argued that the Department 
has not previously contended that the campus conduct process must hold 
the same level of process as a lawsuit in Federal court, and it is 
clear this was never Congress's intent based on the language in the 
Clery Act final regulations.
    Discussion: Under these final regulations, the Department will 
allow recipients to adopt either a preponderance of the evidence 
standard or a clear and convincing evidence standard. The Department 
does not emphasize one standard over another and is not moving forward 
with its proposal to require that a recipient adopt the same standard 
for conduct code violations that do not involve sexual harassment but 
carry the same maximum disciplinary sanction. The only requirement in 
Sec.  106.45(b)(7) is that recipients use the same standard of evidence 
for complaints against students as it does for complaints against 
employees, including faculty. As explained in more detail elsewhere in 
this preamble and in the ``Section 106.45(b)(1)(vii) Describe Standard 
of Evidence and Directed Question 6'' subsection of the ``General 
Requirements for Sec.  106.45 Grievance Process'' subsection of the 
``Section 106.45 Recipient's Response to Formal Complaints'' section of 
this preamble, requiring a higher standard of evidence for a student's 
formal complaint against an employee than a student's formal complaint 
against another student is unfair, especially in light of the power 
deferential between a student and an employee such as a faculty member.
    The Department disagrees that it is imposing the same level of 
process that a Federal district court requires. For example, these 
final regulations do not contain a comprehensive set of rules of 
evidence. Neither party may issue a subpoena to gather information from 
each other or the recipient for purposes of the grievance process under 
Sec.  106.45. Congress's intent in enacting the Clery Act is not 
particularly relevant in determining what Title IX requires to prohibit 
discrimination on the basis of sex in a recipient's education program 
or activity against a person in the U.S.
    Changes: None.
    Comments: One commenter expressed support for Sec.  106.45(b)(7) 
(Determinations Regarding Responsibility) because the requirement to 
share information about sanctions imposed on the respondent is 
consistent with both FERPA and the requirements under the Clery Act, 
for crimes of violence and nonforcible sex offenses.
    Some commenters expressed general concerns with some requirements 
in the proposed Title IX rules on the grounds that they violate 
complainants' rights to privacy and disagreed with the Department's 
assertion that these requirements track language in the Clery Act. Some 
of these commenters noted that the Clery Act requires an institution to 
maintain as confidential any accommodations and protective measures 
provided to the victim.
    One commenter expressed concern that Sec.  106.45(b)(7) conflicts 
with Sec.  668.46(k)(2)(v), implementing the Clery Act. The Clery Act 
regulations clarify that the disclosure of the ``result'' to the victim 
must include information on any sanctions imposed and the rationale for 
the results and sanction. Several commenters suggested that Sec.  
106.45(b)(7) should be modified to mirror the Clery Act. One commenter 
requested to know what the purpose of generally tracking the Clery Act 
language is in sections such as Section 106.45(b)(7).
    Several commenters argued that Section 106.45(b)(7) should align 
completely with the Clery Act, including requiring that an institution 
maintain as confidential any accommodations or protective measures 
provided to the victim.
    One commenter noted the differences between what the Clery Act 
requires to be included in a written determination regarding 
responsibility and what the proposed Title IX rules require and 
expressed concern that the proposed Title IX rules exceed what is 
required by the Clery Act. The commenter asserted that the additional 
content that must be included in the written determination regarding 
responsibility under Title IX are burdensome, repetitive, and 
unnecessary, particularly given the requirements that the parties have 
already been provided the investigative report.
    Some commenters expressed specific concerns with Sec.  106.45(b)(7) 
which requires recipients to create and make available to the 
complainant information that includes the determination regarding 
responsibility, disciplinary sanctions imposed on the respondent, and 
remedies provided to the complainant and aspects of Sec.  106.45(b)(7) 
which requires that the recipient's written determination, which is 
provided to both parties, include, among other things, any remedies 
provided by the recipient to the complainant designed to restore or 
preserve equal access to the recipient's education program or activity. 
The commenters asserted that it is a violation of the complainant's 
privacy to include information about remedies and supportive measures 
and, as such, that information should not be included in the 
recipient's report nor disclosed to the respondent and that disclosure 
of such information about supportive measures and remedies provided to 
the complainant violated, among other things, the Clery Act. The 
commenters stated that compliance with Title IX's mandate to prohibit 
discrimination based on sex is not served in any fashion by informing a 
respondent of the remedies and supportive measures that a complainant 
received and disclosing such information is also unconnected to the 
Department's stated purpose of assuring compliance with proper 
procedure. The commenters argued that the Department's assertion in the 
preamble that the language in the proposed regulations that the written 
determination include information on any remedy given to the 
complainant and be provided to both parties generally tracks the 
language of the Clery Act regulations is inaccurate because the Clery 
Act does not permit the disclosure of confidential student information. 
The commenters noted that while the Clery Act requires that the 
complainant and respondent receive notification of the result of the 
disciplinary proceeding, defined as ``any initial, interim and final 
decision by any official or entity authorized to resolve disciplinary 
matters within the institution,'' there is no provision in the Clery 
Act for providing information about supportive measures or remedies 
provided to the complainant. Moreover, the commenters argued that in 
the preamble to the Clery Act final regulations the Department stated 
that while institutions may need to disclose

[[Page 30520]]

some information about a victim to a third party to provide necessary 
accommodations, institutions may disclose only information that is 
necessary to provide the accommodations or protective measures and 
should carefully consider who may have access to this information to 
minimize the risk to a victim's confidentiality. To alleviate these 
concerns, the commenters recommended that the Department remove any 
requirement to include information regarding remedies and supportive 
measures accessed by the complainant from the requirements related to 
documentation of the recipient's response to a Title IX complaint and 
instead follow FERPA and the Clery Act for the confidentiality of such 
information.
    Discussion: The Department appreciates the comments in support of 
these final regulations. Some commenters mistakenly thought that the 
proposed regulations require a recipient to share the supportive 
measures that a complainant receives with the respondent. Neither the 
proposed regulations nor these final regulations require a recipient to 
share with the complainant or respondent any supportive measures that 
either party receives. The definition of supportive measures in Sec.  
106.30 clearly states: ``The recipient must maintain as confidential 
any supportive measures provided to the complainant or respondent, to 
the extent that maintaining such confidentiality would not impair the 
ability of the recipient to provide the supportive measures.'' 
Accordingly, a recipient is required to maintain confidentiality with 
respect to supportive measures as long as such confidentiality does not 
impair the ability of the recipient to provide the supportive measures. 
Similarly, a recipient is required to maintain records of supportive 
measures under Sec.  106.45(b)(10)(C)(ii), and these records, unlike 
training materials as specified in Sec.  106.45(b)(10), are not 
publicly available. The Department, thus, maintains the confidentiality 
of the parties with respect to supportive measures.
    There also is no conflict between Sec.  668.46(k)(2)(v), 
implementing the Clery Act, and Sec.  106.45(b)(7) regarding a written 
determination regarding responsibility. There are many similarities 
between these two provisions. For example, under both the Clery Act and 
these final regulations, both parties receive written notification of 
the results of the hearing simultaneously.
    These final regulations in Sec.  106.45(b)(7) have been revised to 
clarify that for purposes of Title IX, the result includes the 
sanctions for the respondent and whether remedies will be provided by 
the recipient to the complainant. The Department agrees with commenters 
who noted that a respondent does not need to know the specific remedies 
that a complainant receives to restore or preserve equal access to the 
recipient's education program or activity. For example, if the 
recipient changed a complainant's housing arrangements as part of the 
remedy, there is no reason for the respondent to know about this 
change. Both parties, however, will know whether the recipient will 
provide remedies to the complainant but not what these exact remedies 
are. The Department states in Sec.  106.45(b)(7)(ii)(E) that the 
parties must be informed in writing of ``the result as to each 
allegation, including a determination regarding responsibility, any 
sanctions the recipient imposes on the respondent, and whether remedies 
will be provided by the recipient to the complainant designed to 
restore or preserve access to the recipient's education program or 
activity.'' These final regulations do not differ from the Clery Act 
regulations in requiring that both parties be notified of the result of 
any disciplinary proceeding.
    The Department acknowledges that these final regulations 
implementing Title IX, may require information in the written 
determination that the Clery Act regulations do not require, such as 
the findings of fact supporting the determination under Sec.  
106.45(b)(7)(ii)(C). (The Clery Act regulations in Sec. Sec.  
668.46(k)(2)(v)(A) and 668.46(k)(3)(iv) require that both parties 
receive written notification of the results of the hearing 
simultaneously and specify that the results of the hearing include any 
initial, interim, or final decision as well as the rationale for the 
result and the sanctions.) Parties should know the findings of fact 
that support a determination regarding sexual harassment. As explained 
in more detail in the section ``Determinations Regarding 
Responsibility'' of this preamble, the Department believes Sec.  
106.45(b)(7) serves the important function of ensuring that both 
parties know the factual basis for the outcome of the grievance 
process. Requiring decision-makers to provide findings of fact helps 
verify whether the decision-maker is exercising independent judgment 
and making an evaluation free from bias. As previously explained, the 
Department may deviate from the Clery Act regulations, which apply to 
recipients of Federal student financial aid, in these Title IX final 
regulations, which apply to recipients of Federal financial assistance. 
The Department explains its rationale for adopting these requirements 
for a written determination pursuant to Title IX in the 
``Determinations Regarding Responsibility'' subsection of the ``Section 
106.45 Recipient's Response to Formal Complaints'' section of this 
preamble.
    The Department has revised the proposed regulations to include a 
provision regarding retaliation in Sec.  106.71(a) that requires a 
recipient to keep the identity of any individual who has made a report 
or complaint of sex discrimination, including any individual who has 
made a report or filed a formal complaint of sexual harassment, any 
complainant, any individual who has been reported to be the perpetrator 
of sex discrimination, any respondent, and any witness, except as may 
be permitted by the FERPA statute or regulations or as required by law 
or to the extent necessary to carry out the purposes of this part, 
including the conduct of any investigation, hearing, or judicial 
proceeding arising thereunder. This provision helps ensure 
confidentiality and addresses some of the commenter's concerns.
    These final regulations are consistent with FERPA, and FERPA 
applies fully to Title IX proceedings under these final regulations. 
The commenter does not explain how these final regulations deviate from 
FERPA, and the Department interprets its regulations under FERPA to be 
fully consistent with these final regulations. The Department notes 
that its revision to require the written determination to state whether 
a complainant will receive remedies and not what remedies the 
complainant receives aligns with FERPA. As explained in greater detail 
in the section on FERPA, the specific remedies that a complainant 
receives are part of the complainant's education records and need not 
be disclosed to the respondent. The final regulations revise Sec.  
106.45(b)(7)(iv) to state that the Title IX Coordinator is responsible 
for effective implementation of remedies, thereby indicating that where 
a written determination states that the recipient will provide remedies 
to a complainant, the complainant can then communicate separately with 
the Title IX Coordinator to discuss the nature of such remedies.
    Changes: The Department revised the proposed regulations to include 
a provision regarding retaliation in Sec.  106.71(a) that requires a 
recipient to

[[Page 30521]]

keep confidential the identity of any individual who has made a report 
or complaint of sex discrimination, including any individual who has 
made a report or filed a formal complaint of sexual harassment, any 
complainant, any individual who has been reported to be the perpetrator 
of sex discrimination, any respondent, and any witness, except as may 
be permitted by the FERPA statute or regulations or as required by law 
or to the extent necessary to carry out the purposes of 34 CFR part 
106, including the conduct of any investigation, hearing, or judicial 
proceeding arising thereunder. The Department also revised Sec.  
106.45(b)(7)(ii)(E) to state that the parties must be informed in 
writing of the result as to each allegation, including any sanctions 
the recipient imposes on the respondent and whether remedies will be 
provided by the recipient to the complainant. The Department further 
revised Sec.  106.45(b)(7)(iv) to provide that the Title IX Coordinator 
is responsible for the effective implementation of remedies.
    Comments: One commenter expressed concern with the proposed rules 
defining sexual assault as defined by the Clery Act. The commenter 
asserted that the Clery Act defines sexual assault as carnal knowledge 
of another person and does not define consent, which the commenter 
argued is a necessary component of sexual activity. The commenter 
further stated that failing to include affirmative consent buys into 
rape myths including that silence is consent.
    Some commenters expressed concerns regarding the requirement in the 
proposed Title IX rules that supportive measures be non-punitive, non-
disciplinary, and pose no unreasonable burden on the other party noting 
that there is no similar requirement in the Clery Act. The commenters 
specifically mentioned changes to the respondent's class or residence 
following the filing of a formal complaint or a mutual restriction on 
contact between the parties as examples of accommodations that are 
fairly routine, but which may be prohibited under the proposed Title IX 
rules. The commenters asserted because there are no such restrictions 
on accommodations for survivors in the Clery Act, there should be no 
such restrictions on supportive measures under Title IX. One commenter 
also noted that the Clery Act does not limit accommodations to only 
those that are reasonably available and designed to preserve or restore 
access to the school's program. A commenter also expressed concern that 
the requirement that the supportive services be provided somehow in 
relation to a complaint conflicts with the Clery Act requirements that 
victims not be required to file any kind of report to be entitled to 
interim protective measures and accommodations.
    One commenter asserted that the Clery Act even more directly 
requires that recipients minimize the burden on complainants rather 
than worrying about the burden on respondents and noted that the 
definition of supportive measures in the proposed Title IX rules is 
particularly problematic because the proposed Title IX rules also 
require that respondents be presumed not responsible. Some commenters 
expressed specific concerns that requiring respondents be presumed not 
responsible conflicts with the fair and impartial investigation 
required by the Clery Act, which requires that an institution make no 
predetermination in favor of either the complainant or respondent. 
These commenters asserted that this requirement in the proposed Title 
IX rules explicitly requires that recipients presume complainants are 
lying, thereby denying sexual misconduct victims the equitable, 
impartial treatment throughout grievance procedures to which they are 
entitled under Title IX and the Clery Act and would erode any 
confidence in the processes and institutions.
    Discussion: The Department appreciates the commenter's concern 
about the definition of consent with respect to sexual assault and 
intentionally does not require recipients to adopt a particular 
definition of consent. The Department added language in Sec.  106.30 to 
clarify that the Assistant Secretary will not require recipients to 
adopt a particular definition of consent with respect to sexual 
assault. Accordingly, recipients may adopt their own definition of 
consent. The Department is not buying into any ``rape myths'' by not 
endorsing a particular definition of consent and is giving recipients 
the discretion to adopt a definition that it deems appropriate. 
Allowing a recipient to adopt its own definition of consent also helps 
avoid any conflict with State or local laws that may require a 
recipient to adopt a particular definition of consent.
    The Department acknowledges that there are differences between the 
Clery Act regulations, and these final regulations implementing Title 
IX. Contrary to the commenter's assertions, the Department does not 
require a complainant to file a formal complaint before considering 
whether to provide supportive measures. The Department clarifies in 
Sec.  106.44(a) that a recipient must offer supportive measures to a 
complainant irrespective of whether the complainant files a formal 
complaint. The Clery Act regulations are silent in this regard and do 
not require such consideration unless the complainant requests 
accommodations. The Clery Act regulations at Sec.  668.46(b)(11)(v) 
provide that the institution must have ``[a] statement that the 
institution will provide written notification to victims about options 
for, available assistance in, and how to request changes to academic, 
living, transportation, and working situations or protective measures 
[and that t]he institution must make such accommodations or provide 
such protective measures if the victim requests them and if they are 
reasonably available, regardless of whether the victim chooses to 
report the crime to campus police or local law enforcement.'' The 
Department notes that this Clery Act regulation does not require any 
recipient to impose any accommodations that are disciplinary and 
punitive. The commenter is also mistaken that the Title IX regulations 
prohibit a recipient from providing a no-contact order. Both the 
proposed Title IX regulations \1838\ and these final regulations allow 
for mutual restrictions on contact between the parties as stated in 
Sec.  106.30, and Sec.  106.30 does not expressly prohibit other types 
of no-contact orders such as a one-way no-contact order. Any supportive 
measures, however, must be non-disciplinary, non-punitive, and must not 
unreasonably burden the other party, under Sec.  106.30. Additionally, 
a sanction for a respondent may consist of or include a one-way no-
contact order that only prohibits the respondent from contacting the 
complainant.
---------------------------------------------------------------------------

    \1838\ 83 FR 61496.
---------------------------------------------------------------------------

    The Department does not agree with the commenter's belief that the 
definition of supportive measures in these final regulations is 
particularly problematic in light of the presumption of non-
responsibility for the respondent prescribed in Sec.  106.45(b)(1)(iv). 
The definition of supportive measures in Sec.  106.30 requires any 
supportive measures to be non-punitive and non-disciplinary because the 
respondent should receive due process through a grievance procedure 
under Sec.  106.45 before the imposition of any sanctions or 
discipline, as stated in Sec.  106.44(a). The presumption of non-
responsibility does not provide any advantage to the respondent over 
the complainant and certainly does not require a recipient to believe 
that a complainant is lying. This presumption only helps ensure that a 
respondent is not treated as responsible

[[Page 30522]]

prior to being proved responsible (subject to exceptions stated under 
these final regulations, such as Sec.  106.44(c) emergency removal or 
Sec.  106.44(d) administrative leave applied to a non-student employee-
respondent). As discussed in the ``Section 106.45(b)(1)(iv) Presumption 
of Non-Responsibility'' subsection of the ``General Requirements for 
Sec.  106.45 Grievance Process'' subsection of the ``Section 106.45 
Recipient's Response to Formal Complaints'' section of this preamble, 
the presumption does not allow, much less require, a recipient to 
presume that a respondent is truthful or credible. Notwithstanding the 
presumption of non-responsibility, credibility determinations cannot be 
based on a party's status as a complainant or respondent, and 
recipients must reach determinations without prejudging the facts at 
issue and by objectively evaluating all relevant evidence.\1839\
---------------------------------------------------------------------------

    \1839\ Section 106.45(b)(1)(ii).
---------------------------------------------------------------------------

    Changes: The Department clarifies in Sec.  106.44(a) that a 
recipient must offer supportive measures to a complainant irrespective 
of whether the complainant files a formal complaint.
    Comments: Some commenters expressed general concern that the 
proposed Title IX rules would tilt investigation procedures in favor of 
the respondent and have unclear time frames for investigations and thus 
conflict with the Clery Act requirement that investigations be 
``prompt, fair, and impartial.''
    Discussion: These final regulations do not tilt the investigation 
procedures in favor of the respondent and certainly do not allow a 
recipient to delay an investigation. The Department notes that the 
Clery Act and its implementing regulations do not include a specific 
time frame for an investigation. The Department has revised Sec.  
106.44(a) to clarify that when a recipient has actual knowledge of 
sexual harassment in its education program or activity against a person 
in the U.S., the recipient must respond ``promptly.'' These final 
regulations also provide in Sec.  106.45(b)(1)(v) that a recipient must 
designate reasonably prompt time frames for conclusion of the grievance 
process, including reasonably prompt time frames for filing and 
resolving appeals and informal resolution process(es) if the recipient 
offers informal resolution process(es). Accordingly, these final 
regulations are consistent with the requirement in the Clery Act and 
its implementing regulations that investigations must be prompt, fair, 
and impartial.
    Changes: The Department has revised Sec.  106.44(a) to clarify that 
when a recipient has actual knowledge of sexual harassment in its 
education program or activity against a person in the U.S., the 
recipient must respond ``promptly.''
    Comments: One commenter expressed concern that the definition of 
actual knowledge in the proposed Title IX rules, which limits the 
categories of employees to whom notice constitutes actual knowledge on 
the part of the institution, conflicts with the sections of the Clery 
Act that overlap in this area. The commenter asserted that this is 
especially cause for concern because the proposed Title IX rules adopt 
the Clery Act definition of sexual assault. The commenter argued that 
establishing requirements for an institution to respond to allegations 
of sexual harassment merely so they are not found deliberately 
indifferent does not exonerate institutions from complying with the 
Clery Act's requirement to respond to reports of sexual assault. As a 
result, institutions would be compelled to develop parallel processes 
for reporting, investigating, adjudicating, and providing supportive 
measures for some cases, which does not align with the Department's 
stated goal of wanting to streamline Title IX to make the existing 
response efforts more effective and less burdensome.
    Some commenters asserted that adopting ``actual knowledge'' will 
enable institutions to combine the mandatory reporter lists from Title 
IX and the Clery Act and will eliminate confusion over who is a 
mandatory reporter for what conduct. Another commenter stated that 
under the Clery Act, Campus Security Authorities (CSAs) are defined by 
the Department as the very wide-ranging group of individuals whose 
campus role gives them ``significant responsibility for student and 
campus activities'' and thus the responsibility to report crimes 
reported to them. The commenter stated that there is not a perfect 
overlap between CSAs and responsible employees under existing Title IX 
guidance, and there is sexual harassment which is actionable under 
Title IX but which does not rise to the level of a Clery-reportable 
crime, but the commenter argued that it is incoherent to say that if an 
individual has such significant responsibility for student and campus 
activities that they put the institution on notice of Clery-reportable 
crimes, that they do not also put the institution on notice of Title 
IX-actionable harassment, especially when the same behavior spans both 
categories. The commenter argued that one of the reasons that the 
Department has taken this approach in the Clery context is that CSAs 
under the Clery Act are regularly and highly trained in the intricacies 
of their reporting responsibilities and determining precisely the 
elements of incident and geography that compose a Clery-reportable 
incident and event in the Daily Crime Log. It is not left to untrained 
and undertrained individuals to make these determinations, whereas 
removing the responsible employee designation for Title IX does 
precisely that. One commenter asserted that the proposed rules 
regarding employees obligated to report directly conflicts with the 
Clery Act without providing additional reasons regarding the 
commenter's reasons for believing such a conflict exists. The commenter 
expressed concern that many students do not feel safe reporting 
incidents to university administrators and would feel safer disclosing 
information to a resident advisor or trusted faculty member and having 
responsible employees on college campuses ensures that students are at 
least contacted by the Title IX office to ensure they know there are 
supportive resources available to them.
    Discussion: The Department disagrees that ``actual knowledge'' as 
defined in Sec.  106.30 and referenced in Sec.  106.44(a) conflicts 
with the Clery Act and its implementing regulations. The Department 
defines ``actual knowledge'' in Sec.  106.30 as notice of sexual 
harassment or allegations of sexual harassment to a recipient's Title 
IX Coordinator, to any official of the recipient who has authority to 
institute corrective measures on behalf of the recipient, or to any 
employee of an elementary and secondary school.\1840\ The Department 
disagrees that this definition limits the categories of employees to 
whom notice charges an elementary and secondary school recipient with 
actual knowledge, because under revised Sec.  106.30 defining ``actual 
knowledge,'' notice to any employee of such a recipient riggers the 
recipient's response obligations. The Department does not believe the 
Sec.  106.30 definition of ``actual knowledge'' is limiting as to 
postsecondary institutions. The reference in Sec.  106.30 to an 
``official of

[[Page 30523]]

the recipient who has authority to institute corrective measures on 
behalf of the recipient'' does not limit the categories of 
postsecondary employees to whom notice might trigger the postsecondary 
institution's response obligation, because the institution may in its 
discretion designate and grant authority to specific categories of 
employees to institute corrective measures on its behalf, thereby 
assuring that such employees' knowledge of sexual harassment or alleged 
sexual harassment conveys actual knowledge to the recipient. The final 
regulations allow each recipient to make such determinations taking 
into account the recipient's unique educational environment, including 
which employees the recipient's students may expect to be required to 
report disclosures of sexual harassment to the Title IX Coordinator, 
versus any of the recipient's employees in whom students at 
postsecondary institutions may benefit from confiding sexual harassment 
experiences without triggering a mandatory report to the Title IX 
Coordinator.
---------------------------------------------------------------------------

    \1840\ For discussion of the actual knowledge definition and 
requirement, see the ``Actual Knowledge'' subsection of the 
``Adoption and Adaption of the Supreme Court's Framework to Address 
Sexual Harassment'' section, the ``Actual Knowledge'' subsection of 
the ``Section 106.30 Definitions'' section, and the ``Section 
106.44(a) `actual knowledge' '' subsection of the ``Section 106.44 
Recipient's Response to Sexual Harassment, Generally'' section of 
this preamble.
---------------------------------------------------------------------------

    The Department acknowledges that there are different requirements 
in the Clery Act and its implementing regulations. The obligations that 
recipients have under these final regulations and under the regulations 
implementing the Clery Act differ in some respects, but there is no 
inherent conflict between the two statutory schemes or their respective 
implementing regulations. The Department agrees with a commenter that 
compliance with these final regulations does not necessarily equate 
with compliance with the Clery Act regulations. The Department 
disagrees, however, that institutions would need a different grievance 
process than the process in Sec.  106.45 to respond to allegations of 
sexual assault, domestic violence, dating violence, or stalking under 
these regulations implementing Title IX and under the Clery Act 
regulations because Sec.  106.30 expands the definition of sexual 
harassment to include dating violence, domestic violence, and stalking 
under the Clery Act. Additionally, these final regulations clarify in 
Sec.  106.45(b)(3) that dismissal of a formal complaint because the 
conduct does not fall under Title IX jurisdictional requirements does 
not preclude a recipient from addressing the conduct through the 
recipient's own code of conduct. Nothing in the final regulations 
prevents a recipient from using the same grievance process required 
under Sec.  106.45, to address other misconduct.
    The Department also disagrees that there is any conflict between 
these final regulations and the definition of campus security 
authorities (CSAs) under the Clery Act regulations. If a campus 
security authority is an official of the recipient who has authority to 
institute corrective measures on behalf of the recipient with respect 
to sexual harassment or allegations of sexual harassment, then notice 
of sexual harassment or allegations of sexual harassment to that 
official constitutes actual knowledge. If a campus security authority, 
however, does not have authority to institute corrective measures on 
behalf of the recipient with respect to sexual harassment or 
allegations of sexual harassment, then notice of sexual harassment or 
allegations of sexual harassment to that official would not constitute 
actual knowledge to the recipient. The Department's 2001 Guidance 
referred to ``responsible employees'' in the Title IX context, but the 
Department no longer adheres to the rubric of ``responsible employees'' 
adopted in the 2001 Guidance. Instead, the Department is adopting a 
definition of actual knowledge in Sec.  106.30 and a deliberate 
indifference standard in Sec.  106.44(a). The Department notes that 
there have always been differences with respect to who may constitute a 
responsible employee under the Department's Title IX guidance, 
including the 2001 Guidance, and who constitutes a CSA under the 
Department's Clery Act regulations. Postsecondary institutions have 
long experience working with these requirements and are familiar with 
these differences.
    Under these final regulations, postsecondary institutions have more 
discretion (than under Department guidance) to determine which 
employees, other than the Title IX Coordinator, have authority to 
institute corrective measures on behalf of the recipient, and that is 
independent of whether such employees are CSAs under the Clery Act. 
Institutions may determine that all of their CSAs are officials who 
have the authority to institute corrective measures on behalf of the 
recipient with respect to sexual harassment or allegations of sexual 
harassment. It is very likely that at least some of an institution's 
CSAs have authority to institute corrective measures on behalf of the 
recipient for purposes of the conduct defined as ``sexual harassment'' 
under Sec.  106.30. For example, if a resident advisor has authority to 
institute corrective measures with respect to sexual harassment or 
allegations of sexual harassment on behalf of the recipient, then 
notice to that resident advisor conveys actual knowledge to the 
recipient under these final regulations, which is a separate inquiry 
from whether that resident advisor is a CSA under the Clery Act 
regulations. A CSA has crime reporting obligations under the Clery Act. 
If a CSA is also an official with authority to institute corrective 
measures as to sexual harassment, then under these final regulations, 
notice of sexual harassment to that CSA requires the institution's 
prompt response, whether or not the sexual harassment disclosed to that 
CSA constitutes a Clery Act crime that must be reported for Clery Act 
purposes. If a CSA is not an official with authority to institute 
corrective measures as to sexual harassment, then these final 
regulations allow the postsecondary institution to choose whether that 
CSA must report sexual harassment to the Title IX Coordinator or may 
remain a confidential resource for the postsecondary institution 
recipient's students (and employees) instead of being required to 
report the sexual harassment to the Title IX Coordinator. Even if the 
institution designates certain CSAs as confidential resources for Title 
IX purposes, CSAs may still be required to report sexual harassment 
(when the conduct also consists of a Clery crime) for Clery Act 
purposes, which does not require the CSA to divulge the student's name 
or identity.
    The ``mere ability or obligation to report sexual harassment or to 
inform a student about how to report sexual harassment, or having been 
trained to do so, does not qualify an individual as one who has 
authority to institute corrective measures on behalf of the recipient'' 
under Sec.  106.30 of these final regulations. Nothing in these final 
regulations precludes a recipient from giving more employees or 
officials the requisite authority to institute corrective measures with 
respect to sexual harassment or allegations of sexual harassment. 
Similarly, nothing in these final regulations precludes a recipient 
from training more employees or officials about how to report sexual 
harassment.
    Changes: None.
    Comments: While supportive of the Department's views on the 
importance of allowing parties to access evidence, one commenter was 
concerned that the way in which the access is provided is limited. The 
commenter stated that this provision is problematic because on many 
occasions one party has unrestricted access to some or all of the 
evidence while the other does not. The commenter asserted that only 
allowing

[[Page 30524]]

one party access to versions of the records that would, for example, 
allow them to search materials would create a significant procedural 
disadvantage and violate the Clery Act, and would be inconsistent with 
the proposed Title IX rule requirement that the parties have equal 
access to the records.
    One commenter asserted that the Clery Act permits an institution to 
withhold irrelevant or prejudicial evidence from both parties, with the 
understanding that such evidence will not be brought into the 
investigation/decision-making process, while the proposed Title IX 
rules at 106.45(b)(5)(vi) require that all evidence be disclosed, 
regardless of whether the investigator or decision-maker intends to 
rely on the information. The commenter argued that not only does the 
proposed Title IX language conflict with the Clery Act, it also has the 
potential for harmful information to be presented to both parties, 
regardless of relevancy. For example, commenters asserted, past 
victimization and mental health records of both involved parties may be 
brought into investigations and the decision-making process and be the 
subject of review and scrutiny by the opposing party, causing 
irreparable harm. Additionally, commenters argued, with students 
knowing that all evidence gathered will be brought into an 
investigation, it will significantly impair the university's ability to 
gather relevant information and cause students to not want to file a 
complaint or participate in the formal process.
    Commenters also discussed other potential conflicts with the Clery 
Act. One commenter asserted that the definition of complainant, which 
states that a complainant is the direct victim of the sexual misconduct 
reported, prevents third-parties from intervening and conflicts with 
the Clery Act's requirement that institutions of higher education 
respond properly to all reports of sexual violence and thwarts efforts 
to get students to intervene when they know their friends are 
experiencing sexual harassment but are too afraid to come forward.
    One commenter expressed concern that 106.45(b)(2) in the proposed 
Title IX rules does not mention that complainants are entitled to 
protection from retaliation regardless of whether their complaints are 
successful, as long as they acted in good faith and noted that the 
Clery Act requires institutions' sexual misconduct policies to include 
prohibition of retaliation.
    One commenter expressed concern that the proposed definition of 
sexual harassment, that is unwelcome conduct ``on the basis of sex'' 
conflicts with the definitions of sexual harassment in the Clery Act 
which defines sexual harassment to include conduct based on gender or 
perceived gender.
    One commenter stated that under the Clery Act, mediation would be 
considered a proceeding; therefore, all Clery Act requirements related 
to disciplinary procedures would still apply regardless of whether such 
proceedings are considered informal under Title IX.
    Discussion: The commenter mistakenly asserts that parties would not 
have equal access to the records under the proposed or final Title IX 
regulations. Like the proposed regulations,\1841\ these final 
regulations specifically provide in Sec.  106.45(b)(5)(vi) that the 
recipient must provide both parties an equal opportunity to inspect and 
review any evidence obtained as part of the investigation that is 
directly related to the allegations raised in a formal complaint, 
including the evidence upon which the recipient does not intend to rely 
in reaching a determination regarding responsibility and inculpatory or 
exculpatory evidence whether obtained from a party or other source, so 
that each party can meaningfully respond to the evidence prior to the 
conclusion of an investigation. Additionally, prior to completion of 
the investigative report, the recipient must send to each party and the 
party's advisor, if any, the evidence subject to inspection and review 
in an electronic format, and the parties must have at least ten days to 
submit a written response, which the investigator will consider prior 
to completion of the investigative report. Accordingly, the parties 
will have equal access to evidence under these final regulations.
---------------------------------------------------------------------------

    \1841\ 83 FR 61498.
---------------------------------------------------------------------------

    The Department disagrees that the Clery Act regulations require an 
institution to exclude irrelevant or prejudicial evidence. Pursuant to 
Sec.  668.46(k)(3)(i)(B)(3), an institution must ``provide[ ] timely 
and equal access to the accuser, the accused, and appropriate officials 
to any information that will be used during informal and formal 
disciplinary meetings and hearings.'' There is no conflict between this 
provision and the provision in Sec.  106.45(b)(5)(vi), requiring that a 
recipient provide both parties an equal opportunity to inspect and 
review any evidence obtained as part of the investigation that is 
directly related to the allegations raised in a formal complaint. A 
party's mental health records or other sensitive information is not 
always directly related to the allegations raised in a formal 
complaint. Additionally, these final regulations do not require a party 
to submit mental health records or other treatment records as part of 
the grievance process under Sec.  106.45. If a party chooses to submit 
such sensitive records and they are directly related to the allegations 
raised in a formal complaint, the party will have notice that the other 
party will have the opportunity to review and inspect such records. 
This requirement should not chill reporting and is essential to a fair, 
impartial hearing in which both parties have access to the evidence 
that may be used to prove or disprove the allegations raised in a 
formal complaint.
    Nothing in these final regulations prevents a bystander or someone 
who witnesses sexual harassment from reporting such sexual harassment 
to the Title IX Coordinator or other official who has authority to 
institute corrective measures on behalf of the recipient. When a person 
makes a report of sexual harassment to such an official, the recipient 
has actual knowledge. Pursuant to Sec.  106.44(a), if a recipient has 
actual knowledge of sexual harassment in its education program or 
activity against a person in the United States, the recipient must 
respond promptly in a manner that is not deliberately indifferent. 
Accordingly, these final regulations do not preclude a recipient from 
responding to a report of sexual harassment simply because someone 
other than the person who experienced the sexual harassment reports it 
to the Title IX Coordinator or another official.
    The Department appreciates the comment about retaliation and agrees 
that these final regulations should address retaliation. Accordingly, 
the Department has included a retaliation provision in these final 
regulations. The retaliation provision in these final regulations, 
Sec.  106.71 states in relevant part: ``No recipient or other person 
may intimidate, threaten, coerce, or discriminate against any 
individual for the purpose of interfering with any right or privilege 
secured by Title IX or this part, or because the individual has made a 
report or complaint, testified, assisted, participated, or refused to 
participate in any manner in an investigation, proceeding, or hearing 
under this part.'' This retaliation provision protects all persons who 
may be involved in a report, investigation, proceeding, or hearing 
under these final regulations.
    Contrary to the commenter's assertions, the Clery Act regulations 
do not define sexual harassment. The Clery Act regulations provide 
definitions of sexual assault, dating violence,

[[Page 30525]]

domestic violence, and stalking, and none of these definitions refer to 
gender identity. These final regulations refer to sex because Title IX, 
20 U.S.C. 1681, expressly prohibits discrimination ``on the basis of 
sex.''
    The Department is not implementing the Clery Act or revising the 
Clery Act regulations in these final regulations. The Department's 
Office of Postsecondary Education may provide technical assistance as 
to whether mediation may be a disciplinary proceeding that requires 
procedures under Sec.  668.46(k) of the Clery Act regulations. With 
respect to these final regulations, the Department notes that most 
mediations do not require a standard of evidence or an investigation, 
and under these final regulations, both parties must provide voluntary, 
written consent to an informal resolution process under Sec.  
106.45(b)(9)(ii).
    Changes: None.
    Comments: A number of commenters requested modifications to the 
proposed rules. Several commenters referenced the requirement in 
106.45(b)(7)(i)-(ii) of the proposed Title IX rules requiring that 
recipients create, make available to the complainant and respondent, 
and maintain for a period of three years records of any sexual 
harassment investigation, the results of that investigation, any appeal 
from that investigation, and all training materials relating to sexual 
harassment. The commenters suggested that instead of the proposed 
three-year period of retention, the Department instead require that 
such records be maintained for a period of seven years which is the 
period of retention required under the Clery Act.
    One commenter expressed opposition to the notion that the Title IX 
Coordinator is the only person that can receive information sufficient 
to put an institution of higher education on notice. The commenter was 
concerned that limiting notice to the Title IX Coordinator removes the 
responsibility to train employees and otherwise implement compliant 
policies and creates an environment easily manipulated so that the 
institution would never have notice sufficient to create liability. To 
address these concerns, the commenter recommended that the Department 
coordinate reporting and knowledge requirements under Title IX with the 
Clery Act with the caveat that individuals who are ``victim advocates'' 
should be excluded from reporting. The commenter argued that aligning 
the list of individuals for reporting and notice under Title IX and the 
Clery Act would align two Federal laws and also clarify for students 
who has a duty to report knowledge of sexual harassment and simplify 
for institutions of higher education who among their faculty and staff 
have a duty to report what. This commenter recommended that persons 
classified under the proposed Clery/Title IX aligned reporting list be 
responsible for following campus protocols, informing students of who 
is qualified to receive a formal complaint, and notifying campus 
officials of becoming aware of the harassment without instigating a 
formal complaint.
    One commenter asserted a general conflict with the Clery Act 
mandates for CSAs and the proposed rules, stating that it is reasonable 
to assume that if a student went to a school official and disclosed 
having experienced sexual violence they would be provided with 
resources, since it is a school's duty to keep students safe on campus. 
To address this concern, the commenter recommended that the Title IX 
regulation be consistent with the Clery Act and require schools to 
publicize what individuals are classified as mandated reporters on a 
campus and any information that is shared to a mandated reporter (or 
CSA) should result in supportive measures being offered to the person 
who makes a report.
    Discussion: The Department agrees with commenters who recommended a 
seven-year record retention period to align with the Clery Act 
regulations. Accordingly, the Department has revised Sec.  
106.45(b)(10) to require a seven-year retention period. Although the 
record retention period under these final regulations does not have to 
be the same as the record retention period under the regulations 
implementing the Clery Act, the Department believes it would be helpful 
to provide consistency and simplicity in this regard.
    Contrary to the commenter's assertions, these final regulations do 
not require an individual to report sexual harassment only to the Title 
IX Coordinator. Any official who has authority to take corrective 
action on behalf of a recipient has actual knowledge, and a recipient 
with actual knowledge of sexual harassment in its education program or 
activity against a person in the U.S. must respond promptly and in a 
manner that is not deliberately indifferent under Sec.  106.44(a).
    The Department appreciates the comments about campus security 
authorities and does not assume that every campus security authority 
has authority to institute corrective measures on behalf of a recipient 
with respect to sexual harassment or allegations of sexual harassment. 
If a recipient chooses to designate that all campus security 
authorities have such authority, then a recipient may do so. The Clery 
Act requirement to have campus security authorities, however, does not 
apply in the elementary and secondary school context and adopting that 
terminology in these title IX rules will cause confusion for recipients 
that are not postsecondary institutions that receive Federal student 
financial aid. Additionally, the obligations under the Clery Act and 
its regulations are different than Title IX and its regulations, and 
creating a ``Clery/Title IX aligned reporting list'' requires that the 
same people be responsible for two different sets of regulatory 
requirements and obligations, which may be confusing. For example, the 
Clery Act and its regulations apply to some conduct such as burglary 
and arson that is not considered sexual harassment under the Title IX 
final regulations, and similarly, Title IX and its regulations may 
apply to some conduct that is not a Clery crime. Having a Title IX 
Coordinator who is specially trained to handle allegations of sexual 
harassment pursuant to Sec.  106.45(b)(1)(iii) is important. A Title IX 
Coordinator performs unique functions that a Clery Act Coordinator and 
other persons who are responsible for compliance with the Clery Act do 
not perform, and anyone may report sexual harassment to the Title IX 
Coordinator.
    Although the Department does not require recipients to provide 
supportive measures in response to any report made to a campus security 
authority or a mandated reporter at a postsecondary institution, the 
Department has revised these final regulations to require a recipient 
to offer supportive measures in response to a report of sexual 
harassment, if the recipient has actual knowledge of sexual harassment 
in an education program or activity of the recipient against a person 
in the U.S. pursuant to Sec.  106.44(a). As previously explained, a 
recipient may choose to give all of its campus security authorities 
authority to institute corrective measures on behalf of the recipient 
with respect to sexual harassment or allegations of sexual harassment. 
With respect to the elementary and secondary context, notice to any 
employee of the elementary and secondary school conveys actual 
knowledge to the recipient under Sec.  106.30.
    Changes: The Department has revised Sec.  106.45(b)(10) to require 
a seven-year record retention period. The Department also revised these 
final regulations to require a recipient to offer supportive

[[Page 30526]]

measures to a complainant, if the recipient has actual knowledge of 
sexual harassment in an education program or activity of the recipient 
against a person in the U.S. pursuant to Sec.  106.44(a).
    Comments: One commenter expressed concern that actual knowledge as 
defined under the proposed Title IX rules is too narrow and would 
provide an incentive for institutions to discourage employees, whom 
students may reasonably believe have the authority to take corrective 
action, from communicating reports of sexual harassment or assault to 
the Title IX Coordinator. The commenter asserted that the individuals 
to whom notice would constitute actual knowledge under the proposed 
Title IX rules is inconsistent with the Clery Act. For example, the 
commenter argued, a student could report a rape to an athletic coach 
who is a CSA under the Clery Act and the institution would then be 
required to include the reported crime in its crime statistics, and may 
even issue a timely warning to the campus community under the Clery 
Act, but then deny actual knowledge of the rape for Title IX purposes 
if the student does not then duplicate their initial report to the 
Title IX Coordinator. To address these concerns, the commenter 
recommended that the Department expand the definition of actual 
knowledge to include anyone who otherwise has the duty to report crimes 
to the institution for State and/or Federal law purposes.
    Discussion: The Department defines ``actual knowledge'' in Sec.  
106.30 as notice of sexual harassment or allegations of sexual 
harassment to a recipient's Title IX Coordinator or any official of the 
recipient who has authority to institute corrective measures on behalf 
of the recipient, or to any employee of an elementary and secondary 
school. In elementary and secondary schools, if any employee of an 
elementary and secondary school has notice of sexual harassment or 
allegations of sexual harassment as described in the definition of 
``actual knowledge'' in Sec.  106.30, such notice conveys actual 
knowledge to a recipient and requires a recipient to respond to any 
alleged sexual harassment in a recipient's education program or 
activity against a person in the U.S. Accordingly, if an athletic coach 
is an employee of an elementary and secondary school, then that coach 
would have actual knowledge if the coach has notice of sexual 
harassment or allegations of sexual harassment as defined in Sec.  
106.30.
    With respect to postsecondary institutions, the Department does not 
assume that all campus security authorities (CSAs) have the authority 
to institute corrective measures on behalf of a recipient with respect 
to sexual harassment or allegations of sexual harassment, and as 
discussed previously, these final regulations give postsecondary 
institutions discretion to decide to authorize certain employees in a 
manner that makes those employees ``officials with authority'' as 
described in Sec.  106.30, and to decide that other employees should 
remain confidential resources to whom a student at a postsecondary 
institution might disclose sexual harassment without automatically 
triggering a report by the employee to the Title IX Coordinator. With 
respect to the commenter's hypothetical about a timely warning, a 
recipient that issues a timely warning also creates actual knowledge of 
sexual harassment because the timely warning would go to the entire 
campus community, including to officials who have the authority to 
institute corrective measures on behalf of the recipient. A recipient 
with actual knowledge of sexual harassment in its education program or 
activity against a person in the U.S. must respond promptly and in a 
manner that is not deliberately indifferent under Sec.  106.44(a).
    Changes: None.
    Comments: Another commenter agreed that the Title IX Coordinator, 
investigator, or decision-maker should be fair and impartial, but was 
concerned that the language in Sec.  106.45(b)(1)(iii) is confusing and 
does not provide administrators or students with a clear, defined, 
understandable standard. The commenter also stated that although the 
Department indicated that the proposed rules are based on the Clery 
Act, the language in the Clery Act is limited to addressing a conflict 
of interest or bias for or against the accuser or accused while the 
proposed Title IX rule seeks to address conflict of interest or bias 
generally, as well as on an individual basis. To address this concern, 
the commenter recommended that the standard be revised to more clearly 
define the standard expected, e.g., require that any individual 
designated by a recipient as a Title IX Coordinator, investigator, or 
decision-maker not have a personal bias or prejudice for or against 
complainants or respondents generally, and not have an interest, 
relationship, or other consideration that may compromise, or have the 
appearance of compromising, the Title IX Coordinator's, investigator's, 
or decision-maker's judgement with respect to any individual complaint 
or respondent.
    One commenter expressed several concerns and requested 
clarification regarding conflicts of interest and bias. The commenter 
stated that Sec.  106.45(b)(1)(iii) is similar, although somewhat 
broader, than the Department's Clery Act regulations by requiring that 
proceedings be ``[c]onducted by officials who do not have a conflict of 
interest for or against either party.'' The commenter expressed concern 
that without a clear definition of ``conflict of interest'' or ``bias'' 
and in light of other confusing and conflicting aspects of the proposed 
rules, institutions will have difficulty implementing this requirement. 
The commenter also noted that to overcome the presumption that campus 
decision-makers are free of bias in Title IX litigation, courts require 
proof that a campus official had an actual bias against the party 
because of that party's sex, and the discriminatory actions flowed from 
that actual sex-based bias. The commenter expressed concern that absent 
additional clarification, the proposed rules suggest a reversal of the 
judicial presumption that campus decision-makers are free of bias. The 
commenter also asserted that the proposed rules would open the door to 
numerous claims that undermine the honesty in campus proceedings. The 
commenter stated that litigants in Title IX cases commonly argue that 
campus disciplinary officials were biased or conflicted because of 
their research agenda or pro-victim advocacy, but that the Department 
indicated in the Clery Act final regulations that a party could not 
support a claim of bias under Sec.  668.46(k)(3)(i) based on an 
allegation that ``ideologically inspired people dominate the pool of 
available participants'' in a sexual misconduct proceeding, which is 
similar to holdings from Federal courts. The commenter was concerned 
that the proposed rules offer no clarity as to whether the Department 
would accept such claims, which the commenter described as frivolous. 
The commenter further stated that the proposed rules do not clearly 
indicate whether the Department will consider an official's holding of 
two or more roles in the conduct process to be per se proof of bias or 
conflict of interest. The commenter stated that small community 
colleges, in particular, have limited staff resources to investigate 
and adjudicate campus sexual misconduct and stated that if the 
Department intends to prohibit any overlap in responsibilities among 
the Title IX Coordinator, investigator, or decision-maker, it must make 
that intention clear. The commenter

[[Page 30527]]

expressed concern that such a rule would provide due process 
protections exceeding those required by Federal and State courts and 
will strain already limited resources. Finally, the commenter expressed 
concern that the lack of clarity in the proposed rules regarding bias 
and conflicts of interest could impede efforts to bring trauma-informed 
practice to campus disciplinary proceedings. The commenter stated that 
the Clery Act regulations require annual training for officials, and 
several States mandate trauma-informed training for campus officials 
who respond to sexual assault. The commenter further noted that 
although courts generally reject arguments that trauma-informed 
practice constitutes a form of sex discrimination in favor of reporting 
individuals, the lack of clarity in the proposed rules could lead to 
further litigation in the future.
    Discussion: The Department appreciates the commenter's concerns and 
acknowledges that Sec.  668.46(k)(3)(i)(C) of the Clery Act regulations 
requires a prompt, fair, and impartial proceeding that is ``[c]onducted 
by officials who do not have a conflict of interest or bias for or 
against the accuser or the accused.'' These final regulations in Sec.  
106.45(b)(1)(iii) require that any individual designated by a recipient 
as a Title IX Coordinator, investigator, decision-maker, or any person 
designated by a recipient to facilitate an informal resolution process, 
not have a conflict of interest or bias for or against complainants or 
respondents generally or an individual complainant or respondent. The 
Department is not including the Clery Act language in these 
regulations. The Department believes that if a Title IX Coordinator, 
investigator, decision-maker, or person who facilities an informal 
resolution process has a conflict of interest or bias for or against 
complainants or respondents generally, then that conflict or bias will 
affect the grievance process under Sec.  106.45. Although the 
requirement regarding conflict of interest and bias may go beyond what 
some courts require, the Department is committed to providing a fair, 
impartial process to address sexual harassment under Title IX. 
Eliminating conflicts of interest and bias from the grievance process 
under Sec.  106.45 is important to help insure a fair, impartial 
process. The Department further notes that in the preamble to the final 
regulations, implementing the changes to the Clery Act, made by VAWA, 
the Department responded to commenters who asked whether Sec.  
668.46(k)(3)(i)(C) may address ``situations in which inappropriately 
partial or ideologically inspired people dominate the pool of available 
participants in a proceeding.'' \1842\ The Department responded that 
``without more facts we cannot declare here that such scenarios present 
a conflict of interest, but if they did, Sec.  668.46(k)(3)(i)(C) would 
prohibit this practice.'' \1843\ In these final regulations 
implementing Title IX, the Department more clearly states that a 
conflict of interest or bias may be for or against complainants or 
respondents generally or an individual complainant or respondent for 
purposes of Title IX.
---------------------------------------------------------------------------

    \1842\ U.S. Dep't. of Education, Office of Postsecondary 
Education, Final Regulations Implementing Changes to the Clery Act 
Made by VAWA, 79 FR 62752, 62775 (Oct. 20, 2014).
    \1843\ Id.
---------------------------------------------------------------------------

    The Department further notes that the Clery Act regulations do not 
further elaborate on what may constitute a conflict of interest or bias 
and further declines to do so in these final Title IX regulations. 
Recipients of Federal student financial aid have been able to determine 
what constitutes a conflict of interest or bias without definitions in 
the regulations implementing the Clery Act. Recipients of Federal 
financial assistance also enjoy some discretion to determine what may 
constitute a specific conflict of interest or bias with respect to the 
unique factual circumstances in a report of sexual harassment.
    The Department appreciates the commenter's concerns about whether 
an official may serve in dual roles, and these final regulations 
specify when serving in dual roles is prohibited. For example, the 
decision-maker who makes a written determination regarding 
responsibility cannot be the same person as the Title IX Coordinator or 
the investigator under Sec.  106.45(b)(7). The Department clarifies in 
these final regulations that the decision-maker for an appeal cannot be 
the Title IX Coordinator or any investigator or decision-maker that 
reached the determination regarding responsibility pursuant to Sec.  
106.45(b)(8)(iii).
    Recipients have discretion to train Title IX personnel in trauma-
informed approaches or practices, so long as all requirements of these 
final regulations are met. A trauma-informed approach or training on 
trauma-informed practices may be appropriate \1844\ as long as such an 
approach or training is consistent with Sec.  106.45(b)(1)(iii), which 
requires recipients to train Title IX personnel (i.e., Title IX 
Coordinators, investigators, decision-makers, persons who facilitate 
informal resolutions) to serve impartially, without prejudging the 
facts at issue, using materials free from reliance on sex stereotypes, 
and requires Title IX personnel to avoid conflicts of interest and bias 
for or against complainants or respondents generally or an individual 
complainant or respondent.
---------------------------------------------------------------------------

    \1844\ E.g., Jeffrey J. Nolan, Fair, Equitable Trauma-Informed 
Investigation Training (Holland & Knight updated July 19, 2019) 
(white paper summarizing trauma-informed approaches to sexual 
misconduct investigations, identifying scientific and media support 
and opposition to such approaches, and cautioning institutions to 
apply trauma-informed approaches carefully to ensure impartial 
investigations).
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter requested clarification regarding what is 
included in supportive measures under Title IX, especially given 
potential conflicts with the Clery Act. The commenter questioned 
whether supportive measures under Title IX would be defined to include 
victim advocacy, housing assistance, academic support, disability 
service, health and mental health service, legal assistance as they 
have in the past and requested clarification regarding whether anti-
retaliation measures are available. The commenter also noted that under 
the Clery Act, institutions must provide victims with written 
notification of their option to request changes in their academic, 
living, transportation, and working situations, and they must provide 
any accommodations or protective measures that are reasonably available 
once the student has requested them, regardless of whether the student 
has requested or received help from others or whether the student 
provides detailed information about the crime and questioned how this 
would be resolved in light of potential conflicts with the proposed 
Title IX rules and the limitations on the types of supportive measures 
institutions may provide under Title IX (e.g., non-punitive, non-
disciplinary, not unreasonably burdensome to other party).
    One commenter stated that Sec.  106.30 defines complainant as ``an 
individual who has reported being the victim of conduct that could 
constitute harassment, or on whose behalf the Title IX Coordinator has 
filed a formal complaint, '' while the Clery Act uses the word 
``victim'' throughout. The commenter requested clarification regarding 
the difference in language.
    Discussion: The Department appreciates the commenter's concerns 
regarding supportive measures and disagrees that these final 
regulations conflict with the Clery Act regulations with respect to 
supportive measures.

[[Page 30528]]

The Department notes in its definition of supportive measures in Sec.  
106.30 that supportive measures may ``include counseling, extensions of 
deadlines or other course-related adjustments, modifications of work or 
class schedules, campus escort services, mutual restrictions on contact 
between the parties, changes in work or housing locations, leaves of 
absences, increased security and monitoring of certain areas of the 
campus, and other similar measures.'' Supportive measures must be non-
disciplinary and non-punitive individualized services under Sec.  
106.30. The Clery Act regulations do not require supportive measures to 
be disciplinary or punitive. Additionally, the Department revised these 
final regulations to require a recipient to offer supportive measures 
to a complainant in response to a report of sexual harassment in the 
recipient's education program or activity against a person in the 
United States under Sec.  106.44(a). A recipient's Title IX Coordinator 
also must promptly contact the complainant to discuss the availability 
of supportive measures as defined in Sec.  106.30, consider the 
complainant's wishes with respect to supportive measures, inform the 
complainant of the availability of supportive measures with or without 
the filing of a formal complaint, and explain to the complainant the 
process for filing a formal complaint. These revisions clarify a 
recipient's obligation with respect to supportive measures.
    With respect to the concern about retaliation, the Department added 
a provision in Sec.  106.71 to prohibit retaliation, and this provision 
is explained in more detail in the section on ``Retaliation'' 
subsection of the ``Miscellaneous'' section in this preamble.
    The Department acknowledges that both the Clery Act and its 
implementing regulations include the term ``victim,'' while these final 
regulations include and define the term ``complainant.'' The Department 
again notes that the purpose of the Clery Act differs from the purpose 
of Title IX. The Clery Act generally concerns the disclosure of campus 
security policy and campus crime statistics, and the term ``victim'' is 
appropriate in the context of crime or criminal activity. Title IX 
concerns discrimination on the basis of sex, and these final 
regulations specifically address sex discrimination in the form of 
sexual harassment.
    The Department defines a complainant as ``an individual who is 
alleged to be the victim of conduct that could constitute sexual 
harassment'' under Sec.  106.30 and uses the word ``victim'' in that 
context. Under these final regulations, a recipient has an obligation 
to respond to a report of sexual harassment that occurs in its 
education program or activity against a person in the United States, 
irrespective of whether the complainant chooses to file a formal 
complaint. Defining a complainant as a person who has been alleged to 
be the victim of conduct that could constitute sexual harassment aligns 
better with a recipient's obligations to respond to such a report under 
Title IX. Accordingly, the term ``complainant'' is more appropriate for 
the structure and purpose of these final regulations to address sexual 
harassment under Title IX. The Department explains its decision to 
remove the phrase ``or on whose behalf the Title IX Coordinator has 
filed a formal complaint'' from the definition of complainant in Sec.  
106.30 as explained in the ``Complainant'' subsection of the ``Section 
106.30 Definitions'' section of this preamble.
    Changes: The Department has included a provision in Sec.  106.71 to 
prohibit retaliation for the purpose of interfering with any right or 
privilege secured by Title IX or these final regulations or because the 
individual has made a report or complaint, testified, assisted, 
participated, or refused to participate in any manner in an 
investigation, proceeding, or hearing under these final regulations. 
The Department also has revised these regulations to require a 
recipient to offer supportive measures to a complainant in response to 
a report of sexual harassment in the recipient's education program or 
activity against a person in the United States under Sec.  106.44(a), 
irrespective of whether a complainant files a formal complaint. 
Pursuant to Sec.  106.44(a), a recipient's Title IX Coordinator must 
promptly contact the complainant to discuss the availability of 
supportive measures as defined in Sec.  106.30, consider the 
complainant's wishes with respect to supportive measures, inform the 
complainant of the availability of supportive measures with or without 
the filing of a formal complaint, and explain to the complainant the 
process for filing a formal complaint.

Different Standards for Other Harassment

    Comments: Some commenters argued that the NPRM is arbitrary and 
capricious under Sec.  706 of the Administrative Procedure Act \1845\ 
(``APA'') because it singles out sexual harassment for special rules, 
including procedural rules, while other forms of harassment such as 
racial discrimination under Title VI and disability discrimination 
under Section 504, are treated differently. The commenters contended 
that the fact that the Department does not require elaborate grievance 
procedures under Title VI or Section 504 undercuts any rationale the 
Department has for proposing the Sec.  106.45 grievance process under 
Title IX.
---------------------------------------------------------------------------

    \1845\ See 5 U.S.C. 701 et seq.
---------------------------------------------------------------------------

    Discussion: The Department disagrees that the NPRM or these final 
regulations are arbitrary and capricious under the APA due to the 
differences in the way the final regulations address sex discrimination 
under Title IX and the Department's regulations addressing concerning 
racial and disability discrimination, respectively, under other 
statutes.
    The APA does not require the Department to devise identical or even 
similar rules to eliminate discrimination on the bases of sex, race or 
disability (or of any other kind), and commenters do not identify any 
legal obligation of that nature. The APA states, in relevant part, that 
``[t]he reviewing court shall . . . hold unlawful and set aside agency 
action, findings, and conclusions found to be . . . arbitrary, 
capricious, an abuse of discretion, or otherwise not in accordance with 
law . . . .'' 5 U.S.C. 706(2)(A). This test inquires whether the agency 
``examine[d] the relevant data and articulate[d] a satisfactory 
explanation for its action including a rational connection between the 
facts found and the choice made,'' and ``whether the decision was based 
on a consideration of the relevant factors and whether there has been a 
clear error of judgment.'' \1846\ Furthermore, agency ``action'' is 
statutorily defined as ``the whole or a part of an agency rule, order, 
license, sanction, relief, or the equivalent or denial thereof, or 
failure to act.'' \1847\ The statutory text's placement of the modifier 
``an'' indicates the APA is concerned with evaluating distinct final 
agency actions in their individual capacity rather than the collective 
whole of an agency's actions. Moreover, no textual or structural 
indicator, nor legislative history,\1848\ contradicts this

[[Page 30529]]

inference. Therefore, Sec.  706(2)(A), incorporating Sec.  551(13), is 
geared toward individual agency actions, not the whole corpus of all or 
all possibly similar agency actions.
---------------------------------------------------------------------------

    \1846\ Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. 
Co., 463 U.S. 29, 43 (1983) (internal quotations marks and citations 
omitted).
    \1847\ 5 U.S.C. 551(13) (emphasis added to show singularity of 
final agency action).
    \1848\ See Lawson v. FMR LLC, 571 U.S. 429, 459-60 (2014) 
(Scalia, J., concurring in principal part and concurring in 
judgment) (``Reliance on legislative history rests upon several 
frail premises. First, and most important: That the statute means 
what Congress intended. It does not . . . . Second: That there was a 
congressional `intent' apart from that reflected in the enacted text 
. . . . Third: That the views expressed in a committee report or a 
floor statement represent those of all the Members of that House [or 
of the President].''); Antonin Scalia & Bryan A. Garner, Reading 
Law: The Interpretation of Legal Texts 56-58 (2012) (``[T]he 
[statute's] purpose must be derived from the text, not from 
extrinsic sources such as legislative history or an assumption about 
the legal drafter's desires.'').
---------------------------------------------------------------------------

    This means that Sec.  706(2)(A) does not require one agency action 
under one statute to be consistent with another agency action under a 
different statute. That makes sense because a contrary interpretation 
of Sec.  706(2)(A) would require consistency between (and among) even 
inter-agency regulations; and potentially would render one agency's 
regulations arbitrary and capricious simply because they differ from 
another agency's regulations. That might happen in the guise of arguing 
that no matter what, the Federal government is the regulatory 
promulgator. But this is not what the APA effectuates, as ``Congress . 
. . does not, one might say, hide elephants in mouseholes.'' \1849\ If 
Congress were to take this dramatic step of opening up agency 
regulations for any kind of comparative review by the courts, its 
``textual commitment [would have] be[en] a clear one.''\1850\
---------------------------------------------------------------------------

    \1849\ Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 468 (2001).
    \1850\ Id.
---------------------------------------------------------------------------

    While the APA has at times been interpreted to render agency 
regulations, notably interpretive rules, arbitrary and capricious, and 
thus ultra vires, because they conflict with the regulation promulgated 
by the same agency that the new rule was interpreting, as Gonzales v. 
Oregon \1851\ typifies, that principle does not apply to inter- or even 
intra-agency regulations deriving their delegations from different 
statutes. In addition to this major difference with Gonzales, this 
NPRM--unlike the interpretive rule struck down in Gonzales--``would 
[not] substantially disrupt the [Title VI and Section 504] regime[s].'' 
Id. at 254. The NPRM and the final regulations will have no impact 
whatsoever on the Title VI and Section 504 regimes, much less undermine 
those regimes. Consequently, while an agency regulation might be 
arbitrary or capricious in and of itself, it ordinarily cannot be so 
just because it differs somewhat from another regulation of the same 
agency stemming from different statutory provisions. Moreover, while 
agency authority is not unlimited, an agency's discretion in this 
regard is expansive, for the arbitrary and capricious standard is a 
high bar that mere disagreement with the agency's action will not 
satisfy.\1852\
---------------------------------------------------------------------------

    \1851\ 546 U.S. 243, 255-58 (2006).
    \1852\ See Assoc. of Data Processing Serv. Orgs., Inc. v. Bd. of 
Govs. of the Fed. Res. Sys., 745 F.2d 677, 684 (D.C. Cir. 1984).
---------------------------------------------------------------------------

    All this is true for practical reasons too, because a contrary 
principle would wreak havoc on agency behavior regulating 
discrimination (and much else) in at least three fundamental respects. 
It would deny agencies latitude to gradually promulgate regulations 
governing different subject matters under different statutes. Moreover, 
it would raise gratuitous questions about whether to ``equalize up'' or 
``equalize down'' the regulations across wide swaths of statutory 
regimes. And it would fail to account for the reasonable premise that 
the Federal government and its agencies are entitled to move 
cautiously, when they elect to do so at all, because of potentially 
significant differences between how different statutes address 
different subject matters and the impact that too expeditious a shift 
might have on the field.
    Illustratively, here the three different statutes noted by 
commenters address sex, racial, and disability discrimination, and 
these three subject matters raise complex questions of evidentiary 
standards, definitions, grievance procedures, remedies, and more. 
Treating them as interchangeable would, among other things, strip the 
Federal government of a studious, careful approach to studying the 
impact of one set of regulations attending one subject matter before 
transposing them to other regulations concerning a different subject 
matter. Such an extreme and gratuitous step ought not to be taken 
lightly nor foisted on an agency.
    The statutory texts attending Title VI, Title IX, and Section 504 
give no indication that regulations arising from any of them must, or 
even may, serve as APA comparators for either or both of the others. 
Because that comparison would be an extraordinary act of intervention 
in the process of agency rulemaking, presumably Congress would have 
spoken clearly and unambiguously to that effect, for it does not hide 
momentous, law-altering ``elephants'' in statutory ``mouseholes,'' and 
certainly not tacitly or silently.\1853\ Congress, though, has done no 
such thing in this instance. Instead, Congress included specific 
statutory exemptions to Title IX that do not exist in Title VI or 
Section 504. For example, Congress included specific statutory 
exemptions to Title IX such as an exemption for educational 
institutions training individuals for military services or the merchant 
marine,\1854\ for father-son or mother-daughter activities at an 
educational institution,\1855\ and for pageants in which participation 
is limited to individuals of one sex only.\1856\ Such exemptions 
indicate congressional recognition that prohibition of sex 
discrimination under Title IX is not necessarily identical to 
prohibition of discrimination based on race, or disability, under other 
non-discrimination statutes. As a further, similar example, Department 
regulations implementing Title IX have, since 1975, required recipients 
each to designate one or more employees to coordinate the recipient's 
efforts to comply with Title IX; \1857\ no corresponding regulatory 
requirement exists in the Department's Title VI regulations, yet the 
fact that the Department's Title IX implementing regulations differ in 
such a manner from the Department's Title VI regulations have not 
rendered the Title IX regulations invalid under the APA or on any other 
basis.
---------------------------------------------------------------------------

    \1853\ Whitman, 531 U.S. at 468.
    \1854\ 20 U.S.C. 1681(a)(4).
    \1855\ 20 U.S.C. 1681(a)(8).
    \1856\ 20 U.S.C. 1681(a)(9).
    \1857\ See 34 CFR 106.8(a); these final regulations at Sec.  
106.8(a) retain, clarify, and strengthen the requirement that each 
recipient designate at least one Title IX Coordinator.
---------------------------------------------------------------------------

    Structural safeguards already in place ensure there is some 
consistency across various agency regulations stemming from different 
statutory regimes. The Department and other agencies submit their 
regulations to the inter-agency review process facilitated by the 
Office of Management and Budget (OMB) under Executive Order 12866 so 
that other agencies are consulted and can provide their input.
    Consequently, the differences in the way the final regulations 
address sexual harassment as a form of sex discrimination under Title 
IX and the Department's regulations concerning racial and disability 
discrimination, respectively, under other statutes do not suggest that 
the NPRM or these final regulations exceeds the Department's authority 
under, or otherwise violates, the APA.
    Changes: None.

Spending Clause

    Comments: Some commenters argued that the Legislative Vesting 
Clause in Article I of the Constitution--``All legislative Powers 
herein granted shall be vested in a Congress of the United States,'' 
U.S. Const. art. I, Sec.  1, cl. 1--

[[Page 30530]]

requires that Congress may not delegate to the Department (indeed, to 
any agency) the power to implement regulations pertaining to specific 
subject matters. Commenters also argued that Congress has made no 
delegation to the Department that would allow the Department to 
promulgate regulations concerning sexual harassment and assault on 
campuses, because Title IX pertains to discrimination, not to 
harassment.
    Second, some commenters argued that the NPRM exceeds the Federal 
government's constitutional authority under the Spending Clause, see 
U.S. Const. art. I, Sec.  8, cl. 1, because the mandatory procedures 
set out in the NPRM may constitute unconstitutional conditions. For 
example, at least one commenter asserted that the Department should not 
mandate specific grievance procedures because what process is due in 
each particular case may differ depending on the circumstances. These 
commenters contended that the NPRM improperly alters the essence of the 
bargain struck between the government and funding recipients long after 
the terms were finalized and the NPRM cannot form part of a true mutual 
agreement. These commenters also asserted that the proposed rules are 
not a true agreement between the parties whom the terms of the proposed 
rules purport to bind--including every student in a federally funded 
institution--because students have no say in this agreement.
    One commenter argued that the Department cannot erode the First 
Amendment rights of academic institutions to determine who may be 
admitted to study and who may be permitted to continue to study through 
a fair process to determine responsibility and to sanction in a way 
that both educates the student as to the consequences of their actions 
and deters further similar deleterious activity. This commenter 
contended that the First Amendment or other constitutional rights of 
recipients do not automatically yield just because the action by the 
Federal government is declared to be taken under the Spending Clause.
    Discussion: While we appreciate commenters' concerns, we disagree 
that the Department lacks the delegated authority to promulgate the 
final regulations. Certainly, commenters are correct that Article I of 
the U.S. Constitution provides, in the Legislative Vesting Clause, that 
``[a]ll legislative Powers herein granted shall be vested in a Congress 
of the United States.'' \1858\ Article I then proceeds to enumerate 
Congress's authority on a power-by-power basis.\1859\ It also means the 
only source of elasticity for congressional power is the Necessary and 
Proper Clause, authorizing Congress to ``make all Laws which shall be 
necessary and proper for carrying into Execution the [enumerated] 
Powers.'' \1860\
---------------------------------------------------------------------------

    \1858\ U.S. Const. art. I, Sec.  1, cl. 1 (emphasis added).
    \1859\ See generally U.S. Const. art. I.
    \1860\ U.S. Const. art. I, Sec.  8, cl. 18.
---------------------------------------------------------------------------

    This is why the early Supreme Court explained that Congress may not 
transfer to another branch ``powers which are strictly and exclusively 
legislative.'' \1861\ But, as the Supreme Court later recognized, the 
Constitution affords ``Congress the necessary resources of flexibility 
and practicality [that enable it] to perform its function[s].'' \1862\ 
Congress, for instance, is permitted to ``obtain[] the assistance of 
its coordinate Branches,'' including by authorizing executive agencies 
implement the statutes passed by Congress, through agency 
regulations.\1863\ With respect to ``our increasingly complex society, 
replete with ever changing and more technical problems,'' the Supreme 
Court has reasoned that ``Congress simply cannot do its job absent an 
ability to delegate power under broad general directives.'' \1864\ As a 
consequence, the Supreme Court has held that a statutory delegation 
will be upheld under the Legislative Vesting Clause so long as Congress 
``lay[s] down by legislative act an intelligible principle to which the 
person or body authorized to [exercise the delegated authority] is 
directed to conform.'' \1865\ This ``intelligible principle'' doctrine, 
which represents a delicate constitutional balance between no 
congressional delegation whatsoever and delegation with complete 
abandon, is the backbone of much of the Federal administrative state 
today.\1866\ Congress does, of course, set forth various statutory 
restrictions on how and under which circumstances the agencies may 
operationalize congressional will through an agency's implementing 
regulations.\1867\ But the precedent is clear that Congress 
constitutionally may delegate to the Department the power to implement 
regulations pertaining to specific subject matters. Congress has done 
so with respect to Title IX, in 20 U.S.C. 1682.
---------------------------------------------------------------------------

    \1861\ Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43.
    \1862\ Yakus v. United States, 321 U.S. 414, 425 (1944) 
(internal quotation marks omitted).
    \1863\ Mistretta v. United States, 488 U.S. 361, 372 (1989).
    \1864\ Id.
    \1865\ Id. (internal quotation marks and citation omitted; 
emphasis added).
    \1866\ Mistretta, 488 U.S. at 372.
    \1867\ See, e.g., Administrative Procedure Act, 5 U.S.C. 701 et 
seq.
---------------------------------------------------------------------------

    Agencies, such as the Department, are creatures of congressional 
will; an agency's powers to act must emanate from Federal law.\1868\ 
Congress, in enacting Title IX, has conferred that power on the 
Department. The appropriate place to start is the statutory text, for 
``[u]nless otherwise defined, statutory terms are generally interpreted 
in accordance with their ordinary meaning.'' \1869\ As has been noted, 
Title IX's text, 20 U.S.C. 1681(a) (emphasis added), states: ``No 
person in the United States shall, on the basis of sex, be excluded 
from participation in, be denied the benefits of, or be subjected to 
discrimination under any education program or activity receiving 
Federal financial assistance[.]''
---------------------------------------------------------------------------

    \1868\ See Stark v. Wickard, 321 U.S. 288, 309 (1944).
    \1869\ BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91 (2006) 
(citing Perrin v. United States, 444 U.S. 37, 42 (1979)).
---------------------------------------------------------------------------

    The Department's authority to regulate sexual harassment in a 
recipient's education program or activity as a form of sex 
discrimination pursuant to Title IX, is clear. The Supreme Court has 
noted that ``[t]he express statutory means of enforc[ing] [Title IX] is 
administrative,'' as ``[t]h[at] statute directs Federal agencies that 
distribute education funding to establish requirements to effectuate 
the non-discrimination mandate, and permits the agencies to enforce 
those requirements through `any . . . means authorized by law,' 
including ultimately the termination of Federal funding.'' \1870\ The 
Supreme Court has held that sexual harassment is a form of sex 
discrimination under Title IX.\1871\ The Department's prerogative of 
implementing Title IX with respect to recipient responses to sexual 
harassment as a form of sex discrimination is authorized by statute, 
approved of by the Supreme Court, and warrants deference.
---------------------------------------------------------------------------

    \1870\ Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 280-
81 (1998) (quoting 20 U.S.C. 1682) (emphasis added).
    \1871\ See id. at 283 (affirming ``the general proposition that 
sexual harassment can constitute discrimination on the basis of sex 
under Title IX'').
---------------------------------------------------------------------------

    As to the assertion that the Department's authority to regulate 
under Title IX does not extend to ensuring that a Title IX grievance 
process contains procedural rights and protections for complainants and 
respondents, we explain throughout this preamble and especially in the 
``Role of Due Process in the Grievance Process'' section that the 
Department interprets and enforces Title IX (and indeed, any

[[Page 30531]]

law under the Department's regulatory purview) consistent with the U.S. 
Constitution, including constitutional rights to due process of law. 
The Department has the authority to address through regulation the 
manner in which recipients respond to sexual harassment to further 
Title IX's non-discrimination mandate consistent with constitutional 
due process, has done so in these final regulations, and these final 
regulations are thus consistent with the separation of powers doctrine.
    The Department also disagrees that the proposed regulations, or 
final regulations, exceed the Federal government's constitutional 
authority under the Spending Clause. To be sure, legislation enacted 
under Congress's Spending Clause power is ``much in the nature of a 
contract: in return for Federal funds, the States agree to comply with 
federally imposed conditions.'' \1872\ As a result, courts when 
construing such statutes ``insis[t] that Congress speak with a clear 
voice,'' for--as is true for contracts generally--here too ``[t]here 
can . . . be no knowing acceptance [of the terms of this statutory 
contract] if a State is unaware of the conditions [the statute imposes] 
or is unable to ascertain what is expected of it.'' \1873\ But the 
Supreme Court held that recipients may be liable for monetary damages 
in Title IX lawsuits under a judicially implied private right of 
action, because while Title IX is in the nature of a contract, under 
Congress's Spending Clause authority, recipients have been on notice 
since enactment of Title IX that the statute means that no recipient 
may engage in intentional discrimination on the basis of sex--and 
knowing about and ignoring sexual harassment in the recipient's 
education program or activity constitutes the recipient committing 
intentional sex discrimination.\1874\
---------------------------------------------------------------------------

    \1872\ Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 
17 (1981).
    \1873\ Id. (emphasis added).
    \1874\ See Franklin v. Gwinnett Co. Pub. Sch., 503 U.S. 60, 74-
75 (1992); see also the ``Adoption and Adaption of the Supreme 
Court's Framework to Address Sexual Harassment'' section of this 
preamble.
---------------------------------------------------------------------------

    Undoubtedly, ``Congress may use its spending power to create 
incentives for States to act in accordance with Federal policies.'' 
\1875\ That said, ``when `pressure turns into compulsion,' '' such as 
undue influence, coercion or duress--``the legislation runs contrary to 
our system of federalism.'' \1876\ Federal statutes enacted under the 
Spending Clause ``do not pose this danger when a State [or a private 
entity] has a legitimate choice whether to accept the Federal 
conditions in exchange for Federal funds.'' \1877\ When determining 
whether a Spending Clause program constitutes ``economic dragooning'' 
(impermissible),\1878\ or `` `relatively mild encouragement' '' 
(permissible),\1879\ the Supreme Court asks whether the recipient is 
left with a ``real option'' to refuse the Federal offer.\1880\ If, for 
instance, State recipients have established an elaborate, decades-long 
setup to administer Medicaid funding, a Federal directive threatening 
all of it if some new terms were not complied with would exceed 
Congress's Spending Clause authority.\1881\ But if a State will lose 
five percent of Federal highway funds if the State does not raise the 
minimum drinking age, that is within Congress's spending power.\1882\ 
As a general rule of thumb, Federal policy enacted through the Spending 
Clause as a backdoor when Congress's other enumerated powers do not so 
permit is disfavored. Other restrictions on the Federal government's 
Spending Clause authority are that it must be in pursuit of ``the 
general welfare;'' be stated unambiguously; that conditions on Federal 
grants must be related ``to the Federal interest in particular national 
projects or programs;'' and that it not violate any other 
constitutional provision.\1883\
---------------------------------------------------------------------------

    \1875\ Nat'l Fed'n of Ind. Bus. v. Sebelius, 567 U.S. 519, 577-
78 (2012).
    \1876\ Id. (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 
590 (1937)).
    \1877\ Id. at 579 (emphasis added).
    \1878\ Id. at 582.
    \1879\ Id. at 580-81 (quoting South Dakota v. Dole, 483 U.S. 
203, 211 (1987)).
    \1880\ Sebelius, 567 U.S. at 582.
    \1881\ See id. at 575-85.
    \1882\ See Dole, 483 U.S. at 211-12.
    \1883\ Id. at 207-08 (quoting Massachusetts v. United States, 
435 U.S. 444, 461 (1978) (plurality opinion)).
---------------------------------------------------------------------------

    The final regulations are consistent with all the limitations on 
the Spending Clause authority of the Federal government. Indeed, this 
entire notice-and-comment rulemaking process provides the notice the 
Spending Clause, as construed in Pennhurst, requires.\1884\ To start, 
the final regulations do not change the fundamental aspects of the 
bargain struck between the government and funding recipients because 
these final regulations advance rather than curtail the core purposes 
of Title IX, and they represent a true mutual agreement under which 
recipients understand that the government requires operation of 
education programs or activities free from sex discrimination. This 
agreement has, for decades, been clearly understood to include a 
recipient's obligation to adopt and publish grievance procedures for 
the prompt and equitable resolution of student and employee complaints 
of sex discrimination.\1885\ The background principles of Title IX and 
the APA, including the Department's authority to regulate as it has in 
this area, have been known to every recipient since passage of Title 
IX. Additionally, to this point, the final regulations are not a 
coercive ``gun to the head'' of the recipients or the States because 
recipients are perfectly free to refuse Title IX-centric Federal 
financial assistance; \1886\ the recipients or States have not been 
operating under a promise or expectation of such funds being given in 
perpetuity; and there is no hint of compulsion on the recipients or 
States. Moreover, there is no suggestion the Department lacks the power 
to promulgate the final regulations through the Commerce Clause or 
Section 5 of the Fourteenth Amendment, so there is no possibility of 
the Spending Clause being used as a back door to achieve a Federal 
mandate on unwilling actors. Additionally, these final regulations 
undoubtedly advance the general welfare, are stated unambiguously and 
clearly, apply to the national concern of fairness to those affected by 
allegations of sexual harassment and assault in schools, colleges, and 
universities, and do not violate--indeed they further--other 
constitutional provisions such as equal protection of the laws, due 
process of law, and the First Amendment.
---------------------------------------------------------------------------

    \1884\ See Pennhurst, 451 U.S. at 17.
    \1885\ 34 CFR 106.8(b) originally promulgated by HEW (the 
Department's predecessor) in 1975, and the similar requirement 
modified in the final regulations at Sec.  106.8(c).
    \1886\ Sebelius, 567 U.S. at 581.
---------------------------------------------------------------------------

    The Department acknowledges that different procedural due process 
protections may be required in different situations. As more fully 
explained in the ``Role of Due Process in the Grievance Process'' 
section, the Department does not mandate the same grievance process for 
elementary and secondary schools as for postsecondary institutions 
because the Department recognizes that due process is a ``flexible'' 
concept dictated by the demands of a ``particular situation,'' \1887\ 
and that addressing sexual harassment as a form of sex discrimination 
in elementary and secondary schools may present different demands than 
addressing sexual harassment as a form of sex discrimination in 
postsecondary institutions. The grievance process provided in these 
final regulations is adapted for a particular situation,

[[Page 30532]]

namely to address sexual harassment as a form of sex discrimination.
---------------------------------------------------------------------------

    \1887\ Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (internal 
citations omitted).
---------------------------------------------------------------------------

    The Department acknowledges that these final regulations 
essentially constitute the terms of a contract between the Department 
and the recipient of Federal financial assistance. The Department does 
not enter into a contract or agreement with every student in a school 
that receives Federal financial assistance. Such an argument is absurd 
because such an argument would render the student and not the school 
responsible for fulfilling the non-discrimination mandate in Title IX. 
The Department disagrees though that students have ``no say'' in this 
agreement because any student may submit a comment during the public 
comment period for the Department to consider. Accordingly, every 
student had the opportunity to essentially be a part of the 
negotiation, and commenters who identified as students submitted 
comments.
    The Department also is not encroaching upon the First Amendment 
rights of recipients as more fully explained in the ``Conflicts with 
First Amendment, Constitutional Confirmation, International Law'' 
subsection of the ``Miscellaneous'' section of this preamble. 
Recipients remain free to determine who may be admitted to study and 
who may be permitted to continue to study at elementary and secondary 
schools or at postsecondary institutions. The Department has repeatedly 
stated through its NPRM and in this preamble that it will not second 
guess the disciplinary decisions made by school administrators.\1888\ 
One of the reasons that the Department chooses to adopt and adapt the 
deliberate indifference standard from Davis is the Supreme Court 
developed this standard to interpret Title IX in a manner that leaves 
room for flexibility in the schools' disciplinary decisions and does 
not place courts in the position of second-guessing school 
administrators' disciplinary decisions.\1889\ The grievance process in 
Sec.  106.45 does not demand a particular outcome and is simply a 
process designed to assess allegations of sexual harassment as a form 
of sex discrimination. A recipient still has significant discretion 
within the grievance process in Sec.  106.45. For example, as 
previously noted in this preamble, a recipient may adopt reasonable 
rules of decorum or order to govern live hearings under this paragraph, 
provided that such rules apply equally to all participants and are 
consistent with this section. Additionally, these final regulations 
expressly state in Sec.  106.6(d)(1) that nothing in Title IX 
implementing regulations requires a recipient to restrict any rights 
that would otherwise be protected from government action by the First 
Amendment of the U.S. Constitution.
---------------------------------------------------------------------------

    \1888\ 83 FR 61466.
    \1889\ Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648 
(1999).
---------------------------------------------------------------------------

    For all these reasons, the NPRM and these final regulations are 
within the Federal government's Spending Clause authority.
    Changes: None.

Litigation Risk

    Comments: At least one commenter stated that there is a nationwide 
trend of increased filings of sexual harassment and assault claims, and 
argued that therefore, it is reasonable to anticipate that because the 
Department has narrowed its jurisdiction under Title IX, the Nation 
will see both an increase in Title IX complaints in civil and criminal 
courts, as well as an increase in costly lawsuits alleging non-Title IX 
causes of action.\1890\ Several commenters asserted that the proposed 
rules will expose recipients to a greater risk of litigation from both 
complainants seeking redress for sex discrimination and respondents 
seeking to overturn a recipient's finding of responsibility.
---------------------------------------------------------------------------

    \1890\ See Jamie D. Halper, In Wake of #MeToo, Harvard Title IX 
Office Saw 56 Percent Increase in Disclosures in 2018, Per Annual 
Report, The Harvard Crimson (Dec. 14, 2018); U.S. Equal Employment 
Opportunity Commission, EEOC Releases Preliminary FY 2018 Sexual 
Harassment Data (Oct. 4, 2018) (stating ``charges filed with the 
EEOC alleging sexual harassment increased by more than 12 percent 
from fiscal year 2017'').
---------------------------------------------------------------------------

    Discussion: These final regulations do not address or alter any 
party's right to sue a recipient under various causes of action that 
may arise from a recipient's response to alleged sexual harassment. The 
Department, however, disagrees that as a result of these final 
regulations, there will be an increase in Title IX complaints in civil 
and criminal courts and in costly lawsuits alleging non-Title IX causes 
of action and believes that these regulations may result in decreased 
litigation. These final regulations align Title IX administrative 
enforcement more closely with the rubric that the Supreme Court adopted 
in Title IX cases \1891\ while mandating that recipients support 
alleged victims of sexual harassment in ways that go beyond what the 
Supreme Court's private lawsuit framework requires, while prescribing a 
standardized grievance process consistent with due process of law and 
fundamental fairness. These final regulations therefore provide greater 
clarity to a recipient of its obligations under Title IX and may 
decrease litigation based on claims that the recipient responded 
inadequately to protect an alleged victim, or denied a respondent due 
process of law or fundamental fairness in investigations or 
adjudications of sexual harassment allegations. For example, a 
recipient that complies with Sec.  106.44(a) and Sec.  106.44(b)(1), 
which includes but goes beyond the Supreme Court's deliberate 
indifference liability standard, will promptly offer a complainant 
supportive measures when the recipient has actual knowledge of sexual 
harassment in its education program or activity against a person in the 
United States--whether or not the recipient also investigates and 
adjudicates the complainant's allegations of sexual harassment. More 
specifically, under Sec.  106.44(a), the Title IX Coordinator must 
promptly contact the complainant (i.e., the person alleged to have been 
victimized by sexual harassment) to discuss the availability of 
supportive measures as defined in Sec.  106.30, consider the 
complainant's wishes with respect to supportive measures, inform the 
complainant of the availability of supportive measures with or without 
the filing of a formal complaint, and explain to the complainant the 
process for filing a formal complaint. If such a recipient was then 
sued by the complainant for providing a deliberately indifferent 
response, the recipient would at least be able to argue that it did not 
respond in a manner clearly unreasonable in light of the known 
circumstances because the recipient considered a complainant's wishes 
with respect to supportive measures, offered supportive measures, and 
informed a complainant of the process for filing a formal complaint 
(and, under Sec.  106.44(b)(1), the recipient would be obligated to 
investigate allegations in a formal complaint if the complainant 
exercised the option of filing a formal complaint). Similarly, a 
recipient that follows a the grievance process that complies with Sec.  
106.45 will provide robust due process protections to both the 
complainant and respondent that satisfy constitutional guarantees and, 
thus, may defend against allegations that it deprived a the respondent 
(or the complainant) of due process of law. The Department therefore 
believes that these final regulations may have the effect of decreasing 
litigation arising from how

[[Page 30533]]

recipients respond to sexual harassment.
---------------------------------------------------------------------------

    \1891\ For further discussion see the ``Adoption and Adaption of 
the Supreme Court's Framework to Address Sexual Harassment'' section 
of this preamble.
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter stated that the Department did not evaluate 
the impact of the proposed regulations on recipients' legal budgets. 
One commenter stated that, in a United Educators (UE) study of 305 
reports of sexual assault from 104 colleges and universities between 
2011 and 2013, more than one in four reports resulted in legal action, 
costing schools about $200,000 per claim, with 84 percent of costs 
resulting from claims brought by survivors and other harassment victims 
and that another UE study of reports of sexual assault during 2011-2015 
found that schools lost about $350,000 per claim, with some losses 
exceeding $1 million and one reaching $2 million.
    One commenter asserted that if students experiencing sexual 
harassment are no longer able to seek relief through their school or 
through OCR's complaint resolution system, more lawsuits will be filed, 
and not just under Title IX. Another commenter argued that any savings 
schools made because of the Department's rule changes will be eclipsed 
by the funds institutions will expend to defend the same accusations of 
Title IX violations in Federal and State courts. If the Department's 
Title IX regulations align with the standards used by Federal courts 
for money judgments in private lawsuits under Title IX, the commenter 
argued that there would no longer be any advantage for complainants to 
seek agency-level redress from OCR over the court system, especially 
since under the proposed rules complainants would not be able to obtain 
money damages from a recipient as a remedy ordered by OCR for a 
recipient's violation of Title IX regulations. The commenter cited a 
United Educators study in which the insurance company analyzed 1,000 
claims in cases of Title IX litigation and found that, in just 100 of 
those cases, judgments and attorney's fees cost $21.8 million. United 
Educators reported that the cost on average is $350,000 per case. The 
commenter argued that, using those numbers, a mere 1,050 additional 
cases would completely wipe out any savings from even the highest 
savings number estimated by the NPRM's Regulatory Impact Analysis 
(RIA). The commenter argued that considering the detailed requirements 
and the gray areas of the proposed rules, 1,050 additional cases filed 
over the course of the same ten-year period referenced in the NPRM's 
RIA should be considered a low estimate. One commenter asserted that 
the proposed rules would also expose schools to significant potential 
Title VII liability due to the conflicts between Title VII and the 
proposed rules' requirements, and possible liability under 
contradictory State, local, or tribal laws.
    Discussion: The Department's RIA in the NPRM and its Regulatory 
Impact Analysis (RIA) in these final regulations address the costs of 
attorneys for recipients.\1892\ The Department notes that each 
recipient may choose to use attorneys to advise a recipient on 
compliance with these final regulations but is not required to do so. 
As discussed previously, the Department believes that litigation may 
decrease as a result of these final regulations. As discussed 
previously, these final regulations impose on recipients more 
obligations to support complainants, and protect due process rights of 
all parties, than what the Supreme Court has required in private 
actions under Title IX; thus, we disagree that complainants (or 
respondents) will find ``no advantage'' or no difference in seeking 
redress of a recipient's alleged Title IX under the Department's 
administrative enforcement standards, versus under the Supreme Court's 
framework for judicial enforcement. For reasons discussed in the 
``Section 106.3(a) Remedial Action'' subsection of the ``Clarifying 
Amendments to Existing Regulations'' section of this preamble, we have 
revised the proposed rules' revision to existing 34 CFR 106.3(a) such 
that under the final regulations, Sec.  106.3(a) removes the NPRM's 
reference to monetary damages as a potential remedy that the Department 
may seek when administratively enforcing Title IX and its implementing 
regulations.
---------------------------------------------------------------------------

    \1892\ See, e.g., 83 FR 61494.
---------------------------------------------------------------------------

    The Department disagrees that these final regulations conflict with 
any obligations that a recipient may have under Title VII, as explained 
in greater detail in the ``Section 106.6(f) Title VII and Directed 
Question 3 (Application to Employees)'' subsection of the ``Clarifying 
Amendments to Existing Regulations'' section of this preamble. 
Similarly, the Department is not aware of any State, local, or tribal 
laws or rules that directly conflict with these final regulations. The 
Department addresses any such possible conflicts in more detail in the 
``Section 106.6(h) Preemptive Effect'' subsection of the ``Clarifying 
Amendments to Existing Regulations'' section of this preamble.
    Changes: We have revised Sec.  106.3(a) to remove reference to 
damages as a possible remedy ordered by the Assistant Secretary when 
investigating a recipient for violations of Title IX or its 
implementing regulations, referring instead to the Department's 
authority to enforce Title IX pursuant to 20 U.S.C. 1682.
    Comments: One commenter applauded the proposed rules as being long 
overdue but asserted that smaller schools will ``suffer inordinately'' 
under the proposed rules because the burden and costs of compliance 
would be more deeply felt by small schools, and small schools would 
serve as focal points for legal challenges to the implementation of 
these Title IX regulations.
    Discussion: The Department disagrees that smaller schools will 
``suffer inordinately'' in complying with these final regulations, and 
the RIA in this document expressly addresses the effect of the final 
regulations on small entities. As explained in the ``Regulatory 
Flexibility Act'' subsection of the ``Regulatory Impact Analysis'' 
section of this preamble, we do not believe that these final 
regulations would place a substantial burden on small entities, 
including small elementary and secondary schools and small 
postsecondary institutions. Moreover, as discussed in the ``Role of Due 
Process in the Grievance Process'' section of this preamble, we do not 
believe that students (including complainants, and respondents) should 
receive fewer protections aimed at furthering Title IX's non-
discrimination mandate consistent with constitutional due process or 
fundamental fairness, depending on the size of their school. While the 
RIA estimates the cost burden of these final regulations, these final 
regulations are motivated by fulfilling the important mandate of Title 
IX to prohibit sex discrimination, including in the form of sexual 
harassment, consistent with the U.S. Constitution and fundamental 
fairness, and we believe that the benefits of these final regulations 
outweigh the compliance costs likely to result.
    Changes: None.

Effective Date

    Comments: A number of commenters stated that the NPRM needed an 
effective date to allow recipients to implement policy changes, 
training, procedures, etc. to come into compliance with the provisions 
in the final regulations. A few commenters asked that the final 
regulations not take effect in the middle of a school year. A few 
commenters requested a 90-day implementation window and requested that 
the Department issue the final regulations in the month of May so that 
the requested 90-day implementation window takes place over the summer, 
when recipients have more time and

[[Page 30534]]

ability to address and implement the changes constructively; some of 
these commenters asserted that requiring changes to be made in the 
middle of a school year will raise problems with applying two different 
sets of rules to sexual misconduct incidents occurring in the same 
school year based on an arbitrary cut-off date. Some commenters 
expressed concern that the proposed regulations indicated no provision 
for a time period allowing for transition from previously established 
procedures to the new procedures required. A few commenters asserted 
the Department should set an effective date at least eight months after 
publication of the final regulations because that time frame would 
align with the Higher Education Act's master calendar. A few commenters 
argued that the changes necessary under the final regulations justify 
an effective date no earlier than three years after the date of 
publication of the final regulations; other commenters asserted that 
small institutions in particular will require an extended period of 
time to come into compliance. At least one commenter suggested a two-
phase effective date--one effective date as to the topics covered in 
Sec.  106.44(a)-(b), and a second (later) effective date for the other 
provisions of the final regulations including Sec.  106.45, on the 
basis that changing grievance procedures is more complicated and will 
take more time for the Department to adequately explain to recipients. 
Another commenter, a State coordinating body for higher education, 
requested that the Department consider State and institutional budget 
cycles, especially in light of possible tuition and fee increases 
needed to help cover costs of implementing the proposed regulations. 
The commenter recommended that the final regulations allow for an 
implementation period of no less than 18 months, which would allow 
institutions time to accommodate budget cycles and to request 
additional resources for the subsequent fiscal year. Another commenter 
requested that the Department allow at least 12 months for full 
implementation of new Title IX rules and regulations. One commenter 
requested that the Department not adopt an early effective date because 
that would be inconsistent with the Department's recent approach to 
regulations that require less significant program changes; the 
commenter noted that the Department allowed schools until July 2019 to 
comply with the 2014 Gainful Employment regulation and the 2016 
Borrower Defense regulation, and the commenter asked that the 
Department adopt a similar compliance period for the Title IX 
regulation.
    Some commenters requested that the Department clarify the standing 
of the 2001 Guidance once the final regulations become effective, and 
at least one commenter stated that the proposed regulations could be 
improved by clearly rescinding all the Department's prior guidance 
documents regarding the subject of sexual harassment. Another commenter 
stated that the proposed regulations will have the unintended impact of 
altering the 2001 Guidance policies and practices that districts have 
implemented for nearly two decades. One commenter specifically asked 
the Department to clarify whether the final regulations will rescind 
and replace the 2001 Guidance, which addresses retaliation, and noted 
that confusion about the status of the 2001 Guidance limits the 
public's ability to effectively comment on the NPRM because it prevents 
an understanding of the full extent of the changes to the 
administrative scheme.
    Discussion: Under the Administrative Procedure Act (``APA''), 5 
U.S.C. 701 et seq., the effective date for the final regulations cannot 
be fewer than 30 days after the final regulations are published in the 
Federal Register unless special circumstances justify a statutorily-
specified exception for an effective date earlier than 30 days from 
such publication. The Department has determined that no statutory 
exception justifies an effective date earlier than 30 days from 
publication of these final regulations. The Department has carefully 
considered commenters' concerns, including the concern to have 
sufficient time to prepare for compliance with these final regulations 
and the request to have these final regulations become effective during 
the summer when many recipients of Federal financial assistance that 
are schools are out of session.
    In the ordinary course, the Department believes that 60 days would 
be sufficient for recipients to come into compliance with these final 
regulations. However, after the public comment period on the NPRM 
ended, and before publication in the Federal Register of these final 
regulations, on March 13, 2020, the President of the United States 
declared that a national emergency concerning the novel coronavirus 
disease (COVID-19) outbreak began on March 1, 2020, as stated in 
``Declaring a National Emergency Concerning the Novel Coronavirus 
Disease (COVID-19) Outbreak,'' Proclamation 9994 of March 13, 2020, 
Federal Register Vol. 85, No. 53 at 15337-38. The Department 
appreciates that exigent circumstances exist as a result of the COVID-
19 national emergency, and that these exigent circumstances require 
great attention and care on the part of States, local governments, and 
recipients of Federal financial assistance. The Department recognizes 
the practical necessity of allowing recipients of Federal financial 
assistance time to plan for implementing these final regulations, 
including to the extent necessary, time to amend their policies and 
procedures in order to comply.
    In response to commenters' concerns about an effective date, and in 
consideration of the COVID-19 national emergency, the Department has 
determined that the final regulations are effective August 14, 2020. 
Recipients will thus have substantially more than the minimal 30 days 
to prepare for compliance with these final regulations. The Department 
recognizes that the length and scope of the current national emergency 
relating to COVID-19 is somewhat uncertain. But based on the 
information currently available to it, the Department believes that the 
effective date of August 14, 2020, adequately accommodates the needs of 
recipients, while fulfilling the Department's obligations to enforce 
Title IX's non-discrimination mandate in the important context of 
sexual harassment.
    The Department appreciates the suggestions from commenters as to an 
appropriate length of time after publication of final regulations for 
the final regulations to become effective. As discussed in the 
``Executive Orders and Other Requirements'' subsection of the 
``Miscellaneous'' section of this preamble, these final regulations are 
not promulgated under the Higher Education Act and are not subject to 
the Master Calendar under that Act. The Department declines to align 
the effective date for the final regulations with the July 1 effective 
date of regulations under the Higher Education Act, including gainful 
employment and borrower defense to repayment regulations to which a 
commenter refers, because these final regulations concern improvement 
of civil rights protections for students and employees in the education 
programs and activities of all recipients of Federal financial 
assistance, not only those institutions to which the Higher Education 
Act applies. The Department notes that regardless of when the final 
regulations become effective, some Title IX sexual harassment reports 
occurring within the same education program or activity within the same 
school year may be handled under the current Title IX regulations while 
others will be addressed under the requirements of the

[[Page 30535]]

final regulations; this is not arbitrary, and occurs any time 
regulatory requirements are amended prospectively. The Department also 
declines other suggestions from commenters, including the creation of 
two separate effective dates for different provisions of the final 
regulations, because such an approach would create confusion rather 
than clarity. Additionally, some provisions in Sec.  106.44 reference 
and incorporate requirements in Sec.  106.45, and, thus, making Sec.  
106.44 effective before Sec.  106.45 is not feasible. The Department 
cannot accommodate every recipient's budget cycle as each State may 
have a different fiscal year and budget cycle. The effective date of 
August 14, 2020 coincides with many schools' ``summer break,'' so that 
recipients may finalize Title IX policies and procedures to comply with 
these final regulations during a time when many schools are ``out of 
session'' and will afford substantially greater opportunity to come 
into compliance than the statutory minimum, which is appropriate given 
the current challenges posed by the COVID-19 national emergency.
    The Department notes that recipients have been on notice for more 
than two years that a regulation of this nature has been forthcoming 
from the Department, and recipients will have substantially more than 
the minimal 30 days to come into compliance with these final 
regulations, which become effective on August 14, 2020.\1893\ During 
this transition period between publication of these final regulations 
in the Federal Register, and the effective date of August 14, 2020, the 
Department will provide technical assistance to recipients to assist 
with questions about compliance. The Department also will continue to 
provide technical assistance after these regulations become effective, 
including during the investigation of a complaint, a compliance review, 
or a directed investigation by OCR, if the recipient requests technical 
assistance.
---------------------------------------------------------------------------

    \1893\ U.S. Dep't. of Education, Office for Civil Rights, Dear 
Colleague Letter (Sept. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf (withdrawing 
the Department's 2011 Dear Colleague Letter and 2014 Q&A) (``The 
Department intends to implement such a policy [addressing campus 
sexual misconduct under Title IX] through a rulemaking process that 
responds to public comment.'').
---------------------------------------------------------------------------

    On September 22, 2017, the Department expressly stated that its 
2017 Q&A along with the 2001 Guidance ``provide information about how 
OCR will assess a school's compliance with Title IX.'' \1894\ The 
Department thus gave the public notice of how OCR will assess a 
school's compliance with Title IX until these final regulations become 
effective. The Department's NPRM also provided the public with notice 
of how the proposed regulations differ from the 2001 Guidance, and the 
Department explains departures taken in the final regulations from the 
2017 Q&A, the 2001 Guidance, and also withdrawn guidance documents such 
as the 2011 Dear Colleague Letter, throughout this preamble.\1895\ To 
the extent that these final regulations differ from any of the 
Department's guidance documents (whether such documents remain in 
effect or are withdrawn), these final regulations, when they become 
effective, and not the Department's guidance documents, are 
controlling.
---------------------------------------------------------------------------

    \1894\ 2017 Q&A at 1.
    \1895\ E.g., the ``Differences Between Standards in Department 
Guidance and These Final Regulations'' subsection of the ``Adoption 
and Adaption of the Supreme Court's Framework to Address Sexual 
Harassment'' section, and the ``Similarities and Differences Between 
the Sec.  106.45 Grievance Process and Department Guidance'' 
subsection of the ``Role of Due Process in the Grievance Process'' 
section, of this preamble.
---------------------------------------------------------------------------

    Changes: The effective date of these final regulations is August 
14, 2020.

Retaliation

Section 106.71 Retaliation Prohibited

    Comments: A few commenters commended the Department's proposed 
regulations as a reasonable means of reducing sex discrimination and 
explicitly guarding against unlawful retaliation; at least one 
commenter stated that the proposed rules' prohibitions against bias 
would make it difficult for recipients to engage in unlawful 
retaliation. In contrast, several commenters opposed the proposed 
regulations for not adequately addressing victims' fears of not being 
believed and for failing to protect complainants from retaliation for 
reporting. Commenters stated that under the proposed rules, schools 
might not do enough to prevent an assailant from retaliating against a 
survivor. Other commenters stated that many survivors who do not report 
cite fear of retaliation as one of the main reasons. Many commenters 
generally called for greater protections for victims to ensure that 
their alleged assailants cannot control victims with fear, 
intimidation, or embarrassment. Two commenters suggested that the 
proposed regulations do not go far enough in incentivizing schools to 
prohibit retaliation against students who report, noting that schools 
could and should do more to address toxic cultures or systemic problems 
among the student body. Several commenters included personal stories 
alleging they were retaliated against for reporting sexual harassment. 
Other commenters stated that, despite support for the proposed rules, 
following the Supreme Court's decisions in Gebser and Davis is 
inadequate because those decisions do not address retaliation and, as 
such, the Department should draw a clear delineation between 
retaliation claims and sexual harassment claims. This commenter 
asserted that the Gebser/Davis requirement that schools must be on 
notice of sexual harassment before they can be held accountable does 
not apply to retaliation and urged the Department not to accidentally 
risk imposing an actual notice requirement in the context of 
retaliation.
    Several commenters suggested that the Department add a general 
prohibition of retaliation. Some commenters noted that retaliation is a 
serious concern for complainants when weighing whether to report and in 
deciding whether to participate in an investigation. Specifically, one 
commenter suggested that the final regulations adopt the language 
prohibiting retaliation from the withdrawn 2011 Dear Colleague Letter. 
A few commenters urged the Department to refer to its past guidance 
documents, which the commenters contended addressed retaliation more 
aptly than the current proposed rule. Many commenters noted that 
failing to include a clear prohibition on retaliation could chill 
reporting in the first place. One commenter requested that the final 
regulations contain an explicit provision protecting undocumented 
students from retaliatory immigration action similar to the provision 
in the withdrawn 2014 Q&A.
    Several other commenters requested that if the final regulations 
are to include a provision regarding retaliation, then it should 
explicitly not protect those who make false allegations from any 
adverse consequences that result. One commenter, who has worked with 
survivors, sought clarification on whether schools will need to include 
language regarding false statements in their procedures and how false 
accusations should be determined. Some commenters cautioned that broad 
retaliation prohibitions can threaten free speech, and particularly the 
ability of the falsely accused to defend themselves. As such, 
commenters contended, any prohibition should include language 
clarifying that denying allegations does not constitute a violation of 
Title IX.
    Several commenters sought clarity on how institutions were expected 
to handle retaliation claims under the proposed regulations. One 
commenter

[[Page 30536]]

stated that if a student makes a formal complaint of sexual harassment, 
the proceedings would have to comply with Sec.  106.45, but if the 
student alleged that they were retaliated against for filing the formal 
complaint, that allegation of retaliation would then be handled through 
the Title IX grievance process under Sec.  106.8. Another commenter 
inquired as to whether the grievance procedures that apply to alleged 
sex discrimination under Sec.  106.8 would also apply where a 
complainant alleges retaliation for submitting a formal complaint of 
sexual harassment.
    Discussion: The Department appreciates the commenters' concerns and 
suggestions regarding retaliation. Retaliation against a person for 
exercising any right or privilege secured by Title IX or its 
implementing regulations is never acceptable, and the Supreme Court has 
held that retaliation for complaining about sex discrimination is, 
itself, intentional sex discrimination prohibited by Title IX.\1896\ 
The Department agrees with commenters that absent a clear prohibition 
of retaliation, reporting may be chilled. In response to these 
comments, the Department is adding Sec.  106.71 to expressly prohibit 
retaliation. This retaliation provision contains language similar to 
the retaliation provision in Sec.  100.7(e), implementing Title VI.
---------------------------------------------------------------------------

    \1896\ Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 
(2005) (holding that ``retaliation against individuals because they 
complain of sex discrimination is `intentional conduct that violates 
the clear terms of the statute,' Davis, 526 U.S., at 642, 119 S. Ct. 
1661, and that Title IX itself therefore supplied sufficient 
notice'' that retaliation is itself sex discrimination prohibited by 
Title IX).
---------------------------------------------------------------------------

    Under the retaliation provision in Sec.  106.71(a) in these final 
regulations, no recipient or other person shall intimidate, threaten, 
coerce, or discriminate against any individual for the purpose of 
interfering with any right or privilege secured by Title IX or its 
implementing regulations, or because the individual has made a report 
or complaint, testified, assisted, or participated or refused to 
participate in any manner in an investigation, proceeding, or hearing 
under Title IX and its implementing regulations. Complaints alleging 
retaliation may be filed according to the ``prompt and equitable'' 
grievance procedures for sex discrimination required to be adopted 
under Sec.  106.8(c). If the person who is engaging in the retaliatory 
acts is a student or a third party and is not an employee of the 
recipient, a recipient may take measures such as pursuing discipline 
against a student who engaged in retaliation or issuing a no-trespass 
order against a third party to address such retaliation. This 
retaliation provision is purposefully broad in scope and may apply to 
any individual who has made a report or complaint of sex 
discrimination, including any individual who has made a report or filed 
a formal complaint of sexual harassment, any complainant, any 
individual who has been reported to be the perpetrator of sex 
discrimination, any respondent, any witness, or any other individuals 
who participate (or refuse to participate) in any manner in an 
investigation, proceeding, or hearing under Part 106 of Title 34 of the 
Code of Federal Regulations. Accordingly, threatening to take 
retaliatory immigration action for the purpose of interfering with any 
right or privileged secured by Title IX or its implementing regulations 
may constitute retaliation, and additional language in the actual text 
of the final regulations to express this point is unnecessary. The 
Department acknowledges that persons other than complainants, such as 
witnesses may face retaliation, and seeks to prohibit retaliation in 
any form and against any person who participates (or refuses to 
participate) in a report or proceeding under Title IX and these final 
regulations.
    The Department will hold a recipient responsible for responding to 
allegations of retaliation under Sec.  106.71. The recipient's ability 
to respond to retaliation will depend, in part, on the relationship 
between the recipient and the individual who commits the retaliation. 
For example, if a respondent's friend who is not a recipient's student 
or employee and is not otherwise affiliated with the recipient 
threatens a complainant, then the recipient should still respond to 
such a complaint of retaliation to the best of its ability. Even though 
the recipient may not require the person accused of retaliation to 
participate in a recipient's equitable grievance procedures under Sec.  
106.8(c), the recipient should process the complaint alleging 
retaliation in accordance with its equitable grievance procedures and 
may decide to take appropriate measures, such as issuing a no-trespass 
order.
    The Department recognizes that retaliation may occur by punishing a 
person under a different code of conduct that does not involve sexual 
harassment but arises out of the same facts or circumstances as the 
report or formal complaint of sexual harassment. The Department also 
acknowledges that several commenters directed the Department to media 
articles documenting alleged incidents of such punishment against 
students reporting unwanted sexual conduct.\1897\ Commenters cited 
research on sexual assault in the military, which found that fear of 
disciplinary action for collateral misconduct was a significant 
impediment to encouraging victims to come forward, and that some 
perpetrators explicitly told victims not to report or they would get 
the victim in trouble for collateral offenses, such as underage 
drinking.\1898\ In order to address this particular form of 
retaliation, Sec.  106.71(a) prohibits charges against an individual 
for code of conduct violations that do not involve sex discrimination 
or sexual harassment but arise out of the same facts or circumstances 
as a report or complaint of sex discrimination, or report or formal 
complaint of sexual harassment, for the purpose of interfering with any 
right or privilege secured by Title IX or its implementing regulations. 
For example, if a recipient punishes a complainant or respondent for 
underage drinking, arising out of the same facts or circumstances as 
the report or formal complaint of sexual harassment, then such 
punishment constitutes retaliation if the punishment is for the purpose 
of interfering with any right or privilege secured by Title IX or its 
implementing regulations. If a recipient always takes a zero tolerance 
approach to underage drinking in its code of conduct and always imposes 
the same punishment for underage drinking, irrespective of the 
circumstances, then imposing such a punishment would not be ``for the 
purpose of interfering with any right or privilege secured by'' Title 
IX or these final regulations and thus would not constitute retaliation 
under these final regulations. The Department is aware that some 
recipients have adopted ``amnesty'' policies designed to encourage 
students to report sexual harassment; under typical amnesty policies, 
students who report sexual misconduct (whether as a victim or witness) 
will not face school disciplinary charges for school code of conduct 
violations relating to the sexual misconduct incident (e.g., underage 
drinking at the party where the sexual harassment occurred). Nothing in 
the final regulations precludes a recipient from adopting such amnesty 
policies. Section 106.71 does not create amnesty, but does prohibit 
charges against an individual for code of conduct

[[Page 30537]]

violations that do not involve sex discrimination or sexual harassment, 
including any sanctions that arise from such charges, when such charges 
or resulting sanctions arise out of the same facts or circumstances as 
a report or complaint of sex discrimination, or report or formal 
complaint of sexual harassment, and when such charges or resulting 
sanctions are imposed ``for the purpose'' of interfering with the 
exercise of any person's rights under Title IX or these final 
regulations.
---------------------------------------------------------------------------

    \1897\ E.g., Tyler Kingkade, When Colleges Threaten To Punish 
Students Who Report Sexual Violence, The Huffington Post (Sept. 9, 
2015).
    \1898\ Commenters cited: Human Rights Watch, Embattled: 
Retaliation Against Sexual Assault Survivors in the US Military 
(2015).
---------------------------------------------------------------------------

    Additionally, Sec.  106.71(a) requires that recipients keep the 
identity of any individual who has made a report or complaint of sex 
discrimination, including any individual who has made a report or filed 
a formal complaint of sexual harassment, any complainant, any 
individual who has been reported to be the perpetrator of sex 
discrimination, any respondent, and any witnesses confidential except 
as may be permitted by the FERPA statute, 20 U.S.C. 1232g, or its 
implementing regulations, 34 CFR part 99, or as required by law, or to 
the extent necessary to carry out the purposes of the regulations 
implementing Title IX, including the conduct of any investigation, 
hearing, or judicial proceeding arising thereunder. The Department 
realizes that unnecessarily exposing the identity of any individual who 
has made a report or complaint of sex discrimination, including any 
individual who has made a report or filed a formal complaint of sexual 
harassment, any complainant, any individual who has been reported to be 
the perpetrator of sex discrimination, any respondent, and any witness, 
may lead to retaliation against them and would like to prevent such 
retaliation.
    The Department appreciates the commenter's concerns that the 
Department may ``accidentally'' impose the notice or actual knowledge 
requirement for sexual harassment adapted from the Gebser/Davis 
framework to a claim of retaliation. The Department acknowledges that 
the actual knowledge requirement in these regulations applies to sexual 
harassment and does not apply to a claim of retaliation; the Supreme 
Court has not applied an actual knowledge requirement to a claim of 
retaliation. No requirement of actual knowledge appears in Sec.  
106.71(a). These final regulations in Sec.  106.44(a) clearly require a 
recipient with actual knowledge of sexual harassment in an education 
program or activity of the recipient against a person in the United 
States to respond promptly in a manner that is not deliberately 
indifferent.
    We agree with commenters who noted that a recipient may respond to 
an allegation of retaliation according to the grievance procedures for 
sex discrimination required to be adopted under Sec.  106.8(c). The 
retaliation provision in Sec.  106.71(a) clarifies that a retaliation 
complaint may be filed with the recipient for handling under the 
``prompt and equitable'' grievance procedures for resolving complaints 
of sex discrimination that a recipient is required to adopt and publish 
under Sec.  106.8(c).
    We appreciate concerns of commenters who feared that speech 
protected under the First Amendment may be affected, if a recipient 
applies an anti-retaliation provision in an erroneous manner. To 
address this concern, the Department added a provision in Sec.  
106.71(b)(1) to clarify that the Department may not require a recipient 
to restrict rights protected under the First Amendment to prohibit 
retaliation. The Department recognizes that the First Amendment does 
not restrict the activities of private elementary and secondary schools 
or private postsecondary institutions. The Department, however, is 
subject to the First Amendment and may not administer these regulations 
in a manner that violates or causes a recipient to violate the First 
Amendment. Accordingly, Sec.  106.71(b)(1) states that the ``exercise 
of rights protected under the First Amendment does not constitute 
retaliation,'' as defined in these final regulations.
    The Department also understands the concerns of commenters that 
lying should not be protected and that any retaliation provision should 
explicitly exclude from protection those who make false allegations or 
false statements during a grievance process. Accordingly, Sec.  
106.71(b)(2) provides that charging an individual with a code of 
conduct violation for making a materially false statement in bad faith 
in the course of a grievance proceeding under the regulations 
implementing Title IX does not constitute retaliation. Section 
106.71(b)(2) also provides, however, that a determination regarding 
responsibility, alone, is not sufficient to conclude that any party 
made a materially false statement in bad faith. These provisions in 
Sec.  106.71(b) make it clear that exercising rights under the First 
Amendment of the U.S. Constitution or charging an individual with a 
code of conduct violation for making a materially false statement in 
bad faith does not constitute retaliation. This regulatory provision is 
intended to permit (but not require) recipients to encourage 
truthfulness throughout the grievance process by reserving the right to 
charge and discipline a party for false statements made in bad faith, 
while cautioning recipients not to draw conclusions that any party made 
false statements in bad faith solely based on the outcome of the 
proceeding. The final regulations, in Sec.  106.45(b)(2)(B), continue 
to require that written notice of the allegations of a formal complaint 
must inform the parties of any provision in the recipient's code of 
conduct that prohibits knowingly making false statements or knowingly 
submitting false information during the grievance process. The 
Department believes it is important for recipients to notify parties 
about any provisions in its code of conduct that prohibit knowingly 
making false statements or knowingly submitting false information 
during the grievance process, to emphasize the recipient's commitment 
to the truth-seeking nature of the grievance process, to incentivize 
honest, candid participation in it, and to caution both parties about 
possible consequences of lack of candor. Thus, under the final 
regulations, recipients retain flexibility and discretion to decide how 
a recipient wishes to handle situations involving false statements by 
parties, so long as the recipient's approach does not constitute 
retaliation prohibited under Sec.  106.71.
    The Department acknowledges that some commenters expressed a desire 
for the Department to return to recommendations regarding retaliation 
in its past guidance documents. We believe that the retaliation 
provision in these final regulations provides clearer, more robust 
protections than the recommendations in any of the Department's past 
guidance documents. For example, the 2001 Guidance stated that Title IX 
prohibits retaliation and that schools should prevent any retaliation 
against the complainant but did not define what constitutes 
retaliation, expressly address retaliation against other parties or 
witnesses, or address how recipients should respond to 
retaliation.\1899\ The 2001 Guidance stated that ``because retaliation 
is prohibited by Title IX, schools may want to include a provision in 
their procedures prohibiting retaliation against any individual who 
files a complaint or participates in a harassment inquiry.'' \1900\ 
These final regulations specifically define retaliation, expressly 
state that the recipient must keep confidential the identity of any 
individual who has made a report or complaint of sex discrimination, 
including any

[[Page 30538]]

individual who has made a report or filed a formal complaint of sexual 
harassment, any complainant, any individual who has been reported to be 
the perpetrator of sex discrimination, any respondent, and any 
witnesses unless certain exceptions apply, specify that complaints 
alleging retaliation may be filed according to the grievance procedures 
for sex discrimination required to be adopted under Sec.  106.8(c), and 
expressly address retaliation in specific circumstances, including in 
circumstances in which speech and expression under the First Amendment 
are at issue. Similarly, the retaliation provision in these final 
regulations is more precise than the guidance provided on retaliation 
in the withdrawn 2014 Q&A which did not address retaliation in the form 
of a recipient imposing charges against an individual for code of 
conduct violations that do not involve sex discrimination or sexual 
harassment, but arise out of the same facts or circumstances as a 
report or complaint of sex discrimination, including sexual harassment, 
did not address First Amendment issues, and did not address materially 
false statements made in bad faith during the course of a grievance 
proceeding.\1901\ The 2014 Q&A prohibited retaliation but in a vague 
manner; although the 2014 Q&A provided that complainants, respondents, 
and others may report retaliation to the recipient, it did not 
specifically provide that complainants, respondents, and others may 
file a complaint alleging retaliation under a recipient's grievance 
procedures for sex discrimination.\1902\ The retaliation provision in 
these final regulations also is responsive to comments received about 
retaliation in this rulemaking. Aside from the 2001 Guidance, the 
Department's other guidance documents on this subject did not have the 
benefit of public comment. The Department's final regulations, unlike 
the Department's guidance documents, have the force and effect of 
law.\1903\ The Department also notes that it expressly withdrew the 
2011 Dear Colleague Letter and 2014 Q&A in a letter dated September 22, 
2017, and no longer relies on these guidance documents.\1904\ 
Accordingly, we are not adopting any of our prior policies on 
retaliation in these final regulations, but address retaliation in a 
comprehensive, clear manner through these final regulations.
---------------------------------------------------------------------------

    \1899\ 2001 Guidance at 17, 20.
    \1900\ Id.
    \1901\ 2014 Q&A at 42-43 (discussing retaliation).
    \1902\ Id.
    \1903\ Perez v. Mortgage Bankers Ass'n, 575 U.S. 92, 97 (2015).
    \1904\ U.S. Dep't. of Education, Office for Civil Rights, Dear 
Colleague Letter (Sept. 22, 2017), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.
---------------------------------------------------------------------------

    Changes: The Department added Sec.  106.71 to clarify that 
retaliation is prohibited. The Department will not tolerate any 
recipient or other person intimidating, threatening, coercing, or 
discriminating against any individual for the purpose of interfering 
with any right or privilege secured by Title IX or its implementing 
regulations, or because the individual has made a report or complaint, 
testified, assisted, or participated or refused to participate in any 
manner in an investigation, proceeding, or hearing under regulations 
implementing Title IX. Intimidation, threats, coercion, or 
discrimination, including charges against an individual for code of 
conduct violations that do not involve sex discrimination or sexual 
harassment, but arise out of the same facts or circumstances as a 
report or complaint of sex discrimination, or report or formal 
complaint of sexual harassment, for the purpose of interfering with any 
right or privilege secured by Title IX or its implementing regulations, 
constitutes retaliation. The recipient must keep confidential the 
identity of any individual who has made a report or complaint of sex 
discrimination, including any individual who has made a report or filed 
a formal complaint of sexual harassment, any complainant, any 
individual who has been reported to be the perpetrator of sex 
discrimination, any respondent, and any witness, except as may be 
permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 
CFR part 99, as required by law, or to the extent necessary to carry 
out the purposes of 34 CFR part 106, including the conduct of any 
investigation, hearing, or judicial proceeding arising thereunder. 
Complaints alleging retaliation may be filed according to the grievance 
procedures for sex discrimination required to be adopted under Sec.  
106.8(c). The exercise of rights under the First Amendment does not 
constitute retaliation. Charging an individual with a code of conduct 
violation for making a materially false statement in bad faith in the 
course of a grievance proceeding under the regulations implementing 
Title IX does not constitute retaliation; however, a determination 
regarding responsibility, alone, is not sufficient to conclude that any 
party made a materially false statement in bad faith.

Severability

    Comments: None.
    Discussion: We believe that each of the regulations discussed in 
this preamble would serve one or more important, related, but distinct 
purposes. Each provision provides a distinct value to the Department, 
recipients, elementary and secondary schools, institutions of higher 
education, students, employees, the public, taxpayers, the Federal 
government, and other recipients of Federal financial assistance 
separate from, and in addition to, the value provided by the other 
provisions. To best serve these purposes, we include provisions in the 
final regulations to make clear that these final regulations are 
designed to operate independently of each other and to convey the 
Department's intent that the potential invalidity of one provision 
should not affect the remainder of the provisions.
    Changes: The Department adds severability clauses at the end of 
each subpart of Part 106, Title 34 of the Code of Federal Regulations 
in Sec. Sec.  106.9, 106.18, 106.24, 106.46, 106.62, and 106.72.

Regulatory Impact Analysis (RIA)

    The Department received numerous comments on our estimates of the 
relative costs and benefits of the proposed rule. In response to those 
comments, the Department has reviewed our assumptions and estimates. 
Among other changes, we have added a new category of recipients, 
updated our assumptions regarding the number of investigations 
occurring annually, increased time burdens for certain activities, 
added new cost categories, and made other changes as a result of the 
revisions to the proposed regulations. As a result of these changes, 
the Department estimates these final regulations will result in net 
costs. We discuss specific comments and our responses below.

Costs of Sexual Harassment and Assault

    Comments: One commenter asserted that, in addition to the 
significant, individual adverse effects to persons who experience 
sexual harassment, recipients stand to undergo increased absenteeism by 
students, student turnover, and conflict among students, as well as 
decreased productivity and performance, participation in school 
activities, and loss of respect for and trust in the institution. These 
effects, the commenter argued, also include damage to the institution's 
reputation. The same commenter added that the physical and mental 
health impacts of allowing sexual harassment to flourish, and failing 
to respond appropriately to sexual harassment, also come at a high cost 
to recipients, for example, in the form of a free appropriate public

[[Page 30539]]

education (FAPE) and disability services requirements. One commenter 
cited the statistic that about 34.1 percent of students who have 
experienced sexual assault drop out of college, which is higher than 
the overall dropout rate for college students. Additionally, about 40 
percent or more of survivors experience post-traumatic stress disorder 
(PTSD), depression, and chronic pain following assaults, making them 
less likely to attend classes or participate in school programs. The 
commenter argued that, when students do not complete college, the tax 
dollars that help fund grants and subsidies are not being used 
efficiently. The commenter also predicted that schools with lower 
completion rates would have difficulty recruiting new students and 
retaining grants that fund their programs.
    Another commenter expressed concerns that the proposed rules seek 
to decrease the number of Title IX investigations at each school, which 
would send a signal to students that neither their school nor the 
Department will address claims of sexual harassment. Based on this, the 
commenter predicted that schools would likely see a significant 
decrease in both application and enrollment rates if they are required 
to adopt the proposed rules.
    Discussion: The commenters assume a causal relationship (without 
providing rigorous evidence) between the final regulations and a number 
of negative outcomes that does not necessarily exist or will ever 
materialize.
    The Department does not include the costs associated with 
underlying incidents of sexual harassment and assault as (1) we have no 
evidence to support the claim that the final regulations would have an 
effect on the underlying number of incidents of sexual harassment and 
assault, (2) we have no evidence that these final regulations would 
exacerbate the negative effects of sexual harassment and assault, and 
(3) the provision of supportive measures as defined in the final 
regulations may actually reduce some of the negative effects of sexual 
harassment and assault cited by commenters.
    The Department does not have evidence to support the claim that the 
final regulations will have an effect on the underlying number of 
incidents of sexual harassment. The Department conducted an analysis on 
Clery Act data reported before and after the issuance of the 2011 Dear 
Colleague Letter to assess whether the 2011 Dear Colleague Letter had 
an effect on the underlying rate of sexual harassment, as well as to 
identify any corollaries that could inform our assumption regarding the 
final regulations. The analysis is included below. Acknowledging data 
quality limitations, the Department cannot conclude that the 2011 Dear 
Colleague Letter had an effect on the underlying rate of sexual 
harassment. The analysis is based on the best information available to 
the Department, but data quality limitations prevent a more rigorous 
analysis of the effects of the 2011 Dear Colleague Letter. Thus, there 
is insufficient evidence to determine conclusively whether the final 
regulations will have an effect on the underlying rate of sexual 
harassment.
    We interpret the comment regarding FAPE to refer to eligibility for 
special education and related services under the IDEA and Section 504. 
We have no reason to believe that a recipient's compliance with these 
final regulations would alter a local educational agency's child find 
responsibilities or a child with a disability's right to a free 
appropriate public education (FAPE) under the IDEA or Section 504.
    In the analysis, below, of the 2011 Dear Colleague Letter and data 
received pursuant to the Clery Act and its implementing regulations, we 
find no evidence or support that the final regulations will affect the 
underlying incidents of sexual harassment. We do not find evidence to 
reject the hypothesis that the 2011 Dear Colleague Letter had no effect 
on the underlying number of incidents of sexual harassment and assault. 
Neither public comment nor internal deliberation yield sufficient 
evidence that the final regulations will affect the underlying 
incidents of sexual harassment. The bottom line is that the best 
available data (analysis of effects of the 2011 Dear Colleague Letter) 
is insufficient to yield any evidence or support that the final 
regulations will affect the underlying incidents of sexual harassment. 
We believe the analysis and its limitations support the claim that the 
Department has no rigorous evidence that the final regulations will 
have an effect on the underlying incidences of sexual harassment.

2011 Dear Colleague Letter Analysis--Data Sources

    As noted in the NPRM and elsewhere in this notice, there is a 
general lack of high quality, comprehensive data on Title IX 
enforcement and incidents of sexual harassment and assault. The 
Department annually publishes data it receives under the Clery Act 
online.\1905\ We compiled data from 2007 through 2013 on Forcible Sex 
Offenses.\1906\ This period provides five years of data prior to 
release of the guidance and two years after release. After 2013, 
reporting categories changed, limiting a longer-term analysis. 
Specifically, beginning in 2014, institutions reported data on VAWA 
crimes rather than the previous categories of forcible sex offenses and 
non-forcible sex offenses. It is not clear how institutions viewed the 
relationship between the new and old categories and, absent further 
study, we do not think it prudent to assume that entities treated them 
interchangeably.
---------------------------------------------------------------------------

    \1905\ U.S. Dep't. of Education, Download Data, ``Campus Safety 
and Security,'' https://ope.ed.gov/campussafety/.
    \1906\ Note: The number of Non-Forcible forcible Sex Offenses 
was too low and variable to allow reliable modeling.
---------------------------------------------------------------------------

    In using these data, we had to assume that Clery Act reports are 
uniformly correlated with the underlying rate of sexual harassment and 
assault. That is, we do not assume that Clery Act data is totally 
comprehensive and captures all incidents of sexual harassment and 
assault, but we assumed it is correlated, meaning that the number of 
Clery Act reports increase and decrease in conjunction with increases 
and decreases in the underlying number of incidents of sexual 
harassment and assault. We note this is a major assumption and 
limitation of our analysis. Based on that assumption, if the 2011 Dear 
Colleague Letter affected the underlying rate of sexual harassment and 
assaults, we would anticipate a change in the number of Clery Act 
reports.
    We believe the Clery Act data would generate poor estimates of the 
effect of the 2011 Dear Colleague Letter in the following 
circumstances:
    1. The number of forcible sex offenses reported under the Clery Act 
are not uniformly correlated across years with the underlying number of 
incidents of sexual harassment and assault;
    2. The 2011 Dear Colleague Letter changed the reporting behavior of 
victims of sexual harassment and assault;
    3. The 2011 Dear Colleague Letter changed the reporting behavior of 
institutions under the Clery Act.
    It is important to note that each of the above circumstances would 
not necessarily result in an inability to identify an effect of the 
2011 Dear Colleague Letter. An inability to detect any effect in these 
circumstances (particularly 2 and 3) would actually require that the 
particular effects accrued in such a way that they were somehow 
otherwise offset in the underlying data (e.g., after the 2011 Dear 
Colleague Letter, victims were more

[[Page 30540]]

likely to report incidents that occurred, but there was an overall 
decrease in the total number of incidents, resulting in no net change 
in the number of offenses reported).

2011 Dear Colleague Letter Analysis--Data Analysis ¹⁹⁰⁷
---------------------------------------------------------------------------

    \1907\ Data was available and analyzed both in aggregate and at 
the individual campus level.
---------------------------------------------------------------------------

    As an initial analysis, we examined the average number of reports 
per year during the pre-guidance and post-guidance periods. Across all 
locations, there were more reports in the post-guidance period as 
described in Table II below. While this analysis establishes that there 
were more reports in the post-2011 period, we cannot reject the null 
hypothesis that these differences were due to random variation.
    In order to more fully examine the relationship between the 2011 
Dear Colleague Letter and the number of Clery Act reports, we first 
analyzed aggregate data using the following regression:

(1) FSOt = [beta]0 + 
[beta]1POSTt + [beta]2t + 
[beta]3t\2\ + [beta]4ENROLLt + [epsi]t

    In the above equation, FSOt represents the number of 
forcible sex offenses reported under the Clery Act in a given year t, 
POSTt is a dummy variable for the post-2011 period, t is a 
variable for the untransformed year (e.g., 2012), ENROLLt is 
the total enrollment in a given year, and [epsi]t is an 
error term.
    We allow for a quadratic relationship for t because the 
relationship between the year and the number of offenses reported is 
non-linear, as demonstrated in Figure I. A linear specification for the 
relationship between t and FSOt would therefore fail to 
accurately reflect the relationship between the variables and 
inappropriately assign that variation to another variable, most likely 
POSTt. In geographies with no time-series effects, we would 
anticipate both t and t\2\ to be non-significant. If the relationship 
is linear, we would expect only t\2\ to be non-significant. We discuss 
the limitations of allowing for a quadratic relationship in the 
concluding section below.
    The equation was applied across each geography. Results are 
presented in Table III. While POSTt is significant in the 
initial estimation for on-campus and noncampus geographies, it is no 
longer significant once covariates are added. Once we control for the 
baseline trend (i.e., pre-existing variation over time) and enrollment, 
POSTt is not significant in any panel. As demonstrated in 
Panels C and D of Table III, we cannot establish any trend over time 
for either public property or total offenses. For on-campus and 
noncampus offenses, we can establish a trend over time, but it is not 
attributable to POSTt. As such, we cannot reject the null 
hypothesis using the aggregate data.
    We note that the data used in this initial analysis are highly 
aggregated and Title IX enforcement occurs at the institution level. 
The Department annually collects data under the Clery Act at the 
individual campus level. Again, we used data on forcible sex offenses 
(as with the aggregate data) for the reasons outlined above. However, 
we also used data on the total number of robberies that were reported 
for each year. These data were used as a control for general trends in 
criminality on campus, particularly those that would be unlikely to be 
affected by a change in Title IX enforcement. Specifically, we want to 
ensure that any estimated change in the number of incidents of forcible 
sex offenses are not related to an overall change in the level of crime 
occurring on campus.
    We compiled data for 7,938 campuses from 2007 through 2013 and 
merged those data with data from the Integrated Postsecondary Education 
Data System (IPEDS), including institutional control (i.e., public, 
private non-profit, private for-profit), level (i.e., less-than-two-
year, two-year, four-year), and enrollment. Factors such as 
institutional control and level of institution are potentially relevant 
to any campus-level effects because those factors are highly correlated 
with other factors that are likely to affect the number of incidents 
and potential effects of any change in Title IX enforcement. For 
example, students at four-year institutions are much more likely than 
those at two-year or less-than-two-year institutions to live on campus 
and conduct a greater proportion of their daily activities in an 
environment that could be construed as part of the institution's 
education program or activity. Further, compliance activities between 
public and private institutions may look different given the degree of 
oversight from State or local governments. Summary data of the total 
number of on-campus forcible sex offenses reported under the Clery Act 
from 2007 through 2013 are presented in Table IV below.
    As with the aggregate data, we identify a clear non-linear 
relationship between the year and the number of forcible sex offenses 
reported under the Clery Act. See Figure II below.
    Using this information, we then estimated the following equation:

(2) FSOict = [beta]0 + [beta]1POSTt + [beta]2t + 
[beta]3t\2\ + [beta]4Xic +[beta]5ROBct 
+ [beta]6ENROLLit + [epsi]ict

    In Equation 2, FSOict represents the number of incidents 
of forcible sex offenses reported under the Clery Act on campus c of 
institution i in year t; POSTt is a dummy variable for 
observations in the post-2011 period; t and t\2\ allow for a quadratic 
relationship between the year and FSOict; Xic is 
a vector of institutional characteristics including institutional 
control and level; ROBct represents the number of robberies 
reported under the Clery Act on campus c in year t; ENROLLit 
represents the number of students enrolled in institution i in year t; 
and [epsi]ict is an error term.
    Estimates for Equation 2 are presented in Table V below. Columns 1 
and 2 show a statistically significant positive effect of the 2011 Dear 
Colleague Letter on the number of forcible sex offenses reported under 
the Clery Act. However, once we allow for a quadratic specification for 
t in Column 3, we no longer identify any effects of POSTT. 
Indeed, when variables for institutional control and level are added in 
Column 4 and controls for overall level of crime on campus and 
institutional enrollment are added in Columns 5 and 6, POSTt 
is the only variable which does not have a significant relationship 
with FSOICT. Based on these results, we can say that the 
overall number of reported forcible sex offenses is increasing over 
time at an increasing rate (positive coefficient on t\2\), private 
institutions tend to report fewer incidents of forcible sex offenses 
than public institutions (negative coefficients for dummy variables for 
private, non-profit and private, for-profit), four-year institutions 
report more forcible sex offenses than two-year and less-than-two-year 
institutions (negative coefficients on dummy variables for two-year and 
less-than-two-year), campuses with higher crime rates report more 
forcible sex offenses (positive coefficient on robbery), and 
institutions with higher enrollment report more forcible sex offenses 
(positive coefficient on enrollment). The only variable in the model 
which fails to explain any variation is POSTt.
    The results with respect to POSTt do not appear to be 
the result of low statistical power. The standard error on the term is 
relatively small and would detect significant effects of less than 0.08 
offenses per year. Controlling for all of the other variables in the 
model, the coefficient for POSTt is near zero. However, we 
continue to acknowledge limitations of the model as discussed below.

[[Page 30541]]

2011 Dear Colleague Letter Analysis--Conclusion and Limitations

    Based on the analyses presented herein, we can find no basis on 
which to reject the null hypothesis (that is, to reject the contention 
that the 2011 Dear Colleague Letter had no effect on the underlying 
number of incidents of sexual harassment and assault). Given the 
information available, the Department has insufficient evidence to 
assume the final regulations will have an effect on the underlying rate 
of sexual harassment. We understand that any analysis of the 2011 Dear 
Colleague Letter could not definitively determine the effects of the 
final regulations on the underlying incidents of sexual harassment due 
to the significant differences in these two sets of policies. We are 
presenting the 2011 Dear Colleague Letter analysis as a means to show 
the best possible information and analysis available to the Department, 
as well as the Department's limitations in assessing the effects of the 
final regulations on the underlying incidents of sexual harassment.
    Potential limitations of our analysis include:
     Potential omitted variables. As depicted in Figures I and 
II, the number of forcible sex offenses reported under the Clery Act is 
non-linear over time, decreasing from 2007 through 2009 and then 
increasing again. This relationship was established before the release 
of the 2011 Dear Colleague Letter and continued thereafter. A linear 
specification to the model would ignore the underlying trends in the 
data and incorrectly attribute baseline variation to the 2011 Dear 
Colleague Letter, as evidenced in Column 2 of Table V. However, we did 
not interrogate what may have happened in 2009 that led to such a 
change in trend and the associated implications for the quality of the 
data or its suitability for the hypothesis-testing being attempted.
     Quality of Clery Act data. Our results might differ with 
different or higher quality data. An ideal data set would include 
information on each institution's pre- and post-2011 Dear Colleague 
Letter Title IX compliance framework as well as the actual number of 
incidents of sexual harassment and assault (and not only those reported 
by the institution under the Clery Act). It is widely understood that a 
large number of incidents of sexual harassment and assault go 
unreported to institutional or legal authorities and are therefore not 
captured in our data. Further, if the implementation of the 2011 Dear 
Colleague Letter changed the reporting behaviors of either victims or 
institutions, then our analyses herein would be invalid.
     Correlation between Clery Act data and the underlying 
incidents of sexual harassment. Notwithstanding the preceding 
limitation of using Clery Act data, our analysis also assumes a 
correlation that we are unable to substantiate between Clery Act data 
and the underlying incidents of sexual harassment. This limitation is 
discussed at greater length above.
     Appropriateness of controls. Assuming that robberies 
represent a reasonable control for other criminal offenses on campus, 
despite the varying time trends across types of crime reported by the 
National Center for Education Statistics.\1908\ Our analysis used an 
ordinary least squares specification, without additional augmentation 
(e.g., Tobit regression). However, we have no reason to believe that 
such a specification would have allowed us to make definitive 
conclusions about the potential effects of the final regulations.
---------------------------------------------------------------------------

    \1908\ Institute of Education Sciences, National Center for 
Education Statistics, ``Fast Facts,'' https://nces.ed.gov/fastfacts/display.asp?id=804.

                                        Table I--Clery Act Reports of Forcible Sex Offenses by Year and Geography
--------------------------------------------------------------------------------------------------------------------------------------------------------
                Geography                      2007            2008            2009            2010            2011            2012            2013
--------------------------------------------------------------------------------------------------------------------------------------------------------
On Campus...............................           2,736           2,670           2,602           2,981           3,425           4,075           5,052
Non Campus..............................             294             271             296             308             379             445             588
Public Property.........................             448             329             366             331             394             429             376
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................           3,478           3,270           3,264           3,620           4,198           4,949           6,016
--------------------------------------------------------------------------------------------------------------------------------------------------------


                            Table II--Average Nummber of Clery Act Reports by Period
----------------------------------------------------------------------------------------------------------------
                                                                     2007-2011       2012-2013
                            Geography                                 average         average            p
----------------------------------------------------------------------------------------------------------------
On Campus.......................................................           2,883           4,564            0.15
Non Campus......................................................             310             517            0.19
Public Property.................................................             374             403            0.47
                                                                 -----------------------------------------------
    Total.......................................................           3,566           5,483            0.15
----------------------------------------------------------------------------------------------------------------
Each p-value is for an F-test of the null hypothesis that the averages are the same across time periods.


[[Page 30542]]

[GRAPHIC] [TIFF OMITTED] TR19MY20.000


                         Table III--Aggregate Data Regression Results by Clery Geography
----------------------------------------------------------------------------------------------------------------
                    Variable                            (1)             (2)             (3)             (4)
----------------------------------------------------------------------------------------------------------------
                                                  A. On Campus
----------------------------------------------------------------------------------------------------------------
Post-2011.......................................        ** 1,681             954             -85            -136
                                                           (360)           (471)           (126)           (145)
Year............................................  ..............             207     ** -447,622      * -380,702
                                                                           (106)        (40,376)        (89,421)
Year\2\.........................................  ..............  ..............          ** 111            * 95
                                                                                            (10)            (22)
Enrollment......................................  ..............  ..............  ..............           -0.00
                                                                                                         (-0.83)
R\2\............................................            0.81            0.86            0.99            0.99
----------------------------------------------------------------------------------------------------------------
                                                  B. Non Campus
----------------------------------------------------------------------------------------------------------------
Post-2011.......................................          ** 207             114             -32             -27
                                                            (49)            (67)            (26)            (34)
Year............................................  ..............              27      ** -62,688       * -69,378
                                                                            (15)         (8,327)        (20,837)
Year\2\.........................................  ..............  ..............           ** 16            * 17
                                                                                             (2)             (5)
Enrollment......................................  ..............  ..............  ..............            0.00
                                                                                                          (0.00)
R\2\............................................            0.78            0.88            0.99            0.99
----------------------------------------------------------------------------------------------------------------

[[Page 30543]]

 
                                               C. Public Property
----------------------------------------------------------------------------------------------------------------
Post-2011.......................................              29              73            35.4              58
                                                            (40)            (67)            (12)            (45)
Year............................................  ..............             -13         -16,230         -45,713
                                                                            (15)        (35,896)        (89,678)
Year\2\.........................................  ..............  ..............               4              11
                                                                                             (9)            (22)
Enrollment......................................  ..............  ..............  ..............            0.00
                                                                                                          (0.00)
R\2\............................................            0.10            0.23            0.28            0.32
----------------------------------------------------------------------------------------------------------------
                                                    D. Total
----------------------------------------------------------------------------------------------------------------
Post-2011.......................................            1376            -298            -622             363
                                                          (1010)         (1,509)         (2,601)           (306)
Year............................................  ..............             478        -138,800        -143,072
                                                                           (341)       (834,473)     (1,890,451)
Year\2\.........................................  ..............  ..............              35             356
                                                                                           (208)           (470)
Enrollment......................................  ..............  ..............  ..............          0.0028
                                                                                                        (0.0036)
R\2\............................................            0.27            0.51            0.56            0.63
----------------------------------------------------------------------------------------------------------------
* p < 0.10.
** p < 0.05.


   Table IV--Total Number of Forcible Sex Offenses Reported Under Clery by Institutional Control and Level of
                                             Institution, 2007-2013
----------------------------------------------------------------------------------------------------------------
                                                               Level of institution
                                                 ------------------------------------------------
                     Control                                                        Less than 2        Total
                                                     Four-year       Two-year          year
----------------------------------------------------------------------------------------------------------------
Public..........................................          11,267           1,551              56          12,874
Private, non-profit.............................          10,100              47               1          10,148
Private, for-profit.............................             102              25              12             139
                                                 ---------------------------------------------------------------
    Total.......................................          21,469           1,623              69          23,161
----------------------------------------------------------------------------------------------------------------


[[Page 30544]]

[GRAPHIC] [TIFF OMITTED] TR19MY20.001


                                                      Table V--Campus Level Data Regression Results
--------------------------------------------------------------------------------------------------------------------------------------------------------
                  Explanatory variable                          (1)             (2)             (3)             (4)             (5)             (6)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Post-2011...............................................        *** 0.13        *** 0.15           -0.00           -0.00            0.01            0.01
                                                                  (0.02)          (0.03)          (0.04)          (0.10)          (0.04)          (0.04)
Year....................................................  ..............            0.01      *** -48.88      *** -46.49      *** -44.95      *** -49.25
                                                                                  (0.01)         (13.49)         (13.08)         (12.62)         (12.53)
Year\2\.................................................  ..............  ..............        *** 0.01        *** 0.01        *** 0.01        *** 0.01
                                                                                                  (0.00)          (0.00)          (0.00)          (0.00)
Private, non-profit (1 = yes)...........................  ..............  ..............  ..............       *** -0.47       *** -0.33       *** -0.14
                                                                                                                  (0.02)          (0.02)          (0.02)
Private, for-profit (1 = yes)...........................  ..............  ..............  ..............       *** -0.51       *** -0.41       *** -0.23
                                                                                                                  (0.02)          (0.02)          (0.02)
Two-year (1 = yes)......................................  ..............  ..............  ..............       *** -0.94       *** -0.78       *** -0.70
                                                                                                                  (0.02)          (0.02)          (0.02)
Less than two year (1 = yes)............................  ..............  ..............  ..............       *** -0.75       *** -0.62       *** -0.47
                                                                                                                  (0.03)          (0.03)          (0.03)
Robbery.................................................  ..............  ..............  ..............  ..............        *** 0.48        *** 0.45
                                                                                                                                  (0.01)          (0.01)
Enrollment..............................................  ..............  ..............  ..............  ..............  ..............        *** 0.00
                                                                                                                                                  (0.00)
R\2\....................................................            0.00            0.00            0.00            0.06            0.13            0.14
--------------------------------------------------------------------------------------------------------------------------------------------------------
*** P < 0.1.

    Changes: None.
    Comments: Other commenters cited studies that found that 34 percent 
of students who have experienced sexual assault drop out of college, a 
rate that is higher than the overall dropout rate for college 
students.\1909\ Commenters also asserted that research demonstrates 
that chronic absence from school is a primary cause of low academic 
achievement and a powerful predictor of which students will eventually 
drop out of school.\1910\ Further, more than 40 percent of college 
students who were sexually victimized also reported experiences of 
institutional betrayal,

[[Page 30545]]

which impacts their abilities to continue their education. One 
commenter argued that when students do not complete college, their 
lifetime earning potential is significantly reduced and, if most 
students take out student loans, then the lowered income potential 
would impact these students' ability to repay the loans they borrowed 
from the Federal government.
---------------------------------------------------------------------------

    \1909\ Cecilia Mengo & Beverly M. Black, Violence Victimization 
on a College Campus: Impact on GPA and School Dropout, 18 Journal of 
Coll. Student Retention: Research, Theory & Practice 2 (2015).
    \1910\ See U.S. Department of Education, et al., Key Policy 
Letters Signed by the Education Secretary or Deputy Secretary 1 
(Oct. 7, 2015) [archived information], https://www2.ed.gov/policy/elsec/guid/secletter/151007.html; Audrey Chu, I Dropped Out of 
College Because I Couldn't Bear to See My Rapist on Campus, Vice 
(Sept. 26, 2017) https://broadly.vice.com/en_us/article/qvjzpd/i-dropped-out-of-college-because-i-couldnt-bear-to-see-my-rapist-on-campus.
---------------------------------------------------------------------------

    Other commenters asserted that some students may choose to transfer 
out of a hostile environment by opting to pursue their education at a 
different institution. However, there are costs associated with this 
strategy. Some commenters stated that the bulk of the upfront costs 
relate to credits that become `stranded assets,' when the investment 
that students, families, and public institutions make to help students 
acquire skills is lost. These students will need additional credits in 
order to receive a degree--if they receive one at all--and will spend 
more time out of the labor market. One commenter cited a 2014 study, 
stating that the Department, itself, found that the average transfer 
student loses 27 earned credits after transferring.\1911\ The commenter 
also cited the Government Accountability Office study that found that 
transfer students spend an extra 0.25 years in school before 
graduating.\1912\ Additionally, while pointing to a 2017 analysis from 
Complete College America, a commenter asserted that each additional 
year of schooling costs roughly $51,000 for students at two-year 
colleges and $68,000 for students at four-year colleges--and in both 
cases, the majority of those costs come from forgone earnings.
---------------------------------------------------------------------------

    \1911\ Institute of Education Sciences, National Center for 
Education Statistics, Transferability of Postsecondary Credit 
Following Student Transfer or Coenrollment: Statistical Analysis 
Report (August 2014), https://nces.ed.gov/pubs2014/2014163.pdf.
    \1912\ Government Accountability Office, Transfer Students: 
Postsecondary Institutions Could Promote More Consistent 
Consideration of Coursework by Not Basing Determinations on 
Accreditation (October 2005), https://www.gao.gov/new.items/d0622.pdf.
---------------------------------------------------------------------------

    One commenter asserted that the Department failed to attempt to 
calculate the incremental costs of lost scholarships for those who 
receive lower grades as a result of sexual violence or other sexual 
harassment and defaults on student loans as a result of losing tuition 
and/or scholarships. Another commenter stated that, if a survivor 
defaults on a Federal student loan, they are restricted from future 
Federal financial aid, vulnerable to predatory lending in attempts to 
pay heavy debts, and unable to discharge their student loans in 
bankruptcy. In addition to lost education and professional growth, the 
commenter asserted, these losses lead to damaged credit that interferes 
with their ability to secure housing, employment, and even access 
utilities or a phone.
    Discussion: While we appreciate the commenters' efforts to 
highlight the very real effects of sexual harassment and assault, the 
problems identified by the commenters largely arise from the underlying 
sexual harassment or assault rather than a recipient's response to that 
misconduct. As discussed above, the Department does not have evidence 
to assume these final regulations would have any effect on the 
underlying number of incidents of sexual harassment and assault. It is 
also not apparent that a recipient's response to sexual harassment and 
assault under these final regulations would be likely to exacerbate the 
negative effects highlighted by commenters. Indeed, as described above, 
we believe it is likely that, if these final regulations were to have 
any marginal effect on those outcomes, it would be to reduce their 
negative impacts due to the mandatory offer of supportive measures in 
Sec.  106.44(a). As such, we decline to add these costs to our 
estimates.
    Changes: None.
    Comments: Multiple commenters asserted that the costs for mental 
health services would largely fall on complainants because of their 
experience as a victim of sexual harassment and assault. One commenter 
reported that sexual assault survivors are three times more likely to 
suffer from depression, six times more likely to have PTSD, 13 times 
more likely to abuse alcohol, 26 times more likely to abuse drugs, and 
four times more likely to contemplate suicide.\1913\ Several commenters 
asserted that women who are sexually assaulted or abused are more than 
twice as likely to experience PTSD, depression, and chronic pain as 
women who have not experienced such violence.\1914\ One commenter 
reported that an estimated 40 percent of rape victims suffer from 
severe emotional distress which requires mental health treatment. 
Another commenter reported that survivors continue to report poorer 
health, utilize healthcare twice as much, and continue to pay increased 
health care costs even five years after their abuse has ended.\1915\ 
Several commenters argued that the costs the NPRM shifts to 
complainants would, in turn, shift to health insurance companies, and 
society will ultimately bear such costs. Another commenter stated that 
those who suffer sexual harassment and assault are more likely to 
require services from already over-burdened health and counseling 
services. The commenter argued that this will mean greater costs for 
government and taxpayers, since public colleges and universities rely, 
in part, on government and tax-payer support.
---------------------------------------------------------------------------

    \1913\ Feminist Majority Foundation, ``Fast facts--Sexual 
violence on campus'' (2018), https://feministcampus.org/wp-content/uploads/2018/11/Fast-Facts.pdf.
    \1914\ Anne B. Woods et al., The Mediation Effect of 
Posttraumatic Stress Disorder Symptoms on the Relationship of 
Intimate Partner Violence and IFN[hyphen][gamma] Levels, 36 Am. J. 
of Comm. Psychol. 1-2 (2005).
    \1915\ Amy E. Bonomi et al., Health Outcomes in Women with 
Physical and Sexual Intimate Partner Violence Exposure Intimate 
Partner Violence Exposure, 16 Journal of Women's Health 7 (2007); 
Amy E. Bonomi et al., Health Care Utilization and Costs Associated 
with Physical and Nonphysical-Only Intimate Partner Violence, 44 
Health Services Research 3 (2009).
---------------------------------------------------------------------------

    Several commenters reported that more than one-fifth of intimate 
partner rape survivors lose an average of eight days of paid work per 
assault. One commenter asserted that researchers found that women who 
experience dating violence in adolescence have lower starting salaries 
as adults than their counterparts and slower salary growth over 
time.\1916\ Similarly, commenters reference other research that found 
that survivors experience job instability for up to three years after 
an abusive relationship has ended.\1917\ The commenter stated that the 
costs from the economic ripple effect include $2,084 for forensic exams 
and $140 or more per counseling session when not offered by schools or 
covered by health insurance.\1918\ The commenter cited a 2017 study 
which found that the average cost of a victim's sexual assault

[[Page 30546]]

claim filed against a college or university was approximately 
$350,000.\1919\
---------------------------------------------------------------------------

    \1916\ Adrienne E. Adams et al., The Effects of Adolescent 
Intimate Partner Violence on Women's Educational Attainment and 
Earnings, 28 Journal of Interpersonal Violence 17 (2013).
    \1917\ Adrienne E. Adams et al., The Impact of Intimate Partner 
Violence on Low-Income Women's Economic Well-Being: The Mediating 
Role of Job Stability, 18 Violence Against Women 12 (2012). One 
commenter conducted a study that found that survivors of sexual 
harassment and assault face an ``economic ripple effect.'' Sara 
Shoener & Erika Sussman, Economic Ripple Effect of IPV: Building 
Partnerships for Systemic Change (2013), https://csaj.org/library/view/economic-ripple-effect-of-ipv-building-partnerships-for-systemic-change. See also Sara Shoener, The Price of Safety: Hidden 
Costs and Unintended Consequences for Women in the Domestic Violence 
Service System (Vanderbilt Univ. Press 2016).
    \1918\ Coreen Farris, et al., Enemy Within: Military Sexual 
Assault Inflicts Physical, Psychological, Financial Pain, 37 RAND 
Rev. 1 (2013); Farran Powell & Emma Kerr, What You Need to Know 
About College Tuition Costs, U.S. News & World Report (Sept. 18, 
2019) ($5,150 of tuition per lost semester; the average U.S. 
university tuition in 2017-208 was $11,721.67 per semester), https://www.usnews.com/education/best-colleges/paying-for-college/articles/what-you-need-to-know-about-college-tuition-costs.
    \1919\ Halley Sutton, Study Outlines Cost of Sexual Assault 
Litigation for Universities, 14 Campus Security Report 2 (2017).
---------------------------------------------------------------------------

    Many commenters asserted that the Department did not adequately 
consider certain costs that result from sexual harassment, including 
sexual assault. For example, numerous commenters reported that the 
lifetime costs of intimate partner violence include related health 
problems, lost productivity, and criminal justice costs, totaling an 
estimated $103,767 for women and $23,414 for men.\1920\ Other 
commenters reported that the Centers for Disease Control and Prevention 
estimates that the lifetime cost of rape is $122,461 per survivor, 
resulting in an annual national economic burden of $263 billion.\1921\ 
One commenter asserted that about one-third of the cost is borne by 
taxpayers, and more than half of this cost is due to loss of workplace 
productivity, and the rest is due to medical costs, criminal justice 
fees, and property loss and damage. Multiple commenters asserted that a 
single rape costs a victim between $87,000 to $240,776.\1922\ Many 
commenters stated that the average cost of being a rape victim is 
approximately $110,000 according to the Children's Safety Network 
Economic and Insurance Resource Center. Comparatively, the average cost 
of being a robbery victim is $16,000, and the average cost of drunk 
driving is $36,000.
---------------------------------------------------------------------------

    \1920\ See Cynthia Hess & Alona Del Rosario, Institute for 
Women's Policy Research, Dreams Deferred: A Survey on the Impact of 
Intimate Partner Violence on Survivors' Education, Careers, and 
Economic Security 8 (2018), https://iwpr.org/wp-content/uploads/2018/10/C474_IWPR-Report-Dreams-Deferred.pdf.
    \1921\ See Cora Peterson et al., Lifetime Economic Burden of 
Rape Among U.S. Adults, 52 AM. J. Prev. MED. 6, 691, 698 (2017), 
https://stacks.cdc.gov/view/cdc/45804/cdc_45804_DS1.pdf.
    \1922\ See The White House Council on Women and Girls, Rape and 
Sexual Assault: A Renewed Call to Action (2014), https://www.knowyourix.org/wp-content/uploads/2017/01/sexual_assault_report_1-21-14.pdf; U.S. Dep't. of Justice, National 
Institute of Justice, Research Report: Victim Costs and 
Consequences: A New Look (1996), https://www.ncjrs.gov/pdffiles/victcost.pdf.
---------------------------------------------------------------------------

    Discussion: We do not believe it would be appropriate to include 
estimates regarding the cost of incidents of sexual harassment or 
assault themselves in our calculation of the likely effects of this 
regulatory action.
    As described above, we have no evidence indicating that Federal 
Title IX guidance or regulation has an effect on the underlying number 
of incidents of sexual harassment and assault. To the extent that such 
effects are relevant to our evaluation of the likely costs of these 
final regulations, we note that supportive measures, as defined in 
Sec.  106.30, are ``offered . . . without fee or charge to the 
complainant or the respondent.'' As such, it could be reasonably argued 
that these final regulations would actually reduce costs for 
complainants, especially as Sec.  106.44(a) requires recipients to 
offer supportive measures to a complainant as more fully explained in 
the ``Section 106.44(a) Deliberate Indifference Standard'' subsection 
of the ``Section 106.44 Recipient's Response to Sexual Harassment, 
Generally'' section. Nonetheless, we decline to include such costs, as 
it is unclear the extent to which such services would be offered as 
part of supportive measures, the take-up rate on the part of 
complainants, or the amount of savings that would accrue to 
complainants as a result. We do, however, revise our cost estimates to 
include the cost of recipients offering supportive measures to 
complainants pursuant to Sec.  106.44(a).
    Changes: We revise our cost estimates to include the cost of 
recipients offering supportive measures to complainants pursuant to 
Sec.  106.44(a).
    Comments: Several commenters asserted that the RIA does not appear 
to account for the lost future tax revenue that would have been 
collected on the higher salaries of students who are afforded equal 
access to education free from discrimination, or the reduced future 
health care costs attributable to campuses that more effectively 
prevent sexual harassment and assault.
    Discussion: We decline to include the costs identified by the 
commenters. The effects noted by the commenters are sufficiently 
temporally and causally distant from the implementation of the final 
regulations that it would be difficult and impractical to quantify. 
Further, the comments assume that implementation of the final 
regulations will deny equal access to education to at least a subset of 
individuals, a proposition that we resoundingly reject.
    Changes: None.
    Comments: One commenter asserted that as the Department fails to 
justify its belief that there will be no quantifiable effect on the 
rate of underlying harassment, its conclusion about the impact on the 
underlying rate of sexual harassment is arbitrary and capricious. 
Moreover, the commenter argued the NPRM failed to consider the effect 
that its rules will have on perpetrators' incentives, suggesting that 
the Department has failed to consider relevant issues or factors and 
that the proposed regulations are arbitrary and capricious. The 
commenter cited research that shows that offenders are more likely to 
be deterred from, and thus less likely to engage in, undesirable 
behaviors when there is reasonable certainty of some kind of 
accountability. For instance, in the criminal context, an increase in 
the probability of being apprehended is associated with a decrease in 
the criminal activity itself.\1923\ If, under the Department's proposed 
rules, an abuser can more easily avoid accountability because schools 
are not legally required to act, any likelihood of deterrence resulting 
from the possibility of facing consequences is lowered. The commenter 
argued that the RIA failed to account for the potential effects of the 
proposed regulations on perpetrators' incentives, which rendered this 
analysis arbitrary and capricious.
---------------------------------------------------------------------------

    \1923\ See Valerie Wright, The Sentencing Project, Deterrence In 
Criminal Justice (2010), https://www.sentencingproject.org/wp-content/uploads/2016/01/Deterrence-in-Criminal-Justice.pdf.
---------------------------------------------------------------------------

    Discussion: As described above, we have articulated our rationale 
for not including the costs of sexual harassment or assault itself in 
our estimates. Further, we have provided additional analysis that 
supports our original decision. We do not believe that the exclusion of 
these costs is arbitrary or capricious.
    Regarding ``perpetrators' incentives,'' as noted elsewhere, and 
confirmed by our analysis of the 2011 Dear Colleague Letter, we do not 
believe that the behavior of perpetrators is driven by Title IX 
guidelines or regulations.
    We further note that the examples cited by the commenter pertain to 
the criminal context rather than an administrative one, and it is 
likely that incentives operate differently across those two contexts.
    Changes: None.
    Comments: One commenter asserted that the Department needs to 
perform a more exhaustive cost-benefit and regulatory impact analysis. 
The commenter suggested that the Department ought to obtain empirical 
estimates of the depressed rates of positive findings of actual sexual 
harassment resulting from a requirement of cross-examination, the rates 
of likely reduction of reporting, the likely effects on under-
deterrence of some classes of sexual harassment, and the costs of 
increased occurrences of sexual harassment. Another commenter, a non-
profit that specializes in education law, asserted that the NPRM's 
cost-benefit analysis was not performed in good-faith, and the 
commenter called for the Department to start completely anew with a new 
set of assumptions that will reflect the actual effects of these

[[Page 30547]]

regulations rather than a desire to minimize cost calculations as much 
as possible. Another commenter asserted that the Department has an 
obligation to incorporate an estimate of reduced sexual harassment and 
sexual assault reporting rates. The commenter asserted that the 
estimated baseline fails to recognize unreported assaults. One 
commenter cited a recent report by one university on campus assault 
that stated that a significant percentage of individuals who do not 
report stated it was not reported because they did not think anything 
would be done about it (29.9 percent) or feared it would not be kept 
confidential (17.7 percent).\1924\ The same study concluded that a 
significant number of victims who do not report felt embarrassed or 
ashamed (32.9 percent). Fewer victims of penetrative acts involving 
incapacitation felt nothing would be done about it (8.9 percent) or 
felt embarrassed (20.5 percent). Additionally, the survey found that 
roughly 50 percent of sexual violence occurred off campus. The 
commenter argued that the proposed regulations, by allowing schools to 
ignore sexual violence off campus, would ignore 50 percent of already 
reported incidences of sexual violence. The commenter wished to see the 
RIA account for these findings.
---------------------------------------------------------------------------

    \1924\ See The Association of American Universities, Report on 
the AAU Campus Climate Survey on Sexual Assault and Sexual 
Misconduct: University of Virginia (Westat 2015), https://ias.virginia.edu/sites/ias.virginia.edu/files/University%20of%20Virginia_2015_climate_final_report.pdf.
---------------------------------------------------------------------------

    Discussion: We appreciate the commenters' feedback, but we do not 
see sufficient cause across the entirety of public comment to warrant 
establishing a new model. Where commenters have identified clear 
deficiencies or inaccuracies with our estimates related to the effects 
of the final regulations, we have adjusted our assumptions accordingly. 
We note that the model was not derived based on a desire to minimize 
costs, but rather to effectively capture the likely impacts of this 
regulatory action.
    Regarding the impact of the final regulations and cross-examination 
on findings of responsibility, we are not aware of research 
establishing a clear causality or directionality in this relationship. 
Further, even if it were established that cross-examination reduced 
findings of responsibility in Title IX enforcement cases, it would not 
be immediately clear that such a reduction would be inherently 
negative. It is just as likely that such a reduction would be driven by 
a decrease in false positives (findings of responsibility where none 
exists) as a reduction in true positives (findings of responsibility 
where it exists). In fact, there is good reason to believe that cross-
examination improves adjudicators' ability to effectively assess the 
results of an investigation.\1925\
---------------------------------------------------------------------------

    \1925\ See Nicole Smith, The Old College Trial: Evaluating the 
Investigative Model for Adjudicating Claims of Sexual Misconduct, 
117 Columbia L. Rev. 4 (2017).
---------------------------------------------------------------------------

    As discussed elsewhere, the Department does not have any 
information to reliably suggest that the final regulations would result 
in a change in the number of incidents of sexual harassment and assault 
each year. However, our analysis takes into consideration an effect on 
the number of incidents that would result in a formal complaint. The 
NPRM assumed that a subset of investigations currently being conducted 
by recipients will result in reports (with supportive measures offered 
to the complainants) rather than formal complaints (although every 
complainant has the option of filing a formal complaint) and would, 
therefore, not trigger the grievance procedures described in Sec.  
106.45. We recognize that there are a number of reasons why a 
complainant may opt not to file a formal complaint and, in our view, 
our initial analysis took this effect into account.
    Changes: None.
    Comments: Another commenter asserted that the Department's estimate 
that the proposed rules will reduce the number of off-campus 
investigations by 0.18 is arbitrary and is generated without clear 
explanation. The commenter argued that the RIA failed to provide a 
complete accounting of all estimated costs and how the costs were 
determined. For example, the RIA does not state whether the salary 
rates are market rates or rates provided under the Federal GS Schedule, 
nor does it state whether the Federal revenue per full-time equivalent 
(FTE) is based on an inflation adjustment.
    Discussion: We disagree. We fully explained the basis for that 
estimate in the NPRM.\1926\ The estimate relied, in part, on the 
estimated number of investigations currently occurring and the relative 
number of incidents reported under the Clery Act that occur on campus 
and off campus.
---------------------------------------------------------------------------

    \1926\ 83 FR 61487.
---------------------------------------------------------------------------

    Changes: None.

Overall Net Effects/Characterization of Savings

    Comments: Regarding the Paperwork Reduction Act, one commenter 
asserted that the commenter's employer, a large non-profit, believes 
that the burden estimates are accurate, the quality and usefulness of 
the information collected is justifiable, and that the reporting burden 
is appropriately minimized.
    Discussion: We appreciate the commenter's support for our 
estimates.
    Changes: None.
    Comments: One commenter stated that they could not understand how 
the Department arrived at its projected cost totals. The NPRM stated 
that the Regulatory Impact Analysis estimates ``the total monetary 
`cost-savings' of these regulations over ten years would be in the 
range of $286.4 million to $367.7 million''; however, the commenter 
could not find that cost savings figure reflected in the accounting 
statement. The commenter asked the Department to clarify how it arrived 
at its estimated total costs.
    Discussion: We recognize that the discrepancy between the total 
cost figures and those included in the accounting statement could be 
confusing to some commenters. The cost savings calculation of $286.4 to 
$367.7 million were calculated over a ten-year window. By contrast, the 
Accounting Statement included an annualized (per year) calculation of 
those same costs.
    Changes: None.
    Comments: Multiple commenters expressed concerns that the final 
regulations will increase operating costs for recipients. Several 
commenters asserted that the proposed procedural requirements will cost 
institutions more over time to implement than they currently pay in 
Title IX-related legal fees, settlements, and damage awards. One large 
State-coordinating body for higher education estimated the costs for 
implementing the proposed rules at $500,000 for institutions with few 
cases (0-4) to $1.8 million for institutions with many cases (up to 
45). The range of costs was estimated per institution for 
implementation of investigation, hearing, and adjudication processes.
    Discussion: We appreciate commenters concerns and note that, in 
fact, the estimates in the NPRM assumed that a subset of institutions 
would not experience any cost savings as a result of the proposed 
rules. In the NPRM, we assumed that 50 percent of institutions of 
higher education (IHEs) would not see any reduction in the number of 
Title IX investigations per year as a result of the proposed rule. 
Although our analytical model generates different estimates for costs 
than those cited by the commenter (lower estimates for institutions 
with few cases, higher estimates for institutions with many cases), we 
do not have sufficient information at this time to identify the source 
of these differences. However, we are concerned about the possibility

[[Page 30548]]

that such burdens, where they do accrue, would be potentially difficult 
for recipients to bear. Based on the assumptions included herein, and 
discussed at further length in the Regulatory Flexibility Act section 
of this notice, we do not believe that such burdens would pose 
significant challenges for most institutions.
    Changes: We have included additional information in the Regulatory 
Flexibility Act section to more clearly describe the likely magnitude 
of the effects of the final regulations on institutions of varying 
sizes.
    Comments: Numerous commenters argued that the cost savings 
estimated by the NPRM's RIA is really just cost-shifting to 
complainants, respondents, and other parties. Several commenters 
asserted that the proposed rules would not reduce costs but simply 
shift costs from schools to the victims of sexual harassment. One 
commenter asserted that, by ignoring the NPRM's costs to complainants, 
the Department ``entirely failed to consider an important aspect of the 
problem,'' which the commenter stated is a hallmark of arbitrary and 
capricious action. One commenter asserted that, while the Department 
acknowledged in the NPRM that 22 percent of survivors seek 
psychological counseling, it did not account for additional costs 
sexual harassment and assault survivors bear: 11 percent move 
residences and eight percent drop a class.
    Discussion: We agree that it would be inappropriate to consider 
transfers of costs or burdens across entities or individuals as cost 
savings. However, the cost estimates in the NPRM did not do as the 
commenter suggested. Even so, the commenters' point is well taken that 
our estimates failed to take into account time burdens on complainants 
and respondents.
    For example, our initial estimates of the time associated with a 
hearing assumed time and costs for the Title IX Coordinator, a 
decision-maker, and advisors, but did not include the time required on 
the part of complainants and respondents to participate in the hearing. 
Therefore, we have added burden associated with the participation of 
complainants and respondents throughout the cost estimates. For K-12 
students, we assume costs at the Federal minimum wage. For students 
enrolled in postsecondary institutions, we assume median hourly wage 
for all workers ($18.58 per hour). These costs are intended to 
represent the opportunity cost associated with devoting time to the 
particular activity measured as potential lost wages. Again, as 
discussed at length in the NPRM and elsewhere in this notice, the 
Department declines to include costs associated with underlying 
incidents of sexual harassment and assault in our estimate of the 
potential costs of this regulatory action as doing so would be 
inappropriate.
    As previously explained, the Department also revised its cost 
estimates and has determined that the final regulations imposes net 
costs.
    Changes: We have added two additional categories of individuals to 
our cost models: K-12 students and postsecondary students. We revised 
our cost estimates and have concluded that the final regulations impose 
net costs.
    Comments: One commenter asserted that, under the proposed rules, 
schools will spend more time and resources engaging in a bureaucratic 
process instead of taking measures that would make the campus safer. 
The same commenter argued that publicly funded educational institutions 
should be allotting more time and resources to help tackle the issue of 
sexual misconduct and funds should be spent on better counseling, 
prevention measures, and implementing changes that will make schools 
safer such as lighting for walkways, sexual misconduct education, and 
specialized law enforcement services for survivors.
    One commenter asserted that institutions with more resources, such 
as private universities and charter schools, will be able to make more 
robust commitments to cross-examination in Title IX hearings--such as 
keeping a law firm on retainer to act as advisors for complainants and 
respondents--resulting in inequity in how sexual harassment is 
addressed nationwide. Another commenter stated that some recipients 
under these new regulations will feel obligated to provide attorneys to 
protect students and ensure fairness, even if it is not mandated by the 
final regulations, and the Department incorrectly underestimated the 
costs of retaining attorneys to serve as advisors.
    Discussion: We agree with the commenter that a broad range of 
activities and efforts can be undertaken by recipients to address 
issues of sexual misconduct. Those activities and efforts though are 
better determined by recipients themselves based on their own local 
context. We revised Sec.  106.44(a) to require recipients to offer 
supportive measures to complainants as part of their non-deliberately 
indifferent response to sexual harassment. Supportive measures, as 
defined in Sec.  106.30, are designed to restore or preserve equal 
access to the recipient's education program or activity. Section 
106.44(a) requires the Title IX Coordinator to promptly contact a 
complainant to discuss the availability of supportive measures as 
defined in Sec.  106.30, consider the complainant's wishes with respect 
to supportive measures, inform the complainant of the availability of 
supportive measures with or without the filing of a formal complaint, 
and explain to the complainant the process for filing a formal 
complaint. As a result of these and other revisions, the Department has 
concluded that these final regulations impose net costs.
    Regarding the differential response to these final regulations by 
different types of entities, we note that regulated entities often vary 
in their response to new rules. In the NPRM, we specifically discussed 
entities that, for a variety of reasons, opt to engage in activities 
above and beyond those required. At the postsecondary level, we assumed 
that approximately 45 percent of recipients fell into this group.\1927\ 
Further, as noted elsewhere in this document, our initial estimates 
already assumed attorneys would serve as advisors.
---------------------------------------------------------------------------

    \1927\ See 83 FR 61486.
---------------------------------------------------------------------------

    Changes: As a result of revisions to the proposed regulations, the 
Department revised its analysis and has determined that these final 
regulations impose net costs.
    Comments: Several commenters argued that the Department's analysis 
both underestimates the cost of implementation and overestimates the 
savings. Commenters predicted that it is likely that the costs from the 
proposed rules would exceed any savings. One commenter asserted that 
the RIA never clearly relayed to the public that recipient-institutions 
covered by Title IX may be private education programs or other 
institutions such as museums, libraries, or science labs that have 
education programs and receive Federal financial assistance from the 
Department or other Federal agencies, such as the Department of 
Agriculture. The commenters asserted that the public should be aware of 
how broadly Title IX reaches across various institutions, and 
therefore, how great the scope of the costs will be.
    Discussion: We agree that our initial analysis failed to account 
for recipients that are not LEAs or IHEs. Therefore, we conducted an 
analysis of the grants made by the Department in FY 2018. In that year, 
the Department made 15,266 awards to 8,324 entities. Of those, 537 were 
identified as ``other'' entities (e.g., museums, libraries, cultural 
centers, and other non-profit organizations). We have therefore added 
600 additional

[[Page 30549]]

entities to our analysis. We assume that approximately 90 percent of 
these entities will be in Group 1, as described in the NPRM, with an 
additional five percent in each of Groups 2 and 3. We note that we have 
no meaningful, systematic data on the number of incidents or 
investigations of sexual harassment occurring in these entities, though 
we note that many are small organizations devoted to providing 
technical assistance and outreach to families and have very few 
employees. Given the lack of information, we assume a baseline of two 
investigations per year per entity with a reduction to one under the 
final regulations.\1928\
---------------------------------------------------------------------------

    \1928\ For more information about the impact of this assumption 
on our estimates, see Table 5 in the Discussion of Costs, Benefits, 
and Transfers section below.
---------------------------------------------------------------------------

    As previously explained, as a result of changes from the proposed 
regulations to these final regulations, we also have revised our 
analysis and concluded that the final regulations impose net costs.
    Changes: We have added a new category of recipients to our model. 
As a result of revisions to the proposed regulations, the Department 
revised its analysis and has determined that these final regulations 
impose net costs.
    Comments: One commenter asserted that the RIA violates Executive 
Order 12866, which requires agencies to assess all costs and benefits 
of a proposed rule ``to the fullest extent that these can be usefully 
estimated,'' as the RIA fails to accurately estimate the true and full 
burden of the required policy changes.
    Discussion: We disagree. The Department has made a good-faith 
effort to fully and accurately account for all costs and benefits 
likely to accrue as a result of this regulatory action and, as a 
result, we believe we have met our burdens under Executive Order 12866. 
We also have revised our analysis and have concluded that these final 
regulations are economically significant and impost net costs.
    Changes: None.
    Comments: One commenter asserted that the Department has touted the 
savings of $286.4-$367.7 million dollars as a ``selling point'' for 
these rule changes. And yet, in relation to the endowments of most 
private colleges, the commenter asserted that the budgets of public 
university systems and the Department's own request for $63 billion for 
FY 2019, show how the projected savings amount is a paltry sum.
    Discussion: We agree that the savings calculated in the NPRM do not 
constitute a significant percentage of overall revenues for elementary 
and secondary schools and postsecondary institutions in this country. 
Additionally, as a result of revisions to the proposed regulations, we 
have revised our analysis and determined that the final regulations 
impose net costs.
    Changes: We have revised our analysis and determined that the final 
regulations impose net costs.
    Comments: Another commenter asserted that, if the estimated savings 
of $286.4 to $367.7 million were distributed evenly across the 23,000 
total universities, colleges, elementary, and secondary school 
districts, the savings would total $1,598.69 per institution per year. 
In the commenter's view, this meager lump sum would not begin to cover 
the financial burden that the proposed rules would inflict upon 
institutions of higher education.
    Discussion: We believe the commenter may have misunderstood the 
estimates presented in the NPRM. We anticipated net cost savings of 
approximately $286.4 to $367.7 million. That figure takes into account 
all increases and decreases in costs. Therefore, it is not necessary 
that the net cost savings figure be sufficient to cover cost increases, 
as such an analysis would double count costs. We believe the commenter 
mistook our calculations for gross cost savings, rather than net. We 
note that our final cost estimates reflect a net cost of between $48.6 
and $62.2 million over ten years.
    Changes: None.
    Comments: Another commenter, a law school, whose students currently 
benefit from over $10 million in scholarship awards, stated that 
compliance with the proposed regulations will reduce the amount of aid 
the school will be able to pay to future students.
    Discussion: We recognize that, to the extent recipients or parties 
realize costs as a result of the final regulations, they will need to 
identify sources of funding to cover those costs.
    Changes: None.
    Comments: Numerous commenters stated that the increase in 
requirements will cause schools to increase the funds they allocate for 
Title IX compliance. If they increase them, the cost will likely be 
passed onto students in the form of higher tuition or fees. If schools 
instead do not increase funding, they risk compliance gaps resulting 
from inadequate technology, staffing, or training. The commenters 
requested that the Department pay particular attention to the impact of 
the proposed rules on smaller institutions and to be sensitive to the 
measures that will increase costs.
    Discussion: In accordance with the Regulatory Flexibility Act, we 
have reviewed the potential effects of this regulatory action on small 
entities. While we recognize that the burden on small entities may 
represent a larger proportion of their overall revenues, as discussed 
elsewhere, we do not believe that these final regulations impose an 
unreasonable burden on such entities.
    The Department believes that addressing sex discrimination in the 
form of sexual harassment, including sexual assault, is of paramount 
importance and is worth the cost.
    Changes: None.

Motivation for Rulemaking

    Comments: Several commenters asserted that the NPRM's monetary 
savings comes at the unacceptable cost of stripping Title IX 
protections from many sexual harassment and assault victims. They argue 
that the proposed changes undermine the purpose for which Title IX was 
designed. One commenter stated that cost-savings is an irrelevant 
consideration when it comes to the application of civil rights law. 
Another commenter argued that it is unethical to consider, much less 
draw up, economic estimates in such a matter of human well-being. The 
commenter argued that financial incentives should not determine how 
schools and universities handle sexual misconduct accusations. Another 
commenter stated, hyperbolically, that it would also save money if 
universities provided no education for women.
    One commenter asserted that the cost-savings projections reflect 
fewer reports, not fewer assaults. Another commenter stated that the 
framework of these proposed regulations have an aim to reduce the 
financial cost of Title IX complaints through the mechanism of reducing 
the number of Title IX investigations, and therefore, Title IX 
protections available to students. Another commenter cited statistics 
that show approximately 61 percent of sexual assaults occur off campus. 
The commenter believed that the NPRM's requirement that schools 
investigate only on-campus or school-related incidents will reduce the 
number of sexual harassment and assault reports, but will also 
significantly impair colleges' ability to maintain a safe, non-
discriminatory environment for all students. Moreover, the commenter 
argued that the on-campus requirement could function to enable 
predatory behavior off campus.
    Other commenters asserted that, because sexual assault and other 
forms of sexual harassment are already vastly underreported, the 
Department should be working to combat the problems of underreporting 
and under-investigation

[[Page 30550]]

instead of trying to reduce the number of investigations. One commenter 
pointed out that, even when students do report sexual harassment, 
schools often choose not to investigate their reports. The commenter 
cited a 2014 Senate Report, first cited by the Department, in which 21 
percent of the largest private institutions of higher education 
conducted fewer investigations of sexual violence than reports received 
with some of these schools conducting seven times fewer investigations 
than reports received.
    Another commenter disputed the Department's prediction that the 
number of sexual harassment investigations would fall. The commenter 
asserted that the Department's focus on investigation outcomes ignores 
the prevalence of both sexual harassment and sexual assault and 
underreporting of both kinds of offenses on campuses.
    Discussion: While we recognize the commenters' concerns with 
quantifying the effects of these regulations, which pertain to civil 
rights protections, we note that we are bound to do so by Executive 
Order. Further, in deciding among alternative approaches, the 
Department is bound to choose the option that maximizes benefits and 
minimizes costs. While discussing civil rights protections in such 
terms may cause discomfort for particular commenters, we are required 
to do so as part of the rulemaking process.
    Although we may not have cited the statistics regarding the 
prevalence of sexual harassment and sexual assault cited by the 
commenters, we note that we cited statistics relevant to our estimates. 
We are not required under the Administrative Procedure Act, relevant 
Executive Orders, or OMB circulars, to cite all statistics regarding an 
underlying issue when conducting rulemaking. We do not believe citing 
other such statistics would have materially affected the public's 
ability to provide comment on the proposed regulations.
    We agree that our estimates assumed a reduction in the number of 
Title IX investigations conducted by recipients each year for the 
reasons detailed in the NPRM. However, we strongly disagree that such 
an effect means that fewer students are protected by Title IX. As 
explained in more detail in the section ``Section 106.44(a) `education 
program or activity' '' subsection of the ``Section 106.44 Recipient's 
Response to Sexual Harassment, Generally'' section of this document, 
these final regulations align the scope of ``education program or 
activity'' with Supreme Court case law and the current statutory and 
regulatory definitions of ``program or activity'' in 20 U.S.C. 1687 and 
34 CFR 106.2(h).
    The Department revised Sec.  106.44(a) to require recipients to 
offer supportive measures to complainants as part of recipients' non-
deliberately indifferent response to sexual harassment. Even if a 
complainant chooses not to file a formal complaint to initiate the 
grievance process under Sec.  106.45, including an investigation, the 
Title IX Coordinator must promptly contact the complainant to discuss 
the availability of supportive measures as defined in Sec.  106.30, 
consider the complainant's wishes with respect to supportive measures, 
inform the complainant of the availability of supportive measures with 
or without the filing of a formal complaint, and explain to the 
complainant the process for filing a formal complaint. The Department 
revised its analysis to account for such changes from the proposed 
regulations to the final regulations, and the Department concludes that 
these final regulations impose net costs.
    Recipients may be required to respond to incidents that occur off 
campus under these final regulations, as off-campus incidents of sexual 
harassment are not categorically excluded in these final 
regulations.\1929\ Title IX, 20 U.S.C. 1681(a), requires all recipients 
to address sex discrimination, including sexual harassment, in the 
recipient's education program or activity. Pursuant to Sec.  106.44(a), 
a recipient with actual knowledge of sexual harassment in an education 
program or activity of the recipient against a person in the United 
States, must respond promptly in a manner that is not deliberately 
indifferent. An ``education program or activity'' includes, but is not 
limited to, locations, events, or circumstances over which the 
recipient exercised substantial control over both the respondent and 
the context in which the sexual harassment occurs, and also includes 
any building owned or controlled by a student organization that is 
officially recognized by a postsecondary institution, whether such a 
building is on campus or off campus. Accordingly, an education program 
or activity may be an on-campus program or activity or an off-campus 
program or activity. Recipients must respond to any allegation of 
sexual harassment against a person in the United States in its 
education program or activity, regardless of whether such education 
program or activity is on campus or off campus.
---------------------------------------------------------------------------

    \1929\ See, e.g., the discussion in ``Section 106.44(a) 
`education program or activity' '' subsection in ``Section 106.44 
Recipient's Response to Sexual Harassment Generally'' section.
---------------------------------------------------------------------------

    While we recognize that a large number of incidents of sexual 
harassment and sexual assault go unreported, we do not believe it is an 
appropriate Federal role to compel individuals to report those 
incidents. Rather, we believe it is important to ensure that when 
recipients do receive reports, they have clear policies and procedures 
in place to promote a safe and supportive environment while also 
ensuring due process protections are applied whenever the recipient 
investigates and adjudicates sexual harassment allegations. We believe 
that ensuring recipients respond to such reports in a consistent and 
supportive manner is the best way to support potential complainants and 
respondents. We believe that, absent these regulations, complainants 
would face a far more uncertain response from their school and have far 
less clarity regarding whether the school has actually met its burdens 
under Title IX. As noted elsewhere, the Department's primary goal in 
promulgating these regulations was never to reduce the number of 
investigations, but rather to ensure clear guidelines under Title IX 
for recipients to effectively address sexual harassment.
    Changes: The Department concludes that these final regulations 
impose net costs.

The Department's Model and Baseline Assumptions

    Comments: One commenter argued that the Department arbitrarily 
assumed a reduction in the number of off-campus investigations by IHEs 
of 0.18 per year. This commenter requested that the Department generate 
a more reliable figure with a clear explanation to justify the 
significant number of victims who can no longer seek Title IX recourse.
    Discussion: The Department rejects the contention that its 
calculation of a reduction in the number of off-campus investigations 
by IHEs of 0.18 per year under the NPRM was arbitrary. As the preamble 
in the NPRM made clear, this calculation rested on a series of 
assumptions and data sources, which were clearly detailed. The 
reduction referenced by the commenter was based, in part, on 
assumptions about the current compliance structure across institutions 
of varying sizes and an assumption that Clery Act reports correlate 
with all incidents of sexual harassment.
    All data that the Department relied upon is publicly available and 
was identified in the NPRM to ensure that the general public had the 
necessary

[[Page 30551]]

information to assess the validity of our assumptions and estimates. 
Furthermore, the Department provided alternative estimates, detailed in 
the ``Sensitivity Analysis'' section, which were designed to ensure the 
public understood the likely effect of our particular assumptions on 
the overall magnitude of our final estimates. We acknowledge, as we did 
in the NPRM, that we do not have high-quality, comprehensive data on 
the current number of investigations being conducted by IHEs, and so 
the Department had to rely on estimates. This is why we previously 
requested that the general public provide us with any alternative data 
that they believed would more accurately capture the baseline.
    Changes: As discussed elsewhere, the Department has revised its 
estimate of the baseline number of investigations currently occurring 
at IHEs to 5.70 and the estimated number of formal complaints occurring 
after implementation of the final regulations to 3.82.
    Comments: A number of commenters voiced agreement with the RIA that 
the changes proposed by the NPRM are likely to result in a net cost 
savings for recipients. Some of these commenters pointed to the more 
than two hundred lawsuits that have been filed since the 2011 Dear 
Colleague Letter alleging lack of due process as well as sex 
discrimination against respondents. One commenter asserted that, at the 
time the comment was written, colleges had lost more than 90 such 
lawsuits, and the commenter predicted that the due process protections 
implemented by the changes to Title IX would result in additional cost 
savings for colleges in the form of averted litigation costs. Another 
commenter asserted that, because of the changes set forth by the NPRM, 
schools would be able to divert resources away from lawsuits and 
towards other uses that would more directly benefit students.
    Discussion: We appreciate the support from some commenters.
    Changes: None.
    Comments: Numerous commenters asserted that reports and 
investigations will decrease under the proposed regulations because of 
additional obstacles to reporting and the costs of pursuing 
investigations. One commenter stated the RIA should estimate the rates 
for which sexual harassment and assault would increase and should also 
account for the burden of such increased rates on the parties. One 
commenter argued that sexual harassment and assault can be deterred, 
but the proposed rules would create obstacles to reporting sexual 
harassment and sexual assault and, therefore, will reduce the amount of 
specific and general deterrence around such misconduct. Another 
commenter cited numerous articles, as well as the NPRM, for the 
proposition that sexual harassment and sexual assault can be deterred 
showing that the Department also acknowledges that proposition.
    Several commenters stated that, if the Department decides to 
implement Sec.  106.45(b)(6), the predicted harms of re-traumatization 
must be factored into a new cost-benefit and regulatory impact 
analysis. Other commenters argued that requiring complainants to submit 
to cross-examination will reduce the number of students pursing formal 
complaints of sexual harassment on campuses and will make campuses less 
safe. One commenter asserted that the Department omitted the cost to 
schools of students' greater demand for psychological and medical 
services as a result of recipients investigating fewer complaints of 
sexual harassment and sexual assault. The commenter asserted that 
institutions of higher education are already spending significant 
amounts of money on campus mental health services. The commenter argued 
that imposing new barriers and creating new stressors would exacerbate 
the rising costs of mental health services.
    Discussion: We disagree that the proposed and final regulations 
create obstacles to reporting incidents of sexual harassment and sexual 
assault. Rather, both the proposed and final regulations clarify 
recipients' burdens under Title IX. To address potential confusion 
regarding what constitutes a formal complaint, we have revised the 
definition of ``formal complaint'' in Sec.  106.30. As noted elsewhere, 
we have no reason to conclude that these final regulations would 
increase the number of incidents of sexual harassment and assault. As 
discussed above, fundamental respect for due process will not result in 
trauma for complainants or an increased need for mental health 
services. Such claims are speculative, at best, to be appropriately 
included in Departmental estimates. Further, we note that complainants 
are not required under the final regulations to participate in cross-
examination, and decision-makers are prohibited from basing a 
determination regarding responsibility on the absence of a party. 
Accordingly, to the extent complainants believed participation would 
likely cause harm, they could opt not to participate in the cross-
examination, while still receiving supportive measures designed to 
restore or preserve the complainant's equal educational access.
    Changes: We have revised the definition of the term ``formal 
complaint'' in Sec.  106.30. The definition of ``formal complaint'' in 
Sec.  106.30 is revised to mean a document filed by a complainant, or 
signed by the Title IX Coordinator, requesting that the recipient 
investigate sexual harassment allegations; a formal complaint may be 
filed in person, by mail, or email; and the formal complaint may be a 
document or electronic submission with the complainant's physical or 
digital signature or otherwise indicating that the complainant is the 
person filing the formal complaint.
    Comments: One commenter stated that the Department failed to use 
the term ``transgender'' in the proposed regulations. The commenter 
cautioned that this overt exclusion may make transgender students less 
likely to report on campus sexual harassment or sexual assault to the 
designated Title IX Coordinator. The commenter also cited a recent 
survey of transgender people, showing that 17 percent of K-12 students 
and 16 percent of college or vocational school students who were 
``out'' or perceived as transgender reported leaving school because of 
mistreatment.\1930\
---------------------------------------------------------------------------

    \1930\ See National Center for Transgender Equality, The Report 
of the 2015 U.S. Transgender Survey (Dec. 2016), https://www.transequality.org/sites/default/files/docs/USTS-Full-Report-FINAL.PDF.
---------------------------------------------------------------------------

    Discussion: We appreciate commenters' concerns for the diverse 
range of students covered under Title IX. We agree that the term 
``transgender'' did not appear in the NPRM. Such an omission does not, 
in any way, indicate that a student's gender identity would cause them 
not to be protected from sex discrimination under Title IX. As more 
fully explained in the ``Gender-based harassment'' subsection of the 
``Sexual Harassment'' subsection of the ``Section 106.30 Definitions'' 
section of this preamble, these final regulations focus on prohibited 
conduct, and anyone may experience sexual harassment as defined in 
Sec.  106.30.
    Changes: None.
    Comments: One commenter asserted that one of the commenter's non-
profit's clients has investigated over 650 cases since data tracking 
systems were developed in 2014 in response to a resolution agreement 
with OCR. Since that time, this K-12 district, which enrolls about 
35,000 students in over 50 schools, has investigated and remediated an 
average of 33 complaints and 89 reports each year for the past

[[Page 30552]]

four years. In the 2015-2016 school year, the district investigated and 
remediated 73 complaints and 126 reports of sexual and/or gender-based 
harassment. The same commenter asserted that recipients generally have 
poor or underdeveloped data management systems that result in the 
significant underreporting of the number of cases to Civil Rights Data 
Collection (CRDC) and other stakeholders. The commenter recommended 
that the Department increase the baseline estimate, as the commenter's 
data shows recipients investigate, on average, 3.5 cases per week.
    This commenter asserted that the Centers for Disease Control and 
Prevention's (CDC's) Youth Risk Behavior Survey (YRBS) provides 
important context across a few key indicators.\1931\ Based on the most 
recently available national data from 2017, the commenter asserted that 
the CDC estimates that over 11 percent of female students and 3.5 
percent of male students reported being physically forced to have 
sexual intercourse.\1932\ Across the recipients and States that 
participate in the YRBS, the indicators ranged from 7.5 percent to 15.3 
percent for female students and from 2.5 percent to 16.1 percent for 
male students.\1933\ While not a direct indicator of the number of 
incidents of forced sexual intercourse that result in a Title IX 
complaint or report, the commenter reported this data to show that the 
number of potential Title IX sexual assault cases are likely 
significantly higher than the current baseline estimate of 3.5 cases 
annually.\1934\
---------------------------------------------------------------------------

    \1931\ Commenter cited: Centers for Disease Control & 
Prevention, Division of Adolescent & School Health, Youth Risk 
Behavior Survey Data Summary and Trends Report: 2007-2017 (2018).
    \1932\ Id.
    \1933\ Id.
    \1934\ Id.
---------------------------------------------------------------------------

    This commenter also cited the California Department of Health 
Services and California Department of Education's California Healthy 
Kids Survey (CHKS), which also provides contextual indicators. 
Statewide, about eight percent of students reported being bullied or 
harassed at school due to their gender at least once, and over four 
percent reported two or more instances of gender-based bullying or 
harassment.\1935\ Applying the four percent rate to the entire 
population of public school K-12 students in California, which was 
6,220,413 in the 2017-18 school year, the commenter argued that there 
are likely over 240,800 students who have been repeatedly bullied or 
harassed due to their gender in California. The commenter stated that 
the prevalence of gender-based harassment also ranges significantly by 
the race/ethnicity of survey respondents, from 6.1 percent among Asian 
students to 12.8 percent among Native Hawaiian/Pacific Islander 
students.
---------------------------------------------------------------------------

    \1935\ Commenter cited: Austin, G., Polik, et al., School 
climate, substance use, and student well-being in California, 2015-
17 (WestEd 2018).
---------------------------------------------------------------------------

    Discussion: We recognize that, as with any diverse group of 
entities, there will be some level of variation. There will undoubtedly 
be LEAs that conduct more Title IX related investigations than average. 
In developing our assumptions, we did not intend to imply that the 
specific number we employed would apply to every recipient in every 
instance. Rather, we attempted to determine a reasonable average, based 
on the data available to us, of the effect across 15,505 LEAs 
nationwide. Further, while anecdotal evidence or data from the YRBS may 
be informative, it does not necessarily improve upon the systematic 
data reported by LEAs through the CRDC. Based on the commenter's 
statement, the LEA being described is one of the largest LEAs in the 
country, which would necessarily place them as an outlier and not 
particularly helpful to inform our analysis.
    YRBS data do not represent all LEAs, and we have reason to believe 
that patterns in participation in YRBS may indicate problems with its 
external validity--that is, LEAs which participate in YRBS do not 
necessarily look the same as LEAs that do not participate and, 
therefore, the YRBS data may skew in important ways. Additionally, the 
prevalence of incidents of sexual harassment does not necessarily 
indicate the number of investigations that recipients perform. The YRBS 
data represents student self-reports on a confidential questionnaire, 
and it is very likely that a high number of the incidents that students 
may confidentially report as part of the study would never have been 
reported to a responsible employee of the recipient under the 
Department's 2001 Revised Guidance on Sexual Harassment and 2017 Q&A, 
which represents the baseline against which the Department promulgates 
these final regulations. If a responsible employee did not know or 
reasonably should not have known about the alleged sexual harassment, 
then the recipient would not have investigated the alleged sexual 
harassment under the 2001 Revised Guidance and 2017 Q&A. Therefore, the 
data from YRBS does not clearly or predictably correlate with the 
number of investigations conducted by LEAs. Rather, a data collection 
reported by LEAs such as the CRDC is much more likely to capture the 
alleged incidents that recipients are required to investigate. 
Accordingly, the CRDC remains a better source to inform the baseline 
assumptions for these final regulations.
    Changes: None.
    Comments: One commenter asserted that the RIA's cost savings 
estimates ignore the obligations the Clery Act imposes on schools to 
respond appropriately to complaints involving stalking, dating 
violence, domestic violence, and sexual assault. The commenter stated 
that, at the same time, recipients also remain obligated by Title IX to 
respond appropriately to general sex discrimination claims. The 
commenter stated that the NPRM's purported cost savings are premised on 
the proposed rules' more narrow definition of sexual harassment and 
sexual assault, as well as the mandate that institutions dismiss cases 
without any investigation if the complaint fails to state an actionable 
claim.
    One commenter asserted that the proposed regulations introduce 
potential for confusion as employees and administrative staff try to 
sort through which process to use in different circumstances. For 
example, if a student accused the student's spouse of both sexual 
assault and domestic violence not amounting to sexual harassment, the 
commenter requested clarification as to whether the institution would 
be compelled to bifurcate the investigation into one that complies with 
the Department's proposed formal complaint process and one that does 
not.
    Discussion: We appreciate that the definition of sexual harassment 
in the proposed rules may have generated some confusion, particularly 
with regard to its omission of particular incidents otherwise covered 
under the Clery Act. Therefore, we have revised the definition of 
``sexual harassment'' to include sexual assault, dating violence, 
domestic violence, and stalking as defined in the Clery Act and VAWA, 
respectively, and have updated our estimates of the number of 
investigations to encompass the broader array of incidents that 
constitute sexual harassment under the final regulations. To do so, we 
used Clery Act data to identify a multiplier that could be used on our 
initial estimate to account for the new definition. Using 2017 Clery 
Act data, the Department found that there were approximately 1.416 
reported incidents of dating violence, domestic violence, or stalking 
reported for every

[[Page 30553]]

incident of sexual assault. We multiplied our estimated number of 
investigations per year in the NPRM by 2.416 to arrive at a new 
baseline of 5.70 investigations per institution of higher education per 
year.
    Changes: We have revised the definition of ``sexual harassment'' 
under Sec.  106.30 and revised our estimate of the number of 
investigations occurring annually.
    Comments: Many commenters asserted that the Clery Act and Title 
IX's general prohibition against sex discrimination will require 
schools to continue to investigate complaints involving stalking, 
dating violence, domestic violence, and sexual assault.
    Discussion: We recognize that the distinction between incidents 
covered under the Clery Act and these final regulations may have 
generated some confusion. We have therefore amended the definition of 
``sexual harassment'' to include sexual assault, dating violence, 
domestic violence, and stalking, as defined by the Clery Act and VAWA, 
respectively. A recipient's obligations, however, remain different 
under the Clery Act and Title IX. Under these final regulations, 
implementing Title IX, a recipient must conduct an investigation, which 
is part of the grievance process in Sec.  106.45, after a formal 
complaint is filed by a complainant or signed by the Title IX 
Coordinator. A recipient's obligations under the Clery Act may be 
different, and the Department is not issuing regulations to implement 
the Clery Act through this notice-and-comment rulemaking.
    Changes: We have amended the definition of ``sexual harassment'' in 
Sec.  106.30 to include sexual assault, dating violence, domestic 
violence, and stalking, as defined by the Clery Act and VAWA, 
respectively.
    Comments: One commenter asserted that the Department significantly 
inflated the current number of Title IX investigations in order to 
inflate the ``cost savings'' of reducing these investigations. Another 
commenter stated that, to estimate the number of Title IX 
investigations at institutions of higher education, the Department 
relied on a 2014 Senate report that allowed institutions of higher 
education to report whether they had conducted ``0,'' ``1,'' ``2-5,'' 
``6-10,'' or ``>10'' investigations of sexual violence in the previous 
five years.\1936\ The commenter argued that the Department, without 
justification, rounded up for each of these categories. If a school 
reported that it had conducted ``2-5'' or ``>10'' investigations, the 
Department inputted ``5'' and ``50,'' respectively, into its model, far 
higher than the medians of 3.5 and 30 investigations for those two 
categories. Elsewhere, the Department inexplicably assumed that there 
are twice as many ``sexual harassment investigations'' as there are 
``sexual misconduct investigations,'' without defining what these terms 
mean. Subsequently, the commenter argued that the ``estimate'' that 
each institution of higher education conducts 2.36 investigations per 
year is highly inflated.
---------------------------------------------------------------------------

    \1936\ Claire McCaskill, S. Subcomm. on Financial Contracting 
Oversight--Majority Staff, Sexual Violence on Campus, 113th Cong. 
(2014).
---------------------------------------------------------------------------

    Discussion: Regarding the Department's treatment and coding of the 
survey data available from the Senate subcommittee report, our analysis 
in the NPRM went into great detail regarding our rationales.\1937\ In 
addition, we provided the public with information regarding the 
sensitivity of our analyses to these decisions.\1938\
---------------------------------------------------------------------------

    \1937\ See 83 FR 61485.
    \1938\ See 83 FR 61485 fn. 18, 61489.
---------------------------------------------------------------------------

    While we understand that some commenters may have thought that our 
estimated number of Title IX investigations was inflated, we note that 
many others thought we underestimated the current number. In either 
case, our assumptions were made using the best data available and were 
not made in the hopes of reaching a particular conclusion with regards 
to the likely effects of the proposed rules. Further, our 
categorization and description of terms were intended to align with the 
definitions used in the proposed regulations. We note that ``sexual 
assault'' is a subpart of the definition of ``sexual harassment,'' and 
we were attempting to distinguish between the two.
    As a result of revisions to the proposed regulations, the 
Department has revised its analysis and concluded that these final 
regulations impose net costs.
    Changes: None.
    Comments: Several commenters at small universities stated that the 
proposed regulations incorrectly assume that the proposed regulations 
will produce a decrease in costs due to a decrease in the number of 
formal investigations schools must perform. Although the proposed 
regulations and final regulations would not require schools to 
investigate allegations of sexual harassment that occurred outside of a 
recipient's education program or activity or outside the United States, 
the commenters' student conduct codes would compel them to continue to 
investigate such incidents, even if outside the purview of Title IX, so 
the proposed regulations and these final regulations would result in a 
net increase of duties and tasks for those schools that wish to 
investigate allegations of sexual harassment that occurred outside the 
recipient's education program or activity or outside the United States.
    Discussion: We appreciate that, for a variety of reasons, some 
subset of postsecondary institutions and elementary and secondary 
schools may not experience any reduction in the number of 
investigations conducted annually. These recipients were included in 
analytical group 3 as discussed in the NPRM.\1939\ Given that such 
effects were already accounted for in our initial analysis, we do not 
believe a change is necessary.
---------------------------------------------------------------------------

    \1939\ See 83 FR 61486.
---------------------------------------------------------------------------

    The Department has made revisions to its analysis based on the 
revisions to the proposed regulations. For example, the Department 
takes into account incidents that may occur in any building owned or 
controlled by a student organization that is officially recognized by a 
postsecondary institution as a result of changes to Sec.  106.44(a), 
describing a recipient's education program or activity. The Department 
used Clery Act data that captures reports from geographic areas such as 
noncampus property to err on the side of caution because noncampus 
property as defined in 34 CFR 668.46(a) includes more than just 
buildings owned or controlled by a student organization that is 
officially recognized by a postsecondary institution.
    In the NPRM, the Department assumed that a proportion of current 
investigations, equivalent to the proportion of total incidents 
reported under the Clery Act in the noncampus or public property 
geographies, would no longer require investigation under the proposed 
rules because of the scope of education program or activity under the 
proposed rules. The change in the final regulations would require some, 
but not all, incidents reported on noncampus property, as defined in 34 
CFR 668.46(a), to be investigated by the recipient. While ideally the 
Department would be able to subdivide the incidents reported under the 
noncampus geography to isolate those occurring in buildings owned or 
controlled by student organizations that are officially recognized by 
the institution, we do not have data with that granularity of detail. 
Rather than arbitrarily identify a percentage of incidents occurring in 
such locations, the Department is now assuming that

[[Page 30554]]

the reduction in investigations due to their occurring outside of the 
education program or activity of a recipient is equivalent to the 
proportion of total incidents reported under the Clery Act that 
occurred on public property. This approach effectively assumes that 
recipients will continue to investigate formal complaints of all 
incidents occurring on noncampus property, as defined in 34 CFR 
668.46(a), which includes but is not limited to off-campus buildings 
owned or controlled by a student organization that is officially 
recognized by a postsecondary institution.
    Changes: The Department revised its analysis to include incidents 
that may occur in buildings owned or controlled by a student 
organization that is officially recognized by a postsecondary 
institution The Department has revised its estimate of the reduction in 
the number of investigations occurring under the final regulations. The 
Department now assumes that the number of investigations occurring each 
year will decrease from 5.70 to 3.82.
    Comments: Several commenters noted that the NPRM referenced 
``administrative assistants'' several times as additional personnel to 
whom Title IX Coordinators can delegate tasks, but the commenters 
asserted that most Title IX Coordinators, especially those at small 
institutions, do not have administrative assistants and a majority 
handle all of their administrative work on their own.
    Discussion: We appreciate that many Title IX Coordinators may not 
have dedicated administrative assistants to accomplish tasks. However, 
our intention was to identify work that was likely to be passed off to 
another employee of the organization, such as an administrative 
assistant or office administrator, whose typical work activities are 
more likely to include administrative tasks, such as reserving rooms, 
coordinating meeting times, recordkeeping, and sending and tracking 
correspondence. To the extent that such staff are not utilized, 
recipients may realize costs that are either higher or lower than those 
described herein. If Title IX Coordinators accomplish the work more 
efficiently than would be possible with the aid of an administrative 
assistant, recipients may experience lower costs. To the extent that it 
will take Title IX Coordinators the same amount of time to accomplish 
tasks as it would take an administrative assistant to do the same task, 
recipients are likely to see higher costs as a result of the higher 
wage rates assumed for Title IX Coordinators. We continue to believe 
that many of the tasks associated with coordinating the grievance 
process--including scheduling facilities, staff, and resources and 
ensuring all appropriate notices are provided to all parties in a 
timely manner--would most appropriately fall to an employee in a 
position such as an administrative assistant, and we continue to 
include these positions in our analysis.
    Changes: None.
    Comments: Multiple commenters asserted that the RIA's estimate for 
hourly costs of an attorney is too low. One commenter asserted that in 
the commenter's State, the average hourly rate for civil attorneys is 
between $250 and $325. Based on the Department's own estimate that a 
case would require 40 hours of attorney time for each party, and 
assuming that the parties qualified for the commenter's State bar's 
modest means program (which charges no more than $60, $80, or $100 per 
hour), parties would still be spending between $2,400 and $4,000. 
Another commenter stated that the Department provides no basis for this 
assumed rate for an attorney, which is significantly lower than the 
average hourly rate of attorneys in the commenter's area.\1940\
---------------------------------------------------------------------------

    \1940\ See, e.g., Jay Reeves, Top 10 Hourly Rates by City, 
Lawyers Mutual Byte of Prevention Blog (Apr. 6, 2018), https://www.lawyersmutualnc.com/blog/top-10-lawyer-hourly-rates-by-city 
(listing lawyer rates by practice area ranging from $86/hour to 
$340/hour); Hugh A. Simons, Read This Before You Set Your 2018 
Billing Rates, Law Journal Newsletters (Nov. 2017), https://www.lawjournalnewsletters.com/2017/11/01/read-this-before-you-set-your-2018-billing-rates/ (indicating first year associates cost 
their employers approximately $111/hour).
---------------------------------------------------------------------------

    Some commenters from small and rural colleges asserted that they 
lack in-house legal counsel and must hire outside counsel to assist 
when legal questions arise. Numerous commenters from several small 
universities stated that, while a larger institution might be able to 
employ a full-time attorney for the $90.71 hourly rate the proposed 
rules assumed, small institutions that retain attorneys on an ad hoc 
basis for a limited number of cases will likely pay a much higher rate. 
For example, one commenter's institution typically pays attorneys 
between $250 and $400 per hour, meaning that this institution's costs 
are likely to significantly exceed the Department's estimates. Another 
commenter at a small college asserted that the college typically 
retains attorneys for an amount averaging somewhere between $360 per 
hour and $530 per hour. Additional commenters from small institutions 
reported attorneys costing somewhere between $200 and $600 an hour. One 
commenter stated that, to calculate the cost of the proposed 
regulations, the average school attorney's rate in the commenter's 
State is about $300, which is much higher than the Department's 
estimate.
    Discussion: We appreciate commenters' concerns and recognize that 
many attorneys may charge hourly rates for services in excess of those 
used in our estimates. However, as discussed on page 61486 of the NPRM, 
we are relying on data from the Bureau of Labor Statistics (BLS) and 
utilized the median hourly wage rate for attorneys in the education 
sector. It is our general practice to use wage rates available from BLS 
for these types of estimates.
    Changes: None.
    Comments: One commenter, speaking for a community college that 
serves as the largest institution of higher education in the 
commenter's State, asserted that the Department's citation of Angela F. 
Amar et al., Administrators' perceptions of college campus protocols, 
response, and student prevention efforts for sexual assault, 29 
Violence & Victims 579 (2014), is problematic because it assumes that 
hearing boards are commonplace at institutions of higher education. The 
commenter's review of the above article showed that 51 percent of 
respondents to the research study were from four-year private colleges 
and 38 percent were from four-year public colleges. The commenter 
asserted that the underlying assumptions cited by the Department on how 
colleges respond to conduct cases is skewed toward four-year, primarily 
residential institutions and did not take into account the context in 
which many community colleges operate. The commenter asserted that the 
proposed regulations will require schools to create a hearing system 
for a small subset of cases, which will impose administrative and 
financial burdens as boards must be created from scratch, trained on 
the legal nuances of sexual harassment and discrimination, and would 
respond to a small portion of conduct cases.
    Discussion: We appreciate the commenter's input and did not intend, 
by citation to a particular source, to indicate that the proposed 
regulations or our analysis were only pertinent to, or only considered, 
four-year institutions. The purpose of that particular citation was to 
help inform our understanding of the status quo. Our analysis assumed 
that 60 percent of IHEs use the Title IX Coordinator as the decision-
maker in their current enforcement structure.
    We believe that assumption readily comports with the commenter's 
concern about community colleges that may not have formal hearing 
boards or independent decision-makers currently

[[Page 30555]]

in place. We recognize that at least some subset of institutions will 
have to create new processes to comply with the final regulations, and 
our initial estimates took this into account. Specifically, we note 
that our estimates include development or revision of grievance 
procedures and include training for Title IX Coordinators, 
investigators, decision-makers, or any person designated by a recipient 
to facilitate an informal resolution process. We believe that these 
estimates capture the concerns raised by the commenter.
    Changes: None.
    Comments: Several commenters also disputed the RIA's estimate that 
an IHE will perform 2.36 investigations each year. At the University of 
Iowa, according to the Office of Sexual Misconduct Response Coordinator 
2017 annual report, 444 reports were taken and 58 investigations were 
completed in one year.\1941\ One commenter asked how the RIA sets the 
estimated average at 2.36 investigations of sexual harassment for each 
IHE per year, when statistics show sexual harassment and assault occurs 
much more often. One commenter reported that, according to the National 
Sexual Violence Resource Center, one in five women and one in 16 men 
are sexually assaulted while in college and more than 90 percent of 
sexual assault victims on college campuses do not report the 
assault.\1942\ Another commenter disagreed with the Department's 
calculation of 2.36 investigations of sexual harassment per year, as 
most four-year institutions have well over 2.36 investigations each 
year.
---------------------------------------------------------------------------

    \1941\ See University of Iowa Office of the Sexual Misconduct 
Response Coordinator, ``Report Resolution and Outcomes,'' https://osmrc.uiowa.edu/about-us/2017-annual-report/osmrc-case-and-outcome-data/report-resolution-and-outcomes.
    \1942\ National Sexual Violence Resource Center, Info and Stats 
for Journalists: Statistics About Sexual Violence 2 (2015), https://www.nsvrc.org/sites/default/files/publications_nsvrc_factsheet_media-packet_statistics-about-sexual-violence_0.pdf.
---------------------------------------------------------------------------

    Discussion: As noted elsewhere, we are very aware that a subset of 
the nation's largest IHEs will annually conduct more investigations 
than the average IHE. Such an outcome is assumed in any distribution. 
We clearly described in the NPRM our process for arriving at the 
estimated number of investigations occurring per year.\1943\ However, 
we have, for other reasons described elsewhere in these final 
regulations, revised our estimated number of investigations occurring 
per year.
---------------------------------------------------------------------------

    \1943\ 83 FR 61485-88.
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter asserted that, while the Department assumes 
an approximate reduction of 0.18 of the number of IHE investigations by 
disregarding off-campus sexual harassment, the Department fails to 
allocate time for the investigation that would need to occur for the 
jurisdictional analysis to establish where the incident occurs.
    Discussion: As explained earlier in the RIA, these final 
regulations do not categorically exclude allegations of sexual 
harassment that occur off campus. Recipients must respond to any 
allegations of sexual harassment in their education program or 
activity, whether the alleged sexual harassment occurs on campus or off 
campus.\1944\ We agree that, in some instances, recipients may need to 
expend resources to determine whether a particular incident occurred 
outside of the recipient's education program or activity. We have added 
time for Title IX Coordinators and investigators to engage in such an 
analysis in approximately 50 percent of incidents.
---------------------------------------------------------------------------

    \1944\ See, e.g., the discussion in ``Section 106.44(a) 
`education program or activity' '' subsection in ``Section 106.44 
Recipient's Response to Sexual Harassment Generally'' section.
---------------------------------------------------------------------------

    Changes: We have added a new cost category designed to capture the 
efforts of recipients to determine whether a particular incident 
occurred in a recipient's education program or activity.

Data Sources

    Comments: Several commenters argued that Clery Act data 
inaccurately reflects the number of investigations because it only 
tracks on-campus conduct, and, as a result, should not be used to 
estimate the general rate of investigations per reported sexual offense 
at four-year IHEs. Commenters pointed out that many cases that lead to 
investigations involve off-campus behavior. Numerous commenters also 
noted that Clery data fails to include instances of sexual harassment 
and discrimination.
    One commenter asserted that, while Clery Act data is an important 
resource, any user must seriously consider the limitations of that data 
source. The commenter stated that the American Association of 
University Women (AAUW) has investigated underreporting related to the 
Clery Act and concluded that reported campus safety and crime 
statistics reflect the fact that ``some schools have built the 
necessary systems to . . . disclose accurate statistics--and others 
have not.'' \1945\ The commenter cited other studies of Clery Act data 
and educational institutions that have identified similar concerns 
about underreporting, overreporting, and misreporting of data around 
sexual assault.\1946\
---------------------------------------------------------------------------

    \1945\ See, e.g., American Association of University Women, 89 
Percent of Colleges Reported Zero Incidents of Rape in 2015 (May 10, 
2017), https://www.aauw.org/article/clery-act-data-analysis-2017/; 
American Association of University Women, 91 Percent of Colleges 
Reported Zero Incidents of Rape in 2014 (Nov. 23, 2015), https://www.aauw.org/article/clery-act-data-analysis/.
    \1946\ See, e.g., California State Auditor, Clery Act 
Requirements and Crime Reporting: Compliance Continues to Challenge 
California's Colleges and Universities, Report 2017-032 (May 2018); 
National Academies of Sciences, Engineering, and Medicine, 
Innovations in Federal Statistics: Combining Data Sources While 
Protecting Privacy 44 (2017) (``the data on sexual violence reported 
by many institutions in response to the [Clery] act's requirements 
is of questionable quality'').
---------------------------------------------------------------------------

    On the LEA level, commenters reported that the Department is even 
less clear about its calculations, simply stating that it ``assumes 
that only 50 percent of the incidents reported in the CRDC would result 
in a formal complaint, for a reduction in the number of investigations 
of 1.62 per year.'' The commenter asserted that the basis of the 
Department's assumption regarding formal complaints is not provided. 
The commenter argued that, while the CRDC provides another important 
source of data for the public, it is also limited by the quality of 
data it imports.\1947\ Other commenters stated that inaccurate data is 
particularly a problem with the sexual harassment reports, on which the 
proposed regulations so heavily rely. Commenters reported that the AAUW 
has analyzed the CRDC sexual harassment data and determined that many 
school districts were simply reporting no incidents rather than 
collecting and reporting the true numbers of cases of sexual harassment 
that were reported or resulted in discipline. These commenters argued 
that to rely on such datasets to enact sweeping changes to Title IX law 
means that the projected costs are not being conducted in a rigorous or 
high-quality manner and are likely to be inaccurate.\1948\
---------------------------------------------------------------------------

    \1947\ See, e.g., Evie Blad, How Bad Data from One District 
Skewed National Rankings on Chronic Absenteeism, Education Week 
(Jan. 9, 2019), https://blogs.edweek.org/edweek/rulesforengagement/2019/01/chronic_absenteeism.html.
    \1948\ See, e.g., American Association of University Women, 
Three-Fourths of Schools Report Zero Incidents of Sexual Harassment 
in Grades 7-12 (Oct. 24, 2017), https://www.aauw.org/article/schools-report-zero-incidents-of-sexual-harassment/; Lisa Maatz, 
American Association of University Women, Why Are So Many Schools 
Not Reporting Sexual Harassment and Bullying Allegations?, The 
Huffington Post (October 24, 2016), https://www.huffingtonpost.com/lisa-maatz/why-are-so-many-schoolsn_b_12626620.html; American 
Association of University Women, Two-Thirds of Public Schools 
Reported Zero Incidents of Sexual Harassment in 2013-14 (July 12, 
2016), https://www.aauw.org/article/schools-report-zero-sexual-harassment/.

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

[[Page 30556]]

    One commenter asserted that the Department must seek to adopt the 
same attitude and standard as the Equal Employment Opportunity 
Commission Task Force on the study of harassment in the workplace, 
which issued a report in 2016 that explicitly acknowledged the dearth 
of data as it related to workplace harassment and did not accept data 
at face value, instead acknowledging that not all claims will be 
represented in available datasets given rampant underreporting and 
systemic data collection challenges. The commenter requested that the 
Department halts its rulemaking while it revisits its cost 
calculations, reviews the accuracy of the Clery Act and CRDC data on 
which its calculations rely, and makes its underlying calculations 
available to the public.
    One commenter contended that the Department relies on unreliable 
estimates of the number of reported sexual assaults to gauge the number 
of sexual assault investigations per year. The commenter admits that 
the Department is limited by a dearth of reliable evidence but asserts 
that the Department's projections likely underestimate the average 
number of investigations universities perform each year. The same 
commenter asserted that, since many of the other costs are computed 
based on this average number of investigations, a gross underestimate 
of the number of investigations would have a large effect on the 
overall cost-savings analysis, suggesting lower costs of implementation 
than is true.
    Discussion: As an initial matter, it is important to note that the 
Department clearly identified data limitations in the NPRM and 
requested that members of the public identify any comprehensive data 
sources which might improve our estimates. We also should note that 
Clery Act data was not used as the primary basis for our assessment of 
the number of investigations currently being conducted per year. 
Rather, the data was used to help provide context to the calculations 
derived from the Senate subcommittee report.\1949\ Regarding the CRDC 
data, we equally recognized and acknowledged data quality issues, but 
in the absence of higher quality comprehensive data, we opted to rely 
upon the information we had. We also explained our rationale for how we 
coded the survey data at great length in the NPRM and provided 
alternative estimates in the Sensitivity Analysis section of the NPRM 
to more clearly highlight for the public the impact of these 
assumptions on the results of our analysis. While we recognize that 
outliers exist in the universe of recipients, our assumptions were 
intended to capture the overall average. We have made other changes to 
our assumptions as described elsewhere to attempt to address some of 
the commenters' concerns regarding potential underestimation of 
implementation costs. Indeed, as a result of revisions to the proposed 
regulations, the Department has determined that these final regulations 
are economically significant and impose net costs.
---------------------------------------------------------------------------

    \1949\ See 83 FR 61485.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Another commenter asked why the Department failed to 
consult the large and robust body of research produced through the 
academic, peer-review research process that is the hallmark of the 
research enterprise.
    Discussion: The Department consulted relevant research studies in 
developing cost estimates as evidenced by the citations included in the 
NPRM.\1950\
---------------------------------------------------------------------------

    \1950\ E.g., Jacquelyn D. Wiersma-Mosley & James DiLoreto, The 
Role of Title IX Coordinators on College and University Campuses, 8 
Behav. Sci. 4, 5-6 (2018), https://www.mdpi.com/2076-328X/8/4/38/htm 
(click on ``Full-Text PDF'') (page references herein are to this PDF 
version); Tara N. Richards, An updated review of institutions of 
higher education's responses to sexual assault: Results from a 
nationally representative sample, 34 Journal of Interpersonal 
Violence 1, 11-12 (2016); Heather M. Karjane et al., Campus Sexual 
Assault: How America's Institutions of Higher Education Respond 62-
94, Final Report, NIJ Grant # 1999-WA-VX-0008 (Education Development 
Center, Inc. 2002); Angela F. Amar et al., Administrators' 
perceptions of college campus protocols, response, and student 
prevention efforts for sexual assault, 29 Violence & Victims 579 
(2014).
---------------------------------------------------------------------------

    Changes: None.

Other

    Comments: One commenter contended that the proposed regulations 
would reduce the number of sexual harassment and sexual assault 
investigations and, thus, would enable more sexual assaulters to pass 
background checks and become employed in Federal agencies. The 
commenter asserted that, pursuant to Executive Order 12866, to make a 
reliable estimate of the potential costs to Federal agencies, the 
Department would need to conduct a review of the U.S. Office of 
Personnel Management background investigations to determine how many 
allegations of incidences of sexual harassment and assault were 
discovered through contact with record providers at IHEs and LEAs, and, 
of those, determine how many would not have been required to be 
investigated under the proposed regulations. The commenter argued that 
hiring individuals with a history of sexual assault would be dangerous 
for Federal workers as well as the public, and criminology literature 
shows that college-student rapists commonly repeat their offenses 
against more victims over time.
    Discussion: We decline to conduct the analysis suggested by the 
commenter. We are uncertain that such an analysis could be effectively 
and efficiently conducted. Even if it could, we are uncertain of its 
value in completing our analysis. It is unclear how the commenter would 
expect us to incorporate the results of this review into our estimates. 
Moreover, the definition of ``sexual harassment'' in Sec.  106.30 of 
these final regulations includes sexual assault as defined in the Clery 
Act, and these final regulations require recipients to respond to 
allegations of sexual assault pursuant to Sec.  106.44(a).
    Changes: None.
    Comments: One institution suggested that the Department consider 
creating a lighter set of procedural requirements to lessen the burden 
on small schools by allowing schools to apply less strict requirements, 
if the school has a student body with fewer than 3,000 students and 
formally investigates fewer than ten Title IX complaints in a year.
    Discussion: We appreciate the suggestion but decline to set 
different standards for small entities. We believe that students at all 
schools are entitled to reliable determinations regarding 
responsibility under Title IX and that such determinations should be 
made in a manner that is consistent with constitutional due process and 
fundamental fairness. We do not believe that requiring a fair, reliable 
grievance process for students at small entities creates an unnecessary 
burden for small schools.
    Changes: None.
    Comments: One commenter asserted that the proposed regulations 
should not be exempt from Executive Order 13771, as the cost savings 
are inaccurate and exaggerated. Therefore, the commenter suggested that 
the Department should identify two deregulatory actions for each 
additional regulation added herein, keeping in mind that a review of 
the plain language of the requirements reveals nearly 50 new regulatory 
obligations.
    Discussion: As a result of revisions to the proposed regulations 
and other changes, the Department has revised its

[[Page 30557]]

analysis and has determined that these final regulations are 
economically significant under Executive Order 12866 and impose net 
costs under Executive Order 13771. In accordance with Executive Order 
13771, the Department will identify two deregulatory actions.
    Changes: The Department has revised its analysis and has determined 
that these final regulations are economically significant and impose 
net costs.
    Comments: One commenter asserted that the RIA failed to clarify 
that each of the LEA recipient organizations covered by Title IX 
include many individual public schools and that each school should have 
a Title IX Coordinator to meet the demands of the proposed regulations. 
The commenter expressed concern that hiring a Title IX Coordinator for 
each school in an LEA would be cost prohibitive. One commenter stated 
that LEAs should also have Title IX Coordinators, and they should have 
responsibility for helping to train and assist school-level Title IX 
Coordinators. The commenter asserted the fact that the RIA provided no 
numbers of schools in LEAs is confusing.
    Discussion: We agree that hiring a new staff member to serve as a 
Title IX Coordinator for each school in the country would generate 
extremely large expenses above and beyond those estimated in the 
proposed or final regulations. The final regulations, however, do not 
require such action. The final regulations do not require that a Title 
IX Coordinator be a newly hired individual, only that a recipient 
designate and authorize at least one employee to serve as the Title IX 
Coordinator.\1951\ We do not believe it is likely that recipients will 
opt to comply with this requirement in the final regulations by hiring 
an additional staff member whose sole role is to serve as the Title IX 
Coordinator, given that 34 CFR 106.8 already requires the designation 
of a responsible employee. Additionally, individual elementary and 
secondary schools are generally not recipients as defined in the final 
regulations pursuant to Sec.  106.30; they are operational units of the 
recipient entity, which is the local education agency. These final 
regulations do not require each operating component of each recipient 
to independently designate and authorize a Title IX Coordinator. 
Instead, the LEA is the recipient and would therefore be responsible 
for designating and authorizing an employee to serve as the Title IX 
Coordinator.
---------------------------------------------------------------------------

    \1951\ Section 106.8(a).
---------------------------------------------------------------------------

    Changes: None.
    Comments: Several commenters asserted that the RIA's estimate that 
the Title IX Coordinator can review and revise their regulations, in an 
average time of eight hours, is not tenable because changes to policy 
and procedures at institutions of higher education require broad 
consultation and participation of stakeholders across the institution, 
including but not limited to students, faculty, student affairs staff, 
academic affairs staff, human resources professionals, senior staff 
members, and even trustees. Multiple commenters stated that policy 
changes demand significant time and prescribed processes for approval, 
adoption, and ratification at the institutional and system level, 
resulting in the need for substantial human and financial resources to 
make those changes. One commenter estimated that, at the commenter's 
institution, changing their policies and procedures would take about 
two to six months, because changing a policy means involving a board of 
trustees, the president, a direct supervisor, faculty governance, and 
receiving student feedback.
    Discussion: We recognize that the process for drafting and 
approving new policies and procedures can vary widely across 
recipients. We recognize that the estimate of two to six months 
provided by the commenter encompasses the overall process and does not 
represent two to six months of full-time, active work. Therefore, we 
have revised our estimates of the average amount of time needed by 
recipients to revise their grievance procedures and have added 
additional time for administrators to review and approve the final 
policies and procedures. At the LEA level, we now assume this process 
will take six hours from the Title IX Coordinator and 24 hours from an 
attorney. We also assume two hours from an administrator to review and 
approve the policies. At the IHE level, we assume this process will 
take 12 hours from the Title IX Coordinator and 48 hours from an 
attorney. We have also added four hours for an administrator to review 
and approve the policies. For other entities, we assume the process 
will take four hours for a Title IX Coordinator, 16 hours from an 
attorney, and two hours from an administrator.
    Changes: We have revised our estimates of the amount of time 
necessary for recipients to revise their policies and grievance 
procedures and added time for review and approval of the policies and 
procedures by administrators.
    Comments: Several commenters asserted that the proposed regulations 
represent a dramatic increase in the cost of administering Title IX, 
since most Title IX Coordinators at small institutions are smaller 
roles, often comprising of one of several ``hats'' a single 
administrator will wear. One commenter asserted that the proposed 
regulations would require schools to increase the amount of time spent 
on each investigation, despite a reduction in formal investigations. 
Several commenters asserted that under the proposed regulations, many 
small institutions would be required to employ a dedicated Title IX 
Coordinator, a separate investigator, and a separate decision-maker, 
all of whom will need mandatory Title IX training. Additionally, 
commenters stated that the school will need to provide a mediator to 
facilitate the informal, mediated resolution, and hearing advisors to 
both parties if they do not provide one for themselves. According to 
comments, under this rubric, small institutions would be required to 
retain up to six individuals to handle a small number of formal 
investigations. One commenter stated that, according to a 2018 study, 
``most Title IX Coordinators were in part-time positions with less than 
three years of experience.'' \1952\
---------------------------------------------------------------------------

    \1952\ Jacquelyn D. Wiersma-Mosley & James DiLoreto, The Role of 
Title IX Coordinators on College and University Campuses, 8 Behav. 
Sci. 4 (2018), https://www.mdpi.com/2076-328X/8/4/38/htm (click on 
``Full-Text PDF'') (page references herein are to this PDF version).
---------------------------------------------------------------------------

    Discussion: We have considered the overall impact of these final 
regulations and, as discussed herein, we believe that the average 
recipient will see a net decrease in burden under these final 
regulations and that any increase in time spent by recipients on any 
individual investigation will be more than offset by the fewer number 
of investigations. Particularly for smaller entities, we do not believe 
that the workload for a Title IX Coordinator would necessitate the 
hiring of a dedicated staff member. While recipients may choose to hire 
a dedicated staff member as the Title IX Coordinator, we do not believe 
that in most instances, such an approach would be warranted solely as a 
result of these final regulations. For example, although the 
investigator may not be the same person as the decision-maker under 
Sec.  106.45(b)(7)(i), these final regulations do not preclude the 
Title IX Coordinator from also serving as the recipient's investigator 
as long as the Title IX Coordinator does not have a conflict of 
interest or bias for or against complainants or respondents generally 
or an individual complainant or respondent under Sec.  
106.45(b)(1)(iii). The same holds true for the other positions

[[Page 30558]]

described by the commenters. These final regulations do not require a 
recipient to provide an informal resolution process pursuant to Sec.  
106.45(b)(9) and do not preclude the Title IX Coordinator from serving 
as the person designated by a recipient to facilitate an informal 
resolution process.
    The Department acknowledges that many recipients will designate a 
person other than the Title IX Coordinator to facilitate an informal 
resolution process and that Sec.  106.45(b)(1)(iii) requires that a 
recipient to train any person designated by the recipient to facilitate 
an informal resolution process. Accordingly, the Department adjusts its 
cost estimates to include the training of the person designated by the 
recipient to facilitate an informal resolution process and other costs 
associated with an informal resolution process.
    Changes: The Department adjusts its cost estimates to include the 
training of the person designated by the recipient to facilitate an 
informal resolution process and other costs associated with an informal 
resolution process.

Section 106.44(a) Supportive Measures

    Comments: Multiple commenters asserted that coordinating supportive 
measures for complainants, while also accommodating the respondent due 
to the presumption of innocence, will be time-consuming and costly for 
schools. One commenter asserted that, if the respondent is found 
responsible and suspended or expelled, the conflict is removed, which 
removes the need, and cost, for staff to coordinate additional 
supportive measures for complainants. The commenter expressed concern 
that the proposed regulations would require schools to divert 
additional resources towards supportive measures, including no-contact 
orders, scheduling checks to ensure students will not cross paths, 
working with the Registrar's Office and the complainant to switch 
classes, and making other academic accommodations for multiple 
semesters, for perhaps multiple years. One commenter reported that 
providing supportive measures to a student takes one to two hours per 
semester for each student, for an active caseload of 30 to 40 students 
per year. At most, the staff member spends two full working weeks at 
the beginning of each semester coordinating supportive measures by 
making calls to set up accommodations and checking for potential 
conflicts. The commenter projects the tangible financial costs of this 
work on supportive measures to be about six weeks of the commenter's 
yearly salary.
    Numerous commenters noted that the RIA failed to estimate the costs 
of providing additional supportive measures, despite the NPRM 
acknowledging that the proposed rules encouraged recipients to direct 
complainants towards services that qualify as supportive measures. 
These commenters also asserted that increasing campus escort services 
and other security services will require additional staff hires and 
working hours. One commenter argued that the NPRM's assumption that 
counseling services are already largely offered for free to students is 
not accurate, as many students are still responsible for co-pays for 
mental health services and not all students have health insurance. The 
commenter cited a news article which reported that, as of 2016, 8.7 
percent of all students or 1.7 million individuals remained uninsured.
    Discussion: We disagree with commenters that we failed to account 
for supportive measures in the NPRM. We discussed at great length the 
complexities of accurately capturing the full range of costs associated 
with the proposed requirement, solicited specific feedback from the 
general public, and estimated time burdens for several staff.\1953\ We 
appreciate the commenter who asserted that the provision of supportive 
measures takes approximately one to two hours per semester per student 
given that our initial estimates assumed three hours per year per 
student. Further, we appreciate that the commenter provided a potential 
upper bound for our estimates--two working days per semester for a 
caseload of 30 students or approximately two hours per student per year 
at the beginning of the semester. We recognize that Title IX 
Coordinators, coordinating the provision of supportive measures for 
larger numbers of students, will have greater time burdens than those 
serving fewer students and, therefore, our estimates are intended to 
capture the average burden across all students and recipients. We are 
unclear on the specific concern raised by the commenter regarding the 
provision of supportive measures after a respondent is removed from 
campus, but we note that our assumptions regarding the provision of 
supportive measures is not related to the outcome of the grievance 
process. Regarding the costs of the supportive measures themselves, we 
note that we did not receive estimates from the public for us to 
consider. We note that a large number of supportive measures likely to 
be offered by recipients such as changing class assignments or allowing 
a complainant to have more time to complete an assignment or to take a 
test would have little to no cost for the recipient. Other supportive 
measures, which may be offered less frequently (for example, providing 
campus security escorts), would necessarily have much higher average 
costs.
---------------------------------------------------------------------------

    \1953\ See 83 FR 61487.
---------------------------------------------------------------------------

    Without information from the public on an appropriate cost, we have 
opted, in these final estimates, to include an average cost of $250 per 
provision of supportive measures to reflect the cost to recipients to 
provide the services. We recognize that, in many instances, this will 
represent an overestimate of the actual costs borne by recipients and 
that, in a smaller number of instances, it will represent an 
underestimate. To provide greater clarity to the public regarding the 
impact of this assumption on our final cost estimates, we calculated 
three alternative models, in addition to the mainline estimate, to 
assess the sensitivity of our analysis to this assumption.

                         Table VI--Sensitivity Analysis of Costs of Supportive Measures
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Estimated cost of supportive measures..................               $100               $250              $1000
Estimated total cost of final regulations..............         ($708,607)        $82,953,995       $501,267,005
----------------------------------------------------------------------------------------------------------------


[[Page 30559]]

    Changes: The Department has included a cost of $250 for supportive 
measures.

Section 106.45(b)(1)(iii) Title IX Coordinators, Investigators, and 
Decision-Makers Must Be Properly Trained

    Comments: Many commenters raised the issue that ending the single 
investigator model would result in burdensome compliance costs on 
schools. Commenters emphasized that the NPRM would require schools to 
hire and train multiple individuals to fill different roles, thus 
increasing compliance costs. Commenters argued that this would be 
especially burdensome for smaller community colleges and rural schools 
with fewer resources and available staff. The NPRM would potentially 
require recipients to hire and train six people, including a Title IX 
Coordinator, an investigator, a decision-maker, two party advisors, and 
an appeals decision-maker.
    Commenters noted that schools are not courts of law, and yet 
training costs would be significant under the NPRM, such as legal 
training for decision-makers on conducting quasi-judicial proceedings, 
ruling on objections, and managing attorneys. Schools would have to 
meet these costs even if they rarely have Title IX complaints and 
investigations. Staff at many schools necessarily wear multiple hats 
and perform multiple functions, and conducting simultaneous Title IX 
investigations could be impossible under the proposed regulations. 
Further, commenters argued that it is already challenging for 
recipients to find adequate talent and hiring staff with sufficient 
expertise in these roles. These commenters asserted the increased 
litigation risk as a result of the proposed regulations would 
discourage people from serving in these roles. One commenter suggested 
the NPRM would likely require recipients to spend about $400,000 on 
salary to manage Title IX cases, which undermines the Department's 
contention that the proposed regulations would save recipients money. 
One commenter asserted that the compliance burden is especially heavy 
given the uncertain future funding of IHEs and skepticism of higher 
education at the State level. Commenters argued that the Department 
should not impose regulations that require additional staffing and 
resources without providing the necessary funding, and many 
institutions may have no choice but to pass along these substantial 
costs to students.
    Discussion: We appreciate the commenters' concerns and agree that 
the practical effects of proposed regulations on regulated entities 
should be a primary concern when engaging in rulemaking. As explained 
throughout this preamble, we believe that the costs and burdens on 
regulated entities serve the important purpose of furthering Title IX's 
non-discrimination mandate. We note that, while it is possible that 
recipients could respond to these final regulations by hiring 
additional staff, we believe commenters overstate both the likelihood 
and the magnitude of such a response.
    Generally, we believe that the actual regulatory requirements for 
Title IX Coordinators, investigators, advisors, and decision-makers are 
flexible and the change in the necessary time commitments at the 
average recipient entity are so negligible that it is highly unlikely 
that these final regulations would result in a critical need for more 
staffing at recipient entities. Recipients are already required to 
designate a responsible employee under 34 CFR 106.8(a), which is 
essentially the same person as the Title IX Coordinator in these final 
regulations, so it is unclear that these final regulations will 
necessitate hiring an additional staff member to fulfill a role already 
fulfilled by another employee. Regarding investigators, it is unclear 
why that role could not be fulfilled by an individual already 
conducting other investigations on behalf of the recipient, and as 
previously stated, these final regulations do not preclude the Title IX 
Coordinator from also serving as the recipient's investigator. Although 
the commenters specifically noted hiring attorneys, we believe they are 
referring to the requirements, under Sec.  106.45(b)(6)(i), relating to 
providing certain parties with advisors for the purposes of conducting 
cross-examination during live hearings. We note that Sec.  
106.45(b)(6)(i) does not require those advisors to be attorneys, nor 
does it require them to have any specialized legal training. Further, 
given that recipients are only required to provide advisors in the 
event that a party does not have an advisor of choice present at the 
live hearing, we think the number of instances in which such recipients 
would provide such advisors would be so minimal that institutions would 
be highly unlikely to hire two additional, highly paid staff to fulfill 
those roles. Instead, we think that most recipients have administrative 
and other staff who may serve as an assigned advisor to a party in 
those instances where a postsecondary institution is required to hold a 
live hearing and one or both parties appear at the live hearing without 
the party's own advisor of choice. Finally, with regard to decision-
makers, the requirements in the final regulations are flexible enough 
that it is unclear why an individual already serving in a decision-
making capacity would be unable to fill such a role.
    We note that recipients may opt to provide additional training to 
Title IX Coordinators, investigators, decision-makers, and any person 
designated by a recipient to facilitate an informal resolution process 
about their roles and how to execute them effectively. As such, we have 
revised our estimates related to the training of staff.
    Regarding the alternative estimate relating to the salary burden on 
recipients to comply with these final regulations, we disagree. It 
would be inappropriate to assume such a high burden would be undertaken 
by the average recipient given the relative cost and time commitments. 
We note that, based on wage rate data from BLS, hiring a full-time 
Title IX Coordinator, an investigator, and a decision-maker would cost, 
on average, less than $325,000 per year. Not including the burden 
reductions associated with fewer Title IX investigations under these 
final regulations, we estimate the hour burden across these three roles 
to be less than 400 hours per year on average, or about six percent of 
the three full-time equivalents (FTEs).
    The Department recognizes that all recipients face a degree of 
uncertainty in their future funding, and we believe that regulatory 
actions that reduce costs for recipients, such as these final 
regulations, provide much needed flexibility for recipients in 
responding to that uncertainty and help to minimize the financial 
burden passed onto students.
    Changes: We have increased the amount of time estimated for 
training of Title IX Coordinators, investigators, decision-makers, and 
any person who facilitates an informal resolution process from 4 hours 
to 8 hours and have added additional training in each subsequent year.
    Comments: Several commenters asserted the Department's estimate 
that Title IX Coordinators, investigators, and decision-makers would 
need only 16 hours of training is unrealistic. Numerous commenters also 
noted that the RIA's assumption that institutions will only be training 
one person for each role with respect to the Title IX Coordinator, 
investigator, and decision-maker is unrealistic for large universities. 
Additionally, several commenters stated that the NPRM failed to account 
for the costs associated with retraining members of the campus 
community who are no longer

[[Page 30560]]

mandatory reporters because they would not be ``responsible employees'' 
or employees who are required to respond to allegations of sexual 
harassment under the proposed regulations.
    Several commenters asserted that the RIA significantly 
underestimated the amount of time and resources small institutions 
would need to appropriately train Title IX Coordinators, investigators, 
and adjudicators. One commenter asserted that the Department projected 
these trainings as ``one time'' but neglected to consider the 
significant ongoing cost of training new staff members as a result of 
employment attrition and ensuring that all participants in the process 
have substantive ongoing training and preparation to ensure that their 
competency reflects the most up-to-date practices.
    Discussion: We appreciate that our estimates of training may have 
been too low. As a result, we have increased our estimates of the time 
associated with training staff to eight hours for Title IX 
Coordinators, investigators, decision-makers, and any person who 
facilitates an informal resolution process. We have also added training 
for 50 percent of personnel each year to account for turnover in staff 
or training of additional staff. We do not believe it is reasonable to 
include retraining for all staff of all recipients to ensure that they 
are aware that they are not considered ``responsible employees'' or 
employees to whom notice of sexual harassment or allegations of sexual 
harassment conveys actual knowledge to the recipient under the final 
regulations. We believe that such a purpose could be just as easily 
achieved by a distribution of the recipient's policies. Further, these 
final regulations charge an LEA with actual knowledge (and thus 
obligations to respond to sexual harassment) whenever any employee has 
notice of sexual harassment, so LEAs that already train nearly all 
their employees to be ``responsible employees'' likely will not alter 
that training under these final regulations, and for IHEs, these final 
regulations leave each institution flexibility to decide whether the 
institution desires all (or nearly all, or some subset) of its 
employees to be ``mandatory reporters'' who must report notice of 
sexual harassment to the Title IX Coordinator. Accordingly, not all 
IHEs will modify their current policies regarding which employees are 
considered ``responsible employees.''
    Changes: We have increased the duration and frequency of training 
activities for Title IX Coordinators, investigators, decision-makers, 
and any person designated by a recipient to facilitate an informal 
resolution process. We now assume eight hours of training for each 
staff member with additional training each subsequent year.
    Comments: One commenter asserted that even if K-12 school districts 
could hire an adequate number of individuals to train, the cost of 
training and the ability to spare the time for that training is 
burdensome.
    Another commenter stated that the RIA failed to acknowledge the 
costs that K-12 schools will need to spend to train their Title IX 
Coordinators. The same commenter also stated that the calculations do 
not appear to consider the amount of time employees will have to spend 
scheduling sessions to make information available, going back and forth 
about follow-up questions, additional travel time, etc. The commenter 
contended that these calculations do not appear to consider the overall 
burden this activity will place on already over-extended school 
personnel.
    Discussion: As noted elsewhere, we have revised our estimates to 
include additional time for training Title IX Coordinators, 
investigators, decision-makers, and any person designated by a 
recipient to facilitate an informal resolution process. We are unclear 
why an LEA would be required under these final regulations to hire 
multiple staff members to conduct training. Further, it appears that 
the commenter is assuming the training of multiple Title IX 
Coordinators within LEAs. While recipients may identify individuals at 
each school to support Title IX compliance efforts, they are not 
required to do so under the final regulations, which require each 
recipient to designate and authorize ``at least one'' employee to serve 
as a Title IX Coordinator pursuant to Sec.  106.8(a). Section 106.30 
defines an elementary and secondary school as an LEA, a preschool, or a 
private elementary or secondary school. Furthermore, the final 
regulations do not require training to be conducted in-person such that 
travel to and from training sessions is required; the final regulations 
also do not preclude training of Title IX Coordinators to be conducted 
online or virtually. To the extent that LEAs opted to provide training 
for school-level staff, we believe it is most likely that such 
trainings would be included in or replace existing training offered by 
the LEA and therefore the effects associated with the final regulations 
would be de minimis.
    Changes: We have revised our estimates to include additional time 
for training Title IX Coordinators, investigators, decision-makers, and 
any person designated by a recipient to facilitate an informal 
resolution process.

Section 106.45(b)(5) Investigation of Formal Complaints

    Comments: Some commenters expressed concern about the financial and 
administrative cost the proposed regulations will impose on recipients. 
Commenters contend that recipients are better equipped to conduct 
grievance procedures without outside advisors, and that allowing 
parties to have advisors will subject recipients to more litigation. 
Other commenters argued that training advisors, implementing 
evidentiary rules, and conducting campus procedures like a courtroom 
would be too costly for many recipients, especially K-12 institutions.
    Discussion: We appreciate commenters' concerns, but we do not 
believe that allowing parties to have advisors will necessarily subject 
recipients to a greater litigation risk. We believe the final 
regulations clearly establish the expectations for recipients in a 
manner that is consistent with constitutional due process for 
misconduct proceedings, and, in so doing, may actually reduce undue 
litigation risk. We also note that we have, to the maximum extent 
possible, calculated the likely costs of complying with these final 
regulations and believe that while many recipients will experience net 
costs, and the final regulations overall impose estimated net costs, 
the benefits of predictably, transparently protecting every student's 
civil rights under Title IX in a manner consistent with constitutional 
rights, outweigh the costs of compliance.
    Changes: None.
    Comments: Multiple commenters also noted that it would be expensive 
for universities to provide technology for parties to review the 
investigative report and other evidence that does not allow the parties 
to print or otherwise share the evidence with others. Several 
commenters asserted that, under the proposed regulations, small schools 
will have to bear the significant costs of electronic file-sharing 
platforms for making evidence available to parties and advisors. 
According to comments, services that provide these types of systems can 
add thousands of extra dollars to administrative systems on an annual 
basis.
    Discussion: We agree that the proposed regulations may have proved 
confusing with respect to the requirement for recipients to provide the 
evidence to the parties in an electronic format for inspection and 
review. The proposed regulations

[[Page 30561]]

allowed but did not require recipients to use a file-sharing platform, 
and the Department omits the reference to the file-sharing platform in 
these final regulations to alleviate any confusion. The Department 
revised Sec.  106.45(b)(5)(vi) to state that recipients may provide the 
evidence to the parties in an electronic format or a hard copy.
    Changes: We have revised Sec.  106.45(b)(5)(vi) to state that 
recipients may provide the evidence to the parties in an electronic 
format or a hard copy for inspection and review.
    Comments: One commenter asserted the requirement in the proposed 
regulations that the Title IX Coordinator must give the parties ten 
days to inspect and review evidence in Sec.  106.45(b)(5)(vi), and 
another ten days to respond to the investigative report in Sec.  
106.45(b)(5)(vii), would result in a significant drain on resources and 
would draw out the processing time of every investigation. The 
commenter claimed that these two ten-day requirements would especially 
increase the administrative burden on small institutions.
    Discussion: The Department is not convinced by the commenter's 
argument that these two ten-day periods would result in any delays in 
processing a formal complaint. These two ten-day periods allow both 
parties to inspect and review the evidence that may support or not 
support the allegations and also to review and respond to the 
investigative report. Each recipient may choose whether to give the 
parties ten calendar days or ten business days, and recipients retain 
discretion in this regard. It is not clear from the comment why 
providing parties adequate time to inspect and review the evidence and 
to review and respond to the investigation report would create a unique 
administrative burden for small entities.
    Changes: None.

Section 106.45(b)(6) Hearings

    Comments: Several commenters noted that the NPRM's requirement for 
live hearings with cross-examination would pose a significant cost to 
respondents who must hire an advisor competent at cross-examination, 
which will most likely be an attorney.
    Discussion: We believe it is important to note that neither 
complainants nor respondents are required to hire advisors, and the 
final regulations expressly state that a party's advisor of choice may 
be, but need not be, an attorney. If a party does not have an advisor 
to conduct cross-examination on behalf of that party, it is incumbent 
upon a postsecondary institution to provide an advisor for that party 
at a live hearing under Sec.  106.45(b)(6)(i) for the limited purpose 
of conducting cross-examination on behalf of the party who does not 
bring an advisor of choice to the hearing. Section 106.45(b)(6)(i) 
expressly states that such an advisor provided by the recipient does 
not need to be an attorney. There are no requirements that advisors 
(whether a party's advisor of choice or a recipient-provided advisor at 
a live hearing) have any specialized training. People other than 
attorneys may conduct cross-examination, and not all attorneys 
regularly conduct cross-examination. For example, attorneys who special 
in transactional matters are usually not as skilled in conducting 
cross-examination. Regardless of these factors, our initial estimates 
included costs associated with an attorney to fulfill these advisor 
roles to provide an upper-bound of the likely costs of the live 
hearings. We note that our model makes no distinction between whether 
advisors are secured by complainants, respondents, or recipients--such 
a factor would not affect our estimate.
    Changes: None.
    Comments: Many commenters asserted that they would need to spend 
money on training staff to adjudicate at grievance proceedings or on 
hiring attorneys to adjudicate. One commenter stated that even though 
the NPRM notes the use of hearing boards has become a relatively common 
practice at the IHE level, this does not mean that all IHEs are using 
staff to handle Title IX hearings. The commenter stated that due to the 
legal liability and complexity of these cases, an increasing number of 
IHEs have hired outside hearing officers to handle their hearings and 
appeals. For the commenter's university, the expense per case runs from 
$5,000 to $20,000. The commenter acknowledges, however, that many IHEs 
already hire outside hearing officers, and predicts the practice will 
continue at universities and colleges around the country. Additionally, 
the same commenter predicted that costs for Title IX hearings have and 
will continue to increase regardless of whether these specific 
regulations become effective.
    Another commenter disputed the Department's estimate that with 
respect to 60 percent of IHEs, the Title IX Coordinator also serves as 
the decision-maker. The commenter argued that only allowing costs for 
an additional adjudicator in 40 percent of hearings is arbitrary and in 
direct contradiction to the proposed regulation, at Sec.  
106.45(b)(7)(i), which precludes the decision-maker from being the same 
person as the Title IX Coordinator or the investigator.
    Discussion: We believe it is important to first clarify the 
Department's estimates and discussion in the NPRM. We note that the 
commenter may have misunderstood the Department's discussion of the 
individual serving as the decision-maker in the NPRM. In the NPRM, we 
noted that ``we also assume that the Title IX Coordinator serves as the 
decision-maker in 60 percent of IHEs.'' \1954\ That statement was 
intended to address our assumption regarding the baseline, and our 
underlying estimates and calculations assumed that Title IX 
Coordinators would no longer serve in such capacities. As noted in the 
NPRM, the assumption that Title IX Coordinators currently serve as 
decision-makers in 60 percent of IHEs was based on research cited in 
the notice.\1955\ We also note that our estimates, which assume that 
all live hearings will be conducted with independent decision-makers 
moving forward was consistent with the proposed regulations. Further, 
whether or not recipients currently use decision-makers who are 
employees, or contract out to use independent or professional decision-
makers, recipients retain these options under the final regulations. 
Finally, regarding the specific individual conducting the live hearing, 
we assumed that such an individual would be an adjudicator employed in 
the education sector. We believe that this assumption aligns with the 
commenter's recommendation.
---------------------------------------------------------------------------

    \1954\ 83 FR 61488.
    \1955\ Id.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Several commenters asserted that many schools would need 
to spend significant funds on either training existing faculty and 
staff to perform cross-examinations or on hiring attorneys to perform 
cross-examinations. Many commenters stated that due to the nature of 
the proposed hearing and the legal acumen that would be required of 
advisors to effectively represent their party, that advisor would 
likely be an attorney. Commenters noted that providing one or more 
attorneys with the requisite knowledge will come at considerable 
expense to the recipient. At the same time, multiple commenters warned 
that the RIA's estimate for hourly costs of an attorney are too low.
    Discussion: We appreciate commenters' concerns regarding the 
requirements in Sec.  106.45(b)(6)(i) that if a party does not have an 
advisor present at the live hearing, the recipient must provide without 
fee or charge to that party, an advisor of the recipient's choice, who 
may be, but is not required

[[Page 30562]]

to be, an attorney, to conduct cross-examination on behalf of that 
party. Such advisors need not be provided with specialized training or 
be attorneys because the essential function of such an advisor provided 
by the recipient is not to ``represent'' a party but rather to relay 
the party's cross-examination questions that the party wishes to have 
asked of other parties or witnesses so that parties never personally 
question or confront each other during a live hearing.
    While it would be within the discretion of recipients to hire 
attorneys to fulfill these roles, we believe it is more likely that 
recipients will opt to assign another member of its faculty or staff to 
conduct the cross-examination. In the NPRM, we estimated the costs of 
the proposed regulations using attorneys to fulfill these roles in 
order to provide a conservative estimate of the costs of each of these 
hearings. Regarding the hourly cost of attorneys used in the NPRM, 
those figures were based on the median hourly wage for attorneys in the 
education sector as reported by the BLS. BLS wage data is widely 
considered to be reliable estimates for use in such analyses, and we do 
not believe it would be appropriate to single out a specific personnel 
category and use a different, and less rigorous, source.
    Changes: None.
    Comments: Several commenters asserted that it would be financially 
burdensome to provide audio-visual technology for the parties to listen 
and watch the live hearing in a different room while it is not their 
turn to be cross-examined. One commenter stated that the proposed 
regulations fail to account for the costs of this additional 
technology, including not just the purchase of software, but also the 
costs of launching and maintaining the technology. One commenter 
asserted that recipients would incur additional costs to create or 
renovate building space necessary to hold the live hearings and cross-
examinations. Numerous commenters also asserted that the technology 
required to allow cross-examinations in other rooms would be costly for 
small institutions, as these smaller schools do not have dedicated 
space or current set-ups with the technology needed to grant a request 
for parties to be in separate rooms at live hearings. Additionally, 
several commenters asserted that the NPRM failed to account for the 
additional costs of money, time, and training that recipients would pay 
to implement a new system of documentation in its investigations and 
adjudications. One commenter asserted that the Department never 
estimated the costs for transcription and translation services that may 
be needed at the live hearings.
    Discussion: We understand that very few recipients, as part of 
their regular operations, maintain separate hearing rooms equipped with 
closed-circuit cameras or other live audio and visual conferencing 
technology. However, the final regulations do not require recipients to 
construct such spaces or equip them with expensive technology. The 
final regulations create no requirements on the space in which the 
hearing is held and, therefore, we believe most recipients will be able 
to identify a suitable space within their existing facilities such as 
an office, classroom, or conference room. Indeed, we believe that it 
would be the most efficient use of resources for recipients to use 
their limited available funding for creating new spaces to conduct 
these live hearings. Section 106.45(b)(6)(i) of these final regulations 
requires recipients, at the request of either party, to allow for the 
live hearing, including cross-examination, to occur with the parties in 
separate rooms and with technology allowing the decision-maker and 
parties to simultaneously see and hear the party or the witness 
answering questions. We note that this could be accomplished with an 
expensive closed-circuit television or video-conferencing system and, 
to the extent that recipients already possess such technologies, they 
could use them to meet the requirements of this part. We also recognize 
that a large number of recipients do not have such technology or 
equipment readily available to them. In such instances, recipients 
would be faced with either purchasing such equipment or using existing 
equipment paired with various software solutions. We believe that very 
few recipients are likely to, as a result of the final regulations, 
invest in costly new equipment for a relatively infrequent occurrence--
that is, a recipient is unlikely to spend several thousand dollars on 
equipment and software it only intends to use one to three times per 
year. We believe it is much more likely that recipients will opt to use 
existing equipment, such as webcams, laptops, or cell phones, paired 
with free or relatively inexpensive software solutions. We note that 
there are more than a dozen free video web conferencing platforms that 
recipients could use to ensure that decision-makers and parties could 
simultaneously see and hear the party or witness who is answering 
questions. Further, the requirements for creating audio or audiovisual 
recordings or a transcript of hearings can be met at very low or no 
cost using commonly available voice memo apps or software or tape 
recorders. However, to ensure that we account for these costs where 
they may occur, we have revised our assumptions to include a cost for 
the various technology requirements associated with the final 
regulations. As discussed above, we believe that recipients are 
unlikely to incur these costs and, as such, this approach represents an 
overestimate of likely costs incurred by recipients to comply with this 
requirement.
    Changes: We have revised our estimates to include a cost of $100 
per hearing to meet the audiovisual requirements in Sec.  
106.45(b)(6)(i).
    Comments: One commenter asserted that it is unreasonable to assume 
adequate representation could occur with representation by an attorney 
for only one hour, or two hours for a non-attorney, for a hearing, 
particularly one involving a complex investigation of a sexual assault.
    Discussion: We appreciate the commenters' feedback. We agree that 
it is likely that an advisor who may be, but is not required to be, an 
attorney, may need to spend additional time with a complainant or 
respondent outside of the hearing itself for a variety of purposes. As 
such, we have increased our estimated time commitment of advisors to 
eight hours per hearing at the LEA level and 60 hours at the IHE level.
    Changes: We have increased our estimates of the time necessary on 
the part of an advisor with respect to hearings.

Section 106.45(b)(7) Determinations Regarding Responsibility

    Comments: One commenter suggested that moving from the 
preponderance of the evidence standard to the clear and convincing 
evidence standard would increase costs to recipients because of the 
resulting protests, uproar, instability on campus, and litigation risk.
    Discussion: The Department revised Sec.  106.45(b)(7)(i) of the 
final regulations such that recipients would have a clear choice 
between applying the preponderance of the evidence standard or the 
clear and convincing evidence standard to reach determinations 
regarding responsibility. Given this change, the Department cannot 
reliably predict how many recipients would choose the clear and 
convincing evidence standard, the number or degree of protests that 
would stem from such a choice, or the extent to which recipients would 
be exposed to litigation. We also presume that a recipient will 
consider all factors in

[[Page 30563]]

choosing which standard to apply, including the effects mentioned by 
the commenter. Ultimately, because the final regulations permit a 
recipient to choose the standard of evidence it wishes to use, none of 
the costs mentioned by the commenter are directly attributable to the 
final regulations.
    Changes: The Department has revised Sec.  106.45(b)(7)(i) of the 
final regulations such that recipients would have a clear choice 
between applying the preponderance of the evidence standard or the 
clear and convincing evidence standard to reach determinations 
regarding responsibility. We have removed the limitation contained in 
the NPRM that would have permitted recipients to use the preponderance 
of the evidence standard only if they used that standard for non-sexual 
misconduct that has the same maximum disciplinary sanction.
    Comments: Several commenters asserted that small institutions lack 
the human resources to comply with the prohibition of the single 
investigator model, and they expressed concern about how to afford the 
staff necessary to comply with the requirements in the proposed 
regulations. Commenters from small to mid-sized rural colleges, and 
mixed urban and rural colleges, stated that the Title IX Coordinator 
often wears multiple hats by also serving as the Human Resources 
Director, Dean of Students, or Administrative Vice President, as well 
as fulfilling other operational duties.
    Discussion: We recognize that these final regulations may require a 
number of recipients to alter their current policies and practices. We 
note that although the investigator may not be the same person as the 
decision-maker under Sec.  106.45(b)(7)(i), these final regulations do 
not preclude the Title IX Coordinator from also serving as the 
recipient's investigator as long as the Title IX Coordinator does not 
have a conflict of interest or bias for or against complainants or 
respondents generally or an individual complainant or respondent under 
Sec.  106.45(b)(1)(iii). As noted in the ``Regulatory Flexibility Act'' 
section of this notice, we do not believe that the costs associated 
with complying with these final regulations will unnecessarily burden 
small entities.
    Changes: None.

Section 106.45(b)(8) Appeals

    Comments: Commenters argued that Sec.  106.45(b)(8) of the final 
regulations will be costly for recipients to implement. Commenters also 
requested that the Department modify the proposed regulations to allow 
the same person who made the initial determination of responsibility to 
also make the appeal determination because otherwise the cost may be 
too great, especially for smaller and rural K-12 school districts and 
community colleges.
    Discussion: We decline the commenters' suggested change. We believe 
it is important for the decision-maker reviewing appeals to be a 
different person than the person who made the initial decision, in 
part, because the decision-maker on appeal is asked to review the 
determination reached by the original decision-maker (including based 
on any claim of bias or conflict of interest on the part of the 
decision-maker). However, we note that our initial estimates only 
assumed training for a single decision-maker and did not include 
training for the additional individual who would be necessary for 
reviewing appeals because the proposed regulations, unlike the final 
regulations. Section 106.45(b)(8) of these final regulations requires 
recipients to offer appeals, equally to both parties, on three 
specified bases, and to ensure that the decision-maker on appeal is not 
the same person who served as the Title IX Coordinator, investigator, 
or decision-maker making the original determination. We have therefore 
updated our estimates to include a second decision-maker for appeals. 
Our initial burden estimates related to the appeals process do not need 
to be updated to account for this change.
    Changes: We have revised our estimates to account for the separate 
decision-maker necessary to review appeals.

Section 106.45(b)(9) Informal Resolution

    Comments: Several commenters asserted that the RIA's estimate that 
ten percent of all formal complaints at the LEA and IHE level would be 
resolved through informal resolution is too low. One commenter 
recommended that the Department utilize the 34 percent figure reported 
by Wiersma-Mosley and DiLoreto.\1956\
---------------------------------------------------------------------------

    \1956\ Jacquelyn D. Wiersma-Mosley & James DiLoreto, The Role of 
Title IX Coordinators on College and University Campuses, 8 Behav. 
Sci. 4, 6 (2018), https://www.mdpi.com/2076-328X/8/4/38/htm (click 
on ``Full-Text PDF'') (page references herein are to this PDF 
version).
---------------------------------------------------------------------------

    Discussion: The Department is persuaded by these comments that more 
than ten percent of formal complaints may be resolved through informal 
resolution and adjusts this assumption upward in the final regulations. 
The 34 percent figure reported by Wiersma-Mosley and DiLoreto applies 
only to postsecondary institutions and not elementary and secondary 
schools, and, thus, is not the most reliable figure.\1957\ 
Additionally, these final regulations do not require recipients to 
provide an informal resolution process and expressly prohibit 
recipients from providing an informal resolution process to resolve 
allegations that an employee sexually harassed a student pursuant to 
Sec.  106.45(b)(9)(iii). We do not think it is appropriate to assume 
that 34 percent of all formal complaints will be resolved through 
informal resolution when the Department has precluded at least some 
formal complaints from being resolved through the informal resolution 
process. Accordingly, we adjust the assumption in the NPRM that ten 
percent of all formal complaints will be resolved through informal 
resolution and assume that 25 percent of all formal complaints will be 
resolved through informal resolution.\1958\
---------------------------------------------------------------------------

    \1957\ See the discussion in the ``Informal Resolution'' 
subsection of the ``Section 106.45 Recipient's Response to Formal 
Complaints'' section. There are different views about informal 
resolution, and the Department does not wish to overestimate the 
number of recipients that may choose to offer an informal resolution 
process or assume the scope of any informal resolution process.
    \1958\ An assumption of 25 percent will provide a more 
conservative estimate with respect to the net cost savings that 
recipients may realize as a result of the informal resolution 
process. The Department does not wish to overestimate the net cost 
savings as a result of the informal resolution process.
---------------------------------------------------------------------------

    Changes: The Department assumes that 25 percent of all formal 
complaints will be resolved through informal resolution.

Executive Orders 12866, 13563, and 13771

Regulatory Impact Analysis

    Under Executive Order 12866, the Office of Management and Budget 
(OMB) must determine whether this regulatory action is ``significant'' 
and, therefore, subject to the requirements of the Executive Order and 
subject to review by OMB. Section 3(f) of Executive Order 12866 defines 
a ``significant regulatory action'' as an action likely to result in a 
rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);

[[Page 30564]]

    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive Order.
    This final regulatory action is an economically significant 
regulatory action subject to review by OMB under section 3(f) of 
Executive Order 12866.
    Under Executive Order 13771, for each new regulation that the 
Department proposes for notice and comment or otherwise promulgates 
that is a significant regulatory action under Executive Order 12866 and 
that imposes total costs greater than zero, it must identify two 
deregulatory actions. For FY 2020, any new incremental costs associated 
with a new regulation must be fully offset by the elimination of 
existing costs through deregulatory actions. OMB has determined that 
the final regulations are a significant regulatory action under 
Executive 13771.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these final regulations only on a reasoned 
determination that their benefits justify their costs. In choosing 
among alternative regulatory approaches, we selected those approaches 
that maximize net benefits. The information in this RIA measures the 
effect of these policy decisions on stakeholders and the Federal 
government as required by and in accordance with Executive Orders 12866 
and 13563.\1959\ Based on the analysis that follows, the Department 
believes that these regulations are consistent with the principles in 
Executive Orders 12866 and 13563.
---------------------------------------------------------------------------

    \1959\ Although the Department may designate certain classes of 
scientific, financial, and statistical information as influential 
under its Guidelines, the Department does not designate the 
information in the Regulatory Impact Analysis in these final 
regulations as influential and provides this information to comply 
with Executive Orders 12866 and 13563. U.S. Dep't. of Education, 
Information Quality Guidelines (Oct. 17, 2005), https://www2.ed.gov/policy/gen/guid/iq/iqg.html.
---------------------------------------------------------------------------

    We also have determined that this regulatory action does not unduly 
interfere with State, local, or tribal governments in the exercise of 
their governmental functions.
    In this RIA we discuss the need for the regulatory action, the 
potential costs and benefits, assumptions, limitations, and data 
sources. Although the majority of costs associated with information 
collection are discussed within this RIA, elsewhere in this notice 
under the Paperwork Reduction Act of 1965, we also identify and further 
explain burdens specifically associated with information collection 
requirements.
    Consistent with the statement in Executive Order 13563 that the 
Nation's regulatory system must ``measure, and seek to improve, the 
actual results of regulatory requirements,'' we also intend to evaluate 
the economic impact of these final regulations on a voluntary, post-
implementation basis. As additional data becomes available, we plan to 
analyze it and take appropriate steps, including employing the analysis 
in any future rulemaking.

Need for Regulatory Action

    Based on its extensive review of the critical issues addressed in 
this rulemaking, the Department has determined that current regulations 
and guidance did not provide sufficiently clear standards for how 
recipients must respond to allegations of sexual harassment, including 
defining what conduct constitutes sexual harassment. To address this 
concern, we promulgate these final regulations to recognize and address 
sexual harassment as a form of sex discrimination under Title IX for 
the purpose of ensuring that recipients understand their legal 
obligations, including what conduct is actionable as harassment under 
Title IX, when and how a recipient must respond to allegations of 
sexual harassment, and particular requirements that such a response 
must meet in order to ensure that the recipient is protecting the 
rights of all persons, including students, to be free from sex 
discrimination in the recipient's education program or activity.
    In addition to addressing sexual harassment, the Department has 
concluded it is also necessary to amend some of the existing 
regulations that apply to all sex discrimination and not just sexual 
harassment under Title IX. We amend existing regulations by stating 
that Title IX does not require recipients to infringe upon existing 
constitutional protections, that the Assistant Secretary for Civil 
Rights may require a recipient to take remedial action to remedy a 
violation of 34 CFR part 106, consistent with 20 U.S.C. 1682, and that 
recipients that qualify for a religious exemption under Title IX need 
not submit a letter to the Department as a prerequisite to claiming the 
exemption. Additionally, we amend existing regulations regarding the 
designation of a Title IX Coordinator (referred to as a responsible 
employee in existing regulation 34 CFR 106.8(a)), dissemination of the 
recipient's notice that it does not discriminate on the basis of sex, 
and adoption of grievance procedures to address sex discrimination and 
a grievance process to address sexual harassment, including how to 
report or file a complaint of sex discrimination, how to report or file 
a formal complaint of sexual harassment, and how the recipient will 
respond.

Discussion of Costs, Benefits, and Transfers

    The Department has analyzed the costs of complying with the final 
regulations. Due to uncertainty about the current capacity of 
recipients, lack of high-quality comprehensive data about the status 
quo, and the specific choices that recipients will make regarding how 
to comply with these final regulations, the Department cannot

[[Page 30565]]

estimate these costs with absolute precision. However, as discussed 
below, we estimate these final regulations to result in a net cost of 
between $48.6 and $62.2 million over ten years.
    The Department has reviewed the comments submitted in response to 
the NPRM and has revised some assumptions in response to the feedback 
we received. Our rationale for such revisions is described elsewhere in 
this notice. For the sake of transparency of this analysis, even in 
instances where our estimates did not change, we have provided our 
initial rationale herein.
    To accurately estimate the costs of these final regulations, the 
Department needed to establish an appropriate baseline for current 
practice. In doing so, it was necessary to know the current number of 
Title IX investigations occurring in LEAs and IHEs. In 2014, the U.S. 
Senate Subcommittee on Financial and Contracting Oversight released a 
report \1960\ which included survey data from 440 four-year IHEs 
regarding the number of investigations of sexual violence that had been 
conducted during the previous five-year period. Two of the five 
possible responses to the survey were definite numbers (0, 1), while 
the other three were ranges (2-5, 6-10, >10). Responses were also 
disaggregated by the size of the institution (large, medium, or small). 
Although the report does not clearly identify a definition of ``sexual 
violence'' provided to survey respondents, the term would appear to 
capture only a subset of the types of incidents that may result in a 
Title IX investigation. Indeed, when the Department examined public 
reports of Title IX reports and investigations at 55 IHEs nationwide, 
incidents of sexual misconduct represented, on average, 45 percent of 
investigations conducted. Further, a number of the types of incidents 
that were categorized as ``sexual misconduct'' in those reports may, or 
may not, have been categorized as ``sexual violence,'' depending on the 
survey respondent. To address the fact that the subcommittee report may 
fail to capture all incidents of sexual misconduct at responding IHEs, 
the Department first top-coded the survey data. To the extent that 
survey respondents treated the terms ``sexual misconduct'' and ``sexual 
violence'' interchangeably, this top-coding approach may result in an 
overestimate of the number of sexual misconduct investigations 
conducted at institutions. By top-coding the ranges (e.g., ``5'' for 
any respondent indicating ``2-5'') and assuming 50 investigations for 
any respondent indicating more than ten investigations, the Department 
was able to estimate the average number of sexual misconduct 
investigations conducted by four-year institutions in each size 
category. We then divided this estimate by five to arrive at an 
estimated number of investigations per year. To address the fact that 
incidents of sexual misconduct only represent a subset of all Title IX 
investigations conducted by IHEs in any given year, we then multiplied 
this result by two, assuming (consistent with our convenience sample of 
public Title IX reporting) that sexual misconduct investigations 
represented approximately 50 percent of all Title IX investigations 
conducted by institutions.
---------------------------------------------------------------------------

    \1960\ Claire McCaskill, S. Subcomm. on Financial Contracting 
Oversight--Majority Staff, Sexual Violence on Campus, 113th Cong. 
(2014).
---------------------------------------------------------------------------

    Because the report only surveyed four-year institutions, the 
Department needed to impute similar data for two-year and less-than-
two-year institutions, which represent approximately 57 percent of all 
institutions in the report. In order to do so, the Department analyzed 
sexual offenses reported under the Clery Act and combined this data 
with total enrollment information from the Integrated Postsecondary 
Education Data System (IPEDS) for all Title IV-eligible institutions 
within the United States, as these institutions must comply with the 
Clery Act. Assuming that the number of reports of sexual offenses under 
the Clery Act is positively correlated with the number of 
investigations, the Department arrived at a general rate of 
investigations per reported sexual offense at four-year IHEs by 
institutional enrollment. These rates were then applied to two-year and 
less-than-two-year institutions within the same category using the 
average number of sexual offenses reported under the Clery Act for such 
institutions to arrive at an average number of investigations per year 
by size and level of institution. These estimates were then weighted by 
the number of institutions in each category to arrive at an estimated 
average 2.36 investigations of sexual harassment per IHE per year.
    A number of commenters indicated that our initial estimate of the 
current number of investigations occurring at IHEs was too low. As 
described in this Regulatory Impact Analysis section of this notice, we 
have upwardly revised this estimate. Based on public comment, it was 
clear that our coding of the Senate subcommittee data may have been 
inadequate to fully account for the full range of investigations 
currently being undertaken by IHEs. We therefore took those data and 
used Clery data to determine a multiplier which may help us better 
transform the more limited scope of the Senate subcommittee data into 
the broader array of incidents that IHEs currently investigate. As 
noted in the NPRM and elsewhere in this notice, we recognize that there 
are weaknesses with the Clery data, such as the fact that Clery data 
may not capture all incidents of sexual harassment that occur on 
campus. However, we believe it is the best proxy for us to use in 
transforming the more direct data we have from the Senate subcommittee 
report. Clery data can provide useful information about the 
relationships between various types of incidents because Clery data is 
likely to be positively correlated with the actual underlying number of 
incidents--that is, when the underlying number of instances of sexual 
harassment increase (particularly sexual assaults, dating violence, 
domestic violence, and stalking), the number of incidents reported 
under the Clery Act will also increase. Although we requested that the 
public inform us of any better approach to estimating these baselines, 
we did not receive any quality alternatives. For all of these reasons, 
we are proceeding with using our initial estimates of the baseline 
number of investigations increased by a factor of 1.416, which accounts 
for the inclusion of dating violence, domestic violence, and stalking 
incidents. We now assume a baseline of 5.70 investigations per year per 
IHE.
    As noted in the NPRM, the Department does not have information on 
the average number of investigations of sexual harassment occurring 
each year in LEAs. As part of the Civil Rights Data Collection (CRDC), 
the Department does, however, gather information on the number of 
incidents of harassment based on sex in LEAs each year. During school 
year 2015-2016, LEAs reported an average of 3.23 of such incidents. 
Therefore, the Department assumes that LEAs, on average, currently 
conduct approximately 3.23 Title IX investigations each year.
    The Department issued guidance regarding Title IX compliance in 
2011, which resulted in recipients conducting more investigations of 
incidents of sexual harassment as the 2011 Dear Colleague Letter 
provided that ``[r]egardless of whether a harassed student, his or her 
parent, or a third party files a complaint under the school's grievance 
procedures or otherwise requests action on the student's behalf, a 
school that knows, or reasonably should know, about possible harassment 
must promptly investigate

[[Page 30566]]

to determine what occurred . . . .'' \1961\ In 2017, the Department 
rescinded that guidance and published alternative, interim guidance 
while this regulatory action was underway. The Department reaffirmed 
that the interim guidance is not legally binding on recipients. 
Wiersma-Mosley and DiLoreto \1962\ did not identify substantial 
rollback of Title IX activities among IHEs compared to Richards,\1963\ 
who found substantial changes relative to Karjane, Fisher, and 
Cullen.\1964\ Consistent with those studies, we believe it is highly 
likely that a subset of recipients have continued Title IX enforcement 
in accordance with the prior, now rescinded guidance, due to the 
uncertainty of the regulatory environment, and that it is reasonable to 
assume that some subset of recipients either never complied with the 
2011 Dear Colleague Letter or the 2014 Q&A or amended their compliance 
activities after the rescission of that guidance. We do not, however, 
know with absolute certainty how many recipients fall into each 
category, making it difficult to accurately predict the likely effects 
of this regulatory action.
---------------------------------------------------------------------------

    \1961\ 2011 Dear Colleague Letter at 4.
    \1962\ Jacquelyn D. Wiersma-Mosley & James DiLoreto, The Role of 
Title IX Coordinators on College and University Campuses, 8 Behav. 
Sci. 4 (2018), https://www.mdpi.com/2076-328X/8/4/38/htm (click on 
``Full-Text PDF'') (page references herein are to this PDF version).
    \1963\ Tara N. Richards, An updated review of institutions of 
higher education's responses to sexual assault: Results from a 
nationally representative sample, 34 Journal of Interpersonal 
Violence 1 (2016).
    \1964\ Heather M. Karjane et al., Campus Sexual Assault: How 
America's Institutions of Higher Education Respond 62-94, Final 
Report, NIJ Grant # 1999-WA-VX-0008 (Education Development Center, 
Inc. 2002), https://www.ncjrs.gov/pdffiles1/nij/grants/196676.pdf.
---------------------------------------------------------------------------

    In general, the Department assumes that recipients fall into one of 
three groups: (1) Recipients who have complied with the statutory and 
regulatory requirements and either did not comply with the 2011 Dear 
Colleague Letter or the 2014 Q&A or who reduced Title IX activities to 
the level required by statute and regulation after the rescission of 
the 2011 Dear Colleague Letter or the 2014 Q&A and will continue to do 
so; (2) recipients who continued Title IX activities at the level 
required by the 2011 Dear Colleague Letter or the 2014 Q&A but will 
amend their Title IX activities to the level required under current 
statute and the proposed regulations issued in this proceeding; and (3) 
recipients who continued Title IX activities at the level required 
under the 2011 Dear Colleague Letter or the 2014 Q&A and will continue 
to do so after final regulations are issued. In this structure, we 
believe that recipients in the second group are most likely to 
experience a net cost savings under these final regulations. We 
therefore estimate savings for this group of recipients only. We 
estimate no cost savings for recipients in the first and third groups.
    In estimating the number of recipients in each group, we assume 
that most LEAs and IHEs are generally risk averse regarding Title IX 
compliance, and so we assume that very few would have adjusted their 
enforcement efforts after the rescission of the 2011 Dear Colleague 
Letter or the 2014 Q&A or would have failed to align their activities 
with the guidance initially. Therefore, we estimate that only five 
percent of LEAs and five percent of IHEs fall into Group 1. Given the 
particularly acute financial constraints on LEAs, we assume that a vast 
majority (90 percent) will fall into Group 2--meeting all requirements 
of the proposed regulations and applicable laws, but not using limited 
resources to maintain a Title IX compliance structure beyond such 
requirements. Among IHEs, we assume that, for a large subset of 
recipients, various pressures will result in retention of the status 
quo in every manner that is permitted under the final regulations. Our 
model accounts for their decision to do so, and we only assume that 50 
percent of IHEs experience any cost savings from these final 
regulations (placing them in Group 2). Therefore, we estimate that 
Group 3 will consist of five percent of LEAs and 45 percent of IHEs. We 
did not receive public comment directly responsive to these estimates 
and have therefore maintained them in this final cost analysis.
    We have revised our baseline assumptions by adding entities other 
than LEAs and IHEs into our model. These entities are recipients of 
Federal education funding but may not operate a traditional education 
program (e.g., museums, libraries, cultural centers). We are not aware 
of the extent to which such entities are currently conducting Title IX 
investigations and therefore assume that they are conducting two such 
investigations per year with a reduction of 50 percent after these 
final regulations become effective. We should note that generally, 
these other entities are very small and have few employees and no full-
time students. We therefore think it unlikely they would have a 
baseline number of investigations much higher than our assumption. 
However, to provide full transparency to the general public, we have 
included the information in Table VII, which shows the impact on our 
estimates of alternative assumptions about the baseline number of 
investigations and the reduction in that number resulting from these 
final regulations:

                      Table VII--Sensitivity Analysis of Other Entities Baseline Assumption
----------------------------------------------------------------------------------------------------------------
                                                                    Reduction as a result of the rule
           Baseline number of investigations            --------------------------------------------------------
                                                                90%                50%                10%
----------------------------------------------------------------------------------------------------------------
15/YEAR................................................       $116,766,845       $195,526,067       $274,285,289
2/YEAR.................................................         72,452,766         82,953,995         93,455,225
1/YEAR.................................................         69,043,990         74,294,605         79,545,220
----------------------------------------------------------------------------------------------------------------

    We further assume that 90 percent of other entities will be in the 
first analytical group as discussed in the NPRM, with a remaining five 
percent in each of the other two groups. This assumption is based on a 
belief that entities, given their small size and limited capacity, 
would be more likely to adopt a minimal Title IX compliance framework, 
to the extent that they have one currently in operation. We maintain 
our assumption about how LEAs and IHEs fall into those analytical 
groups.
    For comparability purposes between the final regulations and the 
NPRM, we have retained the number of LEAs and IHEs we used in the NPRM.
    Unless otherwise specified, our model uses median hourly wages for 
personnel employed in the education sector as reported by the Bureau of 
Labor

[[Page 30567]]

Statistics \1965\ and an employer cost for employee compensation rate 
of 1.46.\1966\
---------------------------------------------------------------------------

    \1965\ U.S. Dep't. of Labor, Bureau of Labor Statistics, May 
2017 National Industry-Specific Occupational Employment and Wage 
Estimates: Sector 61--Educational Services (Mar. 30, 2018), https://www.bls.gov/oes/current/naics2_61.htm.
    \1966\ U.S. Dep't. of Labor, Bureau of Labor Statistics, 
Economic News Release: Table 1. Civilian Workers, by Major 
Occupational and Industry Group (Sept. 18, 2018), https://www.bls.gov/news.release/ecec.t01.htm.
---------------------------------------------------------------------------

    We assume all recipients will need to take time to review and 
understand these final regulations. At the LEA level, we assume four 
hours for the Title IX Coordinator (assuming a loaded wage rate of 
$65.22 per hour for educational administrators), and eight hours for an 
attorney (at a rate of $90.71 per hour). At the IHE level, we assume 
eight hours for the Title IX Coordinator and 16 hours for an attorney. 
We did not receive public comment on these estimates and have therefore 
not revised them from the NPRM. For other entities, we assume four 
hours for the Title IX Coordinator and eight hours for an attorney. We 
note that our estimates in the NPRM incorrectly omitted costs for 
reviewing the final regulations at the IHE level and some personnel at 
the LEA level. We have corrected that error for these estimates. We 
therefore estimate the cost of this activity as approximately 
$30,324,610.
    We assume that all recipients will need to revise their grievance 
procedures. We assume that at the LEA level this will take six hours 
for the Title IX Coordinator and 24 hours for an attorney with an 
additional two hours for an administrator to review and approve them. 
At the IHE level, we assume this will take 12 hours for the Title IX 
Coordinator and 28 hours for an attorney with an additional four hours 
for an administrator to review and approve them. These estimates were 
revised from the NPRM in response to public comment. For other 
entities, we assume this will take four hours for a Title IX 
Coordinator and 16 hours for an attorney with an additional two hours 
for an administrator to review and approve them. We therefore estimate 
the cost of this activity as approximately $82,441,460.
    We assume 40 percent of LEAs, 20 percent of IHEs,\1967\ and all 
other entities will need to post their non-discrimination statement. At 
the LEA level, we assume this will take one half hour each for a Title 
IX Coordinator and an attorney and two hours for a web developer (at 
$44.12 per hour). At the IHE level, we assume this will take one hour 
each for the Title IX Coordinator and an attorney and two hours for a 
web developer. We did not receive public comment on these estimates and 
have therefore not revised them from the NPRM. For other entities, we 
assume this will take one hour each from the Title IX Coordinator and 
an attorney and two hours for a web developer. We therefore estimate 
the cost of this activity as approximately $1,494,020.
---------------------------------------------------------------------------

    \1967\ Richards, and Wiersma-Mosley & DiLoreto at 5, found that 
approximately 80 percent of IHEs (81 percent and 79 percent, 
respectively) posted their policies and procedures. Jacquelyn D. 
Wiersma-Mosley & James DiLoreto, The Role of Title IX Coordinators 
on College and University Campuses, 8 Behav. Sci. 4 (2018), 
available at https://www.mdpi.com/2076-328X/8/4/38/htm (click on 
``Full-Text PDF'') (page references herein are to this PDF version); 
Tara N. Richards, An updated review of institutions of higher 
education's responses to sexual assault: Results from a nationally 
representative sample, 34 Journal of Interpersonal Violence 1 
(2016).
---------------------------------------------------------------------------

    We assume that all recipients will need to train their Title IX 
Coordinators, an investigator, any person designated by a recipient to 
facilitate an informal resolution process (e.g., a mediator), and two 
decision-makers (assuming an additional decision-maker for appeals). We 
assume this training will take approximately eight hours for all staff 
at the LEA and IHE level. These estimates have been revised since the 
NPRM due to public comment. For other entities, we assume only four 
hours of training for the Title IX Coordinator, as we believe that 
their smaller organizational footprint and more limited staffing may 
result in a shorter training time for such staff. We therefore estimate 
the cost of this activity as approximately $52,135,230 in Year 1 and 
$26,067,620 in each subsequent year.
    The final regulations require recipients to conduct an 
investigation only if a formal complaint of sexual harassment is filed 
by the complainant or signed by the Title IX Coordinator. In reviewing 
a sample of public Title IX documents, the Department noted that larger 
IHEs were more likely than smaller IHEs to conduct investigations only 
in the event of formal complaints, as opposed to investigating all 
reports they received. Consistent with this observation, the Department 
found that the rate of average investigations relative to the number of 
reports of sexual offenses under the Clery Act was lower at large (more 
than 10,000 students) at four-year institutions than it was at smaller 
four-year institutions. As a result, the Department used the Clery Act 
data to impute the likely effect of these regulations on various 
institutions. Specifically, we assumed in the NPRM that, under these 
regulations, the gap in the rate of investigations between large IHEs 
and smaller ones would decrease by approximately 50 percent.
    However, we believe that, given revisions to the definition of 
``formal complaint'' in Sec.  106.30, it will be easier and more likely 
for complainants to file a formal complaint if they wish to do so. 
Thus, we now only assume a smaller reduction in the number of 
investigations than we did in the NPRM--a 40 percent ``gap closing'' as 
opposed to the 50 percent included in the NPRM. This figure was not 
reduced further because we believe that the inclusion of dating 
violence, domestic violence, and stalking to the definition of ``sexual 
harassment'' may offset the effects from an easier formal complaint 
process. Specifically, we believe that, due to the nature of dating 
violence and domestic violence, individuals may be less likely to file 
a formal complaint than they would in instances of sexual assault.
    Therefore, we estimate that the requirement to investigate only in 
the event of formal complaints would result in a reduction in the 
average number of investigations per IHE per year of 1.60. This 
reduction is equivalent to all IHEs in Group 2 experiencing a reduction 
in investigations of approximately 28 percent. In addition, the 
proposed regulations only require investigations in the event of sexual 
harassment within a recipient's education program or activity. Again, 
assuming that Clery Act reports correlate with all incidents of sexual 
harassment (as defined in these final regulations), we assume a further 
reduction in the number of investigations per IHE per year of 
approximately 0.29, using the number of public property and reported-
by-police reports as a proxy for the number of off-campus sexual 
harassment investigations currently being conducted by IHEs.\1968\ As 
noted in our responses to comments, we believe that this approach will 
result in a likely underestimate of the cost savings from the final 
regulations as at least some proportion of noncampus incidents reported 
under the Clery Act would also not have to be investigated under the 
final regulations, but the Department does not assume any savings from 
a reduction in such investigations. As a

[[Page 30568]]

result, we estimate that each IHE in Group 2 will experience a 
reduction in the number of Title IX investigations of approximately 
1.89 per year.
---------------------------------------------------------------------------

    \1968\ The Department notes that this likely represents a severe 
under-estimate of the actual proportion of incidents of sexual 
harassment that occur off campus and recognizes some off-campus 
incidents may be part of a recipient's education program or activity 
as described in Sec.  106.44(a). According to a study from United 
Educators, approximately 41 percent of sexual assault claims 
examined occurred off campus. United Educators, Facts from United 
Educator's Report Confronting Campus Sexual Assault (2015), https://www.ue.org/sexual_assault_claims_study/.
---------------------------------------------------------------------------

    At the LEA level, given the lack of information regarding the 
actual number of investigations conducted each year, the Department 
assumes that only 50 percent of the incidents reported in the CRDC 
would result in a formal complaint, for a reduction in the number of 
investigations of 1.62 per year. We did not receive public comment on 
this assumption and are therefore retaining it in these final 
estimates. Although we estimate that the number of investigations under 
the proposed regulations will decrease at both the IHE and LEA levels, 
Title IX Coordinators are still expected to respond to informal 
complaints or reports of sexual harassment. Such responses will not be 
dictated by the recipient's grievance procedures, and Sec.  106.44(a) 
requires the Title IX Coordinator to promptly contact the complainant 
to discuss the availability of the supportive measures as defined in 
Sec.  106.30, consider the complainant's wishes with respect to 
supportive measures, inform the complainant of the availability of 
supportive measures with or without the filing of a formal complaint, 
and explain to the complainant the process for filing a formal 
complaint.\1969\ Although the final regulations require such supportive 
measures to be offered without fee or charge, we do not estimate 
specific costs associated with the provision of particular supportive 
measures. Although such costs for supportive measures were not included 
in the NPRM, the Department has added a flat cost of $250 per set of 
supportive measures provided in response to public comment. We have 
also revised our initial estimates to include time burdens for students 
to each set of supportive measures provided. Further, the number of 
informal complaints or reports of sexual harassment has been adjusted 
due to changes in assumptions regarding the baseline number of 
investigations and the proportion of those that will result in formal 
complaints under the final regulations. At the LEA level, we assume 
that each response to a report of sexual harassment will take three 
hours from the Title IX Coordinator, eight hours for an administrative 
assistant, and 12 hours each for two students (at the K-12 level, we 
assume the Federal minimum wage for students). At the IHE level, we 
assume each informal complaint will require three hours from the Title 
IX Coordinator, 16 hours from an administrative assistant, and 24 hours 
each for two students (at the postsecondary level, we assume median 
hourly wage for all workers, or $18.58 per hour). For other entities, 
we assume each response to an informal complaint will require three 
hours from the Title IX Coordinator, eight hours from an administrative 
assistant, and 12 hours each for two students (for other entities, we 
average the wage rates for K-12 and postsecondary students). Across all 
recipients, we assume a flat cost of $250 per set of supportive 
measures provided. We therefore estimate the cost of this activity as 
approximately $31,164,490 per year.
---------------------------------------------------------------------------

    \1969\ In Angela F. Amar et al., Administrators' perceptions of 
college campus protocols, response, and student prevention efforts 
for sexual assault, 29 Violence & Victims 579 (2014), the most 
common campus services provided at the IHE level were mental health 
services, health services, law enforcement, and victim assistance/
advocacy.
---------------------------------------------------------------------------

    In response to public comment, we have added a new category of 
costs not included in the NPRM. We recognize that there may be 
instances in which recipients expend time and resources to determine if 
a particular incident occurred within the recipient's education program 
or activity or in a circumstance in which the recipient would be 
otherwise required to investigate. At the LEA and IHE level, we assume 
this would take approximately four hours for a Title IX Coordinator and 
12 hours from an investigator. We do not assume that these types of 
investigations will be likely at other entities, given their small 
scope and limited activities where they would exercise substantial 
control over respondents outside of clearly defined events and 
circumstances. We therefore assume that this activity would cost 
approximately $10,338,310 per year.
    For formal complaints, we made several revisions to our initial 
assumptions based on public comment. First, we increased the amount of 
time an attorney or advisor would spend on any individual 
investigation. Second, we included two students as part of each 
investigation. Third, we added a nominal $100 cost per hearing to 
accommodate the recordkeeping and technology requirements (e.g., video 
conferencing to meet the cross-examination requirements when parties 
request separate rooms). Finally, we have revised the number of formal 
investigations that occur based on the assumptions described above. At 
the LEA level, we therefore assume that a formal investigation will 
require eight hours from the Title IX Coordinator, 16 hours from an 
administrative assistant, eight hours each for two advisors (using the 
wage rate for attorneys), 20 hours for an investigator, eight hours for 
the decision-maker, and 12 hours each for two students. At the IHE 
level, we assume a formal investigation will take 24 hours from a Title 
IX Coordinator, 40 hours from an administrative assistant, 60 hours 
each for two advisors, 40 hours for an investigator, 16 hours for a 
decision-maker, and 24 hours each for two students. For other entities, 
we assume each formal investigation will require eight hours from a 
Title IX Coordinator, 16 hours for an administrative assistant, eight 
hours each for two advisors, 20 hours for an investigator, eight hours 
for a decision-maker, and 12 hours each for two students. We therefore 
estimate the reduction in burden associated with the reduced number of 
investigations as approximately $189,134,990 per year.
    As in the NPRM, we assume that some subset of recipients may not 
currently be conducting investigations in a manner that would comply 
with the requirements of these final regulations. For those recipients, 
we assume an increased cost to comply. At the LEA level, we believe 
these requirements will require an additional two hours for a Title IX 
Coordinator, three hours from an administrative assistant, eight hours 
each for two advisors, ten hours from an investigator, and eight hours 
from a decision-maker. At the IHE level, these requirements will result 
in an increase of six hours for the Title IX Coordinator, ten hours for 
an administrative assistant, 60 hours each for two advisors, 20 hours 
for an investigator, and 16 hours from a decision-maker. For other 
entities, we believe this will result in an increase of two hours for 
the Title IX Coordinator, four hours for an administrative assistant, 
one hour each for two advisors, ten hours for an investigator, and four 
hours for a decision-maker. We also assume the same additional nominal 
charge for all entities associated with recordkeeping and technology 
requirements. For analytical group one, we therefore estimate formal 
investigations to result in a cost increase of $21,867,410 per year.
    As in the NPRM we assume that 50 percent of all decisions result in 
appeal. We revised our estimates in this section from the NPRM to 
increase the time commitment on the part of advisors and to add 
students. At the LEA level, we assume that each appeal will require 4 
hours from the Title IX Coordinator, eight hours from an administrative 
assistant, eight hours each for two advisors, eight hours for a 
decision-maker, and 12 hours each for two students. At the IHE level, 
we assume each appeal would require

[[Page 30569]]

approximately 12 hours from the Title IX Coordinator, 20 hours from an 
administrative assistant, 16 hours each for two advisors, 8 hours for a 
decision-maker, and 24 hours each for two students. For other entities, 
we assume each appeal will require four hours for the Title IX 
Coordinator, eight hours for an administrative assistant, 8 hours each 
for two advisors, eight hours for a decision-maker, and 12 hours each 
for two students. We therefore estimate a total cost of this activity 
as approximately $62,024,720 per year.
    As in the NPRM, we assume that some proportion of formal complaints 
will be resolved through an informal resolution process. In response to 
public comment, we now assume that 25 percent of formal complaints will 
be resolved through an informal resolution process. In such instances, 
we assume such a process will reduce half the time burden on 
investigators and advisors, all of the time burden for decision-makers, 
and all of the costs associated with recordkeeping and technology 
requirements for the live hearing.\1970\ We further assume that it will 
increase the time burdens on administrative assistants and the time for 
a person designated by a recipient to facilitate an informal resolution 
process. We note that in the NPRM, we included additional time for the 
Title IX Coordinator who may help facilitate an informal resolution 
process. In response to public comment and to changes from the proposed 
regulations to the final regulations, we acknowledge that recipients 
may and are likely to designate a person other than the Title IX 
Coordinator to facilitate an informal resolution process. We have 
therefore reassigned this time burden to a person other than the Title 
IX Coordinator designated by the recipient to facilitate an informal 
resolution process and assume that the informal resolution will not 
create additional time burdens for the Title IX Coordinator relative to 
a grievance process under Sec.  106.45. At the LEA level and in other 
entities, we assume an increase of four hours for an administrative 
assistant and four hours for a person designated by the recipient to 
facilitate an informal resolution process. At the IHE level, we assume 
each informal resolution will require an additional eight hours for an 
administrative assistant and an additional 8 hours for a person 
designated by the recipient to facilitate an informal resolution 
process. We therefore assume that informal resolutions will result in a 
net cost savings of $29,694,690 per year.
---------------------------------------------------------------------------

    \1970\ The Department assumes that 25 percent of formal 
complaints will be resolved through an informal resolution process 
under Sec.  106.45(b)(9) because such an assumption will provide a 
more conservative estimate with respect to the net cost savings that 
recipients may realize as a result of the informal resolution 
process. The Department does not wish to overestimate the net cost 
savings as a result of the informal resolution process. In the 
``Paperwork Reduction Act of 1965'' section, the Department assumes 
100 percent participation with respect to the informal resolution 
process because such an assumption provides the most conservative 
estimate with respect to burden. Accordingly, the Department errs on 
the side of underestimating any net cost savings and overestimating 
burden.
---------------------------------------------------------------------------

    As described in the NPRM, the final regulations require recipients 
to maintain certain documentation regarding their Title IX activities. 
We assume that the recordkeeping and documentation requirements would 
have a higher first year cost associated with establishing the system 
for documentation with a lower out-year cost for maintaining it. At the 
LEA level, we assume that the Title IX Coordinator would spend four 
hours in Year 1 establishing the system and an administrative assistant 
would spend eight hours doing so. At the IHE level, we assume 
recipients are less likely to use a paper filing system and are likely 
to use an electronic database for managing such information. Therefore, 
we assume it will take a Title IX Coordinator 24 hours, an 
administrative assistant 40 hours, and a database administrator 40 
hours (at $50.71/hr) to set up the system. In later years, we assume 
that the systems will be relatively simple to maintain. At the LEA 
level, we assume it will take the Title IX Coordinator two hours and an 
administrative assistant four hours to do so. At the IHE level, we 
assume four hours from the Title IX Coordinator, 40 hours from an 
administrative assistant, and eight hours from a database 
administrator. We did not receive public comment on these time 
estimates and, therefore, have not revised these assumptions from the 
NPRM. Given their size and organizational complexity, we assume that 
other entities will face the same time burdens associated with 
complying as LEAs. We therefore estimate the recordkeeping requirements 
to cost approximately $39,114,530 in Year 1 and $15,189,260 in each 
subsequent year.
    In total, we estimate these final regulations to generate a net 
cost of between $48.6 and $62.2 million over ten years.

Regulatory Alternatives Considered

    The Department considered the following alternatives to the 
proposed regulations: (1) Leaving the current regulations and current 
guidance in place and issuing no proposed regulations at all; (2) 
leaving the current regulations in place and reinstating the 2011 Dear 
Colleague Letter or the 2014 Q&A; and (3) issuing proposed regulations 
that added to the current regulations broad statements of general 
principles under which recipients must promulgate grievance procedures. 
Alternative (2) was rejected by the Department for the reasons 
expressed in the preamble of the NPRM \1971\ and for the reasons 
described throughout this preamble: The procedural and substantive 
problems with the 2011 Dear Colleague Letter and 2014 Q&A that prompted 
the Department to rescind that guidance remained as concerning now as 
when the guidance was rescinded. Additionally, the Department 
determined that restoring that guidance would once again leave 
recipients unclear about how to ensure they implemented prompt and 
equitable grievance procedures. Alternative (1) was rejected by the 
Department because current regulations are entirely silent on whether 
Title IX and those implementing regulations expressly cover sexual 
harassment. The Department chose not to address a crucial topic like 
sexual harassment through guidance which would have left this serious 
issue subject only to non-legally binding guidance rather than 
regulatory prescriptions. The lack of legally binding standards would 
leave survivors of sexual harassment with fewer legal protections and 
both alleged victims and persons accused of sexual harassment with no 
predictable, consistent expectation of the level of fairness or due 
process available from recipients' grievance procedures. Alternative 
(3) was rejected by the Department because the problems with the status 
quo regarding recipients' Title IX procedures, as identified by 
numerous stakeholders and experts, made it clear that a regulation that 
was too vague or broad (e.g., ``respond supportively to persons who 
report sexual harassment'' or ``provide due process protections before 
disciplining a student for sexual harassment'') would not provide 
sufficient predictability or consistency across recipients to achieve 
the benefits sought by the Department. After careful consideration of 
various alternatives, the Department believes that the proposed 
regulations represent the most prudent and cost effective way of 
achieving the desired benefits of (a) ensuring that recipients know 
their specific legal obligations with respect to responses to sexual 
harassment, (b) ensuring that schools and colleges take all reports of 
sexual harassment seriously (including by offering

[[Page 30570]]

supportive measures to help complainants preserve equal educational 
access irrespective of whether allegations are investigated), (c) 
ensuring that schools and colleges treat all persons accused of sexual 
harassment fairly and provide both parties strong procedural rights in 
any grievance process resolving sexual harassment allegations, and (d) 
ensuring that victims of sexual harassment in recipients' education 
programs or activities are provided with remedies.
---------------------------------------------------------------------------

    \1971\ 83 FR 61489.
---------------------------------------------------------------------------

Accounting Statement

    As required by OMB Circular A-4, in the following table we have 
prepared an accounting statement showing the classification of 
expenditures associated with the provisions of these final regulations. 
This table provides our best estimate of the changes in annual 
monetized costs, benefits, and transfers as a result of the final 
regulations.

                    Table VIII--Accounting Statement
------------------------------------------------------------------------
                    Category                             Benefits
------------------------------------------------------------------------
Clarity, specificity, and permanence with         Not Quantified.
 respect to recipient schools and colleges
 knowing their legal obligations under Title IX
 with respect to sexual harassment.
A legal framework for schools' and colleges'      Not Quantified.
 response to sexual harassment that ensures all
 reports of sexual harassment are treated
 seriously and alleged victims are offered
 supportive measures, all persons accused are
 treated fairly, and both parties to any
 grievance process resolving sexual harassment
 allegations are given due process protections.
Preserve constitutional rights, recognize         Not Quantified.
 religious exemptions in the absence of written
 request.
------------------------------------------------------------------------


 
                                                                                            Costs
                                                                           -------------------------------------
                                                                                    3%                 7%
----------------------------------------------------------------------------------------------------------------
Reading and understanding the rule........................................         $3,451,427         $4,035,086
Revision of grievance procedures..........................................          9,383,159         10,969,915
Posting of non-discrimination statement...................................            170,044            198,799
Training of Title IX Coordinators, investigators, decision-makers, and any         29,034,530         29,536,255
 person designated by a recipient to facilitate an informal resolution
 process..................................................................
Response to informal reports..............................................         70,343,754         70,343,754
Reduction in the number of investigations.................................      (178,796,679)      (178,796,679)
Increased investigation requirements......................................         21,867,415         21,867,415
Appeal process............................................................         62,024,722         62,024,722
Informal resolution of complaints.........................................       (25,665,969)       (25,665,969)
Creation and maintenance of documentation.................................         17,912,337         18,372,828
----------------------------------------------------------------------------------------------------------------

Regulatory Flexibility Act

    This analysis, required by the Regulatory Flexibility Act, presents 
an estimate of the effect of the final regulations on small entities. 
The U.S. Small Business Administration (SBA) Size Standards define 
proprietary institutions of higher education as small businesses if 
they are independently owned and operated, are not dominant in their 
field of operation, and have total annual revenue below $7,000,000. 
Nonprofit institutions are defined as small entities if they are 
independently owned and operated and not dominant in their field of 
operation. Public institutions and local educational agencies are 
defined as small organizations if they are operated by a government 
overseeing a population below 50,000.
    As described in the NPRM, for purposes of assessing the impacts on 
small entities, the Department is defining a ``small'' IHE as a two-
year IHE with an enrollment of less than 500 FTE or a four-year IHE 
with an enrollment of less than 1,000 FTE. Pursuant to conversations 
with the SBA, the Department has opted to define ``small'' LEAs as 
those with annual revenues of less than $7,000,000. The Department 
estimates there are approximately 631 small IHEs and 7,900 small LEAs.
    Based on the model described above, an IHE conducting approximately 
5.70 investigations per year with no reduction under the new rules and 
no investigations resulting in informal resolution would see an 
increase in costs of approximately $28,065 per year. According to data 
from IPEDS, in FY 2017, small IHEs had, on average, total revenues of 
approximately $9,925,999. Therefore, we would anticipate that the final 
regulations could generate a burden on small IHEs equal to 
approximately 0.28 percent of annual revenue. We therefore do not 
believe that these regulations would place a substantial burden on 
small IHEs.
    Based on the model above, an LEA conducting an average of 3.23 
investigations per year with no reduction under the new rules and no 
investigations resulting in informal resolutions would see an increase 
in costs of approximately $11,978 per year. In 2015-2016, small LEAs 
had an average total revenue of approximately $4,565,342. Therefore, we 
estimate that the final regulations could generate a cost burden on 
small LEAs of approximately 0.26 percent of total revenues. We 
therefore do not believe that these final regulations would place a 
substantial burden on small LEAs.
    The Department certifies that this rule, if promulgated, will not 
have a significant economic impact on a substantial number of small 
entities.

Paperwork Reduction Act of 1995

    As part of its continuing effort to reduce paperwork and the burden 
of responding, the Department provides the general public and Federal 
agencies with an opportunity to comment on proposed and continuing 
collections of information in accordance with the Paperwork Reduction 
Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This requirement helps 
ensure that the public understands the Department's collection 
instructions; respondents can provide the requested data in the desired 
format; reporting burden (time and financial resources) is minimized; 
collection instruments are clearly understood; and the Department can 
properly assess the impact of collection requirements on respondents.
    The Department's typical practice is to calculate burden over a 
three-year period. For transparency and to provide

[[Page 30571]]

full information with respect to impact, the Department provides burden 
calculations for both a three-year period as well as the seven-year 
record retention period in the information below.
    The following sections contain information collection requirements:

Proposed Sec.  106.44(b)(3) Supportive Measures Safe Harbor in Absence 
of a Formal Complaint [Removed in Final Regulations]

    These final regulations do not include Sec.  106.44(b)(3) as 
proposed in the NPRM, which provided recipients a safe harbor with 
respect to supportive measures. Accordingly, there is no burden to 
include.

Sec.  106.45(b)(2) Written Notice of Allegations

    Section 106.45(b)(2) requires all recipients, upon receipt of a 
formal complaint, to provide written notice to the complainant and the 
respondent, informing the parties of the recipient's grievance process 
and providing sufficient details of the sexual harassment allegations 
being investigated. This written notice will help ensure that the 
nature and scope of the investigation, and the recipient's procedures, 
are clearly understood by the parties at the commencement of an 
investigation.
    We estimate that most recipients will need to create a form, or 
modify one already used, to comply with these requirements. With 
respect to all recipients, including elementary and secondary schools, 
postsecondary institutions, and other recipients of Federal financial 
assistance, we estimate that it will take the Title IX Coordinator one 
hour to create or modify a form to use for these purposes, and that an 
attorney will spend 0.5 hours reviewing the form for compliance with 
Sec.  106.45(b)(2). We estimate there will be no cost in out-years, and 
that the cost of maintaining such a form is captured under the 
recordkeeping requirements of Sec.  106.45(b)(10) described below, for 
a total Year 1 cost of $2,650,654. The total burden for this 
requirement over three years or over seven years, which is the length 
of time that a recipient must maintain records under Sec.  
106.45(b)(10)(i), is 35,958 hours under OMB Control Number 1870-NEW, 
because this form only needs to be created once.

Sec.  106.45(b)(9) Informal Resolution

    Section 106.45(b)(9) requires that recipients who wish to provide 
parties with the option of informal resolution of formal complaints, 
may offer this option to the parties but may only proceed by: First, 
providing the parties with written notice disclosing the sexual 
harassment allegations, the requirements of an informal resolution 
process, any consequences from participating in the informal resolution 
process; and second, obtaining the parties' voluntary, written consent 
to the informal resolution process. This provision permits--but does 
not require--recipients to allow for voluntary participation in an 
informal resolution as a method of resolving the allegations in formal 
complaints without completing the investigation and adjudication. This 
provision prohibits recipients from offering or facilitating an 
informal resolution process to resolve allegations that an employee 
sexually harassed a student.
    We estimate that not all elementary and secondary schools, 
postsecondary institutions, or other recipients will choose to offer 
informal resolution as a feature of their grievance process; of those 
recipients that do, we estimate that most recipients will need to 
create a form, or modify one already used, to comply with the 
requirements of this section. With respect to all recipients, including 
elementary and secondary schools, postsecondary institutions, and other 
recipients of Federal financial assistance, we estimate that it will 
take Title IX Coordinators one (1) hour to create or modify a form to 
use for these purposes, and that an attorney will spend 0.5 hours 
reviewing the form for compliance with Sec.  106.45(b)(9). We estimate 
there will be no cost in out-years, and that the cost of maintaining 
such a form is captured under the recordkeeping requirements of Sec.  
106.45(b)(9) described above, for a total Year 1 cost of $2,650,654. 
The total burden for this requirement over three years or over seven 
years, which is the length of time that a recipient must maintain 
records under Sec.  106.45(b)(10), is 35,958 hours under OMB Control 
Number 1870-NEW, because this form only needs to be created once. Even 
though not all recipients may choose to offer an informal resolution 
process, we are estimating this burden for 100 percent of recipients to 
provide the most conservative estimate of any burden.

Sec.  106.45(b)(10) Recordkeeping

    Section 106.45(b)(10) requires recipients to maintain certain 
documentation regarding their Title IX activities. Recipients will be 
required to maintain for a period of seven years records of: Sexual 
harassment investigations, including any determination regarding 
responsibility and any audio or audiovisual recording or transcript 
required under Sec.  106.45(b)(6)(i), any disciplinary sanctions 
imposed on the respondent, and any remedies provided to the complainant 
designed to restore or preserve equal access to the recipient's 
education program or activity; any appeal and the result therefrom; any 
informal resolution; and all materials used to train Title IX 
Coordinators, investigators, decision-makers, and any person who 
facilitates an informal resolution process. Additionally, for each 
response required under Sec.  106.44(a), a recipient must create, and 
maintain for a period of seven years, records of any actions, including 
any supportive measures, taken in response to a report or formal 
complaint of sexual harassment. In each instance, the recipient must 
document the basis for its conclusion that its response was not 
deliberately indifferent, and document that it has taken measures 
designed to restore or preserve equal access to the recipient's 
education program or activity. The Department clarifies in these final 
regulations that if a recipient does not provide a complainant with 
supportive measures, then such documentation must include the reasons 
why such a response was not clearly unreasonable in light of the known 
circumstances. This information will allow a recipient and OCR to 
assess on a longitudinal basis the prevalence of sexual harassment 
affecting access to a recipient's programs and activities, whether a 
recipient is complying with Title IX when responding to reports and 
formal complaints of sexual harassment, and the necessity for 
additional or different measures, including any remedial actions under 
Sec.  106.3(a). We estimate the volume of records to be created and 
retained may represent a decline from current recordkeeping due to 
clarification elsewhere in these final regulations 1) that an 
investigation under Sec.  106.45 needs to be conducted only if a 
complainant files or a Title IX Coordinator signs a formal complaint 
and the allegations in the formal complaint are not dismissed under 
Sec.  106.45(b)(3) and 2) that an informal resolution process may be 
used to resolve allegations in a formal complaint pursuant to Sec.  
106.45(b)(9); both of these provisions will likely result in fewer 
investigative records being generated.
    We estimate that recipients will have a higher first-year cost 
associated with establishing the system for documentation with a lower 
out-year cost for maintaining it. With respect to elementary and 
secondary schools, we assume that the Title IX Coordinator will spend 4 
hours in Year 1

[[Page 30572]]

establishing the system and an administrative assistant will spend 8 
hours doing so. With respect to postsecondary institutions, we assume 
recipients are less likely to use a paper filing system and are likely 
to use an electronic database for managing such information. Therefore, 
we assume it will take a Title IX Coordinator 24 hours, an 
administrative assistant 40 hours, and a database administrator 40 
hours to set up the system for a total Year 1 estimated cost of 
approximately $39,114,530 for 16,606 elementary and secondary schools, 
6,766 postsecondary institutions, and 600 other entities that are 
recipients of Federal financial assistance. Given their size and 
organizational complexity, we assume that other entities that are 
recipients of Federal financial assistance that are not elementary and 
secondary schools or postsecondary institutions will face the same time 
burdens associated with complying as elementary and secondary schools.
    In later years, we assume that the systems will be relatively 
simple to maintain. At the elementary and secondary school level as 
well as for other recipients of Federal financial assistance that are 
not elementary and secondary schools or postsecondary institutions, we 
assume it will take the Title IX Coordinator 2 hours and an 
administrative assistant 4 hours to do so. At the postsecondary 
institution level, we assume 4 hours from the Title IX Coordinator, 40 
hours from an administrative assistant, and 8 hours from a database 
administrator. In total, we estimate an ongoing cost of approximately 
$15,189,260 per year.
    We estimate that elementary and secondary schools and other 
recipients of Federal financial assistance will take 12 hours and 
postsecondary institutions will take 104 hours to establish and 
maintain a recordkeeping system for the required sexual harassment 
documentation during Year 1. In out-years, we estimate that elementary 
and secondary schools and other recipients of Federal financial 
assistance will take 6 hours annually and postsecondary institutions 
will take 52 hours annually to maintain the recordkeeping requirement 
for Title IX sexual harassment documentation. The total burden for this 
recordkeeping over three years is 398,544 hours for elementary and 
secondary schools, 1,407,328 hours for postsecondary institutions, and 
14,400 for other recipients of Federal financial assistance. The 
Department calculates burden over a seven-year period because Sec.  
106.45(b)(10)(i) requires recipients to maintain certain records for a 
period of seven years. The total burden for this recordkeeping 
requirement over seven years is 797,088 hours for elementary and 
secondary schools, 2,814,656 hours for postsecondary institutions, and 
28,800 hours for other recipients of Federal financial assistance. 
Collectively, we estimate the burden over seven years for elementary 
and secondary schools, postsecondary institutions, and other recipients 
of Federal financial assistance for recordkeeping of Title IX sexual 
harassment documents will be 3,640,544 hours under OMB Control Number 
1870-NEW.

                        Collection of Information
------------------------------------------------------------------------
                                                     OMB Control No. and
     Regulatory section            Information        estimated burden
                                   collection        [change in burden]
------------------------------------------------------------------------
106.45(b)(2)................  This regulatory       OMB 1870-NEW. The
                               provision requires    burden over the
                               recipients to         first seven years
                               provide parties       will be $2,650,654
                               with written notice   and 35,958 hours.
                               when investigating
                               a formal complaint.
106.45(b)(9)................  This regulatory       OMB 1870-NEW. The
                               provision requires    burden over the
                               recipients to         first seven years
                               provide written       will be $2,650,654
                               notice to parties     and 35,958 hours.
                               wishing to
                               participate in
                               informal resolution
                               of a formal
                               complaint.
106.45(b)(10)...............  This regulatory       OMB 1870-NEW. The
                               provision requires    burden over the
                               recipients to         first seven years
                               maintain certain      will be
                               documentation         $130,250,090 and
                               related to Title IX   3,640,544 hours.
                               activities.
                                                   ---------------------
    TOTAL...................  ....................  $135,551,398;
                                                     3,712,460 hours.
------------------------------------------------------------------------

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CONTACT.

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Department.

List of Subjects in 34 CFR Part 106

    Education, Sex discrimination, Civil rights, Sexual harassment.

Betsy DeVos,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary amends 
part 106 of title 34 of the Code of Federal Regulations as follows:

PART 106--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION 
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

0
1. The authority citation for part 106 continues to read as follows:

    Authority:  20 U.S.C. 1681 et seq., unless otherwise noted.


0
2. Section 106.3 is amended by revising paragraph (a) to read as 
follows:


Sec.  106.3  Remedial and affirmative action and self-evaluation.

    (a) Remedial action. If the Assistant Secretary finds that a 
recipient has discriminated against persons on the basis of sex in an 
education program or activity under this part, or otherwise violated 
this part, such recipient must take such remedial action as the 
Assistant Secretary deems necessary to

[[Page 30573]]

remedy the violation, consistent with 20 U.S.C. 1682.
* * * * *

0
3. Section 106.6 is amended by revising the section heading and adding 
paragraphs (d), (e), (f), (g), and (h) to read as follows:


Sec.  106.6   Effect of other requirements and preservation of rights.

* * * * *
    (d) Constitutional protections. Nothing in this part requires a 
recipient to:
    (1) Restrict any rights that would otherwise be protected from 
government action by the First Amendment of the U.S. Constitution;
    (2) Deprive a person of any rights that would otherwise be 
protected from government action under the Due Process Clauses of the 
Fifth and Fourteenth Amendments of the U.S. Constitution; or
    (3) Restrict any other rights guaranteed against government action 
by the U.S. Constitution.
    (e) Effect of Section 444 of General Education Provisions Act 
(GEPA)/Family Educational Rights and Privacy Act (FERPA). The 
obligation to comply with this part is not obviated or alleviated by 
the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 
99.
    (f) Title VII of the Civil Rights Act of 1964. Nothing in this part 
may be read in derogation of any individual's rights under title VII of 
the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. or any 
regulations promulgated thereunder.
    (g) Exercise of rights by parents or guardians. Nothing in this 
part may be read in derogation of any legal right of a parent or 
guardian to act on behalf of a ``complainant,'' ``respondent,'' 
``party,'' or other individual, subject to paragraph (e) of this 
section, including but not limited to filing a formal complaint.
    (h) Preemptive effect. To the extent of a conflict between State or 
local law and title IX as implemented by Sec. Sec.  106.30, 106.44, and 
106.45, the obligation to comply with Sec. Sec.  106.30, 106.44, and 
106.45 is not obviated or alleviated by any State or local law.
* * * * *

0
4. Section 106.8 is revised to read as follows:


Sec.  106.8  Designation of coordinator, dissemination of policy, and 
adoption of grievance procedures.

    (a) Designation of coordinator. Each recipient must designate and 
authorize at least one employee to coordinate its efforts to comply 
with its responsibilities under this part, which employee must be 
referred to as the ``Title IX Coordinator.'' The recipient must notify 
applicants for admission and employment, students, parents or legal 
guardians of elementary and secondary school students, employees, and 
all unions or professional organizations holding collective bargaining 
or professional agreements with the recipient, of the name or title, 
office address, electronic mail address, and telephone number of the 
employee or employees designated as the Title IX Coordinator pursuant 
to this paragraph. Any person may report sex discrimination, including 
sexual harassment (whether or not the person reporting is the person 
alleged to be the victim of conduct that could constitute sex 
discrimination or sexual harassment), in person, by mail, by telephone, 
or by electronic mail, using the contact information listed for the 
Title IX Coordinator, or by any other means that results in the Title 
IX Coordinator receiving the person's verbal or written report. Such a 
report may be made at any time (including during non-business hours) by 
using the telephone number or electronic mail address, or by mail to 
the office address, listed for the Title IX Coordinator.
    (b) Dissemination of policy--(1) Notification of policy. Each 
recipient must notify persons entitled to a notification under 
paragraph (a) of this section that the recipient does not discriminate 
on the basis of sex in the education program or activity that it 
operates, and that it is required by title IX and this part not to 
discriminate in such a manner. Such notification must state that the 
requirement not to discriminate in the education program or activity 
extends to admission (unless subpart C of this part does not apply) and 
employment, and that inquiries about the application of title IX and 
this part to such recipient may be referred to the recipient's Title IX 
Coordinator, to the Assistant Secretary, or both.
    (2) Publications. (i) Each recipient must prominently display the 
contact information required to be listed for the Title IX Coordinator 
under paragraph (a) of this section and the policy described in 
paragraph (b)(1) of this section on its website, if any, and in each 
handbook or catalog that it makes available to persons entitled to a 
notification under paragraph (a) of this section.
    (ii) A recipient must not use or distribute a publication stating 
that the recipient treats applicants, students, or employees 
differently on the basis of sex except as such treatment is permitted 
by title IX or this part.
    (c) Adoption of grievance procedures. A recipient must adopt and 
publish grievance procedures that provide for the prompt and equitable 
resolution of student and employee complaints alleging any action that 
would be prohibited by this part and a grievance process that complies 
with Sec.  106.45 for formal complaints as defined in Sec.  106.30. A 
recipient must provide to persons entitled to a notification under 
paragraph (a) of this section notice of the recipient's grievance 
procedures and grievance process, including how to report or file a 
complaint of sex discrimination, how to report or file a formal 
complaint of sexual harassment, and how the recipient will respond.
    (d) Application outside the United States. The requirements of 
paragraph (c) of this section apply only to sex discrimination 
occurring against a person in the United States.

0
5. Section 106.9 is revised to read as follows:


Sec.  106.9  Severability.

    If any provision of this subpart or its application to any person, 
act, or practice is held invalid, the remainder of the subpart or the 
application of its provisions to any person, act, or practice shall not 
be affected thereby.

0
6. Section 106.12 is amended by revising paragraph (b) to read as 
follows:


Sec.  106.12  Educational institutions controlled by religious 
organizations.

* * * * *
    (b) Assurance of exemption. An educational institution that seeks 
assurance of the exemption set forth in paragraph (a) of this section 
may do so by submitting in writing to the Assistant Secretary a 
statement by the highest ranking official of the institution, 
identifying the provisions of this part that conflict with a specific 
tenet of the religious organization. An institution is not required to 
seek assurance from the Assistant Secretary in order to assert such an 
exemption. In the event the Department notifies an institution that it 
is under investigation for noncompliance with this part and the 
institution wishes to assert an exemption set forth in paragraph (a) of 
this section, the institution may at that time raise its exemption by 
submitting in writing to the Assistant Secretary a statement by the 
highest ranking official of the institution, identifying the provisions 
of this part which conflict with a specific tenet of the religious 
organization, whether or not the institution had previously sought 
assurance of an exemption from the Assistant Secretary.
* * * * *

0
7. Add Sec.  106.18 to subpart B to read as follows:

[[Page 30574]]

Sec.  106.18  Severability.

    If any provision of this subpart or its application to any person, 
act, or practice is held invalid, the remainder of the subpart or the 
application of its provisions to any person, act, or practice shall not 
be affected thereby.

0
8. Add Sec.  106.24 to subpart C to read as follows:


Sec.  106.24   Severability.

    If any provision of this subpart or its application to any person, 
act, or practice is held invalid, the remainder of the subpart or the 
application of its provisions to any person, act, or practice shall not 
be affected thereby.

0
9. Add Sec.  106.30 to subpart D to read as follows:


Sec.  106.30  Definitions.

    (a) As used in this part:
    Actual knowledge means notice of sexual harassment or allegations 
of sexual harassment to a recipient's Title IX Coordinator or any 
official of the recipient who has authority to institute corrective 
measures on behalf of the recipient, or to any employee of an 
elementary and secondary school. Imputation of knowledge based solely 
on vicarious liability or constructive notice is insufficient to 
constitute actual knowledge. This standard is not met when the only 
official of the recipient with actual knowledge is the respondent. The 
mere ability or obligation to report sexual harassment or to inform a 
student about how to report sexual harassment, or having been trained 
to do so, does not qualify an individual as one who has authority to 
institute corrective measures on behalf of the recipient. ``Notice'' as 
used in this paragraph includes, but is not limited to, a report of 
sexual harassment to the Title IX Coordinator as described in Sec.  
106.8(a).
    Complainant means an individual who is alleged to be the victim of 
conduct that could constitute sexual harassment.
    Consent. The Assistant Secretary will not require recipients to 
adopt a particular definition of consent with respect to sexual 
assault, as referenced in this section.
    Formal complaint means a document filed by a complainant or signed 
by the Title IX Coordinator alleging sexual harassment against a 
respondent and requesting that the recipient investigate the allegation 
of sexual harassment. At the time of filing a formal complaint, a 
complainant must be participating in or attempting to participate in 
the education program or activity of the recipient with which the 
formal complaint is filed. A formal complaint may be filed with the 
Title IX Coordinator in person, by mail, or by electronic mail, by 
using the contact information required to be listed for the Title IX 
Coordinator under Sec.  106.8(a), and by any additional method 
designated by the recipient. As used in this paragraph, the phrase 
``document filed by a complainant'' means a document or electronic 
submission (such as by electronic mail or through an online portal 
provided for this purpose by the recipient) that contains the 
complainant's physical or digital signature, or otherwise indicates 
that the complainant is the person filing the formal complaint. Where 
the Title IX Coordinator signs a formal complaint, the Title IX 
Coordinator is not a complainant or otherwise a party under this part 
or under Sec.  106.45, and must comply with the requirements of this 
part, including Sec.  106.45(b)(1)(iii).
    Respondent means an individual who has been reported to be the 
perpetrator of conduct that could constitute sexual harassment.
    Sexual harassment means conduct on the basis of sex that satisfies 
one or more of the following:
    (1) An employee of the recipient conditioning the provision of an 
aid, benefit, or service of the recipient on an individual's 
participation in unwelcome sexual conduct;
    (2) Unwelcome conduct determined by a reasonable person to be so 
severe, pervasive, and objectively offensive that it effectively denies 
a person equal access to the recipient's education program or activity; 
or
    (3) ``Sexual assault'' as defined in 20 U.S.C. 1092(f)(6)(A)(v), 
``dating violence'' as defined in 34 U.S.C. 12291(a)(10), ``domestic 
violence'' as defined in 34 U.S.C. 12291(a)(8), or ``stalking'' as 
defined in 34 U.S.C. 12291(a)(30).
    Supportive measures means non-disciplinary, non-punitive 
individualized services offered as appropriate, as reasonably 
available, and without fee or charge to the complainant or the 
respondent before or after the filing of a formal complaint or where no 
formal complaint has been filed. Such measures are designed to restore 
or preserve equal access to the recipient's education program or 
activity without unreasonably burdening the other party, including 
measures designed to protect the safety of all parties or the 
recipient's educational environment, or deter sexual harassment. 
Supportive measures may include counseling, extensions of deadlines or 
other course-related adjustments, modifications of work or class 
schedules, campus escort services, mutual restrictions on contact 
between the parties, changes in work or housing locations, leaves of 
absence, increased security and monitoring of certain areas of the 
campus, and other similar measures. The recipient must maintain as 
confidential any supportive measures provided to the complainant or 
respondent, to the extent that maintaining such confidentiality would 
not impair the ability of the recipient to provide the supportive 
measures. The Title IX Coordinator is responsible for coordinating the 
effective implementation of supportive measures.
    (b) As used in Sec. Sec.  106.44 and 106.45:
    Elementary and secondary school means a local educational agency 
(LEA), as defined in the Elementary and Secondary Education Act of 
1965, as amended by the Every Student Succeeds Act, a preschool, or a 
private elementary or secondary school.
    Postsecondary institution means an institution of graduate higher 
education as defined in Sec.  106.2(l), an institution of undergraduate 
higher education as defined in Sec.  106.2(m), an institution of 
professional education as defined in Sec.  106.2(n), or an institution 
of vocational education as defined in Sec.  106.2(o).

0
10. Add Sec.  106.44 to subpart D to read as follows:


Sec.  106.44  Recipient's response to sexual harassment.

    (a) General response to sexual harassment. A recipient with actual 
knowledge of sexual harassment in an education program or activity of 
the recipient against a person in the United States, must respond 
promptly in a manner that is not deliberately indifferent. A recipient 
is deliberately indifferent only if its response to sexual harassment 
is clearly unreasonable in light of the known circumstances. For the 
purposes of this section, Sec. Sec.  106.30, and 106.45, ``education 
program or activity'' includes locations, events, or circumstances over 
which the recipient exercised substantial control over both the 
respondent and the context in which the sexual harassment occurs, and 
also includes any building owned or controlled by a student 
organization that is officially recognized by a postsecondary 
institution. A recipient's response must treat complainants and 
respondents equitably by offering supportive measures as defined in 
Sec.  106.30 to a complainant, and by following a grievance process 
that complies with Sec.  106.45 before the imposition of any 
disciplinary sanctions or other actions that are not supportive 
measures as defined in Sec.  106.30, against a respondent. The Title IX 
Coordinator

[[Page 30575]]

must promptly contact the complainant to discuss the availability of 
supportive measures as defined in Sec.  106.30, consider the 
complainant's wishes with respect to supportive measures, inform the 
complainant of the availability of supportive measures with or without 
the filing of a formal complaint, and explain to the complainant the 
process for filing a formal complaint. The Department may not deem a 
recipient to have satisfied the recipient's duty to not be deliberately 
indifferent under this part based on the recipient's restriction of 
rights protected under the U.S. Constitution, including the First 
Amendment, Fifth Amendment, and Fourteenth Amendment.
    (b) Response to a formal complaint. (1) In response to a formal 
complaint, a recipient must follow a grievance process that complies 
with Sec.  106.45. With or without a formal complaint, a recipient must 
comply with Sec.  106.44(a).
    (2) The Assistant Secretary will not deem a recipient's 
determination regarding responsibility to be evidence of deliberate 
indifference by the recipient, or otherwise evidence of discrimination 
under title IX by the recipient, solely because the Assistant Secretary 
would have reached a different determination based on an independent 
weighing of the evidence.
    (c) Emergency removal. Nothing in this part precludes a recipient 
from removing a respondent from the recipient's education program or 
activity on an emergency basis, provided that the recipient undertakes 
an individualized safety and risk analysis, determines that an 
immediate threat to the physical health or safety of any student or 
other individual arising from the allegations of sexual harassment 
justifies removal, and provides the respondent with notice and an 
opportunity to challenge the decision immediately following the 
removal. This provision may not be construed to modify any rights under 
the Individuals with Disabilities Education Act, Section 504 of the 
Rehabilitation Act of 1973, or the Americans with Disabilities Act.
    (d) Administrative leave. Nothing in this subpart precludes a 
recipient from placing a non-student employee respondent on 
administrative leave during the pendency of a grievance process that 
complies with Sec.  106.45. This provision may not be construed to 
modify any rights under Section 504 of the Rehabilitation Act of 1973 
or the Americans with Disabilities Act.

0
11. Add Sec.  106.45 to subpart D to read as follows:


Sec.  106.45  Grievance process for formal complaints of sexual 
harassment.

    (a) Discrimination on the basis of sex. A recipient's treatment of 
a complainant or a respondent in response to a formal complaint of 
sexual harassment may constitute discrimination on the basis of sex 
under title IX.
    (b) Grievance process. For the purpose of addressing formal 
complaints of sexual harassment, a recipient's grievance process must 
comply with the requirements of this section. Any provisions, rules, or 
practices other than those required by this section that a recipient 
adopts as part of its grievance process for handling formal complaints 
of sexual harassment as defined in Sec.  106.30, must apply equally to 
both parties.
    (1) Basic requirements for grievance process. A recipient's 
grievance process must--
    (i) Treat complainants and respondents equitably by providing 
remedies to a complainant where a determination of responsibility for 
sexual harassment has been made against the respondent, and by 
following a grievance process that complies with this section before 
the imposition of any disciplinary sanctions or other actions that are 
not supportive measures as defined in Sec.  106.30, against a 
respondent. Remedies must be designed to restore or preserve equal 
access to the recipient's education program or activity. Such remedies 
may include the same individualized services described in Sec.  106.30 
as ``supportive measures''; however, remedies need not be non-
disciplinary or non-punitive and need not avoid burdening the 
respondent;
    (ii) Require an objective evaluation of all relevant evidence--
including both inculpatory and exculpatory evidence--and provide that 
credibility determinations may not be based on a person's status as a 
complainant, respondent, or witness;
    (iii) Require that any individual designated by a recipient as a 
Title IX Coordinator, investigator, decision-maker, or any person 
designated by a recipient to facilitate an informal resolution process, 
not have a conflict of interest or bias for or against complainants or 
respondents generally or an individual complainant or respondent. A 
recipient must ensure that Title IX Coordinators, investigators, 
decision-makers, and any person who facilitates an informal resolution 
process, receive training on the definition of sexual harassment in 
Sec.  106.30, the scope of the recipient's education program or 
activity, how to conduct an investigation and grievance process 
including hearings, appeals, and informal resolution processes, as 
applicable, and how to serve impartially, including by avoiding 
prejudgment of the facts at issue, conflicts of interest, and bias. A 
recipient must ensure that decision-makers receive training on any 
technology to be used at a live hearing and on issues of relevance of 
questions and evidence, including when questions and evidence about the 
complainant's sexual predisposition or prior sexual behavior are not 
relevant, as set forth in paragraph (b)(6) of this section. A recipient 
also must ensure that investigators receive training on issues of 
relevance to create an investigative report that fairly summarizes 
relevant evidence, as set forth in paragraph (b)(5)(vii) of this 
section. Any materials used to train Title IX Coordinators, 
investigators, decision-makers, and any person who facilitates an 
informal resolution process, must not rely on sex stereotypes and must 
promote impartial investigations and adjudications of formal complaints 
of sexual harassment;
    (iv) Include a presumption that the respondent is not responsible 
for the alleged conduct until a determination regarding responsibility 
is made at the conclusion of the grievance process;
    (v) Include reasonably prompt time frames for conclusion of the 
grievance process, including reasonably prompt time frames for filing 
and resolving appeals and informal resolution processes if the 
recipient offers informal resolution processes, and a process that 
allows for the temporary delay of the grievance process or the limited 
extension of time frames for good cause with written notice to the 
complainant and the respondent of the delay or extension and the 
reasons for the action. Good cause may include considerations such as 
the absence of a party, a party's advisor, or a witness; concurrent law 
enforcement activity; or the need for language assistance or 
accommodation of disabilities;
    (vi) Describe the range of possible disciplinary sanctions and 
remedies or list the possible disciplinary sanctions and remedies that 
the recipient may implement following any determination of 
responsibility;
    (vii) State whether the standard of evidence to be used to 
determine responsibility is the preponderance of the evidence standard 
or the clear and convincing evidence standard, apply the same standard 
of evidence for formal complaints against students as for formal 
complaints against employees, including faculty, and apply the same 
standard of evidence to all formal complaints of sexual harassment;

[[Page 30576]]

    (viii) Include the procedures and permissible bases for the 
complainant and respondent to appeal;
    (ix) Describe the range of supportive measures available to 
complainants and respondents; and
    (x) Not require, allow, rely upon, or otherwise use questions or 
evidence that constitute, or seek disclosure of, information protected 
under a legally recognized privilege, unless the person holding such 
privilege has waived the privilege.
    (2) Notice of allegations--(i) Upon receipt of a formal complaint, 
a recipient must provide the following written notice to the parties 
who are known:
    (A) Notice of the recipient's grievance process that complies with 
this section, including any informal resolution process.
    (B) Notice of the allegations of sexual harassment potentially 
constituting sexual harassment as defined in Sec.  106.30, including 
sufficient details known at the time and with sufficient time to 
prepare a response before any initial interview. Sufficient details 
include the identities of the parties involved in the incident, if 
known, the conduct allegedly constituting sexual harassment under Sec.  
106.30, and the date and location of the alleged incident, if known. 
The written notice must include a statement that the respondent is 
presumed not responsible for the alleged conduct and that a 
determination regarding responsibility is made at the conclusion of the 
grievance process. The written notice must inform the parties that they 
may have an advisor of their choice, who may be, but is not required to 
be, an attorney, under paragraph (b)(5)(iv) of this section, and may 
inspect and review evidence under paragraph (b)(5)(vi) of this section. 
The written notice must inform the parties of any provision in the 
recipient's code of conduct that prohibits knowingly making false 
statements or knowingly submitting false information during the 
grievance process.
    (ii) If, in the course of an investigation, the recipient decides 
to investigate allegations about the complainant or respondent that are 
not included in the notice provided pursuant to paragraph (b)(2)(i)(B) 
of this section, the recipient must provide notice of the additional 
allegations to the parties whose identities are known.
    (3) Dismissal of a formal complaint--(i) The recipient must 
investigate the allegations in a formal complaint. If the conduct 
alleged in the formal complaint would not constitute sexual harassment 
as defined in Sec.  106.30 even if proved, did not occur in the 
recipient's education program or activity, or did not occur against a 
person in the United States, then the recipient must dismiss the formal 
complaint with regard to that conduct for purposes of sexual harassment 
under title IX or this part; such a dismissal does not preclude action 
under another provision of the recipient's code of conduct.
    (ii) The recipient may dismiss the formal complaint or any 
allegations therein, if at any time during the investigation or 
hearing: A complainant notifies the Title IX Coordinator in writing 
that the complainant would like to withdraw the formal complaint or any 
allegations therein; the respondent is no longer enrolled or employed 
by the recipient; or specific circumstances prevent the recipient from 
gathering evidence sufficient to reach a determination as to the formal 
complaint or allegations therein.
    (iii) Upon a dismissal required or permitted pursuant to paragraph 
(b)(3)(i) or (b)(3)(ii) of this section, the recipient must promptly 
send written notice of the dismissal and reason(s) therefor 
simultaneously to the parties.
    (4) Consolidation of formal complaints. A recipient may consolidate 
formal complaints as to allegations of sexual harassment against more 
than one respondent, or by more than one complainant against one or 
more respondents, or by one party against the other party, where the 
allegations of sexual harassment arise out of the same facts or 
circumstances. Where a grievance process involves more than one 
complainant or more than one respondent, references in this section to 
the singular ``party,'' ``complainant,'' or ``respondent'' include the 
plural, as applicable.
    (5) Investigation of a formal complaint. When investigating a 
formal complaint and throughout the grievance process, a recipient 
must--
    (i) Ensure that the burden of proof and the burden of gathering 
evidence sufficient to reach a determination regarding responsibility 
rest on the recipient and not on the parties provided that the 
recipient cannot access, consider, disclose, or otherwise use a party's 
records that are made or maintained by a physician, psychiatrist, 
psychologist, or other recognized professional or paraprofessional 
acting in the professional's or paraprofessional's capacity, or 
assisting in that capacity, and which are made and maintained in 
connection with the provision of treatment to the party, unless the 
recipient obtains that party's voluntary, written consent to do so for 
a grievance process under this section (if a party is not an ``eligible 
student,'' as defined in 34 CFR 99.3, then the recipient must obtain 
the voluntary, written consent of a ``parent,'' as defined in 34 CFR 
99.3);
    (ii) Provide an equal opportunity for the parties to present 
witnesses, including fact and expert witnesses, and other inculpatory 
and exculpatory evidence;
    (iii) Not restrict the ability of either party to discuss the 
allegations under investigation or to gather and present relevant 
evidence;
    (iv) Provide the parties with the same opportunities to have others 
present during any grievance proceeding, including the opportunity to 
be accompanied to any related meeting or proceeding by the advisor of 
their choice, who may be, but is not required to be, an attorney, and 
not limit the choice or presence of advisor for either the complainant 
or respondent in any meeting or grievance proceeding; however, the 
recipient may establish restrictions regarding the extent to which the 
advisor may participate in the proceedings, as long as the restrictions 
apply equally to both parties;
    (v) Provide, to a party whose participation is invited or expected, 
written notice of the date, time, location, participants, and purpose 
of all hearings, investigative interviews, or other meetings, with 
sufficient time for the party to prepare to participate;
    (vi) Provide both parties an equal opportunity to inspect and 
review any evidence obtained as part of the investigation that is 
directly related to the allegations raised in a formal complaint, 
including the evidence upon which the recipient does not intend to rely 
in reaching a determination regarding responsibility and inculpatory or 
exculpatory evidence whether obtained from a party or other source, so 
that each party can meaningfully respond to the evidence prior to 
conclusion of the investigation. Prior to completion of the 
investigative report, the recipient must send to each party and the 
party's advisor, if any, the evidence subject to inspection and review 
in an electronic format or a hard copy, and the parties must have at 
least 10 days to submit a written response, which the investigator will 
consider prior to completion of the investigative report. The recipient 
must make all such evidence subject to the parties' inspection and 
review available at any hearing to give each party equal opportunity to 
refer to such evidence during the hearing, including for purposes of 
cross-examination; and
    (vii) Create an investigative report that fairly summarizes 
relevant evidence

[[Page 30577]]

and, at least 10 days prior to a hearing (if a hearing is required 
under this section or otherwise provided) or other time of 
determination regarding responsibility, send to each party and the 
party's advisor, if any, the investigative report in an electronic 
format or a hard copy, for their review and written response.
    (6) Hearings. (i) For postsecondary institutions, the recipient's 
grievance process must provide for a live hearing. At the live hearing, 
the decision-maker(s) must permit each party's advisor to ask the other 
party and any witnesses all relevant questions and follow-up questions, 
including those challenging credibility. Such cross-examination at the 
live hearing must be conducted directly, orally, and in real time by 
the party's advisor of choice and never by a party personally, 
notwithstanding the discretion of the recipient under paragraph 
(b)(5)(iv) of this section to otherwise restrict the extent to which 
advisors may participate in the proceedings. At the request of either 
party, the recipient must provide for the live hearing to occur with 
the parties located in separate rooms with technology enabling the 
decision-maker(s) and parties to simultaneously see and hear the party 
or the witness answering questions. Only relevant cross-examination and 
other questions may be asked of a party or witness. Before a 
complainant, respondent, or witness answers a cross-examination or 
other question, the decision-maker(s) must first determine whether the 
question is relevant and explain any decision to exclude a question as 
not relevant. If a party does not have an advisor present at the live 
hearing, the recipient must provide without fee or charge to that 
party, an advisor of the recipient's choice, who may be, but is not 
required to be, an attorney, to conduct cross-examination on behalf of 
that party. Questions and evidence about the complainant's sexual 
predisposition or prior sexual behavior are not relevant, unless such 
questions and evidence about the complainant's prior sexual behavior 
are offered to prove that someone other than the respondent committed 
the conduct alleged by the complainant, or if the questions and 
evidence concern specific incidents of the complainant's prior sexual 
behavior with respect to the respondent and are offered to prove 
consent. If a party or witness does not submit to cross-examination at 
the live hearing, the decision-maker(s) must not rely on any statement 
of that party or witness in reaching a determination regarding 
responsibility; provided, however, that the decision-maker(s) cannot 
draw an inference about the determination regarding responsibility 
based solely on a party's or witness's absence from the live hearing or 
refusal to answer cross-examination or other questions. Live hearings 
pursuant to this paragraph may be conducted with all parties physically 
present in the same geographic location or, at the recipient's 
discretion, any or all parties, witnesses, and other participants may 
appear at the live hearing virtually, with technology enabling 
participants simultaneously to see and hear each other. Recipients must 
create an audio or audiovisual recording, or transcript, of any live 
hearing and make it available to the parties for inspection and review.
    (ii) For recipients that are elementary and secondary schools, and 
other recipients that are not postsecondary institutions, the 
recipient's grievance process may, but need not, provide for a hearing. 
With or without a hearing, after the recipient has sent the 
investigative report to the parties pursuant to paragraph (b)(5)(vii) 
of this section and before reaching a determination regarding 
responsibility, the decision-maker(s) must afford each party the 
opportunity to submit written, relevant questions that a party wants 
asked of any party or witness, provide each party with the answers, and 
allow for additional, limited follow-up questions from each party. With 
or without a hearing, questions and evidence about the complainant's 
sexual predisposition or prior sexual behavior are not relevant, unless 
such questions and evidence about the complainant's prior sexual 
behavior are offered to prove that someone other than the respondent 
committed the conduct alleged by the complainant, or if the questions 
and evidence concern specific incidents of the complainant's prior 
sexual behavior with respect to the respondent and are offered to prove 
consent. The decision-maker(s) must explain to the party proposing the 
questions any decision to exclude a question as not relevant.
    (7) Determination regarding responsibility. (i) The decision-
maker(s), who cannot be the same person(s) as the Title IX Coordinator 
or the investigator(s), must issue a written determination regarding 
responsibility. To reach this determination, the recipient must apply 
the standard of evidence described in paragraph (b)(1)(vii) of this 
section.
    (ii) The written determination must include--
    (A) Identification of the allegations potentially constituting 
sexual harassment as defined in Sec.  106.30;
    (B) A description of the procedural steps taken from the receipt of 
the formal complaint through the determination, including any 
notifications to the parties, interviews with parties and witnesses, 
site visits, methods used to gather other evidence, and hearings held;
    (C) Findings of fact supporting the determination;
    (D) Conclusions regarding the application of the recipient's code 
of conduct to the facts;
    (E) A statement of, and rationale for, the result as to each 
allegation, including a determination regarding responsibility, any 
disciplinary sanctions the recipient imposes on the respondent, and 
whether remedies designed to restore or preserve equal access to the 
recipient's education program or activity will be provided by the 
recipient to the complainant; and
    (F) The recipient's procedures and permissible bases for the 
complainant and respondent to appeal.
    (iii) The recipient must provide the written determination to the 
parties simultaneously. The determination regarding responsibility 
becomes final either on the date that the recipient provides the 
parties with the written determination of the result of the appeal, if 
an appeal is filed, or if an appeal is not filed, the date on which an 
appeal would no longer be considered timely.
    (iv) The Title IX Coordinator is responsible for effective 
implementation of any remedies.
    (8) Appeals. (i) A recipient must offer both parties an appeal from 
a determination regarding responsibility, and from a recipient's 
dismissal of a formal complaint or any allegations therein, on the 
following bases:
    (A) Procedural irregularity that affected the outcome of the 
matter;
    (B) New evidence that was not reasonably available at the time the 
determination regarding responsibility or dismissal was made, that 
could affect the outcome of the matter; and
    (C) The Title IX Coordinator, investigator(s), or decision-maker(s) 
had a conflict of interest or bias for or against complainants or 
respondents generally or the individual complainant or respondent that 
affected the outcome of the matter.
    (ii) A recipient may offer an appeal equally to both parties on 
additional bases.
    (iii) As to all appeals, the recipient must:

[[Page 30578]]

    (A) Notify the other party in writing when an appeal is filed and 
implement appeal procedures equally for both parties;
    (B) Ensure that the decision-maker(s) for the appeal is not the 
same person as the decision-maker(s) that reached the determination 
regarding responsibility or dismissal, the investigator(s), or the 
Title IX Coordinator;
    (C) Ensure that the decision-maker(s) for the appeal complies with 
the standards set forth in paragraph (b)(1)(iii) of this section;
    (D) Give both parties a reasonable, equal opportunity to submit a 
written statement in support of, or challenging, the outcome;
    (E) Issue a written decision describing the result of the appeal 
and the rationale for the result; and
    (F) Provide the written decision simultaneously to both parties.
    (9) Informal resolution. A recipient may not require as a condition 
of enrollment or continuing enrollment, or employment or continuing 
employment, or enjoyment of any other right, waiver of the right to an 
investigation and adjudication of formal complaints of sexual 
harassment consistent with this section. Similarly, a recipient may not 
require the parties to participate in an informal resolution process 
under this section and may not offer an informal resolution process 
unless a formal complaint is filed. However, at any time prior to 
reaching a determination regarding responsibility the recipient may 
facilitate an informal resolution process, such as mediation, that does 
not involve a full investigation and adjudication, provided that the 
recipient--
    (i) Provides to the parties a written notice disclosing: The 
allegations, the requirements of the informal resolution process 
including the circumstances under which it precludes the parties from 
resuming a formal complaint arising from the same allegations, 
provided, however, that at any time prior to agreeing to a resolution, 
any party has the right to withdraw from the informal resolution 
process and resume the grievance process with respect to the formal 
complaint, and any consequences resulting from participating in the 
informal resolution process, including the records that will be 
maintained or could be shared;
    (ii) Obtains the parties' voluntary, written consent to the 
informal resolution process; and
    (iii) Does not offer or facilitate an informal resolution process 
to resolve allegations that an employee sexually harassed a student.
    (10) Recordkeeping. (i) A recipient must maintain for a period of 
seven years records of--
    (A) Each sexual harassment investigation including any 
determination regarding responsibility and any audio or audiovisual 
recording or transcript required under paragraph (b)(6)(i) of this 
section, any disciplinary sanctions imposed on the respondent, and any 
remedies provided to the complainant designed to restore or preserve 
equal access to the recipient's education program or activity;
    (B) Any appeal and the result therefrom;
    (C) Any informal resolution and the result therefrom; and
    (D) All materials used to train Title IX Coordinators, 
investigators, decision-makers, and any person who facilitates an 
informal resolution process. A recipient must make these training 
materials publicly available on its website, or if the recipient does 
not maintain a website the recipient must make these materials 
available upon request for inspection by members of the public.
    (ii) For each response required under Sec.  106.44, a recipient 
must create, and maintain for a period of seven years, records of any 
actions, including any supportive measures, taken in response to a 
report or formal complaint of sexual harassment. In each instance, the 
recipient must document the basis for its conclusion that its response 
was not deliberately indifferent, and document that it has taken 
measures designed to restore or preserve equal access to the 
recipient's education program or activity. If a recipient does not 
provide a complainant with supportive measures, then the recipient must 
document the reasons why such a response was not clearly unreasonable 
in light of the known circumstances. The documentation of certain bases 
or measures does not limit the recipient in the future from providing 
additional explanations or detailing additional measures taken.

0
12. Add Sec.  106.46 to subpart D to read as follows:


Sec.  106.46  Severability.

    If any provision of this subpart or its application to any person, 
act, or practice is held invalid, the remainder of the subpart or the 
application of its provisions to any person, act, or practice shall not 
be affected thereby.

0
13. Add Sec.  106.62 to subpart E to read as follows:


Sec.  106.62   Severability.

    If any provision of this subpart or its application to any person, 
act, or practice is held invalid, the remainder of the subpart or the 
application of its provisions to any person, act, or practice shall not 
be affected thereby.

0
14. Subpart F is revised to read as follows:
Subpart F--Retaliation
Sec.
106.71 Retaliation.
106.72 Severability.

Subpart F-Retaliation


Sec.  106.71  Retaliation.

    (a) Retaliation prohibited. No recipient or other person may 
intimidate, threaten, coerce, or discriminate against any individual 
for the purpose of interfering with any right or privilege secured by 
title IX or this part, or because the individual has made a report or 
complaint, testified, assisted, or participated or refused to 
participate in any manner in an investigation, proceeding, or hearing 
under this part. Intimidation, threats, coercion, or discrimination, 
including charges against an individual for code of conduct violations 
that do not involve sex discrimination or sexual harassment, but arise 
out of the same facts or circumstances as a report or complaint of sex 
discrimination, or a report or formal complaint of sexual harassment, 
for the purpose of interfering with any right or privilege secured by 
title IX or this part, constitutes retaliation. The recipient must keep 
confidential the identity of any individual who has made a report or 
complaint of sex discrimination, including any individual who has made 
a report or filed a formal complaint of sexual harassment, any 
complainant, any individual who has been reported to be the perpetrator 
of sex discrimination, any respondent, and any witness, except as may 
be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA 
regulations, 34 CFR part 99, or as required by law, or to carry out the 
purposes of 34 CFR part 106, including the conduct of any 
investigation, hearing, or judicial proceeding arising thereunder. 
Complaints alleging retaliation may be filed according to the grievance 
procedures for sex discrimination required to be adopted under Sec.  
106.8(c).
    (b) Specific circumstances. (1) The exercise of rights protected 
under the First Amendment does not constitute retaliation prohibited 
under paragraph (a) of this section.
    (2) Charging an individual with a code of conduct violation for 
making a materially false statement in bad faith in the course of a 
grievance proceeding

[[Page 30579]]

under this part does not constitute retaliation prohibited under 
paragraph (a) of this section, provided, however, that a determination 
regarding responsibility, alone, is not sufficient to conclude that any 
party made a materially false statement in bad faith.


Sec.  106.72  Severability.

    If any provision of this subpart or its application to any person, 
act, or practice is held invalid, the remainder of the subpart or the 
application of its provisions to any person, act, or practice shall not 
be affected thereby.

0
15. Add subpart G to read as follows:
Subpart G--Procedures
Sec.
106.81 Procedures.
106.82 Severability.

Subpart G--Procedures


Sec.  106.81  Procedures.

    The procedural provisions applicable to title VI of the Civil 
Rights Act of 1964 are hereby adopted and incorporated herein by 
reference. These procedures may be found at 34 CFR 100.6-100.11 and 34 
CFR part 101. The definitions in Sec.  106.30 do not apply to 34 CFR 
100.6-100.11 and 34 CFR part 101.


Sec.  106.82   Severability.

    If any provision of this subpart or its application to any person, 
act, or practice is held invalid, the remainder of the subpart or the 
application of its provisions to any person, act, or practice shall not 
be affected thereby.

Subject Index to Title IX Preamble and Regulation [Removed]

0
16. Remove the Subject Index to Title IX Preamble and Regulation.


0
17. In addition to the amendments set forth above, in 34 CFR part 106, 
remove the parenthetical authority citation at the ends of Sec. Sec.  
106.1, 106.2, 106.3, 106.4, 106.5, 106.6, 106.7, 106.11, 106.12, 
106.13, 106.14, 106.15, 106.16, 106.17, 106.21, 106.22, 106.23, 106.31, 
106.32, 106.33, 106.34, 106.35, 106.36, 106.37, 106.38, 106.39, 106.40, 
106.41, 106.42, 106.43, 106.51, 106.52, 106.53, 106.54, 106.55, 106.56, 
106.57, 106.58, 106.59, 106.60, and 106.61.

[FR Doc. 2020-10512 Filed 5-12-20; 4:45 pm]
BILLING CODE 4000-01-P

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